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, MemberDate23 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…
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- AGLC
- Re Dwight and Comcare [2006] AATA 730
- Case
- [2006] AATA 730
- Decision Date
CaseChat Overview and Summary
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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