Lang v Comcare

Case [2007] FCA 47

FEDERAL COURT OF AUSTRALIA

Lang v Comcare [2007] FCA 47

ADMINISTRATIVE LAW – judicial review – Commonwealth employee compensation claim – cancellation of compensation – whether Tribunal failed to take into account a relevant consideration – whether Tribunal failed to give written reasons as required by s 43 of the Administrative Appeals Tribunal Act– where notification of injury did not include the specific circumstances in which the injury allegedly occurred – where Tribunal purportedly excluded consideration of incident at a directions hearing prior to the final hearing – definition of ‘injury’ in Safety, Rehabilitation and Compensation Act – onus of proof in proceedings concerning cancellation of benefits

Administrative Appeals Tribunal Act1975 (Cth) s 43
Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 53, 54
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 60, 62, 124

Compensation (Government Employees) Regulations 1971 (Cth) reg 15

Canute v Comcare (2006) 229 ALR 445 applied
Comcare v Nichols (1999) FCA 209 cited
Commonwealth of Australia v Borg [1991] FCA 710; (1994) 20 AAR 299 referred to
Frosch v Comcare [2004] FCA 1642 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to
Phillips v The Commonwealth of Australia (1964) 110 CLR 347 referred to
Telepacific Pty Limited v Commissioner of Taxation (2005) 218 ALR 85 applied
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 cited
Ward v Military Rehabilitation and Compensation Commission [2007] FCA 7 referred to

DAVID LANG v COMCARE
ACD16 OF 2006

STONE J
6 FEBRUARY 2007
SYDNEY (HEARD IN CANBERRA)


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD16 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER JW CONSTANCE AND MEMBER DR M MILLER

BETWEEN:

DAVID LANG
Applicant

AND:

COMCARE
Respondent

JUDGE:

STONE J

DATE OF ORDER:

6 FEBRUARY 2007

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The application be allowed.

2.The decision of the Administrative Appeals Tribunal made on 26 May 2006 be set aside.

3.The matter be remitted to the Administrative Appeals Tribunal to be determined according to law.

4.The respondent pay the applicant’s costs of this appeal.

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

ACD16 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER JW CONSTANCE AND MEMBER DR M MILLER

BETWEEN:

DAVID LANG
Applicant

AND:

COMCARE
Respondent

JUDGE:

STONE J

DATE:

6 FEBRUARY 2007

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

  1. This is an appeal from a decision of the Administrative Appeals Tribunal, affirming a decision of Comcare that the applicant, Mr Lang, is no longer entitled to compensation for the cost of his medical treatment or for incapacity arising out of an injury he sustained in 1981. 

  2. Mr Lang has a long history of back…

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Details
AGLC
Lang v Comcare [2007] FCA 47
Case
[2007] FCA 47
Decision Date

CaseChat Overview and Summary

The case of Lang v Comcare involves Mr Lang, who sought compensation for injuries sustained in 1981. Comcare, the respondent, argued that Mr Lang’s condition had improved to the point where he no longer required treatment or was incapacitated by his injuries. The dispute was brought before the Administrative Appeals Tribunal, which ruled in favour of Comcare. Mr Lang appealed this decision to a higher court. The legal issues in this case revolve around the interpretation of the Safety, Rehabilitation and Compensation Act 1988 and the standard of proof required in such cases. Specifically, the court had to determine whether the Tribunal correctly applied the evidentiary onus and if it properly considered all relevant medical evidence, including the report of Dr Talbot.

The court examined the Tribunal's application of the evidentiary onus, noting that while the Tribunal ostensibly applied a balance of probabilities standard, its substantive finding aligned with the principle that Comcare had discharged its evidentiary onus. The Tribunal accepted Dr Griffith's evidence that Mr Lang's condition would have resolved by November 2004 in the absence of structural injury. This finding, supported by other medical reports, formed the basis for the Tribunal's decision. The court also considered whether the Tribunal had failed to consider Dr Talbot’s report, which was commissioned by Comcare after Mr Lang sought a reconsideration of the decision to terminate his compensation payments. The court found that the Tribunal had indeed considered this report and that it did not change the overall outcome of the case.

In its reasoning, the court concluded that the Tribunal's decision was correct in finding that Mr Lang was no longer incapacitated by his injury as of November 2004. The Tribunal's acceptance of Dr Griffith's evidence and the other medical reports supported its finding that Mr Lang did not require medical treatment or was incapacitated by his condition. Therefore, the court rejected Mr Lang’s grounds of appeal and upheld the Tribunal’s decision. The court also noted that the Tribunal had considered all relevant evidence, including Dr Talbot’s report, and found no error in its consideration. Consequently, the court allowed the appeal, set aside the Tribunal’s decision, and remitted the matter back to the Tribunal for further determination. Additionally, the court ordered that Comcare pay Mr Lang’s costs of the appeal.

Orders

Orders of the court

1. The application be allowed.

2. The decision of the Administrative Appeals Tribunal made on 26 May 2006 be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal to be determined according to law.

4. The respondent pay the applicant’s costs of this appeal.

Background

Background to the litigation

Counsel for Mr Lang referred to Comcare v Nichols (1999) FCA 209 in which Heerey J applied Phillips v The Commonwealth of Australia (1964) 110 CLR 347 in the context of the SRC Act. In the latter case the High Court held, at 350:‘… the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth. Such a case would be where the Commissioner has purported to terminate an employee’s right to compensation under an antecedently existing determination by reason of a material change of circumstances.’ Counsel for Mr Lang submitted that the Tribunal was ‘silent’ as to who bore the evidentiary onus in relation to the changed circumstances and that the Tribunal in fact applied a balance of probability standard stating that it was satisfied ‘on the balance of probabilities’ that Mr Lang did not require medical treatment for his injury and that he was not incapacitated as a result of the injury. Despite this, however, it does not appear that in substance the Tribunal adopted a lesser standard than that mentioned in Borg. The Tribunal expressly accepted Dr Griffith’s evidence that “in the absence of structural injury (of which there is no evidence) it is reasonable to expect that the aggravation would have resolved long before 29 November 2004.” This finding, in conjunction with the reports of Dr Andrews and Dr Kitchin clearly formed the basis for the Tribunal’s decision, rather than any paucity of evidence adduced by Mr Lang. Whilst the Tribunal ostensibly applied a ‘balance of probabilities’ standard, in light of the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, its finding in substance was that Comcare had discharged its evidentiary onus. Similarly, it is readily apparent from the Tribunal’s conclusion and the manner in which it framed the issues for determination on the appeal (see [16] above) that the Tribunal considered Mr Lang’s circumstances to have changed. The Tribunal accepted Dr Griffith’s evidence that the compensable injury, namely ‘aggravation of pre-existing condition of pain in the mid-thoracic region’, was resolved by November 2004 and accordingly Mr Lang was no longer incapacitated by it and did not require treatment. Accordingly, this ground of appeal must also be rejected.Failure to consider Dr Talbot’s report Mr Lang’s third ground of appeal was that the Tribunal failed to consider the expert medical report of Dr Talbot which Comcare had commissioned after Mr Lang sought a reconsideration of the decision to terminate his compensation payments. During the course of the hearing it became clear that this point was the focus of Mr Lang’s submissions, notwithstanding that it was not directly pleaded in his original notice of appeal. I granted Mr Lang leave to file an amended notice of appeal incorporating this ground of appeal (and remedying certain other defects). Both parties were permitted to adduce further evidence and to provide additional written and oral submissions on this issue.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

STONE J
Mr Lang’s initial claim was determined in accordance with the Compensation(Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). That Act has been superseded by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) which commenced on 24 June 1988 and which governs the present application. Section 124 of the SRC Act provides that a person is only entitled to compensation under the Act for an injury sustained prior to its commencement if the person would have been entitled to compensation under the relevant preceding Act, in this case the 1971 Act.The AAT decision The Tribunal provided a short summary of Mr Lang’s medical history. It found that Mr Lang suffered from conditions which caused pain in the thoracic region of his spine prior to his alleged fall in 1981. The clinical notes of Mr Lang’s general practitioners in the relevant period, Dr Reeve and Dr Herath, supported this finding. The Tribunal also referred to a report of Dr Andrews, Consultant Neurologist, in August 1982 which indicated that any aggravation of Mr Lang’s condition due to his work for the Commonwealth would have only lasted a short period of time (a few months) and to a report of Dr Kitchin that Mr Lang’s complaint, in March 1983, was of thoracic degenerative disease. The Tribunal noted that Dr Chandran, a neurosurgeon to whom Mr Lang was referred in 2000, referred to neck pain in his report but did not mention pain in the thoracic area. In contrast, Dr Speldewinde, who examined Mr Lang in March 2002, referred to Mr Lang’s distress as a result of an aggravation of pain in his thoracic spine. Mr Lang’s claim to Comcare for treatment of this aggravation was supported by Dr Herath and ultimately paid by Comcare. The report of Dr Griffith, on which Comcare had relied (see [9] above), was central to the Tribunal’s decision. In particular, the Tribunal referred to Dr Griffith’s opinion that Mr Lang’s claim for:‘aggravation of pre-existing condition of pain in the mid-thoracic region is purely descriptive and is not a pathological diagnosis, and thus should never have been acceptable as a basis for a long term workers compensation claim.’ Dr Griffith explained that, in the absence of structural injury, the aggravation caused to Mr Lang’s condition by his fall in 1981 would have ceased within three months, as would any aggravation caused by Mr Lang’s ordinary work duties. He concluded “[n]o employment related aggravation (in the absence of demonstrable structural injury) should be considered as [not] having resolved.” The Tribunal framed the issues it needed to determine as follows:‘1)are we persuaded that as at 29 November 2004 Mr Lang did not require medical treatment for the compensable injury (ie. the aggravation suffered in 1981)?2)are we persuaded that at 29 November 2004 Mr Lang was not incapacitated as a result of the compensable injury?’ The Tribunal accepted Dr Griffith’s evidence that in the absence of structural injury it is reasonable to expect that the aggravation of pain in Mr Lang’s thoracic region would have resolved a long time before 2004. The Tribunal also relied upon the reports of Dr Andrews and Dr Kitchen described above, which indicated that any aggravation caused by lifting boxes would have been temporary and that Mr Lang had a pre-existing thoracic spine condition. The Tribunal concluded:‘Taking into account all of the evidence referred to we are satisfied on the balance of probabilities that as at 29 November 2004 Mr Lang did not require medical treatment for, nor was he incapacitated as a result of, the compensable injury he suffered in 1981.’The applicant’s contentions

Ratio Decidendi

Legal Principle Established

Established by: STONE J

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