Gabelish and Comcare

DECISION AND REASONS FOR DECISION [2000] AATA 694

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   W1998/127

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      ANTHONY JOHN GABELISH    
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Associate Professor S D Hotop, Senior Member Dr D Weerasooriya, Member     

Date11 August 2000

PlacePerth

Decision      The decision under review is affirmed.             
  ...........(sgd S D Hotop)...........
  Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant served in Royal Australian Navy from 1949 to 1959 – applicant suffered lacerations to left knee and left middle finger in motor cycle accident in January 1952 – applicant was hospitalised and treated for injuries – applicant's injuries asymptomatic until 1987 – applicant's left knee became symptomatic in 1987 and left middle finger became symptomatic in early to mid1990s – applicant claimed compensation in May 1996 for condition described as osteoarthrosis in the left knee and left middle finger – applicant's present left knee condition diagnosed as progressive degenerative osteoarthritis – applicant's present left middle finger condition diagnosed as early or minor arthritic changes in proximal interphalangeal joint – whether respondent liable to pay compensation to applicant in respect of each condition – whether each condition related to applicant's employment in Royal Australian Navy from 1949 to 1959.
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 14(1), 123A, 124
Compensation (Commonwealth Government Employees) Act 1971, ss 5(1), 27(1), 29
Comcare Australia v McGuire (1996) 68 FCR 329

REASONS FOR DECISION

11 August 2000    Associate Professor S D Hotop, Senior Member Dr D Weerasooriya, Member   

1. This is an application by Anthony John Gabelish ("the applicant") for review of a reviewable decision, dated 6 February 1998, affirming a determination, dated 27 March 1997, that the Department of Defence is not liable to pay compensation to the applicant under the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act"), in respect of osteoarthrosis of the left knee and left middle finger.

2. At the hearing the applicant was represented by Mr P Marsh of counsel.  Comcare (which is the appropriate respondent in this matter: see Comcare Australia v McGuire (1996) 68 FCR 329) was represented by Mr R Nash of counsel. The Tribunal had before it the documents ("T documents") lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered in evidence by the parties:

• Statement of Evidence of the applicant, dated 6 August 1998 (A1);

• letter from Mr P Morris, Delegate of the Repatriation Commission, to the applicant, dated 19 March 1996, regarding the applicant's claim for a disability pension (A2);

• letter from the Naval Officer in Charge, Fremantle to the Secretary, Naval Board, Melbourne, dated 21 March 1952 (A3);

• letter from Lieutenant Commander Gibson, HMAS Parkes, Fremantle to the Naval Officer in Charge, Fremantle (undated) (A4);

• Statement by Stoker I Watson, dated 28 January 1952 (A5);

• Report on Motor Cycle Accident by the applicant, dated 5 March 1952 (A6);

• medical report of Mr M C Tiller, dated 16 February 1999 (A7);

• medical report…