Blandon and Comcare (Compensation)
[2018] AATA 4614
•18 September 2018
Blandon and Comcare (Compensation) [2018] AATA 4614 (18 September 2018)
Division:GENERAL DIVISION
File Number(s): 2016/2001; and 2017/2388
Re:Allan Blandon
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:18 September 2018
Date of written reasons: 17 December 2018
Place:Canberra
This hearing of this matter will be reopened. The hearing will resume on 18 December 2018.
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Deputy President Gary Humphries
Catchwords
PRACTICE AND PROCEDURE – application to reopen the hearing – inquisitorial function of the Tribunal – mistaken apprehension of the facts – hearing reopened.
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 33
Safety, Rehabilitation and Compensation Act 1988 ss 14
Cases
Beezley v Repatriation Commission [2015] FCAFC 165
BQRW and Commissioner of Taxation [2014] AATA 410
Confidential and Commissioner of Taxation [2013] AATA 382
Kowalski and Military Rehabilitation and Compensation Commission [2007] AATA 1988
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
WRITTEN REASONS FOR ORAL DECISION
Deputy President Gary Humphries
17 December 2018
On 27 August 2018 the Tribunal conducted a hearing in this matter. The hearing was completed that day and closing submissions were made. The following day, the Applicant, Mr Allan Blandon, sought permission to reopen his case. After hearing the parties, the Tribunal decided on 18 September 2018 to accede to this request. What follows are the reasons for that decision.
BACKGROUND
Mr Blandon suffered an injury at work on 14 May 2010 in which he fractured his left wrist. Comcare subsequently accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for two conditions arising from that incident: fracture of carpal bones (left) and chronic pain syndrome.[1]
[1] In this decision, italicised text is generally used to indicate direct quotations.
Presently before the Tribunal are two applications for merits review, one relating to each accepted condition. In the first (2016/2001) Mr Blandon seeks review of Comcare’s determination that he is entitled to compensation under s 24 for whole person impairment of 18% in relation to the fracture of carpal bones (left) condition (he believes he is entitled to more than 18%). In the second (2017/2388) he challenges a decision denying compensation under ss 24 and 27 in relation to the condition of chronic pain syndrome. Specifically, he claims to be entitled to compensation for whole person impairment of 36% arising from the loss of grip strength in his left hand.
At the hearing on 27 August 2018, the Tribunal considered an application by Comcare to dismiss Mr Blandon’s application under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) on the basis that it had no reasonable prospect of success. The Tribunal decided to dismiss that application, and the hearing proceeded.
As it did so, medical reports were tendered from Prof David Champion, Dr Garth Eaton, Dr David McNicol and Dr Graeme Griffith, among others. However, neither party called medical experts to give viva voce evidence.[2] The intention of the parties evinced by this approach was that the correct or preferable decision in these applications would be clear to the Tribunal from a perusal of the doctors’ reports. This however proved to be far from the case.
[2] In the case of Dr Griffith, this omission was accounted for by the doctor having died before the hearing.
The primary issue faced by the Tribunal at the hearing – as articulated by Comcare in its Statement of Facts, Issues and Contentions – was whether Mr Blandon’s accepted conditions resulted in one or more permanent impairments, for which compensation could be calculated pursuant to s 24. As the hearing proceeded, however, the focus of submissions turned to the question of what precisely particular doctors had meant by the words they used in their reports where they addressed aspects of the issue before the Tribunal. Areas of disagreement included whether pain experienced by Mr Blandon related to either or both of his accepted conditions, whether he suffered any impairment and whether any impairment, if suffered, was permanent. Counsel for the parties took diametrically opposed positions on how the Tribunal should interpret the opinions expressed by the doctors on those topics, and each was able to point to passages in the opinions lending their respective position some weight.
Something of the indeterminate flavour of the medical reports can be gleaned from the following submissions made by counsel for Comcare:
We’re at the hearing now. The applicant’s very last assessment was in January of 2017. The applicant hasn’t had any further investigations or assessments to provide any further evidence to the tribunal, so that is the last evidence that’s available, and what the applicant is asking the tribunal to do is to, effectively, mosaic bits from different reports, pull them together and create this mosaic of a decision which doesn’t find a proper basis, even pulling together the different parts of different reports. So, Dr Griffith doesn’t even use the Comcare guide. So, looking at the doctors who did have reference to Dr Griffith’s assessment, Dr McNicol, Dr Eaton and Professor Champion, they thought that Dr Griffith had assessed loss of grip strength and they read his report, they had available to them an opportunity to examine the applicant and simply the fact that Dr Eaton, himself, actually provides a rating but yet does not go on to say that that then results in any assessment…
…what you are being asked to do is to, in effect, draw from reports inferences that are not obviously available…
… Even Dr Griffith, who goes to it, doesn’t explain why it is that he thinks that grip strength isn’t already adequately assessed under the Comcare Guide but you do have the subsequent three doctors, and you had Dr Griffith’s report, who do not think it’s necessary to go to AMA5. Expressly none of them go to AMA5 and I don’t know what the inference that you’re being asked to draw is as to why they didn’t go [there]. You just simply don’t have evidence that they considered it appropriate and you don’t have evidence from Dr Griffith to explain why he did and, therefore, this essential link in the chain that you need to look at, first a clinical judgment as to why the Comcare Guide would not cover the claimed impairment. You simply don’t have evidence to enable you to be satisfied that it’s appropriate to go to the AMA5 at all.
After quoting from a report of Dr Eaton, counsel goes on to say:
Then he says it’s difficult to rate it. In fact, that whole paragraph is quite unclear because if it was a chronic regional pain condition, he could have potentially rate it but the best, perhaps, understanding that can be given to it, is if it is, as he says, his opinion that presumptively there has been an increased muscular ligamentous tension of his neck, left shoulder and elbow due to his posture, that he doesn’t consider that results in a permanent impairment that is rateable as a loss of motion.
Counsel further quotes from Dr Eaton’s report, and then says:
[Dr Eaton] talks about the muscular ligamentous strain, again, due to the adoption of antalgic posture over an extended period but he says that he’d like specific objective diagnoses to consider the relationship. Now, one interpretation that could be put on that is that he has misunderstood that there needs to be some underlying structural pathology or that he wants to understand, is this a tendonitis? Is it just a muscle strain? If it’s just a muscle strain, is that rateable? Is there nothing else present, in which case I can relate any dysfunction to pain or is it actually something else, like just a muscle strain that is explained, or is it the applicant holding his arm down and that’s created some soreness?
If it’s one of those things, and I’m not going to relate it to the pain, it’s quite difficult to understand and we don’t have anything else that can really explain but one possibility is that he has misunderstood.
Counsel then summarises the medical evidence by saying:
So, the issue comes back again to there being insufficient evidence to make positive findings that, yes, there is a permanent impairment and that this is the rating that should be given to this permanent impairment because the expert evidence before you is quite contrasting when you look at it…
THE RELEVANT LAW
Section 33 of the Administrative Appeals Tribunal Act 1975 provides:
(1)In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
It follows from this framework that rules of procedure and evidence which apply in courts do not dictate the Tribunal’s procedure, but there is no doubt that such rules may be useful in providing a guide to the procedure to be adopted: Kowalski and Military Rehabilitation Compensation Commission [2007] AATA 1988 at [26].
The Tribunal does not operate on a purely adversarial basis; rather it is largely, but not entirely, inquisitorial.[3] Even if this were not so, common law principles applying to adversarial proceedings permit the reopening of an applicant’s case in certain circumstances. In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Kenny J summarised the law on the reopening of proceedings as follows (at [24]):
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are:
(1)fresh evidence (Hughes v Hill [1937] SAStRp 43; [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] [1992] HCA 36; (1992) 108 ALR 55 at 61-2);
(2)inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open);
(3)mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and
(4)mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25].
[3] Matthew Groves, ‘The Duty to Inquire in Tribunal Proceedings’, Sydney Law Review, 33:177 at 181. In Bienstein and Attorney-General (Cth) [2008] AATA 330 Deputy President Forgie at [30] accepted that the procedures of the Tribunal gave it a chameleon-like quality and made its role somewhat elusive at times.
In Confidential and Commissioner of Taxation [2013] AATA 382 the Tribunal referred (at [87]) to other factors which may be relevant in the decision to reopen a concluded hearing:
(a) whether applicants have been given a reasonable opportunity to present their case (s. 39 of the AAT Act);
(b) whether the reopening of the hearing is consistent with:
(i) the Tribunal's obligation to conduct proceedings with as much expedition as a proper consideration of the matters before the Tribunal permits (s. 33 (1)(b) of the AAT Act); and
(ii) the Tribunal's overriding obligation to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick within the meaning of s. 2A of the AAT Act;
(c) the public interest that there should be finality in litigation including the effect of delay on the parties and other applicants seeking review before the Tribunal and to the appropriate use of public resources;
(d) whether the applicants made a deliberate choice not to adduce evidence "to obtain some forensic advantage";
(e) …
(f) whether the boundaries of the reopened issues "would be hard to define and difficult to protect".
In the case of hearings conducted pursuant to claims made under the Act, a constraint on the Tribunal is the requirement in s 66(1):
Evidence in proceedings before Administrative Appeals Tribunal
(1)Where:
(a)a claimant who has instituted proceedings under this Part seeks to adduce any matter in evidence before the Administrative Appeals Tribunal in those proceedings; and
(b)the claimant had not disclosed that matter to the Tribunal at least 28 days before the day fixed for the hearing of those proceedings;
that matter is not admissible in evidence in those proceedings without the leave of the Tribunal.
CONSIDERATION
In resisting the application to reopen the hearing, Comcare argued that Mr Blandon had been given an adequate opportunity to present his case at the hearing, and that the reopening of that case was unwarranted. It reminded the Tribunal that there were costs consequences in doing so, and that there was a public interest in the finality of litigation, noting that these proceedings have been on foot since 2016. It was observed that any new evidence adduced by Mr Blandon would fall foul of s 66, and may trigger the need for further evidence to be obtained by Comcare.
Reference was made to BQRW and Commissioner of Taxation [2014] AATA 410, where, at [96], the Tribunal declined to allow the reopening of the applicants’ case to remedy any failure by them to take best advantage of the hearing. In that respect, Comcare noted that it had not sought to introduce any new evidence or call its own doctors, nor to cross-examine Mr Blandon’s doctors. The inference I take from the reference in this context to BQRW is that Comcare considered that Mr Blandon had made a tactical error in failing to call the doctors, in that the propositions he relied upon to demonstrate his eligibility for compensation were not as clearly demonstrated by the doctors’ written reports as Mr Blandon’s legal advisers might have assumed. Counsel for Comcare said that the applicant’s case was mosaicked, by which I understand her to mean that key elements of the claim were based on extrapolations from the doctors’ reports rather than clear statements establishing those elements.
An applicant seeking merits review must satisfy the Tribunal that the statutory power to set aside or vary a decision maker’s adverse decision should be exercised in his or her favour. This does not impose an onus of proof, but recognises that the conditions of a legislative scheme offering benefits must be met: Beezley v Repatriation Commission [2015] FCAFC 165 at [68]. Where an applicant’s evidence that they meet the conditions of a scheme falls short of the required satisfaction, an application must fail. In the present case, Comcare argues that Mr Blandon’s medical evidence is inadequate to satisfy the Tribunal that he is entitled to compensation, and his application must, therefore, fail.
I am not unfamiliar with the experience of an applicant presenting medical evidence which fails to motivate the Tribunal to accept the case for entitlement which the evidence is alleged to support. Such cases are all too common. But this is not such a case. This is a case where the totality of the medical evidence, if interpreted in a certain way, is quite capable of supporting a claim for entitlement to compensation. If interpreted in another way, it is not. The dilemma facing the Tribunal is that, at the conclusion of the hearing, the evidence was sufficiently ambiguous as to create doubt as to which interpretation is to be preferred.
In those circumstances, as a body empowered to proceed on an inquisitorial basis to discover the truth, I consider that the Tribunal ought to use its best endeavours to resolve that ambiguity. That should not entail the Tribunal in seeking out new witnesses or new evidence, but rather in clarifying the nature and quality of the evidence already presented, in this instance by calling those doctors whose written reports are already before the Tribunal. As such no issue under s 66(1) arises.
In BQRW the Tribunal declined to reopen a completed hearing to allow the applicants to produce fresh evidence. There, the applicants had attempted to adduce what they described as fresh evidence, but which Deputy President Frost characterised as evidence that the applicants previously did not want to rely on but now do (at [67]). He also attributed the late calling of a witness to a lack of diligence on the part of the applicants’ advisers (at [68]). Such factors do not feature in the present proceedings. It is common ground that there is a lack of clarity in the doctors’ reports. The worst that might be said of Mr Blandon’s advisers is that they adopted a reading of the evidence which adverted insufficiently to other readings less favourable to their client.
I note that counsel for Mr Blandon submitted that his approach at the hearing had been informed by a concession made by lawyers for Comcare in an email in September 2016, and that this concession had been withdrawn only during the hearing. The fact of the concession had led counsel to assume that doctors would not need to be called to establish that pain in Mr Blandon’s arm was related to his accepted chronic pain syndrome, it was said. As I apprehend it, Comcare conceded that the concession had been made but maintained it was entitled to make different submissions consistent with the medical evidence. I did not fully explore the full implications of this dispute on the way in which Mr Blandon’s case was conducted, bearing in mind some contention as to what had been said and what had been meant, but I consider that the state of mind in which this left the advisers for Mr Blandon might properly be characterised as what Kenny J referred to in Bradshaw as a mistaken apprehension of the facts.
Whether or not that is the case, I regard the position the Tribunal found itself in at the conclusion of the hearing as being one where it faced a mistaken apprehension of the facts, specifically the facts disclosed in the medical evidence. I also consider that the reopening of the hearing accords with the objective in s 2A of the AAT Act that the Tribunal provides a mechanism which is fair, though it offends slightly the objectives that hearings should be economical and quick.
I make the observation that if, at the conclusion of the submissions before the Tribunal on 27 August, counsel for Mr Blandon had then applied for an adjournment of the proceedings to allow him to call the doctors, on account of the evident confusion about what they had meant, such a request would very likely have been successful. It makes, in my opinion, little difference that a request with similar effect was made the following day, when no doubt parties had had the chance to reflect on the unsatisfactory state of the evidence.
With respect to the other factors mentioned in Confidential and Commissioner of Taxation, I do not consider that reopening the hearing significantly affronts the public interest in finality of litigation, or the requirement for expedition, given that the resumed hearing will occur three months from the date of my decision to reopen. I also consider that this is not a case of the applicant tactically choosing not to adduce evidence to obtain some forensic advantage or of the boundaries of the reopened case being hard to define and difficult to protect. I note, in addition, since making the decision to allow the hearing to be reopened, Comcare has indicated its intention to adduce new evidence of its own, relating to Mr Blandon’s credit as a witness.
CONCLUSION
The reopening of a concluded hearing is a step we should be taken only in exceptional circumstances. I am satisfied that those circumstances exist here.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 17 December 2018
Date(s) of hearing: 11 September 2018 Date final submissions received: 11 September 2018 Counsel for Mr Blandon: Mr Allan Anforth Solicitors for Mr Blandon: Mr David Chen, Capital Lawyers Counsel for Comcare: Ms Sarah Wright Solicitors for Comcare: Mr Tony Giugni, Australian Government Solicitor
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