Re Nuss and Comcare

[2002] AATA 170

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

1. 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.

2. 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

1. 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.

2. 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…