Blade and Comcare (Compensation) - [2015] AATA 615

Blade and Comcare (Compensation) [2015] AATA 615 (19 August 2015)

Division

GENERAL DIVISION

File Number

2014/2506

Re

William Blade

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Dr P McDermott RFD, Senior Member

Date 19 August 2015

Place Brisbane
The Tribunal affirms the decision under review.
................................[SGD]........................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
COMPENSATION – permanent impairment – whether entitled to compensation – knee conditions accepted – whole person impairment – whether applicant entitled to compensation for permanent impairment resulting from shoulder injury – no foundation for distinction between an injury and consequential or secondary injury – separate assessment of each shoulder required – single shoulder does not meet or exceed threshold percentage – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27, 60, 124
Commonwealth Employees’ Compensation Act 1930 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Workers’ Compensation Act 1987 (NSW) s 151H
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 56
Workers’ Compensation and Injury Management Act 1981 (WA) s 146
CASES
Broadhurst v Comcare [2010] FCA 1034
Canute v Comcare (2006) 205 CLR 535
Comcare v Lilley [2013] FCAFC 121
Re Dunstan and Comcare (2012) 130 ALD 370
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
SECONDARY MATERIALS
Jurisdictional Policy Advice No. 2007/05
Jurisdictional Policy Advice No. 2014/05
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
19 August 2015
INTRODUCTION

The applicant has sought review of a determination of 8 May 2014 which affirmed the liability of the respondent to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for permanent impairment resulting from the right knee and left knee conditions of the applicant, but to deny any entitlement to pay compensation under the Act for the permanent impairment resulting from his right and left shoulder conditions.
History of the Matter
On 1 April 1970 the applicant sustained injuries as a result of a motorbike accident. Liability under the Commonwealth Employees’ Compensation Act 1930 (Cth) was accepted for the conditions of multiple lacerations and abrasions.[1]
[1] Applicant’s Statement of Issues, Facts and Contentions dated 21 May 2015, paragraph 2.
On 29 June 1983 liability was accepted, under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), for the condition of “degenerative osteoarthritis of each knee due to the personal injury of 1 April 1970”.[2]
[2] Exhibit A, T 5, p 27.
On 7 August 1995 a determination was made to pay the applicant compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) for the permanent impairment of the applicant resulting from the lower limb conditions.[3] This determination was reconsidered by the respondent which, on 28 August 1995, determined that the impairment that resulted from the lower limb conditions did not become permanent until after 1 December 1988 (which is the date that the Act came into effect).[4] The respondent determined that the entitlement of the applicant to compensation for the permanent impairment should be calculated under the provisions of the Act. This…

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 Blade and Comcare (Compensation)

Details

AGLC: Blade and Comcare (Compensation) [2015] AATA 615
Case: [2015] AATA 615
Decision Date: 19 August 2015

CaseChat Overview and Summary

The applicant, in this case, sought compensation for a permanent impairment that arose from a shoulder injury, with the dispute being reviewed by the court. The applicant's argument was based on the contention that their combined impairments from a single injury should be assessed together to determine eligibility for compensation. The respondent, Comcare, had previously denied the claim on the grounds that the individual impairments of the applicant's shoulders did not meet the threshold for whole person impairment. The matter was adjudicated by the Australian Administrative Appeals Tribunal.

The primary legal issue before the court was whether the applicant's combined impairments from a single shoulder injury could be assessed together to meet the threshold for whole person impairment, thereby qualifying for compensation. Additionally, the court had to determine if there was a valid distinction between an injury and any consequential or secondary injuries, and whether separate assessments of each shoulder were required. The applicant's reliance on policy documents advocating for combined impairment assessments was also a point of contention.

The court found that the policy documents cited by the applicant did not provide a basis for combining the impairments of both shoulders to determine eligibility for compensation. The report from Dr Miller, dated 17 February 2015, demonstrated that the impairments of each shoulder were assessed separately, a method which the court found to be consistent with the relevant policy advice. As neither shoulder met or exceeded the threshold percentage when assessed individually, the applicant's claim for compensation was denied. The court affirmed the decision under review, finding no error in the respondent's determination.

The Tribunal affirmed the decision under review, upholding the respondent's denial of compensation for the applicant's shoulder injury. The court found that the impairments of the applicant's shoulders did not meet the required threshold when assessed individually, and there was no valid basis to combine the impairments of both shoulders for the purposes of determining eligibility for compensation.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant has placed reliance on various policy documents that provide for permanent impairment percentages combined to give one single percentage where a single injury results in multiple impairments.[26] However this method of assessment is apparent in the report of Dr Miller dated 17 February 2015 as Dr Miller calculated whole person impairment for each shoulder by combining the various impairments of tension, extension, abduction, external rotation and internal rotation of each shoulder. [26] Jurisdictional Policy Advice No. 2007/05; Jurisdictional Policy Advice No. 2014/05.DECISION For these reasons I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number	2014/2506
Re	William Blade
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr P McDermott RFD, Senior Member
Date	19 August 2015
Place	Brisbane