Miller and Comcare (Compensation)

[2016] AATA 854

Miller and Comcare (Compensation) [2016] AATA 854 (28 October 2016)

Division	GENERAL DIVISION
File Number	2015/2689
Re	Simon Miller
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date	28 October 2016
Place	Canberra

The Tribunal determines that, at the hearing of Mr Miller’s application, it has jurisdiction to consider and determine whether he suffered a psychological condition on about 15 March 2012 which is excluded from the definition of injury by virtue of the exclusionary provisions in s 5A of the Act. Further, the Tribunal has the capacity to consider whether Mr Miller’s psychological condition abated before 3 August 2010 (or at some other point in time).

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

Deputy President Gary Humphries

Catchwords

COMPENSATION – Commonwealth employees – scope of claim for compensation – whether Tribunal has jurisdiction to consider and determine claim for psychological condition.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 25

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A

Cases

Comcare v Muir (2016) 150 ALD 321

Lees v Comcare (1999) 56 ALD 84

Szabo v Comcare (2012) 58 AAR 152

REASONS FOR DECISION

Deputy President Gary Humphries

28 October 2016

1. This is an interlocutory application, seeking a ruling from the Tribunal concerning the scope of a forthcoming hearing of the applicant’s claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). It is first necessary to set out some background to put the issue on which the ruling is sought in context.

2. The applicant, Simon Miller, is an officer of the Australian Federal Police (AFP). In June 2008 he was deployed to the Solomon Islands as part of the policing contribution to the Regional Assistance Mission in the Solomon Islands (RAMSI). During that deployment he claims to have been exposed to traumatic situations, contributing to the onset of a mental health condition. On his return to Australia in June 2009 he was placed in the AFP’s International Deployment Group, and then transferred to the AFP’s ACT policing operation in November 2009. In this role he commenced working at the Gungahlin Police Station.

3. Over the following three years, while based in various areas of ACT Policing, Mr Miller apparently experienced further symptoms of a mental health condition, which he described variously as low mood, depression and anxiety and a breakdown. These conditions were contemporaneous with a number of disciplinary issues, including complaints relating to his service in the Solomon Islands and other disciplinary matters arising out of his work in various parts of ACT Policing.

4. After returning from the Solomon Islands Mr Miller consulted Patricia Vincent, an AFP psychologist, on 18 September 2009 in relation to his mental health condition. He subsequently saw other health professionals for diagnosis and treatment of his condition. In particular, he saw Dr David Voon on 15 March 2012.

5. The application for review now before the Tribunal relates to a workers compensation claim lodged by Mr Miller on 20 June 2012. With respect to the present interlocutory application, much turns on the information provided by Mr Miller in this claim, and I will return to those details shortly. On 24 August 2012 Comcare rejected Mr Miller’s claim, its delegate finding that he could not be satisfied Mr Miller was suffering from an injury at the time he first sought counselling from Ms Vincent in 2009, and that it was not until he sought treatment from Dr Voon in 2012 that it was clear he was suffering from severe depression and anxiety. The delegate found that there was a work-related condition, deemed to have been suffered on 15 March 2012, but that the condition was not an injury under the Act because it was caught by the exclusionary provisions of s 5A relating to reasonable administrative action.

6. Mr Miller’s solicitor wrote to Comcare on 25 March 2015 seeking reconsideration of this decision, and emphasised that the claim was for a date of injury of 18 September 2009, as a result of issues occurring during deployment to the Solomon Islands. The solicitor added:

   Further and in the alternative, if Mr Miller’s claim includes in any part, issues occurring following his return from the Solomon Islands then the way in which those investigations were conducted was not reasonable in the circumstances and the exclusionary provisions do not arise.

7. On 28 May 2015 the delegate’s decision of 24 August 2012 was upheld on reconsideration, with similar reasoning provided. An application for merits review of this decision was made to the Tribunal on 2 June 2015.

8. On 18 January 2016, Mr Miller’s solicitors filed and served a Statement of Issues, Facts and Contentions in which it was contended that he had suffered a chronic mood disorder contributed to by his employment in the AFP and particularly as a result of matters occurring during his deployment to the Solomon Islands as a member of the RAMSI Mission. There were also contentions regarding the prosecution and resolution of complaints against Mr Miller by the AFP between June 2009 and August 2011. One contention was that

   Any aggravation of the applicant’s ongoing condition caused by PRS investigations occurring in the course of his employment following his return from the Solomon Islands is not a significant contributor to his mental health state.

   Nonetheless, the Statement postulated that one of the issues before the Tribunal was:

   Were any or all of the actions of the Australian Federal Police in:

   a)The way in which they undertook PRS investigations into the applicant;

   b)The direction that during the conduct of those investigations the applicant’s use of force certification, weapon and accoutrements be removed and he be reassigned; and

   c)The informal counselling sessions conducted by his supervisors

   reasonable administrative action undertaken in a reasonable manner?

9. On 29 February 2016, Comcare filed and served a Statement of Issues, Facts and Contentions by which it accepted that its reviewable decision ought to be set aside. It was accepted also that a decision should be made by which Comcare is found liable to pay compensation to the applicant under s 14 for a psychological condition which was suffered on 18 September 2009, the date Mr Miller first consulted Ms Vincent. It further contended, however, that the applicant was not suffering from a psychological condition from 3 August 2010.

10. The application was set down for hearing before the Tribunal, commencing on 29 August 2016. On the Friday before commencement of the hearing, an urgent application was made by Comcare for a ruling on the scope of the Tribunal’s review in the forthcoming hearing. In the absence of counsel for Mr Miller, the Tribunal held over this interlocutory application until the following Monday, 29 August 2016, the day set down for commencement of the hearing proper.

11. On that day Comcare sought a decision that the Tribunal had jurisdiction to consider – and rule on – two questions, namely:

    (a)whether the applicant suffered a psychological condition circa 15 March 2012 which is excluded from the definition of injury by virtue of the exclusionary provisions in s 5A of the Act;

    (b)whether the applicant’s psychological condition abated before 3 August 2010 (or at some other point in time).

12. The Tribunal heard argument from both parties on the day, and reserved its decision. The Tribunal has since come to the view that it does have jurisdiction to deal with the two questions posed by Comcare (though the phrase deal with requires some explanation, provided below).

    The applicable law

13. The Tribunal lacks the power, exercisable at large, to review impugned decisions of government agencies; that power must be specifically conferred on the Tribunal by an enactment (s 25(1) of the Administrative Appeals Tribunal Act 1975). An enactment may specify conditions governing the manner in which applications may be made to the Tribunal (s 25(3)(c)). The Safety, Rehabilitation and Compensation Act 1988 is one such enactment which sets out specific conditions for appeals to be made to the Tribunal. Part VI of that Act, in particular, sets out a precondition for Tribunal review which is common to almost all the enabling enactments: that the impugned decision must first be subject to both determination and reconsideration internally by the subject agency. A decision only becomes a reviewable decision, facilitating the Tribunal’s review, once it has passed through this two-stage process.

14. The Full Court of the Federal Court in Lees v Comcare (1999) 56 ALD 84 considered the architecture of Part VI of the Act, and held:

    [32] Part VI of the Act is headed “Reconsideration and review of determinations”. It establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision — but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination. …

    [34] The definition of “determination” makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. 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.

    [35] This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an “employee” at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment. ...

    [39] In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions — that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers “[f]or the purpose of reviewing” the reviewable decision, not powers that may be exercised at large. 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.

15. There must be a substantial measure of alignment, or overlap, between what an applicant claims amounts to an injury under the Act, what the reviewing decision makers consider that injury to have been and what injury the Tribunal then considers on review. A failure by the Tribunal to consider the claim as actually made by an applicant, or as actually reconsidered by the decision makers, goes to the question of the Tribunal’s jurisdiction to make a determination in that matter.

16. In Comcare v Muir (2016) 150 ALD 321 the Federal Court considered whether the claim advanced by the applicant before the Tribunal was in essence the same claim which had previously been considered by Comcare. In finding that it was not, Flick J commented:

    [30] No unnecessary emphasis should be placed, for example, upon the answers provided in a claim form. And the terms of emails forwarded on behalf of a claimant should not be parsed and analysed with a view to limiting what is otherwise a more generally-expressed claim for compensation. A practical and common-sense approach, even a “generous” approach, should be adopted in reaching an informed decision regarding the nature of the claim sought to be resolved. Even though a claim may be generally expressed, it must nevertheless properly and adequately inform Comcare such that Comcare can make an informed decision on whether the claim as made should be met: cf. Abrahams [2006] FCA 1829 at [18], (2006) 93 ALD at 152. Nor does it promote good administration and the proper resolution of claims for compensation to encourage a course whereby claimants may opportunistically (for example) seek to re-characterise a claim as one other than that in fact made in order to avoid the consequence of findings already made, or which may be made, that would exclude any entitlement to compensation (such as findings that an injury resulted from “reasonable administrative action taken in a reasonable manner”).

    [31] On the facts of the present case, and for whatever reason, there seems to have been a shift in the manner in which Ms Muir presented her claim for compensation at least by the time of the Tribunal hearing. …

    [34] The central question was the claim as made. …

    [37] Although limited flexibility is conferred upon the Tribunal to reformulate a claim, and whatever may be the outer limits of the power to do so, a claim confined to an injury suffered in October 2013 cannot be transformed into a claim for an injury suffered in 2010-2012. Unlike the claim resolved by Katzmann J in Kennedy where there had been a general description of the injury suffered and no specification of the date of injury, the facts in the present case stand in contrast. On the facts of the present case there was repeated reference to the injury the subject of the claim being that suffered in October 2013. It is not capable, with respect, of a conclusion that the claim was for an injury suffered at an earlier, unspecified point of time.

17. In Szabo v Comcare (2012) 58 AAR 152 the Federal Court considered the appellant’s contention that he had been denied procedural fairness before the Tribunal when it failed to construe a claim for an injury on a specific date as, in effect, a nature and conditions of employment claim. The Tribunal had held that it lacked jurisdiction to consider such a claim because there was no determination or reviewable decision concerning such a claim. In upholding the Tribunal’s approach to jurisdiction, the Full Court determined:

    [41] It is not possible to find, in the documents completed by or on behalf of Mr Szabo immediately following the incident of 20 June 1989, a claim in respect of some injury or disease arising from the nature and conditions of his employment. The extract set out in the Schedule to these reasons makes clear that Mr Szabo gave specific responses to specific questions. Thus he says:

    ·The injury occurred at 9.50 am on 20 June 1989.

    ·The part of his body affected was back (lower).

    ·The type of injury or disease suffered was strain.

    ·At the time of the injury, he was inspecting lambs.

    ·The injury happened because of constant bending and lifting.

    ·The thing that caused the injury or disease was continuous lifting of lamb shanks.

    Those answers do not amount to a claim for a disease or injury that was aggravated or contributed to in a material degree by the nature and conditions of Mr Szabo’s employment.

    [42] That is not to say that it would not now be open to him to make a claim. However, until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal. There was no error on the part of the Tribunal.

    Scope of the applicant’s claim for workers compensation

18. These authorities make it abundantly clear that the font of the Tribunal’s jurisdiction is the applicant’s originating claim for workers compensation. A close examination of Mr Miller’s claim is therefore warranted. As already mentioned, Mr Miller’s claim was lodged on 20 June 2012. There is no indication he obtained any legal advice before lodging it; the claim appears to have been completed in his own handwriting.

19. Latterly, the parties have agreed that there was an effective claim for a compensable injury with a deemed date of 18 September 2009. What eludes agreement is the significance of events after this date; Mr Miller presently argues that later events have no significance, whereas Comcare presently argues that Mr Miller’s claim from the outset was for injuries occurring in both 2009 and 2012.

20. In examining the workers compensation claim to determine whether Mr Miller was making a claim for an injury which occurred in 2009 or in 2012, or both, it must be said that there are aspects of the Comcare pro forma which cut in both directions. In support of the proposition that the claim was for an injury in 2009, the reader will notice that in answer to the question When were you injured or when did you first notice you were ill? Mr Miller recorded the date 1/5/2009. When asked to stipulate the address at which he was injured or contracted his illness, he recorded an address in Honiara, Solomon Islands, and added Whilst deployed to RAMSI. The injury or illness he claimed for was Depression (Severe); Anxiety Disorder (Severe).

21. However, other information provided somewhat muddies this picture. The answer he gave to the question When and where did you first seek medical treatment for your injury or illness? was 16/6/2012. He responded to the question What were you doing at the time you injured or contracted your illness? by writing

    General duties policing, Patrol Duty Supervisor to Solomon Islands Police Force, followed by general policing duties on return to Australia (emphasis added)

    In response to the question What action, exposure or event happened to cause your injury or illness? he recorded

    Stress, on going work-related causes. Deployment overseas & in Australia

    See Attachment ‘C’ (emphasis added)

22. He was asked to nominate witnesses to his injury, and did so by referring to Attachment B. That attachment, headed Incident Witness List, lists the name of seven police officers, six of whom, at least, appear to be officers based in ACT Policing, including at Gungahlin Police Station and Belconnen Police Station. In relation to the circumstances of Mr Miller’s injury, the reader is directed to Attachment C. Attachment C runs over two pages, comprising11 paragraphs. The first two paragraphs describe how he was a Duty Supervisor in Honiara, and how he became aware of feelings of anxiety and depression, especially related to my work and my distance from home and my family.

23. The third paragraph provides details of his return to the International Deployment Group in Canberra and his subsequent consultation with AFP psychologist Ms Vincent. The following eight paragraphs, however, deal almost exclusively with incidents arising in ACT Policing from November 2009 to 2012, and with the medical issues to which they appear to be linked.

1. At the interlocutory hearing, counsel for Mr Miller submitted that construction of the claim form is indeed a critical issue in determining the jurisdiction of the Tribunal. Counsel characterised his claim for workers compensation as a claim for an injury which occurred in the Solomon Islands in 2009. The post-2009 events which Mr Miller recounts in Attachment C were characterised as a history of what’s happened to him since [his 2009 injury], rather than a claim for an injury arising out of those subsequent events. However, counsel conceded that there were several possibilities as to how the reference to the post-2009 events in the claim form might be interpreted, including that his subsequent psychological condition was an expression of the 2009 injury, or that this was an entirely new condition, or that there was an aggravation of the 2009 injury.

2. Counsel for Mr Miller referred to Mr Miller’s Statement of Facts, Issues and Contentions as re-emphasising the contention that he had suffered an injury as a result of deployment to the Solomon Islands, and that the date of injury should be deemed to be 18 September 2009. Counsel observed that the post-2009 events were traversed at some length in the Statement, but only as background. He also submitted that the references to the post-2009 events in Mr Miller’s solicitor’s letter of 25 March 2015 seeking reconsideration of the original decision were included only because the delegate had made reference to them, not because they were part of Mr Miller’s claim.

   Consideration

3. As this matter approached a hearing before the Tribunal, a measure of agreement between the parties crystallised around one issue: that Mr Miller had made a claim for a psychological injury with the deemed date of injury of 18 September 2009, and that that claim should be accepted. What it falls to the Tribunal to determine in this interlocutory application is whether other issues, post this date, are properly matters for consideration and determination.

4. Whereas some debate might arise as to the appropriateness of the delegate’s decision that there was no injury in 2009, it is less apparent that the delegate was in error in regarding events later in time than the 2009 injury as being part and parcel of Mr Miller’s claim. This is because, on any fair reading of that claim, Mr Miller seems to have been putting into contention the employment-related events which occurred between 2009 and 2012.

5. The assertion in his claim form that his date of injury was 1 May 2009 detracts from that assessment, but much else in his claim reinforces it. The extensive history of workplace conflict in Australia which is outlined in Attachment C, together with its apparent psychological sequelae, strongly suggests that he did not regard the circumstances of his injury as being confined to what happened in the Solomon Islands. The listing of police officers who had not been with him in the Solomon Islands as witnesses to his injury reinforces that impression. Taking the claim form as a whole, I have difficulty accepting his present contention that these later events were recorded merely for the sake of background or history; rather, they present as integral to the psychological damage he had suffered and to the claim for compensation he was making. At the very least the claim reads as something of an each way bet, as if to say I believe I was injured in 2009, but if not I was certainly injured by 2012.

6. The decisions in Szabo and Muir make it clear that an applicant’s submitted claim for compensation is the reference point by which the scope of that claim is subsequently determined, and that decision-makers must resist an applicant who may opportunistically… seek to re-characterise a claim as one other than that in fact made (Muir at [30]). Nonetheless, in support of the broader interpretation of Mr Miller’s claim I have adopted, I note:

   ·Comcare’s delegates at first instance and on reconsideration both took the view that the claim’s substance embraced events post-2009;

   ·Mr Miller’s solicitor in his request for reconsideration advanced an in the alternative argument based on the post-2009 events;

   ·Mr Miller’s Statement of Facts, Issues and Contentions included the post-2009 events as relevant to the matters for consideration before the Tribunal.

7. Subsequent agreement between the parties that there was an injury in 2009 constitutes a distraction, I believe, from the fact that the claim as originally constituted pointed to later events as contributors to an injury. That fact gives the Tribunal its jurisdiction to consider what role, if any, those later events played in Mr Miller’s mental health. This can be demonstrated by considering hypothetically a slightly different version of the facts before the Tribunal: if there had been no consultation with Ms Vincent in September 2009, and Mr Miller was now relying on the consultation with Dr Voon in March 2012 as the deemed date of injury, there is no question in my mind that his claim  would comfortably support Tribunal consideration of an injury based on those circumstances; any argument that events from that period were irrelevant would receive short shrift from the Tribunal, and justifiably so. Alternatively, on the unaltered set of facts, if Mr Miller had chosen to argue that, subsequent to his 2009 injury, there was a fresh injury – or an aggravation of his earlier injury – in 2012, there can be little doubt that those facts would afford the Tribunal jurisdiction to consider such a finding.

8. If it is open to Mr Miller to agitate a claim for a 2012 injury before the Tribunal, it follows that it must be open to Comcare to contest such a claim, even if Mr Miller chooses not to advance it. The parameters of a claim for an injury under s 14 have been determined by the three-stage process of Mr Miller making his claim and Comcare considering, and then reconsidering, the substance of that claim. Having gone through that process and thus enlivened the jurisdiction of the Tribunal, there is nothing in the Act which could be interpreted as allowing an applicant to wind back or delimit the scope of his s 14 claim once it is before the Tribunal, short of withdrawing it completely.

9. The Tribunal therefore finds that the question of whether Mr Miller suffered a psychological condition on or about 15 March 2012 is a matter it has jurisdiction to consider and determine. Such consideration would necessarily involve consideration of whether that psychological condition is excluded from the definition of injury by virtue of the provisions in s 5A, should evidence to that effect be placed before the Tribunal.

10. The second interlocutory question Comcare has asked the Tribunal to rule on is whether the applicant’s psychological condition (arising from the contended injury of 18 September 2009) abated before 3 August 2010 (or at some other point in time). Typically the Tribunal would consider the question of whether the effects of a particular compensable condition had ceased or abated in the period since it arose in the context of an application under ss 16 or 19. There is no such application before the Tribunal at the present time.

11. Nonetheless, consideration of the first question posited – whether there was an injury dated on or about 15 March 2012 – necessarily gives rise to consideration of the relationship, if any, between injuries of a similar nature which are separated in time. It would be open to the Tribunal in this context to make findings of fact in relation to the ongoing status of an earlier psychological injury in assessing what relationship it bears to a later psychological condition. An understanding of that relationship may lead the Tribunal to conclude that a later condition, if any, is in fact a mere re-expression of the earlier injury, an aggravation of that injury or an entirely new and separate injury. To that extent, at least, the Tribunal must be free to express an opinion about the totality of the evidence before it. There is, however, no requirement for such an opinion, since it is not a matter intrinsic to the resolution of Mr Miller’s application.

12. Accordingly, the Tribunal determines that, at the hearing of Mr Miller’s application, it has jurisdiction to consider and determine whether he suffered a psychological condition on about 15 March 2012 which is excluded from the definition of injury by virtue of the exclusionary provisions in s 5A of the Act. Further, the Tribunal has the capacity to at least consider whether Mr Miller’s psychological condition abated before 3 August 2010 (or at some other point in time).

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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Associate

Dated 28 October 2016

Date of hearing	29 August 2016
Counsel for the Applicant	Leo Grey
Solicitors for the Applicant	Pappas, J. - Attorney
Counsel for the Respondent	Peter Woulfe
Solicitors for the Respondent	Sparke Helmore