Nikolovski and Telstra Corporation Ltd

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 746

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1017

GENERAL ADMINISTRATIVE DIVISION		)
Re		CANE NIKOLOVSKI

Applicant

And TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member
Dr M E C Thorpe, Member

Date4 August 2003

PlaceSydney

Decision The tribunal varies the decision under review by deciding that the applicant qualifies for no incapacity payments up to 22 November 2000 and by remitting for the respondent to decide the matter of whether the applicant merits any incapacity payments after 22 November 2000 on the basis of the operation of s 19(4)(e) of the Act. The applicant is not entitled to costs associated with this application.

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Senior Member

4.      At the commencement of the hearing the applicant’s representative applied for an adjournment on the basis that there had been no report sought from Dr Maniam, an orthopaedic surgeon and treating doctor of the applicant.  This was rejected because the applicant’s representatives had certified that the matter was ready to proceed to hearing and because the applicant’s representatives had filed and served up to date medical reports by Drs Gill and Manohar.  In the tribunal’s view, Dr Gill, as treating general practitioner, who wrote a report on 21 July 2003 (a mere four days before the hearing) (ex A3) would be aware of Dr Maniam’s views and these would have been influential in his report.

LAW

5. An employee must have suffered an injury, as defined in s 4(1) of the Act, if he or she is to receive any compensation under the Act. An injury is defined in s4(1) as:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

6. Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

7. The definition of a disease refers to an ailment as a relevant concept. This is defined also in s 4(1):

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual…