Wuth v Comcare

Case [2022] FCAFC 42

FEDERAL COURT OF AUSTRALIA

Wuth v Comcare [2022] FCAFC 42

Appeal from: Wuth and Comcare (Compensation) [2020] AATA 3625
File number(s): ACD 49 of 2020
Judgment of: GRIFFITHS, WHEELAHAN AND SNADEN JJ
Date of judgment: 22 March 2022
Catchwords:

WORKERS’ COMPENSATION – appeal from a decision of the Administrative Appeals Tribunal heard by the Full Court in the court’s original jurisdiction – where the Tribunal determined that the applicant did not suffer an “injury” for the purposes of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) and therefore that Comcare was not liable to pay her compensation – where the Tribunal found that the applicant suffered from chronic daily headaches which were materially contributed to by her former employment, but which were not supported by identifiable physiological change – whether an identifiable physiological change is required to establish a “disease” as a criteria of an “injury” – consideration of Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 – identifiable physiological change not required to establish a “disease” – on the facts found by the Tribunal, the applicant suffered a “disease”.  

ADMINISTRATIVE LAW – appeal from the Tribunal’s decision to affirm Comcare’s calculation of normal weekly earnings pursuant to s 8(5) of the Act – where the Tribunal approached the review by reference to previous judgments in proceedings between the parties given by a single judge and by the Full Court concerning s 8(1) of the Act, and reached its conclusion based upon speculation as to how that single judge and Full Court would have addressed the relevant questions under s 8(5) – the Tribunal failed to direct itself to the correct questions, failed to engage with the parties’ submissions, and misapplied the relevant judgments – application remitted for rehearing.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 34D(2), 44, 44(3)(b) and 44(7)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 4(1), 5B, 7(4), 8, 8(1) and 8(2), 8(5), 8(10), 9, 14, 19, 19(1) and (2), 20, 21, 21A, 24, 27, 28, 53(1), 60(1), 62, 64, 67, 69(a) and 72(a)

Workers’ Compensation Act 1951 (ACT) ss 7(1), 9(1)
Cases cited:

Accident Compensation Commission v McIntosh [1991] 2 VR 253

Australian Postal Corporation v Burch (1998) 85 FCR 264

Ball v William Hunt & Sons Ltd [1912] AC 496

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

Comcare v Canute [2005] FCAFC 262; 148 FCR 232

Comcare v Mooi (1996) 69 FCR 439

Comcare v Wuth [2017] FCA 433; 72 AAR 84

Comcare v Wuth [2018] FCAFC 13; 260 FCR 89

Comcare v Wuth (No 2) [2018] FCAFC 60

Commonwealth v Hornsby (1960) 103 CLR 588

Commonwealth v Snell [2019] FCAFC 57; 269 FCR 18

Favelle Mort Ltd v Murray (1976) 133 CLR 580

Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317

Hume Steel Ltd v Peart (1947) 75 CLR 242

James Patrick & Co Pty Ltd v Sharpe [1955]…

Continue reading Wuth v Comcare

Sign in free to access the full text

Details
AGLC
Wuth v Comcare [2022] FCAFC 42
Case
[2022] FCAFC 42
Decision Date

CaseChat Overview and Summary

Wuth appealed the decision of the Administrative Appeals Tribunal, which affirmed Comcare’s decision to calculate her normal weekly earnings under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal found that Wuth did not suffer a compensable injury and was therefore not entitled to compensation. The key legal issues were whether Wuth's chronic daily headaches constituted a compensable injury under the Act and whether the Tribunal correctly calculated her normal weekly earnings. The Full Court found that Wuth had suffered a disease which was caused by her employment, and therefore constituted a compensable injury. The Full Court also held that the Tribunal failed to direct itself to the correct questions, did not properly engage with the parties' submissions, and misapplied relevant judgments in calculating Wuth's normal weekly earnings. Consequently, the Full Court set aside the Tribunal’s decision and remitted the matter for rehearing.

The Full Court reviewed the Tribunal's approach to the question of whether Wuth had suffered a compensable injury. It noted that the Tribunal found Wuth's headaches were materially contributed to by her employment, but that there was no identifiable physiological change. The Full Court clarified that an identifiable physiological change is not required to establish a disease for the purposes of the Act, following the decision in Military Rehabilitation and Compensation Commission v May. Given the Tribunal's findings, the Full Court concluded that Wuth had indeed suffered a disease that was caused by her employment, and thus a compensable injury. Regarding the calculation of normal weekly earnings, the Full Court found that the Tribunal misapplied previous judgments and failed to properly engage with the submissions of the parties. The Tribunal's approach was speculative, and it did not direct itself to the correct questions. Consequently, the Full Court set aside the Tribunal's decision and remitted the matter for rehearing. The Full Court also ordered that the costs of the appeal be reserved for determination upon remittal and that Comcare pay Wuth's costs of the proceeding.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal in application 2018/4238, affirming Comcare’s decision dated 27 July 2018, is set aside.

3. Application 2018/4238 is remitted to the Administrative Appeals Tribunal to be heard and decided again, in accordance with these reasons and otherwise according to law.

4. The costs to date in application 2018/4238 be reserved to the Administrative Appeals Tribunal for determination upon remittal.

5. The respondent pay the applicant’s costs of this proceeding.

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

Background

Background to the litigation

Section 64 provides for application to be made to the Tribunal for review of a “reviewable decision”, which is defined by s 60(1) as including a decision made under s 62.Background The applicant was employed by the Commonwealth for a number of years. In December 2005, when the applicant worked in Canberra at the Department of Health and Ageing, she contracted a viral condition, referred to as Epstein-Barr virus, which resulted in migraine headaches. This condition was not alleged to be work-related. On 14 November 2006, the applicant accepted an offer of permanent re-assignment from the Department of Health and Ageing to the Department of Finance and Administration (as it was then known) with effect from 27 November 2006. The offer of re-assignment stated that the applicant’s employment would be part-time at 29.4 hours per week. A payroll check list that was in evidence noted that the applicant would be working Monday, Tuesday, Thursday and Friday. The applicant and the Secretary of the Department of Finance and Administration entered into an Australian Workplace Agreement under the Workplace Relations Act 1996 (Cth). The applicant executed the Agreement on 31 May 2007, and a delegate or agent of the Secretary executed the Agreement on 18 June 2007. As to the applicant’s hours of work, the Agreement provided –2.3 Hours of workYou are required to work ordinary hours and such reasonable additional hours as are necessary for the performance of your duties. Your ordinary hours are 36 hours and 45 minutes per week or 7 hours and 21 minutes per day, subject to any part-time arrangements agreed between you and your Manager. If you work part-time your remuneration (salary and any performance bonus) and leave entitlements will be calculated on a pro rata basis, based on the full-time ordinary hours.Your remuneration includes payment for all hours worked, including reasonable additional hours. The relevant period for the purposes of calculating the average hours you work shall be 12 months.Time Off In Lieu (TOIL) may be granted by your Manager in consultation with the General Manager to recognise short term additional hours worked.Supplementary leave may be determined by the Remuneration Committee to recognise additional hours spent on specific, approved projects. At the time of the applicant’s transfer to the Department of Finance and Administration in November 2006, she was no longer experiencing headaches. However, subsequently the applicant was required to work more hours than those that had been specified, and between early 2007 and May 2007 she developed migraine headaches when she was working long hours and was fatigued. The applicant has not worked since May 2008 as a consequence of a debilitating condition from which she claims to suffer, which involves chronic daily headaches. On 27 May 2010, the applicant’s employment by the Commonwealth was terminated on the grounds of invalidity. Following her retirement, the applicant was in receipt of a superannuation pension.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 27 July 2018, the applicant applied to the Tribunal to review Comcare’s reviewable decision of the same day to calculate her normal weekly earnings by reference to 29.4 weekly hours pursuant to s 8(5) of the SRC Act. This resulted in two applications by the applicant to the Tribunal that were on foot at that time –(1)2014/4007 – the application relating to the impairment assessment that was remitted by the Full Court by its orders of 18 April 2018; and(2)2018/4238 – the application for review of Comcare’s decision of 27 July 2018 in relation to the calculation of normal weekly earnings.The Tribunal’s decision The Tribunal heard and determined both matters together, giving its decision on 3 September 2020 supported by one statement of reasons that addressed both applications for review. The principal finding made by the Tribunal was that the applicant had not suffered a compensable injury for the purposes of the central provision in s 14 of the SRC Act. It will be recalled that by the decision made 14 September 2012 to which I referred at [33] above, the Tribunal decided, with the agreement of the parties, that Comcare was liable to pay compensation to the applicant pursuant to s 14 of the Act in respect of chronic daily headache, which necessarily entailed a finding of compensable injury. The Tribunal’s decision that the applicant had not suffered a compensable injury had the result that the applicant did not qualify for any payments of compensation, whether they be lump sum payments under ss 24 and 27, or weekly payments under s 19 of the Act. I pause to note that Comcare, by its counsel, informed the court that Comcare would not seek to recover payments that had previously been made to the applicant on the ground that there was no injury, and therefore no liability to pay compensation to the applicant. The Tribunal conducted an oral hearing over two days, and received written submissions from counsel appearing for the applicant and for Comcare. In addition to the written material that was before the Tribunal, the Tribunal heard evidence. The applicant gave evidence, and the Tribunal found her to be a witness of truth, as had the Tribunal on the first occasion in Wuth and Comcare (Compensation) [2015] AATA 947. The Tribunal also heard evidence by telephone from two medical witnesses, A/Prof Paul Darveniza, who was a medico-legal witness engaged on behalf of the applicant, and Dr Ross Mellick, who was a medico-legal witness engaged on behalf of Comcare. There was also other medical evidence before the Tribunal in the form of written medical reports, including from treating medical practitioners. Those written reports included the report of A/Prof Garrick dated 14 September 2009, to which I referred earlier, in which he stated that the applicant’s headaches, “originate from an inflammatory process but are now based on persisting disordered neurotransmission”. The contested medical issues included whether the applicant’s injury continued to be causally connected in any material degree to the applicant’s employment. On that issue, the Tribunal preferred the evidence of A/Prof Darveniza, whose evidence the Tribunal described as lucid, rational, and persuasive.

Ratio Decidendi

Legal Principle Established

Section 62 provides that a “determining authority” may reconsider a determination –62 Reconsideration of determinations(1)A determining authority may, on its own motion:(a)reconsider a determination made by it;(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.(2)A request to a determining authority to reconsider a determination made by it may be made by:(a)the claimant; or(b)if the determination affects the Commonwealth—the Commonwealth; or(c)if the determination affects a Commonwealth authority—that Commonwealth authority.…(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit. Sub-section 60(1) defines “determining authority” in relation to a determination as the person who made the determination. Section 64 provides for application to be made to the Tribunal for review of a “reviewable decision”, which is defined by s 60(1) as including a decision made under s 62.Background The applicant was employed by the Commonwealth for a number of years. In December 2005, when the applicant worked in Canberra at the Department of Health and Ageing, she contracted a viral condition, referred to as Epstein-Barr virus, which resulted in migraine headaches. This condition was not alleged to be work-related. On 14 November 2006, the applicant accepted an offer of permanent re-assignment from the Department of Health and Ageing to the Department of Finance and Administration (as it was then known) with effect from 27 November 2006. The offer of re-assignment stated that the applicant’s employment would be part-time at 29.4 hours per week. A payroll check list that was in evidence noted that the applicant would be working Monday, Tuesday, Thursday and Friday. The applicant and the Secretary of the Department of Finance and Administration entered into an Australian Workplace Agreement under the Workplace Relations Act 1996 (Cth). The applicant executed the Agreement on 31 May 2007, and a delegate or agent of the Secretary executed the Agreement on 18 June 2007. As to the applicant’s hours of work, the Agreement provided –2.3 Hours of workYou are required to work ordinary hours and such reasonable additional hours as are necessary for the performance of your duties. Your ordinary hours are 36 hours and 45 minutes per week or 7 hours and 21 minutes per day, subject to any part-time arrangements agreed between you and your Manager. If you work part-time your remuneration (salary and any performance bonus) and leave entitlements will be calculated on a pro rata basis, based on the full-time ordinary hours.Your remuneration includes payment for all hours worked, including reasonable additional hours. The relevant period for the purposes of calculating the average hours you work shall be 12 months.Time Off In Lieu (TOIL) may be granted by your Manager in consultation with the General Manager to recognise short term additional hours worked.Supplementary leave may be determined by the Remuneration Committee to recognise additional hours spent on specific, approved projects.