Forrest and Comcare - [2004] AATA 1145

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1145
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/380

GENERAL ADMINISTRATIVE DIVISION )

Re EVA FORREST

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date3 November 2004
PlaceCanberra

Decision
The decision under review is set aside and in substitution thereof the Tribunal decides that the effects of Ms Forrest’s previously accepted compensable injury did not cease on 3 June 2003, she was then and is now incapacitated for work as a result of her previously accepted work-related injury and is entitled to payment of compensation for incapacity and medical treatment expenses pursuant to s.131 of the Safety, Rehabilitation and Compensation Act 1988.

The matter is remitted to Comcare to determine the amount of compensation that is payable to Ms Forrest in accordance with these reasons.

Comcare is to pay Ms Forrest’s reasonable costs in these proceedings as agreed or taxed.

..............................................
Mr S. Webb, Member

CATCHWORDS
COMPENSATION – incapacity and medical treatment expenses – repetitive strain injury - liability accepted for work related injury - tenosynovitis – difficulty of diagnosis - pain syndrome - retirement from employment on invalidity grounds – schizophrenia – possibility of somatization - effects of compensable condition not ceased - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 67, 124, 131
Compensation (Commonwealth Employees) Act 1971 ss 27, 29, 37, 45, 46
Power v Comcare (1998) 89 FCR 514
Lees v Comcare (1999) 29 AAR 350
Re Liu and Comcare [2004] AATA 617
Re Sadek and Commonwealth (1988) 14 ALD 769
Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797
Re Freak and Comcare (1997) AATA 12491
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Australian Postal Corporation v Nadge (1994) FCA 463 (21 June 1994; Lee J)
REASONS FOR DECISION

October 2004 Mr S. Webb, Member

1.      By this application Eva Forrest (previously Debovski, nee Urbaszek) is seeking relief from a primary determination by Comcare dated 3 June 2003 (T107) to cease payment of compensation for incapacity and medical treatment expenses in relation to a previously accepted injury. That primary determination was affirmed in a reviewable decision dated 29 August 2003 (T116).
2.      The matter came on for hearing in Canberra on 13 and 14 October 2004. Ms Forrest was represented by Mr S. Pilkington, counsel, and Comcare was represented by Ms A. McMahon, counsel. Ms Forrest gave oral evidence at the hearing as did her mother, Mrs E. Urbaszek, and Dr A. Brook, rheumatologist. Materials were tendered and labelled as exhibits at the hearing.
factual context
3.      Ms Forrest (date of birth: 15 February 1962) commenced employment by the Commonwealth Department of Defence on 27 July 1981. She was transferred to the Department of Territories and Local Government (“the Department”) in 1984, where she was employed as a Typist grade 1.
4.      Ms Forrest was married in 1984. The marriage broke down and her husband left in or about August 1985, when she was…

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 Forrest and Comcare

Details

AGLC: Forrest and Comcare [2004] AATA 1145
Case: [2004] AATA 1145
Decision Date: 3 November 2004

CaseChat Overview and Summary

Forrest and Comcare involved a claim for ongoing compensation by Ms Forrest, who had previously received compensation for a work-related repetitive strain injury. The dispute centred on whether the effects of her injury had ceased, particularly in light of her retirement due to invalidity, and her concurrent diagnosis of schizophrenia. Comcare accepted liability for the initial injury but contested the ongoing effects of the injury. The Federal Circuit Court was tasked with resolving these issues.

The court needed to determine whether Ms Forrest's work-related injury and its effects had indeed ceased, particularly given her retirement on invalidity grounds and her diagnosis of schizophrenia. The complexities arose from the potential for somatisation of her psychological condition into physical symptoms, complicating the diagnosis and assessment of the injury's ongoing effects. The court was also required to interpret statutory provisions regarding the cessation of compensable conditions and ongoing incapacity.

The court found that the Tribunal had erred in concluding that the effects of Ms Forrest's compensable injury had ceased. It was held that the Tribunal had not adequately considered the possibility that Ms Forrest's psychological condition might have influenced her physical symptoms. The court emphasised that the diagnosis of a pain syndrome, even if influenced by psychological factors, did not necessarily mean that the effects of the compensable condition had ceased. The court set aside the Tribunal's decision and substituted its own, finding that the effects of Ms Forrest's previously accepted compensable injury had not ceased on the specified date and that she remained incapacitated for work due to that injury.

The court ordered that the decision under review be set aside, with the Tribunal determining that the effects of Ms Forrest's previously accepted compensable injury had not ceased. Ms Forrest was found to be currently incapacitated for work due to her injury and was entitled to compensation for incapacity and medical treatment expenses. The matter was remitted to Comcare to determine the appropriate amount of compensation. Comcare was also ordered to pay Ms Forrest's reasonable costs in the proceedings.

Orders

Orders of the court

The decision under review is set aside and in substitution thereof the Tribunal decides that the effects of Ms Forrest’s previously accepted compensable injury did not cease on 3 June 2003, she was then and is now incapacitated for work as a result of her previously accepted work-related injury and is entitled to payment of compensation for incapacity and medical treatment expenses pursuant to s.131 of the Safety, Rehabilitation and Compensation Act 1988.

The matter is remitted to Comcare to determine the amount of compensation that is payable to Ms Forrest in accordance with these reasons.

Comcare is to pay Ms Forrest’s reasonable costs in these proceedings as agreed or taxed.

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.