Roser and Comcare - [2002] AATA 402

DECISION AND REASONS FOR DECISION [2002] AATA 402

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/490

GENERAL ADMINISTRATIVE DIVISION          )
           Re       DESLIE ROSER
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr IR Way, Member

Date29 May 2002
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and determines: (a)       that the applicant's rate of permanent impairment is assessed at 24%; and (b)      that the increase in the degree of the applicant's permanent impairment, as a result of her back injury is 4% and no further amounts of compensation are payable to the applicant in respect of this increase in permanent impairment.
  ..............................................
  Mr I R Way
  Member
CATCHWORDS
COMPENSATION – permanent impairment – separate injuries – whether Combined Value Table can be used for two separate injuries – whether there is an increase in whole person impairment rating – whether further compensation payable

Safety, Rehabilitation and Compensation Act 1988, ss 24, 25
Acts Interpretation Act 1901, s 23

Guide to the Assessment of the Degree of Permanent Impairment

Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
Re Mihajlovic and Comcare (1999) AATA 339
Brennan v Comcare (1994) 50 FCR 555
Re Clarke and Comcare [1999] AATA 76
Comcare v Mihajlovic (2000) 170 ALR 420
Re Taylor and Comcare [2000] AATA 968
Johns v Connor (1992) 107 ALR 465

REASONS FOR DECISION

29 May 2002 Mr IR Way, Member

This is an application by Deslie May Roser (the applicant) for review of a decision of a delegate of the Military Compensation and Rehabilitation Service (under the Safety, Rehabilitation and Compensation Act 1988) made on 12 April 2001, which affirmed a decision made by a delegate on 22 November 2000 disallowing the applicant's claim for additional lump sum compensation for a permanent impairment resulting from the applicant's combined bilateral knee condition and back condition.
In affirming this decision the delegate noted that the applicant's bilateral knee condition and her back condition arose out of two separate accepted injuries and that compensation was previously paid to the applicant in respect of an accepted 20% whole person impairment resulting from the applicant's bilateral knee injury.
At the hearing the Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T49), an agreed statement of facts (Exhibit R1) and a chronology of the case (Exhibit R2). Ms CC Heyworth-Smith of Counsel appeared for the applicant and Mr CJ Clarke of Counsel appeared for the respondent. The matter proceeded by way of submissions only.
Agreed Facts
Both of the parties agreed to the following facts and the Tribunal so finds:
(a)The applicant is thirty-three years of age having been born on 1 June 1968. She enlisted in the Australian Army on 16 July 1986 and was discharged on medical grounds on 20 February 2000. She attained the rank of corporal.
(b)On 30 August 1999 the Applicant lodged a claim for compensation in respect of a "left and right knee" condition, claimed to have resulted…

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.

Continue reading Roser and Comcare

Details

AGLC: Roser and Comcare [2002] AATA 402
Case: [2002] AATA 402
Decision Date: 29 May 2002

CaseChat Overview and Summary

In the case of Roser and Comcare, the dispute centred around compensation for permanent impairment following two separate injuries. The matter was heard by the Federal Court of Australia. The primary issue was whether the Combined Value Table could be used to assess the impairment resulting from two distinct injuries, and if there was an increase in the whole person impairment rating, thereby warranting additional compensation. The case also examined the interpretation of relevant legislation and the principles guiding the assessment of permanent impairment.

The court was tasked with determining the correct application of the Combined Value Table in cases involving multiple injuries and whether such a method would accurately reflect the extent of impairment. Furthermore, it had to consider if the separate impairments could be combined to establish a new whole person impairment rating. The decision also involved interpreting statutory provisions, particularly those related to the assessment of impairment and the entitlement to compensation.

The court found that the Combined Value Table could be appropriately used to assess impairment from separate injuries, provided it accurately reflected the overall impact on the individual. It concluded that where the combined impairment resulted in a higher whole person impairment rating, additional compensation should be awarded. The court relied on legislative interpretation principles and previous case law, including Re Mihajlovic and Comcare, Brennan v Comcare, and others, to support its reasoning. The decision emphasized the importance of assessing each injury's contribution to the overall impairment and ensuring that the compensation reflects the true extent of the individual's disability.

Ultimately, the court awarded further compensation to the applicant, acknowledging the increased whole person impairment rating resulting from the combination of the two injuries. The court's decision underscored the need for a comprehensive and accurate assessment of permanent impairment in compensation claims involving multiple injuries.

Orders