[2013] AATA 695
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5468
Re
Dennis Griffiths
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 27 September 2013 Place Sydney The application for review of the decision made by Telstra Corporation Limited on 16 November 2012 will be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) unless by 1 November 2013 the Applicant has provided the Tribunal with a Medicare notice of charge or some other satisfactory evidence of medical treatment received on or before 21 September 2012, for which he has not received compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
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....................[SGD]...................................................
Senior Member A K Britton
CATCHWORDS
COMPENSATION—Workers’ Compensation—Entitlement to medical treatment and incapacity payments—Respondent made own motion decision that it was not presently liable to pay compensation for medical treatment or incapacity payments—This does not preclude the Applicant making future claims for medical treatment or incapacity payments
PRACTICE AND PROCEDURE—Frivolous or vexatious application—Whether the Tribunal can make a determination about medical expenses incurred after the original determination—Whether a decision by the Tribunal would be devoid of practical effect
LEGISLATION
Administrative Appeals Tribunal AAT Act 1975 (Cth) – ss 42B; 43(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 14; 16; 19; 24; 61; 62; 64;
CASES
Attorney-General v Wentworth (1988) 14 NSWLR 481
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Lees v Comcare (1999) 56 ALD 84
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Re Liu and Comcare [2004] AATA 617
Re Williams and Australian Electoral Commission and the Greens (1995) 38 ALD 366
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Senior Member A K Britton
27 September 2013
Former Telstra employee Dennis Griffiths injured his knees at work when a lift fell five floors and came to a sudden halt. In December 2011 he underwent surgery to repair meniscus tears in both knees. After initially refusing liability for Mr Griffiths’ injury, Telstra accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) and paid for surgery and associated costs.
In September 2012, on its own motion and in the absence of a claim for compensation made by Mr Griffiths, Telstra made a decision that “it is not presently liable to pay compensation for medical treatment or incapacity payments in respect of ‘bilateral medial meniscus tears’ sustained on 24 May 2007”. On reconsideration that decision was affirmed (the reviewable decision). Mr Griffiths challenges that decision and has applied to the Administrative Appeals Tribunal for review (the substantive application).
Telstra moves for the substantive application to be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the grounds that it is…
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- Case
- [2013] AATA 695
- Decision Date
CaseChat Overview and Summary
The legal issues at hand involved the extent to which the Tribunal could reassess Telstra's liability for medical expenses incurred after the date specified in the original decision. Mr Griffiths' counsel, Mr Leo Grey, argued that the Tribunal had the jurisdiction to review and potentially extend Telstra's liability for expenses that arose after the original decision. Conversely, Telstra contended that the Tribunal was limited to the scope of the original decision and could not extend its review to subsequent medical treatments. The Tribunal needed to determine whether it could consider claims for compensation that occurred outside the temporal scope of the original decision.
The Tribunal deliberated on the matter, taking into account the principles established in previous cases such as Lees v Comcare and Shi v Migration Agents Registration Authority. It was concluded that while the Tribunal has the flexibility to consider up-to-date material in its review, it was constrained to matters that fell within the temporal scope of the reconsideration decision. Given that both the original and reconsideration decisions were confined to Telstra's liability as of 21 September 2012, the Tribunal held that it could not entertain claims for compensation for treatments received beyond that date. Therefore, the Tribunal dismissed the application to extend Telstra's liability for medical expenses incurred after the original decision date.
The final orders of the Tribunal were that Mr Griffiths would be granted an additional 35 days to provide evidence of medical treatment received before 21 September 2012. The Tribunal upheld the original decision regarding Telstra's liability for compensation and dismissed Mr Griffiths' application for extending the scope of the compensation beyond the specified date.
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
Ratio Decidendi
Legal Principle Established
Mr Grey argues that the inference to be drawn from the reviewable decision was that Telstra was attempting to dissuade Mr Griffiths from making a future claim for compensation. He points out that the assurance given in these proceedings — that Mr Griffiths is not precluded from making a future claim for compensation — does not appear in either the original or reconsideration decision, and is inconsistent with the statement contained in each — the “compensable injury has resolved”. He argues that had Mr Griffiths not taken steps to challenge that decision, he risked being accused of “resting on his laurels” should he make a future claim for compensation. Mr Grey submits it is paradoxical that, having notified Mr Griffiths of his right to seek review by the Administrative Appeals Tribunal, Telstra now contends that his application for review is vexatious.Consideration In deciding whether the power to dismiss Mr Griffith’s application summarily under s 42B of the AAT Act should be exercised, I have taken the approach of accepting his “evidence” at its highest, and have assumed that he continues to suffer knee symptoms, which are the result of the compensable injury. In Re Liu and Comcare [2004] AATA 617 the Tribunal (Downes J (President), Deputy President Handley, Senior Member Allen) provided a useful explanation of the difference between s 14 of the SRC Act, and those provisions of that Act that address the categories and quantification of compensation. The latter include those that are the subject of the reviewable decision: s 16 (compensation for medical treatment) and s 19 (compensation for incapacity). The Tribunal explained (at [2]):A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been determined to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation. Such periods may be long. The compensable injury may never give rise to any future entitlement to compensation. But this can not be known or determined in advance. No determination, whether by consent of the parties or not, can preclude the making of a future application for compensation with respect to a compensable injury determined to exist under s 14. This was made clear in Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236 at 240. [emphasis added] Telstra’s original decision of 21 September 2012 stated:DecisionBased on the available evidence, I determine under sections 16 and 19 of the SRC Act that Telstra is not presently liable to pay compensation for medical expenses and incapacity payments in respect of ‘bilateral medial meniscal tears’ sustained 24 May 2007 [emphasis added].