LOUISE GRAVES and COMCARE Dr I Alexander, Member

[2009] AATA 108

Administrative Appeals Tribunal

INTERLOCUTORY DECISION AND REASONS FOR DECISION [2009] AATA 108

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2006/1457 2007/791

GENERAL ADMINISTRATIVE DIVISION		)                 2008/1047
Re		LOUISE GRAVES

Applicant

And COMCARE

Respondent

INTERLOCUTORY DECISION

Tribunal Dr I Alexander, Member

Date18 February 2009

PlaceSydney

Decision The Tribunal orders, pursuant to subsection 67(8) of the Safety, Rehabilitation and Compensation Act 1988, that the Respondent pay the Applicant’s costs in relation to the proceedings of application 2008/1047.

..................[sgd]............................

Dr I Alexander
  Member

CATCHWORDS

Costs – workers’ compensation – varying a reviewable decision in a manner favourable to the claimant – setting aside a reviewable decision – making a substitution of a reviewable decision that is more favourable to the claimant – respondent ordered to pay applicant’s costs in relation to one application

Safety, Rehabilitation and Compensation Act 1988 – Section 67

Re Graves and Comcare [2008] AATA 965  

REASONS FOR INTERLOCUTORY DECISION

18 February 2009		Dr I Alexander, Member
INTRODUCTION

1. The Applicant, Mrs Graves, seeks an order for costs pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act1988 (“the Act”) in respect of the three applications N2006/1457, 2007/791 and 2008/1047, decided on 30 October 2008 in  Re Graves and Comcare [2008] AATA 965.

2. The Respondent, Comcare, does not oppose the making of an order for costs under s 67(8) in relation to application 2008/1047.

3.      Comcare, however, submits that no order for costs can be made for applications N2006/1457 and 2007/791 because the Tribunal’s decisions in respect of these applications were not favourable or more favourable to the Applicant so that the provisions of s 67(1) apply, which means that Mrs Graves must bear her own costs for these applications.

4.      Counsel for the Applicant submitted that Mrs Graves was entitled to costs in respect of applications N2006/1457 and 2007/791 on the grounds that the Tribunal had made a decision which “varied in a manner favourable to the claimant.”

5.      Counsel’s submission appeared to be based on the Respondent’s contention, as documented in the Statement of Facts and Contentions dated 7 December 2007, that Mrs Graves’ employment had not made a material contribution to her psychological condition. Counsel argued that if the Tribunal had accepted this contention Mrs Graves would not have been entitled to any compensation and, therefore, as the Tribunal had decided that she continued to suffer the effects of her work related psychological condition and was entitled to compensation for permanent impairment, the Tribunal ‘s decision was favourable to Mrs Graves.

6.      In response to a question from the Tribunal Counsel agreed that the favourability in respect of the Tribunal’s decision claimed by Mrs Graves was related to the contentions made by the Respondent.

7. Counsel for the Respondent submitted that s 67(8) refers to a reviewable decision and that the costs power under this subsection involves comparison between what the Tribunal decided and what was in the reviewable decision, and not the contentions submitted by the Respondent.

ISSUES

8. In application N2006/1457 Mrs Graves sought review of a decision dated 5 October 2006 in which a Comcare review officer affirmed a determination of 6 April 2006 that Mrs Graves was entitled to 15% whole person impairment (“WPI”) under ss 24 and 27 0f the Act in respect of her accepted work related injuries.

9.      It was decided that she was entitled to 5% WPI in respect of an acoustic nerve injury to her right ear under Table 7.2 of the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”) and 10% in respect of “major depressive disorder” under Table 5.1 of the Guide.

10.     On 6 March 2007 Comcare issued a reconsideration on own motion and varied its determination of 6 April 2006 on the grounds that the method used for combining Mrs Graves’ impairments was not consistent with the  decision of the High Court in Canute v Comcare (2006) 226 CLR 535 (“Canute”).

11. Comcare decided that as the impairments could not be combined and as WPI of 5% in respect of the acoustic injury to the right ear did not meet the threshold of 10% required by s 24 of the Act, compensation was payable only for 10% WPI in respect of “major depressive disorder”. This decision was the subject of review in application 2007/791.

12.     In the decision dated 30 October 2008 the Tribunal found that Mrs Graves suffered 5% WPI under Table 7.2 in respect of her ear injury and 10% WPI under Table 5.1 in respect of her work related psychological injury in the form of “Major Depressive Disorder with secondary Alcohol Dependence”.

13.     Therefore, in accordance with Canute, the Tribunal found that Mrs Graves was entitled to claim compensation under ss 24 and 27 of the Act in respect of her 10% WPI as a result of her work related psychological injury.

14. Subsection 67(1) of the Act states that costs incurred by a party to proceedings instituted in respect of a reviewable decision shall be borne by that party.

15. Subsection 67(8) allows the Tribunal to order the costs incurred by the applicant, or part of them, to be paid by the responsible authority if the Tribunal makes a decision “varying a reviewable decision in a manner favourable to the claimant” (s 67(8)(a)) or if the Tribunal makes a decision “setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision” (s 67(8)(b)).

16. Therefore the issues to be considered are whether the decision of the Tribunal to set aside the reviewable decision in respect of application N2006/1457 and to vary the reviewable decision in respect of application 2007/791 satisfy the requirements of s 67(8) so that the Tribunal should exercise its discretion to order Mrs Graves’ costs to be paid by Comcare in respect of these applications.

CONSIDERATION

17. In my reading of s 67(8) of the Act, the variation in a Tribunal’s decision that allows an order for costs in favour of the Applicant is clearly referable to the reviewable decision and not any contentions made by the Respondent either before or during the hearing.

18.     It follows that on this point I have not accepted the submission made on behalf of the Applicant and prefer the submission made by Counsel for the Respondent.

19.     As noted above, the reviewable decision in respect of application N2006/1457 was set aside. However, as a result of the circumstances of this case, the decision in respect of application 2007/791, which determined Mrs Graves’ entitlement for WPI at 10%, had the effect of substituting for that reviewable decision (in respect of N2006/1457).

20. As the assessment for WPI had been reduced to 10% from 15%, it is clear that the decision in substitution for the reviewable decision of 5 October 2006 was not more favourable than the reviewable decision, which means, in my view, that s 67(8)(b) does not apply to application N2006/1457.

21.     The reviewable decision of 6 March 2007 was varied. The variation, however, was limited to the description of the psychological injury as “Major Depressive Disorder with secondary co-morbid Alcohol Dependence”.  This variation indicated a correction of the medical diagnosis that was consistent with the weight of the medical evidence, but did not vary the substance of the decision in respect of Mrs Graves’ WPI resulting from her work related psychological injury which was 10% under Table 5.1.

22.      Therefore, the Tribunal’s decision in application 2007/791 had the same outcome as the reviewable decision, which, in my view, means that the reviewable decision was not varied in a manner favourable to Mrs Graves so that she is not entitled to costs under s 67(8)(a) in respect of this application.

DECISION

23. For reasons set out above, the Tribunal orders that pursuant to s 67(8) of the Act Comcare pay Mrs Graves’ costs in relation to the proceedings of application 2008/1047 in accordance with the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.

Signed:         ..............[sgd]..................................................................
  Associate

Date of Interlocutory Hearing    2 February 2009
Date of Interlocutory Decision   18 February 2009
Counsel for the Applicant         Mr J Dodd
Solicitor for the Applicant          Ms M Cassidy, Slater & Gordon
Counsel for the Respondent     Ms R Henderson
Solicitor for the Respondent     Ms L Brady, Australian Government Solicitor