Fagan and Comcare

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 533

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/245

GENERAL ADMINISTRATIVE DIVISION		)
Re		CAROL ANNE FAGAN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date7 June 2005

PlaceAdelaide

Decision The Tribunal sets aside the decision under review, and substitutes a decision that:
(1) Comcare is liable to pay compensation to the applicant from 28 April 1997, pursuant to s 19 of the Safety Rehabilitation and Compensation Act 1988;
(2) the amount per week that the applicant is able to earn in suitable employment is nil; and
(3) Comcare will pay the applicant’s costs and disbursements of this application, as agreed, or failing agreement to be taxed by the Deputy Registrar of the Tribunal.

(Signed)

WJF PURCELL
  (Senior Member)

The balance of the available specialist medical opinion is that, on the balance of probabilities, your client’s condition of “tenosynovitis” due to her employment in 1984 has not resulted in total incapacity for employment.

In my view Dr Chandran is in the best position to provide medical opinion in respect of your client’s condition of “tenosynovitis” as he was the treating specialist who performed the surgery and is the only doctor submitting medical evidence who treated her condition of “tenosynovitis” during the 1980’s.  I also note that she continued to work full-time until about 1997.  Having regard to Dr Chandran’s report, I am of the opinion that she no longer suffers from the condition of “tenosynovitis” suffered on 11 January 1984.

…”  [T16/105]

27.     On 28 June 2001 the applicant’s current solicitors wrote to Comcare requesting a reconsideration of the decision, and on 30 January 2002 forwarded a copy of a report from Dr Kwiatek, Rheumatologist, dated 27 August 2001, which was already before the Tribunal in relation to the applicant’s claim for permanent impairment, and non-economic loss pursuant to ss 24 and 27 of the Act.  A consent decision was made in these proceedings on 28 August 2002 in the following terms:

“:…

1.For the period up to, and immediately prior to, 1 December 1988, the applicant, as a result of the injury of tenosynovitis sustained on 11 January 1984, has a permanent impairment of both upper limbs.

2.The applicant is entitled to a payment of $7,041.60, under section 39 of the Compensation (Commonwealth Government Employees) Act 1971, for 10% permanent loss of each upper limb.

3.The applicant is entitled to a payment of $10,100, pursuant to section 27 of the 1988 Act, comprising $3,000 (representing 20% permanent impairment and $7,100 (representing the degree of non-economic loss).

4.The respondent is to pay the applicant’s costs and disbursements in accordance with the practice direction of the Tribunal.”  [T26 /128-129]

28.     On 9 May 2003 the Review Officer affirmed the determination of 9 June 2001, and in the course of his determination stated that he had reviewed the medical evidence, and said in his summary as follows:

“…

In view of the fact that following…