Key Takeaways

• The Tribunal in White characterised this matter as a ‘cease effects’ case and made the key finding that the Applicant continued to suffer from the effects of a compensable psychological injury sustained 15 years prior. This finding was open to the Tribunal based on the evidence of the Applicant’s long-standing treating psychiatrist.
• The Tribunal emphasised that Comcare did not contend (nor was there any evidence to support a finding) that the original injury was never compensable (as in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87).
• Having found the Applicant to suffer from the continuing effects of the compensable injury, the Tribunal applied the approach taken by the High Court of Australia in Migge v Wormald Industries Limited (1973) 47 ALJR 236 and set aside the decision under review.
• Each matter will turn on its own facts. No principle of law can be derived from the Tribunal’s findings in this case that is to be applied in a similar case on the facts.
• It remains open to a decision-maker to determine there is no present liability for compensation payments under the SRC Act in response to a particular claim for compensation (e.g. incapacity for work, medical treatment) where the employee no longer suffers from the compensable psychological injury or the effects of that injury.
• In the case of disease claims, following Prain v Comcare [2017] FCAFC 143 and Woodhouse v Comcare [2021] FCAFC 95, a no present liability determination may also be made when the employment factors have ceased to significantly contribute to the employee’s current condition.

Facts

The Applicant suffered a psychological injury in 2008, attributable to his employment with the Commonwealth. In 2009, Comcare accepted liability to pay compensation pursuant to section 14 of the SRC Act in respect of a psychological condition. Since that time, the Applicant had received compensation in respect of medical treatment under section 16 of the SRC Act and incapacity for work under sections 19 and 20 of the SRC Act (the latter applying following his invalidity retirement in 2013).

On 19 October 2023, following an independent psychiatric examination, Comcare determined there was ‘no present liability’ to pay compensation to the Applicant for medical expenses and incapacity payments under sections 16 and 19 of the SRC Act, in respect of the Applicant’s compensable condition. That determination was affirmed in a reviewable decision dated 22 January 2024, which was in turn the subject of merits review proceedings before the Administrative Review Tribunal.

Decision

On 13 February 2026, the Tribunal set aside the reviewable decision and substituted a decision that, from 19 October 2023 to the present date and at the present date, the Applicant continued to suffer the effects of the injury. The Tribunal found that the Applicant incurred the cost of treatment that was reasonable to obtain in respect of the injury, entitling him to compensation pursuant to section 16 of the SRC Act, and that he was incapacitated for work as a result of the injury, entitling him to weekly payments of compensation pursuant to section 20 of the SRC Act.

Background

In order to apply the statutory test in subsection 14(1) of the SRC Act, the first step is to determine whether there is ‘an injury suffered by an employee’, being an injury in respect of which compensation is payable under the SRC Act (subsection 4(8)). If so, the next step is to determine whether the injury results in a compensable sequel (e.g. incapacity for work). If so, the employee’s entitlement to compensation is subject to the provisions in Part II (Compensation) of the SRC Act.

Observations

The Tribunal characterised White as a ‘cease effects’ case, relying on the finding in the reviewable decision that the Applicant no longer experienced the effects of the compensable injury (at [94]). The Tribunal went on to make a contrary finding, that the Applicant continued to suffer from the effects of the compensable injury. In this respect, the Tribunal found:

• The Applicant did not suffer from a pre-existing psychological condition or a constitutional personality disorder.
• While there was some evidence of functioning in various day-to-day activities, the opinion of three doctors who provided evidence (namely, the Applicant’s treating psychiatrist and two independent consultant psychiatrists) was that the Applicant never recovered capacity to return to his ordinary work in the public service.
• The Applicant continued to receive medical treatment for the compensable injury.
• The cause of the Applicant’s incapacity for work was the Applicant’s compensable injury and not any supervening event or de novo injury caused by the compensation process.

The finding summarised in the last point above was based on the opinion of the Applicant’s treating psychiatrist, whose evidence the Tribunal preferred in that relevant respect over the evidence of the two independent consultant psychiatrists. The Tribunal also noted that the Applicant was medically retired in 2013 on the grounds of incapacity. Importantly, the Tribunal drew a distinction between symptomatic remission and recovery, finding that ‘the remission of some symptoms from time to time is not recovery from the injury’ (at [116]).

In circumstances where the Applicant was found to suffer from the continuing effects of the compensable injury, the Tribunal held there was no relevant need to consider ‘continuing significant contribution’ by employment to the injury for the purposes of subsection 14(1) of the SRC Act as was done in Prain and Woodhouse (at [148] to [163]). On our reading, this is a reference to the first part of the statutory test in that subsection (i.e. whether there is ‘an injury suffered by an employee’).

Instead, the Tribunal focussed its consideration on the second part of the statutory test in subsection 14(1) of the SRC Act, namely whether the injury results in incapacity for work. This was said to be consistent with the reasoning of the High Court of Australia in Migge, which unanimously adopted the dissenting judgment of Mason JA (as he then was) in the NSW Court of Appeal in Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29.

In conclusion, the Tribunal stated (at [163]):

In a ‘cease effects’ case, where the question arises whether incapacity payments after a particular time are ceased, the High Court’s approach outlined in Migge remains the approach to [be] taken in application of the statutory formula making it necessary to make findings of fact that is restricted to the question whether incapacity ‘results from’ injury. That approach will take into account the break in the chain of causation where recovery is achieved or where the compensable sequel no longer ‘results from’ the injury by reason of attenuation of the causal connection or de novo injury or supervening event.

In Migge, the High Court (Barwick CJ, with whom McTiernan, Menzies, Gibbs and Stephen JJ agreed) held that the NSW Workers Compensation Commission was entitled to find, on the basis of ‘ample evidence’, that Mr Migge’s shoulder injury sustained at work and subsequent hospitalisation and operation were ‘operative to cause’ his psychological condition, and ‘in that latter state he was incapacitated for work’. The High Court also held there was evidence on which the Commission could find that, before the operation on his shoulder, Mr Migge was incapacitated for work. It was for these reasons, and for the reasons given by Mason JA with which the High Court agreed, that the appeal was allowed and the original award of compensation in favour of the worker was restored.

The High Court’s approach outlined in Migge, to which the Tribunal referred in its conclusion cited above, involves consideration of the operative cause(s) of an employee’s psychological condition, whether the employee was incapacitated for work and whether that psychological condition results in that incapacity for work (a question of fact). In considering that final question, the approach endorsed by the High Court is that of Mason JA in the NSW Court of Appeal, who in turn had regard to the approach taken by du Parcq LJ in Rothwell v Caverswall Stone Co Ltd [1944] 2 All ER 350 at 365:

… an existing incapacity ‘results from’ the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though, but for the original injury, there would have been no incapacity.

Importantly, the approach outlined in Migge will only be directly relevant where employment factors are ‘operative to cause’ an employee’s psychological injury. This is consistent with the first part of the statutory test in subsection 14(1) of the SRC Act. Where a decision-maker is not satisfied employment factors are an operative cause of a psychological injury, including where the evidence indicates an employee has ceased to suffer from their compensable psychological injury or the effects of that injury, a no present liability determination may be made in response to a claim for compensation. A no present liability determination may also be made when the employment factors have ceased to significantly contribute to the employee’s current condition in reliance on Prain and Woodhouse, which at the time of this publication remain good authority.

While the Tribunal expressed reservations about applying a ‘continuing significant contribution’ analysis to cease effects cases, the facts as found in White will not apply to all such cases. As the Tribunal noted (at [101]), ‘The application of the statutory formula is a matter of fact in each case. No principle of law can be derived from the result in one case that is to be applied in a similar case on the facts.’

Further information / assistance regarding the issues raised in this article is available from the authors, Ben Mason, Partner, and Gillian Gehrke, Senior Associate, or your usual contact at Moray & Agnew.