Kelly and Comcare - [2002] AATA 553

DECISION AND REASONS FOR DECISION [2002] AATA 553

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/592

GENERAL ADMINISTRATIVE DIVISION       )
           Re      AMANDA LOUISE KELLY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date8 July 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................(Sgnd).................
Ms J Cowdroy
Member
CATCHWORDS
WORKERS COMPENSATION - permanent impairment – left knee injury in course of employment – compensation payments made –whether injury to right knee warrants an impairment rating - whether impairment to be assessed under Table 9.2 or Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment - "difficulty" – "distances" - difficulty with grades, steps and distances – whether impairment found

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Re Whelan and Department of Defence (1997) 47 ALD 383
Re Johnston and Comcare [2000] AATA 970
Re Van Grinsven and Comcare (2001) 33 AAR 531
Re Curtis and Australia Postal Corporation (AAT No 10098, 30 March 1995)
Re Johns and Department of Defence (AAT No 13357, 8 October 1998)

REASONS FOR DECISION

8 July 2002 Ms J Cowdroy, Member

This matter was heard in Brisbane on 12 December 2001 and on 1 March 2002. The applicant was represented by Mr PWG Hume of Counsel, instructed by D'Arcys Solicitors, and Mr C Clark of Counsel, instructed by Blake Dawson Waldron, appeared for the respondent.
The T-documents were admitted into evidence as A1 pursuant to the provisions of the Administrative Appeals Tribunal Act 1975. Also admitted into evidence was an undated statement of the applicant, which was marked A2.
The applicant gave evidence as did Dr J Pentis and Ms J Bertoldi on her behalf. Dr P Boys gave evidence for the respondent.
BACKGROUND TO THE APPLICATION:
The applicant was formerly a member of the Australian Army. In September 1998 she lodged a claim for rehabilitation and compensation in relation to left anterior knee pain and right (T37).
In October 1998, a delegate under the Safety Rehabilitation and Compensation Act 1988 ("the Act"), determined that the applicant suffered bilateral chondromalacia patellae and patella maltracking (surgical intervention on left and planned for the right knee) (hereinafter collectively called "the knee condition"), on the basis that her military service contributed in a material degree, namely "training by running in boots and load carrying" (T46). The date of the injury was determined to be 23 July 1997, which is the date that the applicant first sought treatment for the condition.
The applicant lodged various benefit elections forms claiming a lump sum in respect of permanent impairment, in respect to her bilateral knee condition, including a reference on some of those claims to "surgical intervention (l) knee. Further, on about 6 April 2000, the applicant submitted a benefit election form, specifically seeking a lump sum payment of compensation in respect of permanent impairment to the right knee.
On 16 June 2000, the respondent determined that the applicant suffered a whole person impairment of 10 per cent as a result…

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 Kelly and Comcare

Details

AGLC: Kelly and Comcare [2002] AATA 553
Case: [2002] AATA 553
Decision Date: 8 July 2002

CaseChat Overview and Summary

In Kelly and Comcare, the applicant, a former member of the Australian Army, sought compensation for a permanent impairment to her right knee, which she claimed arose from her military service. The dispute arose after the delegate of the respondent, Comcare, determined that the applicant suffered a whole person impairment of 10 per cent due to her left knee condition, but found no assessable impairment to her right knee. This decision was reviewed by the Administrative Appeals Tribunal (AAT). The key legal issues were whether the applicant's right knee condition warranted an impairment rating and, if so, whether the impairment should be assessed under Table 9.2 or Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment.

The Tribunal examined the evidence provided by the applicant, Dr. J Pentis, and Ms. J Bertoldi, as well as the evidence from Dr. P Boys for the respondent. The Tribunal considered the applicant's history of knee pain and the nature of her military duties, which involved physically demanding physical training and carrying heavy loads. The Tribunal also reviewed previous cases, such as Re Whelan and Department of Defence, Re Johnston and Comcare, and Re Van Grinsven and Comcare, to understand the criteria for determining permanent impairment and the applicable tables for assessment. Ultimately, the Tribunal found that the applicant did not suffer an assessable impairment to her right knee, and therefore, the delegate's decision was affirmed.

The Tribunal concluded that the applicant's right knee condition did not meet the threshold for a permanent impairment rating. The Tribunal found that the evidence did not demonstrate a significant impact on the applicant's ability to perform daily activities, such as difficulty with grades, steps, or distances. The Tribunal also noted that the applicant had already been compensated for her left knee impairment and that a further assessment of the right knee under Table 9.5 would not be appropriate as it would result in double compensation for the same type of impairment. The Tribunal upheld the delegate's decision that no further compensation was payable for the right knee.

The Tribunal ordered that the decision of the delegate be affirmed, and no further compensation was to be paid for the right knee impairment. The Tribunal's decision was based on the lack of evidence demonstrating a significant impairment to the applicant's right knee that warranted additional compensation.

Orders

Orders of the court

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Background

Background to the litigation

The applicant gave evidence as did Dr J Pentis and Ms J Bertoldi on her behalf. Dr P Boys gave evidence for the respondent.BACKGROUND TO THE APPLICATION: The applicant was formerly a member of the Australian Army. In September 1998 she lodged a claim for rehabilitation and compensation in relation to left anterior knee pain and right (T37). In October 1998, a delegate under the Safety Rehabilitation and Compensation Act 1988 ("the Act"), determined that the applicant suffered bilateral chondromalacia patellae and patella maltracking (surgical intervention on left and planned for the right knee) (hereinafter collectively called "the knee condition"), on the basis that her military service contributed in a material degree, namely "training by running in boots and load carrying" (T46). The date of the injury was determined to be 23 July 1997, which is the date that the applicant first sought treatment for the condition. The applicant lodged various benefit elections forms claiming a lump sum in respect of permanent impairment, in respect to her bilateral knee condition, including a reference on some of those claims to "surgical intervention (l) knee. Further, on about 6 April 2000, the applicant submitted a benefit election form, specifically seeking a lump sum payment of compensation in respect of permanent impairment to the right knee. On 16 June 2000, the respondent determined that the applicant suffered a whole person impairment of 10 per cent as a result of her left knee condition. The amount of compensation payable was assessed at $21,445.19, which consisted of amounts under ss 24 and 27 of the Act. The right knee condition was assessed at 0 per cent. In respect to the claim for lump sum payment of compensation for the right knee, this was refused (T63). (See also T64, a letter dated 27 November 2000, clarifying the earlier decision). On 5 June 2001, the delegate, upon reconsideration of the evidence, affirmed the determination on the basis that there was no assessable impairment referable to the right knee, utilising Table 9.2. Further, it was contended that even if it was accepted that the applicant suffered a 10 per cent whole person impairment under Table 9.5, for the right knee, she was not eligible to be paid a further amount under that Table as she had already been paid 10 per cent whole person impairment under Table 9.5 for the left knee. This decision is the subject of review by the Tribunal. EVIDENCE OF THE PARTIES: Ms Kelly gave evidence. Her statement (undated but prepared in about October 2001) was before the Tribunal as exhibit A2. Essentially, she enlisted in the Australian Army in 1991 at the age of 17 years, and her occupation was that of medical assistant, also described as enrolled nurse. She began to experience knee problems mostly in the form of pain, at the end of 1995, after being posted to 6 Base Area Support Battalion ("6BASB") at Enoggera. The PT sessions in that unit were more physically demanding than had been the case in her previous posting. The unit undertook a lot of battle PT, involved considerably more "hill work" and there was not sufficient emphasis placed on warm up and stretching exercises.

Evidence

Evidence Before The Court

On 5 June 2001, the delegate, upon reconsideration of the evidence, affirmed the determination on the basis that there was no assessable impairment referable to the right knee, utilising Table 9.2. Further, it was contended that even if it was accepted that the applicant suffered a 10 per cent whole person impairment under Table 9.5, for the right knee, she was not eligible to be paid a further amount under that Table as she had already been paid 10 per cent whole person impairment under Table 9.5 for the left knee. This decision is the subject of review by the Tribunal. EVIDENCE OF THE PARTIES: Ms Kelly gave evidence. Her statement (undated but prepared in about October 2001) was before the Tribunal as exhibit A2. Essentially, she enlisted in the Australian Army in 1991 at the age of 17 years, and her occupation was that of medical assistant, also described as enrolled nurse. She began to experience knee problems mostly in the form of pain, at the end of 1995, after being posted to 6 Base Area Support Battalion ("6BASB") at Enoggera. The PT sessions in that unit were more physically demanding than had been the case in her previous posting. The unit undertook a lot of battle PT, involved considerably more "hill work" and there was not sufficient emphasis placed on warm up and stretching exercises. The applicant described an extremely hard period of some nine months at Enoggera, during which time she was in constant pain in both knees. She used hot water bottles for pain relief and did not seek medical treatment because it would not have been viewed favourably. At the end of 1996, she was posted to 2 Field Hospital and undertook a course in connection with promotion to Corporal at Singleton School of Infantry. She was one of six females and was expected to keep up with her male counterparts, undertaking battle PT in cams, boots and webbing. She also carried stretchers with 44-gallon drums on top. At this point of time she suffered "really intense pain the knees". She did not seek medical advice because she did not want to be removed from the course. Not long after returning to her unit, she attended a Medical Board in connection with her promotion to Corporal and told the medical practitioner examining her that she experienced knee pain. It was suggested that she probably suffered from patella tendonitis. She was made FE (fit everywhere) which means her career was unrestricted, in that she could be considered for promotion and postings to any region. The applicant also referred to it as a Class 1 fitness rating. Ultimately, the applicant sought treatment from Col Peter Grant who diagnosed chondromalacia patella and placed her on restrictive duty. During this time she received physiotherapy and anti-inflammatory medication and when her symptoms did not improve she was referred to Dr M Johnstone, orthopaedic surgeon. Various surgical options were discussed and, on 16 June 1998, the applicant underwent surgery to her left knee. Her left leg was in a brace post-operatively for eight weeks. She described a feeling of uncertainty as to the stability of her left knee, even since surgery. Despite the surgery, the pain continued.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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