Dunston and Comcare (Compensation)

This matter concerned an appeal by the Applicant against a decision by Comcare to deny liability for ongoing medical expenses and incapacity payments. The Applicant had a pre-existing condition of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (CFS), which had been aggravated by her employment with Centrelink. The core dispute was whether the Applicant continued to suffer from this work-related aggravation of CFS and whether her employment continued to contribute significantly to her condition as at the date of Comcare's decision.

The Administrative Appeals Tribunal (AAT) was required to determine whether the Applicant continued to suffer from the aggravation of her CFS and whether her employment continued to be a significant contributing factor to this condition. A further issue arose regarding the assessment of any permanent impairment, specifically whether the Tribunal could make such an assessment in the absence of sufficient medical evidence and in light of the principles established in *Comcare v Wuth*.

The Tribunal acknowledged its inquisitorial role and its obligation to make the correct and preferable decision. It noted that while the Applicant had a continuing entitlement to compensation for the aggravation of her CFS, the medical evidence did not adequately address the assessment of permanent impairment under section 24(5) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), particularly in light of *Wuth*. The Tribunal referred to *Wuth* for the principle that only a physician may use clinical judgment to assess impairment, and a decision-maker cannot independently compare an unlisted condition with a measurable impairment without expert evidence.

Given the lack of sufficient evidence to assess permanent impairment and the need to provide parties with an opportunity to address this, the Tribunal decided to defer further consideration of the review. It directed that each party be given an opportunity to make submissions on what, if any, further evidence should be tendered regarding the assessment of the degree of permanent impairment. The application was adjourned pending these submissions.