BORG And COMCARE

[2007] AATA 78

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 78

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No        A2004/153

)  A2005/323
  )  A2005/380

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAYMOND BORG

Applicant

And   COMCARE

Respondent

DECISION

Tribunal	J.W. Constance, Senior Member
Dr M.D. Miller AO, Member

Date  28 February 2007

Place  Canberra

Decision

1)    In matter A2005/380 the decision of Comcare made 14 December 2005, which affirmed a decision denying liability to compensate Mr Borg for a thoracic spine condition, is affirmed.

2)    In matter A2005/323 the decision of Comcare made 7 October 2005 is set aside and the matter is remitted to Comcare for reconsideration in accordance with the following directions:

     I.    that between September 2001 and April 2002 Mr Borg suffered a compensable injury, namely an aggravation of degenerative changes in his cervical spine, which arose out of his employment with Totalcare;

II. that the injury has resulted in a permanent impairment in accordance with subsection 24(1) of the Safety, Rehabilitation and Compensation Act 1988;

   III.    that Comcare determine the degree of permanent impairment of Mr Borg resulting from the injury.

3)  The parties have liberty to apply within 14 days in relation to costs.  Should such an application not be made Comcare shall pay Mr Borg’s reasonable costs in application A2005/323.  

4)  In matter A2004/153 the application for review of decision made 30 April 2004 is dismissed.  The application for an order for the payment of costs is refused.

..............................................

J.W. Constance, Senior Member  

CATCHWORDS

COMPENSATION – Commonwealth Employees – Brachial plexus injury – Thoracic outlet syndrome – Whether arose in the course of employment – Aggravation of degenerative spine condition – Permanent impairment – Degree of impairment – Whether Tribunal has power to make costs order where proceedings rendered abortive pursuant to Safety, Rehabilitation and Compensation Act 1988 s 67(2).

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 24, 67

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

Casarotto v Australian Postal Commission (1989) 86 ALR 399; (1989) 17 ALD 321; (1989) 10 AAR 191

Comcare Australia v Amorbieta [1996] FCA 312

Martin v Australian Postal Corporation (1990) AAR 420; [1999] FCA 655

Re Greczanik and Australian Postal Corporation [1994] AATA 9520

Re West and Comcare [1992] AATA 7966

REASONS FOR DECISION

28 February 2007 J.W. Constance, Senior Member
Dr M.D. Miller AO, Member           

INTRODUCTION

1.      Since 1996 Mr Borg has been an employee of Totalcare in Canberra.  In 1997 he injured his shoulder at work. Comcare accepted liability to compensate him in respect of this injury.

2.      During the lawn-mowing season of 2001-2002 Mr Borg was employed driving a tractor mowing ovals and other large grassed areas. Whilst doing this work he experienced “pins and needles” in his left arm and hand and numbness in his left hand.  In 2005 a new diagnosis of the cause of Mr Borg’s arm and hand symptoms was made, that of thoracic outlet syndrome caused by the 1997 injury.

3.      In matter A2005/380…