McDonald and Comcare - [2010] AATA 635

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 635

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2009/5194

GENERAL ADMINISTRATIVE DIVISION )
ReSue McDonald

Applicant

And Comcare

Respondent

DECISION

TribunalMr RP Handley, Deputy President
Date19 August 2010
PlaceSydney
DecisionFor the reasons given orally at the hearing, the decision under review is affirmed.
.....................[sgd].....................
Mr RP Handley
Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – injury and impairment – whole person impairment – application of Canute v Comcare – injury to right shoulder and injury right elbow separate injuries – separate injuries do not reach threshold for whole person impairment – claim for compensation cannot succeed

RELEVANT ACT

Safety, Rehabilitation and Compensation Act 1988 (Cth): ss 14, 24, 27

CITATIONS

Canute v Comcare (2006) 226 CLR 535; (2006) 91 ALD 552; (2006) 229 ALR 445; (2006) 80 ALJR 1578; [2006] HCA 47

Dib and Comcare [2008] AATA 739

Comcare v Roser (2003) 127 FCR 155; (2003) 36 AAR 534; [2003] FCA 243

Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28; (2009) 111 ALD 1; (2009) 259 ALR 416; (2009) 83 ALJR 1113; [2009] HCA 38

OTHER AUTHORITIES

Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2006)

REASONS FOR DECISION

24 August 2010	Mr RP Handley, Deputy President
background

Ms McDonald has been employed by the Australian Taxation Office (ATO) since 2000 in its Audit Section. On 19 August 2005, on her way home from work, she fell on the stairs at Thirroul Railway Station, as a result of which she fractured her right elbow and right clavicle. She lodged a claim for workers compensation and liability was accepted by Comcare under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on 28 September 2005.
On 22 October 2008, Dr Richard Deveridge, orthopaedic surgeon, for the applicant, assessed Ms McDonald as having a 6 per cent whole person impairment (WPI) in respect of her right shoulder joint and a four per cent WPI in respect of her right elbow under Tables 9.11 and 9.10 respectively of the Guide to the Assessment of the Degree of Permanent Impairment (2^nd ed, 2006) (the Guide). According to the Combined Values Chart in Appendix 1, this gave a WPI of 10 per cent.
On 20 November 2008, the applicant lodged a claim for compensation for permanent impairment of 10 per cent under s 24 of the SRC Act and for resultant non-economic loss under s 27.
On 18 March 2009, Dr David Macauley, rheumatologist, for the respondent, assessed Ms McDonald as having a four per cent WPI in respect of her right shoulder and a three per cent WPI in respect of her right elbow, under Tables 9.11 and 9.10 respectively of the Guide.
On 14 April 2009, a delegate of Comcare refused Ms McDonald's claim for compensation for permanent impairment pursuant to s 24(7) of the SRC Act because each…

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 McDonald and Comcare

Details

AGLC: McDonald and Comcare [2010] AATA 635
Case: [2010] AATA 635
Decision Date: 19 August 2010

CaseChat Overview and Summary

In the case of McDonald and Comcare, the applicant sought compensation for injuries sustained while employed by the Commonwealth. The specific injuries in question involved the applicant's right shoulder and right elbow. The matter was heard in the Administrative Appeals Tribunal. The crux of the dispute was whether the combined effect of the injuries to the right shoulder and right elbow constituted a whole person impairment sufficient to warrant compensation under the relevant legislation.

The legal issues before the Tribunal involved interpreting the Safety, Rehabilitation and Compensation Act 1988 and determining whether the injuries to the right shoulder and right elbow, individually and collectively, met the threshold for whole person impairment. The Tribunal needed to decide if the separate injuries could be aggregated to reach a level of impairment qualifying for compensation. The key authorities cited, including Canute v Comcare, Dib and Comcare, Comcare v Roser, and Fellowes v Military Rehabilitation and Compensation Commission, provided essential guidance on the principles of whole person impairment and the assessment of permanent impairment.

The Tribunal considered the evidence and the application of the Comcare Guide to the Assessment of the Degree of Permanent Impairment. It concluded that the injuries to the right shoulder and right elbow were separate injuries and did not, individually or collectively, reach the threshold for whole person impairment as defined by the legislation and the applicable authorities. Consequently, the applicant's claim for compensation was unsuccessful. The Tribunal's reasoning was grounded in the specific criteria set out in the authorities, which emphasised the need for a significant combined impact to qualify as whole person impairment.

No final orders are detailed in the summary provided. However, it can be inferred that the Tribunal dismissed the applicant's claim for compensation, given the conclusion that the injuries did not meet the required threshold for whole person impairment.

Orders