Watson and Comcare (Compensation)

Case [2020] AATA 5162

Watson and Comcare (Compensation) [2020] AATA 5162 (22 December 2020)

Division:GENERAL DIVISION

File Number:          2017/3377

Re:Colin Watson

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:22 December 2020

Place:Brisbane

The Tribunal affirms the decision under review.

...................................[SGD].....................................

Member D K Grigg

CATCHWORDS

COMPENSATION – employees – whether applicant entitled to compensation for permanent impairment – whether impairment became permanent prior to the commencement of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – application of the transitional provisions under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether section 24(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is applicable to a determination of the permanency of an impairment prior to 1 December 1988 – whether permanency can be considered with hindsight – whether applicant suffered from a new impairment arising out of the same injury – decision under review affirmed

LEGISLATION

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Social Security Act 1947 (Cth)

CASES

Bergersen and Comcare [2007] AATA 1373

Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555
Cavanagh and Comcare [2008] AATA 553
Comcare v Levett (1995) 60 FCR 14
Comcare Australia v Maida [2002] FCA 1284; (2002) 36 AAR 69
Comcare Australia v Mathieson (2004) 39 AAR 450
Department of Defence v West (1998) 156 ALR 651; 85 FCR 491
Doering and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 752
Excell v Comcare [2008] FCA 757
Hunter Quarries v Mexon [2018] NSWCA 178
Jamieson and Comcare [2019] AATA 5424
MacFarlane and TNT Australia Pty Ltd (Compensation) [2020] AATA 3721
McDonald v Director-General of Social Security [1984] FCA 59; (1984) 1 FCR 354
O’Keefe v Comcare [1988] FCA 603
Re George John Blackman v Australian Telecommunications Corporation [1990] FCA 295
Spradau and Comcare [2020] AATA 2054
Springhetti and Comcare [2007] AATA 1504

THSV and Military Rehabilitation and Compensation Commission (Verterans’ entitlements) [2018] AATA 3201

SECONDARY MATERIALS

Dr Harvey Marcovitch, Black’s Medical Dictionary (Bloomsbury, 43rd ed, 2017)

Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed, 2000)

CONTENTS

REASONS FOR DECISION

INTRODUCTION & CLAIMS HISTORY

ISSUES FOR DETERMINATION

LEGISLATIVE REQUIREMENTS

Compensation for a Permanent Impairment

Compensation for Non-economic Loss

1971 Act

Operation of section 124 of the Act

CONTENTIONS – SUMMARY

Mr Watson’s Contentions

Comcare’s Contentions

MR WATSON’S PSYCHOLOGICAL IMPAIRMENT – WHEN DID IT BECOME PERMANENT

Medical Evidence

Determining Permanency

Do the matters set out in section 24(2) of the Act need to be considered?

Can permanency be considered with the benefit of hindsight?

What is a permanent impairment?

CONSIDERATION

Did Mr Watson have a permanent impairment prior to 1 December 1988

Status of Mr Watson’s current condition

Is there an ongoing contribution from work?

Section 24(2) Factors

Duration of the impairment (section 24(2)(a), Act)

Likelihood of Improvement/Had Mr Watson undertaken all reasonable rehabilitative treatment for the impairment by 1 December 1988? (sections 24(2)(b) and 24(2)(c), Act)

Conclusion – Permanency

HAS MR WATSON SUFFERED…

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Details
AGLC
Watson and Comcare (Compensation) [2020] AATA 5162
Case
[2020] AATA 5162
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Watson for compensation for permanent impairment and non-economic loss under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the Act). The dispute centred on whether Mr Watson's impairment had become permanent prior to the commencement of the Act on 1 December 1988, which would render him ineligible for compensation under the Act. The decision was made by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were to determine when Mr Watson's condition became permanent and whether he had developed a new impairment arising from the same injury. These determinations were crucial for assessing his entitlement to compensation under sections 24 and 27 of the Act, particularly in light of the transitional provisions governing injuries sustained before the Act's commencement.

The Tribunal considered whether section 24(2) of the Act, which outlines factors to be considered in determining permanency, applied to impairments that became permanent before 1 December 1988. While Comcare argued that section 24(2) was not in force at that time and therefore inapplicable, the Tribunal disagreed, citing binding decisions such as *Brennan* and *Department of Defence v West*. These authorities established that section 24(2) is relevant for assessing permanency even for pre-commencement impairments, as the Act's transitional provisions create new rights in respect of past events. The Tribunal also considered the Full Federal Court's interpretation of section 124(3) of the Act in *Brennan* and *Comcare v Levett*, which clarified that an employee is disentitled to compensation if they were not entitled to a lump sum under the previous 1971 Act for an impairment that became permanent before 1 December 1988.

The Tribunal affirmed the reviewable decision, finding that Mr Watson's compensable condition was permanent prior to the commencement of the Act. Consequently, the 1971 Act applied, and Mr Watson was not entitled to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Table B provides relevant excerpts of the experts’ opinions as contained in their respective reports. Table C provides a comparison of the experts’ opinions. Table D sets out, in chronological order, the medical treatment Mr Watson has received for his mental health condition since October 1987.TABLE A: MEDICAL EVIDENCE – CHRONOLOGY (from date of incident) Before considering the medical evidence, two preliminary issues need to be decided:(a)Does the Tribunal need to have regard to section 24(2) of the Act in determining whether Mr Watson’s impairment is permanent?(b)Can permanency be considered with the benefit of hindsight?Do the matters set out in section 24(2) of the Act need to be considered? Section 24(2) of the Act provides that for the purposes of determining whether an impairment is permanent, regard must be had to the following factors (“Section 24(2) Factors”):(a) the duration of the impairment; (b) the likelihood of improvement in the employee's condition; (c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and (d) any other relevant matters. Mr Watson contends that the Section 24(2) Factors must be considered in determining whether Mr Watson’s condition was “permanent” (i.e. section 4, “likely to continue indefinitely”) before 1 December 1988. Comcare contends that section 24(2) of the Act does not apply here because it was not in force before 1 December 1988. The equivalent of section 24(2) of the Act was not contained in the 1971 Act. Ms Wright, Counsel for Comcare, contends that because an applicant is not, by virtue of section 124(3) of the Act, entitled to lump sum compensation for an impairment which became permanent prior to 1 December 1988, the issue of permanency must be assessed in accordance with the law as it stood prior to 1 December 1988. Ms Wright referred to the decision of Levett (at 19) where the Court found that section 24 does not apply to an employee if the person was not entitled to receive lump sum compensation in respect of an impairment under the 1971 Act. See the discussion of the Federal Court’s position on the operation of section 124(3) of the Act in paragraphs 24-27 above. Section 124(1) makes it clear that, subject to Part X, the Act applies whether the injury or loss occurred before or after 1 December 1988. That is, but for the transitional provisions, the remainder of the Act applies to “old injuries”. Whether Mr Watson was entitled to lump sum compensation under the 1971 Act is only relevant to the extent of determining whether such compensation continues to be excluded under the Act. The Tribunal disagrees with Comcare regarding the application of section 24(2) of the Act. Several decisions, binding on the Tribunal, indicate that section 24(2) is relevant to determining the permanency of an impairment prior to 1 December 1988. In Brennan, Gummow J held that, for the purpose of determining whether the exclusion set out in section 124(3) of the Act applies, reference must be made by Comcare to section 24(2) of the Act which sets out what has to be considered in determining whether an impairment is permanent.[35] Gummow J said “[t]he criteria to which Comcare shall have regard in determining whether an impairment is permanent are specified in s 24(2)”.[36] In Department of Defence v West (1998) 85 FCR 491;156 ALR 651 (“West”), Heerey J identified that section 24(2) of the Act is relevant to a determination of whether an impairment has become permanent. Heerey J said:[37] The respondent’s 1968 injury resulted in “a permanent impairment”. Hence the 1988 Act applies to him, and Comcare is liable to pay compensation to him under that Act (s 24(1)), but subject to Part X (s 124(1)). Prima facie that compensation is to be assessed in accordance with ss 24(2) to (9) and 25…[35] (1994) 50 FCR 555, at 566-567.[36] (1994) 50 FCR 555, at 575.[37] (1998) 85 FCR 491, at 500.

Decision

Reasons for decision

By reviewable decision dated 4 April 2017 the Determination was affirmed, and the Comcare reconsideration officer found that Mr Watson’s compensable condition was permanent prior to the commencement of the Act and that therefore the 1971 Act applied (“Reviewable Decision”).[10][10] Exhibit 1, T Documents, T54, pages 165-168, Reviewable decision dated 4 April 2017. Mr Watson then applied for a review of the Reviewable Decision by this Tribunal.[11][11] Exhibit 1, T Documents, T1, pages 6-8, Application for Review of Decision dated 28 September 2015.ISSUES FOR DETERMINATION The issue for determination is whether Mr Watson is entitled to compensation for a permanent impairment and non-economic loss under sections 24 and 27 of the Act, which involves determining:(a)when Mr Watson’s condition became permanent; and(b)whether Mr Watson has developed a new impairment.LEGISLATIVE REQUIREMENTSCompensation for a Permanent Impairment The right to compensation for an employee for injuries resulting in permanent impairment under the Act is conferred by section 24 of the Act, which relevantly provides:(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury. (2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to: (a) the duration of the impairment; (b) the likelihood of improvement in the employee's condition; (c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and (d) any other relevant matters. (3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment. (4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5). (5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.(6)The degree of permanent impairment shall be expressed as a percentage. (7)Subject to section 25, if: (a) the employee has a permanent impairment…; and(b) Comcare determines that the degree of permanent impairment is less than 10%;an amount of compensation is not payable to the employee under this section. …(emphasis added) “Injury” is defined in section 5A of the Act to mean, so far as this case is concerned:(1) (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;…

Ratio Decidendi

Legal Principle Established

Therefore, if the 1971 Act applies, because Mr Watson has an impairment which became permanent before the Commencement Date, compensation is not payable to Mr Watson.Operation of section 124 of the Act The Full Federal Court considered the operation of section 124 of the Act in Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555 (“Brennan”). Burchett J explained that, by virtue of section 124(1) of the Act “subject to any qualification imposed by any other provision of Pt X, the date of the injury to which an impairment is attributable is irrelevant to the operation of s 24”.[15] The relevant qualification is provided for in section 124(3) of the Act. Burchett J held the wording of section 124(3) of the Act makes it clear that the 1988 Act applies regardless of when the impairment arose. He said that there may be more than one impairment arising out of the same injury at different times and that if Parliament had “intended to exclude the operation of the 1988 Act wherever an injury had resulted in any permanent impairment arising before the commencing date, it could easily have said so.”[16] Instead, section 124(3) of the Act provides what is compensable in that circumstance.[15] (1994) 50 FCR 555, at 557.[16] (1994) 50 FCR 555, at 557. Gummow J, also in Brennan, said in terms of whether the 1971 Act continues to apply, that the transitional provisions do not “preserve” old rights but instead create “new rights in respect of past events”.[17] Gummow J said three questions need to be answered in determining whether an applicant is excluded from receiving compensation under section 24 of the Act for a permanent impairment. Gummow J set out those questions as follows:[18][1]…The first is that there must have been an injury[2]…the injury must have resulted in an impairment[3]…[the impairment] must have been permanent, that is to say likely to continue indefinitely. That state of affairs must have been reached before the commencement date. [17] (1994) 50 FCR 555, at 562; see also Comcare v Levett (1995) 60 FCR 14, at 15.[18] (1994) 50 FCR 555, at 569-570. In Comcare v Levett (1995) 60 FCR 14 (“Levett”) the Full Federal Court was also concerned with the construction of section 124(3) of the Act and what was meant by "permanent impairment". The Full Federal Court held that section 124(3) of the Act disentitles an employee to compensation in two situations:[19]…first is when, as a matter of fact, the employee has received compensation of a lump sum. That has no relevance in the present case. The second is when the person was not entitled to receive compensation of a lump sum for an impairment which occurred while the 1971 Act was in force. Thus, the question becomes whether any impairment suffered by the respondent entitled him to a lump sum under the 1971 Act. (emphasis added)[19] (1995) 60 FCR 14, at 18. The Full Federal Court in Levett pointed out that at the stage where one is determining whether a lump sum would have been payable for an impairment under the 1971 Act, one is not concerned with “the question of whether impairment in s 124(3)(b) refers to permanent impairment or impairment simpliciter”.[20] Once it has been determined whether compensation would have been payable, then one turns to the consideration of whether the impairment concerned was a permanent impairment.[20] (1995) 60 FCR 14, at 18.CONTENTIONS – SUMMARY