Corby v Comcare

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FEDERAL COURT OF AUSTRALIA

Corby v Comcare [2015] FCA 1124

Citation: Corby v Comcare [2015] FCA 1124
Appeal from: Corby v Comcare [2015] AATA 42
Parties: JULIANA CORBY v COMCARE
File number: SAD 31 of 2015
Judge: WHITE J
Date of judgment: 22 October 2015
Catchwords: COMPENSATION – Appeal from Administrative Appeals Tribunal – Commonwealth employees – Whether claimed conditions significantly contributed to by employment – Whether applicant suffered an aggravation of her condition – Whether any aggravation resulted in incapacity or impairment – Decision under review affirmed
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 28
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7, 14
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Casarotto v Australian Postal Corporation [1989] FCA 116; (1989) 86 ALR 399
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123; (1988) 79 ALR 267
Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR 178
Date of hearing: 2 June 2015
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 66
Counsel for the Applicant: Mr J White
Solicitor for the Applicant: Wallmans Lawyers
Counsel for the Respondent: Ms G Walker
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 31 of 2015
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

JULIANA CORBY
Applicant
AND:

COMCARE
Respondent

JUDGE:

WHITE J

DATE OF ORDER:

22 OCTOBER 2015

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 31 of 2015
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

JULIANA CORBY
Applicant
AND:

COMCARE
Respondent

JUDGE:

WHITE J

DATE:

22 OCTOBER 2015

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. When the Administrative Appeals Tribunal (the Tribunal) carries out a “review” of a decision under s 28 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), it is required to consider and address each serious submission advanced by an applicant on the evidence before it. The failure of the Tribunal to consider a submission of substance which, if accepted, is capable of affecting the outcome of the case is an error of law: Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, (2013) 240 IR 178 at [47]‑[48]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 75 ALD 630 at [45]; Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123 at [21], (1988) 79 ALR 267 at 276‑7; Casarotto v Australian Postal Corporation [1989] FCA 116, (1989) 86 ALR 399 at 403.

  2. The principal issue on this appeal is…

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Details
Case
[2015] FCA 1124
Decision Date

CaseChat Overview and Summary

In this appeal, Corby sought review of decisions of Comcare refusing her claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Corby had been employed by the Australian Taxation Office (ATO) between August 2005 and 2011, during which time she suffered from fibromyalgia and chronic fatigue syndrome (CFS). She claimed that her employment with the ATO significantly contributed to her developing these conditions, or at least to an aggravation of them, and that this resulted in incapacity or impairment for which she was entitled to compensation. Comcare rejected her claims and, after reconsideration, the Tribunal affirmed Comcare’s decisions. Corby appealed to the Court.

The central issue on appeal was whether the Tribunal had erred in affirming Comcare’s decisions. The Court noted that the terms "exacerbation" and "aggravation" had been used interchangeably by Corby’s counsel. The Court examined the applicant’s final submissions to the Tribunal, which identified four bases on which her employment with the ATO had allegedly contributed significantly to her fibromyalgia and CFS, or to an aggravation of those conditions. These were: (1) the introduction of Dialler in August 2007 caused distress at work, leading to the development of her fibromyalgia and CFS; (2) the applicant acquired an infection at work, which infection caused the development of fibromyalgia and CFS; (3) the applicant acquired a viral infection outside of work and she returned to work too soon, which led to an increase in her symptomatology, resulting in the development of fibromyalgia and CFS; and (4) the work-related emotional distress experienced by the applicant since July 2008 exacerbated her fibromyalgia and CFS, irrespective of what may have caused the initial development of such conditions. The Court found that the Tribunal had not addressed these submissions in its reasons. However, the Court held that this was not a material error. The Tribunal had found that the applicant had suffered from fibromyalgia from at least March 2009 and from CFS from at least June 2009, but it was not satisfied that the applicant’s employment had contributed to the development of those conditions to a significant degree. This finding was sufficient by itself for the Tribunal to affirm Comcare’s decisions.

The Court held that the Tribunal had not erred in affirming Comcare’s decisions. The Court dismissed Corby’s appeal and affirmed the Tribunal’s decisions.

Orders

Orders of the court

1. The appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The principal issue on this appeal is whether the Tribunal made an error of this kind when affirming decisions of Comcare refusing claims by the applicant for compensation. Background Between August 2005 and 29 November 2011, the applicant was employed in the Australian Taxation Office (ATO). The applicant suffered from ill health and, from about mid‑2008, her health began to deteriorate significantly. In 2009, two separate medical diagnoses were made in respect of the applicant: fibromyalgia in March 2009 and chronic fatigue syndrome (CFS) in June 2009. The evidence before the Tribunal suggested that there was a close overlap between these two conditions. On 21 September 2010, the applicant made a claim for compensation for the conditions of “chronic fibromyalgia, CFS and stress”. On 26 July 2011, she made a further claim for compensation in respect of “cold and/or pneumonia”. Comcare denied both claims, both initially and on reconsideration. By separate applications lodged on 4 May 2011 and 6 January 2012 respectively, the applicant sought review by the Tribunal of those decisions. Statutory provisions The base entitlement to compensation is established by s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act):(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Thus, the entitlement to compensation turns on the employee having suffered an “injury”. The term “injury” is defined in s 5A(1) of the SRC Act to include “a disease suffered by an employee”. The full definition is as follows:injury means:(a) a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. Of the alternative meanings of “injury”, only (a) includes a “disease”. That term is defined in s 5B:(1) In this Act:disease means:(a) an ailment suffered by an employee; or(b) an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:(a) the duration of the employment;(b) the nature of, and particular tasks involved in, the employment;(c) any predisposition of the employee to the ailment or aggravation;(d) any activities of the employee not related to the employment;(e) any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account.(3) In this Act:significant degree means a degree that is substantially more than material.As can be seen, the term disease means an “ailment” suffered by the employee, or the aggravation of such an ailment, if the employee’s employment contributed to it to a significant degree.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As to whether incapacity or impairment “results from” a disease, s 7(6) provides:(6)An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:(a) the incapacity or impairment would not have occurred;(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or(c)the extent of the incapacity or impairment would have been significantly less.The Tribunal decision After a hearing over seven days, the Tribunal found that the applicant had suffered from fibromyalgia from at least March 2009 and from CFS from at least June 2009, and that each of these conditions was an “ailment” for the purposes of the definition of disease in s 5B(1): Corby v Comcare [2015] AATA 42 at [15]. The Tribunal also found that the applicant had suffered from a respiratory illness in June 2008 but was not satisfied that the applicant’s employment had significantly contributed to the development of the illness, even if it was viral pneumonia. Accordingly, it found that that condition was not compensable: at [21]. That finding was sufficient by itself for the Tribunal to affirm Comcare’s decision in respect of the claim made on 26 July 2011 in respect of “cold and/or pneumonia”. There is no appeal against that part of the Tribunal’s decision. Given the close inter‑relationship between the conditions of fibromyalgia and CFS, the Tribunal considered it inappropriate to assess causation separately with respect to each: at [22]. That approach was consistent with that of the parties and with the medical evidence. The written submissions of the applicant’s counsel in the Tribunal identified, under the heading “The Applicant’s Case on Causation”, four alternative factual bases on which it was said that the applicant’s employment with the ATO had contributed significantly to her fibromyalgia and CFS. These were:9.1.The introduction of Dialler in August 2007 caused distress at work, leading to the development of her FM and CFS;9.2.The applicant acquired an infection at work, which infection caused the development of FM and CFS;9.3.The applicant acquired a viral infection outside of work and she returned to work too soon, which led to an increase in her symptomatology, resulting in the development of FM and CFS;9.4.The work related emotional distress experienced by the applicant since July 2008 has exacerbated her FM and CFS, irrespective of what may have caused the initial development of such conditions. This exacerbation has manifested itself in ‘flare ups’ and a gradual decline in her health. The terms “exacerbation” and its cognate used in [9.4] of those submissions do not appear in the SRC Act. On appeal, it was common ground that the terms had been used by the applicant’s counsel as though they were interchangeable with the terms “aggravation” and its cognates. It is evident that the Tribunal understood that that was so.

Ratio Decidendi

Legal Principle Established

The applicant’s submission is that the Tribunal had failed to carry out its review function as required by law by reason of its failure to consider an aspect of her submissions, namely, her claim that her employment in the period between July 2008 and June 2009 had contributed, to a significant degree, to the fibromyalgia and CFS or, alternatively, to an aggravation of those conditions. Counsel described this as the single issue for the Court’s determination. The applicant’s submission involved in part the contention that the Tribunal had not addressed evidence and submissions to the effect that general work related stress, and not just the stress arising from particular incidents, had aggravated the applicant’s condition. Consideration The times at which the applicant was to be taken to have sustained the conditions of fibromyalgia and CFS were to be determined by reference to s 7(4) of the SRC Act, which provides:(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when: (a)the employee first sought medical treatment for the disease, or aggravation; or (b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee; whichever happens first. As can be seen, s 7(4) indicates that it applies “for the purposes of this Act”. The possibility that, having regard to the definition of “disease”, s 7(4) can have application only when it has been found or accepted that the employee’s employment contributed to a significant degree to the disease or its aggravation, can be ignored. That is because it is commonly necessary to determine when a disease, or its aggravation, was sustained in order to determine, for the purposes of the definition of “disease” in s 5(1), whether the employee’s employment contributed to it. The Tribunal did not make any finding as to either of the days to which s 4(a) and (b) refer. It appears that neither the evidence nor the submissions before the Tribunal was directed to this issue. This is unfortunate in view of the issue now raised by the applicant. Clearly enough, there cannot be an aggravation of a disease until the employee has sustained the disease. It is accordingly necessary to identify when the disease was sustained. As will be seen the Tribunal recognised that this was so, although it did not refer to s 7(4). The circumstance that the times the diseases were contracted were not identified appears to have had the consequence that the applicant relied on some matters for both the claimed contribution by her employment to the conditions and for the claimed subsequent aggravation of those conditions. Given the way in which the applicant’s claim has been put from time to time and the complaint on the appeal that the Tribunal had failed to address a serious submission she had made, I consider it appropriate to consider, first, the submissions made by the applicant to the Tribunal and, secondly, the way in which the Tribunal addressed those submissions. It will be sufficient to have regard only to the applicant’s final submissions. Neither counsel on the appeal submitted that the Court should also have regard to the applicant’s opening submissions. Counsel’s submissions