Canute v Comcare

[2005] FCA 299

FEDERAL COURT OF AUSTRALIA

Canute v Comcare [2005] FCA 299

ADMINISTRATIVE LAW – workers compensation – claim for additional compensation following making of final award – worker found to suffer chronic adjustment disorder with 10 per cent impairment – whether degree of impairment to be calculated having regard to the Combined Values Chart in Table 14.1 – whether Tribunal erred in law by not finding whether the adjustment disorder was an injury – whether impairments arising from separate injuries to be aggregated using Table 14.1 to calculate whole person impairment. 

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, ss 24(1), ss 24(4), ss 24(5), ss 24(7), s 28

Comcare v Mihajlovic (2000) 97 FCR 304 – discussed
Comcare v Roser (2003) 127 FCR 155 – discussed

KENNETH JOHN CANUTE V COMCARE

N 1101 OF 2004

HILL J
1 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1101 OF 2004

BETWEEN:	KENNETH JOHN CANUTE APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	1 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal dated 21 June 2004 be set aside and the matter be remitted to the Tribunal for further hearing, with or without additional evidence being called.
2. The respondent is to pay the applicant’s costs of the present application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1101 OF 2004

BETWEEN:	KENNETH JOHN CANUTE APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	HILL J
DATE:	1 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Canute, appeals from the decision of the Administrative Appeals Tribunal constituted by senior member, S M Bullock and Dr P D Lynch, member, affirming the decision of Comcare denying to him a further lump sum compensation payment additional to the award he received as a result of a decision of Comcare made on 9 February 2000. 

2. The application is in the original jurisdiction of the Court, although termed an appeal.  It is an appeal “on”, that is to say, limited to, a question of law. 

3. Mr Canute worked as a civilian employee with the Department of Defence.  He claimed that during the course of his employment he had suffered injury to his back on two occasions.  He received an award of lump sum compensation in respect of one of his back injuries, as a result of the decision made on 9 February 2000.  The other injury was not the subject of any award and has no relevance to the present appeal.

4. Mr Canute subsequently claimed “whole person impairment” beyond the award which he had received.  He claimed that he suffered, not merely from the back injury, relating to the aggravation of the displacement of an intervertebral disc-lumbar, but also that arising out of the same incident, he suffered an adjustment disorder resulting in an increase in the degree of permanent impairment he…