Breust and Comcare (Compensation)
[2016] AATA 430
•15 June 2016
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
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.
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.
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); and
accept pulmonary embolism & infarction; and
accept 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.
Date of injury 05/01/2009 Accepted condition Contusion of chest wall(L) pulmonary embolism + infarction + pneumonia What permanent injury/impairment(s) of the body do you want to claim for? Respiratory function
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:
Pulmonary contusion, subsequent pulmonary embolism Is this related to their accepted condition? √Yes No
If you have answered yes, what impairment(s) to their >bodily parts >bodily functions >bodily systems
have resulted from the condition?
Significant impairment to respiratory function. Spirometry shows impairment to be 30% …
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.
Mr Breust argues that the claim he made should be interpreted generously and practically, without an overly technical analysis. In his submission, the claim is sufficiently broad to include impairment relating to his thrombotic disorder, namely pulmonary embolism.
I do not agree.
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].
Mr Breust’s permanent impairment claim is quite clear – it is in respect of respiratory impairment. While the term ‘respiratory impairment’ may be given a generous and practical meaning, I do not think that it can reasonably be taken to refer to a thrombotic disorder. To my mind, a thrombotic impairment is of a substantially different character than a respiratory impairment. In Mr Breust’s case, on the evidence of Dr Johnson, his thrombotic impairment is one that involves pulmonary emboli and continuing treatment with Warfarin. This is quite different than the respiratory impairment Dr Yates identified on the basis of spirometry, and to which he referred in the permanent impairment claim form.
The next step is to consider what was before the primary and reconsideration decision-makers in respect of Mr Breust’s permanent impairment compensation claim.
The absence of any reference by Mr Breust and those legally representing him, or any of the doctors who produced reports to which Comcare had access when determining and reconsidering his claim, to thrombotic impairment tends to confirm that the claim was in respect of respiratory impairment, alone.
Without a recognisable claim for thrombotic impairment, no such impairment was before the primary decision-maker for assessment and determination. Consequently, it was not open for the reconsideration decision-maker to address a claim of that kind. Even if material had been placed before the reconsideration decision-maker sufficient to enliven a claim for thrombotic impairment at that stage, the claim would necessarily be subject to a first tier determination. This did not occur.
That being so, I am compelled to find that no claim was made in respect of thrombotic impairment. Thrombotic impairment was not before the primary decision-maker for determination and it was not before the reconsideration decision-maker. Thrombotic impairment has not been the subject of an express or implied determination under s 24 and it has not been the subject of an express or implied reconsideration decision under s 62 of the SRC Act. The notices issued under s 61 and s 63 of the SRC Act do not expressly or impliedy refer to thrombotic impairment.
It follows that a claim for thrombotic permanent impairment is not before this Tribunal, and the Tribunal has no jurisdiction in respect of any such claim.
For these reasons, Comcare’s application is upheld.
There is one further, ancillary issue that arose at the interlocutory hearing about which it is desirable to make some comments.
Mr Breust’s claim for compensation for permanent respiratory impairment is to be determined under s 24 of the SRC Act. The first step is to identify the particular impairment and to then determine if the impairment is ‘permanent’, having regard to the matters set out in s 24(2). If a positive finding is made, then an assessment of the degree of the permanent impairment is to be made by applying the Comcare Guide determined under s 28.
There is a question, which I do not need to determine presently, about how a respiratory impairment is to be assessed.
Comcare maintains that this is to be done by applying Table 2.1 in Chapter 2 of the Guide.
At first blush, this appears to be correct. Whether a different approach is required in the context of pulmonary embolism is an open question.
Permanent impairment in the form of thrombotic disorder, which may include persistent pulmonary embolism, is to be assessed under Chapter 13, with reference to Table 13.4 in particular. The introduction to this Table includes the following instruction –
Employees who have permanent respiratory or cardiac limitations secondary to massive pulmonary embolism should be assessed as appropriate under Chapter 1 – The cardiovascular system, and Chapter 2 – The respiratory system.
The introduction to Chapter 2 provides a synchronous direction –
Employees who have a permanent respiratory limitation secondary to massive pulmonary embolism should be assessed under Chapter 2. Any WPI rating awarded in these circumstances must not be combined with a WPI rating from Table 13.4: Thrombotic disorders (see Chapter 13 – The homeotopoietic system).
These instructions leave open the possibility, at least, that a permanent thrombotic disorder in the form of pulmonary embolism (other than massive pulmonary embolism) may be assessable under Table 13.4 and any related secondary respiratory impairment may be assessable under Table 2.1. Under this construction, it is conceivable that two impairment assessments may be obtained and, if the impairments result from the same injury, the assessments would be combined using the Combined Values Chart.
The alternative construction is that only one assessment should be made, as is required in respect of respiratory limitation secondary to massive pulmonary embolism. Under this construction, however, it is not entirely clear which Table should apply. The instructions in Chapter 2 and Chapter 13 are of little assistance in this regard.
As I have said, I do not need to resolve this issue for present purposes. I raise it in this context in view of the matters raised at hearing, for the proper consideration of the parties.
Decision and orders
The Tribunal has no jurisdiction in respect of a claim relating to thrombotic impairment.
The parties have agreed upon and requested orders in respect of the procedure to be followed in the present application. I understand that Mr Breust will make a fresh claim for compensation in respect of the thrombotic impairment Dr Johnson identified within 7 days. That is a matter for him. I also understand that Comcare will expedite its decision-making processes in respect of a fresh claim of this kind in order to deliver a determination and, if necessary, a reconsideration decision to Mr Breust within 60 days of the claim. That is a matter for Comcare.
Having regard to these matters, and in order to ensure that the present application proceeds in a reasonable and timely manner, I will make the following orders:
(a)the Tribunal has no jurisdiction in respect of a claim relating to thrombotic impairment;
(b)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;
(c)the telephone preliminary conference presently listed on 21 June 2016 is vacated;
(d)a preliminary conference in person is to be listed in the first week of October 2016;
(e)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.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ..............[sgd]..........................................................
Associate
Dated 24 June 2016
Date of hearing 15 June 2016 Counsel for the Applicant Karl Pattenden Solicitors for the Applicant Slater & Gordon Lawyers Respondent In person
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Statutory Construction
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Appeal
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Procedural Fairness
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