Comcare v Mihajlovic

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.