Newton-Edwards and Comcare
[2007] AATA 1170
•26 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1170
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION ) No A2006/234
) Re MICHELLE NEWTON-EDWARDS Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W.Constance, Senior Member Date 26 March 2007
Place Canberra
Decision 1) The Tribunal has jurisdiction in this application to consider a claim by Ms Newton-Edwards that Comcare is liable to compensate her pursuant to section 24 of the Safety, Rehabilitation and CompensationAct 1988 in respect of the conditions of bilateral carpal tunnel syndrome, paraesthesia in the arms, headaches and a psychological or psychiatric condition.
2) The application shall be listed for determination of the directions to be made in relation to the hearing of the application.
..............................................
J.W Constance, Senior Member
CATCHWORDS
COMPENSATION - Reviewable decision dealt with claim for carpal tunnel syndrome – Diagnosis expanded – Applicant sought to have additional psychiatric and overuse injuries before Tribunal – Whether Tribunal has jurisdiction to consider psychiatric and overuse injuries – Expanded diagnosis was before reconsideration officer – Tribunal does have power to review different injuries
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 62
Administrative Appeals Tribunal Act1975 (Cth) ss 37, 43(1)
Lees v Comcare (1999) 56 ALD 84
Canute v Comcare [2006] HCA 47
Abrahams v Comcare [2006] FCA 1829
REASONS FOR DECISION
23 March 2007 J.W Constance, Senior Member
INTRODUCTION
1. In this application a question has arisen as to the extent of the Tribunal’s jurisdiction to review a decision by Comcare refusing Ms Newton-Edwards’ claim for permanent impairment pursuant to section 24 of the Safety, Rehabilitation and Compensation Act (1988).
2. For the reasons which follow the Tribunal’s jurisdiction does extend to consider the matters proposed by Ms Newton-Edwards.
FACTS
3. By agreement between the parties this matter was argued on the basis of the documents filed pursuant to section 37 of the Administrative Appeals Act 1975 (Cth). Those documents have been admitted as exhibit T1. I will refer to them by their “T” reference.
4. For nine years prior to September 2003 Ms Newton-Edwards was employed as a Shop Manager by the Australian Broadcasting Corporation. On 1 September 2003 she lodged a claim for workers’ compensation using the form required by Comcare.[1] Ms Newton-Edwards stated the diagnosis of the injury in respect of which she was claiming compensation to be “carpal tunnel syndrome.” She answered question 17 as follows:
[1] T9.
“In your own words, describe the injury or illness as fully as you can…
Pins and needles, numbness, tightness, loss of strength in forearms, hands and wrists
What part of the body is affected
Hands, wrists, forearms
In your own words describe how this injury affects you…
Cramping & aching whilst undertaking work tasks, disrupted sleep due to aching and pins & needles”
5. On 16 October 2003 Comcare accepted liability to compensate Ms Newton-Edwards in respect of the injury of bilateral carpal tunnel syndrome.[2]
[2] T11.
6. A medical certificate dated 15 December 2003 provided to Comcare by Ms Newton-Edwards’ general practitioner referred to the injury from which she suffered as bilateral carpal tunnel syndrome and stress/anxiety.[3]
[3] T4.
7. On 26 February 2006 Ms Newton-Edwards lodged a claim for compensation for permanent injury, again in the form required by Comcare.[4] Part A of the form is headed “COMCARE to Complete” but appears to have been completed by the same person who completed the balance of the form, part of which was signed by Ms Newton-Edwards and part by Dr Eaton her treating specialist. In Part A the accepted condition is recorded as “Bilateral carpal tunnel syndrome as component more widespread occupational overuse injury”.
[4] T74a.
8. Part B was for the employee to complete. It included the following question and answer:
“What permanent injury/impairments of the body do you suffer from as a result of your condition?
Right arm, Left arm, Secondary Depression”
9. Part C of the claim form was completed by Dr Eaton. It contained the following information:
“Diagnosis of current condition
Bilateral Carpal Tunnel Syndrome, Tension Headaches, Occupational Overuse Syndrome, Musculo-ligamentous Strain; head, shoulders, upper back and arms, and associated symptoms of depression.
Is this related to accepted condition?
Yes.
If YES, what impairments to *bodily parts *bodily functions *bodily systems have resulted from the condition?
Severe persistent paraesthesia (pins and needles) both hands and wrists, tension headaches, bilateral jaw muscle tightness, pain and … neck, shoulders, upper back and arms. Probable initial tendonitis…Depressed mood. Poor sleep patterns.”
Part C also contained a request for a description of the extent of the impairments claimed. Dr Eaton responded by referring to Tables 9.6, 9.4, 13 and 5.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment These Tables relate to assessment of spinal, upper limb, intermittent conditions (including tension headache) and psychiatric conditions respectively..
10. The claim form was forwarded to Comcare by Dr Eaton on behalf of Ms Newton-Edwards. In his letter enclosing the form[5] Dr Eaton stated:
“Some 3 years post injury Ms Newton-Edwards continues to be severely affected by her condition with multiple widespread symptoms and significant functional incapacity for daily activities. This is well summarized in the non-economic [sic] questionnaire.”
[5] T73.
11. The Non-Economic Loss Questionnaire which formed part of the application[6] included a description of the effects the injury was having on Ms Newton-Edwards and included:
·“sleep deprivation due to symptoms, frequent severe headaches”
·symptoms affect relationships and daily ability to cope. Debilitating episodes impact on activity and social interaction. Humiliation suffered through loss of privacy, loss of management role and loss of long term satisfying and successful career with current employer. Grief suffered through loss of ability to physically and emotionally achieve what was able prior to injury. Receiving ongoing treatment from a psychologist.
·“emotional distress and exhaustion in dealing with my injury has resulted in pressure in close relationships and difficulty in making and maintaining relationships”
[6] T74b.
12. In April 2006 Comcare had Ms Newton-Edwards assessed by Dr Coyle, Consultant Orthopaedic Surgeon, and Dr Glaser, Consultant Psychiatrist, and received detailed reports from both these practitioners.[7]
[7] T84 and T85.
13. On 25 May 2006 Comcare determined that Ms Newton-Edwards was not entitled to compensation for permanent impairment in relation to the carpal tunnel syndrome as the degree of permanent impairment was less than 10%. The officer who made this determination continued:
“With regard to your report from Dr Garth Eaton of 24 February 2006 and his assessment of your development of "widespread occupational overuse injury and secondary depression" I am unable to accept this information is part of your application for permanent impairment as you do not have an accepted claim of these conditions."
In notifying Ms Newton-Edwards of this determination, Comcare invited Ms Newton-Edwards to provide any new information that supported any request for review of the determination which she may decide to make.
14. On 29 June 2006 Ms Newton-Edwards’ solicitors wrote to Comcare requesting that the determination be reviewed.[8] The request made it clear that the review was sought in relation to both the physical injury of carpal tunnel syndrome, and a psychological injury as secondary to the physical injury. The solicitors invited Comcare to have an assessment under Table 5.1 (Psychiatric Conditions) carried out.
[8] T94.
15. The reviewable decision was made on 19 September 2006.[9] The reasons for the decision disclosed that the Review Officer had regard to all of the evidence contained on Ms Newton-Edwards’ file and the reasons for requesting a reconsideration provided by her solicitors. The Review Officer also indicated that she had considered the reports of Mr Coyle, Dr Glaser and Dr Eaton. In relation to the request that there be a review of the claim in relation to the psychological condition the Review Officer said:
“Further, whilst I have considered the comments made by the employee’s solicitors in their request for a reconsideration in relation to the employee’s psychological condition, I am of the view firstly that the employee has no present assessable impairment and secondly, even if the employee did have a level of impairment, that her psychological condition has not yet stabilised."
[9] T105.
ISSUE FOR DETERMINATION
16. Before reviewing the decision of Comcare made 19 September 2006 refusing Ms Newton-Edwards’ claim for permanent impairment, it is necessary top decide if the Tribunal has jurisdiction to consider impairment claimed to arise from paraesthesia in the arms, headaches and a psychiatric condition?
COMCARE’S ARGUMENT
17. Counsel for Comcare argued that an injury is defined by a matrix of circumstances being:
a. s53 notice and s54 claim;
b. physiological or psychological effects s4;
c. the necessary work connection s4, s6, s7;
d. resultant incapacity, impairment or death, or the need for medical treatment (s14 and s 16).
18. Counsel submitted that all the above requirements must be met in respect of each injury claimed and that the jurisdiction of the Tribunal to consider the claims referred to above does not arise until a fresh claim has been lodged and Comcare’s internal review process has been completed.
REASONING
19. This Tribunal’s powers in reviewing a decision are set out in subsection 43(1) of the Administrative Appeals Tribunal Act (1975), which relevantly provides:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision………..”
20. The powers given by subsection 43(1) were discussed by the Full Court of the Federal Court in Lees v Comcare (1999) 56 ALD 84 at 92:
“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.”
21. Section 62 of the Safety, Rehabilitation and Compensation Act (1988) provides for reconsideration of an original determination by Comcare. Subsection 62(5) provides:
“Where a person reconsiders a determination, the person may make a decision affirming or revoking a determination or varying the determination in such manner as the person thinks fit.”
The section is silent as to the material upon which reconsideration may be made, but it is a well-established practice that the reconsideration officer may consider material not available to the person who made the original determination. Comcare invited the submission of any new material when it advised Ms Newton-Edwards of the initial determination.
22. I do not accept the argument put by Comcare. The argument would have far more weight if Ms Newton-Edwards had sought to broaden the scope of her claim and/or claim additional injuries after the reviewable decision was made but before the matter was decided by the Tribunal. Ms Newton-Edwards is not seeking to do this. She set out her claim very clearly before the Reconsideration Officer made her decision, which is the decision now under review..
23. Comcare sought to support its argument by referring me to the decision of the High Court in Canute v Comcare [2006] HCA 47. Comcare argued that if a sequelae to an injury should be regarded as a separate injury then an employee must meet the requirements of the Safety, Rehabilitation and Compensation Act 1988 in relation to that injury when making a claim. Whether or not the conditions for which Ms Newton-Edwards now claims are separate injuries I am satisfied that she has met all requirements of the Act in making her claim. Comcare did not suggest that it had not received proper notice of any of the claimed injuries and I am satisfied that the notice required by the Safety, Rehabilitation and Compensation Act 1988 was given.
24. In construing a claim for compensation “a broad, generous and practical interpretation should be made…….”Abrahams v Comcare [2006] FCA 1829. Here it is abundantly clear that the claim for compensation for permanent injury was not limited to the accepted condition on carpal tunnel syndrome but included paraesthesia in both arms, ‘frequent severe headaches” and a psychiatric component. Even if Comcare was initially in doubt as to the scope of the claim, that doubt could not have continued after Ms Newton-Edwards requested a review of the initial determination. The letter from her solicitors clearly set out the extent of her claim. Finally it is to be noted that the Review Officer considered and rejected the claim for compensation in relation to the psychiatric condition.
25. In these circumstances there can be no doubt that Ms Newton-Edwards was claiming compensation in respect of each of the conditions referred to in the preceding paragraph. The Reconsideration Officer had power to decide upon each of the conditions claimed and it follows that this Tribunal has jurisdiction to deal with those claims in reviewing the decision of Comcare made on 19 September 2006.
DECISION
26. The Tribunal has jurisdiction in this application to consider a claim by Ms Newton-Edwards that Comcare is liable to compensate her pursuant to section 24 of the Safety, Rehabilitation and CompensationAct 1988 in respect of the conditions of bilateral carpal tunnel syndrome, paraesthesia in the arms, headaches and a related psychological or psychiatric condition.
27. The application shall be listed for determination of the directions to be made in relation to the hearing of the application.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.
Signed: .....................................................................................
Geoff Foley, AssociateDate/s of Hearing 25 January 2007
Date of Decision 26 March 2007
Solicitor for the Applicant Pamela Coward & Associates
Solicitor for the Respondent Dibbs Abbott Stillman
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