Paulo and Comcare - [2008] AATA 955

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 955
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2006/1605 and 2007/3525

GENERAL ADMINISTRATIVE DIVISION

Re CECILIA PAULO

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr M.E.C Thorpe, Member
Date27 October 2008
PlaceSydney

Decision
The Decisions under review are set aside and these matters remitted to the Respondent with directions that the Applicant is entitled to the payment of compensation pursuant to Part II of the Safety, Rehabilitation and CompensationAct 1988 in accordance with these reasons.

The Respondent is to pay the Applicants costs unless within 14 days from today’s date the Respondent requests the Tribunal to hear further submissions regarding costs.

...................[sgd] ...........................
M D Allen
Presiding Member

CATCHWORDS
WORKERS COMPENSATION: whether Applicants cervical spondylosis with spinal cord compression was idiopathic or contributed to in a material degree by her employment – interpretation of treating surgeons reports when that specialist medical practitioner not called – decision denying liability set aside
…
LEGISLATION:
Safety, Rehabilitation and Compensation Act 1988: s.4. Part II
…
CASE LAW
Comcare v Canute (2005) 148 FCR 232
Johnston v The Commonwealth (1982) 43 ALR 559
…
REASONS FOR DECISION

Senior Member M D Allen
Dr. M.E.C Thorpe, Member

1.          In these proceedings there were two matters before the Tribunal. The first (Matter No. 2006/1605) was whether the Applicant was entitled to compensation for the injury described as “displacement of cervical intevertebral disc and / or neck spasm”. The second matter (No 2007/3525) was whether the Applicant was entitled to any payment pursuant to Sections 24 and 27 Safety, Rehabilitation and Compensation Act 1988 for Permanent Impairment due to the claimed Injury.
2.          There is no doubt that the Applicant suffered a C5/6 disc herniation resulting in severe spinal cord compression. This was relieved by a surgical intervention being an anterior cervical decompression and fusion at C5/6.
3.          As we see it, the issue for this Tribunal was whether the Applicants employment at Air Services Australia made a material contribution to her disc protrusion. At the outset it was agreed between the parties that the Applicants current impairment was at 28% points as per Table 9.15 in the Comcare Guide to the Assessment of the Degree of Permanent Impairment 2^nd ed.
4.          The Applicant commenced employment with Air Services Australia in 2002 as an Administrative Assistant. Her duties involved a considerable amount of keyboard work and also speaking to other Air Services Australia offices by telephone. Some of these telephone conversations could last up to 1 hour. While speaking on the telephone the Applicant also had to type, therefore she resorted to holding the telephone by positioning it between her shoulder and her neck.
5.          The telephone was a normal handset and had no device to assist her to hold it in the manner described.
6.          The Applicant began to develop neck and shoulder pain. Originally she thought that this was tension as her job was at times very…

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.

Continue reading Paulo and Comcare

Details

AGLC: Paulo and Comcare [2008] AATA 955
Case: [2008] AATA 955
Decision Date: 27 October 2008

CaseChat Overview and Summary

The case of Paulo and Comcare involved the Applicant, who was seeking workers' compensation for cervical spondylosis with spinal cord compression. The dispute centred on whether the Applicant's condition was idiopathic or if her employment contributed materially to the condition. The matter was heard by the Administrative Appeals Tribunal in Australia. The Tribunal was tasked with determining the appropriate interpretation of the treating surgeons' reports, given that the specialist medical practitioner was not called to testify.

The legal issues at hand required the Tribunal to interpret the medical evidence provided by the treating surgeons, especially considering the absence of direct testimony from the specialist. The key question was whether the evidence sufficiently supported a finding that the Applicant's employment had materially contributed to her condition. The Tribunal needed to balance the weight of the medical reports against the standard of proof required for a claim of material contribution by employment.

In its reasoning, the Tribunal found that the medical reports provided substantial evidence that the Applicant's employment did contribute materially to her cervical spondylosis with spinal cord compression. The Tribunal set aside the previous decisions denying liability, highlighting the importance of the medical evidence and the absence of contradictory testimony from the specialist. The Tribunal concluded that the Applicant was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988.

The Tribunal's decision mandated that the previous determinations denying liability be set aside and the matter be remitted to the Respondent with specific directions. The Applicant was to receive compensation in accordance with the Tribunal's reasons. Additionally, the Tribunal ordered that the Respondent would pay the Applicant's costs, unless within fourteen days from the date of the decision, the Respondent requested further submissions regarding costs.

Orders

Orders of the court

The Decisions under review are set aside and these matters remitted to the Respondent with directions that the Applicant is entitled to the payment of compensation pursuant to Part II of the Safety, Rehabilitation and Compensation Act 1988 in accordance with these reasons.

The Respondent is to pay the Applicants costs unless within 14 days from today’s date the Respondent requests the Tribunal to hear further submissions regarding costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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