Radulovic and Comcare

[2008] AATA 1052

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1052

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/3007

GENERAL ADMINISTRATIVE DIVISION		)
Re		SLOBODAN RADULOVIC

Applicant

And   COMCARE

Respondent

DECISION

Tribunal   J.W. Constance, Senior Member

Date24 November 2008  

PlaceCanberra  

Decision

1.      The reviewable decision made by Comcare on 15 May 2007 (no. 16578791) is set aside.

2.      In substitution for the decision set aside it is decided that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to compensate Mr Radulovic in respect of an injury, being facet joint strain with consequent headaches, suffered by him in September 2005.

. ..............[signed]..................

J.W. Constance, Senior Member

CATCHWORDS

COMPENSATION – whether injury occurred during rehabilitation for previously accepted injury – whether link between exercise performed and injury – whether injury excluded from application of Act by section 54 - decision set aside and substituted.

Safety, Rehabilitation and Compensation Act 1988 ss 14, 53, 54

Comcare v Luck (1999) 29 AAR 403

REASONS FOR DECISION

INTRODUCTION

3.      Mr Radulovic is seeking a review of a decision of Comcare denying liability to compensate him for a neck injury and consequent headaches.  He claims he suffered the injury whilst undertaking a rehabilitation course for an earlier injury for which Comcare had accepted liability to compensate him.

4.      For the reasons which follow the decision under review will be set aside and a decision accepting liability will be substituted.

BACKGROUND

5.      Since 1985 Mr Radulovic has been employed as a wardsman at The Canberra Hospital.  In April 2005, he injured his back whilst moving a patient.  Comcare accepted liability to compensate him in respect of this injury.

6.      As part of his rehabilitation following his back injury Mr Radulovic attended a number of exercise sessions conducted by Fit To Manage under the guidance of a rehabilitation specialist, Ms Thompson. These sessions were conducted from September to December 2005. In a claim form dated 30 June 2006 Mr Radulovic said that he suffered an injury to his neck when attending the Fit To Manage sessions.[1] He claimed that “they overstretched my neck and I complained to doctor at time and no one listened.”   

[1] Ex. A12.

ISSUES FOR DETERMINATION

7.      Two issues arise:

1)did Mr Radulovic suffer an injury to his neck whilst engaged in the programme being undertaken by him as part of his rehabilitation following the injury to his back suffered at work in April 2005;

2)if so, does section 54 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) exclude the injury suffered by Mr Radulovic from the application of the Act?

MR RADULOVIC’S ARGUMENT

8.      In his statement of 10 April 2008 Mr Radulovic described the circumstances in which he says he was injured as follows:

I commenced the rehabilitation program at Fit to Manage in October, 2005. The rehabilitation program which they doing with me involved a lot of stretching of my neck, back and legs on the floor and whilst standing and…