Kemp and Comcare (Compensation)

Case [2019] AATA 3552

Kemp and Comcare (Compensation) [2019] AATA 3552 (10 September 2019)

Division:GENERAL DIVISION

File Number:           2018/2138

Re:Edward Kemp

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:10 September 2019

Place:Sydney

The Tribunal decides that:

  1. The reviewable decision of the respondent dated 16 January 2018 is set aside and the matter is remitted to the respondent for reconsideration with a direction that the binaural hearing loss suffered by the applicant is 6.2%.

  2. The respondent is ordered pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay the costs incurred by the applicant of these proceedings.

    ...............................[sgd]...............................

    Deputy President B W Rayment OAM QC

    CATCHWORDS

    WORKERS’ COMPENSATION – claim for compensation in respect of ‘bilateral sensorineural hearing loss’ – whether applicant suffers from a permanent impairment – whether applicant entitled to compensation – whether calculation of applicant’s hearing loss exceeds 5% binaural hearing loss threshold criteria – decision under review set aside and remitted

    LEGISLATION

    Administrative Appeals Tribunal Act 1975 (Cth) ss 34D, 42C, 43
    Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 29, 39, 40 (repealed)
    Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 7, 14, 24, 62, 67, 124
    Seafarers Rehabilitation and Compensation Act 1992 (Cth) s 78

    CASES

    Australian Postal Corporation v Oudyn [2003] FCA 318
    Azizi and Minister for Home Affairs (Migration) [2018] AATA 2561
    Behan v Australian Telecommunications Corporation [1990] FCA 502; (1990) 26 FCR 337
    Comcare v Burton [1998] FCA 1144; (1998) 50 ALD 846
    Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244; (2005) 148 FCR 472
    Commonwealth of Australia v Snell [2019] FCAFC 57
    Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; 87 ALR 506
    Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 93 ALJR 629
    Hospital Benefit Fund of Western Australia v the Minister of Health Housing and Community Services (1992) 39 FCR 225; 28 ALD 50
    Novosel v Comcare [2017] FCA 722
    Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236
    Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 39; 27 ALD 309
    Shi v Migration Agents Registration Authority [2008] HCA 31

    SECONDARY MATERIALS

    Comcare, ‘Guide to the assessment of the degree of permanent Impairment’ (Edition 2.1, 1 December 2011) – Table 7.1

    National Acoustic Laboratory 1988 Tables

    REASONS FOR DECISION

    Deputy President B W Rayment OAM QC

    10 September 2019

  3. The applicant worked for a Commonwealth instrumentality on two occasions. From 24 October 1973 until June 1984 he worked at the Quarantine Station at North Head as a quarantine assistant.

  4. In 1984 he was transferred to Sydney Airport at Mascot, where he continued until his retirement from employment on 13 May 1999. During that period for several years from June 1991 until 19 September 1995 his employer was the New South Wales government rather than any Commonwealth instrumentality or agency.

  5. At the Quarantine Station his duties…

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AGLC
Kemp and Comcare (Compensation) [2019] AATA 3552
Case
[2019] AATA 3552
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Kemp against a decision of the Administrative Appeals Tribunal (AAT) regarding a claim for compensation for bilateral sensorineural hearing loss. The core dispute revolved around whether the applicant suffered from a permanent impairment and, consequently, was entitled to compensation, specifically whether the calculated hearing loss exceeded the 5% binaural hearing loss threshold criteria.

The legal issues before the court were whether the AAT had erred in its determination and, in particular, whether the Tribunal was bound by a previous consent decision made under section 42C of the Administrative Appeals Tribunal Act. The court was required to consider the interplay between the AAT Act and section 78 of the Seafarers Rehabilitation and Compensation Act 1992, which allows for the reconsideration of determinations.

The court reasoned that section 78 of the Seafarers Rehabilitation and Compensation Act 1992 empowered a decision-maker, and by extension the Tribunal standing in that position, to reconsider an earlier determination of compensation entitlement. This statutory provision was held to prevail over any principle of issue estoppel that might otherwise apply in the Tribunal. The court noted that while repeated applications on the same subject matter could amount to an abuse of process, no such submission was made in this instance. The Tribunal had rejected evidence tendered by the respondent, which was assumed to be persuasive, significant, and relevant for the purposes of the appeal.

The decision under review was set aside and remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The relevant statutory context was that s 43(6) of the Administrative Appeals Tribunal Act provided that:43 Tribunal’s decision on reviewTribunal’s decision taken to be decision of decision-maker6A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect. On the other hand, s 78 of the Seafarers Rehabilitation and Compensation Act1992 provided that:78 Reconsiderations of determinations7An employer may, on the employer’s own initiative, reconsider a determination made by the employer, 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.10A claimant may, by notice in writing given to an employer, request the employer to reconsider a determination made by the employer.11A request for reconsideration of a determination must:(a)set out the reasons for the request; and(b)be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows.12On receipt of a request, the employer must for the purposes of this section:(a)if the employer is a party to a collective agreement or a pre-reform certified agreement that relates to industry panels—arrange for an industry panel; or(b)in any other case—arrange with Comcare for a Comcare officer;to assist the employer in reconsidering the determination under subsection (5).13After making arrangements under paragraph (4)(a) or (b), the employer must, with the assistance of the industry panel or the Comcare officer, reconsider the determination.14After an employer reconsiders a determination, the employer must make a decision affirming or revoking the determination or varying the determination in such manner as the employer thinks fit.15In this section:industry panel means an industry panel established under an industrial agreement for the purposes of assisting the employer in reconsidering a determination under this section. Section 78 permits a decision-maker to reconsider an earlier determination of entitlement to compensation. The Full Court held that, standing in the shoes of the decision-maker, the Tribunal was in the same position. Section 78 of the Seafarers Rehabilitation and Compensation Act prevailed over any principle of issue estoppel otherwise applicable in the Tribunal, and it must follow, the normative rule discussed in Azizi, and, if otherwise applicable, some of the principles established by Perry J in Novosel. The last mentioned matter clearly appears from the fact that earlier decision relied upon by the applicant to defeat the attempt to call evidence by the respondent was a consent decision made under s 42C of the AAT Act. It should be noted, however, that the Full Court expressed approval for what was said by Perry J about the circumstances in which it could be said that repeated applications to the AAT on the same subject matter could amount to an abuse of process. No such submission has been made before me in this case.

Ratio Decidendi

Legal Principle Established

On the other hand, s 78 of the Seafarers Rehabilitation and Compensation Act1992 provided that:78 Reconsiderations of determinations7An employer may, on the employer’s own initiative, reconsider a determination made by the employer, 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.10A claimant may, by notice in writing given to an employer, request the employer to reconsider a determination made by the employer.11A request for reconsideration of a determination must:(a)set out the reasons for the request; and(b)be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows.12On receipt of a request, the employer must for the purposes of this section:(a)if the employer is a party to a collective agreement or a pre-reform certified agreement that relates to industry panels—arrange for an industry panel; or(b)in any other case—arrange with Comcare for a Comcare officer;to assist the employer in reconsidering the determination under subsection (5).13After making arrangements under paragraph (4)(a) or (b), the employer must, with the assistance of the industry panel or the Comcare officer, reconsider the determination.14After an employer reconsiders a determination, the employer must make a decision affirming or revoking the determination or varying the determination in such manner as the employer thinks fit.15In this section:industry panel means an industry panel established under an industrial agreement for the purposes of assisting the employer in reconsidering a determination under this section. Section 78 permits a decision-maker to reconsider an earlier determination of entitlement to compensation. The Full Court held that, standing in the shoes of the decision-maker, the Tribunal was in the same position. Section 78 of the Seafarers Rehabilitation and Compensation Act prevailed over any principle of issue estoppel otherwise applicable in the Tribunal, and it must follow, the normative rule discussed in Azizi, and, if otherwise applicable, some of the principles established by Perry J in Novosel. The last mentioned matter clearly appears from the fact that earlier decision relied upon by the applicant to defeat the attempt to call evidence by the respondent was a consent decision made under s 42C of the AAT Act. It should be noted, however, that the Full Court expressed approval for what was said by Perry J about the circumstances in which it could be said that repeated applications to the AAT on the same subject matter could amount to an abuse of process. No such submission has been made before me in this case. The respondent in Snell tendered evidence before the Tribunal which was assumed for the purposes of the appeal to be persuasive, significant and relevant, and was rejected by the Tribunal.