Wuth v Comcare [2022] FCAFC 42

Federal Court of Australia

Wuth v Comcare [2022] FCAFC 42 Appeal from: Wuth and Comcare (Compensation) [2020] AATA 3625

File number(s): ACD 49 of 2020

Judgment of: GRIFFITHS, WHEELAHAN AND SNADEN JJ

Date of judgment: 22 March 2022

Catchwords: WORKERS' COMPENSATION – appeal from a decision of the Administrative Appeals Tribunal heard by the Full Court in the court's original jurisdiction – where the Tribunal determined that the applicant did not suffer an "injury" for the purposes of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) and therefore that Comcare was not liable to pay her compensation – where the Tribunal found that the applicant suffered from chronic daily headaches which were materially contributed to by her former employment, but which were not supported by identifiable physiological change – whether an identifiable physiological change is required to establish a "disease" as a criteria of an "injury" – consideration of Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 – identifiable physiological change not required to establish a "disease" – on the facts found by the Tribunal, the applicant suffered a "disease". ADMINISTRATIVE LAW – appeal from the Tribunal's decision to affirm Comcare's calculation of normal weekly earnings pursuant to s 8(5) of the Act – where the Tribunal approached the review by reference to previous judgments in proceedings between the parties given by a single judge and by the Full Court concerning s 8(1) of the Act, and reached its conclusion based upon speculation as to how that single judge and Full Court would have addressed the relevant questions under s 8(5) – the Tribunal failed to direct itself to the correct questions, failed to engage with the parties' submissions, and misapplied the relevant judgments – application remitted for rehearing.