Berry and Comcare

[2006] AATA 352

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 352

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos.   S2004/227, S2004/283

GENERAL ADMINISTRATIVE DIVISION        )  and S2004/288

Re JOHN REGINALD BERRY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date12 April 2006

PlaceAdelaide

Decision

1.      The tribunal sets aside the first reviewable decision in respect of the applicant’s claim for hiatus hernia, oesophageal reflux with oesophagitis and duodenitis (being the subject of matter no. S2004/227 in this tribunal), and in place of that decision decides that the applicant’s employment did not contribute to the contraction of those conditions, and that in the period from 6 August 2003 to the date of this decision, the applicant’s employment was not contributing to the aggravation of those conditions, and that as at the date of this decision compensation is not payable to the applicant in consequence of any such contraction or aggravation.

2.      The tribunal sets aside the second reviewable decision in respect of the applicant’s claim for non-ulcer dyspepsia and irritable bowel syndrome (being the subject of matter no. S2004/283 in this tribunal), and in place of that decision decides that Comcare is liable for compensation in respect of those conditions, and remits that matter to Comcare for assessment of his entitlement to compensation (if any) in accordance with these reasons.

3.      The tribunal affirms the third reviewable decision (being the subject of matter no. S2004/288 in this tribunal) in respect of the applicant’s claim for:

(a)       an assessment of permanent impairment for the conditions of hiatus hernia, oesophageal reflux, oesophagitis and duodenitis; and

(b)       the applicant’s claim for compensation in respect of headaches.

4.        The tribunal orders that the respondent pay the costs of the proceedings in matter no. S2004/283 in this tribunal.

5.        The tribunal reserves liberty to apply within 21 days in relation to the costs of the proceedings in matter no. S2004/283 in this tribunal.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

COMPENSATION  – Commonwealth employee – Australian Federal Police officer – review of decision that employment had ceased to aggravate hiatus hernia, gastro-oesophageal reflux, oesophagitis and duodenitis – decision varied so as not to be a “cease liability” decision – decision that employment did not aggravate non-ulcer dyspepsia and irritable bowel syndrome set aside – enhanced susceptibility to recurrences of those conditions – decision in relation to claim for permanent impairment  affirmed – decision that employment did not aggravate headaches affirmed.

PRACTICE AND PROCEDURE – jurisdiction – reviewable decision that employment was contributing factor to aggravation of applicant’s conditions – applicant’s claim for compensation embraced claim both for contraction and aggravation of conditions – held that tribunal has jurisdiction to determine whether employment was a contributing factor to contraction, as well as aggravation, of conditions.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 67(9) and 124

Compensation (Commonwealth Employees) Act 1971 (Cth), ss 5 and 29

Benjamin v Repatriation Commission (2001) 70 ALD 622

Bowman v Comcare [2005] FCA 88

Collector of Customs (NSW)…