Wills and Comcare (Compensation)
[2024] AATA 1480
•2 May 2024
Wills and Comcare (Compensation) [2024] AATA 1480 (2 May 2024)
Division:GENERAL DIVISION
File Number(s):2022/9593
Re:Robert Leslie WILLS
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date of Decision: 2 May 2024
Date Reasons Published: 4 June 2024
Place:Canberra
The application is dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth).
……………….……………..
Senior Member O'Donovan
Catchwords
Workers compensation – jurisdiction of the Tribunal when reviewing decisions under section 14 of the SRC Act – reviewable decision remitted under section 42D – favourable decision on section 14 liability made on remittal – liability accepted but only for a closed period – validity of a closed period acceptance decision – jurisdiction of Tribunal to review a decision under section 14 of the SRC concerning the period in which compensation is payable – no such jurisdiction – application dismissed as lacking in substance
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 42D, 42B
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
Woodhouse v Comcare [2021] FCAFC 95
Lees v Comcare (1999) 29 AAR 350
Re Liu and Comcare (2004) 79 ALD 119
Rosillo v Telstra [2003] FCA 1628
Duong v Australian Postal Corporation [2005] FCA 991REASONS FOR DECISION
Senior Member O'Donovan
The Tribunal is considering whether it should dismiss the application before it pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’).
The question has been raised for consideration at the Tribunal’s initiative. The Tribunal is concerned that it lacks jurisdiction to determine the only issue of substance that remains between the parties following a remittal under section 42D of the AAT Act and a fresh decision by the respondent. Both parties consider that there is utility in the Tribunal hearing and resolving the outstanding issue, however, the consent of the parties is not sufficient to attract jurisdiction.
The central question which needs to be resolved is whether the Tribunal when reviewing a determination made under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’), can determine that Comcare’s liability ceased on and from a particular date.
This issue arose in the following circumstances.
On 17 May 2022 the applicant submitted an application for workers’ compensation. The claim was in relation to depression and anxiety. The cause of the condition was said to be ‘3 years of sustained and manipulative behaviour from a superior at work’. The applicant identified 17 December 2018 as the first date on which symptoms were noticed which was also the first date on which medical treatment was sought.
The applicant had been employed by IP Australia for many years. The applicant took extended leave from late 2018 and never returned to work. He took a voluntary redundancy on 31 July 2019.
On 19 July 2022 the application for compensation was declined.
The Comcare delegate determined that Comcare was prejudiced by the late submission of the claim ‘and therefore cannot approve liability’. The delegate was also not satisfied that the applicant’s employment significantly contributed to the psychological disorder from which he was suffering.
The applicant sought reconsideration of that decision.
On 4 October 2022 the Comcare delegate affirmed the decision under review. The delegate found that the applicant did not provide appropriate notice of the claim and his failure to do so prejudiced Comcare in the assessment of the claim.
He went on to find that the applicant sustained an adjustment disorder with depressive reaction but that the applicant’s employment did not significantly contribute to the adjustment disorder, noting that the applicant’s claims could not be verified.
On 23 November 2022 the applicant sought review in the Tribunal.
During the conferencing process the decision under review was remitted to Comcare for reconsideration under section 42D of the AAT Act.
On 7 September 2023 Comcare varied the decision under review. Pursuant to s42D(3)(a), the application to the Tribunal is taken to be an application for review of the decision as varied. When a remitted decision is varied, the person who made the application may either proceed with the application for review of the decision as varied or withdraw the application.
To this point the applicant has proceeded to seek review of the decision as varied.
The decision as varied determined as follows:
(a)That the applicant gave appropriate notice and consequently section 53 of the SRC Act has no application;
(b)The applicant sustained a psychological condition being an adjustment disorder with mixed anxiety and depressed mood with 7 January 2019 being the date the applicant first sought medical treatment;
(c)Employment significantly contributed to the applicant’s adjustment disorder with mixed anxiety and depressed mood;
(d)The condition was not the result of reasonable administrative action.
These findings were sufficient to dispose of the question of section 14 liability under the SRC Act in a manner favourable to the applicant.
However, the decision went on to consider whether the applicant continued to experience the effects of any work-related condition. The decision maker found that as of 30 September 2019 the applicant’s work-related condition ceased and the applicant’s employment no longer significantly contributed to his condition.
Based on the applicant’s reporting of symptoms, the decision maker determined that the applicant’s adjustment disorder with mixed anxiety and depressed mood resolved by 30 September 2019 and that ‘Comcare is no longer liable to pay compensation to you in respect of your adjustment reaction as at 30 September 2019 because the injury had by that date resolved or in the alternative had ceased to constitute a disease and had ceased to cause any impairment or incapacity for work.
It is only the last set of findings concerning whether the applicant’s condition is ongoing which are the subject of dispute between the parties.
The question which arises is whether, when reviewing a decision concerning Comcare’s liability pursuant to section 14, the Tribunal can make a decision which effectively ceases Comcare’s liability on and from a particular date on the basis that the ailment has resolved or is no longer contributed to to a significant degree by the applicant’s employment.
There is a long line of authorities dating back over 25 years which have emphasised that section 14 is a threshold provision which only deals with the question of whether Comcare has a liability to make payments in relation to an injury. The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act. If these authorities are applied in the present case, because section 14 liability has been accepted by Comcare, there is arguably no further work for a section 14 determination to do. If that is the case it would be beyond the jurisdiction of the Tribunal to determine that compensation was not payable under section 14 after 30 September 2019 and the question of whether the applicant is entitled to compensation beyond 30 September 2019 is a question that should be determined when specific payment claims are made under other provisions of the SRC Act, not in the context of a section 14 determination. Only when determinations are made in relation to medical treatment and incapacity would the Tribunal have jurisdiction to consider the question of when the effects of the applicant’s injury (in the statutory sense of that word) ceased to give rise to an obligation to pay compensation under the SRC Act. Applying older authorities that would unquestionably be the outcome.
Notwithstanding the clarity of the older authorities, the Full Court of the Federal Court in Woodhouse v Comcare [2021] FCAFC 95 (‘Woodhouse’) has cast doubt on the impermissibility of revisiting the question of section 14 liability for the purposes of terminating any ongoing obligation to make payments. Consequently, the Tribunal’s jurisdiction may be more expansive than was once thought. To resolve whether that is the case it is necessary to look at how the law has developed in this area.
In Lees v Comcare (1999) 29 AAR 350 (‘Lees’) the Full Court said in relation to section 14 at [34]:
A determination under s 14 cannot amount to more than a determination that Comcare ‘is liable to pay compensation in accordance with this Act’ in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or person to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
This obiter was picked up in Australian Postal Corporation v Oudyn [2003] FCA 318 (‘Oudyn’) where Cooper J said at [30]:
The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury. A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in par [35] of its reasons…
[which I note were: 1] That appropriate notice of injury has been given, 2) that a claim for compensation has been made as required 3) That the claimant was an employee at the relevant time 4) That the employee suffered an injury and 5) that the injury has resulted in death, incapacity for work, or impairment].
The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24….These determinations give substance to the liability…They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act.
In Lees, it was made clear that in the SRC Act a section 14 determination cannot amount to more than a determination that Comcare:
is liable to pay compensation in accordance with this Act’ in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and [importantly] the time or times at which Comcare’s liability will give rise to a present obligation to make payments are … all matters to be determined under other provisions of the Act.[1]
Cooper J continued in Oudyn (at [32]):
[1] Lees, [34].
The power of APC to reconsider a determination under s 62 of the SRC Act, when exercised in relation to a determination made under s 14, is a power limited to reconsideration of one or more of the elements identified by the Full Court in Lees … (emphasis added) [I note – the elements identified in Lees do not include the period for which Comcare is liable] … The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.
[33] Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant.
[34] APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act…Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act (emphasis added).
…
[35] …To the extent that APC attempted to exonerate itself from future liability and to foreclose any future claims by Mr Oudyn by the determination, APC was in error as to its power to do so by the determination.
This decision was applied by the Tribunal in Re Liu and Comcare (2004) 79 ALD 119 (‘Liu’) at [3]:
The only time that liability under section 14 can be reconsidered is under s 62. But that is a reconsideration of whether the original determination was correct on its merits and cannot address any issue of cessation of correctly determined liability.
In Rosillo v Telstra [2003] FCA 1628 (‘Rosillo’), Madgwick J upheld an appeal from a decision of the Tribunal which affirmed a section 14 decision ceasing liability.
The decision given by the Tribunal was in the following terms:
The Administrative Appeals Tribunal affirms the decision of Telstra of 28 August 2001 which was affirmed by the decision of 26 October 2001 to deny liability for compensation pursuant to s 14 of the [SRC Act] in respect of ‘strained lower lumbar region’ on and from 28 August 2001.
The court found that:
The legal effect of what the tribunal has done is to affirm a nullity and then purport to say in its reasons that that affirmation has no practical effect for the future. Such was not an option open to the Tribunal. There was only one result that should have followed and it was that the decisions of 28 August 2001 and 26 October 2001 should have been set aside.[2]
[2] Rosillo, [20].
The principles enunciated in Lees and Oudyn were applied by Edmonds J in Duong v Australian Postal Corporation [2005] FCA 991 (‘Duong’). The reviewable decision in that case involved an acceptance of liability under s 14 and a decision to pay compensation (cost of medical treatment obtained in relation to the injury) pursuant to subsection 16(1) of the SRC Act. His Honour noted:
Insofar as the reviewable decision limited the respondent’s liability to pay compensation up to 26 March 1995, that was a limitation on its liability to pay pursuant to subs 16(1), not a limitation on its accepted liability under s 14. That has to be so otherwise the limitation, once the liability to pay is satisfied or discharged, would operate as a bar to future claims in respect of the injury if the circumstances under the section can be made out again in the future…[3]
[3] Duong, [44].
In other words, any attempt to cease liability has to be done under a payment provision like section 16 rather than by way of a determination under section 14. Any purported attempt to cease liability from a certain point pursuant to section 14 is beyond what is authorised by the provision.
All of the observations above support the general proposition that section 14 is a threshold provision. Once it has been passed it creates a liability in Comcare to pay compensation in relation to the relevant injury under the payment provisions of the SRC Act. Section 14 is not re-visited again unless the view is formed that no liability to pay compensation ever existed.
Once liability is accepted, the duration of the liability to pay is determined in the context of determinations made under the payment provisions. To this point, in this matter, no determinations have been made under the payment provisions.
Notwithstanding the clarity of the principles enunciated in the cases cited above, how they are applied has been called into question in the relatively recent decision of the Full Court in Woodhouse.
It is important to note at the outset that the decisions that were the subject of consideration by the Full Court in Woodhouse were decisions made pursuant to payment provisions of the SRC Act – sections 16 and 19. Accordingly there was never any doubt about the Tribunal’s jurisdiction to address the question of whether the effects of Ms Woodhouse’s accepted injury was ongoing.
However it must be conceded that the Full Court in Woodhouse did make some comments which appear to conflict with the principles consistently applied by the Federal Court following Lees. In particular, the Full Court said at [85]:
…what is required is that the contribution requirement remain in place [for a disease] in the sense that the disease or ailment continues to have the characteristic of having been contributed to in a material degree by the relevant employment…the operative effect of the expression “was contributed to“ in the definition is not spent once it has connected the employee’s employment with the contraction or aggravation of the ailment. …If at any later point in time the ailment suffered by an employee ceases to have that character, it will also cease to be a “disease”, and will therefore cease to be an ‘injury’ in respect of which compensation is payable pursuant to s 14 of the SRC Act. For the duration of each of the periods in respect of which the question of compensation is being determined it must be possible to say that the contribution requirement was satisfied in respect of the ailment.
The Court also noted:
The operation of s 19 amongst others is conditioned upon liability being imposed upon Comcare pursuant to s 14 and that liability will only exist where the injury has the necessary causal connection to the employee’s employment on the one hand and causes the relevant detriment on the other. Where the injury does not have those characteristics, Comcare has no liability in respect of which s 19 might operate. So much appears from the decisions in Lees and Prain. Likewise there is no reason for interpreting the reference to injury in s 16 differently to the reference in s 14.[4]
[4] Woodhouse, [98].
These comments by the Full Court have the potential to be read as expanding the work that section 14 determinations can do, effectively allowing a decision maker or the Tribunal to consider whether, at a particular point in time, the requirements of section 14 are met.
That runs to a degree counter to the previous approach of the Federal Court where questions of the duration of a disease are not matters to be determined by reference to section 14 but by reference to the payment provisions. It is not easy to square the approaches and I won’t attempt to do so in these reasons.
It is sufficient to note in these circumstances that the specific jurisdictional question of whether the Tribunal, seized only with jurisdiction in relation to section 14, has power to find that the effects of an accepted injury had ceased is not a question that was ever raised in Woodhouse. The Tribunal had jurisdiction by reason of determinations having been made under sections 16 and 19 and the question of whether the applicant was suffering from an injury in the statutory sense in the relevant period inevitably arose.
The current case is different. Section 14 liability has been accepted and in the same breath Comcare has sought to limit its liability to a closed period. That involves a determination of a matter which is not within the five elements of section 14 identified in Lees and in seeking to resolve the matter I would be asked to affirm a decision which, in Rosillo, was found to be beyond power. I am not persuaded that Woodhouse affects the earlier authorities, which are binding on me in the present case.
In those circumstances I am satisfied that, following the fresh decision by Comcare, the applicant is pursuing an application that lacks substance because the Tribunal cannot resolve in a determinative way the only issue remaining between the parties.
The proper course is for the applicant to make claims for medical treatment and incapacity for the periods he considers are the result of the accepted injury and then Comcare and the applicant can expressly consider the period of effect of the injury, and in what periods the applicant received compensable medical treatment, or suffered incapacity as a result of the accepted injury.
In so far as review of the section 14 decision is concerned, the applicant has obtained a decision as favourable as is legally possible as a consequence of the remittal of the matter to the applicant. Nothing more can be achieved by pursuit of the application. Consequently I dismiss the application pursuant to section 42B on the basis that since the favourable decision on remittal it lacks substance.
I certify that the preceding 45 paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Donovan.
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Associate.
Dated: 4 June 2024
Date of interlocutory hearing:
2 May 2024
Date of final submissions:
2 May 2024
Solicitor for Applicant:
Mr Dean Prail
Counsel for the Respondent
Solicitor for Respondent:
Ms Lindsay Cooper
Ms Donna Kell
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