Woodhouse v Comcare

Case [2021] FCAFC 95

FEDERAL COURT OF AUSTRALIA

Woodhouse v Comcare [2021] FCAFC 95

Review of: Application for judicial review of the Administrative Appeals Tribunal decision delivered on 20 July 2020 by Member D K Grigg
File number(s): QUD 264 of 2020
Judgment of: COLLIER, RANGIAH AND DERRINGTON JJ
Date of judgment: 7 June 2021
Catchwords:  WORKERS’ COMPENSATION – appeal from Administrative Appeals Tribunal – whether employee suffered “disease” within meaning of s 4(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether employment must continue to contribute to ailment to a material degree – whether employee entitled to compensation pursuant to ss 14 or 16 in respect of injury that has resolved – whether entitlement to compensation pursuant to s 19 is dependent on entitlement to compensation pursuant to s 14 – appeal dismissed
Words and Phrases: “disease”, “injury”
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 19  
Cases cited:

Australian Postal Corp v Oudyn (2003) 73 ALD 659; [2003] FCA 318

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47

Clement and Comcare [2010] AATA 296

Clement v Comcare [2012] FCA 166

Comcare v Laidlaw (1999) FCR 141; [1999] FCA 40

Comcare v Porter (1996) 70 FCR 139; [1996] FCA 562

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192

Farah Constructions Pty Ltd v Say‑Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Garcia v National Australia Bank Limited (1998) 194 CLR 395; [1998] HCA 48

Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145

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

Queensland v Forest (2008) 168 FCR 532; [2008] FCAFC 96

Division: Fair Work Division
Registry: Queensland
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 126
Date of last submissions: 19 February 2021 (Applicant)
5 March 2021 (Respondent)
Date of hearing: 5 February 2021
Counsel for the Applicant: Mr M Black and Mr P Nolan
Solicitor for the Applicant: Maurice Blackburn
Counsel for the Respondent: Mr A Berger QC and Ms K Slack
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

QUD 264 of 2020
BETWEEN:

JACQUELINE WOODHOUSE

Applicant
AND:

COMCARE

Respondent

ORDER MADE BY:

COLLIER, RANGIAH AND DERRINGTON JJ

DATE OF ORDER:

7 JUNE 2021

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The applicant is to pay the respondent’s costs of the appeal.

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


REASONS FOR JUDGMENT

COLLIER J:

  1. I am very grateful to his Honour Derrington J for providing me his reasons in draft, I entirely agree with his Honour’s reasoning and proposed orders.

I certify that the preceding one (1) numbered paragraph is a true copy of…

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AGLC
Woodhouse v Comcare [2021] FCAFC 95
Case
[2021] FCAFC 95
Decision Date

CaseChat Overview and Summary

The applicant, a former employee of the Queensland Orchestra, appealed to the Federal Court of Australia against a decision of the Administrative Appeals Tribunal (AAT) to affirm a decision by Comcare. The applicant sought compensation for injuries sustained during her employment, specifically a severe panic attack in 2003 that led to her inability to continue working. The primary legal issues before the court were whether the applicant's employment with the Queensland Orchestra materially contributed to her compensable conditions and whether she remained entitled to compensation for these conditions under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The court examined the construction of the term "disease" within the SRC Act and whether it required the applicant's employment to continue contributing to her condition to a material degree. The AAT had determined that while the applicant's employment did contribute to her condition, her current psychological ailments were not materially contributed to by her former employment due to the significant impact of non-work-related factors. The court upheld the AAT's decision, finding that the applicant's conditions were no longer materially contributed to by her employment with the Queensland Orchestra.

The Federal Court found that the AAT did not err in its construction of the definition of "disease" as it applied the correct legal principles and properly considered the evidence. The court also concluded that the applicant was not entitled to compensation because her current incapacity was not due to the injury resulting from her employment, and there was no evidence to suggest she would be susceptible to future depressive episodes as a result of the compensable injuries.

The appeal was dismissed, and the applicant was ordered to pay Comcare's costs of the appeal. The decision underscores the importance of the ongoing material contribution of employment to the compensable condition for continued entitlement to compensation under the SRC Act.

Orders

Orders of the court

1. The appeal is dismissed.

2. The applicant is to pay the respondent’s costs of the appeal.

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

Background

Background to the litigation

The culmination of those events was that the applicant experienced a severe panic attack in August 2003 while performing with the QO, resulting in her abruptly leaving the stage before the performance had ended (the Incident). Putting aside how the ailments from which she suffered following the Incident and their cause were to be classified, it is clear on the findings of the Tribunal that her mental health deteriorated significantly at the time of or following the Incident. The pharmacology regime prescribed by her treating psychiatrist was ineffective. Her attempts to return to work undertaking alternative work or working reduced hours were also unsuccessful, and she was ultimately unable to return to work in any capacity.Legislative background The SRC Act was originally enacted as the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth). It established a new statutory workers’ compensation scheme for persons who suffer injuries in the course of their employment with the Commonwealth or a Commonwealth authority: Explanatory Memorandum to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (Cth) (Explanatory Memorandum), 8. In that regard, it replaced the former Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) which had in turn replaced the earlier Commonwealth Employees’ Compensation Acts 1930-1970 (Cth). Paragraph (c) of the definition of “Commonwealth authority” in s 4(1) of the SRC Act confers a power upon the responsible Minister to declare certain bodies corporate to be Commonwealth authorities. In 2000, a declaration was made in respect of the QO’s corporate entity, Queensland Orchestras Pty Ltd: Safety, Rehabilitation and Compensation Act 1988 – Notice of Declaration – Queensland Orchestras Pty Ltd (Notice No. 4 of 2000). Accordingly, while the applicant was employed as a violinist with the QO, she was an “employee” for the purposes of the SRC Act: s 5(1). Presently, she remains an employee under the SRC Act, but for limited purposes: s 5(9). Part II of the SRC Act governs the circumstances in which Comcare is liable to pay compensation in respect of an “injury” suffered by an “employee”. Section 14 is pivotal to this appeal. It makes Comcare liable to pay compensation in respect of injuries that result in death, incapacity for work, or impairment, and provides:14 Compensation 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.(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment. The provisions in Part II following s 14 provide more specifically in relation to Comcare’s liability to pay compensation under that provision by reference to the detrimental consequences of the injury: injuries resulting in death (Division 2); injuries resulting in incapacity (Division 3); and injuries resulting in impairment (Division 4).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 18 October 2017, the applicant applied to the Tribunal for a review of Comcare’s decision. On 20 July 2020, the Tribunal affirmed that decision (the Tribunal’s decision).THE TRIBUNAL’S DECISION The Tribunal identified the factual issues for determination as follows (at [54] and [55]):(a)whether the applicant continued to suffer from the compensable conditions accepted by Comcare in 2004; and(b)whether those conditions continued to be materially contributed to by the applicant’s previous employment with the QO (such that she continued to be entitled to receive compensation pursuant to ss 16 and 19 of the SRC Act). The framing of the issues in this way plainly derives from the issues identified for determination in the AFSIC and in Comcare’s Amended Statement of Facts, Issues and Contentions dated 28 June 2016. The latter issue is premised on the construction of the term “disease” (as that term was formerly defined in s 4(1)) as requiring that an “ailment” continue to be contributed to in a material degree by the applicant’s relevant employment. It was not in dispute that this was the construction adopted by the Tribunal in reaching its decision. Counsel of the applicant, Mr Black, accepted that this was also the construction which the parties had submitted the Tribunal should adopt. In determining the issues stated above, the Tribunal assayed a considerable volume of medical evidence produced by the parties concerning the applicant’s mental health since her childhood. That evidence included various medical reports discussing the causes and classification of the applicant’s conditions before and at times after the Incident. The parties’ respective experts, Dr Lovell and Dr Mathew, also gave concurrent evidence to the Tribunal at the hearing: see [116] to [118] of the Tribunal’s decision. The key findings and conclusions of the Tribunal may be summarised as follows:(1)Prior to the Incident, the applicant had:·a pre-existing anxiety disorder: at [90]; and ·a pre-existing depressive disorder: at [96]; described as a “recurrent form of depression”: at [101].(2)The Tribunal was not satisfied on the available evidence that the applicant had MDD prior to the Incident, but it was clear that she had MDD following the Incident: at [101].(3)In the course of the applicant’s employment with the QO, she experienced the following (the Employment Factors): at [56] and [73]:·bullying and harassment during the merger of the QPO and the QSO;·shock and upset upon learning of the complaint about her; and·a loss of confidence and increased anxiety culminating in the Incident.(4)In 2004, the applicant had the following compensable conditions (the Compensable Injuries): at [103]:·an “[a]ggravation of depressive disorder resulting in major depressive disorder, recurrent” or, more specifically, the applicant had MDD: at [101]; and·an “[a]ggravation of anxiety state”.(5)The Employment Factors caused the applicant to develop the Compensable Injuries: at [102] and [161]. This was, in effect, a finding that her employment with the QO contributed, in a material degree, to those Compensable Injuries: at [102] and [103].(6)Based on the absence of evidence of the applicant receiving treatment between February 2008 and December 2009, it was likely that her symptoms from the Compensable Injuries had resolved at that time: at [166].(7)The applicant presently suffers from “recurrent major depressive disorder, social anxiety disorder, panic disorder largely in remission and a generalised anxiety disorder”: at [140].(8)After 2004, there were “a plethora of non-work-related factors contributing to [the applicant’s] ongoing symptomology” (the Non-Employment Factors): at [170] and [171]. Those factors included, in particular, her feelings in relation to the loss of her career as a professional violinist and her related sense of lost opportunity: at [172].(9)The Tribunal specifically rejected the applicant’s submissions that any of the Non-Employment Factors were the “resultant effects” of the Compensable Injuries in the sense that those factors would not have arisen “but for” those injuries: at [157] and [158]. There was no evidence to support such findings: at [150]; nor to support a finding that she had been left susceptible to future depressive episodes as a result of the Compensable Injuries: at [151] and [158]. Rather, it was “an undisputed fact that [she] has been suffering from essentially lifelong anxiety”: at [158].(10)Given the extent and significance of the Non-Employment Factors and their impact on the applicant, her condition can no longer be said to be “contributed to a material degree by her employment with the QO over 15 years ago”: at [173]. Those factors have “crowded out” the Employment Factors which originally gave rise to her Compensable Injuries: at [173]. Put another way, “[the applicant’s] current psychological ailments are not contributed to, to a material degree, by the claimed Employment Factors that were the subject of her 2003 claim for compensation”: at [178].(11)There was no evidence before the Tribunal that “[the applicant’s] incapacity would not have occurred but for the injury” (such that s 7(6) would apply): at [174]. In context, this should be understood as meaning her current incapacity would not have occurred but for her former “injury” (constituted by the Compensable Injuries).

Ratio Decidendi

Legal Principle Established

The conclusion reached above is unfortunate because it thwarts the applicant’s success on Question 1 where her substantive argument is not wholly devoid of merit. This is all the more unfortunate where the issue raised is of considerable importance to her and is of importance to the operation of the statutory scheme created by the SRC Act. In those circumstances, and because the new point was argued at length, it is convenient to consider the issue raised by Question 1 in relation to the proper construction of “disease” for the purposes of the SRC Act.Did the Tribunal err by failing to address issue that was not raised for its consideration? Before doing so, however, it is necessary to briefly consider the submission that the Tribunal did not err by failing to consider an issue that was not raised for its consideration: Commissioner of Taxation v Glennan (1999) 90 FCR 538 (Glennan) [82]. While that “general rule” may be accepted as being correct, it may not necessarily apply where the issue raised concerns the proper construction of the provisions which the Tribunal had to and did apply: Commissioner of Taxation v Service [1999] FCA 1304 [27]. Furthermore, the statement of a “general” rule implicitly assumes that there may be exceptions: Batchelor v Commissioner of Taxation (2014) 219 FCR 453 [94]. See also Carpentaria Transport Pty Ltd v Commissioner of Taxation [1990] FCA 311 [10]. The circumstances of this case appear to fall within an exception to that rule, if it applies at all. In particular, there is difficulty in accepting that the Tribunal does not err where it adopts an erroneous construction of a provision (even at the submission of the parties) with the consequence that it misunderstands the factual inquiry to be undertaken and incorrectly determines a person’s statutory rights. The position may differ where the Tribunal does not consider the application of a provision at all and, in such a case, it could properly be said that it was not raised as an issue before the Tribunal. The effect of the discussion above is not to preclude a party from contending that the other party should not be permitted to raise a new construction of a provision which the Tribunal had to and did apply. Indeed, in that case, the principles discussed above in relation to when a party should be permitted to raise a new point on appeal provide a better framework within which to determine when a party should be bound by its conduct of proceedings at first instance.What is the proper construction of the definition of “disease”?The applicant’s submissions The essence of the applicant’s submissions in support of the new construction was that there was no basis in s 14 or the definitions for construing the definition of “disease” as requiring an employee’s employment to continue to contribute to their condition. Rather, the use of the past tense “was” in that definition should be given effect such that an ailment or an aggravation thereof is a “disease” if it was ever contributed to, in a material degree, by relevant employment. On that construction, the employee would then be entitled to compensation so long as that ailment or the aggravation of an ailment continued, subject to any other restrictions in SRC Act. The need to give effect to the use of the past tense was said to be emphasised by the contrasting use of the present tense in relation to the term “injury” in ss 16 and 19.