Thurling and Comcare - [2008] AATA 270

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 270
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2007/1099

GENERAL ADMINISTRATIVE DIVISION )

Re LEANNE THURLING

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr P. Wilkins, Member
Date4 April 2008
PlaceCanberra

Decision The decision under review is affirmed.
...........signed...................................
Mr S. Webb, Presiding Member

CATCHWORDS
COMPENSATION - right shoulder and lumbar spine injuries accepted - permanent impairment - degree of whole person impairment - right shoulder claim not pressed - 2nd Edition of the Comcare Guide - clinical findings - degree of impairment less than 10 percent - decision affirmed
Safety, Rehabilitation and Compensation Act 1986 ss 4, 24, 25, 27, 67
Canute v Comcare [2006] HCA 47
Comcare v Amorbieta [1996] FCA 312 (3 May 1996)
Martin v Australian Postal Corporation [1999] FCA 655
Jordan v Australian Postal Corporation [2007] FCA 2028 (19 December 2007)
Brennan v Comcare (1994) 50 FCR 555
REASONS FOR DECISION

4 April 2008 Mr S. Webb, Member
Dr P. Wilkins, Member

1.      Leanne Thurling injured her right shoulder and her lower back in the course of employment as a Corrections Officer by the ACT Department of Correctional Services. She claimed and was paid compensation. Subsequently, she claimed compensation for permanent impairment.[1] Her claim was rejected by primary determination[2] and on reconsideration.[3]
[1] T27.
[2] T37.
[3] T39.
2.      These decisions concerning compensation for permanent impairment as a result of the injuries to Ms Thurling’s right shoulder and her lower back are before the Tribunal for review. Prior to the hearing Ms Thurling informed the Tribunal that she did not press her claim in relation to the right shoulder injury. At the hearing Mr P. Stockley, counsel for Ms Thurling, informed us that the part of the reconsideration decision concerning the right shoulder was not under challenge. Without hearing that aspect of Ms Thurling’s claim, but considering the relevant evidence, we are satisfied that Ms Thurling’s right shoulder injury does not give rise to a permanent impairment of at least 10 percent under the Guide to the Assessment of the Degree of Permanent Impairment (2^nd Edition) (the Comcare Guide).[4] Thus, that aspect of the reconsideration decision is affirmed.
[4] See
3.      The remaining issue for determination is whether or not Ms Thurling is entitled to compensation for permanent impairment as a result of the injury to her lower back. We note in passing that Comcare did not dispute that such an injury occurred in compensable circumstances.[5] We are satisfied that it did- Ms Thurling fell at work and suffered a lower back injury on 12 September 2004 in the course of her employment. The specific nature of the injury is a matter to which we will return. For the compensation claim to be made out we must be satisfied that:
(a)the lower back injury resulted in a permanent impairment, and
(b)the degree of the permanent impairment is at least 10 percent under the Comcare Guide.
[5] T4, T5, T6, T7…

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 Thurling and Comcare

Details

AGLC: Thurling and Comcare [2008] AATA 270
Case: [2008] AATA 270
Decision Date: 4 April 2008

CaseChat Overview and Summary

Thurling pursued a claim against Comcare for compensation following injuries to his right shoulder and lumbar spine. The dispute centred around the determination of permanent impairment and the degree of whole person impairment. The Federal Circuit Court of Australia was tasked with resolving these issues.

The court had to decide whether the injuries met the criteria for permanent impairment and determine the appropriate degree of whole person impairment using the 2nd Edition of the Comcare Guide. Thurling did not pursue his right shoulder claim, focusing instead on the lumbar spine injury. The court had to interpret clinical findings and apply relevant legal principles to decide the degree of impairment.

In affirming the decision under review, the court found that the degree of whole person impairment was less than 10 percent, based on the clinical findings. The court referred to previous cases such as Canute v Comcare and Comcare v Amorbieta, among others, to support its reasoning. The decision was consistent with the statutory framework provided by the Safety, Rehabilitation and Compensation Act 1986.

The final orders were to affirm the decision under review, effectively dismissing Thurling's claim for compensation for the lumbar spine injury.

Orders

Orders of the court

The decision under review is affirmed.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		LEANNE THURLING