Gottschalk and Comcare

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1799

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/68

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RICHARD PATRICK GOTTSCHALK

Applicant

And COMCARE

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date25 September 2007

PlaceHobart

Decision

The decision under review is set aside and the matter remitted to the respondent with the following directions:

(a)       the applicant is suffering from a permanent impairment as a result of an injury suffered by him in the course of his employment on 14 September 2002.

(b)       the degree of permanent impairment under Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment is 10%

(c)       the amount of compensation payable to the applicant is to be assessed.

[Sgd R J Groom]

Deputy President

In considering these principal questions several specific issues arose during the course of the hearing.  They are as follows:

1. Did the applicant injure his back in a fall on 14 September 2002 in the    course of his employment?

2.  Does the applicant continue to suffer from a lumbar impairment?

3. If so, was the cause of that lumbar impairment the accident on 14           September 2002 or are there other causes?

4.  Is the impairment permanent?

5.  What is the degree of permanent impairment resulting from the accident?

I will refer to the relevant legislation and then consider each of those five issues.

The Legislation

7.      The Act provides that when an injury to an employee results in a permanent impairment Comcare is liable to pay lump sum compensation to the employee in respect of that injury.

8.      Impairment is defined in section 4 of the Act as meaning:

"... the loss, the loss of the use, or the damage or malfunction, of any part of the body or of  any bodily system or function or part of such system or function"

In the same section "permanent" means "likely to continue indefinitely". 

9.      Section 24 of the Act relevantly provides as follows:

(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)       Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4)       The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5)       Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved…