Webeck and Comcare (Compensation)
[2023] AATA 2630
•18 August 2023
Webeck and Comcare (Compensation) [2023] AATA 2630 (18 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0375
2023/1678
Re:Kenneth Webeck
APPLICANT
ComcareAnd
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:18 August 2023
Place:Canberra
Interlocutory application refused.
…………………[sgd]……………………..
Mr S. Webb, Member
Catchwords
PRACTICE & PROCEDURE – application for interlocutory decision to set aside and remit decision under review – liability for injury established under Compensation (Commonwealth Government Employees) Act 1971 – claims for payment of compensation – heads of entitlement – accrued rights – operation of transitional provisions – Tribunal jurisdiction – application to proceed to hearing – application refused
Legislation
Administrative Appeals Tribunal Act 1975, ss 25, 42A, 43
Compensation (Commonwealth Government Employees) Act 1971, ss
Safety, Rehabilitation and Compensation Act 1988, ss 16, 39, 124Cases
Brennan v Comcare [1994] FCA 1147
Comcare v Bozicevic & Others [1997] FCA 288
Comcare v Dalgleish [2018] FCA 2092
Esber v Commonwealth [1992] HCA 20
Re Fuad and Telstra Corporation Limited [2004] AATA 1182
Re Lay and Australian Postal Corporation [1999] AATA 803
Re Liu and Comcare [2004] AATA 617
Schlenert v Australian and Overseas Telecommunications Corporation [1994] FCA 974
Telstra Corporation Limited v Hannaford [2006] FCAFC 87Telstra Corporation Limited v Treloar [2000] FCA 1170
REASONS FOR DECISION
Mr S. Webb, Member
18 August 2023
Kenneth Webeck claimed compensation for physical injuries in his previous employment by the Australian Federal Police (AFP). Comcare accepted liability and paid Mr Webeckcompensation under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act)and subsequently under the Safety, Rehabilitation and Compensation Act 1998 (SRC Act).
Mr Webeck claimed compensation for a pair of lace-less shoes (application 2023/0375) and for household services and attendant care services (application 2023/1678). By primary determinations and reconsideration decisions, Comcare refused Mr Webeck’s claims. Mr Webeck has applied for review of the reconsideration decisions.
In the course of the resulting proceedings, Mr Webeck raised issues about the legislation applicable to his claims. He asserts his claims are to be determined under provisions of the 1971 Act. These matters came to a point in Mr Webeck’s application for an interlocutory decision to set aside the reconsideration decisions and remit them to Comcare.
On 18 July 2023, I heard the parties on these issues and gave an ex tempore ruling. Mr Webeck asked for written reasons. The written reasons which follow provide more detailed expression of the reasons provided orally.
Short facts
On 3 April 1980 and 12 September 1983, Mr Webeck sustained injuries to his lower back for which liability was accepted.[1]
[1] T3 and T4.
On 27 March 1995, Mr Webeck obtained surgical laminectomy and related treatment in relation to the injuries. On 8 May 1997, the Tribunal decided Comcare was liable to pay the reasonable costs of the treatment.
On 31 October 2022, Mr Webeck lodged a claim for compensation[2] in respect of the following:
[2] T22.
On 21 November 2022, Mr Webeck lodged an Application for Household and/or Attendant Care Services.[3]
[3] ST40.
On 19 December 2022, Comcare issued a determination refusing Mr Webeck’s claim in respect of lace-less shoes.[4] On 19 January 2023, the determination was affirmed on reconsideration.[5] On 19 January 2023, Mr Webeck lodged an application for review of this decision by the Tribunal.
[4] T24. Mr Webeck’s claim in respect of a lift chair was accepted in a separate determination.
[5] T26.
On 8 February 2023, Comcare issued a determination refusing Mr Webeck’s application for household and/or attendant care services.[6] On 16 March 2023, Comcare decided to affirm this determination on reconsideration.[7] On 17 March 2023, Mr Webeck lodged an application for review of this decision.
[6] ST45.
[7] ST51.
In written communications to the Tribunal and Comcare, Mr Webeck raised issues relating to the legislation applicable to his claims. I note, in particular, his written communications and submissions on 12 June, 15 June, 18 June, 29 June, 5 July, 12 July and 17 July 2023. I have had regard to Comcare’s responses to Mr Webeck and related written submissions.
On 18 July 2023, I heard the parties on the legal issues Mr Webeck raised and other matters relating to summons objections which it is not necessary to traverse for present purposes.
Mr Webeck asserts the transitional provisions in Part X of the SRC Act apply. In his submission, his entitlement to compensation in respect of the shoes claim arises and remains to be determined under s 37 of the 1971 Act. As his injury occurred before the commencing day under s 123 of the SRC Act (being 1 December 1988: the day on which Part X of the SRC Act commenced), Mr Webeck argues, under s 123A and s 128, he is entitled to compensation in respect of the ‘injury’ under the 1971 Act, which was in force when the injury occurred. By operation of ss 124(1A), (8) and (9), the amount of compensation, so the argument goes, is to be calculated as if the SRC Act had not been enacted. At the heart of Mr Webeck’s argument is the proposition Part X of the SRC Act locates Comcare’s liability to pay the compensation he is seeking under the 1971 Act. In his submission, s 16 and s 39 of the SRC Act do not apply to an injury before the commencing day.[8] Mr Webeck contends s 124 of the SRC Act has the effect of excluding s 39 of the SRC Act and the liability tests around the nature of the impairment resulting from a post commencing day injury and rehabilitation programs.[9]
[8] Applicant written submissions, 29 June 2023, page 2.
[9] Applicant written submissions, 12 June 2023, page 1.
Mr Webeck purports to rely on authoritative cases and previous Tribunal decisions in support of his construction of the legislation. In particular he relies on Comcare v Bozicevic & Others (Bozicevic)[10], Comcare v Dalgleish (Dalgleish)[11], Schlenert v Australian and Overseas Telecommunications Corporation (Schlenert)[12] and Re Lay and Australian Postal Corporation (Lay)[13]. On these cases, Mr Webeck asserts the proper construction of s 124 of the SRC Act has been decided and, as Comcare’s liability to pay an amount of compensation under s 16(1) of the SRC Act has not been discharged under the 1971 Act, Comcare’s decision should be set aside and remitted for reconsideration under s 124(9) of the SRC Act.
[10] [1997] FCA 288.
[11] [2018] FCA 2092.
[12] [1994] FCA 974.
[13] [1999] AATA 803.
Comcare asserts Mr Webeck’s rights to and Comcare’s liabilities to pay compensation for the injuries he sustained prior to the commencing day are, from the commencing day, rights under the SRC Act. Consequently, Comcare contends Mr Webeck’s claims are to be determined under applicable provisions of the SRC Act. Comcare argues for liability to arise in respect of the cost of medical treatment expenses under s 124(9) of the SRC Act, the cost must have been incurred before the commencing day. As Mr Webeck purchased the lace-less shoes on 20 October 2022 and no liability has been accepted under s 16(1) of the SRC Act, in Comcare’s submission, his claim for reimbursement does not rise for determination under s 124(9) of the SRC Act or s 37 of the 1971 Act.
Comcare relies on Dalgleish and Murphy J’s reference to the comments of Gummow J in Brennan v Comcare (Brennan)[14] when asserting s 124 does not preserve rights and liabilities accrued under the 1971 Act, but it provides new rights in respect of past events for the purposes of the SRC Act, subject to the limits and exclusions in Part X.
[14] [1994] FCA 1147, per Gummow J at [11] and [20].
Section 124 of the SRC Act is to be construed according to its text and statutory context.
It is helpful to set out the relevant subsections of s 124 of the SRC Act:
124 Application of Act to pre‑existing injuries
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) …;
(b)…;
(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) …; or
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) …;
(ii) …; or
(iii) in any other case—under the 1971 Act as in force when the impairment or death occurred.
(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a) …;
(b) …; or
(c) in any other case—the 1971 Act as in force when the impairment or death occurred.
(5) A person is not entitled to compensation under section 29 in respect of any period occurring before the commencing day.
(6) A person is not entitled to compensation under subsection 17(5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, if:
(a) that person received weekly payments of compensation in respect of that death or incapacity in relation to that period under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) that person was not entitled to receive weekly payments of compensation in respect of that death or incapacity in relation to that period:
(i) …;
(ii) …; or
(iii) in any other case—under the 1971 Act as in force when the death or period of incapacity occurred.
(7) The rate of compensation (if any) that a person is, by virtue of this section, entitled to receive under subsection 17(5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, shall be the same as the rate of compensation that would have been payable to that person in relation to that period, if this Act had not been enacted, under:
(a) …;
(b) …; or
(c) in any other case—the 1971 Act as in force during the period.
(8) A person is not entitled to compensation under subsection 16(1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, if:
(a) an amount was paid in respect of that cost or expenditure under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) an amount was not payable in respect of that cost or expenditure:
(i) …;
(ii) …; or
(iii) in any other case—under the 1971 Act as in force when the liability arose or the expenditure was incurred.
(9) The amount of the compensation (if any) that is, by virtue of this section, payable under subsection 16(1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, shall be the same as the amount that would have been payable in respect of that cost or expenditure, if this Act had not been enacted, under:
(a…;
(b) …; or
(c) in any other case—the 1971 Act as in force when the liability arose or the expenditure was incurred.
(10) ...
(11) ...
(12) ...
As can be seen, by operation of s 124(1), subject to Part X, the SRC Act applies to an injury, loss or damage before and after the commencing day. The provision in s 124(1A) qualifies a person’s entitlement to compensation under the SRC Act in respect of an injury occurring before the commencing day, namely the person’s entitlement arises if compensation was, or would have been, payable to the person in respect of that injury under the 1971 Act or preceding statutes. The existence of such entitlement requires consideration of the limiting provisions of succeeding subsections in s 124.[15]
[15] Brennan, per Gummow J at [27]-[28].
As Murphy J observed in Dalgleish:
The text and statutory context of subs 124(1), (1A) and (2) also indicate that they are intended to deal with a general entitlement to compensation under the SRC Act (that is, entitlement to any compensation). They operate to entitle and disentitle a person from compensation under the SRC Act if compensation was or was not payable in respect of that injury. They do not purport to entitle or disentitle a person in respect of particular types or heads of compensation by reference to corresponding types or kinds of compensation that were or were not payable under an earlier relevant compensation statute.
Other subsections in s 124, including ss 124(8) and (9), deal with entitlements to particular heads of compensation which are geared to the earlier statutes where an entitlement to compensation arose before the commencing day, where the injury, loss or damage occurred before the commencing day.[16]
[16] Esber v Commonwealth [1992] HCA 20, per Mason CJ, Deane, Toohey and Gaudron JJ at [13].
It is noted, as the Full Court observed in Bozicevic’s case, the construction adopted by Lockhart J in Schlenert (in dissent) is not preferred and has not been followed.[17]
[17] Telstra Corporation Limited v Treloar [2000] FCA 1170.
At this point, there are two things to say about liability. Firstly, under the 1971 Act (and the SRC Act), liability to pay compensation in respect of a ‘personal injury’ arises under s 27, having regard to ‘injury’ and ‘disease’ as defined in s 5 and the disease provisions in ss 29, 30 and 31. The liability to pay compensation in respect of a ‘personal injury’ is in accordance with the Act. Thus, while the liability to pay compensation in respect of a ‘personal injury’ might persist following acceptance of an originating claim, it does not follow, and it cannot be assumed, any amount of compensation will be paid. Payment of compensation is to be determined from time to time, subject to claim under specific statutory provisions for particular heads of compensation. Specific liabilities and entitlements to payment under particular heads of compensation are subject to claim and determination under the applicable statutory provisions.[18]
[18] Re Fuad and Telstra Corporation Limited [2004] AATA 1182 at [3]; Re Liu and Comcare [2004] 617 (Liu) at [2]-[5].
Secondly, where a claim is made under a particular head of compensation after the commencing day, it is to be determined under the relevant applicable provisions of the SRC Act, subject to Part X. Liability for such a claim cannot be assumed on the basis of previously determined liability for a ‘personal injury’ under the 1971 Act. The existence of a ‘personal injury’, noting the persistence of general liability may be affected by any contrary factual determination,[19] is an essential precondition to any subsequent compensation entitlement. Any specific liability or entitlement claimed under a particular head of compensation must be determined on the merits of the claim, applying the relevant statutory provisions at the time. Specific liability under a particular head of compensation arises at the time determined under the applicable statute. Thus, as was said in Lay’s case, while the general liability to pay compensation arises when an employee suffers an ‘injury’, the liability to pay particular amounts of compensation is determined at a later stage.[20]
[19] Telstra Corporation Limited v Hannaford [2006] FCAFC 87.
[20] Lay at [65]; see also, Liu at [5].
Consideration of Part X, including s 123A, s 127, s 127 and s 128, of the SRC Act does not lead to any different construction. Section 128 preserves any liability to pay compensation which had not been discharged before the commencing day. Mr Webeck’s purchase of shoes on 20 October 2022 cannot be considered an undischarged liability as of 1 December 1988.
Thus, with regard to the injuries Mr Webeck suffered, Comcare’s liability to pay compensation in respect of those injuries arose under s 27 of the 1971 Act. Prior to the commencing day, Mr Webeck’s entitlements in respect of any particular head of compensation under the 1971 Act were subject to claim and positive determination under that enactment. After the commencing day, by operation of Part X of the SRC Act, Comcare’s liability continued for the purposes of the SRC Act. It is very clear from s 124(1) and (1A) of the SRC Act, Mr Webeck’s right to claim compensation and Comcare’s specific liability under any particular heads of compensation was then to be determined under the applicable provisions of the SRC Act, subject to Part X.
There is no dispute Mr Webeck purchased the lace-less shoes purchased on 20 October 2022. This is instrumental in relation to any liability to pay. Quite clearly, if there is liability to pay compensation for the shoes, the liability did not arise before the commencing day. Even though provision was made in s 37(2) and (3) of the 1971 Act for payment of compensation in respect of medical treatment or a medical aid, by operation of ss 124(1) and (1A) of the SRC Act and subject to succeeding provisions, Mr Webeck’s claim for lace-less shoes is to be determined under s 16 or s 39 the SRC Act. Any related entitlement Mr Webeck might have to compensation under s 16(1) of the SRC Act is not excluded by s 124(8) or limited by s 124(9), as the liability to pay the cost of the aid did not arise before the commencing day. Payment of compensation in respect of an aid under s 39(1) is not excluded under s 124.
It follows, consistent with ss 124(1), Mr Webeck’s claim for lace-less shoes and any entitlement to payment of compensation are to be determined under s 16 or s 39 of the SRC Act, whichever applies. The claim and the assertion of liability against Comcare cannot be met on grounds of persisting liability for the ‘personal injury’ which initially arose under the 1971 Act. Comcare’s specific liability does not arise in the abstract or on the occurrence of Mr Webeck’s injury. The specific liability is preconditioned by Mr Webeck’s claim and, for the liability to crystallize, the particularity of the claim must be positively determined under the applicable statutory provisions on the basis of relevant probative material. In other words, Mr Webeck may be entitled to compensation for the cost of the lace-less shoes under s 16(1) or 39(1) of the SRC Act if the Tribunal is satisfied on the available materials the essential preconditions in s 16(1) or s 39(1)(a) and (b) are met.
For similar reasons, subject to the limit in s 124(5) of the SRC Act, Mr Webeck’s claims in respect of household and/or attendant care services are to be determined under s 29 of the SRC Act. This is so, even though s 48 of the 1971 Act provided for payment of compensation in respect of the help or attendance of another person. Mr Webeck’s entitlement to compensation in respect of household and/or attendant care services is to be decided with reference to his claim and relevant materials. Should a positive determination be made, Comcare will be liable to pay Mr Webeck compensation under s 29. Liability to pay compensation for the household and/or attendant care services Mr Webeck has claimed did not arise before the commencing day and there is no basis under Part X for Mr Webeck’s entitlement under this head of compensation to be determined under the 1971 Act.
Mr Webeck’s construction of the legislation and his interpretation of extraneous materials and authoritative cases cannot be accepted. Having carefully considered his detailed written and oral submissions, the construction of s 123A, s 124 and s 128 of the SRC Act and the continuing applicability of the 1971 Act for which he contends, when considered in the context of Part X and the SRC Act more broadly, is not consistent with the statutory text and the operation and purposes of the transitional provisions in Part X, and it lacks authority. His application for a summary decision to set aside and remit the decision under review for reconsideration under Part X must be refused.
Decision
Interlocutory application refused.
32. I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
......................[sgd]........................
Associate
Dated: 18 August 2023
Date of Interlocutory Hearing:
18 July 2023
Applicant:
Self-Represented
Solicitor for Respondent:
Mr Ben Mason, Moray & Agnew Lawyers
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