Foxton and Comcare (Practice and procedure) - [2025] ARTA 627

Foxton and Comcare (Practice and procedure) [2025] ARTA 627 (11 April 2025)
Applicant/s:  Wendy Foxton
Respondent:  Comcare
Tribunal Number:                2024/7522

Tribunal:General Member M. Carey
Place:Melbourne
Date:11 April 2025

Decision:The review application in Matter Number 2024/7522 is dismissed pursuant to section 97 of the Administrative Review Tribunal Act 2024 (Cth) on the grounds that the decision made is not a reviewable decision by the Tribunal.
The review application in Matter Number 2024/10048 will continue and the preliminary conference by telephone set down for 8 May 2025 will proceed.

.......................[SGD].................................................
General Member M. Carey
Catchwords
DISMISSAL – primary decision denies liability to pay compensation for medical treatment pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988 – decision is a determination – decision not yet subject of review by respondent - decision not reviewable by Tribunal – dismissal pursuant to section 97 of the ART Act – subsequent application No 2024/10048 made in respect of reviewable decision following reconsideration is valid application for reviewable decision under section 62 SRC Act.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Statement of Reasons

The application for review commenced by Ms Wendy Foxton on 25 September 2024 (ART Matter Number 2024/7522) is to be dismissed on the grounds that the decision that is the subject of the application is not a reviewable decision. The review proceedings were commenced in respect of a primary determination made by Comcare dated 20 September 2024.
No procedural steps to further the review have been taken since it was commenced in September 2024. An interlocutory hearing was set down for 1 April 2025 to deal with the question of dismissal and allow any submission to be made by the applicant in relation to the proposed dismissal.
Background
From the papers lodged in this application it is apparent that Ms Wendy Foxton sustained an injury to her right knee related to her Commonwealth employment for which she sought compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). She made a claim for compensation in respect of that injury and Comcare accepted liability pursuant to section 14(1) of the SRC Act on 15 March 2022, describing the injury as ‘right knee small tear of the posterior horn of the medical meniscus.’
On 22 January 2024, Dr Andrew McGee, her treating surgeon from Wide Bay Orthopaedics, made a request to Comcare on Ms Foxton’s behalf, to accept the costs of proposed surgery by way of a right total knee replacement.
Comcare arranged for Ms Foxton to be examined by Dr Simon Journeaux, a medico-legal examiner who is an orthopaedic surgeon, and who provided a report dated 8 August 2024 stating that Ms Foxton had suffered an ‘exacerbation of right knee osteoarthritis’ in her injury.
Comcare’s primary decision-maker, on accepting that opinion, concluded that the requested operation was for the condition of osteoarthritis and that ailment was not one for which Comcare had a liability. A determination was made dated 20 September 2024 denying liability to pay compensation for the cost of the proposed medical treatment pursuant to section 16 of the SRC Act.
Ms Foxton sought review of that decision by Comcare made on 20 September 2024.
Ms Foxton was able to inform me of the background to the application as well as a subsequent application made in relation to a reviewable decision dated 23 October 2024:
(a)She is now 53 years of age and had worked for many years with NBN Corporation. She was working in Western Australia in 2020 as a Field Technician doing installation work. She was equipped with a vehicle and tools and sent to various locations to do internet connections. This involved pulling cables, either copper wire, coaxial or fibre optic cable, making connections at the node, laying cable and installing connections to houses. She would have to go under houses into confined spaces to make those connections.
(b)On a particular day in 2020, she rose to a standing position from where she was working in a confined pit and felt something snapping in the right knee. On investigation she had suffered a tear in her medial meniscus from that incident.
(c)She made a claim for compensation at that time which was accepted by Comcare. She had some time off from work and had intensive treatment. Later, she made a return to work in light duties and then over time back to full field work duties.
(d)At some point before 2022 she was promoted to Senior Field Technician which allowed her to return to the Wide Bay area in Queensland where she grew up.
(e)In 2022 she suffered more pain in the right knee. This was investigated and she was advised that the tear had worsened. She made a further claim, and this was accepted. She was told by someone working for the respondent that the claim would be part of the earlier 2020 right knee claim.
(f)The condition did not improve, and investigations made by her treaters indicated that she now suffered from osteoarthritis in the right knee. She was recommended by a treating orthopaedic surgeon that the condition of the right knee was now only effectively treatable by a right total knee replacement. It was this request to Comcare to accept the costs of the surgery that led to the decision made on 20 September 2024.
(g)At present, Ms Foxton continues to work for NBN but in restricted duties since she can no longer perform field duties. She is performing computer work based at home. It is not a permanent position and NBN is shortly to assess her fitness for duty.
(h)She advised that she does not receive any weekly compensation payments for lost income from the injury or compensation for any other medical treatment. She was told by another officer for Comcare that the liability for the claim was to be reviewed but she had not received any further correspondence from Comcare as to the status of her entitlement to compensation. She knows of no further decisions in respect of her claim entitlements. She stated that Comcare were aware of her current address.
(i)Ms Foxton was on a waiting list at the Wide Bay district hospital as a public patient for the total knee replacement surgery. She was told that she was likely going to wait for about a year. She was place on the public list about three or four months ago.
Legislation
Section 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides:
12 Reviewable decisions
(1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.
Section 16 of the SRC Act provides for compensation for the cost of medical treatment ‘in respect of’ an injury where such treatment is reasonable to obtain in all the circumstances.
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Comcare is established by section 68 of the SRC Act and by paragraph 69(a) is required to make decisions in respect of claims and requests.
69 Functions
Subject to this Act, Comcare has the following functions, in addition to its other functions under this Act:
(a) to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act;
Part VI of the SRC Act provides for reconsideration and review of determinations. A claimant is entitled by section 64 of the SRC Act to seek review of a reviewable decision.
64 Applications to the Administrative Review Tribunal
(1)      Application to the Administrative Review Tribunal for review of a reviewable decision may be made by:
(a)      the claimant; or
(b)      if the decision affects the Commonwealth—the Commonwealth; or
(c)      if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d)      if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
The terms ‘decision’, ‘determination’ and ‘reviewable decision’ and ‘determining authority’ are defined in section 60(1) of the SRC Act as follows:
60 Interpretation
(1) In this Part:
claimant means a person in respect of whom a determination is made.
decision has the same meaning as in the Administrative Review Tribunal Act 2024.
determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37, 39 or 57, under paragraph 114B(5)(a) or under Division 3 of Part X.
determining authority, in relation to a determination, means the person who made the determination.
reviewable decision means a decision made under subsection 38(4) or section 62.
When a determination is made, the determining authority is to provide to the claimant certain written information by subsection 61(1) of the SRC Act.
(1) As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).
A reviewable decision is one that is made pursuant to section 62(1) of the SRC Act.
62 Reconsideration of determinations
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the Commonwealth—the Commonwealth; or
(c) if the determination affects a Commonwealth authority—that Commonwealth authority.
By section 97 of the Administrative Appeals Tribunal Act 2024 (ART Act), the Tribunal may dismiss any application for review where it appears that the decision is not reviewable.
97 Tribunal must dismiss application if decision is not reviewable decision
The Tribunal must dismiss an application if:
(a) the application is made for review of a decision; and
(b) the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
Consideration
The decision of 20 September 2024 is a ‘determination’ made in respect of a decision under section 16 of the SRC Act.
However, the 20 September 2024 decision is not a reviewable decision made pursuant to section 62(1) of the SRC Act. The written decision did advise Ms Foxton that she had a right to review the decision and provided a standard form of notice as to those rights which complied with the requirement in subsection 61(1) of the SRC Act.
It now appears that a further application for review (ART No. 2024/10048) has been received by the Tribunal. That is in relation to a reviewable decision dated 23 October 2024 expressly made pursuant to section 62(1) of the SRC Act which affirms the determination of 20 September 2024 ‘which declined liability for total right knee replacement (TKR) surgery.’ That proceeding will continue as a valid proceeding in respect of that decision.
Ms Foxton was able to confirm that she would like to be represented in the proceedings. She has difficulty finding any lawyer in the Maryborough/Wide Bay area with any expertise in the Comcare scheme. She had recently been made aware of a forthcoming Telephone Conference on Thursday, 8 May 2025 in matter no. 2024/10048 and hopes to have representation by the time of that conference.
Ms Foxton indicated that she believed that her 2020 right knee injury was a simple injury involving a medial meniscal tear that became worse over time once she resumed her strenuous physical duties and led to the onset of osteoarthritis in the right knee. She submitted that when in Queensland performing those duties she had to frequently ascend and descend stairs of two-story Queenslander style houses and she noticed the extra strain on her right knee while working. She says that her left knee gives her no trouble at all, and she wishes to pursue the surgery at the earliest possible time. She worries about the security of her employment with NBN while she cannot resume more physical duties.
Given the nature of the matter in dispute involving significant surgery, a shortened timetable of preparation might be considered at the 8 May 2025 preliminary conference to expedite the hearing of the principal matter.
Outcome
Ms Foxton accepts that the primary determination of 20 September 2024 is not reviewable by the Tribunal, not having been made pursuant to section 62 of the SRC Act and, accordingly, the application in ART Matter No 2024/7522 shall be dismissed pursuant to section 97 of the ART Act as a decision that is not reviewable.
The review application in ART Matter No. 2024/10048 will continue to be reviewed and the preliminary telephone conference is set down for 8 May 2025 and will proceed.

Date(s) of hearing: 1 April 2025

Applicant: In person