Abrahams and Comcare
[2006] AATA 793
•15 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 793
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/341
GENERAL ADMINISTRATIVE DIVISION ) Re GAVIN ABRAHAMS Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date 15 September 2006
Place Canberra
Decision Pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 the Tribunal was satisfied that the application for review of Comcare’s decision made 6 September 2004 was vexatious and therefore dismissed the application.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION - Reviewable decision dealt with claim for carpal tunnel syndrome – Diagnosis incorrect – Applicant sought to have whole of arm injury before Tribunal – Whether Tribunal has jurisdiction to consider whole of arm injury – Original claim was for discreet injury – Tribunal does not have power to review different injury – Application dismissed – Vexatious.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 62, 64, 69, 72
Administrative Appeals Tribunal Act 1975 (Cth) ss 42B, 43
Jensen v Comcare [2000] FCA 1684
Commonwealth v Ford (1986) 9 ALD 433
Lees v Comcare (1999) 56 ALD 84
Telstra Corporation v Hannaford (2006) 90 ALD 263
Power v Comcare (1998) 89 FCR 514
Comcare v Hill (1999) 56 ALD 487
Riddle v Telstra Corporation Limited (2006) 149 FCR 348
Telstra Corporation Ltd v Aboushadi [2004] FCA 811
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Repatriation Commission v O’Brien (1985) 155 CLR 422
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Re Williams and Australian Electoral Commission (1995) 38 ALD 366
REASONS FOR DECISION
(Oral Decision delivered 24 July 2006)
15 September 2006 J.W. Constance, Senior Member INTRODUCTION
1. Mr Abrahams has applied for a review of a decision by Comcare that compensation is not payable to him in respect of “carpal tunnel syndrome (right).” [1] This decision was made under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of on an initial application for compensation; it was not a decision to cease liability for an accepted condition.
[1] Document T26 lodged pursuant to s 37 Administrative Appeals Tribunal Act 1975 (Cth).
2. A question arose as to the extent of the Tribunal’s jurisdiction in considering the application in the light of a concession by Mr Abrahams that he did not in fact suffer the injury claimed. With the agreement of the parties I decided this question before proceeding to hear the substantive merits of the matter. After hearing submissions I decided that the Tribunal did not have jurisdiction to deal with the issue now proposed on behalf of Mr Abrahams.
3. I now provide the reasons for my decision.
FACTS
4. Mr Abrahams has been employed as a clerical officer at Centrelink since 1998. In January 2001 Mr Abrahams first experienced pain in his right arm. This pain was associated with his typing duties at work. On 5 June 2001 Mr Abrahams lodged a claim with Comcare for “overuse injury affecting the right arm.” [2] Comcare accepted liability for “sprain of shoulder and upper arm (right); sprain of unspecified site of elbow and forearm (right); neck sprain” on 24 July 2004.[3]
[2] Document T2A.
[3] Document T2A.
5. On 19 February 2003 Comcare “ceased liability” [4] with respect to the above claim. Although it is not clear I take this to mean that Comcare decided that at that time Mr Abrahams no longer suffered from compensable effects of his accepted injury.
[4] Document T2A.
6. Mr Abrahams lodged a further claim for compensation on 11 July 2003 for “right carpal tunnel syndrome.” [5] This is the claim in respect of which the reviewable decision now before the Tribunal was made. The following features of this claim are important:
·the part of the body claimed to have been affected was “Right Hand and wrist”;
·the injury was said to have been sustained by “keyboard work, in particular use of numerical keyboard”;
·the injury was said to have first happened or was first noticed on 1 June 2002;
·the effect of the injury was said to be that it caused “pain and swelling in the right hand and wrist when typing, is often inflamed around the hand without doing anything. Painful to lift/move objects with the right hand. Decrease in strength in hand’;
·Mr Abrahams answered “no” to the question “have you ever had a similar injury or illness before, work related or otherwise (even if you think it is unrelated to this injury or illness)?”; and
·both medical reports in support of the application gave the diagnosis of carpal tunnel syndrome.
[5] Document T4.
LEGISLATIVE BACKGROUND
7. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in
accordance with this Act in respect of an injury suffered by an
employee if the injury results in death, incapacity for work, or
impairment.
8. Section 72 provides:
Manner in which claims are to be determined
In performing the function referred to in paragraph 69(a),
Comcare:
(a) shall be guided by equity, good conscience and the
substantial merits of the case, without regard to
technicalities;
(b) is not required to conduct a hearing; and
(c) is not bound by the rules of evidence.
9. Section 62 provides for Comcare to reconsider certain decisions made by it including a decision to deny liability to compensate an injured worker such as Mr Abrahams. Once such a decision has been reconsidered by Comcare it becomes a “reviewable decision” and section 64 then provides that this Tribunal may, on application, review the reviewable decision.
10. Once an application has been made to the Tribunal, section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) confers on the Tribunal, for the purposes of reviewing the decision, all the powers and discretions of the decision-maker.
THE ISSUE
11. At the commencement of the hearing Counsel for Mr Abrahams advised the Tribunal that he was instructed that Mr Abrahams had never suffered the claimed condition. Medical examinations subsequent to the making of the claim had shown the diagnosis of carpal tunnel syndrome to be incorrect. Counsel stated that the current diagnosis of Mr Abraham’s condition was a chronic pain syndrome which arose from his keyboarding activity at work. Counsel argued that the scope of the application before the Tribunal related to the “whole of the [right] arm” including all symptoms evident since 2001.
12. The preliminary issue which then arose for determination was whether, on the present application, the Tribunal had jurisdiction to consider whether Comcare was liable to compensate Mr Abrahams for chronic pain syndrome affecting the whole of his right arm and which was claimed to be an injury arising out of or in the course of his employment with Centrelink.
Mr Abrahams’ argument
13. Counsel for Mr Abrahams argued that the scope of the application before the Tribunal “is whether the applicant suffers ongoing incapacity and need for medical treatment for a condition in the right arm, including the hand, wrist, forearm, arm as a whole and shoulder.” [6]
[6] Counsel’s written submission on opening.
14. In support of this contention Counsel put the following:
“All the Applicant is required to establish for the purposes of section 14 and 19 is that an “injury” has occurred in compensable circumstances and that the incapacity results from it. The Applicant is not to put the onus of establishing the aetiology or physiological mechanisms which links his injury to the incapacity…. The Applicant need only show that events in the work place caused a set of symptoms to arise and that those symptoms have an incapacitation effect.
The scope of the application before a delegate of the Respondent on reconsideration is that of the application lodged by the Applicant. Whether the delegate on reconsideration chooses to narrowly construe the application and limit his/her consideration to a narrow issue, does not affect the scope of the application in fact made by the Applicant. The scope of the matter before the Tribunal is the same as that before the delegate on reconsideration and thus is the same has [sic] that originally lodged with the Respondent.
The Tribunal has the same powers as were open to the Respondent on reconsideration. The Tribunal is not constrained to hear only that which the delegate on reconsideration chooses to review. The Tribunal has jurisdiction over every thing the delegate on reconsideration had the power to review.
The fact that the Respondent has refused to consider either claim on its merits does not operate to deprive the Tribunal of jurisdiction if the claim was lawfully made.” [7]
[7] Counsel’s written submission on opening, paragraphs 8-11.
15. Counsel relied on the decision of the Federal Court in Jensen v Comcare [2000] FCA 1684 as the basis for his submission that the Tribunal has jurisdiction to consider the whole of a claim (including incapacity and treatment costs) even though the decision maker did not consider a claim for incapacity and treatment costs. The reason the decision-maker did not consider the latter claim was because he/she denied liability for the claimed injury and did not need to go further. I accept that this is an accurate statement of what the Court decided in Jensen. His Honour Justice North said, in part:
“…it appears to me relatively clear that the original decision-maker had before him claims including claims under s19. Upon the initial decision and reconsideration, the decision-maker found that the reactive depression was not a sequelae from the original injury. Those decision-makers therefore did not need to proceed to determine any further issue under s19. That is not to say that the decision-makers did not have before them an application under s19 and did not inferentially determine to reject the claim under s19. In my view, the decision-makers did so determine. The result of that conclusion is that the matter under review by the Tribunal included, in part, the rejection of the claim under s19.” [8]
On the basis of this decision Counsel argued that:
“The Respondent had notice at all relevant times that the Applicant complained of a painful right arm from the fingers to the neck. It had various diagnoses including chronic pain syndrome. If the Respondents delegates choose to limit their consideration to just that of carpel tunnel syndrome, it does not bind the Tribunal to do likewise.” [9]
[8] At [16] – [17]
[9] Counsel’s written submission on opening, paragraph 14.
16. Counsel argued that it was plain from the medical evidence that Mr Abrahams “has been complaining of the same bundle of symptoms all along, albeit they might develop and fluctuate with certain kinds of activities.” [10] He put that Mr Abrahams should simply have said that he had “pain in the right arm.”[11]
[10] Counsel’s written submission on opening, paragraph 24.
[11] Counsel’s written submission on opening, paragraph 19.
17. Counsel referred me to a number of authorities, including a decision of the Federal Court in Commonwealth v Ford (1986) 9 ALD 433 (a decision which pre-dates the present Act) which he relied upon to support the following propositions:
·the Act does not require an applicant to specify any particular head of compensation when lodging a claim;
·Comcare is under a duty to fairly consider the claim lodged and to determine the heads of compensation to which the applicant may be entitled;
·if Comcare is put on notice of changed circumstances then it has a duty to re-determine the applicant’s entitlement;
·the AAT has the same power as Comcare and can therefore determine the appropriate heads of entitlement to which the applicant is entitled; and
·Comcare should not take technical jurisdictional points where the only effect of doing so would be to force the applicant to re-commence proceedings before the AAT with attendant delay.
Submission on behalf of Comcare
18. The submission on behalf of Comcare was simply that the Tribunal’s jurisdiction was limited to a review of the decision to reject the claim for compensation for an injury being carpal tunnel syndrome, and Mr Abrahams having conceded that he did not suffer this injury the Tribunal could not embark on an inquiry into liability for a different injury.
DETERMINATION OF THE ISSUE
19. The Safety, Rehabilitation and Compensation Act 1988 (Cth) provides a three tier process of review. Section 69 provides for the determination of a claim, section 62 provides for reconsideration of a determination (which then becomes a “reviewable decision”)[12] and section 64 then gives the Tribunal power to review the “reviewable decision”. The role of this Tribunal is to review a decision that has already been reviewed by the two previous levels of decision-maker.
[12] Subsection 60(1).
20. The Full Court of the Federal Court considered the Tribunal’s jurisdiction to review a “reviewable decision” in Lees v Comcare (1999) 56 ALD 84:
“In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions — that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers “[f]or the purpose of reviewing” the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.” [13]
[13] At p. 93.
21. In Telstra Corporation v Hannaford (2006) 90 ALD 263 the Full Court affirmed that the approach to statutory construction adopted in Lees was consistent with the approach adopted in the decisions of Power v Comcare (1998) 89 FCR 514, Comcare v Hill (1999) 56 ALD 487 and Riddle v Telstra Corporation Limited (2006) FCR 348. In Telstra Corporation v Hannaford the Federal Court adopted the reasoning in these latter decisions and held that when considering whether compensation should be payable, or continue to be paid, the Tribunal has power to make findings of fact contrary to the initial decision to accept liability.
22. A consideration of the decisions under review in Hannaford and the other matters referred to above highlights the difference between those matters and the matter before me and illustrates the flaw in the argument put forward by Counsel for Mr Abrahams. This is not a situation analogous to Hannaford inn which the Court was required to make a finding of fact contrary to a previously unchallenged finding of a first or second tier decision-maker.In that context the Court said:
“The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s.13 liability, whether that determination be made in isolation, or in the context of decision making concerning consequential relief that may be required in the light of evolving circumstances.” [14]
[14] At p. 283.
23. In contrast, it has been argued by Counsel in the present application that the Tribunal should make a finding that even though Mr Abrahams has not suffered the injury claimed, he has suffered another injury to the same limb. In support of this proposition Counsel has argued that in exercising all of the powers of the decision-maker (ie. Comcare) the Tribunal should inquire as to whether Mr Abrahams “suffers ongoing incapacity and need for medical treatment for a condition of the right arm, including the hand, wrist, forearm, arm as a whole and shoulder.” Even if it had been appropriate for Comcare to have treated the initial application in such broad terms (although this is not a matter for the Tribunal to decide) this does not determine the scope of the Tribunal’s jurisdiction to review the reconsideration of the initial determination.
“When the Tribunal exercises its jurisdiction to review an administrative decision, it stands in the shoes of the person who made that decision for all purposes related to the making of that decision, but only for those purposes. The Tribunal does not take on all the powers of the decision-maker.”
- Telstra Corporation Ltd v Aboushadi [2004] FCA 811
24. In the Aboushadi decision the Federal Court went on to consider and contrast the decisions of the Full Federal Court Fletcher v Commissioner of Taxation (1988) 19 FCR 442 and the High Court in Repatriation Commission v O’Brien (1985) 155 CLR 422. The Court said:
“There is a fundamental difference in the situations considered in Fletcher and O’Brien. The issue in Fletcher was whether the Tribunal, on an application for review of a particular decision, was armed with all the decision-maker’s powers, including powers that had not been used, in relation to that decision. This question was answered affirmatively. The issue in O’Brien was whether the Tribunal had the powers of the decision-maker, not in relation to the decision under review, but in relation to the reopening of earlier decisions by Repatriation Boards which were later thought to be unsatisfactory. That issue was answered in the negative.” [15]
[15] At [35].
25. In deciding the scope of the Tribunal’s jurisdiction it is necessary to look carefully at the decision the Tribunal is being asked to review. The decision before me is a decision to deny liability for the specific injury of carpal tunnel syndrome of the right wrist. This is a precise injury involving pressure on the median nerve as it passes under the ligament across the front of the wrist. The characteristic symptom of this injury is pain and tingling in the first three or four fingers of the hand.[16] Counsel now concedes that the decision to deny liability for carpal tunnel syndrome was correct but argues that the review officer had, and the Tribunal now has, the power to treat the application as one for compensation for an ongoing injury to the right arm in general.
[16] Black’s Medical Dictionary 10th Edition.
26. Counsel has argued that Mr Abrahams could have stated his injury in more general terms. This may be true but the inescapable fact is that he did not. Instead he chose to make a claim for a specific injury and supported his claim by medical reports which were equally specific. Correctly, in my view, Mr Abrahams claimed for an injury, not a list of symptoms. It is the decision rejecting liability for this injury which is before me for review and, as pointed out in the Aboushadi decision, I have all the powers of the decision-maker for all purposes related to the making of the decision. However, these powers do not include the power to treat the application as one for compensation for a different injury, even if that injury was one of which the decision–maker was aware. This is not a case of Comcare having refused to make a decision which the Tribunal can now properly make. Comcare dealt with the application made to it completely when it refused liability to compensate Mr Abrahams.
27. Further, I do not accept the argument of Mr Abrahams’ Counsel that to deny jurisdiction would be to accept the proposition that there is an estoppel arising from the decision of 19 February 2003 namely, to cease liability on the claim for overuse injury affecting the right arm. There is no principle of estoppel arising in this matter. The authorities are clear that a decision to cease liability to compensate an injured worker cannot preclude future entitlements for a compensable injury.[17] There is nothing to prevent Mr Abrahams seeking compensation for incapacity or treatment expenses for the injury to his right arm. Comcare has already accepted liability to compensate Mr Abrahams in respect of that injury. Counsel appears to be proposing that I should determine issues which should properly be determined on a claim based on the accepted compensable condition and in respect of which Comcare has not yet made a determination. This would be contrary to the three tier decision-making process.
[17] Australian Postal Corporation v Oudyn (2003) 73 ALD 659.
28. As there is no longer an issue as to the claimed injury of carpal tunnel syndrome I was satisfied that it would have been vexatious to allow Mr Abrahams to continue to have the matter heard on the basis argued by his Counsel. Whilst it was proper for Mr Abrahams to commence the application based on the medical advice then available to him, that advice has changed. An application which was properly made can become vexatious as a result of changed circumstances: ReWilliams and Australian Electoral Commission (1995) 38 ALD 366.
DECISION
29. Pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 the Tribunal was satisfied that the application for review of Comcare’s decision made 6 September 2004 was vexatious and therefore dismissed the application.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 24 July 2006
Date of Decision 15 September 2006
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent Ms L Walker
Solicitor for the Respondent Dibbs Abbott Stillman
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