Consideration
98 The operation of s 19, amongst others, is conditioned upon liability being imposed upon Comcare pursuant to s 14, and that liability will only exist where the injury has the necessary causal connection to the employee's employment on the one hand and causes the relevant detriment on the other. Where the injury does not have those characteristics, Comcare has no liability in respect of which s 19 might operate. So much appears from the decisions in Lees and Prain. Likewise, there is no reason for interpreting the reference to "injury" in s 16 differently to the reference in s 14: Queensland v Forest (2008) 168 FCR 532 [41]. Accordingly, liability pursuant to s 16 will only exist in a particular time period or periods where, on the one hand, the ailment has the necessary causal connection to the employee's employment and, on the other, the relevant medical treatment was obtained in relation to the "injury" (subject to the further qualification that it was reasonable, in the circumstances, for the employee to obtain that medical treatment). In that regard, the "causation requirement" described above in relation to the liability pursuant to s 14 is replaced by a "relational requirement".
99 In Lees, the Full Court considered two appeals concerning whether, on an appeal from a reconsideration of a determination by Comcare, the Tribunal could review aspects of an employee's claim that were not the subject of the reconsideration. Ms Lees had sought to raise her entitlement to compensation for permanent impairment in an appeal to the Tribunal from a reconsideration of a determination that she was not entitled to payment of taxi fares pursuant to s 16: at [4]. Similarly, Mr O'Donohue sought to raise his entitlement to compensation for permanent impairment and non-economic loss in an appeal from a reconsideration of a determination under s 14 that he did not suffer from an "injury" for the purposes of the SRC Act: at [8]. In the course of summarising the statutory framework created by the AAT Act and the SRC Act, the Full Court observed (at [27]) in relation to the determination of the primary judge:
As Finn J noted, s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability "[s]ubject to" Pt II of the Act. That is, it is a liability limited in its extent by other provisions of Pt II of the Act: see, for example, s 17(2). Secondly, the liability is a liability to pay compensation "in accordance with" the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act: see, for example, ss 17(3), (4), (5), 19, 20, 24 and 25.
100 The Full Court's decision generally concerned the decision-making and review process provided by Pt VI of the SRC Act (at [32] - [39]) and the effect of the AAT Act. Ultimately, it was held that the subject matter of the determination (s 60 of the SRC Act) and the subsequent reconsideration (s 62) define the scope of the Tribunal's jurisdiction on an appeal from a reconsideration (s 64): at [50], [55] - [56]. Accordingly, a Tribunal could not consider entitlements to compensation that were not the subject of the determinations or reconsiderations from which the appeals originated. For present purposes, the Court relevantly identified at [49] that Comcare's liability in respect of an injury arose consequent upon the satisfaction of s 14 and in the administrative process that usually involved a determination that liability so existed under that section. It was only the extent of the liability that was to be determined under other sections, for example, by s 24 in relation to permanent impairment.
101 As discussed above in relation to Question 1, the Full Court in Prain held that the Tribunal had not erred in concluding that Comcare was no longer liable in respect of Mrs Prain's condition pursuant to s 14. This conclusion was based on her having ceased to suffer from an "injury" for the purposes of s 5B: at [79] - [87]. The Court then turned to consider briefly whether the Tribunal had erred by failing to address s 19, apparently on the basis that the Tribunal's conclusion in relation to s 14 might not necessarily be dispositive of the appeal to it in respect of a determination under s 19. In concluding that the Tribunal had not erred, the Court stated (at [89]):
The Tribunal concluded (at [71]) that Comcare was not liable for a compensable condition under s 14 of the SRC Act. It was therefore unnecessary for the Tribunal to consider s 19 (or s 16) which were the provisions under which Comcare determined that Mrs Prain had no entitlement to compensation: see Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [57]-[59]. This is because s 14 creates a liability to pay compensation "in accordance with" the SRC Act, that is, a liability to pay the compensation for which provision is made in sections such as ss 16 and 19. As stated by the Full Court in Lees v Comcare (1999) 29 AAR 350 at [27]:
[Section] 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability "[s]ubject to" Part II of the Act. That is, it is a liability limited in its extent by other provisions of Part II of the Act (see, for example, s 17(2)). Secondly, the liability is a liability to pay compensation "in accordance with" the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act (see, for example, ss 17(3)(4) and (5), 19, 20, 24 and 25).
(Emphasis added).
102 It may be accepted that the import of the Full Court's reasons at [89] is that Comcare's liability to pay compensation in respect of incapacity for work depends on it being liable to pay compensation in respect of an injury: s 14. Likewise, it is implicit in the passage in Lees referred to above that, if there is no entitlement to compensation pursuant to s 14, then there can be no entitlement to compensation pursuant to s 19.
103 The applicant contended those authorities do not support the further proposition that if an "injury" ceases for the purposes of the SRC Act, then an employee's entitlement to compensation pursuant to s 14 (and in turn pursuant to ss 16 and 19) also ceases (even if that was the result in those cases in the absence of the contentions raised by the applicant in this appeal). She submitted that the reference to "injury" in ss 16 and 19 includes injuries which have ceased for the purposes of the SRC Act.
104 These submissions must be rejected. As the authorities referred to make clear, the satisfaction of the requirements of s 14 is essential to Comcare's liability to pay compensation. The Act operates such that only injuries within the scope of that section can be the subject of compensation. A determination that the section is satisfied is an acceptance by Comcare that its liability exists. Other sections may control the content, duration and means of satisfying how the liability is met or how compensation is paid, but they do not extend liability beyond the section: see also Australian Postal Corp v Oudyn (2003) 73 ALD 659 [29]. The structure of the Act as articulated in Prain makes that clear. It follows that if an injury ceases to be compensable under s 14 in respect of a relevant period of claim, no compensation is payable in respect of it under s 19.
105 The applicant's response to the above authorities was that the proper construction of the causal test in s 19 has the consequence that incapacity for work can occur "as a result of" an injury if it triggers a further ailment which then causes the incapacity for work. Reliance was placed on the decision in Smith at 226 where Von Doussa J said:
Incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is a well-recognised and unfortunately common phenomenon. If the precipitating injury occurs in compensable circumstances, the incapacity caused by the psychological symptoms is compensable even though the physical effects of the injury may resolve quickly.
106 With respect to the submissions made, the decision in Smith does not answer or overcome the force of the above authorities. To the extent to which it is relevant, it does not hold that the operative injury does not have to have the relevant nexus to employment for the period of incapacity in respect of which the claim is made. In that case, the mariner's incapacity arose from his psychological injury and not his wrist injury, hence it was the former which relevantly gave rise to liability if it existed. The position described in the above quote is that the psychological condition precipitated by a physical injury (which had resolved) was itself an "injury" for the purposes of the SRC Act, because it had the necessary causal connection required by the definition of injury and disease. Any incapacity for work which occurs "as a result of" that injury was then compensable.
107 In a similar manner, the applicant sought to rely upon the observations of Jagot J in Clement [8] where her Honour said:
The AAT … correctly identified this task as involving asking whether it was reasonably satisfied that Ms Clement "suffered a compensable injury of the kind or in the manner alleged and previously accepted by Comcare" (at [15]). If so, the AAT continued, it would then be necessary to determine whether the incapacity for work Ms Clement claimed was "as a result of" that injury. The AAT noted (also at [15]) that the phrase "as a result of" refers to "an operative cause that is not confined to the immediate proximate cause of incapacity and imports a test of causal connection that requires a commonsense evaluation of the causal chain between the claimed incapacity and the injury". …
108 In relying on this passage, the applicant sought to bifurcate the issue of liability in s 14 into the existence of a compensable injury on the one hand and the resulting incapacity on the other. In effect, it was submitted that once a compensable injury was found to exist, Comcare was liable for all following incapacity regardless of whether the injury retained the characteristics which rendered it a compensable one. That argument has been rejected above and the observations of Jagot J do not support it. Indeed, on their natural meaning, they are against it. The words "was 'as a result of' that injury" are referring to the injury previously referred to, being a compensable "injury". In any event, the issue in question in this matter was not considered by the Court in Clement. The main issue was whether Ms Clement ever suffered from an "injury" for the purposes of the SRC Act: at [8]. See also Clement and Comcare [2010] AATA 296 [3]. In that context, to the extent to which the cited passage suggests approval of the applicant's approach, it cannot be so regarded.
109 For the reasons referred to previously, the existence of an entitlement to compensation pursuant to s 14 in respect of a relevant period of time depends on there being an "injury" from which the employee suffers during that period of time. Compensation is only payable for the period during which the injury retains the relevant causal nexus with employment. In other words, that the contribution requirement remains unbroken. In the case of a disease, it must be one that was contributed to in a material (or significant) degree by the employee's employment. For the reasons explained in Lees (at [27]), the entitlement to compensation arises pursuant to s 14 and is then controlled by the provisions that follow in Pt II of the SRC Act. For that reason, in the absence of a present "injury" and a consequent entitlement pursuant to s 14, there cannot be liability to pay compensation for incapacity for work that occurs "as a result of" an injury pursuant to s 19.
110 The applicant's submissions in relation to the proper construction of s 19 should otherwise be rejected. That conclusion makes it unnecessary to consider the applicant's further submissions that there was evidence before the Tribunal capable of supporting a finding that the applicant's continuing incapacity occurred "as a result of" the resolved "injury" in respect of which the Tribunal had previously accepted liability. For present purposes, it suffices to note that it was open to the Tribunal to conclude that the applicant's previous episode of MDD had resolved and the current episode was consequent upon her underlying conditions.
111 For the reasons stated above, Question 2 should be answered in the negative.