Johnston and Comcare - [2000] AATA 970

DECISION AND REASONS FOR DECISION [2000] AATA 970

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q1999/1380

GENERAL ADMINISTRATIVE DIVISION )
Re AMANDA JOHNSTON

Applicant
And COMCARE
Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member) Dr KP Kennedy, OBE (Member) Mrs HM Pavlin (Member)

Date6 November 2000
PlaceBrisbane

Decision      The Tribunal, by majority, affirms the decision under review.
  ..............................................
  (Sgd) WJF Purcell
  Senior Member
CATCHWORDS
COMPENSATION – Liability accepted and compensation paid for the applicant's knee condition on the basis of a 10% whole person impairment – applicant disputed the impairment rating – whether the applicant fell within the definition of 20% whole person impairment with respect to the lower limb
Safety, Rehabilitation and Compensation Act 1988 ss 24, 27

REASONS FOR DECISION

Miss WJF Purcell (Senior Member) Dr KP Kennedy, OBE (Member)

This is an application for review of a decision of a delegate of Comcare in the Military Compensation and Rehabilitation Service, of 25 October 1999, which affirmed a decision of a delegate, of 10 June 1999, that compensation was payable to the applicant in respect of permanent impairment, arising from a right knee injury, calculated at 10% whole person impairment pursuant to the Safety Rehabilitation and Compensation Act 1988 (the Act).
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the parties. Mr R Hume of Counsel, appeared for the applicant who gave oral evidence and called Dr AD White, Orthopaedic Surgeon and Ms Bertoldi, Occupational Therapist, who gave evidence by way of telephone link up. Mr A Johnson of Counsel, represented the respondent (Comcare), which called Dr Grant as a witness and called also Dr Naughton and Mr Becht, Physiotherapist, who both gave evidence by way of telephone link up.
The applicant is 24 years of age. She joined the Australian Regular Army (the Army) on 20 February 1996, and was employed as a driver at a number of Army barracks. On 23 May 1997 she sustained an injury to her right knee whilst unloading a "unimog" vehicle. Throughout June and August 1997, the applicant underwent medical examination and treatment. On 9 February 1998, liability was accepted for "dislocation of the right patella". Her medical discharge took effect as of 31 December 1998.
The applicant lodged a claim for lump sum compensation, and subsequently on 17 March 1999 she was advised that her impairment had been assessed by Dr Grant, at 10% whole person impairment. The amount of lump sum compensation that would be payable based upon this impairment was $21,961.92. On 8 June 1999 she accepted the offer formally through her solicitors, and on 10 June 1999 the delegate determined that the degree of impairment was 10%. On 29 June 1999 the applicant's solicitors requested that her level of impairment be re-assessed at 20% whole person impairment, in the light of the report from Dr White, dated 5 May 1999, and a report from Ms Bertoldi,…

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 Johnston and Comcare

Details

AGLC: Johnston and Comcare [2000] AATA 970
Case: [2000] AATA 970
Decision Date: 6 November 2000

CaseChat Overview and Summary

In Johnston and Comcare, the applicant sought to challenge the compensation awarded for his knee condition. The applicant had previously accepted liability for his knee condition and was awarded a 10% whole person impairment. However, the applicant disputed the impairment rating and sought a re-evaluation, claiming that his condition warranted a 20% whole person impairment rating under the relevant legislation. The dispute was brought before the court to determine the correct level of impairment and whether the applicant was entitled to an increased compensation amount.

The primary legal issue for the court was to ascertain the appropriate impairment rating for the applicant's knee condition and whether the applicant fell within the definition of a 20% whole person impairment with respect to the lower limb. This required the court to consider the statutory provisions of the Safety, Rehabilitation and Compensation Act 1988, specifically sections 24 and 27, which outline the criteria for determining the level of impairment and the corresponding compensation. The court needed to assess the evidence presented by both parties and apply the relevant legal principles to determine the correct rating.

The court thoroughly examined the medical evidence and expert opinions provided by both the applicant and Comcare. It considered the nature and extent of the applicant's knee condition, as well as the impact on his daily activities and overall health. After a detailed analysis, the court concluded that the applicant's knee condition did not meet the threshold for a 20% whole person impairment rating. The court found that the initial 10% whole person impairment rating was appropriate, and thus, the applicant's claim for a higher impairment rating was dismissed.

Consequently, the court upheld the original compensation award of 10% whole person impairment for the applicant's knee condition. The court's decision affirmed the correctness of the initial assessment and rejected the applicant's claim for a higher impairment rating.

Orders