Mewburn and Comcare  AATA 751 (26 August 2008) Canberra
In February 2005, the claimant suffered a severe episode of back pain which caused him to be hospitalised. In June of that year, he made a claim for compensation for a lumbar disc lesion which he said was caused by his employment, particularly by his duties involving driving buses with inappropriate seating and cleaning buses. Comcare denied liability to compensate the claimant for the injury claimed.
The tribunal noted that under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’), Comcare was liable to pay compensation to the claimant in respect of an injury suffered by him if the injury resulted in incapacity for work or impairment. The tribunal relied on the decision in Comcare v Sahu-Kahn  FCA 15, which found that the words “in a material degree” under the definition of “injury” in section 4 of the Act require a stronger causal relationship between the employment and the ailment than was previously thought to be the case.
The tribunal was satisfied on the evidence of all the medical practitioners that the condition suffered by the claimant in February 2005 was an aggravation of his spondylosis and/or the pain caused by it, however it was not satisfied on the balance of probabilities that any of the workplace incidents described by the claimant contributed in a material degree to the aggravation of the spondylosis and/or the pain suffered by reason of that ailment. The evidence provided by the claimant’s treating practitioner and occupational physician was not well supported and they could not say to what extent any factors contributed to the trauma to the claimant’s spine.
In relying on the opinion of a professor in this medical field, the tribunal was not satisfied that the claimant’s employment contributed in a material degree to his lumbar disc lesion or to the aggravation of the pain or underlying degenerative condition he suffered at the time of the onset of the severe pain he experienced in 2006. For the same reasons it was not satisfied that the surgical treatment the claimant received was treatment for an injury to which his employment had made a material contribution.
The tribunal affirmed the decision under review.
Failure to obtain a benefit
Reasonable disciplinary action
Section 6A: Unintentional Consequences
Procedure & Costs
Notice Provisions & Time Limits
Bain and Military Rehabilitation and Compensation Commission  AATA 730 (21 August 2008) Adelaide
The claimant 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 claimant’s injuries. In 1999, the claimant’s solicitors requested that the respondent Commission reconsider the determinations, however it refused to do so as the claimant failed to exercise his rights to appeal to a Court against the adverse decisions made in 1971 and 1975 in time.
The tribunal noted that the only issue before them was whether the claimant should be allowed an extension of time within which to request reconsideration of the determinations made in 1971 and 1975.
In making their determination, the tribunal noted that by virtue of section 124(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’) that Act applied to the request for reconsideration made by the claimant in 1999. Furthermore, by virtue of s 127(2) of the 1988 Act, the 1971 and 1975 determinations were taken to be determinations made by the relevant authority under the 1988 Act.
The tribunal noted that the discretion to allow an extension of time to request reconsideration of a determination provided in section 62(3)(b) of the 1988 Act is conferred in general terms and does not incorporate any criteria by reference to which the discretion should be exercised. Particularly, the cases of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Brown v Federal Commissioner of Taxation (1999) 42 ATR 118, Comcare v A’Hearn (1993) 45 FCR 441, and Jackamarra v Krakouer (1998) 195 CLR 516 were referred to, and the tribunal noted that the principles outlined in those cases were to be treated as guidelines and not rigid rules that would be determinative of the ultimate exercise of discretion to grant or refuse the extension of time sought.
The tribunal, in exercising their discretion, took into account that any prejudice to the Commission was to an extent due to fault on the part of its predecessor, or the employer. It noted that the Commission was not at fault, and its role is to merely manage claims for injuries relating to defence service that occurred prior to 1 July 2004. The tribunal found that the inadequacy of the investigation that went into the circumstances leading to the claimant’s injury and subsequent hospitalisation indicated fault on the part of the employer.
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 claimant 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 claimant to allow an extension of time for reconsideration of the determination made in 1971 because that claim was meritorious.
The tribunal will not offer a formal decision until the parties have had an opportunity to study its reasons and to make further submissions.
Dib and Comcare  AATA 739 (25 August 2008) Sydney
The claimant injured his neck and back when he was involved in a motor vehicle accident on his way home from work in June 2003. In August 2003, Comcare accepted liability to pay compensation for his injuries which included neck sprain, sprain of unspecified site of shoulder and upper arm (right), contusion of chest wall (left), and lumbar sprain, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’).
In October 2003, Comcare accepted liability to pay compensation in respect of the claimant’s nominated injuries for physiotherapy, consultations with his general practitioner and pharmaceuticals. Subsequently, in February 2004, Comcare varied their earlier determination by amending the accepted primary compensable condition from “neck sprain” to “aggravation of cervical spondylosis (left)” after reviewing the medical evidence provided by the claimant’s consultant orthopaedic surgeon.
In November 2006, the claimant lodged a claim for permanent impairment and this was denied by Comcare in December 2006 on the grounds that compensation for permanent impairment arises in respect of each injury sustained by an employee, with whole person impairments arising from each injury not being subject to combining using the Combined Values Table. Comcare later affirmed this determination in February 2007 contending that where there are separate injuries, albeit sustained in one incident, they are to be assessed separately in regard to their permanent impairment and cannot be combined. Comcare further noted that only when a single “injury”, as defined by the 1988 Act, results in multiple impairments, is it permitted to combine such impairment assessments.
The tribunal noted that the concept of “an injury” is a central and critical component in the structure of the 1988 Act. It was satisfied that the single incident of the motor vehicle trauma caused harm and sudden and identifiable physiological change to the nominated areas of the claimant’s body, which was consistent with the opinions of two doctors the claimant was seeing. The tribunal found that the claimant suffered both soft tissue injuries and an aggravation to each of the pre-existing conditions in his cervical and lumbar spines.
The tribunal acknowledged that each spinal injury resulted in a permanent impairment, with each permanent impairment assessed at 8 per cent whole person impairment. In accordance with section 24(7)(b) of the 1988 Act, which requires that a 10 per cent whole person threshold arising from each injury is necessary for compensation to be paid in relation to permanent impairment arising from each injury, the tribunal concluded that compensation for the impairment suffered by the claimant was not payable.
The tribunal affirmed the decision under review.
Aids and Appliances
Jackson and Telstra Corporation Limited  AATA 771 (29 August 2008) Brisbane
The tribunal noted section 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’) which states that “where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury…compensation of such amount as Comcare determines is appropriate to that medical treatment”.
On the basis that the tribunal concluded that the employer was not liable to pay the claimant compensation for the right shoulder condition, it affirmed the employer’s decision that the claimant was not entitled to reimbursement of costs associated with the treatment of his shoulder. The tribunal noted that the costs were not costs of medical treatment obtained in relation to an injury as that term is defined in the 1988 Act.
The tribunal affirmed the decision under review in relation to the claimant’s medical expenses.
Newbery and Comcare  AATA 752 (26 August 2008) Sydney
In 1980, the claimant first sought medical help for difficulties he was experiencing at work and was diagnosed as suffering from schizophrenia. He made a claim for workers compensation for schizophrenia in March 1985, which was refused in September 1986, but on review by the previous tappeared to have a clear understanding of the claimant’s situation and had the benefit of assessing him on several occasions. The tribunal set aside the decision under review.ribunal it was determined that the claimant’s employment had contributed to an aggravation or acceleration of his condition of schizophrenia and had contributed to his continuing incapacity.
The claimant was paid ongoing payments for incapacity and medical expenses until March 2006. In August 2006 the decision to stop his workers compensation benefits was affirmed on reconsideration because he did not provide further evidence to support his claim. In October 2006, the claimant filed an application for review with the tribunal.
The tribunal had to determine whether the claimant continued to be entitled to compensation for medical expenses and incapacity payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the ‘1988 Act’) for his compensable condition of “aggravation and acceleration of schizophrenia”.
The tribunal turned to the medical evidence provided by two consultant psychiatrists to determine if anything had changed about the claimant’s condition. The tribunal found one of the psychiatrist’s evidence unconvincing as he was clearly focused on causation, he provided a superficial assessment in terms of trying to evaluate circumstances that occurred thirty years ago, and he focused on the schizophrenia as a disease in general rather than direct his observations to the claimant’s situation in particular.
In making the finding that the claimant continued to be entitled to compensation for medical expenses and incapacity payments for his compensable condition, the tribunal relied upon evidence provided by the psychiatrist who gave plausible explanations.
If you would like more information, please contact a member of our National Commonwealth Compensation Team listed on the right hand side of the screen.
To view a print friendly version of this update please click on the PDF below.