Stewart and Comcare - [2003] AATA 27

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 27
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N01/1202

GENERAL ADMINISTRATIVE DIVISION )

Re Patricia Ann STEWART

Applicant

And

Comcare

Respondent

DECISION

Tribunal Ms N Isenberg, Member
Date15 January 2003
PlaceSydney

Decision
The Administrative Appeals Tribunal affirms the decision under review.

[SGD] Member

ORDER TO AMEND WRITTEN DECISION [2003] AATA 27
TribunalMs N Isenberg, Member
Date23 January 2003
PlaceSydney
WHEREAS:
1.the Tribunal released a written decision in this matter, dated 15 January 2003; and
2.it has come to the Tribunal’s attention that there was an error in the decision;
3.the Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.

NOW THE TRIBUNAL THEREFOR ORDERS that the reasons for decision be amended to read from paragraph 93 onwards as follows:
93. Applying simple arithmetic the impairment for the conditions, after apportionment is 6% and 8% respectively which, when combined in accordance with Table 14.1, results in a 14% whole person impairment.
94. In all of the circumstances and for the reasons expressed above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to set aside the decision under review and in substitution therefor, determines that:

1.      The Applicant suffers permanent impairment of the back and lower limb arising out of the injury in March 1999.

2.      The Respondent is liable to pay the Applicant compensation for permanent impairment pursuant to sections 24 and 27 of the Act.

3.      The Applicant suffers from a 14% whole person impairment, pursuant to Table 14.1.

4.      The Respondent is liable to pay the Applicant’s reasonable costs associated with the application for review.

  [SGD] Ms N Isenberg
  Member

CATCHWORDS
Workers’ Compensation – two prior accidents – time for apportionment
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – ss 4, 14, 16, 19, 24, 27, 28(4)
CASE LAW
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
Comcare v Amorebieta (1996) 22 AAR 539
Hill and Comcare (AAT 12892, 11 May 1998)
Williams and Australian Postal Corporation (AAT 12695, 11 March 1998)
Mitsilias and Australian Postal Corporation (AAT 10968, 29 May 1996)
Martin and Australian Postal Corporation (AAT 12502, 19 December 1997)
Martin v Australian Postal Corporation [1999] FCA 655
Guide to the Assessment of the Degree of Permanent Impairment, Australian Government Publishing Service, Canberra, 1989.
REASONS FOR DECISION

Ms N Isenberg, Member

DECISION UNDER REVIEW
5. This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) by the Applicant, Mrs Patricia Ann Stewart, of a reviewable decision made on 15 February 2001 (T29) and affirmed on 21 May 2001 (T35) that no compensation was payable to Mrs Stewart under sections 24 or 27 of the Safety, Rehabilitation and Compensation Act1988.
LEGISLATION
6. A decision in this matter requires consideration…

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 Stewart and Comcare

Details

AGLC: Stewart and Comcare [2003] AATA 27
Case: [2003] AATA 27
Decision Date: 15 January 2003

CaseChat Overview and Summary

The appellant, Stewart, appealed against a decision of the Administrative Appeals Tribunal which had affirmed a decision of a delegate of the respondent, Comcare, that Stewart was not entitled to receive ongoing compensation for an injury. Stewart argued that the Tribunal erred in its finding that he was not entitled to compensation on the basis that he was not permanently impaired as a result of the injury, and that the Tribunal failed to take into account the effect of two prior injuries when assessing the extent of the impairment caused by the injury. Comcare submitted that the Tribunal was correct to find that Stewart was not permanently impaired, and that the Tribunal was entitled to take into account the effect of the prior injuries when assessing the extent of the impairment caused by the injury. The issues before the court were whether the Tribunal erred in finding that Stewart was not permanently impaired, and whether the Tribunal failed to take into account the effect of two prior injuries when assessing the extent of the impairment caused by the injury. The court found that the Tribunal was correct to find that Stewart was not permanently impaired, as the Tribunal was entitled to take into account the effect of the prior injuries when assessing the extent of the impairment caused by the injury. The court found that the Tribunal had properly considered the evidence before it and had not erred in finding that Stewart was not permanently impaired. The court also found that the Tribunal was not required to apportion the injury between the current injury and the prior injuries, as the evidence did not support such an approach. The court held that the Tribunal was correct to affirm the delegate's decision that Stewart was not entitled to ongoing compensation. The Administrative Appeals Tribunal's decision is affirmed.

Orders

Orders of the court

The Administrative Appeals Tribunal affirms the decision under review.

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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