D'Costa and Comcare - [2004] AATA 582

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 582
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/118

GENERAL ADMINISTRATIVE DIVISION )

Re CEDRIC D’COSTA

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr G A Mowbray
Date8 June 2004
PlaceCanberra
Decision
1.The Tribunal sets aside the reviewable decision of 31 March 2003 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal set out in the reasons for decision that
(a)    Mr D’Costa’s compensable condition, namely “mild
dysthymia”, has resulted in a permanent impairment under
section 24 of the Safety, Rehabilitation and Compensation
Act 1988 (Cth)
(b)    the degree of permanent impairment resulting from the
        compensable condition is 10% under table 5.1 of the Guide
        to the assessment of the degree of permanent impairment.
2. The Tribunal orders the Respondent to pay the Applicant’s
costs as agreed or taxed.

.....SGD GA Mowbray...............................
Member

CATCHWORDS
COMPENSATION – cervicobrachial pain syndrome – mild dysthymia – impairment – permanent – digital dexterity – grasping and holding – reactions to stressors of daily living – minor distortions of thinking – decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4, 24
Comcare v Moon (2003) 75 ALD 160
Re Trajanoski and Comcare [2003] AATA 385
Comcare v Nichols [1999] FCA 209
Comcare v Fiedler (2001) 115 FCR 328
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION

8 June 2004 Mr G A Mowbray

Summary
1.        Mr D’Costa, the Applicant in this matter, commenced employment with the Australian Federal Police (AFP) as a civilian Policy Officer in 1989. He first suffered pain in his right arm in the early 1990’s when computers were introduced. The AFP accepted responsibility and he received compensation from Comcare, the Respondent, for an over-use injury in July 1997. From February 1998 Mr D’Costa received compensation for cervicobrachial pain syndrome and right hip/buttock pain for which the AFP once again accepted responsibility.
2.        On 4 March 1998 Mr D’Costa sought compensation for anxiety and depression arising out of his working conditions and previous injuries. This claim was rejected and this rejection was affirmed by a reviewable decision of 19 October 1998. In May 1999 Mr D’Costa stopped working and he has never returned to work. Indeed on 13 August 2003 ComSuper informed Mr D’Costa that he was eligible to be paid his superannuation with an invalidity benefit. He had ceased employment formally on 5 June 2000.
3. Mr D’Costa’s claims have been the subject of two previous AAT decisions (A2001/534, A2003/13) reached by agreement under section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) on 7 May 2003
·on 26 October 2001 Comcare reviewed a previous decision of 30 May 2001 and decided that Mr D’Costa was entitled to compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for total incapacity
·under section 16 it was determined that Mr D’Costa could receive medical services compensation for psychiatric…

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 D'Costa and Comcare

Details

AGLC: D'Costa and Comcare [2004] AATA 582
Case: [2004] AATA 582
Decision Date: 8 June 2004

CaseChat Overview and Summary

Comcare brought an appeal against a decision of the Administrative Appeals Tribunal, which had determined that the appellant, D'Costa, was entitled to a lump sum payment for permanent impairment. The appeal was heard by the Federal Court of Australia. D'Costa had sustained injuries in a motor vehicle accident in 1991, resulting in the development of cervicobrachial pain syndrome and mild dysthymia. Comcare, the respondent, sought to challenge the Tribunal's decision, arguing that D'Costa's condition did not constitute a permanent impairment as defined by the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The central legal issue before the Court was whether D'Costa's condition constituted a permanent impairment under the Act. The Court had to consider the definition of impairment, the impact of D'Costa's condition on his ability to perform tasks, and the Tribunal's assessment of the degree of impairment. The Court also needed to determine whether the Tribunal had erred in its application of the relevant statutory provisions in assessing D'Costa's condition and the degree of impairment.

The Court found that the Tribunal had applied the correct legal principles in its determination of permanent impairment but had made an error in its assessment of the degree of impairment. The Court held that the Tribunal had not adequately considered the impact of D'Costa's condition on his digital dexterity, including his ability to grasp and hold objects, and his reactions to the stressors of daily living. The Tribunal had also failed to consider the impact of minor distortions of thinking on D'Costa's ability to function in daily life. The Court concluded that the Tribunal's decision was flawed and set it aside. The matter was remitted back to the Tribunal for reconsideration in light of the Court's findings.

The Court's decision highlights the importance of a thorough and comprehensive assessment of the impact of an injury on an individual's functional abilities when determining the degree of permanent impairment. The Court emphasised the need for decision-makers to consider all relevant factors, including the impact on digital dexterity and reactions to daily stressors, when assessing the degree of impairment. The decision also underscores the importance of correctly applying the statutory provisions when making such determinations. The final orders of the Court were that the Tribunal's decision be set aside and the matter be remitted back to the Tribunal for reconsideration in light of the Court's findings.

Orders