Canute v Comcare [2005] FCA 299

FEDERAL COURT OF AUSTRALIA

Canute v Comcare [2005] FCA 299 ADMINISTRATIVE LAW – workers compensation – claim for additional compensation following making of final award – worker found to suffer chronic adjustment disorder with 10 per cent impairment – whether degree of impairment to be calculated having regard to the Combined Values Chart in Table 14.1 – whether Tribunal erred in law by not finding whether the adjustment disorder was an injury – whether impairments arising from separate injuries to be aggregated using Table 14.1 to calculate whole person impairment. Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, ss 24(1), ss 24(4), ss 24(5), ss 24(7), s 28

Comcare v Mihajlovic (2000) 97 FCR 304 – discussed Comcare v Roser (2003) 127 FCR 155 – discussed KENNETH JOHN CANUTE V COMCARE N 1101 OF 2004 HILL J 1 APRIL 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1101 OF 2004

BETWEEN: KENNETH JOHN CANUTE

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 1 APRIL 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal dated 21 June 2004 be set aside and the matter be remitted to the Tribunal for further hearing, with or without additional evidence being called. 2. The respondent is to pay the applicant's costs of the present application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1101 OF 2004

BETWEEN: KENNETH JOHN CANUTE

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: HILL J

DATE: 1 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, Mr Canute, appeals from the decision of the Administrative Appeals Tribunal constituted by senior member, S M Bullock and Dr P D Lynch, member, affirming the decision of Comcare denying to him a further lump sum compensation payment additional to the award he received as a result of a decision of Comcare made on 9 February 2000. 2 The application is in the original jurisdiction of the Court, although termed an appeal. It is an appeal "on", that is to say, limited to, a question of law. 3 Mr Canute worked as a civilian employee with the Department of Defence. He claimed that during the course of his employment he had suffered injury to his back on two occasions. He received an award of lump sum compensation in respect of one of his back injuries, as a result of the decision made on 9 February 2000. The other injury was not the subject of any award and has no relevance to the present appeal. 4 Mr Canute subsequently claimed "whole person impairment" beyond the award which he had received. He claimed that he suffered, not merely from the back injury, relating to the aggravation of the displacement of an intervertebral disc-lumbar, but also that arising out of the same incident, he suffered an adjustment disorder resulting in an increase in the degree of permanent impairment he suffered. 5 Section 24(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") limits further compensation after a final assessment of permanent impairment to cases where there has been a subsequent increase in the degree of permanent impairment of 10 per cent or more. Mr Canute's application for further compensation was refused. He then sought review of the decision in the Administrative Appeals Tribunal. The Tribunal found that the increased impairment Mr Canute suffered was only 8 per cent and thus less than the 10 per cent required by s 24(7) of the Act. It accordingly affirmed the decision under review. It is from this decision that Mr Canute appeals. 6 By virtue of s 14 of the Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury, inter alia, results in "impairment". Subsection 24(1) of the Act then provides that where an injury to an employee results in a permanent impairment, a liability to pay compensation to the employee arises. The amount of compensation is to be assessed in accordance with s 24(4) of the Act and is thus "an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5)". Section 24(5) requires Comcare to determine the degree of permanent impairment of the employee resulting from an injury using the provisions of what is termed "the approved Guide". The degree of permanent impairment is to be expressed as a percentage. 7 Section 28 is concerned with the approved guide. It requires Comcare to prepare a written document to be called "Guide to the Assessment of the Degree of Permanent Impairment" ("the Guide"). That written document is to set out criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury is to be determined and, inter alia, methods by which the degree of impairment as determined under those criteria are to be expressed as a percentage. Such a guide has been prepared and was used in the present case. 8 The expression "injury" is defined in s 4 of the Act as meaning: "a disease suffered by an employee; or (a) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (b) An aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment…" 9 The expression "disease" is defined, inter alia, as including an ailment or the aggravation of an ailment contributed to in a material degree by the employee's employment. Finally "impairment" is defined as meaning: "the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function."