Slattery and Comcare - [2010] AATA 56

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION                [2010] AATA 56
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No 2009/1204

GENERAL ADMINISTRATIVE DIVISION )

Re Craig Slattery

Applicant

And

Comcare

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member
Dr M Miller, Member
Mr M Hyman, Member
Date28 January 2010
PlaceCanberra

Decision The Tribunal orders the matter be remitted to the Respondent for reassessment using the fifth edition of the American Medical Association Guide.
.......................[sgd]....................
Professor RM Creyke, Senior Member

Dr M Miller, Member
Mr M Hyman, Member

CATCHWORDS
COMPENSATION – Degree of impairment to elbow injury – whether loss of grip strength is an impairment assessable under Respondent’s approved guide – whether it can be assessed in accordance with the American Medical Association’s guide – which edition of the AMA guide – matter remitted to Respondent
Administrative Appeals Tribunal Act1975 (Cth), s 34E(3)(b)
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 28(4)
Pavic and Comcare (1996) 45 ALD 409
Whittaker v Comcare (1998) 86 FCR 532
Re Peters and Australian Postal Corporation [1994] AAT No 9680 (Unreported, 23 August 1994)
Re Edwards and Comcare (2001) 64 ALD 495.
Comcare v Ticsay(1992) 38 FCR 181
Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336
Canute v Comcare (2006) 226 CLR 535
Coulter and Comcare (2005) ALD 315
28 January 2010                     REASONS FOR DECISION

Professor RM Creyke, Senior Member
Dr M Miller, Member
Mr M Hyman, Member

Background

1.      Mr Slattery is employed by the Australian Federal Police (AFP) as a trainer with the AFP Operational Response Group. He is currently 40 years of age. He trains AFP personnel before they leave on overseas deployment. The work involves camping, weapons training, counter-insurgency tactics such as personal combat techniques, high risk searches, and physically demanding activities such as navigation, diving, drop-offs and pick-ups by helicopter, and driving on difficult terrain. Fitness is important to him.
2.      On 19 December 2006 he was injured at work while riding a quad motorcycle which turned sideways in loose gravel when he was negotiating a corner and rolled over. Mr Slattery landed heavily on his left elbow and fractured his left arm. The injury involved 50 per cent of the bone in the radial head of his left arm and Mr Slattery underwent an operation on 31 December 2006.
3.      Comcare accepted liability for the injury on 31 January 2007, with a date of injury of 19 December 2006. Mr Slattery returned to work on restricted duties on 22 January 2007. Continuing pain led to a further operation on 11 October 2007 to remove the screws in the left radial head. Mr Slattery was certified fit for work from 14 November 2007. He claimed permanent impairment on 1 June 2008.
4.      That claim was rejected by Comcare on 18 November 2008, a claim upheld on review by Comcare on 17 March 2009. Mr Slattery sought further review by the Tribunal on 23 March 2009.
5.      On 9 November 2009 the…

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 Slattery and Comcare

Details

AGLC: Slattery and Comcare [2010] AATA 56
Case: [2010] AATA 56
Decision Date: 28 January 2010

CaseChat Overview and Summary

Mr Slattery commenced proceedings in the Administrative Appeals Tribunal (AAT) seeking a review of a decision made by Comcare, which is the Commonwealth's workers' compensation insurer. The dispute centred on the degree of impairment resulting from an injury to Mr Slattery's elbow, and specifically whether the loss of grip strength was an impairment that could be assessed under Comcare's approved guide. Additionally, the parties debated which edition of the American Medical Association (AMA) guide should be used for the assessment.

The primary legal issues were whether the loss of grip strength was an assessable impairment under Comcare's guidelines, and if so, which edition of the AMA guide should be applied. The AAT had to determine whether the fifth edition, as suggested by Mr Slattery, was appropriate or if the fourth edition, as used by Comcare, was the correct version to apply.

In its decision, the AAT held that the loss of grip strength was indeed an assessable impairment. The Tribunal noted that the fourth edition of the AMA guide, used by Comcare, was not consistent with the principles established in prior case law, which favoured the use of the fifth edition. The AAT found that the fifth edition was more aligned with the legislative framework and previous judicial interpretations. Consequently, the Tribunal concluded that the matter should be remitted to Comcare for reassessment using the fifth edition of the AMA guide.

The AAT remitted the matter to Comcare for reassessment using the fifth edition of the American Medical Association Guide, as outlined in the decision.

Orders

Orders of the court

The Tribunal orders the matter be remitted to the Respondent for reassessment using the fifth edition of the American Medical Association Guide.

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

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