Steele and Comcare (Compensation) - [2019] AATA 181

Steele and Comcare (Compensation) [2019] AATA 181 (19 February 2019)
Division:GENERAL DIVISION
File Number: 2017/3286
Re:Scott Steele
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:19 February 2019
Place:Perth

The Tribunal has jurisdiction to review the decision of the Respondent dated
25 May 2017.
........[sgd]................................................................
Deputy President Boyle
CATCHWORDS
COMPENSATION – practice and procedure – jurisdiction – Safety, Rehabilitation and Compensation Act 1988 – s 64 – reviewable decision – Lock and Comcare – the Tribunal has jurisdiction
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 14, 16, 19, 62, 64
CASES
Lock and Comcare [2018] AATA 2386
Weston and Cleanaway Operations [2018] AATA 3740
REASONS FOR DECISION
Deputy President Boyle
19 February 2019
THE ISSUE

By application lodged in the Tribunal on 6 June 2017 the Applicant seeks the review of the decision of the Respondent dated 25 May 2017 (T185) (the decision) which affirmed a determination dated 3 April 2017 (T161) (the determination).
The determination found that the Respondent had no present liability to pay compensation to the Applicant for medical expenses and incapacity payments under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
A question has arisen as to whether the Tribunal has jurisdiction to consider the application following the Tribunal’s decision in Lock and Comcare [2018] AATA 2386 (Lock and Comcare).
At the direction of the Tribunal the parties have filed and served written submissions regarding the Tribunal’s jurisdiction to review the decision. The parties agreed that the determination of the Tribunal’s jurisdiction is to be made on the papers.
BACKGROUND
In January 2012 the Applicant lodged a claim for workers’ compensation for what was described as a “back injury” condition (T5 at 43).
In February 2012 the Respondent accepted liability under s 14 of the SRC Act for “lumbar sprain” (T6). The Applicant first sought medical treatment for the condition on
24 December 2011. That date has been accepted as the deemed date of injury (the Injury) (T6 at 62).
Following the decision to accept liability the Respondent, by various determinations, determined that the Applicant was entitled to compensation for incapacity under s 19 of the SRC Act in relation to the Injury. Relevantly, the Applicant was paid compensation for incapacity starting in January 2012 and up to April 2017. Further, in November 2018 the Respondent determined that the Applicant was entitled to further incapacity payments for periods up to April 2017.
Following the decision to accept liability the Respondent, by various determinations, determined that the Applicant was entitled to compensation for medical treatment under
s 16 of the SRC Act in relation to the Injury (T192).
On 24 November 2016 the Respondent wrote to the Applicant and advised him of their intention to determine that the Applicant had no present entitlement to compensation for medical treatment and incapacity payments under ss 16 and 19 of the SRC Act (T143).
On 21 March 2017 Dr Denz signed a progress certificate of capacity (T193 at 922 to 923) and noted the following:
(a)regarding treatment, Dr Denz reported that the Applicant still required: “medications”; “exercise program”; and “specialist review”; and
(b)regarding incapacity, Dr Denz reported that the Applicant had “some capacity for work from 21/03/2017 to 04/04/2017”.
By determination dated 3 April 2017 the Respondent determined that, as at 3 April 2017, the Applicant ceased to suffer the effects of the Injury (T161). Accordingly, it was determined that as at 3 April 2017 the Respondent had no present liability to pay compensation to the Applicant for medical expenses and incapacity payments under ss 16 and 19 of the SRC Act.
On 2 May 2017 the Applicant sought review of the determination dated 3 April 2017 (T179).
By the decision dated 25 May 2017 (T185) the determination dated 3 April 2017 was affirmed.
On 6 June 2017 the Applicant applied to the Tribunal for review of the decision (T2).
On 24 July 2018 the Tribunal handed down the decision in Lock and Comcare.
On 28 November 2018 the Tribunal directed that the parties file written submissions addressing the Tribunal’s jurisdiction to review the decision.
APPLICANT’S SUBMISSIONS
The relevant parts of the Applicant’s submissions dated 20 December 2018 are as follows:
1.... The facts in the determination in the Matter [Lock and Comcare] are for present purposes, indistinguishable to the determination in the present case.
…
3.Section 43 of the Administrative Appeals Act 1975 (‘AAT Act’) is not a source of jurisdiction and an application under ss.64(1)(a) of the Safety Rehabilitation and Compensation Act 1988 (‘the Act’) can only be made to the Administrative Appeal Tribunal (‘Tribunal’) if:
a.the decision itself was made under a section that can give rise to a s.60 `determination'; and
b.that decision has been reconsidered so as to constitute a s.62 `reviewable decision':
The Claim
4.On 19 January 2012, the Applicant submitted a claim for compensation under the Act (‘Claim’) (T-5, p40) to the Respondent.
5.On the Claim form (PT-5, p43), the diagnosis claimed is described as “Back injury” noting the most affected part of the body was the “lower back”.
Activity leading to the application to the Tribunal
6.On 6 February 2012, the Respondent issued a determination (‘Determination’) (T-6, p60) accepting the Applicant’s initial claim saying inter alia:
I have accepted your claim…under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
…
I have accepted medical treatment claims resulting from this injury up to and including 20 January 2012. I have also accepted time off work claims resulting from this injury up to and including 30 December 2011.
7.On 3 April 2017 (‘Determination Date’) the Respondent issued a determination of no present liability to the Applicant (‘Determination’) (T-161, p547), identifying on page 5 inter alia the Respondent determined that Comcare “has no present liability” for medical expenses under s.16 of the Act or incapacity payments under s.19 of the Act.
8.On 2 May 2017, the Applicant requested a reconsideration of the Determination under ss.62(2) of the Act. (T-179, p578).
9.On 25 May 2017, the Respondent issued a reviewable decision (‘Reviewable Decision’) (T-185, p588) to the Applicant wherein the Ms James says she agreed with and affirmed and arguably varied the Determination.
Involuntary redundancy
11.The Applicant was made involuntarily redundant (‘IVR’) (which he did not oppose) on 31 August 2016 whilst undertaking a graduated return to work program working 5 hours per day and 5 days per week in “suitable duties”.
Claims
12.From the date of the IVR to the Determination Date, the Applicant saw his Medical Practitioner regularly for review and made claims under s. 16 of the Act for various medical expenses which the Respondent paid from time to time.
13.As at the Determination Date, the Applicant had no claims pending with the Respondent or any other body for incapacity payments post the IVR (‘Incap Payments’) as he was not aware (despite making numerous enquiries with the Respondent) that he was entitled to receive the Incap Payments post the IVR.
It’s necessary to make an application and submit further forms for incapacity payments
14.In October 2018, despite the Respondent continually not replying to the Applicant’s numerous email inquiries about his potential eligibility for Incap Payments, the Applicant made an application for the Incap Payments using the Respondent’s on-line system. This started the process for the Incap Payments to be issued and was therefore a necessary step given all previous inquiries were not even granted with a response.
15.As part of that process on 17 October 2018, an officer of the Respondent Mr Tom Steed sent me an email identifying that I needed to send him some information including evidence of how much I had worked, authority regarding superannuation, TFN declaration and information on Centrelink payments together with a cessation form employment form the ATO [sic]. However, the latter came from the ATO. I attach a copy of Mr Steed’s email of 17 October 2018.
16.It was only after all of this information was obtained that on 7 November 2018, the Respondent made a determination finding the Applicant was entitled to payment of the Incap Payments.
17.However, the Respondent also made a Reconsideration on Own Motion dated 28 November 2018 (Reconsideration) stating that the Respondent was now relying on the Reviewable Decision to review the Incap Payments decision. Therefore the payments the subject of the Incap Payments determination dated 7 November 2018 were not paid.
…
19.In Weston, DP Boyle discussed from [78] whether a claim for incapacity payments had been made by the lodging of workers compensation certificates (‘WCC’s’) DP Boyle said from [83] (emphasis added):
…The standard practice, which appears to have been followed in this case, is that, once liability for payment of compensation under ss 16 and 19 of the SRC Act is accepted, as long as the Applicant provided the relevant medical certificates, he received the “makeup pay” under s 19 of the SRC Act.
20.The Applicant cannot speak to the differences in processes between the ATO, Cleanaway and the Respondent. However, despite the apparent simple process identified in Weston for having incapacity payments paid, as is identified above, this was not the method used by the Respondent after the IVR and extra steps were necessary.
21.Accordingly, the Applicant had no claims pending for medical expenses and/or incapacity payments on the Determination Date that the Determination could relate to. The Respondent had paid all compensation claims made by the Applicant up to that date.
22.The Applicant therefore considers the Applicant’s relevant facts cannot be distinguished from those in Lock.
(Original emphasis, footnotes omitted.)
The Respondent argues in their submissions dated 20 December 2018 that:
3.1In Lock and Comcare [2018] AATA 2386 (Lock), the Tribunal was not satisfied that it had the jurisdiction to review the decision which was the subject of the application on the basis that it was not satisfied that the reviewable decision before it was a decision made under section 62 of the SRC Act (at [79]). The Tribunal was not satisfied that there had been any relevant claims made under ss 16 or 19 of the SRC Act for payment of such entitlements (at [77]).
The above statement by the Respondent is a fair summary of the finding in Lock and Comcare. The reason that the Tribunal found that there was no jurisdiction in relation to one of the claims raised in that application was that no claim had ever been made in relation to that claimed injury. As is explained in Lock and Comcare, the Tribunal’s jurisdiction under s 64 of the SRC Act is limited to review of a decision made under

ss 38(4) and 62 of the SRC Act. Section 38(4) was not relevant in Lock and Comcare and is not relevant in this case. The determination that the Tribunal made in Lock and Comcare was explained in the subsequent decision in Weston and Cleanaway Operations [2018] AATA 3740 (Weston and Cleanaway Operations) as follows:
46.In the case of Lock and Comcare [2018] AATA 2386 (Lock and Comcare) the Tribunal held that, in respect of one of the applications, the Tribunal did not have jurisdiction. Under s 64 of the SRC Act, on the basis that the Tribunal’s jurisdiction is limited to reviewing “reviewable decisions” which

s 60 of the SRC Act, relevantly, defines as decisions under s 62 of the SRC Act. The Tribunal in Lock and Comcare held that there was no relevant decision under s 62 of the SRC Act because:
(a)no prior relevant determination of liability had been made by the respondent in relation to which the decision sought to be reviewed could be a reconsideration of a determination on its own motion by the respondent under s 62(1) of the SRC Act; and
(b)no relevant claim for compensation, in that case under ss 16 or 19 of the SRC Act, had been made by the applicant in relation to which the decision sought to be reviewed could be a decision under ss 62(2)-62(5) of the SRC Act.
(Original emphasis.)
As was the case in Weston and Cleanaway Operations, in the present case there was a claim made and a series of determinations or decisions accepting liability under ss 16 and 19 of the SRC Act in relation to that claim. The present case, like Weston and Cleanaway Operations, is fundamentally different to Lock and Comcare. In the present case, even on the Applicant’s chronology in his submissions set out above, there clearly was a claim for compensation (Applicant’s submission, para. 4), a determination by the Respondent (para. 6) and a reconsideration of the determination on own motion (para. 7), a request for a reconsideration of that determination (para. 8) and a decision on that request for reconsideration, which the Applicant himself describes as the “Reviewable Decision” (para. 9).
All of the elements necessary for a reviewable decision under s 64 of the SRC Act, identified as missing in one of the claims in Lock and Comcare, are present in this matter.
The Applicant makes reference in his submissions to being made involuntarily redundant and to discussions that he has apparently had with the Respondent in late 2018 about incapacity payments. I do not see that any of those matters is relevant to whether this Tribunal has jurisdiction to review the decision the subject of this application which is the Respondent’s decision of 25 May 2017.
I find that the Tribunal has jurisdiction to review the decision of the Respondent dated 25 May 2017.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[sgd].....................................................................
Associate
Dated: 19 February 2019

Date of hearing: On the papers