Breust and Comcare (Compensation)

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.