Mahne and Comcare - [2004] AATA 985

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 985
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/228, V02/1332

GENERAL ADMINISTRATIVE DIVISION ) & V03/510

Re MARIA MAHNE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr J Handley, Senior Member
Date21 September 2004
PlaceMelbourne

Decision
1.        The applicant suffered an impairment of her right shoulder and a psychiatric impairment both becoming permanent after 1 December 1988.

2.        The applicant is entitled to Compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 under both Tables 5.1 and 9.1 of the Guide to the assessment of permanent impairment at 10 per cent.

3.        The entitlement to compensation shall be determined upon the Conversion Values Chart at Table 14.1 of the Guide.

4.        Accordingly, the decisions under review in applications V2002/228 and V2003/510 shall be set aside and decisions pursuant to the above and these reasons shall be made in substitution.

5.        For the reasons contained in this decision, the decision under review in application V2002/1332 is affirmed.

(Sgd) J Handley
Senior Member

COMPENSATION – shoulder injury in 1985 – total incapacity from 1986 to date – surgery in 1998 – psychiatric sequelae – whether injuries – permanent before or after 1 December 1988 – decisions set aside ‑ household services – decision affirmed
Compensation (Commonwealth Government Employees) Act 1971 s39, s39(14),
Safety, Rehabilitation & Compensation Act 1988 (Cth) s4, s24 and s29
Department of Defence v Maida (2002) 36 AAR 69
Department of Defence v West (1998) 885 FCR 491
REASONS FOR DECISION

21 September 2004 Mr J Handley, Senior Member
1.      The applicant applies to review three decisions of Comcare.
2.      In application V2002/228 the applicant applies to review a reviewable decision made on 7 January 2002 which affirmed a determination made on 19 September 2001. The respondent then decided that the applicant was not entitled to lump sum compensation for permanent impairment for the condition of “right rotator cuff tear” under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) or the Safety, Rehabilitation & Compensation Act 1988 (“the 1988 Act”).
3.      In application V2002/1332 the applicant applied to review a reviewable decision of the respondent made on 22 October 2002 which affirmed a determination of 16 August 2002 denying liability in an application for “household services” pursuant to s29 of the 1988 Act. The claim then made was confined to provision of services for gardening, lawn mowing, washing of window shutters and external washing of windows.
4.      In application V2003/510 the applicant applied to review a reviewable decision made on 7 May 2003 which varied a determination made on 6 March 2003. In the primary determination the respondent denied liability for compensation for a psychiatric injury consequent upon the right rotator cuff injury. In the reviewable decision the respondent was satisfied that the applicant suffered a disease more particularly an “ailment” as defined by the 1988 Act and further decided that the employment had made a material contribution to the psychiatric…

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 Mahne and Comcare

Details

AGLC: Mahne and Comcare [2004] AATA 985
Case: [2004] AATA 985
Decision Date: 21 September 2004

CaseChat Overview and Summary

In the case of Mahne and Comcare, the applicant sought compensation for injuries sustained in the course of her employment. The central issue was whether the applicant was entitled to compensation for a right shoulder impairment and a psychiatric impairment, both of which became permanent after 1 December 1988. The applicant argued that she should receive compensation under Tables 5.1 and 9.1 of the Guide to the assessment of permanent impairment at 10 per cent, and that the entitlement should be determined using the Conversion Values Chart at Table 14.1 of the Guide. The court had to decide whether these assessments were accurate and whether the applicant was entitled to compensation for the injuries claimed.

The court found that the applicant's right shoulder impairment and psychiatric impairment were both permanent as of the specified date. The court assessed the severity of the impairments according to the Guide, finding that the 10 per cent impairment rating was appropriate. The court also determined that the Conversion Values Chart at Table 14.1 of the Guide was the correct method for calculating the compensation entitlement. The court concluded that the original decisions to deny compensation were incorrect and that the applicant was entitled to the compensation as claimed.

The court set aside the previous decisions denying compensation and issued new decisions in line with its findings. The court affirmed the decision to deny compensation in a separate application, finding that the applicant had not met the criteria for entitlement in that instance. The court ordered that the applicant's entitlement to compensation be calculated according to the specified tables and chart, and that the previous decisions be replaced with the new decisions.

Orders

Orders of the court

1. The applicant suffered an impairment of her right shoulder and a psychiatric impairment both becoming permanent after 1 December 1988.

2. The applicant is entitled to Compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 under both Tables 5.1 and 9.1 of the Guide to the assessment of permanent impairment at 10 per cent.

3. The entitlement to compensation shall be determined upon the Conversion Values Chart at Table 14.1 of the Guide.

4. Accordingly, the decisions under review in applications V2002/228 and V2003/510 shall be set aside and decisions pursuant to the above and these reasons shall be made in substitution.

5. For the reasons contained in this decision, the decision under review in application V2002/1332 is affirmed.

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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GENERAL ADMINISTRATIVE DIVISION		) & V03/510
Re		MARIA MAHNE