Rogers and Comcare

[2005] AATA 854

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 854

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No W2003/396

GENERAL ADMINISTRATIVE DIVISION		)
Re		DIANNE BARBARA ROGERS

Applicant

And COMCARE

Respondent

DECISION

Tribunal

Deputy President S D Hotop

Dr D Weerasooriya, Member

Date2 September 2005

PlacePerth

Decision

The Tribunal sets aside the reviewable decision of the respondent dated 21 August 2003, and, in substitution therefor, decides that:

· the respondent has been liable from 4 July 2003, and is presently liable, pursuant to ss 14(1) and 124(1A) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to the applicant in respect of her injury, namely, right-sided cervicobrachial pain syndrome;

· the respondent has been liable from 4 July 2003, and is presently liable, to pay compensation to the applicant by way of incapacity payments in accordance with s 132A(2) of the SRC Act on the basis that:

· the amount per week that the applicant has been, and is, able to earn in suitable employment, for the purposes of subpara (i) of s 132A(2)(a) of the SRC Act, is nil; and

· the amount per week that the applicant has earned, and is earning, from any employment, for the purposes of subpara (ii) of s 132A (2) (a) of the SRC Act, is nil.

The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.

(sgd. S D Hotop)

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – applicant commenced employment with Australian Taxation Office as data processor in June 1982 – applicant sustained repetitive strain injury to right arm in January 1985 – applicant claimed compensation in February 1985 – respondent accepted liability to pay compensation in March 1985 – applicant retired on incapacity grounds in August 1986 – applicant in receipt of pension under superannuation scheme – applicant commenced rehabilitation programme in September 1989 – applicant discontinued rehabilitation programme on medical advice in October 1989 – applicant has not sought employment – applicant continues to suffer from work-related injury diagnosed as right sided cervicobrachial pain syndrome – applicant partially incapacitated for work as a result of injury – respondent continues to be liable to pay compensation to applicant in respect of injury – incapacity payments – suitable employment – applicant capable of engaging in work – applicant not able to earn in suitable employment – respondent continues to be liable to pay compensation by way of incapacity payments to applicant – reviewable decision set aside

Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 27 and s 29

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, s 14, s 19, s 123, s 123A, s 124, s 131 and s 132A

Commonwealth of Australia v Angel (1992) 34 FCR 313

Klinkert v Australian Postal Corporation (1992) 16 AAR 86

Martin v Australian Postal Corporation (2000) 32 AAR 199

Telstra Corporation Ltd v Warner