FEDERAL COURT OF AUSTRALIA
Comcare v Broadhurst [2011] FCAFC 39
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- AGLC
- Comcare v Broadhurst [2011] FCAFC 39
- Case
- [2011] FCAFC 39
- Decision Date
CaseChat Overview and Summary
In the case of Comcare v Broadhurst, the dispute between the Commonwealth and Ms Broadhurst centred on the appropriate assessment of her impairment due to a lumbar sprain, as well as the subsequent characterisation and treatment of her condition. The matter was initially determined by the Administrative Appeals Tribunal (AAT) and subsequently appealed to the Federal Court of Australia. The Court was required to decide whether the Tribunal had correctly applied the relevant legislative instruments in assessing Ms Broadhurst's impairment and whether the proceeding should be remitted to the Tribunal for reconsideration.
The legal issues before the Court included the correct interpretation and application of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA) in the context of Ms Broadhurst's injury. Specifically, the Court had to determine whether the fifth edition of the AMA guide should have been applied, as opposed to the sixth edition as found by the Tribunal, and whether the Tribunal should have considered Ms Broadhurst's condition as a chronic pain condition. The Court also needed to address whether the proceeding should be remitted to the AAT and, if so, whether the Tribunal should be differently constituted.
The Court found that the Tribunal should have applied the fifth edition of the AMA guide rather than the sixth. However, the Court held that it had the discretion to affirm the Tribunal's order setting aside the decision, even though the reasoning provided by the Tribunal was flawed. The Court concluded that the matter should be remitted to the AAT for reconsideration in accordance with the Court's reasons. Additionally, the Court found no reason to alter the composition of the Tribunal and suggested it should remain as originally constituted.
ORDERS:
1. The appeal be dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
3. The cross-appeal be dismissed.
4. The cross-respondent is to pay the costs of the cross-appellant.
5. The case be remitted to the Tribunal to be heard and decided again consistently with these reasons.
6. Liberty is reserved to the parties to apply within 7 days to vary these orders.
The legal issues before the Court included the correct interpretation and application of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA) in the context of Ms Broadhurst's injury. Specifically, the Court had to determine whether the fifth edition of the AMA guide should have been applied, as opposed to the sixth edition as found by the Tribunal, and whether the Tribunal should have considered Ms Broadhurst's condition as a chronic pain condition. The Court also needed to address whether the proceeding should be remitted to the AAT and, if so, whether the Tribunal should be differently constituted.
The Court found that the Tribunal should have applied the fifth edition of the AMA guide rather than the sixth. However, the Court held that it had the discretion to affirm the Tribunal's order setting aside the decision, even though the reasoning provided by the Tribunal was flawed. The Court concluded that the matter should be remitted to the AAT for reconsideration in accordance with the Court's reasons. Additionally, the Court found no reason to alter the composition of the Tribunal and suggested it should remain as originally constituted.
ORDERS:
1. The appeal be dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
3. The cross-appeal be dismissed.
4. The cross-respondent is to pay the costs of the cross-appellant.
5. The case be remitted to the Tribunal to be heard and decided again consistently with these reasons.
6. Liberty is reserved to the parties to apply within 7 days to vary these orders.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
3. The cross-appeal be dismissed.
4. The cross-respondent is to pay the costs of the cross-appellant.
5. The case be remitted to the Tribunal to be heard and decided again consistently with these reasons.
6. Liberty is reserved to the parties to apply within 7 days to vary these orders.
Note:
Background
Background to the litigation
The result is that AMA5 applies. It is next necessary to consider how that conclusion operates in this case. THE FACTS The respondent’s impairment is associated with a lumbar sprain. The Administrative Appeals Tribunal (SM Creyke: [2010] AATA 251) found that it is evidenced by disc bulge and annular tear at the L4/5 level in her spine. Pain and discomfort are experienced in the leg. A factor for consideration is, therefore, that this is a case of an injury to the spine which is manifested through pain in the leg. The Tribunal found that “… aggravation of [the respondent’s] spinal conditions, principally due to [a] work-related incident… caused [the respondent’s] leg condition to become symptomatic”. The Tribunal also found an “absence of evidence of any neurological source in her spine for the pain in [the respondent’s] legs.” SECOND PROBLEM – CHARACTERIZATION OF THE CONDITION The spine is dealt with in Chapter 15 of AMA5. Table 15.3 deals with impairment due to lumbar spine injury and recognises impairment associated with symptoms experienced in the leg. Prima facie this seems to be the assessment standard to be applied. It permits assessment of whether impairment is 10% or more and the exclusion of impairment less than 10%. It is also very closely allied, in its terms, to the table in the Comcare Guide (Table 9.17) which was applied by the Tribunal but which, it is accepted, cannot apply because it does not permit this division. The respondent, however, raises a matter which is said to lead to an alternative and preferable method of assessment. It depends upon characterising the respondent’s relevant condition as a chronic pain condition. The respondent says that clause 12 excludes the application of the AMA guide for most “chronic pain conditions”. The respondent’s submission is that, because cl. 12 excludes the AMA guide, no assessment tool for chronic pain conditions is identified in cases such as the present, where assessment cannot be undertaken in accordance with the Comcare Guide. The proper course, the respondent says, is to refer to the provisions of the Comcare Guide most analogous and appropriate to the respondent’s condition. The provision relied upon is cl. 9.7 and Table 9.7 in Part 1 of Chapter 9 dealing with the lower extremities. It is significant to note that the decision of the Tribunal does not characterise the respondent’s condition at any point as a chronic pain condition. It addresses the condition as a lumbar sprain leading to pain and disability in the leg. The decision does recognise that the respondent undoubtedly experiences chronic pain. In the absence of more specific findings by the Tribunal, however, it would be inappropriate for the Court to deal with the respondent’s condition as a chronic pain condition. The matter would have to be remitted to the Tribunal for that assessment. It is appropriate, however, for the Court to address any questions of law which arise. A question of construction arises as to whether cl. 12 excludes the use of the AMA guide in all respects for chronic pain conditions, or only precludes the use of the provisions of the AMA guide which specifically address chronic pain. SOLUTION
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The present proceeding is one in which it is manifestly appropriate to simply make an order remitting the matter to the Tribunal and to leave it to the President to give such directions as he considers appropriate. To the extent that it may assist the President, it may be observed that there is no apparent reason that would warrant the Tribunal being differently constituted; indeed, there seems to be every reason why the Tribunal should remain as it was originally constituted.CONCLUSIONS It was common ground between the parties that the assessment of Ms Broadhurst’s impairment was to be assessed by reference to Principle 12 of the Comcare Guide and not by reference to either Table 9.7 or Table 9.17. In respect to Principle 12 of the Comcare Guide, for the reasons given, agreement cannot be expressed with the reasoning of the primary Judge. The edition of the American Guide that is to be applied is the fifth, and not the sixth, edition. That was an issue raised in both the Notice of Appeal and the Notice of Cross Appeal. Notwithstanding the terms in which the Notice of Appeal from the decision of the Tribunal was expressed, s 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) confers power upon the Court “in the exercise of its appellate jurisdiction … [to] give such judgment, or make such order, as, in all the circumstances, it thinks fit …”. That power “extends to substituting for the order of the primary judge the order that in our opinion should have been made by him in the exercise of the power conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)”: Bargwanna v Commissioner of Taxation (No 3) [2011] FCAFC 18 at [12] per Dowsett, Kenny and Middleton JJ. The learned primary Judge ordered that the decision of the Tribunal should be set aside. There should be no variation of that order, even though it is concluded that that order should have been made for reasons different to those expressed by His Honour. An appeal to this Court is nevertheless an appeal from a “judgment” and not an appeal from the “reasons” for judgment. It follows that the appeal from the decision of the primary Judge is to be dismissed. A cross-appeal is equally an appeal from “a part of the judgment”: Order 52 r 22 Federal Court Rules 1979 (Cth). It too should be dismissed. The basis upon which the submissions on appeal proceeded should, perhaps, have been most properly raised by a notice of contention which sought an order that the “judgment should be affirmed on grounds other than those relied on by the court below …”: Order 52 r 22(3). But whatever route the issues now resolved should have followed perhaps matters little. The order of the primary Judge setting aside the decision of the Tribunal is not to be varied. An order remitting the matter to be determined in accordance with law is an order requiring the Tribunal to determine the matter in accordance with the reasons of the Court. Such an order would be within the power conferred by s 28(1)(b) – even though the appeal and cross-appeal are to be dismissed.
Ratio Decidendi
Legal Principle Established
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