Ascic v Comcare

Case [2021] FCA 1498

FEDERAL COURT OF AUSTRALIA

Ascic v Comcare [2021] FCA 1498

File number: WAD 425 of 2019
Judgment of: BANKS-SMITH J
Date of judgment: 30 November 2021
Catchwords:

WORKERS' COMPENSATION - appeal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) - application of transitional provisions of Safety, Rehabilitation and Compensation Act 1988 (Cth) (1988 Act) - claim for compensation for permanent impairment arising from accepted psychological condition - where on review of reviewable decision the Tribunal found date when impairment became permanent was prior to commencement date of 1988 Act - where under transitional provisions no compensation payable in respect of permanent impairment under the 1988 Act unless claimant entitled to lump sum compensation under Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act) - where no entitlement to lump sum compensation for psychological impairment under 1971 Act - where Tribunal found s 124 of 1988 Act disentitled applicant to compensation in respect of permanent impairment - whether Tribunal made error of law in interpretation of s 27 of 1971 Act - whether Tribunal justified in finding date that impairment was permanent was before commencement date - appeal dismissed

PRACTICE AND PROCEDURE - application to amend notice of appeal where questions of law not disclosed - subject to exception for two questions that were re‑formulated as questions of law, application dismissed -  applications to adduce evidence not before Tribunal - applications dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 26, 27, 39, 40

Federal Court of Australia Act 1976 (Cth) s 27

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 14, 24, 25, 27, 54, 61, 61A, 62, 64, 74, 124, 128, Part X

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (Cth)
Cases cited:

Ascic v Comcare [2019] FCA 819

Ascic v Comcare [2020] FCAFC 105

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303

Blackman v Australian Telecom Corporation (1990) 12 AAR 11

Brennan v Comcare (1994) 50 FCR 555

Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28

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

Comcare v Dalgleish [2018] FCA 2092

Comcare v Etheridge [2006] FCAFC 27

Comcare v Levett (1995) 60 FCR 14

Comcare v Lofts [2013] FCA 1197; (2013) (2013) 217 FCR 220

Committee of Direction of Fruit Marketing v Delegate of Australian Postal Commission (1979) 37 FLR 457

Cooper v Comcare [2002] FCAFC 347

Department of Defence v West (1998) 85 FCR 491

Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417

Frugtniet v Tax Practitioners Board [2013] FCA 752

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390

Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10

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Ascic v Comcare [2021] FCA 1498
Case
[2021] FCA 1498
Decision Date

CaseChat Overview and Summary

Mr Ascic appeals against a decision of the Administrative Appeals Tribunal (Tribunal) to decline his claim for permanent impairment compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (1988 Act). The Tribunal found that the date when the impairment became permanent was prior to the commencement date of the 1988 Act. Mr Ascic contends that the Tribunal erred in its interpretation of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act) and in finding that the date of the impairment was prior to 1 December 1988. The court was required to determine whether the Tribunal erred in its interpretation of s 27 of the 1971 Act and whether the Tribunal was justified in finding that the impairment became permanent before 1 December 1988.

The court found that the Tribunal did not err in its interpretation of s 27 of the 1971 Act. The court also found that the Tribunal was justified in finding that the impairment became permanent before 1 December 1988. The Tribunal's finding was based on a number of factors, including the date of injury, the date the Applicant went on leave, the date of his compensation claim, the date of his retirement, and the dates of diagnosis and injury referred to in the medical reports by Professor German and Dr Yeap. The court found that these events and diagnoses suggested that the Applicant's impairment became permanent prior to 1 December 1988. The court also found that the Tribunal was not satisfied that there was sufficient evidence to allow it to determine the precise date by which the impairment became permanent, but it did determine, on the balance of probabilities, that the impairment became permanent at some point prior to 1 December 1988.

The appeal was dismissed. The court also dismissed applications to amend the notice of appeal, to adduce further evidence, and to make further submissions on the question of costs. The court found that the Tribunal's interpretation of the relevant legislation and its findings were justified. The court also found that the applications to adduce further evidence were not necessary, as the evidence already before the Tribunal was sufficient to make a decision. The court ordered that any party who wished to make submissions as to costs was to file submissions that did not exceed five pages addressing the costs order they seek and why they contend it should be made. The question of costs would be determined on the papers.

Orders

Orders of the court

1. The applicant have leave to amend his notice of appeal so that it is to be read as if it contains the following questions of law:

(a) whether the Tribunal erred in construing s 27 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) by not concluding that it, in isolation, can be relied upon to establish an entitlement to permanent impairment compensation; and

(b) whether there was any evidence to support the Tribunal's finding that the impairment became permanent before 1 December 1988.

2. The application for leave to amend the notice of appeal is otherwise dismissed.

3. The appeal is dismissed.

4. The applications to adduce further evidence are dismissed.

5. Any party who wishes to make submissions as to costs is to file submissions that do not exceed five pages addressing the costs order they seek and why they contend it should be made.

6. Subject to any further order, such submissions are to be filed within 14 days and the question of costs will be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Therefore, I do not consider the Tribunal erred in its understanding of and conclusions as to the operation of s 27 of the 1971 Act.Second Question - the 'no evidence' ground The Tribunal dealt with the issue of when Mr Ascic's impairment became permanent in paras 40‑60 of the reasons. While the Tribunal was not satisfied that there was sufficient evidence to allow it to determine the precise date by which the impairment became permanent, it did determine, on the balance of probabilities, that the impairment became permanent at some point prior to 1 December 1988, because:The date of injury, the date the Applicant went on leave, the date of the Applicant's compensation claim, the date of his retirement, and the dates of diagnosis and injury referred to in the medical reports by Professor German and Dr Yeap all tend to suggest that the Applicant's impairment became permanent prior to 1 December 1988. Those events and diagnoses, referred to more fully in the Tribunal's reasons, can be described as follows:(a)Mr Ascic commenced continuous leave from his employment on 11 December 1987, did not return to work, was retired on invalidity grounds from 1 September 1988 and has received a pension from ComSuper since this time;(b)Mr Ascic's claim for compensation that was lodged in April 1988 referred to him first receiving treatment in December 1987, and that claim was accepted in May 1988;(c)a report from the Commonwealth medical officer dated 9 May 1988 which recommended that Mr Ascic be retired on invalidity grounds at that time, and on the basis that in consequence of mental incapacity he was incapable of performing his duties;(d)a report dated 17 May 1988 by Professor German, diagnosed Mr Ascic with 'a paranoid personality disorder', and 'occasional intensifications of paranoid personality traits to the extent of an acute paranoid reaction, brought on by perceived stress in his employment …';(e)in a medical certificate for workers' compensation dated 31 March 2009 Dr Yeap, Mr Ascic's treating practitioner, certified that he was unfit for work in relation to a permanent injury which was stated to have occurred on 11 December 1987;(f)in a Comcare Medical Review Certificate dated 7 April 2010, Dr Yeap certified that Mr Ascic was totally unfit for work for a further 12 month period, and again cited the injury as being sustained on or around 11 December 1987. Dr Yeap stated his diagnosis of Mr Ascic to be 'depression and acute paranoid reaction to perceived stress in [his] employment' which, in his opinion, was a probable consequence of 'stress in workplace'; and(g)in Dr Yeap's letter dated 21 August 2011 he stated that Mr Ascic '… has depression and "acute paranoid reaction to perceived stress in employment" since 1987'. Dr Yeap further stated that:His current condition is related to his former employment in the Commonwealth Police.His initial condition has not been superseded by a different condition.He still has the same underlying mental condition that precipitated his current condition in the first place.He is still not on any medication.Medications have not helped in the past and I do not think it will make a difference.

Decision

Reasons for decision

Mr Ascic has previously unsuccessfully challenged Comcare's assessment of the quantum of his compensation entitlements under the 1988 Act: Ascic v Comcare [2019] FCA 819, upheld in Ascic v Comcare [2020] FCAFC 105 (Ascic Weekly Earnings Judgment). On 12 December 2016 Mr Ascic submitted an additional claim for compensation for permanent impairment. It is this claim that led to the reviewable decision the subject of the Tribunal decision and is the subject of this proceeding. The claim was commenced by submission of a standard claim form bearing that date (Claim Form). In the Claim Form, Mr Ascic made a claim for permanent impairment in relation to his 'accepted condition', described in the form as 'depression and acute paranoid reaction to perceived stress in employment', and stated that the date of injury was 11 December 1987. In response to the question 'What permanent injury/impairment(s) of the body do you want to claim for?' Mr Ascic wrote:Inability to sleep, regular bouts of stress/anxiety, unwelcome memory flashbacks, frequent inability to maintain concentration, often incapable of attending to daily chores/needs, unable to tolerate social contacts/prefer isolation or family contact only, desires for revenge towards AFP and often desires for self harm. Following 14 years of mental abuse by AFP, I am still fucked in the head and neither I nor anyone else has been able to help. The treating doctor also indicated in the form that the diagnosis of the condition for which Mr Ascic claimed permanent impairment is 'depression and acute paranoid reaction', and affirmed that it was related to the accepted condition. In response to the question 'Have you received a lump sum award for permanent impairment or non-economic loss for this injury/injuries/disease and/or this claim or any other claim with other insurers', Mr Ascic selected 'No'. The Claim Form also contained a 'non-economic loss questionnaire' which was completed by Mr Ascic and his treating practitioner. On 2 February 2017 Comcare by a delegate wrote to Mr Ascic informing him that Comcare had decided to decline his permanent impairment compensation claim for the accepted condition of 'depression and acute paranoid reaction to perceived stress in employment' under the 1988 Act. The letter provided information as to requesting a reconsideration within 30 days. It is apparent that a reconsideration was undertaken. On 16 March 2017 a different delegate of Comcare, being a senior review officer, made a reviewable decision to affirm the determination of Comcare to decline Mr Ascic's claim and notified Mr Ascic of the decision and reasons by letter of that date. The delegate considered the claim was properly declined because Mr Ascic's condition became permanent prior to 1 December 1988 and the 1971 Act did not provide for a lump sum payment of compensation for psychological conditions. Therefore, applying s 124(3) of the transitional provisions of the 1988 Act, the delegate determined that Mr Ascic was not entitled to compensation for permanent impairment under the 1988 Act. These legislative provisions are set out and discussed further below.

Ratio Decidendi

Legal Principle Established

I took the view that it was appropriate that the hearing of those applications be dealt with at the hearing of the appeal. I formed this view because it was apparent from the notice of appeal and proposed amended notice of appeal that questions might arise as to whether the appeals identified and articulated questions of law within the meaning of s 44 of the AAT Act, and that as a matter of practice and procedure it was preferable in the circumstances to determine such issues at the hearing of the appeal. The parties were invited to provide further written submissions on that basis and did so. In particular, Mr Ascic has filed three sets of written submissions and I have had regard to those submissions in addition to his oral submissions.The statutory provisions and their transitional operation To resolve the various contentions, it is necessary to set out certain provisions of both the 1988 Act and the 1971 Act.1988 Act Expressed at a general level, the 1988 Act applies to injuries suffered before or after its commencement date (1 December 1988), but subject to transitional provisions that disentitle claims for certain impairments that occurred before the commencement date. A detailed history of the introduction and effect of the 1988 Act can be found in Brennan v Comcare (1994) 50 FCR 555 at 557 (Burchett J), 563‑565 (Gummow J). The starting point for a claim brought after 1 December 1988 is s 14 of the 1988 Act. It provides:14Compensation for injuries(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.… 'Injury' is defined in s 5A and includes a disease or an injury that is a physical or mental injury arising out of or in the course of the employee's employment. 'Impairment' is defined in s 4 and means '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'. 'Permanent' is defined in s 4 and means 'likely to continue indefinitely'. Section 24 of the 1988 Act provides for entitlements to compensation for permanent impairment. It provides:24Compensation for injuries resulting in permanent impairment(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:(a)the duration of the impairment;(b)the likelihood of improvement in the employee's condition;(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and(d)any other relevant matters.…(7) Subject to section 25, if:(a)the employee has a permanent impairment other than a hearing loss; and(b)Comcare determines that the degree of permanent impairment is less than 10%;an amount of compensation is not payable to the employee under this section.