Walsh and Comcare

[2003] AATA 326

Administrative

Appeals

Tribunal

 

 

DECISION AND REASONS FOR DECISION [2003] AATA 326

ADMINISTRATIVE APPEALS TRIBUNAL              )

) N2000/1882

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DAVID CHARLES WALSH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member 

Date              8 April 2003

PlaceNewcastle & Sydney

Decision

The Administrative Appeals Tribunal affirms the decision of Comcare dated 18 September 2000, which was affirmed by the Independent Review Officer of Comcare dated 1 December 2000. That decision made pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 disallowed the Applicant, Mr David Charles Walsh’s claim for permanent impairment with regard to an injury suffered on 14 November 1997.

Costs: No costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.

[Sgd] Ms G Ettinger 
  Senior Member

CATCHWORDS

Compensation – injury at work – whether continuing incapacity - whether permanent impairment – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 sections 4, 14, 24 and 27

Comcare Guide for the Assessment of the Degree of Permanent Impairment Tables 9.1,  9.4, 9.6

CASE LAW

Hughes-Brown and Comcare [1998] AATA 972,

Morley v Comcare (1996) 40 ALD 725

Comcare v Amorebieta (1996) 66 FCR 83

Whittaker v Comcare (1998) 86 FCR 532

Brouwer v Australian Postal Corporation [2001] AATA 570

REASONS FOR DECISION

8 April 2003 Ms G Ettinger - Senior Member

1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the appeal of Mr David Charles Walsh, the Applicant, against the decision of Comcare dated 18 September 2000 (T28), and affirmed on 1 December 2000 (T32) made in respect of an injury claimed by the Applicant to have been suffered at work on 14 November 1997, (“sprain of left neck muscles”), and disallowing the Applicant’s claim for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

1. The Applicant, Mr Walsh, was represented by Mr C Hart of Bale Boshev & Associates of Newcastle, and the Respondent, Comcare, by Mr J Johnson of counsel, instructed by Phillips Fox Solicitors.

ISSUES BEFORE THE TRIBUNALq

1. I was mindful that Mr Walsh’s claim (T5), resulting in the decision of the Respondent (T28), and the reviewable decision (T32), had dealt with “sprain of left neck muscles”.  However in his opening at the first hearing, Mr Johnson stated as follows:

   “The first issue is whether any impairment suffered by the applicant in his neck and left upper limb and that would include the shoulder results from an injury suffered in the course of his employment on 14 November 1997.

   Secondly whether any impairment suffered by the employee is permanent and then, thirdly, whether the degree of permanent impairment suffered by the applicant in his neck and upper limbs equals 10 percent or more under the Comcare guide to the assessment of permanent impairment.”

2. I had to decide:

• Whether any impairment suffered by Mr Walsh in his neck, left upper…