Bacic and Comcare - [2008] AATA 465

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 465
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T200400132

GENERAL ADMINISTRATIVE DIVISION
)

Re HELENA BACIC

Applicant

And

COMCARE

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)
Date5 June 2008
PlaceHobart

Decision
The decision under review is set aside and the matter remitted to the respondent with the following directions:

(a) The applicant is suffering a permanent impairment as a result of an injury suffered by her on the 4 May 1999 in the course of her employment;

(b) The degree of permanent impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment is 20%.

[Sgd The Hon R J Groom]
Deputy President

CATCHWORDS
Compensation – permanent impairment – Table 9.5 of Guide to Assessment of the Degree of Permanent Impairment – meaning of “difficulty”, “grades”, “steps”, "distances" - video evidence – degree of impairment – decision set aside
Safety Rehabilitation and Compensation Act 1988 ss. 4, 24, 67
Guide to the Assessment of the Degree of Permanent Impairment
Comcare v Fiedler (2001) 34 AAR 237
Re Peters and Australian Postal Commission AAT Decision No 9680 23 August 1994
Re Whelan and Department of Defence (1996) 47 ALD 383 at 389
Re Morley and Comcare (1996) 40 ALD 725 at 731
Re Watkins and Comcare (2003) 69 ALD 498 at 500
Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128.
Re Holmes and Comcare [2001] AATA 290
Thiele v Commonwealth (1990) 22 FCR 342 at 346
Wilson v Wilsons Tile Works Pty Ltd (1960) 104 CLR 328 at 335
Whitaker v Comcare (1998) 28 AAR 55 at 67
Nguyen and Comcare AATA Decision No 10133 18 April 1995
REASONS FOR DECISION

5 June 2008 The Hon R J Groom (Deputy President)
INTRODUCTION
1.      The applicant claimed compensation for 20% whole person impairment caused by a fall at work. The respondent accepted the claim and paid compensation. However, after viewing a surveillance video of the applicant walking and obtaining further medical advice, Comcare revoked that decision. It now intends to seek recovery of the lump sum already paid. The applicant maintains that she has suffered a 20% whole person impairment. The issue in this application is the degree of permanent impairment suffered by the applicant.
BACKGROUND
2.      On the 4 May 1999 the applicant, who was then aged 51 years, injured her right knee when she fell in the course of her employment with the Health Insurance Commission.
3.      A claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (“the Act”) was lodged by the applicant on the 30 July 1999. Liability was subsequently accepted for a tear of the cartilage or meniscus of the right knee.   Compensation was paid and the applicant undertook a course of rehabilitation. She then returned to work at the Health Insurance Commission on reduced hours.
4.      The applicant had ongoing problems as a result of her injury.    She had suffered bleeding…

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 Bacic and Comcare

Details

AGLC: Bacic and Comcare [2008] AATA 465
Case: [2008] AATA 465
Decision Date: 5 June 2008

CaseChat Overview and Summary

Bacic commenced proceedings against Comcare in the Administrative Appeals Tribunal seeking a review of a decision that assessed her permanent impairment as 10% under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment. The Tribunal was required to determine the meaning of certain terms in the Guide and to assess the degree of permanent impairment suffered by the applicant. The primary issue was the interpretation of terms in Table 9.5, including "difficulty", "grades", "steps", and "distances". The Tribunal examined the evidence provided, including video footage of the applicant's gait, and considered the relevant statutory provisions and precedents. The Tribunal found that the decision-maker had misinterpreted the terms in the Guide and had not properly assessed the applicant's degree of impairment. The Tribunal set aside the decision and remitted the matter to Comcare with directions to reassess the degree of impairment, taking into account the correct interpretation of the terms in the Guide.

The Tribunal considered the relevant statutory provisions, including sections 4, 24, and 67 of the Safety Rehabilitation and Compensation Act 1988, and relevant precedents, including Comcare v Fiedler, Re Peters and Australian Postal Commission, Re Whelan and Department of Defence, Re Morley and Comcare, Re Watkins and Comcare, Hemley and Military Rehabilitation and Compensation Commission, Re Holmes and Comcare, Thiele v Commonwealth, Wilson v Wilsons Tile Works Pty Ltd, Whitaker v Comcare, and Nguyen and Comcare. The Tribunal found that the decision-maker had misinterpreted the terms in the Guide and had not properly assessed the applicant's degree of impairment. The Tribunal set aside the decision and remitted the matter to Comcare with directions to reassess the degree of impairment, taking into account the correct interpretation of the terms in the Guide. The Tribunal also noted that the video evidence provided was relevant to the assessment of the applicant's degree of impairment.

Orders

Orders of the court

The decision under review is set aside and the matter remitted to the respondent with the following directions:

(a) The applicant is suffering a permanent impairment as a result of an injury suffered by her on the 4 May 1999 in the course of her employment;

(b) The degree of permanent impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment is 20%.

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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