Baxter and Comcare

[2003] AATA 1147

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1147

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1569,   N2002/816,   N2003/62

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PAMELA BAXTER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date14 November 2003

PlaceSydney

Decision The three decisions under review are affirmed.

[Sgd] Dr J D Campbell
  Member

CATCHWORDS

WORKERS COMPENSATION - pre-existing degenerative spondylosis of lumbar and cervical spine - two work-related injuries to cervical and lumbar spine - settlement of claim relating to second injury - compensation claim as regards first injury - liability - issue of compensation not payable where damages recovered

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 sections 14, 16, 19, 24, 27.

CASE LAW

Telstra Corporation Limited v Barrow (1994) 35 ALD 461

Slattery v Comcare (1996) 70 FCR 131

McIntyre v Comcare (1998) 50 ALD 416

REASONS FOR DECISION

14 November 2003   Dr J D Campbell, Member                 

1.      In this matter, Mrs Pamela Baxter ("the Applicant") seeks a review of the following reviewable decisions:

(a)   In application N2001/1569, the Applicant seeks a review of the decision made by Comcare ("the Respondent") dated 25 September 2001, which affirmed the earlier determination dated 9 August 2001, which ceased liability by the Respondent to pay compensation to the Applicant in respect of "probable mild cervical T1-lumbar soft tissue injury” on and from 10 May 2001; and

(b)  In application N2002/816, the Applicant seeks a review of the decision by the Respondent dated 14 May 2002 which affirmed an earlier determination by the Respondent dated 5 April 2001 to disallow the Applicant's claim for permanent impairment and non-economic loss; and

(c)  in application N2003/62, the Applicant seeks a review of the decision by the Respondent dated 9 December 2002 which affirmed the earlier determination by the Respondent dated 28 August 2002 to disallow the Applicant's claim for medical treatment expenses and incapacity payments for "acute emotional distress and probable mild cervical and lumbar soft tissue injury".

2.      A hearing was held before the Tribunal on 17 and 18 September 2003 at which the Applicant was represented by Mr Graham of Counsel. The Respondent was represented by Mr Kelly of Counsel. The Applicant presented oral evidence to the Tribunal.

3. Documents were lodged, for all three applications, by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”):

·     in application N2001/1569                  T1-214          pp1-383

·     in application N2002/816                    2T1-10          pp1-17

·     in application N2003/62   3T1-6   pp1-12

Written material tendered on behalf of the parties was received in evidence and marked accordingly namely:

Exhibit No	Description	Date
A1	Applicant's Statement of Facts and Contentions	29 October 2002
A2	Medical Reports of Dr D Dixon as per attached schedule
A3	Schedule of treatment, travel and household expenses for Mrs Baxter
R1	Respondent's Statement of Facts and Contentions	10 September 2003
R2	Medical report of Dr Bookallil	14 March 2002
R3	Medical report  of Dr Bookallil	10 May 2002
R4	Medical report of…