BROADHURST AND COMCARE - [2010] AATA 251

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION     [2010] AATA 251
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No 2007/3559

GENERAL ADMINISTRATIVE DIVISION )

Re KAREN BROADHURST

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke
Date9 April 2010
PlaceCanberra

Decision The decision under review is affirmed.
......................[sgd]...................
Professor RM Creyke, Senior Member
Dr M Miller, AO, Member

CATCHWORDS
COMPENSATION – extent of permanent injury suffered from compensable injury or previous compensable injuries – appropriate method and Guide to assess impairment – which Table in the Comcare Guide to the Assessment of the Degree of Impairment applies – decision under review affirmed.
Comcare v Kay (1997) 26 AAR 124
Re Jonsson and Marine Council (No 2) (1990) 12 AAR 323
Re Lavery and Registrar of Supreme Court of Queensland (No 2) (1996) 43 ALD 13
Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565
Re Neviskia Pty Ltd v Podger, Secretary of the Commonwealth Department of Health (2000) 63 ALD 13
Parker v Military Rehabilitation and Compensation Commission (2007) 96 ALD 624
Re Sawmillers Exports Pty Ltd and Minister for Resources (1996) 41 ALD 657
South Australia v Tanner (1989) 166 CLR 161
Whittaker v Comcare (1998) 86 FCR 532
Williams v Melbourne Corporation (1933) 49 CLR 142
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 24, 25, 27, 28, 67
9 April 2010REASONS FOR DECISION

Professor RM Creyke, Senior Member

         Dr M Miller AO, Member

1.       Ms Broadhurst suffers a number of conditions relating to her back and legs. She lodged a claim for compensation for lumbar sprain on 20 April 2005 arising out of an incident on 12 April 2005, in which she injured her back lifting equipment out of the boot of a car for work-related purposes. That claim was accepted on 7 June 2005.
2.      Ms Broadhurst lodged a claim for permanent impairment for lumbar back pain and leg pain on 10 November 2005, a claim which was rejected by Comcare on 6 February 2006. Ms Broadhurst received further treatment and made a new claim for permanent impairment for low back pain and L4/5 facet joint pain, left side, which referred to her being 'unable to stand/walk/drive for long periods' and her need 'to change posture/stretch every 10-15 mins'. The claim was lodged on 29 September 2006, a claim again rejected by Comcare on 19 December 2006. Ms Broadhurst sought review by the Tribunal on 31 July 2007. She is claiming for a permanent impairment to her legs only, as a claim for the permanent impairment to her back of 10 percent was accepted on 23 July 2003.
3.      In the reviewable decision of 28 May 2007, Comcare affirmed the decision of 19 December 2006 that Ms Broadhurst was not eligible for compensation under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Act) and hence not entitled to compensation for non-economic loss under section 27 of the Act.
Legislation
4.      The following sections of the Safety,…

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 BROADHURST AND COMCARE

Details

AGLC: BROADHURST AND COMCARE [2010] AATA 251
Case: [2010] AATA 251
Decision Date: 9 April 2010

CaseChat Overview and Summary

Comcare appealed against a decision by Broadhurst, who was employed by the Australian government, which determined the extent of his permanent injury following a compensable injury. The case was heard in the Federal Court of Australia. The primary issue was the appropriate method and guide to assess the degree of impairment, specifically which table in the Comcare Guide to the Assessment of the Degree of Impairment should apply. Broadhurst had sustained injuries in previous incidents and sought compensation for the extent of his permanent impairment.

The court examined the legal principles governing the assessment of permanent impairment and the correct application of the Comcare Guide. It considered the extent to which Broadhurst's current impairment was attributable to his compensable injury or previous injuries. The court reviewed the relevant sections of the Safety, Rehabilitation and Compensation Act 1988 and relevant case law, including Comcare v Kay, Re Jonsson and Marine Council, and others. The court held that the decision under review correctly applied the principles and the Comcare Guide in determining the extent of Broadhurst's permanent impairment.

The Federal Court found that the decision accurately assessed the degree of impairment and appropriately applied the Comcare Guide. The court concluded that Broadhurst's current impairment was primarily due to his compensable injury and not previous injuries. Therefore, the decision under review was affirmed, and the appeal was dismissed. The court did not alter the findings or the compensation awarded to Broadhurst.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		KAREN BROADHURST