Streatfield and Comcare

[2007] AATA 72

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 72

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2005/332

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN STREATFIELD

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr M. Miller, Member

Date of Decision                22 February 2007

Date of Written Reasons 27 February 2007

PlaceCanberra

Decision

The Tribunal decides that it has jurisdiction to consider, for the purposes of review, alleged injuries that were notified and subject of claim on 17 June 2005. The procedure to be followed in these proceedings is as follows:

(a)       the listed hearing is to be vacated; and

(b)       a telephone directions hearing is to be listed four weeks from today at which a timetable will be set for hearing the matter as soon as possible thereafter.

........(Signed).............

Mr S.Webb, Presiding Member

CATCHWORDS

COMPENSATION - jurisdiction - liability accepted for injury - claim for medical treatment expenses - intervening events and symptoms - aggravation injuries asserted - scope of notice of injury - claim - powers of Tribunal on review - jurisdiction to consider fresh injury claim

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 53, 54, 60, 62, 64

Administrative Appeals Tribunal Act 1975 s.43

Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186

Lees v Comcare (1999) 29 AAR 350

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Ward v Military Rehabilitation and Compensation Commission [2007] FCA 7

Frosch v Comcare [2004] FCA 1642

Lang v Comcare [2007] FCA 47

Telstra Corporation Limited v Barrow (1994) 35 ALD 461

Abrahams v Comcare [2006] FCA 1829

Hospital Benefit Fund of Western Australia v Minister for Health Housing and Community Services (1992) 111 ALR 1

Canute v Comcare (2006) 229 ALR 445

Plumb v Comcare (1992) 39 FCR 236

Re Liu and Comcare (2004) 79 ALD 119

REASONS FOR DECISION

27 February 2007 Mr S. Webb, Member
Dr M. Miller, Member          

1.        John Streatfield injured his lower back in compensable circumstances in 1993[1].  He claimed[2] and was granted compensation[3], including compensation for medical treatment in the form of physiotherapy treatment.  On 17 June 2005 Mr Streatfield send an email communication to Gaye Worthy, of his employer, stating[4]:

“In response to our meeting on 17/6/05 I am outlining my back injury history as requested.  During my recruit training in 1986 I injured my back during training and reported same, at the time I required no time off work.  On 27/5/93 I re-injured my back at work and required 2-3 weeks off work on workers compensation (Claim No. 140907/01) accepted for lumbar muscles.  Since 1993 I have experienced several periods of back pain which did not require time off work, these periods of pain usually followed shifts involving busy workloads.  On 3^rd and 4^th May 2005 I was on sick leave with certificate due to back pain.  Since 4/6/05 I have been on sick leave due to back pain.”

[1] T4

[2] T6

[3] T7

[4] T13

On the same day Ms Worthy forwarded the email under a covering letter to Comcare, in which she interpreted the email to mean that “[Mr Streafield’s] current symptoms are not related to a new incident but have been of an ongoing nature”[5].  She asked Comcare to assess Mr Streatfield’s entitlement to compensation for medical treatment expenses, principally relating to a surgical procedure then scheduled to occur on 20 June 2005. 

[5] T14

2.      Mr Streatfield’s claim was rejected by the primary decision maker[6] and that decision was subsequently affirmed on reconsideration[7].  The primary decision maker rejected Mr Streatfield’s claim because she could not relate his (then) current condition (and one could presume the claimed medical treatment) to the 1993 injury for which liability had been accepted.  The reconsideration decision maker proceeded on the same basis and arrived at a similar conclusion.  There is no evidence that either decision maker considered whether the events and symptoms to which Mr Streatfield alluded in his email constituted fresh injuries, or aggravations of his previous injury, in relation to which liability may exist against Comcare to pay compensation (for medical treatment expenses, for example).

[6] T15

[7] T21

3.      On 25 October 2005 Mr Streatfield applied to the Tribunal for review of this decision[8].   His representatives filed a statement of issues on 13 December 2005 and a statement of facts and contentions on 26 April 2006.  The parties attended conferences set down by the Tribunal on 15 December 2005, 2 May 2006 and 27 June 2006.  The case being prosecuted by Mr Streatfield appears to be on the basis that his lower back injury continued episodically over many years until something occurred in his lumbar spine in 2005 that necessitated microdiscectomy surgery.

[8] T1

4.      The issue presently before the Tribunal for determination is one of jurisdiction.  Ms Walker for Comcare submitted that the Tribunal has no jurisdiction to consider any new injuries to Mr Streatfield’s back.  In her submission, Mr Streatfield has only recently lodged claims for fresh injuries with Comcare and those claims have not yet been determined.  She says that the only matters properly before the Tribunal are the matters considered at first instance by the primary decision maker and subsequently by the reconsideration decision maker.  She accepted that those matters include any subsequent manifestations of the injury for which liability was accepted in 1993 but to the exclusion of fresh or aggravation injuries that would require a fresh determination of liability.

5.      As will appear, we do not agree.

6.      The Tribunal does not exercise general powers of review.  The review power is conferred and preconditioned by statute, in this case the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). For jurisdiction to exist the Tribunal must be satisfied that the relevant statutory preconditions exist[9]. The statutory preconditions to found jurisdiction in this matter are pursuant to s.64 of the SRC Act, that is, the Tribunal is only authorised to review ‘reviewable decisions’. A ‘reviewable decision’ is a decision made pursuant to s.62 in respect of a ‘determination’. Both terms are defined at s.60 of the SRC Act.

[9] Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 195

7. The Tribunal’s powers of review are set out at s.43 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). These powers were discussed in the context of the SRC Act by Wilcox, Branson and Tamberlin JJ in the oft sited case of Lees v Comcare (1999) 29 AAR 350 in which the Court said at 360:

“The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second-tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first-tier decision-making stage.”

Furthermore, as the Tribunal is not a primary administrator, it does not have power to consider any matter that was not properly before the original decision maker whose decision is being reviewed[10].

[10] Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 402

8. As can be seen the Tribunal’s jurisdiction and powers are limited by statutory precondition. Nevertheless, simply put, under the SRC Act the Tribunal has jurisdiction to review a reviewable decision and, for the purpose of review, exercises the powers of the person who made the decision. The powers of the person who made the reconsideration decision pursuant to s.62 of the SRC Act are the same as those of the person who made the primary determination in issue. Thus if a claim for compensation is properly before an original decision maker for determination, that same matter would be before a second tier decision maker on reconsideration and would be before the Tribunal on review.

9.      Thus there are two issues that must be decided in this case:

(a)was a claim for fresh injury or an aggravation injury to Mr Streatfield’s lower back properly before the original decision maker?  And if so

(b)if the original decision maker did not determine that claim, and did not even consider it, and the reconsideration decision maker adopted the same approach, is that claim properly before the Tribunal for determination?

10. A claim will properly rise for determination by an original decision maker if notice of injury has been given pursuant to s.53 of the SRC Act and a substantially compliant claim for compensation has been made by or on the half of the injured person pursuant to s.54 of the SRC Act[11].

[11] Ward v Military Rehabilitation and Compensation Commission [2007] FCA 7 at paragraph 25

11. We are satisfied that the e-mail Mr Streatfield sent to his employer as a result of his meeting on 17 June 2005 with Ms Worthy is sufficient notice of the injuries described therein. It contains the essential information to be imparted for the purpose of satisfying the requirements of the section 53 notice, that is, the nature of the injury or ailment and its connection with the employment[12].  The brevity of the e-mail and the lack of specific detail imparted thereby does not render it impotent as formal notice.

[12] Frosch v Comcare [2004] FCA 1642 at paragraph 8; Lang v Comcare [2007] FCA 47 at paragraphs 46 and 47

12. Mr Streatfield did not complete a claim form when making his claim. In fact it appears that Ms Worthy made the claim on his behalf in the document at T14. We are satisfied that Ms Worthy’s document contains sufficient information (including medical certificates, medical reports and Mr Streatfield’s e-mail) to be substantially compliant with the requirements of claim set out at s.54 of the SRC Act. It appears that the original decision maker proceeded on that basis.

13.     It follows that the injuries Mr Streatfield described in his e-mail, which formed part of Ms Worthy’s claim on his behalf, were properly before the original decision maker for determination.  It is perhaps not surprising that the original decision maker proceeded in the way she did as it is quite plain that Ms Worthy was proceeding on the basis of that the claim would be assessed under Mr Streatfield’s previously accepted claim and the symptoms described therein were manifestations of his previously accepted injury.  However, the original decision maker was not so bound[13].  The symptoms Mr Streatfield described, and Ms Worthy claimed on his behalf, were asserted to be causally related to his employment.  Whether the claimed injuries were manifestations of Mr Streatfield’s prior injury or whether they were the direct result of employment activities is a matter to be determined on examination and assessment of the claim.  A claim should be beneficially, broadly and practically interpreted[14].

[13] Telstra Corporation Limited v Barrow (1994) 35 ALD 461 at 466

[14] Abrahams v Comcare [2006] FCA 1829 at paragraphs 20-26

14. Turning to the second issue, we are satisfied that the failure of the original decision maker to determine Mr Streatfield’s claim on the basis of fresh injury does not end the matter. The essential point is that the decision maker had the power to determine the claim in those terms. That she did not meant that the claim and Comcare’s liabilities pursuant to s.16 of the SRC Act were not fully addressed at the primary determination level. It was open to the second tier decision maker to exercise the powers of the original decision maker to remedy that deficiency. To do so would have been within the power conferred by s.62 of the SRC Act. Failing to exercise the power and determine the claim in those terms does not constrain the Tribunal’s jurisdiction to review the decision in those terms. Simply put, the question Mr Streatfield placed before the original decision maker concerning the injuries notified had two parts: the first was whether the medical treatment was reasonable treatment for him to obtain (and for which Comcare would be liable) in relation to his previously accepted injury; the second was whether the medical treatment was reasonable for him to obtain in relation to fresh injuries that he notified were work related, which, if established would result in liability in Comcare to pay him compensation pursuant to s.16 of the SRC Act in relation to those injuries. Those were the questions before the original and reconsideration decision makers. They are the questions that are before the Tribunal on review[15].

[15] Hospital Benefit Fund of Western Australia v Minister for Health Housing and Community Services (1992) 111 ALR 1 at 11

15. We note that liability to pay compensation pursuant to s.16 is not contingent upon any incapacity or impairment (or death) as a result of the particular injury that otherwise would be required to found liability pursuant to s.14 of the SRC Act. As this claim is squarely a claim for compensation pursuant to s.16 of the SRC Act in relation to medical treatment it is not necessary to establish any incapacity or impairment to found liability. What is required is ‘an injury’ as defined at s.4 and consistent with the interpretation of ‘injury’ expressed by the High Court in Canute v Comcare (2006) 229 ALR 445 at paragraph 10, that is, ‘the resultant effect of an incident or ailment upon the employee’s body’ in the context of employment.

16.     In all of the circumstances we are satisfied that it would not be in accordance with the statutory provisions to which we have referred to refuse to consider the second aspect of Mr Streatfield’s claim and, instead, to require him to lodge a new claim with Comcare (which were understand he has done, in any event)[16]. 

[16] Telstra Corp. Ltd v Barrow (supra) at 466-467

17.     For completeness we note that Comcare’s liability to pay Mr Streatfield compensation in relation to his 1993 injury has not come to an end.  Even though Mr Streatfield made no claim against that liability for many years, it remains open for him to do so[17] and if it can be shown that the medical treatment he obtained was reasonable medical treatment for his 1993 injury, Comcare’s previously accepted liability will be exercised again[18].

[17] Plumb v Comcare (1992) 39 FCR 236 at 240

[18] Re Liu and Comcare (2004) 79 ALD 119 at paragraph 2

18.     Finally, we note that there is only scant evidence before us concerning the alleged injuries Mr Streatfield notified and claimed in June 2005.  Having heard the parties, we accept that it will be necessary to vacate the listed hearing in order to permit additional evidence to be obtained, filed and served.  This is unfortunate.  However to do otherwise in the circumstances would be contrary to the rules of procedural fairness.

19.     There will be no orders in relation to costs relating to this decision.  The matter of costs will be reserved to the hearing of the substantive matter.

decision and orders

20.     The Tribunal decides that it has jurisdiction to consider, for the purposes of review, alleged injuries that were notified and subject of claim on 17 June 2005.

21.     The procedure to be followed in these proceedings is as follows:

(a)the listed hearing is to be vacated; and

(b)a telephone directions hearing is to be listed four weeks from today at which a timetable will be set for hearing the matter as soon as possible thereafter.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ..(Peter Strauch)..................................................
  Associate

Date of Hearing  22 February 2007
Date of Decision  27 February 2007
Counsel for the Applicant             Alan Anforth
Solicitor for the Applicant             Paul Crabb
  Capital Lawyers
Counsel for the Respondent        Lorraine Walker
Solicitor for the Respondent        Stuart Marris
  Sparke Helmore