Comcare v Filla [2002] FCAFC 61; [2002] FCA 286 (19 March 2002)

Last Updated: 9 May 2002

Comcare v Filla [2002] FCAFC 61

Comcare v Filla [2002] FCA 286

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Comcare v Filla [2002] FCA 286

ADMINISTRATIVE LAW - whether the primary judge erred in law in misconstruing the interpretation of s 24(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - permanent impairment - mitigation of damages - whether the unreasonable refusal of treatment disentitles the worker to worker's compensation payment - whether reasonable rehabilitative treatment exists for the particular impairment, the permanence of which is under consideration, having regard to the circumstances of the case and whether the employee has undertaken all of it

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 24

Federal Court of Australia Act 1976 (Cth), s 24

Driclad Pty Ltd v Federal Commissioner of Taxation [1966] HCA 59; (1966-1968) 121 CLR 45

Fazlic v Milingimbi Community Inc [1982] HCA 3; (1981-1982) 150 CLR 345

COMCARE AUSTRALIA v EVA FILLA

No N 1195 of 2001

SPENDER, R.D. NICHOLSON, NORTH JJ

BRISBANE (heard in Sydney)

19 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1195 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMCARE AUSTRALIA APPELLANT
AND:	EVA FILLA RESPONDENT
JUDGES:	SPENDER, R.D. NICHOLSON, NORTH JJ
DATE OF ORDER:	19 MARCH 2002
WHERE MADE:	BRISBANE (heard in Sydney)

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1195 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMCARE AUSTRALIA APPELLANT
AND:	EVA FILLA RESPONDENT

JUDGES:	SPENDER, R.D. NICHOLSON, NORTH JJ
DATE:	19 MARCH 2002
PLACE:	BRISBANE (heard in Sydney)

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from the judgment of a single judge of this court (Katz J) who set aside a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision by the appellant (Comcare) that the respondent, Eva Filla, a Commonwealth employee, was not entitled to compensation which she had claimed under s 24(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The primary judge further ordered:

"... 2. The case be remitted to the Administrative Appeals Tribunal to be heard and decided again.

3. The respondent pay the applicant's costs of the proceeding."

2 On appeal, counsel for Comcare made plain that Comcare accepted that the matter should be remitted to the Tribunal to be determined according to law, but sought that the remittal should be "on a different explanation of certain aspects of the law to that indicated by the learned trial judge." It was also acknowledged that Comcare should pay any reasonable costs incurred by the respondent in these proceedings, whatever their outcome. Leave was sought to amend the notice of appeal so as to seek an order:

"That the matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law and, in particular, with a direction that, in determining whether the Respondent's impairment is permanent, the Tribunal should give due weight, and not limit to a minor role, the possibility that an unreasonable refusal to undertake treatment may indicate an intention to postpone treatment until after compensation is paid."

3 It is immediately apparent that the prospect of this court making any such order is remote. A right of appeal pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) relates to judgments, decrees and orders, whether final or interlocutory, and sentences. A right of appeal relates to a court's orders, not its reasons. As Barwick CJ and Kitto J stated in Driclad Pty Ltd v Federal Commissioner of Taxation [1966] HCA 59; (1966-1968) 121 CLR 45 at 64:

"...it is of the nature of appeals ...that they lie only against `judgments, decrees, orders and sentences', not against reasons. The word `judgments' in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment."

4 It was candidly conceded by Mr Lloyd, counsel for Comcare, that the purpose of the appeal was to avoid the possibility of the Tribunal, on its reconsideration, considering itself bound by some observations made in the course of the reasons for judgment of the primary judge on this appeal.

5 Section 24(1) of the SRC Act provides:

"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."

"Permanent" is defined in subsection 4(1) of the SRC Act as meaning "likely to continue indefinitely".

6 Section 24(2) of the SRC Act provides:

"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."

7 The respondent to this appeal suffered an injury to her shoulder. For various reasons, she declined to undertake rotator cuff surgery. The main issue which the Tribunal addressed was whether that refusal by the respondent was reasonable or not, and the discussion included a consideration of the doctrine of mitigation of damages in the context of a worker's unreasonable refusal of treatment disentitling the worker to worker's compensation payment and, in particular, the consideration of that principle by the High Court in Fazlic v Milingimbi Community Inc [1982] HCA 3; (1981-1982) 150 CLR 345.

8 However, the question of whether it was reasonable or unreasonable for the employee to refuse rotator cuff surgery in the context of her knowledge of the risks, the prospects of success, the possible adverse consequences and other relevant factors is not the question that is posed by s 24(2). The primary judge correctly stated the position in his reasons for judgment where his Honour said:

"It is my view that par 24(2)(c) of the SRCA raises in substance at least one and possibly two questions for Comcare (or, on a review by the AAT of a decision made by Comcare, the AAT): first, what, if any, reasonable rehabilitative treatment exists for the particular impairment whose permanence is under consideration; and, secondly, assuming that some reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration, has the employee undertaken all of it?"

Later his Honour said:

"The only purpose of requiring those two questions to be answered is that their answers will assist in the determination of whether the particular impairment under consideration is a permanent one. In other words, it is not the purpose of par 24(2)(c) of the SRCA to re-enact the `piece of judicial legislation' regarding mitigation of damage dealt with in Fazlic."

9 The primary judge then contemplated a number of possible scenarios in the context of considering "the assistance which the answers to the two questions may provide in determining whether a particular impairment is permanent." The hypothetical instances set out by the primary judge are not in any way binding on the Tribunal as to how it should determine whether reasonable rehabilitative treatment exists for the particular impairment, the permanence of which is under consideration, and whether the employee has undertaken all of it. The possibility that the Tribunal might think that in some way any passing observation or comment by the primary judge somehow binds it is erroneous, and certainly does not provide a basis for this court to interfere on appeal with the judgment of the primary judge.

10 On remittal to the Tribunal, the question to be considered is: what, if any, reasonable rehabilitative treatment exists for the particular impairment, the permanence of which is under consideration, having regard to the circumstances touching on those aspects before it.

11 Whether the rotator cuff surgery is "reasonable rehabilitative treatment" is a question of fact that would have to take account of many factors, including the risk of failure and the possible extent of the benefit of the treatment, particularly when compared to the present position. Whether or not it was reasonable for the respondent to refuse to undertake rotator cuff surgery is quite a different question from whether, considering the prospects of success, risk of adverse consequences, pain, discomfort and inconvenience necessarily involved in the operation when compared with the measure of success that might possibly be achieved, and other factors, the rotator cuff surgery may fairly be described as "reasonable rehabilitative treatment".

12 Indeed, it may be that treatment which offers just a chance of restoring a person to her pre-injury condition is not properly to be described as "rehabilitative treatment". Where the prospect of "restoration" involves a not insignificant possibility of failure, it is a question whether such treatment is truly "rehabilitative treatment". The Shorter Oxford English Dictionary relevantly defines "rehabilitate" as: "To restore to a previous condition; to set up again in proper condition."

13 What is "reasonable rehabilitative treatment" is a question for the Tribunal; any views or comments by the primary judge in the present case, or indeed by this court, are not determinative of the matter, nor of any necessary relevance. The questions of fact are matters for the Tribunal and not for the Court.

14 For the reasons we have expressed, the appeal is misconceived. We decline to grant leave to amend the notice of appeal as proposed. The appeal is dismissed and, consistent with the offer of the appellant to the appeal, the appellant should pay the respondent's costs of the appeal, to be taxed if not agreed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 19 March 2002

Counsel for the Appellant:	Mr S. Lloyd
Solicitor for the Appellant:	Dibbs Barker Gosling
Counsel for the Respondent:	Mr L.T. Grey
Solicitor for the Respondent:	Carroll & O'Dea
Date of Hearing:	5 March 2002
Date of Judgment:	19 March 2002