Comcare v Roser

[2003] FCA 243

FEDERAL COURT OF AUSTRALIA

Comcare v Roser [2003] FCA 243

WORKERS COMPENSATION – whether impairments flowing from discrete injuries suffered at different times may be combined under Table 14.1 of the Comcare Guide to produce a single “whole person” impairment percentage – operation and effect of s 24(7) of the Safety Rehabilitation and Compensation Act 1988 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 6, 24, 25, 27, 28
Acts Interpretation Act 1901 (Cth) s 23

Brennan v Comcare (1994) 50 FCR 555 followed
Comcare v Mihajlovic (2000) 97 FCR 304 referred to
Comcare v van Grinsven [2002] FCA 371 referred to

COMCARE v DESLIE ROSER

No Q 99 of 2002

SPENDER J
CANBERRA (heard in Brisbane)
25 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 99 OF 2002

BETWEEN:	COMCARE APPLICANT
AND:	DESLIE ROSER RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	25 MARCH 2003
WHERE MADE:	CANBERRA (heard in Brisbane)

THE COURT ORDERS THAT:

1.The appeal be allowed, and the cross-appeal be allowed in part.

2.The determinations of the Administrative Appeals Tribunal of 29 May 2002 be set aside.

3.There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 99 OF 2002

BETWEEN:	COMCARE APPLICANT
AND:	DESLIE ROSER RESPONDENT

JUDGE:	SPENDER J
DATE:	25 MARCH 2003
PLACE:	CANBERRA (heard in Brisbane)

REASONS FOR JUDGMENT

1. Deslie May Roser was an enlisted member of the Australian Army from 16 July 1986 to 20 February 2000.  On 15 August 1986 she injured both knees, to which her military service was a contributing factor, and it was determined by a Comcare delegate that the bilateral knee condition resulted in a 20% whole person impairment.  On 11 February 1992 she injured her back, which is said to have occurred in work-related circumstances.  An assessment of her thoracic lumbar spine condition by a Comcare delegate was that she had a 5% whole person impairment deriving from that injury.

2. Ms Roser contends that she is entitled to receive lump sum compensation on the basis that the percentage values of the levels of impairment for her back injury (5%) and the earlier knee injury (20%) should be combined pursuant to Table 14.1 (Combined Values Chart) of the Guide to the Assessment of the degree of Permanent Impairment (“the Comcare Guide”) prepared pursuant to s 28(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), thus increasing her compensable level of whole person impairment from 20% to 24%.

3. Comcare, on the other hand, contend that Ms Roser was entitled to receive lump sum compensation at the level of 20%, being the whole person impairment in respect of the bilateral knee condition which, as a defined injury resulting in greater than 10% whole person impairment, satisfies s 24(1) of the Act. However, Comcare contends that the bilateral knee condition and the back condition are discrete injuries arising…