Bennett and Comcare - [2003] AATA 929

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 929
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/352
GENERAL ADMINISTRATIVE DIVISION

Re: ALAN JOHN BENNETT
Applicant

And: COMCARE
Respondent

DECISION
Tribunal:       M.J. Carstairs, Member
Date:             19 September 2003
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
Member

COMPENSATION – degree of permanent impairment – activities of daily living - whether applicant capable of performing activities of daily living – whether applicant entitled to further compensation
Safety, Rehabilitation and Compensation Act 1988 ss4, 24, 25(4), 28
Guide to the Assessment of the Degree of Permanent Impairment
Re O’Maley and Comcare (1997) 48 ALD 300
Re Purdon and Comcare (AAT 12429, 11 November 1997)
Re Mroz and Comcare (AAT 13344, 2 October 1998)
Re Griffiths and Comcare [2003] AATA 614
Comcare v Mihaljovic (2000) 97 FCR 304
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees
v Emery (1993) 32 ALD 147
Re Taylorand Comcare [2000] AATA 988
Re Laven and Comcare [2003] AATA 821

REASONS FOR DECISION

19 September 2003  M.J. Carstairs, Member
1.      This is an application by Alan John Bennett (the applicant) for review of a decision of the Military Compensation and Rehabilitation Service dated 1 March 2002. The decision affirmed a determination made on 26 September 2000 that denied liability to pay compensation to the applicant for permanent impairment for a depressive condition.
2.      At the hearing of this matter on 8 May 2003 and 28 July 2003, Mr D. De Marchi, solicitor, represented the applicant and Ms A. McMahon of counsel, instructed by Dibbs Barker Gosling, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T30), together with exhibits marked A1–A3 for the applicant and R1 for the respondent. The applicant and respondent lodged statements of facts and contentions on 3 February 2003 and 18 February 2003 respectively.
BACKGROUND
4.      The applicant was born on 10 August 1961. He is married with two children, aged seventeen and fifteen. The applicant served with the Australian Army (the army) from 25 June 1980 until he was discharged as medically unfit on 23 February 1985, after sustaining an injury to his right knee. After discharge the applicant underwent several knee operations. He then worked as a security guard from 1986 to 1990; and at Cadbury-Schweppes from 1990 to 1997 as a leading hand organising the packaging and palletising of goods. In 2000 he commenced studies leading to qualifications in librarianship, and now works 35 hours per week as a library technician.
5.      The applicant claimed compensation on 30 October 1982 for the knee injury. In 1983 the respondent accepted liability for a torn medial meniscus, and later, in 1987, the determination was extended to include anterior cruciate laxity and lateral instability right knee. On 23 April 1998 the applicant’s general practitioner certified that the applicant was suffering from depression. On 1 June 1998 the respondent accepted liability for major depression relating to…

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 Bennett and Comcare

Details

AGLC: Bennett and Comcare [2003] AATA 929
Case: [2003] AATA 929
Decision Date: 19 September 2003

CaseChat Overview and Summary

Alan John Bennett (the applicant) sought review of a decision of the Military Compensation and Rehabilitation Service, which denied liability to pay compensation for permanent impairment for a depressive condition. The applicant was born on 10 August 1961. He is married with two children, aged seventeen and fifteen. The applicant served with the Australian Army from 25 June 1980 until he was discharged as medically unfit on 23 February 1985, after sustaining an injury to his right knee. The applicant then worked as a security guard from 1986 to 1990; and at Cadbury-Schweppes from 1990 to 1997 as a leading hand organising the packaging and palletising of goods. In 2000 he commenced studies leading to qualifications in librarianship, and now works 35 hours per week as a library technician. The applicant claimed compensation on 30 October 1982 for the knee injury. On 23 April 1998 the applicant’s general practitioner certified that the applicant was suffering from depression. On 1 June 1998 the respondent accepted liability for major depression relating to the knee condition. On 16 December 1999 the applicant claimed compensation for permanent impairment in regard to the right knee and major depression. A decision was made on 6 April 2000 that the applicant had a 10% permanent whole person impairment of his right knee. No decision was made in regard to depression until 26 September 2000, after the applicant’s then solicitor made a request for assessment. The applicant did not seek review of the decision rejecting the claim for permanent psychiatric impairment until 30 August 2001, after which the decision was made on 1 March 2002 to affirm the original decision, primarily on the basis that the applicant’s depressive condition was temporary. The applicant sought review with this Tribunal on 10 April 2002.

The Tribunal considered whether the applicant was capable of performing activities of daily living and whether he required supervision and direction in activities of daily living. The Tribunal rejected the submission that the applicant required supervision and direction in activities of daily living. The Tribunal was satisfied that the applicant was capable of undertaking all the activities of daily living without supervision or assistance. The Tribunal found that the applicant exhibits minor disturbances in thinking. The Tribunal decided that the level of permanent impairment is 10% under Table 5.1. Applying Table 14.1, the Tribunal decided that the applicant has a whole person impairment of 19%, reached by combining the 10% impairment of the right knee and the 10% impairment for the depressive condition. The Tribunal affirmed the decision under review.

Orders