Hanel and Comcare (Compensation)

[2024] AATA 495

Hanel and Comcare (Compensation) [2024] AATA 495 (12 February 2024)

Division:                  GENERAL DIVISION

File Number(s):      2020/5379

Re:Phillip Lee Hanel

APPLICANT

AndComcare

RESPONDENT

File Number(s):      2021/0997

Re:Phillip Lee Hanel

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:12 February 2024

Date of written reasons:        6 March 2024

Place:Adelaide

WRITTEN REASONS FOR DECISION DATED 12 FEBRUARY 2024 NAMELY:

For the reasons given orally at the hearing of this matter, these applications for review are dismissed.

...............................[Sgnd].......................................

Senior Member B J Illingworth

Catchwords

WORKERS’ COMPENSATION – Dismissal under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 – Frivolous, vexatious, misconceived or lacking substance - Reconsideration of own motion - Application for compensation pursuant to sections 14 and 16 of the Safety, Rehabilitation and Compensation Act 1988 – Application is dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Senior Member B J Illingworth

6 March 2024

1. At the hearing, the decision and reasons were provided orally. The Applicant has requested written reasons under s 43(2A) of the Administrative Appeals Tribunal Act 1975.

2. The oral reasons for the decision have been transcribed. Minor amendments have been made to correct grammar or to render parts legible.

3. The transcript is annexed and provided to the parties as the written reasons for the Tribunal’s decision.

I certify that the preceding 3 (three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...................[Sgnd].............................

Associate

Date: 6 March 2024

Date of hearing:	12 February 2024
Representative for the Applicant:	Phillip Lee Hanel, Self-represented
Representatives for the Respondent	Peter Woulfe, Blackburn Chambers (Counsel) and Athena Cains, McInnes Wilson Lawyers (Solicitor)

ORAL DECISION OF SENIOR MEMBER B J ILLINGWORTH                 [12.19 PM]

1. Senior Member: I will now detail my decision in relation to this matter, consistent with the discussions had with both parties prior to the adjournment. I am sorry to have kept the parties waiting.

2. Pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988, which I will refer to as “the SRC Act”, the respondent has served on Mr Hanel, the applicant, a reconsideration of own motion, which I will call “the reconsideration”, dated 22 January 2024, in respect of two applications for review, filed in the Administrative Appeals Tribunal, which I will refer to as “the Tribunal”, by the applicant.

3. The respondent submits that the reconsideration brings to an end all issues in dispute between the parties, arising from both applications for review, those applications being an application for review of a section 14 compensation claim, and an application for review of a section 16 compensation claim for medical expenses pursuant to the SRC Act, in proceedings 2020/5379 and 2021/0997 respectively.

4. The applicant has declined to withdraw both applications for review, and did not at the start of these proceedings concede that all matters in dispute had been resolved. The respondent has invited the Tribunal to dismiss both applications pursuant to section 42B of the Administrative Appeals Tribunal Act 1975, “the Act”.

5. In terms of background: on 12 December 2019 the respondent received from the applicant a claim pursuant to section 14 of the SRC Act, for compensation for injury arising out of his employment with the respondent, which I will call the section 14 claim. The section 14 claim was accompanied by a claim for medical expenses pursuant to section 16 of the SRC Act, which I will call the section 16 claim.

6. The injury identified in the section 14 claim, and contained in the sole medical certificate, dated 14 January 2020 and filed in support of the application was anxiety, depression and stress arising out of employment, said to have been suffered in or about October 2019. The claim form referred to the applicant first suffering the condition on 1 March 2015.

7. The respondent has maintained its position throughout these proceedings, that at no time did the applicant provide a valid section 19 claim for compensation, and in particular, for incapacity relating to any period or periods when the applicant was said to be incapacitated for work as a result of a work‑related injury, and also failed to provide medical certificates in relation to each claim.

8. During the argument this morning, it became apparent that the applicant agreed that the reconsideration wholly resolved the section 16 claim for medical expenses. I applaud that concession. However, he believed as part of the section 14 claim for compensation, which he made online, he had also made a claim pursuant to section19. He provided a copy of two emails sent to his employer, dated prior to the section 14 application for review, attaching two medical certificates dated 22 October 2019 and 29 November 2019.

9. The applicant has conceded that those medical certificates may not have been provided to the respondent. The applicant has nonetheless in 2024 made a section 19 claim for incapacity for work for various periods, both including those two medical certificates to which I have referred, in addition to other periods of incapacity supported by various medical certificates. Those claims made under section 19 of the SRC Act, are now under consideration by the respondent in the usual way.

10. Turning back to the reconsideration it provides as follows: in regards to the section 14 claim, it was decided that (1) the applicant sustained a condition, namely chronic adjustment disorder with depressed and anxious mood; (2) the applicant first suffered from the condition from at least 20 March 2016, which preceded the date referred to in the section 14 claim, namely on or about October 2019, (3) that the condition in 2016 was significantly contributed to by the applicant’s employment, and (4) that no reasonable administrative action arose in regards to the condition suffered on 20 March 2016.

11. In regards to section 16 medical expenses: it was decided that (1) the applicant suffered an injury for which compensation was payable under section 14 of the SRC Act; (2) all claimed medical treatment was provided by a legally qualified medical practitioner or psychologist, and is medical treatment within the meaning of the SRC Act; and (3) save for treatment obtained by another medical practitioner, who was a cardiologist, the claimed medical treatment was obtained in relation to the applicant’s condition, and was reasonable because it was either treatment for the condition, or symptoms of the condition.

12. Accordingly, the respondent decided (1) to revoke the determination dated 15 April 2020, and accept liability for chronic adjustment disorder with depressed and anxious mood, with a deemed date of injury of 20 March 2016; and (2) that the applicant suffered an injury for which compensation was payable, and revoked the determination dated 15 April 2020. In relation to the claim for compensation under section 16 of the SRC Act, determined that the applicant was entitled to compensation for the specified medical expenses.

13. These claims have always proceeded throughout their history, first, the original determination, then reconsideration and before the Tribunal on the basis of the claims for compensation under section 14 and 16 of the SRC Act. For whatever reason, there has never been a consideration of the two medical certificates dated 22 October 2019 and 29 November 2019, and no decision or reconsideration has ever been made, and no reviewable decision is before the Tribunal with respect to the claimed periods of incapacity.

14. Noting that, those two medical certificates and claimed periods of incapacity, together with others, are now under consideration by the respondent, and in those circumstances the applicant and the respondent do not oppose the Tribunal now make a decision with respect to the reconsideration in accordance with section 42B of the Act. The Tribunal is satisfied that the reconsideration is in all respects a valid reconsideration and the Tribunal decides that pursuant to section 42B of the Act, and in particular section 42B(1)(a), there is no utility in these proceedings continuing, and they are lacking in substance, and accordingly the two claims pursuant to section 14 and 16 are dismissed, noting that the reconsideration wholly deals with both applications.

15. That is the decision of the Tribunal.

    END OF ORAL DECISION   [12.30 PM]