Lee-Gilbert and Comcare - [2001] AATA 655

DECISION AND REASONS FOR DECISION [2001] AATA 655

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/205

GENERAL ADMINISTRATIVE DIVISION       )
           Re      NARELLE LEE-GILBERT
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Dr M.D. Miller (Member)

Date16 July 2001
PlaceCanberra

Decision The Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
COMPENSATION – chronic pain syndrome – repetitive strain injury – permanent impairment – degree of permanent impairment – activities of daily living considered – pre 1 December 1988 injuries considered – digital dexterity considered – use of video evidence commented upon – medical evidence discussed
Safety Rehabilitation and Compensation Act 1988 s. 24
Compensation (Commonwealth Government Employees) Act 1971
Re Peters and Australian Postal Corporation (AAT 9680, 23 August 1994)
Re Toohey and Australian Postal Corporation (AAT 13360, 2 October 1998)
Department of Defence as Delegate of Comcare v West (1998) 156 ALR 651
Comcare v Amorebieta (1996) 66 FCR 83
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery(1993) 32 ALD 147

REASONS FOR DECISION

16 July 2001 Senior Member J.A. Kiosoglous MBE Dr M.D. Miller (Member)

This is an application by Ms Narelle Lee-Gilbert (the applicant) for review of a decision of a review officer of the respondent dated 20 May 1999 (T228) which affirmed upon review a decision of a delegate of the respondent dated 25 November 1998 (T216) which rejected the applicant's claim for a lump sum permanent impairment payment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T230), together with 56 exhibits, 23 lodged by the applicant (Exhibits A1-A23) and 33 lodged by the respondent (Exhibits R1-R33). In addition, the Tribunal heard evidence from the applicant, who also called Mr S.J. Gilbert, the applicant's husband, Dr G. Champion, Rheumatologist, Dr C. Browne, Rheumatologist, and Dr P. Hilton, General Practitioner. The respondent called Dr N. McGill as a witness. The applicant was represented by Mr H. Selby and the respondent was represented by Ms E. Ford, both of counsel.
history of the application
The applicant was employed by the Department of Immigration, Local Government and Ethnic Affairs (the Department) from 1 July 1982. On 10 February 1988 the applicant submitted a claim for aggravation of a repetitive strain injury (RSI) (T3). The applicant attempted several return to work programmes after this time, but remained off work from about 1990 onwards. In the ensuing years, the applicant underwent various rehabilitation assessments, without ever returning to the workplace. On 22 November 1995 she was retired from the Department on the basis of invalidity.
The applicant lodged a claim for permanent impairment on 23 May 1996 (T138) which was rejected by a delegate of the respondent on 25 November 1998 (T216) and affirmed upon review on 20 May 1999 (T228).
applicant's evidence
The applicant was born in 1957 in Queanbeyan. She completed high school…

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 Lee-Gilbert and Comcare

Details

AGLC: Lee-Gilbert and Comcare [2001] AATA 655
Case: [2001] AATA 655
Decision Date: 16 July 2001

CaseChat Overview and Summary

In the case of Lee-Gilbert and Comcare, the applicant sought compensation for chronic pain syndrome and repetitive strain injury, which she alleged resulted from her employment. The dispute was reviewed and ultimately decided by the Administrative Appeals Tribunal (AAT). The core issue for the court was to determine whether the applicant's claims for permanent impairment were substantiated and warranted compensation under the relevant acts, specifically the Safety Rehabilitation and Compensation Act 1988 and the Compensation (Commonwealth Government Employees) Act 1971.

The court needed to assess the degree of permanent impairment, if any, that the applicant suffered, and whether this impairment affected her activities of daily living. The analysis also included consideration of injuries predating 1 December 1988, and the impact on her digital dexterity. The court reviewed the video evidence presented and discussed the medical evidence to ascertain the extent of the applicant's condition. The court's reasoning was grounded in the statutory provisions and previous case law, which required a thorough investigation to ensure that government compensation was correctly allocated. Despite the applicant's long-term receipt of government benefits, the Tribunal found inconsistencies in her presentation and the level of restriction of movement, leading to the conclusion that her claims were not substantiated.

Consequently, the Tribunal affirmed the original decision to reject the claim for permanent impairment compensation. The court's decision highlighted the importance of accurate and consistent evidence in such claims, emphasizing the necessity of thorough investigation, including the use of video surveillance, to appropriately allocate government funds. The court's final orders affirmed the rejection of the applicant's claim for permanent impairment compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant lodged a claim for permanent impairment on 23 May 1996 (T138) which was rejected by a delegate of the respondent on 25 November 1998 (T216) and affirmed upon review on 20 May 1999 (T228).applicant's evidence The applicant was born in 1957 in Queanbeyan. She completed high school there in 1975. She told the Tribunal that she was an active basketball player at school, representing the ACT in the under 16 age group, and also played water polo, polo cross, and travelled to country shows as part of her horse showjumping activities, which she stopped in or about 1973. She stated that the last time she went horseriding was in 1975, but agreed, in cross-examination, that she had ridden a horse three to four years ago, but stated that it was only for 15 minutes or so. She also agreed that she had fallen off a horse in 1978 and had headaches after that, which she described as being very minor. She agreed that she had headaches as a child, but described them as being nothing like the ones she gets now. The applicant told the Tribunal that there was no need for her to seek psychiatric assistance as a child, and neither her parents nor siblings had ever sought such assistance. After high school, the applicant completed a 12-month secretarial course at Canberra TAFE College, based at Reid. She told the Tribunal that she then got a job for 12-18 months at Gregory Ford as a switchboard operator, during which time she had no problems with her arms, shoulders or wrists. She stated that she continued to play basketball and water polo, as well as swimming and doing aerobics at this time. She gave evidence that she has been a religious person since age 9 and attends church on a weekly basis, with additional prayer healing sessions twice a week, in order to receive "true light" through "hands on healing". The applicant stated that she has been full and frank in the history she has given to doctors over the years. She further stated that she now gets facial pain in her right temple and cheek, pain either side of her spine, below the rib cage and restrictions of movement in her back. She gave evidence that she has pain in the back of her wrists and hands, with an "electric current'' running down her fingers. Her main problem is with her right arm, which is very sore up and into the shoulder. She told the Tribunal that the intensity of pain has increased over time, and the spasms she has in her right arm have also increased. She also stated that she has weakness in her right arm, and can loose grip without warning. She described the pain in her arms as dull, debilitating, wearing and continuous. She also stated that she had never experienced pain like that whilst working at Gregory Ford. She denied, in cross-examination, that she does not have loss of movement in her neck, spine and arms, and stated that she is restricted in her movements, and in the way she twists and bends. The applicant told the Tribunal that she very rarely had migraines prior to getting RSI, and stated that the time she had off work from 1985 to 1987 was all related to her RSI problems. She gave evidence that she has virtually never been without a headache since 1984, and has headaches 24 hours a day. Her neck pain and shoulder spasms have been getting worse in the past few years. She stated that her problems stated in her wrists and arms, and the combination of these problems led to her back trouble. She further stated that she continued to receive treatment for RSI up until January 1988 when she went on holidays, and told the Tribunal that her injury flared up upon her return to work. She complained that she got no help or the ergonomic furniture she requested for at least twelve months and had a very heavy workload. She only takes Panadol, Fioronil and Aspirin, as she is very sensitive to most medications, and has unsuccessfully tried a number of medications over the years.

Decision

Reasons for decision

Accordingly, the Tribunal is not satisfied that the applicant suffers from any impairment pursuant to any of the relevant Tables in the Guide and so finds. In conclusion, the Tribunal will make comment in relation to the video evidence, as requested by Mr Selby. The Tribunal appreciates that there is a real danger in the current age to erode the very core right to privacy by the increasing use of surveillance. This is a problem which extends beyond the compensation arena. There is also a rightful expectation however, that government money is correctly allocated. The Tribunal considers it to be correct policy to ensure where a person has been in receipt of Commonwealth compensation of one kind or another for such an extraordinarily long time as in the present application, that the person is as impaired as they claim to be. This necessarily involves observation, which is the key to determining things such as loss of range of movement. If a person has been in receipt of some 12 years of government benefits, and then seeks a lump sum in addition to such, there is a correct expectation that the compensating authority will investigate the claim thoroughly. This will, more than likely than not, involve video surveillance. Had the applicant's presentation on the video evidence been consistent with prior presentations as to the level of restriction of movement, then her claim would have been upheld. That is, unfortunately, not how events have unfolded. decision For the reasons given the Tribunal affirms the decision under review. I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr M.D. Miller (Member)Signed: .............(Signed)..................................................... Personal AssistantDate/s of Hearing 14 May 2001, 7 & 8 June 2001 Date of Decision 16 July 2001Counsel for the Applicant Mr H. Selby Solicitor for the Applicant Gary Robb & Associates Counsel for the Respondent Ms E. Ford Solicitor for the Respondent Dibbs Barker Gosling

Ratio Decidendi

Legal Principle Established

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