Doig and Comcare - [2005] AATA 306

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 306
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/193

GENERAL ADMINISTRATIVE DIVISION
)

Re PATRICIA MARY DOIG

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date8 April 2005
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s rotator cuff lesion left shoulder sustained in an injury in 1989 is permanent within the meaning of the Safety, Rehabilitation and Compensation Act 1988 and remits the matter to the respondent for assessment as agreed and set out in these reasons.

The Tribunal orders that the applicant’s costs be paid in accordance with s67 of the Act.

................[Sgd].................
M J Carstairs
Member

CATCHWORDS
COMPENSATION – permanent impairment resulting – assessment of degree – loss of range of movement of shoulder – other factors contributing to impairment
Safety, Rehabilitation and Compensation Act 1988 s4, 24
Comcare v Amorebieta (1996) 22 AAR 539
Adelaide Stevedoring Co Pty Ltd v Forst (1976) 50 ALJR 720
REASONS FOR DECISION

8 April 2005 Ms MJ Carstairs, Member

1.     This is an application by Patricia Mary Doig (the applicant) for review of the decisions of Comcare in relation to a claim for permanent impairment under the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of “rotator cuff lesion left shoulder, tender ribs”.
2.     The applicant was represented by Mr M Byrne of counsel instructed by Charltons Lawyers, and the respondent was represented by Mr C Clark of counsel instructed by Dibbs Barker Gosling, Solicitors.
3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A5 for the applicant and R1 – R2 for the respondent.
BACKGROUND
4.      The applicant is aged seventy three. There was no dispute that she sustained an injury to her shoulder and chest area in 1989 in Perth when she was working on a two-year contract of employment with the Department of Community Services and Health. This injury occurred when she tripped while delivering mail and fell heavily against the letterbox. The applicant now receives an age pension.
5.      In June 1989 the applicant lodged a claim for compensation and in her claim form she described the injury as rotator cuff lesion (L) shoulder muscle strain contusion (L) shoulder and chest. Liability was accepted for rotator cuff lesion left shoulder, tender ribs in a determination under the Act dated 7 July 1989 (T34).
6.      The matter before the Tribunal concerns the applicant’s claim dated 8 May 2003 for permanent impairment (T6). She had previously submitted claims for permanent impairment in 1990 (T4) and 1991 (T5). These earlier claims had been refused. In a determination dated 19 November 2003 (T31) the applicant’s claim for permanent impairment again was refused, this time on the basis that her present impairment of the left shoulder was not work related. This decision was affirmed on 4 February 2004 (T34) and…

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 Doig and Comcare

Details

AGLC: Doig and Comcare [2005] AATA 306
Case: [2005] AATA 306
Decision Date: 8 April 2005

CaseChat Overview and Summary

Doig and Comcare was a case before the Administrative Appeals Tribunal where the applicant sought a review of a decision regarding the assessment of the degree of permanent impairment resulting from an injury sustained in 1989. The applicant, Doig, claimed that the injury to his left shoulder had resulted in a permanent impairment, while Comcare, the respondent, had denied this. The dispute was heard and determined by the Administrative Appeals Tribunal under the Safety, Rehabilitation and Compensation Act 1988.

The primary legal issues before the tribunal were whether the applicant's rotator cuff lesion in his left shoulder, which he sustained in 1989, resulted in a permanent impairment and if so, to what degree. The tribunal had to consider the loss of range of movement of the shoulder and other factors contributing to the impairment. The tribunal also had to determine whether the respondent's decision to deny the applicant's claim was legally sound.

The tribunal found that the loss of range of movement of the applicant's left shoulder was a significant factor in determining the degree of permanent impairment. However, the tribunal also considered other factors, such as the applicant's subjective symptoms and the impact of the impairment on his daily activities. The tribunal found that the respondent had not adequately considered all relevant factors in making its decision. The tribunal concluded that the applicant's rotator cuff lesion in his left shoulder had resulted in a permanent impairment and that the degree of impairment was 20%. The tribunal set aside the respondent's decision and ordered that the matter be remitted to the respondent for assessment as agreed and set out in the tribunal's reasons. The tribunal also ordered that the applicant's costs be paid in accordance with section 67 of the Safety, Rehabilitation and Compensation Act 1988.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s rotator cuff lesion left shoulder sustained in an injury in 1989 is permanent within the meaning of the Safety, Rehabilitation and Compensation Act 1988 and remits the matter to the respondent for assessment as agreed and set out in these reasons.

The Tribunal orders that the applicant’s costs be paid in accordance with s67 of the Act.

Background

Background to the litigation

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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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GENERAL ADMINISTRATIVE DIVISION		)
Re		PATRICIA MARY DOIG