Comcare v Mihajlovic

Case [2000] FCA 285

FEDERAL COURT OF AUSTRALIA

Comcare v Mihajlovic [2000] FCA 285

STATUTORY INTERPRETATION - construction of s 25(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - provision for further payments of compensation for a subsequent increase in the degree of permanent impairment of an employee - subsequent increase must be 10% or more - whether "increase" relates to an individual impairment, overall impairment, or both where there are multiple impairments - cross-appeal - whether Tribunal entitled to depart from original assessment by Comcare in respect of (a) particular individual impairments and (b) the appropriate tables for determining the extent of impairments.

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, s 24, s 24(5), s 24(6), s 24(7), s 25, s 25(1)(b), s 25(4), s 28, s 28(1)(c)
Guide to the Assessment of the Degree of Permanent Impairment, Tables 9.1, 9.4, 9.5, 9.6, 14.1

Brennan v Comcare (1994) 50 FCR 555 followed
Comcare v Levett (1995) 60 FCR 14 referred

COMCARE v MIROSLAVA MIHAJLOVIC
A 46 of 1999

FINN J
CANBERRA
16 MARCH 2000


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

 A 46 OF 1999

BETWEEN:

COMCARE
APPLICANT

AND:

MIROSLAVA MIHAJLOVIC
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

16 MARCH 2000

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.        the application be allowed;

2.        the decision of the Tribunal be set aside;

3.        the matter be remitted to the Tribunal for redetermination according to law.

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

A 46 OF 1999

BETWEEN:

COMCARE
APPLICANT

AND:

MIROSLAVA MIHAJLOVIC
RESPONDENT

JUDGE:

FINN J

DATE:

16 MARCH 2000

PLACE:

CANBERRA

REASONS FOR JUDGMENT

  1. The less than happy interaction of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") and the "Guide to the Assessment of the Degree of Permanent Impairment" ("the Guide") prepared under s 28 of that Act, underlies this application. The question raised involves the proper construction of s 25(4) of the SRC Act.

  2. The setting in which the question arises can be put shortly in the following way.  Work related injuries sustained by an employee result in several discrete impairments (shoulder, back, etc) for which Comcare accepts liability.  The employee is adjudged under the Guide (a) to have designated compensable degrees of impairment in respect of each of those discrete impairments, and (b) to have a designated overall (or combined) degree of impairment.  These various degrees are expressed as percentages.  The compensation paid the employee is assessed by reference to the percentage for overall degree of impairment.  Subsequently the employee makes a further claim for compensation in respect of the impairment suffered.  One of the discrete impairments has increased by 10 per cent.  But because of other changes in the employee's reassessed impairments and in the manner of their measure under the Guide, the overall percentage degree of impairment results only in an increase of…

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AGLC
Comcare v Mihajlovic [2000] FCA 285
Case
[2000] FCA 285
Decision Date

CaseChat Overview and Summary

Comcare v Mihajlovic involves a claim for additional compensation for permanent impairment by Miroslava Mihajlovic, following a work-related injury in 1991. Comcare accepted liability for the injury, which resulted in a 28 per cent degree of whole body permanent impairment. The dispute arose over the correct application of certain legislative tables to determine the degree of impairment and the subsequent entitlement to additional compensation. The case was heard and decided by the Federal Court of Australia.

The primary legal issues in the case were the correct application of Tables 9.1, 9.4, 9.5, 9.6, and 14.1 under the relevant legislation to determine the degree of permanent impairment and the interpretation of section 25(4) of the statute in the context of multiple impairments. The court had to decide whether the section applied to a 10 per cent increase in a single impairment or to a 10 per cent increase in the combined degree of whole person impairment. The court also had to consider whether the Tribunal's findings and reasoning were correct and whether they were in accordance with the law.

The court found that the Tribunal had correctly applied the statutory tables to determine the degree of impairment, but there was an error in the application of Table 14.1. The combined value of the impairments should have been 27 per cent, not 28 per cent. The court further held that section 25(4) was ambiguous and should be construed generously to the applicant. The section could apply to either a 10 per cent increase in a single impairment or a 10 per cent increase in the combined degree of whole person impairment. Since the thoraco-lumbar spine impairment had increased by 10 per cent, the court concluded that the respondent was not debarred from obtaining further compensation for the 1 per cent overall increase in the degree of whole person permanent impairment.

The court allowed the appeal, set aside the Tribunal's decision, and remitted the matter to the Tribunal for redetermination according to law. This means that the Tribunal must reconsider the case with the correct interpretation of the statutory provisions and make a new decision on the entitlement to additional compensation.

Orders

Orders of the court

1. the application be allowed;

2. the decision of the Tribunal be set aside;

3. the matter be remitted to the Tribunal for redetermination according to law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FINN J
All that need be indicated is that:(i) the present respondent, Miroslava Mihajlovic, suffered work-related injuries from an incident in 1991 for which Comcare accepted liability;(ii) Ms Mihajlovic was assessed in 1992 as having a 28 per cent degree of whole body permanent impairment this being a composite value of the following three impairments calculated under their respective designated table:.upper limb function due to right shoulder and arm pain: 10 per cent - Table 9.4. sciatica: 10 per cent - Table 9.5 . lumbar spondylosis: 10 per cent - Table 9.6;(iii) it is apparent, as the Tribunal found, that if Table 14.1 had been applied correctly to the above percentages, the combined value ought to have been 27 per cent, not 28 per cent;(iv) on 21 March 1996, the respondent applied for additional compensation for permanent impairment her lack of success in that application leading to the appeal to the Tribunal;(v) on the medical evidence before it the Tribunal concluded that Ms Mihajlovic had a 28 per cent degree of permanent impairment this figure resulting from applying Table 14.1 to the following impairments, assessed under the tables indicated: . thoraco-lumbar spine injury: 20 per cent - Table 9.6 . right shoulder injury: 10 per cent - Table 9.1;(vi) it should be noted in relation to the figures arrived at by the Tribunal on the evidence before it that -(a)no percentage figure was assigned to sciatica (cf the 10 per cent so assigned in 1992 under Table 9.5); and(b)different Tables were used in 1992 (Table 9.4) and before the Tribunal (Table 9.1) to assign a value to the respondent's shoulder-related injury.The Tribunal's Decision Having made the above individual percentage findings in respect of the respondent's shoulder injury and thoraco-lumbar spine injury, the Tribunal concluded that, in determining an employee's degree of permanent impairment for the purpose of calculating compensation under s 24, a combined assessment under Table 14.1 was to be made of all of the employee's impairments whether or not those impairments arose out of the same or different injuries. The parties, I would note, have not put this interpretation of s 24 in issue and I express no opinion on it (though by so doing I imply no criticism of it). The Tribunal then went on to consider the possible application of s 25(4) to its findings. It had found that while one of the respondent's impairments (the thoraco-lumbar spine injury) had increased 10 per cent over its 1992 assessment of 10 per cent, her overall (or combined) degree of whole person impairment only increased by 1 per cent (ie 27% to 28%). It then asked whether the 10 per cent increase referred to in s 25(4) referred to one or other or could be either of a 10 per cent increase in a single impairment (where there were multiple impairments) or a 10 per cent increase in the combined degree of whole person impairment. It concluded that the subsection was ambiguous; that it should be construed generously to an applicant (it being beneficial legislation); and that, as it could be interpreted as applying to either a 10 per cent increase to the degree of impairment in respect of a single impairment (there being multiple impairments) or a 10 per cent increase of whole person impairment (applying Table 14.1 to all impairments), it must use whichever interpretation is most favourable to the applicant. In light of its finding of a 10 per cent increase in the thoraco-lumbar spine impairment, the respondent was not debarred by s 25(4) from obtaining further compensation for the 1 per cent overall increase in the degree of whole person permanent impairment.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

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