Pisani and Comcare

[2004] AATA 1294

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1294

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/969

GENERAL ADMINISTRATIVE DIVISION		)
Re		VICTOR PISANI

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member

Date6 December 2004

PlaceSydney

Decision The decision under review is affirmed

….[sgd] Ms R Hunt….

Senior Member

CATCHWORDS

COMPENSATION - injury – cease liability - reactive depression - medical treatment expenses – same fact issues - previous fact finding by Tribunal - reactive depression in remission – no change in circumstances claimed – claim for medical expenses rejected - decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 16

Administrative Appeals Tribunal Act 1975 (Cth) s 33

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

Comcare v Grimes (1994) 33 ALD 548

Re Matsuko and Australian Postal Corporation (1995) 21 AAR 9

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

REASONS FOR DECISION

6 December 2004	Ms R Hunt, Senior Member
SUMMARY

1. Mr Pisani seeks review of Comcare’s determination dated 28 January 2003 to refuse to reimburse him medical expenses incurred between 17 March 2003 and 6 May 2004. Comcare decided on 27 July 2004 to affirm a delegate’s determination of 26 May 2004. That determination was that pharmaceutical expenses claimed for the period 17 March 2003 and 6 May 2004 were not payable as medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988. Mr Pisani seeks review of that reviewable decision.

DISCUSSION

2.      A previously constituted Tribunal (N2003/685), on 6 May 2004, set aside an earlier determination of a delegate that Comcare was no longer liable to pay compensation for Mr Pisani’s reactive depression.

3.      The Tribunal Member set aside the decision on the basis that Comcare could not “cease liability” in general to bar future claims. See paragraph 39 of the Tribunal’s reasons for decision and the Oudyn case cited above. In Oudyn, Cooper J observed that a decision maker cannot purport to determine on a reconsideration of a determination under section 14 that a liability, which correctly and effectively attached in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section was thereafter excluded in respect of the injury.

4.      However, in the reasons for decision, the Tribunal Member also made a fact finding. Member Webb found, on the balance of probabilities, and based on certain medical opinions and reports, that Mr Pisani’s reactive depression had gone into remission and that his current symptoms were not attributable to his work-related injury. See paragraph 37 of reasons for decision.

5.      Member Webb also noted that there were no claims for specific payments of compensation before the Tribunal and that Comcare must address any such claim if and when it arose. See paragraph 40 of reasons for decision. Mr Pisani has now made such a claim and it is the matter before the present Tribunal.

EVIDENCE and FINDINGS

6.      Mr Pisani told the Tribunal that he was still taking the same medication as previously when Comcare met this expense on his behalf. He tendered medical evidence from his general practitioners and psychiatrists confirming that he was suffering from a psychiatric condition or symptoms.

7.      While it is open to Mr Pisani to make a claim for expenses related to his workplace injury, he must show that his claim arises from his injury, in this case, that he continues to suffer reactive depression. The Tribunal, previously sitting in the person of Member Webb, has already decided on 6 May 2004 that Mr Pisani no longer suffered from any effects or sequela of the depressive disorder which had given rise to Comcare’s liability. Member Webb further found he had not so suffered since 28 January 2003. See paragraph 82 of reasons for decision.

8. Section 33 of the Administrative Appeals Tribunal Act 1975 allows the Tribunal flexibility to hear the issues in a matter without being bound by the rules of evidence. The doctrines of res judicata and estoppel may not prevent the Tribunal from hearing the current claim. However, while the Tribunal is not bound by the rules of evidence, Mr Pisani’s entitlement to expenses for the period covered by the present claim has already been decided by the Tribunal.

9.      As the Tribunal said in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, it is inappropriate and unreasonable to entertain re-litigation of the same matter. Further, whether or not estoppel may apply to the Tribunal’s decisions, Wilcox J in Comcare v Grimes(1994) 33 ALD 548 expressed the view that the Tribunal was master of its own procedures and will not allow a finally determined matter to be re-litigated.

10.     Also see Re Matsuko and Australian Postal Corporation (1995) 21 AAR 9, where the Tribunal summarised the position and concluded that the Tribunal should not generally allow re-litigation of issues already decided. In Matsuko, the Tribunal set out instances where the Tribunal might be more flexible. One of these circumstances is where there is a new decision. There is a new decision in the present case but the original decision of the delegate already rejected the claim for expenses over the same period albeit without giving appropriate reasons.

11.     As well, the Tribunal in Matsuko described several other good reasons to re-hear a matter and none of these are present. Mr Pisani has shown no clear legislative intent indicating the case should be re-heard, he has shown no change in circumstances or provided fresh evidence and there is no failure of justice in my view. Mr Pisani told the Tribunal he is continuing to take the same medication. Mr Pisani’s medical evidence has already been considered by the Tribunal and a decision has been reached in respect to his submissions.

12.     This means that Mr Pisani’s current claim, which falls within the period between 28 January 2003 and the date of the previous Tribunal decision, 6 May 2004, cannot succeed and should not be reviewed again.

DECISION

13. For these reasons, the decision to reject Mr Pisani’s claim for reimbursement of pharmaceutical expenses as medical expenses under section 16 is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of hearing  15 November 2004
Date of decision      6 December 2004
Applicant self represented        
Solicitor for the Respondent          Phillips Fox