FEDERAL COURT OF AUSTRALIA
Broadhurst v Comcare [2010] FCA 1034
Citation: Broadhurst v Comcare [2010] FCA 1034 Appeal from: Broadhurst and Comcare [2010] AATA 251 Parties: KAREN BROADHURST v COMCARE File number: ACD 16 of 2010 Judge: BUCHANAN J Date of judgment: 22 September 2010 Catchwords: ADMINISTRATIVE LAW – compensation for injuries - notion of whole person impairment – obligation to pay compensation in the event of a 10% degree of permanent impairment – not open for the purpose of deciding whether an entitlement to compensation exists for the Guide to the Assessment of the Degree of Permanent Impairment to effectively direct that a choice be made only between 8% or 13% degrees of permanent impairment – use of the American Medical Association’s Guides to the Evaluation of Permanent Impairment Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 42D, 43(1), 44
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A(1)(b), 14(1), 24, 28Cases cited: Canute v Comcare (2006) 226 CLR 535
Comcare v Kay (1997) 26 AAR 124
Comcare v Ticsay (1992) 38 FCR 181
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
Parker v Military Rehabilitation and Compensation Commission [2007] FCA 1161
Whittaker v Comcare (1998) 86 FCR 532Date of hearing: 17 August 2010 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 71 Counsel for the Appellant: Mr P. Menzies QC with Mr A. Anforth Solicitor for the Appellant: Capital Lawyers Counsel for the Respondent: Mr P. Hanks QC with Mr D. O'Donovan Solicitor for the Respondent: DibbsBarker
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 16 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: KAREN BROADHURST
AppellantAND: COMCARE
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
22 SEPTEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal is set aside and the matter is remitted to it.
2.Any application for costs is to be made within 14 days supported by short written submissions. Any response is to be made within a further 7 days.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 16 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: KAREN BROADHURST
AppellantAND: COMCARE
Respondent
JUDGE:
BUCHANAN J
DATE:
22 SEPTEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BUCHANAN J:
The present appeal
This is a proceeding in the original jurisdiction of the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) by virtue of which a party to a proceeding before the Administrative Appeals Tribunal (“the AAT”) may appeal to this Court on a question of law from any decision of the AAT in that proceeding.
The proceeding of the AAT which gives rise to the…
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- Broadhurst v Comcare [2010] FCA 1034
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- [2010] FCA 1034
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CaseChat Overview and Summary
In the case of Broadhurst v Comcare, the administrative decision under review was a decision of the Administrative Appeals Tribunal (AAT) to affirm a decision of Comcare that the claimant was not entitled to compensation for an injury to her back which resulted in a permanent impairment to her legs. The claimant appealed to the Federal Court of Australia, and the Court allowed the appeal and remitted the matter to the AAT for redetermination. The AAT had found that the relevant table in the Comcare Guide to the Assessment of the Degree of Permanent Impairment did not apply to the assessment of the degree of the claimant’s impairment, and had assessed the degree of her impairment under a less favourable table.
The central issue for determination was whether Table 9.7 or Table 9.17 of the Comcare Guide was the relevant table for the assessment of the degree of the claimant’s impairment to her legs. The Federal Court considered whether the exclusions accompanying Table 9.7 were ineffective, and concluded that they were. The Court noted that if Table 9.7 applied to the assessment of the claimant’s impairment, it was probable that it would yield a more favourable result than an assessment under Table 9.17. The Court also noted that the AAT had expressed concern about the disjunction between bands of percentages in Table 9.17, and had hoped that the issue would be addressed in a forthcoming republication of the Guide. The Court concluded that the AAT had erred in law by not considering Table 9.7 as the relevant table for the assessment of the degree of the claimant’s impairment.
The Federal Court allowed the appeal and remitted the matter to the AAT for redetermination. The Court noted that the AAT had not had the benefit of the Court’s reasons for allowing the appeal, and that it was appropriate to remit the matter to the AAT for redetermination in light of the Court’s decision. The Court did not make any orders as to costs.
The central issue for determination was whether Table 9.7 or Table 9.17 of the Comcare Guide was the relevant table for the assessment of the degree of the claimant’s impairment to her legs. The Federal Court considered whether the exclusions accompanying Table 9.7 were ineffective, and concluded that they were. The Court noted that if Table 9.7 applied to the assessment of the claimant’s impairment, it was probable that it would yield a more favourable result than an assessment under Table 9.17. The Court also noted that the AAT had expressed concern about the disjunction between bands of percentages in Table 9.17, and had hoped that the issue would be addressed in a forthcoming republication of the Guide. The Court concluded that the AAT had erred in law by not considering Table 9.7 as the relevant table for the assessment of the degree of the claimant’s impairment.
The Federal Court allowed the appeal and remitted the matter to the AAT for redetermination. The Court noted that the AAT had not had the benefit of the Court’s reasons for allowing the appeal, and that it was appropriate to remit the matter to the AAT for redetermination in light of the Court’s decision. The Court did not make any orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
Some features of s 24 should be noted. Section 24(1) imposes a liability on Comcare to pay compensation in respect of an injury which results in a permanent impairment. That liability is subject to the operation of s 24(7) – namely, if Comcare determines that the degree of permanent impairment is less than 10% an amount of compensation is not payable. Comcare’s determination, as decision maker, is to be carried out under s 24(3), (4), (5) and (6). Those provisions interact. Under subs (3) Comcare is directed to pay the amount of compensation assessed under subs (4). Under subs (4) that amount is to bear the same percentage relationship to the maximum amount fixed in subs (9) as the percentage determined by Comcare under subs (5). The degree of permanent impairment determined under subs (5) is to be determined under the provisions of the approved Guide. Under subs (6) the degree of permanent impairment determined by Comcare in an individual case is to be expressed as a percentage.The background facts Comcare has accepted a number of claims from Ms Broadhurst relating to different periods of employment. Injuries which pre-dated the one with which the present proceedings are concerned (which are of historical interest only) occurred on 18 November 1988 (low back strain); 18 February 1992 (left sacroiliac joint strain) and 20 June 1996 (facet joint inflammation in the lumbar spine). I mention those earlier matters only to emphasise that the matter which the AAT was required to consider was ultimately independent of those earlier incidents and Ms Broadhurst’s latest claim for compensation was not affected by any earlier claim. The incident on 12 April 2005 concerned an injury to Ms Broadhurst’s back but the consequence of the injury which was considered by Comcare, and by the AAT, was resulting impairment in Ms Broadhurst’s legs. There is an issue between the parties whether the injury suffered was to her back or to both her back and her legs. That was not an issue before the AAT where Ms Broadhurst’s case was advanced on the basis that the relevant injury was to her back, resulting in an impairment to her legs. The wider contention advanced on the appeal will be mentioned again when a satisfactory context in which to appreciate its significance has been established. The AAT found that, as a result of the injury to her back on 12 April 2005, Ms Broadhurst suffers a permanent impairment to her legs. However, the AAT concluded that the degree of permanent impairment suffered by Ms Broadhurst, as a result of the injury, was less than 10% and that she was not entitled to compensation. That conclusion was substantially dictated by the contents of, and instructions in, the approved Guide referred to in s 24(5) of the SRC Act.The Comcare Guide Section 28 of the SRC Act authorises Comcare to prepare a document called Guide to the Assessment of the Degree of Permanent Impairment (“the Comcare Guide”) setting out criteria by reference to which the degree of any permanent impairment of an employee resulting from an injury shall be determined. The Comcare Guide must be approved by the relevant Minister and is a disallowable legislative instrument. Section 28(4) of the SRC Act makes the Comcare Guide binding on primary decision makers (including Comcare itself) and on the AAT.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
One issue which required determination by the AAT was whether the exclusions accompanying Table 9.7 should be regarded as ineffective. If Table 9.7 applied to the assessment of Ms Broadhurst’s impairment to her legs it was probable that it would yield a more favourable result than an assessment under Table 9.17The AAT Decision The decision of the AAT was given on 9 April 2010. The AAT decision set out the applicable statutory scheme and then the background events preceding and connected with the incident which occurred on 12 April 2005. The AAT described the consequence for Ms Broadhurst of the impairment resulting from the injury she suffered in 2005. The AAT went to some trouble to summarise the agreed medical evidence resulting from reports from a number of doctors. It is not necessary, for the purpose of the present appeal, to repeat that summary. The first question which required resolution was whether Ms Broadhurst had recovered from the incident which occurred on 12 April 2005 and whether her current symptomatology was “due to the underlying degenerative and arthritic disease in her lumbar spine”. The AAT noted that “it was conceded by both parties that Ms Broadhurst suffered an ‘injury’ to her back on 12 April 2005 and that her leg condition, which is the subject of this claim, is secondary to, or a sequela of, that incident in conjunction with her previous back injuries”. After discussing how particular medical evidence was relevant to an assessment of this question the AAT concluded that the “evidence establishes to the Tribunal’s satisfaction that it was the aggravation of her spinal conditions, principally due to the work-related incident on 12 April 2005, which caused Ms Broadhurst’s leg condition to become symptomatic”. The AAT found that her condition was permanent within the meaning of s 24(2) of the SRC Act. These findings satisfied the requirements of s 24(1) of the SRC Act with the result that Ms Broadhurst would be entitled to compensation unless the degree of her permanent impairment was less than 10%. The AAT then turned to the question of whether any table in the Comcare Guide was relevant to the assessment of the degree of Ms Broadhurst’s impairment and, if more than one, which was the relevant one. It accepted that “where two Tables are both applicable, the decision-maker must assess the degree of permanent impairment under the Table which yields the most favourable result to the employee” (referring to Whittaker). The AAT found that Table 9.7 did not apply because no “objectively identified orthopaedic or neurological condition” was present in Ms Broadhurst’s legs. The AAT excluded from consideration, for reasons which it gave, some other tables and then turned its attention to Table 9.17. It noted the structure of the Table which I have earlier set out and made the following comment (at [84]):The Tribunal notes that it is unfortunate that this disjunction between bands of percentages has been inserted into the Guide and expresses the hope that in the forthcoming republication of the Guide, this issue will be addressed to avoid the obvious problems of assessment it has created for medical experts and others.
Ratio Decidendi
Legal Principle Established
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