Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Comcare Australia v Silver [2004] FCA 701
WORKERS' COMPENSATION – Commonwealth employee – liability for permanent impairment – injury to eye – progressive decline in visual acuity – whether decline attributable to new permanent impairment or not – whether in assessing the degree of impairment regard should be had to one or both eyes Compensation (Commonwealth Government Employees) Act 1971 (Cth) Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare v Maida (2002) 36 AAR 69 applied Comcare Australia v Mathieson [2004] FCA 212 cited Comcare v Amorebieta (1996) 66 FCR 83 cited Comcare v Ticsay (1992) 38 FCR 181 cited Thiele v Commonwealth (1990) 22 FCR 342 cited Whittaker v Comcare (1998) 86 FCR 532 cited COMCARE AUSTRALIA v GRAHAM GEORGE SILVER No S 22 of 2004 FINN J ADELAIDE 3 JUNE 2004
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY S 22 OF 2004
BETWEEN: COMCARE AUSTRALIA
APPLICANT
AND: GRAHAM GEORGE SILVER
RESPONDENT
JUDGE: FINN J
DATE OF ORDER: 3 JUNE 2004
WHERE MADE: ADELAIDE
THE COURT ORDERS THAT: 1. The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY S 22 OF 2004
BETWEEN: COMCARE AUSTRALIA
APPLICANT
AND: GRAHAM GEORGE SILVER
RESPONDENT
JUDGE: FINN J
DATE: 3 JUNE 2004
PLACE: ADELAIDE
REASONS FOR JUDGMENT 1 The principal issue in this appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is a narrow one. In 1971 the respondent, Graham Silver, suffered a work related injury to his left eye that produced scarring on his retina. Comcare accepted liability for that injury on 14 December 2000. By the time Mr Silver sought permanent impairment compensation for that injury he was suffering a 75 per cent loss of left eye vision. Ophthalmological evidence showed a progressive deterioration in visual loss and a progressive decline in visual acuity from 1981 (10 per cent and 90 per cent) to the Tribunal hearing in 2002 (75 per cent and 20 per cent). The short question raised was whether this decline was all attributable to the same permanent impairment or whether it was attributable to a new permanent impairment.
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