Comcare v Miles - [1995] FCA 234

CATCHWORDS

WORKERS COMPENSATION - injury suffered prior to commencement of Safety Rehabilitation and Compensation Act 1988 - whether Tribunal required to find percentage impairment for the purposes of s24(7) before proceeding to calculate benefit under s39 of the Compensation (Commonwealth Government Employees) Act 1971 - effect of transitional provisions considered.

WORKERS COMPENSATION - whether Tribunal entitled to consider only whether liability was to continue after compensation payments ceased or whether liability for these payments not being in issue Tribunal required to consider whether there was permanent impairment at the time payment of compensation was made as well as thereafter - whether approach of Tribunal involved error of law.

Safety, Rehabilitation and Compensation Act 1988 (Cth): ss27(2), 124
Compensation (Commonwealth Government Employees) Act 1971 (Cth): ss24(1), (3), (4), (5), (6), (7), 28, 39
Administrative Appeals Tribunal Act 1975 (Cth): s.43

Schlenert v Australian & Overseas Telecommunication Corporation (1994) 49 FCR 139; applied.
Barker v Australian Telecommunications Commission (1990) 95 ALR 72; distinguished.

COMCARE v RHONDA MILES

No NG 579 of 1994

CORAM: HILL J
PLACE: SYDNEY
DATED: 13 APRIL 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )     No NG 579 of 1994
  )
GENERAL DIVISION                  )

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMCARE

Applicant

AND: RHONDA MILES

Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    13 APRIL 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

Application dismissed.

Applicant to pay the respondent's costs of the application.

On the cross-appeal, the decision of the Tribunal be set aside so far as no order was made as to costs and in lieu thereof it be ordered that the applicant, Comcare, pay Ms Miles' costs of the proceedings before the Tribunal as agreed or, if not agreed, as assessed by a Deputy Registrar of the Tribunal.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )     No NG 579 of 1994
  )
GENERAL DIVISION                  )

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMCARE

Applicant

AND: RHONDA MILES

Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    13 APRIL 1995

REASONS FOR JUDGMENT

Comcare, the body charged with making determinations under the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act"), applies to the Court by way of an appeal under s43 of the Administrative Appeals Tribunal Act 1975 from the decision of the Administrative Appeals Tribunal ("the Tribunal"), constituted by Ms G Ettinger (Senior Member), Dr HD Browne (Member) and Mr DD Coffey (Member), given on a review of a decision of Comcare on 25 May 1993 which had affirmed an earlier determination of 18 August 1992, ceasing liability to pay compensation to Ms Rhonda Miles in respect of an incapacity for work claimed by her as and…

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.

Continue reading Comcare v Miles

Details

AGLC: Comcare v Miles [1995] FCA 234
Case: [1995] FCA 234
Decision Date: 13 APRIL 1995

CaseChat Overview and Summary

Comcare, the entity responsible for workers' compensation claims for Commonwealth employees, appealed a decision of the Administrative Appeals Tribunal (AAT) which had affirmed a previous decision to cease liability to pay compensation to Ms Rhonda Miles for an incapacity for work. Ms Miles had claimed compensation for permanent injury on the basis that she suffered from tenosynovitis, as a result of an injury in September 1983. The AAT found that Ms Miles suffered a permanent impairment of 10% and remitted the matter to Comcare for assessment of compensation to be paid in accordance with this decision. Comcare argued that the AAT misdirected itself in finding that Ms Miles had a ten percent whole person permanent impairment and in taking into account the approved Guide, when the only relevant matter for decision was what compensation for permanent impairment, if any, was payable under s39 of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). Comcare further argued that the AAT erred in law by finding as a fact that the reduction of the amount of Ms Miles' permanent impairment to ten percent would eliminate the effects of exaggeration or that there was such a permanent impairment of ten percent, when there was no evidence upon which that finding could be based. The final submission was that the AAT erred in approaching the case before it by looking for changed circumstances after 1992 and failing to determine for itself whether there was permanent impairment prior to 1992.

Justice Hill dismissed the appeal with costs. The Court found that the AAT did not err in finding that Ms Miles had a ten percent whole person permanent impairment and in taking into account the approved Guide. The Court held that in a transitional case, compensable under the 1971 Act, additional compensation was payable in respect of non-economic loss pursuant to s27 of the Safety, Rehabilitation and Compensation Act 1988. The Court further found that the AAT was not bound to find a particular percentage impairment where that percentage was supported by the medical evidence. In determining the question of impairment, there will obviously be involved a question of judgment. In the present case, it seems that the AAT was of the view that Ms Miles had exaggerated the extent of the impairment to the doctors. The AAT had observed Ms Miles and was entitled to take into account its observations in determining the percentage. Finally, the Court found that the AAT made its own findings untrammelled by the conclusions which Comcare had reached in the past.

Orders