Re Ivan John Milne and the Commonwealth of Australia [1982] AATA 214 (20 October 1982)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: IVAN JOHN MILNE
And: THE COMMONWEALTH OF AUSTRALIA
No. V81/324
Compensation

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
Mr J.O. Ballard (Senior Member)

CATCHWORDS

Compensation - arm injury - traumatic anxiety depressive neurotic reaction - totally incapacitated for work

Compensation (Commonwealth Government Employees) Act 1971, ss. 39, 45

Commonwealth Functions (Statutes Review) Act 1981 s. 151

HEARING

CANBERRA
20:10:1982

ORDER

(a) set aside the determinations of delegates of the Commissioner for Employees' Compensation of 21 May 1980 and 28 June 1982 in this matter; and the same are so set aside;

(b) remit the matter to the Commissioner with the directions that as a result of the personal injury sustained on 21 November 1977 the applicant was totally incapacitated when he did not work thereafter in consequence of the injury; he is entitled to compensation for such incapacity pursuant to section 45 of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") and to medical expenses pursuant to section 37 thereof and the same is so remitted with these directions;

(c) order the respondent to pay the applicant's costs in these proceedings in accordance with the appropriate Scale in the County Court of Victoria; liberty is given to apply as to costs in the absence of agreement;

(d) give liberty to apply generally.

DECISION

This is an application for review of a determination of a delegate of the Commissioner for Employees' Compensation ("the Commissioner") of 21 May 1980 under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). The matter was instituted as a reference for reconsideration by a Compensation Tribunal and was transferred to the Administrative Appeals Tribunal by virtue of s. 151 of the Commonwealth Functions (Statutes Review) Act 1981.

2. When the matter came on for review counsel for the applicant referred to the statement of reasons which reads:-

"The determination of 21 May 1980 was made on the basis of a report provided by Commonwealth Medical Officer, Dr L. McInnes, following his examination of the claimant on 18 March 1980. Dr McInnes expressed the opinion that the condition of Mr Milne's left arm was permanent and static and that there was 5% loss of efficient use of the left arm at or above the elbow as a result of the personal injury of 21 November 1977."

It was argued that these reasons indicated that the determination was in error on its face. The crucial questions put to Dr McInnes were wrong. They were -

"5. Having regard to the disability arising from the incident of 21 Nov 1977, is the employee totally and permanently unfit for employment.

6. If not, is it likely that the employee will become totally incapacitated for the work as a result of the disability arising from the incident on 21 Nov 1977."

and the wrong questions were compounded by the answers given which were -

"5. He is not totally and permanently unfit for employment.

6. He is not likely to become permanently incapacitated for work as a result of the injury."

It was accepted that the applicant had worked intermittently since the accident but when he was not working his incapacity was total. It was argued the applicant was entitled to compensation for total incapacity under s. 45 of the Act and that the additional requirement that the incapacity be permanent was without foundation.

3. However on 28 June 1982 a further determination was issued awarding compensation additionally for traumatic anxiety depressive neurotic reaction; this had also increased the percentage loss of efficient use of the left arm at or above the elbow from 5% to 10%. It was argued for the applicant that by this time it must have become apparent that the applicant was likely to become totally incapacitated for work; it was therefore contrary to sub-section 39(14) of the Act for compensation to be awarded for a loss under s. 39 of the Act at that stage. Counsel asked that both determinations be set aside and the matter remitted to the Commissioner with appropriate directions.

4. Counsel for the respondent did not oppose the application. I also agree with the course proposed.

5. Accordingly the determinations in this matter will be set aside and the matter remitted to the Commissioner with appropriate directions.

6. Costs will be awarded on the appropriate Scale in the County Court of Victoria.