Wills and Comcare (Compensation) - [2024] AATA 1480

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 991
REASONS 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wills and Comcare (Compensation)

Details

AGLC: Wills and Comcare (Compensation) [2024] AATA 1480
Case: [2024] AATA 1480
Decision Date: 2 May 2024

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a decision made by Comcare. The dispute arose from Comcare's acceptance of liability for an injury under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act), but only for a closed period. The applicant sought to challenge the validity of this "closed period acceptance" decision.

The primary legal issue before the Tribunal was whether it had jurisdiction to review a decision under section 14 of the SRC Act that purported to limit Comcare's liability to a specific, closed period. This involved determining the scope of a section 14 determination and whether it could encompass the duration of Comcare's liability or only the initial acceptance of liability for an injury.

The Tribunal, referencing established case law including *Lees*, *Oudyn*, and *Liu*, reasoned that a section 14 determination under the SRC Act is limited to establishing Comcare's liability to pay compensation for a particular injury. The specific amount of compensation, the recipients, and the times at which liability gives rise to a present obligation are matters to be determined under other provisions of the Act. The Tribunal held that Comcare cannot, through a section 14 determination or a reconsideration thereof, bind itself in advance to reject future claims or determine that a correctly established liability has ceased and thereafter excluded all future entitlement. Such an attempt to exonerate itself from future liability by purporting to limit the acceptance to a closed period was an error as to Comcare's power.

Consequently, the Tribunal found that it lacked jurisdiction to review the decision concerning the period for which compensation was payable, as this was not a matter that could be determined under section 14. The application was therefore dismissed as lacking in substance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.