Abrahams v Comcare

The Senior Member noted that the Act provides a three tier process of review:

'Section 69 provides for the determination of a claim, section 62 provides for reconsideration of a determination (which then becomes a "reviewable decision") and section 64 then gives the Tribunal power to review the "reviewable decision". The role of this Tribunal is to review a decision that has already been reviewed by the two levels, two previous levels, of decision-maker.' (References omitted.) 11 The Tribunal Member referred to the discussion of the Tribunal's jurisdiction by the Full Court in Lees v Comcare (1999) 56 ALD 84, which contained the observation (at [39]) that although the Tribunal has the powers of the original decision-maker under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), they are: 'powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the [Tribunal] 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 [Tribunal] will not be authorised on review of a reviewable decision to exercise any powers and decisions 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.' 12 In Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263, Lees was affirmed. In Hannaford the Court acknowledged (per Conti J at [57] with whom Heerey and Dowsett JJ agreed) that: 'The statutory scheme ... reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances.' However, the Tribunal Member thought that the Hannaford principle was distinguishable on the facts in that, in the present case, the Tribunal was being urged to make a finding that: 'even though Mr Abrahams has not suffered the injury claimed, he has suffered another injury to the same limb.' The Tribunal Member said: 'The decision before me is a decision to deny liability for the specific injury of carpal tunnel syndrome of the right wrist. This is a precise injury involving pressure on the median nerve as it passes under the ligament across the front of the wrist. The characteristic symptom of this injury is pain and tingling in the first three or four fingers of the hand.' (References omitted. Original emphasis.) This was information which the Tribunal Member obtained from a medical dictionary. 13 He continued: 'Counsel now concedes that the decision to deny liability for carpal tunnel syndrome was correct but argues that the review officer had, and the Tribunal now has, the power to treat the application as one for compensation for an ongoing injury to the right arm in general. Counsel has argued that Mr Abrahams could have stated his injury in more general terms. This may be true but the inescapable fact is that he did not. Instead he chose to make a claim for a specific injury in support of his claim by medical reports which were equally specific. Correctly, in my view, Mr Abrahams claimed for an injury, not a list of symptoms. It is a decision rejecting liability for this injury which is before me for review and, … I have all the powers of the decision-maker for all purposes related to the making of the decision. However, these powers do not include the power to treat the application as one for compensation for a different injury, even if that injury was one of which the decision‑maker was aware. This is not a case of Comcare having refused to make a decision which the Tribunal can now properly make. Comcare dealt with the application made to it completely when it refused liability to compensate Mr Abrahams. … There is nothing to prevent Mr Abrahams seeking compensation for incapacity or treatment expenses for the injury to his right arm. Comcare has already accepted liability to compensate Mr Abrahams in respect of that injury. Counsel appears to be proposing that I should determine issues which should properly be determined on a claim based on the accepted compensable condition and in respect of which Comcare has not yet made a determination. This would be contrary to the three tier decision-making process.' (Original emphasis.) Notwithstanding that the Tribunal Member had originally said that he thought he had no jurisdiction to deal with the matter, he concluded: 'As there is no longer an issue as to the claimed injury of carpel tunnel syndrome I was satisfied that it would have been vexatious to allow Mr Abrahams to continue to have the matter heard on the basis argued by his Counsel. Whilst it was proper for Mr Abrahams to commence the application based on the medical advice then available to him, that advice has changed. An application which was properly made can become vexatious as a result of changed circumstances: Re Williams and Australian Electoral Commission (1995) 38 ALD 366.' 14 The decision ultimately made was recorded as follows: 'Pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 the Tribunal was satisfied that the application for review of Comcare's decision made 6 September 2004 was vexatious and therefore dismissed the application.' 15 Section 42B of the Act permits the Tribunal to dismiss applications if the Tribunal is satisfied that they are frivolous or vexatious. 16 It seems to me that while, as a matter of generality, the principles stated by the Senior Member are correct, they have been, with respect, misapplied. The maker of the reviewable decision had the same powers in relation to the decision to be made as the original decision-maker, as had the Tribunal. There is certainly an orderly process of administration contemplated by the Act, and it includes, importantly, a requirement that a person may not claim for compensation unless he or she has given : 'notice in writing of the injury … to the relevant authority ... as soon as practicable after the employee becomes aware of the injury' per s 53(1)(a). 17 There is no form of notice of injury legally prescribed. What is a 'notice of injury' complying with s 53 is, as Whitlam J noted in Frosch v Comcare [2004] FCA 1642 at [8], a matter of law. 18 The original decision-maker might conceivably have had many powers, the exercise of which may have been prompted by what he or she knew of the applicant's claim, without those powers being powers or discretions relevant to the exercise of the decision to be made. However, it seems to me that the Tribunal Member did not adequately appreciate or apply the following legal propositions, which I think are correct: 1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice. 2. In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met. 3. The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given. 4. Those powers would further extend to 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. 5. There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount. 19 While no legal criticism can be made of the Tribunal for declining to accept counsel's invitation to reconsider the matter entirely, since something new in 2002 was being propounded as the injury, it seems to me to have been over-technical, and to have been a legally impermissible mode of interpretation, to hold the applicant irretrievably to the use of what was plainly the then medical diagnosis which he had received. 20 The claim form indicates that the diagnosis was right carpal tunnel syndrome. In the 'Report of injury or disease' (which apparently accompanied the claim for compensation), where the applicant answered the question: 'What injury/disease did you sustain? (Nature of injury):', were the words: 'Right Carpal Tunnel Syndrome'. In the context, it is clear that he was simply adopting the then medical diagnosis of his injury. It was nevertheless entirely clear that he was complaining in fact of pain, swelling and inflammation in the right hand and wrist associated with decreased ability to lift and move objects with his right hand and decreasing strength in the hand. 21 Nothing is more common than that medical diagnoses change and evolve, or are or become various. In my opinion, to hold that the applicant was irretrievably asserting that he had a right carpal tunnel syndrome as the injury to his hand is to take an over-literal view of a document that, as I have indicated, should be beneficially, broadly and practically interpreted. 22 As the applicant's counsel was at pains to say, and not shortly, there was abundant medical information to support a claim that would include, or could include, the proposition that he had suffered some further compensable injury in the period assigned in the notice of injury. He was, as counsel submitted, at least claiming a wrist injury occasioned in that period which had had consequences for medical expense and/or incapacity for him. 23 It would have been open to the Tribunal to treat what counsel was saying as an informal application to amend the notice of injury, if need be, to allege an injury more broadly designated than as 'right carpal tunnel syndrome', or to change it from that designation, provided that the same symptoms, disability and timeframe were still being asserted. The Tribunal Member certainly had jurisdiction to consider such a claim, and it was legally erroneous to say that he had no jurisdiction further to embark on the matter. 24 Second, there was at least a respectable argument for the point of view which I have upheld, and it was mistaken to think that it was so devoid of merit as to be able to be labelled vexatious. It is only when there is no reasonable prospect at all of success that a legal proceeding can properly be so termed. 25 In the result, the appeal must be upheld and the matter remitted to the Tribunal further to consider the matter according to law and in accordance with these reasons. It will still be for the Tribunal to decide whether what has been sought to be litigated is in truth a claim for injury, broadly understood, to the right wrist, occurring in the limited time frame assigned to it in the notice of injury, in which case a proper exercise of the powers of the first instance decision-maker might well be to enable any material that is sought to be put on that subject to be put. 26 If, however, it should emerge that in reality it is the injury formerly accepted by Comcare to have been sustained, and the sequelae of the original injury, and not what may have occurred at work in 2002, then it might well be a legally proper understanding of the powers of the first instance decision-maker to decline to deal with those claims in the vehicle here presented. Other means of having such a claim considered, or of having even a broader claim, basing injury, for example, on all keyboard activity by the applicant in his employment with the Commonwealth, exist. 27 So far as the costs of these proceedings are concerned, while the proceedings may or may not have any practical result for the applicant, and one can but hope they might, the fact is that the applicant has succeeded in his challenge to the lawfulness of the Tribunal's decision. Although in a practical sense there is a good deal to be said for the concerns felt by the respondent, there is inadequate reason to depart from the usual rule. The respondent is to pay the applicant's costs of the proceedings. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Solicitor for the Respondent: Dibbs Abbott Stillman