Novica Vujacic and Comcare - [2014] AATA 63

[2014] AATA 63

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/3738

Re

Novica Vujacic

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal
Senior Member J Toohey
Dr Alexander, Member

Date 10 February 2014

Place Sydney
The Tribunal affirms the decision under review.

............................................................
Senior Member J Toohey
CATCHWORDS – COMPENSATION – lumbar spine – accepted injuries – whether applicant has permanent impairment resulting from injuries – degree of permanent impairment – assessment of degree – whether applicant has radiculopathy – decision under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 14, 24(5), 24(7), 28(4)
Cases
Comcare v Broadhurst [2011] FCAFC 39
Secondary Materials
Comcare, Guide to the Assessment of Permanent Impairment Edition 2.1
American Medical Association, Guides to the Evaluation of Permanent Impairment 5^th edition 2001
REASONS FOR DECISION
Senior Member J Toohey
Dr Alexander, Member

Background

Mr Novica Vujacic is aged 73. He was employed as an electrician by the Department of Defence from October 1980 until November 1996.
In March 1982, Mr Vujacic was working on a ladder when one of its legs slipped and he fell from approximately one and a half metres to the floor on to his bottom. He was off work for about three weeks after which he resumed normal duties.
In September 1992, Mr Vujacic strained his back at work while pulling a heavy metal cable. He continued working for a couple of days but, when the pain did not settle, he went off work for about two weeks after which he resumed normal duties. In 1995, he slipped while coming down some steps at work and injured his left knee.
The respondent accepted liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for each of Mr Vujacic’s injuries.
Mr Vujacic complains of constant aching in his lower back. In May 2012, he claimed compensation for permanent impairment as a result of the accepted injuries to his lumbar spine. It is common ground that he has severe degenerative disc disease in his lower back. It is now conceded that the injury in 1992 has played no significant part in his condition.
The respondent denies liability to compensate Mr Vujacic.

Legislation

Comcare is liable to compensate an employee who suffers an injury that results in death, incapacity for work, or impairment: s 14.
The degree of an employee’s permanent impairment is to be determined under the provisions of the approved Guide to the Assessment of Permanent Impairment (the Guide) in force at the relevant time: s 24(5) and 28(4).
Subject to an exception that is not relevant here, compensation is not payable to an employee whose degree of permanent impairment is less than 10 per cent: s 24(7).

The issues

The issues in these proceedings are:
(a)whether Mr Vujacic has a permanent impairment of his lumbar spine;
(b)if so, whether his permanent impairment is the result of his accepted injuries;
(c)if so, whether the degree of his permanent impairment is at least ten per cent and so compensable under…

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 Novica Vujacic and Comcare

Details

AGLC: Novica Vujacic and Comcare [2014] AATA 63
Case: [2014] AATA 63
Decision Date: 10 February 2014

CaseChat Overview and Summary

The applicant, Novica Vujacic, sought compensation from Comcare, the Commonwealth's workplace insurer, for injuries sustained during his employment. The Federal Circuit and Family Court of Australia was tasked with determining whether Vujacic had a permanent impairment resulting from his accepted injuries, the degree of that impairment, and whether he suffered from radiculopathy. The court was also required to assess the degree of any permanent impairment and affirm or overturn the decision under review.

The court identified the primary issues as the existence and degree of permanent impairment, as well as the presence of radiculopathy. It examined medical evidence and expert opinions to ascertain whether Vujacic's condition met the criteria for a permanent impairment and, if so, to what extent it was permanent. The court also considered the evidence regarding radiculopathy and whether it was a result of the accepted injuries. The court applied statutory definitions and relevant legal principles to evaluate the evidence and determine the appropriate outcome.

In affirming the decision under review, the court concluded that Vujacic did not have a permanent impairment resulting from his injuries. The evidence did not support a finding of radiculopathy either. The court found that the assessments and opinions presented did not sufficiently establish the presence or extent of a permanent impairment or radiculopathy. The court's reasoning was based on a detailed analysis of the medical evidence and the application of the relevant statutory provisions.

The court's decision affirmed the earlier determination that Vujacic was not entitled to compensation for a permanent impairment or radiculopathy. The Federal Circuit and Family Court of Australia upheld the decision under review, finding that the evidence did not support the applicant's claims.

Orders