Geyman and Telstra Corporation Limited (Compensation) [2016] AATA 977 (1 December 2016)
Division
GENERAL DIVISION
File Number(s)
2014/5241
2016/3424
Re
Michael Geyman
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Dr Damien Cremean, Senior Member
Date 1 December 2016 Place Melbourne The Tribunal affirms the decisions under review.
..................................[sgd]......................................
Dr Damien Cremean, Senior Member
COMPENSATION — claim for medical treatment and incapacity — claim for permanent impairment —complaint of back pain — whether injury which arose out of or in the course of work — inconsistency in Applicant’s evidence – need for corroboration of Applicant’s evidence to establish injury — no corroboration — no injury established – decisions affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 4(9), 5A, 5B, 14.
Cases
Telstra Corporation Ltd v Bowden (2012) 229 ALR 61
Wiegand v Comcare Australia [2002] FCA 1464REASONS FOR DECISION
Dr Damien Cremean, Senior Member
1 December 2016
Introduction
The Applicant seeks review of two decisions of the Respondent. The first reviewable decision, made on 2 October 2014, affirmed a determination made on 21 August 2014 that the Respondent was not liable to pay the Applicant compensation under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for medical treatment and incapacity in respect of acute low back strain sustained on 5 February 2013.
The second reviewable decision, made on 29 July 2016, affirmed a subsequent determination by the Respondent that it was not liable to pay compensation for permanent incapacity arising from the same injury under section 24 of the Act in respect of the same injury.
The Applicant has been employed by the Respondent in various roles since about 1990 (stated by the Applicant in evidence), or 1982 (according to the claim form completed by Telstra). He claims that he suffered lower back strain while lifting a computer cable in the course of his work on 5 February 2013. The Applicant’s claim in respect of such claimed injury was lodged on 14 March 2013.
The matter was heard by the Tribunal between 27 July 2016 and 29 July 2016. The Applicant was represented by Mr Simon Weir of Counsel, instructed by Angela Sdrinis Legal. The Respondent was represented by Mr John Wallace of Counsel, instructed by Clarke Legal.
At the hearing affirmed evidence was given by the Applicant and by Dr Boris Mezhov, the Applicant’s General Practitioner. The Respondent called Mr Ronald Haig, consultant Orthopaedic Surgeon, who gave affirmed evidence.
In what follows, an outline of the evidence of the Applicant and these two witnesses is given.
Outline of evidence
Applicant
The Applicant is aged 61 and was born on 31 March 1955. He is married with adult children. He has worked for the Respondent in various roles, including as a Field Technician and a Constructer Repairer since about 1990. Before that he worked as a storeman for Coles Myer. The Applicant is still working for the Respondent, but on light duties four days a week.
The Applicant confirmed in…
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- Case
- [2016] AATA 977
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Senior Member was whether the Applicant's current condition was attributable to the incident on 5 February 2013, as alleged, or if pre-existing degenerative changes or prior injuries were the primary cause. Specifically, the Senior Member was required to determine the truthfulness and accuracy of the Applicant's account of the incident and its consequences, and to assess whether the unanswered questions on the claim form regarding previous similar injuries or treatments were relevant to the determination of liability.
The Senior Member considered the Applicant's evidence, which detailed the incident and the immediate onset of severe pain. However, the Senior Member also noted the Applicant's admission that he could not recall completing the claim form and that the answers to questions concerning prior similar symptoms, medical treatment, or compensation claims were left blank. The Senior Member acknowledged that the Respondent had initially accepted liability for acute low back strain. The Senior Member's reasoning would likely involve an assessment of the credibility of the Applicant's testimony in light of the unanswered questions on the claim form and the potential for pre-existing conditions to be the true cause of the Applicant's ongoing symptoms.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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