Liability
Cooke and Comcare [2008] AATA 895 (8 October 2008)Sydney
The tribunal accepted that the applicant suffered, and waslikely to continue suffering from Adjustment Disorder with Anxiety and Depression since the condition was diagnosedby her treating medical practitioners in 2003 and 2004. Inrelying on the contemporaneous medical and witnessevidence before it, the tribunal was of the opinion that thestressors, the cause of the applicant’s condition, were herpersonal problems. The tribunal affirmed the decisionunder review.
Hannaford and Telstra Corporation Limited [2008] AATA 879 (3 October 2008) Sydney
The applicant sought review of a “reviewable decision”made by the respondent in January 2007 pursuant tosection 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’), which decision revoked aprior determination made in May 2002 that the respondentwas liable to pay compensation to the applicant in respectof “Ross River Virus” suffered in February/March 2002.
For the applicant, it was submitted that any unidentifiedarbovirus suffered by him was an occupational disease interms of sub-section 7(1) of the 1988 Act. The tribunalnoted that the words of the schedule referred to“employment” as carrying a particular risk of contamination. That is to say, it is the employment per sethat must carry the particular risk, as per example in theoccupations specified, and not, as in this case, thegeographical area in which the employment is carried out.On this basis, the tribunal rejected the submission by theapplicant that any “unidentified arbovirus” was, in theapplicant’s case, an occupational disease for the purposesof sub-section 7(1) of the 1988 Act.
In terms of identifying whether the applicant suffered froman unidentified arbovirus, the tribunal considered expertmedical evidence. The tribunal acknowledged that theapplicant suffered an acute febrile illness in early 2002 andcontinued to suffer debilitating aches and pains since thattime, however, having regard to the specialist reports,infection by some otherwise identified arbovirus was a hypothesis that had not been proved on the balance of probabilities. The tribunal subsequently noted that even if it was satisfied that the applicant had been infected by an arbovirus, there was no evidence to suggest it happened as a result of his employment.
The tribunal affirmed this part of the decision under review.
Monti and Australian Postal Corporation [2008] AATA 878 (2 October 2008) Sydney
The tribunal was required to decide whether the applicant suffered an injury, disease or aggravation pursuant to section 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’), and whether the respondent was accordingly liable to pay compensation to him. In relying on the medical evidence before them and the decision in Comcare v Sahu-Khan (2007) 156 FCR 536, the tribunal concluded that whilst there may have been a temporal connection in the applicant developing numbness in his right foot during his work hours in November 2006, it was not satisfied that this extended to a causal connection with his work. The tribunal affirmed the decision under review.
Exclusions
Failure to obtain a benefit
Russell and Comcare [2008] AATA 897 (8 October 2008) Adelaide
The applicant sustained an adjustment disorder with anxiety symptoms and panic, which condition arose out of and in the course of her employment. The issue for determination was whether the applicant’s condition arose as a result of a failure to obtain a transfer or benefit in connection with her employment.
What event or events in the course of her employment caused the applicant’s condition?
The tribunal was satisfied that a series of events gave rise to the applicant’s depression. The tribunal found that the applicant was already suffering an adjustment disorder and depression by August 2004. The direction made by her employer to report to work in November 2004 was a final contributor to an illness that had been developing over a long period of time and related back to the original development of a bus phobia arising out of a work-related incident that occurred in early 1999.
Could one of the causative factors be characterised as a failure to obtain a promotion, transfer or benefit? If so, to what extent did that particular factor contribute to the applicant’s condition?
The tribunal noted that if the failure to obtain the transfer or benefit materially contributed to the applicant’s injury, then even if there were other causative factors contributing to the injury, the exclusion will operate: Hart v Comcare (2005) 145 FCR 29 and Wiegand v Comcare (No 2) (2007) 94 ALD 154.
It was clear on the evidence in this case that it was the applicant’s perception that she had already obtained the benefit of a transfer and all that was required was a decision to be made about exactly what her long-term position would be. The tribunal noted it was a reasonable perception for her to hold. The tribunal found that the exclusionary provision under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’) could not apply in this case as the applicant’s employer’s decision to relocate her did not constitute the taking away of a benefit or transfer as she believed that she had already been transferred and relocated and had received the benefit. It was a failure to retain a benefit.
The tribunal set aside the decision under review and in substitution for that decision determined that Comcare was liable to pay compensation to the applicant for her psychological disorder, namely an adjustment disorder with mixed mood, anxiety and depression.
Reasonable Administrative Action
Botros and Australian Postal Corporation [2008] AATA 881 (3 October 2008) Sydney
The essential question for the tribunal was whether the applicant continued to suffer from the effects of a work-related incident in May 2003, and the answer to that question would determine a majority of the other issues that arose out of the 12 applications made by the applicant. One of those issues was concerned with whether the applicant suffered from a psychiatric condition attributable to his employment with the respondent. The tribunal noted that whilst both of the psychiatrists whose opinions were before them considered the applicant to have a psychiatric condition, the issue arose as to whether the provisions in the definition of “injury” in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’) operated to exclude the applicant’s condition from that definition, and thus to preclude liability for that condition.
The tribunal was satisfied that the precipitating matters cited by the applicant in his claim form, including his employer’s failure to grant leave at short notice and a telephone call to the applicant’s mobile to inquire as to his whereabouts when he was rostered on for work, amounted to “reasonable administrative action” and consequently enlivened the exclusionary provision of sub-section 5A(2) of the 1988 Act. It followed that the applicant did not suffer an “injury” within the meaning of section 5A of the 1988 Act.
The tribunal affirmed this part of the decision under review.
Section 6A: Unintentional Consequences
No decisions
Journey Claims
No decisions
Jurisdiction
Bain and Military Rehabilitation and Compensation Commission [2008] AATA 884 (3 October 2008) Adelaide
The applicant injured his right knee on two separate occasions in 1969 and 1974 when he was employed in various roles by his employer. Subsequently, in 1971 and 1975, the Commissioner for Employees’ Compensation determined that his employer was not liable to pay compensation in respect of the applicant’s injuries. Upon noting the letter enclosing the applicant’s application for reconsideration of the determination made in 1971, and that the applicant also sought review of the deemed decision of the respondent arising from the refusal to consider his application for re-consideration of that determination, the tribunal decided that it had jurisdiction to review the latter deemed decision, notwithstanding that the Commission had not reconsidered the primary decision on the merits.
Botros and Australian Postal Corporation [2008] AATA 881 (3 October 2008) Sydney
The representative for the applicant submitted that, notwithstanding that an application for review of the decision had been made by the applicant, the tribunal had no jurisdiction to review the decision which affirmed the original decision that “deemed” the applicant able to earn penalty rates that shift work attracts. The representative submitted that the subject of this application did not concern a decision made under section 60 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’).
The tribunal considered this decision was either consequential on the other decisions made under section 19 of the 1988 Act or was made under section 8 of the 1988 Act which concerns calculation of normal weekly earnings. The tribunal concluded, “taking a practical and broad view of the determination, and keeping in mind the statutory objective of the tribunal to provide a review mechanism that is fair, just, economical, informal and quick” that it had jurisdiction to review the decision. The tribunal noted that the applicant failed to present evidence to support his assertions that the nature of work on his night shift was qualitatively different to other shifts and that his condition was aggravated by it.
The tribunal affirmed this part of the decision under review.
Procedure & Costs
No decisions Notice
Provisions & Time Limits
Bain and Military Rehabilitation and Compensation Commission [2008] AATA 884 (3 October 2008) Adelaide
The applicant injured his right knee on two separate occasions in 1969 and 1974 when he was employed in various roles by his employer. Subsequently, in 1971 and 1975, the Commissioner for Employees’ Compensation determined that his employer was not liable to pay compensation in respect of the applicant’s injuries. In 1999, the claimant’s solicitors requested that the respondent Commission reconsider the determinations, however, it refused to do so as the applicant failed to exercise his rights to appeal to a Court against the adverse decisions made in 1971 and 1975 in time.
In Bain and Military Rehabilitation and Compensation Commission [2008] AATA 730, the tribunal noted that the only issue before them was whether the applicant should be allowed an extension of time within which to request reconsideration of the determinations made in 1971 and 1975. In relation to the determination made in 1975, the tribunal was not persuaded that it would be just to grant an extension of time as the applicant rested on his rights and did not pursue his claim for many years. Contrastingly, the tribunal found that it would be just to grant the extension of time sought by the applicant to allow an extension of time for reconsideration of the determination made in 1971 because that claim was meritorious. The tribunal would not offer a formal decision until the parties had an opportunity to study its reasons and to make further submissions.
In the present hearing, the tribunal was satisfied that the decision made in 1999 “[r]efusing an extension of time and thereby refusing to consider my application for reconsideration” constituted a deemed decision that was reviewable by the tribunal pursuant to section 60 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), having regard to provisions of section 3(a) and (g) of the Administrative Appeals Tribunal Act 1975 (Cth).
The tribunal affirmed the decision under review insofar as it related to the determination made in 1975. Additionally, the tribunal set aside the decision under review insofar as it related to the determination made in 1971, and in place of that determination decided that the period within which the applicant could request reconsideration of the primary decision refusing the claim for compensation be extended until the date of receipt by the respondent of the letter enclosing the applicant’s application for reconsideration of the abovementioned decisions.
Recovery of Compensation
No decisions
Incapacity
Hannaford and Telstra Corporation Limited [2008] AATA 879 (3 October 2008) Sydney
The applicant sought review of a “reviewable decision” made by the respondent in January 2007 pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’), which decision revoked a prior determination made in May 2002 that the respondent was liable to pay compensation to the applicant in respect of “Ross River Virus” he suffered in February/March 2002.
Given its findings as to the failure to prove any arbovirus infection, the tribunal found it was not necessary to consider questions regarding incapacity following the original illness suffered by the applicant. After perusing the medical evidence before it, the tribunal was satisfied that the applicant’s current debilitating illness had not been caused, materially contributed to, aggravated or accelerated by his illness in February/March 2002.
The tribunal affirmed this part of the decision under review.
Permanent Impairment
Botros and Australian Postal Corporation [2008] AATA 881 (3 October 2008) Sydney
In May 2003, the applicant suffered musculo-ligamentous back injury during the course of his employment, and subsequently the respondent accepted liability under sub-section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’). Limited incapacity payments and payments for treatment expenses were made until September 2003, when the respondent determined that the effects of the injury had ceased. In November 2004, the tribunal set aside that decision and decided instead that the applicant had suffered an aggravation of his pre-existing back condition and the effects of that aggravation were continuing. In July 2007, the respondent again determined that the effects of the incident had ceased and also made a number of consequential determinations of which the applicant sought review by the present tribunal.
The essential question for the tribunal was whether the applicant continued to suffer from the effects of the incident in May 2003. On the basis of the applicant’s undisputed pre-existing condition, his acknowledged symptoms in January 2003 and those documented in 1998, and the medical evidence which suggested that the applicant recovered, by December 2003, from his injury, the tribunal found that the applicant no longer suffered from any effects of the incident in May 2003 and did not suffer from those effects at the date of the earliest of the decisions under review.
The tribunal acknowledged that the applicant may have suffered some temporary aggravations of his pre-existing condition, but it considered that it had ceased to have effect well before the date when the respondent determined that the applicant has ceased to suffer from a compensable condition.
The tribunal affirmed the decision under review as to permanent impairment and similarly, the decisions concerning the applicant’s claims for incapacity payments and his claim for treatment expenses were affirmed.
Chard and Telstra Corporation Limited [2008] AATA 899 (8 October 2008) Brisbane
The applicant worked for the respondent between October 1982 and October 2006. His hearing was damaged in the course of his employment and the respondent accepted liability for his injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’). The proceedings here required that the tribunal consider the applicant’s entitlement to compensation for: permanent impairment under section 24 of the 1988 Act; and non-economic loss pursuant to section 27 of the 1988 Act.
The tribunal identified the key issue of the case as follows: “Should the applicant’s hearing loss be apportioned over the life of his exposure to work-related loud noise, or should I treat him as being injured at a particular point?” and were required to observe the transitional provisions of the 1988 Act. In this respect, the tribunal accepted the medical experts’ advice that the damage occurred over the whole of the period of noise exposure (ie. 1982 – 1994) and then apportioned the loss of hearing over that time. This was the approach that was adopted in the reviewable decision and it resulted in a decision that a payment should be made in respect of loss occurring prior to the commencement of the 1988 Act. This also meant the amount of loss attributed to the period after the commencement of the 1988 Act until 31 December 1994 resulted in less than a 10% permanent impairment. Consequently, the applicant’s loss did not reach the threshold required by the 1988 Act for compensation under section 24.
In relation to the question of entitlement to compensation under section 27, the tribunal disposed of the applicant’s contention in this regard, as there was no evidence of a claim for compensation for non-economic loss in respect of the permanent impairment being made before the introduction of the relevant bill on 7 December 2000.
The tribunal affirmed the decision under review.
Rehabilitation
No decisions
Aids and Appliances
No decisions
Household Assistance
No decisions
Medical Expenses
No decisions
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