Nikolovski and Telstra Corporation Ltd - [2001] AATA 886

DECISION AND REASONS FOR DECISION [2001] AATA 886

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos N2000/1097

GENERAL ADMINISTRATIVE DIVISION          )          N2000/1701 N2000/1702 N2000/1929 N2001/80
           Re      Cane Nikolovski
  Applicant
           And    Telstra Corporation Limited
  Respondent

DECISION

Tribunal Senior Member M D Allen Dr J D Campbell, Member

Date25 October 2001
PlaceSydney

Decision The decisions under review are affirmed.

(Sgd) M.D. ALLEN
............................
Presiding Member
CATCHWORDS
WORKERS' COMPENSATION - Claim for Permanent Impairment due to back condition and psychiatric illness. Tribunal satisfied a permanent impairment to the thoracic spine existed but not satisfied 10% on Comcare Tables. No evidence of existing psychiatric illness. Claim for massage rejected as passive therapy will not improve condition.
Safety Rehabilitation and Compensation Act 1988 - s16, s24
Comcare v Amorebieta 66 FCR 83

REASONS FOR DECISION

25 October 2001 Senior Member M D Allen
Dr J D Campbell, Member

This matter concerned five applications to the Tribunal by the Applicant. They were:

Matter N2000/1097 which sought review of a "reviewable decision" dated 3 July 2000 which affirmed a prior decision dated 28 March 2000 that the Applicant was not entitled to any award for permanent impairment caused by the condition described as "recurrence of thoraco lumbar strain".
Matter N2000/1701 which sought review of a "reviewable decision" dated 24 October 2000 which decision affirmed a prior determination dated 1 June 2000 that the Applicant was not entitled to treatment being remedial massage which treatment was sought for the Applicant's thoracic and lumbar spinal pain.
Matter N2000/1702 seeking review of a "reviewable decision" dated 24 October 2000 affirming a prior determination dated 4 July 2000 that rejected the Applicant's claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 for the condition described as "depression as a consequence of thoracic and lumbar spinal pain".
Matter N2000/1929 seeking review of "reviewable decision" dated 19 December 2000 that affirmed a prior determination dated 29 September 2000 ceasing liability to pay compensation for the condition described as "thoracic and lumbar spine pain".
Matter N2001/80 seeking review of a "reviewable decision" dated 11 January 2001 which decision affirmed a prior determination of 29 December 2000 that rejected a claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 for permanent impairment resulting from "back, left leg and depression".

The said application for review came on for hearing before this Tribunal on the 24 and 25 September 2001. At that hearing in addition to the various documents provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the following documents were taken in as exhibits and marked as follows:
A1      Applicant's Statement of Facts and Contentions
A2      Report of Dr Christopher Browne dated 3 May 2001
A3      Letter to Applicant from Field Service Manager dated 4 October 2001
A4      Letter to Applicant from Executive Manager dated 23 October 2001
A5      Statement of Mirjana Taleska dated 21 September 2001
A6      Copy clinical notes of Dr P. Gill
R1      Respondent's Statement of Facts and Contentions

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.

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Details

Case: [2001] AATA 886
Decision Date: 25 October 2001

CaseChat Overview and Summary

In the case of Nikolovski and Telstra Corporation Ltd, the dispute before the tribunal involved a claim for permanent impairment benefits. The claimant, Nikolovski, sought compensation for injuries sustained at work, including a back condition and a psychiatric illness. The case was heard by the Administrative Appeals Tribunal of Australia, which is the designated tribunal under the Safety, Rehabilitation and Compensation Act 1988. The tribunal was required to determine the extent of the claimant's permanent impairment and the appropriate compensation payable.

The central legal issues before the tribunal included whether a permanent impairment to the thoracic spine existed, the extent of that impairment, and whether a psychiatric illness was present. The tribunal also needed to consider whether a claim for massage therapy, proposed as a form of passive therapy, was reasonable and necessary for the treatment of the claimant's condition. The tribunal's decision hinged on its assessment of medical evidence and the application of the Comcare Tables for determining the percentage of impairment.

The tribunal found that while there was a permanent impairment to the thoracic spine, the evidence did not support a 10% impairment as per the Comcare Tables. The tribunal was also not satisfied that there was evidence of an existing psychiatric illness. Furthermore, the tribunal ruled that massage therapy was not an appropriate treatment for the claimant's condition, as it would not improve the impairment. The tribunal's findings were informed by the statutory provisions under the Safety, Rehabilitation and Compensation Act 1988, and it considered relevant authorities such as Comcare v Amorebieta.

In conclusion, the tribunal dismissed the claimant's claim for permanent impairment benefits in relation to the thoracic spine and psychiatric illness. It also rejected the claim for massage therapy as passive treatment would not improve the condition. The tribunal's decision was based on its assessment of the evidence and the applicable legislative framework. The tribunal did not make any orders for compensation to the claimant.

Orders