Osbrough and Comcare

[2001] AATA 118

DECISION AND REASONS FOR DECISION [2001] AATA 118

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V00/737

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      GRAEME A OSBROUGH 
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Mrs Joan Dwyer,         Senior Member        

Date16 February 2001

PlaceMelbourne

Decision      1. The Tribunal sets aside the decision under review and in substitution varies the determination made 2 December 1999 to provide that Mr Osbrough is entitled to compensation for 20% whole person impairment under s 24 of the Act. 2. The Tribunal remits the matter to the respondent for assessment of the compensation payable under ss 24 and 27 of the Act. 3. The applicant's costs of the proceeding are to be paid by the respondent as agreed or failing agreement to be taxed.
  (Sgd) Joan Dwyer
  Senior Member
COMPENSATION – permanent impairment – bilateral odd facet patellar chondromalacia – assessment of degree of permanent impairment – use of Table 9.5 – decision set aside and determination varied
Safety, Rehabilitation and Compensation Act 1988

Morley and Comcare (1996) 40 ALD 725

Whelan and Comcare (1997) 47 ALD 383

REASONS FOR DECISION

16 February 2001    Mrs Joan Dwyer, Senior Member   

1. This is an application for review of a  reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") on 29 May 2000 (T51).  That decision affirmed a decision made on 2 December 1999 (T48 p101) that Mr Osbrough was entitled to a 10% whole person impairment rating on Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment ("the approved Guide") in respect of bilateral odd facet patellar chondromalacia.

2. Mr B Wright of Counsel appeared for Mr Osbrough.  Mr I Gourlay of Counsel appeared for Comcare.  Mr Osbrough appeared and gave evidence.

3. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibit taken in by the Tribunal during the hearing.

4. The relevant ratings under Table 9.5 of the approved Guide are:

   10Can rise to standing position and walk BUT has difficulty with grades and steps

   20Can rise to standing position and walk but has difficulty with grades, steps and distances

5. I accept the evidence of Mr Osbrough and find that he can rise to standing position and walk but does have difficulty with grades, steps and distances.

6. I see that he has told doctors either that he can only walk for a limited time namely 30 minutes or that he has difficulty walking approximately 500 metres.  On 21 May 1999 he told Dr Boyes that his capacity to walk on flat ground was restricted to approximately 30 minutes (T docs 45).  On 18 August 1999 Dr Webster noted "He states walking for more than 500 metres would cause increased bilateral knee pain." (Tdocs p85).  On 25 November 1999 Mr Strangward took a history that Mr Osbrough "cannot walk more than twenty to thirty minutes because the knees get very sore by then." (Tdocs p98)

7. To-day Mr Osbrough said he can only walk for perhaps 10 to 20 minutes.  He described the problem of pain and swelling he had when he had to walk 500 metres twice a day on a daily basis while attending a college rehabilitation course.

8. Mr Osbrough said he cannot walk 600–700 metres to a bus stop or 1Km to his local shops.

9. I find that he has a degree of difficulty with distances which is not to be expected of a "normal healthy person" in his 20's or 30's, to quote the words at page 3 of the approved Guide.

10. Mr Wright did not pursue the claim to assess both legs separately on Table 9.5.  I consider that was appropriate.  I refer to my reasoning in Morley and Comcare (1996) 40 ALD 725 and Whelan and Comcare (1997) 47 ALD 383. I find that Mr Osbrough has a 20% impairment on Table 9.5.

11. I will set aside the decision under review and vary the determination made on 2 December 1999 to provide that Mr Osbrough is entitled under s 24 of the Act to compensation for 20% whole person impairment. I will remit the matter to the respondent for calculation and assessment of compensation payable under ss 24 and 27 of the Act. I will order that the applicant's costs of this application be paid by the respondent, in default of agreement such costs to be taxed.

    I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

    Signed:         G.A. Carney
      Associate

    Date/s of Hearing  16 February 2001
    Date of Decision  16 February 2001
    Counsel for the Applicant        Mr B Wright
    Solicitor for the Applicant         D'Arcys
    Counsel for the Respondent    Mr I Gourlay
    Solicitor for the Respondent    Blake Dawson Waldron