Jenkins and Comcare - [2004] AATA 1215

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1215
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1670

GENERAL ADMINISTRATIVE DIVISION )

Re BRIAN JENKINS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Dr M Thorpe, Member
Date19 November 2004
PlaceSydney

Decision
The decision under review is set aside. In substitution for the decision set aside the Tribunal decides that Mr Jenkins be granted a 15 percent whole person impairment and receive appropriate payments under section 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

[Sgd] Dr M Thorpe
Member

CATCHWORDS
COMPENSATION – assessment of permanent impairment – question before the Tribunal as to the percentage whole person impairment to which the Applicant is entitled under the Safety, Rehabilitation and Compensation Act 1988 – assessment of medical evidence – consideration of minor, marked or severe disturbance in thinking – Applicant does not qualify for either 20 or 25 percent level of impairment – decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 – sections 24 and 27
REASONS FOR DECISION

19 November 2004 Dr M Thorpe, Member

1.        This is an application by Mr Brian Jenkins for assessment of permanent impairment. On 1 February 1993 liability was accepted in respect of “generalised anxiety disorder and major episode of depression” deemed to have been sustained on 18 June 1992. Australian Defence Services (A.D.S.) terminated his services 8 April 1994 on the grounds of his inability to be rehabilitated. . The applicant applied under subsection 29(1) of the Administrative Appeals Tribunal Act 1975 for a review by the Administrative Appeals Tribunal of the decision. A claim for Permanent Injury and a Non Economic loss questionnaire was completed 5 March 2003 and on 6 August 2003 Mr Jenkins was granted a 10 percent whole person impairment for which he received appropriate payments under section 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
2.        Comcare is required to assess permanent impairment in accordance with - provisions of the Guide to the Assessment of Permanent Impairment - Safety, Rehabilitation and Compensation Act section 28, and its provisions are binding on the Administrative Appeals Tribunal section 28(4).
3. The question before the Tribunal is a simple question- The percentage whole person to which Mr Jenkins is entitled under the Act?
4.        Mr Jenkins was born on 3 June 1941. He worked uninterrupted with Australian Defence Industries (“A.D.I”), commencing as an Apprentice Fitter and machinist in 1956 until his termination in 1994. There was a minor incident with his back in the 1970’s without repercussion.
5.        In 1992 A.D I. was restructuring and at that time Mr Jenkins was working as a Shift Foreman. This work involved him in negotiations and action concerning retrenchments. Apparently there was an air of uncertainty in the workplace and workers were regularly being made redundant.
6.        When called into the Manager’s office on the afternoon 18 June 1992 for a meeting with the General Manager and Personnel Managers, he 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 Jenkins and Comcare

Details

AGLC: Jenkins and Comcare [2004] AATA 1215
Case: [2004] AATA 1215
Decision Date: 19 November 2004

CaseChat Overview and Summary

In Jenkins and Comcare, the applicant, Mr Jenkins, sought to challenge a decision made by Comcare regarding his entitlement to compensation for a permanent impairment under the Safety, Rehabilitation and Compensation Act 1988. The dispute centred on the appropriate percentage of whole person impairment Mr Jenkins was entitled to, a determination that had significant implications for his compensation payments. The matter was brought before the Administrative Appeals Tribunal, which was tasked with reviewing the decision made by Comcare and determining the correct percentage of impairment.

The central legal issue before the Tribunal was the accurate assessment of Mr Jenkins’ whole person impairment, specifically whether it fell within the 20, 25, or another percentage level as defined in the relevant legislation. The Tribunal had to consider the medical evidence provided and determine whether Mr Jenkins’ impairment represented a minor, marked, or severe disturbance in thinking, as these categories directly influenced the percentage of whole person impairment. Furthermore, the Tribunal needed to ensure that its determination aligned with the statutory framework set out in sections 24 and 27 of the Act.

The Tribunal reviewed the evidence and found that Mr Jenkins did not qualify for the 20 or 25 percent levels of impairment as assessed by Comcare. The Tribunal concluded that the evidence did not support a higher level of impairment and determined that a 15 percent whole person impairment was more appropriate. Consequently, the Tribunal set aside the original decision of Comcare and substituted it with a decision that Mr Jenkins be granted a 15 percent whole person impairment, with corresponding payments under sections 24 and 27 of the Act.

The Tribunal's final orders were that the decision under review by Comcare was set aside, and in its place, the Tribunal decided that Mr Jenkins was to be granted a 15 percent whole person impairment. This decision was made in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988, ensuring that Mr Jenkins would receive appropriate compensation payments reflective of his assessed level of impairment.

Orders

Orders of the court

The decision under review is set aside. In substitution for the decision set aside the Tribunal decides that Mr Jenkins be granted a 15 percent whole person impairment and receive appropriate payments under section 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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