Trajanoski and Comcare

[2003] AATA 385

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 385

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No A2002/50

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VELICE TRAJANOSKI

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr G A Mowbray

Date6 March 2003

PlaceCanberra

Decision

For reasons given orally the Tribunal sets aside the decision under review dated 16 January 2002 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that:

(a)     Mr Trajanoski’s compensable condition of an aggravation of his cervical spondylosis has not ceased;

(b) Mr Trajanoski continues to be entitled to incapacity payments pursuant to section 21 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”);

(c)     Mr Trajanoski has not been able to earn any amount in suitable employment;

(d) Mr Trajanoski continues to be entitled to compensation for reasonable medical treatment pursuant to section 16 of the Act;

(e)     Consultations with Mr Trajanoski’s general practitioner are reasonable medical treatment;

(f)      Additional evidence is required to establish whether chiropractic treatment, massage treatment and gym expenses are reasonable medical treatment.

The Tribunal orders the Respondent to pay the Applicant’s costs as agreed or taxed.

....................(sgd)..................

Member 

CATCHWORDS

COMPENSATION – neck pain and cervical spondylosis – whether underlying condition aggravated – whether aggravation has ceased – whether employment made material contribution to aggravation – whether continues to be partially incapacitated – ability to earn in suitable employment – entitlement to medical expenses

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19, 21

Re Carson and Telstra Corporation (2001) 33 AAR 351

Lees v Comcare (1999) 29 AAR 350; 56 ALD 84

Comcare v Nichols [1999] FCA 209

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Commonwealth v Borg  (1991) 20 AAR 299n

Casarotto v Australian Postal Commission (1989) 86 ALR 399; 17 ALD 321; 10 AAR 191

Tippett v Australian Postal Corporation (1998) 27 AAR 40

Australian Postal Corporation v Bessey (2001) 32 AAR 508

Martin v Australian Postal Corporation (1999) 29 AAR 420

Commonwealth v Beattie (1981) 35 ALR 369

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535

REASONS FOR DECISION

29 April 2003 Mr G A Mowbray          

History of the Application

1.       On 11 February 1997 Velice Trajanoski made a claim for rehabilitation and compensation for "neck and shoulder pain" with the date of injury given as 3 February 1997.  The pain occurred when mopping, stripping and polishing for long periods.  Both Mr Trajanoski and his doctor believed the injury was the result of prolonged and repetitive use of the same muscles.  On 5 June 1997 Comcare advised that it had accepted the claim for "C5/6 disc prolapse".

2.       On 22 April 1999 Mr Trajanoski completed a compensation claim for permanent injury.  On 23 June 1999 Comcare determined that compensation for permanent impairment was not payable and the applicant's solicitors requested a reconsideration on…