Re Brouwer and Australian Postal Corporation - [2001] AATA 570

DECISION AND REASONS FOR DECISION [2001] AATA 570

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1714

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Christopher Brouwer
  Applicant
           And    Australian Postal Corporation
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date21 June 2001
PlaceSydney

Decision      The decision under review is set aside and in substitution therefor the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) that the Respondent is liable to pay compensation to Mr Brouwer pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal further decides that the Respondent should pay the Applicant's costs.
  .....................[sgnd]...................
  Ms SM Bullock
  Senior Member

DECISION (CORRIGENDUM)

Before : Ms S M Bullock – Senior Member

Date: 16 July 2001

Place: Sydney

The Tribunal made a decision in this matter dated 21 June 2001 pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 ("the Act");

It has come to the Tribunal's attention that there was a clerical error under Table 14.1 of the "Guide to the assessment of the degree of permanent impairment" in paragraphs 104 and 105 of that decision.

The Tribunal desires to amend the decision pursuant to section 43AA of the Act and provides as follows:

The figure "20" (per cent) should be deleted from both paragraphs and be replaced with the figure "19" (per cent).

.........................................
Ms S M Bullock
Senior Member

Catchwords
COMPENSATION - Injury to Left Leg and Right hand - Permanent Impairment - Whether Impairment Reaches 10 Per Cent Threshold - Interpretation of Instruments - "Guide to the Assessment of the Degree of Permanent Impairment"

Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 27, 28, 67,
Comcare Guide to the Assessment of the Degree of Permanent Impairment

Authorities
Comcare v Amorebieta (1996) 66 FCR 83
Re Whelan and Department of Defence (1997) 47 ALD 383
Whittaker v Comcare (1998) 86 FCR 532
Re Toohey and Australian Postal Corporation (1998) (AAT 13360, 9 October 1998)
Re Morley and Comcare (1996) 40 ALD 725

REASONS FOR DECISION

21 June 2001 Ms SM Bullock, Senior Member

Mr Christopher Brouwer, the Applicant, has made an application for review to the Administrative Appeals Tribunal, ("the Tribunal") of a decision of the Australian Postal Corporation ("Australia Post") dated 20 August 1999 (T44) as affirmed by the Reconsideration Section on 6 September 1999 (T48), to refuse Mr Brouwer compensation in respect of his claim for permanent impairment of the right arm and left leg injuries, pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
A hearing was held before the Tribunal in Newcastle on 8 March 2001 and in Sydney on 9 March 2001. The Applicant was represented by Mr L T Grey of Counsel who was instructed by Mr C Hart of Bale, Boshev and Associates. The Respondent, Australia Post, was represented by Mr G Johnson of Counsel, instructed by Mr L…

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.

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Details

Case: [2001] AATA 570
Decision Date: 21 June 2001

CaseChat Overview and Summary

The case of Re Brouwer and Australian Postal Corporation involved a dispute concerning the interpretation of instruments regarding the assessment of the degree of permanent impairment, specifically whether Mr Brouwer's impairment reached the 10 per cent threshold. The matter was heard in the Federal Court of Australia. The central issue before the court was whether the medical assessments provided by specialists, and the evidence presented by Mr Brouwer, demonstrated that he had a permanent impairment of 10 per cent or more, as required for certain compensation entitlements under the applicable legislation. The court had to consider the assessments provided by Professor Ghabrial and Dr Browne, as well as the subjective evidence provided by Mr Brouwer about his ongoing difficulties and pain.

The court undertook a detailed analysis of the evidence provided by the medical specialists and the Tribunal's findings. It examined the reports of Professor Ghabrial, who assessed Mr Brouwer's impairments at 10 per cent for the right upper limb and 20 per cent for the left lower limb, and Dr Browne, who reported on Mr Brouwer's ongoing pain, stiffness, and difficulties in daily activities. The court also considered Mr Brouwer's subjective evidence regarding his functional limitations and pain. The court determined that while the medical evidence supported some level of impairment, Mr Brouwer's subjective complaints and functional difficulties, as corroborated by his medical history and the assessments provided, did not reach the 10 per cent threshold for whole person impairment.

In conclusion, the court found that Mr Brouwer's impairments did not meet the required threshold of 10 per cent, and therefore he was not entitled to the compensation he sought. The court upheld the decision of the Australian Postal Corporation, ruling against Mr Brouwer's claim for compensation based on the assessment of his permanent impairment.

Orders

Orders of the court

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Background

Background to the litigation

Section 67 of the Act deals with the costs of proceedings before the Tribunal.Background The following information is provided by way of background and is not disputed. Mr Brouwer told the Tribunal that prior to September 1997, he had no problems with his right or left leg and his right hand and wrist. He was an active sportsman, a cyclist, had had aspirations to play in the First Division soccer team, played touch football, water-skied and also jogged. Referring to photographs of his injury just after his admission to Maitland Hospital (Exhibit A6), Mr Brouwer stated that his injuries were very serious and painful. Mr Brouwer was immobilised and in great pain in his left leg and also had a plaster cast on his right arm, which was also painful. Mr Brouwer noted that he was discharged from hospital on 26 September 1997. He had to have his home equipped with aids such as railings on the stairs, a new bed and other equipment which assisted him with his mobility. Mr Brouwer recalled making slow, painful and frustrating progress towards recovery. Mr Brouwer told the Tribunal of having another accident at home when he fell out of a deck chair. He toppled over and hit his injured leg but fortunately there were no long term effects, as reported by his treating Orthopaedic Specialist at the time, Dr Hammond. Mr Brouwer explained to the Tribunal that while the progress following the accident was slow, the level of pain gradually lessoned over time. Currently Mr Brouwer noted that he might take diagesics for pain but does not like taking medication. In relation to his right wrist and thumb, Mr Brouwer says he finds it difficult to grip things and to open the lids of jars, providing the Tribunal with the example of his difficulty on the morning of the hearing, trying to open a jam jar lid. Mr Brouwer also finds it difficult to operate door handles, not including those of car doors. Mr Brouwer is right hand dominant but has found that because of lack of strength in his right hand and dexterity difficulties, he has had to compensate by using his left hand more and more. Mr Brouwer told the Tribunal that he has been unable to use a computer mouse because of the pain and discomfort and now uses a graphic stylus pen which operates in a similar way to a mouse, but does not illicit the same difficulty with pain, discomfort and mobility which he found with the mouse. Mr Brouwer also told the Tribunal that he has difficulty with buttons. Because of the difficulty of gripping a plectrum, he cannot play the guitar, a leisure pursuit which he previously enjoyed. Mr Brouwer acknowledged, however, that part of the difficulty with playing the guitar also involved his loss of technique, but was clear that there was also the difficulty of holding his thumb and finger because of his injury. Mr Brouwer did not recall telling the various specialists he had consulted of his problems related to the guitar or difficulty with buttons. He had also not mentioned any of these problems in his Economic Loss Questionnaire.

Evidence

Evidence Before The Court

In relation to the various medico-legal examinations with specialists, Mr Brouwer did not recall Dr Cameron asking him to do a full squat, but if he were to have asked he would have done his best. Further, he did not agree with Dr McGill that he can use his fingers normally. Mr Brouwer also did not agree with Dr McGill's assessment of his walking "normally" in the video. Mr Brouwer stated that he has not walked normally since his accident.MEDICAL EVIDENCEProfessor Y A E Ghabrial, Director, Department of Orthopaedic Surgery, Royal Newcastle Hospital In addition to the report of 14 April 1999 (T37), provided by Professor Ghabrial, Orthopaedic and Spinal Surgeon, he provided two further reports dated 1 December 1999 and 1 February 2001 (Exhibit A1). Professor Ghabrial noted in his report of 1 December 1999, that he had reassessed Mr Brouwer's disabilities and impairments according to the Comcare Guide and concluded that in relation to Mr Brouwer's right upper limb, using Table 9.1, the appropriate assessment is 10 per cent whole person impairment. In relation to the left lower limb, Professor Ghabrial used Table 9.5 of the Comcare Guide to assess Mr Brouwer's whole person impairment at 20 per cent. Professor Ghabrial was subsequently provided with X-rays of Mr Brouwer's left tibia and fibula and right wrist, which were performed on 17 January 2001. Professor Ghabrial noted that in relation to the left tibia and fibula, the fracture showed full union with slight postero-medial angulation distally. In relation to Mr Brouwer's right wrist, Professor Ghabrial noted no evidence of any deformity of the right scaphoid bone and radius. Professor Ghabrial did note some minimal cortical thinning in relation to the radial aspect of the distal ulna, which he considered to be related to Mr Brouwer's previous trauma. The fractures of the right scaphoid and the right lower radius were noted to have healed. In light of these recent X-rays, Professor Ghabrial stated that he had no reason to change his opinion as reported previously on 14 April 1999 (T37) and 1 December 1999 (Exhibit A1).Dr C D Browne, Rheumatologist Dr Browne provided a number of reports to the Tribunal dated 4 July 2000, 31 July 2000 (Exhibit A2) and 8 March 2001 (Exhibit A5). In his report of 4 July 2000, Dr Browne reported Mr Brouwer's complaining of symptoms of stiffness of the left ankle with inability to dorsiflex the ankle. Further, Mr Brouwer told Dr Browne of pain in the achilles tendon region and of having difficulty standing. Mr Brouwer's left ankle tendered to give way easily and Mr Brouwer further informed Dr Browne of having the need to place a pillow between his ankles in bed at night because he experiences night pain and intermittent swelling of his left ankle. Mr Brouwer reported difficulties to Dr Browne with squatting and walking for more than half an hour. In relation to his right hand and wrist, Dr Browne reported Mr Brouwer experiencing recurrent pain in the right thumb base with weakness of pinch grip and experiencing pain in lifting heavy objects. Dr Browne noted Mr Brouwer's difficulty in using a pen and a computer mouse. Mr Brouwer's right hand was also noted to be sensitive to trauma and weather changes increase Mr Brouwer's right hand symptoms. At Mr Brouwer's left knee, Dr Browne reported Mr Brouwer experiencing aching and numbness below the knee and an inability to kneel on the left knee. Dr Browne noted that Mr Brouwer is able to run and was hoping, as at the date of that report in July 2000, to return to soccer.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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