Bell and K & S Freighters Pty Ltd - [2011] AATA 840

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 840
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3526;

GENERAL ADMINISTRATIVE DIVISION ) 2011/4431

Re ANDREW BELL

Applicant

And

K & S FREIGHTERS PTY LTD

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date25 November 2011
PlaceBrisbane

Decision
A. In application 2011/3526, it is directed that the subject matter of the application is whether the respondent is liable pursuant to s 14 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) to pay compensation to the applicant for the condition of umbilical hernia. The applicant’s costs, of and incidental to this hearing, are reserved.

B. In application 2011/4431, the application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

...............[Sgd].........................
Deputy President

The applicant in these proceedings, Mr Andrew Bell, is a truck driver. He is employed by the respondent, K & S Freighters Pty Ltd (K & S). In September or October 2010 Mr Bell started to experience pain in his stomach. The symptoms progressed to the point where he required medical attention. On 20 June 2011 Mr Bell saw a surgeon, Dr Mulhearn, who diagnosed an umbilical hernia.
Mr Bell contends that the hernia arose out of his employment with K & S; it was caused, he says, by “lifting strain” from lifting gates and tying down loads. On 22 June 2011 Mr Bell completed, and lodged with K & S, a notice of injury and a claim for compensation. The claim form was a document made available by K & S to its employees. It did not require the claimant to identify any particular head of compensation which was being claimed, or to provide details of the claims being made or intended to be made.
On 11 July 2011 K & S, by its insurer, made a determination that it was not liable to pay compensation to Mr Bell pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the SRC Act). On 2 August 2011 Mr Bell’s solicitors sought reconsideration of the determination. Explicit reference was made in that letter to Mr Bell being entitled to compensation pursuant to ss 14, 16, 19, 24 and 27 of the SRC Act. Those sections provide for compensation for medical expenses (s 16), incapacity (s 19), permanent impairment (s 24) and non-economic loss (s 27).
The matter was reconsidered and on 15 August 2011 the earlier determination was affirmed in this way:
“I am satisfied K & S … is not liable to pay compensation to [Mr Bell] under Section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of ‘umbilical hernia’. As such, I have affirmed the determination dated 11 July 2011”
The statement of reasons attached to the letter deal only with the issue of liability under s 14 of the SRC Act; there is no reference to compensation under any other of the sections referred to by Mr Bell’s solicitors.
Proceedings were commenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] AATA 840
Decision Date: 25 November 2011

CaseChat Overview and Summary

Bell v K & S Freighters Pty Ltd involved a claim for workers' compensation brought by Mr Bell against K & S Freighters Pty Ltd. The primary issue was whether Mr Bell was entitled to rely on additional heads of compensation after his initial claim for compensation under s 14 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) had been rejected. This issue arose from the multi-tiered decision-making process established by the SRC Act, which includes an original decision, reconsideration, and review by the Administrative Appeals Tribunal (AAT). The legal issues before the court were whether the AAT had jurisdiction to review claims for compensation under sections 16, 19, 24, and 27 of the SRC Act when those claims had not been considered in the initial decision-making process. The court found that the AAT's jurisdiction was limited to reviewing the decision on liability under s 14 of the SRC Act and could not extend to other heads of compensation that had not been considered at the first tier.

The court's reasoning was based on the structured decision-making process outlined in the SRC Act, which was similar to the process considered in the Full Federal Court case of Lees v Comcare. The court held that the AAT could only review a decision on liability under s 14 and that any additional claims for compensation under other sections of the SRC Act must be considered within the scope of the initial decision-making process. This meant that the AAT did not have jurisdiction to review claims for compensation under sections 16, 19, 24, and 27 if those claims had not been addressed in the original decision or on reconsideration. The court dismissed Mr Bell's application, finding that the AAT did not have the jurisdiction to consider the additional claims for compensation he sought.

The final orders of the court were that the application regarding the liability under s 14 of the SRC Act would be considered separately, while the application seeking compensation under other sections of the SRC Act was dismissed. The costs of the hearing were reserved for the first application.

Orders

Orders of the court

A. In application 2011/3526, it is directed that the subject matter of the application is whether the respondent is liable pursuant to s 14 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) to pay compensation to the applicant for the condition of umbilical hernia. The applicant’s costs, of and incidental to this hearing, are reserved.

B. In application 2011/4431, the application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Part VI of the SRC Act, headed “Reconsideration and review of determinations”, establishes what has been described as “a three tiered decision‑making process”[1] – the original decision or determination made by an authorised person within Comcare or the licensed authority, a reconsideration determination, also made within Comcare or the licenced authority, and a decision of the Tribunal reviewing the reconsidered decision. Within s 60, contained in that Part, are these definitions,[1] Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 at [32]. “decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.determining authority, in relation to a determination, means the person who made the determination.reviewable decision means a decision made under subsection 38(4) or section 62.”Section 61 contemplates that the determining authority will make a determination, and then notify the claimant of the terms of, and reasons for, the determination. A claimant may, thereafter, request a determining authority to reconsider a determination made by it. Where such a request is made s 62 of the SRC Act provides, so far as is material,“(4)On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.(5)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.” A claimant dissatisfied with a decision on reconsideration may then seek a review in the Tribunal in accordance with s 64. It provides,“(1)Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:(a)the claimant; or(b) if the decision affects the Commonwealth—the Commonwealth; or(c) if the decision affects a Commonwealth authority—the Commonwealth authority; or(d) if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.”The submissions The argument for K & S is that only the issue of liability under s 14 of the SRC Act has been considered by the primary decision-maker and on reconsideration. Mr Bell’s position is indistinguishable from that of Mr O’Donohue determined by the Full Federal Court sub nom Lees v Comcare[2]. Because questions of compensation under ss 16, 19, 24 and 27 of the SRC Act have not been determined at the first tier decision-making stage there has been no reconsideration under s 62 of the SRC Act and thus no reviewable decision touching on those questions to found an application to the Tribunal under s 64 of the SRC Act.[2] Ibid.

Ratio Decidendi

Legal Principle Established

Finally, it is said, that to require Mr Bell to split his s 14 case from the s 16 and s 19 case will put him to the expense of duplicated costs of obtaining medico legal reports and medical witnesses for two separate hearings, it will put him to two sets of legal costs and will hold him out of his entitlement to compensation until the second hearing. Consideration Whilst claims under s 24 of the SRC Act for permanent impairment and s 27 of the SRC Act for non-economic loss are referred to in the solicitors’ letter of 2 August 2011 I did not understand Mr Anforth to contend that those claims were being pursued in these proceedings. The written submissions make no reference to such claims; they are confined to the claims under ss 16 and 19 of the SRC Act. There was, in any event, nothing in any of the material provided by Mr Bell to K & S that even remotely hinted at the possibility of claims under ss 24 or 27 of the SRC Act. I am not satisfied that Mr Bell has made a claim for compensation under either of s 24 or s 27 such that it could be said that K & S ought to have considered, but did not consider, those claims. It may assist to start by examining what was decided in Lees v Comcare. The case concerned two claimants – Ms Lees and Mr O’Donohue. In the case of Ms Lees, Comcare had made a decision accepting liability pursuant to s 14 of the SRC Act to pay Ms Lees compensation in accordance with the Act. Subsequently Ms Lees made a claim for compensation by way of payment of the costs of taxi fares to medical appointments with treating practitioners. That claim was rejected by the primary decision-maker and on reconsideration. After proceedings had been commenced in the Tribunal for a review of that decision Ms Lees asserted an entitlement to make a claim in those proceedings for compensation for permanent impairment under s 24 of the SRC Act. The Tribunal held that it did have jurisdiction to decide the claim for permanent impairment. Mr O’Donohue made a claim for compensation for a condition described as major depression. It was rejected on the basis that the condition resulted from reasonable disciplinary action taken by his employer with the result that he had not suffered an injury, that term being defined in s 4(1) of the Act in a way that excluded a condition occasioned by the taking of reasonable disciplinary action. The decision was affirmed on reconsideration and Mr O’Donohue commenced proceedings in the Tribunal. In the course of the normal pre-hearing processes of the Tribunal Mr O’Donohue indicated that he proposed to raise the issue of his entitlement to compensation for permanent impairment. Again, the Tribunal held that there was jurisdiction to hear that claim. The Full Court held that in each case the Tribunal lacked jurisdiction. In the case of Ms Lees their Honours said[5]:“50The only issues under s 24 of the Act which required determination in Ms Lees' case were the issues of whether she had a permanent impairment and, if she did, the amount of compensation payable under the section in respect of that impairment. Neither of these issues had been determined at the first tier decision-making stage. Necessarily in the circumstances, there had been no reconsideration under s 62 of the Act of a determination on these issues. Consequently there was no reviewable decision touching on these issues to found an application to the AAT under s 64 of the Act. The reviewable decision which founded Ms Lees' application to the AAT was the determination of the Independent Review Officer concerning Ms Lees' entitlement under s 16 of the Act for compensation in respect of taxi fares incurred, or to be incurred, for the purpose of obtaining medical treatment. It was that determination, and that determination only, that s 64 of the Act authorised the AAT to review. The powers of the AAT under s 43 of the AAT Act were powers which it was authorised to exercise for the purpose of reviewing only that determination.” Mr O’Donohue’s claim was dealt with in this way:“54The only application which s 64 of the Act entitled Mr O'Donohue to make to the AAT was an application for review of the reviewable decision made by the Independent Review Officer. The terms of that decision are revealed by the notice in writing served on Mr O'Donohue. No suggestion has been made that the notice in writing misrepresents the actual determination made by the Independent Review Officer. 55 For the AAT to reach a decision as to Mr O'Donohue's entitlement, if any, to receive compensation under s 24 of the Act in respect of a permanent impairment it would have to become involved in a process extending beyond review of the reviewable decision made under s 62 of the Act. It would require the AAT to consider issues not determined at either the first or the second tier of the decision-making process established by the Act. 56 In view of the structured decision-making process established by the Act, and the plain language of s 64 of the Act, the powers of the AAT under s 64 do not, in our view, on an application to review a decision under s 14 of the Act, extend to allowing it to reach a decision as to Mr O'Donohue's entitlement, if any, to receive compensation under s 24 of the Act. In this regard it is immaterial in our view, whether the reviewable decision was one which determined that Comcare was liable to pay compensation in respect of an injury or one which determined that Comcare had no such liability.” [5] Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84.

GENERAL ADMINISTRATIVE DIVISION		) 2011/4431
Re		ANDREW BELL