Re Durham and TNT Australia Pty Ltd
[2011] AATA 802
•15 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2011] AATA 802
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5105
GENERAL ADMINISTRATIVE DIVISION ) Re Roger Durham Applicant
And
TNT Australia Pty Ltd
Respondent
DECISION
Tribunal Justice J Jagot, Presidential Member Date15 November 2011
PlaceSydney
Decision The Administrative Appeals Tribunal has jurisdiction to hear the application for review filed by the applicant on 24 November 2010. ..............................................
Justice J Jagot
Presidential Member
CATCHWORDS
WORKERS’ COMPENSATION – claim for compensation in respect of injury to right knee – respondent’s determination and reviewable decision made on basis that injury claimed was a disease – applicant contended claim was for aggravation of existing condition – Tribunal’s jurisdiction – true scope of applicant’s claim – whether injury deemed to have occurred before respondent’s licence came into effect
LEGISLATION AND LEGISLATIVE INSTRUMENTS
Safety, Rehabilitation and Compensation Act 1998 (Cth) ss 4, 5A, 5B, 7, 11, 24, 53, 54, 60, 61, 62, 63, 64, 98A, 108, 108A
AUTHORITIES
Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829
Australian Postal Corporation v Sellick (2008) 245 ALR 561; [2008] FCA 236
Burh v Comcare (2007) 45 AAR 270; [2007] FCA 575
Comcare v Burton (1998) 50 ALD 846; [1998] FCA 1144
Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753
Re Abrahams and Comcare (2006) 44 AAR 14; [2006] AATA 793
Re Cavanagh and Comcare (2008) 106 ALD 143; [2008] AATA 553
Re Sellick and Australian Postal Corporation [2007] AATA 71
Re Sellick and Australian Postal Corporation [2009] AATA 158
Sellick v Australian Postal Corporation (2009) 113 ALD 58; [2009] FCAFC 146
REASONS FOR DECISION
15 November 2011 Justice J Jagot, Presidential Member Background
1.By an application filed with the Administrative Appeals Tribunal (the Tribunal) on 24 November 2010 the applicant, Roger Durham (Mr Durham), seeks a review of the respondent’s decision to reject his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). For present purposes, the only issue is whether the Tribunal has jurisdiction to conduct such a review in the circumstances of the case.
2.The parties agreed that this issue is identified at para 2 of the respondent’s statement of jurisdictional issues filed on 3 August 2011. The issue is as follows:
Whether the Tribunal has jurisdiction under s 64 of the Act to determine whether the respondent is liable to pay compensation to the applicant under the Act for an alleged aggravation or alleged aggravations of injury that occurred on an undisclosed date or undisclosed dates after 1 July 2008 in circumstances where:
(i)no notice of the aggravation or aggravations has been given under s 53 of the Act;
(ii)no claim for compensation for the aggravation or aggravations has been made under s 54 of the Act;
(iii)no determination in respect of the aggravation or aggravations has been made under s 61 of the Act;
(iv)no reviewable decision in respect of the aggravation or aggravations has been made under s 63 of the Act; and
(v)no application has been made to the Tribunal for review of a reviewable decision in respect of the aggravation or aggravations.
3.For reasons relating to the relevant statutory scheme, 1 July 2008 is a key date. On 1 July 2008 the respondent became a licensed corporation for the purposes of the Act. Pursuant to its licence, the respondent is not liable to pay compensation in accordance with the Act for any injury occurring at a time before the licence came into force.
4.Although (i)-(v) in the respondent’s statement of jurisdictional issues are presented as facts, they should be understood as the sub-questions on which the jurisdictional issue ultimately turns, in that each refers to a circumstance which must be present in order for the Tribunal’s review jurisdiction to be enlivened.
5.It is also appropriate to note that, prior to this matter first coming before me (on 27 July 2011), the parties had filed and served submissions on a different “preliminary issue” said by the respondent to condition the Tribunal’s jurisdiction. However, it was agreed by the parties at the hearing on 21 October 2011 that those submissions (and the questions on which they were based, including that identified in para 1 of the respondent’s statement of jurisdictional issues) have now been superseded and are relevant largely by way of background.
Statutory provisions
6.The Act provides for a scheme whereby employees may claim compensation for certain injuries, loss or damage arising in relation to their employment. In general, liability for payment of such compensation falls to Comcare as the “relevant authority” (s 4(1)). This liability is detailed in Part II and, by s 11, is defined as the liability to pay such amounts as are determined by the relevant authority to be payable under the Act. As such, Comcare is also generally responsible for determining whether compensation is payable when an employee makes a claim.
7.Part VIII of the Act enables the Safety, Rehabilitation and Compensation Commission to grant licences to certain corporations authorising them to accept liability to pay compensation under the Act in respect of injuries, loss or damage suffered by their employees (ss 108 and 108A). If a licence is granted to a corporation, the corporation becomes the “relevant authority” in respect of its employees and takes on Comcare’s role of determining and managing claims, and of paying compensation to eligible employees (ss 4(10) and (10A), 98A).
8.Claims for compensation under the Act are governed by the provisions of Part V. Section 53(1)(a) of that Part provides that the Act does not apply to an injury in relation to an employee unless written notice of the injury is given to the relevant authority as soon as practicable.
9.An “injury” is defined in s 5A(1) as:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment […]
10.Section 4(8) of the Act provides that:
A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.
11.A “disease” is defined in s 5B(1) as:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee.
12.Section 7(4)(a) provides (insofar as relevant) that an employee is taken to have sustained “an injury, being a disease, or an aggravation of a disease”, on the day the employee first sought medical treatment for the disease or aggravation.
13.Section 54(1) provides that compensation is not payable under the Act unless a written claim in the approved form is given to the relevant authority.
14.Section 61 provides that, as soon as practicable after a determination of liability is made in relation to a claim for compensation, the determining authority (defined as the person making the determination: s 60) must notify the claimant in writing of the determination, the reasons for it, and the claimant’s right to request a reconsideration of the determination under s 62(2). On receipt of such a request, the determining authority must reconsider the determination (s 62(4)) and may make a decision under s 62(5) affirming, varying or revoking it. The claimant must be notified of the decision and the reasons for it as soon as practicable after it has been made (s 63).
15.A decision made under s 62(5) is known as a “reviewable decision” (s 60). Pursuant to s 64(1)(a), a claimant may apply to the Tribunal for review of a reviewable decision.
Uncontentious facts
16.Mr Durham has been employed by the respondent, TNT Australia Pty Ltd, as a driver and courier since May 1984.
17.On 22 January 2007, Mr Durham consulted his general practitioner, Dr Yap, complaining of pain in his right knee. On 12 April 2007 Mr Durham was also examined by Dr Rowden, a specialist knee surgeon. Mr Durham’s injury did not incapacitate him for work, and was not considered severe enough to warrant surgery.
18.As noted, the respondent became a licensed corporation under Part VIII of the Act on 1 July 2008. Although the respondent’s licence was not in evidence, it was common ground that the licence did not authorise the respondent to accept liability for injuries to its employees occurring before the licence came into effect (as provided for by s 108(3)).
19.On 19 April 2010, Mr Durham underwent total knee replacement surgery in respect of his right knee. Dr Rowden, who performed the surgery, certified that Mr Durham was unfit for work from 19 to 30 April 2010 and again from 30 April to 23 June 2010.
20.On 6 May 2010, Mr Durham notified the respondent of an injury to his right knee. The injury was described as having occurred as a result of “wear and tear over 26 years as a [pick-up and delivery] driver”.
21.On 10 May 2010, Mr Durham claimed compensation under the Act for the injury to his right knee.
22.On 26 May 2010, the respondent (via its insurer) rejected Mr Durham’s claim and notified him in writing of the determination and the reasons for it. The primary reason given was the absence of a sufficient connection between Mr Durham’s claimed injury and his employment with the respondent.
23.On 9 September 2010, Mr Durham (via his solicitors) requested a reconsideration of the respondent’s determination and an extension of time to formally make the request. The extension was granted, and a formal request, along with submissions setting out the reasons for reconsideration, was made on behalf of Mr Durham on 30 September 2010.
24.On 11 October 2010, the respondent notified Mr Durham that it had reconsidered its determination and decided to affirm it.
25.Mr Durham has since returned to his normal duties with the respondent.
26.On 24 November 2010, Mr Durham filed his application for review with the Tribunal.
Parties’ submissions
27.According to Mr Durham, the injury subject of the notification given on 6 May 2010 and the claim made on 10 May 2010 resulted from a “continuous serious of micro-traumas” to the right knee incurred (relevantly) between 1 July 2008, when the respondent’s licence under the Act came into effect, and 19 April 2010, when Mr Durham underwent knee replacement surgery. This injury was said to constitute an aggravation of the condition subject of Mr Durham’s first visit to his general practitioner in January 2007. Mr Durham described his claim as a “nature and conditions” claim, in the sense that it involved an injury (being an aggravation) which occurred progressively as a result of the nature and conditions of his employment with the respondent.
28.The respondent rejected this characterisation of Mr Durham’s claim. It contended that the injury subject of the claim, and subsequently of the respondent’s determination and reviewable decision, was a disease. In support of this submission, the respondent relied on a number of reports from medical practitioners consulted by Mr Durham, who variously described his injury as “chondrocalcinosis with arthritis”, “a constitutional arthritic process associated with chondrocalcinosis”, and “advanced patellofemoral joint and medial compartment osteoarthritis”. No mention was made by any practitioner, said the respondent, of either “micro-traumas” or of an “aggravation” of an existing injury (be it a disease or otherwise).
29.The result, according to the respondent, is that the Tribunal does not have jurisdiction to hear Mr Durham’s application for review of his claim as presently characterised. This is because the Tribunal’s jurisdiction under s 64 of the Act is enlivened only where a reviewable decision has been made under s 38(4) or s 62(5). Accordingly, the respondent identified a number of steps required to have been taken in order for the Tribunal’s jurisdiction to be validly invoked:
·notice of an injury must be given under s 53 …;
·a claim for compensation … must be made under s 54;
·a determination must be made and notified in writing under s 61;
·a request for reconsideration, which sets out the reasons for requesting reconsideration, must be made under s 63;
·a reviewable decision must be made under s 38(4) or s 62; and
·an application for review must be made to the Tribunal under s 64.
30.It can be seen that these steps mirror the circumstances listed in para 2 of the respondent’s statement of jurisdictional issues as set out above.
31.According to the respondent, none of these steps has occurred in relation to the claimed injury now relied on by Mr Durham (that is, an aggravation of an existing knee condition). Rather, each step has occurred only in respect of the claimed injury comprising an arthritic disease which formed the subject of the respondent’s determination and reviewable decision. As such, the respondent submitted that (in effect) Mr Durham’s characterisation of his claim precludes the Tribunal’s having jurisdiction to hear his application for review.
32.Mr Durham accepted that his claim had been dealt with by the respondent as a claim for an injury comprising an arthritic disease. He also accepted that each of the steps set out by the respondent (both in its statement of jurisdictional issues and in its submissions) constituted a necessary precondition to the exercise of the Tribunal’s review jurisdiction under s 64 of the Act. However, Mr Durham denied that the respondent’s characterisation of his claim as one for an injury comprising an arthritic disease could effectively determine the scope of the Tribunal’s jurisdiction. He relied on a number of authorities said to establish that the Tribunal’s jurisdiction is determined by the scope of an employee’s claim properly construed, rather than by the manner in which the claim was dealt with by the respondent (citing the decisions in Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753 (Lees), Sellick v Australian Postal Corporation (2009) 113 ALD 58; [2009] FCAFC 146 (Sellick) and Burh v Comcare (2007) 45 AAR 270; [2007] FCA 575 (Burh)). Mr Durham therefore maintained that: – (i) his claim was properly characterised as a claim for an aggravation of an existing injury arising progressively over the course of his employment with the respondent, (ii) this being the case, each of the requisite steps under the Act had been taken in relation to the claim, notwithstanding that the respondent in its decision-making process adopted a different characterisation of the claim, and (iii) accordingly, the Tribunal has jurisdiction to hear his application for review on the basis that the claim is for an aggravation of an existing injury.
Applicable principles
33.In Lees, the applicant had suffered an injury in respect of which Comcare had accepted liability under the Act. Comcare subsequently determined that no compensation was payable to the applicant in respect of taxi fares incurred in the course of obtaining medical treatment for this injury. The determination was affirmed on reconsideration, and the applicant applied to the Tribunal for review under s 64 of the Act.
34.On review, the applicant sought to “expand the issues and her claims in relation to [the] proceeding” to include a claim for compensation for permanent impairment under s 24 of the Act. The Tribunal considered and determined the applicant’s expanded claim; however, on appeal, Finn J found that it lacked jurisdiction to do so (see Comcare v Burton (1998) 50 ALD 846; [1998] FCA 1144). The Full Court in Lees agreed with Finn J, holding that the Tribunal’s jurisdiction under s 64 of the Act was limited to reviewing a reviewable decision made under s 62. The Full Court considered (at [39]) that the Tribunal:
will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage [that is, the stage of the reviewable decision], albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage [that is, the stage at which the initial determination was made].
35.Thus, the Full Court concluded (at [48]) that the Tribunal had no jurisdiction to consider the applicant’s expanded claim in circumstances where that claim had not been the subject of either an initial determination or a reviewable decision under the Act.
36.In Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829 (Abrahams), a decision of Madgwick J, the applicant had made a claim under the Act for “right carpal tunnel syndrome” affecting the “right hand and wrist”, which was described as causing “pain and swelling in right hand and wrist when typing”, pain lifting and moving objects with the right hand, and diminished strength in the right hand. The claim was rejected by Comcare both at first instance and on reconsideration.
37.In the process of applying for review by the Tribunal (as recorded by Madgwick J at [6]-[8]) it became apparent to all parties that, while the applicant was suffering from pain in his wrist and hand, the medical evidence was not consistent with a diagnosis of carpal tunnel syndrome. As such, the applicant abandoned his claim for carpal tunnel syndrome before the Tribunal but pressed his case on the basis that his “wrist complaints were but part of, and subsumed in, broader, ongoing and varying difficulties over virtually the entirety of his upper right limb”.
38.The Tribunal, in its reasons for decision (see Re Abrahams and Comcare (2006) 44 AAR 14; [2006] AATA 793), noted that the decision under review was “a decision to deny liability for the specific injury of carpal tunnel syndrome of the right wrist” (at [25]). It also noted that, although the applicant “could have stated his injury in more general terms”, he “chose to make a claim for a specific injury” (at [26]). While the Tribunal recognised that it had available to it “all the powers of the decision-maker”, it considered (also at [26]) that these “did not include the power to treat the application as one for compensation for a different injury, even if that injury was one of which the decision-maker was aware”. The Tribunal therefore determined that it had no jurisdiction to deal with the applicant’s claim as pressed.
39.On review, Madgwick J held (at [16]) that the principles cited by the Tribunal, while correct, had been misapplied. His Honour confirmed that the maker of a reviewable decision, and so the Tribunal, has available “the same powers in relation to the decision to be made as the original decision-maker”. His Honour went on (at [18]) to identify a number of propositions relating to these powers which he considered had not been appreciated by the Tribunal:
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… 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 the 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.
40.In light of these propositions, Madgwick J considered that the Tribunal had taken “an over-literal view of a document that… should be beneficially, broadly and practically interpreted” (at [21]), and had impermissibly held the applicant “irretrievably to the use of what was plainly the then medical diagnosis which he had received” (at [19]). His Honour considered that when the applicant’s claim was read as a whole it was clear that, while the applicant had adopted the diagnosis of carpal tunnel syndrome in his terminology, he “was complaining in fact of pain, swelling and inflammation in the right hand and wrist associated with decreased ability to lift and move objects with his right hand and decreasing strength in the hand” (at [20]). It had therefore been open to the Tribunal either to treat the claim as a claim for “a wrist injury… which had had consequences of medical expense and/or incapacity” (at [22]), or to treat the applicant’s submissions as constituting “an informal application to amend the notice of injury” (provided that “the same symptoms, disability and timeframe were still being asserted”) (at [23]). In either case, his Honour considered that the Tribunal had been wrong to conclude that it lacked jurisdiction to consider the claim as characterised by the applicant (at [25]).
41.In Sellick, the applicant had made a claim under the Act for an injury described as “pain in his right shoulder”. The claim was initially accepted by the respondent, Australia Post; later, however, the respondent determined that the applicant’s compensable condition had ceased. This decision was affirmed on reconsideration.
42.On review, the Tribunal found that the pain claimed by the applicant was caused by three different conditions: a soft tissue injury to his shoulder, a degenerative condition in his spine, and a sprained interspinous ligament (see Re Sellick and Australian Postal Corporation [2007] AATA 71). The Tribunal found that on the balance of probabilities the applicant was no longer suffering from the effects of the soft tissue injury, but did continue to suffer pain in his mid-upper back as a result of the latter two conditions. The Tribunal considered that it had jurisdiction to assess the respondent’s liability for these conditions, as “the proper interpretation of the claim made by [the applicant]” was “a claim for an injury which caused pain in the upper back, which included, but was not limited to, pain in the area of the right scapula” (at [66]). The Tribunal found that the respondent was liable for the injury arising out of these conditions.
43.On review in the Federal Court, Bennett J found that the “additional conditions” (being the degenerative spinal condition and the sprained interspinous ligament) had not been the subject of a claim, a determination, a reviewable decision or an application to the Tribunal (see Australian Postal Corporation v Sellick (2008) 245 ALR 561; [2008] FCA 236). Accordingly, in considering the applicant’s claim on the basis of these conditions, the Tribunal had “failed to observe the limitations on its jurisdiction” flowing from the relevant provisions of the Act (at [71]). Bennett J’s ultimate conclusion, however, was that the Tribunal committed an error of law by failing to give reasons for its conclusion that the respondent was liable in respect of the additional conditions (at [72]-[73]). Bennett J remitted the matter to the Tribunal, which concluded (as summarised by Buchanan J in Sellick at [17]) that Bennett J had ruled it had no jurisdiction to direct the award of compensation with respect to the additional conditions, “which were not the result of the injury which had been the subject of the claim” (see ReSellick and Australian Postal Corporation [2009] AATA 158).
44.The primary question on appeal to the Full Court in Sellick was whether the Tribunal had been correct in regarding itself as so bound. Buchanan J (at [18]), with Mansfield and McKerracher JJ agreeing (at [1]), held that the Tribunal was indeed correct, as Bennett J’s ruling that the Tribunal’s jurisdiction was limited to a consideration of “the consequences of an injury which was the subject of the claim” – being the soft tissue shoulder injury, and not the additional conditions – was “a fundamental step towards her conclusion” that the Tribunal had fallen into jurisdictional error.
45.The reasons of the Full Court in Sellick also provide support for Madgwick J’s “broad, generous and practical” approach to the task of interpreting claims. Mansfield and McKerracher JJ, citing the decision in Abrahams, recorded their opinion (at [7]) that:
there is something to be said for the proposition that the notice of injury initially given by the applicant, namely “pain in the right shoulder” was, by the subsequent presentation of various medical certificates and medical reports, sufficient to have constituted a claim that the pain in his right shoulder flowed either from soft tissue injury in the shoulder, or from aggravation of a degenerative spinal condition, or from chronic sprained interspinous ligament, or from a combination of those conditions.
46.Their Honours went on to say, however, that as this was not “what was decided by Bennett J” it was not a question which fell for determination in the absence of any appeal from her Honour’s orders.
47.Also relevant to the question of construction are the remarks of Buchanan J on another question which arose in Sellick – namely, whether the applicant had made (and so whether the Tribunal had jurisdiction to review) a claim relating to a hernia suffered as a result of lifting bins of mail, in circumstances where the notice of injury referred only to the effects of walking. Buchanan J stated (at [23]) that:
There may be a real question whether the [Tribunal] is jurisdictionally confined by the particular description given by an employee of the cause of an otherwise compensable injury. Although it is necessary that an injury, in order to properly found a claim for compensation, arise out of or in the course of employment it may not be necessary, at least in every case, that absolute precision be supplied if it is otherwise clear that a sufficient connection with employment exists. I would not, without further consideration, endorse a suggestion that a claim that a medical condition was based on walking would exclude from consideration, in any jurisdictional sense, the possibility that the true explanation, supported by medical evidence, was that it was caused by lifting. However, it is not necessary to give further attention to that issue in the present case.
48.A more restrictive approach to claim construction was taken by the Tribunal in the case of Re Cavanagh and Comcare (2008) 106 ALD 143; [2008] AATA 553 (Re Cavanagh). The applicant in that case had suffered a spinal injury in the course of her employment as a nurse, and liability was accepted by the respondent for invertebral disc protrusion, a related inflammatory condition, and secondary epilepsy and depression. The applicant subsequently made a claim for arachnoiditis arising from the accepted conditions. This claim was rejected and the determination, insofar as the arachnoiditis itself was concerned, was affirmed on reconsideration. Before the Tribunal on review, material was tendered suggesting diagnoses other than arachnoiditis as possible explanations for the applicant’s symptoms, and a question arose whether the Tribunal had jurisdiction to consider the applicant’s claim on the basis of these alternative diagnoses.
49.The Tribunal noted (at [8]) that no claim had been lodged by the applicant in respect of any condition other than arachnoiditis, and that no primary or reviewable determination had been made in relation to the alternative diagnoses. While the Tribunal found that the applicant’s concurrent claim for permanent impairment should be broadly interpreted, it considered (at [37]) that “a bare claim for a nominated condition entailing a specific diagnosis where there is no reference to any functional component” called for a narrower approach. Accordingly, the Tribunal held that (in the absence of the concurrent claim for permanent impairment) it would not have had jurisdiction to consider the respondent’s liability in respect of injuries based on the alternative diagnoses.
50.Finally, it should be noted that the decision in Burh, on which Mr Durham also relied, is of limited relevance to this case. This is because the decision of Edmonds J in that matter was based on a finding that both the first- and second-tier decision-makers had in fact considered (and rejected) the broader claim contended for by the respondent on review. As such, his Honour was not required to consider what the outcome would have been if both first- and second-tier decision-makers had considered only the narrower claim.
Discussion
51.It will be apparent from the discussion above that, in conducting a review under s 64 of the Act, the Tribunal’s jurisdiction does not depend on the respondent’s characterisation of the applicant’s claim. Rather, the Tribunal must assess for itself the true scope of the claim and is empowered to conduct its review on that basis.
52.This is not to say that the jurisdictional preconditions set out in the Act (and identified by the respondent in its submissions) are dispensed with where the Tribunal’s characterisation of an applicant’s claim differs from that of the respondent. In such a case, it must be understood that the claim itself – interpretive issues aside – has been the subject of a determination, an application for reconsideration, a reviewable decision and an application to the Tribunal, and that the Tribunal’s jurisdiction under s 64 has therefore been enlivened.
53.The result is that the question whether the Tribunal has jurisdiction in the present case is to be resolved by reference to the scope of Mr Durham’s claim for compensation.
54.In construing Mr Durham’s claim, I adopt the propositions set out by Madgwick J in Abrahams as an appropriate reflection of the approach to be taken by the Tribunal. I also note that, unlike Re Cavanagh, the present case does not concern “a bare claim for a nominated condition entailing a specific diagnosis where there is no reference to any functional component”. Mr Durham’s claim, as set out below, was broadly expressed. Specific diagnoses were only offered in the context of later reports from medical practitioners.
55.Mr Durham’s notice of injury provided to the respondent on 6 May 2010 described the “injury and body part” simply as “right knee”. In the field asking the applicant to “describe how the injury happened” Mr Durham recorded, “wear and tear over 26 years as a [pick-up and delivery] driver”. The date of the injury was reported as “unknown”.
56.In the actual claim for compensation under the Act made on 10 May 2010, Mr Durham’s “injury or illness” was described as “knee right – total replacement arthroplasty”. In response to the question, “What were you doing at the time you were injured or contracted your illness?” Mr Durham wrote, “getting in and out of van”. The same response was provided to the question “what actually injured you, or made you ill?” Mr Durham also recorded that he was first injured or first noticed he was ill on 12 April 2007, and that he sought medical treatment for his injury or illness from Dr Yap on the same day.
57.Mr Durham’s notice of injury and claim were framed in broad terms. No mention was made of any specific diagnosis or condition, including any arthritic disease. The date of the injury (in the notice of injury) was recorded as “unknown”, and the date of first treatment was given as early 2007. Several references were made to progressive degeneration: the injury was attributed to “wear and tear over 26 years as a… driver” and to the repetitive activity of “getting in and out of [a] van”. All these statements are consistent with a characterisation of the claim as one for an injury comprising an aggravation of an existing knee condition which had first surfaced in 2007.
58.The evidence also suggests that the respondent was effectively notified of the claim so characterised (see Abrahams at [18]). An internal Incident/Hazard report of the respondent dated 12 May 2010 describes Mr Durham’s injury as “replacement of Right Knee as a result of wear and tear during [Mr Durham’s] 26 years of employment as a delivery driver”. Under the heading “Injury Details”, the “mechanism of injury” is recorded as “repetitive movement” and a “description of injury” is recorded as “disintegration of cartilidge [sic] in right knee”. The statement of reasons provided to Mr Durham in relation to the respondent’s initial determination takes note of a report of Dr Evans which recorded that Mr Durham had suffered 12 months of “significant symptoms” before consulting Dr Rowden on 12 April 2007, and was told by Dr Rowden to return “when he felt ready for a total knee replacement”. Similarly, the statement of reasons provided by the respondent in respect of the reviewable decision made on 11 October 2010 records that Mr Durham first noticed his injury in early 2007, and that he did not allege “that a single incident caused [his] right knee symptoms” but submitted that “the nature and conditions of [his] employment with TNT including getting in and out of [his] van and making deliveries… produced so called ‘wear and tear’ in the right knee joint”. Again, these statements are consistent with recognition on the part of the respondent that Mr Durham’s claim was effectively for the aggravation of an existing knee condition first noticed in early 2007.
59.It is true that, as the respondent submitted, a number of arthritic diseases and conditions were diagnosed by medical practitioners in reports subsequently prepared in relation to Mr Durham’s injury. It is also true that the respondent, both at first instance and on reconsideration, treated Mr Durham’s claim as relating to an injury constituting a disease (in both cases, the claim was stated to have been rejected on the basis that no injury had been suffered pursuant to s 5B of the Act, which contains the definition of “disease”). However, for the reasons set out above, these considerations are not determinative of the Tribunal’s jurisdiction if Mr Durham’s claim is properly construed as relating to a progressive aggravation of an existing injury occurring after 1 July 2008.
60.On the type of “broad, generous and practical interpretation” endorsed by Madgwick J in Abrahams, Mr Durham’s claim should be construed in this way. The terms of the notice of injury and the claim for compensation are consistent with this interpretation, and the evidence suggests that the respondent was effectively notified of the claim so construed. Under these circumstances, to interpret the claim as relating only to an arthritic disease would be to adopt an unduly restrictive construction inconsistent with both the terms of the claim and the beneficial character of the Act. Section 4(8) of the Act also supports this approach. As noted above, it provides that a reference in the Act to an injury is, unless the contrary intention appears, a reference to an injury in respect of which compensation is payable under the Act. Notwithstanding the phrase “in this Act”, and in light of the Act’s beneficial character, s 4(8) suggests that in respect of a claim for compensation under the Act a construction which brings an employee’s injury within the scope of the Act (if reasonably open on the terms of the claim) should generally be preferred to a construction which does not.
61.Finally, while it may be accepted that neither the notice of injury nor the actual claim contained an express reference to “micro-traumas” or the “aggravation” of an existing injury, this does not affect the conclusion I have reached in light of the other factors set out above.
62.The result is that each of the preconditions to the exercise of the Tribunal’s powers on review has been satisfied in relation to the claim as characterised by Mr Durham. The Tribunal therefore has jurisdiction pursuant to s 64 of the Act to hear and determine Mr Durham’s application on the basis that the relevant claim is for an injury comprising an aggravation of an existing knee condition.
63.One further matter should be noted. It relates to the operation of s 7(4)(a) of the Act, which (as set out above) operates so as to deem an injury (being a disease or an aggravation of a disease) to have occurred on the day the employee first sought medical treatment for the disease or aggravation. The operation of s 7(4)(a) was the subject of the “preliminary issue” on which the parties had made submissions prior to the identification of the jurisdictional issue. In the respondent’s submission, because Mr Durham’s claim was for an arthritic disease, s 7(4)(a) deemed his injury to have been sustained on 22 January 2007, when he first sought treatment from Dr Yap. As the respondent’s licence under Part VIII of the Act did not come into effect until 1 July 2008, and did not authorise the respondent to accept liability for injuries occurring prior to that date, the respondent’s position was that, even if Mr Durham had sustained an injury under s 5B of the Act, the respondent would not be liable to pay compensation in respect of it.
64.Having accepted Mr Durham’s characterisation of his claim, however, it can be seen that this issue falls away. In so saying, I note that Mr Durham’s submissions do not make it entirely clear whether his claim is for an injury constituting the aggravation of a disease (s 5B), or an aggravation of an injury other than a disease (s 5A), and in fact appear to make submissions in the alternative on this point. However, nothing in relation to either the jurisdictional question discussed above or the operation of s 7(4)(a) ultimately turns on this point. This is because, if Mr Durham’s claim is for an aggravation of a disease (the construction most consistent with the supporting medical evidence), s 7(4)(a) deems the injury to have occurred on the date Mr Durham first sought medical treatment for the aggravation. Given that the initial injury was the subject of Mr Durham’s consultations with Dr Yap and Dr Rowden in early 2007, the date medical treatment for the aggravation was first sought must be identified as sometime early in April 2010, when Mr Durham consulted Dr Rowden to arrange his knee surgery. There is no question that the respondent’s licence was in effect at this time. Alternatively, if Mr Durham’s claim is for an aggravation of an injury other than a disease, no deeming provision equivalent to s 7(4)(a) falls for consideration. The result is that, on either construction of Mr Durham’s claim, no issue as to the respondent’s authorisation to accept liability for any injury sustained by Mr Durham arises.
Conclusion
65.The Tribunal has jurisdiction to hear Mr Durham’s application for review pursuant to s 64 of the Act. The respondent is authorised under its licence to accept liability for any injury found to have been sustained by Mr Durham. Mr Durham’s application should proceed to hearing.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Justice J Jagot, Presidential Member of the Administrative Appeals Tribunal.
Signed: ..........................................................
AssociateDate/s of Hearing 21 October 2011
Date of Decision 15 November 2011
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Maurice Blackburn Lawyers
Counsel for the Respondent Ms R M Henderson
Solicitor for the Respondent Moray & Agnew Lawyers
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