Coghlan and Comcare (Compensation) - [2022] AATA 3101

Coghlan and Comcare (Compensation) [2022] AATA 3101 (8 August 2022)
Division:GENERAL DIVISION
File Number(s): 2020/7036
Re:Steven Wayne Coghlan
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Senior Member B J Illingworth
Date:8 August 2022
Date of written reasons: 23 September 2022
Place:Adelaide

For reasons given orally at the hearing, the Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success.
The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act1975, dismisses the application.
.................[SGND]............................................
Senior Member B J Illingworth
Catchwords
WORKERS’ COMPENSATION – Dismissal under s 42B(1) of the Administrative Appeals Tribunal Act 1975 – no reasonable prospects of success – Application for permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 – Application is dismissed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Carvalho and Comcare [2022] AATA 1081
Oliver v Comcare (Compensation) [2018] AATA 1964
REASONS FOR DECISION
Senior Member B J Illingworth
23 September 2022

At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for the decision have been transcribed by Epiq. Some minor amendments have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

..............[Sgnd]...........................

Associate

Dated: 23 September 2022

      Dates of hearing:
  8 August 2022

      Advocate for the Applicant: Steven Coghlan, Self -represented

      Advocate for the Respondent:   Peter Woulfe, Blackburn Chambers

ORAL DECISION OF SENIOR MEMBER ILLINGWORTH        [12.03 pm]

This is an application by the Applicant for a determination of permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in relation to an accepted claim for aggravation of a medial meniscal tear to the right knee. The date of the injury was 21 March 2019.
The Applicant had a previously accepted claim in respect of an injury suffered 7 December 1998 to that same knee. The Applicant then underwent arthroscopic surgery on 10 January 2000. A subsequent claim for permanent impairment and non-economic loss was successful and the Applicant was assessed with a whole of person impairment of 10 per cent. The claim remained inactive until the Applicant’s injury of 21 March 2019. This matter…

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 Coghlan and Comcare (Compensation)

Details

AGLC: Coghlan and Comcare (Compensation) [2022] AATA 3101
Case: [2022] AATA 3101
Decision Date: 8 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Mr Coghlan for permanent impairment and non-economic loss compensation under sections 24 and 27 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), against a decision by Comcare. The presiding Senior Member, B J Illingworth, was required to determine whether Mr Coghlan's application had reasonable prospects of success, as contemplated by section 42B(1) of the *Administrative Appeals Tribunal Act 1975* (Cth).

The central legal issue before the Tribunal was whether Mr Coghlan's claim for permanent impairment and non-economic loss was so lacking in merit that it should be dismissed summarily under section 42B(1) of the *Administrative Appeals Tribunal Act 1975*. This provision allows the AAT to dismiss an application if it is satisfied that the application is frivolous or vexatious, has no reasonable prospect of success, or is an abuse of process.

Senior Member Illingworth reasoned that for an application to have reasonable prospects of success, there must be a discernible legal or factual basis upon which the applicant could establish their claim. In this instance, the Tribunal found that Mr Coghlan had failed to provide sufficient evidence or legal argument to demonstrate that he suffered from a permanent impairment or was entitled to non-economic loss compensation as defined by the *Safety, Rehabilitation and Compensation Act 1988*. Without such a foundation, the application was deemed to have no reasonable prospects of success.

Consequently, the Tribunal ordered that Mr Coghlan's application be dismissed under section 42B(1) of the *Administrative Appeals Tribunal Act 1975*.

Orders