Comcare Australia (Department of Defence) v Maida [2002] FCA 1284

FEDERAL COURT OF AUSTRALIA

Comcare Australia (Department of Defence) v Maida [2002] FCA 1284

WORKERS' COMPENSATION – permanent impairment – gradual worsening of condition – whether worsened condition is same or different permanent impairment for purposes of awarding lump sum compensation – application of transitional provisions of Safety Rehabilitation and Compensation Act – whether Tribunal failed to consider both the qualitative and quantitative changes in the respondent's impairment. Administrative Appeals Tribunal Act 1975 (Cth), s 44 Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 5, 27, 29, 39 Safety Rehabilitation and Compensation Act 1988 (Cth), ss 24, 25, 124, 28, 27, 4, 26 Department of Defence v West (1998) 156 ALR 651 - followed Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11 – considered Brennan v Comcare (1994) 50 FCR 555 - discussed Commissioner for the Safety Rehabilitation and Compensation of Commonwealth Employees v Brennan (1993) 45 FCR 475 - discussed Comcare v Levett (1995) 131 ALR 645 - discussed Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390 - discussed COMCARE AUSTRALIA (DEPARTMENT OF DEFENCE) v GUISEPPE MAIDA S.131 of 2001 MANSFIELD J 29 OCTOBER 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.131 OF 2001

BETWEEN: COMCARE AUSTRALIA (DEPARTMENT OF DEFENCE)

APPLICANT

AND: GUISEPPE MAIDA

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 29 OCTOBER 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The application is allowed.

2. The respondent's claim is remitted to the Administrative Appeals Tribunal for further hearing and determination in accordance with these reasons for judgment.

3. The Tribunal's order that the applicant pay the respondent his costs of the application for review of the delegate's decision be set aside.