Guppy and Australian Postal Corporation - [2012] AATA 806

[2012] AATA 806

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/2468

Re

Patricia Guppy

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal
Senior Member Bernard J McCabe
Dr M Sullivan, Member

Date 16 November 2012

Place Brisbane
The decision under review is affirmed.
.............................[Sgd]........................................
Senior Member Bernard J McCabe
CATCHWORDS
WORKERS COMPENSATION – Claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 – work related condition – degree of permanent impairment – the way in which impairment is assessed – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24 and 27.
CASES
Whiteman v Australian Postal Corporation [2011] FCA 1427.
Whiteman and Australian postal Corporation [2010] AATA 645.
SECONDARY MATERIALS
Comcare Guide to the assessment of the degree of permanent impairment (2nd edition).
American Medical Association, 2001, Guide to the Evaluation of Permanent Impairment, 5th Ed, Chicago: American Medical Association.
REASONS FOR DECISION
Senior Member Bernard J McCabe
Dr M Sullivan, Member
16 November 2012

Patricia Guppy is the applicant in these proceedings. She has a work-related shoulder condition. She asked for compensation under ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988. The Australian Postal Corporation, the respondent, accepted liability for the injury but declined to pay compensation under ss 24 and 27 in a reviewable decision dated 18 April 2011. The respondent says the applicant’s degree of permanent impairment is less than 10%, the threshold at which the respondent becomes liable to pay under the legislation.
Both parties refer to the provisions of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (2^nd edition) (“the Comcare Guide”). But there is a dispute over the way in which the extent of the applicant’s whole person impairment (WPI) should be calculated. The dispute relates in particular to the way in which the Comcare Guide and the American Medical Association Guide to the Evaluation of Permanent Impairment (the AMA Guide) interact.
FACTUAL BASIS FOR THE DISPUTE
Ms Guppy sustained two injuries to her right shoulder at work: one in 2006, and one in 2007. The respondent accepted liability for the resulting right shoulder condition. On 22 May 2008, Ms Guppy’s treating orthopaedic surgeon performed an “excisional arthroplasty of the right AC joint”. Ms Guppy subsequently sought compensation. She continues to experience abnormal shoulder motion following the procedure.
HOW DOES ONE ASSESS THE DEGREE OF IMPAIRMENT?
Section 24(7) provides permanent impairment compensation is not payable unless the degree of impairment exceeds 10%. The respondent in this case says the applicant only experiences 9% impairment. Ms Guppy disagrees. The dispute turns on the way in which the degree of impairment is assessed under the relevant tables in the Comcare Guide.
The applicant refers to table 9.1l of the Comcare Guide which says (at p 97):
Where an arthroplasty procedure has been undertaken, refer to the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the date of the assessment. Combine the total WPI…

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.

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Details

Case: [2012] AATA 806
Decision Date: 16 November 2012

CaseChat Overview and Summary

Guppy brought a claim against the Australian Postal Corporation for compensation under the Safety, Rehabilitation and Compensation Act 1988, seeking to have a work-related condition recognised and assessed for permanent impairment. The dispute centred on the extent of the impairment and the method by which it should be evaluated. The Full Bench of the Administrative Appeals Tribunal considered the matter and subsequently affirmed the decision of the delegate. The tribunal's role was to review the correctness of the delegate's findings regarding the nature and degree of impairment, as well as the appropriate assessment method.

The legal issues that required resolution involved interpreting the relevant statutory provisions and case law to determine the correct approach to assessing permanent impairment. Specifically, the court had to consider how to apply the statutory criteria for assessing impairment and the relevant principles governing the evaluation process. The tribunal also had to address whether the delegate's findings were supported by the evidence and whether any errors were material to the overall decision.

The tribunal found that the delegate had correctly applied the statutory criteria and had provided adequate reasons for the assessment of the impairment. The tribunal emphasised the importance of a comprehensive evaluation process that considered all relevant factors, including medical evidence and expert opinion. The tribunal concluded that the delegate's findings were supported by the evidence and that no errors were made that would warrant overturning the decision. The Full Bench therefore affirmed the delegate's decision, upholding the assessment of the degree of permanent impairment and the method used to determine it.

Orders