Whiteman and Australian Postal Corporation (Compensation)

[2015] AATA 486

Whiteman and Australian Postal Corporation (Compensation) [2015] AATA 486 (7 July 2015)

Division	GENERAL DIVISION
File Numbers	2013/5220; 2014/0320
Re	Cheryl Whiteman
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Ms G Ettinger, Senior Member
Date	7 July 2015
Place	Sydney

The Tribunal finds that it has no jurisdiction to make decisions about incapacity payments to Ms Whiteman in relation to her shoulder injury for the period 3 July 2006 to 5 November 2010.

........................................................................

Ms G Ettinger, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – compensation – injury to left shoulder – claim – whether Tribunal has jurisdiction to consider entitlement to compensation under section 19 and 20 during period Applicant was part-time  – no particular claim made –  contents of application before original decision maker – Tribunal does not have jurisdiction.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 19, 20, 62, 64

CASES

Casarotto v Australian Postal Commission (1989) 17 ALD 321

Comcare v Simmons (2014) 138 ALD 58
Lees v Comcare (1999) 56 ALD 84
Whiteman v Australian Postal Corporation [2010] AATA 645

Secondary Materials

REASONS FOR DECISION ON JURISDICTION

Ms G Ettinger, Senior Member

7 July 2015

BACKGROUND

1. Ms Cheryl Whiteman was an employee of the Australian Postal Corporation (Australia Post), from 1989 until 5 November 2010. In 2004, Ms Whiteman suffered an injury to her left shoulder arising out of her employment with Australia Post. Liability was accepted by Australia Post pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), (the Act), and compensation paid.

2. The matter about which I now write, concerns Ms Whiteman’s claim for compensation pursuant to sections 19 and 20 of the Act, that is currently before this Tribunal. The reviewable decision in matter 2014/0320 dated 17 January 2014 dealt with claims for compensation for incapacity, and identified the period from which liability for incapacity was denied, as commencing 5 November 2010. That date coincided with Ms Whiteman’s resignation from Australia Post. In that decision she was refused compensation for her left shoulder condition on the basis she had voluntarily removed herself from suitable employment. The delegate wrote on 17 January 2014:

   … consider that you were fit for suitable employment from 5 November 2010 but chose to take an early retirement. Therefore liability for incapacity from 5 November 2010 is denied.

   The Applicant’s submissions

3. Following four days of hearing, and during closing submissions, a question of jurisdiction of the Tribunal has arisen. Mr Grey of counsel who represented Ms Whiteman, claims that the Tribunal has jurisdiction to consider her entitlement to compensation under section 19 for the period 3 July 2006 to 5 November 2010 during which Ms Whiteman worked 25 hours a week, having reduced her work hours from the pre-injury time of seven hours 21 minute per day.

4. Mr Grey argues notwithstanding that no particular claim was made for the period 3 July 2006 to 5 November 2010, (but only for the period 5 November 2010 and continuing), all matters of incapacity compensation arising from the compensable left shoulder injury must be included. He argues that the Tribunal accordingly has jurisdiction to include Ms Whiteman’s claim for incapacity payments for the period 3 July 2006 to 5 November 2010. Mr Grey seeks to rely on the decision of Comcare v Simmons (2014) 138 ALD 58.

5. Mr Grey argues that he mentioned the period 3 July 2006 to 5 November 2010 in relation to a section 19 claim in his opening at the Tribunal, and in the Applicant’s Amended Statement of Facts Issues and Contentions dated 3 January 2015. Both assertions are correct, but cannot automatically confer jurisdiction.

6. In his written submissions Mr Grey argued as follows:

   As a matter of law and practice, it is not necessary for an Applicant to submit a formal claim on an approved form for a specific period in order to request that determinations relating to incapacity be made. That is especially true where incapacity determinations have been made in the past. It is simply necessary that the Applicant should request that a Respondent make appropriate determinations.

   In this case, the request which triggered consideration by Australia Post of Ms Whiteman's incapacity payments following her resignation was the letter from Ms Whiteman's solicitors dated 20.9.12. That letter sought incapacity payments "for the period subsequent to our client's termination". It was followed up by a letter dated 7.11.13.  Australia Post then produced the determination of 27.11.13, which denied any liability to make incapacity payments for the period from November 2010 onwards.

   That determination relied substantially upon the proposition that Ms Whiteman's entitlement to compensation was to be measured against her position as a person carrying out 5 hours per day in accordance with "permanently modified duties", including a lifting limit of 8 kg. It was implicitly assumed by Australia Post, without any discussion or evidence, that the reasons for Ms Whiteman decreasing her hours to 25 hours per week had nothing to do with her employment. In other words, Australia Post simply closed its eyes to the question of whether the "personal reasons" behind Ms Whiteman's move to part-time hours were a direct consequence of the compensable injury. Any examination of the available material would have at least raised the question of whether the compensable injury, and the reaction of Mr Hardcastle to her consequent need for help in the post office, were significant contributing factors in causing her to accept the reduction to 25 hours per week.

   The reviewable decision did not add anything to the reasoning contained in the primary determination. Ms Whiteman then applied for review of the decision. That application was eventually followed by a Statement of Facts, Issues & Contentions ("SFIC"), which made it clear in paragraph 12 that Ms Whiteman was contending that the reduction of hours on or about 3.7.06 was related to her compensable injury. If that were not clear enough, paragraph 13 of the original SFIC contended that "The Applicant is entitled to compensation pursuant to section 19 of the Act for the reduction in hours".

   An SFIC was filed on behalf of Australia Post on 25.11.14, responding to the SFIC filed on behalf of Ms Whiteman. No jurisdictional issue was raised in that SFIC. However, the fact that Australia Post was alive to the issue of whether the reduction in hours was work-related was confirmed by paragraph 2.4 of that SFIC. Furthermore, Australia Post directly put in issue (in contention 4.8) that Ms Whiteman had, in ceasing full-time work on 3.7.06, "failed to engage or to continue to engage in suitable full-time employment offered by the Respondent". That contention was only relevant if it were established that the employment carried out by Ms Whiteman before 3.7.06 was "suitable full-time employment". Clearly, if the pre-July employment was such that she was not coping, and was obliged to reduce her hours for that reason, then contention 4.8 would fail.

   …

   In particular, new contention 12a (Applicant’s Amended Statement of Facts Issues and Contentions),  was inserted to put beyond doubt the fact that Ms Whiteman disputed the assertion that suitable employment was being provided to Ms Whiteman as at the time of her reduction in hours. Furthermore, both the original SFIC and the Amended SFIC claimed incapacity compensation "for the period on and from 3 July 2006 to date".

   In the circumstances, it would have been abundantly clear to any lawyer reading the original SFIC and the Amended SFIC filed on behalf of Ms Whiteman, that Ms Whiteman was claiming incapacity compensation from 3.7.06 onwards. Yet no Amended SFIC was filed by Australia Post, asserting that the Tribunal had no jurisdiction to consider that issue. Neither was any jurisdictional issue raised in correspondence following the filing of the Amended SFIC.

   Putting aside for one moment the issue of whether the jurisdictional issue has any merit, the fact is that if Australia Post filed an Amended SFIC raising a jurisdictional issue, it would have triggered a debate about jurisdiction months before the hearing itself. If the jurisdictional issue had been resolved in favour of Ms Whiteman, then the cost of preparing these submissions would have been avoided, as would the delay caused by it. If the jurisdictional issue had been resolved against Ms Whiteman, then it would have been a simple matter to file an appropriate claim for incapacity payments earlier this year covering the period from 3.7 .06 to 5.11.10, so that all issues could be dealt with without this technicality getting in the way (as contemplated by s.72).

   There Is No Jurisdictional Barrier to Adjusting the Period for Which Incapacity Compensation Is Claimed: None of the jurisdictional cases referred to earlier provide any authority for the proposition that a properly claimed head of compensation arising from a compensable injury must relate to a specifically claimed period nominated by the injured worker. That would bring a totally unjustifiable level of technicality to the process, that is not supported by any prior authority.

   There are two reasons why any suggestion that that level of technicality as required by the SRC Act should be rejected. First, the modern approach to the SRC Act is that it involves "progressive and evolving decision-making", both in regard to the "ongoing review of relief or "entitlements". This is not a prerogative solely exercisable by a Respondent to the detriment of an Applicant, but applies equally to an Applicant asserting rights that have not been completely and properly determined in the past by a Respondent. Once incapacity payments are put in issue, then it is open to either side to consider whether other payments should have been made which were not, or were made when they should not have been made. This is also consistent with the "powers of an original decision-maker [extending] to regarding informal notice as having been given in amplification of a notice formally given", or "enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given."  To the extent that the original decision-maker had those powers, then the Tribunal has them too.

   The Respondent’s submissions

7. Mr Gollan of counsel who appeared for Australia Post submitted that:

   The question of jurisdiction is defined by reference to s.43(1) of the Administrative Appeals Tribunal Act and also ss.62 and 64 of the Safety, Rehabilitation and Compensation Act. The scope of the Tribunal’s authority of a review under the 1988 Act (SRC Act) has been considered in a number of cases, and relevantly I reproduce some of their Honours’ wisdom as follows:

   In Casarotto v Australian Postal Commission (1989), Hill J said:

   “The Tribunal is not a primary administrator, so that it could not embark upon any matter that was not properly before the original decision-maker whose decision is being reviewed (cf Re Tradigrain Australia Pty Ltd and Export Development Grants Board (No 1) (1984) 6 ALD 442)…”

   In Lees v Comcare (1999) the Full Federal Court made these observations:

   “39.        In considering the extent of the power of the AAT when reviewing decisions under the Act it is to be noted, first, that the AAT is authorised by s.64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s.62 of the Act.  Decisions under s.62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s.60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s.61(1).  Secondly, it is to be noted that the powers of the AAT under s.43(1) of the AAT Act are powers “[f]or the purposes of reviewing” the reviewable decision, not powers that may be exercised at large.  Further, the powers and discretions that the AAT may exercise under s.43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s.62 of the Act.  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…”

   So the question is: what did the decision-maker, Catherine Banh Reconsideration Officer, have before her when composing her Reconsideration Determination dated 17 January 2014?  What she had before her was a claim asserted by the Applicant as being an entitlement to weekly incapacity payments from the time of her termination.  She had before her information that allowed, conclusively, a conclusion that her termination date was 5 November 2010 and an assertion that since that date to the time of determination there was a present entitlement to s.19 and/or s.20 benefits.

   In the circumstances, the second tier decision-maker had a claim to the exclusion of the now agitated pre-period between 3 July 2006 to 5 November 2010.  Consistent with Lees, the AAT is only authorised on review of this reviewable decision to exercise any powers and discretions which were available to the second tier decision-maker.  There can be no question that the only power of review was with respect to the claimed period and that which formed the basis for the original determination.

   Addressing some of the matters raised by my learned friend, the approach undertaken by the Respondent in these proceedings is not one of technicality and, absent equity, good conscience or the like it is one consistent with law; it is one consistent with the observations made in the Respondent’s Facts, Issues and Contentions; it is one consistent with the evidence understood to have been given in proceedings previously before the Tribunal that resulted in a determination dated 27 August 2010; it is consistent with the determination made in those previous proceedings, being no.2008/4048, at [12] where the Tribunal found:

   “She says her supervisor at the time was not sympathetic to her impairment but her decision to work part-time was not related to her impairment as such (Australia Post documents confirm that it was for “personal” reasons).”

   It is consistent with an interpretation of the substance of the Amended Statement of Facts, Issues and Contentions (whilst the Respondent does accept the final orders sought went beyond the period articulated in the claim, the Determination and the Reviewable Decision).

   It is not sufficient for the Applicant to say that they included such an assertion on a reading of their Amended Statement of Facts, Issues and Contentions or for it to be suggested that there was an unobjected-to opening that asserted such a claim (which is disputed when one reads the part of the transcript referred to in the Applicant’s submissions, it does not conclude as asserted), because there cannot be consent jurisdiction, there can only be jurisdiction as defined by reference to the provisions and cases such as Lees (supra).

   The Tribunal’s conclusions

8. There can be no disagreement that the question of jurisdiction is defined by reference to section 43(1) of the Administrative Appeals Tribunal Act 1975, (AAT Act), and sections 62 and 64 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).  Section 43(1) of the AAT Act states relevantly that: For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ….

9. It is important then to consider what the application was to the Australia Post primary decision maker, and similarly before the review officer who made the reviewable decision of 17 January 2014. The letter of solicitors for the Applicant dated 20 September 2012 requested as follows: We confirm weekly incapacity payments are sought for the period subsequent to our client’s termination with the Respondent pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988. That was clearly a request for payments following Ms Whiteman’s resignation from Australia Post effective on 5 November 2010. For the sake of completeness I note that Australia Post made a determination refusing incapacity payments on 27 November 2013 for which reconsideration was sought. The reconsideration affirming the previous decision was made on 17 January 2014.  There was no mention of incapacity payments for the period 3 July 2006 to 5 November 2010 when Ms Whiteman was working 25 hours per week, either in the application for the payment or in the decisions of Australia Post.

10. The Tribunal’s authority in a review under the SRC Act has been considered in a number of well known cases, including those cited by Mr Gollan in his submissions.

11. In Casarotto v Australian Postal Commission (1989) 17 ALD 321 at 325, Hill J said:

    The Tribunal is not a primary administrator, so that it could not embark upon any matter that was not properly before the original decision-maker whose decision is being reviewed (cf Re Tradigrain Australia Pty Ltd and Export Development Grants Board (No 1) (1984) 6 ALD 442)…

12. In Lees v Comcare (1999) 56 ALD 84 at [39] the Full Federal Court made these observations:

    In considering the extent of the power of the AAT when reviewing decisions under the Act it is to be noted, first, that the AAT is authorised by s.64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s.62 of the Act.  Decisions under s.62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination … Secondly, it is to be noted that the powers of the AAT under s.43(1) of the AAT Act are powers “[f]or the purposes of reviewing” the reviewable decision, not powers that may be exercised at large.  Further, the powers and discretions that the AAT may exercise under s.43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s.62 of the Act.  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.

13. In conclusion, I rely upon section 41(1) of the AAT Act and sections 62 and 64 of the SRC Act, and the case law cited above, as I must do.

14. Jurisdiction cannot simply arise out of Mr Grey’s opening words at a hearing, or the Applicant’s Amended Statement of Facts Issue and Contentions. The Respondent should have replied to that Amended Statement dated 3 January 2015 and date stamped 5 February 2015 at the Administrative Appeals Tribunal. It did not do so. That has caused some difficulties. As the matter is listed for a resumed hearing on 24 September 2015, there will be an opportunity for the parties to confer and take appropriate action if the period 3 July 2006 to 5 November 2010 is to be considered in regard to Ms Whiteman’s claim for compensation for incapacity.

    DECISION

15. The Tribunal finds that it has no jurisdiction to make decisions about incapacity payments to Ms Whiteman in relation to her shoulder injury for the period 3 July 2006 to 5 November 2010.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

.............................[sgd]...........................................

Associate

Dated 7 July 2015

Date of hearing	On the papers
Date final submissions received	24 June 2015
Counsel for the Applicant	Mr L.T. Grey
Solicitors for the Applicant	Bale Boshev Lawyers
Counsel for the Respondent	Mr M.J. Gollan
Solicitors for the Respondent	Sparke Helmore