Demosthenous and Comcare

Case [2001] AATA 949

DECISION AND REASONS FOR DECISION [2001] AATA 949

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V00/480

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      EMMA DEMOSTHENOUS           
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Mrs Joan Dwyer, Senior Member, Assoc. Professor J Maynard, Member   

Date16 November 2001

PlaceMelbourne

Decision      1. The Tribunal sets aside the decision under review and in substitution varies the determination made 10 November 1999 (T18 p39) to provide: (i) that the description of Mrs Demosthenous' compensable condition be changed to persistent haematuria, pain lethargy and malaise; (ii) that from 10 November 1999 Mrs Demosthenous remains entitled to compensation under the Act in respect of persistent haematuria, pain lethargy and malaise. 2. The Tribunal orders that Mrs Demosthenous' costs of these proceedings be paid by the respondent.
  (Sgd)  Joan Dwyer
  Senior Member
COMPENSATION – compensable condition of haematuria following fall from a tram – whether condition has ceased to exists or has ceased to be compensable – issue as to "burden of proof" - consideration of voluminous medical records – finding that applicant does still have persistent haematuria – issue as to description of condition – lack of evidence as to cause of pain, lethargy and malaise, – decision under review set aside – original determination varied
PRACTICE AND PROCEDURE

  • Terms of Settlement – concern expressed about Terms requiring applicant to agree not to make further applications under the Act in respect of a specified condition "or any aggravation of the condition" and to agree not to apply to the Administrative Appeals Tribunal for review of any decision concerning incapacity arising from compensable injury

  • Agreement between parties that new determination be made varying description of compensable condition – that agreement never implemented – whether Tribunal should vary description of compensable condition

  • Inquisitorial Role of Tribunal – detailed analysis of medical evidence conducted by Tribunal, conclusive of a significant issue

  • Whether Tribunal should change description of accepted condition to description agreed by parties – consideration of evidence on the issue

Cases

Australian Postal Commission v Burgazoff (1989) 10 AAR 296 9

Australian Telecommunications Commission v Barker (1990) 12 AAR 490 9

Behan v Telecom (1990) 99 ALR 79 5

Bushell v Repatriation Commission (1992) 109 ALR 30 22

Casarotto v Australian Postal Commission (1989) 17 ALD 321 9

Comcare v Nichols (1999) FCA 209 11

Commonwealth of Australia and Commission For the Safety, Rehabilitation and Compensation of Commonwealth Employees v Borg, Federal Court, (1994) 20 AAR 299 8

O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744 10

of Telstra v Arden (1994) 20 AAR 285 8

Phillips v The Commonwealth (1964) 110 CLR 347 9

Re Beer and Australian Telecommunication Commission (1990) AAT 5974 20 June 1997         33

Re Beer and Telstra (1994) AAT 9838 11 November 1994  33

Re Jeremic and Comcare (1990) AAT 5975 20 June 1990  33

The Commonwealth v Muratore (1978) 141 CLR 296 9

REASONS FOR DECISION

16 November 2001  Mrs Joan Dwyer, Senior Member, Assoc. Professor J Maynard,…

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AGLC
Demosthenous and Comcare [2001] AATA 949
Case
[2001] AATA 949
Decision Date

CaseChat Overview and Summary

In the case of Demosthenous and Comcare, the applicant, Mrs Demosthenous, sought compensation for a condition she alleged was exacerbated by her employment. The dispute centred on whether her condition, described as work-related enhanced susceptibility of a pre-existing condition, specifically haematuria, was still compensable. The matter was heard by the Administrative Appeals Tribunal (AAT).

The legal issues that arose in this case revolved around the interpretation of the evidence and whether Mrs Demosthenous' condition had improved since her work hours were reduced. The Tribunal had to determine if her persistent haematuria, along with associated symptoms such as pain, lethargy, and malaise, were still compensable and whether there had been any significant improvement in her condition since the reduction of her working hours. The Tribunal also needed to decide whether Mrs Demosthenous should be restricted to working three days a week or if she could gradually return to full-time work.

The Tribunal reviewed the evidence and found that there had been no significant improvement in Mrs Demosthenous' condition since the reduction in her working hours. Despite working three days a week, she still required considerable time off work, indicating no substantial improvement. The Tribunal concluded that her condition remained compensable, and she was entitled to compensation for incapacity due to persistent haematuria and related symptoms. The Tribunal set aside the previous determination and varied the decision to reflect the current compensable condition and entitlement to compensation.

The Tribunal ordered that the description of Mrs Demosthenous' compensable condition be changed to persistent haematuria, pain, lethargy, and malaise. It also ruled that she remains entitled to compensation for this condition from 10 November 1999. The Tribunal suggested that any attempt to return to full-time work should be gradual.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The parties seem to have agreed in the Terms of Settlement that a preferred description would be "work-related enhanced susceptibility of a pre-existing condition, namely haematuria, which the applicant suffered before 30 October 1991". That is why the original determination of 10 November 1999 (T18) and the reviewable decision of 8 March 2000 (T20) both used that terminology. The Tribunal in reviewing those determinations does have power under s 43 of the AAT Act to vary a decision under review or to set aside a decision under review and make a new decision in substitution, if on considering all the evidence we consider that to be appropriate. The power to vary includes power to amend the description of a compensable condition if that is appropriate on the evidence.the evidence The evidence is that since the hearing in May 1995, Mrs Demosthenous has continued to work only three days a week. She was paid compensation in respect of her incapacity to work on the other two days until the primary determination of 10 November 1999 (T18), which ceased liability in respect of "work related enhanced susceptibility of a pre-existing condition, namely haematuria". The primary determination of 10 November 1999 (T18) stated that it was made on the basis of a report of Mr Harewood dated 25 May 1999 (T16) in which he wrote:. . .The condition that Ms Demosthenous suffers from is recurrent macroscopic haematuria associated with flank pain.No. 2. The cause of the haematuria has not as yet been elucidated. She recently had an Angiogram and a panendoscopy by Mr. David Westmore. The Angiogram on the left side was completely normal with no evidence of any arterio venous fistula. The remaining possibility therefore is that she may have a lesion on the surface of the renal pelvis or one of the calyces. This could be something like an angioma. This could only be diagnosed by a flexible urethroscopy.No. 3. I do not believe that the Claimant's current employment attributes [sic] to the aggravation or acceleration of this condition.No. 4. Any aggravation that she may have sustained would seem now to have resolved.No. 5. Current capacity for work is impaired by her haematuria and pain. When she gets the haematuria, she feels very unwell and is unable to work. She gets episodes of haematuria up to three times a month, and this may last for an hour or so up to three days.No. 6. The only restriction that would be reasonable would be a restriction on heavy physical activity.No. 7. What Ms Demosthenous needs is a flexible ureteroscopy and a laser of any lesion that was found. This is the only way to diagnose the only possible remaining diagnosis which is that of an angioma of the renal pelvis or calyx. This could be visualised with a flexible ureteroscope and if found, it could be treated with the Holmium laser to get rid of it. If this were the diagnosis, then there would be a reasonable chance of preventing the haematuria in future.No. 8. Without further treatment the haematuria is likely to be persistent and permanent.I would be more than happy to arrange to carry out the flexible ureteroscopy and Holmium laser treatment. Please advise me if you wish me to arrange this for Ms Demosthenous. I have talked about this to Ms. Demosthenous who is also considering the situation. (emphasis added)

Decision

Reasons for decision

We note that although the Tribunal, in May 1995, found that Mrs Demosthenous was capable of working only three days each week, on the basis of her evidence that full-time work had aggravated her haematuria, the evidence at this hearing did not show that there had been any improvement in the haematuria with the shorter working week. Nor did the evidence show that Mrs Demosthenous had maintained her three days of work each week. She seems, according to the summary of sick leave records which was tendered in evidence, and which the Tribunal has made exhibit A7, to still require a considerable time off work in spite of the reduction in her working hours. The evidence did not satisfy us that there has been any improvement in Mrs Demosthenous' condition or in her attendance since her hours were reduced pursuant to the Tribunal's decision of 12 May 1995. conclusion It appears to us that the appropriate decision now is that Mrs Demosthenous' conditions of persistent haematuria, and pain, lethargy and malaise, to which the haematuria contributes, remain compensable so that she is entitled to compensation for incapacity resulting from those conditions. We do not consider it is appropriate for the Tribunal to make any decision in advance as to any periods of incapacity. That is an issue to be decided by her regular doctor depending on her presentation to him. Thus we do not find that Mrs Demosthenous is restricted to working three days a week. We do suggest that any attempt to return to five days work a week should be gradual. The Tribunal will set aside the decision under review. In substitution the Tribunal will vary the determination made 10 November 1999 (T18 p39) to provide:(i)that the description of Mrs Demosthenous' compensable condition be changed to persistent haematuria, pain lethargy and malaise;(ii)that from 10 November 1999 Mrs Demosthenous remains entitled to compensation under the Act in respect of persistent haematuria, pain lethargy and malaise.

Ratio Decidendi

Legal Principle Established

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