Re Denison-Smith and Comcare - [2000] AATA 553

DECISION AND REASONS FOR DECISION [2000] AATA 553

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/315

GENERAL ADMINISTRATIVE DIVISION )

Re TONI DENISON-SMITH
Applicant

And COMCARE
Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date6 July 2000
PlaceAdelaide

Decision The decision under review is affirmed.

..............(Signed)..................
Deputy President B.H. Burns
CATCHWORDS
COMPENSATION – jurisdiction – power of Tribunal.

Safety Rehabilitation and Compensation Act 1988, ss14, 24 and 27
Lees v Comcare and Another: Comcare v Mathews and Others (1999) 56 ALD 84

REASONS FOR DECISION

6 July 2000 Deputy President B.H. Burns

This application concerns the issue of whether the Tribunal has the power to consider on the merits whether Toni Denison-Smith ("the applicant") has sustained an injury which has resulted in a permanent impairment for the purposes of s24 of the Safety Rehabilitation and Compensation Act 1988, ("the Act") and if so, whether Comcare ("the respondent") is liable to pay additional compensation in accordance with s27 of the Act.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents).
The applicant was represented by Mr Corrighan of counsel, and the respondent was represented by Mr Roder of counsel.
The following facts are not in dispute and are accepted by the Tribunal:

a) On 23 April 1992 the applicant lodged a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 ("the Act") for a work-related injury resulting in "foot strain, leg strain" (T3).

b) On 21 May 1992 the respondent accepted liability to pay compensation for "aggravation of pronated foot condition resulting in bilateral foot and leg strain" ("the injury") (T48/105).

c) The injury was deemed to have occurred on 19 February 1992, when the applicant first sought medical treatment. The respondent paid compensation in respect of the cost of medical treatment during the period 19 February 1992 to 2 December 1992 together with incapacity payments in relation to the period 13 April 1992 to 13 December 1992 (T48/105).

d) On 26 March 1993 a delegate of the respondent advised the applicant that the respondent would cease liability from the said date in regard to the bilateral foot and leg strain. A medical report by Dr Humble suggested that the effects of the injury had ceased (T32/72). This decision was made pursuant to s14 of the Act.

e) As there has been no reconsideration of the decision of 26 March 1993 (i.e. no reviewable decision), the Tribunal does not have jurisdiction to review that decision. The reasons given for not pursuing a reconsideration of the 26 March 1993 decision were cited as being that the applicant did not intend to resume her employment with the Department of Defence, and because she was not incurring any significant medical expenses at the time. The applicant further stated that she retired from the Australian Public Service on 3 July 1993 (see letter of instructions from Ms Denison-Smith dated 3 February 2000).

f) On 17 April 1996 the applicant claimed compensation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Denison-Smith and Comcare

Details

AGLC: Re Denison-Smith and Comcare [2000] AATA 553
Case: [2000] AATA 553
Decision Date: 6 July 2000

CaseChat Overview and Summary

In the case of Re Denison-Smith and Comcare, the applicant sought to challenge a decision by Comcare regarding the cessation of liability for compensation. The applicant argued that the cessation of liability, which was determined under section 14 of the Safety Rehabilitation and Compensation Act 1988, and the subsequent rejection of a claim for permanent impairment and non-economic loss under sections 24 and 27, were reviewable decisions. The central issue before the tribunal was whether these decisions were indeed subject to review, and if so, whether the tribunal had the jurisdiction to review them.

The tribunal considered whether the decisions made by Comcare were reviewable under sections 60 and 62 of the Act. It concluded that the decision to affirm the rejection of the claim for permanent impairment and non-economic loss was a reviewable decision. The tribunal emphasised that the Act does not preclude claims for permanent impairment and non-economic loss, even when a cessation of liability determination is in effect. The tribunal also noted that while the cessation of liability determination remained current, the applicant's challenge was directed towards the affirmation of the rejection of the impairment claim.

The tribunal found that it had jurisdiction to review the decision of Comcare, as it was a reviewable decision within the meaning of the Act. The tribunal's decision affirmed its ability to review the rejection of the applicant's claim for permanent impairment and non-economic loss, despite the existence of a cessation of liability determination. The tribunal held that the applicant's right to challenge the decision was not absolute and could be subject to the discretion of Comcare, but the tribunal still retained the power to review the decision.

The tribunal ultimately determined that it had the jurisdiction to review the decision of Comcare regarding the rejection of the claim for permanent impairment and non-economic loss. The tribunal did not address the merits of the claim itself, but rather focused on its jurisdiction to review the decision.

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

Mr Corrighan expressed concern that to be successful in an application for an extension of time, the applicant would have to rely on the favourable exercise of Comcare's discretion, thus removing the applicant's absolute right to make a claim for permanent impairment. Mr Corrighan similarly expressed concern that the applicant was being penalised simply because the permanent impairment claim was lodged over three years after liability was ceased, thus creating time limit problems. Had the permanent impairment occurred sooner, the applicant would not be in this situation.TRIBUNAL'S FINDINGS, REASONS AND CONCLUSION The respondent's decision of 26 March 1993 was to cease liability to pay compensation to the applicant from this date because the effects of the relevant injury, namely aggravation of pronated foot condition resulting in bilateral foot and leg strain, had ceased. The above decision brought liability to an end as and from 26 March 1993. It was clearly a determination under s14 of the Act and had the effect of a denial of liability to pay compensation to the applicant until such time as it was set aside or varied. As and from 26 March 1993 there was no liability to pay compensation to the applicant in respect of her injury as it had not been established that her injury had resulted in death, incapacity or impairment. The determination of 26 March 1993 was not the subject of any reconsideration by the respondent (the applicant had not applied for any reconsideration) and so the determination of 26 March 1993 is still current. However, the applicant has now made application to the respondent for extension of time within which to challenge the determination by way of a reconsideration of it. The review sought by the applicant before this Tribunal relates not to the s14 determination but to the affirming on 14 July 1999 of the respondent's decision of 6 January 1999 rejecting the applicant's claim for permanent impairment and non-economic loss because liability had ceased as and from 26 March 1993. The Tribunal now turns to the question as to whether it can review the decision of the respondent made on 14 July 1999 keeping in mind that the Tribunal can do so if the decision is a reviewable decision. (ss60 and 62 of the Act). The decision of the respondent on 14 July 1999 is, in the opinion of the Tribunal, a reviewable decision. It was a decision to affirm a rejection of a claim for permanent impairment and non-economic loss pursuant to ss24 and 27 of the Act. The initial decision of 6 January 1999 was a determination pursuant to ss24 and 27 and fell within the definition of "determination" in s60(1) of the Act. There was nothing precluding the applicant from making the ss24 and 27 claim. The Act does not preclude such a claim from being made. Whether or not such a claim could be considered on its merits, bearing in mind that there was in place at the time a s14 determination denying liability, is another question which the Tribunal now turns to.

Ratio Decidendi

Legal Principle Established

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