Re Griffiths and Telstra Corporation Limited
[2013] AATA 695
[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 “frivolous or vexatious”. Telstra contends that there would be no practical benefit served by the Tribunal determining the substantive application because Mr Griffiths has no current entitlement to compensation for medical treatment or incapacity.
Mr Griffiths concedes that he has no current entitlement to compensation for incapacity (s 19 of the SRC Act). However he asserts that he has an entitlement to compensation for medical expenses (s 16 of the SRC Act), pointing to the cost of attending his GP and specialist, shortly after the reviewable decision was made and, possibly, some medical treatment incurred before the reviewable decision. Further he contends that even had he not incurred any loss or expenses that would give rise to an entitlement under ss 16 or 19 of the SRC Act, Telstra’s finding that he has fully recovered from the compensable injury is a justiciable issue and therefore the substantive application cannot be characterised as “vexatious”.
The primary question to be decided is whether the substantive application can be characterised as “frivolous or vexatious”. Before addressing that issue it is necessary to decide whether there are any outstanding medical expenses that fall within the scope of the reviewable decision.
Does Mr Griffiths have an entitlement to medical expenses for treatment incurred prior to the reviewable decision?
As properly conceded by Telstra, if prior to the reviewable decision Mr Griffiths received medical treatment in respect of the injury, for which he has not been compensated, it could not be said that the substantive application is vexatious.
Mr Griffiths says he is unable to confirm whether as at the date of the reviewable decision there were any outstanding medical expenses for which Telstra was liable because he is yet to receive a Medicare notice of charge (a statement issued by Medicare setting out the medical expenses for which Telstra is liable).
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.
In my opinion in these proceedings the Tribunal is without power to determine whether Telstra is liable for medical treatment received by Mr Griffiths after the date of the decision under review. This is not to say that Mr Griffiths does not have an entitlement to compensation for those expenses but rather that in these proceedings the Tribunal is without power to determine that issue. It is open to Mr Griffiths to make a claim for compensation for those expenses and, if unsuccessful, to seek review by the Administrative Appeals Tribunal.
Is the substantive application frivolous or vexatious?
For present purposes I will assume that Mr Griffiths will be unable to produce satisfactory evidence of any outstanding medical expenses incurred as at the date of the reviewable decision.
Section 42B of the AAT Act states:
Power of Tribunal where a proceeding is frivolous or vexatious
Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
dismiss the application; …
The power to dismiss an application under s 42B of the AAT Act must be exercised cautiously and sparingly: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ.
Central to the operation of s 42B are the words “frivolous or vexatious”. In Re Williams and Australian Electoral Commission and the Greens (1995) 38 ALD 366; (1995) 21 AAR 467 the decision under review was a decision to enter under the Commonwealth Electoral Act 1918 (Cth) the name of a person as the registered officer of a political party after that person had resigned from that position and the alleged vacancy had no influence on any matter. The Tribunal (Matthews J (President), Hill and Beaumont JJ) approved the test for determining whether proceedings are vexatious, set out by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491:
(1)Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
(2)They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
(3)They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
In dismissing the application the Tribunal in Williams noted that whatever the result on review it would be “devoid of any practical effect” (at [40]).
Williams was approved by the Full Court in Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3. Emmett J held at [97]:
Although … a proceeding might not be vexatious when instituted, it becomes vexatious when no legitimate purpose can be achieved by continuing with the proceeding.
Telstra contends that in circumstances where Mr Griffiths has no current entitlement to compensation under the SRC Act for incapacity or medical treatment, the proceedings would be futile. Telstra says that the reviewable decision did not seek to revoke liability for the compensable injury or prevent Mr Griffiths from making future claims for compensation, and that this is made abundantly clear by the extract from its written submissions set out below (Telstra’s submissions 18 July 2013 at [3.6]):
In accordance with the decision in Australian Postal Corporation v Oudyn [2003] FCA 318, liability for the injury under section 14 of the SRC Act cannot be considered again unless it is claimed the original decision accepting liability was made in error. Liability for the claimed injury has not been revoked by the Respondent under section 14 of the SRC Act. It remains, therefore, open to the Applicant to make claims for compensation under the SRC Act for periods that post-date 21 September 2012 and for such claims to be determined by the Respondent on their merits.
Mr Grey submits that in deciding whether the substantive application can be characterised as vexatious the Tribunal must have regard to the circumstances in which the reviewable decision arose. He points out that the decision was made after Mr Griffiths had been assessed by Dr Powell who in a report dated 30 August 2012 wrote that Mr Griffiths suffered on-going knee symptoms, which were likely to continue and possibly worsen and, in his opinion, were attributable to an “underlying disease process” not the compensable injury.
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:
Decision
Based 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].
On reconsideration on 16 November 2012 that decision was affirmed. The reconsideration decision noted that Mr Griffiths had “recovered well from the surgery performed in December 2011 and [has] recovered from the compensable injury”. It also recorded Dr Powell’s opinion that any further deterioration in Mr Griffiths’ knees is not due to the compensable injury but “[an] underlying disease process”.
It is these findings that Mr Griffiths seeks to challenge. He does not contend that as at 21 September 2012 he was entitled to compensation for incapacity or medical expenses (except the Medicare charges discussed above).
The class of decisions the Tribunal may review under the SRC Act are limited to “determinations” that have been reconsidered by the determining authority, in this case, Telstra under s 62 of the SRC Act. A determination is defined to include a determination, decision or requirement made under ss 16 and/or 19 of the SRC Act. The Tribunal can affirm, vary or set aside the decision under review and make a new decision in substitution or remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal (s 43(1) of the AAT Act).
The question of whether a worker suffers symptoms as a result of the compensable injury is often central to a determination made under ss 16 or 19 of the SRC Act. A finding about those issues however does not constitute a “determination” as to whether the determining authority, in this case Telstra, is liable to pay compensation under the Act.
When asked what form of order the Tribunal would be asked to make if the substantive application proceeded to review, it was suggested for Mr Griffiths that after determining the factual issue in dispute, namely whether he continues to suffer the effects of the compensable injury, the Tribunal could set aside the reviewable decision and remit the matter with a direction that Telstra reconsider the matter in accordance with that finding. Even if orders of that type were made, the decision on remittal by Telstra would be the same given — as Mr Griffiths concedes — as at 21 September 2012, the injury did not cause him to be incapacitated for employment or to need medical treatment (save for the medical expenses discussed above).
As I understand, the practical effect of a decision of the type Mr Griffiths urges the Tribunal to make would be to deter future Telstra decision-makers from simply adopting the findings that underpinned the reviewable decision and rejecting any future claim for compensation on that basis.
Any finding made by the Tribunal in this matter would only be relevant to Mr Griffiths’ incapacity for employment and need for medical treatment as at the date of the reviewable decision. Any finding made by the Tribunal about Mr Griffith’s capacity for employment or need for medical treatment after that date, or the likelihood of him becoming incapacitated for employment or needing medical treatment in the future, would not be binding on a future decision-maker. Given these circumstances I cannot agree with the proposition that review by the Tribunal may have some practical effect.
I accept that when Mr Griffiths applied for review he held the legitimate concern that the decision under review might affect his future entitlement to compensation. Understandably he was concerned that his compensable injury might deteriorate and in the future cause him to become unfit for work and/or require medical treatment. There is no suggestion that he instituted these proceedings to annoy or embarrass Telstra or for some other collateral purpose. However in circumstances where it has now been explained that the reviewable decision does not and cannot preclude him from making a future claim for compensation and where no legitimate purpose can be achieved by continuing with the proceedings, the application in my opinion has become vexatious. Subject to what is set out below I have decided that it is appropriate to exercise the power to dismiss the application under s 42B of the AAT Act.
Had Telstra’s decision-makers explained that the original or reconsidered did not prevent Mr Griffiths from making a future claim for compensation, the expense and inconvenience incurred by both parties as a result of Mr Griffiths’ application for review, might have been avoided. I recommend that Telstra incorporate in future decisions of the type the subject of these proceedings, an explanation along the lines of that given to Mr Griffiths set out in par [22] above. I also recommend that Telstra place a copy of its submissions of 18 July 2013 and these reasons for decision on any file kept relating to Mr Griffiths’ compensable injury.
Decision
I have decided to dismiss the application for review of the reviewable decision under s 42B of the AAT Act in the event Mr Griffiths is unable to provide satisfactory evidence of medical treatment received on or before 21 September 2012, for which he has not received compensation under s 16 of the SRC Act. I have allowed Mr Griffiths 35 days from the date of this decision to obtain this evidence. In the event that Mr Griffiths is able to produce such evidence in that time it will be necessary to determine whether the power conferred by s 42B of the AAT Act permits the Tribunal to dismiss part of an application for review, in this case the part of the decision dealing with Mr Griffith’s entitlement for compensation for incapacity under s 19 of the SRC Act.
I certify that the preceding 37 (thirty‑seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ........................[SGD]................................................
Associate
Dated 27 September 2013
Date(s) of hearing 22 August 2013 Counsel for the Applicant Leo Grey Solicitors for the Applicant Firths - The Compensation Lawyers Counsel for the Respondent Brendan Kelly Solicitors for the Respondent Sparke Helmore
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