[2013] AATA 302
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1984
Re
Edward Scerri
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Dr B. Hughson, MemberDate 14 May 2013 Place Canberra The decision under review is affirmed.
.......................[sgd].................................................
Mr S. Webb, Member
COMPENSATION – neck injury claim – claim not barred due to lack of notice – migrainous vertigo arising from defence service – not established that claimed neck injury is related to defence service – fall in the course of employment on a return to work program – liability accepted for a left shoulder injury – subsequent onset of neck symptoms – not established that the neck symptoms are causally attributable to the fall – cervical spondylosis – not established that cervical spondylosis was caused or aggravated by the fall – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14, 53, 156
Frosch v Comcare [2004] FCA 1642
Joye v Beach Petroleum NL & Anor [1996] FCA 1552
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
Mr S. Webb, Member
Dr B. Hughson, Member14 May 2013
Edward Scerri served in the Royal Australian Air Force and worked on the F111 aircraft Deseal Reseal Program. Subsequently, he was employed by the Department of Defence (Defence) as an auditor. He has successfully claimed compensation in respect of a number of injuries, including migrainous vertigo. He has a history of falls and related injuries. His present claim relates to an alleged neck injury in the course of his employment by Defence. Comcare rejected the claim by primary determination and on reconsideration.
The brief background is that in 2006, Mr Scerri underwent hip replacement surgery following a fall in compensable circumstances. In the course of his recovery he returned to work on a graduated basis under a rehabilitation plan. He was permitted to work from his home for two days each week. 27 November 2006 was one such day. On that day, during a short break from his work, he ventured to his rear porch and descended some steps to his rear garden. On his return, he fell while ascending the steps, falling backwards and injuring his left shoulder. He informed his rehabilitation case manager, who called an ambulance. Mr Scerri did not require hospitalisation. He obtained medical treatment the same day from his treating general practitioner, Dr Gow, with whom he had a pre-existing appointment. Subsequently, he obtained physiotherapy treatment from Angela Fearon, who says that she provided “some treatment to [his] neck” when treating his left shoulder on 4, 11, 16 and 18 January and 6 March 2007[1]. We were informed that these physiotherapy treatments were paid for by the Commonwealth under arrangements determined following the Study of Health Outcomes for Aircraft Maintenance Personnel in respect of personnel involved in the F111 Deseal Reseal program.
[1]
Continue reading Edward Scerri and Comcare
Sign in free to access the full text
- AGLC
- Edward Scerri and Comcare [2013] AATA 302
- Case
- [2013] AATA 302
- Decision Date
CaseChat Overview and Summary
In addressing the issues, the court examined the evidence presented and concluded that there was no clear evidence to establish that Mr Scerri's neck pain or cervical spondylosis were caused or significantly contributed to by the fall. The court held that unless the symptoms could be attributed to a new cause in the context of employment, such as an aggravation or worsening of symptoms in compensable circumstances, the symptoms are considered part of the existing condition. The balance of evidence did not support that the fall led to a separate injury or significantly contributed to Mr Scerri's cervical spondylosis.
Consequently, the court found that the decision under review, which likely involved a denial of compensation claims related to the alleged neck injury and cervical spondylosis, must be affirmed. The court was reasonably satisfied that the fall did not cause or significantly contribute to the neck pain or cervical spondylosis Mr Scerri experienced.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.