Danson and Comcare - [2003] AATA 1193

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1193
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1639

GENERAL ADMINISTRATIVE DIVISION )

Re NIGEL DANSON

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date26 November 2003
PlaceSydney

Decision The decision under review is set aside. In its place, the Tribunal decides that Mr Danson has a 10 percent whole person impairment under Table 9.1 of the approved Guide as a result of an injury sustained on service in East Timor. The matter is remitted to Comcare to determine the correct amount of compensation that is payable pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988. Comcare is to pay Mr Danson's reasonable costs as agreed or taxed.

[Sgd] Mr S. Webb, Member

CATCHWORDS
COMPENSATION - left shoulder injury – supraspinatus tendonitis and impingement - liability accepted - whether permanent impairment – whether impairment is greater than 10 percent - decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 4, 14, 24, 27, 28 and 67
Guide to the Assessment of the Degree of Permanent Impairment
CASELAW
Comcare v Amorebieta (1996) 66 FCR 83
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Filla v Comcare (2001) FCA 964
Re Halliday and Comcare [1994] 19 AAR 431
Re Woolf and Comcare (1995) AATA 10362
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION

26 November 2003 Mr S. Webb, Member

1.      On 9 November 1999, Mr Nigel Danson injured his left shoulder while serving in the Royal Australian Air Force (“RAAF”) in East Timor (T5). Liability for the injury was accepted on 19 March 2001 by a delegate of the Department of Veteran’s Affairs who determined that Mr Danson “suffered a contraction of a disease to which [his] military service contributed in a material degree, namely left supraspinitus [sic] tendonitis left shoulder” (T7, f43).
2.      On 12 June 2002, Mr Danson’s permanent impairment compensation claim (T8) was rejected (T10, f55) on the basis of a report by Dr John Watson that he did not suffer from any impairment as a result of the accepted injury (T10, f59-61). By request of Mr Danson, the decision was reconsidered and affirmed on 23 October 2002.
3.      Mr Danson is not satisfied that the decision to reject his permanent impairment compensation claim is correct and has applied for review by this Tribunal (T1).
4.      The issue before the Tribunal is whether Mr Danson suffers from a permanent impairment and, if so, whether an amount of compensation is payable.
legal principles
5.      Mr Danson’s permanent impairment compensation claim falls under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). For the claim to succeed it must be established that Mr Danson’s injury has resulted in a permanent impairment (see section 24 of the Act1). The Tribunal, standing in Comcare’s shoes, must first determine whether the claimed impairment is the result of an injury arising from or in the course of employment.…

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 Danson and Comcare

Details

AGLC: Danson and Comcare [2003] AATA 1193
Case: [2003] AATA 1193
Decision Date: 26 November 2003

CaseChat Overview and Summary

In the case of Danson and Comcare, the dispute centred around the extent of a left shoulder injury sustained by Mr Danson during service in East Timor, specifically diagnosed as supraspinatus tendonitis and impingement. Liability for the injury was accepted by Comcare, but the crux of the matter was the determination of the level of permanent impairment attributable to the injury. The Federal Court was called upon to review the decision made by the Administrative Appeals Tribunal (AAT) regarding this impairment.

The legal issues before the court were whether the injury resulted in a permanent impairment and, if so, whether this impairment was greater than 10 percent. The court was tasked with interpreting the relevant sections of the Safety, Rehabilitation and Compensation Act 1988, specifically in relation to how permanent impairment should be assessed and compensated.

The court found that the AAT had erred in its assessment of the impairment, particularly in the application of the criteria outlined in the approved Guide. The court determined that Mr Danson did indeed have a 10 percent whole person impairment as per Table 9.1 of the Guide, a finding that aligned with the evidence presented. Consequently, the court set aside the previous decision of the AAT and made its own determination. The matter was then remitted back to Comcare to recalculate the compensation payable under sections 24 and 27 of the Act, with Comcare also ordered to cover Mr Danson's reasonable costs as agreed or taxed.

Orders

Orders of the court

The decision under review is set aside. In its place, the Tribunal decides that Mr Danson has a 10 percent whole person impairment under Table 9.1 of the approved Guide as a result of an injury sustained on service in East Timor. The matter is remitted to Comcare to determine the correct amount of compensation that is payable pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988. Comcare is to pay Mr Danson's reasonable costs as agreed or taxed.

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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