French and Comcare

[2004] AATA 302

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 302

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/1223

GENERAL ADMINISTRATIVE DIVISION

Re:         MICHAEL GERRARD FRENCH

Applicant

And:COMCARE

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             24 March 2004

Place:            Melbourne

Decision:The Tribunal has jurisdiction to determine the application lodged by the applicant.  

(sgd) G.D. Friedman

Member

COMPENSATION - jurisdiction – implementation of Tribunal’s decision – whether letter seeking information constitutes determination   

Safety, Rehabilitation and Compensation Act 1988 ss19, 61, 62, 63, 64, 72

Comcare v Willems (1996) 70 FCR 244

Re Berg and Commission for the Safety Rehabilitation and Compensation of

Commonwealth Employees (AAT 5433, 13 October 1989)

Re French and Department of Defence [2003] AATA 187

Re Knight and Comcare  (1994) 36 ALD 417

Re Pigram and Comcare Australia (1995) 40 ALD 365

Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213

Woodbridge v Comcare (1994) 20 AAR 196

REASONS FOR DECISION

24 March 2004  G.D. Friedman, Member

1.      This is an application by Michael Gerrard French (the applicant) for review of a decision of a delegate of Comcare (the respondent) dated 18 September 2003, concerning ongoing entitlement to incapacity payments.  

2.      At the hearing on a question of jurisdiction on 16 March 2004 Mr I. Fehring of counsel represented the applicant and Mr C. Lolis, a solicitor with Phillips Fox, represented the respondent.

BACKGROUND

3.      On 26 February 2003 in Re French and Department of Defence [2003] AATA 187 the Tribunal made a decision in the following terms:

The Tribunal sets aside the decision under review and substitutes a decision that under the Compensation (Commonwealth Government Employees) Act 1971 the respondent is liable to pay compensation to the applicant in respect of an injury to his lower back on 23 July 1983 and that liability continues. The respondent is to pay the applicant's costs.

4.      On 6 August 2003 the applicant’s solicitor wrote to the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs (the Department) and made a claim for weekly payments of compensation in accordance with the Tribunal’s decision of 26 February 2003.  On 13 August 2003 the Department replied that it had forwarded the request to its Melbourne office.

5.      On 18 August 2003 the Department responded to the applicant’s letter and sought from him medical evidence regarding incapacity and employment details from the date of his discharge from the Army.  On 26 August 2003 the applicant’s solicitor wrote to the Department stating that incapacity since discharge had been established, and that the only outstanding issue was the calculation of weekly payments of compensation.

6.      On 4 September 2003 the Department wrote to the applicant’s solicitor (the 4 September letter) as follows:

Your solicitor asserts that as the AAT have found that you have a high degree of incapacity for work, you as a consequence are entitled to incapacity payments.  The AAT ruling of 26 February 2003 was in respect to ongoing liability for your condition.  The AAT did not consider the Issue of your entitlement or otherwise to incapacity payments.

The fact that that [sic] AAT considers that you suffer an incapacity for work does not in itself constitute an entitlement.  It is a legislative requirement that air periods of claimed incapacity are supported by the provision of a suitable medical certificate from a legally qualified medical practitioner.  As per my letter of 18 August 2003 if you wish to claim incapacity payments which are back dated to 1984 please provide contemporaneous medical evidence to support your solicitors assertion that you were Incapacitated for work during those periods.

I now refer to your solicitors[sic] request regarding the weekly income of a private pay level 4.  Due to your failure to provide information MCRS is unable to determine your entitlement or otherwise to incapacity payments.  The requested information will be provided in writing for all relevant periods, should it be determined that you have such an entitlement.

You should be aware that your claim cannot be progressed until such time as all the requested information has been provided, and that MCRS may refuse to deal with your claim should you fail to comply.

7. On 9 September 2003 the applicant’s solicitor wrote to the Department noting that the applicant considered the 4 September letter to be a determination that the respondent will not pay incapacity payments unless the applicant provides medical certificates. The applicant’s solicitor sought a reconsideration of the determination under s 62(2) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

8.      On 18 September 2003 the Department wrote to the applicant’s solicitor (the 18 September letter):

...

I have reviewed the Decision of Member Friedman dated 26 February 2003 very closely.  I have also obtained advice from Phillips Fox, the legal representatives of the Military Compensation & Rehabilitation Service at trial.

Member Friedman did not make any findings of fact with respect to past, present and future incapacity for employment.  Whilst it is true that Member Friedman accepted the evidence of Mr Hillier and Mr Brearly that you had 'a high degree of incapacity for work' this does not constitute a finding of an ongoing entitlement to incapacity payments.  Further. this finding is in no way relevant to the issue of whether you had an entitlement to incapacity payments for past periods.

Military Compensation & Rehabilitation Service will implement the Decision of Member Friedman in accordance with the SRCA.  As was previously stressed to your legal representatives, the decision cannot be implemented in the absence of certificates of incapacity from a legally qualified medical practitioner.

I note that an ambit claim for incapacity payments has been made despite the evidence before Member Friedman that you had in the past undertaken gainful employment for which you had received a not Insubstantial Income.  There can be no entitlement to incapacity payments for periods where you have no incapacity for employment - those periods where you were gainfully employed.

Please also note that in accordance with the usual claims management procedures, any future entitlements to incapacity payments will be periodically reviewed.  The Decision of Member Friedman does not in any way preclude the Military Compensation & Rehabilitation Service from ongoing claims management of your compensation entitlements.

In order to progress this matter, could you now please ensure that certificates of incapacity are provided to MCRS' Melbourne Office for all periods in which you make a claim for incapacity payments. 

9.      On 24 September 2003 the applicant’s solicitor wrote to the Department enclosing a medical certificate and seeking the calculation of the applicant’s compensation entitlements for the relevant period.  On 24 September 2003 the Department wrote to the applicant’s solicitor seeking further information about the applicant’s service in order to determine his entitlement.

10.     On 26 September 2003 the applicant’s solicitor wrote to the Department and provided information about the applicant’s income for the period 1 July 1990 to 30 June 2002.  On 3 November 2003 the applicant’s solicitor wrote to the Department in response to the letter dated 24 September 2003 and requested the Department to determine the precise amounts of weekly compensation payable to the applicant.

11.     On 5 November 2003 the applicant lodged an application with the Tribunal for review of the decision made in the 18 September letter, on the basis that the applicant is suffering from a compensable injury and has an incapacity for employment, and is therefore entitled to weekly payments of compensation.

12. On 5 February 2004 the respondent wrote to the Tribunal and stated that under s 64 of the SRC Act, the Tribunal had no jurisdiction to determine the application. The respondent claimed that the 4 September letter did not constitute a determination within the meaning of s 61 of the SRC Act, and therefore there was no reviewable decision before the Tribunal.

13.     The issue before the Tribunal is whether the Tribunal has jurisdiction to hear the application.   

CONSIDERATION OF THE ISSUES

14. Mr Fehring submitted that the 4 September letter was a determination under the SRC Act and the 18 September letter was the reconsideration of that determination, and a reviewable decision, bringing the matter within the Tribunal’s jurisdiction. He said that the letter from the applicant’s solicitor dated 6 August 2003 was a claim for benefits under the SRC Act, and in the context of the correspondence, the Department stated in the 4 September letter that it was unable to determine entitlement to incapacity payments. Mr Fehring submitted that this constituted a refusal to determine benefits under s 19 of the SRC Act. Mr Fehring emphasised that at all times the applicant considered the 4 September letter to be a refusal, because on 9 September 2003 the applicant’s solicitor sought reconsideration of the decision under s 62 of the SRC Act.

15.     Mr Fehring referred to the Department’s letter of 24 September 2003 in which the delegate stated:

*On the basis of the available evidence, it appears that you are entitled to fortnightly incapacity payments resulting from Low Back Discomfort.

Mr Fehring submitted that this demonstrated that the Department reconsidered at least one of the previous decisions.

16.     In support of his submission Mr Fehring referred to Re Berg and Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees (AAT 5433, 13 October 1989).  In that case the Tribunal held that a failure by Comcare to forward reasons and attach a statement of rights of review invalidated the determination.  He said the correct approach was taken in Re Knight and Comcare (1994) 36 ALD 417 which followed Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213. Mr Fehring said that in Woodbridge v Comcare (1994) 20 AAR 196 Hill J followed Alvaro and held that the power to review conferred on the Tribunal is a power to review a decision in fact made, whether or not it was made with power.  Mr Fehring noted that the Tribunal adopted this approach in Re Pigram and Comcare Australia (1995) 40 ALD 365.

17.     Mr Fehring submitted that a wide meaning should be given to determinations and requests for re-consideration, and that a formal notice of review rights was not required.  He said that in Comcare v Willems (1996) 70 FCR 244 the Full Federal Court stated (at 249):

...To insist that a letter that fairly admitted of an interpretation, in the particular circumstances, that it was an application for reconsideration, was not a “request for reconsideration” would be to insist upon formality without regard to the provisions of s 72 [of the Compensation Act] and without regard to the nature of the SRC Act as beneficial legislation.

Mr Fehring said that the Department might well have had difficulty in calculating the applicant’s entitlement, but in the 4 September letter the Department decided not to make a determination, so it effectively made a decision to refuse the applicant’s claim.   

18. Mr Lolis submitted that the 4 September letter did not constitute a determination for the purposes of s 61 of the SRC Act. Therefore, the 18 September letter could not be a reconsideration of that determination; although he conceded that the 18 September letter itself might be construed as a determination.

19. Mr Lolis stated that the intention of the Department, by the 4 September letter, was to advise the applicant’s solicitor that contemporaneous medical evidence was required to support any claim for incapacity payments. Mr Lolis said that the Department was not seeking to make a determination of rights or entitlements under s 19 of the SRC Act, but rather to request information in order to provide practical assistance to the applicant’s solicitor in making a claim for incapacity payments. He added that the 4 September letter was a means for the Department to implement the Tribunal’s decision of 26 February 2003. He said that for these reasons the letter did not refer to or enclose a notice of rights of review. He said it would be impractical to attach a statement of rights each time the Department sought information or otherwise processed claims.

20. In respect of the 18 September letter, Mr Lolis stated that it was not a determination as there was no notice of review rights. However, in the alternative, it might be construed as a determination because it went beyond the implementation of the Tribunal’s decision of 26 February 2003 and it also provided advice to the applicant’s solicitor about claims management and entitlement to incapacity payments. He submitted that, even if the Tribunal was to decide that the 18 September letter constituted a determination, there had been no formal request for reconsideration of that determination, so there was no reviewable decision before the Tribunal for the purposes of s 63 of the SRC Act.

21.     Mr Lolis submitted that Alvaro was of limited relevance as that case dealt with procedural irregularities that were not applicable here.  He said that the Department had not acted in bad faith by seeking additional information or documents from the applicant before implementing the Tribunal’s decision.

22. In considering the submissions, the Tribunal notes that s 72 of the SRC Act provides:

In performing the function referred to in paragraph 69(a), Comcare:

(a)shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;

(b)is not required to conduct a hearing; and

(c)is not bound by the rules of evidence.

23.     In Alvaro the Full Federal Court held (at 219):

The scope of the jurisdiction of the AAT in the present case must depend upon the interpretation given to these provisions.  The AAT has taken the narrowest view possible as to the meaning of "decision", namely that there must be a decision which constitutes a legally effective exercise of power conferred by the Act.  On this interpretation if a purported decision lacks legal effect for any reason there is no "decision" within the meaning of s1283.. It would follow by parity of reasoning that there is no "decision made in the exercise of powers conferred" by the Act within the meaning of s.25(1) of the AAT Act. In relation to s.25 of the AAT Act this interpretation is contrary to the decision of the Full Court of this Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 where it was held that a decision made by an administrator in purported or assumed pursuance of a relevant statutory provision is reviewable under the AAT Act even if the administrative decision is legally ineffective or void...

24. The Tribunal agrees with Mr Fehring that, in accordance with the beneficial nature of s 72 of the SRC Act and the reasoning in Alvaro and Willems, a wide interpretation should be given to decision or determination. 

25.      In respect of the 4 September letter, the Tribunal takes into account the submission by Mr Lolis that the Department was seeking the provision of medical evidence from the applicant in order to substantiate his assertion of incapacity, and for that reason no notice of review rights was attached.  If viewed in isolation, that part of the letter might be construed as a simple request for information, although The Tribunal does not accept the submission from Mr Lolis that the absence of a notice of review rights is conclusive that no determination was made by the Department.

26.      When viewed in the context of the correspondence between the Department and the applicant’s solicitor from 6 August 2003, the applicant had made a claim for weekly payments of compensation, and the Department had sought information on 18 August 2003.  In its letter dated 26 August 2003 the applicant’s solicitor asserted that the applicant had demonstrated his incapacity for work.  The Tribunal notes that, in the 4 September letter, the Department, in addition to requesting further medical certificates, stated that ...Due to your failure to provide information MCRS is unable to determine your entitlement or otherwise to incapacity payments.  The Tribunal accepts the submission from Mr Fehring that, in the sequence of events, this response constituted a refusal to determine benefits under s 19 of the SRC Act. Therefore, in the circumstances of this case, the 4 September letter constituted a determination for the purposes of s 61 of the SRC Act.

27. For similar reasons, the Tribunal finds that the 18 September letter constituted a reconsideration of the determination for the purposes of s 62 of the SRC Act, and the application before the Tribunal was made properly under s 62 of the Compensation Act.

DECISION

28.      The Tribunal has jurisdiction to determine the application lodged by the applicant. 

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision of

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  16 March 2004

Date of decision:  24 March 2004

Counsel for applicant:                  Mr I. Fehring

Solicitor for applicant:                  Nevin Lenne & Gross

Advocate for respondent:            Mr C. Lolis
Solicitor for respondent:              Phillips Fox