Breust and Comcare (Compensation)

Case [2016] AATA 430

Breust and Comcare (Compensation) [2016] AATA 430 (15 June 2016)  

Division

GENERAL DIVISION

File Number

2015/4636

Re

Peter Breust

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Mr S. Webb, Member
Date 15 June 2016
Place Canberra

The Tribunal has no jurisdiction in respect of a claim relating to thrombotic impairment.

That being so, having heard the parties and with their agreement, it is appropriate to make the following orders as to the procedure to be followed:

(a)     hearing certificates in respect of the present application 2015/4636 are to be issued to cover the period from 1 November 2016 to 31 January 2017;

(b)     the telephone preliminary conference presently listed on 21 June 2016 is vacated;

(c)     a preliminary conference in person is to be listed in the first week of October 2016;

(d)     in the event that Mr Breust makes a further application for review of a reviewable Comcare decision in respect of his anticipated permanent thrombotic impairment claim, that additional application is to be joined to his existing application and heard concurrently.

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

Mr S. Webb, Member

Catchwords

PRACTICE & PROCEDURE – jurisdiction – compensation claim for permanent impairment resulting from accepted injury – interpretation of claim - respiratory impairment claim does not extend to include thrombotic impairment – no claim, determination or reconsideration of thrombotic impairment – no jurisdiction in respect of thrombotic impairment

Legislation

Administrative Appeals Tribunal Act 1975, s 25, 43

Safety, Rehabilitation and Compensation Act 1988, s 14, 24, 28, 60, 61, 62, 63, 64

Cases

Abrahams v Comcare (2006) 93 ALD 147

Canute v Comcare (2006) 226 CLR 535

Comcare v Muir [2016] FCA 346

Durham and TNT Australia Pty Ltd (2011) 124 ALD 136

Fuad and Telstra Corp Ltd [2004] AATA 1182

Lees v Comcare [1999] FCA 753

Szabo v Comcare [2012] FCAFC 129

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

Secondary Materials

Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1

REASONS FOR DECISION

Mr S. Webb, Member

15 June 2016

  1. Peter Breust was injured in employment. Comcare accepted liability to pay compensation for the injury. Mr Breust claimed compensation for permanent respiratory impairment. Comcare refused this claim by primary determination and on reconsideration. Mr Breust applied for review.

  2. In the course of the proceedings, an issue has arisen in respect of the jurisdiction of the Tribunal to determine Mr Breust’s entitlement to compensation for a permanent thrombotic impairment. It is this matter, alone, that arises presently for determination.

  3. In order to determine this issue, it is necessary to consider relevant provisions of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), having regard to the relevant facts.

    The facts

  4. On 5 January 2009, an incident occurred in the course of Mr Breust’s duties in employment – his left chest hit the tray of a utility vehicle into which he was loading equipment.[1]

    [1] T7.3 folio 28.

  5. On 28 January 2009, he completed a compensation claim form…

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AGLC
Breust and Comcare (Compensation) [2016] AATA 430
Case
[2016] AATA 430
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by Mr Breust against a decision by Comcare to reject his claim for permanent impairment and non-economic loss. Mr Breust had initially lodged a compensation claim in 2009 for a chest wall injury leading to pneumonia and pulmonary emboli, which Comcare accepted. In 2014, he lodged a claim for permanent impairment, which Comcare rejected in 2015, specifically in relation to "respiratory function." Comcare subsequently affirmed this decision upon reconsideration. The core dispute before the AAT was whether it had jurisdiction to consider a claim for thrombotic impairment, which was first raised in medical reports after Mr Breust had commenced proceedings in the Tribunal.

The legal issues before the AAT were whether the Tribunal had jurisdiction to determine Mr Breust's entitlement to compensation in respect of a thrombotic impairment, and if so, whether the scope of his permanent impairment claim extended to include such an impairment. Comcare argued that no claim for thrombotic impairment had been made, nor had any determination or reconsideration decision been issued addressing this specific issue, thus divesting the Tribunal of jurisdiction. Mr Breust contended that the Tribunal should assess the true scope of his claim under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

The AAT Member, Mr S. Webb, reasoned that the Tribunal's jurisdiction is conferred by legislation, specifically section 64 of the SRC Act, which allows for review of "reviewable decisions." A reviewable decision is defined by reference to decisions made under sections 38(4) or 62 of the SRC Act, which involve the initial determination of a claim or a reconsideration of that determination. The AAT exercises the powers of the original decision-maker, but this does not permit it to depart from the decision-making structure provided by the SRC Act. While a claim may be interpreted broadly, it cannot be taken to cover something not expressly or impliedly included, or not readily discernible from the materials provided to Comcare. The AAT noted that while the SRC Act allows for progressive decision-making, this does not authorise the Tribunal to go beyond the established decision-making framework.

The AAT concluded that it did not have jurisdiction to determine Mr Breust's entitlement to compensation in respect of a thrombotic impairment. The Tribunal found that Mr Breust's claim for permanent impairment was specific to "respiratory function" and could not be read to include a thrombotic impairment, as no such impairment had been claimed, determined, or reconsidered by Comcare. Therefore, the AAT held that it lacked jurisdiction in respect of the thrombotic impairment.

Orders

Orders of the court

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Background

Background to the litigation

In order to determine this issue, it is necessary to consider relevant provisions of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), having regard to the relevant facts.The facts On 5 January 2009, an incident occurred in the course of Mr Breust’s duties in employment – his left chest hit the tray of a utility vehicle into which he was loading equipment.[1][1] T7.3 folio 28. On 28 January 2009, he completed a compensation claim form in respect of “Chest wall injury leading to pneumonia and pulmonary emboli”.[2][2] T3 folio 6. On 17 April 2009, Comcare determined to accept the claim. The delegate said –Under s 14 of the SRC Act I have decided to:accept contusion of chest wall(left); andaccept pulmonary embolism & infarction; andaccept pneumonia”.[3][3] T9 folio 135. On 20 November 2014, Mr Breust completed a compensation claim for permanent impairment and non-economic loss.[4] This form contained the following information:[4] T17.4. Dr David Yates, Mr Breust’s treating general practitioner, completed a section of the form, including –Diagnosis of the condition your patient is claiming permanent impairment for: On 25 June 2015, Comcare determined to reject “Mr Breust’s claim for permanent impairment dated 28 November 2014 for “respiratory function””.[5][5] T24 folio 209. On 26 June 2015, Mr Breust’s lawyer requested reconsideration of the determination, referring to a report of Dr Burson.[6] In all likelihood, the lawyer intended to refer to Dr Burdon, a respiratory physician, who prepared a report for Comcare on 8 April 2015.[7] Nevertheless, the references made are in respect of the doctor’s assessment of Mr Breust’s “permanent respiratory impairment”.[6] T25 folio 214.[7] T21. On 17 July 2015, Comcare issued a reconsideration decision, affirming the primary determination.[8] It is quite clear that this decision deals squarely with the issues raised by Mr Breust’s lawyer in his request for reconsideration and matters relating to respiratory impairment.[8] T26. Making this decision, Comcare had before it extensive medical records, including reports from Dr Yates,[9] Dr Burdon,[10] Dr Jabbour (a cardiologist),[11] Dr Jelinek (a cardiologist),[12] Dr Chan (a doctor engaged by Comcare to conduct two Clinical Panel Reviews of Mr Breust’s claim).[13][9] T17.3 folio 153.[10] T21.[11] T16.[12] T20.[13] T18 and T22. On 7 September 2015, Mr Breust applied for review, stating that the decision is incorrect in fact and incorrect in law.[14][14] T1 folio 3. Subsequently, additional medical reports were obtained from Dr Macdonald (a cardiologist),[15] Dr Hayward (a cardiologist),[16] and Dr Johnson (a respiratory and sleep physician).[17][15] ST1.[16] Report dated 7 October 2015.[17] Report dated 21 January 2016. It is in the report of Dr Johnson that the issue of a thrombotic impairment is first mentioned.Jurisdiction Comcare asserts that the Tribunal has no jurisdiction to determine Mr Breust’s entitlement to compensation in respect of a thrombotic impairment. Comcare says that no such impairment has been claimed, and no determination or reconsideration decision has been issued addressing this point. In Comcare’s submission, Mr Breust’s claim was specific – it clearly identified the permanent impairment under claim, namely ‘respiratory impairment’. The claim cannot properly be read to include any other kind of impairment. Furthermore, Comcare asserts that Mr Breust did not raise any issue about a thrombotic impairment prior to commencing proceedings in the Tribunal.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Under s 25 of the AAT Act, the Tribunal’s jurisdiction is conferred by legislation. In this case, jurisdiction is conferred by s 64 of the SRC Act. Under this section, application may be made to the Tribunal for review of a ‘reviewable decision’ as defined under s 60(1) –reviewable decision means a decision made under subsection 38(4) or section 62. A decision under s 62 is one in which a determination, as defined in s 60(1), in respect of a claim is reconsidered. These provisions establish a three-tiered system of decision-making: determination of a claim by Comcare; reconsideration of a determination by Comcare; and review of Comcare’s reconsideration decision by the Tribunal.[18][18] Lees v Comcare [1999] FCA 753 at [32]. It is important to note that under s 25(3A) and s 43 of the AAT Act, the Tribunal, on review, exercises the powers available to the person who made the ‘reviewable decision’. This is so, even though that person may not have exercised power to address all of the issues under claim that were before the primary decision-maker.[19][19] Fuad and Telstra Corp Ltd [2004] AATA 1182 at [4]-[5]. As Jagot J said in Re Durham and TNT Australia Pty Ltd[20] at [51], it is for the Tribunal, itself, to assess the true scope of a claim under the SRC Act and to conduct its review on that basis. [20] (2011) 124 ALD 136. Having determined to accept liability for an injury (or injuries) under s 14 of the Act, Comcare is liable to pay compensation in respect of those injuries under particular heads of entitlement, subject to claim. As the High Court said in Canute v Comcare[21] at [10], ‘the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury"’. Presently, the head of entitlement in issue is that relating to permanent impairment under s 24.[21] (2006) 226 CLR 535. The first step is to consider the scope of Mr Breust’s permanent impairment compensation claim. While what Madjwick J said at [18] in Abrahams v Comcare[22] in respect of a notice and claim for injury is pertinent here in the context of a claim relating to permanent impairment, it does not follow that a generous or broad or practical interpretation of a claim means that it can be taken to cover something that is not expressly or impliedly included, or that cannot readily be discerned from the notice and other materials given to Comcare.[23][22] (2006) 93 ALD 147.[23] Comcare v Muir [2016] FCA 346 at [13] to [16]. Furthermore, it is quite clear that the SRC Act may be construed to allow for the kind of progressive decision-making the Full Court referred to in Telstra Corporation Ltd v Hannaford[24], but this does not authorise the Tribunal to depart from the decision-making structure the SRC Act provides. [24] (2006) 151 FCR 253 at [10]-[11], [13] and [57]. Thus, while great particularity or formality is not required,[25] and some flexibility may be appropriate, the scope of a claim is to be determined on the basis of readily discernible matters arising from the available materials.[25] Szabo v Comcare [2012] FCAFC 129 per Emmett and Greenwood JJ at [33], per Bennett J at [50].

Ratio Decidendi

Legal Principle Established

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