Re Dwight and Comcare - [2006] AATA 730

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 730
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/410

GENERAL ADMINISTRATIVE DIVISION )

Re TERRY MICHAEL DWIGHT

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President S D Hotop
Dr D Weerasooriya, Member
Date23 August 2006
PlacePerth

Decision
The Tribunal affirms the decision under review.

..............................................
Deputy President

CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered psychiatric injury – respondent accepted liability to pay compensation to applicant in respect of injury – applicant’s injury resulted in permanent impairment – degree of permanent impairment – respondent finally assessed degree of applicant’s permanent impairment as 30% - applicant subsequently claimed additional permanent impairment compensation – respondent rejected applicant’s claim – degree of applicant’s permanent impairment is 30% - respondent not liable to pay additional compensation to applicant – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 14(1), s 24 and s 25(4)
Guide to the Assessment of the Degree of Permanent Impairment Pt A, Table 5.1
Comcare v Emery (1993) 19 AAR 1
Comcare v Fiedler (2001) 115 FCR 328
Comcare v Ticsay (1992) 38 FCR 181
Re SAT and Comcare [2004] AATA 334
Thiele v Commonwealth (1990) 22 FCR 342
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION

23 August 2006
  Deputy President S D Hotop

               Dr D Weerasooriya, Member

Introduction
1.       On 14 January 1996 the applicant, in the course of his employment with National Rail Corporation Ltd as a locomotive driver, was involved in a fatal train accident as a result of which he contracted post traumatic stress disorder (“PTSD”) from which he still suffers.
2.       The applicant claimed compensation for injuries sustained by him in the abovementioned accident, and on 10 April 1996 the respondent accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to the applicant in respect of, inter alia, “post traumatic stress syndrome”.
3. On 30 May 1999 the applicant claimed compensation for permanent impairment resulting from his “post traumatic stress syndrome”, and on 6 April 2000 the respondent determined that the applicant had a 10% “whole person impairment” and that it was liable under ss 24 and 27 of the SRC Act to pay compensation to him on that basis.
4. On 5 December 2002 the applicant made a second claim for permanent impairment compensation, and on 5 February 2003 the respondent determined that the applicant had a 30% “whole person impairment” resulting from his PTSD and that it was liable under ss 24 and 27 of the SRC Act to pay additional compensation to him on that basis.
5.       On 30 September 2004 the applicant made a third claim for permanent impairment compensation, but on 22 October 2004 the respondent determined that it was not liable to pay further permanent impairment compensation to the applicant.
6.       On 20 January 2005 the applicant made a fourth claim for permanent impairment compensation, but on 9 May 2005 the…

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 Re Dwight and Comcare

Details

AGLC: Re Dwight and Comcare [2006] AATA 730
Case: [2006] AATA 730
Decision Date: 23 August 2006

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, the applicant, Dwight, sought review of a decision made by the respondent, Comcare, in relation to a claim for additional compensation for permanent impairment. Dwight, a Commonwealth employee, had previously suffered a psychiatric injury and Comcare had accepted liability to pay compensation in respect of this injury. The dispute centred on the assessment of the degree of Dwight’s permanent impairment and the subsequent claim for additional compensation. Comcare had initially assessed the degree of Dwight’s permanent impairment at 30%, and later rejected his claim for additional compensation on the basis that the degree of impairment remained unchanged.

The primary legal issue before the Tribunal was whether Comcare’s final assessment of the degree of Dwight’s permanent impairment was correct and, consequently, whether Comcare was liable to pay additional compensation. This involved interpreting the relevant legislative provisions and applying the guidelines for assessing the degree of permanent impairment. The Tribunal also needed to consider the applicable case law, particularly in relation to the assessment of permanent impairment and the criteria for determining additional compensation.

The Tribunal affirmed the decision under review, finding that Comcare’s assessment of Dwight’s permanent impairment at 30% was correct and that there was no basis for additional compensation. The Tribunal considered the evidence and the applicable statutory provisions, including the Safety, Rehabilitation and Compensation Act 1988 and the Guide to the Assessment of the Degree of Permanent Impairment. The Tribunal concluded that the assessment of 30% was consistent with the legislative framework and the relevant case law, and that Comcare was not liable to pay additional compensation.

The Tribunal’s decision was based on a thorough analysis of the evidence and a careful application of the relevant legal principles. The Tribunal found that the degree of permanent impairment had not changed and that Comcare’s assessment was accurate. Therefore, the Tribunal affirmed the decision of Comcare and dismissed Dwight’s claim for additional compensation.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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		)
Re		TERRY MICHAEL DWIGHT