Peterson and Comcare - [2002] AATA 818

DECISION AND REASONS FOR DECISION [2002] AATA 818

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/386

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MATTHEW JAMES PETERSON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date16 September 2002
PlaceSydney

Decision      The tribunal has jurisdiction to entertain the applicant's claims in relation to compensation for permanent impairment.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – jurisdiction of Administrative Appeals Tribunal to hear claim for compensation for permanent impairment – whether reviewable decision on permanent impairment issue exists – application of obligation to decide claims guided by equity, good conscience and the substantial merits of the case and without regard to technicalities

Administrative Appeals tribunal Act 1975 ss 43(1)
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("injury"), 14(1), 24, 27, 45, ) ("reviewable decision"), 62, 64(1)(a)-(d), 72(a)

Lees v Comcare; Comcare v Mathews and Others (1999) 56 ALD 84

REASONS FOR DECISION

16 September 2002 Mr M J Sassella, Senior Member

THE APPLICATION

Application N2002/386 is an application to the Administrative Appeals Tribunal ("the tribunal") by Matthew James Peterson ("the applicant") for review of a decision by Comcare ("the respondent") dated 28 February 2002 (T80) which affirmed a primary decision by a Comcare officer dated 11 December 2001 (T72). The decision under review clearly decided that Comcare's liability to compensate Mr Peterson for an injury to his left knee had ceased because he had fully recovered from the effects of the injury.
JURISDICTION HEARING
Comcare was of the view that the tribunal had no jurisdiction to consider whether a decision taken on 15 November 2001 to reject Mr Peterson's claim for lump sum compensation for the permanent impairment of his knee was the correct or preferable decision. Comcare considered that there was no reviewable decision under ss 60 and 62 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act) for the tribunal to consider. Section 64 of the Act permits the tribunal to review only a reviewable decision, not a primary decision.
Interpretation
60. (1) In this Part:
…
"reviewable decision" means a decision made under subsection 38(4) or section 62.
…
Reconsideration of determinations
62. (1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the Commonwealth-the Commonwealth; or
(c) if the determination affects a Commonwealth authority—that Commonwealth authority.
…
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b) 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, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
…
Applications to the Administrative Appeals Tribunal
64. (1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth-the Commonwealth; or
(c) if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d) if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
…
Comcare was of the view that there had been only a primary determination in relation to Mr Peterson's alleged permanent impairment.
The tribunal convened an interlocutory hearing on jurisdiction in Sydney on 12 September 2002. Mr G Foster of counsel represented Mr Peterson. Mr G M Watson of counsel represented Comcare. The tribunal took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T83) provided by the respondent.
Exhibit R1 – Letter dated 28 May 2002 from Brydens Law Office to Comcare.
Exhibit R2 – Letter dated 16 July 2002 from Comcare to Brydens Law Office.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

From an examination of ex TD1 the tribunal noted the following. Mr Peterson lodged claims in respect of a permanent impairment affecting his left knee on 15 April 2000 (T44), 18 June 2000 (T46) and 3 August 2000 (T48). On 15 November 2000 a Comcare delegate determined that Mr Peterson was not eligible for any compensation under s 24 or s 27 of the Act (T71). A Dr D C Johnson, a general and traumatic orthopaedic surgeon, had presented two reports dated 25 October 2001 (T67, T68) in which he found no assessable permanent impairment of Mr Peterson's left lower limb due to an injury at work on 24 September 1996. The delegate relied on this. The delegate informed Mr Peterson's solicitors of the review rights available to Mr Peterson.
In the same document the delegate observed that Dr Johnson's reports indicated that compensation in general was no longer payable to Mr Peterson. The delegate noted that Dr Johnson saw no need for further medical treatment and considered the knee fully recovered following earlier surgery. The delegate, however, suspended making a determination in order to allow Mr Peterson 28 days in which to provide further medical evidence.
On 11 December 2001 the same delegate wrote to Mr Peterson's lawyers (T72) noting that no further evidence had been received and determining that on and from 11 December 2001 Comcare was no longer liable to pay compensation for Mr Peterson's claim under any provision of the Act. Mr Peterson's review rights were explained.
On 19 December 2001 Brydens, for Mr Peterson, sought a review of the "determination of 11 December 2001 denying liability for our client's claim under the [Act]" (T74). The writer said, "Our client has undergone an arthroscopy and left knee reconstruction as a result of his work injury. He will continue to require ongoing monitoring and treatment form [sic] his doctors, he is incapacitated for his pre-injury employment and suffers from a permanent impairment as a result of his injuries". (Tribunal's emphasis)
On 28 February 2002 a Comcare "Instructing & Review Officer" reviewed the decision of 11 December 2001 and decided to affirm it (T79, T80).
Mr Foster made submissions to the tribunal to the effect that
(a)the applicant's request for reconsideration (T74) related to both primary determinations, ie the rejection of the permanent impairment claim and the decision that the effects of work injury had ceased; and
(b)the respondent's determination dated 11 December 2001, in that it denied liability under "any provision of the Act", included within it a decision on permanent impairment rights under ss 24 and 27 of the Act.
The tribunal finds difficulty with these submissions. However, it considers that another argument might be preferable. That is that the express reference to permanent impairment in the request for reconsideration was sufficient to indicate that the request applied to both determinations, ie the determination on permanent impairment dated 15 November 2001 (T71) and the general determination that the effects of the compensable injury had ceased (T72). The tribunal does not accept that the second determination applied to the claim for a permanent impairment payment. It was clear that that matter had been disposed of in T71 and that the delegate saw that it was probable that Comcare's underlying liability to pay all other forms of compensation had evaporated because of Mr Peterson's allegedly successful recovery. The tribunal finds that all that the delegate did on 11 December 2001 was to decide that Comcare was no longer liable under s 14(1) to compensate Mr Peterson in respect of his knee injury. The tribunal finds that, correctly interpreted, the determination on 11 December 2001 made no reference to Mr Peterson's permanent impairment claim, that having been dealt with on 15 November 2001.
However, the tribunal finds that, properly interpreted, the request for reconsideration from Brydens dated 19 December 2001 (T74) was a request for reconsideration of both determinations adverse to Mr Peterson, ie those in T71 and T72. True it is that the request for consideration did not refer to the determination dated 15 November 2001, but it did refer to a belief that Dr Benanzio's reports (T42, T43) favouring a 20% permanent impairment should be preferred to Dr Johnson's reports (mentioned above) and it reiterated that Mr Peterson was suffering from a permanent impairment as a result of his injuries.
Brydens should have referred in their request for reconsideration to the determination dated 15 November 2001. However, it is arguable that Comcare should, in the second determination, have referred only to liability under s 14 of the Act and not to "any provision of the Act", an ambiguous description of the breadth of the determination.
The tribunal notes that the reconsideration document (T80) is comprehensive and contains the material that the decision-maker would have utilised if consciously addressing the refusal of compensation for permanent impairment. It is therefore not a nonsense to see this document as relating to both determinations.
The tribunal notes s 72 of the Act which states that in making determinations in relation to claims and requests Comcare (and the tribunal) shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities. Consistently with that invocation, the tribunal finds:
(a)That the request for reconsideration, properly interpreted, appearing in T74, sought reconsideration of a determination made on 15 November 2001 (T71) and a second determination made on 11 December 2001 (T72).
(b)That the reviewable decision dated 28 February 2002 (T79), although not understood by its writer to relate to the determination dated 15 November 2001, should have addressed that determination and, on its terms, addressed issues pertinent to the determination dated 15 November 2001.
(c)That, in accordance with equity, good conscience and the substantial merits of the case, and without undue regard to technicalities, the reviewable decision dated 28 February 2002 related to Mr Peterson's claim for permanent impairment.
(d)That the tribunal has jurisdiction to entertain Mr Peterson's claim for permanent impairment as part of its consideration of application number N2002/386.
Mr Watson referred the tribunal to the leading case on tribunal jurisdiction to consider matters of permanent impairment when they have not been explicitly considered in a reviewable decision. This is the decision of the full Federal Court in Lees v Comcare; Comcare v Mathews and Others (1999) 56 ALD 84.
The tribunal considers that the factual situation here differs from that in the Lees; Mathews cases (above). In Lees (above) there had been no primary determination in relation to the employee's permanent impairment. The matter reached the tribunal as a result of a reviewable decision dealing only with a denial of liability for payment of the employee's taxi fares to see a doctor. There had been a request for reconsideration relating only to that matter. In the employee's statement of issues, a document a party submits to the tribunal and to the other party early in the tribunal's pre-hearing processes to confirm that the parties agree as to the relevant issues, the employee referred to an expectation that the tribunal would be considering in general the other compensation entitlements the employee might have. These were said to include compensation for permanent impairment.
The tribunal decided that it had jurisdiction to entertain the issue of compensation for permanent impairment. The tribunal said that, once it had jurisdiction in relation to one issue, it could consider the whole question of compensation under the Act. This stemmed from s 43(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"):
(1)       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 and shall make a decision in writing:
(a)       affirming the decision under review;
(b)       varying the decision under review; or
(c)       setting aside the decision under review and:
(i)        making a decision in substitution for the decision so set aside; or
(ii)       remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Finn J in the Federal Court, sitting alone, had first considered the issues and had decided that the tribunal did not have jurisdiction in relation to permanent impairment. The full court decision also held that there was no jurisdiction. The court said at page 95 (paragraph 50):
"[50] The only issues under s 24 of the Act which required determination in Ms Lees' case were the issues of whether she had a permanent impairment and, if she did, the amount of compensation payable under the section in respect of that impairment. Neither of these issues had been determined at the first tier decision-making stage. Necessarily in the circumstances, there had been no reconsideration under s 62 of the Act of a determination on these issues. Consequently there was no reviewable decision touching on these issues to found an application to the AAT under s 64 of the Act. The reviewable decision which founded Ms Lees' application to the AAT was the determination of the independent review officer concerning Ms Lees' entitlement under s 16 of the Act for compensation in respect of taxi fares incurred, or to be incurred, for the purpose of obtaining medical treatment. It was that determination, and that determination only, that s 64 of the Act authorised the AAT to review. The powers of the AAT under s 43 of the AAT Act were powers which it was authorised to exercise for the purpose of reviewing only that determination."
In the present case there had been, unlike in Lees (above), a primary decision on permanent impairment, a request for reconsideration of that decision, and a reviewable decision capable of relating to the merits of the permanent impairment claim. The tribunal therefore regards the present case as distinguishable from Lees (above).
In the Mathews case (above) the employee, Mr O'Donoghue, had lodged a compensation claim for major depression. This was rejected on the basis that Mr O'Donoghue did not suffer an injury as defined in s 4(1) of the Act. That definition states, amongst other things, that an injury does not include any disease suffered by an employee as a result of reasonable disciplinary action, as was alleged to have occurred in Mr O'Donoghue's situation. Mr O'Donoghue sought a reconsideration and there was a reviewable decision following the reconsideration. This affirmed the rejection. Mr O'Donoghue appealed to the tribunal and in a preliminary conference advised that he was pursuing compensation for permanent impairment before the tribunal. The tribunal heard submissions on its jurisdiction and Mathews J, President, and Mr R Handley, Senior Member, found that the tribunal had jurisdiction.
The tribunal considered that, where liability had been declined on the basis that the employee did not suffer an injury under s 4, it was open to the tribunal, if it found that there had been an injury, to proceed to consider Mr O'Donoghue's potential entitlement under such sections of the Act as were relevant to his claim. This was, presumably, on the basis of s 43(1) of the AAT Act.
The full court in paragraph 55 (at page 96) was influenced by the fact that, for the tribunal to reach a decision as to Mr O'Donoghue's entitlement to receive compensation under s 24 of the Act in relation to permanent impairment, it would have to become involved in a process extending beyond review of the reviewable decision. It would require the tribunal to consider issues not determined at either the first or the second tier of the decision-making process established by the Act.
The tribunal considers the Mathews case (above) as distinguishable from the present case because there has been a primary and, arguably, a second tier determination in the present case. However, the tribunal concedes that the decision that it has jurisdiction in the instant case may be somewhat dubious in relation to the Mathews decision (above) because it is arguable that the reviewable decision in this case did not squarely consider permanent impairment. Nevertheless, on balance the tribunal favours the view that the reasons for decision in the reviewable decision were sufficient to explain why Comcare did not see Mr Peterson as qualifying for a permanent impairment payment.
THE ISSUE OF ELECTION
It appears that Mr Peterson has lodged a form of election under s 45 of the Act to the effect that he will pursue an action in the courts rather than a claim under ss 24 and 27 of the Act for permanent impairment. There is an issue as to the effectiveness of that election if the tribunal is to take on the issue of permanent impairment. It was agreed by the parties at the jurisdiction hearing that, if the tribunal has jurisdiction to consider permanent impairment, there should be another jurisdiction hearing relating to the election.
The tribunal's decision in this matter will necessitate such a second hearing. The tribunal registry will be requested to list that hearing. It would be desirable for the applicant and his solicitors to provide affidavit and oral evidence to the tribunal on that occasion relating to the status of the election as the applicant perceives it.
CONCLUSION
The tribunal has decided that it has jurisdiction to consider the applicant's claims in relation to compensation for permanent impairment.
DECISION
The tribunal has jurisdiction to entertain the applicant's claims in relation to compensation for permanent impairment.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  12 September 2002
Date of Decision  16 September 2002
Counsel for the applicant         Mr G Foster
Solicitor for the applicant         Brydens Law Office
Counsel for the respondent     Mr G M Watson
Solicitor for the respondent     Dibbs Barker Gosling Lawyers