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David O'Connell and Comcare

David O'Connell and Comcare

Case [2012] AATA 532 13 August 2012

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[2012] AATA 532

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2011/2534, 2536, 2537 & 2539

Re

David O'Connell

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member

Date 13 August 2012

Place
Canberra

The reviewable decisions in applications 2011/2534, 2536 and 2539 are affirmed.
The reviewable decision in application 2011/2537 is set aside and in place thereof the Tribunal decides that the degree of Mr O'Connell's permanent impairment resulting from his psychological injury is 25 percent.
The matter is remitted to Comcare to determine the amount of compensation that is payable.
The parties have 14 days in which to file submissions in respect of orders for costs, with liberty to apply to be heard orally.
......................[sgd].........................................
Mr S. Webb, Member
WORKERS COMPENSATION – accepted right upper limb injury – permanent impairment – assessment of functional loss – requirement for one major and two minor criteria for a 10 percent assessment not satisfied – decision affirmed
WORKERS COMPENSATION - accepted psychological injury - post traumatic stress disorder – previously permanent impairment 10 percent – additional compensation claimed – degree of impairment – incremental criteria - need for some supervision and direction in activities of daily living – impairment of psychosocial functioning – supervision and direction – decision set aside
WORKERS COMPENSATION – low back injury claim – injury said to arise from therapeutic treatment in respect of a right upper limb injury – imprecise evidence as to onset of symptoms – not established that frank or aggravation injury occurred – decision affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 14, 24, 67
Abrahams v Comcare [2006] FCA 1829
Australian Postal Corporation v Sellick [2008] FCA 236
Re Brice and Comcare [2007] AATA 1476
Canute v Comcare [2006] HCA 4
Comcare v Emery (1993) 32 ALD 147
Re Dean and Military Rehabilitation and Compensation Commission [2010] AATA 388
Re Emery and Comcare (1992) 15 AAR 477
Frosch v Comcare [2004] FCA 1642
Re Kermode and Military Rehabilitation and Compensation Commission [2012] AATA 188
Re Sat and Comcare [2004] AATA 334
Sellick v Australian Postal Corporation [2009] FCAFC 146
REASONS FOR DECISION
Mr S. Webb, Member
13 August 2012

David O’Connell was injured in his employment by the Australian Federal Police. Comcare accepted liability for a right arm injury and a psychological injury – post traumatic stress disorder. Mr O’Connell claimed and was paid compensation for a 10 percent permanent impairment in respect of his PTSD injury. Later, Mr O’Connell claimed additional permanent impairment compensation in respect of this injury, as well as compensation for permanent impairments resulting from his right arm injury and an alleged injury to his lower back. These claims were denied by primary determination and on reconsideration by Comcare. Mr O’Connell applied for review.
At the outset of the hearing I was informed that Mr O’Connell did not intend pressing his claim for permanent impairment compensation in respect of a lower back injury. Having reviewed the evidence, this is an appropriate concession that can readily be accepted.…

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 David O'Connell and Comcare

Details

AGLC: David O'Connell and Comcare [2012] AATA 532
Case: [2012] AATA 532
Decision Date

CaseChat Overview and Summary

David O’Connell was injured in his employment by the Australian Federal Police. Comcare accepted liability for a right arm injury and a psychological injury – post traumatic stress disorder. Mr O’Connell claimed and was paid compensation for a 10 percent permanent impairment in respect of his PTSD injury. He later claimed additional permanent impairment compensation in respect of this injury, as well as compensation for permanent impairments resulting from his right arm injury and an alleged injury to his lower back. These claims were denied by primary determination and on reconsideration by Comcare. Mr O’Connell applied for review. The reviewable decisions in applications 2011/2534, 2536 and 2539 are affirmed. The reviewable decision in application 2011/2537 is set aside and in place thereof the Tribunal decides that the degree of Mr O’Connell’s permanent impairment resulting from his psychological injury is 25 percent. The matter is remitted to Comcare to determine the amount of compensation that is payable. The parties have 14 days in which to file submissions in respect of orders for costs, with liberty to apply to be heard orally.

Orders