Pecipajkovski and Telstra Corporation Limited - [2004] AATA 790

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 790
ADMINISTRATIVE APPEALS TRIBUNAL )
)No N2002/1831,
)N2003/1060,
)N2003/1763

GENERAL ADMINISTRATIVE DIVISION )

Re PAVLE PECIPAJKOVSKI

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date28 July 2004
PlaceSydney

Decision
N2002/1831: The decision under review is set aside. Liability for the injury accepted by Telstra Corporation Limited was not extinguished on 25 February 1999 and is ongoing.
N2003/1060: The decision under review is affirmed.

N2003/1763: The decision under review is affirmed.

[sgd] Mr S. Webb, Member

13.     Mr Pecipajkovski claimed compensation and Telstra accepted liability for “contusion of the lumbar region and temporary aggravation of a degenerative process in the lumbar spine…” on 3 March 1993. However, also on that date, Telstra determined to cease liability for that injury “on and from 25 February 1993”. By request of Mr Pecipajkovski that determination was reconsidered and varied, to the extent that Telstra’s liability was purportedly ceased on and from 3 March 1993. Mr Pecipajkovski pursued the matter to this Tribunal in respect of “lower back strain” and consent orders were filed on 26 May 1994 with the effect that the reviewable decision dated 24 June 1993 was set aside and the matter was remitted to Telstra for reconsideration.
14.     Telstra determined that Mr Pecipajkovski was entitled to compensation for incapacity for periods in 1994, 1995, 1996, 1997 and 1998 in which Dr L. Hodoba certified him to be unfit for work by reason of “low back pain”.
15.     On 21 December 1998 Mr Pecipajkovski ‘s claim “underwent a routine review” and he was examined by Dr Lloyd Hughes. On 24 December 1998 Dr Hughes reported (T27 folio 39):
“Any back pain which [Mr Pecipajkovski] is experiencing is, in my opinion, due to degenerative disc disease in his lumbar spine and not any injury or his previous work. Accepting that he has symptomatic degenerative disc disease in his lumbar spine, he should avoid any heavy lifting or prolonged bending. In the context of these restrictions he is fit for work.
…
2…(b) Any aggravation due to the incident on 11 February 1993 was temporary and has resolved.”

16. On 25 February 1999 Telstra determined to deny liability to pay compensation in relation to Mr Pecipajkovski’s lower back injury claim. That determination was affirmed in a reviewable decision dated 28 May 1999. Mr Pecipajkovski applied to this Tribunal for review of that decision on 20 November 2002 (N2002/1831).
17. On 31 May 2002 Mr Pecipajkovski lodged a claim for permanent impairment compensation in relation to his back and left leg. That claim was not accepted on the basis that liability had ceased. Mr Pecipajkovski sought review of that decision by this Tribunal. The Tribunal dismissed the application due to lack of jurisdiction. Mr Pecipajkovski subsequently claimed compensation for permanent impairment and non-economic loss on 13 March 2003. That claim was denied by a determination dated 28 March 2003. The determination…

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.

Keep reading for free

Create a free CaseChat account to read Pecipajkovski and Telstra Corporation Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] AATA 790
Decision Date: 28 July 2004

CaseChat Overview and Summary

Pecipajkovski brought a claim against Telstra Corporation Limited for compensation relating to injuries sustained in the course of employment. The primary issues were the acceptance of liability for the injury, the determination of permanent impairment, and the nature of employment's contribution to the injury. The Federal Circuit Court reviewed these decisions, examining whether Telstra Corporation Limited's liability for the injury was extinguished, the existence and extent of permanent impairment, and whether the employment conditions materially contributed to the injury.

The court addressed the first issue of whether Telstra Corporation Limited's liability was extinguished on 25 February 1999. It found that there was no formal notification or agreement to cease liability, and thus, the decision to cease liability was set aside. The court held that the liability remained ongoing. Regarding the second issue of permanent impairment, the court examined the evidence and concluded that any pre-existing degenerative condition had not been demonstrated to be an impairment prior to the incident. The court also found that there was no significant evidence to support the claimed restrictions and difficulty with movement, affirming the decision denying permanent impairment. Finally, the court considered whether the nature and conditions of employment materially contributed to the injury. It found that there was insufficient evidence to support such a claim, affirming the decision denying liability for the contribution of employment conditions to the injury.

In summary, the court set aside the decision to cease liability, affirming the ongoing nature of Telstra Corporation Limited's liability for the injury. The decision denying permanent impairment was affirmed due to insufficient evidence of pre-existing impairment and exaggerated symptoms. The decision denying liability for employment conditions' contribution to the injury was also affirmed for lack of sufficient evidence.

Orders

Orders of the court

N2002/1831: The decision under review is set aside. Liability for the injury accepted by Telstra Corporation Limited was not extinguished on 25 February 1999 and is ongoing.

N2003/1060: The decision under review is affirmed.

N2003/1763: The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAVLE PECIPAJKOVSKI