Frosch v Comcare

Federal Court of Australia|2004-12-15|Before: Whitlam J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ('the Tribunal') given on 16 April 2004 in a proceeding under Pt VI of the Safety, Rehabilitation and Compensation Act 1988 ('the Act'). 2 The applicant, Jeannene Heather Frosch ('Mrs Frosch'), was formerly employed in the Commonwealth Superannuation Administration ('ComSuper'). On 5 September 2002 she made a claim for compensation under the Act. That claim was rejected by a delegate of the respondent ('Comcare'). The delegate found that Mrs Frosch had suffered a disease for which she had first sought medical treatment on 23 December 1997 (when her GP, Dr Glenn Rosendahl, had diagnosed her as 'significantly depressed'), but the delegate considered that that disease did not fall within the definition of 'disease' in s 4(1) of the Act because her ailment was not 'contributed to in a material degree' by her employment. That determination was reconsidered at Mrs Frosch's request, but another delegate of Comcare affirmed the original determination because she was also not satisfied that Mrs Frosch's employment materially contributed to her condition. Mrs Frosch then applied to the Tribunal for a review of that decision. 3 Although Mrs Frosch's claim was determined on its substantial merits by Comcare's delegates, the Tribunal disposed of the proceeding before it by reference to 'the preliminary question of whether Mrs Frosch had satisfied the notice requirement in section 53'. In order to answer that question, the Tribunal identified two issues. This appeal concerns the first of those issues, which the Tribunal formulated in the form of a question as 'did Dr Rosendahl's certificate of 8 January 1998 constitute notice for the purposes of section 53'. 4 Section 53(1) of the Act provides: 'This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

(a) as soon as practicable after the employee becomes aware of the injury; or

(b) if the employee dies without having become so aware or before it is practicable to serve such a notice - as soon as practicable after the employee's death.'

5 The Tribunal dealt with the question it posed for itself as follows: 'Was Dr Rosendahl's Certificate a Notice

Dr Rosendahl provided the following certificate on 8 January 1998

"January 8 1998 Mr Bob Fowler ComSuper PO Box 22 Belconnen 2616

Mrs Jeannene Frosch has been to see me several times about stress suffered by her at work. She finds there is a less than congenial circumstance in her workplace at present and she considers that false statements have been made about her by others in the workplace.

The matter came to a head on the 23/12/97, when she attended my office in considerable distress.

She has again attended my office today saying that she has only been back to the workplace to clean out her room, and that event precipitated dry retching.

I assess her as significantly depressed and I am prescribing an antidepressant for her.

At this time she is not wishing to claim compensation (although this avenue is open to her), and is content to take leave as ordinary sick leave for which she has a substantial entitlement. I am in agreement with this decision of hers.

On account of stress in the workplace, I consider she is unfit for work from 19/12/97 to 23/1/98 inclusive. I will be reviewing her again prior to that date.

[Counsel for Mrs Frosch] submits this constitutes the relevant written notice for the purposes of section 53. He notes that claimants do not communicate directly with Comcare but through their employing authority acting as an agent. Ms Frosch gave evidence to this effect, which I accept for present purposes. However, I reject the primary submission and agree with Comcare which contests that this amounts to notice for the purposes of section 53.

Looking at the letter there is no suggestion it was sent to ComSuper as an agent for Comcare. It is headed "Certificate". It made absolutely clear that Ms Frosch did not wish to proceed with any compensation matter at that time

"At this time she is not wishing to claim compensation (although this avenue is open to her), and is content to take leave as ordinary sick leave for which she has a substantial entitlement. I am in agreement with this decision of hers."

This intention of Ms Frosch was confirmed in clear terms by her in her oral evidence. If ComSuper had sent the certificate to Comcare it would have been in breach of Ms Frosch's express wishes.

The certificate demonstrates a conscious decision by Ms Frosch not to notify Comcare at that time. In my view it is simply a certificate for sick leave, similar to those at exhibits T5 and T6. I again refer in particular to the heading "Certificate" and to the last paragraph which indicates the period of leave it covered.

I therefore find that Dr Rosendahl's certificate of 8 January 1998 did not constitute written notice for the purposes of section 53 of the Act.'

Having then also decided the second issue against Mrs Frosch, the Tribunal affirmed the decision under review. 6 Counsel for Mrs Frosch submits that the Tribunal erred in holding that Dr Rosendahl's letter did not constitute a notice for the purposes of s 53(1) of the Act. Counsel for Comcare contends that the Tribunal's conclusion on that question is a finding of fact which may not be challenged on appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975. 7 The contention on behalf of Comcare is true in part. Section 53(1) requires a notice to be 'given to the relevant authority'. In this case the 'relevant authority' is Comcare, not ComSuper. It is a question of fact whether Dr Rosendahl's letter was 'given' to Comcare. The fact that his letter is addressed to ComSuper may have attracted passing attention at the Tribunal hearing, but Mrs Frosch obviously discharged any evidential burden in relation to the service of that document. The Tribunal's finding in [14] of its reasons may not be felicitously expressed, but it plainly resolved any dispute on this question in favour of Mrs Frosch. (Section 54 of the Act also requires a claim for compensation to be 'given' to Comcare in a form approved by it. A copy of such a form is included in the appeal papers. What Mrs Frosch said in her evidence about the way in which documents were actually given to Comcare is also consistent with the printed instructions on that form.) 8 There is no prescribed form of notice for the purposes of s 53 of the Act. The specification required for such a notice is dictated by the words 'injury' and 'employee', which are defined respectively in s 4(1) and s 5 of the Act. In turn, those definitions direct attention to the definition of 'disease' in s 4(1), the extended meaning given by s 6 to 'an injury arising out of or in the course of employment', and the provisions relating to diseases in s 7. It is not necessary to set out the terms of those provisions. Their effect is that the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment. Assessing whether the contents of a document meet those requirements involves, in my opinion, a question of law. 9 Turning then to the contents of Dr Rosendahl's letter, it seems to me that all the information required by s 53 is set out. Mrs Frosch's depression is diagnosed as arising out of 'stress in the workplace' and the precipitating incidents are clearly described. No greater specification is required for the purposes of s 53. Dr Rosendahl's statement that the applicant did not then wish to make a claim for compensation does not render the notice less potent. Contrary to what the Tribunal says, it is, in my view, quite simply not possible to read the letter as conveying the applicant's 'express wishes' that it not be sent to Comcare or as demonstrating 'a conscious decision' on her part not to notify Comcare. Moreover, once it is accepted that the letter was given to Comcare, it does not matter a jot that it is not addressed to ComSuper 'as agent for Comcare'. The Tribunal has evidently misunderstood the drift of Mrs Frosch's evidence (given six years after the event) to the effect that she did not intend at that time to make a claim for compensation. Had the letter been intended simply for use as a sick leave certificate, the attribution of the injury to 'the workplace' would have been otiose. In any event, the effectiveness of a 'notice in writing' under s 53 of the Act does not depend upon the subjective intention of an employee on whose behalf such notice is given. 10 In my view, the Tribunal has misconstrued s 53 of the Act. It appears to have lost sight of the distinction drawn in the Act between giving notice of an injury under s 53 and claiming compensation under s 54. Counsel for Comcare submitted that the Tribunal had not so erred because it said (when dealing with the other issue which is not raised on this appeal) that the 'giving of notice is to be distinguished from a full claim for compensation'. That language is, however, quite equivocal. The use of the expression 'full claim' conveys the unfortunate impression the Tribunal may have thought that a provisional or tentative claim for compensation was necessary when giving notice of a workplace injury. 11 Counsel for Mrs Frosch also submitted that the Tribunal failed to conduct its review in accordance with s 72 of the Act. However, that provision governs the determination of claims by Comcare. Section 72 has no application to proceedings before the Tribunal which are governed by s 33 of the Administrative Appeals Tribunal Act 1975. In any event, a statutory direction to eschew technicality in procedure does not permit statutory requirements, such as those imposed by s 53 of the Act, to be ignored. This ground of appeal must be rejected. 12 Mrs Frosch has, however, succeeded on the question of law relating to the requirements of s 53. The decision of the Tribunal will be set aside and the case remitted to be heard and decided again. Comcare must pay Mrs Frosch's costs of the appeal. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate: Dated: 15 December 2004 Counsel for the applicant: Allan Anforth

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