Comcare v Administrative Appeals Tribunal

[2007] FCA 1132

FEDERAL COURT OF AUSTRALIA

Comcare v Administrative Appeals Tribunal [2007] FCA 1132

ADMINISTRATIVE LAW – judicial review – grounds of review – whether Administrative Appeals Tribunal had jurisdiction to consider reformulated claim as to employment injury – whether claim for psychosomatic injury could be investigated following initial claim for organic injury – no practical advantage to applicant from relief sought  

Held: Declined to exercise discretion to grant relief even if otherwise justified.

Abrahams v Comcare (2007) 93 ALD 147 applied

COMCARE v ADMINISTRATIVE APPEALS TRIBUNAL AND BERRIN KOSE
ACD 11 OF 2007

MADGWICK J
24 JULY 2007
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 11 OF 2007

BETWEEN:

COMCARE
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

BERRIN KOSE
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	24 JULY 2007
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondents’ costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 11 OF 2007

BETWEEN:

COMCARE
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

BERRIN KOSE
Second Respondent

JUDGE:	MADGWICK J
DATE:	24 JULY 2007
PLACE:	CANBERRA

REASONS FOR JUDGMENT

HIS HONOUR

1. This is an application for relief under the Judiciary Act1903 (Cth) directed against the Administrative Appeals Tribunal (“the Tribunal”), seeking an order in the nature of certiorari setting aside a decision of the Tribunal of 13 March 2007 that it had jurisdiction to consider a claim by an ACT public servant in respect of a claimed injury being “pain in the right wrist region, the right arm, generally, the right shoulder and the right neck, caused by [a] somatic pain syndrome … secondary to [an] accepted mental illness [of anxiety disorder]”.

2. The injured worker, Dr Kose was an epidemiologist employed by the employer authority known as ACT Health, where she was employed for about ten months from mid 2002.  This case arises out of a claim for compensation that she made on 18 October 2004, using, as the Tribunal said, a form required by Comcare, the applicant before me.  The form, among other things, posed the following questions to which Dr Kose gave the following answers:

   What injury or illness are you claiming compensation for? 
   Ganglion (right wrist).

   What part(s) of your body has been most affected by your injury or illness? 
   Right wrist.

3. It seems that before October 2004, Dr Kose had made a claim for anxiety disorder, which Comcare had accepted and, at all relevant times, it was paying her weekly payments for incapacity for work. 

4. At the time she made the claim referring to “ganglion”, Dr Kose’s medical advice was that she had a ganglion on the right wrist, that it should be excised, surgically, and that it was related to her work, which included a deal of typing on a computer.  Comcare initially accepted her claim, but suffered itself to be asked to undertake a review of its decision by the employer authority, which Comcare treated as being an “affected” Commonwealth authority within the meaning of s 62(2) of the Safety Rehabilitation & Compensation Act 1988 (Cth).  It has not been argued before me that ACT Health was not relevantly so affected.  Comcare accordingly, at the request of ACT Health, arranged one of its reviewing officers to review the decision to compensate Dr Kose in respect of the ganglion on right wrist claim.

5. Comcare made available to Dr Kose an argumentative letter from ACT Health, in response to which she put in certain material.  This included a report of a psychologist, Ms Pam Connor, dated 30 June 2004, which included the following:

   Ms Kose currently presents with symptoms of extreme anxiety - many of these of a somatic nature.  Ms Kose has described to me ... pains in her joints (in particular her right arm and wrist ) ... especially when in the workplace...

6. Dr Kose also claimed in the letter that a “bump” in her wrist appeared in March 2003, following pain in the right wrist and arm, which had commenced earlier that month.  She also said, under the heading, “Medical research”:

   My situation is that I was working extremely long hours, up to 10 hours a day for the first six months at work, and during the following months approximately 8.5 hours a day.  I have no other medical illnesses or any other injury that may cause Ganglion.  Therefore, my Ganglion is caused by my excessive use of keyboard, and as I mentioned in my claim forms, by improper equipment I was using.  In my situation, the connection is clear.

   (Emphasis in the original)

7. In the course of purportedly correcting an alleged exaggeration by ACT Health of the number of workers’ compensation claims she had lodged, Dr Kose said:

   I have lodged only three claims so far:

   1.        Anxiety Disorder

   2.        Soft tissue injury

   3.        Ganglion.

   Initially, I made only two lodgements.  I added my Ganglion claim into my “Anxiety Disorder” application.  However, I was informed by Comcare that I should not add Ganglion to my previous claim.  So, I made a separate claim for Ganglion, my third claim.

8. It is common ground that the reference to a soft tissue injury was a reference to an alleged soft tissue injury to her lower back, and has no bearing whatever on the present matter or any claim that might have any relation to the present matter. 

9. The best inference that can be drawn from this is that informally, and without a formal determination, she was advised by the Comcare officer to bring a separate claim for the ganglion, no doubt in the context that what was principally concerning her was that she should have medical expenses in relation to relief for ganglion/right wrist and lower arm discomfort.  It seems that those expenses are principally for physiotherapy, and at that time, there was a prospect of the expense of an operation for the ganglion.

10. Before the review officer determined the matter, she arranged a medical assessment of Dr Kose by Dr Stevenson, a consultant physician, and Dr Kose saw him on 27 April 2005.  He reported to Comcare that, after starting work with ACT Health, Dr Kose “began to get pain in the right forearm, upper arm, and right side of the neck”, and, she “indicated the development of pain on the extensor aspect of the right wrist, apparently related to typing, and indicated to be on the radial flexor tendon.”

11. Dr Stevenson confirmed the history of Dr Kose’s having, in March 2003, noted a lump over the radial flexor tendons of the right wrist.  She complained at the present time that the pain was “unbearable,” and “[s]he indicated pain to the right shoulder and the neck”.

    Dr Stevenson considered that she had a ganglion, but that it was idiopathic and unrelated to her work.  He also said:

    There is also considerable complaint of arm pain which appears non-specific and not localised to the ganglion, going into the neck … Arm pain is recognised as common in persons who are depressed or in situations of distress.  It is likely that these symptoms have a more non-physical basis. 

    Counsel for Dr Kose told the Tribunal that she was seeking compensation for an injury which he described as “[p]ain in the wrist region and the arm generally … caused by the somatic chronic pain syndrome that is secondary to the accepted illness.”

    By “the accepted mental illness” counsel was referring to anxiety disorder. 

12. Comcare thereupon asserted that, since this claim had been in relation to a ganglion, or, at best, in relation to something concerning an injury to the right wrist or lower right arm, and on an organic basis, the Tribunal had no jurisdiction to investigate either claims of psychosomatic injury or symptomatology extending into the shoulder and neck.  The Tribunal rejected Comcare’s submissions on the basis that, by the time the reconsideration officer made her decision on 25 May 2005, it was clear that, in substance, a claim such as her counsel adumbrated before the Tribunal had been “included.”

13. The Tribunal referred to Dr Kose’s enclosure of a report of Ms Connor, and to notice of the complaints of pain in the arm, shoulder and neck, as provided in the report of Dr Stevenson to Comcare. The Tribunal held that once it was established that the claim for right arm, shoulder and neck pain, as a claim separate from the ganglion, was “before the reconsideration officer,” the Tribunal had jurisdiction, upon review, to decide upon the claim, because the Tribunal had power, under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to “exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”, and the reconsidering officer had the power to accept the claim as recast.

14. The Tribunal thought the matter fell squarely within “the principles set out by the Federal Court in the Abrahams decision.”  This was a reference to a decision in Abrahams v Comcare (2007) 93 ALD 147. In Abrahams, I said, at [18]:

    1.In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.

    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.

    3.The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given. 

    4.Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.

    5.There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration.  In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.

15. Quite apart from the absence of a bright dividing line, this case is further complicated by reason of the following further events.   As indicated, Dr Kose has had an accepted claim for psychological incapacity.  Comcare suggests that the exact condition recognised is “an adjustment reaction with mixed emotional features”;  a claim originally accepted in 2001.  On 8 May 2006, no doubt upon legal advice, Dr Kose lodged a further claim for compensation for “somatoform pain disorder/regional pain disorder with anxiety and depression,” a claim denied by Comcare both initially and upon reconsideration.  On 30 May 2007, Dr Kose lodged an application for review by the Tribunal of that denial – the operative date of which seems to be 10 May 2007, the date of the internal review decision.  It appears that Dr Kose’s legal advisors have arranged that her claim in respect of that 2007 decision will be heard at the same time as the subject claim. 

16. Counsel for Comcare was unable to suggest any practical result of significance to his client from the present litigation before me, given those last-mentioned events.  Comcare, however, sees the need for a minimum degree of orderliness in the processing of claims and points out here that the subject claim, until the very heel of the hunt, before Comcare’s reconsideration of the matter, appeared (1) to be confined to the lower portions of the right upper limb; (2) to be organically based and; (3) principally to be about treatment given for a physically-based condition, and operative treatment proposed, for such a condition.  Comcare further points out that, although there were references to possible pain elsewhere and possible psychosomatic explanations for it, Dr Kose, an educated applicant, seems to have been at pains not to rely on psychosomatic factors in relation to the instant claim.

17. It appears that nobody explored in detail, before the Tribunal, though the matter was mentioned before me, the circumstances in which Dr Kose was apparently talked out of seeking to have her claims in respect of the ganglion assessed as falling within Comcare’s liability for her accepted psychosomatic injury. 

18. For Dr Kose, it is said that there is nothing more common than that medical diagnoses develop with time; that pain in her right upper limb, including up to the shoulder and even into the neck, was notified to Comcare and the prospect of a psychological explanation for a person with an accepted work-related psychological disability was such as to put Comcare on ample notice of the need to assess whether the claimed injury could not have, in whole or in part, been explained by work-related psychological factors. 

19. I refer to what I said in Abrahams 93 ALD at [18] and set out in para 14 above, in particular point number 5.

20. In my opinion, there is something to be said in support of both points of view as to which side of the dim dividing line this case would fall on.  However, as there is no practical result of significance that could occur in the instant case, given the events which have otherwise happened, I do not think it helpful to embark on the matter, and I think that indeed, in the discretion of the Court, I should refrain from giving the relief sought, even if Comcare would otherwise be entitled to it. 

21. I make clear, for the benefit of the Tribunal, that the result is that the Tribunal should proceed on the basis that the decision that it made is correct, even though I have not ruled that that is so.  In any case the Tribunal will have to decide the substance of the matter by reason of the second application for review now before it (and referred to in para 15).  If, at the end of the day, once the Tribunal has dealt with the substance of the matter, Comcare should take the position that there would be some practical injustice to it as a result of that jurisdictional decision of the Tribunal, Comcare can, of course, exercise such rights it may have to “appeal” to this Court on a question of law involving that jurisdictional matter.

22. I appreciate that Comcare does not seek any order for costs against Dr Kose, nor has it prolonged this matter.  However, as it has failed, costs should follow the event. 

23. The application will be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:        1 August 2007

Counsel for the Applicant:	Mr B Dubé
Solicitor for the Applicant:	DLA Phillips Fox
Counsel for the Second Respondent:	Mr A Anforth
Solicitor for the Second Respondent:	Elrington Boardman Allport
Date of Hearing:	24 July 2007
Date of Judgment:	24 July 2007