Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1031
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2007/2448, 2009/4384,
GENERAL ADMINISTRATIVE DIVISION ) 2009/4385 & 2009/5484
Re NEAL KARA Applicant
And
COMCARE
Respondent
CORRIGENDUM TO DECISION NO. [2010] AATA 1031
TRIBUNAL: Deputy President D G Jarvis
DATE: 22 December 2010
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in the within proceedings by deleting the date “21 August 1997”, on page 1, paragraph 1(a) and page 46, paragraph 138(a)(i), and replacing that date with “28 July 1997”, being the correct date of the applicant’s accident.
D G Jarvis
(Deputy President)
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1031
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2007/2448, 2009/4384,
GENERAL ADMINISTRATIVE DIVISION ) 2009/4385 & 2009/5484
Re NEAL KARA Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis
Professor PL Reilly, AO, MemberDate20 December 2010
PlaceAdelaide
Decision 1. In matters numbered 2007/2448 and 2009/4384, the tribunal sets aside the decisions under review, and in place of those decisions, decides that:
(a) Comcare is liable for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for severe bruising to chest and right shoulder with damage to AC joint region, chronic pain syndrome and chronic adjustment disorder, hearing loss, tinnitus, headaches, lumbar sprain, left buttock pain, lipomas at the site of soft tissue injury sustained in a motor vehicle accident on 28 July 1997, digestive disorder comprising or entailing gastritis or functional dyspepsia and irritable bowel syndrome, and closed fracture of ribs sustained in the accident;
(b) during the period from 1 November 2006 up to and including the date of this decision, the applicant has no entitlement to compensation under the SRC Act for severe bruising to the chest and right shoulder or any closed fractures of the ribs;
(c) subject to paragraph (e), on and from 1 November 2006 and up to and including the date of this decision, Comcare is liable for compensation for the applicant’s ongoing chronic pain syndrome and chronic adjustment disorder, damage to the AC joint region, hearing loss, tinnitus, headaches, an aggravation of the degenerative condition of the applicant’s lumbar spine, lipomas, left buttock pain and a digestive disorder comprising or entailing gastritis or functional dyspepsia and irritable bowel syndrome;
(d) Comcare is liable for compensation under s 24 of the SRC Act for permanent impairment in respect of chronic pain syndrome and chronic adjustment disorder, and the degree of permanent impairment in respect of those injuries is 10%; and
(e) Comcare is not liable for compensation under s 24 of the SRC Act for permanent impairment in respect of the right shoulder condition, hearing loss, tinnitus, headaches, aggravation of the degenerative condition of the lower spine, left buttock pain, lipomas or the gastric disorder.
2. In matter numbered 2009/4385, the tribunal sets aside…
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- AGLC
- NEAL Kara v Comcare [2010] AATA 1031
- Case
- [2010] AATA 1031
- Decision Date
CaseChat Overview and Summary
The tribunal examined the evidence and arguments presented by both parties, focusing on the medical and surveillance evidence concerning Kara's chest and shoulder injuries, depressive disorder, vertigo, and myocardial infarction. The tribunal affirmed that Kara no longer suffered from chest and shoulder injuries and set aside the decision regarding her depressive disorder, finding that Comcare's administrative action was not reasonable and did not materially contribute to her psychological condition. The tribunal also affirmed the decision that Comcare was not liable for vertigo or myocardial infarction. However, the tribunal found Comcare liable for permanent impairment due to Kara's psychological condition and sexual dysfunction.
The tribunal's reasoning involved a detailed analysis of the statutory provisions and relevant case law. The tribunal concluded that Comcare was liable for certain injuries and conditions, including chronic pain syndrome, chronic adjustment disorder, and digestive disorders, and determined the degree of permanent impairment for these conditions. The tribunal set aside decisions that denied liability for these conditions and directed Comcare to reconsider Kara's entitlement to compensation. The tribunal also found Comcare liable for permanent impairment in respect of sexual dysfunction and remitted the matter for further assessment. The tribunal reserved the right to apply for costs within twenty-one days and directed Comcare to pay the costs relating to certain decisions.
Orders
Orders of the court
1. In matters numbered 2007/2448 and 2009/4384, the tribunal sets aside the decisions under review, and in place of those decisions, decides that:
(a) Comcare is liable for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for severe bruising to chest and right shoulder with damage to AC joint region, chronic pain syndrome and chronic adjustment disorder, hearing loss, tinnitus, headaches, lumbar sprain, left buttock pain, lipomas at the site of soft tissue injury sustained in a motor vehicle accident on 28 July 1997, digestive disorder comprising or entailing gastritis or functional dyspepsia and irritable bowel syndrome, and closed fracture of ribs sustained in the accident;
(b) during the period from 1 November 2006 up to and including the date of this decision, the applicant has no entitlement to compensation under the SRC Act for severe bruising to the chest and right shoulder or any closed fractures of the ribs;
(c) subject to paragraph (e), on and from 1 November 2006 and up to and including the date of this decision, Comcare is liable for compensation for the applicant’s ongoing chronic pain syndrome and chronic adjustment disorder, damage to the AC joint region, hearing loss, tinnitus, headaches, an aggravation of the degenerative condition of the applicant’s lumbar spine, lipomas, left buttock pain and a digestive disorder comprising or entailing gastritis or functional dyspepsia and irritable bowel syndrome;
(d) Comcare is liable for compensation under s 24 of the SRC Act for permanent impairment in respect of chronic pain syndrome and chronic adjustment disorder, and the degree of permanent impairment in respect of those injuries is 10%; and
(e) Comcare is not liable for compensation under s 24 of the SRC Act for permanent impairment in respect of the right shoulder condition, hearing loss, tinnitus, headaches, aggravation of the degenerative condition of the lower spine, left buttock pain, lipomas or the gastric disorder.
2. In matter numbered 2009/4385, the tribunal sets aside the decision under review, and in place of that decision, decides that:
(a) Comcare is not liable under s 14 of the SRC Act for compensation for vertigo; and
(b) Comcare is liable for compensation under s 24 of the SRC Act for permanent impairment in respect of sexual dysfunction with a deemed date of injury of 4 April 2000, and the degree of permanent impairment in respect of that injury is 15%.
3. In matter numbered 2009/5484 (relating to the claim for myocardial infarction) the tribunal affirms the decision under review.
4. The tribunal remits the matter to the respondent for reconsideration, and directs that the applicant’s entitlement to compensation under ss 16, 19, 24, 27 and 29 of the SRC Act be assessed in accordance with the above decisions and the reasons for them.
5. The tribunal reserves liberty to apply within twenty-one days in relation to the costs of the proceedings, and orders that in the absence of any such application, the respondent pay the costs of the proceedings insofar as those costs relate to the decisions referred to in paragraphs 1(a), 1(c), 1(d) and 2(b).
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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