Langston and Comcare - [2000] AATA 578

DECISION AND REASONS FOR DECISION [2000] AATA 578

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/92

GENERAL ADMINISTRATIVE DIVISION          )
            Re     FIONA MAREE LANGSTON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date13 July 2000
PlaceCanberra

Decision The tribunal sets aside the decision under review and in substitution therefor decides that the applicant has a permanent impairment of her upper right arm of 10%. The respondent is to pay the applicant's reasonable costs as agreed or taxed.

...................(Sgd.).....................
Pamela Burton Senior Member
CATCHWORDS
COMPENSATION – scar to upper right arm – painful and embarrassing – whether impairment is permanent – whether level of impairment is at least ten percent under the authorised Guide – whether treatment for lengthy periods is required - whether condition being present and not easily reversible by medication precludes assessment of 10% impairment under Table 4.1 of the Guide.
Legislation
Safety Rehabilitation and Compensation Act 1988 ss24, 27, 28
Guide to the assessment of the degree of permanent impairment
Authorities
Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147
Comcare v Ticsay (1992) 16 AAR 241
O'Rourke and Comcare (AAT 12152, 26 August 1999)
Gibbs and Comcare (AAT 9394, 30 March 1994)

REASONS FOR DECISION

13 July 2000 Pamela Burton, Senior Member

This is an application for review of the decision of an independent review officer of 23 February 1999 which affirmed the determination of Comcare's delegate of 29 October 1997 that Comcare was not liable to pay compensation for impairment from scarring to the applicant's upper right arm pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 ("the Act").
At the hearing the applicant was represented by Ms Lorraine Gabriel, and Comcare, the respondent, was represented by Mr Geoffrey Johnson. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), and the applicant tendered a medical report of Dr Baxter, medical officer, dated 14 September 1999 (Exhibit A) and clinical notes of Dr Lendow-Smith (Exhibit B). The applicant gave oral evidence at the hearing.
Issue
The only issue before the tribunal is whether the applicant has suffered a permanent impairment to her right upper arm of at least ten percent to meet the requirements of section 24 of the Act.
Contentions
The applicant contends that her right upper arm impairment is permanent and that the degree of impairment is at least ten percent, as assessed under Table 4.1 of the Guide to the assessment of the degree of permanent impairment ("the Guide"), the Guide approved under section 28 of the Act.
The respondent contends that the applicant does not suffer from an impairment which is permanent. In the alternative, the respondent contends that the applicant's impairment amounts to no more than 5% under Table 4.1 of the Guide.
The factual background
The applicant was born on 21 May 1971 and is married with children. She is a serving…

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 Langston and Comcare

Details

AGLC: Langston and Comcare [2000] AATA 578
Case: [2000] AATA 578
Decision Date: 13 July 2000

CaseChat Overview and Summary

Langston and Comcare was a matter in the Administrative Appeals Tribunal where the applicant, a serving member of the Royal Australian Air Force, sought compensation for a scar on her upper right arm. The dispute centered on whether the scar constituted a permanent impairment, the level of impairment under the authorised Guide, the necessity of prolonged treatment, and whether the condition precluded a 10% impairment assessment under Table 4.1 of the Guide. The respondent argued that the impairment was not permanent and, in the alternative, that it amounted to no more than 5% under Table 4.1. The applicant underwent mole removal surgery in 1994, which led to complications and a symptomatic scar causing itchiness, pain, and embarrassment. The scar's appearance and texture changed over time, causing her significant discomfort and social anxiety. The tribunal found that the applicant had a permanent impairment of her upper right arm and that a 10% impairment under Table 4.1 of the Guide accurately reflected the degree of impairment. The tribunal set aside the decision under review, substituting it with a decision that the applicant had a permanent impairment of her upper right arm of 10%. The respondent was ordered to pay the applicant's reasonable costs as agreed or taxed.

The tribunal had to decide several legal issues in this case. First, it had to determine whether the scar on the applicant's upper right arm constituted a permanent impairment. Second, it had to assess the level of impairment under Table 4.1 of the authorised Guide. Third, the tribunal had to consider whether the applicant's condition required lengthy treatment. Finally, it had to determine whether the presence and irreversibility of the condition by medication precluded an assessment of 10% impairment under Table 4.1 of the Guide. The tribunal found that the scar did indeed constitute a permanent impairment, as evidenced by the applicant's ongoing discomfort and social anxiety. The tribunal also concluded that a 10% impairment under Table 4.1 of the Guide accurately reflected the degree of impairment. The tribunal determined that the condition did not require lengthy treatment, as the scar's impact on the applicant's life was primarily psychological. The tribunal also found that the presence and irreversibility of the condition by medication did not preclude an assessment of 10% impairment under Table 4.1 of the Guide.

The tribunal's reasoning in Langston and Comcare was based on the evidence presented by the applicant and the medical reports provided. The tribunal found the applicant's testimony regarding the scar's impact on her life to be credible and consistent. The tribunal also considered the medical reports, which described the scar's appearance and the complications that arose from the initial mole removal surgery. The tribunal found that the scar's impact on the applicant's life, including her social anxiety and discomfort, warranted a finding of a permanent impairment. The tribunal also concluded that a 10% impairment under Table 4.1 of the Guide accurately reflected the degree of impairment. The tribunal found that the condition did not require lengthy treatment, as the scar's impact on the applicant's life was primarily psychological. The tribunal also found that the presence and irreversibility of the condition by medication did not preclude an assessment of 10% impairment under Table 4.1 of the Guide. Ultimately, the tribunal found in favour of the applicant and ordered the respondent to pay her reasonable costs as agreed or taxed.

Orders

Orders of the court

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Background

Background to the litigation

The respondent contends that the applicant does not suffer from an impairment which is permanent. In the alternative, the respondent contends that the applicant's impairment amounts to no more than 5% under Table 4.1 of the Guide.The factual background The applicant was born on 21 May 1971 and is married with children. She is a serving member of the Royal Australian Air Force ("the RAAF"). She joined the RAAF on 2 March 1989. She holds the rank of Sergeant and is based in Canberra. On 19 October 1994 the applicant had two moles removed, a large one on her neck (measuring approximately half a centimetre in diameter) which caused her irritation as her collar rubbed against it, and a smaller one (half the size of the neck mole) on her right shoulder. At the time she attended the RAAF surgeon to have the larger mole removed she was advised to have the smaller mole removed at the same time as it tended to bleed. The excision of the mole on her neck caused her no problems, however the excision of the mole on her right shoulder caused her some difficulties before and after the stitches were removed. In evidence, the applicant stated that the stitches were far too tight and she sought medical assistance to have them loosened. The medical officer upon whom she attended had to "dig" to remove them. The applicant was then referred to a plastic surgeon for revision surgery. After the procedure on 6 December 1996 the plastic surgeon assured her that the suture would be "beautiful". Again the applicant felt tightness in the area. She waited a few days and then had the stitches removed. After the stitches were removed the wound reopened. The applicant discovered this after she left the surgery and she was trying some clothes on in a shopping centre. She described seeing a big hole in her arm and, on seeing it, she said that she "nearly fainted". It required further stitching. The stitches were removed after ten days and the applicant was left with a symptomatic scar that causes her itchiness, pain and embarrassment. The applicant's evidence is that the scar now causes her more discomfort and embarrassment than it did in 1996. She claims that the scar has changed in its appearance; that it has enlarged and instead of softening, the skin has become harder. She perceives the scar as disfiguring, and she has a genuine belief that people notice it, and that the scar is the overwhelming thing that they first notice about her. She said in evidence "I don't meet new people – my arm meets people. Everyone looks at my arm. They will look and ask about it. It impacts on my relationship with people. I can see the looks they give." The applicant gave examples of occasions when she attended functions and colleagues commented on the scar or asked about it. This apparently disturbed her. The applicant allowed me to view the scar at close range. In my opinion the scar does not constitute such a disfigurement as would reasonably be expected to cause the degree of embarrassment clearly suffered by the applicant. The parties accept as accurate the description given of the scar by Dr Fry in his report of 14 February 1999 (T21, p.60) as 3.5 cm by 2 cm.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I conclude on the evidence before me that the applicant has a permanent impairment of her upper right arm and that 10% under Table 4.1 of the Guide properly reflects the degree of impairment.Decision The tribunal sets aside the decision under review and in substitution therefor decides that the applicant has a permanent impairment of her upper right arm of 10%. The respondent is to pay the applicant's reasonable costs as agreed or taxed.I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member Signed: Eva Dimopoulos ..................................................................................... AssociateDate of Hearing 10 April 2000 Date of Decision 13 July 2000Counsel for the Applicant Ms Lorraine Gabriel Solicitor for the Applicant Hanstein, Stacy & Nyman Counsel for the Respondent Mr Geoffrey Johnson Solicitor for the Respondent Blake Dawson Waldron

Ratio Decidendi

Legal Principle Established

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