Carson and Comcare
[2011] AATA 103
•17 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 103
ADMINISTRATIVE APPEALS TRIBUNAL )
)Nos 2009/4193, 2009/4199
)and 2009/5589
GENERAL ADMINISTRATIVE DIVISION ) Re PETER CARSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date17 February 2011
PlaceAdelaide
Decision The tribunal decides that Dr Carson’s claims for eye irritation, skin irritation, reflux, headaches, eye disturbances, asthma, bruxism, and depression and anxiety are to be determined according to the 2nd edition of the Guide to the Assessment of the Degree of Permanent Impairment.
DG Jarvis
.... [Signed] ...
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – claim for permanent impairment – consideration of whether claims for particular types of compensation are required – interpretation and requisite content of claims for compensation – held that applicant had not made a claim for compensation for permanent impairment prior to commencement of second edition of Guide to the Assessment of Permanent Disability.
PRACTICE AND PROCEDURE – jurisdiction – held that failure to make a decision is not reviewable.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 54
Abrahams v Comcare (2006) 93 ALD 147
Carson v Comcare [2003] FCA 1550
Carson v Comcare [2004] FCAFC 204
Comcare v Sassella (2001) 34 AAR 142
Commonwealth v Ford (1986) 9 ALD 433
Lees v Comcare (1999) 56 ALD 84
Re Cavanagh and Comcare (2008) 106 ALD 143
D.C. Pearce : Administrative Appeals Tribunal (2nd Edition, 2007)
REASONS FOR DECISION
17 February 2011 Deputy President D G Jarvis 1. The applicant, Peter Carson, has claimed compensation for permanent impairment pursuant to s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Comcare is required to determine claims for permanent impairment by reference to the provisions of the Guide to the Assessment of Permanent Impairment (Guide) prepared by it pursuant to s 28 of the SRC Act.
2. An issue has arisen as to whether the 1st or 2nd edition of the Guide applies to Dr Carson’s claim. Clause 3 of the introduction to the 2nd edition of the Guide provides in effect that claims made under ss 24, 25 or 27 of the SRC Act that are received by the relevant authority on or before 28 February 2006 will be determined under the 1st edition of the Guide, but that edition of the Guide is revoked in respect of claims under those sections received after 28 February 2006, and claims received on and from 1 March 2006 will be determined under the 2nd edition of the Guide.
3. It is accordingly necessary to identify and interpret the documents that constitute the claims that have been made for compensation for permanent impairment, in order to determine the date when the claims were made, and the conditions to which the claims related. It is common ground that there is no difference in the provisions of the 1st and 2nd editions of the Guide insofar as they relate to Dr Carson’s depressive condition. However, Dr Carson also claims compensation for permanent impairment from certain additional conditions referred to below, and there are differences between the two editions of the Guide in relation to those conditions.
Background
4. Dr Carson was previously employed by the Defence, Science and Technology Organisation as a research scientist. In a decision dated 3 August 1998, this tribunal determined that he had suffered an injury described as “depression” or an “aggravation of depression” with a date of injury of 24 January 1995 (2009/4199, T14, page 20).
5. He later made other claims for compensation, which are now the subject of proceedings in this Tribunal, but it is only necessary for present purposes to refer to the history of the claims insofar as they are relevant to the proper interpretation of the claims for permanent impairment.
First claim for permanent impairment
6. Dr Carson lodged a Compensation Claim for Permanent Impairment form (PI claim form) dated 20 January 2000 in respect of an accepted condition of “depression”. The form is date stamped as having been received by Comcare on 6 July 2000. In response to a question on the claim form reading “What permanent injury/impairment(s) of the body do you suffer from as a result of your condition?”, Dr Carson wrote, “Mental disorder (psychiatric)” (2009/4199, T16, page 79). His treating psychiatrist, Dr Le Page, completed the doctor’s portion of the claim form, and referred to a diagnosis of “Reactive Anxiety Depressive State”, and described his impairments as “Fluid Psychiatric State. Depressed mood, chronic tensions, poor motivations, impaired concentration” (2009/4199, T16, page 80).
7. On 1 August 2000, Dr Carson sent a letter to Comcare enclosing a “Non-economic Loss Questionnaire” (NEL questionnaire) which Comcare had presumably sent him to enable it to assess his claim for permanent impairment. The covering letter said that he had completed the questionnaire “on my separate signed statement. Some of my conditions do not fit the pigeon-holes of this Questionnaire” (2009/4199, T18, page 82). He added that he did not fill in the doctor’s section of the questionnaire because Dr Davis, whom he had seen the day before (apparently on referral from Comcare) did not wish to fill in that section of the form. The separate statement prepared by Dr Carson states:
“Section 1:”
Pain. 1.1 & 1.2 Episodes of pain more persistent. Not easily tolerated. Treatment is of benefit. Specifically, acid reflux currently (since April 2000) is under control from using “Losec”. Previous treatments of Zantac (Dr Heddle), Prepulsid, Zoton, De-gas, Mylanta, etc, of limited use. I had Gall bladder removed March 99.
Skin rashes and itching constantly require treatment of varying degrees since Jan96 (Drs Wesley, Tyson, Grieve).
I grind my teeth and now wear a Nightguard. Teeth have become ground down and have cracked some because they have become weakened. Had facings and one crown so far. In 1982, my dentist ground down my front teeth because they were too long!
My sight has become progressively worse. I started wearing reading glasses around 1992. My sight used to be super-normal – when tested for my Pilot’s licence in 1978.
My vision is also getting worse – sometimes my eyes just seem weak. I have “dry eyes” (Dr Crompton, 1994).
Suffering. 1.3 & 1.4. Almost constantly focussed on condition. Symptoms often predominate over thinking. Can cope. Activities restricted. I consider treatment to be of little help.
Sleep is usually (80% of time) disturbed.
Headaches and migraines have increased over past 5 years. I had a headache of some sort plus pins and needles in almost every day from early January to April 2000. Attended Headache Clinic (physiotherapy) during March.
Hearing in left ear particularly is reduced.
Occasionally (about once a fortnight) I get a very heavy feeling on shoulders and become cold.”
The statement then addresses matters relevant to mobility, recreation and leisure activities and social relationships, being topics referred to in Section 2 of the NEL questionnaire.
8. On 11 September 2000, Comcare determined that Dr Carson had a permanent impairment in respect of “depression”, sustained on 24 January 1995, and that the degree of that impairment was 10% whole person (2009/4199, T20, page 97).
9. On 21 November 2000, following a request for reconsideration by Dr Carson’s then lawyers, Comcare revoked its determination of 11 September 2000, and in its place, determined that Dr Carson was not entitled to compensation for permanent impairment, because the degree of his permanent impairment under Table 5.1 was only 5% (being less than the 10% threshold for liability for permanent impairment). That determination was affirmed by this tribunal in a decision dated 6 February 2003, at which Dr Carson was legally represented. He lodged an appeal against that decision, and his appeal was dismissed (Carson v Comcare [2003] FCA 1550). A further appeal to the Full Court of the Federal Court was also dismissed (Carson v Comcare [2004] FCAFC 204). Dr Carson represented himself in each appeal.
10. Dr Carson subsequently sent five letters to Comcare that referred back to the claim for non-economic loss that he had lodged in the year 2000. These letters can be summarised as follows.
(a) A letter dated 27 August 2000 (2009/4199, T31, page 165) enclosed a medical certificate and various receipts, and concluded:
“In 2000 when you made your assessment of my non-economic loss, why did you only use Table 5.1 and not use Table 14, etc, of the Guide? I only became aware of these other Tables recently.”
(b) A letter dated 16 May 2005 (2009/4199, T34, page 171), and a further letter incorrectly dated 16 May 2005 instead of 18 September 2005 (which was lodged with this tribunal on 10 January 2011), also enclosed various receipts, and each letter concluded:
“In 2000 when Comcare made its assessment of my non-economic loss, it only used Table 5.1 and not Table 14, etc, of the Guide. I wish this error to be corrected.”
(c) A letter dated 20 December 2005 (2009/4199, T36, page 178) also enclosed various receipts, and repeated the words quoted in the preceding sub-paragraph, and then continued:
“That is, Comcare did not consider the total detrimental effect of my employment on my person – as is required. Comcare’s Dr Tony Davis himself acknowledged the extra effects in his testimony before the AAT (2002). Comcare’s officer Drieberg discounted or ignored such effects in his assessment. I hadn’t realised then what Table 14 was. That should have been brought to my attention in a proper assessment.”
(d) A further letter written after the 2nd edition of the Guide came into force, namely a letter dated 12 January 2007 (2009/4199, T37, page 181), enclosed various receipts, and concluded:
“4. I have also included a copy of 2 pages of the transcript from the AAT proceedings (Carson v Comcare, S2000/471, 2002). This deals with the cross-examination of Dr A.T. Davis, employed by Comcare. These show that even your expert agrees that my skin, bruxism, reflux, headaches are compensable. (I have referred Davis’ opinion to you in previous letters). As well as these pharmacy costs being compensable, with which you seem to be having troubles, these conditions are required to be treated by Guide Table 14 rather than simply Table 5.1, as was done in the above AAT. (I remind you also that the AGS was supposed to act as an Ideal Litigant in this matter). I have asked repeatedly for this to be corrected. How do you suggest I now proceed?”
It appears from the two pages of transcript enclosed with this letter that in Dr Davis’s opinion, a number of symptoms of which Dr Carson complained, namely skin rash, grinding the teeth, acid stomach and headaches could be linked with anxiety.
The second claim for permanent impairment
11. A Comcare file note included in the T documents indicates that on 9 February 2007, Dr Carson telephoned a customer services officer of Comcare, and that there was discussion concerning Comcare’s omission to reimburse him for various expenses, and also concerning Comcare’s failure to address his permanent impairment claim. Soon after that, in a letter to Dr Carson dated 15 February 2007, the officer apologised for the “very significant delay” in responding to Dr Carson’s requests. He proceeded to address issues of incapacity payments and medical expenses. He then recounted the history of the proceedings that arose out of his permanent impairment claim, and explained:
“No Permanent Impairment claim for other conditions had been lodged at the time your back impairment was considered”. (2009/4199, T39, page 186)
He enclosed a PI claim form and requested that it be completed and returned, and that Dr Carson include all of the conditions which he considered related to his compensable condition. The officer later sent a corrected letter recording that the reference to the “back impairment” was erroneous, and should have referred to “psychological impairment”.
12. Dr Carson subsequently completed the PI claim form. This referred to accepted conditions of “(a) allergic conjunctivitis; (b) stress/depression”. Dr Carson then described the permanent injury/impairments that he wished to claim for as follows:
“(a) eye irritation;
(b)skin irritation, reflux, headaches, eye disturbances, asthma, depression, bruxism.”
The doctor’s portion of the form referred to diagnoses of “Depression, Anxiety. GORD. Wide-spread eczema (skin irritation). Allergic conjunctivitis, blepharitis.”
13. A delegate of Comcare subsequently decided that Comcare was not liable for compensation for permanent impairment in respect of the conditions claimed. In a reviewable decision dated 26 September 2008, a Comcare review officer refused to reconsider Dr Carson’s claim for permanent impairment in relation to his accepted condition of depression, on the grounds that this had already been the subject of consideration by Comcare and this tribunal, and there was no new evidence in relation to that claim. The review officer also affirmed the primary determination to reject the claims for permanent impairment for allergic conjunctivitis, skin irritation and gastric condition (2009/4199, T54, page 270).
Parties’ contentions
14. Dr Carson contended that the PI claim and the NEL questionnaire should be read together, and that he had thereby claimed compensation for permanent impairment, not only from his depression, but also for additional conditions, namely his skin condition, gastric condition, eye irritation, bruxism and headaches, by lodging the PI claim form and the NEL questionnaire in 2000. Further, he contended that the letters to which I referred in paragraph 10 above (with the exception of the last letter) were provided to Comcare prior to the coming into force of the 2nd edition of the Guide, and that those letters, either by themselves or in combination with the PI claim form and the NEL questionnaire which he had lodged in the year 2000, constituted claims for compensation for permanent impairment from depression and his above additional conditions.
15. Comcare contended that the 2nd edition of the Guide applied to Dr Carson’s claim for compensation for permanent impairment. It was originally contended on behalf of Comcare, as I understood the argument, that Dr Carson had not made a valid claim for compensation prior to 28 February 2006, because he had not made a claim in accordance with the requirements of s 54(2) of the SRC Act. This section provides as follows:
“(2) A claim shall be made by giving the relevant authority:
(a)a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b)except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.”
16. Section 54(5) is an ameliorating provision, and provides as follows:
“(5)Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.”
17. It was further contended on behalf of Comcare that even if Dr Carson’s letters dated 27 August 2004, 16 May 2005 and 20 December 2005 amounted to claims for compensation for permanent impairment (because the letters constituted substantial compliance with s 54(2), as permitted by s 54(5)) none of the letters were accompanied with “a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare” as required by s 54(2)(b), and so did not constitute a valid claim for compensation for permanent impairment.
18. During the course of the respondent’s submissions, I had reservations as to whether s 54(2) should be interpreted to apply to claims for each potential head of compensation provided for in the SRC Act, as opposed to the initial claim for compensation which customarily results in a determination of whether liability exists. I accordingly requested particulars showing the date and manner of approval of each form approved by Comcare for the purposes of s 54(2)(a) and (b) of the SRC Act.
19. In subsequent written submissions, I was advised that Comcare considers that s 54(2)(a) only applies to claims for compensation lodged pursuant to s 14 of the SRC Act, and that Comcare accordingly withdrew its earlier submission that the compensation claim for permanent impairment form was an approved form for the purposes of s 54(2)(a). I was not provided with information as to approved forms (if any) under s 54(2)(b).
Consideration
20. Comcare’s revised submission is, I think, clearly correct. Section 54(1) requires a claim for compensation to be made “under this section”, and s 54(2) provides how the claim is to be made, that is, by giving the relevant authority a written claim in accordance with an approved form, as well as a medical certificate in an approved form. If (as Comcare has conceded) no form of claim for permanent impairment has been approved under s 54, that section could not be interpreted as requiring an employee to make a claim for compensation for permanent impairment. That interpretation is consistent with the approach of a Full Federal Court in Lees v Comcare (1999) 56 ALD 84, where Wilcox, Branson and Tamberlin JJ said:
“[30] It is clear that Pt V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act. The form approved by Comcare as required by s 54(2)(a) reflects the generic nature of a claim under the section. It is headed “Claim for Rehabilitation and Compensation”. It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.
[31] The claim, and the claim form, envisaged by s 54 of the Act reflects the practical reality that a claim for compensation is likely to be made relatively soon after the suffering of an injury, particularly if incapacity for work or significant medical expenses result from the injury. At the time that this initial claim is made it may be quite impossible for the employee to provide details of, for example, the fact or extent of any permanent impairment. For the reasons expressed below, the determination which is made on a claim, as required by s 54 of the Act, will ordinarily be a determination under s 14 of the Act.”
21. The SRC Act imposes liability on Comcare and licensed employers for different types of compensation, including not only compensation for permanent impairment, but also compensation in respect of property damage (s 15) and the cost of medical treatment (s 16), compensation for injuries resulting in death (ss 17 and 18), compensation for incapacity for work (s 19) and compensation for household and attendant care services (s 29).
22. The various sections of the SRC Act that provide for different types of compensation refer to Comcare being liable for compensation. They do not in terms require an employee to claim compensation. Nevertheless, even though as pointed out in Lees v Comcare (supra), the claim envisaged by s 54 is the initial claim that will ordinarily only lead to a determination of whether or not liability exists under s 14 of the SRC Act, I think that it is implicit in the scheme of the SRC Act that if an employee seeks a particular type of compensation provided for in the Act, he or she is required to make a claim that identifies the type of compensation claimed. The first of the functions of Comcare listed in s 69 of the SRC Act is “to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act” (emphasis added). Section 61 provides in effect that as soon as practicable after a determining authority makes a determination, it must serve on the “claimant” a notice in writing setting out the terms of the determination, the reasons for it, and a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration. The word “claimant” is defined in s 60(1) to mean “a person in respect of whom a determination is made”. The word “determination” is then defined by reference to particular sections that include the various sections that provide for the different types of compensation provided for in the SRC Act.
23. Insofar as claims for permanent impairment are concerned, it is also relevant to refer to the provisions of the Guide. This is made under s 28(1) of the SRC Act, and is a statutory instrument having the force of law. Clause 3 of the introduction to the 2nd edition of the Guide contemplates that if an employee is seeking compensation for permanent impairment (whether before or after 28 February 2006), he or she will make a claim under ss 24, 25 or 27 of the SRC Act.
24. I think that a claim would be sufficient if it identifies the particular type(s) of compensation that is sought, and it would not be necessary for the claimant to identify the particular sections in the SRC Act that provide for the type(s) of compensation being claimed. Further, I consider that claims for compensation should not be interpreted in a technical or narrow manner; to do so would be inconsistent with the beneficial nature of the SRC Act, and with Comcare’s responsibility under s 72(a) to be “guided by equity from a good conscience and the substantial merits of the case, without regard to technicalities”. I am mindful also of the comments of Madgwick J in Abrahams v Comcare (2006) 93 ALD 147 at [18] when he formulated propositions relating to the construction of documents purporting to be a notice of injury under s 53 of the SRC Act. These propositions included the following:
“2.In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.”
His Honour also pointed out in his first proposition that there was a likelihood that lay people of differing levels of education, differing levels of medical advice and different levels of legal advice (if any) would be giving notice of injury under s 53 of the SRC Act. The same comments apply to claims for compensation. Furthermore, claims are generally accompanied by supporting material such as medical certificates or accounts and receipts, and these can be used to interpret the type of compensation claim. In addition, if claims do not contain adequate information, Comcare can request further information of the claimant in the circumstances referred to in s 58 of the SRC Act.
25. In reaching my above conclusions, I have not overlooked remarks made by Wilcox J in Commonwealth v Ford (1986) 9 ALD 433 in a case involving a claim for compensation made under s 54 of the predecessor of the SRC Act, the Compensation (Commonwealth Government Employees) Act 1971 (Cth). His Honour said first, at 436, that that Act did not require that a claim for compensation should “specify the particular type of compensation sought by the employee; the claim is one for compensation under the Act”. His Honour’s above proposition accords with my above conclusion as to the proper interpretation of s 54 of the SRC Act. He went on to say that it was for the Commissioner then to determine the particular category or categories of compensation to which the employee was entitled and to determine accordingly, and he referred to the obligation of the Commissioner under s 20(1) of the 1971 Act, which was “to determine all matters and questions arising under this Act.”. That wording is broader than the terms of s 69 of the SRC Act, which, as I have said above, refers to Comcare’s functions as determining “claims and requests made to Comcare” under the Act. I think that when an initial claim for compensation is made, Comcare’s obligations under the SRC Act are to determine liability, and also to determine whether it is liable for any type(s) of compensation claimed, construing the claim broadly; but I do not think that Comcare is obliged thereafter to determine whether it is liable for some further type(s) of compensation under the SRC Act, in the absence of a further claim for some particular type(s) of compensation. That is not to say, however, that it should not do so in appropriate circumstances, as part of the continuum of its administrative decision-making functions, and in particular, it may of course review determinations on its own motion, pursuant to s 62 of the SRC Act.
26. In its supplementary submissions, Comcare also contended that a claim for permanent impairment needs to meet certain criteria as detailed in paragraph 13 of Comcare’s Jurisdictional Policy Advice 2005/10. This is a helpful policy document, but it was not suggested that it had any statutory authority. In any event, the provision on which this contention is presumably based, namely clause 16, provides in general terms for when claims are treated as having been received, and does not provide for the content of claims. I do not regard this document as helpful in resolving the issue before me.
Interpretation of asserted claims for compensation
27. As mentioned above, Dr Carson relies upon the separate statement sent to Comcare with the NEL questionnaire under cover of his letter dated 1 August 2000 to support his argument that he had thereby claimed compensation for permanent impairment for the conditions there referred to. I agree with his submission that this questionnaire and the statement related to the Claim for Permanent Impairment form which he had lodged in July 2000. The NEL questionnaire is clearly intended to require claimants to provide further information relevant to their claims for compensation for permanent impairment. The preface on page 1 of the questionnaire states expressly that the questions on the form “only relate to the effects of the impairment assessed under Part A of the Guide.” (2009/4199, T18, page 83). The questions under the headings in Section 1 correspond with the criteria contained in Table 1 of Part B of the Guide, the questions in Section 2 of the questionnaire correspond with the criteria contained in Table 2 of Part B of the Guide, the questions in Section 3 of the questionnaire correspond with the criteria contained in Table 3 of Part B of the Guide, and the doctor’s section in Section 5 of the questionnaire raises questions that correspond with Table 4 of Part B of the Guide. However, the PI form lodged by Dr Carson referred only to depression; and if the PI claim form and the statement accompanying the NEL questionnaire are read together and in association with a contemporaneous medical report, namely the report from Dr Davis dated 4 August 2000, the forms should in my opinion properly be construed as a claim for compensation for permanent impairment for Dr Carson’s depressive condition, and the references in the NEL questionnaire to other conditions or symptoms are descriptive of the consequences or effects of that condition. I do not think that the PI form or the statement accompanying the NEL questionnaire, either read together or reading the statement separately, should be interpreted as a claim for permanent impairment for the additional conditions or symptoms referred or alluded to in the statement.
28. I also consider that it is appropriate to interpret a particular claim for compensation in the light of the nature and status of other claims for compensation that the claimant might previously have made. I refer in this regard to Re Cavanagh and Comcare (2008) 106 ALD 143 at [30] where this tribunal said:
“We note that proposition No. 4 in the above extract from Abrahams contemplates the provision of a claim better explaining or better justifying a claim in respect of an injury in respect of which notice has been fairly given. Other material apart from the notice of injury may also assist Comcare to understand the claim being made or the injury that is asserted. This information should in all cases include the claim for compensation and any supporting medical certificate accompanying it, being matters contemplated by s 54 of the 1988 Act. In addition, in many cases such as the present, where a claim for permanent impairment is made some years after the original claim for an injury, there will often be a history of investigation and treatment. This may further explain the later claim, and so assist the decision-maker to interpret it, and to have a fair opportunity to investigate it.”
29. In the present matter, Dr Carson had claimed compensation for “eye irritation” on 24 March 1994, and his claim was at first accepted for “allergic conjunctivitis”. However, this decision was reversed in the light of a subsequent medical report, and Comcare decided that there was no entitlement to further compensation for this condition after 13 April 1994. After that decision had been affirmed on reconsideration, and after Dr Carson lodged an application for review with this tribunal, Comcare accepted liability by way of reconsideration of own motion for the condition of “allergic conjunctivitis” in a determination dated 1 March 1995. However (according to a reviewable decision in relation to this condition made many years later, on 31 July 2009), Comcare’s records indicate that Dr Carson did not make any claims for medical treatment in relation to his accepted claim for allergic conjunctivitis from 1994 until September 2005 (2009/4193, T1, page 5). It also appears from the material before me that Comcare has not paid for any medications for reflux (2009/4199, T20, page 99), but as against this, I infer from this same document (T20) that Comcare had paid for medication for skin rashes and itching, and for dental treatment due to the grinding of teeth (or bruxism) (although the position as to bruxism is not altogether clear, and it may be that Comcare did not formally accept liability for bruxism until it made the determination of 1 May 2009 (2009/4199, T61, page 294)). The medical report from the doctor who is referred to in the letter from Dr Carson enclosing the NEL questionnaire indicates that some of the physical complaints that are referred to in the questionnaire, namely dermatitis, reflux oesophagitis, headaches and bruxism, were a consequence of his emotional state, but other symptoms such as visual disturbance, hearing loss, hip and knee pain, chest pain and shortness of breath, could not be attributed to his psychological disorder (2009/4199, T19, page 92). Whilst there may be cases where claims could be made for permanent impairment for conditions for which liability has not been accepted (as explained in Cavanagh (supra) at [31]-]33]), the fact that in the present matter there had not been an unequivocal acceptance of liability for all or some of the additional claims for compensation for permanent impairment is relevant to the proper interpretation of the PI claim form and the NEL questionnaire and accompanying statement. Comcare had accepted liability for Dr Carson’s depressive condition. It interpreted the questionnaire and statement not as a separate claim for compensation for permanent impairment in respect of the various conditions and symptoms listed, but as a document that provided further information as to the effects and consequences of the depressive condition for which liability had been accepted, and which was the subject of the permanent impairment claim expressly referred to in the PI claim form lodged on 6 July 2000. I think that Comcare’s interpretation was correct.
30. I also consider that even giving the letters which Dr Carson sent to Comcare in 2004 and 2005 a generous interpretation, they should not, either individually or in combination, reasonably be construed as a claim for compensation for permanent impairment. In each case the letters referred to various receipts for which reimbursement was claimed. As Comcare submitted, the letters did not identify particular injuries that were asserted to be permanent, or refer to the extent of any permanent disabilities arising from any such conditions. The first letter, of 27 August 2004, contains an inquiry as to why the delegate did not use other Tables of the Guide when assessing non-economic loss. That was followed by the three letters in 2005 in which Dr Carson in effect asserted that the assessment was wrong and stated that he wished the error to be corrected. That “wish” was apparently interpreted by Comcare at the time (and again I think, correctly) as an expression of Dr Carson’s continuing concern about the outcome of the claim for compensation that he had made in 2000.
Jurisdiction of tribunal in the present proceedings
31. Even if (contrary to my interpretation) the claims made by Dr Carson in the statement accompanying the NEL questionnaire, or in the correspondence in 2004 and 2005, constituted claims for compensation for permanent impairment for the additional conditions, it would not be competent for me in the present proceedings to determine whether Comcare is liable for compensation for permanent impairment for those conditions so claimed. That is because this tribunal’s jurisdiction is to review reviewable decisions made by Comcare (Lees v Comcare, supra) and Comcare has not made any decision in relation to any such claims for permanent impairment. The tribunal has no jurisdiction to review a failure to make a decision (as opposed to a refusal to make a decision), in the absence of a deeming provision equating a failure to decide, with a negative determination, even if there is an express or implied duty to make a decision: see Comcare v Sassella (2001) 34 AAR 142 at [26]-[27], and D.C. Pearce, Administrative Appeals Tribunal (2nd Edition, 2007) at [2.23].
Decision
32. The tribunal decides that Dr Carson’s claims for eye irritation, skin irritation, reflux, headaches, eye disturbances, asthma, bruxism, and depression and anxiety are to be determined according to the 2nd edition of the Guide to the Assessment of the Degree of Permanent Impairment.
I certify that the 32 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G Jarvis... [Signed] ...
Associate
Date/s of Hearing 6 December 2010
Date of Decision 17 February 2011Date of receipt of final
submission 10 January 2011
Applicant In person
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Australian Government Solicitor
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