Smith and Telstra Corporation

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1267

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1660   

GENERAL ADMINISTRATIVE DIVISION		)
Re		JENNIFER SMITH

Applicant

And   TELSTRA CORPORATION

Respondent

DECISION

Tribunal Dr MEC Thorpe, Member

Date20 December 2005  

PlaceSydney

Decision The decision under review is affirmed.

…………………….  

Dr MEC Thorpe   Member  

(2.)    The said Jennifer Smith has no entitlement pursuant to Section 24 and 27 of the SRC Act.”

2.      Liability was accepted for ongoing incapacity and medical expenses on and from 8 July 1999 due to “Repetitive Strain Injury Left and Right Arm” occasioned during the course of her employment with Telstra. The date of injury was 19 February 1999. A further determination dated 27 September 2000 indicated that Telstra was no longer liable to pay for ongoing incapacity or medical expenses. An application to the Administrative Appeals Tribunal (‘the AAT”) appealing this application was settled by a consent determination dated 9 November 2000.

ISSUES

3.      My task is to determine if there is any entitlement under section 24 and section 27 of the Safety Rehabilitation and Compensation Act (“the SRC Act”) for permanent impairment due to “repetitive strain injury to both arms”. To qualify for permanent impairment she requires at least 10% impairment under Table 9.4 in the Guide to the assessment of the degree of permanent impairment which provides as follows:

“i.e. Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity.”

4.      Before proceeding with the permanent impairment application I am required to consider the effects of the previous consent determination of 27 September 2000. I do not consider there to be an estoppel which can be transferred from the 2000 consent determination into the present proceedings. She had taken a voluntary redundancy at the end of 2000, following termination of her compensation liability. In order to receive the voluntary redundancy Ms Smith needed to terminate any existing compensation liability. She accepted the voluntary redundancy to care for her husband who had developed mesothelioma, which was terminal.

5.      The consent determination, which concerns incapacity payments and medical expenses in relation to repetitive strain injury does not prevent an application being made for a permanent impairment payment. I agree with Mr Grey that that to the extent that the original determination which was affirmed states that "the effect of any such injury has now ceased", it can only have effect as at the date of the decision and cannot bind the decision maker or the Tribunal in the future Re Liu and Comcare  (2004) AATA 617. The Tribunal is not prepared to exercise its powers under section 33 of the Administrative Appeals Tribunal Act 1975 to decline to revisit the question whether the effects of the Applicant's accepted condition has resolved as at 27 November 2000.

Background

6.      She commenced work with Telecom Australia in 1979, initially as a typist. She resigned in 1983 to have a family. In 1988 she recommenced work with Telstra as a…