Broadhurst -v- Comcare Federal Court Appeal – Decision

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Capital Lawyers is pleased to announce that a Full Court of the Federal Court of Australia (Downes, Tracey and Flick JJ) handed down its decision in this important matter on Friday, 18 March 2011.

This decision is extremely important to the Federal worker’s compensation jurisdiction and has wide ranging implications for many injured workers.

The Federal workers’ compensation jurisdiction applies to any employee or public servant of the Commonwealth and the ACT as well as many of Australia’s largest companies including Australia Post, Telstra Corporation, Optus and BHP Billiton.

The decision of the single judge (Buchanan J) which was appealed from was handed down on 22 September, 2010.

In that decision, Justice Buchanan accepted Capital Lawyers’ submission that Table 9.17 of the Guide to the Assessment of Permanent Impairment (2nd Ed) which is used to determine an injured worker’s entitlement to lump sum compensation for permanent impairment for back injuries was invalid.

The reason for the invalidity was that under the statutory scheme, an injured worker is entitled to compensation for permanent impairment if he or she has a 10% Whole Person Impairment (WPI) arising from their injury.

However, the Guide which has been in force since March 2006 only allowed for an assessment gradients of 8% and then 13% and did not allow a proper of assessment of whether a claimant satisfied the 10% threshold.

As a result, many claimants had their claims rejected and they did not receive their fair compensation entitlements because they did not have a 13% WPI, even though they may have satisfied a 10% WPI.

Justice Buchanan ruled that as Table 9.17 was invalid and could not be used, the current edition of the American Medical Association’s Guide to the Assessment of Permanent Impairment which is the 6th Edition should be used instead.

Comcare appealed this decision and Capital Lawyers, on behalf of Mrs Broadhurst cross-appealed. In dismissing the appeals, the Full Court confirmed Buchanan J’s conclusion that Table 9.17 was invalid but held that it was the 5th Edition of the AMA Guide and not the 6th Edition which should be used to determine an injured worker’s Whole Person Impairment.

As a result of the primary decision of Buchanan J and the subsequent decision of the Full Court, many injured workers who, since March 2006, have lodged claims for permanent impairment with respect to back injuries which were rejected because they did not have a 13% WPI can now re-apply for permanent impairment compensation.

Any worker who believes that they may be affected by this decision, should contact Capital Lawyers for a no-obligation discussion about their claim.

Capital Lawyers is a member of the Australian Lawyers Alliance and is a leading law firm with a proven track record of fighting against unfair laws for the benefit of injured people. For more information, please go to or e-mail