Keenan and Comcare

[2009] AATA 884

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 884

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4348

GENERAL ADMINISTRATIVE DIVISION		)
Re		VICKY KEENAN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Professor R Creyke, Senior Member
Dr M Miller AO, Member

Date16 November 2009  

PlaceCanberra

Decision Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 for Ms Keenan’s ‘disc protrusion’ with a deemed date of injury of 4 October 2007. The matter is remitted to Comcare to calculate the amount of compensation owing to Ms Keenan as a result of this decision.

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

Professor R Creyke, Senior Member  

CATCHWORDS

COMPENSATION - claimed injury – disease – disc protrusion – neck – bus driving – previous claim – contribution to a significant degree – substantially more than material – decision remitted to Comcare

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 5A, 5B, 7, 14, 53

McDonald v Director-General of Social Security (1984) 1 FCR 354

Repatriation Commission v Smith (1987) 15 FCR 327

Sellick v Australian Postal Corporation [2009] FCAFC 146

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

Health Insurance Commission v Van Reesch (1996) 45 ALD 302

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

Roncevich v Repatriation Commission (2005) 222 CLR 115

Roncevich v Repatriation Commission (2003) 75 ALD 345

Comcare v Amorebieta (1996) 66 FCR 83

Comcare v Sahu-Khan (2007) 156 FCR 536

Comcarev Canute (2005) 148 FCR 232

Re Redmayne and Comcare [1996] AATA 179

REASONS FOR DECISION

16 November 2009             Professor R. Creyke, Senior Member

Dr M. Miller, Member AO

1.      Ms Keenan works for the Australian Capital Territory Internal Omnibus Network (ACTION) as a bus driver.  On 30 September 2007 she experienced pain in her left shoulder, left arm and back which later transferred to her neck. 

2.      On 20 December 2007 Ms Keenan lodged a workers’ compensation claim.[1]  That claim was rejected on 31 March 2008,[2] a decision which was affirmed on further review on 31 July.[3]  Ms Keenan appealed to the Tribunal on 16 September 2008.[4]

[1] T8.

[2] T13.

[3] T16.

[4] T2.

Issues

3. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) provides that an applicant is to be paid compensation if the person has suffered an injury arising out of, or in the course of employment that has resulted in incapacity for work or impairment. The principal issue in Ms Keenan’s case is whether Comcare is liable to pay her compensation under section 14 of the Act. The answer to that issue depends on whether Ms Keenan’s condition was constitutional and/or has been caused or aggravated by her employment.

4.        Comcare initially indicated its intention to argue there was no liability because the circumstances relevant to Ms Keenan’s claim came within section 7(7) of the Act, namely, that Ms Keenan had made a ‘wilful and false representation’ that she did not suffer or had not previously suffered from the…