Onassys and Comcare (Compensation) - [2021] AATA 829

Onassys and Comcare (Compensation) [2021] AATA 829 (12 April 2021)

Division:GENERAL DIVISION
File Number(s): 2020/4044
Re:Cristina Onassys
APPLICANT

AndComcare
RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:12 April 2021
Place:Sydney

The Tribunal decides that the correct and preferable decision is that the Applicant shall not be permitted to re-litigate her claim for workers’ compensation which a delegate of the Respondent denied in a decision dated 25 February 2004. The application is dismissed as an abuse of process under subsection 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

WORKERS’ COMPENSATION – interlocutory decision – whether the Applicant is attempting to relitigate claims previously settled – whether the Applicant should be permitted to relitigate claims previously settled – whether notice given as soon as possible in respect of injuries – whether the Respondent is prejudiced – whether the Tribunal has jurisdiction to deal with aggravations of an injury subject to a settled claim – application dismissed as abuse of process

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988

CASES

Commonwealth v Snell [2019] FCAFC 57

Mununggurr v Comcare [2020] FCA 1786

Novosel v Comcare [2017] FCA 722

Quinn and Australian Postal Corporation [1992] AATA 668

Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

12 April 2021

Background

The Applicant seeks review of a decision made by the Respondent on 17 June 2020 (the reviewable decision).
The reviewable decision affirmed an earlier determination by the Respondent, dated 15 May 2020. By that determination, the Respondent denied that it is liable to pay compensation to the Applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in relation to the Applicant’s mental ailments of Post-Traumatic Stress Disorder (PTSD), Adjustment Disorder, and Major Depressive Disorder, which the Applicant claimed she sustained or first noticed on 21 January 2003.
The Applicant is a former employee of the Commonwealth Department of Agriculture, Fisheries and Forestry (formerly the Australian Quarantine and Inspection Service). She was employed as a Quarantine Inspector. The Applicant ceased to be employed by the Commonwealth on 20 May 2015 when she was invalidity retired.
On 24 January 2003, the Applicant had an exchange with a colleague, Tina Li, during which it is alleged the Applicant called Ms Li ‘rude, impolite and bossy’ and told Ms Li that no-one liked her.
On 25 January 2003, the Applicant met with Assistant Airport Manager, Ian Sinclair, to discuss her exchange with Ms Li. During this meeting, the Applicant allegedly made a series of allegations about Ms Li, including that she had breached the APS Code of Conduct and that she may have bribed colleagues.
On either 1 or 2 February 2003, the Applicant reportedly approached Customs officer, Matthew Threadgold, and informed him Ms Li was using ‘loopholes in the tax laws and it had to be money laundering’.
On 4 February 2003, Mr Threadgold advised Ms Li of his conversation with the Applicant on either 1 or 2 February 2003.
On 6 February 2003, Mr Sinclair met with the Applicant and the other Assistant Airport Manager, Magda Hribar.
On 17 February 2003, Director of Human Resources Beverley Smith advised the Applicant that Mr Sinclair had reported her for a suspected breach of the APS Code on the basis that the Applicant failed to behave in a manner which showed respect and courtesy to a colleague. The Applicant was advised that an investigation would take place and she would have an opportunity to respond to the allegations.
On 25 April 2003, the Applicant was transferred from her position at Sydney Airport to a position at the Clyde Mall Centre.
On 6 May 2003, Cathy Cox, Manager of People and Strategies, determined that the Applicant had breached the APS Code. Ms Cox requested that the Assistant Regional Manager formally counsel the Applicant both about her behaviour and her continuing obligations as an APS employee.
On 20 May 2003, Assistant Regional Manager Julie Sims advised the Applicant that she was found to have breached the APS Code.
On 1 October 2003, the Applicant lodged a claim for workers’ compensation for a condition described in the claim form as ‘depression’, which the Applicant claimed she first noticed on 1 October 2003. The Applicant indicated that she had not previously suffered from a similar injury or illness.
According to medical evidence from around this date, the Applicant attributed the condition to an “abusive” supervisor, Ms Li.
On 25 February 2004, Comcare denied liability to compensate the Applicant, pursuant to section 14 of the Act, for a PTSD and anxiety state, on the basis that the exclusionary provisions of the Act applied.
The Applicant did not seek review of the decision dated 25 February 2004.
The Applicant has since made a number of other related claims against Comcare that have had varied outcomes.
Comcare has accepted liability under section 14 of the Act for ‘sprain of shoulder & upper arm (right) and subacromial bursitis (right)’ and ‘aggravation of the partial tear of the Applicant’s rotator cuff (left)’ with a deemed date of injury of 13 July 2012.
In August 2013, the Applicant commenced treatment at a pain management clinic for her accepted shoulder conditions. The Applicant’s treatment at the pain management clinic included psychological consultations. On 8 May 205, Comcare determined it was not liable to pay compensation to the Applicant under section 16 of the Act for individual psychological sessions, specifically relating to chronic pain management, on the basis that liability had not been accepted for a psychological condition.
On 29 September 2015, Comcare accepted liability to pay compensation under sections 24 and 27 of the Act for a permanent impairment arising from the Applicant’s accepted left and right shoulder conditions.
On 31 May 2016, Comcare determined that the Applicant was not entitled to certain medical expenses arising from physiotherapy, massage and hydrotherapy, for her accepted left and right shoulder conditions under sections 16 and 29 of the Act. On the same date, Comcare denied liability for the claimed conditions of chronic pain and a psychological condition which the Applicant claimed she suffered secondary to her accepted shoulder and arm conditions.
The Applicant requested a reconsideration of the decisions made on 31 May 2016.
On 14 July 2016, Comcare affirmed the determination dated 31 May 2016 relating to medical expenses and household services under sections 16 and 19 of the Act. In addition, Comcare affirmed the second determination dated 31 May 2016 but only in relation to the secondary chronic pain condition under section 14 of the Act.
On 27 September 2016, Comcare issued a reviewable decision in which it affirmed the decision dated 31 May 2016 insofar as it concerned a claim for a psychological ailment unrelated to chronic pain.
On 3 March 2017, the Applicant applied to the Tribunal for an extension of time to lodge an application for a review of Comcare’s decision dated 27 September 2016. On 13 March 2017, the Tribunal refused the Applicant’s extension of time request. The order made in connection with this decision carried a notation to the effect that the ‘Applicant will lodge appropriate claim forms to Comcare in respect of psychological injuries for the period 2003/2013 and 2014’.
In the meantime, on 3 March 2017, the Applicant applied to the Tribunal for a review of the reviewable decisions dated 14 July 2016.
On 19 June 2019, the Tribunal made decisions as follows:
34.1 The determination concerning the Applicant’s entitlement to compensation for medical expenses was set aside and the matter remitted to Comcare for payment/reimbursement of massage treatment and hydrotherapy charges incurred.
34.2 The determination concerning a “chronic pain disorder” was affirmed.
On 5 March 2020, the Applicant lodged a claim for compensation for Post-Traumatic Stress Disorder, Adjustment Disorder and Major Depressive Disorder. The Applicant claimed that she first noticed symptoms on 21 January 2003 and first sought medical treatment on 8 October 2003. Annexed to the Applicant’s claim was a 100-page statement detailing what the Applicant alleges were causative events to her current condition between 2003 and 2015. The Applicant also annexed over 500 pages of documents in support of her claim.
On 23 April 2020, the Applicant’s general practitioner, Dr Sanki, issued a medical certificate in which he stated the Applicant was not fit for work for the period between 1 October 2003 until 20 October 2020. Dr Sanki further recorded in the medical certificate that the Applicant suffered ‘PTSD, Major Depressive Order’ sustained on 1 October 2003 as a result of ‘bullying, harassment at work’.
On 15 May 2020, Comcare decided, pursuant to section 14 of the Act, that it was not liable to pay compensation to the Applicant for PTSD. The decision was made on the basis that Comcare had previously denied liability to compensate the Applicant for PTSD and psychological injuries. Comcare further noted in its decision that, in accordance with section 53 of the Act, the Applicant had not provided written notice of her claimed injuries as soon as practicable.
On 15 May 2020, the Applicant sought a reconsideration of the determination.
Comcare undertook a reconsideration of its 15 May 2020 determination, and affirmed its decision on 17 June 2020 on the basis that:
39.1 having regard to subsection 7(7) of the Act, the Applicant had made a false and wilful representation that she did not suffer, or had not suffered, from a similar condition,
39.2 the Applicant had not given notice of her injury as soon as practicable, as required by section 53 of the Act,
39.3 the Applicant was, in effect, attempting to re-litigate issues which were the subject of previous determinations, and
39.4 the Applicant’s employment did not contribute to, to a material degree, the claimed psychiatric condition.

The Law

The SRC Act

The Respondent is liable to pay compensation for an ‘injury’ suffered by an employee if it results in death, incapacity for work or impairment pursuant to subsection 14(1) of the Act.
‘Injury’ is defined in section 5A(1) of the SRC Act as follows:
Injury means:
a disease suffered by an employee; or
an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
‘Disease’ is relevantly defined in section 5B(1) of the Act to mean either an ailment, or an aggravation of an ailment ‘that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth’. The phrase ‘significant degree’ means ‘a degree that is substantially more than material’: section 5B(3).
The term ‘ailment’ is defined in section 4(1) to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
Section 53 of the SRC Act provides that an employee must give notice in writing of an injury as soon as practicable after the employee becomes aware of the injury (i.e. a claim for compensation).
Section 61 provides that the Respondent must consider and make a determination of a claim and notify the claimant of the outcome in writing.
Section 62(1) of the SRC Act grants a determining authority the ability to, on its own motion, reconsider a determination made by it or a delegated authority. Section 62(3) of the SRC Act provides that a request for consideration of the decision shall be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request.
Section 64 of the SRC Act provides that a person can apply to the Tribunal for a review of a reviewable decision.

Issues for determination

The issues to be determined by the Tribunal in relation to this matter are:
(a)whether the Applicant should be permitted to re-litigate her claim for workers compensation which the Respondent denied on 25 February 2004, and which the Respondent has since treated as finalised;
(b)if the Applicant is so permitted, whether the Applicant gave notice in writing of her claimed injuries as soon as practicable after she became aware of them, as required by section 53 of the SRC Act, and, if not, whether the Respondent is prejudiced as a result; and
(c)whether the Tribunal has jurisdiction to deal with the Applicant’s claim that she suffered multiple aggravations of the mental ailments she sustained or first noticed in January 2003.

Discussion

Whether the Applicant is attempting to re-litigate a matter which has already been settled?

Turning to the first issue, the Tribunal must determine whether the Applicant is attempting to re-litigate a matter which has already been settled, in which case, the application should properly be set aside under s.42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) as an abuse of process.
There is recent authority on the matter in the case of Novosel v Comcare [2017] FCA 722. In that case, Perry J referred to the decision of the Full Court of the Federal Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10. Justice Perry said as follows at [112]:
…abuse of process is not merely concerned with prejudice to a respondent but also with matters of broader public policy. Thus, principles of res judicata, issue estoppel and the like in judicial proceedings, are underpinned by broader issues of public policy, namely, that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court not only because “a person ought not to be vexed twice for one and the same cause”, but also because it is in the interests of the State that there be an end to litigation: see e.g. Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 (Wong) at [36]-[37]. The same policy considerations may equally inform the Tribunal’s approach to issues of abuse of process as they would plainly promote the objective which the Tribunal is to pursue by virtue of s 2A of the AAT Act, namely, to provide a mechanism of review that is fair, just, economical, informal and quick. In any event, I accept the respondent’s submission that the prejudice to Comcare is clear in circumstances where the applicant, inconsistently with prior agreements and his earlier conduct in withdrawing claims, has brought yet another application to the Tribunal in relation to the same claim. As Comcare submits, such conduct increases the time, expense and allocation of resources that Comcare needs to devote to repeatedly answering the same claim over many years. Moreover the fact that the applicant may not have raised the issue in the negotiations leading to the consent decision in AAT application no 2013/1438 is ultimately not to the point. It may be an abuse of process not only to re-litigate the same issue twice, but also to seek to litigate an issue that properly belonged to the earlier litigation: Wong at [37] (by analogy).
A close consideration of the Applicant’s evidence reveals as follows:
(a)On the basis of the Applicant’s workers compensation claim form dated 5 March 2020, the condition for which she is claiming compensation is “Post Traumatic Stress Disorder, Adjustement (sic) Disorder, Major Depressive Disorder” suffered while working as a “Quarantine Officer” with “Australin (sic) quarantine and Inspection Services”;
(b)On the basis of the Applicant’s claim form, 21 January 2003 at approximately 11:00AM was the first time the Applicant noticed symptoms as a result of the condition claimed; and
(c)The Applicant first sought medical treatment for the claimed condition from Doctor W.S Mar and Doctor Alex Sharah on 8 October 2003.
On the face of the evidence above, the Applicant is seeking redress in relation to the same mental ailments from which she claimed to have suffered in 2003 and in relation to which a decision was made at that time denying liability.
In relation to the Applicant’s 2003 claim, her workers compensation claim form dated 1 October 2003 lists “Depression” under injury and illness information. The claim form further indicates that the Applicant first noticed the illness on 1 October 2003 at 2:00PM, and first received medical treatment for the condition on 1 October 2003 from “Doctor Mar – GP” and “Marcel Novo – Optometrist”.
Further, the decision and reasons of Comcare delegate Lisa Ippoliti dated 25 February 2004 purported to decide and finalise the Applicant’s claim for “compensation and rehabilitation for depression, which occurred on 1 October 2003”. Significantly, Comcare decided to disallow the Applicant’s claim for compensation for “post-traumatic stress disorder and anxiety state”, reaching its conclusion on the basis of the Applicant’s claim form, relevant statements and a Fact Finding report.
On examination of the documentation, the Applicant’s claim made in March 2020 is in relation to precisely the same conditions for which she sought compensation in 2003. There is a very clear explanation at [20]-[32] of the decision as to why compensation was denied at that time. Accordingly, as of February 2004, the Applicant was not entitled to compensation.
It is significant in my opinion that the Applicant did not seek a review of the decision at that time. Accordingly, the Respondent was entitled to act on the basis that the matter had been dealt with and the question was settled. The Applicant cannot agitate the same matters in 2020 in the hope of a more favourable decision being made. To do so would in my opinion clearly amount to an abuse of process within the terms of section 42B(1) of the AAT Act.
There is no issue estoppel in this matter (Commonwealth v Snell [2019] FCAFC 57). If the Applicant has new information, or is suffering from a different set of ailments, she is at liberty to make a further application. The report of psychiatrist Dr Michael Hong dated 25 September 2015 would suggest that this is not the case. At page 6 of the report, Dr Hong notes:
Ms Onassys reported having suffered physical injury and chronic pain. However it was the way she perceives she has been treated in the workplace, that has been particularly distressing for her, leading to the onset of significant psychological symptoms by 2004. Ms Onassys has not fully recovered since that time. Over time, there has been a diagnosis of Post Traumatic Stress Disorder; however, I did not identify the type of trigger or psychological response that would fulfil the DSM-IV or DSM-5 criteria of the PTSD condition.
In addressing the issue of the Commonwealth and unfairness, and of it being entitled to rely on a decision, it is not difficult to see how the respondent may face significant prejudice if the Applicant were allowed to relitigate claims dealt with in 2004.
It may be difficult to relocate the relevant witnesses, and in any event, it is likely that the recollection of those witness may have faded with the effluxion of time. This is illustrated by the evidence of Ms Beverley Smith, who says at [7] in her Statement of 17 February 2021 that her recollection of the events in question is poor:
…I believe that Mr Sinclair would have advised me of this allegation and that would have commenced the formal investigation, but I do not have any recollection of this

Documents may have been destroyed, or simply no longer be available. Many former employees may simply be uncontactable.
These issues were set out clearly by the then President of the Tribunal, O’Connor J in the decision in Quinn and Australian Postal Corporation [1992] AATA 668.
With regard to the matter at hand, the critical issue in the legislation is the causal link between the injury occasioned and the employee’s employment. The Comcare delegate’s decision dated 25 February 2005 explicitly dealt with this issue at page 9, finding that an exclusionary provision of the Act precluded Comcare from liability on the basis that the stress symptoms of the Applicant were a result of the reasonable disciplinary action taken against her in relation to a breach of the employee Code of Conduct.
The Applicant cannot for reasons of fairness and public policy in not allowing open-ended litigation, re-litigate exactly the same issue that has been previously fully canvassed and decided.
On the basis of the evidence available to the Tribunal, I find that the applicant is seeking to re-litigate an issue that was previously determined in 2004 and that this would constitute an abuse of process in the terms of section 42B(1)(c).
Although not strictly relevant, I note that section 20 of the SRC Act applies where compensation is payable to an employee who suffers injury resulting in incapacity if that employee is now retired from employment and receives a superannuation pension. The amount of compensation payable to such an employee is calculated using the formula contained in subsection 20(3) of the Act. Even if the Applicant were entitled to compensation under her most recent claim, her invalidity retirement in 2015 and subsequent receipt of superannuation would render the quantum of any payments susceptible to moderation under subsection 20(3) of the Act.
Although it is not necessary for me to determine whether the Applicant gave notice as soon as practicable after she became aware of her injury, the evidence as outlined above shows that the Applicant did not.

Whether the Tribunal has jurisdiction to determine issues not raised with the original decision-maker?

The second issue raised in this matter related to jurisdiction of the Tribunal, and although it is unnecessary for me to deal with that issue, I note that there is clear authority in the matter of Mununggurr v Comcare [2020] FCA 1786.
It is clear from this decision that the powers of the Tribunal are powers to review decisions that have already been made.
The starting point for the Tribunal therefore, is the decision in 2020 in response to a claim by the applicant in respect of injuries suffered in 2003. This was the claim before the Comcare officer. It did not refer to aggravation and the decision maker concluded that what was to be decided was in fact an attempt to re-litigate claims which had been settled in 2004. Some of the claims the Applicant now seeks to make, were not made in the claims before the decision-maker in 2020 and accordingly, were never considered.
The proper course for the Applicant is to lodge a new application, but she cannot make a request to the Tribunal to determine issues that were never raised with the original decision-maker. Such a course is entirely outside the remit of the Tribunal. Accordingly, even if the decision in relation to abuse of process were not to be upheld, the Applicant’s claim must fail for want of jurisdiction.

DECISION

The Tribunal decides that the correct and preferable decision is that the Applicant should not be permitted to re-litigate her claim for workers compensation which a delegate of the Respondent denied in a decision dated 25 February 2004. The application is dismissed as an abuse of process under section 42B(1) of the Administrative Appeals Tribunal Act 1975.
It is noted that after the hearing had concluded, the Applicant sought to submit new material to the Tribunal, which was rejected on the basis that the hearing had been concluded and the information was not made available to the Tribunal or the Respondent prior to or during the course of the hearing.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 12 April 2021

Date(s) of hearing:	22 March 2021
Date final submissions received:	22 March 2021
Applicant:	By telephone
Counsel for the Respondent:	Mr Bradley Dean
Solicitors for the Respondent:	Ms Naoimh Donaghy, Australian Government Solicitor