BWFS and Comcare (Compensation) [2021] AATA 324 (26 February 2021)
Division:GENERAL DIVISION
File Numbers: 2016/2491, 2016/3547 and 2019/7865
Re:BWFS
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member C. J. Furnell
Date:26 February 2021
Place:Melbourne
1. In respect of matter number 2016/2491, the Tribunal sets aside the reviewable decision and remits the matter to the Respondent for reconsideration in accordance with directions that:
·the Respondent accept that the psychiatric condition is an injury which has resulted in a permanent impairment; and
·in assessing the degree of that impairment, there is to be included as part of the resultant effect of the psychiatric condition the effects on BWFS of the treatment undergone by BWFS at the Northpark hospital in 2016 and 2017, insofar as those effects are permanent;
·in assessing the degree of that impairment BWFS not be considered to have, in the past or presently, been malingering or to have exaggerated the effects of the psychiatric condition; and
·any assessment of the degree of that impairment be undertaken on a basis not inconsistent with these reasons.
2. In respect of matter number 2016/3547, the Tribunal sets aside the reviewable decision and remits the matter for reconsideration in accordance with directions that:
·each of the psychiatric condition and chronic pain syndrome condition was at 23 February 2016, and is, an injury;
·BWFS continued to suffer the effects of each of those conditions as at 23 February 2016, and presently suffers from those effects;
·in assessing the extent of any incapacity for work resulting from the chronic pain syndrome condition or psychiatric condition, BWFS not be considered to have, in the past or presently, been malingering or to have exaggerated the effects of the condition; and
·Any such assessment be undertaken on a basis not inconsistent with these reasons.
3. In respect of matter number 2019/7865, it relates to an application for review of a decision which the Tribunal is satisfied is not reviewable by it. Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.
Permanent impairment compensation – non-economic loss compensation – psychiatric condition – impairment is permanent – degree of impairment uncertain – remitted for reconsideration with direction
Medical treatment cost compensation – incapacity for work compensation – chronic pain syndrome – psychiatric condition – conditions ailments suffered by the applicant – conditions contributed to by applicant's employment – applicant continues to suffer effects of chronic pain syndrome condition – remitted for reconsideration with direction
Reviewable decision – scope – compensation for other injury not the subject of reviewable decision – liability to pay compensation for specific injury – compensation for other injury not issue before the decision maker – Tribunal cannot consider issue of compensation for other injury
Jurisdiction – s 62 Safety, Rehabilitation and Compensation Act 1988 – no reconsideration of determination – additional injury not before decision maker – no reviewable decision
[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.
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AGLC
BWFS and Comcare (Compensation) [2021] AATA 324
Case
[2021] AATA 324
Decision Date
CaseChat Overview and Summary
This matter concerned compensation claims brought by BWFS against Comcare under the Safety, Rehabilitation and Compensation Act 1988. BWFS, a former employee of Commonwealth authorities, had been determined to have suffered several injuries, including a supraspinatus strain, a rotator cuff strain, chronic pain syndrome (CPS) secondary to the rotator cuff injury, and an adjustment reaction with depressive reaction (psychiatric condition) secondary to the CPS injury. BWFS sought permanent impairment and non-economic loss compensation for the psychiatric condition, and medical treatment cost and incapacity for work compensation for the CPS and psychiatric conditions. Comcare denied these claims. The Administrative Appeals Tribunal was required to review these denials.
The Tribunal was asked to determine two primary legal issues. Firstly, whether BWFS was entitled to permanent impairment and non-economic loss compensation for his psychiatric condition, and if so, the degree of that impairment. Secondly, the Tribunal had to consider whether BWFS had an ongoing entitlement to medical treatment cost and incapacity for work compensation for both the CPS condition and the psychiatric condition, and the extent of any such entitlement. A further issue concerned the scope of the Tribunal's jurisdiction, specifically whether it could consider compensation for injuries not forming part of the reviewable decision before it.
In relation to the permanent impairment claim, the Tribunal found that the psychiatric condition was an injury resulting in permanent impairment. It set aside the reviewable decision and remitted the matter for reconsideration, directing that the assessment of impairment include the permanent effects of treatment undergone at Northpark hospital, and that BWFS not be considered to have malingered or exaggerated his condition. For the medical treatment cost and incapacity for work claims, the Tribunal also set aside the reviewable decision and remitted the matter for reconsideration. It directed that both the psychiatric condition and CPS condition be accepted as injuries, that BWFS continued to suffer their effects, and that any assessment of incapacity for work should not consider malingering or exaggeration. The Tribunal clarified that its jurisdiction was limited to reviewing the specific decisions before it and could not consider compensation for other injuries not subject to those reviewable decisions.
Orders
Orders of the court
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Background
Background to the litigation
This proceeding concerns compensation payable under the Safety, Rehabilitation and Compensation Act 1988 (the Act). An employee is entitled to compensation payable in accordance with the Act, and the Respondent is liable to pay such compensation, in respect of “injuries”[1] suffered by the employee.[2][1] Act, s 5A.[2] Act, s 14.BACKGROUND At all relevant times BWFS was an employee, having been employed by the Commonwealth or a Commonwealth authority[3], the Australian Customs Service and then the Department of Immigration and Border Protection.[3] Act, s 5. Prior to this proceeding, it had been determined that he had suffered several injuries, comprising:·A supraspinatus (muscle)(tendon) strain (right) and thoracic sprain suffered by BWFS in 1998 (the 1998 injury).[4] ·A rotator cuff (capsule) strain (right) suffered by BWFS in March 2000 (the rotator cuff injury).·Chronic pain syndrome said to have been suffered by BWFS as a sequela of (or secondary to) the rotator cuff injury (the CPS condition).·An adjustment reaction with depressive reaction said to have been suffered by BWFS as a sequela of (or secondary to) the CPS injury (the psychiatric condition).[5][4] Exhibit A3.[5] Characterised, when liability was initially accepted, as an “adjustment disorder with depressed mood”: see determination of 14 February 2014, T86. BWFS claims to be entitled to permanent impairment and non-economic loss compensation[6] with respect to the psychiatric condition (the permanent impairment claim). The Respondent denies that claim.[6] Compensation of a type payable under ss 24 and 27 of the Act. The Respondent also denies that BWFS has a present entitlement to medical treatment cost and incapacity for work compensation[7] with respect to certain of his other “injuries” (the liability denial claim). The scope of that denial is in issue. On its face, it would appear to apply only to compensation with respect to the CPS condition and the psychiatric condition. [7] Compensation of a type payable under ss 16 and 19 of the Act. While I will go into this in more detail later in these reasons, the Tribunal’s jurisdiction in relation to these matters[8] involves its review of decisions characterised in the Act as reviewable decisions.[9] [8] Act, s 64.[9] Act, s 60. In relation to the permanent impairment claim, that jurisdiction was enlivened by an application made by BWFS on 5 May 2016 (matter number 2016/2491) (Application 1). In that application he sought review of a decision of 17 March 2016[10] to affirm an initial determination of 29 January 2016[11] in which his claim was rejected.[10] T144, 432. References to “T” are references to documents provided under s 37 of the AAT Act.[11] T132, 401. In relation to the liability denial claim, that jurisdiction was enlivened by an application made by BWFS on 7 July 2016 (matter number 2016/3547) (Application 2). In that application he sought review of a decision of 21 June 2016[12] to affirm an initial determination of 16 March 2016[13] to the effect that, on 23 February 2016, the Respondent had no liability to pay, and BWFS had no entitlement to, the relevant compensation.[12] ST8, 571. References to “ST” are references to supplementary documents provided under either s 37 or s 38AA of the AAT Act. [13] ST3, 558.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
That section does not apply in the circumstances. Simply because a determination has been varied as a result of an own motion reconsideration does not mean that an effective decision cannot be made on an application for review of a reviewable decision made in relation to the determination.[301] Indeed, the Act expressly contemplates own motion reconsiderations in the context of existing review proceedings.[302] Much depends on the nature of the decision made consequent on the own motion reconsideration. Here, as I have said, the purported decision of 29 November 2019 did not involve revocation but, rather, a purported variation. What was done did not deprive the determination of effect with respect to the conditions in relation to which it was expressed to apply (the CPS condition and the psychiatric condition). Continuation of the proceedings that relate to that determination has not been rendered “…fruitless, in the sense that the applicant has already been granted everything he could gain by virtue of the reconsideration.”[303][301] Re Rebeiro & Comcare (1996) 44 ALD 632 at [52].[302] Act, s 62(1). [303] Thomson and Comcare (Compensation) [2017] AATA 34 at [34].DECISIONS Application 1 concerns a reviewable decision of 17 March 2016 to affirm an initial determination of 29 January 2016 to deny BWFS’ claim to permanent impairment and non-economic loss compensation with respect to the psychiatric condition. I have decided to set that reviewable decision aside and to remit the matter to the Respondent for reconsideration in accordance with directions that:·the Respondent accept that the psychiatric condition is an injury which has resulted in a permanent impairment; ·in assessing the degree of that impairment, there is to be included, as part of the resultant effect of the psychiatric condition, the effects on BWFS of the treatment undergone by BWFS at the Northpark hospital in 2016 and 2017, insofar as those effects are permanent; ·in assessing the degree of that impairment, BWFS not be considered to have, in the past or presently, been malingering or to have exaggerated the effects of the psychiatric condition; and·any assessment of the degree of that impairment be undertaken on a basis not inconsistent with these reasons. Application 2 concerns a reviewable decision of 21 June 2016 to affirm an initial determination of 16 March 2016 to the effect that, on 23 February 2016, the Respondent had no liability to pay, and BWFS had no entitlement to, medical treatment cost and incapacity for work compensation with respect to the CPS condition and psychiatric condition. I have decided to set that reviewable decision aside and remit the matter for reconsideration in accordance with directions that:·each of the psychiatric condition and CPS condition was at 23 February 2016, and is, an injury;·BWFS continued to suffer the effects of each of those conditions as at 23 February 2016, and presently suffers from those effects; ·in assessing the extent of any incapacity for work resulting from the CPS condition or psychiatric condition, BWFS not be considered to have, in the past or presently, been malingering or to have exaggerated the effects of the condition; and·any such assessment be undertaken on a basis not inconsistent with these reasons.