Boateng and Comcare (Compensation)
[2018] AATA 3198
•29 August 2018
Boateng and Comcare (Compensation) [2018] AATA 3198 (29 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0977
Re:Josephine Boateng
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mark Hyman, Member
Date:29 August 2018
Place:Canberra
The tribunal’s jurisdiction in the present matter extends to Ms Boateng’s physical condition, namely inflammatory bowel disease.
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Mark Hyman, Member
Catchwords
COMPENSATION – jurisdiction – whether jurisdiction extends to both psychiatric and physical conditions – claim form and supporting material - omission of physical condition from scope of initial determination – inclusion of physical condition in reconsideration determination – tribunal’s jurisdiction on review extends to physical condition
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 43
Safety, Rehabilitation and Compensation Act 1988, ss 53, 54, 60, 61, 62, 63, 64, 69, 72
Cases
Abrahams and Comcare [2006] FCA 1829
Australian Postal Corporation v Sellick [2008] FCA 236
Comcare vBromham [2017] FCA 174
Comcare v Muir [2016] FCA 346
Durham and TNT Australia [2011] AATA 802
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Kennedy v Comcare [2014] FCA 82
Lees v Comcare [1999] FCA 753
Smith v Comcare [2013] FCAFC 65
Szabo v Comcare [2012] FCAFC 129
Telstra Corporation Ltd v Kotevski [2013] FCA 27
REASONS FOR DECISION
Mark Hyman, Member
29 August 2018
The applicant in the present matter, Ms Josephine Boateng, has a primary claim relating to a psychiatric condition. She seeks to agitate in addition a physical condition, namely inflammatory bowel disease (IBD). The question arose in preliminary consideration whether the tribunal has jurisdiction to consider the physical condition as well as the psychiatric condition. Ms Boateng has held back from obtaining specialist medical reports because of uncertainty whether the physical condition is within the tribunal’s jurisdiction. This interlocutory decision deals with that issue, and with that issue alone. It does not touch on the merits of either claim, which will be tested at a substantive hearing.
The matter was briefly considered at a telephone directions hearing on 27 August 2018. At that hearing Mr Michael Hyland of LHD Lawyers represented Ms Boateng and Ms Athena Cains of McInnes Wilson Lawyers represented Comcare. The parties agreed that a brief written decision would be helpful in providing certainty as the matter proceeded towards a substantive hearing. The papers before the tribunal for the purpose included in particular those provided under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). These are generally known as the “T-documents”.
LEGISLATION
The tribunal’s jurisdiction is decided by the interaction of the AAT Act and the legislation governing the decision under review, here the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The process for making a claim for compensation is set out in Part V of the SRC Act. Section 53 states that the Act does not apply to an injury to an employee unless written notice of an injury is given to the appropriate authority as soon as practicable after the injury. Section 54 states that compensation is not payable unless a claim is made in accordance with the approved form and accompanied by a medical certificate; substantial rather than strict compliance with the requirement to make a claim in accordance with the approved form is sufficient.
Part VI of the SRC Act deals with review of claims. Section 61 requires a determining authority, having made a determination, to provide notice to the claimant with reasons and advice on rights of review. Section 62 allows a determining authority, on its own motion or at the request of the claimant or another interested party (such as the employer), to reconsider a determination made under section 61; a request for reconsideration must set out the reasons for the request. The result of reconsideration is a decision affirming, revoking or varying the determination. Under section 63, notice of and reasons for a decision taken under section 62 (defined as a “reviewable decision” in section 60) must be provided to the claimant along with information about rights of review by this tribunal. Section 64 provides for applications to be made to the tribunal for review of reconsideration decisions (i.e. those taken under section 62).
The tribunal’s jurisdiction with regard to a claim, then, is determined by the scope of the reconsideration determination; the scope is in turn influenced by the terms in which the claimant made the claim. Subsection 43(1) of the AAT Act gives the tribunal, for the purposes of undertaking its review, all the powers and discretions conferred on Comcare by the SRC Act.
Under paragraph 69(a), Comcare is to determine claims accurately and quickly; under section 72, Comcare, in doing so, is to be guided by “equity, good conscience and the substantial merits of the case, without regard to technicalities”.
MS BOATENG’S CLAIM
The claim for workers’ compensation lodged by Ms Boateng on 12 September 2017 (T11) is the starting point for the inquiry. It refers plainly to two conditions, namely “stress and anxiety” and exacerbation of existing IBD. Supporting information provided at that time (T12) also mentions IBD. Ms Boateng’s supporting statement dated 19 September 2017 (T19) also referred to IBD.
The initial determination accepting liability for Ms Boateng’s psychological condition on 10 November 2017 makes no mention of IBD (T41), but Ms Boateng immediately took up and contested the absence of any reference to a physical condition in that determination (T42, dated 10 November 2017 and T43, dated 13 November 2017). On 7 December 2017 Ms Boateng’s employer, the Department of Industry, Innovation and Science, requested reconsideration of the initial determination (T60). That led to a reconsideration determination (the reviewable decision, T78, dated 5 January 2018), which revoked liability, focusing mainly on Ms Boateng’s claimed psychological condition, but referring also to physical conditions, including IBD.
CONSIDERATION
There is a substantial body of case law dealing with the scope of the tribunal’s jurisdiction, especially where there is variation in the scope suggested in the claim and associated documents, the initial determination and the reconsideration determination. It is clear that new claims entirely outside the scope of the reconsideration determination, introduced at the level of the tribunal’s review, will normally lie outside jurisdiction: Lees v Comcare [1999] FCA 753. But the cases considered here involve matters that fall within an initial claim on one reading and outside it on another. In Abrahams and Comcare [2006] FCA 1829 (Abrahams), Madgwick J, asserting that it was reasonable to allow a claim to be flexibly interpreted, enunciated the following principles (at [18]):
1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.
2. In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.
3. The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given.
4. Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.
5. There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.
Other cases dealing with related issues include Comcare v Muir [2016] FCA 346 (Muir); Szabo v Comcare [2012] FCAFC 129 (Szabo); Durham and TNT Australia [2011] AATA 802 (Durham); Kennedy v Comcare [2014] FCA 82 (Kennedy); Australian Postal Corporation v Sellick [2008] FCA 236 (Sellick) and Comcare vBromham [2017] FCA 174. Although in each case the scope of jurisdiction turns on the particular facts of the matter, some general rules can be discerned (treating the authority as Comcare in each case):
·a broad approach should be taken to determining the scope of the claim (and therefore, potentially, the tribunal’s jurisdiction on review) (Abrahams at [18]; Kennedy at [53]);
·it is up to the tribunal to determine the scope of its jurisdiction; it is not constrained by the way Comcare has chosen to construe the claim (Durham at [51]-[53]);
·the tribunal on review has the same powers as the reviewing decision-maker and the original decision maker (Abrahams at [16]);
·the claim must be construed as a whole, drawing not only on the claim itself but also on the notice of injury, medical certificate and other documentation submitted at the time (Durham at [60]);
·the scope of the claim aligns with the claimant’s condition as determined through later investigations, rather than being limited to the condition originally nominated on the claim form (Abrahams at [20]-[23]);
·the circumstances of the case, and the nature of the condition for which compensation is claimed, may necessitate that the period in which causation is explored is well beyond the dates mentioned in the claim form (Smith v Comcare [2013] FCAFC 65 at [38] (Buchanan J)).
But the scope to adjust the tribunal’s jurisdiction to accord with the claim and the development of the condition covered by the claim is quite constrained. Most cases involve either temporal extension (to dates before or after the date of initial injury notified on the claim form) or to conditions different from those nominated on the form:
·where the applicant has consistently claimed and pursued a claim on a narrow basis, that may have the effect of limiting the scope of the claim and therefore the tribunal’s jurisdiction on review (Szabo at [35]-[40], Muir at [37]);
·the flexibility available to the tribunal in determining its jurisdiction does not extend to allowing a claimant to re-characterise a claim to avoid the effect of exclusionary and other provisions (such as the “reasonable administrative action” exclusion in section 5A of the Act) (Muir at [30]);
·any extension of the scope of a matter must logically flow from the facts, and adequate reasons must be given, for example to justify inclusion of a secondary condition, or the tribunal is at risk of exceeding its jurisdiction (Sellick at [70]-[72]).
In this matter it is very apparent that Ms Boateng has consistently agitated for her physical condition to be taken into account in assessment of her claim. IBD was given equal emphasis in the initial claim and supporting statements, and she immediately took up the omission of IBD from the initial determination. The reconsideration determination does deal with IBD, albeit without a great deal of detail. It does not explicitly reject liability under the SRC Act for IBD, but that is implied by the discussion at T78, folio 425, and in any case a decision to deny liability would be implied (see Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; Telstra Corporation Ltd v Kotevski [2013] FCA 27; Kennedy at [59]).
What this means is that the tribunal’s jurisdiction, derived as it is from the reconsideration determination, extends, and has always extended, to include IBD. This is not a case where Comcare has construed narrowly a claim that should have been construed broadly. The authorities quoted above encourage me in that conclusion.
The tribunal’s jurisdiction is not limited to Ms Boateng’s psychiatric condition but extends to her physical condition, namely inflammatory bowel disease.
15. I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman
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Associate
Dated: 29 August 2018
Date of hearing: 27 August 2018 Solicitors for the Applicant: LHD Lawyers Solicitors for the Respondent: McInnes Wilson Lawyers
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