David Kotevski and Telstra Corporation Ltd
[2012] AATA 136
•5 March 2012
[2012] AATA 136
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4725
Re
David Kotevski
APPLICANT
And
Telstra Corporation Ltd
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Date 5 March 2012 Place Sydney Decision Summary: The Tribunal has jurisdiction in relation to the Applicant’s claim for compensation in respect of hearing aids.
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Deputy President R P Handley
CATCHWORDS
COMPENSATION – noise exposure – industrial deafness – claim for compensation – whether claim for compensation included hearing aids – JURISDICTION – jurisdiction of Tribunal – whether failure on part of decision-maker to consider a portion of the Applicant’s claim enlivens Tribunal’s jurisdiction – meaning of ‘decision’
LEGISLATION
Freedom of Information Act 1982 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
CASES
Durham and TNT Australia Pty Ltd (2011) 124 ALD 136
Edebone and Comcare [2000] AATA 937
Irwin v Military Rehabilitation Commission (2009) 174 FCR 574
Re Filewood and Comcare (1999) 58 ALD 314
Stafford v Repatriation Commission (1995) 36 ALD 578
REASONS FOR DECISION
Deputy President R P Handley
5 March 2012
Mr Kotevski (the Applicant) applied to the Tribunal for the review of a decision made by Telstra Corporation Ltd (the Respondent) to refuse his claim for compensation made under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act). The present decision and Statement of Reasons is concerned with a jurisdictional issue raised by the Respondent.
BACKGROUND
Mr Kotevski, who is now aged 60, worked for the Respondent from 4 June 1970 until 22 November 2001. On 2 December 2010, he lodged a claim for workers compensation in respect of industrial deafness caused by exposure to noise over the course of his employment. The letter to the Respondent’s then workers compensation insurer, Allianz Australia Insurance Limited (Allianz) from Mr Kotevski’s solicitors, dated 2 December 2010, states: “Our client claims lump sum compensation in respect of a 5% whole person impairment together with the provision of hearing aids”. [Emphasis added] Accompanying the claim was a quotation, dated 16 November 2010, from the Australian Hearing and Balance Centre for the supply of binaural hearing aids, together with a report from Dr Kenneth Howison, Ear Nose and Throat (ENT) Surgeon, dated 26 October 2010, which stated: “The only means of improving this hearing loss is the use of bilateral digital hearing aids and I recommend he obtain these aids”.
At the request of the Respondent, Mr Kotevski was assessed by Dr Leon Gillam, ENT Surgeon, who in a report dated 12 April 2011, said: “I recommend a hearing aid trial of BTE [behind-the-ear] bilateral hearing aids which are required as a result of his noise exposure whilst employed by Telstra”. On 4 May 2011, Allianz accepted liability to pay compensation to Mr Kotevski “in respect of hearing loss sustained on in (sic) the course of your Telstra employment”. The delegate relied on the assessments of Dr Howison and Dr Gillam in making her decision.
On 10 May 2011, Mr Kotevski’s solicitors requested that his compensation in respect of permanent impairment be paid in accordance with Dr Gillam’s assessment of a 12.8% binaural hearing loss and enclosing a non-economic loss questionnaire.
By letter dated 25 July 2011, the Respondent (now a self-insurer for workers compensation purposes) found that a total of $2,993.81 in compensation was payable for hearing loss that became permanent before 1 December 1988, but that there was no entitlement to compensation for the period between 1 December 1988 and 22 November 2001, because the hearing loss that occurred during that period was under the threshold for the payment of compensation in s 24 of the SRC Act.
This letter appears to have crossed with Mr Kotevski’s solicitors’ letter to Allianz, dated 2 August 2011, later faxed by Allianz to the Respondent on 13 August 2011, but not stamped as being received by the Respondent until 23 August 2011. This letter enclosed:
·a non-economic loss questionnaire completed by Dr Howison;
·a Comcare form used for detailing the aids or appliances required for an employee (this form, included in the Tribunal documents, was completed on 21 July 2011 by Mr Kotevski’s general practitioner, Dr S R Fischer, stating that “hearing aids (bilateral)” are required for “industrial deafness”);
·a hearing aid quote from St George Hearing and Balance Clinic for $10,000 including a five year warranty; and
·a compensation claim for permanent impairment form signed by Mr Kotevski and his general practitioner.
By letter dated 31 August 2011, Mr Kotevski’s solicitors requested a review of the decision dated 25 July 2011, stating that the decision was wrong; the Applicant was entitled to compensation for his hearing loss; and the 10% impairment threshold did not apply to the Applicant’s claim. On 9 September 2011, the Respondent affirmed the decision of 25 July 2011. On 3 November 2011, the Applicant lodged an application for a review of the decision with the Tribunal.
During the Tribunal’s pre-hearing conferencing process, it became clear that the Applicant was unlikely to continue with his challenge to the decision with regard to lump sum compensation. However, the Applicant wished to proceed with the review in relation to the claim for hearing aids. The Respondent objected, contending that the Tribunal was without jurisdiction. The issue of jurisdiction was therefore referred for determination.
SUBMISSIONS
Mr Hill, for the Applicant, submitted that the Tribunal has jurisdiction, referring to the Tribunal’s decision in Re Filewood and Comcare (1999) 58 ALD 314, which was followed in Edebone and Comcare [2000] AATA 937. In Re Filewood (at 315), the Tribunal found that although the delegate did not make a decision on a claim for incapacity payments, this was a matter which:
… was quite clearly before her, and consequently it is a matter which was before the delegate upon review … upon which a ruling should have been made. In these circumstances it is a matter which is properly before me; …
Ms Fisher, for the Respondent, submitted that the Tribunal is without jurisdiction because the reviewable decision (dated 9 September 2011) did not deal with the Applicant’s claim in respect of hearing aids. She referred to the recent decision in Durham and TNT Australia Pty Ltd (2011) 124 ALD 136 where Jagot J stated:
51. It will be apparent from the discussion above that, in conducting a review under s 64 of the Act, the Tribunal’s jurisdiction does not depend on the respondent’s characterisation of the applicant’s claim. Rather, the Tribunal must assess for itself the true scope of the claim and is empowered to conduct its review on that basis.
52. This is not to say that the jurisdictional preconditions set out in the Act (and identified by the respondent in its submissions) are dispensed with where the Tribunal’s characterisation of an applicant’s claim differs from that of the respondent. In such a case, it must be understood that the claim itself – interpretive issues aside – has been the subject of a determination, an application for reconsideration, a reviewable decision and an application to the Tribunal, and that the Tribunal’s jurisdiction under s 64 has therefore been enlivened.
Ms Fisher also said that earlier on the morning of the hearing, she had been notified that the Respondent had (that same morning) made a decision accepting the Applicant’s claim in respect of bilateral hearing aids, although the terms of that decision were not yet available.
DISCUSSION
As liability in respect of Mr Kotevski’s injury under s 14 of the SRC Act having been accepted by the Respondent, it is clear that the Applicant’s claim for hearing aids was before the original decision-maker. All the evidence supported the need for hearing aids, and a quotation had been obtained and provided to the Respondent with other required documentation. Nevertheless, that claim was overlooked and the decision-maker failed to address that part of the claim in making her decision.
Section 60(1) of the SRC Act states that the word ‘decision’ has the same meaning as in the Administrative Appeals Tribunal Act 1975 (the AAT Act). Section 3(3) of the AAT Act provides a non-exhaustive list of what may constitute a ‘decision’. This includes refusing to make an order or determination. In Mr Kotevski’s case, Telstra did not refuse to make a determination – it failed to do so. In some legislation, provision is made for treating a failure to make a determination within a specified time as a deemed decision: for example, under s 54D of the Freedom of Information Act 1982. There is no such provision in the SRC Act. Given that s 3(3) of the AAT Act provides a non-exhaustive list of what may constitute a ‘decision’, a failure to address a part of the claim in the decision in circumstances where another part of the claim has been determined, should, in my view, be regarded as a part of the overall decision, thereby enlivening the reconsideration and review provisions in the SRC Act.
Furthermore, in Irwin v Military Rehabilitation Commission (2009) 174 FCR 574, at [20], the Full Federal Court, in an appeal relating to a decision under the Military Rehabilitation and Compensation Act 2004, noted that dealing separately with the issues of liability and compensation would “not seem to include the expeditious determination of claims”. In that case, at [23], the Court said that “the tribunal remains seized of jurisdiction to determine both matters”.
In my view, the situation in this case, while different in so far as liability is not in issue, is similar to the extent that the decision-maker did not deal fully with the Applicant’s claim for compensation. Here the decision-maker failed to deal with the second part of the compensation claim, being the Applicant’s claim for hearing aids. As stated above, the claim for hearing aids was, nevertheless, before the decision-maker, and all the required documentation had been lodged. The reconsideration delegate should have recognised this and addressed this in her decision pursuant to the request for reconsideration made under s 62 of the SRC Act. While noting that the Applicant’s solicitors’ letter dated 31 August 2011 requesting the reconsideration of the delegate’s decision, did not specifically refer to the claim in respect of hearing aids, the letter did, however, state, “We request that you review your decision in relation to our client’s claim”, and the first stated reason for the request was that “The decision is wrong”. In my view, the reconsideration delegate was required to examine the totality of the Applicant’s claim and that should have been the starting point in her reconsideration. I agree with the decision that Senior Member Allen made in Re Filewood and Comcare on this issue.
The fact that the reconsideration delegate did not deal with the totality of the Applicant’s claim does not deprive the Tribunal of jurisdiction to review the failure to make a decision on what was clearly a part of the claim. For the Tribunal to be deprived of jurisdiction would, as in Irwin, undermine the expeditious determination of the claim. Similar comments were made by Northrop J in Stafford v Repatriation Commission (1995) 36 ALD 578, at 585, as to the undesirability of enabling an appeal to be made to one part of a decision but not with regard to another part of the decision, which would otherwise encourage a multiplicity of appeals.
I also note Jagot J’s comments in Durham and TNT, at [51], quoted above, referring to s 64 of the SRC Act, that “the Tribunal must assess for itself the true scope of the claim and is empowered to conduct its review on that basis”. In Mr Kotevski’s case, a reviewable decision has been made, and notwithstanding that this was flawed, the Tribunal’s jurisdiction under s 64 is enlivened.
DECISION
The Tribunal has jurisdiction in relation to the Applicant’s claim for compensation in respect of hearing aids.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley.
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Associate
Dated 5 March 2012
Date of hearing 20 February 2012 Date final submissions received 20 February 2012 Counsel for the Applicant D Hill Solicitors for the Applicant WG McNally Jones Staff Lawyers Advocate for the Respondent N Fisher Solicitors for the Respondent Curwoods Lawyers
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