Flinn and Comcare

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 760

ADMINISTRATIVE APPEALS TRIBUNAL      ) No 2008/2335, 2008/2335,

) 2009/6005, 2009/3735,  

GENERAL ADMINISTRATIVE DIVISION		) 2009/3734, 2008/2337
Re		Michael Flinn

Applicant

And Comcare

Respondent

DECISION

Tribunal Senior Member Jill Toohey
Dr Ion Alexander, Member

Date5 October 2010

PlaceSydney

Decision The decision under review is affirmed.

...................[sgd]...........................

Senior Member

CATCHWORDS – COMPENSATION – meat inspector – osteoarthritis – whether effects of accepted injury to right elbow had ceased – osteoarthritis in right elbow and hand – whether employment contributed in a material degree to condition – DVD evidence – a range of factors contributed to the condition – Tribunal not satisfied that employment contributed in a material degree – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19, 24, 27, 28

Comcare v Canute (2005) 148 FCR 232; (2005) 89 ALD 258

Comcare v Sahu-Khan (2007) 156 FCR 536; (2007) 44 AAR 523; [2007] FCA 15    

REASONS FOR DECISION

5 October 2010	Senior Member Jill Toohey Dr Alexander, Member
Background

1.      Michael Flinn has worked as a meat inspector for the Australian Quarantine and Inspection Service (AQIS) since 1995.  He has made the following claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act):

(i)under sections 16 and 19 for an injury to his right elbow and forearm; and

(ii)under sections 24 and s 27 for permanent impairment of his right hand.

2.      On 5 January 2005, Comcare accepted liability under s 14 of the Act for an injury to Mr Flinn’s right elbow and forearm.  However, it says, the effects of any accepted injury ceased on 11 February 2008. 

3.      In response to the claim for compensation for permanent impairment of his right hand, Comcare disputes that Mr Flinn has an injury or disease within the meaning of the Act.  It does not dispute that he has osteoarthritis in the right hand but it denies that his work contributed materially to that condition.  Further, that in any event it is not liable to compensate Mr Flinn because the degree of any impairment is less than 10%. 

4.      The respondent has not made a determination denying liability under s 14 of the Act for an injury to Mr Flinn’s right hand but agrees that such determination is implicit in its denial of liability under ss 24 and 27 and the Tribunal has jurisdiction to determine s 14 liability.

5.      When these proceedings commenced, Mr Flinn also sought compensation for permanent impairment of his right elbow and arm, and for injuries to his cervical spine and left elbow.  He has abandoned these claims and the respondent’s decisions concerning them are therefore affirmed.

Legislation

6.      Section 14 of the Act provides that an employer is liable to pay compensation in respect of an injury suffered by an employee if it results in death, incapacity or impairment.

7.      Mr Flinn’s claims were made before amendments to the Act on 13 April 2007.…