Sell and Comcare

[2003] AATA 711

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 711

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/110

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Rodney Spencer SELL

Applicant

And Comcare

Respondent

DECISION

Tribunal Mr G A Mowbray, Member

Date19 June 2003

PlaceCanberra

Decision

For reasons given orally the Tribunal sets aside the Respondent's decision of 31 October 2001 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that:

(a) Mr Sell’s compensable condition, namely “bilateral anterior compartment syndrome, right posterior and borderline left posterior compartment syndrome”, has resulted in a permanent impairment under section 24 of the Safety, Rehabilitation and Compensation Act (“the Act”);

(b)     The degree of permanent impairment resulting from the compensable condition is 20% under Table 9.5 of the “Guide to the Assessment of the Degree of Permanent Impairment” (“the approved Guide”);

(c) Mr Sell is entitled to additional compensation for non-economic loss under section 27 of the Act in accordance with the following scores under Part B of the approved Guide:

·     Pain  4

·     Suffering  3

·     Mobility  2

·     Social Relationships  1

·     Recreation and Leisure Activities   3

·     Other Loss  2

·     Loss of Expectation of Life             0

The Tribunal orders the Respondent to pay the Applicant’s costs as agreed or taxed.

..................[signed].................

Member

CATCHWORDS

COMPENSATION - permanent impairment - degree of impairment - difficulty with grades, steps and distances - meaning of "difficulty" - jurisdiction to consider non-economic loss

Safety, Rehabilitation and Compensation Act 1988 ss 24, 27

Administrative Appeals Tribunal Act 1975 s 43(1)

Comcare v Nichols [1999] FCA 209

Re Nguyen and Comcare (AAT 10133, 18 April 1995)

Comcare v Moon [2003] FCA 569

Comcare v Fiedler (2001) 115 FCR 328; 34 AAR 237

Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995)

Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995)

Re Watkins and Comcare (2002) 69 ALD 498; [2002] AATA 613

Re Nuss and Comcare [2002] AATA 170

Re MacDonald and Australian Postal Corporation [2003] AATA 388

Australian Postal Corporation v Oudyn [2003] FCA 318

Lees v Comcare (1999) 29 AAR 350; 56 ALD 84

REASONS FOR DECISION

28 July 2003 Mr G A Mowbray, Member           

History of the Application

1.      On 23 August 2000 Mr Rodney Sell completed a claim for rehabilitation and compensation for shin splints and compartment syndrome.  He stated that he had first received treatment in June 1997 and that the condition was due to running in boots and jumping in and out of vehicles.

2.      On 5 September 2000 the Department of Veterans' Affairs as delegate for Comcare accepted liability for "bilateral anterior compartment syndrome, right posterior and borderline left posterior compartment syndrome”.  For the purposes of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) the date of injury was determined to be 27 May 1997 when treatment was first sought.

3. On 19 January 2001…