Re Lewis and Comcare

[2000] AATA 158

DECISION AND REASONS FOR DECISION [2000] AATA 158

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No   N1999/773

GENERAL ADMINISTRATIVE DIVISION          )          

Re      JULIE  LEWIS       

Applicant

And    COMCARE  

Respondent

DECISION

Tribunal       Senior Member M D Allen 

Date3 March 2000

PlaceSydney

Decision      The application to dismiss the Application for Review lodged with the Tribunal on 26 May 1999 is refused.         

(Sgd)                  M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE  -  Application to dismiss proceedings on basis they involved relitigation of questions determined by a previous Tribunal.  Ability of worker to make more than one claim for compensation. 

Administrative Appeals Tribunal Act 1975 - s 33
Safety, Rehabilitation and Compensation Act 1988 - s 62

Re Quinn and Australian Postal Corporation 15 AAR 519
Midland Metals Overseas Limited v Comptroller-General of Customs 30 FCR 87
Power v Comcare 56 ALD 141
Morales v Minister for Immigration and Multicultural Affairs 82 FCR 374

REASONS FOR DECISION

3 March 2000          Senior Member M D Allen 

1. On 26 May 1999 the Applicant made an application to the Administrative Appeals Tribunal (AAT) seeking review of a "reviewable decision" made by the Respondent pursuant to subs 62(2) of the Safety, Rehabilitation and Compensation Act 1988 on the 30 March 1999.

2. The said reviewable decision affirmed a prior determination of 6 November 1998 which determination had rejected the Applicant's claim for compensation for the condition described by her as "central sensitisation of nociception sensitised nociception with allodynia".  In the statement of reasons for the decision supplied to the Applicant, the Review Officer stated inter alia (T188 p460):

   "The Administrative Appeals Tribunal in decision No: N95/1181 decided on 13 December 1996, that your client does not have a valid entitlement in respect of an earlier claim for incapacity, medical expenses and permanent impairment for the above mentioned injuries.
   In such circumstances as a Tribunal has adjudicated on the issues which Ms Lewis continually attempts to resurrect Comcare, having regard to the Tribunal's decision, considers Ms Lewis does not have a valid claim for compensation and in such circumstances advise the compensation claim is denied."

1. Upon the Applicant having applied to the AAT for review of the decision of 30 March 1999, the Respondent sought to persuade the Tribunal in interlocutory proceedings that, given the prior determination of the Tribunal of 13 December 1996, it ought not to entertain these proceedings.

2. In her application for compensation lodged with the Respondent, under cover of solicitor's letter dated 7 April 1998, the Applicant describes her injury as:

   "Constant pain in the thoracic spine, left side & chest. Intermittent pain & pins and needles of the left arm. Burning sensation". 

She alleges that the said injury was occasioned in 1998 whilst working for the Department of Defence at 2SD Regents Park.

1. After a hearing, over two days, in which the Applicant was represented by counsel, the Tribunal (Dr J D Campbell) affirmed the reviewable decision of the Respondent dated 6 July 1996.  That decision affirmed a prior determination of 31 May 1995 to cease the Applicant's compensation entitlements as and from that day.  Although not specified in the said decision, the entitlement to compensation arose out of a claim made by the Applicant on 6 July 1988 for "muscular strain".  A claim for permanent impairment was also before the Tribunal.

2. At the time it made the decision the Tribunal had before it reports of several medical practitioners including orthopaedic surgeons, specialists in occupational and rehabilitation medicine, a rheumatologist, neurologists and psychiatrists.

3. The Applicant gave evidence to the Tribunal as did Drs Evans (Physician), McGill (Rheumatologist), Dowda (Occupational Physician) and J R Champion (Psychiatrist).  At paragraph 35 of its reasons for decision the Tribunal summed up the reasons for its conclusions thus (T149 p366):

   "In summary, the Tribunal finds that there was a soft tissue injury in 1988 arising from particular activities in the workplace;  that this resolved;  that an underlying condition of personality disorder pre-existed the injury;  and that manifestations of this condition existed prior to the injury, during the injury period and subsequently and that no evidence has been led which would allow a finding of aggravation of this pre-existing condition to have occurred during the time of the injury or for such an aggravation to have caused incapacity of a continuing nature."

1. It would appear that the Applicant and her new legal advisers did not accept the decision of the Tribunal, although no appeal was lodged against that decision with the Federal Court. The documents prepared for the Tribunal in this matter pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Documents T1 to T205 in these proceedings) contain several reports from Dr G David Champion, Rheumatologist of St Vincent's Clinic, addressed to the Applicant's then solicitors, who were not the solicitors who acted for her in her first application to the AAT, nor were they the solicitors who lodged this Application for Review.

2. Document T155 is a report by Dr G D Champion to the Applicant's then solicitors dated 12 January 1998.  (Incidentally that report appears to be identical with a report which is Document T150 but which is incorrectly dated 12 January 1997.)  In that report, which is of nine pages, Dr G D Champion reviews the various medical reports brought into existence as a result of the Applicant's claim and also the Tribunal's reasons for decision (part of which he categorises as "gobble de gook").  He opined that the Applicant suffered a "sensitised nociception" as a result of mechanical strain suffered by the Applicant in 1988.

3. As stated above, under cover of letter dated 7 April 1998, the Applicant, by a third firm of solicitors (who are not her current solicitors), made a further claim for compensation alleging injury in 1988.  That claim picks up Dr G D Champion's diagnosis of "sensitised nociception".

4. Various decisions of both this Tribunal and of the Federal Court point out that issue estoppel has no application to matters before the AAT.  See Re Quinn and Australian Postal Corporation 15 AAR 519, Midland Metals Overseas Limited v Comptroller-General of Customs 30 FCR 87 at 96 et seq, Power v Comcare 56 ALD 141.

5. On the other hand, the Tribunal does have the power to control its own proceedings and to prevent relitigation of matters previously determined.  In Morales v Minister for Immigration and Multicultural Affairs 82 FCR 374 at 389, 390 the Full Court of the Federal Court said:

   "To enable the Tribunal to perform its functions, the Tribunal has a very wide discretion as to the procedure it should adopt and as to the manner in which it should inform itself about factual matters.  In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, O'Connor J, the President of the Tribunal, and Mr Barbour observed (at 526):

   's 33 of the Administrative Appeals Tribunal Act provides the Tribunal the flexibility needed to control its process. It is with regard to the dictates of fairness and expedition, after proper consideration of all the facts, that the Tribunal conducts itself.'

   The procedural flexibility that the AAT Act gives to the Tribunal has been seen as a source of power not to allow a matter finally determined before it to be relitigated (see Comcare Australia v Grimes at 67; 592 per Wilcox J and Re Quinn and Australian Postal Corporation at 525-526), and it has been suggested that s 33 provides a series of bases on which the Tribunal can decline to revisit previously determined matters or, as the situation demands, reconsider the totality of the matter or some aspect of it.  The point is made by McEvoy (at p 52) by reference to the decision of Senior Member Dwyer and Members McLean and Shanahan in Matusko and Australian Postal Corporation (1995) 21 AAR 9 esp at 20-21 where the Tribunal concluded that although it should not generally allow relitigation of issues already decided, it could use its flexible procedures to allow a second claim in respect of an injury that already had been the subject of a claim.
   In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time.  Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge."

1. Counsel for the Applicant did point out that there is nothing to prevent the Tribunal, as standing in the shoes of the decision-maker, from subsequently reversing its position in the light of new evidence and, in effect, setting aside a prior determination denying liability.  I agree with this submission subject to the comments in Morales supra quoted above.

2. The Applicant has presented numerous reports from Dr g d Champion which reports support her contention that the pain she is now experiencing is related to her employment with the Department of Defence.  I was also informed from the bar table that, if the matter proceeded, the Applicant would adduce psychiatric evidence to refute the opinions which found favour with the Tribunal in the previous proceedings.

3. This matter has been complicated as the Respondent, in its decisions rejecting the Applicant's 1998 claim, has not referred to Dr G D Champion's reports but has determined the matter as one of res judicata, rather than considering whether Dr G D Champion's reports went to the merits of the application.

4. I have perused the several reports prepared by Dr G D Champion which are in the s 37 documents. I am aware, from my own experience and from discussions with other members of this Tribunal, that Dr g d Champion's opinions as to the causes of alleged chronic muscular pain are not generally accepted, however, that is not to say that his opinions in this matter might not find acceptance with the Tribunal in the particular circumstances of the case. A problem with Dr G D Champion's opinions in this matter, as is common with many of Dr g d Champion's reports, is that he has allowed himself to become a protagonist for his own theories and hence the Applicant's case, and thus has not illustrated a proper scientific detachment to this Applicant consistent with the preferred role of an expert witness.

5. Counsel for the Applicant submitted that the Applicant did not seek to re-open the decision of 13 December 1996 but sought an entitlement for compensation as and from her application in 1998.  Given the reports of Dr G D Champion, it is inevitable that the prior decision is reviewed in that Dr G D Champion opines that her current condition is caused by the events which gave rise to her 1988 claim to compensation.  In addition, in his report of 12 January 1998 (T155) at p6, Dr G D Champion calls for investigations back to 1983. 

6. A further complicating factor is that the Applicant was involved in a motor vehicle accident on 25 March 1997 and notes by a Comcare Officer record the following (it is unclear whether the Applicant is referring to the same incident):

   "Got hit by a drunk driver.  The insurance company have accepted as it has aggravated my previous condition."  (PT203).

7. Subsection 62(1) of the Safety, Rehabilitation and Compensation Act 1988 makes provision for the Respondent to reconsider its prior decisions upon its own motion and no time limit is prescribed after which this reconsideration may not take place. This open ended view is consistent with other jurisdictions in the system of administrative review currently administered by the AAT. For example, in the Veterans' jurisdiction, it is quite common to resurrect prior rejected claims as medical knowledge as to the aetiology of diseases advances. Further, if it were the legislature's intention to prohibit compensation claims being re-opened upon fresh application by workers, then it could easily have said so.

8. On balance therefore, I believe that the better course is to decline the invitation to dismiss the Applicant's Application for Review.  Whereas I have strong doubts as to the Applicant's claim, it seems to me preferable that this decision as to merits should be made upon a full hearing of the matter rather than in interlocutory proceedings.

   I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of:

   Senior Member M D Allen

   Signed:        Ivanka Mamic           .....................................................................................
     Associate

   Date/s of Hearing  28 February 2000
   Date of Decision  3 March 2000
   Counsel for the Applicant        Mr L T Grey
   Solicitor for Applicant               Mr T Mannah, Carroll & O'Dea
   Solicitor for the Respondent    Ms L Rieper, Barker Gosling