Findlay and Comcare - [2005] AATA 206

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 206
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/629; Q2001/1110;

GENERAL ADMINISTRATIVE DIVISION
) Q2003/765

Re SHERRILL MAREE FINDLAY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr SC Fisher, Member
Date11 March 2005
PlaceBrisbane

Decision
The Tribunal decides to:

1.     Affirm the decisions in appeal number Q2001/1110 and in Q2000/629 and in appeal number Q2003/765 (but only to the extent it relates to back and psychiatric conditions).

2.     Set aside the decision in appeal number Q2003/765 to the extent it relates to neck condition and remits the matter to the respondent for reconsideration to give effect to the findings of the Tribunal as set out in its reasons for decision that the applicant’s traumatic/degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis were initiated by the repetitive abnormal stresses placed on the applicant's cervical

spine in the course of her employment in the mid-1980s and that this condition has been ongoing and continuous since 31 March 1986.

...................[Sgd].........................
SC Fisher
  Member

CATCHWORDS
SOCIAL SECURITY – pensions benefits and entitlements – claim for cost of upgrade to personal computer under s39 of the Safety Rehabilitation and Compensation Act – whether respondent has liability to pay the cost of upgrade – no evidence the applicant has undertaken or completed a rehabilitation program or been assessed unable to undertake a program – respondent not liable for cost of upgrade - decision under review affirmed.
SOCIAL SECURITY – pensions benefits and entitlements – work related injury resulting in incapacity – application for respondent to accept liability for carpal tunnel syndrome – no evidence that applicant presently suffers from carpal tunnel syndrome – condition resolved – decision under review affirmed.
SOCIAL SECURITY – pensions benefits and entitlements – work related injury resulting in incapacity – application for respondent to accept liability for neck, back and psychiatric conditions – back and psychiatric conditions not shown to be attributable to applicant’s employment – neck condition initiated in the course of employment – decision so far as relates to back and psychiatric conditions affirmed – decision as related to neck condition set aside and substituted accordingly.
Safety, Rehabilitation and Compensation Act 1988 s4, 14, 16, 19, 24, 39
Secretary, Department of Social Security v Murphy Federal Court, 29 June 1998, 908/98; (1998) 52 ALD 268
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; (1981) 4 ALD 198
Robertson and Comcare [2002] AATA 1259
Comcare v Nichols [1999] FCA 209
Houston and Comcare [2005] AATA 99
Lees v Comcare (1999) 29 AAR 350; (1999) 56 ALD 84,
REASONS FOR DECISION

11 March 2005 Mr SC Fisher, Member

Introduction and background
1. Ms Sherrill Maree Findlay (the applicant) was employed at all material times by the enterprise now known as the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Findlay and Comcare

Details

AGLC: Findlay and Comcare [2005] AATA 206
Case: [2005] AATA 206
Decision Date: 11 March 2005

CaseChat Overview and Summary

The applicant sought a review of decisions made by the respondent in relation to several claims under the Safety, Rehabilitation and Compensation Act 1988. The claims involved the applicant seeking compensation for the cost of upgrading a personal computer, and for the respondent to accept liability for various work-related injuries including carpal tunnel syndrome, neck, back and psychiatric conditions. The disputes were heard and determined by the Administrative Appeals Tribunal.

The primary legal issues before the court were whether the respondent was liable to pay the cost of the computer upgrade, whether the applicant presently suffered from carpal tunnel syndrome, and whether the back, psychiatric and neck conditions were attributable to the applicant’s employment. The court was required to interpret the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 and apply them to the facts of the case.

The court found that there was no evidence the applicant had undertaken or completed a rehabilitation program or been assessed as unable to undertake one, and therefore the respondent was not liable for the cost of the computer upgrade. The court also found that there was no evidence the applicant presently suffered from carpal tunnel syndrome as the condition had resolved. Regarding the neck condition, the court found it was initiated in the course of employment and has been ongoing and continuous since 1986, but the back and psychiatric conditions were not shown to be attributable to the applicant’s employment. The court affirmed the decisions in relation to the back and psychiatric conditions, but set aside the decision relating to the neck condition and remitted the matter to the respondent for reconsideration.

The Tribunal affirmed the decisions in appeal number Q2001/1110, Q2000/629 and Q2003/765 to the extent it related to back and psychiatric conditions. The Tribunal set aside the decision in appeal number Q2003/765 as it related to the neck condition and remitted the matter to the respondent for reconsideration to give effect to the findings of the Tribunal.

Orders

Orders of the court

The Tribunal decides to:

1. Affirm the decisions in appeal number Q2001/1110 and in Q2000/629 and in appeal number Q2003/765 (but only to the extent it relates to back and psychiatric conditions).

2. Set aside the decision in appeal number Q2003/765 to the extent it relates to neck condition and remits the matter to the respondent for reconsideration to give effect to the findings of the Tribunal as set out in its reasons for decision that the applicant’s traumatic/degenerative changes at C4/5 and C5/6 spondylosis/osteoarthrosis were initiated by the repetitive abnormal stresses placed on the applicant's cervical

spine in the course of her employment in the mid-1980s and that this condition has been ongoing and continuous since 31 March 1986.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		) Q2003/765
Re		SHERRILL MAREE FINDLAY