Dept of Defence] - [2002] AATA 383

DECISION AND REASONS FOR DECISION [2002] AATA 383

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1067

GENERAL ADMINISTRATIVE DIVISION       )
           Re      William Watts
  Applicant
           And    Comcare (Department of Defence)
  Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date24 May 2002
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  RP Handley
  Deputy President
CATCHWORDS
COMCARE - Department of Defence – issue of jurisdiction – whether the Tribunal has jurisdiction in respect of a determination made pursuant to the Safety Rehabilitation and Compensation Act 1988 – held that the Tribunal does not have jurisdiction – held that the applicant has not established sufficient grounds for the Tribunal to exercise discretion to grant an extension of time to lodge an application for re-determination – decision under review affirmed.
Commonwealth Employees Compensation Act 1930
Compensation Commonwealth Employees Act 1971
Safety Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 60(1), 62(3), 64(1)
Lees v Comcare (1999) FCA 753
Re Carson and Telstra Corporation [2001] AATA 648
Re Denison-Smith and Comcare [2000] AATA 553

REASONS FOR DECISION

24 May 2002 RP Handley

This matter involves an application by William Watts ("the Applicant") for a review of a decision of a delegate of Comcare (Department of Defence) ("the Respondent") made on 25 June 2001 refusing to accept a request for reconsideration of a determination dated 1 December 1989 on the ground that the decision failed to comply with s 62(3) of the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act"). At the hearing, the Applicant was represented by John Fitzgerald, of Counsel, and the Respondent was represented by John Wallace, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Oral evidence was given by the Applicant.
BACKGROUND
Mr Watts was born on 25 September 1945 and is aged 56. He enlisted in the Army to undertake National Service on 2 February 1966. On an Army Medical Examination Record dated 4 November 1965, it was noted that Mr Watts suffered from osteochondritis of the spine and "Painful back for four years – still painful. Has worn brace".
On or about 28 March 1966, Mr Watts suffered back pain during recruitment training at Singleton and was hospitalised from that date until 13 May 1966. A Hospital Discharge Summary recorded "X-Rays show clear cut osteochondritis" and recommended that he was unfit for strenuous use of his back. He was discharged to wear a back brace, continue exercises and undertake sedentary duties. Mr Watts was medically discharged from the Army on 6 December 1966. His Final Medical Record records that he was "Below Entry Standard" and confirmed a history and treatment of Scheuermann's Disease requiring that he "wear back brace at all times".
On 21 May 1986, Mr Watts claimed compensation for Injury to the back involving the "lumbar spine". He attributed this to strenuous activity during recruit training in about March 1966.
On 1 December 1989, a delegate of…

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.

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Details

AGLC: Dept of Defence] [2002] AATA 383
Case: [2002] AATA 383
Decision Date: 24 May 2002

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved an application by William Watts, the applicant, for a review of a decision by a delegate of Comcare, the Department of Defence, dated 25 June 2001. The decision in question refused to accept a request for reconsideration of a determination made on 1 December 1989, which was alleged to have failed to comply with section 62(3) of the Safety Rehabilitation and Compensation Act 1988. The applicant sought to challenge the jurisdictional scope of the Tribunal in relation to the 1989 determination and to argue for an extension of time to lodge an application for re-determination. The Tribunal had to determine whether it possessed the jurisdiction to hear the applicant's application and whether there were sufficient grounds to grant an extension of time.

The primary legal issue the Tribunal addressed was whether it had the jurisdiction to hear the applicant's application for review of the 1989 determination. The applicant contended that the Tribunal had jurisdiction over the matter, particularly as the 1989 determination was a primary decision on his claim for incapacity payments and not a denial of liability by Comcare. The applicant argued that the decision dated 1 December 1989 was a substantive determination on liability, which was not affected by any "cease effects" decision on incapacity. Furthermore, the applicant sought an extension of time to lodge his application for re-determination, arguing that he had been misled by Comcare's reconsideration of the 1989 decision. The Tribunal also had to consider whether the applicant had established sufficient grounds for the Tribunal to exercise its discretion to grant an extension of time.

In its decision, the Tribunal concluded that it did not have jurisdiction over the 1989 determination, as it did not fall within the scope of the Tribunal's powers under the Administrative Appeals Tribunal Act 1975. The Tribunal noted that the 1989 determination was a decision made under the Safety Rehabilitation and Compensation Act 1988 and that such decisions were generally not subject to the Tribunal's jurisdiction. The Tribunal found that the applicant had not established sufficient grounds for the Tribunal to exercise its discretion to grant an extension of time to lodge an application for re-determination. Consequently, the Tribunal affirmed the decision under review.

In light of the Tribunal's findings, it affirmed the decision of the delegate of Comcare dated 25 June 2001, which refused to accept the request for reconsideration of the 1 December 1989 determination. The Tribunal held that it did not have jurisdiction to hear the applicant's application for review of the 1989 determination, and therefore, the decision was affirmed. Additionally, the Tribunal rejected the applicant's request for an extension of time to lodge an application for re-determination, as the applicant had not demonstrated sufficient grounds for such an extension.

Orders

Orders of the court

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Background

Background to the litigation

This matter involves an application by William Watts ("the Applicant") for a review of a decision of a delegate of Comcare (Department of Defence) ("the Respondent") made on 25 June 2001 refusing to accept a request for reconsideration of a determination dated 1 December 1989 on the ground that the decision failed to comply with s 62(3) of the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act"). At the hearing, the Applicant was represented by John Fitzgerald, of Counsel, and the Respondent was represented by John Wallace, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Oral evidence was given by the Applicant. BACKGROUND Mr Watts was born on 25 September 1945 and is aged 56. He enlisted in the Army to undertake National Service on 2 February 1966. On an Army Medical Examination Record dated 4 November 1965, it was noted that Mr Watts suffered from osteochondritis of the spine and "Painful back for four years – still painful. Has worn brace". On or about 28 March 1966, Mr Watts suffered back pain during recruitment training at Singleton and was hospitalised from that date until 13 May 1966. A Hospital Discharge Summary recorded "X-Rays show clear cut osteochondritis" and recommended that he was unfit for strenuous use of his back. He was discharged to wear a back brace, continue exercises and undertake sedentary duties. Mr Watts was medically discharged from the Army on 6 December 1966. His Final Medical Record records that he was "Below Entry Standard" and confirmed a history and treatment of Scheuermann's Disease requiring that he "wear back brace at all times". On 21 May 1986, Mr Watts claimed compensation for Injury to the back involving the "lumbar spine". He attributed this to strenuous activity during recruit training in about March 1966. On 1 December 1989, a delegate of the Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees admitted liability under the Act for "AGRAVATION OF A DISEASE NAMELY PRE-EXISTING BACK INJURY" sustained in the course of his employment by the Department of Defence on 28 March 1966, for which the Department would have been liable to pay compensation under the Commonwealth Employees Compensation Act 1930 ("the 1930 Act"). However, the delegate determined that liability ceased in respect of that aggravation on and from 14 November 1989. The delegate relied on a report by Dr Maurice P Cleary, Consultant in Occupational and Rehabilitation Medicine, dated 14 November 1989. Dr Clearly diagnosed Mr Watts as suffering from a well-established constitutional spinal disorder, Osteochondritis juvenilis (Scheuermann's disease). He said: The natural history of Scheuermann's disease is normally for complete resolution of symptoms in youth with no further disabilities in later life. Occasionally osteoarthritic changes in the thoraco-lumbar spine do occur and, in this case, these are well-defined radiologically.These post-Scheuermann's osteoarthritic changes are the major factors responsible for Mr Watt's continuing back pain…There is now radiological evidence of a lumbar spine intervertebral disc prolapse. It was not noted or recorded at the time of discharge and may have occurred subsequently as a later complication of a pre-existing constitutional spine abnormality or as part of a normal degenerative process.

Evidence

Evidence Before The Court

The issue for the Tribunal in this matter is whether the Tribunal has jurisdiction to hear Mr Watts' application. EVIDENCE Mr Watts said he was conscripted into the Army having undergone a medical examination at Parkes on 4 November 1965. At that examination, he advised the medical officer that he had been diagnosed as suffering from osteochondritis, had had a painful back for approximately four years, and had worn a brace for about the same time. However, he said at the time of the medical examination, he was not worried about his back. Mr Watts commenced his recruit training at Singleton Army Base on 2 February 1966. He was admitted to hospital six to seven weeks later having woken one morning and been unable to straighten up. This followed his having previously jarred his back after participating in an exercise. Mr Watts said that he has mostly been self-employed since being discharged on 6 December 1966. He operated a milk run for a few years until the back pain stopped him doing this. In 1985, he ran a fruit shop but was unable to manage the lifting and carrying involved. Since about August 1987, a particular problem has been pain and numbness in his lower right leg. This has gradually worsened, so that lifting his right leg now gives him pain in the lower back and numbness going down that leg. He has learned to be careful not to jar his leg and can walk on the flat with care for up to about one kilometre. Mr Watts said that he believed that Comcare had agreed to liability in respect of his condition in 1989. He remembered saying to his wife that at least he was covered if he had other back related problems in the future. He did nothing further about his back until 1999 when he contacted a representative of his solicitors after speaking to a returned serviceman. With respect to whether or not the Tribunal has jurisdiction in this matter, Mr Fitzgerald, for the Applicant, emphasised that all Mr Watts' early claims for compensation before 1989 were in respect of his incapacity for work. Mr Fitzgerald submitted that the decision dated 1 December 1989 was a primary decision on Mr Watts' claim for incapacity payments. It was not a denial of liability by the Respondent. The claim lodged by Mr Watts on 25 November 1999 was a claim for compensation in respect of permanent impairment and medical costs and not in respect of incapacity. Mr Fitzgerald noted that a delegate at first accepted liability but then, of its own motion, undertook a reconsideration of the decision dated 1 December 1989. Mr Fitzgerald submitted that the Applicant had been mislead by the Respondent and drew attention to the delay between the Applicant's apparent acceptance of the claim on 14 December 1999 and its reconsideration decision dated 25 June 2001. Mr Fitzgerald drew the Tribunal's attention to the similarities between Mr Watts' situation and the facts of Re Carson and Telstra Corporation [2001] AATA 648, where the Tribunal held that, pursuant to Lees v Comcare (1999) FCA 753, a "cease effects" decision on incapacity did not affect the substantive determination on liability

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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