Van Grinsven and Comcare - [2001] AATA 785

CATCHWORDS – COMPENSATION – an injury to each of the left and right knees - permanent impairment – assessment – whether impairment assessed in relation to each knee and the values combined or whether impairment assessed in relation to both injuries together – assessment where both injuries lead to same impairment - decision set aside.

Safety, Rehabilitation and Compensation Act 1988 – ss 4, 7, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29,

Comcare v Campbell (1999) FCA 1367
Commonwealth of Australia v Smith (1989) 10 AAR 277
Rothwell v Caverswall Stone Co. Ltd. [1944] 2 All ER 350
Whitaker v Comcare [1998] FCA 1099

DECISION AND REASONS FOR DECISION [2001] AATA 785

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q2001/112
GENERAL ADMINISTRATIVE DIVISION      )

Re: ENRICO VAN GRINSVEN

Applicant

And: COMCARE

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Date: 14 September, 2001

Place: Brisbane

Decision: The Tribunal:

1.sets aside the decision of the respondent dated 2 January, 2001; and

2.substitutes a decision that the applicant suffered a whole person permanent impairment as a result of a bilateral knee condition and that the degree of impairment is 36%.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 2 February, 2001, the applicant, Mr Enrico Van Grinsven, lodged an application for review of a decision of a delegate of the respondent, Comcare, dated 2 January, 2001. That decision was made under the Safety, Rehabilitation and Compensation Act 1988. ("Act"). It affirmed an earlier decision of another delegate dated 17 August, 2000 determining that Mr Van Grinsven had suffered a whole person permanent impairment as a result of a bilateral knee condition and that the degree of impairment was 20%. At the hearing, Mr Van Grinsven was represented by Mr Hanson QC with Mr Hume of counsel and Comcare by Mr Derrington of counsel.

THE ISSUE

The issue in this case is whether the degree of permanent impairment suffered by Mr Van Grinsven should be assessed in respect of each of his knees under the Guide to the Assessment of the Degree of Permanent Impairment ("Guide") and the values combined or whether there should be one assessment in respect of both knees.

BACKGROUND

The facts in this case were agreed between the parties and set out in an agreed statement of facts. Mr Van Grinsven was born on 21 October, 1967 and is 33 years of age. On 3 December, 1985, he enlisted in the Australian Army and continues to be a serving member. On 16 March, 1994, Mr Van Grinsven lodged two claims for compensation. One was in relation to injuries he received to his right knee on 7 February, 1986 and the other in relation to injuries he received to his left knee on 17 December, 1985. Both injuries were received while undertaking basic training activities. Over time, both injuries have worsened and, in 1994, Mr Van Grinsven was diagnosed as suffering from chrondromalacia patellae in each knee. On 14 June, 1994, Comcare…

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 Van Grinsven and Comcare

Details

AGLC: Van Grinsven and Comcare [2001] AATA 785
Case: [2001] AATA 785
Decision Date: 14 September 2001

CaseChat Overview and Summary

Enrico Van Grinsven sought review of a decision by Comcare regarding the assessment of permanent impairment he suffered from bilateral knee injuries. The case was heard by Miss S A Forgie, the Deputy President of the Administrative Appeals Tribunal. The central issue was whether the impairment should be assessed for each knee separately and the values combined, or whether there should be a single assessment for both injuries together. The Tribunal had to decide this based on the Safety, Rehabilitation and Compensation Act 1988 and the Guide to the Assessment of the Degree of Permanent Impairment.

The Tribunal found that the impairment for each knee should be assessed separately, as supported by the principles of the Act and the Guide. However, due to the binding precedent set by Einfeld J in Comcare v Campbell, the Tribunal had to combine the impairment values under Table 14.1. Despite Dr Pentis and Ms Bertoldi assessing the impairment for each knee as 10% under Table 9.2, and 20% under Table 9.5, the Tribunal found the level of impairment for each knee to be 20%. Consequently, the combined impairment value was 36%. The Tribunal set aside the original decision and substituted it with a decision that Van Grinsven's permanent impairment was 36%.

Orders