Ali and Australian Postal Corporation
[2001] AATA 641
•10 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 641
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/483
GENERAL ADMINISTRATIVE DIVISION )
Re MOHAMMED ISHRAR ALI
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date10 July 2001
PlaceSydney
Decision The Tribunal has jurisdiction to entertain this application for review.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
WORKERS' COMPENSATION –Tribunal jurisdiction to entertain application – permament impairment – denial of liability
Safety, Rehabilitation and Compensation Act 1988, s 14
Re Denison-Smith and Comcare [2000] AATA 553
Lees v Comcare (1000) 56 ALD 84
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
REASONS FOR DECISION
10 July 2001 M J Sassella, Senior Member
History of application
Mohammed Ishrar Ali ("the Applicant") lodged with his employer, the Australian Postal Corporation ("the Respondent") a compensation claim dated 5 May 1997 in respect of "recurrence of a sharp back pain and neck pain" (T97).
On 3 July 1977 the Respondent accepted liability and paid compensation to the Applicant (T105).
On 29 September 1997 the Respondent wrote to the Applicant stating that it was intending to cease further payments of compensation in respect of the condition (T126). The Applicant had 28 days in which to provide evidence to dissuade the Respondent from this course of action.
On 9 December 1997 the Respondent wrote to the Applicant to inform him that on and from 9 December 1997 he was no longer entitled to the payment of compensation in respect of his condition (T138).
On 30 March 1998 the Applicant requested a reconsideration of the decision (T142).
On 13 August 1998 the Respondent wrote to the Applicant to say that the decision dated 9 December 1997 had been affirmed on reconsideration (T146).
On or about 14 December 1998 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the decision, application number N1998/1824 (T149).
On 16 August 1999 the Tribunal dismissed application number N1998/1824 because of the Applicant's failure, without good reason, to comply with certain directions issued by the Tribunal on 23 July 1999 (T154).
The Applicant lodged with the Respondent a compensation claim dated 8 May 2000 in respect of "back and neck with pain in shoulder and left lower abdomen" (T157).
The Respondent rejected this claim on 13 July 2000 (T167). However, on 14 August 2000 the Applicant signed a letter seeking a reconsideration of the decision (T175). On 19 September 2000 the Respondent revoked the original determination and found the Respondent liable to pay compensation for the period from the date of injury until 27 July 2000 with liability ceasing on that date (T179).
The Applicant lodged with the Respondent a claim for compensation for permanent impairment dated 18 February 2001 (T189). This claim was for a lump sum payment in respect of "neck, back and knee injury". Accompanying the claim was a report dated 21 November 2000 by Dr J S Scougall, an orthopaedic surgeon, who provided an assessment of the Applicant's level of impairment relying in part on injuries covered in the compensation claim in 1997.
On 1 March 2001 the Respondent rejected the permanent impairment claim (T192). There was no current liability for the conditions listed in the claim form. On 5 March 2001 the Applicant requested a reconsideration (T193). On 10 March 2001 the Respondent signed a reviewable decision affirming the determination dated 1 March 2001 (T194).
The Applicant lodged with the Respondent a claim for compensation dated 28 March 2001 (T195). This was in respect of "soft tissue injury left groin". On 10 April 2001 the Respondent accepted liability under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). On 17 April 2001 the Respondent amended the determination to read liability as accepted for left inguinal hernia (T198).
On 12 April 2001 the Applicant lodged with the Tribunal the current application for review of the decision to reject the claim for permanent impairment (T1).
At a conference convened by the Tribunal the Respondent raised the question whether the Tribunal has jurisdiction to hear the matter under appeal by the Applicant in view of the Tribunal's dismissal of application number N1998/1824.
Relevant legislationThe relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), section 14:
"14 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.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."
Hearing and appearances
The Tribunal convened a hearing on jurisdiction on 5 July 2001. Mr Dennis Epstein of counsel represented the Applicant. Mr Lawrence Forner, solicitor, represented the Respondent.
Documentary evidence before the Tribunal was:
Section 37 Statement and associated documents lodged by the Respondent.
Applicant's statement of issues.
Respondent's statement of issues.
Respondent's argument
In its statement of issues the Respondent queried whether the Tribunal has jurisdiction to decide whether any injury predating 16 August 1999, the date of dismissal of application number no N1998/1824, results in any permanent impairment.
Application no N1998/1824 concerned whether a decision to cease liability to pay compensation under s 14 of the Act should be affirmed, varied or set aside. With dismissal of the matter the decision left on foot was the decision to cease liability.
As a result of the decision of the Tribunal in Re Denison-Smith and Comcare [2000] AATA 553 (per Burns DP) any claim for permanent impairment in respect of any injury dealt with as a result of the claim dated 5 May 1997 (T97) must result in a rejection.
Applicant's argumentMr Epstein submitted that the decision to dismiss the Applicant's earlier Tribunal application related only to heads of compensation other than permanent impairment. It was therefore competent for the Applicant to make a claim, for the claim to be entertained and for review bodies to make a decision on any adverse determination relating to the claim.
Mr Epstein cited the Federal Court decision in Lees v Comcare (1999) 56 ALD 84 as authority.
Considerations of fact and lawThe Tribunal finds, on the basis of the decision in Re Denison-Smith (supra), that the Applicant, in order to make a valid claim for compensation for a permanent impairment, must show that there is, or was on the date of the claim, a determination in force under s 14 of the Act imposing liability on the Respondent to pay compensation to the Applicant.
As at the date of the Applicant's claim for permanent impairment, 18 February 2001, the Tribunal finds that there was no condition in respect of which the Respondent was liable under s 14 of the Act, at least according to the Section 37 Statement. (There may be other claims not referred to in the Section 37 Statement.) As of late March there was liability in respect of left inguinal hernia (T195, T197). That liability appears to continue.
The Tribunal finds that it does in technical terms have jurisdiction to entertain the application for review in this matter. There is a reviewable decision by the Respondent which the Tribunal can review. The Applicant can therefore proceed to a hearing in the Tribunal on his application.
However, the Respondent most likely sought to communicate something other than a complete absence of jurisdiction in its statement of issues. This was that the application would have to proceed on the basis that the Applicant was claiming compensation for a permanent impairment on the basis of certain injuries in respect of which there is no outstanding compensation liability in the Respondent. This was partly as a result of the dismissal by the Tribunal of an earlier application. The Tribunal finds itself in agreement with that proposition.
It is a matter for the Applicant whether he wishes to proceed to a hearing on that basis. There was discussion at the hearing concerning a way in which the Applicant might proceed to improve his chances for a successful outcome in respect of his permanent impairment claim. This involves lodging with the Tribunal an application for review of the reviewable decision dated 13 August 1998 (T146). At the same time the Applicant should lodge an application for an extension of time in which to lodge the application for review.
This application for review would cover the same issues as those in the application that was dismissed (T154). The purpose would be to challenge the determination to cease all effects under s 14 of the Act. The decision in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 is weighty authority for the proposition that such an application can be made. This is because the dismissal occurred without the Tribunal proceeding to judge the earlier case on its merits.
There is, of course, no guarantee that the Applicant will be granted the extension of time. The Applicant will have to convince the Tribunal to extend time on the basis of the criteria in the Mulheron case (supra) (especially paragraph (17) ff) and in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315.
ConclusionThe Tribunal has jurisdiction to decide in the instant application for review. However, the Tribunal's decision is most likely to be that the decision under review is affirmed.
The Applicant raised the question of costs related to this proceeding. The appropriate time to consider that question will be at the end of the Tribunal process if the Applicant has a measure of success in his application before the Tribunal.
DecisionThe Tribunal has jurisdiction to entertain this application for review.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed: .....................................................................................
AssociateDate of Hearing 5 July 2001
Date of Decision 10 July 2001
Counsel for the Applicant Mr D EpsteinSolicitor for the Respondent Mr L Forner
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