Benson and Comcare (Compensation)

[2019] AATA 5304

Benson and Comcare (Compensation) [2019] AATA 5304 (19 November 2019)

Division:GENERAL DIVISION

File Number(s):     2019/2554          

Re:Andra Benson

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member W Frost

Date of decision:   19 November 2019

Date of

written reasons:   12 December 2019

Place:Canberra

The Tribunal has jurisdiction in relation to the reviewable decision of Comcare dated 29 April 2019 pursuant to section 64(1) of the Safety, Rehabilitation and Compensation Act1988. The Tribunal does not have jurisdiction in relation to the determination of Comcare dated 10 November 2014.

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Member W Frost

Catchwords

PRACTICE AND PROCEDURE – jurisdiction – whether a refusal by Comcare to grant an extension of time is a reviewable decision – whether a determination made by Comcare is a reviewable decision – reviewable decision found to be refusal to grant an extension of time – the Tribunal has jurisdiction in relation to the reviewable decision

Legislation

Administrative Appeals Tribunal Act 1975

Safety, Rehabilitation and Compensation Act 1988

Cases

Commonwealth of Australia v Snell [2019] FCAFC 57

Novosel v Comcare [2017] FCA 722

Secondary Materials

Peter H. Sutherland and John Oman Ballard with Allan Anforth, Annotated Safety, Rehabilitation and Compensation Act 1988 (The Federation Press, 11^th ed, 2011)

REASONS FOR DECISION

Member W Frost

12 December 2019

INTRODUCTION

1. In April 2019, the Applicant, Ms Andra Benson, applied to the Respondent, Comcare, for review of a determination Comcare made more than four years earlier in November 2014, accepting liability for Ms Benson’s ‘secondary condition of depressive symptoms’ for a closed period from 24 October 2013 to 8 August 2014 (Determination). Comcare declined to grant Ms Benson an extension of time to request reconsideration of the Determination (Reviewable Decision).  

2. In May 2019, Ms Benson made an Application for Review of Decision to the Administrative Appeals Tribunal (2019 Proceeding). In September 2019, the Tribunal directed the parties to provide written submissions regarding their disagreement about whether the Tribunal had jurisdiction in relation to the Determination or the Reviewable Decision. There was also uncertainty about whether the Tribunal would consider the extension of time issue that is the subject of the Reviewable Decision at an interlocutory hearing, rather than at a substantive hearing of the proceeding. The preferable approach would have been for both the jurisdiction question and the substantive question in the proceeding, regarding an extension of time, to be dealt with at a substantive hearing. Unfortunately, the proceeding has been delayed because of the uncertainty about the extent of the Tribunal’s jurisdiction and the correct approach to resolving that issue.  

3. The Tribunal considered the parties’ submissions and on 19 November 2019 made an interlocutory decision. The Tribunal decided that it had jurisdiction to consider Comcare’s Reviewable Decision refusing to grant Ms Benson an extension of time to request reconsideration of the Determination. Ms Benson’s solicitors subsequently sought written reasons for the Tribunal’s interlocutory decision and confirmation from the Tribunal about whether the Determination is before the Tribunal for review. The Reviewable Decision, not the Determination, is the decision reviewable by the Tribunal pursuant to subsection 64(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The Reviewable Decision declined Ms Benson’s requested extension of time to request reconsideration by Comcare of the 2014 Determination. The question of whether an extension of time should be granted to Ms Benson to request reconsideration by Comcare of the Determination is before the Tribunal for review at a future substantive hearing in this 2019 Proceeding. The Tribunal’s reasons follow.

   ISSUE

4. The issue before the Tribunal is whether the Tribunal has jurisdiction to review the Determination made by Comcare in 2014 or the Reviewable Decision made by Comcare in 2019. Related to that issue is whether the extension of time refused in the Reviewable Decision is properly the subject of an interlocutory hearing or a future substantive hearing of the Tribunal. In summary, the Tribunal is satisfied that it has jurisdiction in relation to the Reviewable Decision, which should progress to hearing.

   BACKGROUND

5. In August 2012, Ms Benson submitted to Comcare a Claim for Workers’ Compensation for an injury she described, following diagnosis by her treating physician, as ‘low grade chronic neck pain’ that had its onset from June 2012. The parts of Ms Benson’s body affected by this injury were stated to be her ‘shoulders + neck, arms, hands’ caused by the ‘workstations’ at her place of employment at the Murray Darling Basin Authority (MDBA), together with her having an ‘increased workload and returned full time after a long illness’.[1]

   [1] Document numbered ‘T6.1’ in the bundle of documents lodged on 5 June 2019 in the 2019 Proceeding (application 2019/2554), pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Unless otherwise indicated, references to ‘T’ documents in means those documents lodged in the 2019 Proceeding.

6. In October 2012, Comcare accepted liability under section 14 of the SRC Act for ‘aggravation of degeneration of cervical intervertebral disc (bilateral)’ and ‘sprain of shoulder & upper arm (bilateral)’.[2] This accepted claim is the subject of a separate but linked proceeding in the Tribunal, which concerns Comcare’s reviewable decision dated 23 October 2018 affirming its determination declining present liability to compensate Ms Benson for medical expenses, incapacity payments and household and attendant care services under sections 16, 19 and 29 of the SRC Act. In that decision, Comcare found that Ms Benson’s ‘ongoing symptoms were related to the underlying degenerative changes, not the aggravation sustained in 2012’.[3] 

   [2] T7.

   [3] Document numbered ‘T86’ in the bundle of documents lodged on 5 December 2018 in application 2018/6445, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

7. In relation to the matters before the Tribunal in the proceeding the subject of this decision, in November 2012, Comcare accepted liability under section 16 of the SRC Act for Ms Benson to consult a psychologist in relation to a proposed treatment plan for her claimed ‘depression from chronic pain’.[4]

   [4] T8.

8. In December 2012, Comcare accepted liability under section 16 of the SRC Act to pay for Ms Benson’s proposed psychological treatment plan of twelve counselling sessions up until March 2013.[5]

   [5] T10 and T11.

9. During 2013 and 2014, Ms Benson had counselling for her psychological condition.[6]

   [6] T4; T12 to T16; and T18 to T23.1.  

10. On 18 August 2014, Dr Susan Douglas, General Practitioner, provided a medical certificate (addressed to Ms Benson, but also sent to Comcare[7]) stating that:[8]

    This letter is to confirm that Andra’s symptoms of depression have resolved, and that from a mental health perspective she has been functioning at her pre-injury level since her last appointment as of August 8 2014. 

    [7] T23.

    [8] T23.1, page 109.

11. On 22 August 2014, following an assessment of Ms Benson, Dr Catherine Oelrichs, Consultant Psychiatrist, reported to Ms Benson’s employer, MDBA that:[9]

    In summary, on current presentation Ms Benson is presenting with no clinical symptoms or signs of a psychiatric condition, from her reports and from covering documentation it appears that she has suffered from what could best be described as an adjustment disorder with depressed and anxious mood. This has become apparent in October 2013 and appears to have resolved over the last nine months.

    …

    Ms Benson is not presenting as suffering from a psychiatric condition.

    …

    Currently Ms Benson is fit to perform her pre-injury employment in regards to her psychological condition.

    [9] T24.

12. On 10 November 2014, Comcare made a Determination in relation to Ms Benson’s claim for inclusion of a secondary condition of ‘depressive symptoms’ and said it was satisfied Ms Benson ‘suffered from an injury/disease that was significantly contributed to by your employment’ with MDBA and therefore, pursuant to section 14 of the SRC Act:[10]

    accepted liability for a closed period of 24 October 2013 to 8 August 2014 for a secondary condition of Major Depressive Disorder, recurrent episode Aggravation. [emphasis in original]

    [10] T26.

13. In November 2018, the separate proceeding in the Tribunal was commenced by Ms Benson seeking review of Comcare’s decision declining present liability to compensate her for medical expenses, incapacity payments and household and attendant care services (2018 Proceeding). In the course of detailing Comcare’s position, the reviewable decision at issue in the 2018 Proceeding noted that Ms Benson’s accepted claim for ‘aggravation of major depressive disorder, recurrent episode’ for a closed period was the subject of the Determination made in 2014. This accepted claim was not included in Ms Benson’s request for reconsideration of the matters that are now the subject of the 2018 Proceeding.

14. In March 2019, following a direction made by the Tribunal in the 2018 Proceeding, the solicitors for Ms Benson confirmed that she was ‘claiming ongoing major depressive disorder’ in the 2018 Proceeding. As a result, the solicitors for Comcare informed the Tribunal that Comcare did not consider that such a claim was before the Tribunal in the 2018 Proceeding and that the Tribunal therefore did not have jurisdiction to consider a claim for that injury. The solicitors for Comcare further stated that they had suggested to Ms Benson’s solicitors ‘options available to the applicant’ in relation to her claim for her psychological condition.    

15. On 18 April 2019, the solicitors for Ms Benson requested that Comcare reconsider the Determination regarding her psychological condition. In its letter, Ms Benson’s solicitors stated that:[11]

    the determination is wrong in fact and wrong in law as it fails to consider the continuing need for treatment and medications as a result of the secondary condition.

    The claimant now wishes to formally request a reconsideration of this determination.

    The claimant notes that this is outside the timeframe however seeks an extension of time…

    [11] T27.

16. On 29 April 2019, Comcare declined to grant Ms Benson an extension of time to request reconsideration of the Determination because: the application was made outside the thirty day timeframe prescribed by the SRC Act; the reasons for the delay were not considered sufficient; and, even if they were, Ms Benson’s prospects of success were considered limited.[12] This decision of Comcare is the Reviewable Decision now before the Tribunal in this 2019 Proceeding.

    [12] T28.

17. On 10 May 2019, Ms Benson commenced the 2019 Proceeding by applying for review by the Tribunal of Comcare’s Reviewable Decision refusing an extension of time for her to request reconsideration of the Determination made in 2014.[13] The 2019 Proceeding was linked by the Tribunal with Ms Benson’s 2018 Proceeding regarding compensation for medical expenses, incapacity payments and household and attendant care services.

    [13] T1.

18. In September 2019, the Tribunal directed the parties to provide written submissions regarding their disagreement about whether the Determination or the Reviewable Decision in relation to Ms Benson’s psychological condition was before the Tribunal in the 2019 Proceeding and also on the question of whether an extension of time should be granted by the Tribunal for Ms Benson to request reconsideration of the Determination. Following careful consideration of those submissions received in November 2019, the Tribunal decided that it had jurisdiction in relation to the Reviewable Decision from April 2019, not the Determination from 2014, and made an order in the following terms:

    The Tribunal is satisfied that it has jurisdiction to consider the Application for Review of a Decision lodged on 10 May 2019 in respect of the Respondent’s decision of 29 April 2019 not to grant the Applicant an extension of time to request reconsideration of the determination dated 10 November 2014, in circumstances where the request was made outside of the statutory timeframe.    

19. On 26 November 2019, the solicitors for Ms Benson requested written reasons for the Tribunal’s decision because it was unclear ‘whether the Determination is before the Tribunal as part of this appeal’.

    CONTENTIONS

20. In her solicitors’ written submissions, Ms Benson contended that ‘the matter before the Tribunal is the determination itself and not simply the refusal to continue to reconsider the determination, or the extension of time issue’.[14]

    [14] Applicant’s submissions filed 13 November 2019.

21. Ms Benson submitted that the Tribunal has jurisdiction to consider the Determination ‘as a result and effect of the refusal to reconsider the determination. This results from the interaction and application of s60 of the SRC Act and the Administrative Appeals Tribunal Act 1975 (AAT Act), as this defines “decision” to include a refusal to reconsider a determination[15]’.[16] As a result, Ms Benson argued, the Tribunal has jurisdiction to review the Determination as a result of the refusal by Comcare to reconsider that Determination.

    [15] Administrative Appeals Tribunal Act1975, section 3(3)(b).

    [16] Applicant’s submissions filed 13 November 2019.

22. Ms Benson also argued that the Tribunal ‘does not require an extension of time as the application to review the refusal decision was filed with the Tribunal itself within the prescribed time limit under the AAT Act as modified by the SRC Act’.[17] Ms Benson argued that there is no extension of time required to allow the matter to proceed in the usual course for review under the AAT Act.

    [17] ibid.

23. Ms Benson also provided submissions in support of her contention that she be granted an extension of time to request reconsideration of the Determination ‘should the Tribunal not accept that the reviewable decision is capable of review in absence of an extension of time’.[18]

    [18] ibid.

24. Comcare provided submissions in relation to whether Ms Benson should be granted an extension of time by the Tribunal to request reconsideration of the Determination. It did not address the question of whether the Determination or the Reviewable Decision was before the Tribunal in the 2019 Proceeding. The Tribunal considers Comcare’s position to be that the Reviewable Decision is the relevant decision over which the Tribunal has jurisdiction and it therefore made submissions solely on the extension of time question.

25. As previously noted, the parties may have been uncertain as to whether the extension of time question the subject of the Reviewable Decision would be addressed by the Tribunal at an interlocutory hearing rather than in the normal course at a substantive hearing in the proceeding. For the reasons that follow, the question of whether Ms Benson should be granted an extension of time to request reconsideration of the Determination is the substantive issue in the 2019 Proceeding and a future hearing will need to be held to resolve that matter.

    LEGISLATION

    Decision

26. Part VI of the SRC Act provides the legislative framework regarding reconsideration and review of determinations made by a ‘determining authority’, being the person who made the determination. In this proceeding, that ‘person’ is Comcare.

27. Subsection 60(1) of the SRC Act states that the term ‘decision’ has the same meaning as in the AAT Act. Subsection 3(3) of the AAT Act relevantly provides that a reference to a ‘decision’ includes a reference to:

    (a)  making, suspending, revoking or refusing to make an order or determination;

    (b)  giving, suspending, revoking or refusing to give a certificate, direction, approval,     consent or permission…

    Determination and notice about requesting reconsideration

28. Subsection 61(1) of the SRC Act provides that as soon as practicable after a determining authority makes a determination, ‘it shall cause to be served on the claimant a notice in writing’ setting out the terms of, and reasons for, the determination and a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2) of the SRC Act.

    Reconsideration of determination

29. The relevant requirements for reconsideration of a determination under section 62 of the SRC Act are that:

    (2)  A request to a determining authority to reconsider a determination made by it may be made by:

    (a)  the claimant…

    …

    (3)  A request for reconsideration of a determination shall:

    …

    (b)  be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

    Applications to the Administrative Appeals Tribunal

30. Subsection 25(1)(a) of the AAT Act states that an enactment may provide for applications to be made to the Tribunal ‘for review of decisions made in the exercise of powers conferred by that enactment’.

31. Subsection 64(1) of the SRC Act provides that application to the Tribunal for review of a ‘reviewable decision’ may be made by, amongst others, a ‘claimant’.

32. Section 60 of the SRC Act relevantly states that ‘reviewable decision’ means a decision made under section 62 of the SRC Act, being the provision set out above relating to reconsideration of determinations by a determining authority in Part VI of that Act. Accordingly, the SRC Act provides that an application can be made to the Tribunal in relation to a reviewable decision; it does not provide for applications to the Tribunal in relation to a determination of a determining authority. In this proceeding, the Reviewable Decision is that made by Comcare on 29 April 2019 denying Ms Benson an extension of time to request reconsideration of Comcare’s 2014 Determination.

33. For completeness, the Tribunal notes that the list of legislative provisions in the SRC Act which provide the AAT jurisdiction to review a decision are: sections 34R, 64(1) and 67(7).[19] As noted above, section 64(1) is the relevant provision in this proceeding and provides that applications for review can be made to the Tribunal in relation to a ‘reviewable decision’. In addition to the relevant provisions in Part VI of the SRC Act itself, the Tribunal’s website confirms that a reviewable decision is one made by a determining authority ‘to allow, or refuse to allow, a person a further period within which to request reconsideration of a determination under s 62(3)(b)’ of the SRC Act.[20] The reviewable decision before the Tribunal is Comcare’s refusal to allow Ms Benson an extension of time to request reconsideration of the Determination. An application to the Tribunal was legislatively permitted in relation to the Reviewable Decision and that decision is now before the Tribunal for review.

    [19] accessed 6 December 2019.

    [20] ibid.

    CONSIDERATION

34. Under subsection 62(3) of the SRC Act, Ms Benson had thirty days to request reconsideration of the 2014 Determination after the day on which it first came to her attention. Ms Benson did not request such reconsideration in the legislated timeframe. In April 2019, more than four years after the Determination, Ms Benson sought an extension of time to request reconsideration of that Determination. This was because her psychological condition the subject of the Determination was not part of a separate reviewable decision by Comcare, or the subsequent Tribunal proceeding Ms Benson commenced against Comcare in relation to medical expenses, incapacity payments and household and attendant care services for her accepted physical injuries (the 2018 Proceeding).

1. In Beecher and Telstra Corporation Limited [1994] AATA 6 at [1], the Tribunal confirmed that a decision by a determining authority to refuse to extend time for lodgement of a request for reconsideration is reviewable by the Tribunal ‘because it is one made under s62 and thus falls squarely within the terms of the definition of “reviewable decision” in s60’.[21] The reviewable decision before the Tribunal was Comcare’s refusal to grant an extension of time to Ms Benson to request reconsideration of the Determination. The Determination is not a reviewable decision capable of review by the Tribunal.  

   [21] See also Sutherland, P., and Ballard, J.O, with Anforth, A., Annotated Safety, Rehabilitation and Compensation Act 1988, The Federation Press, 11^th Edition, 2018, at [62.03], page 499. 

2. In this regard, the Federal Court of Australia in Novosel v Comcare [2017] FCA 722 (Novosel) stated at [17] that the SRC Act:[22]

   creates three tiers of decision-making for s 14 liability and with respect to the award of compensation.  

   (1)First, Comcare (relevantly) as the determining authority makes an initial decision under s 61. 

   (2)Secondly, Comcare may reconsider the s 61 determination of its own motion under s 62(1) or pursuant to a request under s 62(2) by a claimant to reconsider the s 61 determination. The reconsideration must be undertaken by a person who is independent of the initial determination under s 61 (s 62(4)). Under s 62(5), the decision-maker on the reconsideration has power to make a decision affirming, revoking or varying the initial determination. The decision under s 62 must be notified in writing with reasons (s 63). 

   (3)Thirdly, under s 64 of the SRC Act an application may be made, relevantly, by the claimant to the Tribunal for review of the determining authority’s decision under s 62, that decision being a “reviewable decision” as defined in s 60(1). In this regard, the Full Court held in Lee at [39] that “the AAT is authorised by s 64 of the Act to review only reviewable decisions — that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act.”

   [22] ibid, pages 11 and 12.

3. In addition, the Court said at [90] that the Tribunal is limited in its jurisdiction:

   the Tribunal is vested by s 43(1) with the powers and discretions of the decision-maker whose decision is the subject of the application for review. On the other hand, as the Full Court held in Lees at [39],[23] “[t]he AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage” (emphasis added). Furthermore, those powers may be exercised under s 43(1) only “[f]or the purpose of reviewing” the reviewable decision. Thus as the Full Court also held in Lee at [37], the powers vested in the Tribunal by s 43 of the AAT Act are not powers exerciseable at large. In short, therefore, the Tribunal was required to make the correct and preferable decision at the time that it made its decision (Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286), standing in the shoes of the decision-maker from whom the application for review is brought.

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

4. In addition, the Federal Court in Commonwealth of Australia v Snell [2019] FCAFC 57 at [69] said, in relation to the Seafarers Rehabilitation and Compensation Act 1992, that:

   When a claimant seeks review of a decision to the Tribunal under s 88 of the Seafarers Act, the review is of a “reviewable decision”, being a decision under s 78 which has reconsidered an initial decision. The employer’s initial decision made in response to a claim by an employee is not reviewable by the Tribunal. A necessary first step before the Tribunal might undertake a review is that the initial decision is reviewed by the employer under s 78. It is the latter decision which is the “reviewable decision”. When the Tribunal reviews that decision it exercises the power in s 78. Whether the decision under review was a reconsideration by the employer on its own initiative (s 78(1)) or on the request of the employee (s 78(2)) does not matter: the Tribunal stands in the stead of the employer and is invested with power to reconsider any prior decision which it had made in relation to the employee.

5. Applying these principles, the reviewable decision before the Tribunal plainly was not Comcare’s Determination from 2014; it was Comcare’s 2019 decision to refuse to grant an extension of time for Ms Benson to request reconsideration by Comcare of the Determination. The Tribunal is accordingly bound by the terms of the SRC Act to review Comcare’s decision refusing an extension of time to request reconsideration of the Determination. The Reviewable Decision can proceed to a substantive hearing as soon as practicable.

6. The argument from the solicitors for Ms Benson that the matter before the Tribunal is the Determination, not Comcare’s subsequent Reviewable Decision refusing to extend the time in which to request reconsideration of the Determination, cannot succeed. Because of the delay between the Determination and the next substantive step in the matter, the Reviewable Decision necessarily concerned the extension of time question. That question is now before the Tribunal, having been appealed by Ms Benson.

7. Contrary to the solicitors for Ms Benson’s submissions, neither section 60 of the SRC Act nor subsection 3(3)(b) of the AAT Act defines ‘decision’ to ‘include a refusal to reconsider a determination’.[24] Subsection 3(3)(a) of the AAT Act says that a decision includes ‘refusing to make…determination’ [emphasis added], not refusing to reconsider a determination, and subsection 3(3)(b) does not refer at all to a determination. Relevantly, the SRC Act only provides the Tribunal with jurisdiction in relation to a ‘reviewable decision’ of a determining authority. Comcare, as the determining authority, did not refuse to make a determination or to reconsider the determination; because Ms Benson was out of time to request reconsideration of the Determination under the SRC Act, Comcare correctly considered whether to grant Ms Benson an extension of time to request reconsideration. It subsequently refused such an extension. That is the Reviewable Decision.

   [24] Applicant’s submissions filed 13 November 2019.

8. The argument that ‘the Tribunal does not require an extension of time as the application to review the refusal decision was filed with the Tribunal itself within the prescribed time limit under the AAT Act’[25] misunderstands the question before the Tribunal. The question before the Tribunal is not whether Ms Benson should be granted an extension of time to make her application to the Tribunal; that application was made within the statutorily prescribed timeframe. The question before the Tribunal is whether Ms Benson should be granted an extension of time to request reconsideration by Comcare of its 2014 Determination. Accordingly, for Ms Benson’s matter regarding her psychological condition to progress any further, the Tribunal must be satisfied in all the circumstances that she should be granted an extension of time to request reconsideration of the Determination. For the Tribunal to consider that question, no extension of time is required to be granted to Ms Benson to make her application to the Tribunal and the matter should proceed to hearing as soon as practicable, subject to the Tribunal’s below comments.

   [25] ibid.

   CONCLUSION

9. The central issue in the 2019 Proceeding is whether an extension of time should be granted to Ms Benson to request reconsideration of the Determination. The central issue in the 2018 Proceeding is whether Ms Benson is entitled to compensation under the SRC Act for medical expenses, incapacity payments and household and attendant care services. As the Tribunal has noted, the 2018 Proceeding and the 2019 Proceeding are linked together for the purposes of progression in the Tribunal. Because of the distinct nature of the respective substantive issues in the proceedings, the parties should consider whether they are best reviewed at a hearing of the Tribunal at the same time or separately.

10. A hearing in the 2019 Proceeding could be held by the Tribunal in a relatively short timeframe after any necessary interlocutory steps are completed by the parties. If the Tribunal grants an extension of time to Ms Benson, Comcare would be required to reconsider the Determination and make a reviewable decision in relation to her psychological condition. If Comcare subsequently affirmed the Determination, thus denying liability beyond the closed period ending in 2014, Ms Benson may apply to the Tribunal for review of that reviewable decision. However, if the Tribunal refuses to exercise its discretion to grant Ms Benson the requisite extension of time, the 2019 Proceeding would be finalised. Conversely, the 2018 Proceeding is progressing to hearing on the substantive issues regarding Ms Benson’s accepted physical injuries and, depending upon the availability of the parties and any witnesses, it may be some time before the matter is listed for hearing. 

11. If the proceedings were heard together by the Tribunal it would be a more efficient use of resources and resolve the issues in both proceedings at the same time, which in relation to the 2019 Proceeding may potentially see the substantive issues regarding Ms Benson’s psychological condition return to the Tribunal at a later time, following reconsideration by Comcare and application to the Tribunal. However, if the proceedings were separated, it would likely add to the parties and the Tribunal’s costs, but would allow for the expeditious resolution of the 2019 Proceeding regarding an extension of time and not have either proceeding delayed by the other. For example, if the proceedings are heard together, delay could arise in the 2018 Proceeding due to the 2019 Proceeding returning to Comcare for reconsideration and then application to the Tribunal before any hearing of both proceedings or if there was lengthy delay in the 2018 Proceeding due to witness and Counsel availability that would delay review by the Tribunal of the 2019 Proceeding. All of these issues are for the parties to consider in seeking to resolve both the 2018 Proceeding and the 2019 Proceeding in a fair, just and expeditious manner.

    DECISION

12. The Tribunal has jurisdiction in relation to the reviewable decision of Comcare dated 29 April 2019 pursuant to section 64(1) of the Safety, Rehabilitation and Compensation Act1988. The Tribunal does not have jurisdiction in relation to the determination of Comcare dated 10 November 2014.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate

Dated: 12 December 2019

Date final submissions received:	13 November 2019
Solicitors for Applicant:	Mr Dean Prail, Prail Lawyers
Solicitors for Respondent:	Mr Scott Moloney, Moray & Agnew Lawyers