Frosch and Comcare

[2003] AATA 1207

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1207

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2003/122

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEANNENE FROSCH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date1 December 2003

PlaceCanberra

Decision The tribunal has jurisdiction to consider the respondent’s submissions regarding s 53 of the Safety, Rehabilitation and Compensation Act 1988.

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – AAT jurisdiction – effect of failure to address lack of timely notification in reviewable decision – conflict in Federal Court authority – whether AAT has jurisdiction

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“injury”), 14(1), 24(1), (5), (7), 53(1), (3), 64(1)

Administrative Appeals Tribunal Act 1975 ss 25(1)(a), 37(1), 43(1)

Hill, Comcare (1999) 56 ALD 487

Lees v Comcare (1999) 56 ALD 84

Miles, Comcare v (1995) 129 ALR 427

Moon, Comcare v [2003] FCA 569

Oudyn, Australian Postal Corporation v [2003] FCA 318

Power v Comcare (1998) 56 ALD 141

REASONS FOR DECISION

1 December 2003 Michael Sassella, Senior Member           

RESULT

The tribunal has decided that it has jurisdiction to hear and decide on the issue regarding whether Ms Frosch gave notice of her injury in writing to Comcare as soon as practicable after she became aware of the injury.

BACKGROUND

1.      Ms Jeannene Frosch (“the applicant”) claimed compensation for post-traumatic stress disorder on 4 September 2002 (T8)[1]..  In the claim she identified mid-1994 as the approximate date when she first noticed her illness.  On 28 November 2002 Comcare (“the respondent”) rejected the claim on its merits, finding that Ms Frosch did not suffer from a disease and that her employment made no material contribution to her condition (T18).  This decision was confirmed when Comcare reviewed it (T22).  It is this rejection which is before the Administrative Appeals Tribunal (“the tribunal”) for decision.

[1] See Schedule 2 for a list of exhibits.

2.      On 2 June 2003 the respondent’s representative filed and served a statement of issues raising whether the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[2] applies in Ms Frosch’s case because of her failure to notify the injury to Comcare as soon as practicable after she became aware of the injury in accordance with s 53 of the Act. This issue had not been mentioned in the respondent’s reviewable decision.

[2] See Schedule 1 for relevant statutory extracts.

ISSUES

3. As a result of discussion at a tribunal conference attended by the parties it was resolved that the tribunal should consider as a preliminary issue whether it has jurisdiction to hear Ms Frosch’s appeal. The reason why the tribunal might not have jurisdiction is that s 64(1) of the Act provides that application may be made to the tribunal for “review of a reviewable decision” by any of a number of affected parties. It is questionable whether there is any decision regarding s 53 of the Act before the tribunal given that s 53 has not been addressed in Comcare’s reviewable decision (“the s 53 issue”).

4. The respondent argued that the tribunal has jurisdiction in relation to the s 53 issue because compliance with s 53 of the Act is a requirement of jurisdictional fact before s 14 of the Act can operate. Section 14 is the provision whereby a decision is made as regards whether the insurer (here Comcare) is liable to pay compensation. Counsel for the respondent referred the tribunal to Lees v Comcare (1999) 56 ALD 84, 92 where the Federal Court identified satisfactory compliance with s 53 as one of the matters underpinning any finding that liability exists under s 14 of the Act. Essentially the argument is that without notice under s 53 there can be no valid exercise of the s 14 power and that this is a fundamental matter that can be raised at any time to prevent a decision under s 14. Reliance was placed on Comcare v Hill (1999) 56 ALD 487.

5.      The applicant’s counsel submitted that the recent Federal Court decision in Comcare v Moon [2003] FCA 569 precludes the respondent from raising, and the tribunal considering, the s 53 matter as it was not addressed in the reviewable decision. Essentially a tribunal decision that s 53 prevents the Act from applying in the applicant’s circumstances would be a primary decision and there is no jurisdiction in the tribunal to make such a primary decision.

6.      The issues in this preliminary matter therefore become:

(a)Did the reviewable decision in this matter address the s 53 issue?

(b)If the answer to (a) is no, can the decisions of the Federal Court in Moon (above) and Hill (above) be reconciled?

(c)If the answer to (b) is yes, can the tribunal entertain the s 53 issue?

(d)If the answer to (b) is no, which decision is the more persuasive and with what result as regards the tribunal’s jurisdiction in respect of the s 53 issue?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(A)Did the reviewable decision in this matter address the s 53 issue?

7. It is common ground between the parties, and the tribunal’s assessment from a reading of T22, that the reviewable decision did not address the s 53 issue. In the reviewable decision the writer concentrated on reasons for rejection going to the merits of Ms Frosch’s claim. The answer to (a) is no.

(B)If the answer to (a) is no, can the decisions of the Federal Court in Moon (above) and Hill (above) be reconciled?

8.      The issue in Hill (above) arose in the following way. On 1 August 1992 Mr Hill suffered a myocardial infarction. Mr Hill claimed compensation in the form of weekly incapacity payments and reimbursement of medical expenses under the Act. Comcare decided to pay compensation. In 1994 Mr Hill sought lump sum compensation for a permanent impairment under s 24 of the Act. This was rejected. That rejection was before the tribunal. At the tribunal hearing Comcare queried any connection between the myocardial infarction and Mr Hill’s employment. The tribunal ruled that Comcare could not pursue that argument. That aspect of the tribunal’s decision was appealed to the Federal Court. The court decided that the tribunal erred in refusing to permit Comcare to raise whether the injury was work related. In paragraphs 9 and 10 Spender J noted that s 24(1) of the Act requires that there must have been an injury as defined in s 4(1) of the Act from which results a permanent impairment. He said that the earlier determination affecting weekly payments and medical expenses was not about permanent impairment and that the tribunal had to determine for itself whether the requirements for liability to pay compensation for permanent impairment had been established. He said that no issue estoppel arose from the earlier decision. He summarised, “It is clear that issue estoppel does not apply in respect of decisions of Comcare and of decisions of the AAT in relation to disparate claims, and the position is that the question of ‘work connection’ under a claim pursuant to s 24 of the Safety, Rehabilitation and Compensation Act is not precluded by an earlier determination”..

9.      The tribunal observes that Hill (above) is about issue estoppel in relation to a matter that is integral to the qualification criteria for payment of a particular form of compensation.

10.     In Moon (above) Mansfield J addressed a scenario in which the respondent’s approach to the application before the tribunal was riddled with changes of direction and inconsistencies. Mr Moon developed a lower leg condition while in military service. He successfully claimed workers’ compensation. Seven years later he claimed lump sum compensation on the basis of permanent impairment. A delegate rejected the claim. While there was compensation liability and he had an impairment it was not a whole person impairment of at least 10% in accordance with the impairment tables authorised under s 24(5) of the Act. Section 24(7) mandates that the impairment level must be at least 10% for compensation to be paid. Mr Moon appealed to the tribunal. Shortly before the tribunal hearing another Comcare delegate decided that Mr Moon had a 10% whole person impairment and merited lump sum compensation (“the new decision”). Mr Moon continued his appeal because he believed he qualified for a 20% lump sum and so his issues had not been dealt with in full by the new decision.

11. At the tribunal hearing nine days after the new decision, and despite the new decision, counsel for Comcare put to the tribunal that Mr Moon’s lower leg condition had not been caused or exacerbated by his work. Counsel for Mr Moon argued that the question of the existence of an injury under the Act was not before the tribunal. Comcare also argued that Mr Moon had no degree of permanent impairment from work injury or, in the alternative, any impairment was less than 10%. In paragraph 28 Mansfield J held that the tribunal lacked the power to address whether Mr Moon had suffered a work related injury. He said that the tribunal is entitled to review certain decisions under s 25 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”)[3] and s 64 of the Act. Spender J in paragraph 29 noted that the statement of reasons under s 37 of the AAT Act referred to a reviewable decision affirming that Comcare was not liable to pay lump sum compensation for permanent impairment in respect of the condition. It recited as part of the background that in an earlier decision it had been decided that Mr Moon had suffered injury arising out of his military service but it suggested in no way that this was under review.

[3] In paragraph 31 Mansfield J homed in on s 43 of the AAT Act to say that the tribunal’s powers were “plainly confined” to reviewing the decision referring only to payment of lump sum compensation and not to whether Mr Moon had suffered a compensable injury.

13.     I note that Mansfield J did not refer to the decision in Hill (above).  The issue was not put to Mansfield J in the terms of issue estoppel as it was characterised in Hill (above).  In Hill (above) the issue of jurisdiction was not put to Spender J. I do not see the two decisions as reconcilable. Each at base dealt with whether the question whether liability under s 14(1) of the Act can be considered by the tribunal even if that issue was not considered by the independent review officer responsible for the reviewable decision. A different result is reached in each case.

14.     In my view the answer to (b) is no.  Hill (above) and Moon (above) cannot be reconciled.

(C)If the answer to (b) is yes can the tribunal entertain the s 53 issue?

15.     As the answer to (b) is no this question does not arise.

(D)If the answer to (b) is no which decision is the more persuasive and with what result as regards the tribunal’s jurisdiction in respect of the s 53 issue?

16. Counsel for the respondent in the present case argued that the fundamental nature of the s 53 obligation was such that it can be invoked at any time to deny compensation to an employee regardless of the existence of any primary or reviewable decision on the topic. He cited paragraph 35 of the full Federal Court decision in Lees as authority. In that paragraph their Honours described the impact of a determination that liability exists under s 14(1) of the SRC Act. They said:

“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.”

17.     This theme found a particular application in the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318 where in paragraph 31 the judge held that, once liability has been found to exist in accordance with s 14 of the SRC Act, that liability stands until it is discharged in accordance with the Act. In paragraph 32 Cooper J clarified that any discharge of liability should occur under s 62 of the Act and then only on the basis of a lack of one or more of the five matters identified in Lees (above) as necessarily present for a valid determination of liability under s 14 of the SRC Act.

18.     From the analysis in Lees (above) it seems that the absence of notice as required under s 53 and the lack of an injury ab initio are both fundamental requirements for liability under s 14. There seems no basis for treating them differently as between each other.

19.     From the analysis in Moon (above), it is said to be erroneous of the tribunal to consider an alleged lack of injury ab initio in a matter where that point was not addressed in the reviewable decision.  There would seem no reason on the bases of Lees (above) and Oudyn (above) to distinguish between these two fundamental requirements which were mentioned in paragraph 35 of Lees (above).  Both appear crucial and an absence of either might seem to be the lack of a jurisdictional fact.  However, Moon (above) precludes the tribunal from considering the issue unless it has been considered in the reviewable decision.

20.     I am inclined to prefer the approach of the Federal Court in the Hill decision (above).  Spender J in Hill (above) was able to quote earlier authority consistent with his view, namely Comcare v Miles (1995) 129 ALR 427, 434 and Power v Comcare (1998) 56 ALD 141, 152-153. Spender J’s decision also seems to accord better with the de novo nature of tribunal review.  An argument in support of the opposite point of view, that Moon (above) should be favoured, is that the decision in Moon (above) came after the decision of the full court in Lees (above).  That consideration would have greater weight if it had addressed the need for one of the five fundamental matters listed in paragraph 35 of Lees (above) to have received specific attention in a reviewable decision before it could be raised at the tribunal.  Lees (above) did not advert to that.  It considered whether the tribunal could assess a permanent impairment claim that had not previously been through the reviewable decision process.  I therefore find that the state of Federal Court authority at present is such that the tribunal can legitimately find that it has jurisdiction to consider any of the matters enumerated in paragraph 35 of Lees (above) (see [16] above), including the s 53 issue, even if the decision-maker did not explicitly advert to s 53 in the reviewable decision.

CONCLUSION

21. In my view the tribunal has jurisdiction to consider the s 53 issue in Ms Frosch’s matter.

DECISION

22. The tribunal has jurisdiction to consider the respondent’s submissions regarding s 53 of the Safety, Rehabilitation and Compensation Act 1988.

SCHEDULE 1 - RELEVANT LEGISLATION

The following provisions of the Safety, Rehabilitation and Compensation Act 1988 are relevant:

Interpretation

4. (1) In this Act, unless the contrary intention appears:

…

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

…

Compensation for injuries

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.

…

Compensation for injuries resulting in permanent impairment

24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

…

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

…

(7)       Subject to section 25, if:

(a)       the employee has a permanent impairment other than a hearing loss; and

(b)       Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

…

Notice of injury or loss of, or damage to, property

53. (1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

(a) as soon as practicable after the employee becomes aware of the injury; or

(b) if the employee dies without having become so aware or before it is practicable to serve such a notice-as soon as practicable after the employee's death.

…

(3) Where:

(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;

(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and

(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;

the notice shall be taken to have been given under this section.

…

Applications to the Administrative Appeals Tribunal

64. (1) Application to the Administrative Appeals 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 following provisions of the Administrative Appeals Tribunal Act 1975 are relevant:

Tribunal may review certain decisions

25.(1)   An enactment may provide that applications may be made to the Tribunal:

(a)      for review of decisions made in the exercise of powers conferred by that enactment; or

…

Lodging of material documents with Tribunal

37. (1AAA) …

…

(1)       Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:

(a)       a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b)      every other document or part of a document that is in the person’s possession or under the person’s control and is considered by the person to be relevant to the review of the decision by the Tribunal.

…

Review by Tribunal

43.(1A)…

…

(1)       For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)     affirming the decision under review;

(b)       varying the decision under review; or

(c)       setting aside the decision under review and:

(i)        making a decision in substitution for the decision so set aside; or

(ii)      remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

…

SCHEDULE 2 – EXHIBITS

The tribunal had access to the following material which was received into evidence and marked as exhibits:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T22) provided by the respondent.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .......................................................................................
  Associate

Date of hearing  15 September 2003
Date of final submissions         23 October 2003
Date of decision  1 December 2003
Counsel for the applicant          Mr Alan Anforth
Solicitor for the applicant          Lander & Co, Barristers and Solicitors
Counsel for the respondent      Mr Damien O'Donovan
Solicitor for the respondent      Phillips Fox Lawyers