Howard v Comcare

Case [2019] FCA 1031

FEDERAL COURT OF AUSTRALIA

Howard v Comcare [2019] FCA 1031

Review of: Application for Judicial Review: Howard and Comcare (Compensation) [2017] AATA 2381
File number: ACD 96 of 2017
Judge: PERRY J
Date of judgment: 2 July 2019
Catchwords: WORKERS’ COMPENSATION – appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), from a decision of the Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed Comcare’s decision that the applicant no longer suffers the effects of work related injuries and the respondent is therefore not liable to pay compensation under s 16 or s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) – whether Tribunal misconstrued the concept of “injury” in the SRC Act so as to exclude a secondary chronic pain condition – where alleged error of law turns on construction of the Tribunal’s reasons – appeal allowed
Legislation:

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 43(2B)

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Cases cited:

Canute v Comcare [2005] FCA 229; (2005) 40 AAR 327

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044

Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Repatriation Commission v Owens (1996) 70 ALJR 904

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253
Date of hearing: 11 October 2018
Registry: Australian Capital Territory
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 62
Counsel for the Applicant: Mr P Walker SC with Mr A Anforth
Solicitor for the Applicant: Baker Deane and Nutt
Counsel for the Respondent: Mr A Berger
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

ACD 96 of 2017
BETWEEN:

KERRY HOWARD

Applicant
AND:

COMCARE

Respondent

JUDGE:

PERRY J

DATE OF ORDER:

2 JULY 2019

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal under review be set aside.

3.The respondent is to pay the applicant’s costs as agreed or assessed.

4.On or before 4pm on 16 July 2019, the parties are to file agreed minutes of order otherwise giving effect to these reasons or, in the absence of agreement, draft proposed minutes of order accompanied by submissions of no more than 3 pages in support of the draft proposed minutes of order. 

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


REASONS FOR JUDGMENT

PERRY J:

1......... INTRODUCTION

[1]

2......... BACKGROUND

[8]

2.1...... The 2006 injuries and acceptance of liability by Comcare

[8]

2.2...... Comcare’s determination in 2015 that the applicant was no longer entitled to compensation under the Act

[11]

2.3...... The Tribunal’s decision

[13]

2.3.1... The issues before the…

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AGLC
Howard v Comcare [2019] FCA 1031
Case
[2019] FCA 1031
Decision Date

CaseChat Overview and Summary

In the case of Howard v Comcare, the applicant, Ms Howard, sought a review of a decision by the Administrative Appeals Tribunal (AAT) affirming a decision by Comcare that she was no longer entitled to workers' compensation for injuries sustained in a motor vehicle accident in 2006. The primary issue before the court was whether the AAT misconstrued the concept of "injury" under the Safety, Rehabilitation and Compensation Act 1988 (Cth) so as to exclude a secondary chronic pain condition arising from the 2006 injuries.

The court was tasked with interpreting the statutory framework governing workers' compensation in Australia, specifically the definition and implications of "injury" as outlined in the Act. The crux of the legal debate centred on whether Ms Howard's ongoing pain and incapacity, which she claimed resulted from the 2006 accident, qualified as a continuing injury for which Comcare remained liable under sections 16 and 19 of the Act.

The court found that the AAT had erred in its interpretation of the statutory concept of "injury". The AAT had seemingly confined the scope of compensable injuries to those directly traceable to the 2006 accident, thereby excluding Ms Howard's secondary chronic pain condition. This interpretation, according to the court, was too narrow and failed to account for the broader legislative intent to provide ongoing support for work-related injuries that continue to affect an employee. Consequently, the appeal was upheld, and the AAT's decision was set aside. The court ordered that Comcare would again be liable to pay compensation for Ms Howard's medical expenses and incapacity, reflecting a broader understanding of the statutory term "injury". The respondent was also directed to pay the applicant's costs as agreed or assessed.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal under review be set aside.

3. The respondent is to pay the applicant’s costs as agreed or assessed.

4. On or before 4pm on 16 July 2019, the parties are to file agreed minutes of order otherwise giving effect to these reasons or, in the absence of agreement, draft proposed minutes of order accompanied by submissions of no more than 3 pages in support of the draft proposed minutes of order.

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

Background

Background to the litigation

For the reasons given below, the appeal must be upheld on the first question of law. The remaining questions of law therefore do not arise. 2. BACKGROUND2.1 The 2006 injuries and acceptance of liability by Comcare The applicant sustained injuries in the course of her employment with the Department of Health and Ageing (the Department) to her neck, right arm, and left thigh in a motor vehicle accident on her way to work on 30 March 2006 (the 2006 accident). On 8 May 2006, the respondent accepted liability for the applicant’s injuries pursuant to s 14 of the Act and agreed to pay compensation for medical expenses and incapacity under ss 16 and 19 of the Act. Comcare described her injuries as a neck sprain and contusions to her “upper arm (left)”, “finger (left)”, and “hip and thigh (right)”. Subsequently Comcare advised the applicant that it had incorrectly described her accepted condition which should have included contusions to her “upper arm (right)” and not to her left upper arm (Tribunal’s reasons at [4]). The applicant returned to full-time work by 24 June 2006, some 12 weeks after the 2006 accident, although she said that she suffered from continuing symptoms (Tribunal’s reasons at [15]). The applicant worked for the Department until April 2012 when her position was made redundant, and was self-employed at the time of the Tribunal’s decision.2.2 Comcare’s determination in 2015 that the applicant was no longer entitled to compensation under the Act On 23 March 2015, Comcare decided that the applicant no longer suffered from the effects of the 2006 injuries and determined that she was no longer entitled to compensation for medical expenses under s 16 or incapacity payments under s 19 of the Act (Tribunal’s reasons at [6]). Following a request by the applicant for a reconsideration of that determination, on 17 June 2015 the respondent affirmed its decision given on 23 March 2015. On 24 September 2015, the applicant applied to the Tribunal for review of that decision under s 64 of the Act. 2.3 The Tribunal’s decision2.3.1The issues before the Tribunal After setting out the background, the Tribunal identified the issues in the following passages:12. … The issue in this review is whether Comcare is still liable to pay compensation to Ms Howard under s 16 or s 19. That depends on whether she continues to suffer the effects of the 2006 injuries. If she does, then:•Comcare is liable to pay compensation in respect of her reasonable medical expenses; and•(if she is incapacitated for work) Comcare is liable to pay compensation for that incapacity, the amount of which depends on:•the amount that she is able to earn in suitable employment;•the amount that she earns from her self-employment; and•her normal weekly earnings before the 2006 injuries.If Ms Howard does not continue to suffer the effects of the 2006 injuries, then:•any medical treatment she obtains is not obtained “in relation to” her injuries, so Comcare is not liable under s 16; and•she is not incapacitated for work “as a result of” her injuries, so Comcare is not liable under s 19.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Following a request by the applicant for a reconsideration of that determination, on 17 June 2015 the respondent affirmed its decision given on 23 March 2015. On 24 September 2015, the applicant applied to the Tribunal for review of that decision under s 64 of the Act. 2.3 The Tribunal’s decision2.3.1The issues before the Tribunal After setting out the background, the Tribunal identified the issues in the following passages:12. … The issue in this review is whether Comcare is still liable to pay compensation to Ms Howard under s 16 or s 19. That depends on whether she continues to suffer the effects of the 2006 injuries. If she does, then:•Comcare is liable to pay compensation in respect of her reasonable medical expenses; and•(if she is incapacitated for work) Comcare is liable to pay compensation for that incapacity, the amount of which depends on:•the amount that she is able to earn in suitable employment;•the amount that she earns from her self-employment; and•her normal weekly earnings before the 2006 injuries.If Ms Howard does not continue to suffer the effects of the 2006 injuries, then:•any medical treatment she obtains is not obtained “in relation to” her injuries, so Comcare is not liable under s 16; and•she is not incapacitated for work “as a result of” her injuries, so Comcare is not liable under s 19. No issue is taken on the appeal with this statement of issues. It can be inferred that the reference to the “2006 injuries” is a reference to the injuries for which Comcare accepted liability under s 14 of the Act as advised on 8 May 2006 and amended on 30 May 2006, namely, a neck sprain and contusions to her right upper arm, left finger, and right hip and thigh: see the Tribunal’s reasons at [4] and [6]. At the hearing, the applicant gave evidence that when she had the 2006 accident, she was no longer suffering any symptoms from a whiplash injury suffered in a motor vehicle accident in 2002 (the 2002 injury) (Tribunal’s reasons at [14]-[15]). Before the Tribunal, the applicant alleged that:… since the 2006 accident, she has experienced varying levels of pain, primarily around her upper neck and shoulder blades. She says that, although she experienced pain in the same areas, her “experience of the pain as a result of the injuries changed”. She says that she has also experienced numbness in her arms and a finger, along with a hardening of the nape of her neck, her upper back and shoulder blade.(Tribunal’s reasons at [16]) The Tribunal accepted the applicant as a witness of truth and accordingly found at [18] on the balance of probabilities that:(1)the applicant was no longer suffering any symptoms from the 2002 accident when she had the 2006 accident;(2)the applicant has experienced varying levels of pain ever since the 2006 accident, primarily in her upper neck and shoulder blades; and(3)that pain causes her some level of incapacity. As such, the Tribunal posed the “threshold question” as follows: “is her current condition a result of the 2006 injuries?” (Tribunal’s reasons at [18]). 2.3.2The Tribunal’s view as to the differences in the medical opinions

Ratio Decidendi

Legal Principle Established

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