Mununggurr and Comcare (Compensation)

[2019] AATA 1564

Mununggurr and Comcare (Compensation) [2019] AATA 1564 (28 June 2019)

Division:GENERAL DIVISION

File Number(s):      2017/0844

Re:Sharon Mununggurr

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:28 June 2019

Place:  Brisbane

The Tribunal decides that there is no jurisdiction to determine whether the Applicant is entitled to permanent impairment compensation for Major Depressive Disorder under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

.............................[SGD]...........................................

Senior Member Theodore Tavoularis

Catchwords

JURISDICTION – COMPENSATION – whether the Applicant is entitled to permanent impairment compensation under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) for Post Traumatic Stress Disorder (‘PTSD’) and Major Depressive Disorder (‘MDD’) – where liability has been accepted under s 14 of the SRC Act for PTSD – whether permanent impairment compensation can extend to MDD – liability limited to PTSD – no jurisdiction to determine whether the Applicant is entitled permanent impairment compensation for MDD under ss 24 and 27 of the SRC Act

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147
Comcare v Lofts [2013] FCA 1197; 217 FCR 220
Comcare v Muir [2016] FCA 346; 150 ALD 321
Lees and Comcare [1999] FCA 753; (1999) 56 ALD 84

REASONS FOR DECISION

Senior Member Theodore Tavoularis

28 June 2019

INTRODUCTION

1. At issue before me is an interlocutory question about whether the Tribunal has jurisdiction to consider the Applicant’s entitlement to permanent impairment compensation pursuant to ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1998 (Cth) (‘the SRC Act’) arising out of:

   (a)The compensable injury – Post Traumatic Stress Disorder (‘PTSD’); or

   (b)The compensable injury – PTSD and the presently non-compensable ailment, Major Depressive Disorder (‘MDD’)

2. The Respondent says its liability for SRC Act compensation is limited to PTSD, as determined in its Determination of Claim for Permanent Impairment dated 1 November 2016 and subsequent reviewable decision dated 13 December 2016. The Applicant says the compensable injury embraces both PTSD and MDD and that this Tribunal has jurisdiction to determine the compensation point on both of those conditions. I disagree with the Applicant’s contention. My reasons follow.

   HOW THE ISSUE CRYSTALLISED?

3. The issue at the core of this decision is pivotal because if the Tribunal finds that it does not have jurisdiction to consider whether the Applicant is entitled to permanent impairment compensation for MDD, then the Tribunal will not be obliged to consider that ailment in the determination of this application. Conversely, if the Tribunal finds that it does have jurisdiction, the now-propounded MDD will come within the purview of the Tribunal’s determination about compensation for permanent impairment.

4. The hearing of the substantive application was listed to commence for a two day hearing on 29 May 2019. At the commencement of the hearing, the Respondent identified an absence of consensus between the parties about the issues to be determined by the Tribunal. Paragraphs 3.7 and 4.1 of the Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’) each refer to ‘injuries’ plural.[1]

   [1] See Applicant’s SFIC dated 20 August 2018.

5. Paragraph 3.5 of that document likewise refers to ‘PTSD and Major Depressive Disorder.’ The disparity arises when those paragraphs are compared to the initial Determination that accepted liability for the Applicant’s condition. The initial Determination is dated 30 July 2014 and relevantly states:

   ‘I have accepted your claim under section 14 of the Safety, Rehabilitation and Compensation Act for the following:

   ·post-traumatic stress disorder’[2]

   [My underlining]

   [2] See Further Supplementary T Documents filed by the Respondent, ST25, page 350.

6. Liability has at no time been accepted for MDD. There is a singular determination for PTSD and nothing further. The concerning lack of consensus between the parties is further amplified when one has regard to paragraphs [20] to [22] of the Respondent’s SFIC[3] filed in September 2018. At no time have the parties agreed that it was within the Tribunal’s jurisdiction to determine whether the Applicant was entitled to permanent impairment compensation for MDD under ss 24 and 27 of the SRC Act.

   [3] See Respondent’s SFIC dated 3 September 2018

7. The Respondent’s position was quite clearly expressed in its SFIC:

   ‘      Diagnosis

   20. In paragraph 3.5 of the Applicant’s SFIC, the Applicant refers to suffering from two psychiatric ailments as a result of the Incident: PTSD and Major Depressive Disorder. In paragraphs 2.1, 3.6, 3.7 and 4.1 of the Applicant’s SFIC, the Applicant implies that liability has been accepted under s 14 of the SRC Act with respect to both PTSD and Major Depressive Disorder. That is not the case. Liability has only been accepted under s 14 of the SRC Act with respect to the PTSD condition.

   21. Comcare accepts that the Applicant continues to suffer from PTSD. This is consistent with the opinions provided by Dr Wasim Shaikh, psychiatrist in his reports dated 31 July 2015 and 5 February 2018 and Dr Axel Estensen, psychiatrist in his reports dated 28 May 2016 and 18 June 2018.

   22. While the specialist medical evidence indicates that the Applicant also suffers from another psychological ailment (that has been variously diagnosed as Major Depressive Disorder and an Adjustment Disorder), as liability has not been accepted for any ailment other than PTSD under s 14 of the SRC Act and, has not been the subject of the “three tiered decision making process” prescribed by that Act, the Tribunal does not have jurisdiction to consider whether the Applicant is entitled to compensation under ss 24 and 27 of the SRC Act in respect of any condition other than PTSD.[4]

   [my underlining]

   [4] Ibid, page 5.

8. Thus since September 2018, it has been open to the Applicant to resolve the abovementioned absence of consensus. This could have occurred in a number of ways including, but not limited to:

   (i)the Applicant lodging a fresh claim for compensation for MDD;

   (ii)a timely listing of this jurisdictional point for determination by the Tribunal well prior to the hearing; or

   (iii)the Applicant notifying the Respondent and the Tribunal of an intention to ventilate this jurisdictional point immediately prior to commencement of the substantive hearing on 29 May 2019.

9. While making no adverse finding against the Applicant, the Tribunal is nevertheless obliged to the Respondent’s representatives for causing this still-live jurisdictional issue to be brought the Tribunal’s attention (for the first time) immediately prior to the commencement of the hearing.[5] For reasons I pointed out at the commencement of the now adjourned hearing of the substantive application on 29 May 2019, I had significant procedural misgivings about the Applicant’s proposal to deal with this jurisdictional issue during closing submissions, after the ventilation and closure of each side’s respective cases. I thought it (and still think it) inappropriate to address the jurisdictional issue in this way because of the very real risk of a procedural taint in circumstances where the parties and the Tribunal are not of the same mind about the issues to be determined prior to the ventilation of the evidence informing those issues.

   [5] Pursuant to s 33(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth).

10. The jurisdictional point seemed to have been resolved because after some discussion on the morning of the substantive hearing (on 29 May 2019), the Applicant (1) sought (and it was granted) an adjournment of the substantive hearing for PTSD and (2) adopted the Tribunal’s suggestion that the substantive application be placed in abeyance pending determination of a fresh claim for MDD. Appropriately worded Orders were made on 29 May 2019. The Applicant now agitates for a vacation of those Orders on the basis that the jurisdictional issue ought be determined at a preliminary hearing. This preliminary jurisdiction hearing proceeded before me on 21 June 2019 and was preceded by both parties filing respective helpful written submissions.[6]

    THE COMPETING POSITIONS ON JURISDICTION

    [6] For the purposes of these Reasons, the Applicant’s written submissions dated 19 June 2019 will be marked   ‘Exhibit 1’, while those of the Respondent dated 21 June 2019 are marked ‘Exhibit 2.’

    The Applicant’s Position

11. The respective positions of the parties are apparent from two primary Federal Court authorities. The Applicant relies on Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 (‘Abrahams’) to support a contention that ‘…the Tribunal has jurisdiction to make (indeed, obliged to make) a determination on the Applicant’s degree of permanent impairment howsoever diagnosed.’[7]

    [7] Exhibit 1: Applicant’s Submissions, page 10, paragraph [41].

12. The Applicant summaries the effect of Abrahams on the instant issues as follows:

    ’27. Since Abrahams, the following principles have been discerned regarding the Tribunal’s jurisdiction:

    (a) a broad approach should be taken to determining the scope of the claim and, consequently, the Tribunal’s jurisdiction on review;

    (b)the Tribunal’s jurisdiction is not constrained by the way Comcare has chosen to construe the claim;

    (c)the claim must be construed as a whole, drawing not only on the claim itself, but also the notice of injury, medical certificates and other documentation submitted at the time;

    (d)the scope of the claim aligns with the claimant’s condition as determined through later investigations; It is not limited to the condition originally nominated on the form.[8]

    [8] Ibid, page 6-7, paragraph [27].

13. The Applicant cited, inter alia, the following passage from Abrahams:

    “25.   …

    There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the original claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.”[9]

    [My underlining]

    [9] Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147, 153, paragraph [21], cited at page 6 of Exhibit 1, Applicant’s submissions, paragraph [25].

    The Respondent’s Position

14. The Respondent relies upon Comcare v Muir [2016] FCA 346; 150 ALD 321 (‘Muir’) in respect of its principle contention that, for the purposes of the substantive application (claiming PTSD), it is not within the jurisdictional purview of the Tribunal to make a determination about any compensable entitlement the Applicant may have had pursuant to ss 24 and 27 of the SRC Act for a permanent impairment arising from MDD.

15. The Respondent has adequately summarised the facts and outcome in Muir.[10] There can be no doubt that the facts in Muir are analogous to those of the instant application. The salient part of the Federal Court’s decision (per His Honour Justice Flick) for present purposes is this:

    ‘The conclusion which it is respectfully considered must be reached is that up to and including the time at which the Review Officer determined the application for reconsideration, the claim as made by Ms Muir was a claim confined to an injury suffered in October 2013. Excluded from that claim, moreover, was any claim for injuries suffered in 2010-2012.’[11]

    [10] See Exhibit 2, Respondent’s Submissions dated 21 June 2019, pages 3-5, paragraph [17].

    [11] Comcare v Muir [2016] FCA 346; 150 ALD 321 at [29].

16. His Honour Justice Flick also engaged with the ‘… broad, generous and practical interpretation…’ of a given claim as propounded in Abrahams but tempered that approach as follows:

    ‘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 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…’

    …

    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... 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.’[12]

    [12] Ibid, paragraphs [30] and [37].

17. The analogous nature of the present facts to those in Muir is readily apparent from the following chronological analysis:

    ·On 17 June 2016, the Applicant lodged a claim for permanent impairment. Her identified ‘injury’ on that claim was the accepted PTSD;

    ·In that claim form she recorded that the ‘permanent injury/impairment(s) of the body’ for which she sought compensation was for her ‘Psychiatric system’;

    ·The Respondent correctly received and considered the claim pursuant to s 24 of the SRC Act which requires identification of a permanent impairment that ‘results from an injury’;

    ·Accordingly, on 1 November 2016, the Respondent correctly determined that the Applicant suffered an impairment to her psychiatric system as a ‘result’ of her PTSD;

    ·The Respondent cannot have acted in error because, apart from PTSD, there was no mention of any other ‘injury’ resulting in a permanent impairment for which compensation was sought;

    ·Further, when the Applicant sought review of the Respondent’s determination of 1 November 2016, there was no mention of any claim for compensation for permanent impairment arising from an ‘injury’ described as ‘Major Depressive Disorder’ or anything of that sort;

    ·Consequently, the Respondent has not made (and cannot be reasonably expected to have made) any determination pursuant to s 24 of the SRC Act regarding MDD.

18. The Applicant has at no time made any claim for (nor made any reference to) compensation for permanent impairment for an ‘injury’ described as ‘Major Depressive Disorder’. It does not appear: -

    (i)in her initial claim made on 17 June 2016;

    (ii)in her request for review made on 15 November 2016;

    (iii)upon her receipt of the reviewable decision dated 13 December 2016 (which did not even mention MDD);

    (iv)upon the filing of her application for review in this Tribunal;

    (v)upon the filing of her SFIC dated 20 August 2018 (which makes no mention of MDD as an ‘injury’; and

    (vi)upon her receipt of the Respondent’s SFIC (in September 2018) that expressly placed her on notice that:

    While the specialist evidence indicates that the Applicant also suffers from another psychological ailment (that has been variously described as Major Depressive Disorder and an Adjustment Disorder), as liability has not been accepted for any ailment other than PTSD under s 14 of the SRC Act and, has not been the subject of the ‘three tiered decision making process’ prescribed by the Act, the Tribunal does not have jurisdiction to consider whether the Applicant is entitled to compensation under ss 24 and 27 of the SRC Act in respect of any condition other than PTSD.” [13]

    [My underlining]

    [13] See Respondent’s SFIC dated 3 September 2018, paragraph [22].

19. At the commencement of the substantive hearing originally listed for 29 May 2019, the Tribunal was notified (for the first time) of the Applicant’s intention to (1) propound an argument for permanent impairment compensation under ss 24 and 27 of the SRC Act arising from an MDD ‘injury’ and (2) ventilate the jurisdictional issue during closing submissions, that is, after all of the evidence was closed. As mentioned earlier, the Tribunal refused to proceed on this basis.

    WHAT THE TRIBUNAL CAN AND CANNOT DO

20. In procedural terms, the Tribunal begins from the reality that there has never been a determination by the Respondent that the Applicant’s MDD is an ‘injury’ for the purposes of the SRC Act.[14] In the absence of such a determination (and subsequent reviewable decision), the Tribunal cannot discharge its fundamental function to review a decision made by the Respondent. Plainly, with regard to MDD, there is nothing for the Tribunal to review.

    [14] Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84.

21. The Tribunal is mindful of the Abrahams approach suggesting a ‘broad, generous and practical interpretation’ should be followed in ascertaining the nature of the claim propounded by an Applicant. However, both Madgwick J in Abrahams and Flick J in Muir temper such a ‘broad, generous’ approach.’ Madgwick J said that in any exercise determining the nature of a claim, considerations ‘…enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.’[15] In a similar vein, Flick J observed that a given claim before the Tribunal ‘…must nevertheless properly and adequately inform Comcare such that Comcare can make an informed decision whether the claim should be met.’[16] [My underlining]

    [15] Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at paragraph [18].

    [16] Comcare v Muir [2016] FCA 346, paragraph [30].

22. While the Tribunal has limited flexibility to reformulate a claim, the ambit of that flexibility does not extend to making a determination for compensation pursuant to s 24 of the SRC Act for permanent impairment said to result from MDD in circumstances where (1) there is no determination about MDD and, indeed, (2) the reviewable decision did not consider MDD. To paraphrase the comments of Flick J for present purposes, ‘…a claim confined to an injury [PTSD] cannot be transformed into a claim for [MDD or MDD and PTSD]….’ I thus agree with the Respondent’s submissions: ‘if it were to take that step, the Tribunal would fall into error, for the reasons articulated in Muir.’[17]

    [17] Exhibit 2, Respondent’s Submissions, page 6, paragraph [25].

23. The Respondent has at no time accepted liability for the now-propounded MDD and that purported ‘injury’ has not been the subject of the ‘three-tier decision-making process’[18] required by the SRC Act.[19] In addition to this legislative requirement, there is authority for the proposition that the ‘three-tier decision-making process [comprises] a central feature of the legislative scheme under the SRC Act.’[20] Accordingly, the Tribunal does not have jurisdiction to consider whether the Applicant is entitled to compensation under ss 24 and 27 of the SRC Act for any condition other than PTSD.

    [18] Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 at paragraph [32].

    [19] See Safety, Rehabilitation and Compensation Act 1988, Pt VI, ss 60- 64.

    [20] Comcare v Lofts [2013] FCA 1197; 217 FCR 220, 225, paragraph [18] (per Mortimer J)

    THE WAY FORWARD

1. I am mystified by the Applicant’s rationale behind an ‘inability’ to comply with the Orders made (by consent) on 29 May 2019. The Applicant says:

   ‘Inability to comply with Order 1[21] dated 29 May 2019

   [21] Order 1 provides as follows: ‘1. That this Application be held in abeyance pending the Applicant filing an Application for a reviewable decision made by the Respondent in relation to the Applicant’s proposed additional claim for ‘Major Depressive Disorder and/or Episode’.’

   42.The Applicant submits a further claim for permanent impairment pursuant to Order 1 cannot be made.

   43. Irrespective of its correctness, the Applicant’s ‘accepted injury’ is, as recorded in the PI Application, PTSD. For the purposes of a permanent impairment application, this cannot be changed by the Applicant.

   44.    If the Applicant were to:

   (a) withdraw the PI Application and lodge a fresh Application listing the accepted injury as ‘post-traumatic stress disorder and major depressive disorder’; or

   (b) lodge a fresh PI Application listing the accepted injury as ‘major depressive disorder’

   the application would, technically, be incorrect.

   45.We note that neither the Respondent, nor its legal representatives, have been able to provide an explanation as to how the PI Application could (or should) be amended.’[22]

   [22] Exhibit 1, Applicant’s submissions dated 19 June 2019, page 10, paragraphs [42]-[45]

2. The Transcript of the proceeding on 29 May 2019 is clear: although there was some discussion about possibly withdrawing and/or amending the present claim for PTSD, the agreed position was (1) that the present claim for PTSD would be held in abeyance; (2) the Applicant would lodge a fresh claim for compensation for her MDD so a determination could be made by the Respondent that the MDD does constitute an ‘injury’ pursuant to s 5A of the SRC Act[23]; and (3) the two applications would then be joined and determined during the one hearing in this Tribunal. The orders made by consent on 29 May 2019 are predicated on this basis.

   [23] Of course, were that claim to be determined in the Applicant’s favour, the Applicant will then be able to lodge (were that her intention) a claim for compensation for any permanent impairment(s) arising from that condition.

3. This is demonstrated in the Transcript:

   SENIOR MEMBER:   Mr Forbes, there was just one other thing I wanted to mention before we had a break, and I should’ve mentioned it actually… What we could do also, there’s another alternative, instead of starting afresh totally we can hold this matter in abeyance, then you could file a fresh claim for the major depression get, say, an outcome at Comcare that causes that matter to come back here, we could then run both files on a parallel basis to a singular hearing. We could do that … So that’s open to you as well. So you don’t have to even withdraw this matter. I’ll hear from Ms Slack about that, but that’s a potential, practical solution as well.

   MR FORBES:   Yes, and I thank you for that. My instructions are, yes, to lodge a fresh claim for the major depression.

   SENIOR MEMBER:   Yes.

   MR FORBES:   It would be preferable in – well, I’d be happy to take up your Honour’s suggestion about holding this matter in abeyance in those circumstances.

   SENIOR MEMBER:   This one, PTSD matter? Yes

   MR FORBES:   And start the ball rolling as it were in relation to the second.

   SENIOR MEMBER:   Okay. Okay. That’s your position?

   MR FORBES:   Yes.

   SENIOR MEMBER:   Okay. Thank you.

   MR FORBES:   Thank you.”[24]

   [24] Exhibit 3: Transcript, 29 May 2019, page 14, lines 6-36

4. The most appropriate and expeditious approach is for (1) the Applicant to lodge a fresh claim for her MDD; (2) the Respondent can then make a determination that the Applicant’s MDD constitutes an ‘injury’ within the meaning of that term in s 5A of the SRC Act and (3) if the MDD claim is not resolved in the claims process (or as part of a claim for permanent impairment), the two applications with the Tribunal (being the existing application for the PTSD claim and a further application for the MDD claim) should be joined and both heard and determined at the one hearing.

5. The current Application for Review to this Tribunal is dated 28 November 2016. This Application has been before the Tribunal for a period of approximately three years. I am mindful of the legislative objectives governing discharge of the Tribunal’s functions.[25] As observed by the Respondent,[26] if the Applicant does not file a fresh claim for MDD, the time and resources of this Tribunal will be unnecessarily expended on determining liability for the presently non-compensable MDD. The issues between the parties will not be narrowed as would be achieved via the abovementioned joinder of both Applications. Such an outcome would unacceptably militate against the Tribunal’s legislative objectives to, in essence, discharge its functions with due expedition.

   [25] See s 2A, Administrative Appeals Tribunal Act 1975 (Cth).

   [26] Exhibit 2, Respondent’s submissions dated 21 June 2019, page 7, paragraph [28].

   DECISION

6. I am of the view (and accordingly find) that until such time as a fresh determination and subsequent reviewable decision about the MDD condition is made by the Respondent, this Tribunal does not have jurisdiction to make a determination that the Applicant is entitled to compensation for a permanent impairment arising from her MDD pursuant to ss 24 and 27 of the SRC Act.

   ORDER

7. The form and operative effect of the orders made by consent on 29 May 2019 will remain unaltered.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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Associate

Dated: 28 June 2019

Date(s) of hearing:	21 June 2019
Counsel for the Applicant:	Mr M Forbes
Advocate for the Applicant:	Ms J Hodge
Solicitors for the Applicant:	Hall Payne Lawyers
Counsel for the Respondent:	Ms K Slack
Advocate for the Respondent:	Ms L Cooper
Solicitors for the Respondent:	Australian Government Solicitor