Morgan and Comcare

[2004] AATA 152

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 152

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2000/410

GENERAL  ADMINISTRATIVE DIVISION		)
Re		GREGORY BRIAN MORGAN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr Murray Allen, Member

Date16 February 2004

PlacePerth

Decision The decision of the Tribunal is that:

1.       The reviewable decision made on 6 September 2000 by a delegate of the respondent is set aside.

2.        The Tribunal remits the matter to the respondent for the purpose of calculating the compensation payable to the applicant with a direction that the applicant has a degree of permanent impairment of the cardiovascular system under Table 1.3 of 30%.

3.        The respondent shall pay the costs of the proceedings incurred by the applicant to the determined in accordance with the Tribunal's General Practice Direction.

...............(sgd. M Allen)....................

Member 

CATCHWORDS

COMPENSATION – Commonwealth Government employees compensation – permanent impairment of the cardiovascular system – deep vein thrombosis – degree of permanent impairment under Table 1.3 of the Guide – consideration of meaning of “continuous treatment” – consideration of meaning of “periodic confinement to residence” – applicant does require continuous treatment including periodic confinement to residence – degree of impairment assessed as 30% - previous determination of permanent impairment was an interim determination and not a final determination – decision under review set aside - matter remitted to respondent to calculate compensation payable

Safety, Rehabilitation and Compensation Act, 1988 (C’wlth) ss 24, 25, 27, 28, 67, 72

Transport Accident Act 1986 (Vic)

Guide to the Assessment of the Degree of Permanent Impairment, Table 1.3

Thiele v Commonwealth (1990) 22 FCR 342
Comcare v Watson [1997] 149 FCA, (1997) 24 AAR516

Comcare v Mihajovic (2000) 97 FCR 304
Commonwealth v For (1986) 65 ALR 323
State Trustees (as guardian of Colin Dickinson) v Transport Accident Commission [2002] VSC 428. (2002) 19 VAR 462
Hurren v Hurren [1971] VR 459

REASONS FOR DECISION

16 February 2004 Mr Murray Allen, Member

1.      In these proceedings the applicant, Mr Gregory Morgan, seeks review of a decision made by a delegate of the respondent on 6 September 2000 to affirm a determination made on 17 February 2000 by which a claim for permanent impairment in respect of deep venous thrombosis (DVT) was denied.

2.      At the hearing of the matter, the applicant was represented by Ms Crawford of counsel and the respondent was represented by Mr Kelly of counsel.

3. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1-T292). The Tribunal received into evidence Exhibits A1 to A4 tendered on behalf of the applicant and R1 to R5 tendered on behalf of the respondent. Oral evidence was given at the hearing by the applicant and a number of medical practitioners.

4.      The background to the matter and the applicant’s medical history goes back to 1981 and the following is a summary of only a part of it.

5.      The applicant, who was aged 44 at the…