Brice and Comcare (Compensation) - [2018] AATA 3463

Brice and Comcare (Compensation) [2018] AATA 3463 (10 September 2018)
Division:GENERAL DIVISION
File Number(s): 2016/4990
Re:Angela Brice
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member

Date:10 September 2018
Place:Canberra

The Tribunal has jurisdiction to determine Ms Brice’s entitlement to compensation from 20 June 2016 to the present, if any, under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of fibromyalgia, however described, being an ‘injury’ for which Comcare is liable to pay compensation.
........................................................................
Mr S. Webb, Member
Catchwords
WORKERS' COMPENSATION - accepted injury - anxiety - subsequent claims in respect of anxiety, depression, fibromyalgia, headaches rejected - previous Tribunal decision in respect of then present liability under heads of compensation - Comcare found to be liable in respect of 'fibromyalgia' – nature of ‘injury’ - subsequent determination made denying present liability affirmed on reconsideration - application for review - scope of Tribunal's jurisdiction - jurisdiction conferred in respect of reconsideration decision determining claims relating to ‘fibromyalgia’ - jurisdiction to decide issues of employment causation of ‘fibromyalgia’ however described, including change in medical diagnosis – jurisdiction to decide entitlements to compensation in respect of incapacity to work and medical treatment expenses as a result of physiological and psychiatric symptoms of 'fibromyalgia' ‘injury’ - ruling given.
Legislation
Administrative Appeals Tribunal Act 1975, ss 25, 43
Safety, Rehabilitation and Compensation Act 1975, ss 4, 14, 16, 19, 29, 57, 60, 61, 62, 64, 69
Cases
Re Brice and Comcare [2007] AATA 1476
Canute v Comcare [2006] HCA 47
Lees v Comcare [1999] FCA 753
REASONS FOR DECISION
Mr S. Webb, Member
10 September 2018

Some years ago, Angela Brice sustained a stress-related injury in her previous employment. She claimed and was paid compensation, but her compensation entitlements were suspended after she failed to attend a medical appointment arranged by Comcare. After several years, she made fresh claims for compensation and attended a medical appointment as directed by Comcare. The suspension was lifted. Her new claims were not accepted, however. Those matters progressed and came before the Tribunal. The Tribunal (differently constituted) decided that, at that time, she was entitled to payment of compensation in respect of ‘fibromyalgia’ but not in respect of an ‘anxiety condition’. There matters stood for a number of years. More recently, Comcare determined that Ms Brice was no longer entitled to payment of compensation in respect of the injury. This decision was affirmed on reconsideration and Ms Brice applied for review.
The matter was listed for hearing. Two issues concerning the Tribunal’s jurisdiction arose from the manner in which each party’s case proceeded. Counsel for Ms Brice, Mr Carey, asserted that the Tribunal’s jurisdiction extended to include determination of entitlements under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of an ‘injury’ described as ‘generalised anxiety disorder and myalgia & myositis, unspecified’. Counsel for Comcare, Mr Woulfe, argued against this, asserting the jurisdiction was confined to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brice and Comcare (Compensation)

Details

AGLC: Brice and Comcare (Compensation) [2018] AATA 3463
Case: [2018] AATA 3463
Decision Date: 10 September 2018

CaseChat Overview and Summary

This matter concerned an application for review by Ms. Brice of a reconsideration decision made by Comcare. Ms. Brice had lodged a claim for compensation in 1994 for anxiety and stress arising from workplace harassment, which Comcare accepted. Years later, in 2004, Ms. Brice lodged further claims for permanent injury and compensation in respect of anxiety, depression, fibromyalgia, and headaches, attributing these conditions to the same workplace events. Comcare rejected these subsequent claims, finding that they were not sequelae of the accepted injury and that there was insufficient evidence to establish the ongoing contribution of the accepted injury to these conditions. The Administrative Appeals Tribunal (AAT) was required to determine the scope of its jurisdiction in reviewing Comcare's reconsideration decision.

The central legal issues before the Tribunal were the extent of its jurisdiction in reviewing Comcare's decision, particularly concerning the claims for fibromyalgia, depression, and headaches. Specifically, the Tribunal had to ascertain whether its powers extended to deciding issues of employment causation for these conditions, including any changes in medical diagnosis, and to determine Ms. Brice's entitlements to compensation for incapacity to work and medical expenses arising from the physiological and psychiatric symptoms of fibromyalgia, however described. The Tribunal's jurisdiction was conferred by section 64(1) of the *Safety, Rehabilitation and Compensation Act 1994* (SRC Act), which allows for the review of a "reviewable decision," defined by section 60(1) of the SRC Act as a decision made under section 38(4) or section 62.

The Tribunal reasoned that its jurisdiction to review Comcare's reconsideration decision, made on 16 August 2016, encompassed all matters that were capable of being decided under the SRC Act and were placed before the decision-maker as part of a claim. Under section 43(1) of the *Administrative Appeals Tribunal Act 1975*, the Tribunal may exercise all the powers and discretions conferred by the SRC Act on the person who made the decision under review. Therefore, the Tribunal had the power to decide issues of employment causation for fibromyalgia, including changes in medical diagnosis, and to determine Ms. Brice's entitlements to compensation for incapacity and medical expenses resulting from the symptoms of that condition, as these were matters that Comcare could have determined under the SRC Act.

Orders

Orders of the court

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Background

Background to the litigation

Secondly, in order to assist understanding, it is helpful, first, to set out relevant background facts and aspects of the procedural history.Facts and procedural history In 1991, Ms Brice was badly injured in a motor vehicle accident. She recovered damages. From 1992 to 1996, Ms Brice was employed as a clerical officer by the Australian Electoral Commission. On 10 November 1994, Ms Brice lodged a claim for compensation in respect of “anxiety and stress due to continued sexual harassment and harassment at work” that she first noticed on 31 March 1992 and for which she first sought medical treatment on 1 May 1994.[1] The Comcare claim number is 8663/02.[2] I note that this injury is referred to in various Comcare documents as ‘the 02 condition’.[1] T6 folio 93.[2] T8 folio 110. There is no dispute that Comcare accepted liability under s 14 of the SRC Act in respect of “an episode of anxiety/stress arising from difficulties with a relationship with a supervisor”.[3] It may be inferred that this ailment was found to be within the meaning of ‘disease’ and ‘injury’ under s 4 of the Act then in force. It appears that the date of the injury was deemed to be 31 January 1992. The reason for this is not clear on the present materials.[3] The initial determination of liability is not in the documents provided to the Tribunal in these proceedings. The description of the accepted ‘injury’ is referred to in other documents, however - see T8 folio 102 and T31 folio 188, for example. Amounts of compensation were paid. On 11 November 1996, Ms Brice failed to attend a medical appointment Comcare arranged with Dr Kalnin (a consultant psychiatrist) under s 57 of the SRC Act. Consequently, under s 57(2), her entitlements to compensation were suspended from 1 December 1996. There matters rested for several years. On 29 September 2004, Ms Brice signed a Compensation Claim for Permanent Injury in respect of “Accepted condition: ANXIETY, DEPRESSION, FIBROMYALGIA, HEADACHES”.[4] The resulting impairments were stated to be “ongoing tiredness, overall body musculoskeletal pain, frequent headaches, ongoing depression”.[5] This claim was lodged with Comcare on 8 November 2004.[4] T25 folio 150.[5] Ibid folio 151. On 17 November 2004, it appears likely that Ms Brice lodged a further claim for compensation “in respect of ‘work caused anxiety/depression, fibromyalgia, headaches’ (the 03 condition), which she attributed to the same events in the course of her former employment with the AEC” that gave rise to her accepted injury.[6][6] This claim is not in the documents given to the Tribunal, but reference is made in related documents, including T33 folio196, for example. On 20 January 2005, Ms Brice attended a medical appointment Comcare arranged with Dr George, a consultant psychiatrist, under s 57 of the SRC Act, whereupon the suspension of her compensation entitlements was lifted.[7][7] T26 and T28 refer. On 18 February 2005, Comcare determined to reject Ms Brice’s 8 November 2004 compensation claim for permanent impairment.[8] The decision-maker stated –“The injury in this matter is clearly the harassment at work and any sequela as a result of that injury. It does not include any physical or psychological effects from the motor vehicle accident [in 1991] or any ongoing psychological problems associated with the childhood abuse. There is no liability accepting for any injury relating to previous repetitive keyboard work, peptic ulcer, impaired sleep or headaches. There is no evidence to satisfy that any of these conditions have been accepted as a sequela to her accepted condition, therefore I find these conditions are not included in the definition of injury relating to this claim for permanent impairment.Ms Brice suffers from an anxiety condition that has manifested itself into a widespread chronic pain syndrome with at least six different contribution factors.I find that in light of the evidence does not establish the percentage of ongoing contribution from Ms Brice’s accepted injury.”[Original emphasis][8] T30 folio 185.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

When dealing with matters of this kind, it is necessary to consider s 25(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and s 64(1) of the SRC Act, by which jurisdiction is conferred. As can be seen, the jurisdiction conferred upon the Tribunal by s 64(1) of the SRC Act is for ‘review of a reviewable decision’. The term ‘reviewable decision is given meaning by s 60(1) of that Act –reviewable decision means a decision made under subsection 38(4) or section 62. A decision under s 62 is one involving reconsideration of a ‘determination’ as defined by s 60(1) –determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X. At this point it is relevant to observe that compensation is not payable unless a claim is made under s 54(1) o the SRC Act. Comcare is obliged to determine claims made against it ‘accurately and quickly’ (s 69(a)) or within the prescribed time (s 61(1)), notifying the claimant ‘as soon as practicable’ thereafter. It is by this three-tiered approach to decision-making the scheme provided by the SRC Act proceeds.[51] [51] Lees v Comcare [1999] FCA 753 at [39]. In the present case, the Tribunal has jurisdiction to review the reconsideration decision that is the subject of the application Ms Brice made for review, namely the reconsideration decision made on 16 August 2016.[52] By this decision, Comcare affirmed a determination made on 20 June 2016.[53][52] T76.[53] T72. There is no controversy about this. The controversy arises in respect of the scope of the jurisdiction conferred and the extent of power to determine certain matters, beyond which the Tribunal might fall into jurisdictional error. Issues of power arise as, under s 43(1) of the AAT Act, for the purposes of reviewing a decision, the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. The Tribunal does not exercise power at large – acting in excess of power may result in jurisdictional error. Determining the extent of power requires careful assessment of the scope of matters that were put before the decision maker as part of a claim that were capable of being decided under the SRC Act. Whether or not they were squarely dealt with or dealt with in any way in the reconsideration decision (or the anterior determination), those matters will be before the Tribunal on review.[54] Furthermore, it is necessary to consider the extent of the powers and discretions capable of being exercised by the person who made the reconsideration decision, for those same powers and discretions will be capable of exercise by the Tribunal for the purposes of review in order to properly deal with all such matters. [54] Re Fuad and Telstra Corporation Limited [2004] AATA 1182 at [4]-[5]. Thus, it is necessary to properly understand the matters under claim that were placed before the person who made the determination, subsequently reconsidered.

Ratio Decidendi

Legal Principle Established

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