Belcher and Comcare (Compensation) - [2025] ARTA 236

Belcher and Comcare (Compensation) [2025] ARTA 236 (6 March 2025)

Applicant/s:  Cameron Belcher
Respondent:  Comcare
Tribunal Number:                2023/7799
Tribunal:Senior Member G McCarthy
Place:Canberra
Date:6 March 2025

Decision:

The decision under review is affirmed.

……………[SGD]………………..

Senior Member G McCarthy

Catchwords

COMPENSATION – claim for permanent impairment and non-economic loss arising from accepted post-traumatic osteoarthritis in employee’s left ankle – review of decision that compensation not payable because degree of permanent impairment determined below 10% – whether loss of cartilage in the ankle is an impairment that cannot be assessed under the Comcare Guide and can therefore be assessed under AMA 5, being 12% and above the threshold – consideration of injury and impairment and assessment of impairment under ss 24 and 28 of the Act and under the Comcare Guide, being loss of functional capacity resulting from permanent impairment relative to capacity of a normal healthy person – assessment of loss of cartilage can be and has been assessed under the Comcare Guide – nothing identified or claimed resulting from loss of cartilage that cannot be assessed under the Comcare Guide – inadequacy of quantitative assessment of impairment under the Comcare Guide not a basis for departing from the assessment – decision affirmed

Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, Part 6, Sch 2
Safety, Rehabilitation and Compensation Act 1988 – ss 14, 24, 27, 28

Cases
Blandon and Comcare [2019] AATA 3277
Canute v Comcare [2006] HCA 47
Comcare v Broadhurst [2011] FCAFC 39
Coulter and Comcare [2005] AATA 874
Edwards and Comcare [2001] AATA 522
Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38
Lees v Comcare [1999] FCA 753
Re Pavic and Comcare (1996) 45 ALD 409
Slattery v Comcare [2010]) AATA 56
Wills and Comcare [2024] AATA 1480

Secondary Materials
Annotated Safety, Rehabilitation and Compensation Act 1988 Twelfth Edition

Guide to the Assessment of the Degree of Permanent Impairment, Edition 3.0

Statement of Reasons

This application arose from the Applicant’s claim for permanent impairment and non-economic loss (PI and NEL) made on 12 May 2023 under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of an injury described by his treating practitioner in his claim as “left ankle post-traumatic arthritis and deformity”.[1]
[1] T33/150
On 7 September 2023, the Respondent determined the degree of permanent impairment is less than 10%.[2] Pursuant to s 24(7) of the SRC Act, in this circumstance, compensation under s 24 for permanent impairment “is not payable”. Likewise in this circumstance, pursuant to s 27(1), compensation for non-economic loss is not payable. The Respondent therefore rejected the Applicant’s claim for PI and NEL.
[2] T40/186
On 12 September 2023, the Applicant requested a review of the Respondent’s decision.[3] On 16 October 2023, the Respondent affirmed its initial decision.[4] On 18 October 2023, the Applicant applied to the Administrative Appeals Tribunal (the AAT) for review of the Respondent’s review decision.[5]

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 Belcher and Comcare (Compensation)

Details

AGLC: Belcher and Comcare (Compensation) [2025] ARTA 236
Case: [2025] ARTA 236
Decision Date: 6 March 2025

CaseChat Overview and Summary

Belcher sought compensation for permanent impairment and non-economic loss due to post-traumatic osteoarthritis in their left ankle, a condition accepted as work-related. Comcare had determined that the degree of permanent impairment was below the 10% threshold, resulting in no compensation being payable. Belcher appealed this decision. The court was required to decide whether the loss of cartilage in Belcher’s ankle constituted an impairment that could not be assessed under the Comcare Guide, and if so, whether it could be assessed under AMA 5, which pertains to impairments of 12% and above.

The court examined the nature and assessment of the impairment, considering sections 24 and 28 of the Act, which define permanent impairment in terms of loss of functional capacity relative to a normal healthy person. It noted that the loss of cartilage in Belcher's ankle could indeed be assessed under the Comcare Guide. The court found that nothing claimed by Belcher as a result of the loss of cartilage could not be assessed under the Guide. Furthermore, the court rejected the argument that the inadequacy of the quantitative assessment of impairment under the Comcare Guide should lead to a departure from the assessment method. The decision to not pay compensation was affirmed based on the established criteria and assessment process.

In summary, the court upheld Comcare's decision not to pay compensation for the claimed impairment and non-economic loss, finding that the impairment was adequately assessed under the Comcare Guide and did not meet the threshold for compensation under AMA 5.

Orders