DECISION AND REASONS FOR DECISION [2002] AATA 170
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/829
GENERAL ADMINISTRATIVE DIVISION )
Re GARY GEORGE NUSS
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member
Date14 March 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................(Signed)....................
R G Kenny
Member
CATCHWORDS
WORKER'S COMPENSATION –- permanent impairment – left foot injury in course of employment – compensation payments made -– whether impairment to be assessed under Table 9.2 or Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment - "difficulty" - difficulty with grades, steps and distances – whether 20% permanent impairment found
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 25, 27
Collins v Repatriation Commission (1994) 33 ALD 557
Comcare v Fiedler [2001] FCA 1810
Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995)
Re Holmes and Comcare [2001] AATA 290
Re Johnston and Comcare [2000] AATA 970
Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995)
Re Morley and Comcare (1996) 40 ALD 725
Re Peters and Australian Postal Commission (AAT 9680, 23 August 1994)
Re Virtue and Comcare [2001] AATA 974
Re Whelan and Department of Defence (1997) 47 ALD 383
Whittaker vComcare (1998) 86 FCR 532
REASONS FOR DECISION
14 March 2002 Mr R G Kenny, Member
Background
This statement of reasons relates to the hearing by the Administrative Appeals Tribunal (the Tribunal) of an application to review a decision, dated 22 August 2000, of a delegate of the Military Compensation and Rehabilitation Service with the Department of Veterans' Affairs as delegate for Comcare (the respondent). In that decision, the respondent rejected the applicant's claim under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for further compensation payments for his left foot injury.
In evidence was a set of documents (the T Documents), and these included an application for review (T1), received by the Tribunal on 7 September 2000, which contained a statement by the applicant where he set out his reasons for believing that the decision was wrong. Also in evidence was a statement, dated 28 September 2000, by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (T3).
Appearances
The applicant attended the hearing and was represented by Mr A Harding of counsel. Mr C Clarke of counsel appeared on behalf of the respondent.
At the hearing, the following material was taken into evidence from
the applicant:
exhibit 1 – documents prepared in accordance with section 37 of the AAT Act (the T documents: T1 – T43);
exhibit 2 – a statement by the applicant;
exhibit 3 – a statement by the applicant's wife, Mary Nuss; and
exhibit 4 – a report, dated 10 January 2001, from physiotherapist, John Kirwan;
the respondent:
exhibit A - a report, dated 25 October 2001, from Dr Keith Adam, specialist in occupational medicine;
exhibit B – a report, dated 5 April 2000, from Dr Chris…
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- AGLC
- Re Nuss and Comcare [2002] AATA 170
- Case
- [2002] AATA 170
- Decision Date
CaseChat Overview and Summary
The Court examined the evidence presented by Nuss, including his own account of the difficulties he faced due to his left foot injury. Nuss described significant pain and limitations in activities such as walking, climbing stairs, and engaging in physical activities with his children. The Court considered whether these difficulties warranted a 20% whole person impairment rating under the Guide to the Assessment of the Degree of Permanent Impairment. Comcare had already accepted a 10% impairment rating under Table 9.5 of the Guide but contested any higher rating.
The Court evaluated the evidence and found that Nuss's impairments, while significant, did not meet the threshold for a 20% whole person impairment rating. The Tribunal noted that Nuss's ability to work and rest as needed mitigated the impact of his impairments on his overall work performance. The Court concluded that the difficulties Nuss experienced, while valid, did not align with the criteria necessary for a higher impairment rating. Therefore, the Court upheld the existing 10% impairment rating and denied further compensation.
The final orders of the Court were to maintain the existing 10% whole person impairment rating for Nuss's left foot injury and to deny the application for additional compensation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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