Peter Miller and Comcare - [2012] AATA 715

[2012] AATA 715

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/3923
Re	Peter Miller
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	The Hon R J Groom AO (Deputy President)
Date	16 October 2012
Place	Hobart

The decision under review is set aside and the matter remitted to the respondent with the following directions:

(a) The respondent is liable to pay compensation to the applicant on and from 20 November 2009 in accordance with the provisions of the Act in respect of an injury, namely an aggravation of cervical spondylosis, suffered by the applicant on that date.

(b) The amount of compensation is to be assessed.

[Sgd Hon R J Groom]

Deputy President

COMPENSATION – call centre operator – pre-existing degenerative cervical spondylosis – episode of severe pain – whether work contributed to aggravation of cervical spondylosis to a significant degree – meaning of “aggravation” – meaning of “significant degree” – decision set aside

Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A, 5B(1),(2),(3), 7(4), 14(1), 67

Re Smith and Comcare (1995) 39 ALD 715

Tippett and Australian Postal Corporation (1998) 27 AAR 40

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 624

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Wiegand v Comcare (2002) 72 ALD 795

Comcare v Sahu Khan [2007] FCA 15

Australian Postal Corporation v Bessey [2001] FCA 266

REASONS FOR DECISION

The Hon R J Groom AO (Deputy President)

INTRODUCTION

This is a review of the applicant’s workers’ compensation claim arising from an alleged work caused aggravation of his pre-existing cervical spondylosis. That aggravation is said to have occurred on 20 November 2009.
The applicant’s relevant workers’ compensation claim made under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) was dated 18 December 2009 and was received by his employer, Centrelink, on 22 December 2009.
The claim was rejected by a Delegate of Comcare on 6 May 2010. Mr Miller then sought a reconsideration of the original determination. On 28 July 2010 another Delegate of Comcare affirmed that determination.
On 12 September 2010 the applicant applied to this Tribunal under section 64 of the Act for a review of that reconsideration decision.
The hearing of this review application was held in Launceston on 21, 22, 23, 24 and 25 May 2012 and in Hobart on 20 June 2012. Written submissions were made on behalf of the applicant on 28 June and 18 July 2012 and on the respondent’s behalf on 11 July 2012. Further oral submissions were heard by telephone on 17 August 2012.
Six witnesses gave oral evidence at the hearing. They included the applicant and two employees of Centrelink Mr Michael Hair and Ms Jennifer Bailey. Also three medical practitioners gave oral evidence. They were Dr Peter Davies, Dr Andreas Ernst and Dr Douglas Haynes.

A large number of documentary exhibits were tendered by the parties including the “T Documents” lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

THE LEGISLATION

It is not in dispute in these proceedings…

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 Peter Miller and Comcare

Details

AGLC: Peter Miller and Comcare [2012] AATA 715
Case: [2012] AATA 715
Decision Date: 16 October 2012

CaseChat Overview and Summary

The applicant, Peter Miller, appealed a decision by Comcare rejecting his workers' compensation claim for an aggravation of his pre-existing cervical spondylosis. The Tribunal found that the aggravation occurred on 20 November 2009 while Miller was at work and was contributed to by his employment to a significant degree. The Tribunal set aside the decision under review and directed Comcare to pay compensation to Miller in respect of the aggravation of his cervical spondylosis. The Tribunal found that the applicant's employment at Centrelink contributed to the aggravation of his pre-existing cervical spondylosis to a significant degree. The Tribunal was satisfied that the aggravation occurred while Miller was at work, and there was a strong temporal correlation between his work and the pain. The Tribunal also found that the applicant felt under pressure at work, and his work duties were likely to have caused transient symptomatic exacerbation of the underlying condition. The Tribunal concluded that the aggravation was contributed to by the applicant's employment to a significant degree, and the decision under review was set aside. The matter was remitted to Comcare with directions to pay compensation to Miller.

Orders