Lilley v Comcare

In Lilley v Comcare, the Federal Court was asked to review a decision of the Administrative Appeals Tribunal (AAT) that had affirmed a decision by Comcare to reject Mr Lilley's claim for compensation for permanent impairment. The court had to determine whether the criteria for assessing the degree of permanent impairment, as set out in the Guide to the Assessment of the Degree of Permanent Impairment, provided objective standards that could be applied with certainty. The court also had to consider whether the AAT had correctly interpreted the relevant legislation when it held that only evidence based on clinical testing by a medical practitioner was relevant to the assessment of the degree of permanent impairment.

The court found that there was no basis in the Guide or the relevant legislation to require that medical opinions be based only on clinical testing for the criteria of permanent impairment. The court held that the criteria for 5% and 10% impairment in Table 9.7 of the Guide did not set or provide objective standards that could be applied with certainty and were therefore invalid. The court found that the AAT had misconstrued the notes to Table 9.7 by imposing a requirement that matters other than "manifest difficulty" required clinical testing. The court also found that the AAT had erred in using an inept clinical test, conducted by Dr Oakeshott, as clinical evidence that Mr Lilley had not satisfied any of the criteria for 10% impairment.

The court held that the AAT had wrongly taken the view that each of the activities of ability to walk and climb stairs and the pace of walking required clinical testing. The court found that this was an error of law and imposed a requirement that had no basis in the relevant legislation or the Guide. The court held that the AAT had asked itself the wrong question as to the evidence necessary to support a claim for permanent impairment and had constructively failed to exercise its jurisdiction in doing so. The court found that the decision of the AAT must be set aside.

The court made a declaration that the criteria for 5% and 10% whole person impairment in Table 9.7 in Part 1 Division 1 of the Guide to the Assessment of the Degree of Permanent Impairment (2nd ed) are invalid and of no effect. The court set aside the decision of the AAT and remitted the matter to the AAT to be heard and determined according to law. The court also ordered that Comcare pay the applicant's costs.