Gaget and Comcare (Compensation)
[2024] AATA 3501
•11 September 2024
Gaget and Comcare (Compensation) [2024] AATA 3501 (11 September 2024)
Division:GENERAL DIVISION
File Number:2024/0040
Re:KATHRYN GAGET
APPLICANT
AndCOMCARE
RESPONDENT
REASONS FOR DECISION
Tribunal:Member Andrew McLean Williams
Date:11 September 2024
Date of written reasons: 25 September 2024
Place:Brisbane
The application for Review filed in the Tribunal on 1 January 2023 is dismissed, pursuant to s.42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
................................[SGD]........................................
Member Andrew McLean Williams
Catchwords
WORKERS COMPENSATION – where an Applicant has claimed Permanent Impairment and Non-Economic Loss – where an Applicant did not meet s.24 and s.27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in the originating application – where an applicant has no contrary evidence to displace the opinion of a specialist with respect to whole person impairment (WPI) – where the Applicant has not filed evidence in support of the application for review – Tribunal finds the application has no reasonable prospect of success – application dismissed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Workers Compensation Act 1987 (Cth)
Cases
Beezely v Repatriation Commission [2015] FCAFC 165 at [68], per North, Tracey & Mortimer JJ
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; Re Oliver and Comcare [2018] AATA 1964REASONS FOR DECISION
Member Andrew McLean Williams
25 September 2024
On 11 September 2024 the Tribunal dismissed the Applicant’s application for review pursuant to s.42B(1)(b) of the Administrative Appeals Tribunal Act (1975) (‘the Act’).
These now are the Tribunal’s reasons for that dismissal.
Kathryn Gaget (‘the Applicant’) has an accepted Comcare claim for wrist sprain (left), wrist sprain (right), sprain of shoulder and upper arm (right), and adjustment reaction with mixed emotional features, deemed to have been sustained on 16 February 2012, by reason of repetitive computer use whilst employed by Services Australia.
On 3 January 2023, a claim was submitted to the Respondent on the Applicant’s behalf for Permanent Impairment and Non-Economic Loss. This related only to the wrist conditions, and the right shoulder and right upper arm conditions, as the adjustment disorder had been dealt with separately, such that it is no longer relevant for present purposes.
On 27 September 2023 the Respondent declined liability for Permanent Impairment and Non-Economic Loss under s.24 and s.27 of the SRC Act, on the basis that the Applicant did not meet the required 10% whole person impairment (‘WPI’) in respect of each of these injuries (‘the original determination’).[1]
[1]T38.
On 29 October 2023 the Applicant requested a reconsideration of the determination.[2]
[2]T39.
By way of a further determination dated 29 October 2023, the Respondent affirmed the original determination (‘the review determination’).[3]
[3]T41.
On 1 January 2024 the Applicant requested a further review of the review determination, this time before the Tribunal.[4]
[4]T2.
The Applicant has not bothered to file any evidence in support of her application for review.
On 20 May 2024, the Applicant and the representative of the Respondent each appeared before the Tribunal, by way of a telephone conference. At that time the Applicant represented to the Tribunal that she did not intend to submit any evidence or make any submissions and requested that the matter progress to a hearing without any further involvement on her part.
On 2 July 2024 the solicitors acting for the Respondent filed submissions in the Tribunal seeking that the Application for Review be dismissed, pursuant to s.42B(1)(b) of the Act, arguing that the Application for Review had no reasonable prospects for success.
The matter was set down for interlocutory argument, in a telephone hearing conducted on 11 September 2024. The Tribunal endeavoured to contact the Applicant on her nominated telephone number, twice. On each occasion those efforts were unsuccessful. At that juncture the Respondent submitted that the Tribunal should proceed and exercise the summary dismissal power under s.42B(1)(b).
Relevantly, s.42B(1)(b) of the Act provides:
Power of Tribunal if a proceeding is frivolous, vexatious, etc.
1The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)…/; or
(b)has no reasonable prospect of success;
The summary dismissal power should be approached cautiously.[5] Nonetheless, the Applicant has indicated that she does not propose to file any evidence, or even appear at a hearing to cross examine Dr Barnard.
[5]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; Re Oliver and Comcare [2018] AATA 1964.
A decision by the Tribunal can only be based on relevant and probative evidence.[6] Currently, the only probative medical opinion evidence before the Tribunal is that provided by Dr Barnard, Occupational Physician in his reports dated 28 April 2023[7] and 6 July 2023.[8]
[6]Beezely v Repatriation Commission [2015] FCAFC 165 at [68], per North, Tracey & Mortimer JJ.
[7]T34.
[8]T37.
In his report dated 28 April 2023, Dr Barnard opines that the Applicant has a 0% WPI for her bilateral wrist conditions and a 9% WPI for her right shoulder condition. Accordingly, the only probative evidence before the Tribunal is that the Applicant has a combined 9% WPI. This does not meet the required 10% WPI threshold.
If the substantive hearing of this matter were to proceed, there would be no contrary evidence to displace the opinion proffered by Dr Barnard. The Tribunal is satisfied in the circumstances that the Applicant has no reasonable prospect of succeeding on her application for review, such that finite public resources should not be further expended conducting a full hearing of this matter.
DECISION
The Application for Review filed in the Tribunal on 1 January 2023 is dismissed, pursuant to s.42B(1)(b) of the Act.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean Williams
................................[SGD]........................................
Associate
Dated: 25 September 2024
Date of hearing: 11 September 2024 Applicant: Kathryn Gaget Solicitors for the Respondent: Michelle Gunawan (McInnes Wilson Lawyers)
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