Barry and NDC Limited

[2004] AATA 1384

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1384

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/559

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DOONE BARRY

Applicant

And NDC LIMITED

Respondent

DECISION

Tribunal Dr K S Levy, Member

Date23 December 2004   

PlaceBrisbane

Decision The decision under review is affirmed.

..................[Sgd].......................

K S Levy
  Member

CATCHWORDS

COMPENSATION – Claims – Application to review decision to reject claim for compensation on the basis of incapacity – Whether applicant entitled to incapacity payments in respect of neck sprain and lumbar sprain – Degree of impairment less than 10% - Decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 ss 4,6,14, 16, 19, 24

Commonwealth of Australia v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Commission (1998) 27 AAR 40
Comcare Australia v Rowe [2002] FCA 1034
Arnotts Snack Product Pty Ltd v Yacob (1985) 155 CLR 171
Re Prica and Comcare (1996) 44 ALD 46
Re Sabioni and Comcare (1999) 30 AAR 150
The Commonwealth v Smith (1989) 18 ALD 224

REASONS FOR DECISION

23 December 2004   Dr K S Levy, Member         

Introduction

1.      In these proceedings the applicant, Doone Barry, seeks review of a decision dated 22 May 2003 of QWL Corporation Pty Ltd, as independent agent for Network Design and Construction Limited (“NDC”), an organisation related to Telstra Corporation Limited.

2. The decision under review affirmed a decision of 28 October 2002 of QWL Corporation Pty Ltd to reject a claim for compensation on the basis of incapacity under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) from 1 January 2002.

3. On 13 June 2003, QWL Corporation Pty Ltd on behalf of NDC, wrote to the applicant advising of its determination that with effect from 12 June 2003, there was no further liability under the Act with respect to the applicant’s claim for compensation based on the available medical evidence.

4.      On 3 July 2003, the applicant lodged an application for review with the Administrative Appeals Tribunal.

5. On 17 July 2003, GIO (a Suncorp company) responded to Mr Barry as GIO had taken over the services under the Act from the respondent on or about 27 June 2003.

6.      At the hearing on 17 November 2004 and on 19 November 2004, Mr Barry was self-represented.  NDC Limited was represented by Mr C Clark of Counsel, instructed by Sparke Helmore Lawyers.

Background

7.      Mr Doone Barry is a 43 year old man who was previously employed as a communications rigger until 1 March 2002.  He had been so employed for approximately 5 years.  His duties involved climbing very high towers and carrying heavy safety and other gear in the process.  Specifically, while climbing up and down towers, he also had to run cable, install microwave dishes and undertake maintenance work.

8.      On 21 October 2001, he was driving a four wheel drive vehicle when it hit a large pothole in the road.  He claims that the suspension seat in his vehicle was…