Comcare v Moon

Case [2003] FCA 569

FEDERAL COURT OF AUSTRALIA

Comcare v Moon [2003] FCA 569

Administrative Appeals Tribunal Act 1975 (Cth) s 25, 29, 33, 37, 39, 42, 43
Safety, Rehabilitation & Compensation Act 1988 (Cth) ss 4, 14, 24, 27, 28, 64, 67

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 referred to
Lees v Comcare [1999] FCA 753 followed
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 referred to
Willcocks v Comcare [2001] FCA 1315 referred to
Comcare v Amorebieta (1996) 66 FCR 83 explained
Comcare v Fiedler [2001] FCA 1810 referred to
Whittaker v Comcare (1998) 28 AAR 55 referred to
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 referred to
Telstra Corporation Ltd v Barrow (1994) 19 AAR 523 followed
Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 referred to
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18; [2001] FCA 73
Community and Public Sector Union v Telstra Corporation Ltd (No.2) (2000) 101 FCR 45; [2000] FCA 872 applied
Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789 applied
Ridge v Baldwin (1964) AC 40 applied
Semunigus v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 applied

X v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 319 referred to

Re Rebeiro and Comcar (1996) 44 ALD 632 followed

John v Rees [1970] Ch 345 cited

Comcare v Forbutt [2000] FCA 837 cited

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1; [2001] HCA 30 cited

COMCARE v JASON CHARLES MOON

D 11 of 2002

MANSFIELD J
6 JUNE 2003
ADELAIDE (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D 11 OF 2002

BETWEEN:

COMCARE
APPLICANT

AND:

JASON CHARLES MOON
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

6 JUNE 2003

WHERE MADE:

ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1.        The application is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D 11 OF 2002

BETWEEN:

COMCARE
APPLICANT

AND:

JASON CHARLES MOON
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

6 JUNE 2003

PLACE:

ADELAIDE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

  1. This is an application by way of appeal on a matter of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Administrative Appeals Tribunal (the Tribunal) on 23 April 2002 set aside a decision of a delegate of the applicant (Comcare) made on 3 January 2001 rejecting the application of the respondent (Mr Moon) for a payment for permanent impairment in respect of a work caused injury made under the Safety, Rehabilitation & Compensation Act 1988 (Cth) (the SRC Act).  Comcare’s delegate had affirmed an earlier decision made on…

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AGLC
Comcare v Moon [2003] FCA 569
Case
[2003] FCA 569
Decision Date

CaseChat Overview and Summary

The case of Comcare v Moon involves an appeal by Comcare against a decision of the Administrative Appeals Tribunal (the Tribunal) that set aside a decision of a delegate of Comcare rejecting Mr Moon's application for a payment for permanent impairment due to a work-related injury. The Tribunal had determined that Mr Moon had a service-related permanent impairment of 10% under the "Guide to the Assessment of the Degree of Permanent Impairment" published by Comcare in accordance with the Safety, Rehabilitation & Compensation Act 1988 (Cth). The Tribunal directed Comcare to pay Mr Moon's costs. The primary facts are not in dispute, with Mr Moon having developed chronic anterior compartment syndrome in both legs after prolonged military activities. Despite several unsuccessful surgeries, his condition remained unimproved, and he was diagnosed with a permanent impairment. Comcare had initially accepted the condition as service-related but later rejected the claim for permanent impairment payment, determining that the impairment was less than 10%. The Tribunal reviewed and overturned this decision, finding that Mr Moon had a 10% permanent impairment.

The legal issues before the court pertained to whether the Tribunal had the authority to review the decision of Comcare from 12 April 1999, which accepted the injury as service-related, and whether the Tribunal had correctly interpreted the Guide in determining the level of Mr Moon's permanent impairment. Comcare argued that the Tribunal had no jurisdiction to review the earlier decision and that the Tribunal erred in its interpretation of the Guide. The court examined the scope of the Tribunal's powers under the Administrative Appeals Tribunal Act 1975 (Cth) and the Safety, Rehabilitation & Compensation Act 1988 (Cth). The court found that the Tribunal was only empowered to review the decision of 3 January 2001 and did not have the jurisdiction to revisit the decision of 12 April 1999. However, even if the Tribunal had jurisdiction, it did not make an error in its analysis of the Guide. The court concluded that the Tribunal's interpretation of the Guide in determining the level of Mr Moon's impairment was correct.

The court dismissed the appeal, holding that the Tribunal's decision was legally sound and within its jurisdiction. The court found that the Tribunal did not err in determining that Mr Moon had a service-related injury and correctly assessed his permanent impairment at 10%. The appeal was dismissed, and the Tribunal's decision to award Mr Moon compensation for his permanent impairment was upheld. The final order was that the application be dismissed.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

This is an application by way of appeal on a matter of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Administrative Appeals Tribunal (the Tribunal) on 23 April 2002 set aside a decision of a delegate of the applicant (Comcare) made on 3 January 2001 rejecting the application of the respondent (Mr Moon) for a payment for permanent impairment in respect of a work caused injury made under the Safety, Rehabilitation & Compensation Act 1988 (Cth) (the SRC Act). Comcare’s delegate had affirmed an earlier decision made on 17 July 2000. The Tribunal determined that Mr Moon has a service-related permanent impairment of 10 per cent pursuant to the “Guide to the Assessment of the Degree of Permanent Impairment” (the Guide) published by Comcare in accordance with s 28 of the SRC Act. It directed Comcare to pay Mr Moon’s costs.the facts The primary facts are not contentious. Mr Moon was born on 4 August 1973. He joined the Australian Defence Force in 1989. In 1992, as the Tribunal found, he began to develop pain in his lower legs after marching and after other activities in which he was required to run or walk long distances at reasonable speed. By 1995, the pain in his lower legs had become worse on marching, walking and running, and it further deteriorated. In 1996 he was diagnosed as having chronic anterior compartment syndrome in both legs. He had operations on both legs to relieve the pressure, but each was unsuccessful. He developed an infection in one leg at a later stage, and was again hospitalised. The infection resolved but during the further period of hospitalisation during 1997 he had yet a further operation on one of his legs. Following that treatment, Mr Moon continued to have trouble with heavy lifting. It caused pain and swelling in his legs. He had trouble going up and down stairs. He developed pains in his legs. He had problems with the usual things that people in the army have to do, like marching long distances. He developed pain after such activities, which sometimes took a day or so to go away. He made a claim for compensation in respect of the condition from which he was suffering. On 12 April 1999, a delegate of Comcare determined that he had suffered or contracted a disease to which his military service had contributed in a material way, namely bilateral anterior compartment syndrome (the condition). The delegate further determined that, for the purposes of the SRC Act, the date of the injury was 21 June 1993, that being the date upon which Mr Moon first sought medical treatment for the condition. On 29 April 1999, Mr Moon first claimed a lump sum for permanent impairment resulting from the condition. The claim was initially declined as it was considered the condition was not then stabilised. Mr Moon revived that claim for a permanent impairment payment on 17 April 2000. It was the claim of 17 April 2000 which led to the decisions of 17 June 2000, and then 3 January 2001, the latter of which was the subject of review by the Tribunal.the legislation

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J
I note also that compensation for non-economic loss may be payable under s 27 of the SRC Act in the event that an injury to an employee has resulted in a permanent impairment, and compensation is payable in respect of the injury under s 24.the course of the decisions When Mr Moon revived his claim for a permanent impairment payment on 17 April 2000, he was examined by a Dr Homolka at the Larrakeyah Barracks in Darwin. The doctor identified his impairment as ‘acute lower leg pain – pain’. On 21 June 2000 Dr Homolka provided a report to Comcare. It confirmed that he suffered from the condition from 1993, and stated the condition had by then stabilised. Further surgery was said not to be likely to produce further improvement, and was not recommended. It raised the prospect of discharge on medical grounds. In fact, Mr Moon ceased his employment with the army in June 2001. In answer to specific questions Dr Homolka said that Mr Moon suffered a permanent impairment as a result of the condition, which would almost certainly continue indefinitely, and probably for the remainder of his life. He then said:‘In my opinion, Cpl Moon’s impairment is stable and permanent. However, utilising guide table 9.5, it must be assessed at 0% since no provision is being made for restriction of activities due to precipitation of severe pain.’She noted that at that time Mr Moon did not complain of difficulties with grades, steps and distances, but rather of precipitation of severe pain following such activities. It was in the light of that medical report that, on 17 July 2000, a delegate of Comcare determined that no permanent impairment payment should be made because the impairment was less than 10 per cent, and s 24(7) dictated that no impairment payment should be made if the permanent impairment were less than 10 per cent. On 11 August 2000, solicitors for Mr Moon requested reconsideration of that decision. It is the reconsideration of the decision on 3 January 2001 which gave rise to the matter before the Tribunal. The reasons for the decision given on 3 January 2001, after noting that liability for the condition had been accepted on 12 April 1999, referred to the report of Dr Homolka and then continued:‘You will note that the terms of Table 9.5 refer to difficulty with grades and steps (10% criterion) or difficulty with grades, steps and distances (20% criterion). On the current evidence I cannot find that your client has difficulty with grades and steps such as to warrant a finding under Table 9.5. It is true that he may suffer from pain and/or soreness after engaging in physical activities, but as your client’s condition is not contemporaneous with walking, it is my opinion that he currently does not fit the criteria required to establish a 10% finding under Table 9.5. It is, however, accepted that your client’s condition may deteriorate in the future such as to justify a finding under Table 9.5, but based on current medical evidence, I believe that any such finding is premature. In the event that the condition does deteriorate, your client can request a reassessment.’

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Finally, Comcare contended that the Tribunal failed to provide reasons for its decision as required by s 43(2) of the AAT Act, because it failed to consider (or to indicate why it did not accept) the contention of Comcare about the objective nature of the criteria specified in Table 9.5 of the Guide and about the asserted irrelevance of pain to the question of the level of his permanent impairment.consideration The question whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356. So too is there an error of law in the drawing of an inference in the absence of evidence which could support the inference: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 481. The first class of the applicant’s contentions will therefore, if made out, entitle the Court to set aside the Tribunal’s decision under s 44 of the AAT Act. It is necessary to deal first with the matter raised by the grounds of appeal of Comcare. It is the first of the findings said by Comcare not to be supported by evidence, namely that Mr Moon sustained a work related injury. The issue is also the subject of the cross-contention of Mr Moon. In my view, the Tribunal did not purport to revisit the decision of 12 April 1999 that the respondent suffered the condition, namely bilateral anterior compartment syndrome, on 21 June 1993 to which his military service had contributed in a material way. The Tribunal needed to address in some detail the nature and extent of the compensatable injury to address the contentions of Comcare that Mr Moon had no permanent disability as a result of the condition, even though activity may have led to him experiencing pain. It was part of Comcare’s case that pain of itself, unless it led to some physical restriction during the activity, could not be a matter relevant to the existence of impairment under the SRC Act. The Tribunal’s analysis of Dr Lugg’s evidence to understand the aetiology of the condition and its relationship to Mr Moon’s army service must be understood as being in that context. If the Tribunal did address whether Mr Moon had in fact suffered a work related injury by reason of the condition, in my view it was in error in doing so. If I am wrong about why the Tribunal addressed the nature and extent of the injury, so that it did entertain the first argument of Comcare referred to in [21], I do not consider it was empowered to do so. It is entitled to review certain decisions under s 25 of the AAT Act and s 64 of the SRC Act. Both the decision of 12 April 1999 and the decision of 3 January 2001 were reviewable decisions. No application for review of the decision of 12 April 1999 was made by Mr Moon in accordance with s 29 of the AAT Act. The application for review before the Tribunal was in respect of the decision of 3 January 2001. As noted earlier, the decision of 3 January 2001 was in respect of the renewed application for compensation for permanent impairment was made on 17 April 2000. In that part of the form completed by Mr Moon, it described the ‘Accepted Condition’ as the condition. The medical officer responded affirmatively to the question whether the condition then suffered by Mr Moon was related to the ‘Accepted Condition’. Dr Homolka was asked by Comcare to assess the degree of permanent impairment as a result of the condition Mr Moon suffered at work on Monday, 21 January 1993”. The documents lodged by Comcare pursuant to s 37 of the AAT Act were those relating to the decision of 3 January 2001. The statement dated 2 March 2001 pursuant to s 37 of the AAT Act described the reviewable decision as the decision of 3 January 2001 affirming that Comcare is not liable to pay to Mr Moon lump sum compensation for permanent impairment in respect of the condition. It recited as part of the ‘background’ the decision of 12 April 1999 accepting Mr Moon suffered injury arising out of or in the course of his military service, namely the condition, which for the purposes of the SRC Act was suffered on 21 June 1993. It did not suggest the decision of 12 April 1999 was under review. It identified the letter of 3 January 2001 as containing the reasons for the reviewable decision.