Dimoski and Comcare

[2003] AATA 1265

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1265

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/151

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUZANA DIMOSKI

Applicant

And COMCARE

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date12 December 2003

PlaceCanberra

Decision The decision under review is affirmed.  The applicant qualifies for no costs associated with this application.

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Senior Member

CATCHWORDS

WORKERS' COMPENSATION – permanent impairment claim – injury in the form of aggravation of underlying cervical spine facet joint disease – any impairment does not result from an injury – tribunal can consider whether an injury exists where that not raised in reviewable decision

Safety, Rehabilitation and Compensation Act 1988 s 4(1) (“aggravation”, “ailment”, “disease”, “impairment”, “injury”, “permanent”), s 4 (8), s 7(6), s 14(1), s 24(1) and s 24(2)

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Comcare v Hill (1999) 56 ALD 487

Comcare v Miles (1995) 129 ALR 427

Comcare v Moon [2003] FCA 569

Re Frosch and Comcare [2003] AATA 1207

Power v Comcare (1998) 56 ALD 141

REASONS FOR DECISION

12 December 2003 Michael Sassella, Senior Member           

RESULT

The tribunal has found that Ms Dimoski was not suffering from a compensable injury when she lodged her claim for lump sum compensation for permanent impairment and that she does not now suffer from a compensable injury.  Suffering from such an injury is a precondition to payment of compensation in respect of permanent impairment.  Ms Dimoski’s appeal has therefore failed.

BACKGROUND

1.      Suzana Dimoski (“the applicant”) was working for the Commonwealth Department of Health and Aged Care when she successfully claimed workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act)[1] for injury affecting her upper back, shoulder and neck.  The date of injury was 9 April 1998.  On 11 July 2001 Ms Dimoski lodged a claim for lump sum compensation for a permanent impairment resulting from the compensable injury.  Comcare (“the respondent”) rejected the permanent impairment claim.  That rejection is now before the Administrative Appeals Tribunal (“the tribunal”).

[1] An employee must have suffered an injury, as defined in s 4(1) of the Act, if he or she is to receive any compensation under the Act. An injury is defined in s 4(1) as:

(a) a disease suffered by an employee; or

…

3. Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

4. The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

5. An aggravation may also be present where the conditions set out…