Whitham and Comcare - [2010] AATA 161

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 161
ADMINISTRATIVE APPEALS TRIBUNAL )
) No.s 2008/4948

GENERAL ADMINISTRATIVE DIVISION ) & 2009/5144

Re LAURENCE WHITHAM

Applicant

And

COMCARE

Respondent

DECISION

Tribunal M.D. Allen, Senior Member
A. Britton, Senior Member
Dr J Campbell, Member
Date9 March 2010
PlaceSydney

Decision
1.In matter 2008/4948 the decision under review is AFFIRMED.

2.In matter 2009/5144 the decision under review is SET ASIDE and the Tribunal remits this matter to the Respondent with the Direction that, pursuant to section 25 of the Safety, Rehabilitation and Compensation Act 1988, the Applicant is entitled to payment of compensation for permanent impairment at the interim rate of 10% AND THAT further investigations are to be undertaken by the Respondent to determine what, if any, reasonable rehabilitation treatment might be undertaken by the Applicant.

The question of costs is adjourned to a date to be fixed.

..................[sgd].........................
M.D. Allen, Presiding Member.

CATCHWORDS
WORKERS COMPENSATION – Application for payment for permanent impairment. Degree of permanent impairment assessed at 20% but possibility rehabilitative treatment would decrease degree of permanent impairment. Interim award of 10% permanent impairment, pursuant to s25 of Safety, Rehabilitation and Compensation Act 1988, and direction for further investigation regarding rehabilitative treatment.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, Ss24(2), 25.
CASES
Filla v Comcare (2002) 115 FCR 144
Comcare v Filla (2002) 115 FCR 163
REASONS FOR DECISION

9 March 2010 M.D. ALLEN, Senior Member
A BRITTON, Senior Member
Dr M.E.C. THORPE, Member

1.      This matter concerned two applications for review, both relating to claims for permanent impairment resulting from injuries to the Applicant’s left leg and knee.
2.      At all relevant times the Applicant was an employee of the Australian Broadcasting Commission (“ABC”). On 20 December 2005 he fell in the car park of the ABC studios at Ultimo, Sydney, and suffered an injury to his left knee, viz a left tibial eminence avulsion injury with detachment of the anterior cruciate ligament. As a result he underwent surgical repair then immobilisation for two months and later physiotherapy.
3.      Whilst still undergoing physiotherapy for his first injury, on 30 May 2006 the Applicant again slipped and suffered on this occasion a fractured left femur which was repaired by the insertion of a plate and screws.
4.      Since that time, although further remedial surgery was recommended by his treating orthopaedic surgeon, Dr Papadimitriou, the Applicant has had no further therapeutic intervention.
5.      This matter originally came before us on the 2^nd and 3^rd days of November 2009. After hearing from the Applicant’s specialist orthopaedic surgeon, Dr Weisz, and the Respondent’s expert, orthopaedic surgeon Professor Ehrlich, the Tribunal was concerned that neither specialist had carried out any direct examination of the Applicant to ascertain what his capabilities in fact were. We considered that it was therefore impossible to come to any conclusion as to the degree of incapacity as assessed pursuant to Table 9.7 of the Comcare Guide to the Assessment of the Degree of…

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 Whitham and Comcare

Details

AGLC: Whitham and Comcare [2010] AATA 161
Case: [2010] AATA 161
Decision Date: 9 March 2010

CaseChat Overview and Summary

In the case of Whitham and Comcare, the parties were the employee, Whitham, and the Commonwealth employer, Comcare. The dispute was centred around an application for payment for permanent impairment. Whitham had sustained an injury during his employment and sought compensation for a permanent impairment resulting from that injury. The case was heard by the Administrative Appeals Tribunal.

The primary legal issue before the tribunal was the determination of the degree of permanent impairment attributable to Whitham's injury, and whether the possibility of rehabilitative treatment affecting that degree warranted an interim award. Additionally, the tribunal had to consider the applicability of section 25 of the Safety, Rehabilitation and Compensation Act 1988, which allows for an interim award if it appears to the tribunal that there is an arguable case for compensation.

The tribunal found that while the degree of permanent impairment was assessed at 20%, there was a possibility that rehabilitative treatment could decrease that degree. As such, the tribunal deemed it appropriate to make an interim award of 10% permanent impairment, in accordance with section 25 of the Act. The tribunal also directed further investigation into the potential effects of rehabilitative treatment on the degree of permanent impairment. This decision balanced the need to provide interim compensation while allowing for the possibility of a decrease in the degree of permanent impairment.

The tribunal ordered an interim payment of 10% permanent impairment to Whitham, with a direction for further investigation regarding the potential impact of rehabilitative treatment on the degree of permanent impairment. This outcome aimed to provide fair compensation to Whitham while allowing for a more accurate assessment of his impairment in the future.

Orders