Comcare v Van Grinsven

Case [2002] FCA 371

Comcare v Van Grinsven [2002] FCAFC 87

Comcare v Van Grinsven [2002] FCA 371

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002.  Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

  • All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.
  • All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. 
  • All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Comcare v Van Grinsven [2002] FCA 371

COMPENSATION ‑ Separate injuries to left and right knees ‑ Permanent impairment in each case ‑ Assessment ‑ Degree of impairment ‑ Whether assessed in relation to each knee and values then combined or whether assessed in relation to both injuries together ‑ Assessment where both injuries result in same impairment ‑ Whether same impairment.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 24, 28

Guide to the Assessment of the Degree of Permanent Impairment, Tables 9.2, 9.5, 14.1

Comcare v Campbell [1999] FCA 1367 considered

COMCARE v ENRICO VAN GRINSVEN
Q 216 OF 2001

BEAUMONT, FINN and SUNDBERG JJ
3 APRIL 2002
SYDNEY (HEARD IN BRISBANE)


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 216 OF 2001

BETWEEN:

COMCARE
APPELLANT

AND:

ENRICO VAN GRINSVEN
RESPONDENT

JUDGES:

BEAUMONT, FINN and SUNDBERG JJ

DATE OF ORDER:

3 APRIL 2002

WHERE MADE:

SYDNEY (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal be set aside and in lieu thereof, the appellant’s decision be affirmed.

3.There be no order as to the costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 216 OF 2001

BETWEEN:

COMCARE
APPELLANT

AND:

ENRICO VAN GRINSVEN
RESPONDENT

JUDGES:

BEAUMONT, FINN and SUNDBERG JJ

DATE:

3 APRIL 2002

PLACE:

SYDNEY (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

THE COURT:

QUESTION FOR DECISION

  1. The question for decision on this appeal is whether Table 9.5 of the approved Guide prepared in accordance with s 28 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), when construed in accordance with the requirements of s 24 and the principles of assessment contained in the Guide, requires that where a person sustains separate injuries to each lower limb giving rise to the same “level of impairment” in the Table, a single impairment rating be attributed under the Table to the person’s lower limbs, or permits a separate impairment rating to be attributed to each lower limb.

    FACTS

  2. Based on an Agreed Statement of Facts, the Administrative Appeals Tribunal, whence the present appeal comes, found the following facts:

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Details
AGLC
Comcare v Van Grinsven [2002] FCA 371
Case
[2002] FCA 371
Decision Date

CaseChat Overview and Summary

Comcare v Van Grinsven concerns a dispute between Comcare and the respondent, Van Grinsven, regarding the assessment of permanent impairment under the Safety, Rehabilitation and Compensation Act 1988. The central issue is whether separate injuries to each of Van Grinsven’s lower limbs, resulting in the same level of impairment, should be attributed a single impairment rating or separate ratings under Table 9.5 of the approved Guide. The case originated in the Administrative Appeals Tribunal, from which Comcare has appealed.

The primary legal issue before the court was the interpretation of Table 9.5 in the context of the Act and the Guide. Specifically, the court needed to determine whether separate injuries to both knees that result in the same level of impairment should be treated as a single impairment rating or as separate ratings. This interpretation hinged on the principles of assessment contained within the Guide and the requirements of s 24 of the Act. The court also needed to consider the overall functional impairment as assessed by the medical professionals involved, and whether these assessments were consistent with the statutory framework.

In its reasoning, the court examined the statutory provisions and the Guide in detail. It found that the Guide, when properly interpreted in accordance with the statutory requirements and principles of assessment, permits a separate impairment rating for each lower limb. The court concluded that the separate injuries to each knee, resulting in the same level of impairment, should indeed be assessed and rated separately. This interpretation aligns with the overall objective of the Act, which seeks to compensate individuals based on their functional impairment in a manner that is fair and consistent. The court thus allowed the appeal, set aside the decision of the Administrative Appeals Tribunal, and affirmed the decision of Comcare.

The final orders of the court were that the appeal be allowed, the decision of the Administrative Appeals Tribunal be set aside, and Comcare’s decision be affirmed. There was no order regarding the costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside and in lieu thereof, the appellant’s decision be affirmed.

3. There be no order as to the costs of the appeal.

Background

Background to the litigation

The question for decision on this appeal is whether Table 9.5 of the approved Guide prepared in accordance with s 28 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), when construed in accordance with the requirements of s 24 and the principles of assessment contained in the Guide, requires that where a person sustains separate injuries to each lower limb giving rise to the same “level of impairment” in the Table, a single impairment rating be attributed under the Table to the person’s lower limbs, or permits a separate impairment rating to be attributed to each lower limb.FACTS Based on an Agreed Statement of Facts, the Administrative Appeals Tribunal, whence the present appeal comes, found the following facts:·the respondent had been employed by the Australian Army since 3 December 1985·the respondent injured his left knee on 17 December 1985 and his right knee on 7 February 1986 while undertaking basic training activities·in 1994 the respondent was diagnosed as suffering chondromalacia patellae in each knee·on 16 March 1994 the respondent lodged two claims for compensation, one in relation to each knee·on 14 June 1994 the appellant accepted liability for chondromalacia patellae in each knee·on 22 July 1994 the respondent rejected the appellant’s offer of a lump sum payment in relation to the injuries·Dr Pentis, an orthopaedic surgeon who examined the respondent at his solicitors’ request, reported regarding the right knee:“Currently the incapacity, using Table 9.2 [OF Comcare’s Guide to the Assessment of the Degree of Permanent Impairment (see below)], is a 10% whole person impairment and using Table 9.5, a 20% whole person impairment. The condition is stable but may degenerate somewhat further with time.”Regarding the left knee he reported:“The incapacity, using Table 9.2, would be a 10% whole person impairment and using Table 9.5, a 20% whole person impairment.The injury is permanent but may degenerate somewhat further with time.”(Dr Pentis’ reference to Table 9.2 and Table 9.5 are to Tables appearing in Comcare’s Guide to the Assessment of the Degree of Permanent Impairment. See below pars 7 et seq.)·Ms Bertoldi, an occupational therapist who examined the respondent at the request of his solicitors, reported:“1Loss of less than half normal range of movement of (R) knee(10% Whole Person Impairment under Table 9.2)(20% Whole Person Impairment under Table 9.5)2Loss of less than half normal range of movement of (L) knee(10% Whole Person Impairment under Table 9.2)(20% Whole Person Impairment under Table 9.5)From the above noted objective results, the following is provided to summarise Mr Van Grinsven’s overall level of lower limb impairment·Can rise to standing position and walk but has difficulty with grades, steps and distances(20% Whole Person Impairment under Table 9.5)NBThe above noted difficulties are as per the guidelines provided by Comcare Australia in the ‘Guide to the Assessment of the Degree of Permanent Impairment’ and note the impairment as a percentage value of the functional capacity of a normal healthy person.”·On 17 August 2000 the appellant informed the respondent that it had determined he was suffering a 20% whole of person permanent impairment and offered him a lump sum under s 24 (permanent impairment) and s 27 (non‑economic loss)·On 2 October 2000 the respondent sought a review of the determination pursuant to s 62(1) of the Act·On 2 January 2001 the appellant notified the respondent that its delegate had decided to affirm the determination of 17 August 2000.

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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