Re Griffiths and Telstra Corporation Limited

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[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

  1. 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.

  2. 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).

  3. 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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Details
Case
[2013] AATA 695
Decision Date

CaseChat Overview and Summary

In the matter of Re Griffiths and Telstra Corporation Limited, the primary concern was the assessment of Mr Griffiths' eligibility for compensation concerning medical treatment received post-injury. The case was brought before the Administrative Appeals Tribunal (AAT) for review of a decision made by Telstra regarding Mr Griffiths' compensable injury and subsequent medical treatment. The crux of the dispute revolved around the interpretation of the Social Security (Retirement Compensation) Act (SRC Act) and the scope of the Tribunal's authority in reviewing Telstra's decision.

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

According to Mr Griffiths’ solicitors Medicare was requested to issue a notice of charge in May 2013. It is unclear why Medicare has taken over four months to issue a notice of charge. I have decided to allow Mr Griffiths a further 35 days to obtain a copy of the notice of charge or some other evidence of having received medical treatment on or before 21 September 2012 in relation to the compensable injury for which compensation has not been paid under s 16 of the SRC Act.Can the Tribunal determine the “claim” for medical treatment received after the reviewable decision? Counsel for Mr Griffiths, Mr Leo Grey, argues that in reviewing the reviewable decision the Tribunal can determine Telstra’s liability for medical expenses incurred in attending his GP and specialist, shortly after the reviewable decision was made. Telstra disagrees. Mr Grey asserts that in reviewing decisions under the SRC Act the Tribunal commonly determines a person’s entitlement to compensation in relation to loss or expenses incurred after the reviewable decision was made. As Mr Grey correctly points out in making the correct and preferable decision on review, the Tribunal is not confined to having regard to the material that was before the original decision-maker and may have regard to the most up-to-date material (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; 46 FLR 419 at 419; Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [35], [98])]. On review the Tribunal ‘stands in the shoes’ of the original decision-maker and its task is ‘to do over again’ what the original decision-maker did (Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 502 and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [100], [134]). In Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753 the Full Court of the Federal Court (Wilcox, Branson and Tamberlin JJ) observed that Pt VI of the SRC Act created a three-tiered decision-making process consisting of the original decision (s 61), a reconsidered decision (s 62) and a decision by the Tribunal reviewing the reconsidered decision (s 64). Their Honours explained that under s 43(1) of the AAT Act, the Tribunal exercised its powers for the purpose of reviewing the reconsideration decision made under s 62 of the SRC Act and therefore was authorised to exercise only those powers and discretions that would have been available to the reconsideration decision-maker (at [39]). Their Honours held that the Tribunal was without jurisdiction to entertain a further claim made by Ms Lees for permanent impairment under s 24 of the SRC Act in circumstances where that claim had not been the subject of the initiating claim for compensation, the initial determination or the reconsidered decision. In my opinion the principles enunciated in Lees apply equally to “claims” for compensation that fall outside the temporal scope of the decision under review. In reaching the correct and preferable decision the Tribunal is not confined to considering material that was before the primary or reconsideration decision-makers, but is confined to considering questions of liability that fall within the temporal scope of the reconsideration decision. In this matter both the original and reconsideration decision dealt only with Telstra’s liability for medical expenses and incapacity payments as at the date of the original decision, 21 September 2012. This is not a matter where there is some ambiguity surrounding the parameters of the decision under review but one which relates solely to an entitlement to compensation at a definite point in time, namely 21 September 2012.

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].