Taylor and Comcare [2010] AATA 419 (8 June 2010)

Last Updated: 8 June 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 419

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3264

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LEE TAYLOR

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

M D Allen, Senior Member Dr S H Toh, Member

Date 8 June 2010

Place Sydney

Decision

The decision under review is SET ASIDE and this matter REMITTED to the Respondent with the direction that: The Applicant presently suffers 10% whole person impairment in respect of his left knee injury pursuant to the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”) and is therefore entitled to compensation in respect of his left knee injury pursuant to s24 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC”). The Applicant is entitled to compensation in respect of his left knee injury in the amount of $21,064.73 under s27 of the SRC Act. The Respondent is to pay the Applicant’s party/party costs as agreed or assessed up to and including 3 May 2010. The Applicant is not entitled to compensation for permanent impairment in respect of “lumbar sprain”. AND THAT the amount of compensation to be paid to the Applicant pursuant to Ss25(3) of the SRC Act is to be calculated by the Respondent in accordance with these reasons.

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

CATCHWORDS

WORKERS COMPENSATION: Interim compensation awarded in 2005 at 10%. Final determination of degree of impairment in 2010 was 10% permanent impairment. Calculation of amount to be paid. Difference in maximum amount in 2005 compared to 2010. Applicant entitled to the difference between the two amounts.

LEGISLATION

Safety, Rehabilitation and Compensation Act (1988) Sections 13, 24, 25.

CASE

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535.

REASONS FOR DECISION

8 June 2010

M D Allen, Senior Member Dr S Toh, Member

1. By Application made on 15 July 2009, the Applicant sought review of a reviewable decision made on 9 July 2009 affirming a prior determination rejecting a claim for compensation pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act (1988) (“SRC”) arising from injury to the Applicant’s left knee and lumbar spine.
2. On 4 May 2010, the Tribunal received a letter dated 3 May 2010 by the solicitors for both parties that read inter alia:

“1. The parties have reached an agreement as to the following:

(i) on 18 March 2005, Comcare disallowed the Applicant’s claim for permanent impairment pursuant to s 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (the Act) in respect of the Applicant’s left knee and lumbar sprain;

(ii) on 18 March 2005, Comcare allowed an interim award of compensation for permanent impairment pursuant to s 25 of the Act in respect of the Applicant’s left knee injury on the basis of 10% whole person impairment;

(iii) the Applicant presently suffers 10% whole person impairment in respect of his left knee injury pursuant to the Guide and is therefore entitled to compensation in respect of his left knee injury pursuant to s 24 of the Act;

(iv) the Applicant is entitled to compensation in respect of the left knee injury in the amount of $21,054.73 under s 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act);

(v) the Respondent is to pay the Applicant’s party/party costs as agreed or assessed up to and including (insert date of letter); and

(vi) the Applicant is not entitled to compensation for permanent impairment in respect of ‘lumbar sprain’.

2. The only issue which remains in dispute is what, if any, compensation is the Applicant entitled to given the operation of s 25(3) of the Act. The parties seek a decision on this single issue pursuant to the Tribunal’s powers under s 25(4A) of the Administrative Appeals Tribunal Act 1975.”

3. Section 25(3) SRC Act reads inter alia:

“(1)  Where Comcare:

(a)  makes a determination that an employee is suffering from a permanent impairment as a result of an injury; and

(b)  is satisfied that the degree of the impairment is equal to or more than 10% but has not made a final determination of the degree of impairment;

Comcare shall, on the written request of the employee made at any time before the final determination is made, make an interim determination of the degree of permanent impairment under section 24 and assess an amount of compensation payable to the employee.

(2)  The amount assessed by Comcare under subsection (1) shall be an amount that is the same percentage of the maximum amount specified in subsection 24(9) as the percentage determined by Comcare under subsection (1) to be the degree of permanent impairment of the employee.

(3)  Where, after an amount of compensation has been paid to an employee following the making of an interim determination, Comcare makes a final determination of the degree of permanent impairment of the employee, there is payable to the employee an amount equal to the difference (if any) between the amount payable under section 24 on the making of the final determination and the amount paid to the employee under this section.”

4. Section 24 SRC Act reads inter alia:

“(1)  Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2)  For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a)  the duration of the impairment;

(b)  the likelihood of improvement in the employee's condition;

(c)  whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d)  any other relevant matters.

(3)  Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4)  The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5)  Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.”

5. The Applicant has submitted that following the agreement between the parties as set out in the letter of 3 May 2010, the Applicant presently suffers a 10% injury “pursuant to the Guide”. The result of that finding is that the Applicant is entitled to payment of the difference between 10% of the maximum amount as calculated on 18 March 2005 and 10% of the maximum amount as calculated under the SRC Act as at the date of the Tribunal’s decision.
6. In his submissions, counsel for the Applicant refers to the fact that the interim award of 10% impairment made in 2005 was made using the 1st edition of the Guide but that in its Statement of Facts and Contentions, the Respondent claimed that in these proceedings the 2nd edition of the Guide applied.
7. To my mind it is irrelevant which edition of the Guide applies, although the original claim being made in 2004 any calculation of the degree of permanent impairment would have to be made pursuant to the 1st edition of the Guide. See paragraph 3 in the introduction to the 2nd edition of the Guide. What is relevant here is that the parties agreed that the Applicant suffered 10% impairment arising out of injury to his left knee.
8. I agree with the Respondent’s submission that the first task of the Tribunal (in this case) is to assess the degree of permanent impairment of the employee resulting from the injury under the provisions of the approved guide.
9. In this matter the parties have agreed, and the Tribunal’s decision will give effect to that agreement.
10. The next task is for the Respondent to assess the amount “that is the same percentage of the maximum amount as the percentage determined under subsection 24(5) SRC Act, see Ss24(4) SRC Act.
11. The calculation of the monetary sum paid to the employee is based on the percentage of incapacity as assessed against the maximum amount. The “maximum amount” is a figure calculated by reference to the formula set out in s13 SRC Act. Generally speaking it is indexed against the Consumer Price Index and thus would increase in each financial year. For example the initial maximum amount on 1 December 1988 was $80,000.00 whereas at 1 July 2007 it was $146,015.74 (See Ballard Annotated Safety, Rehabilitation and Compensation Act 8th Edition at p279).
12. That the emphasis is on percentage of the maximum amount was made clear by the High Court in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 at 542 where at paragraph 16 the Court said “Section 25(2) is in similar terms to s24(4) and mandates the percentage for the amount to be awarded”.
13. As far as I can ascertain in this matter the Applicant, through his solicitor, on 11 April 2005 accepted the offer as contained in the Comcare decision of 18 March 2005 that, pursuant to s25 SRC Act he receive an interim award based on an assessment that he suffered 10% impairment. He was accordingly paid an amount that equated to 10% of the maximum amount as that amount stood as at March 2005.
14. Pursuant to Ss25(3) SRC Act the final determination of the degree of permanent impairment has been made. That degree is 10% and the only question is what, if any, amount is equal to the difference between the amount payable under s24 on the making of the final determination and the amount paid to the Applicant under s25.
15. The amount payable under s24 is the final assessment of the degree of impairment, in this case 10% of the maximum amount, that maximum amount is, by reason of the indexation formula set out in s13 SRC Act, a greater amount than the 10% interim assessment and the Applicant is entitled to that sum which is the difference between the two amounts.
16. The decision of the Tribunal is as per the agreement of the parties as set out in the letter of 3 May 2010 together with a direction that the amount of compensation to be paid to the Applicant is to be remitted to Comcare to be calculated in accordance with these reasons.
    

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr S H Toh, Member.

Signed: ..................[sgd]....................................

K. Lynch, Associate

Date of Hearing on the Papers 31 May 2010

Date of Decision 8 June 2010

Counsel for the Applicant A. Anforth

Solicitor for the Applicant Brydens

Counsel for the Respondent R. M. Henderson

Solicitor for the Respondent Australian Government Solicitor