Morris and Comcare

[2007] AATA 1622

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1622

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A 2006/115

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		YVONNE MORRIS

Applicant

And COMCARE

Respondent

DECISION

Tribunal

J.W. Constance, Senior Member

Dr M.D Miller AO, Member

Date2 August 2007

PlaceCanberra

Decision

1.        The decision of Comcare made 14 March 2006 affirming the determination that and Ms Morris is not entitled to receive compensation under section 24 of the Safety, Rehabilitation & Compensation Act 1988, in respect of the injury, being a ligamentous injury to the left knee with effusion of the left knee joint, suffered on 13 September 1971, is set aside.

2.        In substitution for the decision set aside it is decided that Ms Morris is entitled to receive compensation under section 24 of the Safety, Rehabilitation & Compensation Act 1988 in respect of the injury, being a ligamentous injury to the left knee with effusion of the left knee joint, suffered on 13 September 1971.

3.        The parties have liberty to apply within 14 days in relation to costs.  Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Morris.

……..............................................

J.W. Constance, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – left knee injuries prior to 1988 as result of 2 separate falls - application for permanent impairment - When did the permanent impairment occur – Whether entitled to receive lump sum under the 1971 Act – Consequent entitlement under current Act

Administrative Appeals Tribunal Act 1975 (Cth), s 34J

Compensation (Australian Government Employees) Act 1971 (Cth), s 39

Safety, Compensation and Rehabilitation Act 1988 (Cth), ss 24, 124

Johnston v Commonwealth (1982) 150 CLR 331

Brennan v Comcare (1994) 122 ALR 615

REASONS FOR DECISION

2 August 2007
J.W. Constance, Senior Member
Dr M.D Miller AO, Member

INTRODUCTION

1.        Ms Morris has had the misfortune to have suffered two substantial injuries to her left knee – the first in 1971, the second on 1977.  The first of these injuries occurred as Ms Morris was travelling to work as an employee of the Department of Veterans’ Affairs.  Subsequently the Commissioner for Employees’ Compensation accepted liability to compensate Ms Morris for treatment expenses and loss of earnings arising from this injury.

2.        In 2005 Ms Morris applied for compensation for a permanent impairment resulting from the injury.  Comcare refused this request.  Ms Morris is seeking a review of this decision.

3.        For the reasons which follow we have decided that the decision under review should be set aside and in substitution there should be a decision that Ms Morris is entitled to such compensation.

4. Pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) this matter has been determined by consideration of the documents without holding a hearing. The following documents have been taken into evidence:

·the documents filed pursuant to section 37 of the above Act (“T” documents) - exhibit 1;

·report of Dr Hopcroft  26 September 2005 -…