Howells and Comcare - [2001] AATA 531

DECISION AND REASONS FOR DECISION [2001] AATA 531

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1997/1226

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DAVID HOWELLS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr. K.L. Beddoe, Senior Member Miss A.M. Brennan, AM, Member Dr. K.P. Kennedy, OBE, Member

Date14 June 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  (Sgd) K L Beddoe
  Senior Member

Decision No: 531/2001
CATCHWORDS
COMPENSATION – permanent impairment – lower back injury incurred during Army service – whether entitled to lump sum payment – whether new relevant impairment
WORKERS' COMPENSATION -
Safety Rehabilitation and Compensation Act 1988: s24(1)
Compensation (Commonwealth Government Employees) Act 1971
Commonwealth Employees Compensation Act 1930: s9
Brennan v Comcare(1994) 122 ALR 615

REASONS FOR DECISION

14 June 2001 Mr. K.L. Beddoe, Senior Member Miss A.M. Brennan, AM, Member Dr. K.P. Kennedy, OBE, Member

By an application dated 25 September 1996 the applicant claimed compensation for an injury being fractured lumbar vertebra at L3/4 and said to have occurred on 23 February 1965. The injury was said to have been caused by the applicant being thrown off an Army truck because a sideboard failed. By letter dated 21 February 1997 a delegate of the respondent admitted liability for compensation.
By a claim dated 28 February 1997 the applicant made claim for compensation for permanent impairment. By letter dated 18 March 1997 the respondent refused the claim on clearly erroneous grounds.
The applicant sought reconsideration by letter dated 22 September 1997. The respondent affirmed the primary decision on different grounds. The applicant sought review in this Tribunal by an application for review lodged on 9 October 1997 in the Melbourne Registry.
Section 24(1) of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides that where an injury to an employee results in a permanent impairment, the respondent is liable to pay compensation to the employee in respect of the injury. Section 24(2) of the Act provides that 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.
Section 124(3) of the Act relevantly provides that a person is not entitled to compensation under section 24 of the Act in respect of a permanent impairment, being an impairment that occurred before 1 December 1988 if the person was not entitled to receive compensation of a lump sum in respect of that impairment where the impairment occurred after the commencement of the Compensation (Commonwealth Government Employees) Act 1971.
Section 124(4) limits the amount of compensation liable to be paid under section 24 in respect of a permanent impairment that occurred before 1 December 1988 to that compensation which would be payable under the 1930 Act or the 1971 Act, as in force when the impairment occurred.
Section 4(1) of the Act defines "impairment" to mean the loss,…

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 Howells and Comcare

Details

AGLC: Howells and Comcare [2001] AATA 531
Case: [2001] AATA 531
Decision Date: 14 June 2001

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was a dispute between Howells and Comcare concerning compensation for a permanent impairment arising from a lower back injury incurred during Howells' service in the Army. The Tribunal was required to determine whether Howells was entitled to a lump sum payment under the Commonwealth Employees Compensation Act 1930 and whether the worsening of his condition constituted a new relevant impairment.

The key legal issue was whether the impairment Howells experienced was caused by the injury sustained in 1965 or whether it was a new impairment that became permanent after 1 December 1988. This determination hinged on the medical evidence provided, particularly the assessments by Dr. Boys and Dr. Gillett. Dr. Boys had assessed a 15% loss of efficient use of the back in 1997 but later speculated that the impairment might have been less in 1988, while Dr. Gillett opined that there was no permanent impairment as at 1 December 1988. The Tribunal also had to consider the contemporary medical records and Howells' own evidence regarding the progression of his condition.

The Tribunal concluded that the injury to Howells' back occurred on or about 23 February 1965 and was an injury within the terms of section 9 of the Commonwealth Employees Compensation Act 1930. It found that the gradual worsening of Howells' back condition was a continuation of the impairment caused by the initial injury in 1965. The Tribunal did not accept that the worsening constituted a new impairment that became permanent after 1 December 1988. Therefore, Howells was not entitled to a lump sum payment for a new impairment, and his entitlement was limited to compensation for the initial injury.

The Tribunal's decision was based on the evidence presented and the interpretation of the relevant legislative provisions. It found that Howells had suffered impairment from the time of his Army service and that the gradual worsening of his condition did not represent a new impairment. Consequently, Howells' compensation was restricted to the initial injury, and no lump sum payment was awarded for a new relevant impairment.

Orders

Orders of the court

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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

In his initial report (T4) Dr. Boys assessed a 15% loss of efficient use of the back. In a further report dated 19 January 2000 (Exhibit 4) he expressed the opinion that the loss of efficient use of the spine at 1 December 1988, was possibly somewhat less than that quantified by him in 1997. He thought, as an "educated guess that it would be reasonable to assume" that the applicant had loss efficient use of his spine in the range of 10% to 15% on or about 1 December 1988. In cross-examination by Mr. McGhee, Dr. Boys agreed that his assessment of impairment at 1 December 1988 was speculation or conjecture. As he said in his report of 19 January 2000 (Exhibit 4) he did not have information available as to the clinical state of the applicant's spine at 1 December 1988. In that report Dr. Boys assumed a 10% impairment using Table 9.6 of the Comcare tables. In response to questions by the Tribunal, Dr. Boys made it clear that he was considering impairment rather than symptoms.CONSIDERATION The essence of the applicant's case is that Dr. Gillett has correctly assessed the applicant as not having a permanent impairment as at 1 December 1988. This position is supported by the contemporary medical records which show that although the applicant attended his medical practitioner and his employers medical practitioner for other medical conditions, he did not seek medical assistance for a back condition. The employer's medical file contains details of minor injuries occurring in 1993 and 1995 (Exhibit G). While it might be reasonable to infer that these were work-related injuries, it is sufficient for present purposes to find that these two injuries have no direct relevance to a back condition. In any event the applicant says there is simply no evidence of impairment of the applicant's lumbar spine by 1 December 1988 with the present impairment occurring since that date. It is clear to us and we find that the relevant injury occurred prior to 1 December 1988, the date being on or about 23 February 1965. Further, we are satisfied that the injury was an injury within the terms of section 9 of the Commonwealth Employees Compensation Act 1930. We are also satisfied that the applicant would not have been entitled to a lump sum payment in respect of the injury or consequential impairment under the 1930 Act (excluding redemption of weekly payments). We also find that the applicant's back condition is the result of permanent damage to the spine and is a permanent impairment within the terms of the Act. We are not satisfied on the material before us that the gradual worsening of the back condition can be accepted as a new impairment which became permanent after 1 December 1988. In our view, the impairment was caused by the injury to the applicant's back in 1965 and that is the relevant damage to the back which has remained with the applicant from the time of injury. The applicant's own evidence satisfies us that he suffered restriction of movement because of impairment from the time of his Army service. We accept that over the years the injury gradually became more symptomatic although not such as to prevent the applicant continuing to engage in his employment. In that regard we accept that the applicant's employment was of such a nature that he was able to avoid undue aggravation of the injury and further impairment.