Agresta and Comcare

[2003] AATA 989

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 989

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No A2001/439
  )           & 440

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOSEPH AGRESTA

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr M J Sassella. Senior Member

Date2 October 2003

PlaceCanberra

Decision The tribunal affirms the decision under review.  The applicant qualifies for no costs associated with these applications.

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – Degeneration of lumbar spine – aggravation of condition as injury – whether permanent impairment exists – whether permanent impairment results from injury – whether current Act or 1971 Act applies

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“aggravation”, “ailment”, “disease”, “impairment”, “injury”, “permanent”), (8), 7(6), 14(1), 24(1), (2), (3), (4), (5), (6), (7), (7A), (9), 53, 54, 62, 123(“commending day”), 123A, 124(1), (1A), (2)(c), (3)(b)(iii), (4)(c)

Compensation (Commonwealth Government Employees) Act 1971 ss 5(1)(“injury”), 39(11), (12)

Bessey, Australian Postal Corporation v (2001) 32 AAR 508

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Lees v Comcare (1999) 56 ALD 84

Moon, Comcare v [2003] FCA 569

Oudyn, Australian Postal Corporation v [2003] FCA 318

Power v Comcare (1998) 56 ALD 141

REASONS FOR DECISION

2 October 2003 Mr M J Sassella. Senior Member

APPLICATIONS

1.       Mr Joseph Agresta (“the applicant”), born 16 December 1954 (T59), applied to the Administrative Appeals Tribunal (“the tribunal”) for review of a Comcare (“the respondent”) decision dated 11 May 2001 (T100) which was affirmed by Comcare on internal review on 31 August 2001 (T109).  The decision was to reject the applicant’s claim for permanent impairment of his back and leg.  The two applications have separated out compensation in the form of a lump sum for an impairment (no 439) and for non-economic loss from the permanent Impairment (no 440), however both are covered in the one decision and are related under the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”)[1] and success in relation to one application would result in success in the other.

[1] tribunal convened a hearing in this matter in Canberra on 1 November 2002, 4 November 2002 and 7 July 2003.  The following witnesses gave oral evidence: Mr Agresta (applicant), Dr R J Kitchin (orthopaedic surgeon), Mrs D G Agresta (applicant’s wife), Dr P Hilton (applicant’s treating doctor), Mr M A Hyland (applicant’s colleague), Mr K J Charlton (another of the applicant’s colleagues) and Dr W M Wearne (orthopaedic surgeon).

3.       The tribunal took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T110) provided by the respondent.

Exhibit A1 – Applicant’s statement of facts and contentions, 24 April 2002.

Exhibit A2 – Witness statement by applicant, 25 October 2002.

Exhibit A3 – Permanent impairment claim form, 3 December 2000.

Exhibit A4 – Report by Dr Hilton, 12 July 2000.

Exhibit A5 – Report by Dr Kitchin, 28 November 2000.

Exhibit A6 – Applicant’s medical benefits claim history, 20 October 2002.

Exhibit A7 – Report by Dr Hilton,…