Koumis and Comcare - [2007] AATA 2070

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2070
ADMINISTRATIVE APPEALS TRIBUNAL No. V 200501157

GENERAL ADMINISTRATIVE DIVISION

Re KOULA KOUMIS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal: G. D. Friedman, Senior Member
Date:19 December 2007
Place:Melbourne

Decision:
The Tribunal sets aside the decision under review and substitutes the decision that Ms Koumis suffers 10% whole person impairment. The Tribunal orders that Ms Koumis’ costs be paid in accordance with s 67 of the Safety, Rehabilitation and Compensation Act 1988.

(sgd) G.D.Friedman
Senior Member

COMPENSATION – pain in left knee – injury sustained in 1992 – claim for permanent impairment – whether impairment may be apportioned by non-compensable factors
Safety, Rehabilitation and Compensation Act 1988 ss 4, 24, 28, 67
Carson v Comcare [2004] FCAFC 204
Comcare v Amorebieta (1996) 66 FCR 83
Comcare v Fiedler (2001) 115 FCR 328
Comcare v Moon (2003) 75 ALD 160
Martin v Australian Postal Corporation (1999) 29 AAR 420
Re Stewart and Comcare [2003] AATA 27
Re Williams and Australian Postal Corporation (AAT 12695, 11 March 1998)
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION
19 December 2007  G.D. Friedman, Senior Member
1.      Koula Koumis suffered an injury to her left knee on the way to work for the Department of Veterans’ Affairs on 11 February 1992. The respondent accepted liability to pay compensation for strained left knee cartilage. Ms Koumis has presented to various medical practitioners since then and has complained of ongoing pain in her left knee.
2.      On 16 July 1998 Ms Koumis lodged a compensation claim for permanent injury in respect of her knee condition. On 27 April 1999 the respondent refused the claim on the basis that her impairment was not permanent as there was a strong likelihood that her condition would improve if she lost weight. On 21 March 2005 Ms Koumis lodged a further claim, which was refused because she did not meet the threshold 10% permanent impairment. On 14 December 2005 the respondent affirmed the decision.
THE ISSUES
3.        The issues before the Tribunal are:
·The nature of the left knee condition;
·whether Ms Koumis has suffered permanent impairment in relation to her knee condition under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act);
·if so, whether the impairment reaches the threshold specified in the SRC Act for compensation; and, if so;
·whether the level of impairment should be reduced by apportioning work-related and non work-related factors.

WHAT IS THE NATURE OF THE LEFT KNEE CONDITION?
4. Ms Koumis told the Tribunal that in 1982 she began work at the Anzac Veterans’ Hostel in Melbourne as a cleaner, then as a kitchen hand and a cook. She said that on 11 February 1992 she slipped on wet steps outside her front door on her way to work and twisted her left knee. She suffered pain, discomfort and swelling of the knee, and attended the Bridge Street Clinic on 17 February 1992 where she was treated with…

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 Koumis and Comcare

Details

AGLC: Koumis and Comcare [2007] AATA 2070
Case: [2007] AATA 2070
Decision Date: 19 December 2007

CaseChat Overview and Summary

In the case of Koumis v Comcare, the applicant, Koula Koumis, sought compensation for permanent impairment resulting from a left knee injury sustained in 1992 while on her way to work. The respondent, Comcare, had previously refused her claims for compensation on the basis that her impairment was not permanent and did not meet the threshold for compensation. The issues before the Administrative Appeals Tribunal were the nature of the left knee condition, whether Ms Koumis had suffered permanent impairment, whether the impairment met the compensation threshold, and whether the impairment level should be apportioned by work-related and non-work-related factors.

The Tribunal found that Ms Koumis had suffered a permanent impairment due to the 1992 injury, as the condition had stabilised and was unlikely to improve. The Tribunal accepted that Ms Koumis had undertaken all reasonable rehabilitative treatment and found her evidence credible. The level of permanent impairment was assessed as 10% under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment, based on her difficulty with grades and steps but not distances. The Tribunal rejected the suggestion that the impairment level should be apportioned by work-related and non-work-related factors, finding that there was no aggravation of an underlying or pre-existing condition.

The Tribunal set aside the decision under review and substituted the decision that Ms Koumis suffers 10% whole person impairment. The Tribunal also ordered that Ms Koumis' costs be paid in accordance with s 67 of the Safety, Rehabilitation and Compensation Act 1988.

Orders