Parker and Comcare (Compensation)
[2021] AATA 2350
•15 July 2021
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
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.
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
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.
Ms Parker applied for review by the Tribunal – application 2021/1521.
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.
It is this issue, alone, that is the subject of this decision.
The parties provided detailed written submissions and were heard on this issue.
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 under s 16 and s 19 of the SRC Act in relation to her accepted chronic pain injury were before the primary decision maker. The second is whether such compensation entitlements in relation to a medical treatment injury under s 4(3) of the SRC Act were before that decision maker. In either case, whether or not they were squarely dealt with, if such matters were before the primary decision maker and the reconsideration decision maker, they will also be before the Tribunal on review.
Accepted injury
It is Ms Parker’s submission that Comcare accepted liability for a work-related chronic pain injury and any consequent entitlement to compensation under s 16 and s 19 of the SRC Act was squarely before the primary and reconsideration decision makers. She asserts that the chronic pain injury persists and that Comcare’s liability cannot properly be addressed applying differing diagnostic labels. Furthermore, the issue of her present entitlement to compensation in respect of that injury was before the primary decision maker, the reconsideration decision maker and, consequent to her application for review, the Tribunal.
Comcare asserts that this is not correct because the primary and reconsideration decision makers did not deal with Ms Parker’s compensation entitlements in respect of chronic pain. It is Comcare’s submission that such matters were dealt with by primary determination on 24 September 2015 and reconsideration on 8 March 2017. Comcare asserts that it was not liable to pay compensation entitlements in respect of Ms Parker’s chronic pain injury as these matters were not squarely before the primary and reconsideration decision makers. For this reason, as the Tribunal does not exercise power at large, Comcare argues that the Tribunal has no jurisdiction to decide such matters.
Under s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal’s jurisdiction to review certain decisions is conferred by legislation. Presently, jurisdiction is conferred by s 64 of the SRC Act for ‘review of a reviewable decision’. A ‘reviewable decision’ is a decision made under s 62 (s 38(4) is not presently relevant), which provides for ‘reconsideration of a determination’. The word ‘determination’ is defined in s 60(1) –
determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
The Full Federal Court in Less v Comcare[3] said of this three-tiered decision-making structure –
In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. 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.
[3] [1999] FCA 753 at [39].
In this context, it is important to steadfastly keep in mind what Downes J (then President of the Tribunal) said in Re Fuad and Telstra Corporation Limited (Fuad)[4] -
… Once liability has been established under s 14, or for that matter under s 16, of the Act, although it is possible that, as a result of the injury resolving, there may be no actual entitlement to compensation for periods of time, even long periods of time, an employee can never be deprived of his entitlement to claim further compensation relating to the established injury if the injury again causes some incapacity. The question in this case, as in Kelleher and Telstra, is how this matter, which is accepted by the respondent, should be dealt with in the application for review before the Tribunal.
4. The application for review before the Tribunal in this matter differs from the application in Kelleher and Telstra because Mr Fuad does wish to pursue claims which were before the decision-maker and which relate to incapacity not upheld in the decision under review. These matters are not dealt with in the determination because of the decision that liability had ceased but, in my opinion, the effect of the decision in Oudyn is that even though an application for compensation is refused pursuant to s 14 or s 16, with the consequence that the decision-maker does not address fully the actual applications under s 19, s 21 or such other section as is appropriate, nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.
5. It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.
[4] [2004] AATA 1182 at [3].
On these authorities, all matters that were placed before the primary and reconsideration decision makers in this case, whether or not they were dealt with in any way, are within the Tribunal’s review jurisdiction conferred by s 64 of the SRC Act.
The issues raised by the parties pose practical difficulties of the kind Downes J identified in Fuad’s case. In order to resolve those difficulties, it is necessary to carefully consider the contextual facts.
On 9 March 2019, Comcare sent Ms Parker a Review of Claim Information notice in reference to the following –
Claim reference: 1151592/1
Date of injury: 14 October 2011
Condition: supraspinatus (muscle) (tendon) strain(right), nerve root & plexus disorders(right), Chronic pain syndrome and anxiety disorder due to a medical condition.[5]
[5] T82, folio 306.
On 22 March 2019, Comcare received a report by Dr Seevnarain, a consultant occupational physician, in which the doctor diagnosed, inter alia, neurogenic thoracic outlet syndrome and chronic regional pain syndrome[6] that were the cause of incapacity and required medical treatment.
[6] T83, folio 311.
On 28 March 2019, Ms Parker had a spinal cord stimulation device fitted.
On 22 April 2019, Dr Jain, a specialist pain physician, reported that the spinal stimulator device was providing “excellent pain relief”.[7] On 10 June 2019, Dr Jain reported that Ms Parker’s “clinical feature of chronic regional pain syndrome has significantly settled down but she does have intermittent flare up”.[8] The doctor reported on 7 August 2019 that –
Clinically pain has settled significantly with use of spinal cord stimulator; however, she is still getting on and off flare up which is a mix of some neurological symptoms likely related to her MS as well as significant central and peripheral sensitisation. She has seen Matt Croger pain physiotherapist and started some exercise; however, it flared up pain.[9]
[7] T85, folio 325.
[8] T86, folio 326.
[9] T88, folio 331.
On 20 August 2019, Dr Seevnarain provided a report to the Department of Defence in which set out the following diagnoses –
1. Neurogenic thoracic outlet syndrome.
2. Chronic regional pain syndrome.
3. Chronic renal disease, possibly congenital.
4. Multiple sclerosis.
5. Optic neuritis secondary to acute flare of multiple sclerosis.
6. Severe pain symptoms secondary to a flare of chronic regional pain syndrome.
7. Adjustment Disorder with Anxiety and Depressed Mood, chronic residual symptoms (diagnosed by a psychiatrist).
The doctor reported that –
Ms Catherine Parker is a 33-year-old right hand dominant facilities manager who has had chronic regional pain syndrome. She underwent nerve stimulator implantation which had proved to decrease her symptoms of pain. However when commencing physiotherapy she has had acute symptoms of chronic regional pain syndrome followed by an acute flare in her multiple sclerosis which has resulted in optic neuritis.
Based on Ms Parker’s history, the nerve stimulator implant has proved successful to some degree. She still has decreased visual acuity secondary to the acute flare of optic neuritis. She still has symptoms of chronic regional pain syndrome which appears to be at its peak due to improper physiotherapy/rehabilitation methods.
…
In my opinion Ms Parker’s treatment is adequate. I would concur with her treating pain physiotherapist that Ms Parker requires additional occupational therapy as well as additional pain physiotherapy to help assist her with a return to work program.
…
Currently Ms Parker is not fit to undertake a graduated return to work or rehabilitation program. This is due to the acute effects of the chronic regional pain syndrome and multiple sclerosis. This is compounded by the optic neuritis which she has developed subsequent to the implantation of the nerve stimulator. It is currently uncertain how long Ms Parker’s incapacity would last. At present I do not see any significant improvement within the next six months.[10]
[10] T89, folios 335, 336 and 337.
On 30 September 2019, Dr Seneviratne, a consultant neurologist, provided a report to Comcare in which he stated –
In my opinion, her ongoing pain symptoms are more suggestive of a chronic pain condition. I cannot completely exclude the diagnosis of thoracic outlet syndrome, however, it appears that surgery for thoracic outlet syndrome has failed to treat her ongoing pain condition which has now become a chronic pain condition.
…
Although Thoracic Outlet Syndrome (TOS) is a possibility I suspect her ongoing right arm symptoms are more likely related to a chronic pain condition. Her ongoing chronic pain condition of the right arm may have occurred as a result of claimed repetitive stress injury. It is also possible that TOS may have been caused as a result of the claimed repetitive stress injury as well.
…
Her pain condition although improved is continuing. Therefore, in my opinion, the effects of any employment related conditions have not ceased.
…
In my opinion, her pain condition has become chronic and it is unlikely that this would improve significantly with time. However, I would recommend opinion from a pain specialist with regards to the prognosis and future treatment options for her pain condition as well.
…
In my opinion, her current predominant factor that is affecting her work capacity is her chronic pain condition which is likely a work-related condition. Multiple sclerosis, although a progressive neurological condition has less of an impact at this stage on her work capacity.[11]
[11] T91, folios 352, 353, 354. 355 and 356.
On 14 October 2019, a Comcare officer engaged Ms Parker in a telephone conversation and noted –
- Discussed previous determinations dated 24/09/15 which determined NPL for the below conditions:
1. Supraspinatus (muscle)(tendon) strain (right)
2. Nerve root and plexus disorder (right
3. Chronic pain syndrome
- …
- Discussed that CRPS was no longer an accepted condition and althoughtreatment had been provided for CRPS including the spinal chord stimulator, these should never have been approved and were approved in error. I made very clear that no compensation will be sought for the reimbursements of these treatments provided for CPS.
- Catherine advised that her chronic pain is due to the TOC and should still be compensable. I advised that if she wanted to have her claim reinstated for CRPS, she will need to lodge an applicationthrough to the AAT to have her condition reviewed.[12]
[12] File notes dated 14 October 2019 filed on 12 July 2021.
On 25 October 2019, a Comcare officer again contacted Ms Parker by telephone. The notes of this contact include the following –
- [Ms Parker] was unable to see Dr Jain until 10/12/19…
- I granted an EOT until 13/12/19 to provide additional medical information tosupport her claims.
- …
- We discussed her ongoing treatment. I advised that anything in relation to her TOS and anxiety disorder are still compensable. anything chronic pain related is not. [Ms Parker] advised that she will still continue to seek treatment for her pain condition but she will pay for them moving forward.[13]
[13] File notes dated 25 October 2019 filed on 12 July 2021.
On 25 November 2019, Dr Jain reported that –
Her signs and symptoms of CRPS has settled down significantly, but she still has ongoing chronic mixed pain in the right upper limb that has been a result of her initial injury.[14]
[14] T93, folio 361.
On 12 February 2020, a Comcare officer notified Ms Parker the review of her claim (Claim Number 1151592/1) had been completed and stated –
I am following up on discussions on 14 and 25 October 2019 when Comcare gave you the opportunity to provide further medical evidence to support your current compensation claim.
I have now finished my review of your claim file and I have determined that Comcare has no present liability for:
- medical expenses under Section 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act)
~ incapacity payments under Section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act)
The reasons for the decision are based on a medical report from Dr Seneviratne dated 30 September 2019 where he indicated that you no longer suffer from the compensable conditions of nerve root and plexus disorder (TOS) and adjustment reaction due to a medical condition. Dr Seneviratne opined that your current diagnosis is chronic pain as well as multiple sclerosis, which are non-compensable conditions.[15]
[15] T94, folio 362.
On 25 November 2020, Ms Parker’s legal representative sought reconsideration of this determination. In so doing, extensive references were made to issues relating to Ms Parker’s chronic pain syndrome injury and previous determinations, communications and correspondence about her entitlements. In part, the request for reconsideration extends to a request for reconsideration of the 8 March 2017 and 24 September 2015 decisions.
On 12 March 2021, a Comcare delegate issued a reconsideration decision.[16] The decision maker stated –
As I have found that you no longer continue to experience the effects of your compensable conditions of TOS and an adjustment disorder, I am not required to consider whether medical treatment is required in relation to either of these conditions.
I note that in your request for reconsideration, your solicitor has also sought to have liability reinstated for a chronic pain disorder/complex regional pain syndrome (however diagnosed). I note that a no present liability determination in relation to chronic pain disorder was issued on 24 September 2015, and was affirmed by reconsideration dated 8 March 2017. Further, we have never received a claim for a complex regional pain syndrome and, as such, that condition has not been subject to an initial determination. As such, a review of liability for those conditions is beyond the scope of this reconsideration.[17]
[16] T111.
[17] Ibid, folio 442.
Considering these materials, it is probable the review of Ms Parker’s claim (Claim Number 1151592/1) included all of the conditions specified in Comcare’s 9 March 2019 notice, including Chronic Pain Syndrome. It is equally clear that Ms Parker pressed continuing liability against Comcare in respect of her chronic pain injury. This is expressly recorded in the 14 and 25 October 2019 file notes and it is strongly asserted in a detailed manner in her request for reconsideration.
Comcare’s attitude to Ms Parker’s representations in respect of ongoing liability for her chronic pain injury is very clear, namely that her chronic pain syndrome was “no longer an accepted condition”. It is probably for this reason that Comcare declined to make any new determination of Ms Parker’s (then) present entitlements in respect of this injury, suggesting instead that she would need to apply for review by the Tribunal (presumably in respect of the reconsideration decision on 8 March 2017 that affirmed the determination made on 25 September 2015). It appears that the reconsideration decision maker adopted a similar attitude.
There are several things to say about this.
Firstly, the proposition that a determination of no present liability under particular heads of entitlement in Part V of the SRC Act amounts to a cessation of liability in respect of an injury, referred to inaptly as “an accepted condition” cannot be accepted. It is inconsistent with established, binding authority.[18] It is germane to set out what Cooper J said on this subject in Oudyn V Australian Postal Corporation[19] -
33 Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
[18] Plumb v Comcare [1992] FCA 595 per Lockhart J with whom Black CJ and Gummow J agreed at [24].
[19] [2003] FCA 318.
Furthermore, when dealing with similar issues in Fuad’s case at [3] and in Re Liu and Comcare (Liu),[20] Downes J (then President of the Tribunal), said -
[20] [2004] AATA 617.
4. It has been suggested that there is a statement in the judgment of Cooper J in Oudyn which supports a claim that liability under s 14 can come to an end:
"The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated."
5. These sentences are unexceptionable. However, they do not correct or qualify any of the observations above. The words speak of liability to pay compensation. That liability can be discharged from time to time where all entitlements for payment of past compensation have been satisfied and there is no continuing liability. But it is only the liability to pay compensation under sections other than s 14 which is discharged. The reference to "liability under s 14" in the quotation must be seen both in its immediate and surrounding context. It is a shorthand reference to the primary determination of the existence of a compensable injury which is a necessary, but not a sufficient, condition for the payment of compensation. Before compensation is payable an additional finding of liability to pay compensation must be made which, as Cooper J clearly sets out in the previous sentences, depends upon liability being established under other sections of the Act. It is this particular liability to pay compensation, and only this liability, which can, at a point in time, but not prospectively, be discharged and terminated.
6. Given these matters it is not surprising that in Rosillo v Telstra Corporation Limited [2003] FCA 1628 Madgwick J set aside a decision of this Tribunal affirming a determination:
"That on the basis that your condition has now resolved, [the respondent] is not liable to pay compensation in respect of your injury to ‘strain lower lumber region’ on and from 28 August, 2001."
7. The words "on and from 28 August, 2001" purport to speak in the future. Even if those words and figures are excluded the determination might fairly be read as extending into the future. Only lawyers knowing the principles set out above would be likely to conclude that the determination spoke at its date and said nothing about the future.
Secondly, whether or not Comcare addresses all matters placed before it when determining a claim for compensation under relevant heads of entitlement in Part II of the SRC Act, under the three-tiered decision making structure the SRC Act provides, all matters placed before the decision maker will rise again for reconsideration of that determination under s 62, or in review of such a decision under s 64 of the SRC Act. This occurs whether or not they were dealt with in any particular way by the original decision maker.[21]
[21] Irwin v MRCC [2009] FCAFC 33 at [22]; Re Fuad and Telstra Corp Ltd [2004] AATA 11682 at [5].
Thirdly, in this case, the Comcare officer who made the determination on 12 February 2020 had before him, and had power to determine, Ms Parker’s claim for then present entitlements under s 16 and s 19 of the SRC Act in respect of the chronic pain injury for which Comcare previously accepted liability under s 14 on 13 February 2013.[22] The determination made on 24 September 2015,[23] that was affirmed (in part) by the reconsideration decision made on 8 March 2017,[24] did no more, relevantly, than determine Ms Parker’s then present entitlements in respect of “right supraspinatus strain and complex regional pain syndrome under sections 16 and 19 of the SRC Act”.[25] These decisions did not bring to an end Comcare’s liability to pay compensation to Ms Parker in respect of her chronic pain syndrome injury. Furthermore, they do not bar Comcare from determining Ms Parker’s entitlements claimed under those sections or any other applicable heads of entitlement in Part II of the SRC Act at a later point in time.
[22] T19.
[23] T39.
[24] T58.
[25] Ibid, folio 245.
Fourthly, the proposition that if Ms Parker wanted to have “her claim reinstated for CRPS” she would need to apply for review by the Tribunal is somewhat ambiguous. On one interpretation it asserts that Ms Parker’s CPRS claim has been brought to an end by operation of the primary determination on 24 October 2015 and the reconsideration decision on 8 March 2017, and the only way those decision can be revisited is by the Tribunal on review. On another interpretation it may be understood to mean that if Ms Parker wanted to press her present entitlements under s 16 and s 19 from 24 September 2015, she would need to apply for review of the 8 March 2017 reconsideration decision. The former may be consistent with the noted recorded by the Comcare officer of discussions with Ms Parker on 14 and 25 October 2019. If that is correct, it is unsustainable at law. The better interpretation is the latter – if Ms Parker wanted to press her claim for compensation under s 16 and s 19 of the SRC Act in relation to her chronic pain injury as of 24 September 2015, she would need to apply for review of the 8 March 2017 reconsideration decision. Counsel for Ms Parker informed me that she had no such intention and disputation about the 12 February 2020 determination (and the subsequent reconsideration decision that is at the heart of these proceedings) relates to her entitlements to compensation under s 16 and s 19 in respect of her ongoing chronic pain injury at that time and presently.
Fifthly, as can be seen in the 24 September 2015 determination and the 8 March 2017 reconsideration decision, among other documents, Ms Parker’s chronic pain syndrome injury has been given various diagnostic labels, including Chronic Regional Pain Syndrome. In all likelihood, this reflects evolving or differing medical diagnoses of relevant symptoms and pathology in what can be accepted is a complex and difficult medical case. For present purposes relating to determination of the Tribunal’s jurisdiction in respect of Ms Parker’s application for review, little turns on the divergence of diagnostic opinions that is apparent in the available materials. Resolution of the jurisdictional dispute does not turn on one diagnosis or another, rather it is whether any claim for payment of compensation under s 16 or s 19 of the SRC Act in respect of Ms Parker’s chronic pain syndrome injury is presently before the Tribunal. There is no contest that if it is established that such a claim was before the person who made the determination on 12 February 2020 it will follow that it was before the reconsideration decision maker and hence the Tribunal.
Sixthly, it is quite clear that the primary and reconsideration decision makers decided not to deal with Ms Parker’s asserted claims for compensation in respect of her chronic pain syndrome injury. In Comcare’s submission, these decision makers decided that such matters were beyond the scope of matters before them. It is very clear that each of these decision makers were proceeding on the erroneous assumption that the decisions made on 24 September 2015 and 8 March 2017 barred further entitlement to compensation in respect of Ms Parker’s chronic pain syndrome injury. There is no proper basis for this assumption in the particular circumstances.
Comcare’s liability in respect of her chronic pain syndrome injury was not contingent on treatment of her thoracic outlet syndrome, nor was it effectively ceased by the no present liability decisions made in 2015 and 2017. Once Ms Parker pressed a claim based on entitlement to compensation in respect of that injury under s 16, s 19 or any other head of compensation in Part II of the SRC Act, Comcare was obliged to determine it. Deciding not to deal with her claim, is a decision nonetheless, and a decision of that kind is amenable to reconsideration and review. Furthermore, even if the decision makers did not make a decision at all and simply failed to deal with the claim pressed, each had power to determine the claim. The exercise of that power is available to the reconsideration decision maker, and it is available under s 43(1) of the AAT Act to the Tribunal on review.
Having carefully examined the available materials, I am satisfied that Ms Parker attempted to press a claim for payment of compensation for her chronic pain syndrome injury in the context of Comcare’s review that led to the 12 February 2020 determination. The fact that the decision maker did not expressly address her claim does not conclude the matter. The decision maker had power to do so. I note that the text of this decision does not specify the particular injury or injuries to which it relates. The only indication of this is the claim number 1151592/1 which appears on previous determinations , including the determination on 13 February 2013 in which Comcare accepted liability under s 14 of the SRC Act for “chronic pain syndrome” as a “secondary condition”.[26]
[26] T19, folio 77.
Much was said in the hearing about the conception of ‘secondary injury’ and the manner in which this was dealt with by the High Court in Canute v Comcare at [34] –
Reduced to its essentials, the conclusion of the Full Court majority depended upon the proposition that [16]:
"the policy of [the Act] seems to require such an injury to be treated as an aspect of the impairment created by the initial injury".
It is clear from the context that what was being referred to was what the majority described as a "consequential injury", a notion supported by Comcare in terms of "primary" and "secondary" injuries. Comcare's case depends upon confining the meaning of "injury" to exclude such "consequential injuries". However, there is no foundation in the Act for any such distinction between "an injury" and a consequential or secondary injury. Neither of these qualifiers finds any expression in the Act. The Act speaks exclusively in terms of "an injury." [27]
[27] [2006] HCA 47 at [34].
It is important to properly comprehend the context in which these issues arose. The majority of the Full Court in Comcare v Canute[28] was dealing with matters relating to compensation for permanent impairment resulting from an ‘injury’. The majority considered the extent to which an ‘impairment’ consequent upon an injury might, itself, meet the threshold for an injury, and concluded at [76] –
The definition of ‘impairment’ is broad. It encompasses damage or malfunction of any part of the body. It undoubtedly encompasses some injuries consequential upon the initial injury. That is to say some such injuries will constitute an element of, or an increase in, the impairment resulting from the initial injury. In that event the policy of the SRC Act seems to require such an injury to be treated as an aspect of the impairment created by the initial injury. The breadth of the definitions of ‘impairment’ and ‘injury’ are such that there is considerable room for overlap and therefore, theoretically, considerable room for the identification of elements of impairment which also qualify as injuries. For the reasons already stated, to allow such elements of impairment, all arising from the one initial injury, to stand as discrete heads of liability would run counter to the legislative scheme which imposes limits on recoverable compensation. When an injury which is an element of impairment from the initial injury occurs after a final determination has been made it will therefore be caught by the provisions of s 25(4).
[28] [2005] FCAFC 262.
The proposition put by counsel for Ms Parker, Mr Anforth, is that Comcare’s acceptance of Ms Parker’s chronic pain syndrome injury as a ‘secondary condition’ remains to be dealt with under Comcare’s liability for the original injury for which liability was accepted.
This raises the question the majority addressed in Comcare v Canute at [72] –
Some and indeed perhaps many consequential injuries will be impairments. The critical question in such a case, and for this case, is whether they should be treated for such purposes as only an impairment and not as an injury giving rise to a discrete liability.
In Ms Parker’s case, the answer is very clear: Comcare accepted liability under s 14 of the SRC Act for her chronic pain syndrome as an ‘injury’. The fact that it was a secondary condition consequent to her original injury may have meant that it might have been treated as an ‘impairment’. Once the question of discrete liability had been determined and the requisite threshold for an ‘injury’, including the necessary causal nexus with her employment, had been surpassed, it was no longer simply an ‘impairment’ that might give rise to payment of compensation under s 24 of the SRC Act in relation to the original injury; rather it was an ‘injury’ in respect of which Ms Parker might be entitled to payment under any head of entitlement in Part 11 of the SRC Act, subject to claim.
Medical treatment injury
Ms Parker submits that, to the extent that her chronic pain is secondary to surgical treatment of thoracic outlet syndrome in 2016, it amounts to an injury for which Comcare is liable by operation of s 4(3) of the SRC Act. This is not contingent, so the argument goes, on the making of a claim for a fresh injury, rather Comcare’s liability flows from the operation of the section once the facts necessary to enliven it are established. In Ms Parker’s submission, facts necessary to enliven s 4(3) are clearly made out in materials that were before the primary and reconsideration decision makers, in proper consideration of which those decision makers should not have declined to address her claims in relation to chronic pain. Ms Parker asserts that these matters are presently before the Tribunal.
Comcare disagrees and argues that an injury under s 4(3) is not compensable unless and until notice has been given under s 53 and a claim made under s 54, and no such notice or claim has been made or decided by primary determination and reconsideration. For this reason, Comcare asserts that the Tribunal has no jurisdiction to decide such matters.
Strictly, it is not necessary to deal with these submissions or to express a concluded view about the issues raised. The jurisdictional point is resolved on other grounds, already addressed.
This notwithstanding, it may be appropriate to observe that s 4(3) lies within the definition provisions set out in s 4 of the SRC Act –
(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
As can be seen, the provision has a deeming quality conveyed by the words shall be taken to be. In effect, where the essential preconditions are established and any physical or mental injury or ailment is established to result from medical treatment of an injury, an ‘injury’ is deemed to have occurred.
In this way the causal threshold for an ‘injury’ may be met. Satisfying the causal threshold for an injury does not void the administrative requirements set out in Part V of the SRC Act for notice to be given and for a claim to be made.
In circumstances where the notice requirements in respect of an injury set out in s 53 are not met, by operation of s 53(1) the Act does not apply to that injury. Similarly, where the claim requirements set out in s 54 are not met, by operation of s 54(1) no compensation is payable in respect of that injury.
On the question whether Comcare had before it a claim for a s 4(3) kind of injury when the primary determination was made on 12 February 2020, and consequently whether an injury of that kind was before the reconsideration decision maker and, presently, the Tribunal, this is not presently made out.
There is no express notice or claim of that kind made by Ms Parker in the period of the Comcare review of her claim in the period from 9 March 2019 to 12 February 2020, or thereafter. Furthermore, there is no suggestion that Ms Parker pressed a claim on that basis to the extent that it might be taken to have been before the primary decision maker on 12 February 2020.
This may not be fatal to her submission, however. There are documents in the form of medical reports and records that may be sufficient to satisfy the notice requirements under s 53 of the SRC Act and also to amount, constructively, to a claim for compensation for the purposes of s 54. For this to be made out, some specificity is required in respect of any particular documents Ms Parker might rely upon when asserting compliance with the notice and claim requirements.
While these matters were canvassed in submissions, this was not done with sufficient specificity, identify the particular documents that might amount to notice or a claim in respect of an injury of the s 4(3) kind. That being so, I am unable to go any further on this point. Should the parties request a further ruling on this point, written submissions should be provided, detailing particular documents on which constructive notice and claim assertions are based. To this end, it is appropriate to order Ms Parker to inform the Tribunal if she requires a further ruling of this kind and, if so to provide written submission within 7 days, with allowance for Comcare to make written submissions in reply within 7 days thereafter.
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.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
..................................[sgd]................................
Associate
Date(s) of hearing:
12 July 2021
Date final submissions received:
Solicitor for Applicant:
8 July 2021
Ms Kathryn Lee, David Healey Solicitors
Counsel for Applicant:
Mr Allan Anforth
Solicitor for Respondent:
Mr Ben Mason, Moray & Agnew Lawyers
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