OSBORNE And COMCARE

[2003] AATA 465

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 465

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/653

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHEN JAMES OSBORNE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date23 May 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) B J McCabe
  Member

CATCHWORDS

WORKERS’ COMPENSATION – entitlement – Meniere’s disease – liability - whether applicant’s disease caused by his employment - whether applicant suffering from a temporary aggravation of an existing condition – whether aggravation of condition ceased after applicant removed from normal duties - meaning of aggravation – factors causing aggravation - whether applicant’s disease aggravated by workplace stress - whether applicant entitled to an allowance which would otherwise have been payable to him if his condition had not caused him to cease his normal duties

Safety Rehabilitation and Compensation Act 1988

Casarotto v Australian Postal Commission (1989) 17 ALD 321
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Johnston v Commonwealth of Australia (1982) 43 ALR 559 
Re Davies and Comcare (AAT 9637, 1 August 1994)

REASONS FOR DECISION

23 May 2003 Mr B J McCabe, Member  

Introduction

1.      Stephen Osborne is the applicant in these proceedings. Mr Osborne was a soldier posted to the School of Army Aviation at Oakey. He worked on the Army’s fleet of Blackhawk helicopters. He developed Meniere’s disease and was subsequently grounded. He has since been discharged from the Army.

2.      The applicant says Meniere’s disease, or the attacks that are symptomatic of the condition, was either caused or aggravated by his military service. The respondent says Meniere’s disease is a pre-existing condition but has accepted liability for the temporary aggravation of the condition that occurred as a result of his aircrew service. The applicant says the contribution of the applicant’s employer to the aggravation of the applicant’s condition ceased once he was grounded. The respondent says the applicant is entitled to receive flight allowance after the date he was grounded. The dispute over the entitlement to flight pay lies at the heart of these proceedings.

The Material Before the Tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The applicant also provided a statement and a series of reports from Professor Gibson (dated 3 May 2001, 31 July 2001, 28 November 1998, 15 December 1998, 26 February 1999, 9 March 1999, 8 April 1999, 2 August 1999 and 8 August 2000), two pay records and the applicant’s record of service. The applicant and his wife, Mrs Wendy-Leigh Osborne gave evidence, as did Professor Gibson and Dr Stuart Whitehead.

4.      The applicant was represented by Mr Clutterbuck of counsel. Mr Clark appeared for the respondent.

The Facts

5.      Stephen James Osborne was born on 20 April 1968. He enlisted in the Army on 18 March 1986 and transferred into the aviation…