Deputy President S A Forgie
[2010] AATA 1072
•16 December 2010
CATCHWORDS – COMPENSATION – military compensation – extension of time within which to lodge application for review of decision – application refused.
COMPENSATION – military compensation – whether determining authority may refuse to consider claim on basis that the matter has previously been determined – doctrines of res judicata, cause of action estoppel, issue estoppel and Anshun estoppel not relevant - determining authority obliged to consider and make a decision on fresh claim.
Australian Postal Commission v Oudyn [2003] FCA 318; (2003) 73 ALD 659 at [33]; 667
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84; (1999) 29 AAR 350
Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679
Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696
Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; 48 AAR 385; 104 ALD 595
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1
Yuill v Yuill [1945] P 15
Administrative Appeals Tribunal Act 1975, s 42B(1)(a)
Commonwealth Employees’ Compensation Act 1930
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 14(1), 16, 17, 18, 20, 21, 24, 25, 54(2)(a), 54(5), 55(1), 56(1), 60(1), 62, 63(3)(b) and 64
Veterans’ Entitlements Act 1986, ss 14(5) and (6) and 15(5)
Blakiston’s Gould Medical Dictionary, 4th edition, McGraw-Hill Book Company, 1979
Black’s Medical Dictionary (38th edition, 1995, edited by G Macpherson, A and C Black (Publishers) Limited, London)
DECISION AND REASONS FOR DECISION [2010] AATA 1072
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/4447
VETERANS’ APPEALS DIVISION )
Re:ANTHONY BRAYBROOK
Applicant
And:MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 16 December 2010
Decision:The Tribunal decides to:
1.refuse the applicant’s application for an extension of time within which to review the decision made by a delegate of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees on 1 December 1992; and
2.dismiss the applicant’s application for review of the respondent’s decision dated 5 August 2010 on the basis that the Tribunal does not have jurisdiction to review that decision as it is not a reviewable decision within the meaning of the Safety, Rehabilitation and Compensation Act 1988.
S A Forgie
Deputy President
REASONS FOR DECISION
I have been constituted to hear an application for an extension of time within which Mr Braybrook may lodge an application for review of a decision made by a delegate of the Military Rehabilitation and Compensation Commission (MRCC) under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The application for extension related to a decision made on 1 December 1992 by a delegate of the then Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (Commission) (1992 decision). The delegate had decided that the effects of the aggravation of a pre-existing chronic lumbo-sacral disc lesion had ceased with effect from 19 April 1991. Liability for that condition had previously been accepted on 12 July 1973 by a delegate of the then Commissioner for Employees’ Compensation. Mr Braybrook made his application for an extension of time at the suggestion of the Case Services Officer (CSO) assigned to the file in the Tribunal’s Registry.
Having read the file and spoken with both Mr Braybrook and Ms Bradey, who represented the MRCC, I do not think that Mr Braybrook was seeking review of the 1992 decision but of the MRCC’s decision referred to in a letter written on 5 August 2010 (2010 decision). That was a decision to take “… no further action on … [Mr Braybrook’s] new claim recently received as this matter has been previously determined.” Mr Braybrook supported his application to the Tribunal with a letter dated 28 September 2010 from Dr Kiernan Halliburton. It would seem that it is Dr Halliburton’s opinion that the aggravation of Mr Braybrook’s back condition has not ceased but continues.
At the hearing, I told Mr Braybrook that I had decided not to extend the time within which he could seek review of the 1992 decision. I told him that the Tribunal does not have jurisdiction to review the 2010 decision because it is not a reviewable decision[1] but also told him that he might have two options. He could ask the MRCC to extend the time within which he could seek review of its 2010 decision. If unsuccessful, he could apply to the Tribunal for review of the decision he then received. Alternatively, he could make a fresh claim to the MRCC and, assuming he receives a decision denying liability, ask the MRCC to review that decision. If the next decision is substantively the same, he can apply to this Tribunal for its review. At the hearing, I explained why this might be a course that was available to him.
[1] An application may only be made to the Tribunal for review of a reviewable decision: SRC Act, s 64(1). In the context of this case, a “reviewable decision” is a decision made under s 62: SRC Act, s 60(1). The MRCC makes a decision under s 62 only when it reconsiders a determination, decision or requirement made under specific sections listed in the definition of “determination” in s 60(1).
Ordinarily, the options I suggested at the hearing would be left to the parties to consider. I have decided to set them out in writing so that Mr Braybrook can show them to the MRCC should he decide to take his matter further. It may be that the MRCC does not agree that the options I have suggested are open to him. It may be that, in his particular circumstances and for reasons not apparent at the moment, the options are not in fact available to him. It may be that, on further reflection and on further information, I would not think that the options are available. Despite all of those considerations, I have set out the reasoning that underpins the proposed options in order to assist Mr Braybrook in his dealings with the MRCC. I may be incorrect but my impression is that, like many people who do not work with Commonwealth legislation on a daily basis, it, and the SRC Act in particular, remain a mystery to him as do the operations of the MRCC and of this Tribunal. When he returns to the MRCC to lodge a further claim or to ask for an extension of time within which to seek review of the 2010 decision, he may not be able to explain why he is taking the path he is taking.
The Tribunal is based on the judicial model[2] so that its members are required “to act judicially, that is to say, with judicial fairness and detachment”.[3] That suggests that it will act like a court engaged in a civil hearing. On many occasions, it would be hard to tell the difference but there are differences. This is not the occasion on which to embark on a theoretical discussion. What is important is that the Tribunal is placed very clearly within the administrative, and not the judicial, arm of the Commonwealth. That means that it is not necessarily restrained by considerations that would restrain a court. A court would not consider a hypothetical case. A Judge must not “… [descend] into the arena and … have his vision clouded by the dust of the conflict”.[4] Similar constraints apply to the Tribunal and its members but it is one thing for its vision to be clouded by the dust of conflict and another to mark a potential path through that dust. That is what I seek to do for the parties although I am acutely aware that I do so on the basis of assumptions, I do not seek to suggest that there should be any particular outcome should Mr Braybrook choose to make a further claim. Outlining a potential path is a task which I think the Tribunal can properly undertake in limited circumstances. It is an approach consistent with the role of a body that is part of the Commonwealth’s administrative arm of government and whose role has given it a unique vantage point from which to view the impact of individual decisions on the whole of government.
[2] Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ
[3] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 539; 68-69 per Bowen CJ and Deane J
[4] Yuill v Yuill [1945] P 15 at 20 per Lord Greene MR cited with approval by Hayne J in Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679 at [179]; 562; 710
Background
It would seem from Dr Halliburton’s letter dated 28 September 2010 that Mr Braybrook was involved in a motor vehicle accident in 1968. It would also seem that there was an incident that occurred on 9 October 1969 while Mr Braybrook was serving in the Australian Army. That led to his making a claim for compensation and to liability being accepted in respect of aggravation of a pre-existing chronic lumbo-sacral disc lesion. Both the aggravation of the injury in 1969 and the decision to accept liability would have occurred when the Commonwealth Employees’ Compensation Act 1930 (1930 Act) was in force.
I understand that the costs of any physiotherapy Mr Braybrook received and any medication relating to his back condition was paid over the years until 19 April 1991. Mr Braybrook then claimed reimbursement of medical expenses incurred in relation to his back condition. A delegate of the then Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (Commission) decided that the effects of any aggravation of his back condition had ceased from and after 19 April 1991. She told Mr Braybrook of her decision in a letter dated 1 December 1992. I have referred to that as the 1992 decision. The letter refers to a conversation between Ms Vicky Tsigelis from the Commission and Dr Halliburton on 29 October 1992. The 1992 decision appears to be based on Ms Tsigelis’s understanding that Dr Halliburton considered that, even if Mr Braybrook’s Army service had not aggravated his pre-existing back problems, he would still have suffered from his then back condition as a result of the injury he had received in the earlier motor vehicle accident. That was an accident unrelated to his Army service.
Reasons for refusing to extend time to lodge application for review of the 1992 decision
I refused Mr Braybrook’s application for an extension of time in relation to the 1992 decision on the basis that, in the circumstances, a delay of eighteen years was too long. I have now looked further at the merits of the application were I to extend the time and have decided that the Tribunal would not have had power to review the 1992 decision. That is a further basis for my decision refusing his application for an extension of time.
Although I accept that it is Mr Braybrook’s memory of events that he did not understand that he had the right to ask for the decision to be reviewed at the time, there is a paragraph at the end of the letter advising him of the decision that:
“Enclosed is a Notice of Rights which explains certain rights and obligations including your right to have the decision reconsidered if you are dissatisfied.”
The letter also invited him to telephone a particular officer in the Safety, Rehabilitation and Compensation Section of the Defence Centre if he had any enquiries. I accept that Mr Braybrook sought advice from a Member of Parliament and understood from that advice that there was no point in challenging the decision.
Had he challenged it at the time, the evidentiary matters would have been fresh from the point of view of both Mr Braybrook and of the Commission. As it was, he made a decision not to pursue review of the decision at the time. It would not be fair to others who have made the same decision if I were to allow Mr Braybrook to reopen the decision at this late stage. I have no evidence of any prejudice to the MRCC, which now has the administration of the SRC Act in so far as it deals with claims for compensation by service personnel.
I have also looked at the merits of any application that Mr Braybrook might have made to the Tribunal. My decision on that point is that it would not have succeeded because the Tribunal did not have power to review the 1992 decision. The 1992 decision was a determination within the meaning of s 60 in that it was a determination or a decision within the meaning of s 60(1) of the SRC Act. An application could not be made to the Tribunal for review of a determination. Section 64(1) provides that an application for review can only be made to the Tribunal for review of a reviewable decision. A “reviewable decision” is a decision made under ss 38(4) or 62.[5] In this matter, only s 62 is relevant because it relates to compensation decisions. A reviewable decision is made after a determination such as the 1992 decision has been reviewed. It is not the determination itself.
[5] SRC Act, s 60(1)
I understand from the letter advising Mr Braybrook of the 2010 decision that the 1992 decision was affirmed on 3 March 1993 after he had asked for it to be reviewed. That would have been a reviewable decision but it is not the decision in relation to which he asked for an extension of time. Although Mr Braybrook could lodge a fresh application, he will still be faced with the hurdle created by the 18 year delay in asking for review.
The proper characterisation of the 2010 decision
I also understand from the letter advising Mr Braybrook of the 2010 decision that his claim was for lumbar spondylosis resulting from the back injury suffered during his defence service. A delegate of the MRCC then noted that liability had previously been accepted for aggravation of a pre-existing chronic lumbo-sacral disc lesion and that a determination had been made that liability had ceased. The delegate concluded:
“Therefore I have taken no further action on your new claim recently received as this matter has previously been determined.”
On its face, the 2010 decision is not a decision to refuse Mr Braybrook’s claim but a decision to take no action on that claim. It is a decision that assumes that the conditions of lumbar spondylosis and chronic lumbo-sacral disc lesion are the same.[6] It may be that this is so but, even if it is, the SRC Act does not give the determining authority, in this case the MRCC, the power to decline to consider a claim. That arises from the way in which the MRCC’s liability arises under the SRC Act. Although qualified, it is enough to refer to the way in which its liability is imposed by s 14(1):
“Subject to this Part, Comcare [and the MRCC[7]] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
[6] According to Black’s Medical Dictionary (38th edition, 1995, edited by G Macpherson, A and C Black (Publishers) Limited, London) (Black):
[7] The reference to Comcare is a reference to the MRCC: SRC Act, s 4(10).
The MRCC’s liability entitles Mr Braybrook to claim compensation but he must do that in accordance with Part V of the SRC Act. Among the requirements of Part V is the requirement in s 54 that he make a claim for compensation. Once the MRCC receives a claim, it is required to consider the claim and make a determination or determinations. The Full Court of the Federal Court recognised this in Lees v Comcare.[8] In doing so, it noted that a claim for compensation is not necessarily a claim for compensation under a particular section of the SRC Act. This is reflected in the form of the claim approved by Comcare under s 54(2)(a), which requires the claimant to provide detailed information concerning the injury and time taken off work because of the injury but 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.[9]
[8] [1999] FCA 753; (1999) 56 ALD 84; (1999) 29 AAR 350 at [30]-[31] (Wilcox, Branson and Tamberlin JJ)
[9] [1999] FCA 753; (1999) 56 ALD 84; (1999) 29 AAR 350 at [30]. Compensation provided for in those sections is compensation for medical expenses (s 17), death (s 17), funeral expenses (s 18), incapacity (ss 20 and 21) and permanent impairment (ss 24 and 25).
Where a determination is made on a claim in the form required by s 54(2)(a), it is ordinarily made under s 14, the Full Court observed.[10] It then went on to discuss what was entailed in a determination made under that section:
“… A determination under s 14 cannot amount to more than a determination that Comcare ‘is liable to pay compensation in accordance with this Act’ in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
35 This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an ‘employee’ at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.”[11]
[10] [1999] FCA 753; (1999) 56 ALD 84; (1999) 29 AAR 350 at [31]
[11] [1999] FCA 753; (1999) 56 ALD 84; (1999) 29 AAR 350 at [34]-[35]
I would respectfully add that a determination under s 14 also involves a finding that the person is entitled to make a claim under s 54. Although the situation arises more rarely, a determination on a claim made by a person for compensation for an injury suffered by another, necessarily involves a finding that the claimant is the personal representative of the other.[12] A claim by a dependant of a deceased employee necessarily involves a finding that an amount of compensation has not already been paid under ss 17(3) or (4) for the benefit of another dependant of the deceased employee.[13]
[12] SRC Act, s 55(1)
[13] SRC Act, s 56
In Lees v Comcare, the Full Court made no mention of a determination under s 14 necessarily involving a finding that the person has not previously made a claim for the same condition. That is because there is nothing in the SRC Act that prevents a person from making such a claim or that qualifies the circumstances in which a person may make a further claim. In this, it is to be contrasted with the Veterans’ Entitlements Act 1986 (VE Act). Section 15(5) of the VE Act provides that a person is not able to make an application for a pension or for a pension at an increased rate if he or she has already made such an application and it has not been finally determined. Sections 14(5) and (6) make similar provision in relation to claims made in respect of a veteran’s incapacity from a particular injury or disease.
Under the SRC Act, lodgement of a claim in a form that complies with the form approved by Comcare or that substantially does so[14] requires a determination by the determining authority which, in this case, is the MRCC. The wording of its 2010 decision suggests that it might think that the principles of res judicata or estoppel apply to claims made under the SRC Act. These were among the principles that I considered in Re Rana and Military Rehabilitation and Compensation Commission.[15] I adopt my analysis of the authorities and reasons in that case and incorporate them in this. In this case, I will refer only to my conclusion that the principles of res judicata, cause of action estoppel, issue estoppel and Anshun estoppel are not the basis on which the Tribunal and an administrative decision-maker whose decisions it reviews should decide whether they may or may not consider a second or further claim. Rather, the principles relating to functus officio determine whether or not an administrative decision-maker, be it the Tribunal or a primary decision-maker or a decision-maker on review, has the power to consider a second or further claim.
[14] SRC Act, s 54(5)
[15] [2008] AATA 558; 48 AAR 385; 104 ALD 595
Each administrative decision-maker must look to the legislation permitting the person to make the claim and setting the parameters within which a decision must be made on that claim. If the legislation permits the claim to be made, the decision-maker must decide whether a decision has previously been made on that particular claim. A decision on an earlier claim for an identical condition is not a decision on that particular claim unless the legislation makes a provision to that effect. In the absence of any such provision, a decision-maker will not have made a decision on that particular claim. Therefore, he or she will be required to make a decision on that claim under the SRC Act. My conclusion is consistent with that reached by Cooper J in Australian Postal Corporation v Ouydn[16] when considering a claim made by Mr Oudyn to the Australian Postal Commission (APC) for compensation for permanent impairment. His Honour said:
“33. Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.”[17]
[16] [2003] FCA 318; (2003) 73 ALD 659
[17] [2003] FCA 318; (2003) 73 ALD 659 at [33]; 667
If the claim is identical in all respects (including its date) and it is simply the first claim being re-lodged, it will be the same claim. In that case, the decision-maker, who has decided the first claim, will have no power to decide the second or further claim. He or she used his or her powers and fulfilled his or her duty to make a decision on the first claim. Those powers are exhausted and the duty fulfilled and the decision-maker is said to be functus officio. The decision will be that a decision has already been made on that claim and the decision-maker has no further powers.
Parliament may provide for other scenarios but these two examples are sufficient for this case. There is no suggestion that Mr Braybrook simply re-lodged his earlier claim. The 2010 decision speaks of it as a “new claim” and it seems that it was a new claim. As there is nothing in the SRC Act that prevents Mr Braybrook from lodging a new claim in respect of an injury in respect of which he has previously sought compensation, the MRCC could not decide, as it did, to put it to one side and take no further action on it. It is inherent in s 54 and assumed by the Full Court of the Federal Court in Lees v Comcare that, once a claim has been properly lodged, the MRCC has a duty to decide it.
Had the 2010 decision been a reviewable decision, I would have been minded to treat it as a decision to refuse liability under s 14 of the SRC Act. Despite Mr Braybrook’s having later agreed to lodge an application for an extension of time within which to seek review of the 1992 decision, he had originally applied for review of the 2010 decision. In declining to take any further action, the 2010 decision was, in substance, denying liability.
No jurisdiction to review 2010 decision
On my interpretation of the 2010 decision, it would be a determination made under s 14 of the SRC Act but it would not be a reviewable decision. Mr Braybrook may only make an application to the Tribunal for review of a reviewable decision. That is the effect of s 64 of the SRC Act. The Tribunal does not have jurisdiction to review the 2010 decision for it has not been reviewed.
Options for the future
The time within which Mr Braybrook could have asked the MRCC to review its 2010 decision has long since gone. He had only 30 days after the day on which the decision first came to his notice.[18] Section 63(3)(b) of the SRC Act permits him to ask for an extension of that period. He could do that but whether or not the MRCC would want to extend the period is a matter within its discretion. If it does extend the time, the decision it then makes reviewing the 2010 decision would be a reviewable decision. Mr Braybrook could apply to the Tribunal for its review.
[18] SRC Act, s 63(3)(b)
If Mr Braybrook does not want to seek an extension, and wants to pursue the matter he could lodge a further fresh claim. Whether he chooses to do that is a matter for him based on his knowledge of his circumstances. It is not my place to make any comment regarding the chances of his being successful if he were to decide to take this course. If he were to choose to lodge a fresh claim with the MRCC, he would have to wait for its decision on the claim. If dissatisfied with it, he would then seek its review. Only if he were dissatisfied with the MRCC’s decision on review could he make an application to the Tribunal for its review.
I certify that the twenty six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Leah Berardi, Associate
Date of Hearing 16 December 2010
Date of Decision 16 December 2010
Date of written reasons 6 January 2011
Applicantunrepresented
Solicitor for the Respondent Ms Kim Bradey
Thomsons Lawyers
“ … Spondylosis is a term which covers disc degeneration and joint degeneration in the back. Osteoarthritis is usually implicated. Pain is commonly felt in the neck and lumbar regions and in these areas the joints may become unstable. This may put pressure on the nerves leaving the spinal canal and in the lumbar region pain is generally felt in the distribution of the sciatic nerve – down the back of the leg. In the neck the pain may be felt down the arm. Treatment is physiotherapy; often a neck collar or lumbar support helps. Rarely surgery is needed to remove the pressure from the nerves. …” (at 479-480).
Disc degeneration is described as:
“… a normal consequence of ageing. The disc loses its resilience and becomes unable to withstand pressure. Rupture (prolapse) of the disc may occur with physical stress. … Pain is felt in the back and in the distribution of the compressed nerve. … Treatment is bed rest with traction and pain relief. Rarely removal of the disc is needed. …” (at 479)
The condition of lumbo-sacral disc lesion is not described in Black but a lesion is “… An alteration, structural or functional, due to disease …” (Blakiston’s Gould Medical Dictionary, 4th edition, McGraw-Hill Book Company, 1979). Therefore, a lumbo-sacral disc lesion is an alteration, structural or functional, due to disease to a dis in the lumbo-sacral portion of the spine.
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