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

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).
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.
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…

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.

Continue reading Benson and Comcare (Compensation)

Details

AGLC: Benson and Comcare (Compensation) [2019] AATA 5304
Case: [2019] AATA 5304
Decision Date: 19 November 2019

CaseChat Overview and Summary

This matter concerned an application by Ms Benson to the Administrative Appeals Tribunal (AAT) for review of decisions made by Comcare. The dispute centred on whether the AAT had jurisdiction to review either Comcare's 2014 determination regarding Ms Benson's psychological condition or a subsequent 2019 decision by Comcare to refuse an extension of time for Ms Benson to request reconsideration of that 2014 determination. The Tribunal, constituted by W Frost M, was required to determine which, if either, of these decisions was a "reviewable decision" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act).

The legal issues before the Tribunal were whether Comcare's refusal to grant an extension of time to request reconsideration of a determination constituted a reviewable decision, and consequently, whether the Tribunal possessed jurisdiction to review such a refusal. Relatedly, the Tribunal had to determine if Comcare's original 2014 determination itself was a reviewable decision. The Tribunal considered the legislative framework for review under the SRC Act, specifically sections 60, 61, 62, and 64, and relevant case law, including *Beecher and Telstra Corporation Limited* and *Novosel v Comcare*.

The Tribunal reasoned that under section 64(1) of the SRC Act, the AAT has jurisdiction to review a "reviewable decision." It clarified that a reviewable decision, as defined by the Act and confirmed by precedent, includes a decision by a determining authority to allow or refuse a person a further period to request reconsideration of a determination under section 62(3)(b). In this instance, Ms Benson had failed to request reconsideration of the 2014 determination within the prescribed timeframe. Comcare subsequently refused her request for an extension of time in April 2019. The Tribunal found that this refusal to grant an extension of time was itself a reviewable decision. Conversely, the Tribunal determined that the original 2014 determination was not a reviewable decision capable of direct review by the AAT.

The Tribunal ordered that it had jurisdiction in relation to the reviewable decision of Comcare dated 29 April 2019, which was the refusal to grant an extension of time. However, the Tribunal held that it did not have jurisdiction in relation to the determination of Comcare dated 10 November 2014. The matter was to proceed to hearing concerning the reviewable decision.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. During 2013 and 2014, Ms Benson had counselling for her psychological condition.[6][6] T4; T12 to T16; and T18 to T23.1. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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 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). 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, 11th Edition, 2018, at [62.03], page 499. 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.