Comcare v Stefaniak

1. The appeal is allowed.
2. The decision of the Administrative Appeals Tribunal dated 12 July 2019 is set aside.
3. In substitution, the reviewable decision made by the applicant on 16 November 2017 is affirmed.
4. The appellant is to pay the respondent's reasonable costs as between party and party of the appeal, to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THAWLEY J: 1 This proceeding is an appeal from a decision of the AAT: Re Stefaniak and Comcare (Compensation) [2019] AATA 1866. 2 The appeal was listed for hearing on 28 April 2020. 3 The parties have reached an agreement that the appeal should be allowed by consent. In accordance with the Court's Consent Orders Involving a Federal Tribunal Practice Note (GPN-TRIB), the parties submitted "notes" with the signed consent orders sought. The notes stated: The matters which justify the making of the consent orders proposed by the parties are as follows. 1. This was Comcare's appeal from a decision of the Administrative Appeals Tribunal in the matter of Re Stefaniak and Comcare (Compensation) [2019] AATA 1866. Such an appeal is on, and limited to, a "question of law" pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). 2. The Tribunal decided that Comcare was liable to pay compensation to Mr Jonathan Stefaniak in relation to the "pain symptoms" which arose during his employment with the Office of National Assessments (the ONA) in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). 3. The Tribunal made that decision in circumstances where it was unable to identify a "biological cause" for Mr Stefaniak's asserted "pain symptoms". In that respect, the Tribunal essentially found that the evidence established that the "biological cause" of Mr Stefaniak's pain could not be connected with any identifiable physical injury or an ailment which was the "root cause" of that pain. The Tribunal additionally found that there was no aggravation of Mr Stefaniak's underlying pathology, in the sense that "whatever underlying condition [he] suffered from" was not made worse in any permanent or significant way by his work activity. 4. Although there was no clear understanding of the "biological cause" of Mr Stefaniak's pain, the Tribunal ultimately found that Mr Stefaniak's duties at the ONA aggravated an underlying disease which could not be identified with any precision. In making that finding, the Tribunal made two essential assertions. Those assertions were: first, that an aggravation of symptoms, in the absence of alteration of underlying pathology, could amount to an injury for the purpose of the SRC Act; secondly, that an inability to make a diagnosis is "no barrier to a successful compensation claim". 5. In holding Comcare liable to pay compensation to Mr Stefaniak for "pain symptoms" in the circumstances, the Tribunal made the following legal errors. 6. The Tribunal misconstrued and misapplied s 5B(1)(b) of the SRC Act. (a) Properly construed, s 5B(1)(b) of the SRC Act requires that a decision-maker be satisfied that an employee has suffered an "ailment", as defined in s 4(1), before the decision maker can find that the employee has suffered the "aggravation of such an ailment". (b) In the present case, the Tribunal was unable to be satisfied that Mr Stefaniak's subjectively experienced symptoms of pain arose from an "ailment". That was because of the findings of fact made by the Tribunal that the "biological cause" of Mr Stefaniak's pain could not be connected with any identifiable physical injury or an ailment which was the "root cause" of that pain. (c) In circumstances where it was unable to be satisfied that Mr Stefaniak's pain arose from an "ailment", the Tribunal was not permitted to find that Mr Stefaniak had suffered the "aggravation of such an ailment" for the purpose of s 5B(1)(b) of the SRC Act. 7. For the above reasons, the Tribunal was obliged to conclude on the findings of fact that it made that Mr Stefaniak had not suffered an "injury" for the purpose of the SRC Act. Accordingly, the Tribunal's decision must be set aside, and Comcare's decision declining liability to pay compensation restored. 8. The parties have agreed as to orders concerning the costs of the appeal. Orders should be made accordingly. 4 The exercise of the power to allow an appeal by consent is dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below: CQX18 v Minister for Home Affairs [2019] FCAFC 142 at [9] (Allsop CJ, Perry and Gleeson JJ)). What is sufficient to satisfy the Court of arguable appellable error depends upon the nature and complexity of the proceeding and the nature of the error that is identified: Bradken Limited v Norcast SárL (2013) 219 FCR 101 at [2] (Allsop CJ, Mansfield and Jacobson JJ). 5 I am satisfied that it is an available construction of the Tribunal's reasons that the Tribunal: (1) was not satisfied that Mr Stefaniak's pain arose from an ailment; (2) but nevertheless concluded that he had suffered an "aggravation of such an ailment". 6 I am satisfied that s 5B(1)(b), properly construed, does not permit a conclusion that there has been an aggravation of an ailment without a conclusion that there was in fact an ailment to be aggravated. 7 In those circumstances, the Court is satisfied that there is arguable appellable error. 8 For these reasons, effect should be given to the parties' agreed position. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.