Clarke, Ronald Harold v Comcare

[1998] FCA 1522

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 30  of   1998

BETWEEN:	RONALD HAROLD CLARKE APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:		DOWSETT J
DATE OF ORDER:		28 OCTOBER 1998
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

1. The appellant is to pay the respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 30 of 1998

BETWEEN:	RONALD HAROLD CLARKE APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	DOWSETT J
DATE:	28 OCTOBER 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The right of appeal conferred by s 44 is limited to questions of law. The decision of the Tribunal was by way of review of a decision of the present respondent, Comcare, declining an application by the present appellant pursuant to s 24(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth).

That section makes provision for compensation to be payable for permanent impairment suffered, broadly speaking, in the course of employment.  Compensation is, however, only payable, subject to s 25, where the permanent impairment is not less than 10 per cent.  The injury out of which the appellant's alleged impairment arose occurred many years ago, probably in about 1966.   This led to his undergoing various medical procedures in the following years.  His own documents including, in particular, a claim form dated 19 November 1991, suggest that in the years following the accident and the various medical procedures, he suffered a gradual decline in his condition.

There is substantial medical support for this view.  It is not necessary to address these factual matters in any more detail.  To the extent that they are relevant, they appear sufficiently in the reasons of the Tribunal.  Section 124(3) provides:-

“A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or

(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

(i)where the impairment or death occurred before the commencement of the 1930 Act – under the 1912 Act;

(ii)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the impairment or death occurred; or

(iii)in any other case – under the 1971 Act as in force when the impairment or death occurred.”

The current legislation came into force on 1 December 1988.  The Compensation (Australian Government Employees) Act 1971 (Cth) was in force prior to that legislation.  At the time of the original injury in 1966, the Commonwealth Employees Compensation Act 1930 (Cth) was in force.  These are the Acts referred to in s 124 as the “1971 Act” and the “1930 Act” respectively.   As I understand it, under both the 1930 Act and the 1971 Act, the appellant would not have been entitled to receive lump sum compensation in respect of this injury.

He is, therefore, not entitled to compensation under s 24 or s 25 in respect of any permanent impairment which occurred prior to the commencement date of the current legislation, that is 1 December 1988. It is upon this basis that the respondent declined his initial application.  The Administrative Appeals Tribunal disposed of the application for review on the same basis.  In so doing the Tribunal accepted the opinion expressed by Dr Morris.  Dr Morris considered that the applicant’s permanent impairment was 15 per cent of his thoraco-lumbar spine.  He considered that this was due to the injury at work in 1966, and that there had been a natural progression of degenerative disease since then.  Dr Morris considered that part of the applicant’s present level of incapacity was probably attributable to naturally occurring disease, secondary to the result of the treatment which he received many years ago.  Of the 15 per cent incapacity, Dr Morris considered that it was probable that most of that impairment had occurred prior to 1 December 1988.

As I have said, only such impairment as had not occurred prior to 1 December 1988 would justify an award pursuant to sections 24 and 25.  Clearly, on the basis of Dr Morris' evidence, any such impairment must have amounted to less than 10 per cent, and therefore would not justify an award under section 24, nor for present purposes, would it justify any intervention under section 25.  The question then arises as to whether or not the Tribunal was entitled to act upon Dr Morris' evidence, and this is the primary point ventilated before me.

The appellant asserts that the Tribunal's decision must be seen to be manifestly unreasonable.  Primarily, Mr Clarke bases this submission upon the fact that his own medical adviser differed from Dr Morris’ opinion that there must have been substantial degeneration in his condition after 1 December 1988.   Mr Clarke supported this view by his own assertion that he had managed to maintain his employment until he accepted a redundancy package in 1987.  Evidence from his former superiors supported his assertion that he was then able to cope with his work.  Of course, being able to cope with one's work notwithstanding an impairment, does not mean that the impairment is not there.  The fact of his so coping does not lead me to the conclusion that the Tribunal was not entitled to act upon Dr Morris' evidence.  That evidence appears to have been quite cogent, and there is no apparent reason for rejecting it.  It was, to some extent, supported by previous statements made by the appellant and by much of the other medical evidence.  In particular, in this regard, I refer to the evidence of Dr Anderson who performed a number of the surgical procedures within a few years of the original injury in 1966, and also to the evidence of Drs Dowda and Weisz.  In the circumstances I can see no reason for concluding that the Tribunal acted unreasonably in accepting Dr Morris' evidence. 

There were other grounds of appeal but all of them raised factual matters rather than legal ones, save for an assertion that the Tribunal had erred in law by not participating in a telephone link to hear further evidence from Dr Lemke, the appellant's doctor, and Dr Franklin who was previously the appellant’s superior.  Their evidence was received in written form by the Tribunal.  The complaint is that they were not cross-examined.  Mr Clarke has frankly conceded that their written evidence was favourable to him.  He was not deprived of any opportunity to cross-examine on evidence which was unfavourable to him, nor was he deprived of the opportunity to lead evidence which was favourable to him.  Mr Clarke said that his real concern was that, although he did not object to the course which was adopted at the time, he now felt, with the benefit of hindsight, that he would have liked to have asked a few questions to shore up the evidence of those two witnesses.  That does not amount to a denial of natural justice.  There is nothing in this ground of appeal.  The grounds of appeal do not raise any question of law, save in the two respects to which I have referred.

There was evidence upon which the Tribunal could reasonably act to reach the decision which it did.  There was no procedural irregularity.  In the circumstances, the appeal will be dismissed.

I will order that the appellant pay the respondent's costs of the appeal, although I must say that, in the circumstances, I consider that it would not be appropriate to enforce the order.   That will be a matter for the respondent.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             30 November 1998

The Applicant appeared in person.
Counsel for the Respondent:	Mr Bickford
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 October 1998
Date of Judgment:	28 October 1998