Ewer and Comcare
[2006] AATA 131
•17 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 131
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/213, Q2005/591
GENERAL ADMINISTRATIVE DIVISION )
Re JEFFREY EWER Applicant
And
COMCARE
Respondent
DECISION ON PRELIMINARY ISSUE
Tribunal Ms M J Carstairs, Member Date17 February 2006
PlaceBrisbane
Decision Until reviewable decisions are made in respect of permanent impairment under s24 of the Safety, Rehabilitation and Compensation Act 1988 arising from a psychiatric condition or loss of left upper limb function, the Tribunal has no power to review Mr Ewer’s entitlements under s24 in respect of those conditions.
. ...........[Sgd].........
M J Carstairs
Member
CATCHWORDS
PRACTICE AND PROCEDURE – what matters are reviewable - powers of Tribunal to consider claim for permanent impairment for secondary conditions .
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 24, 27, 54, 60, 61, 62, 63 64, 69, 70, 72
Administrative Appeals Tribunal Act 1975 ss 3, 25, 43Comcare Australia v Grimes and Another (1994) 33 ALD 548
Comcare v Power [1998] FCA 1783
Lees v Comcare and Another (1999) 29 AAR 350
Comcare v Canute [2005] FCAFC 262
Comcare v Mathews (1999) 29 AAR 350
Australian Postal Commission v Oudyn [2003] FCA 318REASONS FOR DECISION
17 February 2006 Ms M J Carstairs, Member 1. Jeffrey Ewer claimed compensation in 2000 for a neck injury arising from using a computer at work. Comcare accepted liability for this neck injury, now described in Comcare’s determinations as an aggravation of cervical spondylosis without myelopathy. Much later, in 2005, Comcare accepted liability for cervicogenic headaches, one of several secondary conditions which Mr Ewer says result from the injury he sustained to his neck.
2. Since the initial injury, Comcare has made a number of decisions in relation to Mr Ewer’s ongoing entitlements. The Tribunal has reviewed one of these, dealing with permanent impairment arising from Mr Ewer’s neck injury. That matter was settled by consent in 2004.
3. Mr Ewer now has two new applications with the Tribunal. The parties do not agree on the scope of the current applications, therefore I must decide what they encompass. One of Mr Ewer’s applications deals with the question of liability for two secondary medical conditions: a psychiatric condition and loss of left upper limb function. Mr Ewer says that the Tribunal’s review powers extend to a consideration of permanent impairment in relation to all medical conditions.
4. Mr Ewer has twice claimed permanent impairment, the review of the first claim ultimately being concluded by the Tribunal’s decision by consent referred to above. In each of his claims for permanent impairment Mr Ewer has stated that he experiences four medical conditions:
§ a primary condition, namely that affecting his neck; and
§ secondary conditions (or symptoms) arising from the primary condition, these secondary conditions being cervicogenic headaches; a psychiatric/psychological condition; and a left upper limb condition.
5. In his two current applications to the Tribunal Mr Ewer set out that he was seeking review of two reviewable decisions:
§ application Q2005/213, for review of a reviewable decision dated 9 March 2005 denying him compensation for psychiatric/psychological condition and for left upper limb condition (that is, two of the secondary conditions); and
§ application Q2005/591, for review of a reviewable decision dated 1 August 2005 refusing additional payment for permanent impairment for cervicogenic headaches, above 10% awarded for aggravation of cervical spondylosis without myelopathy by the Tribunal’s consent decision in 2004.
LEGISLATIVE PROVISIONS
6. Compensation is not payable to a person under the Safety, Rehabilitation and Compensation Act 1988 (the Act) unless a claim is made by or on behalf of the person, in accordance with the statutory requirements: s54(1). Section 14(1) of the Act is the pivotal provision covering liability and provides:
14(1)Subject to this Part, Comcare 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.
7. The Act also provides for a three-tiered review process for claims, for the reconsideration of claims, and for external review, namely:
§ the primary decision or determination (s60 of the Act);
§ the reconsideration decision or reviewable decision (defined in s60 of the Act as including decision made under s62 of the Act which allows reviews either on Comcare’s own motion or as the result of a request for review);
§ review by the Tribunal of reviewable decisions (s64 of the Act) (Lees v Comcare (1999) 29 AAR 350).
8. A determination is defined in s 60(1) of the Act to mean a determination or decision or a requirement under any one of a number of sections, including ss14, 24 and 27. Section 62(2) of the Act provides that a person may make a request for reconsideration, providing the request is made within 30 days after the first determination came to the notice of the person (s62(3)). When requested, Comcare must cause the determination to be reconsidered by another decision-maker (s62(4)). The person reconsidering the determination may make a decision affirming, revoking or varying the determination (s64(5)) and s63 then requires that the decision-maker must serve a written decision upon the applicant.
9. Generally speaking, only those decisions that have been reviewed under s62 of the (the Act) are reviewable by this Tribunal.
10. These provisions for claims and their review have been discussed in a number of Federal Court decisions including Comcare Australia v Grimes and Another (1994) 33 ALD 548; and Lees v Comcare. The functions of Comcare under the Act include making determinations accurately and quickly in relation to claims and requests: s69(a). Comcare has a general power to do all things necessary or convenient to be done for, or in connection with, the performance of its function (s70). Section 72 requires that Comcare must perform its functions guided by equity, good conscience and the substantial merits of the case.
11. Section 64(1)(a) of the Act provides that applications may be made to this Tribunal for review of a reviewable decision, by, amongst others, the claimant. The Administrative Appeals Tribunal Act 1975 (the AAT Act) provides at s43 that, for the purposes of reviewing a decision, the Tribunal may exercise all the powers that are conferred by any relevant enactment on the person who made the decision. The Federal Court in Lees v Comcare pointed out that the Tribunal’s powers under s43 are not at large, but are limited to powers for reviewing the reviewable decision.
12. What is a reviewable decision? It need not be one actually made, because the meaning of decision in s60 of the Act encompasses the more extended meaning of that term provided for in s3(3) of the AAT Act. Sub-section 3(3) provides that :
(3) A reference in this Act to a decision includes a reference to:
(a)making, suspending, revoking or refusing to make an order or determination; or
….
(g) doing or refusing to do any other act or thing.
13. The Federal Court considered the operation of s3(3) of the AAT Act in Australian Postal Corporation v Oudyn [2003] FCA 318 and concluded in that case that a refusal to make a decision constituted a reviewable decision, thus allowing review by this Tribunal.
ISSUES
14. In regard to matters Q2005/213 and Q2005/591, the parties agree that the Tribunal can review the reviewable decision that denied liability for a psychiatric/psychological condition and left upper limb condition (Q2005/213). The parties also agree that the Tribunal can review the reviewable decision to refuse any additional permanent impairment payment for cervicogenic headaches which is the secondary condition for which Comcare accepted liability in 2005 (Q2005/591).
15. Comcare disagrees, however, that the Tribunal has the power to review permanent impairment arising from the secondary psychiatric/psychological condition and loss of left upper limb function.Comcare asserts that the question of any permanent impairment arising from these secondary conditions has not been the subject of a reviewable decision under s62 of the Act, the necessary precursor to review by this Tribunal.
16. As I understand Mr Harding’s argument in support of the Tribunal having the necessary power to review all conditions, it is that :
§ Comcare has refused to make a decision on the question of permanent impairment arising from the two secondary conditions, thus bringing into operation s3(3) of the AAT Act so that there is a decision reviewable by this Tribunal, or,
§ Comcare has impliedly made a decision denying permanent impairment for secondary conditions, when making a determination on 4 November 2003, which determination is before the Tribunal as part of application Q2005/213. Comcare subsequently refused to deal with the applicant’s request for review of this implied decision, again bringing into operation s3(3) of the AAT Act.
OUTCOME
17. I have concluded that the Tribunal cannot review the issue of permanent impairment for the two non-accepted secondary conditions because no reviewable decisions have been made in regard to them.
HISTORY OF CLAIMS AND DETERMINATIONS
18. The sequence of Mr Ewer’s claims and requests for review has resulted in a number of decisions, made at various stages of the review processes under the Act. Some assistance is gained in deciding what is now reviewable by the Tribunal, by looking at the history of the claims and reviews.
19. That history relevantly commences when Mr Ewer sustained his initial injury while using a computer at his workplace on 16 October 2000. Mr Ewer reported his injury to his employer, and he claimed compensation. Mr Ewer attended his general practitioner, who initially diagnosed muscle strain of the neck. Comcare promptly dealt with, and accepted, Mr Ewer’s first claim, adopting the diagnostic description of neck strain.
20. From the outset, Mr Ewer mentioned other symptoms, stating in his initial claim (T3):
Left shoulder and neck stiff…numbness in left arm (pins and needles)….upper body rigid and constant ache + headache.
These early symptoms might have settled with time. The conditions or symptoms mentioned in the first claim, other than the neck problem, were not referred to in the decision accepting liability for the neck. Until as recently as 2005, when cervicogenic headaches were accepted as a secondary condition, Comcare had not accepted liability for any condition other than the primary injury to the neck.
21. Subsequent medical reports, however, referred to diagnoses other than that of neck strain. In about 2002, consistently with Mr Ewer’s experiencing ongoing symptoms and with the medical reports reflecting possible disc injury, Comcare’s determinations amended the diagnostic description to aggravation of cervical spondylosis without myelopathy. This remains the description of the injury to date; it is a description of the primary condition relating to his neck.
22. Dr S Geffen, who has treated Mr Ewer over a number of years, has lent support to Mr Ewer’s claim that he experienced a range of other ongoing symptoms (the secondary conditions) (T22, T54). It is a fair summary of Dr Geffen’s reports that these secondary conditions are related to Mr Ewer’s cervical spondylosis.
23. On 30 July 2002 (T22) Mr Ewer claimed permanent impairment (the first PI claim). In that claim he detailed four medical conditions:
§ cervical spondylosis
§ headaches
§ left upper limb function
§ depression
24. Dr Geffen supported these diagnoses (or symptoms) and assessed impairment ratings for each, under the Comcare Guide for the Assessment of Permanent Impairment (the Guide). In May 2002 Mr Ewer underwent spinal surgery, involving a discectomy and fusion at the C3/C4 level of the spine.
25. Section 24(2) of the Act outlines the test for permanence. Satisfying that test includes taking into account the likelihood of a person’s condition improving. It is not surprising, given the recency of the surgery to Mr Ewer’s neck having taken place only two months before, that in a determination dated 2 August 2002 (T24), the delegate focussed on whether it was too early to conclusively decide whether the condition was permanent or not and decided to reject the claim.
26. When the first PI claim was rejected, Mr Ewer sought review of:
….the decision to reject my permanent impairment claim for the condition (aggravation of cervical spondylosis without myelopathy) and associated conditions. (Tribunal emphasis)
27. On 26 March 2003 (T46) the rejection of Mr Ewer’s first PI claim was affirmed in a reviewable decision that became the subject of the earlier application to this Tribunal, settled without the need for a hearing on 29 September 2004 (T70), when the parties agreed that Mr Ewer suffered 10% whole person impairment for aggravation of cervical spondylosis without myelopathy. The Tribunal’s decision is silent on which Table in the Guide led to the allocation of a 10% rating but it is otherwise clear that the 10% related to cervical spondylosis only and not to any secondary conditions, which had been claimed. The settlement at the Tribunal took to an end the review of the first PI claim.
28. The determination dated 2 August 2002 (T24) refusing the first PI claim, had not referred to each of the four claimed medical conditions or symptoms individually, but globally referred to: your claim for permanent impairment. If that was the decision on review before me now (assuming, also, a reviewable decision of it), there would be doubt in my mind that the scope of the Tribunal’s review would extend to all claimed conditions, that is, both primary and secondary conditions. This would follow from the delegate in her determination specifically referring to Mr Ewer’s first PI claim and rejecting the claim in wide language. However it is not the first PI claim that is on review by the Tribunal; it is Mr Ewer’s second PI claim, made in 2003.
29. The documents indicated that until early 2003, Mr Ewer had dealt directly with Comcare, without legal assistance. Mr Ewer then engaged his current solicitors who represented him at the Tribunal on the first PI claim. His solicitors also lodged his second claim for permanent impairment (the second PI claim) under cover of a letter dated 28 May 2003 (T51). The claimed permanent impairment was for:
§ chronic neck/back pain and headaches
§ depression
§ weakness and loss of sensation of left arm
That is, it was a permanent impairment claim purely referable to the secondary conditions.
30. The solicitors attached to the second PI claim a letter that Mr Ewer had written to Comcare, bearing the date of 30 April 2003 (T54) which presumably had not been sent until that time. In that letter Mr Ewer again stated that he was claiming three secondary medical conditions, related to his cervical spondylosis: headaches, loss of upper limb function and depression/anxiety. Liability for these secondary conditions was refused in a determination dated 4 November 2003 (T62). On its face that determination was limited to matters arising under s14 of the Act.
31. A short time before this, Comcare had indicated to Mr Ewer (T61, T64) that they were considering terminating his entitlement to compensation payments for aggravation of cervical spondylosis without myelopathy. However on 24 May 2004 (T66), a reviewable decision confirmed his entitlement would continue. Mr Ewer to date has an aggravation of cervical spondylosis without myelopathy, compensable as an injury under the Act (with the later acceptance in 2005 cervicogenic headaches).
32. Importantly for the application now before the Tribunal, Mr Ewer’s solicitors delayed requesting a review of the determination in which the delegate had refused liability for the secondary conditions of headaches, loss of left upper limb function, and depression. The solicitors made no request for review of the determination dating from 4 November 2003, until 13 January 2005 (T72) - more than a year after the determination was made. Their delay in seeking this review is surprising, given that they had represented Mr Ewer in his application to the Tribunal on his first PI claim, which similarly to the second PI claim, had commenced as a permanent impairment claim for secondary conditions. I concluded from this that they did not press the question of permanent impairment from secondary conditions in the course of the application to the Tribunal in respect of the first PI claim.
33. Although well after time limits had expired, Comcare did not object to the delay and carried out the review. In a reviewable decision made on 9 March 2005 the delegate concluded that cervicogenic headaches were compensable as a secondary condition resulting from the primary compensable condition of aggravation of cervical spondylosis without myelopathy (T75). The delegate refused the claim in regard to the secondary psychiatric condition and left upper limb condition stating that these were not the result of the primary compensable condition. This reviewable decision is the subject matter of Application No Q2005/213. I construe this reviewable decision as being limited to questions of liability arising under s14 of the Act.
34. Mr Ewer’s solicitors wrote to Comcare on 11 April 2005 (T75) requesting the assessment of permanent impairment for cervicogenic headaches but also asking for a permanent impairment assessment to be carried out for the secondary conditions of loss of left upper limb function, headaches and neck pain. Notably the solicitors did not ask for a permanent impairment assessment for depression/anxiety.
35. In a determination dated 9 June 2005 (T76) the delegate, Ms S McMillan, refused the claim for permanent impairment for the left upper limb condition because as there was… no liability under s14 of the Act for this condition, …it follows that there can be no permanent impairment for this condition. Ms McMillan carried out an assessment of permanent impairment for cervicogenic headaches, but decided not to increase Mr Ewer’s overall rating beyond the 10% awarded by the Tribunal’s consent decision in regard to the first PI claim.
36. Mr Ewer’s solicitors requested a review of Ms McMillan’s determination (T77). They drew attention to Ms McMillan’s failure to deal with the psychiatric condition, and referred to their earlier letter to Comcare dated 13 January 2005, where the claim for permanent impairment for a psychiatric condition was mentioned. However they did not refer to their request for review dated 11 April 2005, which had omitted the psychiatric condition from its ambit.
37. The reviewable decision which resulted, dated 1 August 2005, forms the basis of application Q2005/591. Mr Harding and Mr Clark agreed that the review officer, in conducting the review, incorrectly limited himself to reviewing permanent impairment arising from cervicogenic headaches (which had been part only of the subject matter of the determination on 9 June 2005). An examination of the delegate’s written reasons reveals that clear omission.
WHAT IS UNDER REVIEW BY THE TRIBUNAL?
38. Certain consequences for Mr Ewer’s current applications at the Tribunal follow from the fact that the delegate in the reviewable decision did not review the question of permanent impairment for the secondary psychiatric condition and loss of left upper limb function.
39. Mr Ewer’s application for review in Q2005/591(T1) asserted that the Tribunal review extended, collectively, to the question of lump sum payment for permanent impairment in respect of cervical spondylosis, psychiatric/psychological condition, left upper limb condition and cervicogenic headaches. He submits that it is possible for the Tribunal to look at this question within his current Tribunal applications, even though primary liability has not been accepted for a psychiatric condition or for left upper limb condition.
40. The question of Mr Ewer’s compensation entitlements has become progressively more complicated over the years, partly because his claims relate to several secondary conditions. There are number of determinations and decisions; his claims have become fragmented when aspects of different claims have been reviewed concurrently.
41. Furthermore, there have been later events, which may or may not be of relevance in the substantive hearing, including that Mr Ewer was involved in two motor vehicle accidents after sustaining the neck injury at work. Even without these, it can be more difficult to decide questions of liability under the Act where a claim relates to primary and secondary conditions arising from the one work event. This has been commented upon recently by the Full Federal Court in Comcare v Canute [2005] FCAFC 262. The Court there identified that, taken in the context of the wording of s14 of the Act, ‘secondary conditions’ may be either injury or impairment. As noted earlier there are issues of causation under s14 of the Act in relation to the secondary conditions before the Tribunal within application Q2005/213.
42. It is correct as a general proposition that a person can claim for permanent impairment under s24 without having made a claim under s14 of the Act: Lees v Comcare. However, while Mr Ewer did claim under s24 directly – at least in regard to the secondary conditions – the claims have not been dealt with that way. In the end it is the content of reviewable decisions that determines the ambit of review before this Tribunal.
43. Mr Ewer has made two PI claims in each of which he referred to primary and secondary conditions. The fact that in relation to the first PI claim there was a reviewable decision made in respect of primary and secondary conditions does not assist Mr Ewer now: he has exhausted the review rights on the first PI claim. In regard to the second PI claim, I have concluded that there are no reviewable decisions dealing with the two conditions for which liability under s14 has not been accepted.
44. In regard to permanent impairment for the secondary condition of depression/anxiety Comcare has not made a determination or a reviewable decision. Mr Ewer’s solicitors omitted to ask for an assessment of permanent impairment for the psychiatric condition in their letter to Comcare dated 11 April 2005. They said (T75):
Inasmuch that you have settled at the Administrative Appeals Tribunal for 10% for the cervical condition we therefore respectfully request lump sum payment referrable to the addition of the 10% for the neck plus that of the headaches at 20% therefore equalling as per Table 14.1 Combined Values Chart 2 38%.
45. The solicitors may have had any number of reasons for limiting their request; the delegate would have no reason to enquire further. The solicitor’s letter at T75, however, set in train the consideration of the permanent impairment claim without any secondary psychiatric condition. The solicitors later complained to Comcare (T77) that Comcare had ignored the content of their earlier letter to Comcare dated 13 January 2005 (T72), which had referred to the psychiatric condition. However the delegate was entitled to act on the solicitors’ later and more specific communication with Comcare about the matters under review.
46. The determination made on 9 June 2005 refused permanent impairment for the left upper limb condition, the clearly stated grounds of rejection being that, because there was no liability under s14 of the Act for that condition, there was entitlement to permanent impairment under the Act.
47. At the next level of review, the delegate undertaking the reconsideration of that determination incorrectly limited himself to an assessment solely of cervicogenic headaches. The delegate undertaking the reconsideration could have, and should have, reviewed the determination rejecting permanent impairment for the left upper limb condition.
48. In regard to depression/anxiety, there was no prior determination for the reconsideration delegate to review under s62 of the Act.
49. Mr Harding referred to the Federal Court decision in Oudyn where the Court looked to s3(3) of the AAT Act and concluded that it applied where the facts demonstrated that the respondent had refused to consider a decision. However there is no factual similarity between the matter before me and a case such as Oudyn, where the reasoning processes and language used by the respondent were clearly demonstrated a refusal to consider the claim.
50. I do not accept that the delegate’s omission in failing to deal with the question of permanent impairment for these secondary conditions can be overcome in the applications now before the Tribunal. The reconsideration delegate did no more than inadvertently omit examining permanent impairment in regard to loss of upper limb function. In regard to the psychiatric condition, there was nothing for him to review because, as a result of the solicitors’ letter dated 11 April 2005, this had not been part of the determination under review before him. It would impermissibly extend the operation of s3(3) of the AAT Act to find that a mere omission, or failure to decide, amounts to refusing to make a determination.
51. Little useful assistance now derives from an examination of Comcare’s obligations to determine claims quickly and correctly. It seems to me that the confusion now arising in the review processes is attributable in part to the less-than-clear communications from Mr Ewer’s solicitors to Comcare.
52. Nor does it now assist Mr Ewer, when determining the scope of the current applications before the Tribunal, that the question of permanent impairment under s24 of the Act should have been considered by the delegate in the determination dated 4 November 2003, rather than limiting herself as she did, to questions of liability under s14 of the Act. In the overall context of Mr Ewer’s claims, including that at the time of the 4 November 2003 determination Mr Ewer’s first PI claim was before the Tribunal, providing an opportunity for the solicitors to canvas the issue now raised, and also taking into account their delay in seeking a review of the 4 November 2003 determination, that submission is without merit.
53. Before Mr Ewer’s claims for permanent impairment for the secondary conditions of loss of left upper limb function and a psychiatric condition can be reviewed by the Tribunal there must be reviewable decisions made in regard to each condition:
§For the claim as it relates to permanent impairment for a psychiatric condition, two steps are required; firstly a determination must be made, followed by a review under s62 of the Act.
§For the claim as it relates to loss of left upper limb function, this was dealt with in the determination dated 9 June 2005 and now must be reviewed under s62 of the Act before permanent impairment for that condition can be considered by the Tribunal.
54. These conclusions on the scope of the review before the Tribunal in Mr Ewer’s applications are in accord with Comcare v Mathews (1999) 29 AAR 350 (heard with Lees v Comcare). The Full Federal Court there said that in view of the structured decision-making processes established under the Act and the plain language of s64, the powers of the Tribunal under s64 of the Act do not extend, on an application to review a decision under s14, to reaching a decision under s24 of the Act. It follows from this that should Mr Ewer be successful on the liability issues which are before the Tribunal in application Q2005/213 the Tribunal is not permitted to consider matters of permanent impairment under s24 of the Act without a reviewable decision on that issue.
55. For these reasons the Tribunal has no power at the present to review Mr Ewer’s entitlement to permanent impairment under s24 of the Act in respect of either a psychiatric condition or loss of left upper limb function. Until reviewable decisions are made in respect of permanent impairment arising from those conditions under s24 of the Safety, Rehabilitation and Compensation Act 1988, the Tribunal cannot review them.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 8 December 2005
Date of Decision 17 February
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan & Luton
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Australian Government Solicitor
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