John Verlinden and Comcare - [2014] AATA 46

[2014] AATA 46

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/0331

Re

John Verlinden

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal
Senior Member J Toohey

Date 31 January 2014

Place Sydney
The decision under review is affirmed

.....................................................................
Senior Member J Toohey
CATCHWORDS – COMPENSATION – accepted injury to lumbar spine – subsequent aggravations – agreed permanent condition – absence of radiculopathy – whether applicant’s permanent impairment to be assessed by reference to Table 9.17 of the Guide – AMA Guides – clinical judgment – decision under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 4, 24(5), 24(7), 28(4)
Cases
Riley and Comcare [2011] AATA 674
Comcare v Broadhurst [2011] FCAFC 39
Secondary Materials
Comcare, Guide to the Assessment of Permanent Impairment Edition 2.1
American Medical Association, Guides to the Evaluation of Permanent Impairment 5^th edition 2001
REASONS FOR DECISION
Senior Member J Toohey
Background

In April 1993, Mr John Verlinden suffered an injury to his lumbar spine in the nature of an aggravation of a previously asymptomatic mild lumbar spondylosis. The respondent accepted liability for his injury.
Mr Verlinden suffered further minor aggravations and now has a substantial lumbar spondylosis that limits the range of movement in his lumbar spine and his capacity for lifting and bending. His injury and the limitations on the use of his lumbar spine are impairments within the meaning of the Safety Rehabilitation and Compensation Act 1988 (the Act). They are permanent.
So much is agreed between the parties. What remains in dispute is how the degree of Mr Verlinden’s permanent impairment is to be assessed.
The Act provides that the degree of an employee’s permanent impairment is to be determined under the provisions of the approved Guide to the Assessment of Permanent Impairment (the Guide) in force at the relevant time: s 24(5) and 28(4). Edition 2.1 of the Guide was in force on 25 September 2012 when Mr Verlinden lodged his claim.
Subject to an exception that is not relevant here, compensation is not payable to an employee whose degree of permanent impairment is less than 10 per cent: s 24(7).
It is not in dispute that, if assessed by reference to the diagnostic criteria in Table 9.17 in the Guide (Lumbar spine – diagnosis-related estimates), Mr Verlinden’s degree of permanent impairment is 8 per cent. It is submitted for Mr Verlinden, however, that Table 9.17 is not relevant or applicable to his kind of impairment and an alternative method of assessment must be used.
The Guide to the Assessment of Permanent Impairment
Part 1 of the Guide includes Tables by reference to which an employee’s permanent impairment may be assessed in terms of percentage of “whole person impairment” (WPI). The concept of WPI is based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) and provides for compensation for permanent impairment of any body part, system or function to the extent to which it permanently impairs an employee as a whole person: Introduction…

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 John Verlinden and Comcare

Details

AGLC: John Verlinden and Comcare [2014] AATA 46
Case: [2014] AATA 46
Decision Date: 31 January 2014

CaseChat Overview and Summary

The decision in the case of John Verlinden and Comcare was handed down by Senior Member J Toohey of the Administrative Appeals Tribunal on 31 January 2014. Mr Verlinden had suffered a lumbar spine injury in April 1993 and subsequently experienced further aggravations. The respondent, Comcare, accepted liability for the injury. The dispute between the parties centred on how the degree of Mr Verlinden's permanent impairment was to be assessed under the relevant legislation and guidelines.

The legal issues before the Tribunal were whether Table 9.17 in the Guide to the Assessment of Permanent Impairment could be used to assess Mr Verlinden's degree of permanent impairment and whether an alternative method of assessment was appropriate. The relevant legislation provided that compensation was not payable to an employee whose degree of permanent impairment was less than 10 per cent.

The Tribunal found that Table 9.17 was applicable to Mr Verlinden's impairment. The Guide to the Assessment of Permanent Impairment, based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, provided a standardised method for physicians to assess permanent impairments. The Tribunal held that the use of a particular Table or the assignment of a particular percentage degree of impairment was essentially a medical assessment. The medical reports did not suggest any reason why Mr Verlinden's impairment could not be assessed using Table 9.17, and his symptoms fit within the diagnostic criteria that attract a rating of 8 per cent. The fact that another Table or method of assessment might produce a more favourable outcome was not relevant.

The Tribunal concluded that Table 9.17 must be used to assess Mr Verlinden's degree of permanent impairment. As his impairment was assessed at 8 per cent, Comcare was not liable to compensate him under the relevant legislation.

The decision under review was affirmed, and no compensation was payable to Mr Verlinden.

Orders