Warren and Comcare - [2005] AATA 630

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 630

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2004/113
) A2004/369

GENERAL ADMINISTRATIVE DIVISION		)
Re		LINA WARREN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mr J.W. Constance, Senior Member

Date 30 June 2005

Place Canberra

Decision

No. A2004/113

The decision of Comcare made 23 March 2004 is set aside and in substitution it is decided that:
1)Ms Warren has suffered an injury, being a chronic pain syndrome, which is permanent and which has resulted in a 20% Whole Person Impairment and Comcare is liable to pay compensation to Ms Warren pursuant to section 24 of the Safety, Rehabilitation and Compensation Act (Cth) 1988 in respect of the injury;
2)Ms Warren has suffered an injury, being a cervical disc injury at C4/5 level, which has resulted in a 5% Whole Person Impairment; Comcare is not liable to pay compensation to Ms Warren for this injury by reason of the provisions of section 24(7) of the Safety, Rehabilitation and Compensation Act (Cth) 1988;
3)Ms Warren has suffered an injury, being an Adjustment Disorder with Depressed Mood, which is permanent and which has resulted in a 10% Whole Person Impairment and Comcare is liable to pay compensation to Ms Warren pursuant to section 24 of the Safety, Rehabilitation and Compensation Act (Cth) 1988 in respect of the injury;
The parties have liberty to apply to the Tribunal in relation to the costs of this application.

No. A2004/369

The decision of Comcare 22 November 2004 is set aside and in substitution it is decided that during August and/or September 2003 Ms Warren suffered an injury, being left shoulder rotator cuff tendinitis and muscle strain of the upper and lower back, which resulted in impairment within the meaning of section 14 of the Safety, Rehabilitation and Compensation Act (Cth) 1988.
The parties have liberty to apply to the Tribunal in relation to the costs of this application.

..............................................

CATCHWORDS

COMPENSATION – two applications – first, whether permanent impairment for regional pain syndrome, cervical spine and psychiatric/psychological injury – second, whether injury to left shoulder compensable

Permanent impairment – regional pain syndrome, neck and adjustment disorder with depression - whether injuries permanent before 1 December 1988 – permanent impairment of cervical neck not compensable as permanent before 1 December 1988 and also less than 10% whole person impairment – regional pain syndrome compensable as permanent after 1 December 1988 and whole person impairment of 20% - adjustment disorder with depression compensable as permanent after 1 December 1988 and whole person impairment of 10% - decision set aside

Compensable injury – whether left shoulder injury occurred during rehabilitation course – injury occurred during rehabilitation course – respondent liable for injury to left shoulder and back – decision set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, 14, 16, 19, 24, 27

Re Kay and Comcare (1997) 47 ALD 576

Comcare v Kay (1997) 26 AAR 124.

Halliday v Comcare Australia (1994) 19 AAR 431

Comcare…

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 Warren and Comcare

Details

AGLC: Warren and Comcare [2005] AATA 630
Case: [2005] AATA 630
Decision Date: 30 June 2005

CaseChat Overview and Summary

In this case, the applicant sought compensation for two injuries under the Safety, Rehabilitation and Compensation Act 1988. The first was a permanent impairment due to regional pain syndrome, cervical spine, and a psychiatric/psychological injury. The second was for an injury to the left shoulder. The matter was heard in the Administrative Appeals Tribunal of Australia. The tribunal had to determine whether the applicant's injuries were permanent before 1 December 1988, and if so, whether they resulted in a whole person impairment of 10% or more. The tribunal also had to decide whether the left shoulder injury occurred during the rehabilitation course.

The tribunal found that the applicant's injuries were permanent after 1 December 1988, but not before. The permanent impairment of the cervical neck was not compensable as it was less than 10% whole person impairment and occurred before 1 December 1988. However, the regional pain syndrome and adjustment disorder with depression were compensable as they occurred after 1 December 1988 and resulted in a whole person impairment of 20% and 10% respectively. The tribunal also found that the left shoulder injury occurred during the rehabilitation course and was therefore compensable.

The tribunal set aside the decisions of Comcare and ordered that the applicant's injuries be compensated. The tribunal relied on the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 and relevant case law, including Re Kay and Comcare, Halliday v Comcare Australia, Comcare v Fiedler, Canute and Comcare, Mahne and Comcare, Canute v Comcare, and Comcare v Levett. The tribunal's decision was based on the facts of the case and the applicable law.

The tribunal ordered that Comcare compensate the applicant for the permanent impairment due to regional pain syndrome and adjustment disorder with depression, and for the injury to the left shoulder. The tribunal also set aside the previous decisions of Comcare and ordered that the applicant's injuries be compensated from the date of the tribunal's decision.

Orders