Abrahams v Telstra Corporation Ltd [1995] FCA 717

CATCHWORDS WORKER'S COMPENSATION - Commonwealth employees - effect of the transitional provisions of the Safety Rehabilitation and Compensation Act 1988 where liability to pay compensation arising under the former legislation is in issue - examination of Tribunal's reasons for decision - whether the Tribunal's use of the term "incapacity" in affirming the determination that the applicant's "injury" was not employment related led it into error - whether a former employee has a right to be assessed for capability to undertake a rehabilitation program. Safety Rehabilitation and Compensation Act 1988 ss36(1), 62, 124(1A), 127(2) and 132(2A) Compensation (Commonwealth Employees) Act 1971 Brennan v Comcare (1994) 50 FLR 555 Telstra Corporation Limited v Warner (1994) 20 AAR 259 Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 CORAL DOREEN ABRAHAMS v TELSTRA CORPORATION LIMITED No VG 349 of 1993 FINN J MELBOURNE 4 SEPTEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIA DISTRICT REGISTRY ) No. VG 349 of 1993 ) GENERAL DIVISION ) BETWEEN: CORAL DOREEN ABRAHAMS Applicant AND: TELSTRA CORPORATION LIMITED Respondent COURT: FINN J PLACE: MELBOURNE DATE: 4 SEPTEMBER 1995

MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The decision of the Tribunal be affirmed. 2. The appeal be dismissed with costs. Note: Settlement and entry or orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIA DISTRICT REGISTRY ) No. VG 349 of 1993 ) GENERAL DIVISION ) BETWEEN: CORAL DOREEN ABRAHAMS Applicant AND: TELSTRA CORPORATION LIMITED Respondent COURT: FINN J PLACE: MELBOURNE DATE: 4 SEPTEMBER 1995

REASONS FOR JUDGMENT The Amended Notice of Appeal in this matter would tend to suggest that the errors of the Administrative Appeals Tribunal (the "Tribunal") were many and varied. It lists 9 points of law and 13 grounds of appeal. Needless to say the appeal as argued in this Court betrayed a somewhat different appreciation of the Tribunal's decision. Only three matters were the subject of contention and each is of narrow compass. The principal of these concerned the manner in which the transitional provisions (Part X) of the Safety Rehabilitation and Compensation Act 1988 (the "1988 Act") affect the making of a determination that liability no longer exists to make compensation payments to a person claiming to be a "former employee" within the terms of Part X, that liability having previously been accepted under the Compensation (Commonwealth Employees) Act 1971 (the "1971 Act"). The other two matters related first to the sufficiency in law of the findings made by the Tribunal in respect of one of the two applications made to it; and secondly to whether, under the 1988 Act, a former employee has a right to be assessed for capability to undertake a rehabilitation program under s36(1) of that Act. Factual Background In 1976 the applicant, who was in the employment of the then Postmaster General's Department, sustained an injury to her left knee in circumstances unrelated to her employment. The pain and difficulties she experienced resulted a year later in her undergoing a patellectomy of the left knee. In 1981, while descending a flight of stairs in the course of her duties, the applicant suffered a fall which occasioned injury to her right knee. She then sought and obtained a determination under the 1971 Act that she was entitled to the payment of compensation for that injury which was diagnosed as traumatic synovitis of the right knee. Successive medical reports finding no significant improvement in the right knee condition, the applicant was retired on grounds of invalidity in 1982. She was in receipt of compensation payments until 27 May 1992 when the delegate of the then Australian and Overseas Telecommunications Corporation (A.O.T.C.) determined that, in respect of her right knee, Telecom was not liable to award compensation payments to her on and from 1 November 1991. That determination was affirmed by a reconsideration delegate of A.O.T.C. on 24 July 1992. That affirmation constitutes the first reviewable decision in this matter. Review of it by the Tribunal was sought on 11 August 1992. The basis of that reviewable decision was that no incapacity for work resulted from the knee injury from that date. There was medical evidence, backed by surveillance evidence (videos), to support this conclusion. In August 1992 the applicant served a new claim for compensation on A.O.T.C.. Its basis was that she had suffered an injury to her left knee caused by additional stress placed on that knee because of the injury to her right knee. On 12 October 1992 it was determined by a delegate of A.O.T.C., and on 6 November 1992 it was affirmed by a reconsideration delegate of A.O.T.C., that A.O.T.C. was not liable to pay compensation in respect of the left knee claim. The reasons given for the 12 October 1992 determination were that: "(a)The injury to the left knee did not arise out of or in the course of your employment with Telecom, nor was it contributed to in a material degree by your employment with Telecom. (b)Any injury you may have to your left knee does not incapacitate you for your former employment with Telecom."