Carson and Comcare - [2011] AATA 103

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 103
ADMINISTRATIVE APPEALS TRIBUNAL )
)Nos 2009/4193, 2009/4199
)and 2009/5589

GENERAL ADMINISTRATIVE DIVISION )

Re PETER CARSON

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Date17 February 2011
PlaceAdelaide

Decision The tribunal decides that Dr Carson’s claims for eye irritation, skin irritation, reflux, headaches, eye disturbances, asthma, bruxism, and depression and anxiety are to be determined according to the 2^nd edition of the Guide to the Assessment of the Degree of Permanent Impairment.

DG Jarvis
.... [Signed] ...
Deputy President

CATCHWORDS
COMPENSATION – Commonwealth employee – claim for permanent impairment – consideration of whether claims for particular types of compensation are required – interpretation and requisite content of claims for compensation – held that applicant had not made a claim for compensation for permanent impairment prior to commencement of second edition of Guide to the Assessment of Permanent Disability.
PRACTICE AND PROCEDURE – jurisdiction – held that failure to make a decision is not reviewable.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 54
Abrahams v Comcare (2006) 93 ALD 147
Carson v Comcare [2003] FCA 1550
Carson v Comcare [2004] FCAFC 204
Comcare v Sassella (2001) 34 AAR 142
Commonwealth v Ford (1986) 9 ALD 433
Lees v Comcare (1999) 56 ALD 84
Re Cavanagh and Comcare (2008) 106 ALD 143
D.C. Pearce : Administrative Appeals Tribunal (2^nd Edition, 2007)
REASONS FOR DECISION

17 February 2011   Deputy President D G Jarvis

1. The applicant, Peter Carson, has claimed compensation for permanent impairment pursuant to s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Comcare is required to determine claims for permanent impairment by reference to the provisions of the Guide to the Assessment of Permanent Impairment (Guide) prepared by it pursuant to s 28 of the SRC Act.
2.      An issue has arisen as to whether the 1^st or 2^nd edition of the Guide applies to Dr Carson’s claim. Clause 3 of the introduction to the 2^nd edition of the Guide provides in effect that claims made under ss 24, 25 or 27 of the SRC Act that are received by the relevant authority on or before 28 February 2006 will be determined under the 1^st edition of the Guide, but that edition of the Guide is revoked in respect of claims under those sections received after 28 February 2006, and claims received on and from 1 March 2006 will be determined under the 2^nd edition of the Guide.
3.      It is accordingly necessary to identify and interpret the documents that constitute the claims that have been made for compensation for permanent impairment, in order to determine the date when the claims were made, and the conditions to which the claims related. It is common ground that there is no difference in the provisions of the 1^st and 2^nd editions of the Guide insofar as they relate to Dr Carson’s depressive…

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 Carson and Comcare

Details

AGLC: Carson and Comcare [2011] AATA 103
Case: [2011] AATA 103
Decision Date: 17 February 2011

CaseChat Overview and Summary

The matter of Carson and Comcare involved the applicant, Dr Carson, who sought compensation for various impairments he claimed were caused by his employment with the Commonwealth. The dispute centred on the timing and form of Dr Carson’s claims for compensation, particularly regarding whether he had made a claim for compensation for permanent impairment prior to the commencement of the second edition of the Guide to the Assessment of Permanent Disability. The case was heard by the Administrative Appeals Tribunal (AAT).

The legal issues that the tribunal was required to decide included whether the applicant had made a claim for compensation for permanent impairment prior to the commencement of the second edition of the Guide, and whether the tribunal had jurisdiction to review the failure of Comcare to make a decision. Additionally, the tribunal needed to determine the appropriate assessment method for Dr Carson’s claims, considering the timing of his claims in relation to the Guide’s editions.

The tribunal found that Dr Carson had not made a claim for compensation for permanent impairment prior to the commencement of the second edition of the Guide. The tribunal also held that the failure of Comcare to make a decision was not reviewable. Consequently, the tribunal determined that Dr Carson’s claims for various impairments, including eye irritation, skin irritation, reflux, headaches, eye disturbances, asthma, bruxism, and depression and anxiety, were to be assessed according to the second edition of the Guide to the Assessment of the Degree of Permanent Impairment.

The tribunal’s decision emphasised the importance of the timing and form of claims for compensation in the context of the Guide’s editions. The tribunal's ruling clarified the requisite content of claims for compensation and the interpretation of the Guide, impacting the assessment of Dr Carson’s claims.

Orders

Orders of the court

The tribunal decides that Dr Carson’s claims for eye irritation, skin irritation, reflux, headaches, eye disturbances, asthma, bruxism, and depression and anxiety are to be determined according to the 2nd edition of the Guide to the Assessment of the Degree of Permanent Impairment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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