Comcare v Kay

[1997] FCA 1357

FEDERAL COURT OF AUSTRALIA

COMMONWEALTH EMPLOYEES COMPENSATION - Permanent Impairment - Prescribed Guide - Interpretation of - Choice of tables - Overlap of tables - alleged failure of the Tribunal to adjudicate on contested medical evidence as to location of injury for the purposes of determining which impairment table was appropriate - Whether location of injury causing impairment an issue necessary to be determined

Safety Rehabilitation and Compensation Act 1988 (Cth) s 24

Comcare v Tiscay (1992) 16 AAR 241 (followed)

COMCARE v JUDY ADELE KAY
AG 33 OF 1997

FINN J
CANBERRA
3 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 33  of   1997

BETWEEN:	COMCARE APPLICANT
AND:	JUDY ADELE KAY RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	3 DECEMBER
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the Respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 33  of   1997

BETWEEN:	COMCARE APPLICANT
AND:	JUDY ADELE KAY RESPONDENT

JUDGE:	FINN J
DATE:	3 DECEMBER 1997
PLACE:	CANBERRA

REASONS FOR JUDGMENT

This appeal from the Administrative Appeals Tribunal (“the Tribunal”) is said to raise an issue of narrow compass.  The respondent in this proceeding, Ms Kay, had made a claim for a lump sum payment for permanent impairment, under s24 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).  That claim having been rejected by Comcare and by an Independent Review Officer, Ms Kay appealed to the Tribunal.  It decided that she was entitled to be paid compensation in respect of 10 per cent whole person permanent impairment and remitted the matter to Comcare with a direction to that effect.

Comcare, the present applicant, challenges that decision essentially on one ground.  That is that the Tribunal, in reaching its conclusion as to the nature of the injury said to result in a permanent impairment, did not identify, or adjudicate upon, the contest in medical evidence before it.  It simply accepted the theory advanced by Dr White, a neurologist who gave oral evidence for Ms Kay, noting when so doing that “[n]o evidence was brought by [Comcare] to refute that theory”.

Put colloquially, Ms Kay’s condition resulted from her sustaining an overuse injury attributable to keyboard duties.  Liability for that injury was accepted by Comcare.

The Statutory Setting

Only three provisions of the SRC Act require mention and then merely in part.

(1)

“Compensation for injuries resulting in permanent impairment

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.

(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