Comcare v Levett

REASONS FOR JUDGMENT This is an appeal, within the original jurisdiction of the Court, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") from a decision made on 16 October 1997 of the Administrative Appeals Tribunal, General Administrative Division, ("the Tribunal") constituted by a Senior Member. Pursuant to s 43 of the AAT Act, the Tribunal affirmed the decision under review. That was a decision of the respondent Comcare Australia ("Comcare") dated 28 August 1996 which had in turn affirmed a determination dated 12 April 1996 that liability did not exist under ss 24 or 124 of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") in respect of permanent impairment for which the applicant, Mr O'Keefe, had claimed. Mr O'Keefe was born on 16 October 1954. It was agreed between the parties that he commenced employment with the Department of Employment and Industrial Relations on 22 February 1977. He remained in employment with the Commonwealth until 22 June 1988 when he was retired by consent pursuant to subs 76W(1) of the Public Service Act 1922 (Cth) on the grounds of inefficiency. On various occasions in the years from 1979 to 1988 the respondent accepted liability to pay worker's compensation to Mr O'Keefe in respect of an anxiety or depressive illness arising in the course of or out of his employment with the Commonwealth. After his retirement, a dispute arose between Mr O'Keefe and the respondent as to his continuing entitlement to compensation. That dispute was resolved by a consent order recorded in the Administrative Appeals Tribunal on 22 February 1991. By that consent order it was determined: "(i) That since the 22nd day of June 1988 the applicant has suffered from an injury namely an anxiety state which has arisen out of or in the course of or that has been caused, contributed to or exacerbated in a material way by the applicant's former employment with the Commonwealth; (ii) That the said injury has since the 22nd June 1988 caused the applicant to suffer an impairment or incapacity for work. (iii) That the respondent is liable for the payment of compensation to the applicant in respect of the said anxiety state pursuant to the Commonwealth Employees Rehabilitation and Compensation Act 1988 (as amended) from the 23rd day of June 1988." The applicant subsequently made a claim for a lump sum payment for a permanent impairment pursuant to ss 24 and 27 of the 1988 Act. An entitlement to compensation under s 27 is dependent upon compensation being payable under s 24. Section 24 of the 1988 Act 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 sub-section (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, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section. (8) ... (9) For the purposes of this section, the maximum amount is $80,000." Expressions used in s 24 are defined in s 4. It is not necessary for present purposes to discuss the definition of "employee". There is no dispute that Mr O'Keefe was an employee, and the occurrence of an injury is determined by the order of the Tribunal made on 22 February 1991. However, the following definitions are important: "'injury' means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment. 'disease' means: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation. 'impairment' means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function. 'permanent' means likely to continue indefinitely". The day of commencement of the 1988 Act was 1 December 1988, that is, after the date of the injury suffered by Mr O'Keefe, and after his retirement. Part X of the 1988 Act contains transitional provisions. Section 124 relevantly provides: (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day. (1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act. (2) ... (3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if: (a) ... (b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death: (i) ... (ii) ... (iii) in any other case - under the 1971 Act as in force when the impairment or death occurred." It is clear from the language of s 124(1) that compensation may be payable under the 1988 Act in respect of an injury which an employee suffered prior to the commencing day, viz 1 December 1988: see Comcare v Levett (1995) 131 ALR 645. The liability to pay compensation in such a case arises by virtue of s 124: Brennan v Comcare (1994) 50 FCR 555 at 566. The apparently wide conferral of an entitlement to compensation under s 124(1) in respect of injuries occurring before the commencing day is qualified by following provisions in s 124. Plainly Mr O'Keefe fulfils the qualification in subs 124(1A). However, subs 124(3) has been the basis for the adverse decisions which have so far been made in respect of Mr O'Keefe's claim under s 24 by the primary decision-maker, on internal review, and then by the Tribunal. The claim by Mr O'Keefe is for compensation under s 24 for permanent impairment alleged to result from the injury described in the consent order entered on 22 February 1991 as "anxiety state". The decision-makers at each level proceeded on the footing that Mr O'Keefe now suffers a "permanent impairment" as a result of the injury, and that the "permanent impairment" is of a kind that would not have entitled Mr O'Keefe to compensation of a lump sum under the 1971 Act which was in force at the time when the injury occurred. Thus the question to be resolved by each of the decision-makers became whether, within the meaning of s 124(3), Mr O'Keefe was seeking compensation under s 24 in respect of a permanent impairment that occurred before 1 December 1988. The Tribunal had before it the information contained in the documents lodged by Comcare pursuant to s 37 of the AAT Act (the T documents) together with a number of exhibits which included medical reports from several medical practitioners. The Tribunal heard oral evidence from Dr J E Burvill (Mr O'Keefe's treating psychiatrist), and from Mr O'Keefe. The Tribunal concluded that Mr O'Keefe suffered a permanent impairment prior to 1 December 1988, and that he was therefore not entitled to compensation. The notice of appeal alleges that the Tribunal erred in its construction of ss 24(2) and 124(3) of the 1988 Act; that the reasons for decision given by the Tribunal fell short of the standard required by s 43(2) and 2(B) of the AAT Act; that there was no evidence before the Tribunal to support the finding that Mr O'Keefe had suffered a permanent impairment prior to 1 December 1988; and that the Tribunal erred in drawing an inference from the evidence that he had suffered a permanent impairment before that date. The grounds of appeal, and the submissions made in support of them, make it necessary to discuss the factual information before the Tribunal in some detail. This is also necessary as I consider there has been considerable confusion and imprecision in the use of several terms that appear frequently in medical reports and in the oral evidence. For example, there is frequent reference in medical opinions to the "condition" suffered by Mr O'Keefe, and to his "impairment" where the context indicates that the expressions are not being used with a consistent meaning. Sometimes these expressions are being used to refer to the injury described in the consent order, sometimes Mr O'Keefe's vulnerability to a raft of anxiety related symptoms, and sometimes to the actual suffering by Mr O'Keefe of one or more of those symptoms. For this reason the interpretation of some passages of medical evidence is difficult, and it is necessary to construe the medical evidence against the known factual background. Although the injury for which compensation became payable under the consent order is described as "an anxiety state" Dr Burvill in evidence explained that a better description would be "anxiety disorder". He said that an anxiety state describes a set of circumstances at a point in time whereas "anxiety disorder has the characteristic that it can be prolonged and have exacerbations". The expression "anxiety state" is used frequently in the material that was before the Tribunal, sometimes as describing a state of anxiety suffered at a particular point in time, and sometimes as a description of the underlying disorder, ailment or "injury" suffered by Mr O'Keefe. In the course of his work from 1977 Mr O'Keefe was frequently required to interview people seeking social security benefits. Often these people had emotional problems, and at times they were aggressive. Mr O'Keefe reported to doctors that he found the tasks demanding and he felt a lack of energy and a desire to withdraw. In 1979 he developed a panic-anxiety attack at work and it was necessary for him to seek medical assistance from his general practitioner. In 1980 he was referred to a psychiatrist who arranged for him to undergo some relaxation therapy as well as prescribing valium. He continued to seek assistance from his medical practitioner from time to time during 1982 and in the early part of 1983 for what he then described as a "chronic anxiety state". In a medical report dated 10 April 1984 a psychiatrist then treating Mr O'Keefe reported that with this treatment "his condition stabilised but it did not resolve". He continued to suffer from anxiety attacks, hyperventilation, headaches, palpitations and a pulse sensation in various parts of his body. He also had a fear of having a heart attack. On 26 January 1983 he was examined by a Commonwealth Medical Officer who thought he was unfit for continued employment in his duties as he was suffering numerous anxiety and stress related symptoms. Transfer to a job which did not involve direct contact with the public was recommended. On 4 March 1983 Mr O'Keefe ceased work. He was on sick leave for some time, and then on sickness benefits. He did not return to work until 2 April 1984. In respect of a claim for compensation payments made on 23 August 1983 Mr O'Keefe described nine symptoms from which he was suffering, namely: