Silver and Comcare

[2004] AATA 34

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 34

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2001/449

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GRAHAM GEORGE SILVER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date16 January 2004

PlaceAdelaide

Decision The Tribunal:
1. Sets aside the decision under review, and remits the matter to the respondent for reconsideration in accordance with the direction that the respondent deal with the applicant on the basis that he suffered a loss of vision, compensable under s 39 of the Compensation (Commonwealth Government Employees) Act 1971, and equivalent to 5 percent; that his impairment was permanent as at 1 December 1988; and that his whole person impairment attributable to the post 1 December 1988 permanent impairment, and pursuant to the Safety Rehabilitation and Compensation Act 1988, is 30 percent.
2.  Orders that the respondent pay the costs of the applicant of these proceedings, such costs in the absence of agreement to be taxed by the Registrar or a District Registrar of the Tribunal.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

COMPENSATION – permanent impairment due to loss of vision resulting from incident that occurred in the course of his service – impairment permanent as at 1 December 1988 –compensation for permanent impairment correctly assessed – decision set aside

Compensation (Commonwealth Government Employees) Act 1971 s 39

Safety Rehabilitation and Compensation Act 1988 ss 24, 27, 45

Comcare Australia (Department of Defence) v Maida [2002] FCA 1284

REASONS FOR DECISION

16 January 2004   Senior Member WJF Purcell           

1. This is an application for review of a decision of the respondent (Comcare) of 23 November 2001, which affirmed that part of a determination of 10 July 2001, which decided that the applicant suffered a loss of vision in his left eye of 75 percent, and a 20 percent whole person impairment; and varied that part of the determination which decided that the amount of compensation payable was $11,621.73; and determined an amount of $25,565.73 was payable, consisting of $17,994.00 under the provisions of s 39 of the Compensation (Commonwealth Government Employees) Act1971 (the 1971 Act), and $7,571.73 under the provisions of s 27 of the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act).

2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and supplementary documents, together with exhibits tendered by the parties.  The applicant, who was represented by Mr McRae of Counsel, gave oral evidence, and called Dr M Lane, Ophthalmic Physician and Surgeon, as a witness.  Mr Soulio was Counsel for Comcare, which called Dr J Crompton, Ophthalmic Surgeon, as a witness.

3.      The applicant, who is 55 years of age, was born in Adelaide and attended Woodville High School.  He enlisted in the Australian Regular Army (the Army) at the age of 17, on 28 September 1965, and served for 20 years, until his discharge on 2 October 1985.  He…