Judicial determination - Application to strike out Notice of Dispute - Whether reviewable decision for purposes of the Act Injury 1990 - Worker attempted to reactive matter after later surgery - Worker obtained information through the Freedom of Information Act - Basis of Notice of Dispute - `Decision' - Application allowed - Ss.38(5), 42(B), 43, 53(1), 89(1)(a), 89A Workers Rehabilitation and Compensation Act, 1986.

This is an application made by the respondent the WorkCover Corporation (`the Corporation') through its agent G.I.O. Workers Compensation (S.A.) Pty. Ltd. (`G.I.O.') pursuant to Rule 10(1)(e) of the Workers Compensation Tribunal Rules (`the Rules') wherein it seeks an order striking out a notice of dispute filed by Bronwyn Joy Langley (`the worker') filed by her in this Tribunal on 4 August 1997.

The notice of dispute relevantly provides as follows:-

`On 25/2/97 I had my claim re-opened and accepted. As my injury occurred 7/11/90 and I have not received any income maintenance, to date, I do not know when my claim was closed, for it to be re-opened. Also I do not know why I have not received income maintenance payments for the past seven years, as per the Act. I am now wishing for my income maintenance payment to be issued and the past income maintenance be paid with interest as per the Act.'

Simply stated, the Corporation maintains that no reviewable decision, as that term is to be properly understood by reference to the Workers Rehabilitation and Compensation Act 1986 (`the Act'), was made on that day such that the notice of dispute is incompetent.

I take the following background from the submissions that were put to me by Mr. Walsh, counsel for the Corporation, and by reference to the book of documents that was filed. None of the submissions that were put to me by the worker suggest that these matters are in dispute.

The worker was employed by Menzies International (`the employer') and by Notice of Disability dated 26 November 1990 she alleged that she sustained an injury to her right shoulder during the course of her employment with the employer on 7 November 1990. The claim was accepted by the Corporation and the worker came to be in receipt of weekly payments of income maintenance for a short period of time ending on or about 11 January 1991.

There does not appear to have been any further contact between the worker and the Corporation until about June 1996, when solicitors apparently acting for her, corresponded to the Corporation and made a claim for benefits on her behalf as a consequence of surgery recently undertaken by her, to her shoulders.

Subsequently there were requests for details of payments and the like, the provision of medical reports and a request for a lump sum payment pursuant to Section 43 of the Act.

Presumably in response to these matters, the case manager at G.I.O. issued an instruction on 25 February 1996 for the matter to be `re-opened' and for a firm of assessors to carry out investigations in respect of the claim.

The worker subsequently made an application pursuant to the Freedom of Information Act 1991, as a result of which she obtained details of that instruction of the 25 of February 1996, which in turn forms the basis of her notice of dispute.

Section 89A defines those decisions that are reviewable as follows:-

(a) A decision on a claim for compensation including-

(ii) a decision on a claim by the Tribunal, made in the exercise of the Tribunal special jurisdiction to expedite decisions on claims (2);

(b) a decision about the nature of rehabilitation services provided, or to be provided for a worker (3);

(c) a decision to vary, suspend or discontinue weekly payments;

(d) a decision on an application by an employer to have weekly payments payable to a worker employed by, or formally employed by, the employer reviewed;

(e) a decision to disallow or reduce a charge for a medical service (unless the decision merely brings the charge into conformity with a rate of charge prescribed by regulation).

(2) However, a decision is not reviewable if declared not to be reviewable by or under this Act.

(1) See Section 53(7) and (70).

(2) See Section 97B(3)(b).

(3) Section 28B also provides for the review of a rehabilitation and return to work plan.'

The Corporation submits that the purported decision does not fall within any of these categories. It submits that where Section 89(1)(a) talks of `a decision on a claim for compensation' it refers to a decision that affects the rights and liabilities of relevant parties and moreover, that it does not mean a decision that can loosely be said to concern a claim for compensation.

The worker contends that that expression means what it apparently says, and that is, that any decision made about a claim for compensation is reviewable for the purposes of the Act including, in the context of this case, a decision to re-open a file concerning a claim for compensation and to carry out further investigations.

The resolution of this application depends upon the meaning of the word `decision' as it appears in Section 89A.

In my respectful view the comments made by Deane J in Director General of Social Services v. Chaney [1980] FCA 87; (1980) 47 F.L.R. 80 are most instructive. He said at p.100 this:-

`The word "decision" is a word of indeterminate meaning. In some contexts, it can refer to the mental processes of making up ones mind. In the context of judicial or administrative proceedings, the word will ordinary refer to an announced or published ruling or adjudication. In such a context, the word "decision" may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word "decision" has the last mentioned meaning, it can refer to any such determinations whether final or intermediate (see, for example, Registrar of Workers Compensation Commission (N.S.W.) v. F.A.I. Insurances Ltd. (1977) 1 N.S.W.L.R. 422) or be limited to referring only to a determination which effectively disposes of the matter in hand (see, for example, Winter v. Winter [1933] N.Z.L.R. 289 at p.295 and Penniel v. Driffil) [1980] W.A.R. 30 at p.32).'

His Honour suggested, that in determining the meaning of the word `decision' in the context of a statutory right of review, in the absence of a statutory definition, guidance had to be sought by reference to the content and scheme of the Act.

If the word `decision' had the meaning contended by the worker, it would lead to some surprising results. It would mean that a decision to conduct certain enquires; to arrange for a particular medical examination; to interview certain witnesses; or similar, could be disputed and moreover that these matters ultimately, in the absence of a conciliated outcome, should be determined by an Arbitration Officer or a Presidential Member of the Tribunal after conducting a full hearing.

Quite aside from the multitude of notices of disputes that this could lead to, it seems to me to be most unlikely, that Parliament would have intended the decision making process of a compensating authority to be subjected to such scrutiny.

To the contrary, the Act seems to contemplate through a number of provisions, a compensating authority having relative autonomy in determining how its decision making process is to be carried out.

For example, pursuant to Section 53(1) in respect of determining the fate of a claim for compensation:-

`The Corporation shall make such investigations and enquiries as it thinks necessary to determine the claim.';

Pursuant to Section 38(5) in reviewing weekly payments, the Corporation can:-

`... require [a] worker to submit to an examination by a recognised medical expert nominated by the Corporation ...';

And, pursuant to Section 42(B) in its determination as to whether or not a weekly payment of income maintenance should be commuted to a lump sum, the Corporation may:-

`.. require [a] worker to furnish such information, relevant to the operation of this Division as the Corporation thinks fit.'

In my view, provisions such as these, strongly militate against the argument that the word `decision' as it appears in Section 89A should be given a wide and liberal interpretation.

It is not necessary for me to decide in this case, the precise extent to which the word `decision' should be limited. It is sufficient for me to find as I do, that it does not include a decision about what further enquires will be undertaken in determining the fate of a claim for compensation, and on the basis of the information as provided to me, that is the only `decision' that is raised in the worker's notice of dispute.

For these reasons, I consider that the Corporation is entitled to the relief that it seeks through this application and I order accordingly.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.