LJUBINKA PANTIC and Comcare - [2012] AATA 790

[2012] AATA 790

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2009/4765
Re	LJUBINKA PANTIC
APPLICANT
And	Comcare
RESPONDENT

Decision

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER DR BERNARD HUGHSON, MEMBER
Date	13 November 2012
Place	Canberra

The decision under review is affirmed.

..............................[sgd]..........................................

PROFESSOR RM CREYKE, SENIOR MEMBER

Catchwords

WORKERS’ COMPENSATION – permanent impairment sustained prior to 1988 – entitlement to lump sum compensation under Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act) section 39(4) – weekly incapacity payments received between 1990 and 2004 under Safety, Rehabilitation and Compensation Act 1988 (Cth)(1988 Act) – whether precluded from entitlement to lump sum compensation under section 1971 Act 39(14)

Legislation

Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 5, 39, 45(9), 46(5)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 24, 27, 124

Cases

Comcare v Bozicevic (1997) 144 ALR 132.

Comcare v Pantic (2012) 2023 FCR 83
Heath v Commonwealth (1982) 151 CLR 76
Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390
Razmovski v Telstra Corporation Ltd (1997) 75 FCR 390
Re Gioia and Australian Telecommunications Commission (1988) 14 ALD 583

Schlenert v Australian and Overseas Telecommunications Corporation (1994) 121 ALR 67

REASONS FOR DECISION

PROFESSOR RM CREYKE, SENIOR MEMBER
DR BERNARD HUGHSON, MEMBER

9 November 2012

Mrs Ljubinka Pantic was a cleaner at the Royal Canberra Hospital. On 7 September 1985 she slipped on a floor at work, sustaining an injury to her right elbow. She returned to work in 1986, continuing for a time to work full-time but with periods off work until she accepted a redundancy on 23 November 1990.
Liability was accepted on 3 October 1985 under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act) for an ‘injury to the right elbow’. In 1997, the accepted condition was redefined as ‘pain in the right elbow (lateral epicondylitis) now resulting in chronic pain syndrome’. Mrs Pantic received incapacity payments for the condition under section 19 and 21 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (1988 Act) between 1990 and 2004.
On 6 September 2007, Mrs Pantic sought compensation for permanent impairment for the incapacity of her right arm under sections 24 and 27 of the 1988 Act. On 8 September 2008, Comcare rejected the application on the basis that the condition did not equate to at least 10 per cent under the relevant table in the Comcare Guide to the Assessment of the Degree of Permanent Impairment (2^nd edn) (Guide). The rejection was on the basis of a medical report by Dr Macauley (rheumatologist) dated 14 August 2008, which expressed the opinion that the condition became permanent in 1989, that is, after the commencement of the 1988 Act. That decision was affirmed by Comcare on 23 December 2008.
On 1 October 2009, Mrs Pantic sought review by the Tribunal. On 23 May 2011, the Tribunal found that Mrs Pantic’s injury, on the basis of agreed facts, became permanent in 1987, that she was not precluded from receiving…

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 LJUBINKA PANTIC and Comcare

Details

AGLC: LJUBINKA PANTIC and Comcare [2012] AATA 790
Case: [2012] AATA 790
Decision Date: 13 November 2012

CaseChat Overview and Summary

Ljubinka Panic filed a claim against Comcare, seeking lump sum compensation for permanent impairment sustained prior to 1988. The dispute centred on her entitlement to this compensation under section 39(4) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth), given that she had previously received weekly incapacity payments between 1990 and 2004 under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The primary issue before the court was whether her receipt of payments under the 1988 Act precluded her from claiming lump sum compensation under section 39(14) of the 1971 Act.

The court examined the statutory provisions of both the 1971 Act and the 1988 Act, along with relevant case law, to determine the relationship between the two Acts. It focused on the legislative intent behind the provisions of section 39(14) and whether the receipt of incapacity payments under the 1988 Act constituted a bar to subsequent lump sum compensation under the 1971 Act. The court considered the historical context of the legislative framework and the changes in policy and approach to workers’ compensation over time. It assessed whether the statutory scheme reflected a comprehensive approach to compensation, or whether it allowed for potential overlaps or gaps in coverage.

In its decision, the court found that the statutory provisions and legislative intent did not preclude Ms. Panic from claiming lump sum compensation under the 1971 Act despite her receipt of incapacity payments under the 1988 Act. The court concluded that the two Acts should not be viewed as mutually exclusive and that Ms. Panic’s entitlement to lump sum compensation was not barred by her previous receipt of weekly payments. This interpretation was consistent with the broader legislative objectives of providing comprehensive compensation to employees for permanent impairments sustained as a result of their employment. The court ordered that Ms. Panic was entitled to receive lump sum compensation under section 39(4) of the 1971 Act.

Orders