What's New in Commonwealth Compensation - DibbsBarker

In terms of the Applicant’s back condition, it was common ground that, pursuant to section 124 of
the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”), liability for permanent
impairment of the Applicant’s back would only arise if the impairment became permanent after 1
Liability was accepted under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988
Act”) for the Applicant’s “minor annular tear of the L5/S1 disc resulting in degenerative changes at
the L4/L5 and L5/S1 level” with effect from 10 June 1991. Subsequently, liability was accepted for
conditions of chronic adjustment disorder, pain disorder and major depressive disorder. The
Respondent initially decided in April 2009 that the Applicant was assessed as having a whole person
impairment of 15 per cent under Table 5.1 of the first edition of the Comcare Guide for his chronic
adjustment disorder only. That decision was affirmed on reconsideration. In June 2009 on further
reconsideration, the delegate varied the decision to assess whole person impairment of 15 per cent
for major depressive disorder and pain disorder instead of chronic adjustment disorder.
The following issues were relevant to these proceedings:
Whether the Applicant’s conditions were permanent
Whether the assessment of whole person impairment under the Comcare Guide for one or more
of the Applicant’s conditions should have been higher than 15 per cent
What were the appropriate scores under Division 2 of the Guide for any non-economic loss
suffered by the Applicant for all or any of his accepted conditions
Whether the Applicant was entitled to a further payment of compensation and, if so, the amount of
the additional compensation
Whether the Respondent was entitled to deduct an overpayment of incapacity payments from an
award of lump sum compensation
Whether some or all of the deduction of the overpayment should have been waived
In terms of the first issue, the Tribunal considered that the overwhelming medical evidence enabled
it to find that the Applicant’s condition was permanent. That did not preclude the possibility of some
relief in his symptoms should the Applicant have agreed to take anti-depressants at some stage and
undergo a pain management program. However, these possibilities, for practical reasons and in the
face of the Applicant’s attitude to taking medication, appeared to be remote.
Regarding the second issue, the Tribunal noted that there was less uniformity among the medical
experts as to the Applicant’s assessment of whole person impairment for his conditions under Table
5.1 of the Comcare Guide. Nor did all the experts provide such an assessment. Having undertaken a
detailed analysis of the requirements under the Comcare Guide, in conjunction with the provisions of
the 1988 Act and relevant case law, the Tribunal found that, based on the predominant medical
evidence and its own findings, the Applicant’s level of permanent impairment for his major
depressive disorder met the criteria of 25 per cent under the Comcare Guide. The evidence also led
to a finding that the assessment for the Applicant’s pain disorder should also be set at 25 per cent.
The Tribunal noted that if it was in error in attempting to apportion the impairment between the two
conditions, it made a finding that the Applicant was entitled to 25 per cent for both conditions in
combination.
With respect to the third issue, the Tribunal noted that there was little evidence at the hearing on this
issue. In the absence of further evidence on this issue the Tribunal was not in a position to make an
assessment and accordingly it remitted the matter to the Respondent for that purpose.
In terms of whether the Applicant was entitled to a further payment of compensation and, if so, the
amount of the additional compensation, the Tribunal observed that there was no argument at the
hearing in support of this issue and accordingly the Tribunal made no findings.
In terms of whether the Respondent was entitled to deduct an overpayment of incapacity payments
from an award of lump sum compensation, the Respondent adopted the following principles for
deciding whether to waive any or all of an overpayment. These were whether the Respondent or, it
was assumed, an agency, made an error, whether the payment was received in good faith by the
debtor, and any other reasonable grounds, including severe financial hardship or exceptional
circumstances. Again, little evidence or argument was provided to the Tribunal on this issue. In
these circumstances, although there had been a degree of departmental error, and the Applicant
received an extra amount in good faith, the Tribunal did not consider there were sufficiently strong
grounds for the exercise of the waiver power.
The Tribunal set aside the decision under review and in substitution the Tribunal found that the
Applicant had a 25 per cent permanent impairment for each of his major depressive disorder and his
pain disorder. The Tribunal remitted the question of the appropriate score under Division 2 of the
Comcare Guide for any non-economic loss suffered by the Applicant for each of his conditions to the
Respondent.
Ezekiel and Comcare [2010] AATA 391 (26 May 2010) Sydney
One of the issues for the Tribunal in these proceedings concerned the time at which the
impairments to the Applicant’s back, legs, neck and shoulders, if any, became permanent.