CONSIDERATION
91 In my view the Tribunal expressed its satisfaction (at [265] and [266]) that Mr Ellison had suffered the following two "injuries" as defined under the SRC Act, each of which had the necessary connection with employment so as to entitle him to compensation. It said:
(a) (at [265]) that he suffered an aggravation of the Underlying Degenerative Disease (being "aggravation of degenerative spondylosis, disc degeneration and canal stenosis at L4/5 and L5/S1 vertebra and facet joints") in the 2009 Workplace Incident, which is an "aggravation" of an "ailment" as those terms are defined in s 4(1) of the SRC Act and which falls within the definition of "disease" in s 5B(1)(b)); but the effects of that injury had ceased by 11 January 2018. Here, the Tribunal made a finding regarding that "injury", its connection to Mr Ellison's employment and the duration of its effects; and
(b) (at [266]) that on and from 11 January 2018 he continued to suffer from the effects of the Underlying Degenerative Disease (being "degenerative spondylosis, disc degeneration and canal stenosis at L4/5 and L5/S1 vertebra and facet joints"), which had existed prior to the 2009 Workplace Incident and was contributed to, to a significant degree, by the "extremely physically demanding general nature and conditions" of Mr Ellison's work as a Marine Tactical Officer over the years 2002 to 2009 (thus being a "disease" under s 5B(1) of the SRC Act and an "injury" under s 5A(1)(a)). Here, the Tribunal made a "non-binding observation following a review of the evidence" in which it expressed satisfaction as to the existence of that "injury", its connection to Mr Ellison's employment and the duration of its effects. This may or may not be a "finding" but the Tribunal's satisfaction is plain.
92 The Tribunal said (at [279]-[280]) that Mr Ellison's impairment from the Underlying Degenerative Disease allowed him to engage in some activities but he was no longer fit for work at the same level as his pre-injury duties; and he was no longer fit to work as a Marine Tactical Officer for Customs and had not done so since 2015.
93 Although the Tribunal was so satisfied, it did not go on to decide whether Mr Ellison was entitled to compensation in relation to the Underlying Degenerative Disease. It is plain from the Tribunal's reasons at [300]-[301] that it did not do so because it considered that Mr Ellison's claim for compensation was a claim for a specific injury resulting from the 2009 Workplace Incident; and the claim did not extend to a claim in respect of the Underlying Degenerative Disease arising from his work with Customs from 2002 to 2009. While the Tribunal was satisfied (at [305]) that the Underlying Degenerative Disease was an "injury" as defined by the SRC Act which continued to exist from 11 January 2018 to the date of the Tribunal's decision, in the Tribunal's view Mr Ellison had not made a claim under s 54 of the SRC Act for such an injury. On that basis the Tribunal concluded that it did not have jurisdiction to decide any such claim.
94 In my view the Tribunal fell into error in concluding that it had no jurisdiction to determine whether Mr Ellison was entitled to compensation for (what the Tribunal described as) the Underlying Degenerative Disease which was contributed to, to a significant degree, by his employment with Customs over a seven year period.
95 That is so, first, because of the scope of the Tribunal's powers in undertaking a review of the reviewable decision under the SRC Act, being the reconsideration decision dated 6 April 2018.
96 Section 61(1A) of the SRC Act provides that a determining authority is to "determine each claim for compensation under section 14 within the period prescribed by the regulations". Section 62 provides for the reconsideration of such a determination by the determining authority. Section 64 provides for the review of such a reconsideration decision, being a "reviewable decision", by the Tribunal. Section 60 defines a "reviewable decision" as one made under s 62.
97 The SRC Act thereby establishes a three tiered decision-making process. In Lees v Comcare [1999] FCA 753; 56 ALD 84 at [32] the Full Court (Wilcox, Branson and Tamberlin JJ) said:
Part VI of the Act is headed "Reconsideration and Review of Determinations". It establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision - but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination.
98 Section 43(1) of the AAT Act provides:
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 and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
(Emphasis added.)
99 In relation to the powers and discretions that may be exercised by the Tribunal, the Full Court in Lees said (at [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 [Tribunal] under s 43(1) of the AAT Act 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.
(Emphasis added.)
100 As Flick J noted in Muir (at [13]) a recurring issue before the Court:
…is the extent to which the description of an injury may later confine the jurisdiction entrusted to the Tribunal for review. Not surprisingly, some flexibility in the formulation of a claim has been permitted. Frequently, many claims for compensation have been drafted by claimants without the benefit of legal assistance, and in many cases a medical condition may change and evolve over time.
101 In Hannaford at [57] the Full Court affirmed the decision in Lees. Conti J, with whom Heerey and Dowsett JJ agreed, explained as follows:
…[u]pon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I focused attention in these reasons [(relevantly, determinations under ss 14, 16, 19, 24 and 27 and reconsideration under s 62)], that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker…made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence 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. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) '[s]ubject to this Part…' are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
(Emphasis added.)
102 Hannaford is authority for the proposition that the SRC Act provides for "progressive and evolving decision-making" through an initial determination by the determining authority (in the present case, Comcare), reconsideration of that initial determination by the determining authority, and review of the reconsideration decision by the Tribunal. At each stage, the relevant decision-maker is required to take into account any changes in events or circumstances that have occurred. That points away from concluding that Mr Ellison should be (to use the words in Abrahams) "irretrievably" held to the initial medical diagnosis he received as to the injury he suffered and notified in the claim form.
103 Second, in reviewing the reconsideration decision, the Tribunal had an inquisitorial role. It was required to determine the substantive issues in the application as raised by the materials before it, and it was not restricted to the case expressly articulated by Mr Ellison. In Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-425, in relation to the nature of the Tribunal's function and the application of s 120 of the Veterans' Entitlements Act 1986 (Cth), Brennan J explained:
Proceedings before the [Tribunal] may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the [Tribunal] is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate,…the [Tribunal] itself may compel the production of further material.
104 Brennan J's observations regarding the Tribunal's inquisitorial role are not limited to the arena of veterans' entitlements. They have been cited with approval in numerous decisions in relation to the SRC Act: see for example, Comcare Australia v O'Dea [1997] FCA 1409 at 7 (Northrop J); Lodkowski v Comcare [1998] FCA 158; 53 ALD 371 at 385 (Goldberg J); Haberfield v Department of Veterans Affairs as Delegate for Comcare [2002] FCA 1579; 121 FCR 233 at [59] (Sackville J); Pelgrave v Comcare Australia [2002] FCA 1025 at [14] (Merkel J); see more generally Australian Postal Corporation v Hughes [2009] FCA 1057; 111 ALD 579 at [47]-[48] (Flick J); Leach v Comcare [2021] FCAFC 134 at [117] (Charlesworth J).
105 In Benjamin v Repatriation Commission [2001] FCA 1879; 70 ALD 622 at [47] the Full Court (Moore, Emmett and Allsop JJ (as his Honour then was)) explained the position as follows:
Proceedings before the Tribunal sometimes give the appearance of being adversarial but, in substance, a review by the Tribunal is inquisitorial. Each of the Commission, the Board and the Tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the Tribunal is one in which the Tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant - Grant v Repatriation Commission [1999] FCA 1629 paragraphs [17]-[18], 57 ALD 1 at 6 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
(Emphasis added.)
106 Applying that approach to the facts of that case, the Full Court said the following (at [48]):
The facts that the claim originally lodged by the Veteran referred only to "PTSD" and that the medical impairment assessment by Dr Dunstan in support of it assessed only the disability of "post traumatic stress disorder" do not preclude the relevant decision-maker, be it the Commission or the Tribunal, from reaching a conclusion that the Veteran suffered from a different disability. Certainly, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration. However, where a finding is made by the decision-maker, for example, that a veteran has contracted a disease, and it would be open to conclude that such a disease may be war caused, it would be incumbent upon the decision-maker to consider that possibility and make a decision concerning it.
(Emphasis added.)
Those remarks are apt in the present case.
107 Third, it can be accepted as Comcare submits, that ss 53 and 54 of the SRC Act impose preconditions upon a decision-maker, including the Tribunal, deciding a claim for compensation.
108 Section 53(1) provides that the SRC Act does not apply in relation to an injury unless the employee has given notice in writing of the injury as soon as practicable after the employee becomes aware of the injury. As outlined above, s 53(3) provides that the requirement is not absolute and in certain circumstances, even where there has been a failure to comply with s 53(1), the notice shall be taken to have been given. In the present case it is uncontentious that Mr Ellison gave written notice of injury as soon as practicable after becoming aware of the injury. The Injury Information Form and the Incident Report said little more than that he felt pain in his lower back during a training exercise on 21 April 2009.
109 Section 54(1) provides that compensation is not payable under the SRC Act unless a written claim is made by or on behalf of the employee using an approved form; substantial compliance with that requirement is sufficient. It is uncontentious that Mr Ellison made a claim for compensation, in which he notified Comcare of a low back injury which he understood he had suffered on 21 April 2009. In the Claim Form he described the injury as "Muscle, soft tissue and disc damage. Musculo ligamentous strain of lower back". It is worth noting that in referring to "disc damage", Mr Ellison did not restrict his claim to a "musculo-ligamentous injury".
110 As Mr Ellison submits, the approved claim form is "less than completely demanding of an unequivocal answer". For example, question 10 asks, "[f]or what injury or illness are you claiming workers compensation?" and question 12 asks, "[w]hen were you injured or when did you first notice you were ill?" (emphasis added). Notwithstanding that each question contains two alternative questions (due to the inclusion of the word, "or"), each of them only demands a single, undifferentiated response. Thus, there is some ambiguity in Mr Ellison's answer to question 12 as to whether "21/4/2009" at "0900 am" is the claimed date and time of the injury or the claimed date and time when Mr Ellison first noticed he was injured. Even so, having regard to all the materials it is clear enough that in lodging the Claim Form Mr Ellison claimed that he suffered an injury to his low back in a workplace incident on 21 April 2009.
111 Comcare's argument turns on the nature of the injury and its aetiology being fixed by how Mr Ellison described it in the Claim Form, notwithstanding that in doing so Mr Ellison merely stated his understanding, based on the medical advice he had received at that early point, about the nature of the low back injury he had suffered and its cause, apparently doing so without the benefit of legal advice. Further, Comcare makes that argument notwithstanding that medical reports before it in the reconsideration application raised the claim that the injury suffered was: (a) more than a mere lumbar sprain; and (b) was related to a specific incident on 21 April 2009 and also to his work with Customs over the seven years from 2002 to 2009.
112 In relation to whether Mr Ellison's injury was just a musculo-ligamentous injury, or "lumbar sprain" as determined by Comcare, the medical reports before Comcare in the reconsideration application included the following:
(a) a report by Nicole Kee, a physiotherapist, dated 5 June 2012 which stated:
Clinically, David has been experiencing low back pain and bilateral leg pain (left greater than right) since 21 April 2009. His back and leg pain symptoms increased last year and more recently reports left neck and shoulder pain.
MRI lumbar spine completed on 19 May 2011 shows a variety of abnormalities including tear and dorsal bulge of L4/5 disc with contact of the right L5 nerve and a dorsal left eccentric caudal protrusion L5/S1 disc indenting on left S1 nerve root.
(Emphasis added.)
At that early point the radiological evidence indicated some disc abnormalities rather than just a musculo-ligamentous injury.
(b) Dr Sewell's report dated 17 March 2014, which provided the following answers to questions posed by Comcare:
(i) What is the specific diagnosis of the condition which Mr Ellison currently suffers?
Mr Ellison currently suffers from chronic lumbar spine degenerative disease with disc bulging and compression of nerve roots in his back causing intermittent sciatica. His main symptoms relate to lumbar muscle spasm as a result of either facet joint degeneration inflammation or a sub acute disc prolapse.
(Emphasis added.)
(ii) What do you consider to be the cause of Mr Ellison's current symptoms and the need for further treatment?
Mr Ellison's current symptoms is lumbar spin [sic] degenerative disease with disc prolapse. I believe there is no further treatment needed apart from gentle exercise. Avoidance of exacerbating conditions such as heavy lifting, bending or twisting and physiotherapy.
(Emphasis added.)
(iii) Is the injury you are treating Mr Ellison for now still the same injury incurred on 21 April 2009, an aggravation of that injury, or a new incident? If a new injury, would you please explain the cause? If an aggravation, has the injury ever resolved?
The injury we are treating Mr Ellison for now is still the same injury that occurred on 21 April 2009. It is an aggravation of that injury.
The injury has never completely resolved, however, the situation, severity, [sic] at times allows Mr Ellison to complete the duties required of him as a customs officer to its full extent and at other times being aggravated by heavy lifting, bending or twisting, increased pain and stiffness. Treatment as described above.
(c) the reports by Dr Bates dated 8 October and 22 October 2014 in relation to the L3/L4/L5 medial branch block procedures he performed, and a report by Dr Mitchell, another treating pain specialist, dated 26 November 2014 in relation to the L3/L4/L5 radiofrequency neurotomy he performed. Comcare accepted liability for each of the procedures and it goes without saying that such procedures would not be required for a mere lumbar sprain;
(d) Dr Mills' report dated 30 December 2015 in which he opined that:
…[Mr Ellison] has two level discal degeneration shown on the CT scan and more recently on MR scan…He has had facet joint progressive degenerative disease [in] at least two levels, L4/5 and L5/S1 with repeated injections and denervations which have failed to provide long-term improvement. Diagnosis are thus L4/5 and L5/S1 discal degeneration and L4/5 and L5/S1 particularly left-sided currently facet joint degeneration without neurologic loss.
Assessment
In terms of consistency this is consistent with the stated cause with a torsion injury to the lumbar spine producing discal injury and producing facet joint ongoing problems…
There are no previous employers involved. He has undergone a battery of investigations thus far, all of which have served to confirm his slowly progressive degenerative disease of the two lower levels of his lumbar spine.
(Emphasis added.)
The "stated cause" must be a reference to the 2009 Workplace Incident which was earlier summarised by Dr Mills under the sub-heading, "Mechanism of alleged injury/ sequence of events". Dr Mills also noted that Comcare had provided him with Dr Carey's reports dated 26 August 2015 and 22 September 2015 which said that Mr Ellison was suffering from degenerative changes in his lumbar spine.
In answer to specific questions regarding Mr Ellison's lumbar spine injury and whether it was employment-related, Dr Mills said the following:
Diagnosis and prognosis
…
2. From what specific condition does Mr Ellison currently suffer? Please provide a short description of the condition, including its known origins and progression…
See above. He has two-level discal disease and two-level facet disease mostly on the left hand side but the right hand side is also mildly degenerate at present in terms of facet joints.
…
Employment Relationship
1. Is/was the condition suffered by Mr Ellison related to:
e) his employment as a [Marine Tactical Officer]
Yes.
f) factors unrelated to work
No.
g) a pre-existing, congenital, constitutional or under-lying condition
No.
h) the natural progression of an underlying condition
No.
i) underlying degeneration as part of the natural ageing process, or
No.
j) other health issues.
No.
Thus, a specialist engaged by Comcare opined that Mr Ellison suffered from "facet joint progressive degenerative disease" in his lumbar spine at L4/5 and L5/S1, which condition was related to his employment with Customs; was consistent with the 2009 Workplace Incident; and was not related to factors distinct from his work such as degeneration as part of the natural ageing process, or the natural progression of an underlying condition, a pre-existing, congenital, constitutional or underlying condition or another underlying health issue; and
(e) a Rehab Management report dated 30 November 2015 which said that Mr Ellison had not worked since May 2015, and that he had been "advised that he sustained severe degeneration in his lumbar spine since the last medical review in 2011". A Rehab Management Rehabilitation Program Alteration Report dated 8 June 2016 changed the description of the "nature of injury" from "lumbar sprain" (which appeared in the previous rehabilitation program report dated 29 February 2016) to "degenerative disease of the lumbar spine".
113 As is apparent, some of those medical reports also expressed opinions regarding the aetiology of the injury. Dr Sewell's March 2014 report said that Mr Ellison's "chronic lumbar spine degenerative disease with disc bulging and compression of nerve roots in his back" was still the same injury that occurred on 21 April 2009. Dr Mills' December 2015 report said that Mr Ellison's "facet joint progressive degenerative disease" in his lumbar spine at L4/5 and L5/S1 was consistent with the "torsion injury" he suffered on 21 April 2009. Dr Sewell's December 2017 report (the relevant parts of which are set out at [37] above]) stated that Mr Ellison suffered from lumbar spinal degeneration related:
(a) to the 2009 Workplace Incident; and
(b) to the physically demanding nature of his work with Customs from 2002 to 2009.
114 In the reconsideration decision the review officer noted Dr Sewell's opinion, yet in deciding to affirm the determination to cease compensation, as previously noted, she said the following:
The issue to decide in this reconsideration is whether you are entitled to compensation for medical expenses and incapacity payments in respect of lumbar sprain (unspecified). I note that you dispute the labelling of your accepted condition, however, Comcare have continued to pay compensation for your injury since 2009, irrespective of the labelling of your accepted condition, and, consequently this review is based on the medical evidence at hand.
To be entitled to compensation for medical treatment and incapacity payments under sections 16 and 19 of the SRC Act, it must be satisfied that the requirement for medical treatment and incapacity payments are as a result of the injury sustained on 21 April 2009.
115 Having regard to the claim raised by the materials before Comcare in the reconsideration application, it was erroneous for the review officer to restrict her consideration to whether Mr Ellison was entitled to compensation in respect of a "lumbar sprain". The materials before it clearly raised a claim that Mr Ellison suffered from work-related lumbar spinal degeneration. It was also erroneous for Comcare to restrict its consideration to whether Mr Ellison was entitled to compensation in respect of an injury sustained on 21 April 2009. The materials before it clearly raised a claim that Mr Ellison suffered from lumbar spinal degeneration to which his employment with Customs between 2002 and 2009 had contributed, to a significant degree.
116 The SRC Act allows for progressive and evolving decision-making by the relevant decision-maker, which provides for adjustment or change in the light of events and circumstances which may subsequently happen: Hannaford at [57]. In the reconsideration application, Comcare had an inquisitorial role and was obliged to consider and decide the claims raised by the materials.
117 The review officer, however, decided the reconsideration application by reference only to the claim it identified, and it affirmed the determination dated 11 January 2018 to cease liability for compensation on and from that date on the basis that Mr Ellison no longer suffered any effects from the "lumbar sprain" and that there was "no objective evidence that a specific work injury in the past is the ongoing cause of [Mr Ellison's] current back condition". As previously set out at [24] above, the review officer decided as follows:
Given the chronological timeline and the passage of time since your injury in April 2009, and based on the specialist opinion of Dr Haynes, there is no objective evidence that a specific work injury in the past is the ongoing cause of your current back condition…
Dr Haynes opined that your current presentation was due to the degenerative changes at L4/5 and L5/S1 which are consistent with the ageing process. Dr Haynes opined that any lumbar sprain [sustained in April 2009] had been superseded by degenerative changes in your lumbar spine.
…Dr Haynes further opined that any incapacity to work was as a result of your degenerative back symptoms, rather than your employment injury in April 2009.
…
The medical evidence indicates that the requirement for medical treatment and incapacity is related to your underlying degenerative condition and factors outside your employment (such as the possible non-compensable aggravation in 2013, alluded to in the Rehabilitation report dated 14 December 2015) rather than being due to the circumstances that gave rise to your compensable condition of lumbar sprain (unspecified) on 21 April 2009.
118 In reviewing the reconsideration decision, the Tribunal stood in the shoes of Comcare. Subject to the preconditions in ss 53 and 54 of the SRC Act it was obliged to review the decision on the claims before Comcare in the reconsideration application. It had an inquisitorial role and was obliged not to limit its decision to the case expressly articulated by an applicant: Bushell at 424-425 and Benjamin at [47].
119 The Tribunal recognised that the materials before it raised a claim that Mr Ellison was entitled to compensation for the Underlying Degenerative Disease which was contributed to, to a significant degree, by his work for Customs between 2002 and 2009. Not only did the Tribunal recognise that the medical evidence raised that broader claim, at [266] it expressed its satisfaction as to the existence of that injury, its connection to Mr Ellison's employment, and its continuing effects on and from 11 January 2018. At [279]-[280] it expressed its satisfaction that Mr Ellison was incapacitated for work as a Marine Tactical Officer by reason of this injury from 11 January 2018 to the date of the Tribunal's decision.
120 Given that broader claim was before the review officer in the reconsideration application, the Tribunal had jurisdiction to decide it. Its jurisdiction was not limited only to the injury notified in the Claim Form.
121 Fourth, Comcare seeks to rely on the decisions in Szabo, Szabo FFC and Muir in support of its argument that the claim before the Tribunal did not extend to a claim that Mr Ellison was entitled to compensation for his Underlying Degenerative Disease. However, the question as to whether a claim is raised by the materials in the reconsideration application of a case, and whether a claim is properly before the Tribunal such that it has jurisdiction to decide it, is fact- sensitive. Having regard to that, while some assistance may be derived from previous judicial examinations of similar problems (Scott v Copenhagen Reinsurance Co (UK) Ltd [2003] EWCA Civ 688; 2 All ER (Comm) 190 at [33] (Rix LJ)), there is a danger in extracting judicial statements based on the facts of one case and treating them as binding legal principles in another case with different facts.
122 As Windeyer J (with whom McTiernan J agreed) explained in Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503:
…[D]ecisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from the context and treated as propositions of universal application…
Recently, in Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98 at [29] the Full Court (Logan, Charlesworth and Wheelahan JJ) described the remarks in Teubner as being of "enduring relevance".
123 The facts in Szabo and Muir are readily distinguishable from the facts in the present case. In summary, the applicant in Szabo suffered an injury to his lower back in 1985 while employed as a meat inspector by the Victorian Department of Agriculture and Rural Affairs (the 1985 injury). In July 1986, he commenced a common law claim for damages against the State of Victoria in relation to the 1985 injury. In 1988, the applicant commenced work as a meat inspector with a Commonwealth employer. On 20 June 1989 the applicant suffered another injury to his lower back (the 1989 injury) and made a compensation claim under the SRC Act for that injury. The accident report submitted on 21 June 1989 in respect of the 1989 injury said that the injury had been suffered on a specific date (20 June 1989) at a specific time, but also referred to "constant lifting & bending whilst carrying out inspection duties on mutton chain". In August 1989, Comcare accepted liability for the 1989 injury which it described as "aggravation of pre-existing lower back degenerative disease". Subsequently Comcare made various determinations allowing continuing compensation for the 1989 injury under the SRC Act.
124 In 1992 the applicant and the State of Victoria settled the common law claim for $115,000. Then in June 2008 Comcare determined that the applicant no longer suffered from the effects of the 1989 injury, and that he was no longer eligible for compensation pursuant to sections 16 and 29 of the SRC Act. Comcare affirmed that determination on reconsideration and the applicant then applied to the Tribunal. Before the Tribunal the applicant argued that his employers had accepted four accident reports that he had lodged after the 1989 injury, and, at times, he made claims for compensation on the basis of the "nature and conditions" of his work: Szabo v Comcare [2011] AATA 114 at [27] (Szabo AAT). He argued that given the effluxion of time and the dearth of Comcare documents available for consideration, it was not possible to reconstruct what discussions he had with his employers and Comcare in relation to the accident reports and the claims he made at various times; and he maintained that Comcare had treated his claim as a "nature and conditions claim": Szabo AAT at [30].
125 Comcare contended that it had not had the opportunity of reviewing a claim based on the nature and conditions of employment and that therefore the Tribunal had no jurisdiction to entertain such a claim: Szabo AAT at [32]. The Tribunal concluded that Comcare had not been provided with the necessary opportunity afforded to it under the legislation to consider and determine a nature and conditions claim; it found that the Tribunal had no jurisdiction to make a decision in relation to the nature and conditions claim: Szabo AAT at [41]. On application to this Court, Stone J upheld the Tribunal's decision, and on appeal the Full Court found no error in her Honour's approach.
126 In contrast to that, in the present case it is plain that Comcare was on notice of a claim that Mr Ellison was entitled to compensation from 11 January 2018 on the basis of his Underlying Degenerative Disease which was contributed to by the physically demanding nature of his work for Customs between 2002 and 2009. It had ample opportunity to investigate that claim as part of the reconsideration application, and it also had ample opportunity to investigate that claim in the application before the Tribunal. Indeed, in the application before the Tribunal, Comcare relied on Dr Haynes' and Mr Kelman's opinions that the degenerative changes in Mr Ellison's lumbar spine were age-related rather than employment-related. That is different to the position in Szabo where the Tribunal found that the claim made did not include a "nature and conditions" claim and Comcare did not have a proper opportunity to review such a claim, which finding was upheld on appeal at first instance and before the Full Court.
127 Another difference between the present case and Szabo is that the question of whether Comcare had been given notice of the nature and conditions claim was of critical importance to the claim's prospects of success. In Szabo, if the applicant's claim was limited to the incident which caused the 1989 injury when he was a Commonwealth employee (which was an aggravation of the 1985 injury he sustained with a different employer), the claim could not succeed because the Tribunal found that the applicant had recovered from that aggravation, and had already been compensated for his pre-existing injury through the 1992 settlement with the State of Victoria. The Tribunal held (at [96]):
I am satisfied from the medical evidence that there is no present liability from 13 June 2008 for compensation, and that the Applicant does not continue to suffer from the effects of his aggravation of pre-existing lower back degenerative disease injury sustained on 20 June 1989. I accept that the back pain he suffers is as a result of the significant injury he suffered on 24 September 1985 for which he has been compensated.
On appeal, Stone J said (at [34]) that treating the further accident reports as extending the claim beyond that described in the original notice of injury would be inconsistent with the findings of fact made by the Tribunal.
128 That stands in contrast with the present case in which the materials before Comcare in the reconsideration application raised a claim that Mr Ellison was entitled to compensation for the Underlying Degenerative Disease which was contributed to by his employment with the same employer over seven years, as well as a claim for compensation on the basis of an injury suffered in the 2009 Workplace Incident. Extending the claim beyond that described in the original notice of injury does not give rise to any inconsistencies with factual findings made by the Tribunal; indeed, permitting that course would be consistent with the Tribunal's view of the evidence (at [266]).
129 Another difference is that, in Szabo the applicant did not argue that the "injury" for which he claimed an entitlement to compensation had a dual character, in that it was both a disease (being an "ailment" or "an aggravation of such an ailment") under s 5B(1) of the SRC Act, as well as an "injury (other than a disease)" under s 5A. The applicant's case before the Tribunal, and on appeal, focussed on whether he had made a claim in which he asserted that he had suffered an injury due to the nature and conditions of his work in the period from October 1988 to March 1990. The applicant in Szabo also received legal advice before completing his claim form. That may be contrasted with the present case where Mr Ellison's claim has a dual character; in the Claim Form he claimed to have suffered an injury of the kind defined in s 5A(1)(b), but the materials before Comcare in the reconsideration application also raised a claim that he suffered a "disease" to which his employment between 2002 and 2009 contributed, to a significant degree, of the kind defined in s 5B(1).
130 The facts in Muir are also distinguishable from those in the present case. Flick J set out the relevant facts at [17]-[27]. In brief summary, in November 2013 the applicant made a claim for compensation under the SRC Act in relation to her employment with the Australian Federal Police (AFP). In the claim form she described the injury as "[w]orsening of anxiety/depression, work place bullying and harassment, severe anxiety, severe depression, severe stress", and said that she was first injured or noticed she was ill on 23 October 2013 at 9am. She lodged an incident report with her claim in which she detailed a number of "significant issues/events" that she said had impacted upon her psychological well-being "over the years". A short time prior to the initial determination of the claim, the applicant provided further information to Comcare in response to material that had been provided by the AFP. In this the applicant said:
My position is that this information [provided by the AFP] is misleading to my Claim; my Claim is for the incident that occurred on 23 October 2013.
The incident report I provided with my claim has historical information that gave a holistic view to the issues I had been dealing with up-to and including the day in question. I provided this information and standby what I have said, however the responses given by the AFP are relevant to historical events and not what happened on Wednesday 23 October 2013.
131 On 20 January 2014, Comcare accepted that the applicant's injury occurred on 23 October 2013, but concluded that the claim fell within the exclusion in s 5A of the SRC Act because it was in relation to a "disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment." In February 2014, the applicant made a request for reconsideration which focussed upon the finding that the date of injury was 23 October 2013 and queried Comcare's reliance on the statements by AFP staff in relation to events prior to 23 October 2013. The request for reconsideration stated:
…[I]f events that happened prior to 23 October are to be used against me then other incidents that add weight to my claim and have contributed to the way I am feeling and the breakdown that I have suffered, should also be taken into account. I would also dispute a lot of what they have said in their statements.
132 On reconsideration, Comcare affirmed the initial determination and the applicant then sought review by the Tribunal. In deciding to uphold the applicant's claim, the Tribunal concluded that while Abrahams allowed it to reformulate the terms of the claim that had been made, it was unnecessary to do so because the applicant had always claimed that she sustained a mental injury arising out of or in the course of her employment in the period 2010-2012: Re Muir and Comcare [2015] AATA 612 at [38] (Humphries DP). The Tribunal found that unlike the event which occurred on 23 October 2013, the events in 2010-2012 which contributed to the applicant's claimed condition did not fall under the exclusion in s 5A (at [13]).
133 Comcare appealed the Tribunal's decision to this Court. In setting aside the Tribunal's decision, Flick J said (at [25]) that the Tribunal was acutely aware of the prospect that if the applicant's psychological injury was suffered on 23 October 2013, any claim to compensation would have been precluded by s 5A of the SRC Act. In this way, the date of the applicant's injury was critical to the claim's prospects of success, whereas in the present case nothing of substance turns on a finding as to whether Mr Ellison suffered injury in a specific workplace incident in 2009 or through physically demanding work between 2002 and 2009.
134 In Muir, Flick J found (at [28]-[29]) that the October 2013 injury was the subject of the claim as made in November 2013, the initial determination in January 2014, the request for reconsideration in February 2014, and the reconsideration decision in April 2014. It was against that factual backdrop that his Honour said that a claim confined to an injury suffered in October 2013 cannot be transformed into a claim for an injury suffered in 2010-2012 (at [37]). That stands in contrast to the present case in which the materials before Comcare in the reconsideration application raised a claim on the basis of an injury suffered in a specific incident in 2009 and on the basis of the Underlying Degenerative Disease which was contributed to by his work for Customs between 2002 and 2009.
135 Fifth, there is nothing in Szabo, Szabo FFC, Muir or the other cases to which Comcare referred which express any disagreement with the principles explained in Lees, Hannaford or Abrahams. Counsel for Comcare made no suggestion that those decisions were no longer good law.
136 In Abrahams the injury notified by the applicant in the prescribed claim form was "right carpal tunnel syndrome". Then, for the first time, before the Tribunal, counsel for the applicant said that the case would not be pressed on the basis of carpal tunnel syndrome, and would instead be pressed on the basis that the applicant's wrist complaints were "but part of, and subsumed in, broader, ongoing and varying difficulties over virtually the entirety of his right upper limb, the right shoulder and neck, and even headaches": Abrahams at [8]. The Tribunal took the view that the orderly processes of administration of compensation claims would be subverted if it allowed the applicant to recast his application in that way, and decided that the Tribunal did not have jurisdiction to deal with the claim as it was then proposed: Abrahams at [9]-[10].
137 On appeal Madgwick J held that the Tribunal erred in taking that approach. In an explanation that has been cited with approval on numerous occasions (see Muir at [14]-[15]; Sellick v Australian Postal Corporation [2009] FCAFC 146; 113 ALD 58 at [7] (Mansfield and McKerracher JJ); Szabo FFC at [33] (Emmett and Greenwood JJ) and at [50] (Bennett J)), Madgwick J said the following at [16]-[21]:
16. …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.
(Emphasis added.)
138 It is worth noting that in Abrahams the "change" in the injury the subject of the claim was first made before the Tribunal (see Abraham at [6]), whereas in the present case the change in the injury and its cause was first raised at the reconsideration stage. Even in relation to a changed claim that was first raised before the Tribunal, the Court in Abrahams found that the Tribunal erred in deciding that it had no jurisdiction.
139 In Sellick, Buchanan J emphasised that it is appropriate to be cautious before concluding, under the notice of injury requirements in beneficial legislation, that a notice of injury provided by a layperson without the benefit of legal advice, irretrievably sets the boundary of a compensation claim in a jurisdictional sense. I respectfully agree with his Honour's remarks at [23], where he said:
There may be a real question whether the AAT is jurisdictionally confined by the particular description given by an employee of the cause of an otherwise compensable injury. Although it is necessary that an injury, in order to properly found a claim for compensation, arise out of or in the course of employment it may not be necessary, at least in every case, that absolute precision be supplied if it is otherwise clear that a sufficient connection with employment exists. I would not, without further consideration, endorse a suggestion that a claim that a medical condition was based on walking would exclude from consideration, in any jurisdictional sense, the possibility that the true explanation, supported by medical evidence, was that it was caused by lifting…
(Emphasis added.)
140 In Sellick, in a brief concurring judgment, Mansfield and McKerracher JJ agreed with Buchanan J's conclusion that the appeal should be dismissed with costs (at [1]), and by way of an additional comment at [7], their Honours said the following:
There is something to be said for the proposition that the notice of injury initially given by the applicant, namely "pain in the right shoulder" was, by the subsequent presentation of various medical certificates and medical reports, sufficient to have constituted a claim that the pain in his right shoulder flowed either from soft tissue injury in the shoulder, or from aggravation of a degenerative spinal condition, or from chronic sprained interspinous ligament, or from a combination of those conditions: see eg the remarks of Madgwick J in Abrahams v Comcare (2006) 93 ALD 147 at [18] and at [21], and in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [57].
141 Applying the principles set out in the authorities to the circumstances of the present case involves taking into account that:
(a) a broad, generous and practical approach is appropriate in construing a document purporting to be a notice of injury under the SRC Act (Abrahams at [18(1)]);
(b) notice is taken to have been given even if the notice fails to comply with the requirements under s 53(1) where the failure is caused by ignorance, mistake or any other reasonable cause, or where the relevant authority would not be prejudiced if the notice is treated as sufficient: s 53(3);
(c) strict compliance with the requirements of the prescribed claim form under s 54 is not required; substantial compliance is sufficient: s 54(5);
(d) the notice of injury requirements by the legislation are to be construed beneficially for claimants: Abrahams at [18(1)] and Sellick at [23];
(e) medical diagnoses as to the nature and aetiology of an injury commonly evolve over time: Abrahams at [21];
(f) the statutory scheme allows for "progressive and evolving decision-making" in the light of subsequent events and circumstances: Hannaford at [57];
(g) the purpose of requiring notice of injury is so that Comcare is appropriately informed as to "the nature of an injury or ailment and its connection with the employment": Frosch at [8]; and
(h) the purpose of requiring notice and of enabling the decision-maker to have a fair opportunity to properly investigate the claim are paramount considerations when determining whether notice of injury has been given under the SRC Act: Abrahams at [18(5)].
142 Taking those matters into account, in undertaking a review of the reconsideration decision and in exercising its inquisitorial role, I consider the Tribunal had jurisdiction to decide a claim that Mr Ellison was entitled to compensation for the Underlying Degenerative Disease which was contributed to, to a significant degree, by the work he performed for Customs between 2002 and 2009. The Tribunal's approach does not show a broad, generous and practical approach to construing Mr Ellison's notice of injury; nor does it take it account of the fact that medical diagnoses as to the nature and aetiology of Mr Ellison's injury evolved over time, and the statutory scheme allows for progressive decision-making.
143 The paramount consideration is whether Comcare was appropriately informed as to the nature of the claimed injury and its connection with the employment; and whether it was provided a fair opportunity to properly investigate that claim. As I have said, the materials before Comcare in the reconsideration application raised that claim. Comcare was on notice of it and had ample opportunity to properly investigate it. That it had notice of the claim is plain when one considers that, after Comcare gave notice of its intention to cease compensation payments and provided Mr Ellison with an opportunity to provide further medical evidence, Dr Sewell provided his December 2017 report to Comcare. That report expressly informed Comcare of Dr Sewell's opinion that Mr Ellison was incapacitated for work by reason of spinal degeneration in his low back which was related both to the 2009 Workplace Incident and to his employment with Customs from 2002 to 2009. That report was plainly significant to the reconsideration application; and the review officer specifically referred to and briefly summarised it. That broader claim had been before Comcare in the reconsideration application, and the Tribunal had jurisdiction to consider and decide it.
144 Treating the broader claim as being properly before the Tribunal does no harm to the "orderly process of administration contemplated by the Act" (Abrahams at [16]). The orderly process of administration contemplates "progressive and evolving decision-making" in the light of subsequent events and circumstances: Hannaford at [57]. In the present case the subsequent circumstances are that, over time, the medical opinions relating to the nature and aetiology of Mr Ellison's condition evolved. As I have said, Comcare had notice of those changes of medical opinion and had a fair opportunity to properly investigate the claims raised by them. In the circumstances of the present case, it is difficult to see what more Mr Ellison was realistically required to do to allow Comcare a proper opportunity to investigate his claim and for its orderly processing.
145 Mr Ellison was in receipt of compensation payments from Comcare for all his periods of incapacity for work from April 2009 until 11 January 2018. That does not prove that Mr Ellison was legally entitled to such payments, but there was no practical reason for him to make a fresh compensation claim nor to do anything more to notify Comcare of the changed medical opinions as to the nature and aetiology of his injury. He had provided Comcare with medical certificates throughout the period; had authorised Comcare to obtain reports from his treating doctors and Comcare had done so; had attended medical examinations by doctors engaged by Comcare as required; and, most importantly, Comcare had Mr Sewell's December 2017 report and it was on notice of the broader claim. It cannot realistically be said that Mr Ellison completing a fresh claim form, and thus going back to the start of the claims process under the SRC Act, was necessary for the orderly processing of the broader claim.