Turner and Comcare

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 612

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No W 200700037

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTINE TURNER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President S D Hotop
Dr P A Staer, Member

Date14 July 2008

PlacePerth

Decision

The Tribunal sets aside the reviewable decision of the respondent dated 5 January 2007 and, in substitution therefor, decides that on and from 1 June 2006 to the present date, and as at the present date:

· the respondent has been, and continues to be, liable, under ss 14(1) and 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), to pay compensation to the applicant in respect of the cost of reasonable medical treatment obtained by her in relation to the right foot injury which she sustained on 24 January 2003;

· the respondent has not been, and is not, liable, under ss 14(1) and 19 of the Act, to pay compensation to the applicant for incapacity for work.

…………….[S D Hotop]...........

Deputy President  

In a “Workers’ Compensation FIRST Medical Certificate” issued by Dr L Surman, Perth Medical Centre, on 24 January 2003, the applicant’s right foot injury was described as:

“hairline # base 5^th metatarsal”.

3. On 6 March 2003 Comcare (“the respondent”) accepted liability under s 14 of the Act to pay compensation to the applicant in respect of an injury described as:

“fracture of tarsal & metatarsal bones, closed (right)”.

The respondent thereafter paid compensation to the applicant in respect of that injury in accordance with the Act.

4. On 1 June 2006, however, a delegate of the respondent made a determination that, on and from 1 June 2006, compensation was not payable to the applicant under the Act in respect of her right foot injury.

5.       Following a request by the applicant for a reconsideration of the determination of 1 June 2006, a review officer of the respondent made a “reviewable decision”, dated 5 January 2007, affirming that determination.

6.       The applicant has applied to the Tribunal for review of the reviewable decision of 5 January 2007.

The Issue and the Tribunal’s Determination

7. The matter for the Tribunal’s determination is whether or not compensation, by way of medical expenses and incapacity payments, continues to be payable to the applicant under the Act in respect of her right foot injury.

8.       For the reasons which follow, the Tribunal has determined that compensation by way of medical expenses continues to be payable to the applicant, but that compensation by way of incapacity payments has not been payable to the applicant as from (and including) 1 June 2006 and is not presently payable to her.

The Legislation

9. The relevant provisions of the Act (as in force at all material times) are as follows:

“4 Interpretation

(1)         In this Act, unless the contrary intention appears:

…

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual…