Nicholson and Comcare (Compensation)

This matter concerned an appeal by Mr Nicholson against a decision of a delegated review officer of Comcare, which affirmed an earlier determination. The dispute centred on Mr Nicholson's entitlement to compensation for a psychiatric condition, specifically whether he suffered permanent impairment and, if so, whether the assessed percentage of Whole Person Impairment (WPI) entitled him to compensation for permanent impairment and non-economic loss. The proceedings were before A Poljak SM.

The court was required to determine whether the applicant suffered permanent impairment as a result of his injury. If permanent impairment was established, the court had to consider whether the percentage of WPI assessed in accordance with the Comcare Guide created an entitlement to compensation under sections 24 and 27 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and if so, to what extent.

The court noted that Comcare conceded the applicant continued to suffer incapacity and impairment, with an ongoing entitlement to medical treatment and incapacity payments. Comcare accepted the applicant suffered a psychiatric ailment and permanent impairment but contended this was constitutional and unrelated to his employment. The court considered reports from Associate Professor Michael Robertson and Dr Stephen Allnutt. Associate Professor Robertson opined that the applicant presented with a pre-existing psychiatric problem, estimating a 15% WPI, with 5% likely present before commencing employment. Dr Allnutt assessed a 25% WPI based on impairment in daily living activities, marked disturbance in thinking, and behavioural disturbances. The court's reasoning focused on the application of the Comcare Guide, particularly Table 5.1 concerning WPI percentages for psychiatric conditions, and the definitions provided for supervision, assistance, and direction. The court ultimately affirmed the reviewable decision.