Comcare v Maida

Case [2002] FCA 1284

FEDERAL COURT OF AUSTRALIA

Comcare Australia (Department of Defence) v Maida

[2002] FCA 1284

WORKERS’ COMPENSATION – permanent impairment – gradual worsening of condition – whether worsened condition is same or different permanent impairment for purposes of awarding lump sum compensation – application of transitional provisions of Safety Rehabilitation and Compensation Act – whether Tribunal failed to consider both the qualitative and quantitative changes in the respondent’s impairment.

Administrative Appeals Tribunal Act 1975 (Cth), s 44
Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 5, 27, 29, 39
Safety Rehabilitation and Compensation Act 1988 (Cth), ss 24, 25, 124, 28, 27, 4, 26

Department of Defence v West (1998) 156 ALR 651 - followed
Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11 – considered
Brennan v Comcare (1994) 50 FCR 555 - discussed
Commissioner for the Safety Rehabilitation and Compensation of Commonwealth Employees v Brennan (1993) 45 FCR 475 - discussed
Comcare v Levett (1995) 131 ALR 645 - discussed
Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390 - discussed

COMCARE AUSTRALIA (DEPARTMENT OF DEFENCE) v GUISEPPE MAIDA

S.131 of 2001

MANSFIELD J
29 OCTOBER 2002
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S.131 OF 2001

BETWEEN:

COMCARE AUSTRALIA (DEPARTMENT OF DEFENCE)
APPLICANT

AND:

GUISEPPE MAIDA
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

29 OCTOBER 2002

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application is allowed.

2.The respondent’s claim is remitted to the Administrative Appeals Tribunal for further hearing and determination in accordance with these reasons for judgment.

3.The Tribunal’s order that the applicant pay the respondent his costs of the application for review of the delegate’s decision be set aside.

4.The issue of costs of the application for review of the delegate’s decision is remitted to the Administrative Appeals Tribunal for reconsideration according to law.

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


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S.131 OF 2001

BETWEEN:

COMCARE AUSTRALIA (DEPARTMENT OF DEFENCE)
APPLICANT

AND:

GUISEPPE MAIDA
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

29 OCTOBER 2002

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an application by way of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (The AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 20 July 2001. It concerns the interaction of the permanent impairment payment or lump sum disability payment provisions of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) and the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) in respect of compensable injury or illness or disease which first occurred before the commencement of the SRC Act.

  2. The Tribunal’s decision concerned an application by the respondent for review of a decision of a review officer of the applicant given on 2 February 2000, affirming a decision of a delegate of the respondent of 23 November 1998.  Those decisions rejected the respondent’s application for a claim…

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AGLC
Comcare v Maida [2002] FCA 1284
Case
[2002] FCA 1284
Decision Date

CaseChat Overview and Summary

Comcare sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) that the respondent, Mr Maida, was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Mr Maida had been diagnosed with schizophrenia in 1988, and the dispute centred on whether his condition constituted a "further or different impairment" for the purposes of s 124(3) of the SRC Act, which would render him ineligible for a lump sum payment of compensation. The AAT found that Mr Maida's condition had deteriorated significantly since 1988, warranting a higher degree of impairment and compensation under the SRC Act. Comcare argued that the Tribunal had erred in its interpretation of the Act, particularly in relation to the concepts of "permanent impairment" and "degree of impairment."

The court considered the meaning and scope of s 124(3) of the SRC Act, as well as relevant authorities, including Department of Defence v West (1998) 156 ALR 651. The court acknowledged the distinction made in West between "gradual worsening" and "deterioration to an extent that it is properly to be characterised as a further or different impairment." The AAT found that Mr Maida's condition had indeed deteriorated in a way that qualified as a further or different impairment under the Act. The court agreed with the AAT's interpretation of the evidence and found that the Tribunal had not erred in its application of the law.

The court allowed Comcare's application for judicial review and remitted Mr Maida's claim to the AAT for further hearing and determination in accordance with the reasons for judgment. The court set aside the Tribunal's order that Comcare pay Mr Maida's costs of the application for review of the delegate's decision and remitted the issue of costs back to the AAT for reconsideration according to law.

Orders

Orders of the court

1. The application is allowed.

2. The respondent’s claim is remitted to the Administrative Appeals Tribunal for further hearing and determination in accordance with these reasons for judgment.

3. The Tribunal’s order that the applicant pay the respondent his costs of the application for review of the delegate’s decision be set aside.

4. The issue of costs of the application for review of the delegate’s decision is remitted to the Administrative Appeals Tribunal for reconsideration according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J
The applicant’s contention is that the respondent was not entitled to compensation under s 24 of the SRC Act because s 124(3) expressly provided that he would not be entitled to such compensation in respect of permanent impairment if, relevantly, the impairment “occurred before” 1 December 1988 and under the 1971 Act he was not entitled to receive compensation of a lump sum in respect of that impairment. The case therefore turned upon whether his claim for compensation under s 24 of the SRC Act was in respect of an impairment that had occurred prior to 1 December 1988 because it was accepted that the 1971 Act it did not provide lump sum compensation for psychological impairment.THE TRIBUNAL’S DECISION Before the Tribunal, apart from the evidence of the respondent, evidence was given by a number of medical practitioners. The Tribunal referred generally to that medical evidence. Its findings include the following:“the Tribunal finds that the applicant had schizophrenia from April 1988. It further finds that the condition of schizophrenia suffered by the applicant in April 1988 is the same condition from which he has continued to suffer.Dr Ding and Professor Goldney both expressed the opinion that the applicant’s condition could be said to be permanent (at least partially) prior to December 1988. Taking into account the evidence before it, the Tribunal accepts this proposition, and so finds that the applicant’s condition of schizophrenia could be said to be permanent prior to December 1988.”It thus expressly found that the applicant had a permanent schizophrenic condition prior to 1 December 1988, and that a permanent impairment flowing from his condition arose prior to 1 December 1988. Section 28 of the SRC Act provided for the applicant to prepare a written document to be called “Guide to the Assessment of the Degree of Permanent Impairment” setting out inter alia criteria by which degree of permanent impairment is to be determined. The Tribunal concluded that, as at the end of November 1988, the “appropriate impairment rating for the applicant pursuant to Table 5.1 of the Guide” was 10%. The Tribunal then addressed the evidence about deterioration in the condition of the applicant since 1 December 1988. It concluded on the evidence that, at the time of its determination, it was reasonable to conclude that the applicant needs supervision in the activities of daily living. The consequence of that finding, in practical terms, is that it concluded in accordance with Table 5.1 of the Guide that the respondent’s condition had deteriorated since 1988 to a 30% current impairment. It therefore determined that the respondent was entitled to a lump sum payment of compensation under ss 24 and 27 of the SRC Act, and remitted the matter to the respondent for the calculation of the compensation payable. The Tribunal then considered authorities as to how s 124(3)(b) of the SRC Act should be interpreted, including Department of Defence v West (1998) 156 ALR 651 (West). It concluded:“West draws a distinction between ‘gradual worsening’ and ‘deterioration to an extent that it is properly to be characterised as a further or different impairment’. The difficulty presented in the present application is that the very nature of the condition is such that, unfortunately, a gradual deterioration of the condition is not uncommon. It is not akin to a person with an arm problem whose arm eventually falls off one day (to use a facetious example). It cannot be the intention of the legislature, or indeed of the majority in West, however, to exclude from consideration the type of psychiatric condition that manifests as in the present application, simply because a deterioration of the condition is hard to pin down as to the precise dates of change. What remains required by West is the qualitative and quantitative analysis of the evidence.”The Tribunal’s reasoning is then revealed in the following passage:“The Tribunal has found above that the applicant’s condition has progressed from a 10% impairment pursuant to Table 5.1 of the Guide in 1988 to a 30% current impairment. Over this period of time, his level of impairment has increased by four increments according to the Table 5.1 levels, or deteriorated by some 20%. Such a change of itself, must be marked as significant alteration. Further, Dr Davis and Professor Goldney speculated that he might well currently have between a 30-40% impairment. In oral evidence, the Tribunal heard about the significant lifestyle and relationship effects resulting from the applicant’s condition. As difficult as it was to elicit precise information from the applicant, the distinct impression remains that the impairment has a more serious impact now than in 1988, or for example, in 1991 when he was able to sustain a relationship. In 1995 he attempted to move out of home, and not being successful in this attempt, it does not appear that things have improved, certainly not in terms of the effects of the impairment, or in the nature of the impairment itself.Taking into account all of the evidence before it, the Tribunal is satisfied, and so finds, that, as a matter of fact, noting both the qualitative and quantitative aspects, the applicant’s deterioration is such that it is properly characterised as a further or different impairment at the current time. There is a substantial increase in the level of impairment, and a distinct qualitative difference, in terms of the effect of the impairment upon the applicant.”THE CONTENTION OF THE APPLICANT

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

The applicant contends that the Tribunal erred in law in its consideration of the claim. It points to the findings that the respondent’s impairment from schizophrenia occurred prior to 1 December 1988 and was then found to be “permanent”. Consequently, on its face, there is no entitlement to receive a lump sum under s 24 of the SRC Act, because in respect of that impairment there was no entitlement to receive a lump sum payment of compensation under s 39 of the 1971 Act: s 124(3) of the SRC Act. It points out that the Tribunal specifically found that there was no change in the underlying patho-physiological condition of schizophrenia suffered by the respondent, as it remained from April 1988 until July 2001 (the time of the Tribunal’s decision), but simply a gradual deterioration in the degree of impairment. There is, it contends, a difference between the concepts of “permanent impairment” and of “degree of impairment” under the SRC Act. Whilst the substantial worsening of the respondent’s condition or level of impairment amounts to a change in the degree of impairment from his condition, the applicant contends that it does not give rise to a separate liability on its part to pay compensation under s 24 of the SRC Act because it does not constitute a “new impairment” under s 24 of that Act.CONSIDERATION The parties referred extensively to decisions concerning the meaning and scope of s 124(3) of the Act. In the result, senior counsel for both parties accepted that the views of Merkel J (with whom O’Connor J agreed) in West correctly state the law as to the meaning and proper application of s 124(3) and s 24 of the SRC Act. The contentions, in my judgment, ultimately boiled down to the proper understanding of the Tribunal’s findings and whether it applied those findings in the circumstances in accordance with West. In West, the expression “a permanent impairment” in s 24(3) of the SRC Act was accepted as meaning the same as “a permanent impairment” in s 24(1) of the Act. The definition of “impairment” in s 4 of the SRC Act is defined as follows:“ ‘impairment’ 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 to mean likely to continue indefinitely. Senior counsel for the applicant contended that the concept of “a permanent impairment” in s 24(1), and as described in s 24(2), is a different concept from that of the degree of permanent impairment upon which the entitlement to a lump sum payment of compensation under s 24 or s 25 arises. It is clear that that is so. The distinction was first recognised in Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11. In that case the appellant had been diagnosed as having mesothelioma in November 1988, before the commencement of the SRC Act. As in the present matter, there was no provision for lump sum payment of compensation in respect of mesothelioma under the 1971 Act. The Court (Pincus, Foster and Hill JJ) decided in the circumstances that the appellant was not entitled to compensation under ss 24 and 25 of the SRC Act in respect of his permanent impairment, because it existed before the commencement of the SRC Act. It was argued on behalf of the appellant in that case that, although the appellant had only one disease and therefore only one “injury” as defined in s 4(1) of the SRC Act, because the degree of impairment consequent upon that injury had substantially worsened after the commencement of the SRC Act, that worsening itself constituted a fresh permanent impairment within the meaning of s 124(3) after the commencement of the SRC Act. The Court rejected that proposition. It said:“If the contention of [sic] behalf of the applicant is correct, then each time an impairment worsens significantly, there is a new impairment within the meaning of the 1988 Act. We cannot read the relevant provisions in this way. The scheme of the Act, in particular of ss 24 and 25, is not that as a disease progresses, the aggravation of its consequences constitutes a series of new impairments, each giving rise to a separate liability to pay compensation. If that were so, then small increments of aggravation of the impairment would not be compensable at all; for under s 24(7) there is no right to compensation if the degree of permanent impairment is determined to be less than 10 per cent. As an impairment worsens, further rights to compensation may accrue under s 25, but not because there is another distinct impairment.To achieve the result that a variation (substantial or otherwise) of the degree of impairment should be treated as a new impairment for the purposes of s 124(3), different language would have been necessary. The natural reading of ‘impairment … that occurred before the commencement date’ is such as to cover the case in which there is but a single impairment, which came into existence before the commencing date and thereafter fluctuated in intensity but generally worsened.The consequence is that the applicant is not entitled to compensation under ss 24 and 25 of the 1988 Act in respect of his permanent impairment, because it occurred, that is, came into existence, before the commencing date.”