Comcare v Amorebieta

Case [1996] FCA 312



COMCARE AUSTRALIA v. FRANCIS XAVIER AMOREBIETA

No. VG352 of 1994

FED No. 312/96

Number of pages - 17

Worker's Compensation

(1996) 22 AAR 539

COURT

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…

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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)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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