Aunela and Telstra Corporation Ltd

[2008] AATA 153

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 153

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  A 2006/144

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ERIC AUNELA

Applicant

And TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date26 February 2008

PlaceCanberra

Decision In application A 2006/144 the Tribunal has jurisdiction to consider a claim by Mr Aunela for compensation for psychiatric injury or injuries being complex regional pain syndrome and depression. 

…….............................................

J.W. Constance, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE- Compensation - Jurisdiction - Reviewable decision dealt solely with claim for arm injury –– Applicant sought to have additional psychological injury before Tribunal – Whether Applicant had met requirements of notice and making of a claim - Whether Tribunal has jurisdiction to consider psychological injury – Psychological injury was before reconsideration officer –Tribunal does have power to review separate injury

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 43, 53, 54, 60, 62, 64

Administrative Appeals Tribunal Act 1988 (Cth), s 43

Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829

Buhr v Comcare [2007] FCA 575

Buhr and Comcare, Re [2006] AATA 93

Canute v Comcare (2006) 226 CLR 535; [2006] HCA 47

Frosch v Comcare [2004] FCA 1642.

Fuad and Telstra Corporation Limited, Re [2004] AATA 1182

Grant v Repatriation Commission (1999) 57 ALD 1; [1999] FCA 1629

Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753

Telstra Corp Ltd v Barrow: (1994) 35 ALD 461

REASONS FOR DECISION

J.W. Constance, Senior Member

26 February 2008

INTRODUCTION

1.      On 20 April 1993 Mr Aunela lodged a claim for compensation arising from an injury he suffered at work the previous day.  At the time he was employed by Telecom Australia, the predecessor of Telstra.  He described the injury as a sprain of the left ankle and swelling of the right elbow.  There was no reference to any form of psychological injury and it is not suggested that Mr Aunela suffered any such injury at that time.

2.      On 4 May 1993 Telecom accepted liability to compensate Mr Aunela “in respect of a soft tissue injury to right elbow and left ankle.” [1] Liability was said to have been determined in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988.

[1] T6.

3.      Over the following years Telecom and then Telstra received numerous medical reports as to Mr Aunela’s condition.  On 16 March 2006 Telstra determined that Mr Aunela “ceased to suffer from the effects of the compensable injury on 16 March 2006.” [2]  At the request of Mr Aunela, Telstra reconsidered this determination.  On 1 June 2006 Telstra affirmed the determination.

[2] T101.

4.      Mr Aunela has applied to the Tribunal to review the decision of 1 June 2006.  The application is yet to be heard.  A preliminary question has arisen as to the extent of the Tribunal’s jurisdiction to review the decision.  Mr Aunela contends that “the claim before the Tribunal encompasses the original physical injury and all its direct sequelae, which include the complex regional pain syndrome and the depression (however expressed in diagnostic terms).” [3]  On the other hand Telstra argues that “the Tribunal does not have jurisdiction to consider whether the applicant suffers from a psychological injury because the respondent has not issued a reviewable decision in relation to that issue.” [4]

[3] Applicant’s Submissions on Jurisdiction 8/10/07.

[4] Statement of facts and Contentions 25/9/07.

5.      For the purpose only of determining the jurisdiction issue I assume that Mr Aunela has suffered a complex regional pain syndrome and depression as a direct sequelae of the accepted physical injuries.

THE ISSUE

6.      The issue for determination is whether the Tribunal has jurisdiction to consider the effects of a psychiatric injury on Mr Aunela when it is reviewing a decision that he has ceased to suffer the effects of a previously accepted physical injury.

LEGISLATION

7.Subsection 14(1) of the Act provides:

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.      Subsection 53(1)(a) provides:

This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority …… as soon as practicable after the employee becomes aware of the injury…

9. Section 54 sets out the requirements of a valid claim. I refer to these requirements in more detail later in these reasons.

10.     The Tribunal has jurisdiction to review “a reviewable decision” made under the Act: see section 64. Subsection 60(1) provides:

reviewable decision means a decision made under subsection 38(4) or section 62.

Only section 62 is relevant to the issue before me. It refers to a decision which is made on the reconsideration of a determination.

11.      Subsection 62(5) provides:

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.

It is only a decision made on reconsideration of an initial determination which meets the definition of a “reviewable decision”.  The decision of 1 June 2006 is a “reviewable decision”.  The combination of sections 62 and 64 establishes the three tier decision-making process between the determining authority under the Safety, Rehabilitation and Compensation Act 1988 and the Tribunal.

THE PRINCIPLES APPLICABLE

11.     Counsel have referred me to many decisions in presenting their respective arguments.  Having considered these and other authorities I have come to the conclusion that the following principles are applicable in deciding the issue before me.

A.  Under the provisions of the Safety, Rehabilitation and Compensation Act 1988 there is no basis to distinguish between an initial injury and a consequential or secondary injury; compensation is payable in accordance with the Act in respect of each injury suffered by an employee.

12.     This principle was stated very clearly by the High Court of Australia in Canute v Comcare [2006] HCA 47 at para. 34. The High Court also stated that “the term ’injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act …… assumes that an employee may sustain more than one ’injury’.” [5]

B. In determining whether a new injury is being claimed, as distinct from information being provided to better justify an existing claim, “a broad, generous and practical interpretation should be made”.[6]

[5] At para.10.

[6] Abrahams v Comcare [2006] FCA 1829 at para.18.

13.     As the Federal Court made clear in Abrahams v Comcare, medical diagnoses change and evolve and, in appropriate circumstances, may be regarded as better explaining an injury for which a claim has already been made, rather than indicating a new injury is being claimed.

C.  In a particular case the evidence before the Tribunal may establish that a valid claim under the Safety, Rehabilitation and Compensation Act 1988 has been made notwithstanding the lack of a formal claim and/or formal notice.

14. Subsection 54(1) of the Safety, Rehabilitation and Compensation Act 1988 requires a claim to be made before compensation is payable. Subsection 54(2) provides that a claim shall be made by the giving of a written claim in accordance with an approved form.  Subsection 54(5) provides that strict compliance with an approved form is not required; it does not provide exemption from strict compliance with the requirement that the claim be in writing.

15.     In Buhr v Comcare [2007] FCA 575 the question was whether the Tribunal had jurisdiction to consider a claim for compensation for a delusional/paranoid disorder claimed to have been contributed to by the applicant’s employment. The Tribunal had found that the applicant had ceased to suffer from an adjustment disorder with features of anxiety and depression, the condition for which Comcare had accepted liability. The Tribunal had before it several medical reports which also were before Comcare. These reports referred to the applicant suffering a delusional disorder.

16.     In its reasons the Tribunal said:

“In my view Comcare treated Mr Buhr’s complaint as if a formal claim had been lodged …… Accordingly I consider that the continuing correspondence from Mr Buhr and Comcare's responses and medical investigation of Mr Buhr’s claim should be treated as a claim and acceptance of that claim under the [SRC] Act.” [7]

Edmonds J. in the Federal Court said:

“I agree that the Tribunal’s finding at [23] was open on the evidence and that, notwithstanding the lack of a formal claim for a delusional disorder, the requirements of s 54 were, on the facts of this case, substantially complied with by the applicant.” [8]

[7] Re Buhr and Comcare [2006] AATA 93 at para.23.

[8] Buhr v Comcare [2007] FCA 575.

This principle was stated also by the Full Court of the Federal Court in Telstra Corp Ltd v Barrow: (1994) 35 ALD 461.

There is no prescribed form of notice of an injury: Frosch v Comcare [2004] FCA 1642.

D.  The Safety, Rehabilitation and Compensation Act 1988 provides a three tier decision-making process under which the Tribunal’s role is limited to reviewing a “reviewable decision”.

17.     This proposition appears very clearly from a reading of the sections of the Act set out above and it has been reiterated frequently by the Federal Court and the Tribunal.  See, for example, Lees v Comcare [1999] FCA 753. Put simply, unless there has been a reconsideration of a determination there is no reviewable decision. As is the case here, difficulties arise in determining precisely the extent of the reconsideration which has taken place.

E.  The powers and discretions available to the Tribunal in reviewing a decision are limited to those available to the determining authority at the stage of making the reviewable decision.

18.     Subsection 43(1) of the Administrative Appeals Tribunal Act 1988 provides in part that:

“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ……” (emphasis added).

As the Federal Court stated in the Lees decision, the powers given to the Tribunal are not powers that may be exercised at large.  Even if certain powers were available to the maker of the initial determination those powers are not available to the Tribunal unless they were available to the person who made the reviewable decision: i.e. the person who reconsidered the initial determination.[9]

F.  When reviewing a decision the Tribunal has before it all matters put before the decision-maker as part of the claim for compensation.

[9] At para.39.

19.     This principle was set out by the President, Justice Downes, in Fuad and Telstra Corporation Limited, Re [2004] AATA 1182. In applying this principle it does not matter that the decision-maker who made the decision under review did not address all or any of the matters properly before him or her.

G. In considering the matters before it the Tribunal is not limited to consideration of the case argued by the applicant.

20.     “An inquisitorial review conducted by the AAT…… is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material which accepts, or does not reject, and raise the case on the basis not articulated by the applicant ….”: Grant v Repatriation Commission [1999] FCA 1629 at para.18.

SUBMISSIONS OF THE PARTIES

21.     Counsel for Mr Aunela argues that the Tribunal should determine whether Mr Aunela continues to suffer the effects of:

a)     the original physical injury for which Telecom accepted liability to compensate him and,

b)     any direct sequelae of that injury.

Counsel argued further that the chronic pain syndrome and the depression from which Mr Aunela suffers should not be treated as injuries separate from the physical injuries for which liability was accepted in May 1993.

22.     On the other hand it was the submission of Counsel for Telstra that the psychological conditions from which Mr Aunela now suffers are a new injury for which there has been no claim, determination or reconsideration as required by the Safety, Rehabilitation and Compensation Act 1988. It follows that there is no jurisdiction in the Tribunal to consider the effect of these conditions in the present proceedings.

REASONING

Is the psychiatric condition alleged by Mr Aunela an injury other than that for which Telstra has already accepted liability?

23.     Applying the first principle referred to previously I have come to the conclusion that the psychiatric conditions for which Mr Aunela now claims ongoing compensation are separate from the injuries to his elbow and ankle for which Telecom accepted liability in 1993. 

24.     In Canute v Comcare the High Court considered claims by Mr Canute in respect of two conditions arising from the one workplace accident.  The initial claim for which liability was accepted was for an injury to the lumbar spine.  Mr Canute later claimed to have suffered an adjustment order with depression as a result of the pain caused by the injury.  The Court held that for the purposes of the Act, Mr Canute has suffered two injuries.  Although the Court was considering a claim for compensation for injuries resulting in permanent impairment there are no grounds to distinguish the decision in Canute from the matter before me.  In Mr Aunela’s case, as in that of Mr Canute, the incident at work gave rise to two different effects upon his body.

25.     I have taken into account the principles set forth in the Abrahams decision and the approach which the Court indicated should be taken by the Tribunal.  In this case the diagnosis of psychiatric conditions cannot be regarded as better explaining the initial claim for the injury to the elbow or ankle.

Has Mr Aunela met the requirements of the Act in regard to the giving of notice of the injury and the making of a claim for compensation for it?

26.     Having reached the conclusion that Mr Aunela is now claiming to be suffering the effects of an injury other than the injury to his elbow and ankle it is necessary to consider whether he has taken the steps as to notice and the making of a claim as required by the Act.

27.     Counsel for Mr Aunela has referred me to a number of medical reports provided to Telstra between August 1996 and August 2000 which refer to Mr Aunela suffering psychiatric sequelae to the workplace accident.  The relevant reports are referred to in the following sub-paragraphs:

27.1.In August 1996 Telstra received a report from Dr Reid [10] enclosing a report from Dr Champion of 12 August 1996[11].  Dr Champion advised that he had diagnosed Mr Aunela as suffering a complex regional pain syndrome type I (reflex sympathetic dystrophy) in the right upper limb, depressed mood and major adjustment disorder.  In Dr Champion’s opinion these conditions were a result of the injury to his arm and ankle.

27.2.In October 1997 Telecom arranged for Mr Aunela to be assessed by Dr McGill, Consultant Rheumatologist.  After that assessment Dr McGill reported that Mr Aunela did not suffer from reflex sympathetic dystrophy. [12] It is clear from his report that he had been requested to consider this diagnosis.

27.3.In January 1997 Mr Aunela underwent a functional assessment at the request of Telstra.  In a report of this assessment Telstra was advised:

“Psychologically Mr Aunela is significantly impaired and it is difficult to envisage any return to work whilst this remains the case.  He appears to be depressed and may benefit from some psychological intervention." [13]

27.4.In March 1997 Telstra received from Mr Aunela an Economic Loss Questionnaire in which it was advised that he claimed to be      “depressed every day” and suffering from anxiety.[14]

27.5.In August 1997 Mr Sutton, Psychologist, reported to Telstra in relation to Mr Aunela  that after his initial injury “classical Sympathetic Dystrophy changes occurred……”  and that there was evidence for both depression and anxiety.[15]

27.6.A report from Dr Reid to Telstra in August 2000 refers to Mr Aunela’s “secondary depression” and the steps being taken to treat that condition.[16]

[10] T25.

[11] T24.

[12] T27.

[13] T29.

[14] T32.

[15] T39.

[16] T79.

28.     I am satisfied that this correspondence meets the requirements of the Act in that it constitutes both written notice of the injury alleged and a claim for compensation for the injury.  The report of Dr McGill in 1977 indicates that Telecom was investigating the claim by Mr Aunela to be suffering reflex sympathetic dystrophy and it follows that the employer was treating such a claim as having been made.  These reports are clear also in the notification of, and claim for, ongoing depression.  I find support for my findings on this issue in Buhr v Comcare.

Was the material referring to the psychiatric claim before the maker of the decision the Tribunal is being asked to review in this application?

29.     The initial determination of 16 March 2006 [17] was that Mr Aunela ceased to suffer the effects of the compensable injury on 16 March 2006.  Although the written determination was brief the decision-maker specifically referred to having taken into account “all available medical and other evidence.”  This evidence included the documentation referred to above, all of which was available to Telstra at the time the decision was made.

[17] T101.

30.     The reviewable decision made 1 June 2006 [18] considered a claim by Mr Aunela to suffer Chronic Regional Pain Syndrome and Reflex Sympathetic Dystrophy. The maker of the reviewable decision also stated that he had “considered all the available medical and other evidence.”

[18] T104.

31.     Although neither decision-maker referred to the claim for compensation for depression that claim was before each of them.  It follows that the Tribunal has jurisdiction to consider such a claim:  Fuad v Telstra Corporation Ltd [2004] AATA 1182.

What are the powers and discretions of the Tribunal in relation to the claim for compensation for the psychiatric injury?

32. As I have decided that the claim in relation to both complex regional pain syndrome and depression was before the review officer when he reconsidered the initial determination the Tribunal has all the powers of that review officer. These powers and discretions are set out in subsection 62(5) to which I have already referred. These powers are confirmed in section 43 of the Administrative Appeals Tribunal Act 1988.

DECISION

33.     In application A 2006/144 the Tribunal has jurisdiction to consider a claim by Mr Aunela for compensation for psychiatric injury or injuries being complex regional pain syndrome and depression.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed:          .....................................................................................

Geoff Foley, Associate

Date of Hearing  7 February 2008
Date of Decision  26 February 2008
Counsel for the Applicant              Alan Anforth
Solicitor for the Applicant              Pamela Coward Higgins Lawyers
Counsel for the Respondent         Ben Dube
Solicitor for the Respondent         Sparke Helmore