FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Oudyn [2003] FCA 318

ADMINISTRATIVE LAW – jurisdiction of the Administrative Appeals Tribunal – compensation of Commonwealth government employees – Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether a decision to cease compensation under s 14 precludes a claim for permanent impairment under s 24 – whether a reviewable decision made under s 60

Administrative Appeals Tribunal Act 1975 (Cth) ss 3(2)(a), 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 15, 24, 60, 62, 64, 69

Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 considered

Plumb v Comcare (1992) 39 FCR 236 (FC) cited

AUSTRALIAN POSTAL CORPORATION v HENDRIKUS JOSEPHUS OUDYN

Q30 OF 2002

AUSTRALIAN POSTAL CORPORATION v D W MULLER IN HIS CAPACITY AS A SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL AND HENDRIKUS JOSEPHUS OUDYN

Q120 OF 2002

COOPER J

BRISBANE

10 APRIL 2003

THE COURT ORDERS THAT:

1.         The application in proceedings Q30 of 2002 is dismissed.

2.         The applicant pay the respondent’s costs of and incidental to the proceedings in Q30 of 2002, including reserved costs, if any, to be taxed if not agreed.

3.         The application in proceedings Q120 of 2002 is dismissed.

4.         The applicant pay the respondents’ costs of and incidental to the proceedings in Q120 of 2002, including reserved costs, if any, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

background

1                     At all relevant times Hendrikus Oudyn (“Mr Oudyn”) was an employee of the Australian Postal Commission (“APC”).  On 2 August 1999, Mr Oudyn was injured in the course of his employment.  As required by ss 53 and 54 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), he gave the requisite notice and lodged a written “Claim for Rehabilitation and Compensation” in the approved form.  Attached to the claim form were details of the medical expenses incurred by him to the date of the claim (5 August 1999).  Mr Oudyn was off work for a short period of time and then returned to work on restricted duties.  APC accepted his claim.

2                     On 18 May 2000, APC, by a claims manager Mr Hoffman, wrote to Mr Oudyn.  The letter, so far as is presently relevant, stated:

“I refer to your claim for compensation in respect of the injury to your legs which you suffered on 2 August 1999.

...

All specialists have confirmed your capacity to return to normal work hours as performed prior to the incident in August 1999.  I note in fact that you have returned to your pre injury work hours at similar rate of pay and will return to your previous job next week.

Determination

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 and Compensation Act 1988.

A notice is enclosed indicating rights available to you if you do not agree with this decision.  You are welcome to telephone me if there is any matter that you would like to discuss or clarify in this connection.”

(Original emphasis)

3                     By letter dated 12 February 2001, Mr Oudyn, by his solicitor, lodged a claim for lump sum compensation for permanent impairment.  The claim was supported by medical reports by Dr Peter Mulholland.

4                     For reasons which are set out below, Mr Oudyn’s claim for compensation for permanent impairment was referred to a Reconsiderations Delegate, who considered all the medical opinions, including those of Dr Mulholland presented by Mr Oudyn in support of his claim.  The Reconsiderations Delegate decided “ ... that the determination of 18 May 2000 by the Claims Manager to deny liability for compensation be AFFIRMED on reconsideration”.  In a covering letter dated 27 February 2001, the Reconsiderations Delegate said:

“I have referred the claim for permanent impairment to the Claims Manager for original determination.”

5                     On 9 April 2001, Mr Oudyn made an application to the Administrative Appeals Tribunal (“the AAT”) for review of the decision of the Reconsiderations Delegate made on 27 February 2001.  The stated reasons for the review were that:

(a)        his injuries remained compensable;

(b)        he was entitled to lump sum compensation for permanent impairment and non-economic loss.

That application was numbered Q2001/316 in the AAT.

6                     On 8 March 2001, APC by its claims manager Mr Hoffman, wrote to Mr Oudyn’s solicitors in the following terms:

“I refer to your further letter of 6 March 2001 in relation to the claim for compensation by Mr Oudyn.

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.”

On 1 June 2001, Mr Oudyn, by his solicitors, made a written request for reconsideration of Mr Hoffman in his letter to Mr Oudyn’s solicitors dated 8 March 2001, set out above. 

7                     On 27 July 2001, the solicitors for APC sent the following letter to Mr Oudyn’s solicitors:

“We refer to your letter dated June 1, 2001 enclosing a formal request for reconsideration in relation to the letter of Australia Post’s Claims Manager of March 8, 2001.

We advise that there can be no reconsideration of the contents of the letter from the Claims Manager to Maurice Blackburn Cashman of March 8, 2001 as in our opinion, it does not constitute a ‘determination’.  Rather, it constitutes communication or advice that a reconsideration has already occurred.  By your reasoning, any letter sent to your client by Australian Post would be a determination capable of review.  This is patently absurd.

Accordingly, there can be no reconsideration, as there is no determination.”

8                     On 21 August 2001, Mr Oudyn lodged an application in the AAT seeking review of the failure and/or refusal of APC to process his permanent impairment claim.  Those proceedings were numbered Q2001/753.

the proceedings in the aat

9                     The two proceedings in the AAT were heard together. 

10                  APC denied the jurisdiction of the AAT to review the matters complained of in proceedings Q2001/753 for want of a reviewable decision as required by s 64 of the Act.  It also contended that the claim of Mr Oudyn for compensation for permanent impairment was not an issue properly before the AAT in proceedings Q2001/316 because it was brought under s 24 of the Act and was not the subject of any determination by APC.

11                  APC submitted that :

(a)        the decision of the claims manager made on 18 May 2000 that there was no further entitlement to compensation under s 14(1) of the Act necessarily included a determination that the injury did not result in permanent impairment;

(b)        while there existed a determination that no permanent impairment arose in consequence of a compensable injury under s 14(1) of the Act, no occasion arose to assess a claim for lump sum compensation in accordance with s 24 of the Act;

(c)        the Act did not contemplate or provide for a lawful claim under s 24 of the Act, in the absence of a determination of liability to pay compensation under s 14(1) of the Act;

(d)        not being under any statutory duty to determine the claim made under cover of the letter dated 12 February 2001, the failure to process the claim does not amount to a reviewable decision; and

(d)        the contentions relied upon followed from the decision of a Full Court of this Court in Lees v Comcare [1999] FCA 753;  (1999) 56 ALD 84.

the aat decision

12                  The AAT, after referring to the submissions before it, and considering the judgment in Lees v Comcare, concluded :

“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.”

proceedings in this court

13                  APC commenced proceedings purportedly under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) seeking review of the decision.  Those proceedings were not pressed and in lieu proceedings seeking relief under s 39B of the Judiciary Act 1903 (Cth) were filed on the basis that the decision of the AAT was made in error and without jurisdiction.

14                  APC submitted that the claim by Mr Oudyn made on 12 February 2001 for compensation for permanent impairment under s 24 of the Act has not been the subject of any primary decision, or reconsideration decision under s 62 of the Act, on the part of APC.  Thus, it submitted, there was no reviewable decision as defined in s 60(1) of the Act.  Absent a reviewable decision, as defined, there was no jurisdiction under s 64 of the Act or under the AAT Act, open to the AAT to review Mr Oudyn’s application under s 24 of the Act.

15                  APC further submitted that the reviewable decision made on 27 February 2001 did not deal at all with Mr Oudyn’s entitlement for compensation for permanent impairment under s 24 of the Act.  The letter of 8 March 2001 was, it submitted, nothing more than conveying advice as to the operation of the statutory scheme falling short of constituting a decision in respect of the claim.

16                  Mr Oudyn submitted that, as the AAT found, the decision of APC on 18 May 2000 and the reconsideration decision both involved a finding that the injury sustained by Mr Oudyn on 2 August 1999 no longer resulted in impairment which necessarily included permanent impairment.  The reconsideration decision, it was submitted, determined adversely to Mr Oudyn his claim for compensation for permanent impairment whether or not it was considered as a claim for which APC was liable under s 11 or s 24 of the Act.

17                  It was submitted by Mr Oudyn that if, notwithstanding the decision of 27 February 2001, there remained something to be done on the part of APC to deal with his claim made by letter dated 12 February 2001 for a lump sum payment of compensation for permanent impairment, that APC by its letter of 8 March 2001 refused or rejected the claim, or refused to make a decision to accept or reject the claim as it was obliged to do under s 69 of the Act.  The decision conveyed by the letter of 8 March 2001 was either affirmed by APC when reconsideration was sought by Mr Oudyn’s solicitors, or APC refused to make a determination on the application for reconsideration; such affirmation or refusal to make a determination being contained in the letter of the solicitors for APC dated 27 July 2001.

18                  It was submitted that if, as a matter of construction, the letters of 8 March 2001 and 27 July 2001 constituted a refusal to make a decision, then by the operation of s 60(1) of the Act, insofar as it relates to the definition of “decision”, and, s 3(2)(a) of the AAT Act, the refusal became a reviewable decision for the purposes of ss 62 and 64 of the Act.

the statutory scheme

19                  Compensation payable to employees, as defined by s 5 of the Act, is dealt with by Pt II of the Act.  Division I of the Part deals with compensation for injuries (s 14), compensation for loss or damage to property (s 15), and compensation in respect of medical expenses and related expenses (s 15).

20                  Section 14 of the Act provides:

“14      Compensation for injuries

(1)       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.

(2)       Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)       Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”

21                  An “injury” is defined in s 4 of the Act as:

“injury means:

(a)       a disease suffered by an employee;  or

(b)       an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment;  or

(c)        an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

22                  Divisions 2, 3 and 4 of Part II of the Act deal more specifically with the liability created by s 14.  Division 4 deals with injury to an employee which results in a permanent impairment.

23                  Section 24 of the Act provides:

“24      Compensation for injuries resulting in permanent impairment

(a)       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.

(2)       For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a)       the duration of the impairment;

(b)       the likelihood of improvement in the employee’s condition;

(c)        whether the employee has undertaken all reasonable rehabilitative treatment for the impairment;  and

(d)       any other relevant matters.

(3)       Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4)       The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5)       Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6)       The degree of permanent impairment shall be expressed as a percentage.

(7)       Subject to section 25, if:

(a)       the employee has a permanent impairment other than a hearing loss;  and

(b)       Comcare determines that the degree of permanent impairment is less than 10%;

            an amount of compensation is not payable to the employee under this section.

(7A)     Subject to section 25, if:

(a)       the employee has a permanent impairment that is a hearing loss;  and

(b)       Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;

an amount of compensation is not payable to the employee under this section.

(8)        Subsection (7) does not apply to any one or more of the following:

(a)        the impairment constituted by the loss, or the loss of the use of a finger;

(b)        the impairment constituted by the loss, or the loss of the use, or a toe;

(c)        the impairment constituted by the loss of the sense of taste;

(d)        the impairment constituted by the loss of the sense of smell.

(9)        For the purposes of this section, the maximum amount is $80,000.”

24                  Part V of the Act relates to claims for compensation under the Act.  The right to receive compensation is dependant upon the making of a claim:  s 54(1). The claim is to be made in writing in accordance with the form approved by Comcare for the purposes of s 54(2)(a).

25                  Part VI of the Act is concerned with the decision-making process which includes the original decision or determination, a reconsideration of that decision and a review of the reconsidered decision or determination by the AAT.

26                  In respect of Pt VI of the Act, a Full Court of this Court (Wilcox, Branson and Tamberlin JJ) in Lees v Comcare [1999] FCA 753 said (at [33] - [37]):

“[33]  Section 60 contains definitions, among 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.

[36]    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.

[37]    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.”

27                  As to the liability to pay compensation as provided for in s 14 of the Act, the Full Court had earlier said (at [27]):

“[27]  As Finn J noted, 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’ Part II of the Act.  That is, it is a liability limited in its extent by other provisions of Part II of the Act (see, for example, s 17(2)).  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),(5), 19, 20, 24 and 25).”

28                  The jurisdiction of the AAT is to review a reviewable decision:  s 64.  In respect of such a review, the Full Court said in Lees (at [39]):

“[39]  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.  Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act.  The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”

the determination of 18 may 2000

29                  APC purported to determine on 18 May 2000 that it had no further liability to pay compensation and Mr Oudyn had no further entitlement to claim compensation under any section of the Act, including s 24.  It contended that he did not then have permanent impairment as a result of the injury sustained on 2 August 1999, and could not thereafter bring a claim for compensation for permanent impairment to be assessed under s 24 of the Act while the determination remained in existence.  Since 18 May 2000, the whole of the conduct of APC in its dealings with Mr Oudyn have been based on that contention.

30                  The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury.  A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in par [35] of its reasons.

31                  The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24.  These determinations give substance to the liability “... to pay compensation in accordance with this Act”, provided for in s 14.  They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act.  The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act.  Once discharged it is terminated.

32                  The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees.  A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury.  The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.

33                  Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant.  It is a determination under that section.  It operates in respect of the claim then in existence for the payment of compensation under that section.  It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.

34                  APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act:  Plumb v Comcare (1992) 39 FCR 236 (FC) at 240.  Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury.  The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.

35                  The determination of APC made on 18 May 2000 involved two elements.  The first was that the effects of the injury sustained on 2 August 1999 had resolved. That is, that the injury no longer resulted in an incapacity for work or an impairment.  The second element was a consequence of the first.  It was to terminate, as and from the date of the determination, the payment of compensation then being made to Mr Oudyn under one or more sections of the Act.  To the extent that APC attempted to exonerate itself from future liability and to foreclose any future claims by Mr Oudyn by the determination, APC was in error as to its power to do so by the determination.

36                  For the reasons which I set out above, the determination did not, and could not, for the future preclude Mr Oudyn from an entitlement to compensation in respect of the injury sustained on 2 August 1999 if he was otherwise entitled to receive compensation in accordance with the Act.

37                  Notwithstanding the determination of APC made on 18 May 2000, Mr Oudyn was entitled to make the claim for permanent impairment under s 24 of the Act which he did by letter dated 12 February 2001 from his solicitors.  APC was obliged to make a determination accurately and quickly in relation to that claim:  s 69;  Lees at [14].  The application required APC to again revisit the issue as to whether or not, at the time this determination was to be made, the injury Mr Oudyn had sustained on 2 August 1999 had resulted in impairment, and if so, whether the impairment was permanent:  s 24(2) and (5) of the Act.

the application for assessment under s 24 of the act

38                  Until the determination of 18 May 2000, the existing determination under s 14 established that APC would be liable to pay compensation to Mr Oudyn if the injury of 2 August 1999 resulted in permanent impairment.  The only issues which required determination under s 24 of the Act were whether or not Mr Oudyn had a permanent impairment and, if he did, the amount payable under s 24 in respect of that impairment:  Lees pars [48], [50].  The determination made on 18 May 2000 purported to determine this issue against Mr Oudyn by deciding that he had no entitlement thereafter on any basis, including under s 24 of the Act, to compensation from APC.  The basis of that determination was the factual finding based on the medical evidence that Mr Oudyn was not then suffering an incapacity for work or impairment as a result of the injury suffered on 2 August 1999.  It was against this background that Mr Oudyn’s claim under s 24 of the Act for compensation for permanent impairment was made under cover of his solicitor’s letter dated 12 February 2001.

39                  The claim for compensation for permanent impairment made under cover of the letter dated 12 February 2001 necessarily sought and required reconsideration of the determination made on 18 May 2000 to the extent that it purported to determine that he had no entitlement to compensation for permanent impairment as a result of the injury sustained on 2 August 1999.  Accordingly, the claim was referred to a Reconsiderations Delegate.  This reference was made under s 62 of the Act.

40                  The issue before the Reconsiderations Delegate was whether or not Mr Oudyn had a permanent impairment as a result of the injury sustained on 2 August 1999, and if so, an entitlement to compensation payable in an amount to be assessed in accordance with s 24 of the Act.

41                  In the reviewable decision of the Reconsiderations Delegate of APC given on 27 February 2001, he said:

“The applicant’s lawyers indicated on 7 June 2000 they would be applying for reconsideration of the Claim’s Manager’s decision and this was duly submitted on 13 February 2001.

In support of his request, the Applicant submitted a report from Dr Peter Mulholland, Psychiatrist.  Dr Mulholland’s report is comprehensive but his opinion and diagnosis is very much left up in the air.  He readily admits that there doesn’t seem to be anything tangibly wrong with the Applicant, ‘Any discussion about what is exactly wrong with Mr Hendrikus Oudyn from the physical and psychological aspects is bound to be contentious and controversial because of the multiple complex factors involved and because of ongoing doubt as to exactly what his problems objectively are.’

Dr Mulholland relates that the Applicant is in chronic pain but there is nothing that objectively shows any cause for the pain.  There is mention of reflex sympathetic dystrophy and regional pain syndrome but again there are no objective signs of either.  If I were to accept liability for this claim I wouldn’t know what to accept it for.  I presume the Applicant would like me to accept a general liability rather than bother with specifics.

On reading through the history of this claim, the word that sprang to mind was ‘bizarre’ and it was no surprise to me that Dr Reddan used the same word in her report.  In physical terms, the Applicant suffered relatively minor injuries that Dr Martin maintains would have only necessitated a short absence from duty.  I think any physical aspects of the claim can be discounted.  This leaves the psychological aspects.

Dr Reddan clearly states that the Applicant does not suffer from a mental illness which incapacitates him for work.  Dr Mulholland seems to be of the opinion that he is totally incapacitated.

I am of the opinion that the Applicant suffered minor physical injuries in the accident and these have long healed.  With regard to his psychological state, I think the accident may have exacerbated pre-existing personality traits for a short period of time but his condition is now caused by other factors which are not related to the accident or his period of employment with Australia Post.

In view of the above, I have decided that the determination of 18 May 2000 by the Claims Manager to deny liability for compensation be AFFIRMED on reconsideration.”

(Emphasis added)

42                  As appears from the reasons of the Reconsiderations Delegate set out above, the issue before him was the acceptance or rejection of the claim made by Mr Oudyn supported by the medical opinion of Dr Mulholland as contained in his reports which were before the delegate.  The delegate determined the claim on its merits and rejected it.  He accepted the opposing medical evidence that on 18 May 2000 there was no longer any incapacity for work or impairment resulting from the injury suffered by Mr Oudyn on 2 August 1999.  He rejected the evidence that Mr Oudyn had permanent impairment as at February 2001 as a result of the injury suffered on 2 August 1999.  He found that any medical condition Mr Oudyn was then suffering from was not as a result of the injury on 2 August 1999.  In those circumstances, he determined on reconsideration to affirm the determination of 18 May 2000 to deny compensation for liability under the Act.   If the delegate had determined otherwise and found that permanent impairment had resulted from the injury, all that would have remained would have been determination of the amount payable under s 24 of the Act in respect of that impairment:  Lees [50].

43                  In affirming the decision of 18 May 2000, the Reconsiderations Delegate affirmed that Mr Oudyn was not then, nor at 27 February 2001, entitled to further compensation under any section of the Act, including s 24, in respect of the injury suffered on 2 August 1999.

apc’s letter of 8 march 2001

44                  The letter was not merely the communication of advice.  If anything remained to be done with respect to Mr Oudyn’s application for compensation for permanent impairment, it was to formally determine that he was not entitled to compensation for permanent impairment to be assessed under s 24 of the Act and to advise him of that determination.  That is what the letter of 8 March 2001 did.  The determination of the Claims Manager was made under s 24 of the Act.  The reason for making the determination, as the letter stated, was the decision of the Reconsiderations Delegate made on 27 February 2001.

45                  Mr Oudyn had a right to request reconsideration under s 62(2) of the Act of the Claim Manager’s rejection of his claim for stated reason.  As the relevant determining authority by virtue of s 60, Mr Hoffman was obliged to reconsider his determination refusing liability for the claim or cause it to be reconsidered by a person to whom its power of reconsideration was delegated:  s 62(4).

46                  The request for review of the determination contained in, or evidenced by, the letter of 8 March 2001, was made by Mr Oudyn.  There has been a refusal by the determining authority to reconsider the determination or to refer it for reconsideration by a delegate.  This refusal is evidenced by the letter of APC’s solicitor dated 27 July 2001.

conclusion

47                  The issue of whether Mr Oudyn had permanent impairment as a result of the injury suffered on 2 August 1999, and was in consequence, entitled to compensation assessed in accordance with s 24 of the Act, has been considered by the requisite two tiers within APC.  This occurred in May 2000 and February 2001.  The decision affirming the earlier decision of 18 May 2000 was a reviewable decision within the meaning of s 60 of the Act.  It was reviewable by the AAT pursuant to s 64(1) of the Act.

48                  It is common ground in these proceedings that a refusal to make a decision is, for the purposes of the Act, a decision itself:  see s 60 of the Act and s 3(3)(a) of the AAT Act.  A refusal to make a decision on reconsideration under s 62 of the Act on a claim for compensation to be assessed pursuant to s 24 of the Act is by the extended definition a determination made under s 62 of the Act.  It was a reviewable decision within the meaning of s 60 and reviewable by the AAT pursuant to s 64(1) of the Act.

49                  The AAT had jurisdiction in proceedings Q2001/316 to review the determination of the Reconsiderations Delegate given on 17 February 2001 that Mr Oudyn had no permanent impairment and thus no entitlement to compensation under the Act.  That necessarily involves a review of the claim of Mr Oudyn to entitlement to compensation to be assessed under s 24 of the Act.

50                  The AAT had jurisdiction in proceedings Q2001/753 to review the refusal of the claim made under cover of the letter dated 12 February 2001 for compensation for permanent impairment, such refusal being contained in or evidenced by the letters of 8 March 2001 and 27 July 2001.

51                  APC has failed to make out a want of jurisdiction on the part of the AAT to review each of the reviewable decisions the subject of the two proceedings in the AAT. 

52                  The application in Q30 of 2002 and the application in Q120 of 2002 will be dismissed.

53                  In accordance with the normal practice, costs will follow the event.

Associate:

Dated:              10 April 2003