Manley and Comcare - [2001] AATA 994

DECISION AND REASONS FOR DECISION [2001] AATA 994

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº A2000/127

GENERAL ADMINISTRATIVE DIVISION)

Re: FELICIA GAI MANLEY

Applicant

And: COMCARE

Respondent

DECISION

Tribunal:       Mr B. H. Pascoe, Senior Member
  Air Marshal I.B. Gration, ao, afc, Member
  Dr M. Miller, ao, Member
Date:             5 December 2001
Place:            Canberra

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
Senior Member
COMPENSATION — pain in neck, right shoulder and right arm – claim for compensation in 1991 accepted – liability denied from October 1997 – whether incapacity for employment – whether symptoms have causal relationship with employment – whether incident in 1986 contributed to symptoms – whether injury in 1991
Safety, Rehabilitation and Compensation Act 1988

Commonwealth v Smith (1989) 10 AAR 277
Australian Telecommunications commission v Tzikas (1985) 5 AAR 173

REASONS FOR DECISION

5 December 2001  Mr B. H. Pascoe, Senior Member
  Air Marshal I.B. Gration, ao, afc, Member
  Dr M. Miller, ao, Member

This is an application to review a decision of the respondent of 8 February 2000 that the respondent was not liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act1988 ("the Act") on and from 10 October 1997 in respect of "neck, shoulder and arm pain" deemed to have been sustained on 22 August 1991. The applicant had submitted a claim on 31 July 1991 for "occupational overuse syndrome of arm, neck and shoulder". On 30 August 1991 liability was accepted in respect of "neck, shoulder and arm pain" deemed to have been sustained on 22 August 1991. A determination to cease liability for incapacity and medical expenses from 10 October 1997 was made on 4 September 1997. A request for reconsideration was made on 22 September 1998 but reasons for the request were not provided until 16 June 1999. The applicant had accepted voluntary redundancy on 12 August 1996.
At the hearing the applicant, Mrs Manley, was represented by Mr S. Pilkington, of counsel, and the respondent by Mr J. Wallace, of counsel. Oral evidence was given by the applicant. Neither party called any other witness. The Tribunal had the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T1-T161). The following additional documents were tendered:
Exhibit A1 — Report of Dr V.D. Lieu, general practitioner, dated 4 September 2000
Exhibit A2 — Report of Dr B. Ashman, orthopaedic surgeon, dated 4 December 2000
Exhibit A3 — Report of Dr Ashman dated 29 October 2001
Exhibit R1 — Report of Dr P. Stevenson, consultant physician, dated 21 August 2000
Exhibit R2 — Report of Dr N. McGill, consultant rheumatologist, dated 31 August 2000
Exhibit R3 — Documents relating to applicant's claim in April 1986
Exhibit R4 — Videotape of applicant
Exhibit R5 — Clinical notes of Dr T. Gavranic, general practitioner
Mrs Manley was born on 15 August 1966 and is married with three children aged 9, 6 and 3 years. After leaving school in 1982, enrolling in a…

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 Manley and Comcare

Details

AGLC: Manley and Comcare [2001] AATA 994
Case: [2001] AATA 994
Decision Date: 5 December 2001

CaseChat Overview and Summary

In the case of Manley and Comcare, the applicant, Felicia Gai Manley, sought a review of a decision made by Comcare, the respondent, that they were not liable to pay compensation from October 1997 onwards for neck, shoulder, and arm pain that Manley claimed was sustained in an incident on 22 August 1991. Manley had originally filed a claim on 31 July 1991 for "occupational overuse syndrome of arm, neck and shoulder," and on 30 August 1991, liability was accepted in respect of the injuries. However, a determination to cease liability for incapacity and medical expenses was made on 4 September 1997, leading to the current review application. The key legal issues before the court were whether Manley was incapacitated for work due to her symptoms and whether there was a causal relationship between her symptoms and her employment. The court also had to determine if the 1986 incident contributed to Manley's symptoms and whether the 1991 injury played a role.

The Administrative Appeals Tribunal, after considering the evidence and arguments presented by both parties, found that Manley was not incapacitated for work as a result of her symptoms. The court found that Manley had exaggerated her symptoms either consciously or unconsciously and that the 1986 incident did not contribute to her symptoms. The court concluded that there was no causal relationship between Manley's condition and her employment and affirmed the decision under review. The court held that even if Manley's symptoms were psychologically based, they could not be considered work-related as the 1986 incident and the 1991 injury did not contribute to her symptoms after 1997. Therefore, the Tribunal decided to uphold the original decision made by Comcare.

Orders