Daw and Comcare (Compensation)

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.