Daw and Comcare (Compensation) - [2022] AATA 543

Daw and Comcare (Compensation) [2022] AATA 543 (25 March 2022)
Division:GENERAL DIVISION
File Number(s): 2019/0197
Re:Steven Daw
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:25 March 2022
Place:Brisbane

I affirm the decision under review.
...........................[SGD].....................................
Deputy President Dr P McDermott RFD
Catchwords
Comcare – Vestibular migraine – migraine – tinnitus – vertigo – dizziness – oscillopsia – Australian Public Service employee – non-economic loss – whole person impairment – lengthy claims history – where decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Broadhurst v Comcare [2010] FCA 1034
Canute v Comcare (2006) 205 CLR 535
Comcare v Lilley [2013] FCAFC 121
Comcare v Lofts (2013) 217 FCR 220
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
SECONDARY MATERIALS
Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
25 March 2022
INTRODUCTION

This application by Mr Daw (“the applicant”) made on 9 January 2019 concerns the review by this Tribunal of a reconsideration decision of Comcare (“the respondent”) dated 4 January 2019.[1] This decision affirmed an earlier determination to deny the applicant’s claim for permanent impairment and non-economic loss under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in relation to accepted conditions of “adjustment reaction with mixed emotional features” and “aggravation of vestibular migraine”. The applicant has claimed permanent impairments of “hearing loss, moderately severe tinnitus and cognitive dysfunction” which is claimed to arise from his “aggravation of vestibular migraine” injury.
[1] Exhibit A, T Documents, T126, page 726.
BACKGROUND
From 2003 to 2013 the applicant was employed by the Australian Public Service (“APS”).[2] He worked with the APS in three different agencies or departments until he went on leave in September 2013 and ceased paid employment in August 2014.[3] On 25 November 2013, the applicant signed his claim for workers’ compensation for a workplace injury arising from his employment with the Australian Antarctic Division (“AAD”).[4] His claim identified an injury of “work related stress and low mood as a result of multiple stresses at work”.[5] In his claim form, the applicant remarked that his neurological function has been most severely affected and that he first suffered or noticed the injury on 20 September 2013. In his claim form the applicant identified the cause of injury as “excessive hours and taskload/pressure over a prolonged period >4 years. multiple stressors over a sustained time.”[6]
[2]     Exhibit B, Hearing Book, R4, Respondent’s Statement of Facts, Issues and Contentions page 920.
[3]     Exhibit B, Hearing Book, R4, Respondent’s Statement of Facts, Issues and Contentions page 920.
[4]     Exhibit A, T Documents, T6, pages 31, 33 and 37.
[5]     Exhibit A, T Documents, T6, page 32.
[6]     Exhibit…

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 Daw and Comcare (Compensation)

Details

AGLC: Daw and Comcare (Compensation) [2022] AATA 543
Case: [2022] AATA 543
Decision Date: 25 March 2022

CaseChat Overview and Summary

The case of *Daw and Comcare* concerned an Australian Public Service employee, Mr. Daw, who sought compensation from Comcare for non-economic loss arising from a vestibular migraine, tinnitus, and vertigo. The dispute centred on whether these conditions constituted a whole person impairment, particularly in light of a lengthy claims history and pre-existing hearing loss. The decision was made by Deputy President McDermott.

The primary legal issue before the court was to determine the extent of Mr. Daw's whole person impairment resulting from his claimed conditions, and whether these impairments were attributable to the injury sustained on 11 November 2013, or were pre-existing or otherwise unrelated. This involved assessing the applicant's evidence regarding the onset and severity of his symptoms, and comparing it with medical reports and his prior employment history.

Deputy President McDermott's reasoning focused on the evidence presented, including the applicant's oral testimony and medical reports. The applicant asserted that prior to 11 November 2013, he was a high-functioning manager with no symptoms of brain fog, hearing difficulties, or constant tinnitus. However, he also acknowledged a history of mild to moderate high-frequency hearing loss dating back to at least 2008, and occasional tinnitus prior to 2013. Medical reports, such as that of Dr. Moore, indicated that the applicant's dizziness was not accompanied by aural symptoms like hearing changes or tinnitus at the time of examination, although some hearing impairment had been noted for the preceding two years. The court also considered the possibility of oscillopsia, as mentioned in reports by Dr. Rosen and Ms. Andrew.

The court affirmed the decision under review, indicating that the applicant had not established the necessary criteria for compensation for non-economic loss based on the evidence presented regarding his whole person impairment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant also filed documentation concerning the Australia Day awards issued to him in 2011 and 2012. Obtaining these awards is indicative that prior to the 2013 injury, the applicant was a high achieving employee. Evidence at HearingOral evidence of the applicant The applicant, under affirmation, gave evidence, consistent with his written history of symptoms which the applicant prepared[149] and the applicant’s undated written statement,[150] that on 11 November 2013 when he woke up, he felt dizzy and could barely sit up. He stated that prior to this symptom, he was a “high functioning manager flying along as an executive level 2, doing a million hours the last four years”. He stated that prior to 11 November 2013, when he chaired subcommittee meetings, he “never suffered brain fog, couldn’t hear people properly, didn’t have cicadas screaming in [his] ears 24/7”.[151][149] Exhibit B, Hearing Book, A14.[150] Exhibit B, Hearing Book, R1, implied undertaking material, tab 3.[151] Transcript, page 8. The applicant asserted that, despite the criticisms of his performance on 23 February 2010 by his then supervisor,[152] his performance as a public servant had been “perfect right up until then”. The applicant gave evidence that his supervisor at the time was “angling for a board position with one of our contractors” and was later removed from her position. The applicant alleged that his supervisor’s removal was the result of an investigation into concerns that he had raised about his supervisor’s conflict of interest between her role and the Department’s contractor. He stated, “you can read into it what you want, the end result was I stayed in my job and she was removed from her position.”[153] He referred the Tribunal to statements of his then colleagues which were written in support of him.[154][152] Exhibit A, T Documents, T20.6, pages 105-109.[153] Transcript, page 30.[154] Exhibit A, T Documents, T20.4 and T20.5 pages 100-103. The applicant gave evidence that, despite reporting that in 1992 he suffered an illness whilst working in Torres Strait, he had none of his current symptoms prior to 11 November 2013.[155][155] Transcript, page 9. The applicant gave evidence regarding his scuba diving. He had done over 3,000 dives, but he has not dived since 1992 when he suffered decompression sickness.[156][156] Transcript, page 9. The applicant was referred to the results of a hearing test which he undertook on 29 April 2011. Under cross-examination, the applicant accepted that the test revealed “mild to moderate high frequency hearing loss” prior to the aggravation of vestibular migraine in November 2013. He remarked that earlier reports show that high frequency hearing loss occurred as early as 2008.[157][157] Transcript, page 11. The applicant was referred to the report of Dr Moore dated 29 November 2013[158] where Dr Moore states that the applicant’s “dizziness has not been accompanied by any aural symptoms by way of hearing change or tinnitus”. The applicant gave evidence that, although he did have tinnitus prior to 2013, he had it “only on and off, very occasionally, very rarely, every few months and it would last 30 seconds”.[159] The applicant confirmed that he did tell Dr Moore that his mother developed hearing loss.[160] The applicant accepted that the report of Dr Moore did not indicate a worsening of his hearing, but he remarked that the report did state that there had been some hearing impairment for the last two years.[161] [158] Exhibit A, T Documents, T7.[159] Transcript, page 12.[160] Transcript, page 13.[161] Transcript, page 13.

Decision

Reasons for decision

If there is any need to consider the dizziness condition of the applicant, it would be beneficial for any investigation to exclude the possibility of the applicant having oscillopsia. The reports of Dr Rosen and Ms Andrew mention the possibility of the applicant having an oscillopsia condition. Decision I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.