LILLEY and COMCARE

[2011] AATA 472

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 472

ADMINISTRATIVE APPEALS TRIBUNAL      )         No 2010/1119

)          

GENERAL ADMINISTRATIVE DIVISION		)
Re		WAYNE LILLEY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date6 July 2011

PlaceCanberra

Decision The decision under review is affirmed.

..................[sgd]............................

Professor RM Creyke, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – permanent impairment – where injuries to leg are both ‘permanent’ and ‘impairments’ under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – assessment of degree of permanent impairment – compensable threshold of 10 per cent not met – whether Tables in the Comcare Guide to the Assessment of the Degree of Permanent Impairment are valid – whether Tables proportionate to legislative authority - decision under review affirmed

Administrative Appeals Tribunal Act 1975 (Cth) ss 44 and 45

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5 and 6

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 27 and 28

Comcare Guide to the Assessment of the Degree of Permanent Impairment (2^nd Edition)

Re Adams and the Tax Agents Board (1976) 1 ALD 251

Re Broadhurst and Comcare [2010] AATA 251

Canute v Comcare (2006) 226 CLR 535

Re Knight and Military Rehabilitation and Compensation Commission [2010] AATA 541

Re James and Military Rehabilitation and Compensation Commission [2009] AATA 842

Minister for Primary Industries v Austral Fisheries Pty Ltd (1993) 40 FCR 381

Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565

Shanahan v Scott (1957) 96 CLR 245

South Australia v Tanner (1989) 166 CLR 161

Vanstone v Clarke (2005) 88 ALD 520

Whittaker v Comcare (1998) 86 FCR 532

Williams v City of Melbourne (1933) 49 CLR 142

REASONS FOR DECISION

6 July 2011

Professor RM Creyke, Senior Member

1.Mr Wayne Lilley was a firefighter employed by the ACT Emergency Services Authority, an arm of the ACT Department of Justice and Community Safety. On 4 July 2005 he made a compensation claim for a work-related injury. The injury was diagnosed as compartment syndrome, that is, pain affecting the front and sides of both legs when running or walking.

2.Liability was accepted for the injury on 3 August 2005.

3.In the early part of 2006, Mr Lilley developed a neuroma of the superficial peroneal in the left leg, related to his compartment syndrome.  He underwent surgery for the condition and the surgery led to damage to the peroneal nerve. Liability was accepted for the costs of the surgery and subsequent treatment, as the damage was secondary to the initial injury.

4.On 12 January 2009, Mr Lilley lodged a claim for permanent impairment under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for ‘both lower legs (compartment syndrome) and severed nerve (left lower leg)’, and ‘associated pain/loss of feeling’ which he claimed impacted on his pre-existing type 1 diabetes. The claim was rejected on 20 May 2009, a decision upheld on review on 26 February 2010.

5.On 19…