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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michele Lofts and Comcare

Details

AGLC: Michele Lofts and Comcare [2013] AATA 122
Case: [2013] AATA 122
Decision Date

CaseChat Overview and Summary

In the matter of Michele Lofts and Comcare, the Federal Circuit and Family Court of Australia considered a dispute regarding compensation for medical expenses related to the condition of dysphagia. Ms Lofts sought compensation under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), which pertains to the costs of medical treatment for an injury. Comcare, on the other hand, argued that the reviewable decision before the Tribunal was limited to the liability for the condition of dysphagia under section 14 of the Act, and therefore, the Tribunal did not have jurisdiction to decide on compensation for medical expenses. The primary legal issue was whether the Tribunal had the power to make a decision consistent with an agreement that included compensation for medical expenses, or whether it should decide on such compensation following a hearing of the application.

The court examined the legislative framework and the specific provisions of the Act to determine the Tribunal's jurisdiction. It noted that the Act allows for a broad and practical interpretation of claims, as demonstrated in previous cases such as Abrahams v Comcare. The court found that Comcare had initially accepted Ms Lofts' claim for compensation for dysphagia as part of the original claim made in writing. The court also highlighted the statutory scheme's flexibility in allowing for progressive and evolving decision-making, as seen in Telstra Corporation Ltd v Hannaford. Based on these considerations, the court concluded that the only reviewable decision was one that denied liability for dysphagia under section 14, and thus, the Tribunal could not make a decision consistent with an agreement that included compensation for medical expenses.

Consequently, the court ruled that 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. The court's decision was grounded in the specific provisions of the Act and the nature of the reviewable decision before it. This reasoning underscores the importance of adhering to the legislative framework in determining the jurisdiction of the Tribunal in workers' compensation matters.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5248
Re	Michele Lofts
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President J W Constance
Date	8 March 2013
Place	Melbourne