Boateng and Comcare (Compensation)

Case [2018] AATA 3198

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

  1. The tribunal’s jurisdiction in the present matter extends to Ms Boateng’s physical condition, namely inflammatory bowel disease.

    ................................[sgd]........................................

    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

  2. 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.

  3. 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

  4. 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…

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AGLC
Boateng and Comcare (Compensation) [2018] AATA 3198
Case
[2018] AATA 3198
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Boateng against a reconsideration determination by Comcare that revoked liability for her claimed conditions. The initial determination had accepted liability for Ms Boateng's psychological condition but made no mention of her Inflammatory Bowel Disease (IBD). Ms Boateng contested the omission of the physical condition from the initial determination, and her employer subsequently requested a reconsideration. The reconsideration determination revoked liability, focusing primarily on the psychological condition but also referencing physical conditions, including IBD.

The Administrative Appeals Tribunal was required to determine the scope of its jurisdiction on review, particularly when the initial claim, the initial determination, and the reconsideration determination varied in their description of the claimed injuries. The central question was whether the tribunal's jurisdiction extended to considering the physical condition (IBD) when it was not explicitly included in the initial determination, despite being part of the overall claim and later referenced in the reconsideration determination.

The tribunal applied principles established in case law, notably from *Abrahams and Comcare*, which advocate for a broad, generous, and practical interpretation of notices of injury under the relevant Act. This approach is consistent with the beneficial purposes of the legislation and acknowledges that claimants may not have legal or comprehensive medical advice when lodging claims. The tribunal noted that the purpose of notice is to enable Comcare to investigate and determine claims. Therefore, the powers of an original decision-maker, and by extension the tribunal on review, extend to considering informal notices or amplifications of a claim, provided these are in aid of understanding the originally asserted injury and not a fundamentally different claim requiring a separate decision. The tribunal considered that the inclusion of IBD in the reconsideration determination, following Ms Boateng's immediate contestation of its omission from the initial determination, meant that the physical condition was not an entirely new claim outside the scope of the review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.