Newton-Edwards and Comcare

[2008] AATA 1102

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1102

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No       A 200600234

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHELLE NEWTON-EDWARDS

Applicant

And  COMCARE

Respondent

DECISION

Tribunal

 J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

Date 10 December 2008

Place Canberra

Decision 1.       The reviewable decision of Comcare made 19 December 2006 is affirmed

..............[signed]....................

J.W. Constance, Senior Member

CATCHWORDS

COMPENSATION – permanent impairment – several impairments - whether any or all impairments suffered permanent – whether impairment/s ‘likely to continue indefinitely’ - decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24

Comcare Australia v Filla (2002) 115 FCR 163

Fazlic v Milingimbi Community Inc. (1982) 150 CLR 345

Filla v Comcare  (2001) 115 FCA 144

REASONS FOR DECISION

INTRODUCTION

1    Ms Newton-Edwards was injured in 2003 whilst she was employed by the Australian Broadcasting Corporation.  She suffered bilateral tunnel syndrome.  Comcare has accepted liability to compensate Ms Newton-Edwards for this injury.

2.      Ms Newton-Edwards claims that the injury has resulted in three impairments all of which are permanent and in respect of which she is entitled to compensation.  These are:

·pain and paraesthesia in both arms and hands;

·depression caused by the pain;

·headaches caused by the effects of the injury.

3.       Comcare accepts that Ms Newton-Edwards suffers from the first two of the above conditions.  It does not accept that the injury has caused her to suffer headaches.

4.      Comcare denies that the injury has resulted in any permanent impairment of Ms Newton-Edwards and therefore denies any liability to compensate her in respect of the injury under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) . Subsection 24 (1) of the Act provides:

Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

5. In section 4 of the Act “impairment” is defined as:

the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

THE ISSUES

6.      The following issues arise for determination;

1)what impairments (if any) have resulted from the injury;

2)are all, or any, of those impairments permanent;

3)what is the degree of any impairment/s found to be permanent?

EVIDENCE AND FINDINGS OF FACT

7.      Comcare has conceded that Ms Newton-Edwards suffers pain and paraesthesia in her arms and hands and depression as a result of the compensable injury of carpal tunnel syndrome and that these conditions satisfy the definition of impairment in the Act.  We are satisfied on the evidence before us that these are appropriate concessions to be made.

8.      Unless otherwise stated the following findings of fact are made on the basis of the evidence of Ms Newton-Edwards.  We are satisfied of the facts found on the balance of probabilities.

Upper limbs, shoulders and neck

9.      Since suffering the injury at work Ms Newton-Edwards…