Portors v Comcare

The Tribunal's findings and reasons 8 In light of the submissions of the parties and the field over which those submissions ranged, it is important to identify what the Tribunal actually decided. 9 The Tribunal's essential findings were that Mr Portors' hernias did not amount to an injury for the purpose of the Act; thus, any condition arising out of hernia repair surgery was not an injury for the purpose of the Act. 10 The conclusion of the Tribunal was stated as follows: [96] Comcare accepted liability for Mr Portors' hernia condition in October 2002 (and accepted liability for a secondary hernia condition in September 2010). Comcare has satisfied the Tribunal, on the balance of probabilities, that the factual basis on which those decisions were made should now be set aside in favour of a different factual finding. The effect of reaching that state of affairs is that the Tribunal can be satisfied Mr Portors did not suffer a workplace injury in July 2002. His employment did not cause him to suffer the hernia, nor did it aggravate a hernia condition. It follows that any condition arising out of hernia repair surgery cannot be an injury for the purposes of the Act. Without a workplace-derived hernia condition, the other links in the causation chain are useless in establishing an entitlement to compensation. The one qualification to this conclusion is that a claim for the hernia repair condition may have been successful, pursuant to s 4(3), had Mr Portors made a separate claim under s 14 for that condition. [97] The effect of such a conclusion does not disturb Comcare's liability under s 14 of the Act for Mr Portors' accepted hernia condition. However it facilitates a determination that Comcare has no further liability to pay compensation under ss 16 or 19 in respect of that condition: per Conti J in Hannaford at [59]. [98] Accordingly, the Tribunal affirms the determination of 2 June 2016 that Mr Portors has no present entitlement to compensation under the Act for his accepted condition of inguinal hernia, without mention of obstruction (bilateral) and umbilical hernia, without mention of obstruction. 11 The Tribunal indicated a view as to the meaning of s 4(3) of the Act at [90]-[92], but, at [93], decided that it was unnecessary for it to resolve that question. This was because it concluded that an injury arising from medical treatment must be the subject of a separate s 14 determination of liability before compensation is payable. Such an injury, the Tribunal said, is a separate and distinct injury to the injury from which it purportedly derives. Since no claim for liability for any injury or ailment arising from medical treatment had been made by Mr Portors, the Tribunal said it lacked jurisdiction to consider a claim in relation to the hernia repair condition.

The pleadings 12 The questions of law as stated in the notice of appeal were as follows: 1. On the proper construction of Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"), having regard to the decision of the Full Federal Court in Telstra Corporation Limited v Hannaford (2006) 151 FCR 253, and to the following outline of relevant events - (a) the Applicant submitted a claim for compensation on 17 September 2002, alleging a bilateral inguinal hernia arising from a lifting incident occurring in the course of his employment on 10 July 2002; (b) liability to pay compensation in respect of the claimed injury, described as "inguinal hernia, without mention of obstruction (bilateral)" ("the hernia condition"), was accepted by the Respondent under section 14 of the SRC Act on 8 October 2002, on the basis of medical evidence associating the hernia condition with the Applicant's lifting incident at work; (c) on 30 October 2002, the Applicant underwent a surgical repair of the hernia condition, paid for by the Respondent; (d) despite the hernia repair, and further surgical and other treatment in subsequent years, the Applicant continued to suffer severe pain in the groin, eventually diagnosed as a neuropathic post-surgical pain syndrome resulting from the hernia repair treatment; (e) on 8 May 2015, the Respondent determined that the Applicant was not presently entitled to compensation payments under sections 16 and 19 of the SRC Act in respect of the hernia condition, and subsequently affirmed that determination on 2 June 2016, on the basis that medical evidence obtained by the Respondent supported a conclusion that the Applicant's hernia condition was not related to his employment, and the decision to accept liability on 8 October 2002 appeared to be incorrect; (d) the Applicant sought review by the Administrative Appeals Tribunal of the reviewable decision of 2 June 2016; (f) on 13 November 2017, the Tribunal affirmed the reviewable decision of 2 June 2016 based on the acceptance of the Respondent's case that the Applicant's hernia condition did not result from the incident on 10 July 2002 and was not an "injury" for the purposes of the SRC Act, and although the Applicant continued to suffer from post-surgical pain syndrome, he had made no separate claim for compensation for that condition, and it was therefore unnecessary to decide whether sub-section 4(3) of the SRC Act applied to it; and (g) no reviewable decision was before the Tribunal purporting to set aside or vary the determination accepting liability under section 14 of the SRC Act on 8 October 2002, and accordingly the Tribunal made no decision relating to that determination; did the affirmation by the Tribunal of the reviewable decision of 2 June 2016 ipso facto limit or extinguish any liability of the Respondent to pay compensation in respect of the Applicant's hernia condition at any time between 8 October 2002 and 8 May 2015? 2. On the proper construction of sub-section 4(3) of the SRC Act, is the phrase "compensation is payable ... in respect of the injury for which the medical treatment was obtained" to be understood as requiring that the liability to pay compensation in respect the Applicant's hernia condition was current at the time when the medical treatment for that condition was obtained, i.e. (in the present case) on 30 October 2002 and on subsequent dates prior to 8 May 2015, irrespective of the date when the consideration of that issue is taking place? 3. On the proper construction of sub-section 4(3) of the SRC Act, was it necessary for the Applicant to make a claim for compensation under section 54 of the SRC Act in respect of the post-surgical pain syndrome suffered as a result of the medical treatment obtained for the hernia condition, before it could be taken to be an "injury" for the purposes of section 14 of the SRC Act, and therefore treated thereafter as a compensable consequence of the hernia repair? 13 The grounds relied on were as follows: 1. The Tribunal erred in law in failing to find that the affirmation by the Tribunal of the reviewable decision of 2 June 2016 did not limit or extinguish any liability of the Respondent to pay compensation in respect of the Applicant's hernia condition at any time between 8 October 2002 and 8 May 2015, because in accordance with the Full Court decision in Hannaford, any affirmation of the reviewable decision of 2 June 2016 did not affect liability at the time of the medical treatment provided to the Applicant in respect of his hernia condition. 2. The Tribunal erred in law in failing to find that in sub-section 4(3) of the SRC Act, the phrase "compensation is payable … in respect of the injury for which the medical treatment was obtained" is properly to be understood as requiring in the present case only that compensation for the Applicant's hernia condition was payable at the time when the medical treatment for the Applicant's hernia condition was obtained in October 2002, or at other dates before 8 May 2015, because - (a) the determination of a present liability to pay compensation in respect of the effects of an injury occurring at a time in the past is not dependent on when the determination is made, but on whether the liability existed at that time in the past; and (b) in accordance with the Full Court decision in Hannaford, any affirmation of the reviewable decision of 2 June 2016 did not affect liability at the time of the medical treatment provided to the Applicant in respect of his hernia condition. 3. The Tribunal erred in law in finding that it was necessary for the Applicant to make a claim for compensation under section 54 of the SRC Act in respect of the post-surgical pain syndrome suffered as a result of the medical treatment obtained for the hernia condition, because, on its true construction, sub section 4(3) is intended to obviate the necessity for such a claim by providing for an injury resulting from the medical treatment of a compensable injury to be taken to be a compensable consequence of the original injury, for which a claim under section 54 had already been made. 14 Section 4(3) of the Act provides: (3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if: (a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and (b) it was reasonable for the employee to have obtained that medical treatment in the circumstances. 15 The respondent filed a notice of objection to competency and a notice of contention. 16 The objection to competency stated as its grounds the following: 1. The only decision before the Administrative Appeals Tribunal was a decision by the Respondent to deny present liability to pay compensation to the Applicant for a hernia condition (however described), which was sustained on 10 July 2002, under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). 2. The Tribunal did not have jurisdiction to consider whether the Applicant was entitled to compensation in respect of a post-surgical pain syndrome (however described) under s 14 of the SRC Act. Thus the Applicant's appeal is unrelated to the issues in the decision appealed from and is incompetent. 3. Further or in the alternative, the Applicant's "appeal" calls on the Federal Court of Australia to assess the merits of a claim, or a possible claim, for a post-surgical pain syndrome (however described) under s 14 of the SRC Act. But the jurisdiction of the Court is limited to hearing and determining an appeal "on a question of law'" from a decision of the Tribunal: s 44(1) and (4) of the Administrative Appeals Tribunal Act 1975 (Cth). The Court does not have power to engage in merits review. 17 The notice of contention stated the following grounds: 1. The Tribunal erred in concluding, if it reached a conclusion, at paragraphs 87 to 92 of its reasons that: a. a reassessment of the findings of fact on which a decision under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) was made (falling short of a reversal of that determination pursuant to s 62) preserves Comcare's liability to an employee under s 14; and b. if that liability is preserved then there must still be an injury as referred to in s 4(3) of the SRC Act. 2. The Tribunal should have concluded that it was empowered to: a. make findings of fact that effectively undercut the necessary findings of fact made in the decision under s 14 of the SRC Act to accept liability for the Applicant's hernia condition (however described); b. make such findings of fact in circumstances where it was reviewing whether any compensation should be payable, or further payable, to the Applicant under ss 16 and 19 of the SRC Act; c. make such findings where Comcare's s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the Tribunal. 3. As a consequence of the above, the Tribunal should have concluded (to the extent to which it had jurisdiction to consider such a claim, which is denied) that: a. on the findings of fact that it made at paragraphs 69 to 86 and 96 of its reasons, the Applicant's hernia condition (however described) was not ever an injury for the purposes of the definition of that word in the SRC Act; b. any injury or ailment suffered by the Applicant as a result of medical treatment of his hernia condition (however described) was not treatment of an injury in respect of which compensation was payable under the SRC Act; c. it was therefore unnecessary to consider whether the Applicant suffered, or continued to suffer, post-surgical pain syndrome (however described). 18 By his proposed amended application, the applicant sought the following remedies: 1. The decision of the Tribunal be [sic] aside. 2. The matter is remitted to the Tribunal for determination according to law, as set out in the reasons of the Court, on the basis that any entitlement of the Applicant arising under s.4(3) of the SRC Act to compensation in respect of any post-surgical pain syndrome suffered as a result of reasonable medical treatment obtained between 30 October 2002 and 8 May 2015 for the hernia conditions suffered by the Applicant for which liability was accepted by the Respondent on 8 October 2002 and 9 October 2010, is not barred as a result of the Applicant's failure to lodge a claim for compensation under s.54 of the SRC Act. 3. The Respondent pay the Applicant's costs of this appeal.

The submissions of the parties 19 The essence of the submissions on behalf of Mr Portors was as follows: (i) No revocation or variation was made of the determination of 8 October 2002 to accept liability for the hernia condition before January 2018. Nor was any cessation of payments determined before 8 May 2015, other than the one which was subsequently revoked. (ii) In conformity with the decision in Hannaford, Comcare remains liable to pay compensation for the hernia condition during the period 8 October 2002 to 8 May 2015 ("the hernia condition liability period"). (iii) Accordingly, Comcare has a present liability to pay compensation for any claim for compensation based on the hernia condition, arising during the hernia condition liability period. (iv) The proper application of s 4(3) of the Act means that any "physical injury" suffered by Mr Portors during the hernia condition liability period, as a result of medical treatment of the hernia condition, shall be taken to be an "injury" if it was reasonable for Mr Portors to have obtained that medical treatment in the circumstances. (v) The Tribunal found that Mr Portors was currently suffering from a neuropathic post-surgical pain syndrome (or near variation on that condition), suffered as a result of operations carried out between October 2002 and May 2006 (i.e. within the liability period), conducted with the ostensible purpose of curing his hernia condition. (vi) It was not suggested, nor was any finding made by the Tribunal, that it was not reasonable for Mr Portors to have had the operations carried out during the liability period, which were intended to cure his hernia condition. (vii) It is not necessary that a separate claim for compensation be lodged for an injury suffered as a result of medical treatment of a compensable "injury" during the hernia condition liability period, because s 4(3) presupposes that a claim has been made and accepted for the original "injury", and the purpose of s 4(3) is to deem a consequential injury resulting from treatment for the original compensable "injury" to be ipso facto also compensable. Hence, compensation under ss 16 and 19 will be payable for as long as Mr Portors demonstrates incapacity and a need for treatment arising from a post-surgical pam syndrome resulting from the hernia repairs. By leave, the applicant filed further short written submissions after the hearing. 20 The respondent submitted the Tribunal only had jurisdiction to consider whether Comcare had a liability to pay compensation to the applicant for his hernias under ss 16 and 19 of the Act. The Tribunal lacked jurisdiction to consider whether Comcare was liable to compensate the applicant for a so-called "post-surgical pain syndrome" (however described) under ss 14, 16 and/or 19 of the Act. That was because Comcare had not made a determination as to whether it was liable to compensate the applicant for a so-called "post-surgical pain syndrome" under ss 14, 16 and/or 19 of the Act. Comcare had thus not made a reviewable decision reconsidering any determination addressing that issue. And the applicant did not make, nor could he have made, an application to the Tribunal asking it to review that issue: cf s 25(1) of the AAT Act; s 64 of the Act. The Tribunal lacked jurisdiction to consider whether Comcare was liable to compensate the applicant for a so-called "post-surgical pain syndrome". Accordingly, none of the applicant's questions of law arose for determination. 21 In the alternative, the respondent submitted, none of the grounds on which the applicant relied was made out. The proposition underlying question of law 1 was that any affirmation of Comcare's reviewable decision did not limit or extinguish its liability to pay compensation to the applicant at the time that medical treatment was provided to him in respect of his hernias. That proposition proceeded on an incorrect understanding of the Act scheme, and a misunderstanding of the decision in Hannaford. It did not matter in the present case that Comcare had not revoked its previous decision. Hannaford was not distinguishable. The proposition underlying question of law 2 was that s 4(3) of the Act was to be applied solely by reference to the fact that compensation was paid for a condition that Comcare had administratively (later established to be incorrectly) found was an injury at the time at which the medical treatment that caused another injury was obtained. There was no basis for that proposition in the text, structure and underlying policy of the Act: Hannaford at [8]. The proposition underlying question of law 3 was that s 4(3) of the Act was intended to obviate the necessity for a claim by providing for an injury resulting from medical treatment of a compensable injury to be taken to be a compensable consequence of the original injury, for which a claim under s 54 has already been made. There was no basis for that proposition in the text, structure and underlying purpose of the Act. The respondent submitted that the effect of the Tribunal's decision was that Mr Portors' entitlement to compensation for his hernia condition before 8 May 2015 was removed. 22 By leave, the respondent submitted a short written submission after the hearing. 23 In reply, the applicant submitted that the effect of the Tribunal's decision was not such as to remove any entitlement to compensation for the diagnosed hernia condition before 8 May 2015, having regard to Hannaford. He also repeated his submission that the effect of s 4(3) meant that he was entitled to compensation for the chronic pain syndrome arising from the treatment he had for the diagnosed hernia condition, including compensation under ss 16 and 19, without the necessity for the filing of a separate claim for compensation under s 54.

Consideration 24 Counsel for Mr Portors said that no case had considered the intersection between the decision of the Full Court in Hannaford and s 4(3) of the Act. 25 Neither party submitted that I should not follow Hannaford, although the parties differed as to what it meant. 26 In my opinion, the Tribunal did not err in its understanding of Hannaford. The decision stands as authority for the proposition that in relation to its decision-making under, in particular, ss 16 and 19 of the Act, the Tribunal has power to make a finding of fact contrary to a finding of fact made in an original decision under s 14 even where the s 14 decision remains in force. 27 There is little judicial authority on the meaning of s 4(3) of the Act. In Lang v Comcare [2007] FCA 47; 94 ALD 141, Stone J said, at [22]: For the expanded definition of 'injury' contained in s 4(3) of the Act to apply, there must be three elements: the first is an initial, compensable, injury; the second is treatment for that injury; the third is further injury caused by that treatment. Comcare v Hill [2005] FCA 657; 87 ALD 501 and Zdziarski v Telstra Corporation Limited [2015] FCA 207; 146 ALD 354 dealt with aspects of the provision which are not presently relevant. 28 It is however relevant to note that s 4(3) is a deeming provision and is therefore required to be construed strictly and only for the purpose for which it is resorted to: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96, followed in East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 at 478. Equally, as pointed out by Samuels J in Woodlock v Commissioner of Land Tax (NSW) [1974] 2 NSWLR 411 at 414, any facts, or, I would add, conditions as in Lang v Comcare at [22], above, on which a deeming provision is to operate have to exist before the provision takes effect. The judgment of the Court of Appeal in Woodlock v Commissioner of Land Tax [1975] 2 NSWLR 97, reversing the decision of Samuels J, did not affect this reasoning. 29 In my opinion, the purpose of the provision is to make it clear that an injury as a result of medical treatment shall, in the specified circumstances, be itself taken to be an injury without further resort to the definition of that word in s 5A of the Act. The effect of s 4(3) is that consideration of the relationship of the medical treatment itself, as opposed to the original injury, to the employee's employment is made unnecessary. 30 I therefore see no error of law in the Tribunal's conclusions that where an applicant claims to have suffered an injury as a result of medical treatment of an injury, an application under s 54 the Act is necessary, that in the present case there was no such application and the reviewable decision did not encompass that issue. However for the reasons which I give in [31] below, this part of the Tribunal's reasons and the conclusions I have reached in relation to those reasons are not essential to the outcome of the appeal. 31 Although I conclude that the Tribunal did not err in stating, at [96], that any condition arising in the present case out of hernia repair surgery cannot be an injury for the purposes of the Act by virtue of the absence of a workplace-derived hernia condition, I do not accept as legally correct what the Tribunal stated as a qualification to that conclusion. That qualification was that a claim for the hernia repair condition may have been successful if Mr Portors made a separate claim under s 14 for that condition. In other words, if the Tribunal had had before it such a separate claim, in my view it could not have succeeded as a matter of law in light of the Tribunal's factual conclusion that there was no workplace-derived hernia condition. In my opinion, an applicant would have no further entitlement to the payment of compensation for an injury as a result of medical treatment of an injury where it had been found that there was no further entitlement to the payment of compensation for the original injury because it was not workplace related. 32 What I have just considered is the subject of the applicant's application to amend to claim alternative relief. Although that application was opposed by Comcare, it was opposed on the ground that it lacked merit rather than that Comcare suffered any prejudice by reason of it. I allow the application to amend as it seems to me to be no more than technical, framing by reference to the relief sought what was otherwise part of the substantive issues raised in the pleadings of the parties. 33 It is not necessary to consider further Mr Portors' submission that the words "compensation is payable under this Act in respect of the injuries for which the medical treatment was obtained" in s 4(3)(a) operate where there is no more than a decision or determination under s 14 of the Act. 34 It is necessary that I consider Comcare's contention that the Tribunal erred if it reached the conclusion that, despite making a reassessment of the findings of fact on which a decision under s 14 of the Act was made, nevertheless Comcare's liability to Mr Portors under s 14 was preserved. Comcare's submission, as I understood it, was that the word "injury" in s 4(3) refers to injury operating as a matter of ultimate fact, apart from administrative decision making. 35 In my opinion, it is clear that the Tribunal was deciding only the question of Mr Portors' present entitlement to compensation in respect of medical expenses under s 16 and his present entitlement to compensation for incapacity payments under s 19. This was what was decided by Comcare on 8 May 2015 and affirmed on 2 June 2016 by the reviewable decision which refers to "whether present liability exists under section [sic] 16 and 19". This is also apparent from the references by the Tribunal to "no further liability to pay compensation" and "no present entitlement to compensation" in [97] and [98] of the Tribunal's reasons as well as in its decision to affirm the decision under review. 36 However, in my opinion, the Tribunal did not make a legal error in so concluding, contrary to Comcare's contention. First, the Tribunal was dealing with the terms of the reviewable decision and, to that extent, with the terms of the decision made by Comcare on 8 May 2015. Secondly, the Tribunal's approach was consistent with Hannaford, which did not concern prior compensation payments. Thirdly, that the Tribunal found as a fact that the applicant did not ever suffer an injury for the purpose of the Act does not, in my opinion, affect the date on which the Tribunal's decision has effect: compare ss 43(5A) and (5B) of the AAT Act. 37 Fourthly, while I accept, of course, that the concept of an injury is a term of pivotal importance in the Act and that the occurrence of an injury both actuates and defines the ambit of Comcare's duty: Canute v Comcare [2006] HCA 47; 226 CLR 535 at [8] and [37], I do not regard those propositions as having a bearing on the present question. The Tribunal was dealing only with present entitlement and its factual finding did not, in my opinion, mean that, for example, the decision under s 14 had, retrospectively, never had legal effect. Similarly, I do not regard what the High Court said in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 at [52], [57], [62] and [67] as standing for a different proposition. Indeed, in May at [52], the High Court expressly referred to "the tribunal of fact" and to its decision making. Put another way, the High Court did not treat the question of "injury" as a jurisdictional fact. 38 I therefore do not accept Comcare's submission that the finding of fact by the present Tribunal that the applicant did not ever suffer an injury as defined means that any injury suffered as a result of medical treatment could never have been compensable under s 4(3) of the Act, "regardless of the administrative or other status of Comcare's decisions at any particular point in time". 39 Having expressed these conclusions, I now indicate shortly my consequential conclusions as to the matters raised in Mr Portors' notice of appeal and, to the extent necessary, in Comcare's objection to competency and notice of contention. 40 In my opinion, question of law 1 does not arise as the Tribunal did not purport to limit or extinguish any liability of the respondent to pay compensation at any time between 8 October 2002 and 8 May 2015. 41 In my opinion, question of law 2 does not arise for the same reason. Indeed, as I understood it, the submission on behalf of Mr Portors was directed in large part to events subsequent to 8 May 2015. 42 As I have indicated, question of law 3 should be answered "yes". 43 As to Comcare's notice of contention, for the reasons I have given at [36]-[38] above I reject each of the grounds in that notice. 44 As to Comcare's notice of objection to competency, I have accepted the submission that the Tribunal did not have before it a claim of injury as a result of medical treatment but a question of law was involved in reaching that conclusion and consequently the Court had jurisdiction to determine that and the other questions of law I have considered.

Conclusion and orders 45 The appeal is dismissed, with costs. I note that Comcare submitted that it wished to be heard on the question of costs once judgment had been given. I therefore propose to order, provisionally, that the applicant pay the respondent's costs, but to allow the respondent to notify the Court and the applicant if it wishes to contend for some other costs order. In that event I will make consequential procedural orders. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.