BALACKI And COMCARE

Case [2013] AATA 768


[2013] AATA 768

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL      )          
  )          2012/3289
GENERAL ADMINISTRATIVE DIVISION       )          

ReTANIA BALACKI

Applicant

AndCOMCARE

Respondent

DECISION

Tribunal:  Deputy President S A Forgie
Date:  28 October 2013
Place:  Melbourne

Decision:The Tribunal affirms the decision of a delegate of the respondent dated 1 June 2012 affirming a determination dated 27 January 2012 disallowing Mrs Balacki’s claim for subacromial bursitis (shoulder) (right), chronic pain syndrome (arm) (right) and tenosynovitis (bicep) (right) under s 14 of the Safety, Rehabilitation and Compensation Act 1988.

_(sgd) S A Forgie_

Deputy President

CATCHWORDS – COMPENSATION – disease – chronic pain syndrome - pain suffered during work tasks – pain suffered outside of work tasks – work tasks do not aggravate or accelerate underlying condition – pain is response of underlying condition to tasks or activities performed - decision affirmed.

WORDS AND PHRASES – “to a significant degree”.

Acts Interpretation Act 1901, s 15AB

Administrative Appeals Tribunal Act 1975, s 39

Compensation (Commonwealth Government Employees) Act 1971

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, ss 2 and item 2, 3, Sch 1 and item 11

Workers’ Compensation Act 1951 (ACT), s 9

Workers Compensation Act 1987 (NSW), s 4

Commonwealth Employees’ Rehabilitation and Compensation Bill 1988

Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006

Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533; 87 ALR 385
Australian Postal Corporation v Lucas [1991] FCA 612; (1991) 33 FCR 101; 14 AAR 487; 25 ALD 266
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535; 91 ALD 552; 229 ALR 445; 80 ALJR 1578
Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399; 10 AAR 191; 17 ALD 321

Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232

Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495

Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523
Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369
Darling Island Stevedoring & Lighterage Co Limited v Hankinson [1967] HCA 10; (1967) 117 CLR 19

Dunstan v Comcare [2011] FCAFC 108; (2011) 125 ALD 362

Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34; (1964) 110 CLR 626

Holt v Comcare [2003] FCAFC 221; (2003) 130 FCR 576
Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547
Kennedy Cleaning v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626
Martin v Australian Postal Corporation [1999] FCA 655; (1999) 29 AAR 420
Re Cook and Comcare [2003] AATA 16
Re Crouch and Comcare [2013] AATA 608
Re Meaney and Comcare [2012] AATA 352
Re Musumeci and Department of Health (NT) (1990) 19 ALD 797
Suters v Australian Postal Corporation…

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AGLC
BALACKI And COMCARE [2013] AATA 768
Case
[2013] AATA 768
Decision Date

CaseChat Overview and Summary

BALACKI And COMCARE involved a dispute between Mrs Balacki and COMCARE regarding a claim for compensation for certain medical conditions. The case was heard in the Administrative Appeals Tribunal, which was tasked with determining whether Mrs Balacki was entitled to compensation for subacromial bursitis, chronic pain syndrome, and tenosynovitis. The dispute hinged on whether the work tasks performed by Mrs Balacki had a significant impact on her medical conditions.

The central legal issue was whether the work tasks undertaken by Mrs Balacki had a significant impact on her medical conditions, thereby making her eligible for compensation. The Tribunal had to assess whether the pain experienced during work tasks was a direct response of the underlying condition to the tasks performed, or if the pain was unrelated to her employment. The Tribunal also needed to consider whether the work tasks aggravated or accelerated the underlying condition.

In its decision, the Tribunal concluded that Mrs Balacki's work tasks did not significantly aggravate or accelerate her underlying condition. The pain experienced during work tasks was a response of her underlying condition to the tasks performed. Given these findings, the Tribunal affirmed the decision of the delegate of COMCARE that disallowed Mrs Balacki's claim for compensation. The Tribunal held that the pain suffered outside of work tasks was not significantly related to her employment, and therefore, she was not entitled to compensation for her medical conditions.

The Tribunal's decision was upheld, and the claim for compensation was disallowed. This outcome means that Mrs Balacki is not entitled to compensation for the medical conditions in question under the relevant legislation.

Orders

Orders of the court

The Tribunal affirms the decision of a delegate of the respondent dated 1 June 2012 affirming a determination dated 27 January 2012 disallowing Mrs Balacki’s claim for subacromial bursitis (shoulder) (right), chronic pain syndrome (arm) (right) and tenosynovitis (bicep) (right) under s 14 of the Safety, Rehabilitation and Compensation Act 1988.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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