DECISIONS IN WEEK ENDING 1 OCTOBER 2010
Keller and Comcare [2010] AATA 751 (30 September 2010) Sydney
The issue before the Tribunal to consider in respect of this matter, related to whether the Applicant was entitled to the payment of lump sum compensation for permanent impairment and non-economic loss in accordance with sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”).
The Applicant had a previously accepted head injury condition which was sustained in 1983. As such, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”) had applied, as the injury was sustained before the enaction of the 1988 Act.
In such circumstances, section 124 of the 1988 Act, provides for situations in which permanent impairment compensation is payable where an entitlement to receive such compensation existed under the 1971 Act. Therefore, the Tribunal Member had to decide:
(a) when the Applicant’s impairment occurred; and
(b) whether he was entitled to lump sum compensation under the 1971 Act as at that date.
The Tribunal Member considered that Applicant’s accepted condition reached permanency in 1985, based particularly upon the opinion of Dr Gabriel Kolos. As such, the 1971 Act applied. However, it was concluded that section 39(14) of the 1971 Act precluded the recovery of permanent impairment compensation as compensation was not payable for the claimed body parts under the statutory regime at the time.
As such, the Applicant had no entitlement to compensation for permanent impairment or non-economic loss under that Act.
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