Taylor and Comcare - [2000] AATA 988

DECISION AND REASONS FOR DECISION [2000] AATA 988

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/937

GENERAL ADMINISTRATIVE DIVISION           )
           Re      WAYNE TAYLOR
  Applicant
           And     COMCARE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr D Elsum, AO, Member Miss E A Shanahan, Member

Date14 November 2000
PlaceMelbourne

Decision        1. The Tribunal sets aside the decision under review and in substitution varies the determination of 4 May 1999 (T33) to provide that Mr Taylor is entitled to a 20% whole person impairment rating in respect of his left knee together with compensation for non-economic loss under s 27 of the Safety, Rehabilitation and Compensation Act 1988 calculated on the basis that he has a total score of 6.7 on Table 5 in respect of Tables 1-4 in Part B of the Guide.    2.   The Tribunal reserves liberty to the parties to apply if clarification is required as to the amount payable to Mr Taylor as a result of the Tribunal's decision.
  (Sgd) Joan Dwyer
  Senior Member

COMPENSATION – issue as to amount of compensation payable for permanent impairment of left knee - compensation having already been paid in respect of permanent impairment of the right knee - construction of the Guide to the Assessment of Permanent Impairment - table most favourable to the applicant must apply - decision set aside

Comcare v Mihajlovic [2000] FCA 285

Re Morley and Comcare (1996) 40 ALD 725

Whelan and Department of Defence (1997) 47 ALD 383

Whitaker v Comcare (1998) 28 AAR 55

REASONS FOR DECISION

14 November 2000 Mrs Joan Dwyer, Senior Member Mr D Elsum, AO, Member Miss E A Shanahan, Member

This is an application for review of a reviewable decision under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The issue for determination concerns the appropriate method of calculating the amount payable to Mr Taylor in respect of permanent impairment of his left knee. He previously received compensation in respect of permanent impairment of the right knee. The reviewable decision made 16 July 1999 (T35) affirmed a determination of 4 May 1999 (T33) that Mr Taylor was entitled to compensation for permanent impairment and non-economic loss in respect of bilateral medial compartment arthritis, of the knees, and that the total amount of compensation payable was $15,767.52. That figure represented payment in respect of an increase in a previously determined degree of impairment of 10% for the right knee. The determination of 4 May 1999 (T33) withdrew an earlier offer contained in a letter dated 28 January 1999 (T31) to pay Mr Taylor $36,180.87 compensation in respect of permanent impairment resulting from tear of the left medial meniscus.
Mr Taylor was represented by Mr D De Marchi, a solicitor. Comcare was represented by Ms A McMahon of Counsel. Mr Taylor gave evidence. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also a report of Mr Quirk which was…

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 Taylor and Comcare

Details

AGLC: Taylor and Comcare [2000] AATA 988
Case: [2000] AATA 988
Decision Date: 14 November 2000

CaseChat Overview and Summary

The applicant, Mr Taylor, brought a claim against Comcare for compensation in relation to his injuries sustained during his employment. The dispute centred on the assessment of the level of permanent impairment arising from soft tissue injuries involving his knees, specifically whether the assessment should be made using Table 9.2 or Table 9.5 of the relevant legislation, and if it was possible to combine the impairments from both knees. The case was heard in the Federal Court of Australia.

The court had to determine whether the decision-maker had the discretion to choose between using Table 9.2 or Table 9.5 to assess the level of impairment, and if there was a legal obligation to use the table that favoured the employee. The court also needed to decide whether the impairments from both knees could be combined when using Table 9.5, which assesses loss of function, or if only a single assessment was permissible.

In its reasoning, the court referred to the decision in Whitaker v Comcare, which established that where two tables could be used to assess impairment, the decision-maker must use the one that yields the most favourable result for the employee. The court held that as the assessment of 10% for the right knee using Table 9.2 was not challenged, the assessment of 20% for the left knee using Table 9.5 was indeed the most favourable. The court also considered the authority in Re Morley and Re Whelan which supported the view that only one assessment should be made using Table 9.5, as it is concerned with loss of function requiring the use of two legs. The court concluded that the assessment from Table 9.5 for the left knee should stand, and the impairments from both knees should not be combined.

The court ordered that Comcare must pay Mr Taylor compensation based on the assessment of 20% impairment for his left knee using Table 9.5, as it was the most favourable outcome for him. The assessment for his right knee using Table 9.2 was not to be disturbed. The court did not order any combination of impairments from both knees.

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

The problem with the respondent's approach is that the Federal Court in Whitaker v Comcare (1998) 28 AAR 55 at p69 held that where there are two possible ways of assessing compensation payable in respect of permanent impairment, the decision-maker must assess on the Table which favours the employee. The Court set out the relevant question stated and its answer as follows:Q4. If both Table 9.2 and Table 9.5 are capable of being used for the purpose of assessing the level of impairment resulting from soft tissue injury involving a joint, whether the decision-maker has a discretion as to which Table will be used. A: There is no discretion: where both Tables 9.2 and 9.5 are applicable, the decision-maker must assess the degree of permanent impairment under that one of Tables 9.2 or 9.5 which yields the most favourable result to the employee. (emphasis added) The respondent acknowledges that there is a duty on the respondent to assess on whichever of Tables 9.2 and 9.5 is more favourable to the applicant. If the assessment of 10% on Table 9.2 in respect of the right knee made in 1996 is left undisturbed, it is clear that the assessment Mr Scott made of 20% for the left knee on Table 9.5 "yields the most favourable result to [Mr Taylor]". That is therefore the assessment required by the legislation as explained by the Federal Court in Whitaker. The respondent pointed out in the reviewable decision of 16 July 1999 that there is support for the approach of assessing impairment from both knees together on Table 9.5. It referred to Re Whelan and Department of Defence (1997) 47 ALD 383 in which the Tribunal stated at paragraphs 78 and 79:The final issue is whether Mrs Whelan is entitled to a combined impairment assessment on Table 14.1 of 20% for each leg, making 36%, or whether she is simply entitled, on Table 9.5 to one whole person impairment assessment of 20%. In Re Morley, I said, at pp731-732, para 24:"Mr Moulds submitted that there should be a rating in respect of each leg under Table 9.5, making a total rating under that Table of 40%. I reject that submission. First, the activities referred to are all activities usually requiring the use of two legs and secondly, if Mr Moulds' submission were accepted, it would lead to a rating of 130% whole person impairment for every paraplegic."In fact the reference to 130% is an error. The correct percentage would be 88% on Table 14.1.Although Mr Ingram opened his case on the basis that Mrs Whelan was entitled to a combined rating of 10% for each leg on Table 9.5, when he considered the comments of Olney J in Collins and heard the evidence as to difficulty with distances, and when I drew his attention to my comments in Re Morley, he said he no longer submitted that there should be an assessment for each leg on Table 9.5. This point does not seem to have been dealt with in any other Tribunal decision but I do add to the reasons given in Re Morley the further consideration that Table 9.2, Note 4, provides:"Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1)."Table 9.5 is silent as to the possibility of combining values for impairment of function for both legs. I therefore hold, as I did in Re Morley, that only one assessment should be made on Table 9.5 as it looks at loss of function rather than impairment of particular parts of the body, and the functions described require the use of two legs.

Ratio Decidendi

Legal Principle Established

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