IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION JENKINSON J
CATCHWORDS
Worker's Compensation - Commonwealth government employees' compensation - Assessment of compensation - Permanent impairment - Injury consisting of aggravation of a degenerative morbid condition of gradual development - "degree of permanent impairment .... resulting from" the injury is that degree to which the aggravation has brought the condition, notwithstanding that the aggravation is only one of several causes of that degree of impairment.
Workers' Compensation - Commonwealth government employees' compensation - Assessment of compensation - Permanent impairment - Guide to the Assessment of the Degree of Permanent Impairment - Table 9.6 - "loss of .... normal range of movement" of thoraco-lumbar spine does not include loss by conscious voluntary restriction of movement to prevent onset of pain.
Safety Rehabilitation and Compensation Act 1988 - Division 4 of Part II Guide to the Assessment of the Degree of Permanent Impairment
HEARING
MELBOURNE, 3 and 4 April 1996 #DATE 3:5:1996 #ADD 8:5:1996
Counsel for the Applicant: Mr. J. Lenczner
Counsel for the Respondent: Mr. P.J. Coish
Solicitor for the Applicant: Australian Government Solicitor
Solicitor for the Respondent: Slater and Gordon
ORDER
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal be set aside.
3. The matter of the review of the applicant's delegate's decision made on 4 March 1993 be remitted to the said Tribunal to be heard and determined again according to law by the Tribunal constituted otherwise than as heretofore.
4. The respondent pay the applicant's costs of the appeal including costs reserved.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)
JUDGE1
JENKINSON J Appeal from a decision of the Administrative Appeals Tribunal. The grounds of appeal raise questions of law concerning the proper construction of provisions in Division 4 of Part II of the Safety Rehabilitation and Compensation Act 1988 ("the Act"), and the proper interpretation of provisions of the Guide to the Assessment of the Degree of Permanent Impairment, a document prepared by the applicant and approved by the Minister of State administering the Act in exercise of power conferred by that Division ("the Guide").
2. The first section in that Division commences:
"24.(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."
"Injury" is defined to mean in the Act, unless the contrary intention appears -
"(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury…
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.
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Details
AGLC
Comcare Australia v Amorebieta, Francis Xavier [1996] FCA 312 ((1996) 22 AAR 539)
Case
[1996] FCA 312
Decision Date
CaseChat Overview and Summary
Comcare v Amorebieta is a case that involves the assessment of compensation for a Commonwealth government employee. The dispute arose from the calculation of compensation for a permanent impairment that resulted from an injury consisting of the aggravation of a pre-existing degenerative condition. The matter was heard in the Federal Court of Australia.
The primary legal issue before the court was the degree of permanent impairment resulting from the injury, specifically, whether the degree of permanent impairment was to be assessed based on the extent to which the aggravation had brought the condition, even though the aggravation was only one of several causes of that degree of impairment. The court was required to determine the correct interpretation of the relevant statutory provisions and how they applied to the facts of the case.
The court found that the degree of permanent impairment resulting from the injury was to be assessed based on the extent to which the aggravation had brought the condition, even though the aggravation was not the sole cause of the degree of impairment. The court held that the statutory provisions required the degree of permanent impairment to be assessed based on the extent to which the aggravation had contributed to the overall impairment, notwithstanding that the aggravation was only one of several causes of that degree of impairment. The court also found that the Administrative Appeals Tribunal had erred in its assessment of the degree of permanent impairment and that the matter should be remitted to the Tribunal to be heard and determined again.
The court ordered that the appeal be allowed, the decision of the Administrative Appeals Tribunal be set aside, and the matter be remitted to the Tribunal to be heard and determined again according to law. The court also ordered that the respondent pay the applicant's costs of the appeal, including costs reserved.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal be set aside.
3. The matter of the review of the applicant's delegate's decision made on 4 March 1993 be remitted to the said Tribunal to be heard and determined again according to law by the Tribunal constituted otherwise than as heretofore.
4. The respondent pay the applicant's costs of the appeal including costs reserved.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)