George Vlouhakis v WorkCover Corporation No. SCGRG 95/1192 Judgment No. 5538 Number of Pages 7 Workers' Compensation

The appeal before the Full Court of the Supreme Court of South Australia, in the matter of George Vlouhakis v WorkCover Corporation, concerns the assessment and amount of compensation under the Workers Rehabilitation and Compensation Act 1986 (SA). The dispute revolves around the Corporation's method of assessing the worker's loss of future earning capacity as a capital loss under section 42A of the Act. The worker argued that the Corporation should have projected his notional weekly earnings over the remainder of his notional working life and then awarded a proportion of this amount for the nominated portion, contrary to the Corporation's approach of projecting earnings over the nominated portion only.

The legal issues before the court were whether the Corporation's approach in making an interim assessment of the worker's loss of future earning capacity was correct and if the statutory provisions allowed for a different approach. The court examined the language of section 42A and its implications for interim assessments. The worker argued that the statutory provisions required a whole-life calculation for interim assessments, while the Corporation maintained its approach was consistent with the legislative framework.

The court concluded that the Corporation's approach was correct, despite the ambiguous wording of section 42A. The court interpreted the provision to mean that in the case of an interim assessment, the nominated portion of the worker's notional working life should be treated as if it were the remainder of the worker's notional working life for the purpose of the calculation. This interpretation, though strained, was considered the only way to make sense of the statutory language and achieve a coherent application of the provision. The court found that the Corporation's method of projecting notional weekly earnings over the nominated portion was consistent with the statutory scheme and did not leave the worker at the mercy of the Corporation's discretion, as the method of any assessment, including interim assessments, was subject to review.

The appeal was dismissed, and the decision of the Tribunal was affirmed, upholding the Corporation's assessment of the worker's loss of future earning capacity as a capital loss.