Gardner and Comcare

[2004] AATA 584

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 584

ADMINISTRATIVE APPEALS TRIBUNAL               № A2003/189

№ A2003/269

GENERAL  ADMINISTRATIVE DIVISION

Re:                ELIZABETH GARDNER

Applicant

And:COMCARE

Respondent

DECISION

Tribunal:       Mr W.G. McLean, Member

Date:             8 June 2004

Place:            Canberra

Decision:The Tribunal affirms the decisions under review made by the respondent on 4 June 2002 and 30 June 2003.

(sgd) W.M. McLean

Member

COMPENSATION — claims for compensation prior to and after 1 December 1988 – common law claim by applicant for damages in respect of accepted work‑related injuries which was commenced in November 1988, amended in June 1995 and settled in April 1997 – assessment of home help claim – effects of common law settlement upon future claims for compensation – decisions affirmed

Safety, Rehabilitation and Compensation Act1988 ss 7, 29, 48(4), 114

Compensation (Commonwealth Government Employees) Act 1971 s 99

McIntyre v Comcare (1998) 50 ALD 416

REASONS FOR DECISION

8 June 2004  Mr W.G. McLean, Member

1. The Tribunal considered an application from Ms Elizabeth Gillian Gardner ("the applicant") for the review of a decision (reference number A2003/189, previously W2002/416) made by Comcare ("the respondent") on 4 June 2002.  The respondent decided to approve the applicant’s request for home help at three hours per week for the next three months.

2. The Tribunal also considered an application from the applicant for the review of a decision (reference number A2003/269) made by the respondent on 30 June 2003.  The respondent decided on its own motion to cease the applicant’s compensation entitlements on and from 17 April 1997.

3. The Tribunal received into evidence the documents (the T‑documents) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.  Also received into evidence are exhibits A1 and A2 tendered by the applicant and exhibits R1 to R5 tendered by the respondent.

4. The applicant was represented by Mr H. Selby of counsel.  The respondent was represented by Mr B. Kelly of counsel.  Sworn oral evidence was given by the applicant and her husband Mr T. Gardner.  Sworn oral telephone evidence was given by telephone Ms Carolee Peace and Dr Alan Home for the respondent.

5. The applicant commenced employment with the Australian Protective Service ("the APS") on 16 January 1986 as a Protective Services Officer Grade 1.  On 27 July 1986 the applicant completed a Report of Injury claiming that she had suffered from bruised knees on 26 July 1986 when she slipped on the kitchen floor of the Immigration Detention Centre at Maribyrnong.  On 26 November 1986, the applicant lodged a claim for compensation in respect of right knee injury attributable to the 26 July 1986 incident.  The applicant elected to claim compensation under the Compensation (Commonwealth Government Employees) Act1971 ("the 1971 Act") in respect of the injury to her knees.

6. On 8 December 1986, Dr K. King, an orthopaedic surgeon, reported to the Department of Local Government and Administrative Services ("DLGAS") that the applicant had informed him that she slipped and fell heavily at work on 26 July 1986…