Anthonisz and Comcare

[2008] AATA 816

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 816

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3372

GENERAL ADMINISTRATIVE DIVISION		)
Re		LYNNE ANTHONISZ

Applicant

And COMCARE

Respondent

DECISION

Tribunal

Ms Robin Hunt, Senior Member

Dr Maxwell Thorpe, Member

Date of Decision  13 August 2008

Date of Written Reasons     12 September 2008

Place  Sydney

Decision

For the reasons given orally at the hearing of this matter,   

the tribunal affirms the reviewable decision of a delegate

for Comcare made on 18 July 2007.

...................[Sgd]....................

Ms Robin Hunt
  Senior Member

CATCHWORDS

COMPENSATION – liability accepted – present entitlements – decision that effects ceased - nature of reviewable decision – one decision containing comments about original acceptance as well as affirming no present entitlement – no revocation made by Comcare - finding that one decision only contained in reviewable decision  – decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 62(1), 62(2), 62(5)

Telstra Corporation Limited v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

13 August 2008 Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Member        

1. At the conclusion of the hearing in the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant and the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the tribunal to furnish a statement in writing of the reasons of the tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the decision.

3.      An extract of the transcript is annexed and furnished to the Applicant and to the Respondent as it contains the reasons for the tribunal’s decision. In addition, the introduction below explains the background to the reasons for decision.

introduction

4.      Lynne Anthonisz came before the tribunal seeking review of a reviewable decision made on 18 July 2007 that the effects of her injury on 4 June 2004 ceased on 29 March 2007.

5. At the commencement of the hearing, Ms Anthonisz’s counsel informed the tribunal that the applicant conceded, as at 29 March 2007, the effects of the injury had ceased and there was no ongoing claim for medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) and incapacity payments under section 19 of the SRC Act.

6. The issue for the applicant was that the reviewable decision did more than simply affirm what was commonly regarded as a cease effects decision. What the applicant claimed was that the reviewable decision is also a primary determination by Comcare that on 4 June 2004, the applicant did not suffer an injury under the SRC Act that was contributed to in a material degree by her employment.

7.      Counsel for Ms Anthonisz directed the tribunal to several passages in the reviewable decision, one of which reads:

I find that Dr Pascall has provided the most thorough and accurate report in respect of the employee’s condition.

The decision goes on to say:

In Dr Pascall’s opinion the employee’s condition is due to her pre-existing conditions.  Dr Pascall does not suggest anywhere that the employee’s current condition has anything to do with the incident on 4 June.

The next paragraph refers to the law, the definition of “material contribution” and “aggravation”, saying:

I prefer Dr Pascall’s opinion that the applicant never suffered an injury.

A following paragraph states:

In any event the effects would have ceased.

And later says:

The employee does not currently suffer an injury that was contributed in a material degree.

8.      Counsel for Ms Anthonisz argued that although confirming the earlier determination, this decision does not accept that the applicant ever suffered an injury on 4 June 2004.

9. Counsel for Ms Anthonisz referred us to subsection 62(1) of the SRC Act which gives authority to Comcare to make reconsiderations of own motion. He contended, notwithstanding the original determination simply “ceased effects”, if the reviewable decision were affirmed, this would affirm a decision that the applicant never suffered an injury.

10. As counsel for Comcare pointed out, the delegate in the primary determination made on 8 July 2004 accepts liability under section 14 of the SRC Act, setting out:

I have decided to accept aggravation of sacroiliac ligament strain bilateral, and accept aggravation of thoracic sprain bilateral, and accept aggravation of sprain of unspecified site of shoulder and upper arm bilateral.

The delegate on 8 July 2004 goes on to acknowledge possible continuing claims and the need to substantiate these, adding:

From time to time, the applicant requires further medical attention and time off.  She will need to provide relevant evidence so that determinations can be made in relation to that.

11.     In the primary determination regarding present entitlements, made on 10 April 2007, the decision-maker ultimately says in the second-last paragraph:

Therefore I determine, in accordance with the Safety Rehabilitation and Compensation Act, that compensation is presently not payable. Pursuant to section 16 of the SRC Act, you have no present entitlement to compensation in respect of medical expenses and, pursuant to section 19 of the SRC Act, you have no present entitlement to compensation for injury resulting in incapacity.

12.     In the reconsideration decision under review, the following words appear:

For the reasons outlined above, I affirm the determination dated 10 April 2007.

13.     Comcare did not argue that acceptance of liability was revoked by the reconsideration decision under review.  Its position was clear in a statement of facts and contentions filed, which begins with a statement:

The applicant has an accepted claim for compensation under the Act in respect of those three areas of aggravation – which occurred on 4 June 2004.

14.     Comcare is content that the reviewable decision affirmed the determination dated 10 April 2007 and did not vary or revoke this determination despite comments contained in the text of the decision.

15. Counsel for Ms Anthonisz however took the position that the reviewable decision was actually two decisions, one made on own motion and one made as a result of Ms Anthonisz’s request for reconsideration. He contended that one decision was made pursuant to a request made under subsection 62(2). Then he contended that another decision was made of own motion under subsection 62(1).

16.     He argued that the reviewable decision did not merely affirm the earlier determination but made a further decision on own motion that revoked the original acceptance of liability. He found authority for this proposition in the Federal Court judgment of Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 at paragraph [59]:

I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRC Act and in the events which happened:

(i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and

(ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and

(iii)  to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.

decision

17.     The tribunal affirms the reviewable decision of a delegate for Comcare made on 18 July 2007.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Maxwell Thorpe, Member

Signed: .........................[Sgd]............................
  Jennifer Wong, Associate

Date/s of Hearing   11 and 13 August 2008
Date of Decision   13 August 2008
Counsel for the Applicant          Mr D Richards
Solicitor for the Applicant           Slater & Gordon Lawyers
Counsel for the Respondent     Miss R M Henderson
Solicitor for the Respondent      Sparke Helmore Lawyers

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MS HUNT:   Well, I think we can make it an oral decision today in line with paragraph 59 of the Full Court decision in Hannaford.  I note that section 62 subsection (5) provides:

Where a person reconsiders a determination –

I’ll just pause there before reading the rest of it.  That appears to me to be a reconsideration of any kind.  Either of its own motion or at the request of the party involved, the injured person or the person who claims an injury.  It’s perfectly general, this phrase “where a person reconsiders a determination” –

…the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

In my opinion that’s what has occurred here.  There has been a reconsideration and that covers both situations, both the request by the applicant and a reconsideration that may be broader than what the applicant requested and which might possibly be misconstrued as a reconsideration on own motion but I don’t think we need to decide that because subsection 5 allows a reconsideration of any breadth whether on a motion or not and the result of that reconsideration was a variation of the original decision but only insofar as the reasons given were involved, it was nevertheless affirmed.

But similarly to the Hannaford matter the findings of fact did – I suppose the word undercut covers it, the findings of fact made in the original decision of Comcare under section 14 nevertheless did not overturn that determination. So we would have been at liberty to make findings for claims under 16 and 19 but those have in fact been paid and there are not going to be any more and we agree that Hannaford – that the Comcare determination about section 14 has remained in force. So that there is no further matter at issue and that’s the final decision of the tribunal at today’s date. I can see Dr Thorpe is indicating agreement.

DR THORPE:   Yes.

MS HUNT:   I am just wondering if there is going to be any argument about costs in view of what’s occurred.

MS BORTONE:   Senior member, given what you’ve said, if the tribunal decision based on all of this is an affirmation of the reviewable decision, then I think that answers the question of costs.

MS HUNT:   Have you anything to say, Ms Le Page?

MS LE PAGE:   Nothing, senior member.

MS HUNT:   No, all right.  It’s not appropriate to order costs in favour of the applicant in view of our decision that the affirmation should – that we affirm the decision under review.  So is there anything further?

MS BORTONE:   Not from the respondent.

MS LE PAGE:   Not for the applicant.

MS HUNT:   All right, well, we’ll close the matter now.  Thank you very much.

MS LE PAGE:   Thank you, senior member.  Thank you, Dr Thorpe.

END OF EXTRACT   [10.38 am]