Quelch and Comcare

[2006] AATA 796

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 796

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2006/11

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN QUELCH

Applicant

And   COMCARE

Respondent

DECISION

Tribunal J.W. Constance, Senior Member 

Date19 September 2006 

PlaceCanberra 

Decision The Tribunal has jurisdiction to make findings as to the date of injuries suffered by Mr Quelch for the purpose of calculating his entitlement to compensation for periods of incapacity arising from those injuries.

..............................................

J.W. Constance, Senior Member

CATCHWORDS

Compensation – Interlocutory application – Normal weekly earnings – Whether Tribunal has jurisdiction to determine correct dates of accepted injuries – Tribunal can make findings of fact contrary to those made by decision-maker – Tribunal must determine exactly the decision under review.

Safety Rehabilitation and Compensation Act 1988 (Cth) s 19

Telstra Corporation v Hannaford (2006) 90 ALD 263

Re Fuad and Telstra Corporation Limited [2004] AATA 1182

REASONS FOR DECISION

19 September 2006 J.W. Constance, Senior Member 

INTRODUCTION

1.      For a number of years prior to 17 March 2004 Mr Quelch was paid compensation for periods of incapacity for work arising from two separate injuries.  The amount of compensation paid was in part calculated with reference to the dates of these injuries.

2.      Mr Quelch has applied to the Tribunal for a review of a decision affirming Comcare’s calculations.  A question has arisen as to whether or not the Tribunal can make its own determinations as to the dates of the injuries when reviewing the decision as to the calculation of the compensation payable pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth).

3.      In order to avoid unnecessary cost the parties have presented their arguments as to jurisdiction prior to the hearing of the merits of the application.

4.      For the reasons which follow I have decided that the Tribunal does have the power to determine the dates of each of the relevant injuries suffered by Mr Quelch.

FACTS

5.      From sometime prior to 1977 until 18 January 1989 when he was retired on medical grounds Mr Quelch was employed by the Department of Aboriginal Affairs and then by the Aboriginal and Torres Strait Islander Commission. 

6.      By a decision of Comcare’s predecessor made 25 October 1984, the Commissioner for Employees’ Compensation accepted liability to compensate Mr Quelch for a reactive depression.[1]  The matter was further considered in 1987 when it was decided that the correct date of this injury was 26 July 1983.[2]  In 1988 the Commissioner accepted liability for a separate injury of “anxiety and depression”.  The accepted date of the latter injury was 28 October 1987.[3]

[1] Document T135 lodged pursuant to s 37 Administrative Appeals Tribunal Act 1975 (Cth).

[2] Document T105.

[3] Document T135.

7.      On 30 September 1988 a decision was made as to Mr Quelch’s entitlement based on various determinations of his normal weekly earnings.[4]  Some of the documents relating to these determinations cannot be located but the determinations are referred to in other documents.

[4] Document T130.

8.      It appears Comcare’s records were not amended to show the changed date of the 1983 injury until February 2004.  In a letter of 10 February 2004 [5] Comcare notified Mr Quelch that it was “satisfied” the date should be changed to 26 July 1983 (even though the decision to change the date had been made in 1987).  Mr Quelch was invited to provide records from his employer to confirm that his normal weekly earnings figures should be amended.

[5] Document T105.

9.       By a reviewable decision made 14 April 2004 Comcare decided to cease compensation payments in respect of both injuries.[6]  In describing the injuries for the purpose of the decision, the date of the 1983 injury appears to have been incorrectly stated as “26/3/83”.  On 10 June 2004 Mr Quelch applied to this Tribunal for a review of the decision.[7] On 25 May 2005 he withdrew his application and it was dismissed without proceeding to a hearing.[8]

[6] Document T113.

[7] Document T115.

[8] Document T123.

10.     On 17 October 2005 Mr Quelch wrote to Comcare and provided further documents “to support [his] case for reconsideration of date of injury and normal weekly earnings”.[9]  In that letter Mr Quelch stated that his medical condition first manifested itself in 1977 and that he was “a little surprised that Comcare has adopted 1983 as date of injury.”

[9] Document T127.

11.     On 9 November 2005 Comcare wrote to Mr Quelch in part as follows:

“I refer to your letter dated 17 October 2005 requesting a reconsideration of Comcare’s determination dated 25 October 1984, for the determination of the date of injury pursuant to Section 14 in relation to your claim for compensation.

Your letter has been accepted as a formal notice pursuant to sub-section 62(2) of the Act, requesting that Comcare reconsider that determination.” [10]

The reference for this letter was “Request for Reconsideration No: 118894”.

[10] Document T128.

12.     Also on 9 November 2005 Comcare wrote separately to Mr Quelch in part as follows:

“I refer to your letter dated 17 October 2005 requesting a reconsideration of Comcare’s determination dated 30 September 1988, for normal weekly earnings under Section’s 9 and 19 of the SRC Act in relation to your claim for compensation.

Your letter has been accepted as a formal notice pursuant to sub-section 62(2) of the Act, requesting that Comcare reconsider that determination.” [11]

[11] Document T130.

The reference for this letter was “Request for Reconsideration No: 118895”. 

13.     On 14 December 2005 [12] Comcare decided that the determinations of Mr Quelch’s normal weekly earnings since December 1988 were correct and all of the determinations were affirmed.  This is the decision which Mr Quelch is seeking to have reviewed by the Tribunal in this application. It is to be noted that the heading to the reviewable decision only refers to Reconsideration No. 11895 but the text of the decision makes it clear that both decisions were reconsidered.  I am satisfied that both decisions have been reconsidered by Comcare.

[12] Document T135.

THE ISSUE

14.     The issue at this stage is whether, when it hears the application for a review of the decision to affirm the determinations of Mr Abrahams’ normal weekly earnings, the Tribunal has jurisdiction to determine the correct dates of the two accepted injuries to which those calculations relate.

THE ARGUMENT FOR MR QUELCH

15.     Counsel for Mr Quelch has argued that in reviewing the decisions to affirm the determinations as to the amount of Mr Quelch’s normal weekly earnings the Tribunal must itself determine the date of each injury and is not bound to accept the determinations of those dates already made. He referred me to the Federal Court decision in Telstra Corporation Limited v Hannaford (2006) 90 ALD 263 as authority for the proposition that the Tribunal has the power to determine all findings of fact necessary to determine the reviewable decision before it. It was argued that a decision as to the date of each injury was necessary to determine whether Mr Quelch was on higher duties at those times. A finding that an injured worker was performing higher duties at the time of an injury may lead to a determination of a higher rate of pay for the purposes of the calculation of the normal weekly earnings.

THE ARGUMENT FOR COMCARE

16.     It was put on behalf of Comcare that that the reviewable decision of 14 December 2005 [13] does not raise the issue of the date of either injury.  Rather, Mr Quelch should have raised the question of the date of the respective injuries at the time the initial determinations referring to those dates were made.  In each case, this was before the period for which the normal weekly earnings were calculated. Counsel argued that the dates of the injuries were in contention in the application Mr Quelch made to this Tribunal in June 2004 which he withdrew without proceeding to a hearing.  It was argued that having withdrawn the June 2004 application it was not open to Mr Quelch to again seek to raise this issue.

[13] Document T135.

DETERMINATION OF THE ISSUE

17.     In Telstra Corporation Ltd v Hannaford referred to previously, the Full Court of the Federal Court said:

“……the AAT below was duly empowered, upon the true construction of the SRC Act and in the events which happened:

(i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and

(ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and

(iii) to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.

In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.” [14]

[14] At 283.

18.     As this is an application to review the calculation of normal weekly earnings and thus Mr Quelch’s entitlement under section 19 of the Act this matter is clearly governed by the principle set out in Hannaford above. In order to calculate normal weekly earnings it is necessary to know the date of the relevant injury and the Tribunal can make findings of fact in performing this function even if this requires findings contrary to those made by the decision-maker at first instance.

19.     There is an even simpler basis on which the Tribunal is entitled to make findings as to the dates of the respective injuries.  It is important to determine exactly the decision that is under review.  As the President of this Tribunal, Justice Downes, said in Re Fuad and Telstra Corporation Limited [2004] AATA 1182:

“……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.” [15]

[15] Paragraph 5.

20.      Mr Quelch clearly sought a reconsideration of the date of his injuries[16] and Comcare equally clearly accepted his request as a request for such a reconsideration[17] and acted on that basis in making the reviewable decision.  In the section headed “Background” in the reviewable decision[18] the review officer noted:

“……you have recently requested a review by Comcare in respect of the calculation of your incapacity payments, and in particular the calculation of your Normal weekly earnings (“NWE”) on the basis that no allowance was made for your performance of higher duties over a ten year period after 1977.”

[16] See paragraph 6 of these Reasons.

[17] See paragraph 7 of these Reasons.

[18] Document T135.

The reference to “a ten year period after 1977” is only relevant on the basis that there was a claim for an injury as early as 1977.

DECISION

21.     The Tribunal has jurisdiction to make findings as to the date of injuries suffered by Mr Quelch for the purpose of calculating his entitlement to compensation for periods of incapacity arising from those injuries.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed:         .....................................................................................
  Joe Meagher, Associate

Date/s of Hearing  14 August 2006

Date of Decision  19 September 2006
Counsel for the Applicant                Mr B Kelly
Solicitor for the Applicant                 Capital Lawyers      
Counsel for the Respondent           Ms L Walker
Solicitor for the Respondent            Dibbs Abbott Stillman