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Erdstein and Comcare

Erdstein and Comcare

Case [2004] AATA 798 30 July 2004

Permanent Impairment

Compensation for Injury

Compensation for Disease

Compensatory Damages

Jurisdiction

Workers' Compensation

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Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 798
ADMINISTRATIVE APPEALS TRIBUNAL ) No V2000/405, V2001/367, V2001/862,
) V2003/1108, V2003/1305

GENERAL ADMINISTRATIVE DIVISION )

Re NOAH ERDSTEIN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal
Mrs Joan Dwyer, Senior Member

Associate Professor J.H. Maynard, Member

Date 30 July 2004
PlaceMelbourne

Decisions
Application V2000/405

1.     The Tribunal sets aside the decision under review. In substitution the Tribunal remits the matter to Comcare for reconsideration in accordance with the direction that:

the amount of compensation payable to Dr Erdstein under    ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 be calculated on the basis that Dr Erdstein has a 45% impairment rating on Table 4.1 of the Guide, in respect of a significant worsening in his impairment after 1 December 1988, resulting from pathological change in the nature of his skin conditions.

Application V2001/862

1.     The Tribunal sets aside the decision under review. In substitution the Tribunal varies the determination dated 10 May 2001 to provide that Comcare is liable to pay compensation in accordance with the Act, in respect of Dr Erdstein’s osteoporosis.

Application V2001/367

1. The Tribunal sets aside the decision under review. In substitution, the Tribunal varies the determination dated 4 January 2001 to provide that Comcare is liable to pay compensation in respect of Dr Erdstein’s osteoarthritis of the right knee, in accordance with the Act.

Application V2003/1305

1.     The Tribunal reserves leave for the parties to bring this matter on for further hearing, on reasonable notice.

Application V2003/1108

1. The Tribunal sets aside the decision under review. The matter is remitted to Comcare for reconsideration in accordance with the direction that Comcare determine the amount payable as compensation under s 16(1) of the Act, in accordance with the Tribunal’s finding that Comcare is liable to pay compensation to Dr Erdstein under s 16(1) of the Act, in respect of the cost of nursing care in a nursing home (being treatment that it is reasonable for Dr Erdstein to obtain in the circumstances) in relation to the conditions of osteoarthritis of left and right knees and osteoporosis.

Costs

The Tribunal orders, pursuant to s 67(8) of the Act, that the costs of the proceedings be paid by Comcare.

[sgd] Joan Dwyer
Senior Member

WORKERS’ COMPENSATION – claim for compensation for permanent impairment in respect of solar keratoses, chronic solar dermatitis and skin cancer – whether there has been a further impairment since 1 December 1988 – whether development of skin cancers constitutes a change in the underlying “patho-physiological” condition – whether there has been a significant worsening of the impairment – development of skin cancer a pathological change – poultice treatment required partly due to skin cancer an interference with activities of daily living and a worsening of impairment – decision under review set aside – matter remitted for reconsideration on the basis of a 45% impairment rating on Table 4.1 of the Guide.
Claim for acceptance of osteoporosis – whether osteoporosis due to…

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 Erdstein and Comcare

Details

AGLC: Erdstein and Comcare [2004] AATA 798
Case: [2004] AATA 798
Decision Date: 30 July 2004

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, Mrs Joan Dwyer and Associate Professor J.H. Maynard considered the case of Erdstein and Comcare, where Dr Erdstein sought compensation for permanent impairment and treatment costs related to his compensable skin conditions, osteoporosis, osteoarthritis, and the need for nursing home care. The Tribunal found that Dr Erdstein's skin conditions had worsened significantly since 1988 due to the development of skin cancer, which constituted a new impairment, and thus he was entitled to compensation for permanent impairment. The Tribunal also found that Dr Erdstein's osteoporosis and osteoarthritis of the right knee were compensable, and that Comcare was liable to pay compensation for the cost of nursing home care due to his immobility caused by the compensable conditions. The Tribunal set aside the decisions under review and directed Comcare to reconsider the matter in light of their findings.

Orders