What's News in Commonwealth Compensation

A’Beckett and Comcare [2009] AATA 604 (14 August 2009) Melbourne

The Applicant lodged a claim, on behalf of her daughter, with the Respondent in December 2005 seeking compensation under section 17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for her deceased husband’s work-related death in September 2005. The Applicant also claimed compensation for her husband’s funeral expenses under section 18 of the 1988 Act. In January 1996, the Respondent rejected the Applicant’s claims and these decisions were affirmed upon reconsideration in June 2006. The review officer dealt only with the section 17 claim, therefore, the Tribunal in this instance opined that it did not have jurisdiction to review the section 18 claim.

The issues for the Tribunal were whether the deceased suffered an injury within the meaning of the 1988 Act, if so, whether that injury resulted in the deceased’s death, and whether the deceased died leaving a dependant in the terms of the 1988 Act.

As to the issue of whether the deceased suffered an injury, the Tribunal noted that discrete events involving rupture, breaking or occlusion which cause a disturbance of the normal physiological state, although arising out of an autogenous disease, are properly described as an injury simpliciter for the purposes of the 1988 Act. On the weight of the medical evidence before it, the Tribunal was satisfied that an occlusion which occurred in the deceased’s pulmonary artery or arteries in November 2000 clearly caused a disturbance of his physiological state, which was distinct from his underlying disease, and as such, constituted an injury simpliciter for the purposes of the 1988 Act.

The Tribunal was satisfied that the injury sustained by the deceased as a result of pulmonary embolism in November 2000 was an ‘injury’ for the purposes of the 1988 Act given that his travel from Melbourne to Sydney to attend work-related meetings with colleagues constituted an activity incidental to his employment.

Whilst the Tribunal was satisfied that the deceased suffered an injury in the course of his employment in November 2000, it found that the pulmonary embolism suffered by him did not result in his death some five years after that event. On the weight of the medical opinion before it, the Tribunal noted that his death most likely resulted from an acute myocardial infarction brought on by coronary artery disease, and the coronary artery disease was not causally connected to his pulmonary embolism. Despite the fact that the link between the deceased’s pulmonary embolism and his subsequent death did not need to be a direct or natural or even probable consequence, the Tribunal was unable to find that it caused, contributed to or accelerated the deceased’s death.

The Tribunal did not need to consider whether the deceased’s daughter was wholly dependent on her father at the date of his death in light of its findings regarding causation.

Jurisdiction

Capodicasa and Australian Postal Corporation [2009] AATA 617 (20 August 2009) Melbourne

The Applicant lodged with the Tribunal an application for review of a purported decision made by the Respondent in March 2009 regarding the reinstatement of incapacity benefits. The incapacity benefits claimed related to an injury the Applicant suffered in August 1998 for which the Respondent had accepted liability. That injury was described as “aggravation to degenerative disc disease and depressive illness sequelae at L3/L4, L4/L5 and L5/S1”.

When the Tribunal advised the Respondent of the application pursuant to section29 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), the Respondent contended that its letter of 3 March 2009 did not contain material which would permit it to properly be described as a reviewable decision for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”).

On 5 January 2009, the Applicant’s solicitors wrote to the Respondent regarding an allegation that the Applicant had failed to comply with the return to work plan of December 2008 and therefore the Respondent proposed suspending his claim for compensation. The Applicant’s solicitors noted that his claim for partial incapacity benefits ceased fromOctober 2007 on the recommendation of the Applicant’s treating doctor, and also because the Applicant’s claim for secondary depression/stress was rejected by the Respondent. The Applicant’s solicitors asked that incapacity benefits be reinstated from 24 November 2008 on the basis that current medical certificates referred solely to the Applicant’s back injury and liability for that injury was ongoing.

The Respondent responded to the Applicant’s solicitor’s request of 5 January 2009 in a letter dated 3 February 2009. It said:

Finally, on the issue you have raised regarding your clients [sic] entitlement to partial incapacity payments, I note that all applications lodged by you to the Administrative Appeals Tribunal on behalf of your client were affirmed by the Tribunal on 16September2008.

The Applicant’s solicitors responded to the Respondent’s letter of 3 February 2009 in a letter dated 18 February 2009. It referred to Australia Post’s letter and said it understood that letter to contain a decision rejecting the Applicant’s claim for partial incapacity benefits on the basis that his application for partial incapacity benefits was dealt with by the Administrative Appeals Tribunal on 16September2008. It pointed out that the Tribunal could only make decisions regarding the status of a claim which is before it and noted that the previous claim for partial incapacity benefits was for the Applicant’s back injury and stress. It repeated that the current claim relied on the back injury only. The Applicant’s solicitors did not point out that the claimed reinstatement of partial incapacity benefits was for a period unrelated to the claims made by the Applicant in the applications which were confirmed by consent by the Tribunal on 16September2008.

The Respondent responded to the Applicant’s solicitor’s letter of 18February2009 by letter dated 3 March 2009. In that letter, the Respondent referred to the Applicant’s new claim, which was lodged on 5 January 2009, but which related to an injury said to have occurred on 1 July 2008. The Respondent pointed out that the claimed accident on 1 July 2008 resulted in a medical certificate being issued for one of the two days claimed. It also pointed out there were no further restrictions imposed. The Respondent said there was no indication that the Applicant suffered a new, distinct injury or partial incapacity for work. It then concluded that the Applicant had already been deemed as having the capacity to earn his pre-injury salary, which was the matter addressed by the Tribunal. The Tribunal noted that it appeared that the Respondent, in responding, assumed that the reinstatement of incapacity benefits sought by the Applicant resulted from the claimed injury of 1 July 2008. The Tribunal noted in this instance that this was “clearly a misunderstanding”.

The Tribunal noted that it needed to be satisfied that it had before it a “reviewable decision” as that expression is defined in the 1988 Act for it to have jurisdiction to determine whether the Applicant was entitled to partial incapacity benefits. The question which arose for the Tribunal was whether the Respondent’s letter to the Applicant, which noted that all applications lodged to the Tribunal on behalf of the Applicant were affirmed on 16 September 2008, could properly be construed as a decision as that word is defined in the AAT Act.

The Tribunal found that the statement made by the Respondent that the Applicant had already been deemed as having the capacity to earn his pre-injury salary could, as a matter of ordinary construction, be regarded as an affirmation of its refusal to accept the Applicant’s incapacity benefits claim, and not the subsequent claim brought on 5 January 2009. The Tribunal was satisfied that it had before it a “reviewable decision” as that expression is defined in the 1988 Act. It necessarily followed that the Tribunal had jurisdiction to review the Respondent’s decision to refuse the Applicant’s incapacity benefits claim from 24November 2008 and continuing.

There being a reviewable decision before the Tribunal for the purposes of the 1988 Act, the Tribunal had jurisdiction to review the Respondent’s decision.

Procedure & Costs

Notice provisions & Time limits

Licensees’ liability

Recovery of compensation

Permanent impairment

Medical expenses

Rehabilitation

Medical examinations

McLennan and Military Rehabilitation and Compensation Commission [2009] AATA 608 (11 August 2009) Brisbane

In the substantive proceedings, the Applicant sought review of a decision made by the Respondent in January 2009 which affirmed on reconsideration an earlier determination made in June 2008 that the Respondent was not liable to pay the Applicant compensation for permanent impairment for an accepted injury of “irritable bowel syndrome”.

The Tribunal here was concerned with the consequences of a notice given to the Applicant by the Respondent in reliance on section 57(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) which required the Applicant to undergo an examination by a legally qualified medical practitioner nominated by it. It was common ground that the Applicant refused to attend the appointment.

The argument for the Applicant was that he had already undergone an examination required by section 57(1) of the 1988 Act and the reference in that section to “one legally qualified medical practitioner” meant that the power of the Respondent to require examination was spent. The Respondent contended that the Applicant’s refusal to attend the examination attracted the operation of section 57(2) of the 1988 Act with the consequence that his rights to continue to present proceedings had been suspended and the further consequence that the Tribunal lacked the jurisdiction to take any further steps in the proceeding.

In response, the Applicant contended to the contrary and said that, either because the section 57 notices were issued unlawfully and/or because he had a reasonable excuse for his failure to comply with them, his rights had not been suspended and the Tribunal had jurisdiction such that the proceedings ought to continue in the ordinary way through to hearing.

In these proceedings, it was for the Tribunal to consider whether the notices were lawful and whether the Applicant had a reasonable excuse for his admitted failure to attend the examinations in accordance with the notices, so as to determine whether or not the proceeding were, in effect, suspended.

The Tribunal highlighted that the argument for the Applicant about the lawfulness of the requirement could not be accepted as it was “contrary to a long line of authority to the effect that”:

“The language used in s 57(1) in its present form does not prohibit, in terms, a number of examinations, but on a plain reading requires that each examination should be by only one legally qualified medical practitioner as opposed to a panel or group of practitioners all of whom are legally qualified”: Re Mutton & Linfox Armaguard Pty Ltd [2009] AATA 352 at [17].

On that basis, the Tribunal rejected the proposition that the Respondent’s requirement to attend the examination was not lawful. The Tribunal further noted that it was difficult to see how it could be concluded that the Respondent was “doctor-shopping” considering that the Respondent’s submissions pointed out that there was a degree of confusion in the existing medical evidence which would have warranted the obtaining of a further report. The Tribunal pointed out that putting the matter in the way advanced by the Applicant invited the error identified by Kiefel J in Telstra Corporation Limited v Administrative Appeals Tribunal [2003] FCA 102, 37 AAR 40 of asking whether, reasonably, the Applicant ought to be excused rather than whether he had a reasonable excuse.

The Tribunal directed that no further action be taken in relation to these proceedings without the leave of the Tribunal.

Aids and appliances

Household assistance