JOE CAPODICASA and AUSTRALIAN POSTAL CORPORATION Mr Egon Fice, Member
[2009] AATA 617
•20 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR INTERLOCUTORY DECISION [2009] AATA 617
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1870
GENERAL ADMINISTRATIVE DIVISION ) Re JOE CAPODICASA Applicant
And
AUSTRALIAN POSTAL
CORPORATION
Respondent
INTERLOCUTORY DECISION
Tribunal Mr Egon Fice, Member Date20 August 2009
PlaceMelbourne
Decision There being a reviewable decision before the Tribunal for the purposes of the Safety, Rehabilitation and Compensation Act 1988, the Tribunal has jurisdiction to review Australia Post’s decision.
(sgd) Egon Fice
Member
COMPENSATION – reviewable decision – determination – reinstatement of liability for incapacity – acceptance of liability under s14 and its ongoing consequences – no bar to future claims – ongoing adjustment to accommodate changing circumstances
Safety, Rehabilitation and Compensation Act 1988
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Lees v Comcare (1999) 56 ALD 84
Re Grundy and Comcare [1990] 5792
Telstra Corporation Limited v Hannaford (2006) 90 ALD 263
REASONS FOR INTERLOCUTORY DECISION
20 August 2009 Mr Egon Fice, Member 1. On 29 April 2005 Mr Capodicasa lodged with the Tribunal an application for review of a purported decision made by Australian Postal Corporation (Australia Post) on 3 March 2009 regarding the reinstatement of incapacity benefits. The incapacity benefits claimed related to an injury Mr Capodicasa suffered on 24 August 1998 for which Australia Post had accepted liability. That injury was described as aggravation to degenerative disc disease and depressive illness sequelae at L3/L4, L4/L5 and L5/S1.
2. When the Tribunal advised Australia Post of the application pursuant to s 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), Australia Post contended that its letter of 3 March 2009 did not contain material which would permit it to properly be described as a reviewable decision for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
EVENTS LEADING TO THE REINSTATEMENT CLAIM
3. Following Mr Capodicasa’s injury in August 1998, he made a number of compensation claims for incapacity which related to the accepted 1998 compensable condition. He lodged five applications with the Tribunal in 2007 and 2008. They were as follows:
(a)No 2007/5106: an application dated 28 September 2007 relating to three determinations made by Australia Post that Mr Capodicasa had an ability to earn part of his normal weekly earnings in suitable employment between 16 July 2007 and 24 August 2007;
(b)No 2007/5513: an application dated 29 October 2007 regarding a determination that Mr Capodicasa had an ability to earn a higher amount of his normal weekly earnings in suitable employment between 6 September 2007 and 19 September 2007, and that it denied liability for incapacity benefits before 13 September 2007;
(c)Nos 2008/0474-0475: applications which were lodged with the Tribunal on 14 January 2008 in respect of a determination denying liability for incapacity benefits between 20 September 2007 and 26 September 2007, for 28 September 2007 and from 1 October 2007 onwards; and
(d)No 2008/0585: an application lodged on 7 February 2008 in respect of a determination denying liability in respect of total incapacity payments for 16 October 2007.
4. On 16 September 2008 I made a decision pursuant to s 42C of the AAT Act following an agreement reached between Mr Capodicasa and Australia Post. I affirmed all of the decisions which were the subject of the applications referred to above.
5. Mr Capodicasa claimed to have suffered a further injury or aggravation of his existing back injury on 1 July 2008. On 2 February 2009 a delegate of Australia Post determined that Mr Capodicasa’s 1 July 2008 injury should be dealt with as an aggravation of his 1998 injury. The delegate also determined that Mr Capodicasa was entitled to incapacity benefits for 2 July 2008 only and not for 1 and 2 July 2008 as claimed.
6. On 9 January 2009 Mr Capodicasa’s solicitors, Ryan Carlisle Thomas, wrote to Australia Post regarding an allegation that Mr Capodicasa had failed to comply with the return to work plan of 12 December 2008 and therefore Australia Post proposed suspending his claim for compensation. Mr Capodicasa’s solicitors noted that his claim for partial incapacity benefits ceased from 1 October 2007 on the recommendation of Dr Yong; and also because Mr Capodicasa’s claim for secondary depression/stress was rejected by Australia Post. Ryan Carlisle Thomas asked that incapacity benefits be reinstated from 24 November 2008 on the basis that current medical certificates referred solely to Mr Capodicasa’s back injury and liability for that injury was ongoing.
7. Australia Post responded to Mr Capodicasa’s request of 9 January 2009 in a letter dated 3 February 2009. It said:
Finally, on the issue you have raised regarding your clients [sic] entitlement to partial incapacity payments, I note that all applications lodged by you to the Administrative Appeals Tribunal on behalf of your client were affirmed by the Tribunal on 16 September 2008.
8. Ryan Carlisle Thomas responded to Australia Post’s letter of 3 February 2009 in a letter dated 18 February 2009. It referred to Australia Post’s letter and said it understood that letter to contain a decision rejecting Mr Capodicasa’s claim for partial incapacity benefits on the basis that his application for partial incapacity benefits was dealt with by the Administrative Appeals Tribunal on 16 September 2008. It pointed out that the Tribunal can only make decisions regarding the status of a claim which is before it and noted that the previous claim for partial incapacity benefits was for Mr Capodicasa’s back injury and stress. It repeated that the current claim relied on the back injury only. Unfortunately, Ryan Carlisle Thomas did not point out that the claimed reinstatement of partial incapacity benefits was for a period unrelated to the claims made by Mr Capodicasa in the applications which were confirmed by consent by the Tribunal on 16 September 2008. This, it appears, led to some confusion.
9. Australia Post responded to Ryan Carlisle Thomas’ letter of 18 February 2009 by letter dated 3 March 2009. In that letter Australia Post referred to Mr Capodicasa’s new claim, which was lodged on 5 January 2009, but which related to an injury said to have occurred on 1 July 2008. Australia Post pointed out that the claimed accident on 1 July 2008 resulted in a medical certificate being issued for one of the two days claimed. It also pointed out there were no further restrictions imposed. Australia Post said there was no indication that Mr Capodicasa suffered a new, distinct injury or partial incapacity for work. It then concluded that Mr Capodicasa had already been deemed as having the capacity to earn his pre‑injury salary, which was the matter addressed by the Administrative Appeals Tribunal. It seems that Australia Post, in responding, assumed that the reinstatement of incapacity benefits sought by Mr Capodicasa in Ryan Carlisle Thomas’ letter of 9 January 2009 resulted from the claimed injury of 1 July 2008. This was clearly a misunderstanding.
10. Ryan Carlisle Thomas responded to Australia Post’s letter of 3 March 2009 in a letter dated 25 March 2009. Ryan Carlisle Thomas acknowledged that Australia Post had accepted Mr Capodicasa’s incapacity claim for two days as a result of the 1 July 2008 incident. Notwithstanding that acknowledgement, it sought reconsideration of that decision; presumably on the basis that Mr Capodicasa said he had suffered a deterioration of his condition since the incident as he had increased pain in his legs. Ryan Carlisle Thomas submitted that liability for that incident should be ongoing. In addition, Ryan Carlisle Thomas noted that Australia Post had rejected liability for any ongoing partial incapacity with respect to that injury. It did not make clear in that letter that it was referring to the original injury. Ryan Carlisle Thomas then said:
… In this connection, whilst you have not specifically issued a Reviewable Decision regarding our request for partial incapacity benefits from 25th November 2008 to date and continuing, we take your letter of 3rd March, 2009 to be a Reviewable Decision insofar as you again repeat your position that Mr Capodicasa’s claim for partial incapacity benefits was dealt with by the AAT.
We therefore take your letters of 3rd February 2009 and/or 3rd March 2009 to be a Reviewable Decision regarding our request for reinstatement of partial incapacity benefits.
11. Ms C Serpell of counsel, who appeared on behalf of Mr Capodicasa, submitted that Ryan Carlisle Thomas’ letter of 9 January 2009 was a claim for partial incapacity compensation from 24 November 2008 and continuing. Ms Serpell submitted that Australia Post’s response dated 3 February 2009 was a determination made pursuant to s 19 of the SRC Act. She submitted that Australia Post’s response of 3 February 2009 was a rejection of Mr Capodicasa’s claim for incapacity benefits and Ryan Carlisle Thomas’ letter of 18 February 2009 was a request for reconsideration of Australia Post’s decision refusing partial incapacity benefits. Ms Serpell further submitted that Australia Post’s response set out in its letter of 3 March 2009 constituted a rejection of Mr Capodicasa’s claim following reconsideration and therefore was a reviewable decision.
12. Ms L Demetrios, of Sparke Helmore Lawyers, who appeared on behalf of Australia Post, submitted that the letter from Australia Post to Ryan Carlisle Thomas dated 3 March 2009 did not constitute a reviewable decision. She referred to the Tribunal decision in Re Grundy and Comcare [1990] 5792, a decision of Senior Member Balmford. She submitted that this matter was on all fours with Grundy’s case because, in that case, the Tribunal found that a letter from Comcare stating it would not consider this matter any further because a consent decision had been made, was not a reviewable decision. According to Ms Demetrios the Tribunal said, at paragraph 11:
… [The] letter of 8 November 1989 does not contain a “reviewable decision”, and the Tribunal accordingly has no power to review the decision which it contains. Whether Mr Grundy may be able to seek reconsideration of that decision under section 62, or to seek review of that decision elsewhere, are not matters with which this Tribunal can be concerned.
13. However, paragraph 11 in the Grundy decision as quoted above, is not complete. That paragraph begins with the words: That being so. In order to properly understand what the Tribunal meant, it is necessary to read the two preceding paragraphs of the decision.
14. The position in Grundy’s case was that on 17 March 1989 the Tribunal made a consent decision in accordance with the AAT Act. The consent decision related to Mr Grundy’s anxiety with depressive symptoms, which he was said to have suffered between 20 March 1987 and 8 June 1987. The effects of Mr Grundy’s condition were agreed to have ceased by 3 January 1988. On 7 October 1989 Mr Grundy lodged another claim with Comcare in respect of anxiety which he claimed to have suffered on 28 January 1988 and 18 February 1988; that is, after the period referred to in the consent decision. Comcare’s response was that Mr Grundy’s claim had already been considered. It referred to the consent agreement reached on 9 March 1989 (presumably the one which was the subject of the consent decision made by the Tribunal). Comcare then said that it did not propose to consider the matter any further. Mr Grundy regarded the letter from Comcare, which was dated 8 November 1989, as a reviewable decision and lodged an application for review with the Tribunal.
15. Senior Member Balmford said, at paragraph 9 of her decision, that the decision recorded in the letter of 8 November 1989 was, in effect, a refusal to make a determination on Mr Grundy’s claim. She noted that the letter did not purport to have been made by a delegate of Comcare but said that, if it had been made by a delegate, it would be a decision by virtue of s 3(3) of the AAT Act. She also said that the letter would constitute a decision for the purposes of s 60(1) of the SRC Act. That was because the definition of determination in the SRC Act at that time included a decision as defined. However, in paragraph 10 of her decision, Senior Member Balmford noted that the Tribunal’s jurisdiction was dependent upon there being a reviewable decision as defined in s 60(1) of the SRC Act. In order to be a reviewable decision, that decision had to be made following reconsideration of a determination. She found there had been no reconsideration of the decision contained in Comcare’s letter of 8 November 1989. That is why she came to the conclusion set out in paragraph 11 of her decision; and why that decision commences with the very important words: That being so,.
16. Clearly, the situation in Mr Capodicasa’s case is different to that in Grundy’s case. Arguably, Ryan Carlisle Thomas sought reconsideration of what it claims was a decision set out in Australia Post’s letter of 3 February 2009. If Australia Post’s letter of 3 March 2009 could properly be regarded as a reconsidered decision, then that might satisfy the SRC Act.
17. Before making findings about the nature of the correspondence which passed between the parties, it is helpful to examine some fundamental aspects regarding the interpretation of the SRC Act.
18. Section 14 of the SRC Act provides that Comcare is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. Section 60 of the SRC Act contains a definition of the word determination. It means, amongst other things, a determination, decision or requirement made under s 14 of the SRC Act. As the Full Court of the Federal Court said in Lees v Comcare (1999) 56 ALD 84 at 91 - 92:
In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with this Act” in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
19. Cooper J in Australian Postal Corporation v Oudyn (2003) 73 ALD 659 referred to Lee’s case indicating that the decision to accept liability under s 14 of the SRC Act involves no more than acceptance of liability to pay compensation under the SRC Act in accordance with its provisions. His Honour went on to say, at 667:
[31] The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24. These determinations give substance to the liability “… to pay compensation in accordance with this Act”, provided for in s 14. They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated.
Cooper J explained:
[33 ]Where … [the insurer] is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant.
He then said:
It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
[34] APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.
20. Therefore, in applying the reasoning in Oudyn’s case to the matter before me, the fact that Australia Post determined, by consent, Mr Capodicasa’s incapacity claims for the period between 16 July 2007 and 24 August 2007; for 13 September 2007; for the period between 20 and 26 September 2007; for 28 September 2007; for 1 October 2007 onwards; and for 16 October 2007 does not mean that liability for any incapacity arising out of his 1998 accepted compensable condition has ceased. There is no bar to Mr Capodicasa claiming further incapacity benefits under any other section of the SRC Act which arise out of his accepted claim.
21. In fact, Mr Capodicasa’s 1998 claim must stand unless there has been reconsideration under s 62 of the SRC Act (see Telstra Corporation Limited v Hannaford (2006) 90 ALD 263). In Hannaford’s case, Conti J, with whom Heerey and Dowsett JJ agreed, said that:
… The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature course of workers’ compensation. …
He said, at 282:
[57] In my opinion, it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here, of course, Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT.
Conti J also pointed out that the statutory scheme provided for ongoing adjustment designed to accommodate changing circumstances, including the changing of the medical diagnosis of the applicant’s condition.
22. It follows from the rationale in Hannaford’s case that although Mr Capodicasa’s claim in respect of incapacity benefits from 24 November 2008 and ongoing was in respect of his back injury and not stress, nothing turns on that.
23. For this Tribunal to have jurisdiction to determine whether Mr Capodicasa was entitled to partial incapacity benefits from 24 November 2008, which incapacity arose out of his accepted 1998 compensable condition, I need to be satisfied that I have before me a reviewable decision as that expression is defined in the SRC Act.
24. Section 64(1) of the SRC Act provides that the Tribunal may review a reviewable decision on application by the claimant. The expression reviewable decision is defined in s 60(1) and it means a decision made under s 38(4) or s 62 of the SRC Act. As we are not concerned here with a decision of a rehabilitation authority, s 38(4) is irrelevant. Section 62 of the SRC Act deals with the reconsideration of determinations. It provides that a determining authority may, either of its own motion, or on the request of a claimant, cause a determination to be reconsidered. A decision is defined in s 60(1) of the SRC Act as having the same meaning as it has in the AAT Act. Section 3(3) of the AAT Act provides that, unless a contrary intention appears, a reference to a decision includes a reference to:
(3)…
(a)making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.
25. The question which arises is whether Australia Post’s letter of 3 February 2009 can properly be construed as a decision as that word is defined in the AAT Act.
26. Following Mr Capodicasa’s request for the reinstatement of partial incapacity benefits from 24 November 2008 to date and continuing, Australia Post responded by stating that all applications lodged by Mr Capodicasa with the Tribunal were affirmed by the Tribunal on 16 September 2008. While not expressly stating that it refused Mr Capodicasa’s request, the inescapable inference from its statement is that all issues regarding incapacity arising out of Mr Capodicasa’s 1998 accepted compensable condition had been dealt with and were not able to be reconsidered as a result of the Tribunal’s consent decision. The author of the letter appears to have overlooked the fact that the period for which Mr Capodicasa claimed partial incapacity benefits was outside the period which was the subject of the consent orders.
27. I find that the letter does constitute a refusal to make a determination because Australia Post had formed the mistaken view that Mr Capodicasa’s claim for partial incapacity benefits had already been dealt with by the Tribunal on 16 September 2008. Mr Capodicasa’s claim for incapacity benefits was made under s 19 of the SRC Act, and his liability claim under s 14 in respect of his compensable injury had not been reconsidered. Therefore, I find that Australia Post’s letter of 3 February 2009 was a determination as that word is defined in s 60(1) of the SRC Act.
28. Ryan Carlisle Thomas’ letter of 18 February 2009 expressly sought a reconsideration of Australia Post’s decision rejecting liability for Mr Capodicasa’s claim for partial incapacity benefits from 24 November 2008. In that letter, Ryan Carlisle Thomas also sought a determination regarding Mr Capodicasa’s further claim for injury to his back which occurred on 1 July 2008 and for which he lodged a claim on 5 January 2009.
29. Australia Post responded on 3 March 2009, essentially in respect of the new claim dated 5 January 2009. Although the writer appears to be confused about the nature of Mr Capodicasa’s partial incapacity benefits claim and the 5 January 2009 claim, the writer said:
Mr Capodicasa has already been deemed as having the capacity to earn his pre‑injury salary, a matter addressed at the AAT.
30. In my opinion, that is necessarily a reference to the request for reconsideration of Mr Capodicasa’s partial incapacity benefits claim and not the subsequent claim brought on 5 January 2009. Under s 62(5) of the SRC Act, where a person reconsiders the determination, the person may make a decision affirming or revoking the determination, or varying the determination in such manner as the person thinks fit. I find that the statement made by Australia Post that Mr Capodicasa has already been deemed as having the capacity to earn his pre‑injury salary can, as a matter of ordinary construction, be regarded as an affirmation of its refusal to accept Mr Capodicasa’s incapacity benefits claim. I am satisfied that I have before me a reviewable decision as that expression is defined in the SRC Act. It necessarily follows that I find the Tribunal has jurisdiction to review Australia Post’s decision to refuse Mr Capodicasa’s incapacity benefits claim from 24 November 2008 and continuing.
31. It was suggested that Mr Capodicasa had not made a claim in accordance with s 4 of the SRC Act for the partial incapacity benefits and, accordingly, compensation was not payable to him. While s 54(2) prescribes a written claim must be made in accordance with the form approved by Comcare, s 54(5) provides that strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient. In any event, as the Full Court of the Federal Court said in Lee’s case, at page 91:
[30] It is clear that Pt V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act. The form approved by Comcare as required by s 54(2)(a) reflects the generic nature of a claim under the section. It is headed “Claim for Rehabilitation and Compensation”. It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.
32. Although no reference is made in that decision to s 19 of the SRC Act, in my opinion that is because the prescribed claim form requires detailed information concerning the injury and time taken off work because of the injury. While that information may necessarily be provided at the time the s 14 claim is made, and that would of course enable a determination to be made regarding incapacity benefits under s 19, it will not necessarily be the case where further incapacity arises out of the original injury some years after the accepted event. A claim for incapacity benefits arising out of an initial claim made under s 14 of the SRC Act, in accordance with the progressive and evolving nature of the decision making in respect of that claim, as referred to by Conti J in Hannaford’s case, leads me to find that a further claim need not be lodged. In fact, in my view, all that is necessary is that an applicant provides evidence of the incapacity which is subsequently claimed, and furnishes proof that the incapacity has arisen from the initially claimed injury.
CONCLUSION
33. It is my view that Australia Post’s letter to Ryan Carlisle Thomas dated 3 March 2009 should be regarded as reconsideration of Australia Post’s initial determination made on 3 February 2009 regarding Mr Capodicasa’s incapacity benefits claim. There being a reviewable decision in accordance with the SRC Act, the Tribunal has jurisdiction to review Australia Post’s decision.
I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, MemberSigned: .....Dianne Eva
Clerk
Date of Hearing 6 August 2009
Date of Decision 20 August 2009
Solicitor for the Applicant Ms Lydia Demetrios, Sparke Helmore
Counsel for the Respondent Ms C. Serpell
Solicitor for the Respondent Ms Angela Sdrinis, Ryan Carlisle Thomas
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