Parker and Comcare (Compensation)

Case [2021] AATA 2350

Parker and Comcare (Compensation) [2021] AATA 2350 (15 July 2021)

Division:GENERAL DIVISION

File Number(s):2021/1521      

Re:Catherine Parker  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:15 July 2021

Place:Canberra

  1. The Tribunal has jurisdiction to decide Ms Parker’s entitlements to compensation as of 12 February 2020 under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the chronic pain syndrome injury for which Comcare accepted liability on 13 February 2013.

  2. The Tribunal directs –

    (a)within 7 days, Ms Parker to inform the Tribunal if she requires a further ruling in respect of any alleged injury under s 4(3) of the SR Act and, if so to provide written submission detailing the basis for any such notice or claim and the basis on which jurisdiction is asserted; and

    (b)within 7 days thereafter, Comcare to make written submissions in reply.

    …………[sgd]…………… ….

    Mr S. Webb, Member

    PRACTICE & PROCEDURE – application for review of reconsideration decision – Tribunal’s jurisdiction - scope of reconsideration decision and primary determination – decision not to deal is a decision nonetheless – jurisdiction conferred.

    Legislation

    Administrative Appeals Tribunal Act 1975 ss 25, 37, 43

    Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 14, 16, 19, 24, 53, 54, 60, 62, 64

    Cases

    Canute v Comcare [2006] HCA 47

    Comcare v Canute [2005] FCAFC 262

    Irwin v MRCC [2009] FCAFC 33

    Less v Comcare [1999] FCA 753

    Oudyn V Australian Postal Corporation [2003] FCA 318

    Plumb v Comcare [1992] FCA 595

    Re Fuad and Telstra Corporation Limited [2004] AATA 1182

    Re Liu and Comcare [2004] AATA 617

    Rosillo v Telstra Corporation Limited[2003] FCA 1628

    REASONS FOR DECISION

    Mr S. Webb, Member

    15 July 2021

  3. Catherine Parker sustained an injury to her right arm and shoulder in employment for which she claimed and was paid compensation. The injury has been the subject of differing diagnoses over time, including syndromes relating to her thoracic outlet and chronic pain that were accepted as injuries for which Comcare accepted liability. Over time, Comcare issued determinations and reconsideration decisions in respect of Ms Parker’s present entitlement to compensation under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). In 2019, Comcare undertook a review of her case that resulted in a primary determination denying present entitlement to compensation under s 16 and s 19.[1] This decision was affirmed on reconsideration.[2]

    [1] T94.

    [2] T111.

  4. Ms Parker applied for review by the Tribunal – application 2021/1521.

  5. In the course of proceedings, an issue arose in respect of the Tribunal’s jurisdiction to decide Ms Parker’s entitlement to compensation in respect of a chronic pain injury.

  6. It is this issue, alone, that is the subject of this decision.

  7. The parties provided detailed written submissions and were heard on this issue.

  8. In consideration of the submissions made, the jurisdictional issue for the Tribunal is raised on two limbs. The first is whether Ms Parker’s compensation entitlements…

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Parker and Comcare (Compensation) [2021] AATA 2350
Case
[2021] AATA 2350
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the entitlements of Ms Parker to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) in relation to an injury for which Comcare had accepted liability. The dispute centred on whether the Tribunal had jurisdiction to determine Ms Parker's compensation claims, particularly in light of a request for reconsideration made on 25 November 2020.

The primary legal issue before the Tribunal was whether Ms Parker's request for reconsideration on 25 November 2020 constituted a valid notice and constructive claim for an injury under section 4(3) of the SRC Act, thereby engaging the Tribunal's jurisdiction. The Tribunal also had to determine whether, if such a claim was validly made, it would amount to a primary determination requiring a reconsideration decision under section 62 of the SRC Act for the Tribunal's jurisdiction to be engaged.

The Tribunal reasoned that it possessed jurisdiction to decide Ms Parker's entitlements as of 12 February 2020 under sections 16 and 19 of the SRC Act, concerning a chronic pain syndrome injury for which Comcare had accepted liability on 13 February 2013. The Tribunal noted that a request for reconsideration might not be determinative of the jurisdictional point if it was the first time an issue was raised, potentially amounting to a primary determination.

The Tribunal directed Ms Parker to inform it within seven days if she required a further ruling regarding any alleged injury under section 4(3) of the SRC Act, providing written submissions on the basis for such notice or claim and the assertion of jurisdiction. Comcare was then to provide written submissions in reply within seven days thereafter.

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

Finally, if it is argued that Ms Parker’s request for reconsideration on 25 November 2020 amounts to notice and a constructive claim for an injury under s 4(3) of the SRC Act, this may not be determinative on the jurisdictional point. If the matter was raised for the first time, directly, impliedly or constructively, to the extent that it might be argued it was before that decision maker, such that the decision maker had power to decide it, a decision of that kind might amount to a primary determination, whereupon for the Tribunal’s jurisdiction to be engaged, a reconsideration decision under s 62 would be required.Decision The Tribunal has jurisdiction to decide Ms Parker’s entitlements to compensation as of 12 February 2020 under s 16 and s 19 of the SRC Act in respect of the chronic pain syndrome injury for which Comcare accepted liability on 13 February 2013. The Tribunal directs –(a)within 7 days, Ms Parker to inform the Tribunal if she requires a further ruling in respect of any alleged injury under s 4(3) of the SR Act and, if so to provide written submission detailing the basis for any such notice or claim and the basis on which jurisdiction is asserted; and(b)within 7 days thereafter, Comcare to make written submissions in reply.

Ratio Decidendi

Legal Principle Established

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