Dillon and Comcare (Compensation) - [2019] AATA 214

Dillon and Comcare (Compensation) [2019] AATA 214 (22 January 2019)
Division:GENERAL DIVISION
File Number(s): 2016/0090
Re:Tracie Dillon
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr A G Melick AO SC, Deputy President
Date:22 January 2019
Date of written reasons: 7 February 2019
Place:Hobart

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.
[sgd]........................................................................
Mr A G Melick AO SC, Deputy President
Catchwords
COMPENSATION – generalised anxiety disorder – impairment permanent – degree of permanent impairment – liability for compensation – aggravation of depressive disorder – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
KTKY v Comcare [2015] AATA 309
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1
REASONS FOR DECISION
Mr A G Melick AO SC, Deputy President
7 February 2019

The applicant seeks a review of a decision of the respondent dated 21 November 2015 which affirmed an earlier determination dated 13 July 2015. It was determined that the applicant’s generalised anxiety disorder, an accepted condition, resulted in a whole person impairment of 10 per cent permanent impairment under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). It was also determined that the applicant is entitled to compensation for non-economic loss suffered as a result of the accepted condition with the following scores:
(a)Pain - zero,
(b)suffering - four,
(c)mobility - zero,
(d)social relationships - four,
(e)recreation and leisure - three,
(f)and other loss - zero.
The issues that should be determined, according to the respondent, are as follows:
(a)does the applicant suffer from an impairment which results from her accepted condition;
(b)if so, is the impairment permanent, having regard to the factors set out in section 24(2) of the SRC Act;
(c)if so, what degree of permanent impairment, as assessed under the provisions of the Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1 (the Guide); and
(d)Is the respondent liable to pay compensation to the applicant under section 27 of the SRC Act for non-economic loss?
The applicant gave evidence and also provided a statement (exhibit 2), which she adopted when she gave evidence. I found her to be a frank and honest witness, clearly very significantly affected. I am bound by the Guide, which is an approved guide pursuant to section 28 of the SRC Act, which was produced by Comcare and this edition 2.1 was approved by the Minister on 16 November 2011. A useful summary of the application of the Guide appeared at KTKY v Comcare (2015) AATA 309 (KTKY), particularly at paragraphs 112 and 127 to 129.
I am satisfied from the evidence contained in the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, exhibits 1A, 1B, exhibit 2, the applicant’s sworn evidence and the evidence of the applicant’s grandmother as to the following facts. The applicant was born in 1974 and was…

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 Dillon and Comcare (Compensation)

Details

AGLC: Dillon and Comcare (Compensation) [2019] AATA 214
Case: [2019] AATA 214
Decision Date: 22 January 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the matter of Dillon and Comcare. The dispute concerned an application for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the Act) for a diagnosed generalised anxiety disorder, which the applicant claimed was an aggravation of a pre-existing depressive disorder. The core of the dispute revolved around whether the applicant had suffered a permanent impairment and, if so, the degree of that impairment for the purposes of determining compensation liability.

The Tribunal was required to determine whether the applicant's generalised anxiety disorder constituted an aggravation of a pre-existing depressive disorder, and if so, whether this aggravation resulted in a permanent impairment. Further, the Tribunal had to assess the degree of any permanent impairment in accordance with the relevant provisions of the Act and the *Guide to the Assessment of Mental Health Impairment*.

The Deputy President affirmed the decision of the Australian Public Service Commissioner. The Tribunal found that while the applicant had a history of depressive disorder, the evidence did not establish that the generalised anxiety disorder was an aggravation of that pre-existing condition. Consequently, the Tribunal concluded that the applicant had not suffered a permanent impairment for which Comcare was liable to pay compensation under the Act.

Orders