Szabo v Comcare

TRIBUNAL DECISION 8 The Tribunal concluded that the 1989 injury was an aggravation of the 1985 injury, however the applicant no longer suffers from the effects of the 1989 injury. On the basis of the medical evidence presented, the Tribunal accepted that any back pain from which the applicant presently suffers is a result of his 1985 injury for which he had been compensated by the State of Victoria. Accordingly, the Tribunal determined that Mr Szabo was no longer entitled to medical expenses and household assistance pursuant to the SRC Act. 9 At the hearing before the Tribunal on 21 and 22 October 2010 the applicant was represented by counsel. The questions to be addressed by the Tribunal were summarised as follows: Whether on 13 June 2008, the applicant continues to suffer from the effects of his aggravation of pre-existing lower back degenerative disease injury sustained on 20 June 1989; Whether as at 13 June 2008 the applicant is entitled to compensation for medical expenses pursuant to section 16 of the SRC Act, and compensation for household services pursuant to section 29 of the SRC Act, which are reasonably required as a result of the incident of 20 June 1989. 10 The Tribunal added that it was also necessary to consider a number of preliminary issues, namely: whether the applicant's claim could be considered to be a 'nature and conditions claim'; whether the settlement of the claim in relation to the 1985 injury encompasses "all injuries or aggravations from 1985 to the date of settlement" in 1992; and the applicant's back condition between 3 October 1988 (the date on which he had been cleared as fit for fulltime work) and the date of the 1989 injury.

Nature of the applicant's claim 11 The first issue for the Tribunal was whether the applicant's claim could be considered to be a 'nature and conditions claim', that is whether it related to the injury suffered to the nature and conditions of his employment as experienced in the normal course of his employment over a period of time, rather than to a single incident. In support of this characterisation the applicant pointed to the numerous accident reports that he had submitted between October 1988 and March 1990 when he was working for AQIS. In one way or other these reports all referred to his work as involving constant lifting, bending and twisting. The accident report submitted by the applicant in respect of the 1989 injury also described what he was doing at the time in similar terms. It said: Constant lifting & bending whilst carrying out inspection duties on mutton chain (lifting front legs to inspect under necks). 12 The Tribunal was presented with a considerable volume of medical evidence dating from the time of the 1985 injury to the present. The medical practitioners' opinions ranged from those who attributed the applicant's medical condition to his employment and the nature and conditions of his work as a meat inspector (eg Dr Evans) to those who were more inclined to attribute it to pre-existing degeneration (eg Dr Ashwell). Ultimately the Tribunal considered that the issue was not one of medical opinion (which was noted for completeness only) but depended on what was actually claimed by the applicant and was the subject of Comcare's initial determination of 13 June 2008, as affirmed on 7 January 2009. 13 The Tribunal accepted the respondent's submission that Comcare's determination had not been made in relation to a nature and conditions claim but had been made in respect of a specific injury. Therefore the Tribunal held that, as a nature and conditions claim had not been the subject of either an initial determination or a reviewable decision, it had no jurisdiction to entertain such a claim. Accordingly the Tribunal proceeded on the basis that the applicant's claim was limited to a claim for compensation in respect of the 1989 injury.

Ambit of the 1992 settlement 14 Before the Tribunal Comcare submitted that the settlement covered not only the 1985 injury but Mr Szabo's "entire L5/S1 injury, which included the aggravation of 20 June 1989". The Tribunal rejected this claim and held at [56] of its reasons "that the Claim and the Settlement concerned only the 1985 injury".

The condition of the applicant's back between 3 October 1988 and 20 June 1989 15 The Tribunal found that the applicant's oral evidence "that he was pain free when he went back to work in October 1988" was not consistent with his statements on cross-examination that he "used days of recreational leave and rostered days off to deal with his back pain during the period late 1988 to June 1989". The Tribunal found from the medical evidence and the applicant's own evidence that "he continued to suffer back pain at varying levels between that date, and the incident of 20 June 1989".

The Tribunal's conclusion 16 The Tribunal concluded that the claim that it was required to review related only to the 1989 injury which was "a relatively minor aggravation" of the injury to Mr Szabo's back suffered in 1985. The Tribunal was satisfied that, as from 13 June 2008, the applicant has no longer suffered the effects of that aggravation and that any pain he still suffers is a result of his pre-existing degenerative lower back condition. Consequently no compensation was payable from that date.

THIS APPEAL 17 In the notice of appeal filed on 22 March 2011 the applicant takes issue with the Tribunal's conclusion and asserts that the Tribunal made errors of law which enliven this Court's jurisdiction under s 44(1). Ultimately all the alleged errors related to the Tribunal's rejection of a nature and conditions claim. 18 In summary the applicant submitted that in finding that the applicant had claimed compensation for an injury arising out of a specific incident, the Tribunal had applied an overly technical and literal test. He submitted that the Tribunal's view was such that only a claim that used some verbal formula such as "nature and conditions" could be treated as such a claim. The Tribunal should have considered the substance of the claim and interpreted it beneficially, broadly and practically. 19 The applicant also submitted that he had been denied procedural fairness in that the jurisdictional issue arising from the characterisation of the claim was raised for the first time orally at the hearing before the Tribunal. That issue, it was submitted, "fundamentally changed the nature of the case" with no prior notice to the applicant. In the written submissions made on behalf of the applicant, it was said that when the jurisdictional issue was first made objection was immediately taken on behalf of the applicant. The applicant argued that the jurisdictional issue should have been raised years ago "at a time when memories were fresh, documents were available, and people who were treating the Applicant at that time could have given evidence specifically about the relevant issues". It was submitted that it would be unconscionable for the Tribunal to allow the jurisdictional point to be taken. 20 The applicant complained that the respondent had not adduced any evidence before the Tribunal to show that the initial determination accepting liability to pay compensation had not related to the nature and conditions of the applicant's employment. In the absence of evidence of any instructions given to the applicant for filling out the claim form dated 27 June 1989 and any evidence of the reasons for the initial determination accepting liability for the claim it was not now possible to know the basis on which the claim had been accepted. It was also put to the Tribunal that "if the [jurisdictional issue] was to be entertained, the Respondent should have provided any documents showing that the Applicant was requested in writing to make additional claims for compensation if he wished to deal with nature and conditions types of issues, and that he failed to do so". 21 The respondent took issue with the applicant's contention that it was not until the hearing before the Tribunal that the applicant's claim was limited to an injury that occurred on 20 June 1989. It pointed to the original accident/injury report in respect of the 1989 injury, the original and subsequent claims and the entire decision-making of the respondent prior to the review by the Tribunal. All these documents and determinations either referred to a specific injury that occurred on 20 June 1989 or clearly related to a claim in which that date was identified as the date on which the relevant injury occurred. 22 The respondent submitted that until the issue was first raised at the Tribunal hearing neither the applicant nor the respondent had contended that other dates or incidents were relevant to the proceedings before the Tribunal. The respondent explained that the jurisdictional issue arose as follows: At the commencement of the Hearing the Applicant advised that Dr Evans was not available to give evidence. … The Respondent advised the Tribunal that it would not take issue with the non-availability of Dr Evans, and submitted to the Tribunal that from a jurisdictional perspective Dr Evan's [sic] evidence would be of little value as he gave an opinion on a nature and conditions claim having no regard to the injury date of 20 June 1989. The Applicant then commenced to argue that the Tribunal had jurisdiction to consider a nature and conditions claim. 23 The transcript of the Tribunal hearing bears out the respondent's account of how the jurisdictional issue arose as well as the applicant's account of the vigorous objections made as to the Tribunal entertaining the jurisdictional issue. It seems likely that until the unavailability of Dr Evans' evidence precipitated a discussion of the proper construction of the claim, each side assumed that its own interpretation was non-contentious and each was taken by surprise when the competing constructions were raised before the Tribunal. 24 This is not a case of one side or the other being denied procedural fairness. Each party had proceeded on its own construction of the claim made by the applicant. That being so, the question is, as the applicant submitted, "how the existing claim should be interpreted". 25 The respondent did not contend that a nature and conditions claim could not be made under the SRC Act but rather that, in this case, no such claim had been made. Indeed the identification of a specific date on which the claimed injury occurred was regarded by the respondent as inconsistent with a nature and conditions claim. 26 If the respondent's construction of the claim is correct then it must follow that the Tribunal was correct in concluding that it had no jurisdiction to consider a nature and conditions claim because the conditions for enlivening that jurisdiction had not been met. In relation to an injury arising from the nature and conditions of the applicant's employment, there had been no notice under s 53; no determination under s 60; no reviewable decision under s 62; and no application under s 64. It would follow from this that the applicant's claim to have been denied procedural fairness must fail. 27 The applicant did not take issue with these consequences of the Tribunal's characterisation of the claim but confined himself to maintaining that when the claim is considered in all the circumstances that were known at the time it is clear that the applicant was not claiming compensation for a specific injury that occurred on 20 June 1989 but for the consequences of the cumulative result of repetitive work or a series of recurring injuries arising out of the bending, lifting and twisting required in the applicant's work as a meat inspector. 28 In Abrahams v Comcare (2006) 93 ALD 147 at [18], Madgwick J articulated the following principles applicable to the construction of notices of injury and claims for compensation made under the SRC Act: 1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation must 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. 29 The applicant contends that, contrary to these principles, the Tribunal failed to take account of the four additional incident reports lodged by the applicant, all of which alleged strains to the back arising out of repeated lifting, bending and twisting. The evidence before the Tribunal was that when he took time off after some of these incidents he was paid compensation. The respondent also paid for spinal fusion surgery that was carried out in 1991. The applicant submitted that this evidence indicates that the additional accident reports and the spinal surgery were treated as extensions of his earlier claim. 30 The principles set out by Madgwick J in Abrahams are directed to the construction of a claim and will have the greatest impact where the claim is vague or ambiguous. Nothing in those principles or in Madgwick J's reasons in Abrahams suggests that the words of the claim can be ignored. This was clearly the view of Jagot J, where her Honour, sitting as a Presidential Member of the Tribunal in Durham v TNT Australia Pty Ltd [2011] AATA 802 said at [51]-[53]: [I]n conducting a review under s 64 of the Act, the Tribunal's jurisdiction does not depend on the respondent's characterisation of the claim. Rather, the Tribunal must assess for itself the true scope of the claim and is empowered to conduct its review on that basis. This is not to say that the jurisdictional preconditions set out in the Act … are dispensed with where the Tribunal's characterisation of an applicant's claim differs from that of the respondent. In such a case, it must be understood that the claim itself - interpretive issues aside - has been the subject of a determination, an application for reconsideration, a reviewable decision and an application to the Tribunal, and that the Tribunal's jurisdiction under s 64 has therefore been enlivened. The result is that the question whether the Tribunal has jurisdiction in the present case is to be resolved by reference to the scope of Mr Durham's claim for compensation. 31 Mr Durham's notice of injury described his injury as being to the right knee and as having happened as a result of "wear and tear over 26 years as a [pick-up and delivery] driver" and the date of the injury was recorded as "unknown". Her Honour described the content of Mr Durham's claim form at [56] of her reasons: In the actual claim for compensation under the Act made on 10 May 2010, Mr Durham's "injury or illness" was described as "knee right - total replacement arthroplasty". In response to the question, "What were you doing at the time you were injured or contracted your illness?" Mr Durham wrote, "getting in and out of van". The same response was provided to the question "what actually injured you, or made you ill?" Mr Durham also recorded that he was first injured or first noticed he was ill on 12 April 2007, and that he sought medical treatment for his injury or illness from Dr Yap on the same day. 32 In contrast Mr Szabo's claim was quite different. Mr Szabo in his accident report dated 20 June 1989 described his injury as "back (lower) strain" occurring at 9.50 am that day. He described the work he had been engaged in as: Constant lifting and bending whilst carrying out inspection duties on mutton chain (Lifting front legs to inspect under necks) Mr Szabo made a claim for this injury on 21 June 1989 and at [26] the Tribunal set out this claim as follows: Inspecting Lambs Constant Bending and Lifting M C Herds Baccus Marsh Rd Corio Continuous Lifting of Lamb Shanks 33 Although the claim mentioned constant bending and lifting it identified the subject matter of the claim as a specific injury that had been suffered at a specific time (9.50 am) on 20 June 1989. Presumably it was the reference to "constant bending and lifting" that the Tribunal had in mind when it commented that Mr Szabo's claims "may appear to have been worded" as a nature and conditions claim and it was the identification of a specific injury occurring at the stated time and date that led the Tribunal to reject that characterisation. It would of course have been preferable for the Tribunal to have been explicit on the point however in accordance with the principle that the reasons of an administrative tribunal should not be subjected to over zealous scrutiny I do not regard this as indicative of reviewable error. 34 The applicant's submission that the respondent had treated the additional accident reports and his need for spinal surgery as extensions of his earlier claim (see [29] above) is not consistent with the findings of fact made by the Tribunal. As mentioned above the Tribunal found that the 1985 injury was a significant injury which continues to cause the applicant pain but for which he has been compensated. Three additional findings of fact made by the Tribunal are crucial to this appeal. First, the 1985 injury was followed by further incidents causing back and leg pain, including the 1989 injury which were short-term aggravations of the 1985 injury. Secondly, the 1989 injury had resolved after a short time and the applicant no longer suffers from this injury. Thirdly, the back pain from which the applicant presently suffers is a result of the 1985 injury. Consequently the Tribunal concluded that as the applicant has already been compensated for the 1985 injury and as the 1989 injury has resolved no compensation was payable. 35 In support of their submissions concerning whether the Tribunal had jurisdiction to take into account injuries unrelated to the 1989 injury both parties referred to the decision of Bennett J in Australian Postal Corporation v Sellick (2008) 245 ALR 561. In Sellick, her Honour held that a claim made in respect of a soft tissue injury to the right shoulder did not confer jurisdiction to consider a degenerative condition of the spine. Her Honour commented at [70]-[71]: This is not a case like Abrahams, where the medical diagnoses differently described the same injury as that claimed. The way that Mr Sellick described the pain in his shoulder did not limit the relevant injury to the right shoulder. However, the claim was for an injury that covered pain in the right shoulder. … The notice and the claim referred to right shoulder pain which had resolved. 36 Her Honour referred to medical certificates that diagnosed some upper back pain and minor soft tissue injury to Mr Sellick's spine and added that those conditions had caused pain to the mid-thoracic spine which was a different area from that which was the subject of the claim. The Tribunal had failed to explain how this pain was related to the claimed injury of shoulder pain in circumstances where the shoulder pain injury had resolved and this failure constituted an error of law such that Bennett J remitted the matter to the Tribunal for reconsideration. 37 In so far as Sellick was concerned with a description and cause of an injury as opposed to the date of the incident causing the injury the respondent agreed with the applicant that the case is distinguishable from the present matter. The distinction is clear from the following comment of Buchanan J in the Full Court which considered an appeal from the second Tribunal decision: Sellick v Australian Postal Corporation (2009) 113 ALD 58. His Honour (with whom Mansfield and McKerracher JJ agreed) said at [23]: 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. However, it is not necessary to give further attention to that issue in the present case. The scope of the case which was advanced on Mr Sellick's behalf before the AAT, when the matters were remitted to it, was not determined, in this respect at least, by any ruling made by Bennett J but by forensic choices made at the beginning of the resumed case. As I have said, no error of law arises from that issue. 38 The respondent submits however, that in the present matter there is no confusion as to the applicant's description of his injury or as to the cause of the injury. In the respondent's submission, the jurisdictional issue in the present matter "was whether, consistent with the authority of Bennett J in [Sellick], the Tribunal could consider and determine other specific incidents not the subject of a claim form under s 54 of the SRC Act" in circumstances where the applicant had not sought a determination under s 60 in respect of those incidents. Those other incidents occurred after the date specified in the applicant's claim as the date on which the injury in respect of which the claim was made had occurred. While the symptoms to which they referred might have been understood as flowing from the 1989 injury, the Tribunal's finding of fact was that the 1989 injury had resolved by 13 June 2008. 39 The Tribunal's reasons show that careful consideration was given to the medical evidence presented to it. Its finding of fact was based on medical evidence that the Tribunal was entitled to accept. It involved the rejection of medical evidence that the Tribunal was entitled to reject. The Tribunal said at [96] of its reasons: 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. 40 There was no error of law in the Tribunal so finding and, whether or not this Court would have come to the same conclusion, it has no jurisdiction to interfere with the Tribunal's finding. It follows that the application must be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.