Adams and Comcare (Practice and procedure) [2025] ARTA 51 (31 January 2025)
Applicant/s: Susan Adams
Respondent: Comcare
Tribunal Number: 2023/5607
Tribunal:Senior Member S Webb
Place:Canberra
Date:31 January 2025
Decision:Application dismissed.
…………………[SGD]……………………………..
Senior Member S Webb
Catchwords
PRACTICE AND PROCEDURE – workers’ compensation – liability for injury determined by Tribunal – subsequent incapacity claim – nature of ‘injury’ – no reasonable prospect of success – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
Adams and Comcare (Compensation) [2022] AATA 3404
Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2
Beezley v Repatriation Commission [2015] FCAFC 165
Commonwealth of Australia v Snell
Kitoko v University of Technology Sydney [2021] FCA 360
NXPQ and Comcare (Compensation) [2021] AATA 4094
Oliver and Comcare (Compensation) [2018] AATA 1964
Quinn v Australian Postal Corporation [1992] AATA 668
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Woodhouse v Comcare [2021] FCAFC 95 [2019] FCAFC 57Statement of Reasons
Susan Adams experienced upper limb pain in her employment by the Commonwealth. She claimed compensation for injury. Comcare rejected the claim. On review of this decision, the Administrative Appeals Tribunal (AAT) decided that Ms Adams suffered from an ailment which was aggravated by her employment and Comcare was liable to pay her compensation for temporary aggravations of forearm pain which occurred during her employment after 19 March 2018.[1]
[1] ADAMS AND COMCARE (COMPENSATION) [2022] AATA 3404 (LIABILITY DECISION).
Subsequently, Ms Adams claimed compensation for incapacity in the period from 25 May 2020 to 15 April 2021. Comcare decided to refuse the claim by primary determination and on reconsideration. Ms Adams applied for review by the AAT.[2]
[2] The application for review was lodged with the AAT under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and, as of 14 October 2024, the AAT has been replaced by the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, from 14 October 2024, the Tribunal has jurisdiction to conduct the review under the Administrative Tribunal Act 2024 (ART Act).
In the course of the proceedings, Comcare applied for the application to be dismissed under s 101 of the ART Act.
The parties made submissions addressing related matters.
Having heard the parties at an interlocutory hearing, it is this question of dismissal, alone, which is the subject of this decision.
After conclusion of the interlocutory hearing, Ms Adams provided additional materials and submissions to the Tribunal. These have been taken into account in this decision.
Facts
Many of the background facts are set out in paragraphs [4] to [38] of the Tribunal’s liability decision. It is not necessary to recite these for present purposes other than to note Ms…
Continue reading Adams and Comcare (Practice and procedure)
Sign in free to access the full text
- AGLC
- Adams and Comcare (Practice and procedure) [2025] ARTA 51
- Case
- [2025] ARTA 51
- Decision Date
CaseChat Overview and Summary
The Tribunal carefully considered the medical evidence, ultimately preferring Dr Dale's opinion over Dr Cooley's. Dr Dale opined that Ms Adams' condition was systemic, with no correlation between her work activities and the causation of her non-specific upper-limb pain. He noted that her symptoms improved when she took leave, indicating her reduced tolerance for certain levels of activity. Dr Cooley, on the other hand, believed that excessive keyboard work could cause or aggravate Ms Adams' condition. However, the Tribunal found Dr Cooley's evidence less consistent and objective, leading to the conclusion that Ms Adams' employment had not significantly contributed to her underlying condition. While the Tribunal acknowledged that her employment had aggravated her symptoms at times, it found that these aggravations did not significantly contribute to any permanent incapacity.
Based on the evidence, the Tribunal set aside the reconsideration decision and found Comcare liable to pay compensation for the temporary aggravations of forearm pain that occurred during Ms Adams' employment. The Tribunal emphasized that any subsequent aggravations outside her employment were not compensable as her employment had not significantly contributed to her constitutional condition or rendered it more susceptible to debilitating pain. The decision underscores the importance of the Tribunal's role in distinguishing between mere aggravation of symptoms and a significant contribution to an underlying condition.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Ms Adams alleges she has a reasonably arguable case which should be allowed to proceed to hearing. She intends to adduce further medical evidence at the hearing which, she asserts, can reasonably be expected to buttress and reinforce her case. This, she asserts, is within the Tribunal’s usual practice and dismissing her application on the present materials would be premature and unjust. Ms Adams presses for Comcare’s application for summary dismissal to be refused.Consideration The discretionary power to dismiss an application under s 101 of the ART Act complements and supports the Tribunal’s procedural powers in Subdivision A, Div. 5, Part 4. These are for the purposes of the Tribunal’s objective in s 9:The Tribunal must pursue the objective of providing an independent mechanism of review that:(a) is fair and just; and(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and(c) is accessible and responsive to the diverse needs of parties to proceedings; and(d) improves the transparency and quality of government decision‑making; and(e) promotes public trust and confidence in the Tribunal. Three important principles must be kept squarely in mind. Firstly, the Tribunal is required to make the correct or preferable decision on the relevant materials placed before it. In so doing, under the interlinked provisions of the ART Act and the SRC Act, it is not strictly bound by any previous determination, factual finding or decision in earlier Tribunal proceedings.[23] Nevertheless, as was said in Quinn v Australian Postal Corporation[24]:It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination. In compensation cases like the present, the issues of causation and level of incapacity for the period the subject of the earlier decision would thus not be areas contested in a subsequent hearing. [23] Snell, [4].[24] [1992] AATA 668, [32]. Thus, the Tribunal should properly allow re-agitation of matters it has previously decided only where there is a good reason to do so. In the context of the evolving decision-making the scheme of the SRC Act allows, a good reason might arise where new material of probative value has been produced of some relevant change in circumstances which has not previously been considered[25]. [25] Telstra Corporation Limited v Hannaford [2006] FCAFC 87 (Hannaford), per Conti J, [57]. Secondly, exercise of the discretionary power to summarily dismiss an application is essentially preconditioned by satisfaction of one of the elements set out in s 101(1)(a), (b) or (c). The power is not materially different than the power previously conferred under s 42B of the AAT Act, in respect of which it has been accepted the power is one which should be used sparingly and, in respect of the ancillary banning power in s 42B(2), proportionately.[26] [26] Re Filsell and Comcare [2009] AATA 90, [33] cited with approval in Soames v Secretary Department of Social Services [2014] FCA 295, [29], [37]; Oliver, [68].