Blade and Comcare
[2003] AATA 272
•3 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 272
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/762
GENERAL DIVISION )
Re
William Blade
Applicant
And
Comcare
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Date3 March 2003
PlaceSydney
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2002/762
GENERAL ADMINISTRATIVE DIVISION ) Re
William Blade
Applicant
And
Comcare
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member Date 3 March 2003
PlaceSydney
Decision For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 affirms the decision under review.
..............................................
Ms SM Bullock
Senior Member
CATCHWORDS
WORKERS COMPENSATION – Permanent Impairment - Non-Economic Loss - Jurisdiction
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 24, 27, 60, 72
AUTHORITIES
Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR
139
Comcare v Bozicevic (1997) 74 FCR 260
Telstra Corporation Limited v Treloar (2000) 102 FCR 595
Lees v Comcare (1999) 56 ALD 84
Re Edebone and Comcare [2000] AATA 937
Qantas Airways Ltd v Gubbins and Others (1992) 28 ALD 538
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
REASONS FOR DECISION
Ms S M Bullock, Senior Member
1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of Senior Member SM Bullock.
Signed:
....................................................................................……………………………….Associate
Dates of Hearing 17 February 2003; 3 March 2003
Date of Decision 3 March 2003
Solicitor for Applicant Mr C Hart, Bale, Boshev & Associates
Counsel for Applicant Mr L Grey
Solicitor for Respondent Mr T Ainsworth, Phillips Fox Solicitors
Counsel for Respondent Mr G Elliott
DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2002/762
By MS S.M. BULLOCK, Senior Member
BLADE AND COMCARE
SYDNEY, WEDNESDAY, 3 MARCH 2003In this matter the Applicant, Mr Blade, made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) in relation to a review of a decision made on 15 May 2002 by a Reconsideration Officer of the Respondent, Comcare, stating that the decision of that Reconsideration Officer was contrary to medical evidence and contrary to law.
The reconsideration decision was that the determination of 13 January 2002 was correct in deciding that Mr Blade was not entitled to compensation for permanent impairment under section 24 of the Safety, Rehabilitation and Compensation Act 1988, which I will refer to as “the Act”. At the commencement of the hearing of this matter in Newcastle on 17 February 2002 and subsequently in written submissions, the Applicant's Counsel, Mr Leo Grey, informed the Tribunal that the Applicant does not propose to proceed with the application for review, in so far as it relates to the increase
in whole person impairment for hearing loss between 1992 and the present.The Tribunal considers that this is a proper course and finds that the Reviewable Decision dated 15 May 2002 should be affirmed in relation to that issue of permanent impairment. The Applicant in his Statement of Facts and Contentions, dated 12 July 2002, contended that the Applicant is entitled to an assessment of non-economic loss under section 27 of the Act. The Applicant had not made a claim for non-economic loss entitlement.
The background to this matter is that in 1992 the Applicant received a lump sum for compensation in the amount of $4,724.05 (T7, p10) with there being no dispute as to this decision and also no dispute that this was in respect of what could be called the section 24 [of the Act] entitlement. Mr Blade did not seek a reconsideration of the 1992 determination. On 20 November 2001 Mr Blade wrote to Comcare attaching a copy of a report following a hearing test undertaken by Dr Cronin on 2 November 2001 (T9). That report noted that Mr Blade had an age-corrected binaural hearing loss of 23.9 per cent (T8, p11).
Mr Blade noted that the hearing loss had increased a further ten per cent and he wished to inquire if there was a compensation payment available in respect of his future hearing loss. There was no mention of compensation for non-economic loss in the determination of 1992 claim or indeed in the reconsideration, or the original first tier decision. As I have noted the determination, dated 13 January 2002, by a Delegate found that there was no liability for further permanent impairment for hearing loss (T10) and this was affirmed by the Reconsideration Officer, which is found at T17.
There was no claim by Mr Blade for non-economic loss compensation, nor was there any determination or reconsideration in respect of section 27 [of the Act] entitlements. Mr Blade first provided a non-economic loss questionnaire on 5 December 2002. The Applicant in the later submissions referred to subsection 27(3) of the Act which states that:
“(3)This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.”
Thus subsection 27(3) of the Act denies entitlement to a payment under section 27 of the Act when no application for non-economic loss has been made before the date of the introduction of the Bill [Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2000] which was 7 December 2000. The effect of the amendment was to remove an entitlement for benefits under section 27 of the Act arising out of injuries occurring before 1 December 1988 unless an application for non-economic loss for that compensation was made before 7 December 2000.
The Applicant has contended in the written submissions that the Respondent found primary liability for hearing loss under section 14 of the Act in 1992 and there has been no attempt since to terminate or revoke that determination. The Respondent's 1992 determination assessed a permanent impairment payment under section 24 of the Act in 1992 applying the machinery set out in Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”). It was also noted by Mr Grey in his written submission that no issue was taken with the manner in which the calculation was carried out.
This determination pre-dated Federal Court decisions in Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139 and a further case Comcare v Bozicevic (1997) 74 FCR 260, and furthermore Telstra Corporation Limited v Treloar (2000) 102 FCR 595. By 2002 the Applicant had sought further benefits and at that time the three Federal Court decisions referred to by the Applicant were all on the public record.
The primary delegate found that the applicant was not entitled to any further compensation in respect of the 1992 impairment and the review delegate affirmed the determination. The submission of the Applicant is that unless subsection 27(3) of the Act applied that conclusion was not correct in the light of the Federal Court authorities. In Mr Blade's case he made an application for compensation in 1992. It is submitted that there is no requirement that an Applicant should spell out specific heads of compensation in the application, nor is there any provision in the relevant form for doing so.
It was further submitted that it was quite plain that the Applicant sought compensation for hearing loss. The delegate correctly assessed the relevant compensation as relating to permanent impairment, but failed to determine the entirety of the Applicant's proper entitlements. In asserting a current entitlement to compensation under section 27 of the Act it is asserted by the Applicant that he is not making a fresh claim, but simply seeking a proper consideration of the 1992 claim. And on that basis it is contended by the Applicant that subsection 27(3) of the Act does not disentitle Mr Blade.
It is clear that Mr Blade did not seek any reconsideration of the 1992 determination. It is submitted that the Applicant could not reasonably be expected to know in 1992 that he had been denied a payment properly due to him, especially as the determination made absolutely no mention of compensation under section 27 of the Act. The failure of the delegate in 1992 to determine non-economic loss under section 27 of the Act is understandable, the Applicant submitted, bearing in mind that the matter of the entitlement under section 27 of the Act in relation to pre-1988 impairment had not at that time been the subject of litigation in the Federal Court.
However, when the matter came before the delegate in 2002, the Applicant submitted that there was no excuse for failing to consider the Applicant's entitlement under section 27 of the Act. It is submitted that in deciding that the Applicant was entitled to no further compensation in respect of the 1992 impairment, the primary delegate was in error and that error was perpetuated in the reviewable decision. The Applicant further submitted that if subsection 27(3) of the Act presents no obstacle to the Applicant then the only remaining objection to the matter being determined by the Tribunal must be based on the Full Federal Court decision in Lees v Comcare (1999) 56 ALD 84.
In Lees v Comcare (supra) it was noted that the issue that arose was whether the Applicant could include a permanent impairment claim in Tribunal proceedings relating to an entitlement to payments under section 16 of the Act. This is fundamentally different, the Applicant has submitted, in relation to the issue that is with the present case. In this case the issue concerns only permanent impairment and all of the determinations in 1992 and in 2002 address only that subject.
A similar distinction, it was submitted, can be made in relation to the decision in O’Donohue which was heard at the same time as the Lees v Comcare (supra) decision. That case also did not involve prior determination specifically relating to permanent impairment, but simply on overall denial of liability under section 14 of the Act. In the present case the section 14 of the Act problem does not arise. If Comcare regarded the jurisdictional issue as a significant one once the issue was raised in the Statement of Facts and Contentions, it should have, the Applicant submitted, as a model litigant have simply issued a determination relating to the Applicant's entitlement under section 27 of the Act rather than attempting to take a jurisdictional point.
In this regard the Tribunal was referred to section 72 of the Act. There is nothing in the Respondent's Statement of Facts and Contentions that asserts that the Applicant would not properly be entitled to a payment under section 27 of the Act if the procedural and jurisdictional hurdles raised by Comcare turned out to have no substance. As a responsible compensation authority and as a model litigant, the Applicant submitted that the Respondent might have been expected to address the core issue rather than play procedural games with the Applicant, especially as any section 27 of the Act compensation properly payable is unlikely to amount to the sum of any great magnitude compared to the costs of arguing the point.
The Tribunal was referred to another Tribunal case of Re Edebone and Comcare [2000] AATA 937. Looking at the decision of Lees v Comcare (supra) in the first instance, Finn J being the determining judge, it was apparently approved by the Full Court and the Applicant submits that the reviewable decision and the primary determination in 2002 purported to deal with the entirety of Mr Blade's entitlements to permanent impairment for hearing loss arising in both 1992 and 2002, and therefore raised as a practical matter the consideration of section 27 of the Act in the context of the 1992 determination.
Referring again to section 72 of the Act, the Applicant submitted that any other view would be unnecessarily over-technical and make a mockery of the prescription of that section which urges the Tribunal to be guided by equity, good conscience and take regard of the substantial merits of the case, without regard to the technicalities. In conclusion, the Applicant submitted that if the Tribunal is of the view that it does have jurisdiction, as is submitted, then the Applicant would have the Tribunal deal next with the discrete issue of subsection 27(3) of the Act. If that issue was resolved in favour of the Applicant, the next issue would be how to properly calculate the amount under section 27 of the Act and this then should be remitted.
In terms of the Respondent's submissions there are two specific reasons why the Respondent urges the Tribunal to consider that there is no jurisdiction in respect of the section 27 of the Act issue. Firstly, it is submitted that there is no claim for benefits under section 27 of the Act before 7 December 2000, the date of effect of subsection 27(3) of the Act. The claim that was made in 1992 made no express reference to claims under section 27 of the Act or for benefits for non-economic loss.
The claim in its original form was not served or accompanied by a non-economic loss questionnaire or otherwise accompanied by information to permit an assessment according to the criteria for the granting of non-economic loss benefits pursuant to section 27 of the Act. The reason for this is probably obvious, the Respondent submitted, noting that at the time the cases of Schlenert v Australian and Overseas Telecommunications Corporation (supra) which I have referred to and Comcare v Bozicevic (supra) had not been decided and the Applicant did not appreciate that he may be able to claim the benefits for non-economic loss.
It is submitted by the Respondent that the fact that the law was later interpreted by the Court to mean that an additional benefit may have been able to be claimed does not mean that the Applicant's claim in 1992 was actually seeking that benefit. Furthermore, it was submitted that even after the decision in Schlenert v Australian and Overseas Telecommunications Corporation (supra), the Applicant took no steps to reopen the 1992 decision. The Respondent submitted that it is a false ex post facto recharacterisation of the 1992 claim to suggest it involved a claim for non-economic loss benefits under section 27 of the Act that remains.
The Respondent questioned why the Applicant submitted a claim for non-economic loss benefits in December 2002 if Mr Blade truly had the view that the 1992 claim involved an application for non-economic loss. Mr Elliott noted that the Act was amended in 2001 to add subsection 27(3) of the Act. The Respondent submitted that that provision was intended to overcome and, to quote Mr Elliott, "the mischief that had been created by the cases of Schlenert [Schlenert v Australian and Overseas Telecommunications Corporation (supra)]” and others. The effect of the amendment to the Act was to remove an entitlement to section 27 of the Act benefits for permanent impairments arising from injuries occurring before 1 December 1988 unless an application for non-economic loss in relation to the impairment was made before 7 December 2000.
The Respondent submitted that such an application was lodged only on 5 December 2002 and such an application may not be considered because of subsection 27(3) of the Act. It is contended by the Respondent that to interpret the lodgment of any claim, as the Applicant has done, as an application for non-economic loss would subvert the clear intention of this amendment. Clearly by using the words, and I quote, "an application for non-economic loss," Mr Elliott submitted that the Parliament was intending that an application over and above a claim for compensation or a claim for permanent impairment was required. The Respondent submitted that the Applicant simply did not lodge an application for non-economic loss before 7 December 2000 and a claim for benefits under section 27 of the Act cannot now be entertained.
The second reason for the Respondent’s submission of there being no jurisdiction available to the Tribunal in relation to section 27 of the Act relates to the issue that, irrespective of what was intended by the 1992 claim, the 1992 determination involved no consideration of benefits under section 27 of the Act. Mr Elliott referred the Tribunal to paragraph 11 of the Applicant's later submissions and Mr Elliott contended that there appears to be some suggestion to the contrary that the reviewable decision in 2002 revisited and affirmed the 1992 decision. A fair reading of the 2002 decision points to the contrary, the Respondent submitted. The review officer merely surveyed the history including the 1992 decision, but there is absolutely nothing in the decision to suggest that she, that is the determining review officer, was reopening that decision.
The Respondent submitted that the decision of 7 April 1992 (T7) fully determined the claim that was made at the time. The jurisdiction of the Tribunal is limited to reviewing reviewable decisions. The words "reviewable decision" are defined in section 60 of the Act. There has never been, it is asserted by the Respondent, a reviewable decision of the determination of 7 April 1992 and accordingly that decision along with any claim for benefits under section 27 of the Act allegedly arising from it are not within the Tribunal's jurisdiction.
The Applicant's fresh claim in 2001 does not overcome the jurisdictional issues, the Respondent submitted. The letter sought a further lump sum for an alleged increase in hearing loss, it said nothing about seeking further benefits under the 1992 claim, or seeking a review of the determination of 7 April 1992. The claim was refused and review was sought. The reviewable decision of 15 May 2002 refused the fresh claim because the Applicant had not reached an additional 10 per cent permanent impairment to qualify for section 24 of the Act benefit.
Therefore there was no need, on the Respondent's submission, for that decision to address entitlements under section 27 of the Act and it did not do so. There has been no reviewable decision that has considered benefits under section 27 of the Act. As there has been no reviewable decision concerning benefits under section 27 of the Act the issue is not within the Tribunal's jurisdiction. Referring to Lees v Comcare (supra) the Full Federal Court decision, that was an unanimous decision. At paragraph 39 of that decision the Court held that the Tribunal does not have jurisdiction to review issues
which are not within the power of the determining authority at the time of the second tier decision.Accordingly, it is asserted by the Respondent that as there had never been a first instance decision that had considered benefits under section 27 of the Act this issue was not open to review at the second tier stage and is equally not available to be considered by the Tribunal. In relation to the Applicant's submissions concerning the Commonwealth's model litigant policy, the Respondent submitted that at the heart of that policy is the view that Comcare has the responsibility to pay benefits even though the Applicant did not properly seek them.
It was submitted that the legislation does not require Comcare to pay particular benefits when a claim for them has not been lodged and the Applicant has not provided sufficient information to allow the benefit to be properly assessed. The fact remains, the Respondent submitted, that the Applicant did not lodge an application for non-economic loss before 7 December 2000. That does not mean that Comcare is being overly technical in making such an observation, or as the Applicant suggested, playing procedural games.
The provisions of section 72 of the Act appear in other legislation and in this regard Mr Elliott referred the Tribunal to Qantas Airways Ltd v Gubbins and Others (1992) 28 ALD 538 a decision which was a decision in relation to the Anti-Discrimination Act 1977. There is a quote Mr Elliott pressed upon the Tribunal from that decision:
“In our view the duty to act according to equity and good conscience, in the context of this Act, did not free the tribunal from its duty to apply the general law in deciding the issues raised by the defences of release by deed.”
Mr Elliott noted that this case was referred to by Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.
Mr Elliott further noted that it is important to understand that the model litigant policy states that the obligation to act as a model litigant does not prevent the Commonwealth from acting firmly and properly to protect the Commonwealth's interests. It does not preclude the Commonwealth from taking all legitimate steps in pursuing claims by it and testing or defending the claims against it. Accordingly, the decision under review should be affirmed, Mr Elliott asserted.
I have reached a decision in this matter as to the Tribunal's jurisdiction to deal with the applicant's request for review in relation to benefits under section 27 of the Act. It is clear to the Tribunal that no claim for non-economic loss was made in 1992, nor on 20 November 2001 when the Applicant asked the Respondent for further permanent impairment as a result of increased hearing loss since 1992. There was no reconsideration sought of the original 1992 decision, which awarded a lump sum for permanent impairment for hearing loss. Nor was there any request in the reconsideration sought in relation to the determination of 13 January 2002 concerning compensation for non-economic loss. It was not until 5 December 2002 that a questionnaire for non-economic loss compensation was provided by the Applicant.
Considering the Full Federal Court decision in Lees v Comcare (supra), the Tribunal believes it is not within the Tribunal's power to entertain an application for review of a decision when there has been no determination, reconsideration or second tier review undertaken. In this case the Tribunal does not consider that there has in fact been any primary decision concerning non-economic loss. The Tribunal finds that it does not have jurisdiction to deal with an application for review in respect of section 27 of the Act. Furthermore, specifically, the Tribunal finds that pursuant to subsection 27(3) of the Act compensation for non-economic loss is precluded under the Act unless the application for compensation for non-economic loss was made before 7 December 2000.
The Tribunal does not consider that Mr Blade's claim in 1992 for permanent impairment can be construed as a claim for non-economic loss. Nor was the further claim on 20 November 2001 a claim for non-economic loss. Accordingly, the Tribunal finds that it has no jurisdiction to deal with Mr Blade's application for review in relation to the issue of non-economic loss compensation. Accordingly, given the decision in that particular aspect of Mr Blade's application for review and the Applicant's stating that no further issue is being sought in relation to the section 24 [of the Act] entitlement, the decision under review is affirmed.
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