Thompson and Comcare

[2004] AATA 96

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 96

ADMINISTRATIVE APPEALS TRIBUNAL      )         N° V2002/506

GENERAL ADMINISTRATIVE  DIVISION		)         N° V2002/1316
Re		DAVID THOMPSON

Applicant

And COMCARE

Respondent

DECISION

Tribunal

Senior Member J.R. Dwyer

Miss E.A. Shanahan, Member

Date 4 February 2004

PlaceMelbourne

Decision

1.     In matter V2002/1316, the Tribunal sets aside the decision under review.  In substitution, the Tribunal varies the determination made on 9 October 2002 to provide:

(i)        Mr Thompson continues to suffer from discogenic pain, which is contributed to in a material way by his employment; and

(ii) Accordingly, he continues to be entitled to compensation for incapacity under s 14, and to compensation for medical treatment under s 16, of the Safety, Rehabilitation and Compensation Act 1988.

2. The Tribunal orders, under s 67(8) of the Safety, Rehabilitation and Compensation Act 1988, that the costs incurred by Mr Thompson in this proceeding are to be paid by Comcare.

3.      In matter V2002/506, the Tribunal affirms the decision under review.

[sgd] Mrs Joan Dwyer

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – low back discogenic pain – compensable back injury in 1992 – series of further incidents of back pain and injury in compensable and non-compensable circumstances – finding that continuing discogenic pain in October 2002 still contributed to by compensable injuries – low back discogenic pain a “disease” and “injury” as defined in s 4(1) of Safety, Rehabilitation and Compensation Act 1988 – continuing entitlement to compensation – decision set aside.

WORKERS’ COMPENSATION – entitlement to compensation for permanent impairment –impairment not permanent at time claim lodged – nor on evidence at time of hearing – appropriate to consider whether reviewable decision was correct at time it was made – decision affirmed.

WORKERS’ COMPENSATION – costs – one decision under review set aside – other decision under review affirmed – costs incurred in relation to decision set aside – order that applicant’s costs be paid by respondent.

Administrative Appeals Tribunal Act 1975 (Cth), s 37.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 4, 24, 27.

Re Spreadborough v Comcare (1997) 47 ALD 785

REASONS FOR DECISION

4 February 2004

Senior Member J.R. Dwyer

Miss E.A. Shanahan, Member

INTRODUCTION

1.      This hearing was a review of two reviewable decisions made by the Comcare under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

2. The first reviewable decision was made on 10 April 2002 (V2002/506, “the permanent impairment matter”). It affirmed a decision made on 16 January 2002 rejecting Mr Thompson’s claim for compensation for permanent impairment, under s 24 of the Act, resulting from a compensable back injury sustained on 6 April 2001.

3.      On 12 April 2001, Mr Thompson lodged a claim for compensation in respect of the incident on 6 April 2001.  On that form he described the incident as follows:

I was pouring boiling water into a cup of noodles when the witness (1) kicked me in the back of my left knee.

4.      On 10 May 2001,…