Virtue and Comcare - [2001] AATA 974

DECISION AND REASONS FOR DECISION [2001] AATA 974

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/464

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DEAN JAMES VIRTUE
  Applicant
           And    COMCARE
  Respondent

WRITTEN REASONS

Tribunal Mr. D.W. Muller, Senior Member Ms. J. Cowdroy, Member

Date13 November 2001
PlaceBrisbane

..............Signed................................
D.W. MULLER
SENIOR MEMBER

CATCHWORDS
WORKERS COMPENSATION – Permanent Impairment – objective assessment
Safety, Rehabilitation and Compensation Act 1988: s24

REQUEST FOR WRITTEN REASONS FOR DECISION

Mr. D.W. Muller, Senior Member Ms. J. Cowdroy, Member

This is an application to review a decision that the applicant is not entitled to compensation pursuant to the provisions of s.24 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), in relation to an injury to the applicant's left ankle which has resulted in a permanent impairment.
It is the respondent's contention that, although the applicant has a permanently impaired left ankle, the degree of whole person permanent is less than 10% under the provisions of the relevant Guide. If the degree of permanent impairment is less than 10% an amount of compensation is not payable to the employee for permanent impairment (s.24(7) of the Act).
The applicant injured his left ankle during a physical training exercise when he was a member of the Royal Australian Air Force. The incident occurred in June 1997 when he fell a distance of about three or four metres on to his left ankle. He broke his left ankle. He had two operations to fix it, including the insertion of two screws into his ankle, which were removed a year later.
The Tribunal is satisfied that the applicant has been left with a permanent impairment to his left ankle. On the question of degree of whole person impairment, the only table in the Guide that is relevant in this case is 9.5, because it is more favourable to the applicant than 9.2
The Tribunal received evidence and reports from a number of experts from the medical and occupational therapist fields. There were significant differences between the witnesses as to the degree of whole person impairment suffered by the applicant. This was no doubt due to the different responses given by the applicant to the various examiners.
(i)Dr. Grant, who first examined the applicant for compensation, whilst the applicant was still serving in the RAAF, found very little wrong with him and assessed his impairment at zero.
(ii)Ms. Jenner, an occupational therapist, who examined the applicant to see if he could cope with security work, found very little wrong with him.
(iii)Ms. Bertoldi, an occupational therapist, who examined the applicant for the purposes of compensation about one month after Ms. Jenner's examination, found that the applicant had a 20% impairment.
(iv)Dr. Parsons, an orthopaedic surgeon, found a 20% impairment.
(v)Dr. Schneider, an occupational physician, found that the applicant's impairment was less than 10%.
(vi)Dr. Pentis, orthopaedic surgeon, took a more objective view when assessing the applicant, rather than relying purely on the applicant's responses. Dr. Pentis noted the x-rays and medical history…

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 Virtue and Comcare

Details

AGLC: Virtue and Comcare [2001] AATA 974
Case: [2001] AATA 974
Decision Date: 13 November 2001

CaseChat Overview and Summary

Dean James Virtue, a former member of the Royal Australian Air Force, applied to the Administrative Appeals Tribunal (AAT) to review a decision made by Comcare that he was not entitled to compensation for a permanent impairment to his left ankle under section 24 of the Safety, Rehabilitation and Compensation Act 1988. The primary issue before the Tribunal was to determine the degree of whole person permanent impairment caused by the applicant's injury to his left ankle, and whether it was less than 10%, which would render him ineligible for compensation. This decision hinged on the interpretation of the relevant tables in the Guide and the medical evidence presented by both parties.

The Tribunal considered evidence from various medical experts, including orthopaedic surgeons and occupational therapists, each offering differing opinions on the degree of impairment. The key challenge was reconciling the applicant's subjective complaints of significant impairment with his demonstrated ability to perform daily activities and work as a security officer. Dr. Pentis, an orthopaedic surgeon, provided a more objective assessment by considering the medical history, x-rays, and physical observations, concluding that the applicant's impairment was 10%. The Tribunal found Dr. Pentis's assessment to be the most reliable and accepted it as reflective of the applicant's condition.

The Tribunal determined that despite the applicant's ability to perform daily activities, his medical history and physical findings warranted a 10% whole person permanent impairment rating. This conclusion was based on the objective evidence and expert opinion provided by Dr. Pentis. Consequently, the Tribunal set aside the original decision and determined that Dean James Virtue suffers a whole person permanent impairment of 10% under Table 9.5 of the Guide, making him eligible for compensation. The Tribunal's written reasons for the decision were signed and issued on 29 November 2001.

Orders