Comcare v Rawling

[1993] FCA 362

COMMISSION FOR THE SAFETY REHABILITATION AND COMPENSATION OF COMMONWEALTH
EMPLOYEES (COMCARE) v. JUDITH ANN RAWLING
No. SG8 of 1993
FED No. 362
Number of pages - 7
Administrative Law
(1993) 17 AAR 548
(1993) 42 FCR 421

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J(1)

CATCHWORDS

Administrative Law - Compensation - employee - employed by the Department of Veteran Affairs - originally totally incapacitated - employee resigned and moved interstate during period of total incapacity - employee thereafter assessed as capable of performing light duties two days a week - compensation entitlement reduced by 40% - no evidence that such light duties available - effect of resignation and move interstate on employee's ability to earn.

Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth): s19

R.J. Brodie (Holdings) Pty Limited v Pennell (1969) 117 CLR 665

HEARING

ADELAIDE, 5 April 1993

#DATE 28:5:1993

Counsel for the Appellant: Mr S.C. Cole

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr T.D. Bourne

Solicitors for the Respondent: Messrs Stanley and Partners

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs to be taxed in default of

agreement.

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

JUDGE1

O'LOUGHLIN J The respondent to this appeal, Judith Ann Rawling, suffered a soft tissue injury to her lower back on 31 August 1989 when working as a senior enrolled nurse. She was then employed by the Department of Veteran Affairs ("the Department") at the Repatriation General Hospital at Heidelberg, Victoria. The injury occurred when she was helping a patient transfer from his bed to a chair.

1. Ms Rawling was able to resume her duties on 18 October 1989 but three days later aggravated her lumbar muscular strain when she attempted to support an unstable patient. For one reason or another, she has been unable to resume permanent full-time employment since that date.

2. In November 1989, Ms Rawling tendered her resignation to the Hospital with effect from 22 November citing as her reason that she was "moving interstate to live". In fact, she moved to Adelaide with her fiancee in January 1990.

3. In March 1990 Ms Rawling underwent medical assessment at the Alfreda Rehabilitation Centre in South Australia where a diagnosis confirmed that she remained unfit for work. However, her subsequent participation in a remedial treatment programme at the Centre sufficiently improved her condition that she commenced to seek employment. Her attempts were unsuccessful and she remained unemployed until November 1990 when she commenced a three month "work trial" at the Department's Repatriation General Hospital at Daw Park, South Australia. That trial, which was organised by the Commonwealth Rehabilitation Service, Comcare and the Department, was designed to assess whether Ms Rawling could return to full-time nursing duties. The report of her trial, dated 28 February 1991, was highly complimentary of Ms Rawling and her commitment but concluded that she was unable…