SEAMONS And AUSTRALIAN POSTAL COMMISSION

[2004] AATA 1382

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1382

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/506

Nº V2003/1199

GENERAL  ADMINISTRATIVE DIVISION

Re:         HIRAM SEAMONS

Applicant

And:       AUSTRALIAN POSTAL

COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:30 November 2004

Place:Melbourne

Decision:Application number V2003/506: The Tribunal has jurisdiction to determine the application lodged by the applicant.

Application number V2003/1199: The Tribunal has jurisdiction to determine the application lodged by the applicant.

(sgd) G.D. Friedman

Member

COMPENSATION - jurisdiction - orders made in respect of diagnosis of right groin strain - later diagnosis of right inguinal hernia - reconsideration on own motion - whether proceedings aborted

Safety, Rehabilitation and Compensation Act 1988 ss 8, 14, 16, 19, 60, 62(1), 67(2), 72

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

Lees v Comcare and Another (1999) 56 ALD 84

Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599

Re Coyne and Comcare (1995) 37 ALD 553

Re De Courcy Brown and Comcare (1997) 49 ALD 766

Re Moggach and Comcare Australia (AAT 10611, 19 December 1995)

Re Rebeiro and Comcare (1996) 44 ALD 632

Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396

REASONS FOR DECISION

30 November 2004  G.D. Friedman, Member

1.      This is an application by Hiram Seamons (the applicant) for review of two decisions of a delegate of the Australian Postal Commission (the respondent): the first dated 3 April 2003 (Application number V2003/506) denying liability to pay compensation for the applicant’s claimed condition of right inguinal hernia; and the second dated 14 October 2003 (Application number V2003/1199) to cease liability to pay compensation to the applicant for aggravation of underlying lumbar disc degenerative disease and right groin strain from 19 August 2003.  

2.      At the hearing on a question of jurisdiction on 22 October 2004, Mr M. Richards of counsel represented the applicant and Ms A. McMahon of counsel represented the respondent.

BACKGROUND

3.      The applicant was born on 19 January 1950 and at all relevant times was employed by the respondent as a postal delivery officer.

4.      The applicant lodged claims for compensation under the Safety, Compensation and Rehabilitation Act 1988 (the SRC Act) for lower back pain/strain in 1991 and 1995.  On 11 May 1995 liability was accepted for temporary episode of ligament strain - lower back.  On 23 November 1998 the applicant lodged a claim for compensation for lower back strain and on 29 January 1999 the respondent accepted liability for low back strain, which was later amended to temporary aggravation of underlying degeneration of the lumbar spine.

5.      Application number V2003/506: On 13 September 1999 the applicant lodged  a claim for compensation for right groin strain.  In August, November and December 1999 the applicant’s general practitioner was informed by Mr R. Ferguson, general surgeon, that the applicant was experiencing pain, swelling and thickening in the right groin area but that there was no clinical hernia, although this remained a possibility.

6.      On 27 October 2000 the respondent denied liability for right groin strain, and on 4 January 2001 the respondent affirmed the decision.  The applicant sought review of that decision by the Tribunal (Application number V2001/155).  On 6 June 2002 the Tribunal made orders by consent, by which the applicant was entitled to incapacity payments until the date of decision, and ongoing medical expenses for aggravation of underlying degenerative disc disease and right groin strain.

7.      On 18 October 2002 a right groin ultrasound showed a small, right, indirect inguinal hernia, which was confirmed on 28 November 2002 by Mr E. Torey, general surgeon.  On 18 December 2002 the applicant sought to amend the compensable injury from right groin strain to right inguinal hernia.  On 13 January 2003 the respondent determined that it was not liable to pay compensation for right inguinal hernia.  On 3 April 2003 the respondent affirmed the determination.  On 19 May 2003 the applicant lodged an application with the Tribunal for review of that decision.

8.      Application number V2003/1199: In a report dated 5 August 2003 Mr R. Pease, orthopaedic surgeon, diagnosed the applicant as suffering from degeneration of discs L4/5 and L5/S1 with some reduction of posterior muscle bulk, and found no evidence that the applicant continued to suffer from right groin strain.  He considered the applicant fit to undertake full-time work.

9.      On 19 August 2003 the respondent determined that it was no longer liable to pay compensation to the applicant for aggravation of underlying degenerative disc disease and right groin strain.  On 14 October 2003 the respondent affirmed the determination.  On 28 October 2003 the applicant lodged an application with the Tribunal for review of that decision.

10. On 13 August 2004 the respondent issued a reconsideration of own motion under s 62(1) of the SRC Act, revoking the reviewable decision dated 14 October 2003 and substituting a determination that as the applicant had been able to earn equal to or more than his earnings, for the purposes of s 8 and s 19 of the SRC Act; he had no entitlement to compensation for incapacity from 6 June 2002, under s 19 of the SRC Act; and that he has no entitlement to the cost of medical treatment from 16 August 2003 under s 16 of the SRC Act. On 21 October 2004 the respondent issued a reconsideration of own motion under s 62(1) of the SRC Act, revoking the determinations dated 19 August 2003 and 13 August 2004 and substituted a new determination in similar terms to the one above.

11.     The issues before the Tribunal are whether the Tribunal has jurisdiction to hear the applications.

CONSIDERATION OF THE ISSUES

12.     Application number V2003/506: Mr Richards submitted that on all the material before the Tribunal the applicant is entitled to compensation with regard to right inguinal hernia.  He said that on 13 September 1999 the applicant claimed for compensation for right groin strain, and on 7 October 1999 (T10) the Claims Manager of the respondent wrote to the applicant’s treating doctor and noted that the applicant was diagnosed as suffering from (R) groin strain? Hernia?  Mr Richards said that the applicant was not a qualified medical practitioner, and the claimed injury could have been any of a number of conditions, including inguinal hernia.  He referred the Tribunal to Lees v Comcare and Another (1999) 56 ALD 84. He stated that in 1999 the diagnosis of the applicant’s condition was not definite, and in reaching agreement that led to the consent orders, made by the Tribunal on 6 June 2002, the parties recognised that the symptoms of groin strain and hernia were similar.

13.     Mr Richards pointed out that on 4 November 2002 the applicant underwent surgery for the hernia, which was diagnosed after considerable testing.

14.     Application number V2003/1199: Mr Richards submitted that the proceedings were aborted because the reconsideration of own motion dated 13 August 2004 revoked the reviewable decision dated 14 October 2003, and without the reviewable decision the matter cannot proceed.  He said further that the issues the subject of the reviewable decision dated 14 October 2003 are no longer before the Tribunal, and there is nothing to review.

15. Mr Richards referred to s 62(1) of the SRC Act:

(1)       A determining authority may, on its own motion:

(a)reconsider a determination made by it; or

(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

He noted that s 60 of the SRC Act defines determination as a determination, decision or requirement made under particular sections of the SRC Act, and submitted that reconsideration may be made of a determination and not a reviewable decision (Re Coyne and Comcare (1995) 37 ALD 553).

16.     Mr Richards said that the reconsideration of own motion is not before the Tribunal and that it cannot replace the determination, emphasising that it would be unfair if the respondent could change the determination.  He said that the respondent had conceded, in the reconsideration of own motion dated 13 August 2004, that  Australian Postal Corporation v Oudyn (2003) 73 ALD 659 and Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396 demonstrate that it is not appropriate to cease liability under s 14 of the SRC Act. Instead liability was ceased under s 16 and s 19 of the SRC Act.

17.     Application number V2003/506: Ms McMahon submitted that the Tribunal has no jurisdiction to review a finding of fact made by the Tribunal regarding the applicant’s hernia condition.  She said that on 6 June 2002 the respondent accepted liability for right groin strain on the basis of medical evidence at the time, which excluded a diagnosis of hernia.  She noted that the applicant had not made a claim for right inguinal hernia, nor had he mentioned this condition, and the determination and reviewable decision had been properly based on the claim.  Ms McMahon stated that a hernia is a new and different injury arising from new circumstances.  She noted that the applicant had not sought review of the decision of 6 June 2002, and said that the applicant could remedy the situation by lodging a new claim for compensation for right inguinal hernia.    

18.     Application number V2003/1199: Ms McMahon submitted that the proceedings were not rendered abortive by the reconsideration of own motion dated 13 August 2004, because the reconsideration only altered the wording of the decision dated 14 October 2003 which is the subject of the proceedings.  She said that the reconsideration did not alter the outcome of the reviewable decision, which dealt primarily with liability to pay ongoing compensation to the applicant.  Ms McMahon acknowledged that the decision of 14 October 2003 ceased to have any effect, but maintained that the proceedings should continue with the wording as specified in the reconsideration, as there has been no change in the substantive component of the proceedings.

19.     Ms McMahon submitted that Re Coyne has not been followed in other relevant decisions.  She referred the Tribunal to Re Moggach and Comcare Australia (AAT 10611, 19 December 1995) and to Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599. She also cited Re De Courcy Brown and Comcare (1997) 49 ALD 766, in which the Tribunal disagreed with the findings in Re Coyne. Ms McMahon stated that following the reconsiderations of own motion, the Tribunal is able to make findings under s 16 and s 19 of the SRC Act, so the Tribunal has jurisdiction to consider the reviewable decision.

20. In considering the submissions, the Tribunal notes that s 72 of the SRC Act provides that:

In performing the function referred to in paragraph 69(a), Comcare:

(a)shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;

(b)is not required to conduct a hearing; and

(c)is not bound by the rules of evidence.

21.     Application number V2003/506: The medical evidence at the time the matter was decided by the Tribunal in June 2002 seemed to favour right groin strain rather than right inguinal hernia, although the diagnosis appears not to have been definite.  The Tribunal notes that in a medical report dated 11 February 2004 Mr M. Brygel, consultant specialist from the Melbourne Hernia Clinic, stated:

…

There certainly was a time span between the onset of his symptoms in the right groin and the definite diagnosis of a hernia.  However, a hernia can be difficult to diagnose clinically and radiologically.  A hernia may often start as a small tear rather than just an immediate obvious swelling.  There may be some groin pain or symptoms prior to the obvious clinical detection.

22.     The Tribunal takes into account that the applicant’s treating doctor raised the possibility of the presence of a hernia at the time of the claim, and that in his claim the applicant, who was not a medical practitioner, referred to right groin strain.  The Tribunal agrees with Mr Richards that in reaching the agreement that led to consent orders by the Tribunal on 6 June 2002 the parties recognised the similarities in the symptoms of the two conditions.

23.     Without hearing all the relevant medical evidence the Tribunal is not in position to determine whether right inguinal hernia is a new and different injury from right groin strain, as submitted by Ms McMahon.  On balance, therefore, the Tribunal rejects the submission from Ms Mahon that the Tribunal does not have jurisdiction to deal with the hernia condition.

24.     Application number V2003/1199: The Tribunal agrees with Ms McMahon that the weight of authority does not follow Re Coyne.  In Re De Courcy Brown the Tribunal held (at para 27):

Regretfully, I find myself unable to agree with the approach adopted in Coyne. It seems to me that the power is given to review a determination but not a reviewable decision. That is clear from the careful choice of the word ”determination” in paras (a) and (b) of s 62(1) and its use in contradistinction to the expression “reviewable decision” used in the remainder of the subsection.

In Re Rebeiro and Comcare (1996) 44 ALD 632 the Tribunal reached the same conclusion as in Re Moggach and held that Comcare may review the determination but not the reviewable decision.

25. The Tribunal agrees with Ms McMahon that the reconsiderations of own motion merely altered the wording of the substantive issues and not the outcome of the reviewable decisions and that the Tribunal is able to make findings under s 16 and s 19 of the SRC Act. On balance, and taking into account the decisions cited by the parties, the Tribunal finds that the proceedings have not been rendered abortive by the reconsiderations of own motions, and therefore the Tribunal has jurisdiction to consider the proceedings.

DECISION

26.     Application number V2003/506: The Tribunal has jurisdiction to determine the application lodged by the applicant.

Application number V2003/1199: The Tribunal has jurisdiction to determine the application lodged by the applicant.

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  22 October 2004

Date of decision:  30 November 2004
Counsel for applicant:                  Mr M. Richards
Solicitor for applicant:                 Slater & Gordon
Counsel for respondent:              Ms A. McMahon
Solicitor for respondent:              Australian Government Solicitor