Filla v Comcare

[2001] FCA 964

FEDERAL COURT OF AUSTRALIA

Filla v Comcare Australia [2001] FCA 964

ADMINISTRATIVE LAW – Administrative Appeals Tribunal decision affirming Comcare decision that Comcare not liable to pay compensation to applicant – appeal to Federal Court – whether Administrative Appeals Tribunal erred in law.

WORKERS’ COMPENSATION – Commonwealth employees – Comcare liability to pay compensation in respect of injury resulting in permanent impairment – whether Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) definition of permanent refers to period of time undetermined but substantial.

WORKERS’ COMPENSATION – permanent impairment – whether reasonable rehabilitative treatment in Safety, Rehabilitation and Compensation Act 1988 (Cth) s 24(2)(c) consists of or distinct from rehabilitation program under s 37 – whether reasonable rehabilitative treatment in s 24(2)(c) consists of or distinct from rule that worker must mitigate damage by not unreasonably refusing treatment – whether reasonable rehabilitative treatment in s 24(c) raises two questions of whether or not reasonable rehabilitative treatment exists and whether or not Commonwealth employee has undertaken all such treatment – manner in which answers to those two questions assist determination of permanence.

WORKERS’ COMPENSATION – rule that worker must mitigate damage by not unreasonably refusing treatment – whether rule to be read into Safety, Rehabilitation and Compensation Act 1988 (Cth) s 24(1) – where rule distinct from reasonable rehabilitative treatment in s 24(2)(c) – whether breach of rule means Comcare not liable to pay any compensation – whether reasonableness assessed according all circumstances known to and affecting worker – examples of circumstances known to and affecting worker capable of making refusal not unreasonable – whether baseless fear of treatment capable of making refusal not unreasonable – whether possession of full information of objective reasonableness of treatment sufficient to make refusal unreasonable.

WORDS & PHRASES – “indefinitely”

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Federal Court of Australia Act 1976 (Cth) s 19(2)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 14(1), 24(1), 24(2), 27(1), 37
Social Security Act 1947 (Cth) ss 135(2), 135M(1)
Workmen’s Compensation Ordinance 1949 (NT)

Comcare v Levett (1995) 60 FCR 14 followed
Martin v Australian Postal Corporation (1999) 29 AAR 420 referred to
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 followed
Re Drage and Comcare (1996) 42 ALD 589 disapproved
Dragojlovic v Director-General of Social Security (1984) 1 FCR 301 considered

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New South Wales v Taylor (2001) 178 ALR 32 referred to
Glavonjic v Foster [1979] VR 536 considered
Karabotsos v Plastex Industries Pty Ltd [1981] VR 675 referred to
Lorca v Holts’ Corrosion Control Pty Ltd [1981] Qd R 261 referred to
Selvanayagam v University of the West Indies [1983] 1 WLR 585 referred to
Lange v Hoyt 159 A 575 (1932) referred to
Walker-Flynn v Princeton Motors Pty Ltd [1960] SR (NSW) 488 referred to
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to

Calabresi Ideals, Beliefs, Attitudes, and the Law 1985

EVA FILLA v COMCARE AUSTRALIA
N 1006 of 2000