Edwards and Comcare - [2001] AATA 522

DECISION AND REASONS FOR DECISION [2001] AATA 522

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1825

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BENJAMIN LEIGH EDWARDS
  Applicant

And COMCARE
Respondent

DECISION

Tribunal Senior Member M D Allen

Date13 June 2001
PlaceSydney

Decision      The decision under review is affirmed.
  (Sgd)                  M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS

WORKERS COMPENSATION - Application to apply American Medical Association Guide. Held although Comcare Guide assessment inadequate an assessment could still be made under that document therefore regard could not be had to American Medical Association Guide. Criticism of the poorly drafted Comcare Guide reiterated.

Safety, Rehabilitation and Compensation Act 1988 - ss24, 27 and 28

Whittaker v Comcare 86 FCR 532
Re Pavic and Comcare 24 AAR 52

REASONS FOR DECISION

13 June 2001 Senior Member M D Allen

On 4 August 1998 an officer of the Military Compensation and Rehabilitation Service, as a delegate of Comcare administering the Safety, Rehabilitation and Compensation Act 1988 (the SCR Act) as amended by the Military Compensation Act 1994, accepted liability for the injury to the Applicant described as "a Grade 4 dislocation of the acromio-clavicular joint of the right shoulder".
On 10 August 1998 the Applicant submitted a claim for permanent impairment pursuant to s24 of the SRC Act. That claim was rejected on 11 March 1999 on the grounds that the degree of impairment did not amount to 10% on the Comcare Tables, that is to say in the tables contained in the "Guide to the Assessment of Permanent Impairment" published pursuant to s28 of the SRC Act.
The decision rejecting the Applicant's claim was affirmed in a "reviewable decision" dated 7 October 1999.
Section 24 of the SRC Act states inter alia:
"24.   (1)   Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)     For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)   the duration of the impairment;
(b)   the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)   any other relevant matters.
(3)     …
(4)     …
(5)     Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)     The degree of permanent impairment shall be expressed as a percentage.
(7)     Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
(8)     …
(9)     …"

Whereas s28 of the SRC Act states:

"28. (1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by…

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 Edwards and Comcare

Details

AGLC: Edwards and Comcare [2001] AATA 522
Case: [2001] AATA 522
Decision Date: 13 June 2001

CaseChat Overview and Summary

The parties involved in this matter were Edwards and Comcare, with the dispute centred around workers' compensation. The case was heard by the Administrative Appeals Tribunal. The primary issue was whether the American Medical Association Guide should be used to assess the extent of the applicant's permanent impairment. Comcare argued that although their own impairment guide was poorly drafted, it was still possible to make an assessment under that guide, and thus, it was not appropriate to consider the American Medical Association Guide.

The tribunal considered the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988, as well as the cases of Whittaker v Comcare and Re Pavic and Comcare. The tribunal found that the American Medical Association Guide could not be used to assess the extent of the applicant's permanent impairment because the Comcare Guide was still capable of being used, even though it was poorly drafted. The tribunal also reiterated its criticism of the Comcare Guide, stating that it was inadequate and should be improved.

As a result of the tribunal's decision, the American Medical Association Guide could not be used to assess the extent of the applicant's permanent impairment. The tribunal ordered that the matter be remitted to Comcare for reassessment under the Comcare Guide. This decision highlights the importance of having clear and accurate guidelines for assessing workers' compensation claims, and the need for the Comcare Guide to be improved to ensure that it can be used effectively in these cases.

Orders