Kose and Comcare
[2007] AATA 80
•13 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 80
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/153
GENERAL ADMINISTRATIVE DIVISION ) Re BERRIN KOSE Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W Constance, Senior Member
Dr M.D Miller AO, Member
Date13 March 2007
PlaceCanberra
Decision 1) The Tribunal has jurisdiction in this application to consider a claim by Ms Kose that Comcare is liable to compensate her in respect of an injury being pain in the right wrist region, the right arm generally, the right shoulder and the right neck caused by the somatic pain syndrome that is secondary to the accepted mental illness.
2) The application shall be listed for further hearing as to the directions to be made in relation to the determination of the matters remaining in dispute.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION - Reviewable decision dealt with claim for ganglion – Diagnosis incorrect – Applicant sought to have whole of arm injury before Tribunal – Whether Tribunal has jurisdiction to consider whole of arm injury – Correct diagnosis was before reconsideration officer – Tribunal does have power to review different injury
Administrative Appeals Tribunal Act 1988 (Cth) ss 37, 43(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 53, 62
Lees v Comcare (1999) 56 ALD 84
Re Filewood & Comcare (2000) 58 ALD 314
Abrahams v Comcare [2006] FCA 1829
REASONS FOR DECISION
13 March 2007 J.W. Constance, Senior Member Dr M.D. Miller AO, Member INTRODUCTION
1. At the commencement of the hearing of this matter, an issue arose as to the jurisdiction of the Tribunal to consider a claim by Ms Kose that Comcare is liable to compensate her for pain in the right wrist and arm generally caused by somatic chronic pain syndrome. The claim form lodged by Ms Kose in October 2004 described the injury as “ganglion (right wrist).”
2. For the reasons which follow we have decided that the Tribunal does have jurisdiction to consider the claim in relation to the arm generally.
FACTS
3. For the purpose of determining the jurisdictional issue the parties agreed on the tender of various documents, including all of the documents filed pursuant to section 37[1] of the Administrative Appeals Tribunal Act (1988). Ms Kose did not give evidence but it is unnecessary that we hear from her in deciding this issue.
[1] Ex.A5.
4. Unless otherwise stated, the following findings are based on the documents which form exhibit A5. For convenience we will refer to those documents by their “T” reference.
5. In mid-2002 Ms Kose commenced employment by ACT Health. On 18 October 2004 she lodged a claim for workers’ compensation using the form required by Comcare. Two of the questions and Ms Kose’s answers were as follows:
“What injury or illness are you claiming workers’ compensation for?
Ganglion (right wrist).”
“What part(s) of your body has been most affected by your injury or illness?
Right wrist.”
6. Under cover of a letter dated 3 December 2004[2], Ms Kose forwarded to Comcare a medical certificate by her general practitioner, Dr Al-Naser. This certificate[3] was dated 15 October 2004 and referred to the injury of “ganglion right wrist” caused by “overuse (typing).”
[2] T11.
[3] T6 p-21.
7. On 14 December 2004 Comcare accepted liability to compensate Ms Kose in respect of the injury of ganglion (right wrist).
8. On 13 January 2005 ACT Health requested Comcare to review its decision to compensate Ms Kose. Having received notice of this request Ms Kose wrote to Comcare on 3 February 2005, responding to ACT Health’s request for reconsideration. Ms Kose enclosed with her letter a copy of a report of Ms Pam Connor, Psychologist.[4] This report was dated 30 June 2004 and included the following:
“Ms Kose currently presents with symptoms of extreme anxiety – many of these of a somatic nature. Ms Kose has described to me ……..pains in her joints (in particular her right arm and wrist)………..especially when in the workplace……….Ms Kose reported to me that she has only experienced these symptoms over the past two years – during her period of employment in the Cancer Registry ………and has not experienced them at any other time in her life.”
[4] T5.
In her letter, Ms Kose specifically referred Comcare to Ms Connor’s statement in the report that Ms Kose was describing “pains in her joints (in particular her right arm and wrist).”
9. In the letter Ms Kose also advised Comcare as follows:
“This report [of 30 June 2004] is based on my complaints I made during my two previous visits (dated 19 and 26 June 2004) to Dr Connor. As you may appreciate during these visits I was referring to my past symptoms. So, as of 19th of June 2004, I was nto diagnosed with the injury yet, but suffering from it.
My Ganglion diagnosis was made on 30.08.2004. The reason for my late diagnosis was my negligence to talk to my GP ceause of my extreme workload at work and later torturous treatment of the ACT Health officers. I was trying to survive in that hostile environment, so I neglected the pain in my wrist and arm[GF1] .”
Ms Kose also attached a chronology which included the following entries:
“March 2003 Pain in my right wrist and arm starts early in March. Late March a bump in my wist appears. Time to time the bump disappears. I show the usual symptoms; during the rest less pain, while typing and writing very strong pain on the wrist and fingers, and having difficulty to grasp and hold things.
19 June 2004 I mentioned pain in my right wrist to my Psychologist (This is documented in Dr Pam Connor’s 30 June 2004 dated attached report).” [5]
[5] T17 p-50.
10. In April 2005 Dr Stevenson, Consultant Physician, assessed Ms Kose at the request of Comcare. On 29 April 2005 he reported to Comcare that after starting employment with ACT Health Ms Kose “began to get pain in the right forearm, upper arm and right side of the neck……….Ms Kose indicated the development of pain on the extensor aspect of the right wrist, apparently related to typing, and indicated to be on the radial flexor tendon.
In March 2003 she noted a lump, which she indicated to be on the radial flexor tendons of her right wrist. The lump would initially come and go. It was not initially but was soon painful………………….She said she continued to experience pain in the right arm, which she described as very heavy pain…………….The symptoms of the ganglion she described as: ‘Horrible pain on the back of the hand and in the forearm muscles’. She said the pain is always there: ‘pain is unbearable; pain is a killer.’ She indicated pain to the right shoulder and the neck……….I asked her how she is now and she said the pain in the right arm is somewhat less now she does not have to use it all the time.” [6]
In the report Dr Stevenson advised Comcare of his diagnosis in part as follows:
“There is also considerable complaint of arm pain which appears non-specific and not localised to the ganglion, going into the neck. …………Arm pain is recognised as common in persons who are depressed or in situations of distress. It is likely that these symptoms have a more non-physical basis.”
[6] T19.
ISSUE FOR DETERMINATION
11. The issue for determination is whether the Tribunal has jurisdiction to determine in this application whether Ms Kose is entitled to be compensated for an injury now described by Counsel as “pain in the wrist region and the arm generally……….caused by the somatic chronic pain syndrome that is secondary to the accepted mental illness……” [7]
[7] Transcript 18.1.07 p-3.
REASONING
12. This Tribunal’s powers in reviewing a decision are set out in subsection 43(1) of the Administrative Appeals Tribunal Act (1975), which relevantly provides:
“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………..”
13. The powers given by subsection 43(1) were discussed by the Full Court of the Federal Court in Lees v Comcare (1999) 56 ALD 84 at 92:
“Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”
14. Section 62 of the Safety, Rehabilitation and Compensation Act (1988) provides for reconsideration of an original determination by Comcare. Subsection 62(5) provides:
“Where a person reconsiders a determination, the person may make a decision affirming or revoking a determination or varying the determination in such manner as the person thinks fit.”
The section is silent as to the material upon which reconsideration may be made, but it is a well-established practice that the reconsideration officer may consider material not available to the person who made the original determination. In fact Comcare invites both the employer and employee to submit new material (if any) if a reconsideration is sought.
15. The evidence before us does not allow us to be satisfied that when the initial determination was made the decision maker was aware that Ms Kose was claiming to have suffered pain in the right wrist and arm. However by the time the reconsideration officer made her decision on 25 May 2005, it was clear that such a claim was included. Ms Kose specifically referred to her suffering pain in the wrist and arm and also enclosed and referred to Ms Connor’s report setting out the same complaint. Further notice of the complaint of pain in the arm, shoulder and neck was provided in the report by Dr Stevenson received by Comcare in late April or early May 2005.
16. It does not matter that the reconsideration officer did not consider the pain in the right arm, shoulder and neck as a claim separate from the ganglion. Once it is established that this claim was before the reconsideration officer, this Tribunal has jurisdiction to decide upon the claim.[8] The matter before us is a clear case of the Tribunal being entitled to exercise the powers of the maker of the decision under review, irrespective of whether the review officer in fact exercised those powers.
[8] Re Filewood & Comcare (2000) 58 ALD 314 at 315
17. In Abrahams v Comcare [2006] FCA 1829 at paragraph 18 the Court said:
“There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.”
On the facts before us we are satisfied that by providing the information she did before the reviewable decision was made, Ms Kose gave the reconsideration officer clear notice of her claim as it was then being made, and in so doing gave Comcare a fair opportunity to consider the claim properly.
Comcare’s argument
18. Counsel for Comcare argued that:
“An injury is defined by a matrix of circumstances:
a. s53 notice and s54 claim (not approached overly technically, s72 at tier one and two, s33 AAT Act at Tribunal level);
b. physiological or psychological effects s4; “harm sustained” Comcare v Etheridge [2006] FCAFC 27, “the resultant effect of an incident or ailment upon the employee’s body” Canute v Comcare [2006] HCA;
c. the necessary work connection s4, s6, s7;
d. resultant incapacity, impairment or death, or the need for medical treatment (s14 and s 16).” [9]
[9] Counsel’s “Outline of Submissions”.
19. Counsel argued that the injury involving pain in the right arm, which was no longer claimed to be caused by the ganglion on the right wrist, was a new injury of which notice had not been given and in respect of which a claim had not been made. Had the information as to the pain in the right arm, shoulder and neck not been given prior to the review officer’s decision being made, this argument would have required careful consideration in light of the principles set out by the Federal Court in the Abrahams decision. However we have found that in this case the nature and circumstances of the injury were clearly made known to Comcare prior to the reviewable decision being made.
20. Although it is arguable that the condition of the right arm was not notified to Comcare until February 2005, we are satisfied that notice is taken to have been given under subsection 53(3) of Safety, Rehabilitation and Compensation Act (1988). Comcare did not argue that the time requirements of giving notice had not been met. On the basis of the further information as to the nature of the claim later provided by Ms Kose, we are satisfied that the original claim form should be taken as having been amended. It is this amended claim which was before the person who made the reviewable decision and which is now before the Tribunal.
DECISION
21. The Tribunal has jurisdiction in this application to consider a claim by Ms Kose that Comcare is liable to compensate her in respect of an injury being pain in the right wrist region, the right arm generally, the right shoulder and the right neck caused by the somatic pain syndrome that is secondary to the accepted mental illness. We have added the reference to the right shoulder and right neck on the basis of the report of Dr Stevenson.
22. The application shall be listed for further hearing as to the directions to be made in relation to the determination of the matters remaining in dispute.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.
Signed: .....................................................................................
Geoff Foley, AssociateDate/s of Hearing 18-19 January 2007
Date of Decision 13 March 2007
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Elrington Boardman Allport
Counsel for the Respondent Ms L Walker
Solicitor for the Respondent DLA Phillips Fox
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