Re Sat and Comcare

[2004] AATA 334

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 334

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/394

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAT

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President Jarvis and Dr Eriksen, Member

Date29 March 2004

PlaceAdelaide

Decision

The Tribunal:

1.        sets aside the decision under review and in substitution therefor decides that the applicant has a permanent impairment in respect of her psychiatric conditions of 25%;

2.        reserves liberty to apply within 14 days in relation to the costs of the proceedings; and

3.        orders that in the absence of any such application, the respondent pay the costs of the proceedings.

D.G. Jarvis
  (Signed)

Deputy President

CATCHWORDS

COMPENSATION – degree of permanent impairment – acute depression – meaning of “activities of daily living” in the Guide – meaning of “need for some supervision and direction” in activities of daily living – assessment of 25% permanent impairment under Table 5.1 of the Guide – reviewable decision set aside.

Safety, Rehabilitation and Compensation Act 1988, s 24, s 25 and s 28

Guide to the Assessment of the Degree of Permanent Impairment, Table 5.1

Re Emery and Comcare (1992) 15 AAR 477

Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147

Re Langston and Comcare (2000) 64 ALD 449

REASONS FOR DECISION

29 March 2004 Deputy President Jarvis and Dr Eriksen, Member

Introduction

1.      The present matter has its origins in a claim made by the applicant in 1991 for a physical injury to both elbows and hands arising from her employment.  Liability was accepted.  Some five years later, on 1 July 1996, Comcare determined that liability was extended to include two psychiatric conditions, namely a depressive illness and adjustment disorder.  On 10 January 1997 Comcare determined that the applicant suffered permanent impairment as a result of her employment related physical injuries and that the degree of that permanent impairment was 19%.

2.      In a later decision dated 7 September 2000 Comcare determined that there was no liability to pay compensation in respect of further permanent impairment in respect of the applicant’s psychiatric conditions, because the conditions were not permanent, she had not undertaken all reasonable rehabilitative treatment, and she had not gained a further 10% increase in her level of permanent impairment, as assessed under the Guide to the Assessment of the Degrees of Permanent Impairment (the “Guide”).  A review officer affirmed this determination on 21 October 2002.  The applicant has applied to this Tribunal for review of this reviewable decision.

3. Mr M Roder appeared for the applicant and Mr A Possingham appeared for the respondent. Oral evidence was given by the applicant and Dr Marcia Fogarty in support of the applicant’s claim, and the respondent called Dr Andris Kalnins to give oral evidence. In addition, the Tribunal received the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the “T Documents”), and a number of other documents. After the…