Comcare v Wuth [2017] FCA 433

FEDERAL COURT OF AUSTRALIA

Comcare v Wuth [2017] FCA 433 Appeal from: Re Wuth & Comcare (Compensation) [2015] AATA 947

File number: ACD 2 of 2016

Judge: RARES J

Date of judgment: 27 April 2017

Catchwords: WORKERS' COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 24 – determination of percentage degree of permanent impairment where no quantitative percentage for condition in approved Guide or American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides) – where Administrative Appeals Tribunal found employee's pain-related impairment unrateable in accordance with Ch 18 of AMA Guides – whether Ch 18 of AMA Guides required award of no more than 3% for pain-related impairment – whether Tribunal required to make "clinical judgment" to determine percentage degree of permanent impairment under s 24(6) WORKERS' COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – calculation of normal weekly earnings under s 8(1) – whether calculation of average number of hours worked in each week during the relevant period to be made by reference to agreed or paid hours rather than actual hours worked – whether Tribunal can use hypothetical not factual number of hours worked ADMINISTRATIVE LAW – Safety, Rehabilitation and Compensation Act 1988 (Cth) – procedural fairness – where s 24(6) required Tribunal to award percentage for degree of permanent impairment – where expert medical evidence opined not possible to award a percentage degree of permanent impairment in accordance with approved Guide or AMA Guides – whether Tribunal required to inform parties it would determine percentage under s 24(6) – whether practical injustice shown