DECISION AND REASONS FOR DECISION [2002] AATA 613
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/646
GENERAL ADMINISTRATIVE DIVISION )
Re ANTHONY JAMES WATKINS
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member
Date26 July 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes its decision that: (i) the respondent is liable to pay compensation to the applicant under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act1988 in respect of 20% whole person impairment; (ii) the matter is remitted to the respondent to calculate the applicant's entitlement in accordance with those provisions; and (iii) the respondent shall pay the applicant's costs pursuant to the General Practice Direction.
....................(Sgd).....................
R G Kenny
Member
CATCHWORDS
WORKER'S COMPENSATION – permanent impairment – right ankle injury in course of employment – 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 10% or 20% permanent impairment found
Safety, Rehabilitation and Compensation Act 1988 sections 24, 27, 28
Re Brouwer and Australian Postal Corporation [2001] AATA 570
Comcare v Amorebieta [1994] FCA 312
Comcare v Fiedler [2001] FCA 1810
Comcare v Ticsay (1992) 38 FCR 181
Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995)
Re Haugh and Comcare [1999] AATA 906
Re Holmes and Comcare [2001] AATA 290
Re Jones and Department of Defence (AAT 13357, 8 October 1998)
Re Peters and Australian Postal Commission (AAT 9680, 23 August 1994)
PublicTransport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336
Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995)
Re Morley and Comcare (1996) 40 ALD 725
Re Whelan and Department of Defence (1996) 47 ALD 383
Thiele v Commonwealth (1990) 22 FCR 342
Whittaker v Comcare (1998) 28 AAR 55
Wilson v Wilson's Tile Works Ltd (1960) 104 CLR 328
REASONS FOR DECISION
26 July 2002 Mr R G Kenny, Member
Application
On 12 July 2001, a delegate of the Military Compensation and Rehabilitation Service with the Department of Veterans' Affairs as delegate for Comcare (the respondent) rejected the claim of Anthony James Watkins (the applicant) under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for compensation payments for his right ankle injury. That decision affirmed a previous delegate's decision dated 23 February 2001. On 26 July 2001, the applicant lodged an application for review of the decision by the Administrative Appeals Tribunal (the Tribunal).
The applicant attended the hearing and was represented by Mr G Perry of counsel. The respondent was represented by Ms E Ford of counsel. In evidence were the T documents (T1-T43) (exhibit 1) and the following:
Exhibit A1 - a statement of facts and contentions from the applicant;
Exhibit A2 - extracts from the applicant's army medical records;
Exhibit A3 - extracts from the applicant's army personnel file;
Exhibit A4 - a medical report,…
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- Re Watkins and Comcare [2002] AATA 613
- Case
- [2002] AATA 613
- Decision Date
CaseChat Overview and Summary
The court was tasked with interpreting the term "difficulty" in the context of Mr Watkins' right ankle injury and its impact on his ability to perform certain activities. This interpretation was crucial in determining whether Mr Watkins' difficulty with grades, steps, and distances warranted a 10% or 20% whole person impairment rating. The court had to consider whether the mere presence of pain or weakness, without more, constituted a difficulty, or whether there needed to be an objective manifestation of such pain or weakness to establish a difficulty. This interpretation had to be consistent with previous decisions, such as Re Brouwer and Australian Postal Corporation and Re Whelan and Department of Defence, which had considered similar issues.
The court found that "difficulty" in the context of negotiating grades, steps, and distances meant that the activity must be troublesome or not easy for Mr Watkins. The court clarified that the limitation did not need to be significant or substantial but must be more than slight or minimal. The court further held that pain and weakness could be considered as sources of difficulty, but there must be some objective manifestation of that pain or weakness to establish the difficulty. This approach was consistent with the objective criteria outlined in the relevant Principles of Assessment. Based on this interpretation, the court found that Mr Watkins experienced difficulty with grades, steps, and distances, leading to a 20% whole person impairment rating under Table 9.5 of the Guide.
The court ordered that Mr Watkins' permanent impairment be assessed at 20% under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment. This assessment was based on the finding that Mr Watkins experienced difficulty with grades, steps, and distances due to pain and weakness, which had objective manifestations. This decision aligned with the court's interpretation of "difficulty" and was consistent with previous cases such as Re Brouwer and Australian Postal Corporation and Re Whelan and Department of Defence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Applying that interpretation to Table 9.5 of the Guide, the applicant will have difficulty if he finds it troublesome or not easy to negotiate grades, steps and/or distances. The limitation need not be significant or substantial but it must be more than slight or minimal. 91. The factor(s) responsible for giving rise to the particular difficulty will need to be considered. In Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995) at paragraph 34, the Tribunal found that "experiencing pain amounts to difficulty in that it makes the function of walking harder to perform". The Tribunal accepts the submission of Mr Perry that pain may be taken into account as the source of difficulty in performing an activity: see also Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995) at paragraph 55 and Re Whelan and Department of Defence(1996) 47 ALD 383 at 401. The Tribunal is also satisfied that weakness in a joint may be taken into account as the source of such a difficulty. 92. While pain and weakness may each be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain or of weakness, without more, means that there is difficulty experienced. The Tribunal notes the reference in the relevant Principles of Assessment to objective criteria (see paragraph 6 above) and is satisfied that, before there can be a finding that there is difficulty in performing a task because of pain, weakness or some other factor, there must be some objective manifestation of that pain or weakness which reveals the difficulty. To find otherwise would be to equate pain or weakness with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle effects for assessment under non-economic loss. 93. In Re Brouwer and Australian Postal Corporation [2001] AATA 570, the Tribunal found a 20% whole person impairment under Table 9.5 of the Guide in relation to a lower limb injury on the basis that there was difficulty with steps, grades and distances because of pain. However, there, the Tribunal was relying not merely on the presence of pain but accepted that the lower limb condition resulted in a "paddling gait", that the claimant had needed to rest during a walk which had been recorded on a surveillance video, that the claimant's foot "splayed out" and that he experienced swelling on use of his leg. 94. In Re Whelan and Department of Defence (1996) 47 ALD 383, the Tribunal also found a 20% whole person impairment under Table 9.5 of the Guide in relation to the claimant's bilateral knee condition with the difficulty being due mainly to the presence of pain on using steps, negotiationg grades and on prolonged walking. In addition, the Tribunal relied upon the curtailment of activities previously engaged in by the claimant and, in that regard, referred to the following comment by Jenkinson J in the Federal Court decision of Comcare v Amorebieta (1996) 22 AAR 539 at 554:"Loss, or loss of use, or the damage or malfunction, of a bodily system or function or part thereof resulting from injury does not in my opinion comprehend voluntary abstention from use, even where the abstention is calculated, and likely, to benefit the bodily system or function."