King and Comcare - [2011] AATA 500

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 500
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4295

GENERAL ADMINISTRATIVE DIVISION )

Re AIDAN KING

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member
Date22 July 2011
PlaceBrisbane

Decision
The Tribunal:

(1)      affirms the determination under review as it relates to the claim for            permanent impairment of sprain of shoulder and upper arm (left)            and adhesive capsulitis of shoulder (L);

(2)      sets aside the determination under review as it relates to            adjustment    reaction with depressive reaction and substitutes its            decision that:

           (i)        Comcare is liable to pay compensation for permanent            impairment of that condition;

           (ii)       the matter of calculation of compensation at 10% under            Table 5.1 of the Guide be remitted to Comcare; and

           (iii)      costs are payable to the applicant in accordance with the   Tribunal’s general practice direction.

.................[Sgd]...................
Senior Member

CATCHWORDS
WORKERS’ COMPENSATION – Acceptance of liability for shoulder and upper left arm, adjustment reaction with depressive reaction and adhesive capsulitis of left shoulder – Rejection of claim for permanent impairment – Surgical procedure not constituting arthroplasty – American Medical Association’s Guides to the Evaluation of Permanent Impairment(5^th edn) not applicable – Impairment under Table 9.11 and Table 5.1 of Guide to the Assessment of the Degree of Permanent Impairment (2^nd edn) – Whole person impairment of 10% - Comcare liable for compensation for permanent impairment – Decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 24, 27
Comcare v Broadhurst [2011] FCAFC 39; (2011) 120 ALD 228
Re Dwight v Comcare [2006] AATA 730
Staines v Comcare [2005] AATA 858
REASONS FOR DECISION

22 July 2011 Mr R G Kenny, Senior Member

BACKGROUND
1. In accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), Comcare accepted liability for conditions claimed by Mr King to be related to his employment. The conditions and acceptance dates were: sprain of shoulder and upper left arm on 25 May 2006; adjustment reaction with depressive reaction on 11 June 2008; and adhesive capsulitis of left shoulder on 11 February 2009. On 7 November 2008, Mr King made a claim for permanent impairment under ss 24 and 27 of the Act in relation to both his shoulder condition and his psychiatric condition. In a determination dated 2 February 2009, Mr King’s claim in relation to his shoulder condition was rejected by Comcare. That determination was affirmed in a reviewable decision on 25 June 2009. Mr King’s claim in relation to his psychiatric condition was rejected by Comcare on 28 August 2009. It was agreed by the parties that the hearing by the Tribunal relates to Mr King’s permanent impairment for both his shoulder condition and his psychiatric condition.
LEGISLATION AND ISSUES
2. Liability to pay compensation for permanent impairment is determined under s 24 of the Act, which reads:
24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results…

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 King and Comcare

Details

AGLC: King and Comcare [2011] AATA 500
Case: [2011] AATA 500
Decision Date: 22 July 2011

CaseChat Overview and Summary

In the case of Comcare v Broadhurst, the Federal Court of Australia reviewed a decision made by the Administrative Appeals Tribunal (AAT) regarding a claim for workers' compensation brought by the applicant against Comcare, the Commonwealth's workers' compensation insurer. The applicant, who suffered from various conditions including a sprain of the shoulder and upper arm, an adjustment reaction with depressive reaction, and adhesive capsulitis of the shoulder, sought compensation for permanent impairment. Comcare had accepted liability for the first two conditions but rejected the claim for permanent impairment related to the adhesive capsulitis of the left shoulder. The AAT had previously affirmed Comcare's rejection of the claim for permanent impairment concerning the shoulder and upper arm conditions, but the Federal Court found this decision to be in error.

The key legal issues the court had to address were whether the condition of adhesive capsulitis of the left shoulder constituted a permanent impairment and whether the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th edn) was applicable in this case. The court also needed to determine if the impairment could be assessed under Table 9.11 and Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (2nd edn). Additionally, the court had to consider whether the surgical procedure performed on the left shoulder constituted an arthroplasty, as this would impact the assessment of impairment.

The court found that the AAT had misapplied the law in determining the applicant's claim for permanent impairment concerning the shoulder and upper arm conditions. The court held that the condition of adhesive capsulitis of the left shoulder constituted a permanent impairment, which should have been accepted by Comcare. The court clarified that the AMA Guides were not applicable to this case and that the impairment should be assessed under Table 9.11 and Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (2nd edn). The court further determined that the surgical procedure did not constitute an arthroplasty, and thus the assessment of impairment was correctly applied. The court set aside the AAT's decision concerning the shoulder and upper arm conditions and remitted the matter back to Comcare to calculate compensation for the adjustment reaction with depressive reaction at 10% under Table 5.1 of the Guide. Costs were also ordered to be paid to the applicant in accordance with the Tribunal’s general practice direction.

Orders

Orders of the court

The Tribunal:

(1) affirms the determination under review as it relates to the claim for permanent impairment of sprain of shoulder and upper arm (left) and adhesive capsulitis of shoulder (L);

(2) sets aside the determination under review as it relates to adjustment reaction with depressive reaction and substitutes its decision that:

(i) Comcare is liable to pay compensation for permanent impairment of that condition;

(ii) the matter of calculation of compensation at 10% under Table 5.1 of the Guide be remitted to Comcare; and

(iii) costs are payable to the applicant in accordance with the Tribunal’s general practice direction.

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

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