Magher and Comcare

[2008] AATA 970

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 970

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0254

GENERAL ADMINISTRATIVE DIVISION		)
Re		TERI-ANN MAGHER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date31 October 2008

PlaceMelbourne

Decision The decision under review is set aside and a decision substituted that the applicant’s prolapse of the disc at the L5/S1 level is an injury as defined in (c) of the definition of ‘injury’ contained in s 4 of the Safety Rehabilitation and Compensation Act 1988 and she therefore qualifies to receive compensation under s 14(1).

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Deputy President

CATCHWORDS – COMPENSATION – disc prolapse – disc degeneration – whether injury occurred in the course of employment – whether injury was aggravated by employment – competing expert medical opinions – decision under review set aside 

Administrative Appeals Tribunal Act 1975 s 37

Safety Rehabilitation and Compensation Act 1988 ss   4, 14

Briginshaw v Briginshaw (1938) 60 CLR 336

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

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626

Rodgers and Australian Postal Commission [2005] AAT 1007

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

REASONS FOR DECISION

31 October 2008   Mr G L McDonald, Deputy President

1.        The applicant is applying for the review of a decision of a delegate of the respondent dated 14 December 2006 which affirmed, after internal review, a decision refusing to accept her injury of sciatic nerve and rotated disc displacement thoracic/lumbar intervetebral disc as being work related.  The applicant is seeking a determination that she qualifies to receive compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) on the basis that her work activities materially contributed to and/or aggravated her back condition.

2. The Tribunal had before it the documents filed for purposes of s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and the exhibits. The applicant and Associate Professor O’Brien, a rheumatologist, gave oral evidence on behalf of the applicant. Two additional reports to one contained in the T documents from Dr Fox, the applicant’s treating general medical practitioner, were admitted by consent[1]. A report from the applicant’s treating orthopaedic surgeon, Mr Hunt, was also admitted by consent[2].

[1] Exhibits A5 and A6.

[2] Exhibit A7.

3.        The respondent called Mr Shannon, an orthopaedic surgeon, Dr Karna, a rheumatologist, and Ms Johnstone, a manager of the agency (Centrelink) where the applicant worked and continues to work.  The respondent admits, and the material before the Tribunal confirms, that the applicant has suffered from a constitutionally based degenerative spine condition, that in May 2006 she suffered a disc prolapse at the L5/S1 level, but the respondent denies that there is any relationship between the condition and the applicant’s work.

The Issues

4.      The applicant’s case is:

(a)that the prolapse of her spinal vertebrae at the L5/S1 level occurring in May 2006 is an injury which was suffered by…