Webeck and Comcare (Compensation)

Webeck and Comcare (Compensation) [2023] AATA 2996 (19 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0375
Re:Kenneth Webeck
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:19 September 2023
Place:Canberra

Application refused.
………………[sgd]………………….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – review of reconsideration decision – terms of reconsideration decision set out in writing – request for statement of reasons – entitlement to statement subject to entitlement to make request – reconsideration decision sets out factual findings, materials and reasons – dispute about findings made and terminology used – no entitlement to make request – request not made within 28 days or within a reasonable time – application refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 28
Safety, Rehabilitation and Compensation Act 1988 ss 39
REASONS FOR DECISION
Mr S. Webb, Member
19 September 2023

Kenneth Webeck was injured in employment. He claimed compensation for a pair of lace-less shoes. Comcare refused his claims by primary determination and on reconsideration. Mr Webeck applied to the Tribunal for review of this decision.
In the course of the Tribunal proceedings, Mr Webeck requested a statement of reasons from Comcare under s 28(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act). Comcare refused this request. Mr Webeck applied to the Tribunal for a decision in respect of his entitlement to a statement of reasons.
It is this issue, alone, that is the subject of this interlocutory decision.
Section 28 of the AAT Act is in the following relevant terms:
Request for statement of reasons
(1) Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.
Exceptions
(1AAA) …
What happens if decision‑maker contests applicant’s entitlement to statement of reasons
(1AA) Where a person to whom a request for a statement in relation to a decision is made by an applicant under subsection (1) is of the opinion that the applicant is not entitled to be given the statement, that person shall, as soon as practicable but in any case within 28 days after receiving the request, give to the applicant notice in writing of his or her opinion.
(1AB) A person who gives a notice under subsection (1AA) with respect to a request for a statement in relation to a decision is not required to comply with the request unless the Tribunal, on application under subsection (1AC), decides that the applicant was entitled to be given the statement, and, if the Tribunal so decides, the first‑mentioned person shall prepare the statement and give it to the applicant within 28 days after the decision of the Tribunal is given.
(1AC) On application by an applicant who has received a notice under subsection (1AA), the Tribunal must decide whether the applicant was or was not entitled to be given the statement concerned.
When decision‑maker may refuse to give statement of reasons
(1A) A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and give the statement if:
(a) in the case of a decision the terms of which were recorded in writing and set out in a document that was given to the applicant—the request was not made on or before the twenty‑eighth day after the day on which that document was given to the applicant; or
(b) in any other case—the request was not made within a reasonable time after the decision was made;
and in any such case the person to whom the request was made shall give to the applicant, as soon as practicable but in any case within 28 days after receiving the request, notice in writing stating that the statement will not be given to him or her and giving the reason why the statement will not be so given.
(1B) For the purposes of paragraph (1A)(b), a request for a statement in relation to a decision shall be deemed to have been made within a reasonable time after the decision was made if the Tribunal, on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made.
Public interest certificate
(2) …
(3) …
(3A) …
When applicant not entitled to request statement of reasons
(4) The applicant is not entitled to make a request under subsection (1) if:
(a) the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision, and a document setting out the terms of the decision has been given to him or her; or
(b) a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision has already been given to him or her.
Inadequate statement of reasons
(5) …
(6) …
Short facts
On 31 October 2022, Mr Webeck lodged a claim for compensation in respect of lace-less shoes.[1]
[1] T22.
On 19 December 2022, Comcare issued a written determination refusing Mr Webeck’s claim in respect of lace-less shoes.[2]
[2] T24. Mr Webeck’s claim in respect of a lift chair was accepted in a separate determination.
On 19 January 2023, the determination was affirmed on reconsideration and a written decision was issued to Mr Webeck.[3]
[3] T26.
On 19 January 2023, Mr Webeck lodged an application for review of this decision by the Tribunal.[4]
[4] T1.
On 16 August 2023, Mr Webeck wrote to Comcare and requested a statement of reasons:
As you have confirmed the term ‘rehabilitation aid’ is not defined in the SRC Act, in accordance with the AAT Act 1975 s28 (1), please accept this email as a notice in writing to the Respondent, requesting a statement in writing setting out the findings on material questions of fact, with respect of the claimed shoes being an ‘aid’, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
On 6 September 2023, Comcare provided the following response to Mr Webeck’s request:
In accordance with section 28(1AA) of the AAT Act, we are instructed to respond to your letter notifying you that Comcare does not consider you are entitled to be given an additional statement of reasons.
On 7 September 2023, Mr Webeck wrote to Comcare in the following terms:
Please confirm by close of business Friday 9 September 2023 if the Respondent maintains its current position in accordance with the AAT Act 1975 s28.
No reply by Comcare has been given to the Tribunal.
On 13 September 2023, Mr Webeck lodged the following application to the Tribunal:
I disagree with the Respondent and accordingly, in accordance with s28 (1AC), I make application to the Tribunal for a ruling/decision as to whether I was or was not entitled to be given the statement concerned.
Consideration
Mr Webeck’s entitlement to a statement of reasons under s 28(1) turns on two considerations. Firstly, whether Mr Webeck is entitled to request a statement of reasons and, if so, secondly, whether his request was made within 28 days or within a reasonable time.
Where the terms of either s 28(4)(a) or (b) are met, an applicant is not entitled to request a statement of reasons under s 28(1). It is s 28(4)(a) which is presently relevant. This turns on the contents of and the reasons for the reconsideration decision Mr Webeck was given by Comcare on 19 January 2023, including whether the decision sets out findings on material questions of fact and it refers to the material on which those findings were based.
The reconsideration decision sets out 2 issues the decision-maker considered relevant when reconsidering the determination to refuse Mr Webeck’s compensation claim in respect of lace-less shoes, namely:
a) Whether the claimed shoes are a medical aid or a rehabilitation aid and if so, which one [and]
b) Whether the claimed shoes are reasonably required having regard to the nature of your impairment (if a rehabilitation aid) or whether they are reasonably required for your compensable condition (if a medical aid)
Addressing the first issue, the decision sets out a brief discussion of the decision-maker’s understanding of ‘medical aid’ and ‘rehabilitation aid’ and related findings in Mr Webeck’s case:
Medical aids are medical or surgical supply, a curative apparatus or an artificial limb or other similar aid or appliance that directly assists you with your physical or bodily functioning. A curative apparatus is for a device used to cure, slow down or prevent the deterioration of your compensable condition.
Rehabilitation aids are items which assist you to perform basic home or work functions associated with your activities of daily living.
While shoes may can be considered as a medical aid or treatment, when custom made for the person or paired specifically with custom orthotics to improve their efficacy, I find this is not the case for you. You have purchased the shoes specifically to assist you with the difficulty you have in doing up shoelaces.
While dressing is a basic activity of daily, I find that the claimed shoes are also not a rehabilitation aid.
The decision-maker proceeds to set out the basis on which the findings were made:
• You purchased the Drew Mansfield shoes on 20 October 2022. These shoes were purchased off the shelf without any specific recommendation from a legally qualified medical practitioner or suitable medical provider.
• With your email of 20 October 2022, you provide a highlighted report from Dr Kaleesh Seevnarain (consultant occupational physician), noting the difficulties you have with doing up shoelaces. While noting these difficulties, Dr Seevnarain did not recommend you purchase lace-less shoes.
• On 31 October 2022, you completed a claim for aids and appliances in relation to the claimed shoes. On 7 November 2022, Dr Geoffrey Speldewinde (pain medicine physician) also completed this form, stating that you require a lift chair and lace-less shoes. His reasons for the recommendation focus on the lift chair.
While I note the difficulties detailed by Dr Seevnarain, there is no medical recommendation for the specific shoes you have purchased.
With regard to the second issue, having found the shoes claimed by Mr Webeck were not a medical aid or a rehabilitation aid, the decision-maker stated it was not necessary to address “the reasonableness of them”. This notwithstanding, the decision-maker noted related factual matters:
• You have difficulties with doing up your shoelaces as a result of your compensable condition.
• You have purchased the Drew Mansfield shoes, at a cost of $596.00. The Happy Fit Footwear stores website, where you purchased the shoes from, states these shoes are a great option for people with diabetes, arthritic foot problems and foot deformities. There is no requirement for you to you have these specific shoes for your compensable condition.
• There are many lace-less shoes available, most at a lesser cost than the Drew Mansfield.
The decision-maker set out the following decision:
I have decided to affirm the determination dated 19 December 2022 and decline liability for the Drew Mansfield lace-less shoes, purchased on 22 October 2022, under sections 16 and 39 of the SRC Act.
As can be seen, the decision-maker sets out material factual findings and refers to the materials on which they are based, including the report of Dr Seevnarain and the form completed by Dr Speldewinde. Albeit brief, the decision-maker’s reasons expose a process of reasoning based which is based on the applicable legislation and the materials lodged in support of Mr Webeck’s claim. The brevity of the reasons does not detract from the relevance of the findings made and the cogency of the reasoning applied.
The correctness or accuracy of the findings made or the reasoning engaged in is not to the point of the threshold set in s 28(4)(a). Any factual or legal errors are amenable to correction by the Tribunal on review.
Mr Webeck cavils with the decision-maker’s reference to the term ‘rehabilitation aid’ and asserts this is not a term used the Safety Rehabilitation and Compensation Act 1988 (SRC Act). There are three things to say about this. Firstly, the term ‘rehabilitation aid’ does not appear in the SRC Act and it is not a term to which a particular statutory meaning is ascribed. Secondly, the terms of the reconsideration decision suggest the reconsideration decision-maker used the term as shorthand description of the phrase “aids or appliances for the use of the employee” in s 39(1) of the SRC Act and drew meaning from the language used in that section. Thirdly, to the extent the reconsideration decision-maker’s use of the term ‘rehabilitation aid’ might be infected by error, the error is able to be rectified on review by the Tribunal in these proceedings. Even if the decision-maker was in error, the error would not render the reconsideration decision nugatory, on grounds the decision-maker committed jurisdictional error for example. The reconsideration decision was in fact made and, for the purposes of s 28(4)(a), I am satisfied Mr Webeck was given a document setting out the terms of the decision, including the material factual findings made and the materials on which the findings were based, and the reasons for the decision.
It follows, Mr Webeck is not entitled to request a statement of reasons under s 28(1) of the AAT Act.
Even if I had formed a different conclusion, no different result would be obtained as Mr Webeck’s request under s 28(1) was not made within 28 days of him being given the reconsideration decision and I am not satisfied his request, almost 7 months after being given the reconsideration decision, was made within a reasonable period for the purposes of s 28(1A) of the AAT Act. Mr Webeck has not provided a persuasive explanation why the effluxion of time before making his request on 16 August 2023 should be treated as reasonable.
Consequently, even if Mr Webeck was entitled to make a request under s 28(1) (and I have found he is not so entitled), Comcare had grounds to refuse his request under s 28(1A).
On review, for the purposes of s 28(1AC) of the AAT Act, I am satisfied Mr Webeck is not entitled to be given a statement of reasons under s 28(1) of the AAT Act.
Decision
Application refused.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

…………[sgd]……………
Associate
Dated: 19 September 2023

Applicant:

Self-Represented

Solicitor for Respondent:

Mr Ben Mason, Moray & Agnew Lawyers

[2023] AATA 2996

19 September 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Applicant:	Self-Represented
Solicitor for Respondent:	Mr Ben Mason, Moray & Agnew Lawyers