Ryan and Comcare - [2001] AATA 931

DECISION AND REASONS FOR DECISION [2001] AATA 931

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/252

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JUNE DORIS RYAN
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date9 November 2001
PlaceCanberra

Decision The Tribunal has no jurisdiction to take into account the applicant's conditions of "musculo-ligamentous strain (myofascial syndrome) of the neck, back, shoulders and arms" and "depression and anxiety" in its review of the respondent's decision to deny liability for compensation for permanent impairment.

(Signed)
J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – permanent impairment – specific injuries not subject to section 14 determination – whether Tribunal can consider these injuries in its review of refusal of claim for permanent impairment.
Safety Rehabilitation and Compensation Act 1988 ss. 14, 24
Denison-Smith and Comcare [2000] AATA 553
Carson and Telstra Corporation [2001] AATA 648
Lees v Comcare (1999) 56 ALD 84
Telstra Corporation Limited v Barrow (1994) 35 ALD 461

REASONS FOR DECISION

9 November 2001 Senior Member J.A. Kiosoglous MBE

The matter was brought before the Tribunal at the request of the respondent's solicitors for the Tribunal to determine whether or not there exists a jurisdictional problem and if so, that the Tribunal give consideration to this prior to the hearing of the substantive matters. The issue in question at this time is whether the claim to be considered at the substantive hearing relates to an injury for which no determination has been made pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The respondent claims that the applicant's section 24 permanent impairment claim for the conditions of "musculo-ligamentous strain (myofascial syndrome) of the neck, back and shoulders", and "depression and anxiety" has not had a section 14 determination made to enable it to be considered at the substantive hearing.
The applicant's solicitors indicated that compensation would be claimed for these injuries and that they do in fact form part of the claim having been part of a determination made on 28 February 2001 (T137) and a subsequent determination made on 28 March 2001 (T140). It was further submitted that the determination of 28 February 2001 is a determination specifically in relation to sections 24 and 27 of the Act.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T147). The applicant was represented by Mr W. Hawkins and the respondent was represented by Ms K. Kumar.
history of the application
On 1 May 1995 the applicant completed a form entitled "Claim for Rehabilitation and Compensation" (T3/5-9). The applicant described her injury on the claim form as "hand and wrist strain (R)" (T3/6). The applicant stated in the claim form that the injury happened on 6 February 1995 and that it was "due to repetitive keyboarding duties" (T3/7).
The respondent subsequently accepted liability for "musculo-ligamentous strain to right hand and wrist, aggravation of osteo-arthritis and bi-lateral carpal tunnel syndrome due to occupational…

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 Ryan and Comcare

Details

AGLC: Ryan and Comcare [2001] AATA 931
Case: [2001] AATA 931
Decision Date: 9 November 2001

CaseChat Overview and Summary

The applicant, Ryan, challenged a decision by Comcare, the Commonwealth’s workers' compensation insurer, which refused to pay compensation for permanent impairment arising from occupational injuries. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT). The central legal issues were whether the Tribunal could review the delegate's decision concerning specific injuries not subject to section 14 determination, and whether the delegate had correctly exercised their discretion in declining to award compensation for permanent impairment.

The AAT examined the scope of its jurisdiction under the Safety Rehabilitation and Compensation Act 1988. It noted that while section 14 determinations related to specific injuries, the review under section 24 concerned the overall assessment of permanent impairment. The Tribunal held that it could consider all injuries, including those not subject to a section 14 determination, in its review of the refusal of a claim for permanent impairment. This approach was consistent with previous decisions such as Denison-Smith and Comcare and Carson and Telstra Corporation. The AAT then assessed whether the delegate's decision was lawful, reasonable, and based on relevant considerations. It found that the delegate had failed to properly consider the evidence regarding the applicant's condition and had placed undue reliance on certain medical opinions. The Tribunal concluded that the delegate had exercised their discretion incorrectly by not awarding compensation for permanent impairment.

In light of the above, the AAT set aside the decision of the delegate and remitted the matter back to Comcare for reconsideration. The Tribunal directed Comcare to properly consider all evidence, including the applicant's claims regarding his permanent impairment, and to make a fresh determination in accordance with the law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 28 February 2001, a delegate of the respondent determined that the applicant was not entitled to compensation for permanent impairment and stated (inter alia) (T137/279-280):"…I refer to your claim for compensation in respect of, 'musculo-ligamentous strain to (R) hand and wrist, aggravation of osteo-arthritis and bi-lateral carpal tunnel syndrome due to occupational overuse injury'.I also refer to your claim for compensation for permanent injury dated 3 June 1999 in respect of 'musculo-ligamentous strain (myfascial syndrome) of the neck, back, shoulders, arms, hands, and wrists; bi-lateral carpal tunnel syndrome; aggravation of osteo-arthritis; depression and anxiety'.Having carefully considered this matter in light of the available medical evidence and the provisions of the Act, I hereby determine:…5. Liability does not exist for Comcare to pay any compensation under any section of the Act in respect of myofascial syndrome of the neck, back, shoulders, arms, hands, and wrists;6. Comcare has not previously accepted liability under section 14 of the Act, in respect of depression and anxiety, therefore Comcare is not liable to pay compensation under section 24 of the Act in respect of that condition.…" In the respondent's statement of reasons accompanying the above determination, the delegate stated (inter alia) (T137-…):"…In respect of myofascial syndrome of neck, back, shoulders, arms, hands and wristsLiability has not previously been accepted in respect of this condition. I must therefore be satisfied, that this condition arose out of the course of employment on 6 February 1995, or was materially contributed to by those duties, namely keyboard duties.…Although Dr Eaton has provided a diagnosis of myofascial pain syndrome effecting the neck, back, shoulders, arms, hands and wrist, he does not provide a discussion has to how he arrived at this diagnosis. In addition to this, the claimant's treating GP Dr Batagol provides no diagnosis of a myofascial pain syndrome in his medical certificate of 19 January 2001. In light of this, and given that Dr Whittaker has provided a detailed discussion including full details of the physical examination of the claimant, I am preferring the opinion of Dr Whittaker in which he opines there is no physical cause for the reported diffuse, severe and disabling pain, describing further that there is quite a dramatic component of the claimants symptomatology which is purely a reflection of embellishment.In light of the available medical evidence, and in accordance with the provisions of the Act, I am satisfied on the balance of probabilities that the claimant does [sic] currently suffer from myofascial pain syndrome, and therefore Comcare is not liable to pay any compensation in respect of this condition.In respect of depression and anxietyThe claimant also seeks lump sum compensation under section 24 of the Act in respect of depression and anxiety. As Comcare has never accepted liability for the condition 'depression and anxiety' under section 14 of the Act, the claimant cannot receive compensation under section 24 of the Act in relation to that condition."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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