Ascic and Comcare (Compensation) - [2019] AATA 2476

Ascic and Comcare (Compensation) [2019] AATA 2476 (9 August 2019)
Division:GENERAL DIVISION
File Number: 2017/2886
Re:Marko Ascic
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:9 August 2019
Place:Perth

The Reviewable Decision of 16 March 2017 is affirmed.
..................................[sgd]......................................
CATCHWORDS
COMPENSATION – Workers’ Compensation – Commonwealth employee – whether Comcare liable to pay compensation – psychological injury – depression – acute paranoid reaction to perceived stress in employment – permanent impairment – whether impairment became permanent prior to 1 December 1988 – Compensation (Commonwealth Government Employees) Act 1971 did not provide for the payment of lump sum compensation for psychological conditions – whether there has been a new impairment suffered on or after 1 December 1988 – decision under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth) – ss 5(1), 26, 27(1), 27(4), 39(1), 39(4), 39(14), 40, 41, 42
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 14, 14(1), 24, 24(1), 24(2), 24(7), 25, 25(1), 124, 124(3), 124(4), 128
Social Security and Repatriation Legislation Amendment Act 1985 (Cth) – s 35
CASES
Comcare v Maida (2002) 36 AAR 69; [2002] FCA 1284
Department of Defence v West (1998) 85 FCR 491
Lees v Comcare (1999) 56 ALD 84
REASONS FOR DECISION
Senior Member Dr M Evans
9 August 2019

THE APPLICATION

On 18 May 2017 the Applicant lodged an application with the Tribunal (T2) to review a decision of a delegate of the Respondent dated 16 March 2017 (T22). This will be referred to as the Reviewable Decision.
The Reviewable Decision affirmed a determination of the Respondent dated
2 February 2017 (T17), which declined the Applicant’s claim for a lump sum compensation payment for permanent impairment for the accepted condition of “depression and acute paranoid reaction to perceived stress in employment” under s 124 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
The Applicant’s claim was declined on both 2 February 2017 and 16 March 2017 because the delegate of the Respondent found that the Applicant’s condition became permanent prior to 1 December 1988; that is, prior to the commencement of the SRC Act. The previously relevant Act, being the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) did not provide for a lump sum payment of compensation for psychological conditions.
ISSUES
The Tribunal generally agrees with the formulation of the issues in the Respondent’s Statement of Facts, Issues and Contentions (SFIC). The issues that require determination by the Tribunal are:
(a)Whether the Applicant has suffered an impairment, which is permanent, as a result of the accepted conditions; and, if so,
(b)
Whether the Applicant’s impairment and its permanency occurred before

1 December 1988 (the commencing date of the SRC Act) such that the provisions of the 1971 Act are applicable; or
(c)If the impairment occurred before 1 December 1988, whether there has been a qualitative and quantitative change in the impairment post 1 December 1988, giving…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ascic and Comcare (Compensation)

Details

AGLC: Ascic and Comcare (Compensation) [2019] AATA 2476
Case: [2019] AATA 2476
Decision Date: 9 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of Comcare, which affirmed a prior determination declining the Applicant's claim for a lump sum payment for permanent impairment. The Applicant sought compensation for depression and an acute paranoid reaction to perceived stress in their employment. Comcare's decision was based on the finding that the Applicant's condition became permanent before 1 December 1988, the commencement date of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The previously applicable legislation, the *Compensation (Commonwealth Government Employees) Act 1971* (Cth), did not provide for lump sum compensation for psychological conditions.

The Tribunal was required to determine whether the Applicant had suffered a permanent impairment as a result of their accepted conditions. If so, it needed to ascertain whether this impairment and its permanency occurred before 1 December 1988, making the 1971 Act applicable. Alternatively, if the impairment predated 1 December 1988, the Tribunal had to consider if there had been a qualitative and quantitative change in the impairment after that date, giving rise to a new impairment, and if such a new impairment would entitle the Applicant to compensation under sections 24, 25, and 124 of the SRC Act.

The Tribunal's reasoning focused on the timing of the permanency of the Applicant's impairment. The core of the dispute revolved around whether the condition had become permanent before the commencement of the SRC Act, thereby precluding a claim under that Act, or if a new, compensable impairment had arisen after that date. The Tribunal considered evidence presented by both parties, including oral testimony and various documentary exhibits, to assess the nature and timing of the Applicant's psychological condition and its progression.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 18 May 2017 the Applicant lodged an application with the Tribunal (T2) to review a decision of a delegate of the Respondent dated 16 March 2017 (T22). This will be referred to as the Reviewable Decision. The Reviewable Decision affirmed a determination of the Respondent dated 2 February 2017 (T17), which declined the Applicant’s claim for a lump sum compensation payment for permanent impairment for the accepted condition of “depression and acute paranoid reaction to perceived stress in employment” under s 124 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The Applicant’s claim was declined on both 2 February 2017 and 16 March 2017 because the delegate of the Respondent found that the Applicant’s condition became permanent prior to 1 December 1988; that is, prior to the commencement of the SRC Act. The previously relevant Act, being the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) did not provide for a lump sum payment of compensation for psychological conditions. ISSUES The Tribunal generally agrees with the formulation of the issues in the Respondent’s Statement of Facts, Issues and Contentions (SFIC). The issues that require determination by the Tribunal are:(a)Whether the Applicant has suffered an impairment, which is permanent, as a result of the accepted conditions; and, if so,(b)Whether the Applicant’s impairment and its permanency occurred before 1 December 1988 (the commencing date of the SRC Act) such that the provisions of the 1971 Act are applicable; or(c)If the impairment occurred before 1 December 1988, whether there has been a qualitative and quantitative change in the impairment post 1 December 1988, giving rise to a new impairment and if so, (d)Whether there is an entitlement to permanent impairment compensation by virtue of ss 24, 25 and 124 of the SRC Act. MATERIAL BEFORE THE TRIBUNAL The hearing took place on 28 March 2019. The Applicant appeared by telephone link and was self-represented. Ms Slack appeared as counsel for the Respondent, assisted by her instructing solicitor Mr Burgess, both of whom appeared in person. The Applicant gave oral evidence, and was cross-examined. Both the Applicant and Ms Slack made oral submissions. The Tribunal admitted the following documents into evidence at the hearing:(a)a document titled, “Applicant’s response to the Respondent’s SOFIC and Applicant’s Draft Statement of Facts, Issues and Contentions – Subject to Amendment”, dated 23 July 2018 (Exhibit A1);(b)unsigned and undated submissions from the Applicant, attached to an email dated 14 December 2017 (Exhibit A2);(c)submissions of the Applicant, contained in, and also attached to, an email dated 1 December 2017 (Exhibit A3);(d)a document titled, “Applicant’s response to Respondent’s SOFIC and Applicant’s Draft Statement of Issues, Facts and Contentions – Subject to Amendment”, undated but attached to an email dated 28 March 19 (Exhibit A4);(e)Comcare Claim Invoice Line Item List, dated 20 August 2018 (Exhibit A5);(f)Respondent’s s 37 documents (T Documents) numbered T1 to T26 and comprising 86 pages (Exhibit R1); (g)Respondent’s SFIC, dated 29 January 2018 (Exhibit R2); and(h)List of pharmaceutical items titled “2254/1 – Pharmacy items paid Medical Costs; post 1/12/1988” (Exhibit R3).

Ratio Decidendi

Legal Principle Established

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