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[2001] AATA 648
Administrative Appeals Tribunal of Australia
2001-07-13
Original judgment source is linked above.
DECISION AND REASONS FOR DECISION [2001] AATA 648
Decision The Tribunal directs that the application to review the determination made by the respondent on 9 August 2000 be listed for hearing.
Commonwealth Employees' Compensation - determination of claims - "cease liability" determination - whether prevents later claims for compensation under particular heads - refusal of claim for permanent impairment - power of Tribunal on review.
Safety, Rehabilitation and Compensation At 1988 (C'th) - ss.14, 16, 19, 24, 27 and 62.
Denison-Smith and Comcare [2000] AATA 553
Lees v Comcare [1999] FCA 753
Plumb v Comcare [1992] FCA 595; [1992] 39 FCR 236
Sabioni and Comcare [1999] AATA 763
1. On 30 June 1994 the applicant, Mr. Peter Carson, sustained an injury to his back in the course of his employment with the respondent, Telstra Corporation Limited.
2. Mr. Carson made a claim for compensation in respect of this injury on 18 July 1994.
3. That claim for compensation was supported by a medical certificate dated 19 July 1994, certifying Mr. Carson unfit for work from 5 July 1994 until 16 July 1994.
4. On 2 August 1994 Telstra, by determination 83114, determined that:
"(a) In pursuance of the Safety, Rehabilitation and Compensation Act 1988 Telstra Corporation Ltd is liable to pay compensation in respect of the said personal injury.
(b) The abovenamed is entitled to the payment of compensation at the rate of his normal weekly earnings for the following period, 5 July 1994 to 15 July 1994 inclusive.
(c) Compensation in respect of the cost of medical treatment amounting to $1,429.05 in relation to the injury shall be paid."
5. There then followed 7 further determinations, dated 5 and 19 August 1994, 5 September 1994, 6 and 19 October 1994 and 8 and 30 November 1994, all being determinations that the cost of medical treatment in respect of the injury sustained by Mr. Carson be paid.
6. On 3 January 1995, Mr. Carson was required by Telstra to undergo a medical assessment by Dr. W. D. Sturrock, an orthopaedic specialist, on 9 February 1995.
7. Dr. Sturrock reported to Telstra on 13 February 1995 to the effect that Mr. Carson had a degenerative change in his back, that he had an attack of back pain on 30 June 1994, but that the ill effects of that attack had settled down.
8. Acting on the basis of Dr. Sturrock's report, Telstra wrote to Mr. Carson on 21 February 1995 as follows:
"I refer to your claim for compensation in respect of lower back which has recently been reviewed.
On the basis of the medical evidence and facts of this case it appears that liability no longer exists in this matter. A Determination to this effect is attached together with a Notice to Claimant form which advises you of your rights of appeal."
"In pursuance of the provisions of the SRC Act and further to determinations previously made in this matter, I hereby find that liability in respect of this injury ceased on and from 9 February 1995."
10. That determination was accompanied by a document entitled "Statement of Reasons". That statement set out the history of Mr. Carson's claim and his review by Dr. Sturrock and concluded:
"Therefore, based on the available evidence it appears that liability no longer exists in this matter. Therefore, a determination has been issued which ceases liability for lower back injury on and from 9 February 1995 (the date the claimant attended Dr. Sturrock)."
11. Although Mr. Carson was advised, by the "Notice to Claimant" form accompanying the Determination and Statement of Reasons dated 21 February 1995, of his right to request a reconsideration of the determination by way of s.62 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), for reasons relating to his views about his job security, he decided to take no further action.
12. On 31 October 1995, Mr. Carson suffered a further attack of back pain in the course of his employment with Telstra and he submitted a medical certificate certifying him unfit for work from 31 October 1999 to 10 November 1999 together with an application for leave form which stated the type of leave as "Worker's Compensation (Past "Accident") Determination 83114".
13. On 13 January 1996 Telstra responded by letter as follows:
"I refer to your Claim for Compensation in respect of "lower Back" that occurred on 30 June 1994.
The determination dated 21 February 1995 advised you that liability of (sic) your claim had ceased on and from 9 February 1995. You were advised your rights of appeal at that time and I have enclosed a copy for your information.
If the enclosed accounts are for a new incident then please have your supervisor complete an incident report and you will need to complete a claim form for this incident and then forward to this office.
If you have any questions in regards to this then please do not hesitate to call."
14. On 12 January 1996, Mr. Carson requested a reconsideration of the determination on his claim number 83114.
15. Telstra treated that request as a request for a reconsideration of the determination made on 21 February 1995 and on 17 January 1996 advised Mr. Carson that his file had been forwarded to Melbourne for approval of an extension of time for his request and if that were approved then for reconsideration of the decision.
16. On 22 January 1996 Telstra wrote to Mr. Carson advising him that the original decision to cease liability in relation to his claim in respect of the incident of 30 June 1994 had been affirmed and enclosed a formal determination pursuant to s.62(5) of the Act, and reasons for decision stating that the decision of 21 February 1995 was affirmed.
17. Mr. Carson did not lodge an appeal to this Tribunal against the determination of 22 January 1996.
18. On 5 June 2000 Mr. Carson's solicitors lodged on his behalf a Comcare Australia "Compensation Claim for Permanent Injury" form dated 30 May 2000 signed by Mr. Carson and a medical report from Dr. R. F. Wallace dated 5 May 2000.
19. On 28 June 2000 GIO Australia, on behalf of Telstra wrote to Mr. Carson's solicitors advising that it had been determined that Mr. Carson was not entitled to a lump sum payment for personal injury and attaching the formal determination, the reasons for the decision and a notice as to Mr. Carson's rights of appeal under the Act.
"In pursuance of the provisions of the SRC Act I hereby determine:
1. That based on the available evidence, Peter Carson is deemed to suffer no whole person impairment of the thoraco lumbar spine in accordance with section 24 of the SRC Act.
2. Peter Carson not entitled to payment under section 24 or section 27 of the SRC Act."
21. The reasons for determination stated relevantly:
"4. I further note that the claimant submitted another claim for compensation in respect of lower back injury which allegedly occurred on 30 June 1994 whilst participating in Team Building exercises which involved games of "Skirmish" and other "war" games. Liability was accepted in respect of level 4/5 back pain. In a determination dated 21 February 1995 liability regarding this claim was ceased on and from 9/2/95. This decision was affirmed on 22 January 1996 following a request for reconsideration by the claimant.
6. I therefore find that as liability no longer exists in respect of the lower back injuries which occurred on 5 November 1991 and 30 June 1994 and given that there has been no claim for compensation made by the claimant in respect of the recurrence allegedly suffered on 31 October 1995 that the claimant does not meet the requirements of Section 24 of the SRC Act and is therefore not entitled to lump sum payment for permanent injury under Section 24 and 27 of the SRC Act."
22. On 4 July 2000 Mr. Carson's solicitors wrote to GIO Australia requesting a reconsideration of the determination of 28 June 2000.
23. On 9 August 2000 GIO Australia wrote to Mr. Carson's solicitors advising that the decision of 28 June 2000 had been considered in accordance with s.62(2) of the Act and that in accordance with s.62(5), the decision that Telstra was not liable to pay compensation in respect of permanent injury was affirmed. A copy of the formal determination, a statement of reasons and a notice as to rights of appeal to this Tribunal were enclosed with the letter.
"8. I have carefully considered all the material facts of this case and am satisfied that as liability has been ceased in respect of the claims for compensation for incidents that occurred on 30 June 1994, that there is no entitlement to a lump sum payment for permanent injury under Section 24 and Section 27 of the SRC."
25. On 21 September 2000 Mr. Carson lodged an application for review of decision with this Tribunal in respect of the determination dated 9 August 2000.
26. Telstra's asserts that the application for review dated 21 September 2000 was lodged out of time on the basis that Telstra determined on 21 February 1995 that liability in respect of Mr. Carson's injury ceased on and from 9 February 1995 and that decision was affirmed by the determination of 22 January 1996, from which date it is said Mr. Carson had 60 days to appeal to this Tribunal.
27. The effect of the submission on behalf of Telstra is that the Tribunal has, for all practical purposes, no jurisdiction to entertain an appeal from the decision of 9 August 2000 as that determination merely re-iterated that the original determination to "cease liability" for Mr. Carson's back injury was affirmed by the determination of 21 February 1995 and thus the only appeal open to Mr. Carson is in respect of that decision, an appeal for which he would now require an extension of the original 60 day time limit.
28. On behalf of Mr. Carson, it is submitted that:
(a) At the time that liability was declined following receipt of Dr. Sturrock's report, there was no claim before Telstra for section 24 or section 27 benefits.
(b) The original determination dated 2 August 1994 accepted liability for medical expenses under section 16 and for payment for incapacity for work under section 19. The subsequent determinations all related to medical expenses.
29. The preliminary point for determination in this application thus involves the nature and effect of a "cease liability" determination made by an employer after a claim for compensation for incapacity for work and for compensation in respect of medical expenses has been made, but before any claim for compensation for permanent impairment and non-economic loss has been made.
30. A similar situation arose for consideration in Denison-Smith v Comcare [2000] AATA 553 [(2000) [2000] AATA 553; 31 AAR 202].
31. In that case the applicant, Ms Denison-Smith sustained foot and leg strain in February 1992 for which Comcare accepted liability and paid incapacity payments and medical expenses until December 1992. On 26 March 1993 Comcare advised the applicant that it would "cease liability" in respect of the injury.
32. In April 1996 the applicant claimed compensation for permanent impairment and non-economic loss pursuant to s.24 and s.27 of the Act, however that claim was rejected on the basis that no compensation was payable under those sections because liability for the injury had ceased on and from 26 March 1993.
33. In his reasons for decision Deputy President Burns said at paragraph 19 and following:
"The respondent's decision of 26 March 1993 was to cease liability to pay compensation to the applicant from this date because the effects of the relevant injury, namely aggravation of pronated foot condition resulting in bilateral foot and leg strain had ceased.
The above decision brought liability to an end as from 26 March 1993. It was clearly a determination under s.14 of the Act and had the effect of a denial of liability to pay compensation to the applicant until such time as it was set aside and varied. As and from 26 March 1993 there was no liability to pay compensation to the applicant in respect of her injury as it had not been established that her injury had resulted in death, incapacity or impairment ... .
The Tribunal now turns to the question as to whether it can review the decision of the respondent ... keeping in mind that the Tribunal can do so if the decision is a reviewable decision (ss.60 and 62 of the Act) ... . There was nothing precluding the applicant from making the ss.24 and 27 claim. The Act does not preclude such a claim from being made. Whether or not such a claim could be considered on its merits, bearing in mind that there was in place at the time a s.14 determination denying liability is another question which the Tribunal now turns to.
In the Tribunal's opinion the answer to the above question lies in the Full Court's judgment in Lees v Comcare and is to be answered in the negative. Lees makes it clear that ordinarily before any issue of an employee's or former employee's entitlement to compensation for permanent impairment arises, a favourable determination concerning that person's entitlement to compensation needs to be in existence under s.14 of the Act (Lees). No such determination was in place when the applicant's claim for permanent impairment and non-economic loss was considered and re-considered. In the opinion of the Tribunal, Lees case makes it plain that s.24 is not be read as a second source of liability to pay compensation in respect of an injury to an employee resulting in impairment. The Court in Lees saw s.14 of the Act as creating that liability and s.24 as being intended to define the nature and extent of the liability to pay compensation in respect of an injury which results in permanent impairment. In other words, ordinarily, an acceptance of liability must be in place under s.14 before a consideration and determination of a claim pursuant to ss.24 and 27 takes place ...".
34. The passage from Lees v Comcare [1999] FCA 753 upon which Deputy President Burns was placing reliance appears at paragraphs 48 and 49 of the Full Court's judgment. There the Court said:
"... Comcare had determined pursuant to s.14 of the Act that Comcare was liable to pay compensation in accordance with the Act to Ms Lees in respect of the injury suffered by her. That determination had not been the subject of reconsideration under s.62 of the Act and was therefore not a 'reviewable decision' for the purposes of s.64 of the Act. The determination under s.14 established, amongst other things, that Comcare would be liable to pay compensation to Ms Lees under s.24 of the Act if the injury resulted in permanent impairment. We interpolate that we do not read s.24(1) of the Act as a second source of liability as being created by s.14 of the Act. Section 24 we understand as being intended to define the nature and extent of the liability to pay compensation in respect of an injury which results in permanent impairment.
It may be that a situation could arise in which an employee has a claim for compensation for permanent impairment under s.24 of the Act where no determination of Comcare's liability under s.14 of the Act has been made. In such a case it may well be that the Act allows the issue of Comcare's liability to pay to the employee compensation for permanent impairment to be determined under s.24 notwithstanding that no earlier determination under s.14 has been made. However, the practical reality is that such cases will be rare. Ordinarily, before any issue of an employee's, or former employee's, entitlement to compensation for permanent impairment arises, a determination concerning that person's entitlement to compensation will have been made under s.14 of the Act. Neither of the matters under present consideration is an instance of a case in which a claim for compensation for permanent impairment arose in the absence of a determination under s.14 of the Act."
35. Some 3 months after the Tribunal's decision in Denison-Smith v Comcare (supra), although without reference to it, Senior Member M D Allen reached the same result in Anderson v Telstra [2000] AATA 547.
37. In an extempore decision resulting in the application being dismissed as frivolous and vexatious the Tribunal said:
"As the matter stands the applicant is claiming permanent impairment in respect of particular injuries for which currently the respondent has no liability. As was pointed out in Comcare v Matthews and Others[1999] FCA 753; , 29 AAR 350 a permanent impairment claim is different from a liability claim. Now in one sense although it is more a doctrine relating to subsidiary legislation to say that a stream cannot rise higher than its source, in this matter what the applicant is seeking to do is by the lodging of a claim for permanent impairment seeking to reopen a claim for liability. As pointed out above, Comcare v Matthews states that they are two totally and separate claims."
38. It would appear from the foregoing passage that the Tribunal was there placing reliance on the same passage from Lees v Comcare (supra) as was relied upon by the Tribunal in Denison-Smith v Comcare (supra). That is, the passage set out above from the Full Court's judgment at paragraphs 48 and 49.
39. It is true that Lees v Comcare (supra) held that s.24(1) of the Act did not create a separate source of liability to pay compensation in respect of permanent impairment, that liability being created by s.14 of the Act, however with respect to those who have gone before me, the court in Lees was not called on to decide anything about the true nature or effect of a so called "cease liability" determination made, purportedly under s.14.
40. At paragraph 33 and following in Lees the Court said:
"Section 60 contains definitions, amongst others, of "determination", "determining authority" and "reviewable decision". These definitions are in the following terms:
"determination" means a determination, decision or requirement made under section, 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39 under paragraph 114B(5)(a) or under Division 3 of Part X;
"determining authority", in relation to a determination, means the person who made the determination;
"reviewable decision" means a decision made under subsection 38(4) or section 62.'
34 The definition of "determination" makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 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 the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act._
35 This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters_. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment."_ [emphasis added]
41. Before any consideration of the support, if any, to be derived from Lees with respect to the practice of "cease liability" determinations under s.14, it should first be observed that Lees was concerned with cases where applications had been made to the Administrative Appeals Tribunal from decisions made by Comcare affirming determinations after their reconsideration under s.62 of the Act.
42. In the case presently under consideration Telstra did not purport to reconsider its original determination of 2 August 1994 that it was liable to pay compensation. The determination of 9 February 1995 that liability in respect of Mr. Carson's injury "ceased on and from 9 February 1995 "was not expressed to be made to be made pursuant to s.62. On the contrary the accompanying "notice to claimant" form advised Mr. Carson that if he was dissatisfied with the determinations he could request that it be reconsidered under s.62 and that such action had to be taken by Mr. Carson before any application could be made to the Administrative Appeals Tribunal.
44. Nowhere in the Act is the expression "cease liability" employed and it would offend the beneficial nature of the legislation to allow determinations as to the payment of compensation to be rescinded other than in accordance with the scheme for reconsideration of determinations and subsequent rights of appeal provided by ss.62, 63 and 64 of the Act.
45. A conclusion that a determination under any relevant section of the Act cannot be revoked or ceased otherwise than by way of a reconsideration of that determination pursuant s.62 of the Act is in no way inconsistent with anything contained in or to be implied from the decision of the Full Court in Lees.
47. That is to say that the significance of a s.14 determination is that it involves findings that:
(b) a claim for compensation as required by the Act has been made;
(c) the person making the claim was an employee at the relevant time;
(e) the injury resulted in a death, an incapacity for work or an impairment,
Those findings will not ordinarily be appropriate subjects for reconsideration.
(a) the amount of compensation Comcare will be liable to pay;
(b) the person or persons to whom the compensation will be payable; and
(c) the time or times at which Comcare's liability will give rise to a present obligation to make payments;
49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.
50. In such a case a reconsideration of the s.14 determination under s.62 resulting in a revocation would surely carry with it the result that no future claims in respect of that incident could properly be made, but in other cases, the revocation of a determination under relevant sections would not have the effect of preventing altogether further or other claims for compensation.
51. Even had Telstra proceeded to reconsider its liability to pay compensation to Mr Carson in accordance with the Act, of its own motion, under s.62 and by that means arrived at the same decision it in fact reached by its determination of 21 February 1995, that decision could not properly be called a "cease liability" determination under s.14.
52. Unlike the determination to cease liability in Denison-Smith v Comcare (supra) which, reportedly, was made pursuant to s.14 of the Act, the determination notified to Mr. Carson by Telstra on 21 February 1995 was expressed as being made "in pursuance of the provisions of the SRC Act." The subsequent reconsideration of 22 January 1996 expressed the determination, as being made in pursuance of the provisions of s.62(5) of the SRC Act" and neither statement of reasons forwarded to Mr. Carson mentioned s.14 specifically.
53. Had it been however that Telstra's determination to cease liability was expressed as being pursuant to s.14, a moments reflection reveals that liability to pay compensation to Mr. Carson was being ceased because Dr. Sturrock had certified that the ill effect of his attacks of pain had settled down. A determination to cease to pay compensation in such circumstances is not a denial or a revocation of the findings implicit in the original substantive determination to accept liability.
* Mr. Carson was an "employee" at the relevant time.
* That injury had resulted in incapacity for work.
55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.
56. That is to say the effect of the determination that "liability in respect of this injury ceased on and from 5 February 1995" was not a decision to "cease liability" altogether or to "cease liability" under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.
58. The conclusion I have reached, namely, that at its highest, Teltra's determination only ceased payments of compensation under s.16 and s.19 of the Act and did not effectively revoke the earlier determination to accept liability under s.14, thereby preventing further claims for compensation being made at a later time, is also consistent with the reasoning of the Full Court in Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236.
59. In that case the Administrative Appeals Tribunal decided in 1988 that Mr. Plumb was entitled to payments for incapacity under the Compensation (Commonwealth Government Employees') Act 1971 for a closed period from February 1985 to July 1987. The Tribunal held that from 20 July 1987 Mr. Plumb ceased to be incapacitated to any degree whatsoever. Subsequently Comcare made several determinations awarding payments for incapacity for periods after 20 July 1987, but these were later revoked in 1990. Mr. Plumb applied to the Tribunal to review that revocation.
60. The Tribunal constituted by Moss J held that it was functus officio in respect of the 1990 revocation because its 1988 decision decided that Comcare's liability to pay compensation to Mr. Plumb ended "once and for all" on 20 July 1987.
61. On appeal to the Full Court counsel for Comcare did not seek to support Moss J's finding that the Tribunal was functus officio in relation to the review of the 1990 determination and conceded that his Honour's finding that the 1988 decision of the Tribunal "once and for all, so far as this Tribunal is concerned, determined the rights and obligation of the parties in respect of the relevant injury" was incorrect.
62. The judgment of Lockhart J in the Full Court with whom Black CJ and Gummow J (as he then was), proceeded at page 240 as follows:-
"The concessions made by the respondent to which reference has been made earlier were plainly correct ... .
The 1988 decision of the AAT was based on the evidence that was before it and considered the applicant's case asserting incapacity upon the evidence as it stood at that time. In the circumstances of this case, the AAT did not have power, nor did the original decision-maker have power, to make a decision that extended beyond the date of the decision. It is true that the AAT said in its reasons which led to the 1988 decision that from 20 July 1987 the applicant 'ceased to be incapacitated to any degree whatsoever'. But, as mentioned earlier, it said later in its reasons that it could not 'pre-judge any new application which may arise as a result of the alleged recurrence of the applicant's disease'. Thus, the AAT, although thinking it was appropriate to make the observation which it did about 20 July 1987, made it clear that this was not a finding which could bind anybody with respect to any future application because a future application would be with respect to a later period of incapacity and the AAT (also the respondent) cannot bind itself in advance of any such subsequent application". [emphasis added]
63. In Re Sabioni and Comcare [1999] AATA 763 (1999) 30 AAR 153, Senior Member Dwyer in applying Plumb v Comcare (supra) observed at paragraph 24:
"The Full Court in Plumb explained that there is a duty on Comcare and on this Tribunal to consider claims for future periods of incapacity on their merits, and that no decision can have finality as to a future period of incapacity".
64. I respectfully endorse that observation and whilst accepting that Plumb was concerned with claims for later periods of incapacity, by parity of reasoning I would hold that in the present case Telstra did not have power to make a decision that purported to extend beyond the date of its decision and purported to bind itself in advance with respect to a future application for permanent impairment.
65. The simple fact that an injury no longer attracts payments of medical expenses or incapacity payments is no justification for a reconsideration of a determination accepting substantive liability under s.14 previously made and a determination, after reconsideration that liability under s.16 or s.19 no longer exists as at the date of that determination, will not ordinarily affect that substantive determination because it will not ordinarily involve any denial of the findings implicit in the acceptance of s.14 liability.
66. I reiterate that there may be cases where a reconsideration of a determination under s.14 as to substantive liability to pay compensation in accordance with the Act may be appropriate, however even in such cases it will, in reality, not be the fact of the determination that precludes future claims arising out of the same injury, but rather the basis of the determination, for example that the claimant was not in fact an employee or the injury did not arise out of or in the course of the claimant's employment.
67. It follows, in my view, not only that the Tribunal has jurisdiction in the present case by virtue of the reviewable decision of 9 August 2000 made pursuant to s.62(5) of the Act, but also that the Tribunal is entitled to consider Mr. Carson's claim for permanent impairment on its merits, uninhibited by the determination of 22 January 1996 which, whether or not validly made under the provisions of the Act, could not have the effect of precluding consideration of an application for compensation for permanent impairment made beyond the date of that determination.
68. Accordingly, I direct that the application to review the determination made by the respondent on 9 August be listed for hearing.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S P Estcourt Q.C.,
Signed: ....................................................
Lees
Comcare
(1992) 39 FCR 236