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

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’)
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?
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.
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…

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 Mununggurr and Comcare (Compensation)

Details

AGLC: Mununggurr and Comcare (Compensation) [2019] AATA 1564
Case: [2019] AATA 1564
Decision Date: 28 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between Mr. Mununggurr and Comcare concerning a claim for permanent impairment compensation. The applicant sought compensation under sections 24 and 27 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) for Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD). Comcare had accepted liability for PTSD but not for MDD.

The central legal issue before the Tribunal was whether it had the jurisdiction to determine the applicant's entitlement to permanent impairment compensation for MDD, given that Comcare had not accepted liability for this condition and it had not been the subject of the required decision-making process under the SRC Act. The Tribunal also had to consider the extent to which it could reformulate or expand upon the applicant's claim, particularly in light of previous case law.

The Tribunal reasoned that while a broad and generous interpretation of an applicant's claim is generally favoured, this approach is tempered by the need for the claim to adequately inform the decision-maker and allow for proper investigation. Citing *Comcare v Muir*, the Tribunal held that a claim confined to PTSD could not be transformed into a claim encompassing MDD, especially where liability for MDD had not been accepted by Comcare and had not undergone the statutory three-tier decision-making process. Consequently, the Tribunal concluded it lacked jurisdiction to consider permanent impairment compensation for MDD.

The Tribunal ordered that it did not have jurisdiction to consider whether the applicant was entitled to compensation under sections 24 and 27 of the SRC Act for any condition other than PTSD.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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]. 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]. 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 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]

Ratio Decidendi

Legal Principle Established

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