Mununggurr v Comcare

Case [2020] FCA 1786

FEDERAL COURT OF AUSTRALIA

Mununggurr v Comcare [2020] FCA 1786

File number(s): QUD 432 of 2019
Judge(s): COLLIER J
Date of judgment: 11 December 2020
Catchwords:  WORKERS’ COMPENSATION – claim for compensation for injuries resulting in permanent impairment – ss 24 and 27 Safety, Rehabilitation and Compensation Act 1988 (Cth) – nature of the injury – whether claim extended to major depressive disorder (MDD) – relevance of previous acceptance by Comcare of injury by way of post-traumatic stress disorder (PTSD) – relevance of manner in which claimant described injury and agitated claim before decision-maker – medical evidence – evidence that MDD and PTSD separate and distinct ailments
ADMINISTRATIVE LAW – jurisdiction of Administrative Appeals Tribunal – whether Tribunal failed to exercise its jurisdiction – powers of Tribunal not “at large” – s 43(1) Administrative Appeals Tribunal Act 1975 (Cth)
Legislation:

Administrative Appeals Tribunal Act 1976 (Cth) s 43

Administrative Decision (Judicial Review) Act 1977 (Cth)
s 5, 10

Judiciary Act 1903 (Cth) s 39B

Safety, Rehabilitation and Compensation Act 1988 (Cth)
ss 14, 16, 19, 24, 27, 53, 54, 64

Cases cited:

 Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829

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

Comcare v Lilley (2013) 216 FCR 214; [2013] FCAFC 121

Comcare v Muir (2016) 150 ALD 321; [2016] FCA 346

Fuad and Telstra Corporation (2004) 39 AAR 496; [2004] AATA 1182

Kennedy v Comcare (2014) AAR 100; [2014] FCA 82

Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753

Robson v Military Rehabilitation and Compensation Commission (2013) 214 FCR 1; [2013] FCAFC 101

Szabo v Comcare (2012) 58 AAR 152; [2012] FCAFC 129
Date of hearing: 10 March 2020
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 95
Counsel for the Applicant: Mr M Black and Mr P Nolan
Solicitor for the Applicant: Hall Payne Lawyers
Counsel for the First Respondent: Mr A Berger and Ms K Slack
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS

QUD 432 of 2019
BETWEEN:

SHARON MUNUNGGURR

Applicant
AND:

COMCARE

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

11 DECEMBER 2020

THE COURT ORDERS THAT:

1.The amended originating application filed on 20 December 2019 be dismissed with costs.

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


REASONS FOR JUDGMENT

COLLIER J:

  1. Before the Court is an application for review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) made on 28 June 2019. In that decision the Tribunal found that it had no jurisdiction to determine whether the applicant, Ms Mununggurr, was entitled to permanent impairment compensation for Major Depressive Disorder (MDD) under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

  2. The application…

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Details
AGLC
Mununggurr v Comcare [2020] FCA 1786
Case
[2020] FCA 1786
Decision Date

CaseChat Overview and Summary

The applicant, an employee of the Commonwealth, seeks a declaration that the second respondent, the Administrative Appeals Tribunal (AAT), has jurisdiction to determine her entitlement to permanent impairment compensation for major depressive disorder (MDD), as well as an order setting aside the AAT's decision of 28 June 2019. The applicant argues that the AAT should have considered her claim for compensation in respect of MDD, a condition distinct from post-traumatic stress disorder (PTSD), which Comcare had previously accepted as the cause of her psychiatric injury. The central legal issues in this case are whether the AAT had jurisdiction to consider the applicant's claim for permanent impairment compensation for MDD and if the AAT failed to exercise its jurisdiction by not considering the claim. The applicant argues that the AAT's jurisdiction is not constrained by how Comcare construes the claim and that the claim must be construed as a whole.

The AAT determined that it did not have jurisdiction to consider the applicant's claim for permanent impairment compensation for MDD, as liability had never been accepted by Comcare for this condition. The AAT found that the applicant's claim for compensation should have been resolved by her lodging a fresh claim for MDD or notifying the respondent and the Tribunal of her intention to ventilate the jurisdictional point prior to the substantive hearing. The AAT held that its approach to this issue was entirely consistent with the text, structure, and purpose of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and relevant authorities. The AAT concluded that the applicant's entitlement to compensation for her MDD could have been dealt with by the Tribunal if she had simply asked Comcare to determine whether it accepted liability for MDD. The AAT found no error of law in its decision and dismissed the application.

In this case, the AAT determined that it did not have jurisdiction to consider the applicant's claim for permanent impairment compensation for MDD, as liability had never been accepted by Comcare for this condition. The AAT found that the applicant's claim for compensation should have been resolved by her lodging a fresh claim for MDD or notifying the respondent and the Tribunal of her intention to ventilate the jurisdictional point prior to the substantive hearing. The AAT held that its approach to this issue was entirely consistent with the text, structure, and purpose of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and relevant authorities. The AAT concluded that the applicant's entitlement to compensation for her MDD could have been dealt with by the Tribunal if she had simply asked Comcare to determine whether it accepted liability for MDD. The AAT found no error of law in its decision and dismissed the application.

Orders

Orders of the court

1. The amended originating application filed on 20 December 2019 be dismissed with costs.

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

Background

Background to the litigation

The applicant seeks the following orders:·That the second respondent’s decision of 28 June 2019 be set aside or quashed; ·A declaration that in proceeding number 2017/0844 before the second respondent, the second respondent has jurisdiction to consider and determine:a. The nature and diagnosis of the “injury” for which the applicant claimed compensation by way of a claim form dated 28 May 2014; and b. Whether the applicant is entitled to permanent impairment compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 in respect of that “injury”, according to its nature and diagnosis as determined by the second respondent.·Costs. BACKGROUND The history of this matter is helpfully summarised in the applicant’s outline of submissions filed on 10 February 2020, and I have had regard to that summary in setting out the following background to these proceedings. The applicant was born on 4 October 1964 and previously worked for the Commonwealth as a resident manager for the “Jane Arnold Aboriginal Hostel” in New Farm, Brisbane. She was an “employee” under the SRC Act. On 12 April 2014, the applicant was working at the front desk of the hostel when a patron – who had previously been evicted for being drunk – entered the hostel and yelled at her, threatening to “cut her throat”. On 28 May 2014, the applicant made a claim for compensation under the SRC Act in relation to this incident, which was said to be the cause of psychiatric injury to the applicant. In the compensation form lodged on 28 May 2014, the applicant:·Identified the “injury or illness” as “Depression – reactive”;·Identified the “Part(s) of the body injured” as “mental state”;·Identified the date of injury as 12 April 2014; ·Identified the date when the applicant first sought medical treatment for her injury or illness as 28 May 2014; and·Identified the cause of injury as “Resident who had been evicted returned and threatened to cut my throat”. On 30 July 2014 Comcare issued a determination accepting liability to pay compensation under s 14 of the SRC Act, which relevantly providesCompensation for injuries(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.… “Injury” is relevantly defined in s 5A of the SRC Act as:Definition of injury(1) In this Act:"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.…(emphasis added)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant sought and obtained an adjournment, and the hearing resumed on 21 June 2019.DECISION OF THE TRIBUNAL The Tribunal observed that jurisdictional issue was pivotal, because if the Tribunal found that it did not have jurisdiction to consider whether the applicant was entitled to permanent impairment compensation for MDD, the Tribunal would not be obliged to consider MDD as a potential injury of the applicant in the determination of the substantive application. Conversely, if the Tribunal found that it did have jurisdiction, MDD would be within the purview of the Tribunal’s determination about compensation for permanent impairment. The Tribunal at [5] of its reasons referred to the initial determination of 30 July 2014, where Comcare stated:I have accepted your claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for the following:•post traumatic stress disorder The Tribunal noted at [6] of its reasons that at no time had liability been accepted by Comcare for MDD. The Tribunal noted that, since September 2018, it had been open to the applicant to resolve the absence of consensus between the parties by, for example:·the applicant lodging a fresh claim for compensation for MDD;·a timely listing of the jurisdictional point for determination by the Tribunal prior to the hearing; or·the applicant notifying the respondent and the Tribunal of an intention to ventilate the jurisdictional point immediately prior to commencement of the substantive hearing on 29 May 2019. At [10] of its reasons, the Tribunal said:The jurisdictional point seemed to have been resolved because after some discussion on the morning of the substantive hearing (on 29 May 2019), the Applicant (1) sought (and it was granted) an adjournment of the substantive hearing for PTSD and (2) adopted the Tribunal’s suggestion that the substantive application be placed in abeyance pending determination of a fresh claim for MDD. Appropriately worded Orders were made on 29 May 2019. The Applicant now agitates for a vacation of those Orders on the basis that the jurisdictional issue ought be determined at a preliminary hearing. This preliminary jurisdiction hearing proceeded before me on 21 June 2019 and was preceded by both parties filing respective helpful written submissions. Before the Tribunal the applicant relied on Abrahams v Comcare [2006] FCA 1829 to support a contention that the Tribunal had jurisdiction to make, and was obliged to make, a determination on the applicant’s degree of permanent impairment howsoever diagnosed. In summary, the applicant’s position was as follows:·a broad approach should be taken to determining the scope of the claim and, consequently, the Tribunal’s jurisdiction on review;·the Tribunal’s jurisdiction is not constrained by the way Comcare had chosen to construe the claim;·the claim must be construed as a whole, drawing not only on the claim itself, but also the notice of injury, medical certificates and other documentation submitted at the time; and·the scope of the claim aligned with the claimant’s condition as determined through later investigations, and was not limited to the condition originally nominated on the form 8.

Ratio Decidendi

Legal Principle Established

In turn, in summary Comcare submitted:·The SRC Act gave pivotal importance to the concept of “an injury” suffered by an employee. In assessing an entitlement to permanent impairment compensation under s 24 of the SRC Act, it is the injury that provides the prism through which permanent impairment compensation in respect of the injury is determined.·When assessing an entitlement to compensation under s 24, s 24(5) is the central provision. This subsection provides that the MRCC shall determine the degree of permanent impairment of the employee resulting from “an injury” under the provisions of the approved Guide.·Liability had been accepted by Comcare pursuant to s 14 of the SRC Act for an injury (PTSD) suffered by the applicant. The critical issue raised by this application was whether, in the course of reviewing a “reviewable decision” of Comcare denying liability under s 24 of the SRC Act, the Tribunal also had jurisdiction to determine a permanent impairment claim arising out of another injury (MDD) for which liability had never been accepted by Comcare.·The Tribunal’s approach to this issue was entirely consistent with the text, structure and purpose of the provisions of the SRC Act and relevant authorities. Its conclusion on this issue did not involve an error of law.·Although the applicant submitted that her claim was to be assessed as including both PTSD and MDD, the most recent medical evidence before the Tribunal suggested that those two conditions were separate and distinct ailments.·Section 10(2)(b) of the ADJR Act relevantly provides that the Court may, in its discretion, refuse to grant an application in respect of a decision if adequate provision is made by any other law under which the applicant is entitled to seek a review. The applicant’s entitlement to compensation for her major depression disorder could have been dealt with by the Tribunal if she had simply asked Comcare to determine whether it accepted liability under ss 14 and 24 of the SRC Act for MDD. The Tribunal proceedings were adjourned to enable this to occur, however the applicant chose not to do so.CONSIDERATION Before turning to the arguments before the Court it is helpful to examine key authorities on which the parties rely.Abrahams The primary authority on which the applicant relied is Abrahams. In that case Mr Abrahams was a Commonwealth public servant who had experienced pain in his right arm from around January 2001, and lodged a claim with Comcare under the SRC Act for compensation in respect of his right arm which he described as “overuse injury affecting the right arm.” Comcare accepted liability for particular named conditions of the right upper arm, shoulder, elbow and forearm, and neck, however in 2003 decided that Mr Abrahams no longer suffered from compensable effects of his accepted injury. In 2003 Mr Abrahams was diagnosed as having right carpal tunnel syndrome. He identified this diagnosis on his compensation claim furnished pursuant to s 53 of the SRC Act, described his injury or illness as “right carpal tunnel syndrome”, and identified his right hand and wrist as the body part affected. Mr Abrahams’ claim was rejected by Comcare, and again internally by Comcare by a review officer.