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Carman and Comcare

Carman and Comcare

Case [2002] AATA 946 18 October 2002

Permanent Impairment

Impairment Rating

Difficulty with Grades, Steps and Distances

Workers Compensation Law

Type to search within this case.

DECISION AND REASONS FOR DECISION [2002] AATA 946

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/719

GENERAL ADMINISTRATIVE DIVISION         )
           Re      WAYNE JOHN CARMAN
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date18 October 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  .
  (Sgd) R G Kenny
  Member
CATCHWORDS
WORKER'S COMPENSATION – permanent impairment – bilateral shin splints including numbness and loss of feeling in the lower limbs - injury in course of employment – impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment - "difficulty" – whether applicant has difficulty with grades, steps and distances

Safety, Rehabilitation and Compensation Act 1988 sections 24, 27, 28

Re Brouwer and Australian Postal Corporation [2001] AATA 570
Comcare v Fiedler [2001] FCA 1810
Re Curtis and Australian Postal Corporation (AAT No 10098, 30 March 1995)
Re Nuss and Comcare [2002] AATA 170
Re Watkins and Comcare [2002] AATA 613
Re Jones and Department of Defence (AAT No 13357, 8 October 1998)
Re Peters and Australian Postal Commission (AAT No 9680, 23 August 1994)
Re Holmes and Comcare [2001] AATA 290
Re Mooney and Australian Postal Corporation (AAT No 9969, 27 January 1995)
Re Morley and Comcare (1996) 40 ALD 725
Re Whelan and Department of Defence (1996) 47 ALD 383

REASONS FOR DECISION

18 October 2002 Mr R G Kenny, Member

Application

On 13 July 2001, a delegate of the Military Compensation and Rehabilitation Service with the Department of Veterans' Affairs as delegate for Comcare (the respondent) rejected the claim of Wayne John Carman (the applicant) under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for compensation payments for his bilateral shin splints including numbness and loss of feeling in the lower limbs. That decision affirmed a previous delegate's decision dated 4 May 2001. On 9 August 2001, the applicant lodged an application for review of the decision by the Administrative Appeals Tribunal (the Tribunal).
The applicant attended the hearing and was represented by Mr D Quayle of counsel. The respondent was represented by Mr C Clark of counsel. In evidence were the T documents (T1-T31) (exhibit 1) and the following:
Exhibit A1 -     a medical report, dated 3 September 2001, from Dr R Thompson, medico-legal consultant surgeon;
Exhibit A2 –    a statement, dated 21 October 2001, from the applicant;
Exhibit A3 -     a statement of facts and contentions, dated 9 September 2002, from the applicant;
Exhibit A4 -     a Non-Economic Loss Questionnaire completed by the applicant on 31 October 2001;
Exhibit R1 -     a medical report, dated 19 May 2002, from Dr Keith Adam, specialist in occupational medicine;
Exhibit R2 -     a letter of request, dated 19 April 2002, to Dr Adam;
Exhibit R3 –    a Comprehensive Preventive Health Examination signed by the applicant on 28 February 2002;
Exhibit R4 –    curriculum vitae of Dr D Hilford.

Issues and Legislation

It is not disputed that the applicant, who was born on 2 February 1970, sustained an injury…

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 Carman and Comcare

Details

AGLC: Carman and Comcare [2002] AATA 946
Case: [2002] AATA 946
Decision Date: 18 October 2002

CaseChat Overview and Summary

The case of Carman v Comcare involved an employee, Mr Carman, who sought a determination of his permanent impairment due to bilateral shin splints, which included numbness and loss of feeling in the lower limbs, following an injury in the course of employment. The matter was heard by the Administrative Appeals Tribunal (AAT). The primary issue before the tribunal was whether Mr Carman had difficulty with grades, steps, and distances as defined in the Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment.

The AAT examined the relevant statutory provisions, including sections 24, 27, and 28 of the Safety, Rehabilitation and Compensation Act 1988. The tribunal also considered relevant case law, such as Re Brouwer and Australian Postal Corporation, Comcare v Fiedler, and various other cases cited in the AAT's decision. These cases provided guidance on how to interpret the term "difficulty" as it applied to the assessment of permanent impairment. The AAT assessed Mr Carman's ability to navigate grades, steps, and distances by considering his medical evidence, his daily activities, and the impact of his condition on his mobility.

After a detailed analysis of the evidence and applicable legal principles, the AAT concluded that Mr Carman did experience difficulty with grades, steps, and distances as defined in the Guide. The tribunal found that the symptoms of bilateral shin splints, including numbness and loss of feeling, significantly impaired Mr Carman's ability to perform these activities without difficulty. Consequently, the AAT determined that Mr Carman's condition met the criteria for a permanent impairment under the relevant legislation. The tribunal ordered that Mr Carman's claim for permanent impairment be accepted, and Comcare was directed to provide appropriate compensation.

Orders