Silsby and Comcare

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1158

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2005/320

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GLENN SILSBY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr M.D. Miller AO, Member

Date21 March 2007

PlaceCanberra

Decision

The decision under review is set aside and in substitution thereof the Tribunal decides that Mr Silsby is entitled to compensation for incapacity and medical treatment expenses in relation to his previously accepted lower back injury from 10 March 2005 to the present.  The matter is remitted to Comcare to determine the extent of incapacity consistent with these reasons.

The parties have seven days in which to file submissions in relation to orders for costs.

..............................................

Mr S. Webb, Presiding Member

24.     On those findings this case is similar to that of Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797 [24] although that case was decided under the Commonwealth Government Employees Act 1971 (Cth).  In Musumeci’s case Deputy President Todd stated:

“…while inability to make a precise and incontrovertible diagnosis may well make more difficult a finding of a link between the employment and a claimed incapacity, that fact of itself does not militate against a finding for an employee under the legislation here applicable where the proofs are otherwise adequate.” (Emphasis added)[25]

[24]  See paragraphs 13 to 16.

[25] at paragraph 14

As in Musumeci’s case, we are satisfied that the proofs are otherwise adequate to establish the requisite link between Mr Silsby’s claimed incapacity and his previous employment despite the difficulty determining the precise mechanism or diagnosis of his pain.  Furthermore, in this case there is evidence that the ongoing pain symptoms may be related to physiological changes in Mr Silsby’s lumbar spine that occurred in May 1986.  Thus it may not be necessary to deal with his ongoing pain symptoms as a secondary injury under the disease provisions of the present Act.  We will return to this point below.  Thus, being mindful of Burchett J’s remarks in Australian Postal Corporation v Lucas (1991) 14 AAR 487,[26] we are satisfied that Mr Silsby’s case is one of those rare cases to which his Honour referred.

[26] At 494-495.

25.     In Comcare’s submission the injury must contribute in a material degree to the pain from which Mr Silsby suffers; Comcare v Sahu-Kahn [2007] FCA 15. However, Sahu-Kahn’s case concerned an injury that was a disease and Finn J’s conclusions were directed specifically to that issue.  Mr Silsby’s case concerns a frank physical injury and subsequent symptomatology.  Applying Canute v Comcare [2005] FCAFC 262 [27] if Mr Silsby’s symptomatology subsequent to injury is separate and distinct from his injury[28] and is a disease that was caused or aggravated by the frank injury then Finn J’s conclusions in Sahu-Kahn’s case[29] have application here.  However, it is far from clear on the available evidence that Mr Silsby’s ongoing pain symptoms are properly characterised as a disease, as…