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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CaseChat Overview and Summary
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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