Power-James and Comcare (Compensation)

Power-James and Comcare (Compensation) [2016] AATA 25 (22 January 2016)

Division	GENERAL DIVISION
File Number(s)	2014/4855
Re	Raylene Power-James
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	22 January 2016
Place	Canberra

The decision under review is affirmed.

.....................[sgd]...................................................

Mr S. Webb, Member

COMPENSATION – injury claim – lower back and hip ailments – difference between ‘injury’ and ‘disease’ - ailments existing prior to claimed injury – movement likely to produce increase in symptoms without physiological change – symptoms arising from already symptomatic ailment – no frank injury - ailments not significantly contributed to by employment – decision affirmed

Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14

Hume Steel Ltd v Peart (1947) 75 CLR 242

May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286Tippett v Australian Postal Corporation (1998) 27 AAR 40

Commonwealth v Beattie (1981) 35 ALR 369

Mellor v Australian Postal Corporation [2009] FCA 504

Comcare v Power [2015] FCA 1502

REASONS FOR DECISION

Mr S. Webb, Member

22 January 2016

1. Raylene Power-James claimed compensation for an injury to her lower back in the course of her employment as a teacher by the ACT Department of Education. Comcare decided to reject her claim. This decision was affirmed on reconsideration. Ms Power-James has applied for review.

   Issues

2. The issue for determination is whether Ms Power-James sustained an ‘injury’ for which Comcare is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Specifically, it is necessary to determine whether Ms Power-James sustained –

   (a)an injury, or the aggravation of such an injury arising out of, or in the course of, her employment for the purposes of s 5A(1)(b) or (c); or

   (b)a disease, or the aggravation of a disease, that was contributed to, to a significant degree, by her employment for the purposes of s 5A(1)(a).

3. I should say here that Ms Power-James represented herself. She, like any lay person with no special knowledge of the law, cannot be expected to have a detailed knowledge or a refined understanding of the legal principles that are applicable when differentiating between an ‘injury’ and a ‘disease’ for the purposes of the SRC Act, or the consequences in law that may flow when determining a claim for compensation under that Act. But her lack of knowledge should not, and does not, detract from her case, just its presentation.

4. In a case such as this, it is important to comprehend the significance of the distinction between getting hurt and becoming sick, as discussed by Latham CJ in Hume Steel Ltd v Peart.[1] The former may arise if the normal physiological state of the person is changed or disturbed, whereas the latter may result from the normal progress of an autogenous disease or pre-existing morbid condition. The degree to which the change in a person’s normal physiological state is sudden or identifiable may be a…