Comcare v O'Brien, Nikki
[1997] FCA 1283
•9 SEPTEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA )
) AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) No ACT G26 of 1997
)) GENERAL DIVISION )
BETWEEN: COMCARE
ApplicantAND: NIKKI O'BRIEN
Respondent
JUDGE: FINN J PLACE: CANBERRA DATED: 9 SEPTEMBER 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be allowed.
The matter be adjourned for submissions as to orders.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) No ACT G26 of 1997
)) GENERAL DIVISION )
BETWEEN: COMCARE
ApplicantAND: NIKKI O'BRIEN
Respondent
JUDGE: FINN J PLACE: CANBERRA DATED: 9 SEPTEMBER 1997
REASONS FOR JUDGMENT
This is an unusual appeal from the Administrative Appeals Tribunal (“the Tribunal”). Both the applicant, Comcare, and the respondent, Ms O’Brien, agree that the Tribunal reached its decision on a basis quite distinct from that agitated before it by the parties. While the respondent has not sought expressly to disavow the Tribunal’s Reasons for Decision, her counsel has not sought to defend them though he did has submit that the Tribunal’s decision was, ultimately, the correct one. As will become apparent, my own view is that whatever claim Ms O’Brien may have against Comcare as a result of the events which occurred, the one that has led to this Court is quite misconceived.
Factual Setting
Ms O’Brien was a claimant against Comcare under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). It is agreed that she had an accepted claim in respect of an injury suffered in September 1989. In July 1994 she consulted her solicitors for advice as to her entitlements under the SRC Act. She was informed by them (inter alia) that she could make an application for permanent impairment in respect of her injuries but that to be eligible to take this course she “would need to show that [she] had suffered a 10% impairment based on the Comcare tables”. The letter of 15 July 1994 containing the advice also indicated that:
“For the purposes of pursuing this question we have arranged a review appointment for you to see Dr Corry at his rooms.”
Dr Corry was one of the medical practitioners who had previously treated Ms O’Brien.
That appointment was made for, and met on, 10 October 1994. Dr Corry was not provided with a briefing letter prior to the appointment though it is apparent from his clinical notes that he was aware that the appointment was arranged by Ms O’Brien’s solicitors and that she need an “impairment figure”.
On 4 November 1994 the solicitors wrote to Dr Corry in terms, insofar as presently relevant, that:
“We thank you for seeing our client, Ms O’Brien, on 10 October 1994 and apologise for not forwarding a letter to you sooner in relation to this matter.
...
[W]e believe that our client continues to suffer from a permanent impairment to her arm and we would be grateful if you would provide us with a report outlining:-
1. A history of the matter as you know it.
2. A description of our client’s injuries and disabilities.
3. Your opinion as to whether or not any further treatment is necessary.
4. Your opinion as to whether or not our client’s condition has stabilised.
5.Your opinion as to whether our client has suffered permanent impairment as a result of her condition. If so, using the Comcare tables, please provide us with an assessment of percentage loss of function in respect of her right arm and shoulder.
6.Your opinion as to the effect our client’s condition will have upon her working capacity.
7. Your prognosis.
We enclose our client’s signed authority allowing you to release the information requested to us and undertake to pay your reasonable costs in providing the report.”
Dr Corry provided this report in a letter dated 12 December. It addressed the matters referred to in the letter. The report, while expressing a view of loss of function, did not do so on the basis of the Comcare tables. Dr Corry gave a reason for this. I would note that in the report he indicated at the outset that:
“I did indeed examine Ms O’Brien on 10 October 1994 but I was unclear at the time as to the reasons for your request for examination.”
He rendered an account for that report and the prior appointment in the sum of $350.00. This was paid by Ms O’Brien’s solicitors on 21 January 1995.
By letter of 2 June 1995, the solicitors asked Dr Corry both to provide an assessment of percentage loss using the Comcare tables and to complete Part C of Comcare’s claim form entitled “Compensation Claim for Permanent Injury”. This he did. He returned this form to the solicitors with an account for $50.00.
Comcare, having referred Ms O’Brien to another doctor for an assessment, later determined that she had suffered a permanent impairment. She elected to receive compensation for this under the SRC Act.
In February 1996, the solicitors requested Comcare to reimburse them the $400.00 referable to Dr Corry’s accounts. Both Comcare and then an Independent Review Officer (IRO) having determined there was no obligation to reimburse, Ms O’Brien sought a review by the Tribunal of the IRO decision.
The only oral evidence given to the Tribunal as to Ms O’Brien’s purpose in attending on Dr Corry was that of Mr Redpath, her solicitor. The burden of his evidence is captured in the following two questions and answers:
“Would it be fair to say that the true purpose of obtaining Dr Corry’s opinion was to decide whether or not the applicant ought to pursue her proceedings at common law or whether she ought to put in a claim for compensation for permanent impairment? --- No, the true purpose of the proceedings was to assess whether she had suffered a permanent impairment of 10 per cent and was thus eligible to make a claim.
...
All right, so then would it be fair to say that what you were doing was exploring whether the applicant had any prospects in submitting a permanent impairment application? Would it be worth their while to get submit one? --- What we were doing was getting a medical report in order to assess whether they had a 10 per cent impairment. If Dr Corry had come back and said “Miss O’Brien has 5 per cent impairment” we would have said to her “You don’t meet the criteria for - for Comcare, namely that you have to have a 10 per cent impairment. There is no point putting it in.” But the purpose of assessing was whether she had 10 percent, which is ultimately a medical question. It’s not a question I can answer.”
The one additional matter to which it is necessary to refer is the claim form mentioned above. Formal headings apart, its first page began with the following information:
“Filling in this form:
This form must be completed if you wish to claim compensation for permanent injury and non-economic loss. COMCARE has completed Part A.
About Part B:
You must answer all the questions in this part.
About Part C:
Arrange for your treating doctor to complete this part.
(It would be advisable for you to make an appointment with your doctor for this purpose. The reasonable cost of the consultation and completion of the form by the doctor will be met by COMCARE).”
Part C of the form which the claimant’s doctor was to complete stated immediately below its heading that:
“Note: The cost of providing this report will be met by Comcare.”
The Part itself then asked a number of questions requiring by way of answer either a “tick the box” or a short statement of medical opinion. The questions themselves so far as they went were obviously related to the matter to which Comcare was required to have regard in making its decision under s24 of the SRC Act as to whether the impairment in question was permanent.
The issue before the Tribunal was whether the expenses incurred in meeting Dr Corry’s accounts were for “medical treatment” and hence were recoverable from Comcare under the SRC Act. Before briefly noting the Tribunal’s decision I should refer to such provisions of the statute as have some bearing on this matter.
The Statutory Setting
Section 4, the interpretation section, provides insofar as presently relevant that:
“‘medical treatment’ means:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner;”
“Compensation in respect of medical expenses etc.
16.(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
“Compensation for injuries resulting in permanent impairment
24.(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.”
“Powers
70. Comcare has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.”
The Tribunal’s Decision
The Tribunal concluded that the cost of Dr Corry’s report was “the cost of medical treatment obtained in relation to [Ms O’Brien’s] injury” for the purposes of s16(1) of the SRC Act. The reasoning which led to that conclusion, as I understand it, is that the purpose of the report not only was to provide what I will call a “medico-legal” report so as to assess whether she could make a permanent impairment claim under s24, but also was to provide medical treatment in the sense that in answering the solicitors’ questions Dr Corry gave advice on the management of her treatment.
The Tribunal reached this, somewhat startling conclusion by way of an inference drawn from an examination of the documents before it and which I have already noted. I do not pause to examine whether they were, standing alone, capable of supporting any such inference. The applicant has submitted with quite some justice that at best they give rise to speculation and conjecture: see Holloway v McFeeters (1956) 94 CLR 470 at 480-481. It is clear that, far from the matter being one in which it was necessary or appropriate to resort to inference, there was direct evidence given by Ms O’Brien’s solicitors as to the purpose of the report evidence with which the solicitor’s letter (relied upon by the Tribunal) is wholly consistent.
I have set out above the essence of Mr Redpath’s evidence: the purpose of the report related to assessing whether a s24 claim could be made, and no other. It was not related to obtaining medical treatment. The Tribunal did not in any way refer to Mr Redpath’s evidence in its reasons notwithstanding it clearly was a consideration relevant to the issue to be determined. It was a consideration, furthermore, of which account was required to be taken in the circumstances: cf Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 ff. Absent rejection of Mr Redpath’s evidence, the circumstances did not exist which would have justified resort to inference that was made.
There was here an error of law. It can be expressed in a variety of ways. It is sufficient presently to say that there was a failure to have regard to a consideration of which the Tribunal was required to take account.
This conclusion does not end the matter in that the respondent has submitted that the Tribunal reached the correct result, albeit for the wrong reason.
The Respondent’s Submission
The submission aggregates a number of considerations against the backdrop of a definition of medical treatment that is itself circular - ie “medical treatment is medical treatment”; but cf Thiele v Commonwealth of Australia (1980) 22 FCR 342. Given that (i) the expenses of the consultation and of the Part C report are ones that the standard claim form for compensation for permanent injury advises/requires claimants to incur; (ii) the Part C report (hence any consultation leading to it) relates to matters of diagnosis and prognosis, as s24 of the SRC Act itself envisages; and (iii) the expenses themselves are clearly “medical expenses” (cf the heading of s16 of the SRC Act), and ones incurred while the doctor is doing “the usual things doctors do” when asked to provide treatment - then, in the setting of this Act, these expenses ought be regarded as ones for “medical treatment” for s16(1) purposes.
There is, in my view, a short answer to this. It is clear that the claim form indicates that, for the purposes of its Part C, “the reasonable cost of the consultation and completion of the form by the doctor will be met by Comcare”. This obligation to pay “the reasonable cost” can properly be said to have been so undertaken, not because it relates to a s16(1) medical expense, but it was a “necessary or convenient” thing for Comcare to do in connection with the performance of its function under s24 of the SRC Act: see s70 of the SRC Act. In other words the scheme of the Act itself provided a mechanism for s24 claimants to be reimbursed for the “reasonable costs” incurred in taking the required or advised steps necessary to make a permanent injury claim. That mechanism did not necessitate those steps being described as “medical treatment”. Likewise s16(1) was not needed to source the obligation to reimburse. The promise to pay was sustained by s70 of the SRC Act.
If, as here, there was to be a dispute about the quantum of the reimbursement to be made for a Part C consultation and report - and Comcare has not denied that it is obliged to make some appropriate level of reimbursement to Ms O’Brien for those costs - the remedy for this lies elsewhere than in proceedings such as led to this appeal. In particular it does not lie in torturing the words “medical treatment” to secure the attainment of an end that can be achieved, consistently with the provisions of the Act, by other means and with more appropriate justification.
The appeal will be allowed. The parties have requested the opportunity to make submissions as to the appropriate orders to be made in light of these reasons. I adjourn this matter for submissions on such orders.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn
Associate:
Dated: 9 September 1997
Counsel for the Applicant: T Howe Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: H Selby Solicitor for the Respondent: Gary Robb and Associates Dates of Hearing: 4 September 1997
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