Michele Lofts and Comcare
[2013] AATA 122
[2013] AATA 122
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5248
Re
Michele Lofts
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 8 March 2013 Place Melbourne 1.The Tribunal has jurisdiction to determine the claim by Ms Lofts for compensation in accordance with section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the cost of medical treatment obtained in relation to the condition of dysphagia suffered by her.
2.Each of the parties shall file in the Tribunal a hearing certificate in relation to this matter within seven days of the date of this decision.
......[sgd J W Constance]..................
Deputy President J W Constance
CATCHWORDS
JURISDICTION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – liability to compensate under s 14(1) – whether Tribunal has jurisdiction under s 16(1) – strict compliance with written compensation claim not required – Tribunal not precluded from dealing with a claim properly before review officer – whether Comcare liable for expenses submitted after reviewable decision made – Tribunal must make decision on the basis of material before it at the time of its decision – Tribunal has jurisdiction to determine claim for compensation under s 16.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1AA), 37, 42C.
Safety, Rehabilitation and Compensation Act (Cth) ss 14(1), 16(1), 19, 54(5), 61, 62, 64, 69(a).
CASES
Abrahams v Comcare [2006] FCA 1829.
Fuad and Telstra Corporation [2004] AATA 1182.
Lees v Comcare (1999) 56 ALD 84.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
Telstra Corporation v Kotevski and Anor [2013] FCA 27.Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263.
REASONS FOR DECISION
Tribunal: Deputy President J W Constance
BACKGROUND
Unless otherwise stated, reference in these reasons to documents with the prefix “T” is a reference to documents filed by Comcare in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
In 2007 Ms Lofts was injured at work. By a Claim dated 7 January 2008 (T4) she claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth), she described her injury as Mental Break down with aggression in the workplace anxiety and depression [sic]. Comcare allocated to this claim the claim number 800255/2. Unless stated otherwise all Comcare documents to which I will refer relate to this claim number.
In April 2008 Comcare accepted liability under section 14 of the Act for a number of injuries suffered by Ms Lofts, including post-traumatic stress disorder and major depressive disorder, single episode (T18).
As part of its ongoing management of the claim Comcare obtained a number of reports from Ms Lofts’ general practitioner, Dr Lewis. In a report dated 5 November 2010 (T110) Dr Lewis reported that Ms Lofts suffered Dysphagia to some solid foods, this appears to be related to reflux of acid, leading to pains in the throat. On 16 February 2011 Ms Lofts spoke by telephone to Ms Tottenham, the Comcare delegate managing her claim (exhibit Z1). The relevant part of Ms Tottenham’s note of this conversation reads:
Mrs Lofts then enquired about the other conditions mentioned in Dr Lewis [sic] report date 5.11.10. I said I would review with my questions and advise decision in writing.
In a written determination dated 3 March 2011 (T119) Comcare decided that in accordance with section 14 of the Act that [it] is not liable for the condition of dysphagia. Ms Lofts requested a reconsideration of this determination. By letter dated 28 October 2011 (T144) Comcare affirmed the determination.
On 8 December 2011 Ms Lofts applied to the Tribunal to review Comcare’s decision. In accordance with the Tribunal’s usual practice several conferences were conducted by a Conference Registrar of the Tribunal to assist the parties to prepare the application for hearing and to investigate the prospects of the matter being resolved by agreement between them.
On 12 June 2012 Ms Lofts’ Solicitors provided to Comcare’s Solicitor a Notice of Past Benefits issued by Medicare. This document set out a list of treatment expenses which Ms Lofts claimed were payable by Comcare should the Tribunal find that the condition of dysphagia was a compensable injury under the Act. This list had not previously been provided to Comcare.
In September 2012 the parties agreed that the condition of dysphagia from which Ms Lofts suffers is an injury in accordance with section 14 of the Act and in respect of which she is entitled to compensation. Normally parties in this situation then prepare and file in the Tribunal a written agreement in accordance with subsection 42C(1) of the Act.
Subsection 42C(1) reads:
If, at any stage of a proceeding for a review of a decision:
(a) agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of an alternative dispute resolution process under Division 3); and
(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c) the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case. (Emphasis added.)
Subsection 42C(2) is the relevant subsection of those referred to and reads:
If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing the dispute between the parties
The parties have been unable to agree in writing because of a dispute between them as to whether the agreement should include a list of the treatment costs incurred by Ms Lofts in relation to the condition of dysphagia. If the parties do not reach agreement it will be necessary to have the matter set down for hearing.
Ms Lofts’ argument
Ms Lofts seeks to have the Tribunal decide, either as a result of an agreement between the parties or following a hearing, that she is entitled to compensation in respect of the medical expenses listed in the Notice of Past Benefits provided by Medibank. It is argued on her behalf that the Tribunal has jurisdiction to make such a finding under subsection 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Subsection 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Comcare’s argument
Comcare’s position is summarised as follows:
22. Comcare submits that the reviewable decision before the Tribunal in this matter is a decision under s 14 of the Act that denied liability for a secondary condition of dysphagia.
23. No other reviewable decision is before the Tribunal and therefore it has jurisdiction only to make a decision under s 14 of the Act.
24. Comcare submits that the Tribunal ought dispose of this matter by deciding that Comcare is liable under s 14 of the Act to pay compensation to the applicant in accordance with the Act for dysphagia. [1]
[1] Submissions of the Respondent dated 5 November 2012.
Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
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.
Comcare argues that the only reviewable decision (i.e. a decision made under subsection 62(4) of the Act) is that made on 28 October 2011.[2] This decision referred only to liability to compensate under section 14 and not to liability to compensate for medical expenses under section 16.On this basis the Tribunal could not be satisfied that it had the power to make a decision in terms of an agreement which included compensation for medical expenses nor could it decide on such compensation following a hearing of the application.
CONSIDERATION
[2] Subsection 62 (2)(a) provides:
A request to a determining authority to reconsider a determination made by it may be made by the claimant.
Subsection 62 (4) provides:
On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
Subsection 62(5) provides:
Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
A written claim for compensation is required by the Act
Compensation is not payable by Comcare unless a claim for compensation is made. The claim shall be made in writing, although strict compliance with an approved form is not required.[3] In construing a notice of injury, in this case the claim form, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice – Abrahams v Comcare .[4]
[3] Section 54(5) Safety, Rehabilitation and Compensation Act 1988 (Cth)
[4] [2006] FCA 1829, [18].
Following what the Federal Court said in Abrahams v Comcare, in this matter Comcare did adopt a broad, generous and practical interpretation. It accepted a claim for compensation for the injury of dysphagia on the basis of Dr Lewis’ report and Ms Lofts’ verbal enquiry of 16 February 2011. Although Comcare now argues that the report of Dr Lewis may be read as a claim to extend liability to include a secondary condition, dysphagia,[5] this is not how the claim was treated in fact. There has been no further claim form lodged. It is clear that Comcare was treating the claim for dysphagia as part of the claim made in writing and dated 7 January 2008.[6] The documentation in relation to the dysphagia claim continued to be issued under the original claim number, 800255/2 (see for example the initial determination and the decision on review).[7]
[5] Submissions of the respondent, para.38.
[6] T4.
[7] T119 and T144 respectively.
Comcare’s approach in dealing with the claim is consistent also with what the Full Court of the Federal Court said in Telstra Corporation Ltd v Hannaford[8]:
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 of course of workers’ compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances.
[8] (2006) 90 ALD 263, 282-83.
The Act establishes a three-tier decision-making process
The provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) establish a three-tier decision-making process – the determination under section 61, the reconsideration under section 62 and the review by the Tribunal under section 64. The Tribunal is only authorised to exercise those powers available to the maker of the reviewable decision, being the reconsideration – Lees v Comcare.[9]
[9] (1999) 56 ALD 84.
Failure to deal with a claim for the cost of medical treatment in the reviewable decision
The fact that the maker of the reviewable decision did not deal with a claim for medical expenses does not preclude the Tribunal from dealing with such a claim if it was properly before the officer who made the reviewable decision.
4.… even though an application for compensation is refused pursuant to s 14 or s 16, with the consequence that the decision-maker does not address fully the actual applications under s 19, s 21 or such other section as is appropriate, nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.
5. It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.
- Fuad and Telstra Corporation Limited.[10]
[10] [2004] AATA 1182 [4]-[5].
In the recent decision of Telstra Corporation Limited v Kotevski and Anor[11] the Federal Court reviewed the authorities. Rares J decided that by failing to refer to a claim for medical expenses in a decision which suggested the decision-maker was making a final decision on the claim, the decision-maker was implicitly rejecting the claim for medical expenses.
[11] [2013] FCA 27.
Claim for compensation under section 16 was made when the claim form was lodged by Ms Lofts
On the facts before me I am satisfied that a claim for the cost of medical treatment[12] arising from Ms Lofts’ claimed psychological injury was before Comcare from the time the claim form was lodged, on or shortly after 7 January 2008.
[12] Medical treatment is defined to include the provision of medicines in subsection 4(1).
In the form prepared by Comcare and titled Claim for Workers’ Compensation,[13] Ms Lofts was asked:
[13] T4.
Have you undertaken any of the following treatments for your claimed condition?[14]
In the space for a reply a number of boxes were provided with the following headings:
·Physiotherapy
·Chiropractor
·Hospital treatment
·Pharmaceuticals
·Counselling
·Other (please specify)
Ms Lofts marked the boxes associated with Pharmaceuticals and Counselling.
[14] Question 13.
In the Checklist at the end of the questionnaire the following appears:
If you are claiming chiropractic, physiotherapy or osteopathic treatment only and not for time off work, have you attached an original certificate from your treating chiropractor, physiotherapist or osteopath?
The first paragraph on the front page of the Claim Form reads:
This form is to be completed if you wish to claim workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Key features of the scheme are explained on the back of this form.
On the back of the form listed as one of the key features of the scheme is:
Benefits include:
- fortnightly/weekly payments based on the employee’s salary;
- all reasonable medical expenses. (Emphasis added).
Having taken into account the wording of the claim form and the fact that Ms Lofts indicated on that form that she had undertaken both pharmaceutical and counselling treatments, I am satisfied that when Ms Lofts lodged the form she was making a claim for compensation in respect of the cost of medical treatment obtained, or to be obtained, in relation to the claimed injury. This is a claim for compensation under section 16 of the Act.
Alternatively the claim for the cost of medical treatment was accepted when Ms Lofts first lodged an account for payment
If I am wrong in deciding that the lodgement of the claim form was a claim for medical expenses, I am satisfied that when Ms Lofts first submitted an account she was making a claim on Comcare for compensation in accordance with section 16.
I am satisfied that such a claim was made no later than February 2008. On 29 January 2008 Mr Trevor Lofts sent an email to Ms Lofts’ employer which stated in part:
I sent you the 2 claims from Comcare registered post last Saturday with accounts that have been paid.[15]
[15] T12.
On 11 June 2008 Comcare wrote to Ms Lofts in relation to claim number 800255/2, being the claim which included the claim for post-traumatic stress disorder and major depressive disorder which occurred on 8 October 2007. Comcare advised that liability had been accepted for these conditions. In the same letter Comcare advised:
Medical expenses related to your condition will be paid by us to you or the provider of the services, as appropriate. Please do not arrange for your medical accounts to be paid or bulk-billed through Medicare as this may result in significant delays in your receiving payments from us.[16] (Emphasis added).
Although Ms Lofts had not been diagnosed with dysphagia at this stage, Comcare made it clear that it had accepted liability for medical expenses which were related to the condition the subject of reference 800255/2. Comcare sent letters in similar terms on numerous occasions over the following two years.
[16] T146.
Comcare accepts that the condition of dysphagia is secondary to the condition for which liability was accepted in April 2008 and which is the subject of claim 800233/2.
Rejection of claim for dysphagia; acceptance of treatment costs
The initial rejection of Ms Lofts’ claim for dysphagia was by letter of 3 March 2011. By letter of 10 March 2011[17] (again under reference 800255/2) Comcare wrote to Dr Lewis informing him that several pharmacy accounts had been received and asking if they related to Ms Lofts’ compensable conditions.
[17] T120.
On 7 June 2011 Comcare wrote to the Peninsula Private Hospital in part as follows:
Claim No: 800255/2
Re: Mrs Lofts
Comcare will pay for reasonable costs relating to gastroscopy and colonoscopy for this claimant.[18]
In the reviewable decision dated 28 October 2011 the Review Officer referred to the admission of Ms Lofts to the Hospital for the indication of dysphagia …[19]
[18] T131.
[19] T144 p.5.
On 14 December 2010 Comcare again wrote to Ms Lofts advising her in relation to claim number 800255/2:
Medical expenses related to your condition will be paid by us to you or the provider of the services, as appropriate. Please do not arrange for your medical accounts to be paid or bulk-billed through Medicare as this may result in significant delays in your receiving payments from us.[20]
[20] T146.
On the basis of the evidence referred to above I find that at both the time of the determination (3 March 2011) and the time of the reviewable decision (28 October 2011) Comcare had before it a claim by Ms Lofts for medical expenses relating to the condition of dysphagia, being part of claim 800255/2. At the time the reviewable decision was made Comcare had confirmed that it would pay reasonable costs in relation to the investigation of the claimed condition of dysphagia.
It is not in dispute that neither the initial determination nor the reviewable decision made reference to any claim for compensation under section 16 of the Act. This is not surprising as in each instance the decision rejected the claim to have dysphagia accepted as a compensable injury. As a consequence there was no reason for either decision-maker to consider the question.
In reaching this conclusion I have followed what the Court said in Fuad v Telstra Corporation Limited and Telstra Corporation Limited v Kotevski to which I have earlier referred.
The treatment costs in dispute were submitted to Comcare after the reviewable decision was made
The final issue to consider is whether the Tribunal is precluded from deciding that compensation is payable in respect of the list of claimed expenses on the basis that those expenses were not submitted to Comcare until after the reviewable decision was made. Comcare argues that this particular claim has not been the subject of the first two tiers of the three-tier review process and that it would be unfair to Ms Lofts to deny her the opportunity of having her claim adjudicated upon fully by Comcare before her claim comes before the Tribunal.
I do not accept this argument. Unless the legislation enabling the Tribunal to exercise its jurisdiction to review provides otherwise, the Tribunal must make its decision on the basis of the material before it at the time it makes it decision – Shi v Migration Agents Registration Authority;[21] Minister for Aboriginal Affairsv Peko-Wallsend Ltd.[22]
[21] (2008) 235 CLR 286.
[22] (1986) 162 CLR 24, 45.
If Comcare’s argument is correct, Ms Lofts will be required to finalize this application by agreeing to a decision by the Tribunal that her condition of dysphagia is a compensable injury within the meaning of section 14 of the Act. Alternatively, had Comcare not agreed that its reviewable decision was incorrect, she would have been required to pursue her application to a hearing. Then, irrespective of the manner in which her present application was finalized, she would be required to lodge with Comcare a new claim for her medical expenses. If that claim was rejected, either partly or wholly, she would then need to apply for a reconsideration. If that decision was not favourable she would be required to again apply to the Tribunal to review Comcare’s decision.
In my view such a process would be poor public administration and would not accord with the requirement of subsection 69(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) that Comcare make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act. Further Comcare would not be meeting its obligation as a decision-maker to assist the Tribunal to provide a mechanism of review that is fair, just, economical, informal and quick.[23] A process such as proposed by Comcare is so far removed from the requirements of these provisions that it gives weight to the proposition that such a result was not intended by Parliament when it enacted Part II of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which deals with the payment of compensation.
[23] Administrative Appeals Tribunal Act 1975 (Cth). Subsection 33(1AA) requires the decision-maker to use his or her best endeavours to assist the Tribunal to make its decision.
I have no doubt that an injured worker completing and lodging the present Comcare claim form would believe that he or she was making a claim for an acceptance of liability and for payment of treatment expenses and loss of income. I am sure that the niceties of the distinctions between acceptance of liability under section 14 of the Act and claims under section 16 and/or section 19 would not be apparent. Comcare could readily avoid the problem which has arisen in this matter by amending the claim form to make it clear that it is a claim under more than one section of the Act, in particular claims for compensation for medical expenses and loss of income.
Nothing I have said in these reasons is inconsistent with the decision of the Federal Court in Lees v Comcare. It is clear that a claim must be dealt with in accordance with the three-tier decision-making process. I have found that the claim for compensation for treatment costs (being the claim in question in this application) was made before that process was commenced, even though particular expenses were not claimed until later.
CONCLUSION
For the reasons stated I have decided that the Tribunal has jurisdiction to determine the claim by Ms Lofts for compensation in accordance with section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the cost of medical treatment obtained in relation to the condition of dysphagia suffered by her.
Each of the parties shall be required to file in the Tribunal a hearing certificate in relation to this matter within seven days of the date of this decision.
I certify that the preceding 45 (forty five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance .
.......[sgd].............................................
Associate
Dated 8 March 2013
Date of Interlocutory hearing 9 November 2012 Counsel for the Applicant Mr M Carey Advocate for the Applicant Ms Z Dealehr Solicitors for the Applicant Clark Toop & Taylor Counsel for the Respondent Mr A Dillon Advocate for the Respondent Ms J Randall-Smith Solicitors for the Respondent Australian Government Solicitor
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