Smith and Telstra Corporation Limited

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1205

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/34
  )          No A2002/35

GENERAL ADMINISTRATIVE DIVISION		)
Re		DENNIS SMITH

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date28 November 2003

PlaceCanberra

Decision

The decision under review in application A2002/34 is affirmed.  The applicant is entitled to no costs associated with this application.

The decision under review in application A2002/35 is varied to the extent that the applicant’s normal weekly earnings are to be assessed in accordance with only s 8(1) of the Safety, Rehabilitation and Compensation Act 1988 but with the factor “NH” recalculated to include an allowance for overtime in the average number of hours worked in each week.  The matter is remitted to the respondent for it to do the recalculation.  The applicant qualifies for costs associated with this application.

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Senior Member

Normal Weekly Earnings

6.      The issues relevant to the NWE appeal A2002/35 are:

(a)Should Mr Smith’s NWE contain an allowance for overtime?

(b)If the answer to (a) is yes, is the overtime accounted for by reference to s 8(1) or s 8(2) or both?

(c)If the answer to (a) is yes, has the NWE been correctly calculated?

(d)If the answer to (a) is no, Does s 8(10) of the Act apply to reduce the level of NWE?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS – PERMANENT IMPAIRMENT

(A)Has Mr Smith suffered an injury under the Act?

7. The evidence suggesting that Mr Smith may not have suffered an injury under the Act has two facets. First, there may have been a wilful non-disclosure under s 7(7) of the Act such as to deny compensation in respect of an otherwise compensable injury. Second, despite Telstra’s earlier decision to accept liability, doubt was cast on whether Mr Smith ever suffered the alleged frank injury with the drop-wire dispenser on 21 July 2000.

8.      There is significant evidence that Mr Smith was suffering in July 2000 from a pre-existing degenerative condition of the lumbar spine (Dr R Jackson, orthopaedic surgeon, 17 March 2001, T58).  Dr Jackson took a history, which he regarded as credible, that Mr Smith had had no past history of back symptoms before he lifted the drop-wire dispenser on 21 July 2000.  His opinion was (T58, T61, ex R2) that the onset of symptoms related to the incident on 21 July 2000.  Mr Smith was born on 1  March 1951 (T4), so he was 49 when the incident happened.

9.      In completing his compensation claim in July 2000 (T4) Mr Smith answered no to question 20, “Have you had a similar injury or illness before, work related or otherwise (even if you think it is unrelated to your current injury/illness)?”  The respondent’s representatives ascertained from Mr Smith’s general practitioners’ notes (ex A12) that there appeared to have been an incident involving a back injury on 9 July…