Morton and Comcare

[2005] AATA 930

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 930

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2004/34

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CIVA MORTON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb

Date26 September 2005

PlaceCanberra

Decision

The decision under review is set aside and in substitution thereof the Tribunal decides that in the period from 6 January 2001 to the present date:

(i)  Ms Morton did not continue to suffer from the injury “sprain to unspecified site of back” (“the compensable injury”); and

(ii)  Ms Morton’s pain symptoms (described as fibromyalgia or a neurogenic pain disorder) and depression did not arise from her employment and were not materially contributed to by the compensable injury, and she is not entitled to compensation therefor.

There are no orders in relation to costs.  Liberty to apply within seven days.

..............................................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - unspecified back sprain injury - cessation of employment - pain disorder - fibromyalgia - depression - conflicting medical evidence - injury in the context of disease – commonsense test – inference of probable cause not open – symptoms of pain and depression not related to work injury – reviewable decision purports to cease liability into the future – decision set aside

Safety, Rehabilitation and Compensation Act 1988 ss 4, 7, 14, 16, 19, 67

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533. 

Chappel v Hart (1998) 156 ALR 517 at 523

Commonwealth v Beattie (1981) 35 ALR 369

Commonwealth Banking Corporation v Percival (1988) 9 AAR 206

Hannaford v Telstra Corporation Limited [2005] FCA 1298

Lees v Comcare (1999) 56 ALD 84).

Re Liu and Comcare [2004] AATA 617

Re Riley and Comcare [2005] AATA 23

Seltsam Pty Ltd & Anor v McGuiness [2000] NSWCA 29

Tippett v Australian Postal Corporation (1998) 27 AAR 40

Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at 328

REASONS FOR DECISION

26 September 2005 Mr S. Webb            

1.      By this application Civa Morton is seeking review of the Comcare decision to affirm a primary determination purportedly ceasing Comcare’s liability to pay compensation in relation to a work-related but unspecified back sprain.

2. The matter came on for hearing before me in Canberra on 30- 31 May and 17-19 August 2005. Ms Morton was represented by Mr C. Ryan, counsel. Comcare was represented by Mr D. O’Donovan, counsel. Ms Morton, Dr Garth Eaton (Occupational Physician), Dr Hugh Veness (Consultant Psychiatrist), Dr Andrew Brook (Rheumatologist), Dr Ross Mellick (Consultant Neurologist), Dr Neil McGill (Consultant Rheumatologist), Dr Peter Stevenson (Consultant Physician), Dr Jan Eriksson (General Practitioner) gave oral evidence. The Tribunal had before it documents prepared pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“T” documents). Materials were tendered and labelled for identification during the hearing.

factual context

3.      The factual background to this application is not in dispute and I find as follows.

4.      Ms Morton is 53 years…