Safety, Rehabilitation and Compensation Act 1988: ss 14, 15, 16, 17, 18, 19, 24, 27, 29, 60, 62, 63, 64

Lee v Comcare [(1999) [1999] FCA 753; 29 AAR 350]

1. This is an application to determine whether or not the Tribunal has jurisdiction to review a decision by the respondent to refuse to make a determination upon an application by Hendrikus Josephus Oudyn for compensation for permanent impairment pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

2. The facts are not in dispute and the Tribunal finds as follows:

(i) On 2 August 1999 Mr. Oudyn was unloading mail from his van into a steel mesh crate ("ULD") used to contain and move bulk mail within the Centre. A forklift with another ULD on the front was left running and not attended adjacent to where he was working. The forklift moved forward, causing him to be pinned at the knees between the container he was using and the side of his van. Soft-tissue damage was noted. X-ray and bone scans showed that no orthopaedic damage had been identified.

(ii) Mr. Oudyn suffered bruising and swelling in his legs bilaterally from mid-thighs to his feet. X-rays of his left leg were performed and reported as being normal. He was off work for a couple of days, and then returned to work on restricted duties. On examination a few days later, haematoma was noted over the left medial rectus muscle with bruising over the pre-patella area bilaterally, more so on the left.

(iii) The respondent accepted liability for crush injury both legs under s.14 of the Act from 3 August 1999.

(iv) On 18 May 2000, the respondent's Claims Manager informed Mr. Oudyn that the effects of the injury sustained on 2 August 1999 had resolved and consequently the applicant was not entitled to any further compensation under s.14 of the Act. Specifically, the determination stated as follows:

"Therefore I have now determined that the effects of the injury which you sustained on 2 August 1999 have resolved and consequently you will not have further entitlement to compensation under terms of section 14(1) of the Safety Rehabilitation & Compensation Act 1988".

(v) On 30 January 2001, Mr. Oudyn lodged a claim for compensation for permanent impairment with the Respondent in relation to the injury sustained on 2 August 1999. This application was made pursuant to section 24 of the Act.

(vi) On 27 February 2001, the Reconsiderations Delegate for the respondent affirmed the Claims Manager's decision of 18 May 2000 (that the effects of the injury sustained on 2 August 1999 had resolved and consequently Mr. Oudyn was not entitled to any further compensation under s. 14 of the Act) and referred the claim for permanent impairment to the Claims Manager for original determination.

(vii) On 8 March 2001 the Claims Manager wrote to Mr. Oudyn's solicitors in these terms:

"The reviewable decision issued by the delegate on 27 February 2001 has affirmed that there is no ongoing effect or injury resulting from the accident on 2 August 1999 and there is no further liability in terms of the Safety Rehabilitation and Compensation Act 1988. Unless that decision is varied by appropriate process it is not appropriate or necessary to make further determination in relation to a benefit provision under the Act as there is no liability".

(viii) On 21 August 2001 Mr. Oudyn filed an application in the Administrative Appeals Tribunal seeking review of failure and/or refusal to process his permanent impairment claim.

3. It was submitted on behalf of the respondent that:

(i) When the Claims Manager issued the determination that the effects of the applicant's injury had ceased and that there was no further entitlement to compensation under s.14(1) of the Act (that is, the determination made on 18 May 2000) the Claims Manager decided that the injury did not result in permanent impairment.

(ii) It did not matter that the claimant did not put in a specific claim for permanent impairment and it did not matter that the Claims Manager did not address his mind to the issue of whether or not the claimant was permanently impaired. By making a decision under s.14(1) and by expressing himself to have made a decision under s.14(1) that liability had ceased under the Act, there is a determination that no compensable injury has been suffered which has resulted in, inter alia, permanent impairment.

(iii) Accordingly, a claimant cannot, when a determination has been made as outlined in the paragraphs above, subsequently lodge a claim for permanent impairment in relation to the injury which was the subject of the decision made under s.14(1).

(iv) Therefore, the applicant had no ability or entitlement to lodge a claim for permanent impairment after the decision of the Claims Manager dated 18 May 2000.

(v) Consequently, the respondent was not required to process what was, in effect, an unlawful claim.

(vi) The failure and/or refusal of the respondent to process the applicant's claim for permanent impairment lodged on 30 January 2001 was lawful and does not result in there being a reviewable decision for the Tribunal to review.

(vii) The Tribunal has no jurisdiction to review the failure and/or refusal of the respondent to process the claim.

4. It was submitted on behalf of the applicant that:

(i) The applicant is entitled to make a claim for permanent impairment.

(ii) The fact that the Claims Manager has made a determination that liability no longer exists is not the end of the matter.

(iii) There is a duty on the respondent to make a reviewable decision under the Act.

(iv) The applicant accepts that the Tribunal does not have jurisdiction to review the matter unless there has been a reviewable decision made by the respondent.

(v) However, the respondent's refusal to make a reviewable decision amounts to a decision to refuse the claim.

(vi) Consequently, the Tribunal has jurisdiction to review this matter.

5. The sections of the Act which are relevant in this case are:

14(1) [Comcare liable] Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

SECTION 15 COMPENSATION FOR LOSS OF OR DAMAGE TO PROPERTY USED BY EMPLOYEE

SECTION 16 COMPENSATION IN RESPECT OF MEDICAL EXPENSES ETC.

SECTION 17 COMPENSATION FOR INJURIES RESULTING IN DEATH

SECTION 18 COMPENSATION IN RESPECT OF FUNERAL EXPENSES

SECTION 19 COMPENSATION FOR INJURIES RESULTING IN INCAPACITY

19(1) [Application] This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

SECTION 24 COMPENSATION FOR INJURIES RESULTING IN PERMANENT IMPAIRMENT

24(1) [Comcare liable] Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

SECTION 27 COMPENSATION FOR NON-ECONOMIC LOSS

27(1) [Additional] Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for an, non-economic loss suffered by the employee as a result of that injury or impairment.

SECTION 29 COMPENSATION FOR HOUSEHOLD SERVICES AND ATTENDANT CARE SERVICES

PART VI - RECONSIDERATION AND REVIEW OF DETERMINATIONS

"claimant" means a person in respect of whom a determination is made;

"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975;

"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;

Definition of "determining authority" amended by No 95 of 1992, s 9, commenced 30 June 1992; substituted by No 264 of 1992, s 12(b), commenced 24 December 1992.

"reviewable decision" means a decision made under subsection 38(4) or section 62.

SECTION 62 RECONSIDERATION OF DETERMINATIONS

62(1) [Own motion] A determining authority may, on its own motion:

(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

62(2) [Who may make requests] A request to a determining authority to reconsider a determination made by it may be made by:

62(4) [Reconsideration] On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.

62(5) [Decision] Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

SECTION 63 REVIEWABLE DECISION TO BE NOTIFIED IN WRITING

63 As soon as practicable after a person makes a reviewable decision, the person shall cause to be served on the claimant a notice in writing setting out:

(c) a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.

SECTION 64 APPLICATIONS TO THE ADMINISTRATIVE APPEALS TRIBUNAL

Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

6. The representatives of both parties submitted that the judgment of the Full Court of the Federal Court in Lees v Comcare [(1999) [1999] FCA 753; 29 AAR 350] supports their stance on the matter. The judgment sets out the factual background in Ms. Lees' case:

"1. In May 1995 the second respondent, Ms Wendy Lees, made a claim on the applicant Comcare for compensation for a work-related injury. On 16 October 1995 Comcare accepted its liability to pay compensation in respect of that injury; it approved payment for time off work; and it indicated it would pay any reasonable medical expenses related to her condition.

2. In response to a letter from Ms Lees' treating specialist, Comcare determined on 9 April 1997 that it would not provide Ms Lees with payment for taxi fares to the rooms of those providing treatment for her injury. This decision was made under s 16 of the SRC Act [Safety, Rehabilitation and Compensation Act]. Her solicitors sought a reconsideration of it on 12 June 1997. An Independent Review Officer of Comcare reconsidered the matter and confirmed the 9 April 1997 refusal.

3. That reconsideration decision being a 'reviewable decision' under the SRC Act, Ms Lees applied to the Tribunal for review of it. In her application she described the decision the subject of the application as:

'A decision affirming a decision to deny payment of taxi fares to and from treatment for compensable illness.'

The reason Ms Lees gave in her application for seeking review of that decision was that:

'It is wrong in fact and in law and is otherwise defective.'

4. On 11 February 1998 Ms Lees' solicitors wrote to the Registrar of the Tribunal giving notice that she would be 'expanding the issues and her claims in relation to these proceedings'. The particular 'expansion' foreshadowed in that letter is no longer in issue in this proceeding. It was, though, the herald to yet another 'expansion'. In her Statement of Issues served on the Office of the Australian Government Solicitor (the AGS) on 16 February 1998, the following issue (amongst others) was specified:

'What other, if any, entitlements the applicant has arising from the compensable conditions, the subject of these proceedings.'

On 25 March 1998 it was made clear that one of those 'other entitlements' was for compensation for permanent impairment under s 24 of the SRC Act.

5. At a preliminary hearing on 1 April 1998 on the question of the Tribunal's jurisdiction in the matter, the Tribunal member, the first respondent, decided the Tribunal had jurisdiction when reviewing the 'taxi fares decision' to consider Ms Lees' entitlement to compensation for permanent impairment.

6. In her Reasons for Decision the Tribunal member located her jurisdiction to decide the impairment claim in the proposition that once the Tribunal had jurisdiction in relation to one issue it could consider the whole question of compensation under the SRC Act. Justification for this was found in s 43(1) of the AAT Act, the provisions of which are set out below."

The Court went on to do an extensive analysis of the Safety, Rehabilitation and Compensation Act 1988 and the powers of the Tribunal to review decisions made under the Act.

I will set out those parts of the judgment which I believe are relevant to Mr. Oudyn's case.

"s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability "[s]ubject to" Pt II of the Act. That is, it is a liability limited in its extent by other provisions of Pt II of the Act. Secondly, the liability is a liability to pay compensation "in accordance with" the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act: see, for example, ss 17(3), (4) and (5), 19, 20, 24 and 25.

Part V relates to claims for compensation. Section 53(1) is concerned to ensure that appropriate notice of injuries is given. Section 54 makes the right to receive compensation under the Act dependent upon the making of a claim.

It is clear that Pt V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act. The form approved by Comcare as required by s 54(2)(a) reflects the generic nature of a claim under the section. It is headed "Claim for Rehabilitation and Compensation". It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.

The claim, and the claim form, envisaged by s 54 of the Act reflects the practical reality that a claim for compensation is likely to be made relatively soon after the suffering of an injury, particularly if incapacity for work or significant medical expenses result from the injury. At the time that this initial claim is made it may be quite impossible for the employee to provide details of, for example, the fact or extent of any permanent impairment. For the reasons expressed below, the determination which is made on a claim, as required by s 54 of the Act, will ordinarily be a determination under s 14 of the Act.

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.

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."

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.

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.

Section 61 requires a determining authority, as soon as practicable after making a determination, to serve on the claimant a notice in writing setting out the terms of the determination and the reasons for it.

Section 62 is concerned with the reconsideration of determinations (ie with the second tier decision-making process). Section 62(1) provides for a determining authority to reconsider a determination made by it on its own motion, or to cause such a determination to be reconsidered by an authorised person, not being a person involved in the making of the determination. Section 62(2) authorises certain persons, authorities or corporations affected by a determination to request a determining authority to reconsider a determination made by it. Where such a request is made the reconsideration is undertaken by an authorised person who was not involved in the making of the determination. Section 62(5) provides for the person undertaking the reconsideration to affirm, revoke or vary the determination in such a manner as the person thinks fit.

Section 64 of the Act establishes the third tier of the decision-making process established by the Act.

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 AAT 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."

"The challenge to the decision of the AAT concerning its jurisdiction was apparently only pressed before Finn J to the extent that the AAT found that it was able to hear Ms Lees' claim for a lump sum payment of compensation for permanent impairment. His Honour concluded that the AAT did not have jurisdiction to make a determination as to the amount of compensation, if any, payable to Ms Lees under s 24 of the Act.

In our view, his Honour was plainly right in so concluding. As is mentioned above, on 16 October 1995 an authorised officer of 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 to pay compensation in respect of an injury to an employee resulting in impairment. We see that 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.

The only issues under s 24 of the Act which required determination in Ms Lees' case were the issues of whether she had a permanent impairment and, if she did, the amount of compensation payable under the section in respect of that impairment. Neither of these issues had been determined at the first tier decision-making stage. Necessarily in the circumstances, there had been no reconsideration under s 62 of the Act of a determination on these issues. Consequently there was no reviewable decision touching on these issues to found an application to the AAT under s 64 of the Act. The reviewable decision which founded Ms Lees' application to the AAT was the determination of the Independent Review Officer concerning Ms Lees' entitlement under s 16 of the Act for compensation in respect of taxi fares incurred, or to be incurred, for the purpose of obtaining medical treatment. It was that determination, and that determination only, that s 64 of the Act authorised the AAT to review. The powers of the AAT under s 43 of the AAT Act were powers which it was authorised to exercise for the purpose of reviewing only that determination."

7. It was submitted on behalf of Mr. Oudyn that he attempted to follow the rules. He made a claim for permanent impairment under s 24 of the Act. His claim was rejected. He sought reconsideration. This was in effect rejected by a refusal to deal with his matter. His only further recourse was to make application to the AAT, which he has done.

8. In Ms. Lees' case the Court decided that the AAT does not have jurisdiction to review a specific claim under a specific section of the Act unless the first two tiers of the review process have been completed for that claim. The Court envisaged that a claim could be made under s 24 of the Act where no determination of liability under s 14 of the Act has been made. The issue of liability to pay to the employee compensation for permanent impairment can be determined under s 24 notwithstanding no earlier determination under s 14 has been made.

9. There is nothing in the judgment in Ms Lees' case which is authority for the proposition that a determination by a Claims Manager under s 14 of the Act that the effects of the claimant's injuries had ceased, ends the matter and that the employee is thereafter barred from claiming any of the other compensation benefits to which he may be entitled, and that he may not have the matter of his claim reviewed.

10. It is the decision of the Tribunal that the applicant was entitled to make a claim for permanent impairment pursuant to s 24 of the Act and that the claim automatically involved a re-evaluation of the decision of the Claims Manager. His claim was initially rejected on 27 February 2001. That rejection was affirmed on 8 March 2001. He has had his claim assessed by the two tiers necessary to allow him to apply to the AAT for review of his claim.

11. The AAT has the jurisdiction to review this matter.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member.

Signed: .....................................................................................

Solicitor for the Applicant Maurice Blackburn Cashman

Solicitor for the Respondent Clark and Kann Lawyers