William Blade and Comcare - [2014] AATA 847

[2014] AATA 847

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/2506

Re

William Blade

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member Bernard J McCabe

Date 12 November 2014

Place Brisbane
The Safety, Rehabilitation and Compensation Act 1988 (Cth) should apply on its terms to the assessment of the applicant’s permanent impairment in respect of his shoulder conditions.

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Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Preliminary legal issue – Applicable legislative scheme for assessment of permanent impairment – Liability accepted for initial injuries sustained in 1970 – Secondary conditions developed in 1995 and 2012 – Changes to Commonwealth legislation – Discreet injury – Older legislation does not apply – Section 24 of the Safety, Rehabilitation and Compensation Act 1988(Cth) applies.
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A; 24; 124
CASES
Canute v Comcare (2005) 40 AAR 327
Canute v Comcare (2006) 226 CLR 535
REASONS FOR DECISION
Senior Member Bernard J McCabe
12 November 2014

This case raises a preliminary question which I have been asked to resolve in advance of a final hearing. The question arises out of the fact the applicant was originally injured at work in 1970 but developed secondary conditions in 1995 and 2012. The Commonwealth legislation governing compensation for injured employees changed several times during this period. The applicant says the condition that manifested in 2012 should be dealt with under the old legislation which is more favourable from his point of view.

Comcare, the respondent, says the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) applies.
THE HISTORY
Mr William Blade was injured in a work-related motorbike accident in 1970.

The Commonwealth accepted liability for multiple lacerations and abrasions under the Commonwealth Employees’ Compensation Act 1930 (Cth) (“the 1930 Act”).

The Commonwealth subsequently accepted liability for degenerative osteoarthritis of each knee in 1983 and determined that compensation was payable for permanent impairment in 1995. Those decisions were made under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”): see p 27 and p 63 of the Tribunal documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). Upon reconsideration, Comcare determined compensation for permanent impairment was properly dealt with under the provisions of the SRC Act rather than the 1971 Act as the impairment did not become permanent until after 1 December 1988 when the SRC Act came into force. Comcare’s determination (at p 74 of the Tribunal documents) confirms this was the outcome sought by Mr Blade.
Mr Blade made a further claim for compensation for bilateral shoulder injuries which he claims are secondary to his knee conditions (he says he has injured his shoulders because he is forced to lift himself using his shoulders instead of his legs since his knee replacement surgery in 2012). The claim in respect of his shoulders was made on

1 December 2012.
Comcare accepted in…

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 William Blade and Comcare

Details

AGLC: William Blade and Comcare [2014] AATA 847
Case: [2014] AATA 847
Decision Date: 12 November 2014

CaseChat Overview and Summary

William Blade brought a claim against Comcare, the Commonwealth's workers' compensation insurer, concerning injuries sustained in 1970 and subsequent secondary conditions that developed in 1995 and 2012. The dispute centred on the applicable legislative scheme for assessing permanent impairment. The Federal Circuit Court was tasked with determining the relevant law governing the assessment of Blade's claim.

The central legal issue was whether the assessment of Blade's permanent impairment should be governed by the older Commonwealth legislation in effect at the time of his initial injury in 1970, or by the newer legislation that came into force after the development of his secondary conditions. The court had to consider whether the newer legislation applied retrospectively to the initial injury and subsequent secondary conditions, or whether the older legislation should be applied to the initial injury and the newer legislation to the secondary conditions. The court also had to determine if the secondary conditions constituted a discrete injury under the newer legislation.

The court found that the newer legislation did not apply retrospectively to the initial injury sustained in 1970. However, the secondary conditions that developed in 1995 and 2012 were considered discrete injuries under the newer legislation. Consequently, section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) applied to the assessment of Blade's permanent impairment. The court ruled that the newer legislation was the appropriate scheme for assessing the claim, as it provided for a more comprehensive assessment of permanent impairment. The court determined that the newer legislation was applicable to both the initial injury and the secondary conditions, given that the secondary conditions were discrete injuries under the newer legislative framework.

The court ordered that the assessment of Blade's permanent impairment be conducted in accordance with section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), thereby applying the newer legislative scheme to both the initial injury and the secondary conditions. This decision ensured that Blade's claim for permanent impairment was assessed under the most current and comprehensive legislative framework available.

Orders