Morton and Comcare

[2005] AATA 318

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 318

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/117

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUSAN MORTON

Applicant

And   COMCARE

Respondent

DECISION

Tribunal

  Mr J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

Date  8 April 2005

Place  Canberra

Decision

1.        The reviewable decision made 17 March 2004 is set aside.

2.        In substitution the Tribunal decides:

1)      that in the period between 1995 and 2003 inclusive Ms Morton suffered an injury resulting in permanent impairment within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth);

2)      that the degree of permanent impairment of Ms Morton resulting from the injury is 24%;

3)      that Comcare is liable to pay compensation to Ms Morton in respect of the injury pursuant to section 24 of the Act;

4)      Comcare is liable to pay additional compensation to Ms Morton in respect of the injury pursuant to section 27 of the Act in accordance with the scores determined by the Tribunal.

3.        Each party shall have liberty to apply for an order in relation to costs if necessary.

..............................................

Senior Member

CATCHWORDS

COMPENSATION – permanent impairment – pain and restricted movement in cervical spine – whether pain due to physiological pathology or psychology – whether pain permanent – assessment of whole person impairment and non-economic loss – decision set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 24, 27

Commonwealth v Beattie (1981) 35 ALR 369

Tippett v Australian Postal Corporation (1998) 27 AAR 40

Halliday v Comcare Australia (1994) 19 AAR 431

Comcare v Kay (1997) 26 AAR 124

Comcare v Fiedler (2001) 115 FCR 328

Whittaker v Comcare (1998) FCR 532

REASONS FOR DECISION

8 April 2005	Mr J.W. Constance, Senior Member
Dr M.D. Miller AO, Member

1.        In 1996, as an employee of the Department of the Senate, Ms Morton suffered an injury to her right arm.  Initially Comcare accepted liability for “severe tendonitis of the right forearm.”  This was later extended to liability for “a sequelae injury of ‘adjustment disorder with depression’ that has been sustained as a result of the accepted physical injury”.

2.        In 2003 Ms Morton made a claim for permanent impairment for “Continual pain in neck & both arms reduced strength in both arms depression, anxiety, teariness restricted mobility of neck”.[1]  This claim was rejected.

[1] Exhibit A7, T17.

3.        Ms Morton seeks a review of the decision of Comcare affirming the decision to reject her claim.  It should be noted that at the hearing of the application for review Ms Morton did not seek to claim any permanent impairment arising from a psychiatric condition.

4.        We have decided that Ms Morton has suffered permanent impairment resulting from a compensable injury and that she is entitled to compensation for that impairment and for the non-economic loss suffered as a result.

5.        For the reasons we now set out the decision under review will be set aside and a decision will be made in…