Carlisle and Comcare (Compensation) - [2019] AATA 4058

Carlisle and Comcare (Compensation) [2019] AATA 4058 (3 October 2019)
Division:GENERAL DIVISION
File Number: 2017/1893
Re:Kevin Carlisle
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member Richard West
Date:3 October 2019
Place:Melbourne

The Tribunal affirms the decision of the Senior Review Officer of the Respondent dated 15 February 2017 to affirm the determination of the Comcare Delegate dated 3 November 2016, to deny liability to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the Applicant’s fibromyalgia.
.....[sgd]............................................
Member Richard West
Catchwords
COMPENSATION – fibromyalgia – compensation for permanent impairment and non-economic loss – Comcare Guide does not apply to fibromyalgia – AMA5 – fibromyalgia is a chronic pain condition for the purpose of Principle 12 – exclusion of fibromyalgia from assessment under AMA5 – assessment of degree of impairment under ss 24(5) not possible – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Adams v Tax Agents’ Board, Re (1977) 12 ALR 239
Brice v Comcare, Re [2007] AATA 1476
Broadhurst v Comcare (2010) 189 FCR 561
Comcare v Broadhurst (2011) 192 FCR 497
Comcare v Wuth, Re (2018) 159 ALD 1
Costello and Secretary, Department of Transport, Re (1979) 2 ALD 934
Riley and Comcare, Re (2011) 124 ALD 225
Roxas and Comcare, Re [2012] AATA 747
Secondary Materials
Linda Cocchiarella and Gunnar B.J. Andersson, American Medical Association Guides to the Evaluation of Permanent Impairment (5^th ed, 2001)
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1, 2011)
REASONS FOR DECISION
Member Richard West
3 October 2019
BACKGROUND

The Applicant was born in September 1959.
In July 2000 he joined the Australian Protective Service, later the Australian Federal Police (AFP).
In September 2000 he was deployed to a Counter Terrorism First Response role and suffered post-traumatic stress disorder (PTSD) following a deployment to the Woomera Detention Centre, for which he took unpaid leave. He returned to duty with the AFP in February 2002.
On 14 May 2007 while on duty with the AFP, the Applicant twisted his right knee as he alighted from his patrol vehicle. He subsequently suffered a secondary psychological condition.
On 10 August 2007 the Respondent accepted liability for internal derangement of knee (right)[1].
[1] T5.
In April 2009 Dr Breedon opined that the Applicant had had a poor outcome from right knee arthroscopy surgery and had residual knee pain and stiffness causing stiff antalgic gait and abnormal posture/stance. He opined that the Applicant’s back pain may have been caused by strain to his lower back from his persistent abnormal antalgic gait and stance, both of which were directly related to his chronic knee pain.
On 24 April 2009 the Respondent accepted liability for lumbar sprain (unspecified) as secondary to the compensable knee condition[2].
[2] ST10.
On 1 September 2011, the Respondent accepted liability for adjustment…

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 Carlisle and Comcare (Compensation)

Details

AGLC: Carlisle and Comcare (Compensation) [2019] AATA 4058
Case: [2019] AATA 4058
Decision Date: 3 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the claim of Mr. Carlisle for compensation from Comcare in respect of permanent impairment and non-economic loss arising from his condition of fibromyalgia.

The central legal issue before the Tribunal was whether Mr. Carlisle's fibromyalgia could be assessed for the purposes of permanent impairment compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act), particularly in light of the Comcare Guide and the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA5). The Tribunal had to determine if fibromyalgia was a chronic pain condition for the purposes of Principle 12 of the Comcare Guide and, if so, whether its exclusion from assessment under AMA5 precluded the assessment of impairment under section 24(5) of the SRC Act.

The Tribunal reasoned that the Comcare Guide, which incorporates AMA5, does not provide a mechanism for assessing fibromyalgia. While acknowledging fibromyalgia as a chronic pain condition for the purposes of Principle 12, the Tribunal found that the exclusion of fibromyalgia from assessment under AMA5 meant that the degree of permanent impairment could not be assessed in accordance with the requirements of section 24(5) of the SRC Act. Consequently, the Tribunal concluded that Mr. Carlisle was not entitled to compensation for permanent impairment or non-economic loss under sections 24 or 27 of the SRC Act in respect of his fibromyalgia.

The Tribunal affirmed the decision under review, finding that the applicant was not entitled to any amount of compensation under section 24 or section 27 of the SRC Act in respect of the permanent impairment resulting from his condition of fibromyalgia.

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

Accordingly, the Tribunal has no alternative but to find that the Applicant is not entitled to any amount of compensation under section 24 or under section 27 of the SRC Act in respect of the permanent impairment resulting from his condition of fibromyalgia. DECISION On this basis, the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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