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Liability

The relevant issues for determination were whether theApplicant suffered a tear of the medial meniscus in herright knee at the time of her fall at work in September2002, and, if so, whether her fall at home in July 2006 wascausally linked to this right knee injury. In relation to thefirst issue, the Tribunal noted that the precisecircumstances of the fall in September 2002 appearedsomewhat uncertain. Whether the Applicant suffered atwisting injury sufficient to cause a medial meniscus tearwas unclear given the significant inconsistencies betweenthe contemporaneous documentation and the Applicant’srecollection of both her symptoms and the relevant events.The untested clinical diagnosis of an orthopaedic surgeon was insufficient to allow the Tribunal to conclude that theApplicant had a medial meniscus tear, despite no evidenceof a tear on an MRI.

Given the Tribunal’s finding that the Applicant did notsuffer from a medial meniscus tear when she injured herright knee at work in September 2002, it found that herright leg injury following her fall at home in 2006 and thedegenerative medial meniscus tear diagnosed in 2006 didnot arise out of, or in the course of, her employment andtherefore, were not injuries within the meaning of section14 of the Act.

The Tribunal affirmed this part of the decision underreview.

Baker and Telstra Corporation Limited and Anor [2008] AATA 1136 (19 December 2008) Brisbane

The Applicant claimed that he suffered from a depressive disorder which was contributed to by exposure to dust in the workplace and exacerbated by his occupational asthma. In December 2002, the Applicant lodged a claim with his employer’s compensation insurer for ‘continuous chest infections, shortness of breath, bronchitis, asthma, swollen lungs, wheezing cough, depression, psychological problems and sleeping difficulties’ which he said were ‘associated with exposure to asbestos products and other unknown dust substances’ during his employment. The claim was rejected in December 2003 and affirmed on reconsideration in June 2004.

The Tribunal, in their conclusions, noted that the Applicant was reckless in swearing to his account of the history of his exposure to asthmagenic agents, there was no contemporaneous evidence to support the history of symptoms that the Applicant alleged existed, the medical history recounted by the Applicant in the past was diametrically opposed to his present accounts, and there was a demonstrated tendency on the part of the Applicant to attribute his symptoms, then said to be current, to the complaint then being made.

The Tribunal was not satisfied of the reliability of the medical opinions because it was not satisfied that the histories that informed their opinions were reliable. The Tribunal was, therefore, not satisfied that the Applicant suffered from occupational asthma, or that his psychiatric condition was materially contributed to by his employment.

The Tribunal affirmed the decision under review.

Cabban and Comcare [2008] AATA 1132 (18 December 2008) Brisbane

In April 2006, the Applicant submitted a claim in respect of ‘herpes zoster (shingles)’ which she alleged was contributed to in a material degree by her employment. The Respondent denied liability in May 2006 and this was affirmed on reconsideration in December 2006.

The issue for the Tribunal was whether the herpes zoster condition was contributed to in a material degree by her employment pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’). The Tribunal noted that the case of the Applicant was based on her claim that the condition was caused by stress in the workplace. The Tribunal was satisfied that the Applicant suffered a personal injury, namely a disease in accordance with section 4 of the 1988 Act, on the basis of medical evidence before it. However, with respect to the causal relationship between the Applicant’s injury and her employment, the Tribunal relied on the opinion of an experienced dermatologist who considered that the condition was not caused by stress.

The Tribunal affirmed the decision under review.

Fam and Australian Postal Corporation [2008] AATA 1069 (1 December 2008) Perth

Lower back injury

Disc protrusion injury to lower back

On the medical evidence before it, the Tribunal was satisfied that the Applicant suffered an ‘injury’, for the purposes of the 1988 Act, in respect of his lower back, namely, an aggravation of a pre-existing degenerative condition in his lumbar spine resulting in an acute left-sided L4/5 disc protrusion, and a further aggravation of his abovementioned lumbar spine condition. The Respondent was liable, under section 14(1) of the 1988 Act, to pay compensation to the Applicant in respect of each of those ‘injuries’.

The Tribunal set aside this part of the decision under review.

Farnaby and Military Rehabilitation and Compensation Commission [2008] FCA 1911 (17 December 2008) Melbourne (heard in Hobart)

In January 2002, the Applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’) for alleged physical and sexual abuse, which resulted in post traumatic stress disorder, that arose in the course of his employment. The claim was disallowed and this was affirmed by the Tribunal in Farnaby and Military Rehabilitation and Compensation Commission [2008] AATA 603. The Applicant appealed to the Court under section 44 of the Administrative Appeal Tribunal Act 1975 (Cth) (‘the 1975 Act’).

The Court considered the Tribunal’s decision which found that the Applicant was subjected to assaults, harassment and intimidation by fellow recruits within the workplace, and was also the victim of criminal sexual abuse by his sponsor. The issue for determination for the Tribunal was whether the Applicant suffered mental injury or disease as a result of the treatment he was subjected to, and given the medical evidence before it, the Tribunal was not satisfied that the Applicant’s symptoms were outside the bounds of normal mental functioning and behaviour (Comcare v Mooi (1996) 69 FCR 439 at 444).

The Applicant in the present proceedings submitted that the Tribunal erred because it searched for the cause of the Applicant’s symptoms and failed to consider whether the incidents at work were a cause. Given that the Court was satisfied that the Tribunal properly found that the Applicant did not suffer a ‘mental injury’, the causation issue was not considered by the Court.

The remainder of the proceedings concerned questions of administrative law, and in accordance with section 44(1) of the 1975 Act, the Court found that the alleged questions in the Applicant’s amended notice of appeal did not show that the appeal was on questions of law. Given the Tribunal’s factual findings, the Court was satisfied that the Tribunal’s further finding that the Applicant did not suffer mental injury was a proper one made after a careful review of the evidence.

The Court dismissed the appeal with costs.

Kanapathippillai and Australian Postal Corporation [2008] AATA 1159 (23 December 2008) Melbourne

The Applicant in these proceedings issued three applications challenging a number of decisions made by the Respondent. He sought restoration of liability which had been denied for back injury and to have the Respondent accept liability for compensation for an L45 laminectomy. Having perused the medical evidence before it, the Tribunal preferred the opinions expressed by the Applicant’s treating surgeon given his appropriate concessions and that he did not attempt to advocate the Applicant’s application.

The Tribunal was satisfied on the balance of probabilities that the opinions of the Applicant’s treating practitioner were consistent with the mechanism of injury in the present case namely, ‘surface damage of the facet joints becoming damaged either microscopically or by some other measurable degree causing the development of bony spurs which in turn encroached into the spinal canal and compromised nerve roots’. The activities undertaken by the Applicant in the employment satisfied the Tribunal that it was the employment which did cause a material contribution to the injury, which was described by the treating surgeon as being a significant contribution.

The Respondent conceded that the Applicant did suffer from aggravation of degenerative spinal disease but it asserted that from time to time the Applicant suffered a temporary aggravation of a pre-existing degenerative condition which had not caused any lasting or permanent effects. The Tribunal noted that the principal issues to be considered in the proceedings were whether the employment contributed in a material degree to the aggravation and whether the aggravation of the pre-existing disease had a permanent affect. An examination of the duties of the applicant and the evidence especially of the treating surgeon satisfied the Tribunal that the case of the Applicant has risen above the evaluative threshold of materiality. It could not be said that the employment was a mere contributing factor but rather on the balance of probabilities the employment was found to have been likely to influence the disease process to cause it to have a permanent affect upon the Applicant.

Having regard to the decisions in Comcare v Canute [2005] FCAFC 262, Comcare v Sahu-Khan [2007] FCA 15, and Repatriation Commission v Bendy (1989) 10 AAR 323, the Tribunal was satisfied that the employment of the Applicant with the Respondent contributed in a material degree to the aggravation of a pre-existing degenerative disease causing a permanent affect for which the Respondent had a continuing liability.

Given its findings in relation to the liability of the Respondent, the Tribunal set aside the decision of the Respondent with respect to payments for incapacity and medical expenses.

Tsang and Australian Postal Corporation [2008] AATA 1157 (23 December 2008) Sydney

The Applicant made a claim in respect of an incident at work in November 2005 which she claimed hurt her lower back, for which liability was denied and that original decision was affirmed. In September 2006, on a reconsideration of own motion, the Respondent accepted liability in respect of a ‘temporary aggravation of a pre-existing degenerative back condition’ and noted that as at that date the Applicant was no longer suffering effects of the aggravation and was fit for full hours and duties. The Applicant in the present proceeding disputed that decision and maintained that the effects of the incident still continued.

The Tribunal noted that the Applicant’s descriptions of the incident, in addition to the histories given to examining doctors, were inconsistent, and generally failed to mention her previous episodes of back pain. The opinion provided by an orthopaedic and spinal surgeon was given more weight as he had knowledge of some previous back pain experienced by the Applicant.

The combination of the Applicant’s erratic and inconsistent histories and descriptions of the incident and her symptoms; her failure to seek medical attention for a full month following the incident; her return to work on normal duties immediately following the incident; her limited medical treatment since the incident and the Tribunal’s preference for the opinion of the abovementioned specialist, prevented the Tribunal from being satisfied that the symptoms the Applicant suffered as a result of the incident persisted 18 September 2006.

The Tribunal affirmed the decision under review.

Waghorne and Australian Postal Corporation [2008] AATA 1133 (18 December 2008) Sydney

The Applicant complained of back, neck and other pain caused by her employment, which she alleged incapacitated her for work. She also complained of a psychiatric condition which she said was a sequella of her back pain. The application concerning her psychiatric condition depended on the success of her application in relation to her claimed physical condition. The Applicant maintained that two separate incidents gave rise to her back, neck and other pain, the truth of which was disputed by the Respondent.

The Tribunal had to consider whether the incidents as alleged by the Applicant took place, whether physical symptoms experienced by the Applicant were due to her employment with the Respondent, and whether she suffered from a psychiatric condition that was a sequella of her physical condition in the event they found that she had a compensable physical condition.

The Tribunal was not satisfied the incidents as alleged by the Applicant took place given the evidence before it. Further, the weight of the expert evidence was overwhelmingly against a conclusion that the Applicant’s symptoms were caused by her employment. Any benefit of any doubt was limited by the Applicant’s unreliability as a witness, by the incorrect histories she gave doctors and by her exaggerated reports of symptoms on examination.

The Tribunal concluded that the Applicant did not suffer an injury, within the meaning of the 1988 Act, to her back, neck or other part of her body in the course of her employment. The claimed psychiatric sequella was similarly not an injury suffered in the course of her employment.

The Tribunal affirmed the decision under review.

Weekes and Australian Postal Corporation [2008] AATA 1155 (23 December 2008) Sydney

The Applicant made a claim for compensation in 2007 for an injury/aggravation she sustained in the course of her employment in 2003, for which liability was not accepted by the Respondent in a determination made in September 2007. This was affirmed in a reviewable decision made in December 2007 on the basis of section 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), and that the Applicant had submitted insufficient medical evidence to establish that she suffered from any work related condition in respect of her hands, fingers and wrists.

Given the medical evidence before it, the Tribunal did not accept that the Applicant had any substantial physical disorder or regional pain syndrome to account for her upper limb symptoms, and any symptoms she reported did not occur in a pattern which indicated any particular psychological illness. The Tribunal was unable to find a diagnosis or condition they could accept, so there could not be an aggravation. Consequently, the Tribunal did not need to make a finding with respect to whether her work made any material contribution to her pain.

The Tribunal affirmed this part of the decision under review.

Williams and Military Rehabilitation and Compensation Commission [2008] AATA 1077 (2 December 2008) Brisbane

The Applicant sought review of two determinations made by the Respondent; the first made in March 2004 which denied liability to pay compensation for the conditions of post-traumatic stress disorder and hypertension, the second made in May 2007 which denied liability to pay compensation for the condition of “alcohol dependency”. In relation to the first determination, the Applicant sought review only of that part of the decision that denied liability for post-traumatic stress disorder.

The two issues for the Tribunal were whether the Applicant suffered from post-traumatic stress disorder, alcohol dependence and alcohol abuse, and, if so, whether the requisite causal relationship existed between the incident of 1969, namely the collision between two ships, and any or all of these conditions.

The Tribunal preferred the opinion of those doctors who opined that the Applicant developed post-traumatic stress disorder as a result of the incident of 1969. The Tribunal noted that whilst there were some discrepancies in the accounts given by the Applicant, those discrepancies were not of a nature that would lead it to question the factual basis upon which the doctors supporting the Applicant’s claim based their diagnostic conclusions. The Tribunal was also satisfied there was a significant connection between the Applicant’s post-traumatic stress disorder and his alcohol abuse, given the medical evidence before them.

Exclusions

Fam and Australian Postal Corporation [2008] AATA 1069 (1 December 2008) Perth

In May 2006, the Applicant claimed compensation under the 1988 Act for ‘depression due to back injury and wrist injury’ said to have been suffered by him in February 2006. In June 2006, the Respondent determined that it was not liable under the 1988 Act to pay compensation to the applicant in respect of depression and this was affirmed in a reviewable decision by the Respondent in June 2007.

The Respondent submitted that the Applicant’s mental ailment arose by reason of his frustration with the workers’ compensation process and, in particular, the Respondent’s determination of May 2006 to cease payments of compensation in respect of his lower back injury. It submitted that cessation of compensation payments constituted a failure by the Applicant to obtain a benefit in connection with his employment; hence, his mental ailment was not an ‘injury’ for the purposes of the 1988 Act because it was caught by the exclusionary provision in the definition of ‘injury’ in section 4(1) of that Act.

The Tribunal did not accept the Respondent’s submission. It noted that the Respondent’s determination ceasing payments of compensation to the Applicant was not made until May 2006, which was almost three months after the Applicant first sought treatment for depression. It further noted it was very doubtful whether a deprivation of existing compensation benefits constituted a failure to “obtain” a benefit: Comcare v Ross [1996] FCA 1669. The fact that the Applicant did not claim compensation for that mental ailment until 17 May 2006, the day after the Respondent’s determination to cease his compensation benefits, was irrelevant to the matter of causation of that mental ailment.

The Tribunal concluded that the Applicant’s mental ailment was an ‘injury’ for the purposes of the 1988 Act and that the Respondent was liable, under section 14(1) of that Act, to pay compensation to the Applicant in respect of that injury.

The Tribunal set aside this part of the decision under review.

Reasonable disciplinary action

The question for the Tribunal was whether a workplace process, provided for in relation to steps that may be taken to promote the efficiency of an employee, amounted to disciplinary action within the meaning of ‘injury’ under section 4 of the 1988 Act. If the answer to this question was in the affirmative, the second issue for the Tribunal was whether the conduct of the employer in relation to the Applicant was ‘reasonable’ so that actions could be described as ‘reasonable disciplinary action’ taken against the Applicant.

In line with the reasoning in Peter Carson v Comcare [1998] AATA 644, the Tribunal found that the course of the employer’s conduct was not ‘disciplinary action’ but was rather pre-disciplinary. The employers provided for a process directed to the effective operation of the employee’s duties and not to discipline. It was, therefore, unnecessary for the Tribunal to consider whether the conduct of the employer could be properly categorised as unfair ‘disciplinary action’.

Section 6A: Unintentional Consequences

Journey Claims

Jurisdiction

In each application, the Applicant claimed to be entitled to compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’) for a period of incapacity. For various periods totalling approximately six months in 1999, the Applicant was held in prison when he was refused bail pending his trial.

The issue before the Tribunal was whether it had jurisdiction to decide the Applicant’s entitlement to compensation.

The Respondent disputed the jurisdiction of the Tribunal to decide the entitlement of the Applicant to compensation for incapacity during a certain period, which was comprised of a number of distinct periods including the period when the Applicant was not in prison, the period when he was held in custody prior to his conviction, and the period during which time he was imprisoned following his conviction.

The Tribunal held that compensation was not payable in respect of the period during which the Applicant was imprisoned in connection with his conviction of an offence, pursuant to section 23(2) of the Act and Trow and Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees [1992] AATA 566.

In terms of the periods prior to the Applicant’s imprisonment in connection with his conviction, the Respondent argued that the Tribunal did not have jurisdiction to make determinations as to any part of the claimed period. This was based on the proposition that the period for which incapacity was claimed was after the reviewable decisions were made and it followed that the Tribunal did not have jurisdiction to consider the claim given that the Respondent did not consider it.

The Tribunal noted that the Respondent’s arguments were based on a misunderstanding of the decision in Lees v Comcare [1999] FCA 753. It held that the Tribunal does not have jurisdiction to deal with a type of compensation which had not been considered by the Respondent in accordance with the processes set out in the Act.

Procedure & Costs

The Court decided that the amended application be dismissed pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth). The Tribunal was held to be the most appropriate forum in which to raise a challenge to the position taken by the Respondent. The Court refused the application for leave because it considered that an appeal from the order dismissing the application had virtually no prospect of success.

Clement and Comcare [2008] FCA 1780 (1 December 2008) Canberra

The present application was for an extension of time within which to appeal from interlocutory orders made in December 2007 and for leave to appeal from those orders. In the former proceedings, Justice Emmett made various orders concerning leave to file a proposed amended application and dismissals of claims under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the 1977 Act’). In the latter proceeding, which covered much of the same grounds, Justice Emmett ordered that the application be dismissed.

The Applicant filed notices of appeal in relation to both matters and the Respondents filed notices of motion that the appeals be dismissed as incompetent in that leave to appeal had been neither sought nor granted and the notices of appeal disclosed no meaningful grounds for appeal. In the alternative, they relied on section 31A of the Federal Court of Australia Act 1976 (Cth) on the basis that the appeals had no reasonable prospects of success.

Justice Emmett observed that “the decisions in both proceedings cover much of the same ground” and that “the primary question appears to be whether the Applicant is entitlement to compensation as a result of incapacity for work”. His Honour observed that the only difference between the two appeared to be the period of incapacity. Consequently, His Honour considered it was an appropriate exercise of the Court’s discretion to refuse to grant relief under the 1977 Act given that it would avoid a significant waste of costs and Court time in considering the voluminous and misconceived contentions advanced on behalf of  the Applicant. He ultimately decided that appeals from the orders would have no prospect of success.

Justice Stone, in the present proceeding, concurred with the orders made by Justice Emmett. As a result, he dismissed the application for an extension of time and for leave to appeal.

Collins and Military Rehabilitation and Compensation Commission [2008] AATA 1110 (12 December 2008) Sydney

The Applicant sought compensation for medical expenses in connection with an injury to his left shoulder he suffered in 1984 in the course of his employment. The Military Compensation and Rehabilitation Service (‘MCRS’) in January 1999 accepted liability for ‘bruise left shoulder and haematoma left shoulder’ but further determining that, as there was ‘no evidence of any further medical treatment’, he was no longer suffering from an injury and it was not liable to pay compensation. The matter was reconsidered and affirmed in July 1999. The Applicant lodged an application for a review of this decision with the Tribunal in July 2008 and sought an extension of time in which to file his application for review.

The Tribunal noted that section 29 of the Administrative Appeals Tribunal Act 1975 gave it power to extend the time within which a person can make application for review to the Tribunal, and that subsection (7) provided that the Tribunal may extend the time for the making of an application ‘if satisfied that it is reasonable in all the circumstances to do so’.

Given the general principles enunciated in cases such as Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, in relation to what ‘reasonable in all the circumstances’ means, the Tribunal noted that the extension of time sought was considerable, however the explanation for the delay was understandable when taking into account that no medical expenses arose between the time of the reconsideration request in 1999 and the symptoms that arose in 2006. In addition, the Applicant provided an acceptable explanation for the delay and why he overlooked any pursuit of reconsideration after his initial request, namely, that he was overwhelmed by other events including his psychiatric problems.

The Tribunal also gave regard to considerations of prejudice and fairness between the parties and whether there was merit in the substantive application. The Tribunal noted there were ongoing claims between the Applicant and the MCRS since his discharge in December 1998, and that similar issues would need to be explored for his separate permanent impairment claim.

Given the above findings, the Tribunal granted an extension of time until 10 July 2008 for the making of an application for review of the reconsideration decision made on 30 July 1999.

Lower and Comcare [2008] AATA 1124 (17 December 2008) Adelaide

The Applicant was partially successful on the substantive aspects of his claim before the Tribunal. The reviewable decision was set aside and a decision was substituted that he was entitled to a shift allowance for some of the period for which he was claiming a shift allowance. In the present proceedings, he sought an order for costs which was opposed by the Respondent.

The Respondent submitted that as they made an order to settle the matter in October 2007, which was more favourable than the ultimate decision of the Tribunal, they should not be required to pay the Applicant’s costs from the date of that offer. There was no response from the Applicant’s solicitor until early November 2007, which rejected the settlement offer. The matter proceeded to a hearing before the Tribunal for two days in January 2008, and its decision, which was handed down in May 2008, was considerably less favourable to the Applicant than the quantum he would have received had he accepted the Respondent’s offer of October 2007.

The Applicant argued that because the offer made by the Respondent was time limited and purported to be only open until 2 November 2007, it was not reasonable for the Tribunal to pay significant regard to that offer in determining the issue of costs.

The Tribunal pointed out that, had the offer been accepted on that day or at any point before further significant costs were incurred by the Respondent, then the matter would have settled on that basis. Further, in rejecting the Respondent’s offer, the Tribunal opined that the Applicant knew he was at risk of costs which he took to the litigation with him. The Respondent did not seriously pursue the issue of seeking further deduction from the Applicant’s costs to the date of the offer.

Notice Provisions & Time Limits

The Tribunal considered whether the Applicant put forward an explanation for the substantial delay in her making the application for reconsideration. Given that the Respondent would be prejudiced in the event an extension of time was granted, particularly since the relevant contemporaneous medical evidence was unavailable, and that the Applicant had given no indication to the Respondent in the years which followed the July 2005 determination that she did not accept it, the Tribunal was not satisfied that the Applicant put forward an explanation for the substantial delay in seeking reconsideration of the determination.

The Tribunal affirmed the decision under review.

Heneker and Comcare [2008] AATA 1088 (5 December 2008) Adelaide

The Applicant first lodged a claim for compensation for bilateral sensorineural hearing loss against the Respondent in November 2005 which he attributed to exposure to rivet gun noise in the course of his employment. The claim was rejected by the Respondent on the basis of lack of evidence and his failure to give notice of injury as soon as practicable. His claim was barred by virtue of section 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’) and this was affirmed upon reconsideration.

The parties in the present proceedings asked the Tribunal to review the Respondent’s decision with respect to the threshold issue of whether the Applicant’s claim was barred by statute because of his failure to give notice of his injury within a certain amount of time and lodge his claim within the prescribed time.

The Applicant’s ailment was categorised as an ‘injury’ on the basis that ‘a series of discrete episodes, ie repetitive noises, finally led to irreversible damage’: Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242. Consequently, it fell to be considered under the Commonwealth Employees’ Compensation Act 1930 (‘the 1930 Act’). The Tribunal, therefore, had to consider the provisions contained in section 16(1)(i) and (ii) of the 1930 Act and address whether the Respondent was prejudiced by the ‘want, defect or inaccuracy’ in the notice, whether the ‘want, defect or inaccuracy’ in the notice was occasioned by mistake, absence from Australia or other reasonable cause, and whether the failure to make a claim within the period specified was occasioned by mistake, absence from Australia or other reasonable cause.

Implicit in the Applicant’s evidence was the suggestion that he had left his employment before he realised that he may have had a hearing loss associated with that period of employment. Counsel for the Applicant submitted that the Applicant was mistaken with respect to his right to bring a claim once he had left his employment and further, it was not until 2004 when the full extent of his hearing loss became evident to him that he considered it was time to make a claim. The Respondent argued that the prejudice to them in responding to this claim was so great that the claim should not be allowed to proceed.

In its findings, the Tribunal found that the delay in giving notice of injury and the delay in lodging the claim prejudiced both parties’ prospects of dealing reasonably with this claim. However, the Tribunal found that the Applicant did not become aware of the significance and permanence of his hearing loss until well after leaving his employment and that, combined with his belief that he could do nothing about bringing his claim once had had left his employment, presented a reasonable excuse in the circumstances.

The Tribunal was satisfied that the Applicant could proceed to have the merits of his claim considered under the relevant legislation.

Weekes and Australian Postal Corporation [2008] AATA 1155 (23 December 2008) Sydney

The Applicant made a claim for compensation in 2007 for an injury/aggravation she sustained in the course of her employment in 2003, for which liability was not accepted by the Respondent in a determination made in September 2007. This was affirmed in a reviewable decision made in December 2007 on the basis of section 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’), and that the Applicant had submitted insufficient medical evidence to establish that she suffered from any work related condition in respect of her hands, fingers and wrists.

In relation to section 53 of the 1988 Act, the Tribunal had to determine whether the notification of the injury was made by the Applicant. The Tribunal noted that the Applicant’s claim for compensation made in 2007 for her injury which occurred in 2003, and for which she sought medical assistance in 2004, was out of time because she did not notify any injury in writing as soon as practicable after she became aware of it. In further consideration of section 53(3) of the 1988 Act, the Tribunal was satisfied that there was no suggestion that death or absence from Australia were reasons for the non-notification. The Tribunal did not accept the Applicant’s argument that she did not know about making compensation claims, as she had previously made one in 2000. In their findings, the Tribunal found that prejudice would be caused to the Respondent if the claim were deemed to have been made. It was not satisfied that the Applicant had made a deemed claim pursuant to section 53(3) of the 1988 Act as it could not find a reasonable cause for her delay in making the claim.

Recovery of Compensation

Incapacity 

The Tribunal affirmed this part of the decision under review.

Fam and Australian Postal Corporation [2008] AATA 1069 (1 December 2008) Perth

The Applicant’s proceedings concerned three separate claims for compensation, namely, an injury to his lower back, a ‘disc protrusion’ injury to his lower back, and ‘depression due to back injury and wrist injury’. The first two applications concerned the Respondent’s determinations that it was not liable to pay compensation to the Applicant for incapacity in respect of those injuries. The third application concerned a finding about liability, however, the Tribunal also made findings with respect to incapacity.

In relation to the first two applications, the Tribunal found, on the basis of evidence before it, that the Applicant continued to experience lower back pain as a result of his lower back injuries, and that those injuries continued to result in ‘incapacity for work’. The critical matter for the Tribunal was the amount the Applicant had and was ‘able to earn in suitable employment’ for the purpose of calculating the amount of compensation payable to him in accordance with section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the

1988 Act’). The Tribunal, having considered the specified work duties of the employment offered by the Respondent to the Applicant in July 2005, was satisfied that that employment had at all material times constituted ‘suitable employment’ for the Applicant. The Applicant received an offer of suitable employment and he failed to accept that offer. The Tribunal was not satisfied that the Applicant had any good reason not to accept that offer and decided that his failure to accept was not reasonable in all the circumstances. For the purposes of section 19 of the 1988 Act, the Tribunal found that the amount per week the Applicant had and was ‘able to earn in suitable employment’ was the amount per week he would have earned if he were engaged in employment that was offered to him by the Respondent in July 2005.

With respect to the mental ailment, given the medical evidence before it, and that the Applicant conceded that his mental injury had not resulted in incapacity for work for the purposes of the 1988 Act, the Tribunal found that the Respondent was not liable to pay the Applicant compensation for incapacity pursuant to section 19 of the 1988 Act in respect of his mental injury.

Kanapathippillai and Australian Postal Corporation [2008] AATA 1159 (23 December 2008) Melbourne

Given its findings with respect to the Respondent’s liability for the Applicant’s injuries that arose in the course of her employment, the Tribunal set aside this part of the decision under review and in substitution decided that the Applicant was entitled to compensation for incapacity payments in accordance with section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The issue for the Tribunal in the present proceeding was whether the Applicant was entitled to compensation for incapacity with respect to low thoracic muscular strain sustained in 1973, 1974 and 1975, pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). At the outset, the Tribunal found that the 1973 incident, which affected the thoracic region of the Applicant’s back, had no bearing on his later lumbar spine problems.

Given the medical evidence before it, the Tribunal preferred the ‘measured and realistic’ opinions of a neurosurgeon and an orthopaedic surgeon as they drew on the Applicant’s history of a fairly swift return to work with full duties after each incident, the absence of radiological evidence of disc injury from the incidents, and the unlikelihood of disc damage in the absence of a significant structural injury. On the basis that the effects of the injuries in 1974 and 1975 were time limited, the Tribunal found they were resolved and that the Applicant did not continue to suffer the effects of the injuries.

Permanent Impairment

In relation to the myalgia injury, the Tribunal was satisfied that the Applicant suffered an impairment which was permanent, given the medical evidence before it. The Tribunal found that the Applicant suffered a 5% whole person impairment in respect of this injury, hence compensation was not payable pursuant to section 24(7) of the 1988 Act, as it fell below the 10% permanent impairment threshold.

On the evidence before it, the Tribunal was satisfied that the Applicant’s headaches continued for a period of six years since the accident and were continuing. It was not satisfied that there was a reasonable likelihood that the condition would improve in the foreseeable future, hence permanent impairment could be established. The Tribunal found that the attacks which the Applicant was experiencing caused minor interference with activities of daily living, hence equated to a 10% whole person impairment under the 1988 Act.

Given that the Applicant made a claim for two separate injuries, the Tribunal held that the impairment for each injury would be separately assessed and would not be combined. Under section 24 of the Act, permanent impairment is assessed as arising from an injury rather than a combination of one or more injuries. Only when an injury results in more than one impairment, are the values combined using the ‘Combined Values Table’ in the Comare Guide.

The Tribunal affirmed the part of the decision under review which referred to the myalgia injuries; however, it set aside the part of the decision under review relating to the headaches injury and substituted a decision that the Respondent was liable to pay the Applicant compensation pursuant to section 24 of the 1988 Act.

Newton-Edwards and Comcare [2008] AATA 1102 (10 December 2008) Canberra

The Applicant was injured in 2003 in the course of her employment and suffered bilateral tunnel syndrome as a result. The Respondent accepted liability to compensate the Applicant for this injury. The Applicant claimed that the injury resulted in three impairments all of which were permanent, including pain and paraesthesia in both arms and hands, depression caused by the pain, and headaches caused by the effects of the injury. The Respondent accepted that the Applicant suffered from the first two, however, did not accept that the injury caused her to suffer headaches. The Respondent denied that the injury resulted in any permanent impairment and therefore denied liability to compensate her under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’).

The issues for the Tribunal included a determination of the types of impairments (if any) resulted from the injury, whether all or any of the impairments were permanent, and the degree of any impairment found to be permanent. On the basis of the factual and medical evidence before it, the Tribunal was satisfied that the symptoms experienced by the Applicant in her hands and forearms, her headaches and her depression were all consequences of the bilateral carpal tunnel syndrome. The Tribunal concluded that whilst each of the impairments continued since 2004 and the passage of this length of time suggested that the impairments were permanent, factors such as the infrequent occasions on which the Applicant consulted her general practitioners, her failure to take the medication prescribed and suggested, her refusal of treatment, and the reasonable likelihood that there would be an improvement in the Applicant’s condition in the immediate future, led to the conclusion that none of the impairments were permanent and were unlikely to continue indefinitely. In determining whether an impairment was permanent, the question of whether the Applicant’s refusal to undergo treatment was reasonable, was of minor importance.

Rehabilitation

The issue for the Tribunal was whether the Applicant had a reasonable excuse for refusing or failing to undertake the 2006 RTWP, given her non-attendance at work in June 2006, and her discontinuation of the RTWP after he last attendance at work in July 2006. Given the evidence before it, the Tribunal was satisfied that the RTWP was a valid plan. It was satisfied from the medical evidence and the Applicant’s evidence, that her absence from work in June 2006 was premeditated, and did do not accept that there was a reasonable excuse pursuant to the legislation for her non attendance on that day. However, it also accepted that her medical condition continued to deteriorate during the currency of the RTWP, and that she was medically unfit to work when she worked on her last day in July 2006.

The Tribunal varied the reviewable decision to suspend the Applicant’s rights under section 37(7) of the 1988 Act, and in substitution, found that the Applicant had a reasonable excuse not to continue to undertake the RTWP after July 2006.

Mirabello and Comcare [2008] AATA 1111 (12 December 2008) Sydney

The Applicant lodged a claim for compensation in November 2004, and in December 2004 the Respondent accepted liability for ‘noise effects on inner ear (left)’ and the Applicant was given other duties. A return to work plan, which underwent various amendments, was subsequently prepared and the Applicant was required to undertake pre-injury duties from June 2005 ‘with the provision that he receives no further acoustic injury’. After a request for reconsideration of the return to work plan by the Applicant and further assessment by specialist medical practitioners, another return to work plan was developed and intended to take effect from March 2006. The Applicant again requested a reconsideration of the plan and, after considering the Applicant’s explanation that he had been given no guarantee that a soundshield would eliminate the possibility of acoustic shock, his employer issued a determination that the Applicant had failed to provide a reasonable excuse for not complying with the rehabilitation program. In July 2006, the Respondent affirmed the determination to implement the return to rehabilitation program and the determination in relation to the Applicant’s failure to comply with it.

Firstly, the Tribunal was satisfied that subsection 37(3)(f) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act) was complied with, that is, the employer had regard to the Applicant’s attitude to the plan, given the return to work plan was in existence and was discussed with the Applicant and offered to him for signature at a meeting in March 2006. There was ample evidence before the Tribunal to suggest that the Applicant’s attitude was considered, in spite of his assertions to the contrary.

Secondly, given the evidence before it, the Tribunal did not consider that the Applicant’s excuse for not undertaking the rehabilitation program was not reasonable. Whilst the Applicant was anxious about experiencing a further acoustic incident, the risk of that was found to be low, given the use of the soundshield. The Tribunal accepted the medical opinion of an ear, nose and throat specialist that even if the Applicant did experience a further acoustic incident, he would suffer no physical injury. The Tribunal also found that the return to work plan included careful steps to assist the Applicant to deal with his anxiety. Having reached this conclusion, although it was unnecessary for the Tribunal to consider the reasonableness of the rehabilitation program in question, the Tribunal noted that it was an appropriate and reasonable rehabilitation program.

Aids and Appliances

Household Assistance

Medical Expenses