Mladenovic and Comcare - [2001] AATA 827

DECISION AND REASONS FOR DECISION [2001] AATA 827

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/119

GENERAL ADMINISTRATIVE DIVISION       )
           Re      KSENIJA MLADENOVIC
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date25 September 2001
PlaceCanberra

Decision The Tribunal has no jurisdiction to take into account the applicant's neck condition in its review of the respondent's decision to deny liability for compensation for permanent impairment.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
PRACTICE & PROCEDURE - jurisdiction – permanent impairment - whether injury not claimed for on compensation claim form can be considered by the Tribunal.
Safety Rehabilitation and Compensation Act 1988 ss. 14, 24, 27
Denison-Smith and Comcare [2000] AATA 553
Lees v Comcare (1999) 56 ALD 84
Telstra Corporation Limited v Barrow (1994) 35 ALD 461

REASONS FOR DECISION

25 September 2001 Senior Member J.A. Kiosoglous MBE

The matter was brought before the Tribunal at the request of the respondent's solicitors for the Tribunal to determine whether or not there exists a jurisdictional problem and if so, that the Tribunal give consideration to this prior to the hearing of the substantive matters. The issue in question at this time is whether the claim to be considered at the substantive hearing relates to an injury to the neck that the applicant alleges is a result of the injury for which liability has been accepted in relation to the claim.
The applicant's solicitors indicated that they would be claiming compensation for permanent impairment in respect of the neck injury. It was for this reason that the respondent's solicitors sought to clarify whether the Tribunal considers that there is a problem in relation to jurisdiction for that condition.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T321), together with two exhibits lodged by the respondent (Exhibits R1-R2). The applicant was represented by Mr G. Lunney and the respondent was represented by Ms J. Richards.
history of the application
The applicant, Mrs Ksenija Mladenovic, lodged a claim for compensation (T3) dated 16 January 1997 in relation to "bruising right knee and right hand, low back strain and anxiety" (T3/5) following a motor vehicle accident on 7 January 1997.
The respondent accepted liability for lower back strain and bruising right knee and right hand on 31 January 1997 pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) with effect from 7 January 1997, being the date of injury.
The applicant lodged a compensation claim for permanent injury on 22 February 1999 (T212/302). At Part B of the said compensation claim form, in response to the question: 'What permanent injury/impairment(s) of the body do you suffer from as a result of your condition?" the applicant wrote: "Low back injury and right leg pain" (T212/302).
On 22 February 1999, the applicant also completed a non-economic loss questionnaire, where she wrote "lower back strain, bruising right knee and right hand please, refer to Dr Champion report from 1/7/98" (T211/298).
The respondent issued a determination on 14 May 1999 (T241/333) disallowing the claim in relation to the applicant's compensation claim for "permanent injury in respect of a low back injury and right leg pain attributable to a motor vehicle accident occurring on 7 January 1997". In the reasons for the determination, it was stated (inter alia) that (T241/333-337):
"…
On the available evidence I am satisfied that you do suffer from pain symptoms including pain in your low and middle back, symptoms in your right arm, right leg and swelling in your legs, arms and hands.
I note, however, that liability was accepted to pay compensation to you under provisions of the Act in respect of injuries arising from the motor vehicle accident on 7 January 1997.
…
On the basis of the medical evidence and on the balance of probabilities I am not satisfied that your alleged symptoms have arisen out of, or in the course of, your employment as required under the Act.
For these reasons I determine that you are not entitled to a payment of compensation for permanent impairment under Section 24 of the Act and thus disallow your compensation claim for permanent impairment dated 22 February 1999.
…"
The applicant's solicitors requested an extension of time for the applicant to seek a review of the decision to disallow her claim for compensation for permanent impairment which was granted by the respondent on 22 October 1999 (T297/412).
On 21 December 1999 (T305/420-421) the applicant's solicitor wrote to the respondent asking that they consider a number of matters in relation to their review of the decision to disallow the permanent impairment application. In the letter, the applicant referred to a report of Dr Dewey (T282/393), where at the last line of the second page of his report he stated "To direct questioning, she said that her neck condition has settled." In the letter of 21 December 1999, the applicant's solicitors asked the respondent to consider in relation to Dr Dewey's report that "Our client indicates that she has never had a problem with her neck" (T305/420).
On 13 March 2000, an independent review officer of the respondent reconsidered and affirmed the determination dated 14 May 1999 (T319-320/438-447).
On 6 April 2000, the applicant lodged an application for review of this reconsideration with the Tribunal (T1/1-2).
legislation
The relevant legislation to be considered is as follows:
"PART II – COMPENSATION
Division 1 – Injuries, property loss or damage, medical expenses
Compensation for injuries
14.      (1)       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.
(2)       Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)       Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
…
Division 4 – Injuries resulting in impairment
Compensation for injuries resulting in permanent impairment
24.      (1)       Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)       For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)       the duration of the impairment;
(b)       the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)       any other relevant matters.
(3)       Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)       The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)       Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)       The degree of permanent impairment shall be expressed as a percentage.
(7)       Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
(8)       Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b)       the impairment constituted by the loss, or the loss of the use, of a toe;
(c)the impairment constituted by the loss of the sense of taste;
(d)       the impairment constituted by the loss of the sense of smell.
(9)       For the purposes of this section, the maximum amount is $80,000.
…
Compensation for non-economic loss
27.      (1)       Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2)       The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
…"

respondent's submissions

Ms Richards submitted on behalf of the respondent that as there were several references in the various medical reports to the possibility of the applicant suffering symptoms in the neck prior to the time when the reconsideration was carried out, the respondent has, since the commencement of the proceedings, been attempting to clarify the scope of the applicant's claim so that the respondent would be in a position to prepare the matter adequately.
Ms Richards submitted that it was not until after a conciliation conference was held in March this year in relation to the matter that the applicant's solicitor indicated by letter dated 20 April 2001 (Exhibit R1) that the applicant would "be seeking to raise our client's neck condition before the Administrative Appeals Tribunal".
She further submitted that the independent review officer's decision (T320) was a reconsideration of the claims officer's determination for the applicant's permanent impairment claim and that neither the reviewing officer nor the claims officer made a determination, pursuant to section 14 of the Act, that liability existed for the neck and that had not been considered for the purpose of section 24 of the Act either.
Ms Richards submitted that on the basis of the decision of the Full Federal Court in Lees v Comcare (1999) 56 ALD 84, there was a three-tiered decision-making process under the Act and the Tribunal was only authorised by section 64 to review 'reviewable decisions' made under section 62 of the Act. It was submitted that where there has been no section 14 determination that an applicant had suffered a particular injury that was a result of her employment or within the meaning of the term 'injury', the Tribunal did not have power under section 43 to consider her claims for compensation generally.
Ms Richards also submitted that in Denison-Smith and Comcare [2000] AATA 553, Deputy President Burns followed the decision in Lees, deciding that unless there was in place a section 14 determination accepting liability for an injury, then there could not be any consideration or determination of a claim made pursuant to section 24 or section 27 of the Act.
Ms Richards submitted that the respondent had not made a determination pursuant to section 14 that the neck injury was a result of the motor vehicle accident and the respondent had never been asked to do so until very recently. She stated that the Reviewing Officer's determination was in reference to the permanent impairment claim and that at no time had a section 14 determination been made that liability exists for the neck nor considered for the purposes of section 24. Ms Richards further submitted that notwithstanding the evidence relating to the neck referred to in the T-documents and before the independent review officer, the applicant's solicitor asked the respondent not to consider the neck, so there was no determination on liability for the applicant's neck condition. It was submitted that the delegate at no stage, in reaching or making a determination, considered the neck aspect and therefore the Tribunal did not have jurisdiction as there was no 'reviewable decision' made in relation to the neck condition.
submissions of the applicant
Mr Lunney submitted on behalf of the applicant that the original compensation claim for permanent injury (T212/302) referred to low back injury and right leg pain and it was quite clear that that was a claim made under section 24 of the Act. Mr Lunney submitted that that constituted a claim by the applicant to have Comcare consider her entitlement to compensation under section 24 and section 27 of the Act in relation to the condition for which there was a section 14 determination, which was the low back and right leg injury.
He also referred to the original decision, where the deciding officer stated (inter alia) (T241/334):
"On the available evidence I am satisfied that you do suffer from pain symptoms including pain in your low and middle back, symptoms in your right arm, right leg and swelling in your legs, arms and hands.
I note, however, that liability was accepted to pay compensation to you under provisions of the Act in respect of injuries arising from the motor vehicle accident on 7 January 1997."
He submitted that although there was no document before the Tribunal showing it, there was evidence that a decision had been made to award compensation in respect of injuries arising from a motor vehicle accident on 7 January 1997. Mr Lunney also submitted that the first sentence refers to pain in areas which extended beyond the areas referred to in the original application (T212/302).

Mr Lunney referred the Tribunal to the original decision (T241/336), where it stated:
"In a report dated 2 January 1998 Dr A Brook, Rheumatologist, said that you experienced pain very low in your back as well as in your right leg, and also intermittent cervical discomfort. You complained to Dr Brook also of a painful right arm with pins and needles also extending to the right leg."

Then he referred the Tribunal to the deciding officer's comments (T241/337):

"On the basis of the available medical evidence and on the balance of probabilities I am not satisfied that your alleged symptoms have arisen out of, or in the course of, your employment as required under the Act. For these reasons I determine that you are not entitled to a payment of compensation for permanent impairment under Section 24 of the Act and thus disallow your compensation claim for permanent impairment dated 22 February 1999."

Mr Lunney then referred the Tribunal to the reviewable decision (T320/446) where the independent review officer stated:
"On the basis of the evidence and taking into account the lack of pathology, I am unable to conclude that the employee currently suffers from any level of impairment in the back and arms that is likely to remain permanent."

He submitted that that decision appeared to be confined to back and arms and it was not clear whether "back" referred to the upper, mid or lower portion of the back.

Mr Lunney then submitted that the decision seems to be confined to the back and arms and that one cannot be sure that the back refers to the upper, mid or lower portion of the back. He submitted that one would assume that reference is to the lower back. Mr Lunney then referred the Tribunal to the following (T320/446):
"Having completed my reconsideration, I am satisfied that the decision dated 14 May 1999 that found that the employee was not entitled to compensation pursuant to s24 should be affirmed."
Mr Lunney submitted that that was the matter that was open for review by the Tribunal. The issue to be determined by the Tribunal was the issue that arose under section 24, liability having been accepted under section 14, for payment of compensation in respect of injuries sustained in the motor vehicle accident. Mr Lunney submitted that the medical reports in this matter do not consistently refer to any injury or symptoms arising in the neck or cervical area, but the reports of Dr Wearne (T81/118) and Dr Brook (T89/133-134) both refer to the neck.
Mr Lunney submitted that the issue for determination by the Tribunal was whether or not there was permanent impairment which would attract payment of compensation pursuant to section 24. It was submitted that the respondent was attempting to put a gloss on the matter by treating a claim form as being a pleading to which the applicant was pinned and unable to move.
Mr Lunney submitted that for the purposes of review, the 'wide' issue was the issue to be determined and that issue was to be determined upon the evidence that was placed before the Tribunal at the hearing and if there was evidence of a contribution to permanent disability from the neck, then that must be dealt with by the Tribunal. In other words, at the hearing the Tribunal was to receive all the medical evidence to form its conclusion as to whether or not section 24 was complied with and which of the injuries sustained was to be taken into account if applicable.
Mr Lunney referred the Tribunal to Lees (at paragraphs 48, 49 and 50) and submitted that the only issues which required determination in Ms Lee's case were the issues of whether she had a permanent impairment, and if she did, the amount of compensation payable under the section in respect to that impairment. Neither of these issues had been determined at the first tier decision making stage, unlike in the current matter, where a determination as to permanent impairment had been made by the respondent. Mr Lunney submitted that the reviewable decision which gave the Tribunal jurisdiction was the decision that there was no liability for permanent impairment payment under section 24 of the Act. It was submitted that the issue was not whether a decision had been made based on a back or a leg or an arm or a neck but rather a decision had been made relating to permanent impairment based on the content of the material which eventually was to come before the Tribunal.
discussion and findings
The Tribunal is mindful that the Full Federal Court in Lees has interpreted section 14 to be the central provision of the Act, a provision through which all compensation claims must pass successfully in order to make further claims for specific types of compensation (at paragraph 27, page 90):
"[27] As Finn J noted, s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability 'subject to' Part II of the Act. That is, it is a liability limited in its extent by other provisions of Part II of the Act (see, for example, s 17(2)). Secondly, the liability is a liability to pay compensation 'in accordance with' the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act (see, for example, ss 17(3)(4) and (5), 19, 20, 24 and 25).
…
The decision of the Full Federal Court in Lees further makes it clear that ordinarily before any question of an employee's entitlement to compensation for permanent impairment arises, a favourable determination concerning that person's entitlement to compensation needs to be in existence under section 14 of the Act (at paragraph 48, page 95):
"…
We interpolate that we do not read s 24(1) of the Act as a second source of liability to pay compensation in respect of an injury to an employee resulting in impairment. We see that liability as being created by s 14 of the Act. Section 24 we understand as being intended to define the nature and extent of the liability to pay compensation in respect of an injury which results in permanent impairment.
…"

In the instant case, a favourable section 14 determination was made in relation to the applicant's claimed injuries of "lower back strain and bruising right knee and right hand" on 31 January 1997. The applicant then sought a determination as to permanent impairment under section 24, and upon her claim being rejected, she requested a reconsideration of the determination hence there was a 'reviewable decision' in relation to permanent impairment before the Tribunal.
However, on the applicant's claim form for permanent impairment, the applicant stated that her permanent injuries were "Low back injury and right leg pain". This case is concerned with whether an additional injury not originally listed on the claim form can be incorporated into a subsequent Tribunal review. In this case, several medical reports do refer to the applicant's neck but this was not expressly claimed by the applicant until this current application for review. The case therefore concerns exactly what injuries the Tribunal can look at upon review.
The applicant contends that the Tribunal is to receive all of the medical evidence and make its own decision as to which injuries contribute to permanent impairment. Once a determination was made that liability was accepted to pay compensation to the applicant under the provisions of the Act in respect of injuries arising from the motor vehicle accident under section 14, and a determination had been made that Comcare was not liable to pay compensation for permanent impairment under section 24 had been reconsidered, then the Tribunal had jurisdiction to review that reconsideration, taking into account the medical evidence in its entirety and not limiting itself to what was claimed by the applicant from the outset. The respondent contends that the Tribunal is limited to what the applicant made a claim for and what was subsequently examined by the claims officer and review officer. As the respondent had not made a determination pursuant to section 14 that the applicant's neck injury was a result of the motor vehicle accident nor had the respondent at any stage considered the neck for the purposes of section 24 of the Act, then the Tribunal was not entitled to examine the neck condition in its review.
The Full Federal Court in Lees stated (inter alia) that a determination under section 14 is "a determination that Comcare "is liable to pay compensation in accordance with this Act" in respect of a particular injury" (paragraph 34, page 91). It is the Tribunal's opinion that the "particular injury" is that injury which is written on the applicant's claim form for which the applicant makes a compensation claim. It is clearly not the intention of the legislation that a claim for compensation for a particular injury would oblige the respondent, or the Tribunal upon review, to consider all injuries potentially suffered by the applicant and whether they are compensable under the Act. In the instant case, liability to pay compensation was accepted only in relation to those particular injuries claimed by the applicant, and it is only those accepted injuries that can be considered for the purposes of permanent impairment.
However, the Tribunal considers that the respondent and the Tribunal upon review should not unduly limit themselves when considering a claim for compensation to what a claimant writes on a claim form, if the medical evidence reveals otherwise: Telstra Corporation Limited v Barrow (1994) 35 ALD 461. The decision-maker at first instance and the reviewing decision-maker must have regard to all of the medical evidence relating to the claimed conditions before it. A claimant should not be disadvantaged because they have not named a condition appropriately, or because, upon subsequent examinations, further closely-related conditions emerge.
In the instant case, whilst some of the medical reports did refer briefly to the neck, others did not. It was by no means clear that the applicant had any kind of problem with her neck and it was reasonable for the respondent in the circumstances to disregard it and instead to examine only those conditions expressly written by the applicant in her claim form.
The Tribunal has also had regard to the manner in which this claim has been pursued by the applicant's solicitors. Before the respondent made its reconsideration of the determination not to pay compensation to the applicant for permanent impairment, the applicant's solicitors expressly told the review officer not to consider the neck in undertaking its reconsideration, stating that the applicant had "never had a problem with her neck" (T305/420). This in effect was an express statement by the applicant's solicitors that the neck did not form part of the applicant's section 14 claim for compensation nor was it intended to be considered for the purposes of the section 24 determination. In such circumstances, it is understandable that the respondent has objected to the applicant now raising the neck condition before the Tribunal.
It is the Tribunal's opinion that the neck condition was never intended to be a part of the applicant's claim for compensation for injury and this neck condition was not subject to a favourable determination by the respondent in accordance with section 14 of the Act. As there has been no favourable section 14 determination in relation to the applicant's neck condition, then the Tribunal does not have jurisdiction to consider the applicant's neck condition in relation to her application for compensation for permanent impairment.
Therefore, in these circumstances, the Tribunal finds that it does not have jurisdiction in relation to the applicant's neck condition.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         ..................................(Signed).................................…
Barbara Armstrong, Associate
Date of Hearing   12 July 2001
Date of Decision   25 September 2001
Counsel for the Applicant         Mr G. Lunney
Solicitor for the Applicant          Higgins Solicitors
Counsel for the Respondent    Ms J. Richards
Solicitor for the Respondent    Dibbs Barker Gosling Lawyers