Farrell v Comcare

Case [2015] FCA 1337

FEDERAL COURT OF AUSTRALIA

Farrell v Comcare [2015] FCA 1337

Citation: Farrell v Comcare [2015] FCA 1337
Appeal from: Re Farrell and Comcare [2015] AATA 268
Parties: DONNA MAREE FARRELL v COMCARE
File number: ACD 47 of 2015
Judge: FLICK J
Date of judgment: 30 November 2015
Catchwords:

ADMINISTRATIVE LAW – employee’s compensation – role of Guide in determining degree of permanent impairment – cannot be assessed – manner of construing Guide

ADMINISTRATIVE LAW – manner of construing reasons for decision of Tribunal

ADMINISTRATIVE LAW – manner of construing claim for compensation   
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B)
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 14, 24, 27, 28
Cases cited: Abrahams v Comcare [2006] FCA 1829, (2006) 93 ALD 147
Broadhurst v Comcare [2010] FCA 1034, (2010) 189 FCR 561
Canute v Comcare [2006] HCA 47, (2006) 226 CLR 535
Comcare v Broadhurst [2011] FCAFC 39, (2011) 192 FCR 497
Comcare v Lilley [2013] FCAFC 121, (2013) 216 FCR 214
Re Farrell and Comcare [2015] AATA 268
Kennedy v Comcare [2014] FCA 82
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Munswamy v Australian Postal Corporation [2015] FCA 678
Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101, (2013) 214 FCR 1
Whittaker v Comcare (1998) 86 FCR 532
Date of hearing: 14 October 2015
Place: Sydney (heard in Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 52
Counsel for the Appellant: Mr T M Thawley SC with Mr A Anforth
Solicitor for the Appellant: Blumers Lawyers
Counsel for the Respondent: Mr P Woulfe
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 47 of 2015
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

DONNA MAREE FARRELL
Appellant
AND:

COMCARE
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

30 NOVEMBER 2015

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The matter is remitted to the Administrative Appeals Tribunal for reconsideration in accordance with law.

3.The Respondent is to pay the costs of the appeal.

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


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 47 of 2015
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

DONNA MAREE FARRELL
Appellant
AND:

COMCARE
Respondent

JUDGE:

FLICK J

DATE:

30 NOVEMBER 2015

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

  1. The Appellant in the present proceeding, Ms Donna Farrell, commenced work at the Australian Bureau of Statistics in 1986.  As part of her responsibilities she was required to perform a lot of repetitive key strokes and “mouse clicking” when using a computer.

  2. She began experiencing pain and made claims for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Compensation Act”).

  3. Now in question is a decision of the…

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AGLC
Farrell v Comcare [2015] FCA 1337
Case
[2015] FCA 1337
Decision Date

CaseChat Overview and Summary

The appeal in Farrell v Comcare was brought before the court by Ms Farrell against Comcare, an Australian government agency responsible for employee compensation. The dispute centered around the assessment of Ms Farrell's permanent impairment following an injury, specifically concerning the degree of impairment and its relevance to her claim for compensation. The case was heard and determined in the Federal Court of Australia.

The central legal issue before the court was whether the Administrative Appeals Tribunal (AAT) correctly assessed Ms Farrell's permanent impairment using the appropriate tables and guidelines. The court had to decide if the AAT appropriately followed the approved Guide to determine the degree of impairment and if Ms Farrell's claim for compensation was lawfully assessed. The court also had to examine whether the AAT's interpretation of the relevant statutory provisions and guidelines was accurate.

The court found that the AAT had erred in its assessment of Ms Farrell's permanent impairment. It was determined that the AAT failed to make express findings on whether the impairment constituted a "permanent impairment" and whether it was less than 10%. The AAT proceeded to assess the degree of impairment without confirming these foundational facts. Furthermore, the court held that the AAT improperly used Tables 9.9.1a and 9.9.1b, which were not suitable for the assessment, and did not follow the correct procedure outlined in the Guide. The court concluded that the AAT's failure to adhere to the correct legal framework meant the determination was unlawful.

In light of these findings, the court allowed the appeal, remitted the matter back to the AAT for reconsideration in accordance with the law, and ordered Comcare to pay the costs of the appeal. The decision underscores the importance of precise adherence to statutory guidelines and the necessity for clear, legally sound assessments in employee compensation cases.

Orders

Orders of the court

1. The appeal is allowed.

2. The matter is remitted to the Administrative Appeals Tribunal for reconsideration in accordance with law.

3. The Respondent is to pay the costs of the appeal.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Those Tables, in the absence of explanation, are ill-suited to effect any assessment of the “degree” of “permanent impairment” the subject of Ms Farrell’s claim. The Tribunal recognised as much in its reasons at para [27] when observing that Ms Farrell’s “impairment would be more appropriately assessed under Table 9.14…”. Although it may be open to conclude that Tables 9.9.1a and 9.9.1b “could” be employed to effect some assessment, the phrase “cannot be assessed” remains a phrase which permits neither the employment of Tables ill-equipped to assess a claimed “impairment”, nor Tables employing “criteria” which are not self-evidently relevant to that “impairment”. What is called for in order for there to be a lawful determination of the “degree” of impairment is a medically meaningful assessment of that impairment. If the Tables do not provide a meaningful and clinically reliable answer, an impairment “cannot be assessed” employing that Table. In such circumstances, the Guide provides that recourse is to be had to the AMA Guidelines. That is the route which should have been followed in the present case. The term “cannot”, on such an approach, is to be construed so as to direct attention towards a medically meaningful assessment. CONCLUSIONS It is concluded that the Tribunal has, with respect, failed:·to make any finding of whether or not the “impairment” for which Ms Farrell has made a claim for compensation – namely the “impairment” to her “left and right arms” – does in fact constitute a “permanent impairment” within the meaning of and for the purposes of s 24(1); and/or·to “determine the degree of permanent impairment … under the provisions of the approved Guide…”. The reasons for decision of the Tribunal, with respect, seem to assume that Ms Farrell has in fact suffered some “permanent impairment” that has “result[ed]” from one or other of the “injuries” for which liability has been accepted and thereafter immediately proceed to determine the “degree” of that “impairment” employing Tables 9.9.1a and 9.9.1b. In doing so the Tribunal erred. To some extent the failure to make such express findings of fact may assume little immediate relevance; on one view, it is the final step in assessing the “degree” of “permanent impairment” which is most crucial. That which unquestionably assumes immediate relevance, however, is the failure of the Tribunal properly to apply the Guide to the facts of the present case. The “degree” of Ms Farrell’s “permanent impairment” of her “left and right arms” could not be assessed employing either Table 9.9.1a or Table 9.9.1b. There has been no “determination” of the “degree of permanent impairment … under the provisions of the approved Guide” and there has been no determination in accordance with law that the “degree of impairment is less than 10%” within the meaning of and for the purposes of s 24(7)(b) of the Compensation Act. In concluding to the contrary, the Tribunal erred.

Ratio Decidendi

Legal Principle Established

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