Simpson and Comcare - [2003] AATA 1168

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1168
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/540
GENERAL ADMINISTRATIVE DIVISION

Re: TODD SIMPSON
Applicant

And: COMCARE
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             20 November 2003
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member

COMPENSATION - degree of permanent impairment - physical injuries - post-traumatic stress disorder - whether applicant entitled to further compensation
Safety, Rehabilitation and Compensation Act 1988 ss4, 24, 24(2), 25, 25(4), 27, 28(1)
Comcare v Roser (2003) 36 AAR 534
Comcare v Mihajlovic (2000) 97 FCR 304
Re Laven and Comcare [2003] AATA 821

REASONS FOR DECISION

20 November 2003  G.D. Friedman, Member
1.      This is an application by Todd Simpson (the applicant) for review of a decision of Comcare (the respondent) dated 12 May 2003. The decision affirmed a determination, made on 9 April 2003, that denied liability for permanent impairment for the applicant's accepted condition, which resulted from injuries suffered by the applicant on 19 February 1993.
2.      At the hearing of this matter on 7 November 2003, Mr J. Ferwerda of counsel represented the applicant, and Ms A. McMahon of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T54).
BACKGROUND
4.      The applicant was born on 4 April 1970. From 1 June 1987 to 18 December 1994 he served as a member of the Royal Australian Navy.
5.      On 20 February 1993 the applicant was injured while on a tour of duty in Auckland, New Zealand (the1993 incident). He claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act) in respect of a
blowout fracture right orbit
fractured right zygoma
painful left shoulder.

6.      The applicant first sought medical treatment for psychological problems arising out of the 1993 incident while stationed in Darwin in mid-1994.
7.      Mr E. Milliken, psychologist, and Dr D. Wallace, psychiatrist diagnosed the applicant as suffering from post-traumatic stress disorder (PTSD) arising out of the 1993 incident.
8.      On 2 May 1995 the respondent accepted liability for complex comminuted fracture of the right malar with extensive blowout of the orbital floor and small effusion in the right shoulder joint (the accepted physical condition) with the date of injury being 20 February 1993.
9.      On 10 July 1995 the applicant made a claim for permanent impairment in respect of double vision right eye (looking down), left shoulder pain/some sinus pain, occasional right cheek pain (especially when flying).. On 28 August 1995 the applicant made a claim for permanent impairment for mild [left] rotator cuff tendonitis and chronic muscular ligamentous sprain. The applicant also made a claim for diplopia in extreme down gaze, numbness of right cheek and upper gum.
10.     On 13 December 1995 Dr G. Long, consultant occupational physician, assessed the applicant as being permanently impaired at 10% of the whole person under the Comcare Guide to the assessment of the degree of permanent impairment (the Guide)…

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 Simpson and Comcare

Details

AGLC: Simpson and Comcare [2003] AATA 1168
Case: [2003] AATA 1168
Decision Date: 20 November 2003

CaseChat Overview and Summary

In the matter of Todd Simpson versus Comcare, the applicant sought review of a decision made by Comcare, affirming a determination that denied liability for permanent impairment for the applicant's accepted condition. The applicant, who had served in the Royal Australian Navy from 1987 to 1994, was injured in 1993 while on duty in Auckland, New Zealand. Comcare had accepted liability for certain physical injuries resulting from this incident, and subsequently accepted liability for post-traumatic stress disorder (PTSD) as a result of the same incident. The applicant sought compensation for permanent impairment due to both the physical injuries and the PTSD.

The primary issue before the Tribunal was whether the applicant was entitled to further compensation for the permanent impairment caused by the PTSD, given that the total whole person impairment, when combining the physical and psychological injuries, was only an increase of 9% over the initial 10% impairment determined for the physical injuries alone. Under Section 25(4) of the Safety Rehabilitation and Compensation Act 1988, no further amounts of compensation are payable unless the increase in the degree of impairment is 10% or more.

The Tribunal found that the determination made by Comcare on 22 May 1996 was a final assessment of the applicant’s degree of permanent impairment. It was also determined that the physical injury and the PTSD were not separate conditions, as symptoms of the psychological condition arose shortly after the 1993 incident. The Tribunal concluded that, as the increase in the combined degree of permanent impairment was less than 10%, the applicant was not entitled to further payment for permanent impairment under Section 25(4) of the Act.

The Tribunal affirmed the decision under review, finding that the applicant was not entitled to further compensation for permanent impairment.

Orders