Allen and Comcare - [2000] AATA 152

DECISION AND REASONS FOR DECISION [2000] AATA 152

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. A1998/236

GENERAL ADMINISTRATIVE DIVISION )

Re PATRICIA ALLEN
Applicant

And COMCARE
Respondent

DECISION

Tribunal Deputy President B.H. Burns Dr M.D. Miller, Member Air Marshal I.B. Gration, Member

Date2 March 2000
PlaceCanberra

Decision The decision under review is set aside and, in substitution therefor, the Tribunal decides that: (a) the applicant has a degree of permanent impairment of 16% resulting from an injury to her left ear; (b) the matter be remitted to the respondent for calculation of the quantum of compensation payable to the applicant pursuant to s24 of the Safety, Rehabilitation and Compensation Act 1988; and (c) the respondent pay the applicant's costs reasonably incurred, to be agreed or taxed.

…………..(Signed)..................
Deputy President B.H. Burns

CATCHWORDS
COMPENSATION – permanent impairment – hearing loss and tinnitus – whether causal link between additional symptomatology of unknown aetiology and injury – whether permanent impairment – applicability of Table 13.1 – whether onset of symptoms are "attacks" – decision set aside.

Safety, Rehabilitation and Compensation Act 1988 – s24
Guide to the Assessment of the Degree of Permanent Impairment – Tables 7.1, 7.2, 13.1
Whittaker v Comcare (1998) 28 AAR 55
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay (1992) 16 AAR 241
McDonald v Director-General of Social Security (1984) 6 ALD 6

REASONS FOR DECISION

2 March 2000 Deputy President B.H. Burns Dr M.D. Miller, Member Air Marshal I.B. Gration, Member

This is an application by Mrs Patricia Allen ("the applicant") for review of a reviewable decision of Comcare ("the respondent") dated 22 April 1998 (T24), which affirmed a previous determination dated 8 August 1997 (T13) disallowing her claim for compensation for permanent impairment and non-economic loss pursuant to s24 and s27 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with medical reports from three ear, nose and throat surgeons, namely, Dr G. Crisp (Exhibit A1), Dr E. Chapman (Exhibits A2, A3, A4 and A5) and Dr R. Carroll (Exhibit R1). In addition to the documentary material placed before it, the Tribunal heard oral evidence from the applicant as well as Dr Crisp, who was called to give evidence on behalf of the applicant, and Dr Carroll, who was called on behalf of the respondent.
The applicant was represented by Mr G. Corr and the respondent by Mr N. Polin, both of counsel.
By way of background, the applicant, a school teacher, has an accepted condition of "acoustical trauma left ear" arising from a work-related incident on 1 September 1995 involving a starting pistol which accidentally discharged next to her left ear at a school sports carnival. On 14 February 1997, the applicant lodged a compensation claim for permanent impairment arising from the accepted condition (T9) which was disallowed on the grounds that the delegate of the respondent…

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 Allen and Comcare

Details

AGLC: Allen and Comcare [2000] AATA 152
Case: [2000] AATA 152
Decision Date: 2 March 2000

CaseChat Overview and Summary

The applicant, Allen, brought a claim against Comcare for compensation for permanent impairment resulting from an incident involving a starting pistol at work. The dispute centred on whether there was a causal link between the injury and additional symptomatology, the extent of the impairment, and the applicability of specific assessment tables. The matter was heard in the Administrative Appeals Tribunal.

The central legal issues were whether Allen's additional symptomatology was causally linked to the injury, whether the symptoms constituted a permanent impairment, and if the Table 13.1 of the Guide to the Assessment of the Degree of Permanent Impairment was applicable. The court also needed to determine if the onset of symptoms could be classified as "attacks".

The Tribunal found that Allen's account of the incident and subsequent symptoms was credible and accepted it in full. The Tribunal relied on the evidence of Dr Carroll, who was deemed to be an objective and well-reasoned expert. It was determined that Allen suffered from permanent impairment, including tinnitus and hearing loss, which were directly linked to the incident. However, the Tribunal found that the additional symptomatology did not meet the criteria for classification under Table 13.1, and therefore, the applicable table was Table 7.1. The decision of the primary judge was set aside.

The Tribunal ordered that the Commissioner reassess Allen's claim for compensation for permanent impairment, taking into account the findings and applying Table 7.1 of the Guide to the Assessment of the Degree of Permanent Impairment.

Orders

Orders of the court

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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

The Tribunal also had before it several reports of Dr Chapman who was not called to give oral evidence before the Tribunal. In his reports, Dr Chapman concludes that the applicant has a 5% permanent impairment arising from tinnitus and permanent high frequency hearing loss in her left ear, the extent of which was not assessed by him. Dr Chapman also diagnosed the applicant as suffering from permanent recruitment. Tribunal's Consideration of the Issues In considering the evidence and the issues in dispute before the Tribunal, the Tribunal has had regard to the totality of the material placed before it including the submissions made by the parties and the authorities referred to therein. In so far as the parties' submissions are concerned, the Tribunal will refer to them as they become relevant in the course of the Tribunal's consideration of the issues. The Tribunal has, of course, had the advantage of carefully observing and/or listening to the witnesses who gave oral evidence before it. The applicant was an impressive witness. Throughout the giving of her testimony, the Tribunal gained the distinct impression that she did her best to accurately and honestly depict to the Tribunal the nature and extent of her symptomatology and the effects it has had from time to time on various aspects of her life. The Tribunal notes that there was no suggestion whatsoever by the respondent that the applicant's account of the events in question should not be accepted by the Tribunal, nor has the Tribunal found any justification for doubting the reliability of her testimony. The Tribunal accepts the totality of the factual matters deposed to by the applicant, and makes the following findings of fact:(a)The applicant experienced no trouble with her hearing prior to the incident involving the starting pistol;(b)At the present time, the applicant experiences noise in her ears which is most noticeable during quiet periods;(c)At the present time, the applicant experiences all sounds at an abnormally loud volume;(d)At the present time, the applicant has difficulty identifying the nature of certain sounds;(e)At the present time, the applicant has difficulty identifying the direction from which sounds are coming from;(f)Each of the applicant's symptoms above became evident shortly after the incident and have persisted to this day. Turning to the medical evidence, the Tribunal found Dr Carroll to be an impressive expert witness. He was objective and well-reasoned in the forming of his opinions and in the giving of evidence before the Tribunal, and the Tribunal has no hesitation in accepting his opinions wherever relevant. Whilst the Tribunal was also impressed with Dr Crisp's evidence in respect to the applicant's tinnitus and her hearing loss and associated symptoms (difficulty in distinguishing the nature and direction of sounds), the Tribunal does not have quite the same degree of confidence in his opinions with respect to her remaining symptom, namely, that she hears all sounds louder, in light of his acknowledgment during evidence that he would require more time to examine the applicant to "get to the bottom" of the exact nature of the relevant condition. Hence, the Tribunal has preferred to rely on the evidence of Dr Carroll to that of Dr Crisp, wherever there may be said to be variance between them. That being said, the Tribunal notes that at the end of the day, there was little divergence of opinion between the views ultimately expressed by Drs Crisp and Carroll in their oral evidence.