McCarroll and Comcare

[2006] AATA 720

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 720

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1845

GENERAL ADMINISTRATIVE DIVISION		)
Re		BARBARA McCARROLL

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr J D Campbell, Member

Date21 August 2006

PlaceSydney

Decision The decision under review is affirmed.

(Sgd) M D Allen

..............................................

Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – Applicant received payment for Permanent Impairment assessed at 39% - reviewable decision concerned whether Applicant had suffered an increase in Permanent Impairment – Applicant claimed impairment from four new injuries including Horner’s syndrome - Applicant’s credit in issue – Tribunal satisfied from video evidence that the Applicant has exaggerated her symptoms – decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 - ss 24, 25, 28

REASONS FOR DECISION

21 August 2006 Senior Member M D Allen
Dr J D Campbell, Member

1.      In 1992 the Applicant received a payment for Permanent Impairment pursuant to the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”), her degree of Permanent Impairment being assessed at 39 per cent according to the Guide to the Assessment of Permanent Impairment, created pursuant to s 28 of the SRC Act.

2. On 7 July 2003 a delegate of the Respondent found that the Applicant had suffered an increase in Permanent Impairment which amounted to 10 per cent on the said Guide to Permanent Impairment. On 1 August 2003 another delegate of the Respondent in a reviewable decision made pursuant to ss 62(1) SRC Act, set aside the determination of 7 July 2003 and determined that the increase in Permanent Impairment suffered by the Applicant did not amount to 10 per cent and therefore pursuant to ss 25(4) SRC Act, no payment for any increase in Permanent Impairment was payable to the Applicant.

3.      On 25 November 2003, an application to review the decision of 1 August 2003 was lodged with the Tribunal.

4.      The said application for review first came on for hearing before this Tribunal on 18 May 2005. At that hearing the Tribunal raised with the parties the effect of the judgment of Hill J in Canute v Comcare [2005] FCA 299. The decision of Hill J was appealed to the Full Court and the decision of the Full Court, namely Comcare v Canute [2005] FCA 262, was handed down on 16 December 2005. This matter was then re-listed before Tribunal.

5.      An appeal against the decision in Comcare v Canute (supra) was heard by the High Court on 13 June 2006. For the reasons set out below, we do not consider that we need to await the outcome of that appeal before making our decision.

6.      As stated above, the Applicant was assessed in 1999 as having a whole person impairment of 39 per cent on the Comcare Guide to Assessment of Permanent Impairment. That figure was derived as follows:

·     Cervical Spine   Table 9.6                 15 %

·     Right Arm…