FEDERAL COURT OF AUSTRALIA
Ringshaug v Comcare [2017] FCA 48
Appeal from: Re Ringshaug and Comcare [2016] AATA 88 File number: ACD 19 of 2016 Judge: BROMWICH J Date of judgment: 3 February 2017 Catchwords: WORKERS’ COMPENSATION – appeal on a point of law from Administrative Appeals Tribunal decision – where Tribunal decision upheld three Comcare determinations denying compensation to applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – where applicant argued causation of injury did not enliven exclusion for compensation on the basis of ‘reasonable administrative action’ – where applicant’s causation argument was dependent on Full Federal Court authority in Martin v Comcare (2015) 238 FCR 373 – where subsequent High Court appeal in Comcare v Martin (2016) 339 ALR 1 – where applicant’s argument could not succeed in light of later High Court authority – held: appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss 44(1), 43AA(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 5A, 5B, 14(1), 14(2), 14(3)
Cases cited: Comcare v Martin [2016] HCA 43; (2016) 339 ALR 1
Date of hearing: 21 September 2016 Date of last submissions: 16 November 2016 (Applicant) 24 November 2016 (Respondent) Registry: Australian Capital Territory Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: Mr M A Robinson SC with Mr A Anforth Solicitor for the Applicant: Capital Lawyers Pty Ltd Counsel for the Respondent: Mr P G Woulfe Solicitor for the Respondent: Comcare ORDERS
ACD 19 of 2016 BETWEEN: SUE RINGSHAUG
Applicant
AND: COMCARE
Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
3 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The parties provide short written submissions on costs in accordance with procedural orders agreed upon or made by the Court in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
On 18 February 2016, the Administrative Appeals Tribunal affirmed three determinations of the respondent, Comcare. Those determinations were made by three different review officers of Comcare, each of whom concluded that the applicant in those proceedings and in this Court, Ms Ringshaug, was not entitled to compensation. Any such right to compensation arises under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). This is an appeal by Ms Ringshaug on questions of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), in relation to two of Comcare’s determinations. There is no application made in relation to the third determination.
On 1 July 2016, following an application by Comcare and over objection on behalf of Ms Ringshaug, the presiding Deputy President of the Tribunal directed the Registrar of the Tribunal to alter the text of its decision in respect…
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- AGLC
- Ringshaug v Comcare [2017] FCA 48
- Case
- [2017] FCA 48
- Decision Date
CaseChat Overview and Summary
In the case of Ringshaug v Comcare, the applicant sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for various conditions she claimed were caused by her employment with Disability ACT. The applicant's claims were denied by Comcare, and the Administrative Appeals Tribunal upheld these denials. The applicant appealed to the court on points of law, arguing that the Tribunal had misunderstood the law regarding the impact of reasonable administrative action on her claims.
The legal issues before the court were whether the Tribunal correctly interpreted the law concerning the exclusion of compensation based on reasonable administrative action, and whether the applicant's reliance on the Full Federal Court decision in Martin v Comcare (2015) was still valid in light of the subsequent High Court decision in Comcare v Martin (2016). The court had to determine if the applicant's argument, grounded in the earlier Full Federal Court decision, was still tenable after the High Court's ruling.
The court found that the Tribunal correctly interpreted the law and properly applied it to the facts of the case. The court held that the applicant's argument, which relied on the now superseded Full Federal Court decision, could not succeed in light of the High Court's decision. Therefore, the appeal was dismissed, and the court ordered that the parties provide short written submissions on the issue of costs, to be decided in chambers.
The legal issues before the court were whether the Tribunal correctly interpreted the law concerning the exclusion of compensation based on reasonable administrative action, and whether the applicant's reliance on the Full Federal Court decision in Martin v Comcare (2015) was still valid in light of the subsequent High Court decision in Comcare v Martin (2016). The court had to determine if the applicant's argument, grounded in the earlier Full Federal Court decision, was still tenable after the High Court's ruling.
The court found that the Tribunal correctly interpreted the law and properly applied it to the facts of the case. The court held that the applicant's argument, which relied on the now superseded Full Federal Court decision, could not succeed in light of the High Court's decision. Therefore, the appeal was dismissed, and the court ordered that the parties provide short written submissions on the issue of costs, to be decided in chambers.
Orders
Orders of the court
1. The application be dismissed.
2. The parties provide short written submissions on costs in accordance with procedural orders agreed upon or made by the Court in default of agreement.
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 that follow, the appeal must be dismissed. I will consider separate submissions from the parties as to costs.The facts as found by the Tribunal The outline of submissions for Ms Ringshaug accepted that the factual background to the appeal was set out at [1]-[9] of the Tribunal’s decision. Comcare did not take issue with that summary. It is therefore convenient to reproduce those paragraphs as they concisely summarise the factual case before the Tribunal and before this Court (the alteration to paragraph 8 made by direction on 1 July 2016 is reflected in mark-up):1.The Tribunal has before it three claims brought by Ms Sue Ringshaug under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Ms Ringshaug has worked for Disability ACT (under its various names) for almost 20 years. She began her work there as an Administrative Support Officer (ASO) in the Scheduling Office in March 1996, but in recent years has also trained and worked as a Disability Support Officer (DSO) in the group houses run by Disability ACT for people with disabilities.2.During that time, Ms Ringshaug has been afflicted by workplace-related illness. In 2001, she suffered an episode of work-related sprain of shoulder & upper arm (bilateral) (though there was some dispute as to whether this could be characterised as occupational overuse syndrome (or repetition strain injury (RSI)); the role of an ASO apparently involves extensive keyboard use). In February 2011, her GP, Dr Low, diagnosed occupational overuse of her right upper limb and in April 2011, Comcare, the respondent in these proceedings, accepted liability for a condition of her neck and right shoulder, arm, wrist and fingers. She undertook a graduated return to work during 2011.3.By the time an occupational physician, Dr Le Leu, examined Ms Ringshaug in October 2011 he found that her history was consistent with RSI but, due to previous treatment and the passage of time, there was little to find on examination. Dr Low certified her fit to return to her pre-injury duties from December 2011. During 2012 she worked part-time as a DSO and part-time as an ASO.4.On 19 March 2013, Ms Ringshaug attended a meeting with Ms Pieta White, the Scheduling Office Coordinator. At that meeting Ms White told Ms Ringshaug that she would no longer be able to undertake a joint role as a support worker in the group houses and in the Scheduling Office. Ms White told her that, to finalise her workers’ compensation claim of 2011, Ms Ringshaug would need to return to her previous role as a scheduling officer for a short period. She was also informed that undertaking a joint role in the future was not possible due to a conflict of interest. Ms Ringshaug raised concerns about the nature of her work as a scheduling officer and its impact on her RSI condition, as well as concerns about having to be on a roster with some days starting at 7am. The meeting broke up without these issues being resolved.5.Over the subsequent two months, there were meetings and emails in which the issues of the meeting of 19 March were discussed, some involving a delegate of the Health Services Union (HSU). These exchanges involved negotiated modifications to Ms Ringshaug’s roster, so that the number of 7am starts could be reduced. On 17 May 2013, Ms Ringshaug read an email from Ms Wilhelmina Blount, her senior manager, dated 15 May, which implied that her bid to work a joint role as both an ASO and a DSO had been rejected. Ms Ringshaug was upset by this email (devastated, felt nauseous and suffered heart palpitations and dizziness). On 20 May she attended Dr Low, who recorded that she was very stressed and anxious due to circumstances at work relating to her work roster and apprehension of re-injury. She began an extensive period of sick leave, during which Dr Low certified elevated blood pressure levels.6.On 21 June 2013, Ms Ringshaug lodged a claim for workers’ compensation, based on anxiety and hypertension. She attributed her injury to reading the email from the senior manager on 17 May 2013. In her claim, she stated I feel that I have been bullying and discriminating [sic] with unprofessional accusations from my line manager. More details of the behaviour she alleged had occurred by management at Disability ACT were provided in an employee statement of 21 August 2013. In the statement, Ms Ringshaug said that at the meeting on 19 March 2013 Ms White had thrown the roster at her and that the roster had been designed to prevent her from picking up creamy shifts. Ms Ringshaug said she felt humiliated and insulted by what had been said. Ms Ringshaug said that she wanted to speak to her line manager and Ms White responded by saying you just want to pick a fight and walked out. She said that her managers were trying to bully me into working a roster that would affect my well-being and exacerbate my pre-injury.7.In a determination dated 25 September 2013, Comcare denied liability for Ms Ringshaug’s condition of anxiety and hypertension under s 14. It affirmed the determination on 18 February 2014 and Ms Ringshaug lodged an application to review this decision on 25 March 2014 (2014/1559 – the first action).8.In a medical certificate dated 17 March 2014, Dr Low certified that Ms Ringshaug was unfit for work due to an aggravation of sprain to R elbow, R wrist and R fingers caused by Excessive use of computer. On the same day, Dr Low recorded in his clinical notes Roster issues, not able to adjust work times. Recurrence of pain R wrist/R elbow, gripping poorly. On 13 May 2014, Ms Ringshaug’s solicitors lodged a workers’ compensation claim for permanent impairment and non-economic loss in relation to her accepted Aggravation of right upper limb overuse injury, noting the impairment as right hand, R wrist, R upper limb and Neck. Comcare denied liability under this claim on 29 January 2015, and affirmed that decision on 24 February 2015. On 14 November 2014 Comcare advised Ms Ringshaug that it intended to determine that she had no present entitlement to medical treatment or incapacity for the accepted condition referred to in paragraph 2. Comcare made a determination to that effect on 29 January 2015, and affirmed it on reconsideration on 24 February 2015. Ms Ringshaug sought a review of that decision by this Tribunal on 19 March 2015 (2015/1278 – the second action).9.On 12 November 2014, Ms Ringshaug lodged a claim for workers’ compensation for a secondary condition of Secondary Major Depressive Disorder and Adjustment Disorder with Anxiety. In it she claimed that the condition developed as result of her previous physical injuries, saying she first noticed her condition on 17 May 2013 and first sought treatment for it on 21 May 2013. Comcare denied liability for this condition on 28 January 2015 and affirmed that decision on 16 March 2015. On 7 April 2015, Ms Ringshaug filed an application in the Tribunal for review of that decision (2015/1602 – the third action).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Reference was made at [17] above to the argument that the Tribunal had misunderstood the nature and extent of the concession made on behalf of Ms Ringshaug in relation to the impact of failure on the first action on success on the second action. At the hearing of the appeal, it was argued on her behalf that the concession as to the second action failing if the first action failed was confined in nature. It was asserted to have been limited to failure on the first action upon the basis of reasonable administrative action only and not to have extended to failure only upon the basis of a finding of an insufficient ailment. The reasoning was that failure on the first action on the basis of insufficient ailment only did not preclude success on the second action because the psychosomatic illness might be severe enough even though its source was not. It is not necessary to consider whether the doubtful proposition standing behind the asserted more limited concession is correct or not. That is for two reasons. First and most fundamental, I have carefully considered the portions of transcript to which I was taken by the parties and consider that the Tribunal was correct to regard the wider concession as having been made on Ms Ringshaug’s behalf. If a more limited concession was intended, that was not what was conveyed. The Tribunal was entitled to proceed upon the basis that the wider concession had been made. Secondly, even on the narrower concession, failure on the reasonable administrative action ground for the first action necessarily meant failure on the second action. As the High Court decision dictates failure of the first action on the reasonable administrative action ground, the second action must also fail.Conclusion By reason of the above, this application must be dismissed.Costs As to costs, it was submitted on behalf of Ms Ringshaug that in the event that the application was dismissed, she should not be ordered to pay Comcare’s costs because she was entitled to and did rely on the state of the law as it stood at the time of the Tribunal hearing and at the time of lodging and arguing her appeal in this Court. It was submitted that in those circumstances it would be unfair and impose a great financial hardship on Ms Ringshaug if she were ordered to pay the Commonwealth’s costs. Comcare sought to be heard on the question of costs after judgment, which is the course I propose to adopt by way of a timetable for short written submissions and a determination in Chambers.
Ratio Decidendi
Legal Principle Established
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