Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 858
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/184
GENERAL ADMINISTRATIVE DIVISION ) Re MICHELLE STAINES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date5 September 2005
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that Ms Staines has a whole person impairment of 10 percent under Table 5.1 of the Guide to the Degree of Permanent Impairment. The scores to be used for the purpose of calculating her entitlement to compensation for non-economic loss under Part B of the Guide are:
Pain - 0
Suffering - 3
Mobility - 2
Social relationships - 3
Recreation and leisure - 4Other - 0
The matter is remitted to Comcare to determine the correct amount that is payable to Ms Staines in accordance with these reasons.
As this matter has resolved in favour of Ms Staines, pursuant to subs 67(8) of the Act I order Comcare to pay her reasonable costs of these proceedings as agreed or taxed in accordance with the Tribunal’s Practice Direction.
..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - entitlements - assault occasioning injury - liability accepted for panic disorder - multifactorial onset - predisposition - condition existing prior to injury - impairment prior to injury not permanent - fluctuation in symptomatology - issues of credit - interpretation of Table 5.1 in the Comcare Guide - permanent impairment - agreement on non-economic loss values - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 7, 14, 27, 67
Comcare v Moon (2003) 75 ALD 160
Re Harrington and Military Rehabilitation and Compensation Commission [2005] AATA 384.
Commonwealth v Borg (1994) 20 AAR 299
Langley v Repatriation Commission (1993) 115 ALR 51
Comcare v Mathieson [2004] FCA 212)
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 Sat and Comcare [2004] AATA 334 at [28]).
Martin v Australian Postal Corporation (1999) 29 AAR 420
REASONS FOR DECISION
5 September 2005 Mr S. Webb, Member 1. By this application Michelle Staines is seeking review of a decision made by a Comcare review officer on 13 May 2004 to affirm a primary determination to reject her claim for compensation for permanent impairment and non-economic loss.
2. The matter came on for hearing before me in Canberra on 3 and 4 August 2005. Ms Staines was represented by Mr A. Anforth, counsel. Comcare was represented by Mr B. Dubé, counsel. Ms Staines, Lynette Staines (her mother), Dr Leigh Nomchong (Clinical Psychologist), Dr Jillian Fleming (Forensic Psychologist) and Dr John Saboisky (Consultant Psychiatrist) gave oral evidence. Materials were tendered and labelled for identification. The Tribunal had before it documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
factual context
3. The following factual findings are not in dispute.
4. Ms…
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- AGLC
- Staines and Comcare [2005] AATA 858
- Case
- [2005] AATA 858
- Decision Date
CaseChat Overview and Summary
The legal issues centred around the multifactorial onset of the claimant's condition, including whether the panic disorder resulted from the assault or if there was a pre-existing predisposition. The Tribunal had to consider the fluctuation in symptomatology and the credit issues related to the claimant's testimony. Furthermore, the correct interpretation of Table 5.1 and its application to the facts of the case were critical, as was the agreement on non-economic loss values. The Tribunal set aside the earlier decision and substituted its own findings regarding the degree of impairment and the appropriate scores for non-economic loss.
In its reasoning, the Tribunal found that the claimant had a whole person impairment of 10 percent, which was significantly lower than the 40 percent previously determined. The Tribunal assigned specific scores to various categories of non-economic loss, leading to a reassessment of the compensation payable. The decision was influenced by the Tribunal's interpretation of the Comcare Guide and the case law cited, which highlighted the importance of considering all contributing factors to the claimant's condition. The Tribunal's decision was based on a detailed analysis of the evidence and a careful application of the relevant statutory provisions and precedents.
The Tribunal's final orders included setting aside the previous decision and substituting its own findings on the degree of impairment and the non-economic loss scores. The matter was remitted to Comcare to recalculate the compensation payable to the claimant. Additionally, the Tribunal ordered Comcare to pay the claimant's reasonable costs of the proceedings in accordance with the Tribunal’s Practice Direction.
Orders
Orders of the court
The decision under review is set aside and in substitution thereof the Tribunal decides that Ms Staines has a whole person impairment of 10 percent under Table 5.1 of the Guide to the Degree of Permanent Impairment. The scores to be used for the purpose of calculating her entitlement to compensation for non-economic loss under Part B of the Guide are:
Pain - 0
Suffering - 3
Mobility - 2
Social relationships - 3
Recreation and leisure - 4
Other - 0
The matter is remitted to Comcare to determine the correct amount that is payable to Ms Staines in accordance with these reasons.
As this matter has resolved in favour of Ms Staines, pursuant to subs 67(8) of the Act I order Comcare to pay her reasonable costs of these proceedings as agreed or taxed in accordance with the Tribunal’s Practice Direction.
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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