Administrative Appeals Tribunal Act 1975 (Cth) s.44 Compensation (Commonwealth Government Employees) Act

Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229

AND 2 AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent

a . newt cipore cr aegrec Ost . m~ 4197 as -ace DOTLDE WALES DISTRICT REST } NO. G.137 st 1935 ; aewogye srytessy , SS ah meVer ios GN AP =a GT AIT VT ors ATT IT FZ Tara GN APPEAL FRoM THE ASMINIS SRA - APPEALS

1. The appeal be ailowed with costs. , peal , ,
2. The decision under ¥ewrrew be set aside and the matter remitted to the Acministrative Appeals Tribunal to De reheard and

lement and entry of orders is dealt with in Order 36 rai Court Rules.

FEDERAL COURD OF Ag wo aH, FEDERAL COURD OF AUSTRALIA

This is an appeal from a decision of the Administrative Appeals Tribunal given on 6 June 1985. The decision in substance affirmed a determination of a deisgate of the Commissioner for

Empioyees' Compensation, though it will be necessary for me to

lane apyellant, "irs FLA. Justice, was Zorn on 17 GE Go the date of the decision of the Tribunal. in about 1973, she jceincd

cyplst and continued in 'thet employment for e:ght anc a nal

yeacs. For most of the veriocé of her employmenc, she cacried cut other C€ucvies in addition to typing. On 4 Septerser 1981, Miss

Gecshbacn suffered injury to hey back while sne was stancing on a

nacdes reading meters. The nature of the injury i5 not entirely

Cciear, though one of the treating doctors spoxe oF a lumbar disc iesion. The Tribunal merely Found,

"34. Whether or not the incident on a iacder on September 1981 caused the applicant's 'lumbar Ci lesion', org merely aggravated a pre-eExXistin conéition (compare Dr. Meacnhin''s view with th Dr. Envlich), 10 iS ciear on the evicence &

the Tribunal that, contrary to the view personnel officer, Parkes (=.A. Ren applicant's position was 'cover loaded', ana Tt in combination, the tasxs associated with performing the maii and fi i with her position as a typ2

applicant to develop a dDack concgition from which she was suitfering on the date of her resignation (21 April 1982) and from which she is still suffering. ...".

On 21 April 1982, Miss Gersbach resigned from ner employment. The Tribunal explained this resignation as rolicows :

"20. The applicant returned to work, but found that she was in extreme pain, particularly in ner mail

and filing duties. She said that she was Torced to sell her nouse, because she could no longer manage the gardening. She received some relier

for periods of up to 3 weeks, when Dre. Meacnin gave her injections at the base of tne spine. Finally, on 21 April 1982, she resigned from her employment. In pacticular, she found that she could no longér carry on the filing and nail duties. She continued with the same kind of work right up until the day she resigned.

23. The appliicanc agre gios oe ceesignation in Avril 1382, she was abie to ca wut nec cyping cucres, alzert with ditliculty. secausé she was never suc of pain the wholes tire'. The axplicanc agceed that she accented tne duties that she was given, and was edurvoca. on wnethes she had ever asxed Foc lignt Guties. she said that she spoke to Miss Renshaw about obtaining lignt duties, and that sne unders teoc that the coctors' csporcvs would cover tat. She agreed that she haa mace no forrwal application for lignt duties. Basically, che applicant's positicn was that the veopie in personne. cctid see tne pain chat sne was in, and she assumec that it was appropriate to leave it to them to attend to suca matters as allocation of Light duties."

ermination of 13 April 1984, which gave compensation

Paragraph 1 of the detercminaticn of i3 April 1334 cease :

"(1) In accordance with the provisions of section 45(2A) of the said Act, she is entitled to the payment of compensation at the weekly cate egquivaient to full sick pay, including any relevant salary allowances, in. accordance with prescrided conditions relating to the payments of such allowances Guring periods of sick leave from 30.11.81 to 19.11.81, i hour on 7.12.81, 50 minutes on 9.12.81, 5.2.82 one day, 15.2.82 to 21.2.82, 3 hours 51 minutes on 3.3.82."

On 10 February 1984, a delegate of che Commissioner

Employees' Compensation had made the following determination

"1. On the evidence before me, including specialist medical opinion, i find that on and from 22 Aprii 1982 the personal injury sustained by the said Patricia Anita Gersbach on 4 September 1981 has not prevented her Icom earning in some suitable employment of business a weekiy amount wnich is not less than her average weekly earnings before that injury, calculated in accordance with section 25 of the said Act.

Liability fer the injury was accepted Dy a Ceterminaticn

gate of the Commissioner foc Employees' Compensaticn cated

of che Corpensation (Commo cvern Zuployvees) Act i37i, and ZS cetersninations eviousliy made QtTTEL = meres sere TAAL Le HSCS an Pelec c Commissisn is not i le to vay conpe cocaance with sec nm 45 Ge SséCTi said Act on ana fr 22 Ap¢cii

fh ri) a ty ty

k 4 1] fu cr (2 Q ra tt ci & @ in cl i fi ct s! ry Ww CcA o ty ty

"The decision of the Tribunal is cto c termination under

paragraph (i) of the de rev , insofar as it relates to the pericc on and From 22 the dat rt

One of the grounds of appeal is that the Tribunai made no

April 1984, though the terms of the determination were not set out therein, and that the decision appears to nave been Grawm with that determination in mind. The Tribunal appears to have assumed that paragraph (1) of the determination of 13 Apri i984 impliedly refused compensation with respect to the period on and from 22 April 1982, a pesiod which that paragraph did not mention. It was, however, the determination or 10 February 1984 which achieved that and, having regard to the substance of the

Tribunal's decision, the Tribunal ought to have affirmed the

This is a matter of technicality which couid be corrected by an ordec of the Court if that were the only issue. It is not

a matter of substance. However, I take this opportunity to

fu cd ef oO is ta fue [a] a=vn- -4- ee 3 WlOoOoN 1. .aW, - Wiad GLiuw ene ADPSa. Wilt. costs. 2.8 ceclsion

preceding pages are a irue copy of the reasons for judgment herein of The Honour- able Mr, Justice J.D, DavieS