Poignand and Comcare (Compensation) [2018] AATA 3864 (31 July 2018)
Division:GENERAL DIVISION
File Number(s): 2016/5670
Re:Billie Poignand
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mark Hyman, Member
Date:31 July 2018
Place:Canberra
The tribunal has jurisdiction in this matter to consider the applicant’s injuries from 3 July 2014 to 18 May 2016.
........................................................................
Mark Hyman, Member
Catchwords
COMPENSATION – jurisdiction – later aggravation or development of original condition for which compensation is sought – whether scope of claim includes the later development or aggravation - whether Comcare’s construction of the claim should be followed – whether Comcare has construed the claim too narrowly – whether the tribunal’s jurisdiction extends to the broader claim – tribunal’s jurisdiction extends to the later developments
Legislation
Administrative Appeals Tribunal Act 1975 ss 37, 42D, 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16, 19, 53, 54, 60, 61, 62, 63, 64, 69, 72
Cases
Abrahams and Comcare [2006] FCA 1829
Australian Postal Corporation v Sellick [2008] FCA 236
Comcare vBromham [2017] FCA 174
Durham and TNT Australia [2011] AATA 802
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Kennedy v Comcare [2014] FCA 82
Smith v Comcare [2013] FCAFC 65
Szabo v Comcare [2012] FCAFC 129
Telstra Corporation Ltd v Kotevski [2013] FCA 27
REASONS FOR DECISION
Mark Hyman, Member
31 July 2018
The applicant, Mr Billie Poignand, has claimed compensation from Comcare in respect of a psychological condition which he says was occasioned by his employment at Geoscience Australia. Mr Poignand lodged a claim on 25 May 2016. The claim gave the date at which he first noticed symptoms as 3 July 2014, and gave the same date as that on which he had first sought medical attention. Mr Poignand continued to receive treatment for his condition, and to experience difficulties in the workplace, into 2015. In 2016 Mr Poignand suffered a worsening of his condition which he attributes to further workplace events, occurring on 18 May 2016. On 28 July 2016 Comcare made an initial determination denying liability under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). That determination stated that events in May 2016 had been considered but would need to be the subject of a separate claim. Mr Poignand requested reconsideration on 11 August 2016, and the determination was affirmed in a reconsideration determination dated 14 September 2016. Mr Poignand applied for review by this tribunal on 26 October 2016.
This decision is about whether the tribunal’s jurisdiction in this matter extends to the events of May 2016. The applicant contends that it does; the respondent argues that jurisdiction does not extend beyond mid-2015. Immediately before a telephone directions hearing on 4 July 2018 the applicant made a submission seeking the broader jurisdiction for which he contends. The tribunal directed that the respondent should make a submission in response on the jurisdictional issue and ruled that the tribunal…
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- Poignand and Comcare (Compensation) [2018] AATA 3864
- Case
- [2018] AATA 3864
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CaseChat Overview and Summary
The legal issue before the Tribunal was whether its jurisdiction extended to considering the later developments and aggravation of Mr Poignand's condition, even if the initial claim and subsequent determinations had focused on an earlier period. Specifically, the Tribunal had to determine if Comcare had construed the claim too narrowly and whether the Tribunal's jurisdiction encompassed a broader interpretation of the claim, including subsequent worsening of the condition.
The Tribunal applied principles established in case law, particularly from *Abrahams and Comcare* [2006] FCA 1829. It affirmed that while entirely new claims introduced at the Tribunal level may fall outside jurisdiction, matters that fall within an initial claim on one reading but outside it on another require a flexible interpretation. The Tribunal adopted the principles from *Abrahams*, which advocate for a broad, generous, and practical interpretation of injury notices, consistent with the beneficial purposes of the Act and the likelihood of laypeople lodging such notices. The purpose of notice is to enable Comcare to determine the claim, and decision-makers have powers to consider informal amplification of a notice or claims that better explain an injury for which notice has been given. The paramount consideration is enabling the decision-maker a fair opportunity to investigate the claim properly.
The Tribunal found that Comcare had construed the claim too narrowly. It held that the Tribunal's jurisdiction extends to later developments or aggravations of an original condition for which compensation is sought, provided these developments are not entirely outside the scope of the initial claim. Therefore, the Tribunal's jurisdiction extended to the broader claim, encompassing the later developments of Mr Poignand's condition.
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
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Ratio Decidendi
Legal Principle Established
Comcare’s reconsideration determination (T25) dated 14 September 2016 affirmed the initial determination. The delegate noted Professor Moore’s opinion that the injury sustained on 18 May 2016 was an aggravation of an injury sustained in mid-July 2014; summarised the report by Dr Oelrichs, including the conclusion that the clinically identifiable symptoms appeared by at least 2014, developed over the period up to mid-2015 and worsened after that time up to the time of the claim; accepted the diagnosis by Dr Oelrichs of “major depressive disorder with prominent anxiety”; was satisfied that Mr Poignand suffered symptoms of an “aggravation of a major depressive disorder, recurrent episode” and that symptoms became clinically significant in 2014; and recounted in moderate detail the events of July 2014. The delegate stated the following:Whilst I note you submitted an Incident Report in relation to the incident on 18 May 2016, you have claimed you first noticed your condition in the afternoon of the 3 July 2014. There is no evidence before me to support your condition resolved at any time during the period from 2 July 2014 to 18 May 2016, but equally the evidence does not confirm that your symptomatology was outside the boundaries of normal mental functioning until mid 2015 when you presented to your psychologist. Therefore, I will consider the incidents leading up to 3 July 2014 to determine if your condition resulted from reasonable administrative action taken in a reasonable manner in respect of your employment, but note that it may be open to assess events up to mid 2015.CONSIDERATION There is a substantial body of case law dealing with the scope of the tribunal’s jurisdiction, especially where there is variation in the scope suggested in the claim and associated documents, the initial determination and the reconsideration determination. It is clear, as the applicant concedes, that new claims entirely outside the scope of the reconsideration determination, introduced at the level of the tribunal’s review, will normally lie outside jurisdiction: Lees v Comcare [1999] FCA 753. But the cases considered here involve matters that fall within an initial claim on one reading and outside it on another. In Abrahams and Comcare [2006] FCA 1829 (Abrahams), Madgwick J, asserting that it was reasonable to allow a claim to be flexibly interpreted, enunciated the following principles (at [18]):1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice. 2. In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.3. The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given. 4. Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.5. There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.