McNicol and Comcare

[2003] AATA 559

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 559

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No A2002/237

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BEATRICE MCNICOL

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member
Dr M D Miller AO, Member

Date16 June 2003

PlaceCanberra

Decision The tribunal affirms the decision under review.  The applicant qualifies for no costs associated with this application.

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Senior Member

CATCHWORDS

WORKERS' COMPENSATION – Death of employee – claim by spouse – spouse as dependant – employee died from myocardial infarction – whether death caused by compensable injury

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“dependant”, “dependent”, “disease”, “injury”, “spouse”), 17(1), (2), (3), (4), (7), (9),

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Lott and Comcare, Re (1996) 44 ALD 741

Nadge and Australian Postal Corporation, Re (1994) 33 ALD 710

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

REASONS FOR DECISION

16 June 2003 Mr M J Sassella, Senior Member
Dr M D Miller AO, Member            

APPLICATION

1. This is an application by Beatrice McNicol (“the applicant”) for review by the Administrative Appeals Tribunal (“the tribunal”) of a decision of a delegate in Comcare (“the respondent”) (T81) made on 29 June 2001. The decision was affirmed on 20 November 2001 by an independent review officer (T86) who rejected the applicant’s claim for a death benefit under s 17 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[1].  The applicant’s husband, John McNicol (“the employee”), had died on a date between 25 and 28 May 2000 (T64), arguably as a result of a work-related injury.

[1] tribunal convened a hearing in this matter in Canberra on 24 February 2003.  Mr H Selby of counsel represented the applicant.  Ms L Walker of counsel represented the respondent.

3.       The tribunal heard oral evidence from Dr N G Ardlie, a physician, and from Professor M F O’Rourke, Professor of Medicine at the University of New South Wales, Head of the Vascular-Ventricular Interactions Program, Victor Chang Cardiac Research Institute at that university and a visiting medical officer in the Department of Cardiovascular Medicine and Hypertension at Sydney’s St Vincent’s Clinic.

4.       The tribunal had access to the following documents which were admitted as exhibits:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T88) provided by the respondent.

Exhibit A1 – Applicant’s statement of facts and contentions, 7 August 2002.

Exhibit A2 – Report by Dr Ardlie dated 13 June2002.

Exhibit A3 – Report by Dr D M Coles, a cardiologist, dated 13 September 1991.

Exhibit A4 – Report by Dr Coles dated 6 October 1998.

Exhibit R1 – Respondent’s statement of facts and contentions, 16 May 2002.

Exhibit R2 – Report by Professor O’Rourke dated 22 April 2002.

Exhibit R3 – Report by Professor O’Rourke dated 26 August 2002.

LAW

5. At the date of death of Mr McNicol Comcare was liable to pay compensation to him under s 14 of the Act,…