FEDERAL COURT OF AUSTRALIA

Comcare v Lofts [2013] FCA 1197

THE COURT DECLARES THAT:

1.    In proceeding number 2011/5248, the Administrative Appeals Tribunal does not have jurisdiction to determine the claim by Ms Lofts for compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of medical treatment obtained in relation to the condition of dysphagia.

THE COURT ORDERS THAT:

2.    The decision made on 8 March 2013 in the Administrative Appeals Tribunal is set aside.

3.    The applicant pay costs incurred by the first respondent and thrown away by reason of the initial proceeding issued under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

4.    There is otherwise no order as to the costs of this proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    The question identified in this case by the applicant is whether the Administrative Appeals Tribunal has jurisdiction to make orders in respect of compensation for the costs of medical treatment incurred by the first respondent (Ms Lofts) in relation to a condition called dysphagia, from which she suffers.

2    The sum involved is not much more than $3,000. It appeared from the oral submissions in this matter that compensation for those medical expenses might eventually be paid to Ms Lofts. Either party could already have taken steps under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) towards that outcome. Neither has done so. Instead, the Court’s and the parties’ resources have been deployed to determine questions of construction of the SRC Act and the jurisdiction of the Tribunal. The Court was informed by both parties that issues of principle and general practice were involved.

3    For reasons that follow, the Tribunal does not have jurisdiction to make orders in respect of compensation for medical expenses said to have been incurred by Ms Lofts in relation to her dysphagia. A declaration and an order setting aside the Tribunal’s decision are the appropriate relief. It is not necessary to grant an order in the nature of prohibition: the Court can expect the Tribunal to act in accordance with its orders and reasons.

BACKGROUND

4    Ms Lofts’ application for review to the Tribunal was on the cusp of being resolved by a consent determination pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Court was informed it should proceed on the basis that Comcare now accepted liability for compensation to be payable to Ms Lofts under s 14 of the SRC Act in relation to her dysphagia. What remains in issue, and what prevented the Tribunal’s consent determination process from being completed, is whether as part of that determination the Tribunal could make orders requiring Comcare to pay compensation to Ms Lofts under s 16 of the SRC Act for identified medical expenses alleged to be in relation to her dysphagia. Those expenses totalled either $3,754.45 or $3,391.00, depending on which document is relied upon of the two available in the evidence before the Court. The former figure is drawn from a document entitled “Notice of Past Benefits”, to which the Tribunal refers in its reasons. The latter figure is drawn from a document entitled “Proposed Orders” which represents the orders Ms Lofts proposed be made by the Tribunal as part of the consent determination process. The differences between them are not material to the Court’s decision. Since the former document is the one on which the Tribunal’s decision is based, that is the one to which I shall refer.

5    The non-resolution of the application for review by consent determination means that the review in the Tribunal is not completed. Accordingly, no appeal under s 44 of the AAT Act is available and the matter must come before this Court in an exercise of its jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth): Director-General of Social Services v Chaney (1980) 31 ALR 571; Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18. Although this proceeding began life as an appeal under s 44, it has been regularised and there was no debate between the parties about this Court’s jurisdiction to entertain Comcare’s application under s 39B of the Judiciary Act. The existence of jurisdiction under s 39B(1A)(c) of the Judiciary Act means that the grant of prohibition is not a necessary condition of the Court’s jurisdiction.

Relevant aspects of the SRC Act

6    The provisions in issue in the SRC Act are some of the foundational provisions concerning Comcare’s liability to pay compensation to Commonwealth employees.

7    Section 14 provides for the general liability of Comcare to pay compensation:

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.

8    Comcare described s 14 as a “gateway” provision and much debate in the parties’ submissions concerned this characterisation. Whether or not that is correct, it is clear that two aspects of s 14 make that provision a general one. First, the phrase “Subject to this Part” is the drafting device by which the remainder of Pt II of the SRC Act (read with the definitions) is able to qualify and define the liability imposed by s 14. Second, through the use of the words “in accordance with this Act”, s 14 directs attention to the nature and extent of compensation payable, matters which are set out in provisions other than s 14: see Lees v Comcare (1999) 56 ALD 84 at [27].

9    Liability in s 14 turns on the concepts of “employee” and “injury”, and the suffering of “death, disease or impairment”. It is through the definitions and qualifications of these terms that other parts of the SRC Act also restrict liability. The term “injury” is central to the operation of the SRC Act, as the High Court made clear in Canute v Comcare (2006) 226 CLR 535. More will be said about Canute below.

10    Section 16 deals with one kind of compensation that is payable: namely, such amounts of compensation for the cost of medical treatment as Comcare determines appropriate.

11    Section 16 provides:

Compensation in respect of medical expenses etc.

(1)    Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

(2)    Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

(3)    For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.

(4)    An amount of compensation payable by Comcare under subsection (1) is payable:

(a)    if the employee has paid the cost of the medical treatment — to, or in accordance with the directions of, the employee; or

(b)    if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost — to that other person; or

(c)    in any other case — to the person to whom the cost is payable.

(5)    Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.

(6)    Subject to subsection (7), if:

(a)    compensation in respect of the cost of medical treatment is payable; and

(b)    the employee reasonably incurs expenditure in doing either or both of the following:

(i)    making a necessary journey for the purpose of obtaining that medical treatment;

(ii)    remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;

Comcare is liable to pay compensation to the employee:

(c)    in respect of the journey — of an amount worked out using the formula:

Specified rate per kilometre x Number of kilometres travelled where:

specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.

numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).

(d)    in respect of the employee remaining for the purpose of obtaining the treatment — of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.

(7)    Comcare is not liable to pay compensation under subsection (6) unless:

(a)    the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or

(b)    if the journey made by the employee involved the use of public transport or ambulance services — the employee's injury reasonably required the use of such transport or services regardless of the distance involved.

(8)    The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:

(a)    the place or places where appropriate medical treatment was available to the employee;

(b)    the means of transport available to the employee for the journey;

(c)    the route or routes by which the employee could have travelled; and

(d)    the accommodation available to the employee.

(9)    Where:

(a)    an employee suffers an injury;

(b)    a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and

(c)    the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure;

Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.

12    Some time in submissions was spent on the meaning and effect of s 16(2). It was relied on particularly in Ms Lofts’ submissions to support her contention that the Tribunal could have jurisdiction to review a decision under s 16 independently of jurisdiction to review a decision under s 14. Whilst it may be that, at a primary decision-making level, a person can make a claim under s 16 — because of s 16(2) — without a claim or decision under s 14, the proper construction of s 16(2) is not determinative of the question arising in this proceeding. The explanation for this is given at [67]-[68] below.

13    The text of s 16 exposes several qualifications about Comcare’s liability. Section 16 operates only on the costs of medical treatment related to the injury that is identified for the purposes of the SRC Act. That medical treatment must be “reasonable for the employee to obtain in the circumstances”. The liability for compensation is identified as being “such amount as Comcare determines is appropriate” to that medical treatment. Use of the phrase “amount of compensation” indicates the provision is directed at compensation by way of specific sums. This is consistent with the use of the word “amount” elsewhere in s 16.

14    Properly construed, s 16 deals with specific and identifiable amounts of compensation for specific and identifiable medical treatment, in relation to an “injury” as the SRC Act defines that term. The provisions dealing with transport costs descend to a level of particularity which is incompatible with a construction of the whole of this section that allows for some ambit or general claim for medical treatment in relation to an injury. It would not be possible for Comcare to carry out the task s 16 requires — an assessment of the relationship between the injury and the medical treatment, an assessment of reasonableness, and a determination of appropriateness — if there were not specific sums of compensation claimed in relation to particularised medical treatment for a specific injury.

15     That is not to say the claimed costs must relate to the past: see Australian Telecommunications Corporation v Davis (1991) 30 FCR 467. However, they must have the requisite level of specificity attached to them to enable Comcare to perform the task s 16 requires. Decisions of this Court on appeal from the Tribunal under s 44 of the AAT Act have approached the construction and application of s 16 on this basis. The approach to the concept of “reasonableness” taken in these cases illustrates the need for specific costs of medical treatment to be identified: see Comcare v Rope (2004) 135 FCR 443; Comcare v Holt (2007) 94 ALD 576.

16    Aside from the operation of ss 14 and 16, several other provisions of the SRC Act should be noted. A claim must be made by a person before compensation is payable: s 54(1). Section 54 requires a written claim but strict compliance is not required: s 54(5). Indeed, in this case, Comcare treated a telephone inquiry from Ms Lofts as a claim, and accepted it was capable of constituting a claim for the purposes of s 54.

17    Initial determinations are made under s 61 of the SRC Act. Provision for reconsideration of a determination is made by s 62. The reconsideration decision is to take the form of a notice setting out the terms of the decision and the reasons for it, together with a statement about a person’s right to review under the AAT Act: s 63. Any reconsideration is a reviewable decision: s 60. The AAT is given jurisdiction to review a reviewable decision: s 64.

18    This is the “three tiered decision-making process” to which the Full Court in Lees referred: 56 ALD 84 at [32]. Comcare rightly placed considerable emphasis on the three-tier decision-making process as a central feature of the legislative scheme of the SRC Act.

COMCARE’S DECISION-MAKING IN RELATION TO MS LOFTS

19    The course of Comcare’s decision-making was canvassed in the Tribunal’s decision to some extent, but was also the subject of submissions in this Court. On Comcare’s part, the purpose of those submissions was to illustrate why some of the Tribunal’s findings were not open to it and could not give it jurisdiction or alter the character of the reviewable decision. On Ms Lofts’ part, the purpose was to support the Tribunal’s findings that Comcare had made decisions under s 16 of the SRC Act in relation to medical expenses for dysphagia, alternatively to demonstrate that what had been sought all along by Ms Lofts was compensation for medical expenses and that was what Comcare’s decision-making had been about. This provided the foundation for the submission by Ms Lofts that a claim for compensation for medical expenses was part of the subject matter of the reviewable decision for the purposes of the Tribunal’s jurisdiction.

20    The evidence before the Court consisted of many but not all of the T documents which are before the Tribunal. Ms Lofts’ submission spent some time describing the history of her injuries and Comcare’s decision-making in respect of them, at least from her perspective. Her submissions invited the Court to make fairly wideranging findings of fact about what had and had not been claimed by her at various times, about why she had been prescribed various medications and about why certain medical procedures were undertaken. Whilst in a proceeding under s 39B of the Judiciary Act it is possible, and may be necessary, for the Court to make findings of fact based on evidence, it is not necessary in this proceeding for the Court to make findings of fact about all of the matters outlined in Ms Lofts’ written submissions.

21    What is necessary is for the Court to make findings whether Ms Lofts made a claim to Comcare under s 16 of the SRC Act in respect of reasonable costs of medical treatment for her dysphagia. That involves making some findings about Ms Lofts’ injuries and how Comcare dealt with her claims. Findings on those matters provide the foundation for the answer to the question about the scope of the Tribunal’s jurisdiction in the review before it.

22    The following facts are established on the evidence before the Court.

23    Ms Lofts worked for Centrelink and in the course of her work dealt with distressed and unbalanced people who could sometimes be violent. It is not contentious between the parties that, in 2002, Ms Lofts suffered an injury to her right shoulder at the hands of one such person in the Centrelink office in which she then worked. She claimed compensation under the SRC Act for that injury.

24    In 2004, Ms Lofts was also diagnosed with multiple sclerosis. This condition was not claimed by her to be the result of any employment-related event. The diagnosis is significant in the proceedings before the Tribunal and these proceedings only because some medical examiners thought that the dysphagia symptoms might have been the result of multiple sclerosis, and the delegate who made the reviewable decision in Ms Lofts’ matter also referred to this possibility.

25    It was also not contentious between the parties that Ms Lofts’ first dysphagia symptoms predated her second injury (described below). Dr Ernest Butler, Ms Lofts’ neurologist specialising in multiple sclerosis, first reported dysphagia symptoms in March 2007. Indeed, the chronology of Ms Lofts’ first experience of symptoms of dysphagia was the key fact relied on by the Comcare delegate in making the reviewable decision denying liability under s 14 of the SRC Act.

26    Ms Lofts suffered a second injury on 8 October 2007. In her claim form she described what happened:

20 Davey Street Frankston ... Side entrance to the office in the foyer 1st floor.

Advised [of] disturbance in the foyer near the entrance (ground floor). As I exited the side door (first floor) to investigate I was slammed into by 2 customers fighting and pinned against the wall.

Slammed against the wall and pinned whilst 2 customers were fighting punching each other. (I believe the fighting began ground floor & then moved to level 1. This [is] where the side door is)

Being crushed against the wall and trying to get free and away from the violence, my shoulder was re-injured and torn. Stress and fear for my safety.

27    By a written claim dated 7 January 2008, Ms Lofts claimed compensation under the SRC Act for the following injuries: the claim in respect of “Tear to right shoulder; aggravation of RSD from claim 800255/1; Right shoulder, neck and right arm & right breast” and “Mental breakdown with aggression in the workplace; anxiety and depression”.

28    On 15 April 2008 and in at least two subsequent decisions (6 December 2010 and 3 March 2011), Comcare accepted liability under s 14 of the SRC Act for post-traumatic stress disorder, major depressive disorder, single episode, rotator cuff (capsule) strain (right), bursitis disorders (left), aggravation of reflex sympathetic dystrophy, upper limb (bilateral), dental caries, agoraphobia with panic attacks, cellulitis and abscess for reflex sympathetic dystrophy, lower limbs (bilateral). Some of the decisions described the injuries slightly differently, but the differences are not material. The evidence before the Court also disclosed at least one decision by Comcare under s 16 of the SRC Act in respect of claims by Ms Lofts for medical treatment expenses arising out of these accepted injuries.

29    In August 2010, Comcare arranged for what it described as a “file review” of Ms Lofts’ conditions to be undertaken by an occupational physician. The review’s tasks and objectives were described thus:

We have asked [the occupational physician] to:

•    Independently review all material held by Comcare;

•    identify all medical conditions contributing to the disability;

•    provide medical clarity to allow Comcare to make further relevant liability decisions; and

•    analysis and provide recommendations of services required regarding all conditions with a goal of attainment of maximum functioning.

The purpose of this is to:

1. Understand her medical conditions and to identify Ms Loft’s care/treatment needs fully

2. Identify goals to assist in her achieving highest possible function

3. Provide relevant services to meet these goals

4. do so comprehensively via a wholistic approach with liaises with the existing treating team to provide the best evidence based services

30    As part of gathering material for this review, Comcare wrote to Dr Rob Lewis, Ms Lofts’ treating general practitioner, and asked for the following:

•    What is the specific diagnosis of any condition Mrs Lofts currently suffers as a result of the incident on 8 October 2007, and

•    What medication have you prescribed for each condition and what is the therapeutic benefits of each medication?

31    The initial response received back from Dr Lewis at the end of August 2010 listed five diagnoses and seven medications in respect of Ms Lofts. The evidence does not disclose precisely what then occurred, save that on 5 October 2010 a Comcare delegate sent a facsimile to Dr Lewis in the following terms:

Dear Dr Lewis

Re: Michele Lofts

DOB 8/8/1963

I refer to my request for information dated 19 August 2010, copy enclosed.

I have been advised by Mrs Lofts that my request was not clear. I apologise if that was the case. To ensure you have provided all relevant information I will now pose the questions in a different format which should enable you to provide full details.

. In your opinion what is the specific diagnosis of any conditions or symptoms Mrs Lofts now suffers? Please list individually.

. what is the cause of the current symptoms or diagnosable conditions? Please list against each noted condition.

. what is the relationship between the symptoms or conditions and the incident on 8 October 2007?

. what medication have you prescribed to treat these conditions or symptoms?

. any further comments you feel relevant.

32    Dr Lewis’ response to this second inquiry listed 10 specific diagnoses and eight medications. Amongst the diagnoses was:

Dysphagia to some solid foods, this appears to be related to reflux of acid, leading to pains in the throat.

33    Again, the evidence about the subsequent sequence of events is incomplete but sufficient for the purposes of the issues in this proceeding.

34    There was evidence before the Court that, in a determination of 6 December 2010, a Comcare delegate decided that “Liability has been extended for the following medications: … Nexium …”. Counsel for Ms Lofts sought to persuade the Court that this approval could be linked to Ms Lofts’ subsequent claim for dysphagia as an “injury” within the meaning of the SRC Act, and could be seen as a decision under s 16 of the SRC Act for costs of medical treatment in respect of that injury. That submission is unpersuasive because the record of determination itself states that Nexium is approved “as specific medical treatment for your accepted compensation claim”. In December 2010, the injuries which Comcare had accepted did not include dysphagia.

35    On 16 February 2011, a Comcare employee returned a telephone call from Ms Lofts. Relevantly, what Ms Lofts said is recorded in the note made of this call by the Comcare employee as:

Ms Lofts then enquired about the other conditions mentioned in Dr Lewis’ report date 5.11.10. I said I would review with my questions and advise decision in writing.

36    Comcare submitted, and I accept, that this telephone call from Ms Lofts was treated by Comcare as the making of a claim under s 14 of the SRC Act in respect of the additional injuries identified by Dr Lewis in response to Comcare’s inquiry and review.

37    On 3 March 2011, Comcare “determined in accordance with section 14 of the Act, that Comcare is not liable for the condition of dysphagia”. It was in this determination that Comcare accepted liability under s 14 for the injury of reflex sympathetic dystrophy, upper limbs (bilateral). Comcare determined that liability be extended to include this condition arising out of the incident on 8 October 2007.

38    It is necessary to refer to an exchange of correspondence between Comcare and the Peninsula Private Hospital on 7 June 2011, in relation to two medical procedures Ms Lofts was scheduled to undergo on that day. The evidence before the Court, which is also before the Tribunal, disclosed that Peninsula Private Hospital sent a facsimile to Comcare in substance requesting on behalf of Ms Lofts whether the procedures she was scheduled to undergo that day (a gastroscopy and colonoscopy) would be covered by Comcare. A Comcare delegate replied by letter dated the same day to the hospital stating:

Comcare will pay for reasonable costs relating to gastroscopy and colonoscopy for this claimant.

39    It is unclear on what material Comcare based this decision. The evidence disclosed that, after the procedures were undertaken, in his report back to Dr Lewis the treating gastroenterologist stated that the procedures were for “the indication of dysphagia”. This statement is referred to in Comcare’s reviewable decision in October 2011, but there is no evidence to suggest that Comcare knew this when it agreed to pay reasonable costs associated with those treatments on 7 June 2011.

40    The events of 7 June 2011 were relied upon by the Tribunal, and Ms Lofts in her submissions to this Court, as evidence for the conclusion that Ms Lofts had made a claim under s 16 of the SRC Act for reasonable medical costs in relation to dysphagia, such that these matters were before the Tribunal on review. For reasons outlined in more detail below, that submission should be rejected.

41    On 28 October 2011, Comcare reconsidered and affirmed its determination dated 3 March 2011 denying liability for dysphagia under s 14 of the SRC Act. This is the relevant reviewable decision for the purposes of the Tribunal’s jurisdiction.

THE TRIBUNAL’S DECISION

42    The consent determination process having stalled, the Tribunal was required to decide the question of whether a claim under s 16 was within its jurisdiction. The Tribunal was faced with what at first glance appeared to be a simple contest. Ms Lofts contended that the Tribunal had jurisdiction to decide whether she was entitled to compensation in respect of the medical expenses listed in the Notice of Past Benefits provided by Medicare, because a claim of that nature had been before Comcare when it made the reviewable decision. Comcare, on the other hand, contended that the reviewable decision was made under s 14 of the SRC Act, was about general liability for compensation for dysphagia and, in reliance on the Full Court decision in Lees, the Tribunal only had jurisdiction to review this denial under s 14 and not any claim under s 16. Comcare contended no claim under s 16 had ever been made by Ms Lofts in relation to medical expenses for dysphagia.

43    Faced with these competing contentions, the Tribunal stated a principle which both parties in this Court accept is correct (Lofts and Comcare [2013] AATA 122 at [21], quoting Fuad and Telstra Corp Ltd (2004) 39 AAR 496 at [4]-[5]):

The fact that the maker of the reviewable decision did not deal with a claim for medical expenses does not preclude the Tribunal from dealing with such a claim if it was properly before the officer who made the reviewable decision.

4. … even though an application for compensation is refused pursuant to s 14 or s 16, with the consequence that the decision-maker does not address fully the actual applications under s 19, s 21 or such other section as is appropriate, nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.

5. It follows that all matters put before the decision-maker as part of a claim under the Act are before this tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.

44    The Tribunal then observed that this approach in Fuad, adopted by the Full Court in Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574, had been considered and applied by Rares J in Telstra Corporation Ltd v Kotevski (2013) 209 FCR 558.

45    The Tribunal then made the key finding of fact that determined which of the competing contentions it would accept:

On the facts before me I am satisfied that a claim for the cost of medical treatment arising from Ms Lofts’ claimed psychological injury was before Comcare from the time the claim form was lodged, on or shortly after 7 January 2008.

(citations omitted)

46    This finding was based on two alternative paths of reasoning. First, the Tribunal found that on her claim form lodged on or shortly after 7 January 2008, in response to a question asking what kinds of treatments she had undertaken for her claimed condition, Ms Lofts had marked the boxes associated with pharmaceuticals and counselling. Based on that fact and the wording of the claim form, the Tribunal reasoned that Ms Lofts had made a claim for compensation under s 16 at that time. Alternatively, the Tribunal found Ms Lofts had made a claim under s 16 the first time she submitted an account to Comcare after the 8 October 2007 incident, which was in February 2008. Notwithstanding there was no diagnosis of dysphagia by then, the Tribunal found that, because it was secondary to the “conditions” for which liability was accepted in April 2008, medical expenses for dysphagia would be “related” to those for the accepted conditions.

47    Having established that Ms Lofts had made a claim for medical expenses under s 16 back in 2008, the next step in the Tribunal’s reasoning was that on 7 June 2011, through a letter to Peninsula Private Hospital where Ms Lofts was scheduled to undergo a gastroscopy and colonoscopy, Comcare “had confirmed that it would pay reasonable costs in relation to the investigation of the claimed condition of dysphagia”. This led the Tribunal to find that both at the time of the original determination under s 14 (3 March 2011) and at the time of the reviewable decision (28 October 2011):

Comcare had before it a claim by Ms Lofts for medical expenses relating to the condition of dysphagia, being part of claim 800255/2.

48    The Tribunal then considered whether the fact that the list of treatment expenses (that is, those contained in the Notice of Benefits) was only submitted to Comcare during the Tribunal proceeding precluded the Tribunal from deciding that compensation was payable in respect of those expenses. The Tribunal held that to require Ms Lofts to make a separate claim in respect of these expenses, and proceed through the three-tier decision-making process in the SRC Act if it was disputed, would be “poor public administration” and inconsistent with the objectives in s 69(a) of the SRC Act. The Tribunal did not consider this approach to be inconsistent with Lees because a claim for treatment costs under s 16 had been made earlier, even though particular expenses were not claimed until after the Tribunal review had commenced.

49    The Tribunal made its decision in the following terms:

1.    The Tribunal has jurisdiction to determine the claim by Ms Lofts for compensation in accordance with section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the cost of medical treatment obtained in relation to the condition of dysphagia suffered by her.

2.    Each of the parties shall file in the Tribunal a hearing certificate in relation to this matter within seven days of the date of this decision.

GROUNDS OF REVIEW

50    Comcare submits the Tribunal’s decision is affected by jurisdictional error in two ways:

The Tribunal erred in law in finding that for the purposes of s 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) a jurisdictional fact existed, that is, claims for compensation for medical expenses under s 16 of the SRC Act had been determined under s 16 of the SRC Act and reconsidered under s 62 of the SRC Act, in respect of dysphagia. In fact, primary and reconsideration decisions in respect of medical treatment expenses for dysphagia have never been made.

The Tribunal failed to take into account a relevant consideration, namely that the dysphagia condition which was the subject of the determination under review, was a separate condition to the injuries previously accepted by Comcare.

The Tribunal failed to take into account that the condition of dysphagia, though secondary to the First Respondent’s accepted injuries, was for the purposes of the SRC Act a separate condition, and, if accepted under s 14, a separate injury.

51    Both these grounds are said by Comcare to involve a contention that the Tribunal “did precisely what the High Court found to be unlawful in Canute” ((2006) 226 CLR 535 at 539-540), namely that it treated the sequela injury (dysphagia) and the accepted injury (namely anxiety/depressive psychological injury) as the same injury.

52    As further developed in argument, partially in response to the submissions on behalf of Ms Lofts, Comcare submitted that a proper analysis of s 16 of the SRC Act means that an employee cannot claim compensation under s 16 on an “at large” basis. Rather, claims and decisions under s 16 must involve consideration of the particular medical treatment in question (actually obtained), the particular cost of that treatment, and whether it was reasonable for the employee to have obtained that particular medical treatment in the circumstances. None of that information, it was submitted, was available to Comcare at first instance or in the reviewable decision, and that is why the reviewable decision could not be said to involve a claim for expenses under s 16.

53    Thus, it is contended by Comcare that either the Tribunal impermissibly treated Ms Lofts’ dysphagia as part of the same “injury” as that for which liability for compensation had already been accepted, or it misunderstood the requirements of s 16 of the SRC Act in relation to how a claim for medical expenses could be determined.

First ground of review as expressed: jurisdictional fact

54     In relation to statutory decision-making, characterisation of a matter as a jurisdictional fact often depends on a number of factors, usually located in the text, context and purpose of the statutory scheme under consideration. Just as for jurisdictional error generally, characterisation of a matter as a jurisdictional fact is a conclusion about the centrality of the existence of that requirement to a lawful exercise of the power under consideration. The difference is that, on judicial review, a Court must be able to identify a legislative intention for a fact to exist objectively (and therefore that the Court itself can determine whether it does) before that matter will be a jurisdictional fact: see the discussion of the twin characteristics of jurisdictional facts (objectivity and essentiality) in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64 per Spigelman CJ.

55    Comcare submits that the jurisdictional fact in the present case is the existence of a “reviewable decision”. That is a submission about what the legislative scheme of the AAT Act (read with provisions such as ss 63 and 64 of the SRC Act) makes both objective and central to the jurisdiction of the Tribunal. Put that way, there is no doubt that the existence of a “reviewable decision” as defined in s 60 of the SRC Act, read with ss 25(1) and (4) of the AAT Act, is essential to the jurisdiction of the Tribunal.

56    Whether it is necessary to characterise this requirement as a jurisdictional fact may be a contestable proposition. Lees 56 ALD 84 does not describe the operation of a reviewable decision through the language of jurisdictional fact and in my opinion it is not helpful to do so.

57    What the Court is required to identify is the reviewable decision that was made by Comcare under s 62 of the SRC Act. That identification will delineate the jurisdiction of the Tribunal. If the reviewable decision included, expressly or impliedly, consideration of Comcare’s liability for compensation by way of medical expenses in the terms of s 16 of the SRC Act, as well as a decision on liability under s 14, then the Tribunal was also authorised to consider and determine that issue.

Second ground of review as expressed: relevant considerations

58    The relevant consideration Comcare identifies is that dysphagia is a “separate condition to the injuries previously accepted by Comcare”. Strictly, that may be evidence, or a factual conclusion, rather than a relevant consideration.

59    What the scheme of the SRC Act does require is that decision-making about a liability to pay compensation must focus on the “injury” the employee is alleged to have suffered:

First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident.

Canute 226 CLR 535 at [10].

60    The hierarchy of provisions in the SRC Act (see Canute 226 CLR 535 at [37]) indicates that it is the occurrence of an injury which both “actuates and defines the ambit of Comcare’s duty” to pay compensation. In Canute, the Court used this description when speaking about Comcare’s duty under s 24 of the SRC Act, but the description applies with equal force to Comcare’s duties under other provisions, including ss 14 and 16.

61    As with the first ground of review as expressed, Comcare’s characterisation of the nature of the error might be debatable, but Comcare is correct to identify in the Tribunal’s reasoning and conclusion a departure from the approach to the SRC Act set out by the High Court in Canute.

Ms Lofts’ contentions

62    Ms Lofts submits that, once the Tribunal’s jurisdiction to hear and determine a denial of compensation is engaged then, on setting aside the decision, it undoubtedly has power to award compensation for medical treatment under s 16. She submits it holds such power because it stands in the shoes of the original decision-maker and may exercise such powers and discretions to the fullest extent permitted. She submits this is a consequence of the three-tier decision-making scheme created by the SRC Act.

63    Relying on the reasoning of the Tribunal in Fuad (and its approval by a Full Court of this Court in Irwin), Ms Lofts submits that the question as to what is the subject matter of a claim is a practical, but not a jurisdictional, problem. The Tribunal must decide for itself whether the compensation sought by the employee was the subject matter with which the preceding decisions dealt, regardless of whether the earlier decision-makers dealt with it explicitly or even understood that matter was before them.

64    As a matter of construction, Ms Lofts submitted that s 16 of the SRC Act can operate independently of a finding of liability under s 14. She sought to distinguish the construction and operation of s 16 from other compensation provisions such as ss 19 and 24, principally by reference to the terms of s 16(2). She submitted that s 16(2) emphasises that s 14 cannot operate as a gateway that affects the entitlement to compensation for medical treatment.

Conclusion on Ms Lofts’ arguments

65    At the level of general principle, many of Ms Lofts’ arguments may be accepted. Determining the scope and content of some reviewable decisions may, however, be more than a practical problem: see Kotevski 209 FCR 558 at [47]. Sometimes, as in Kotevski, the evidence discloses the fact of a claim for the costs of medical treatment: in Mr Kotevski’s case, it was a claim for $5,115 for the supply of hearing aids, although the sum claimed then increased. It is then necessary for the Court on review to decide the scope of the reviewable decision and, consequently, the scope of the Tribunal’s jurisdiction. In Kotevski, Telstra’s argument was that a failure to make a decision (by overlooking the claim to hearing aids) was distinguishable from a refusal of a claim. Indeed, in that case, having overlooked the hearing aid claim, Telstra subsequently purported to determine it shortly before the matter came on for review in the Tribunal. The Court held that, by failing to state expressly that Mr Kotevski’s claim for hearing aids under s 16 remained unresolved at the time Telstra had determined the other aspects of his claim under ss 14, 24 and 27 of the SRC Act, Telstra had conveyed to Mr Kotevski and the Tribunal that the claim had been implicitly rejected. The implicit refusal was, the Court held, to be a “decision” for the purposes of the AAT Act. Kotevski is an example of how the scope of a reviewable decision is, contrary to Ms Lofts’ submissions, a “jurisdictional problem”.

66    In principle, a construction of s 16 that allows it some room to operate independently of a determination under s 14 may be required to give some effect to s 16(2). Such a construction might be consistent with the context and purpose of the SRC Act in the sense that compensation for the reasonable cost of medical treatment may be necessary (and indeed in some circumstances urgently required) for an injured worker before any “impairment” for the purposes of s 14 can be reliably identified.

67    This construction argument could only assist Ms Lofts’ contentions if there was, in fact, a claim by her for the costs of medical treatment in relation to her dysphagia, which she had made to Comcare under s 54 of the SRC Act. For the reasons set out below, there was no such claim and the Tribunal’s finding that there was such a claim involved a misconstruction and misunderstanding of s 16, and of the “injury”-based approach of the legislative scheme, as explained in Canute.

68    Accordingly, it is not necessary for the Court to determine the correctness of the scope and operation of s 16(2) for which Ms Lofts contends.

Error in the Tribunal’s reasoning and conclusions

69    The Tribunal correctly identified the need for there to be a claim made for compensation before it is payable, in accordance with s 54 of the SRC Act. It also correctly identified the principle to be derived from the authorities about what constitutes a claim: namely, that a broad, generous and practical interpretation should be applied: see Abrahams v Comcare (2006) 93 ALD 147 at [18].

70    It found, consistently with these principles and the evidence before it, that Comcare “accepted a claim for compensation for the injury of dysphagia on the basis of Dr Lewis’ report and Ms Lofts’ verbal inquiry of 16 February 2011”. I take that to mean the Tribunal found that Comcare accepted the telephone call, made in the context of Dr Lewis’ then recent report, as the making of a claim for the purposes of s 54 of the SRC Act. Comcare, of course, determined not to accept the claim itself under s 14.

71    The Tribunal’s next finding — that “[i]t is clear that Comcare was treating the claim for dysphagia as part of the claim made in writing and dated 7 January 2008” — is, as Comcare submitted, inconsistent with both the evidence and the earlier findings by the Tribunal about Ms Lofts’ telephone call on 16 February 2011. Retention and use of the original claim number by Comcare was incapable of altering the nature of the claim or the decision-making relating to it. It is at this point that the Tribunal’s reasoning process begins to miscarry.

72    The scheme of the SRC Act required, and Comcare adopted, an approach that treated Ms Lofts’ call and her reliance on Dr Lewis’ report as a claim for a separate injury to those for which liability had already been accepted by Comcare. The Tribunal’s reliance on Telstra Corp Ltd v Hannaford (2006) 151 FCR 253 as supporting its conclusion to the contrary was misplaced. The “progressive and evolving decision-making” of which the Full Court spoke in that decision (at [57]) related to decision-making about the nature and extent of compensation for injuries where liability had already been accepted under s 14.

73    Rather than maintain focus on the claim made by Ms Lofts in February 2011 for the injury of dysphagia, the Tribunal then moves in its reasoning back to her original claim in 2008. It finds, by two alternative paths of reasoning, that Ms Lofts made a claim under s 16 at the time of, or shortly after, her original claim in 2008.

74     Neither path of reasoning reveals a correct understanding of the nature and scope of s 16 of the SRC Act. For the reasons earlier expressed, s 16 operates on a claim for specific costs of medical treatment, whether in relation to the past or the future. The specificity is integral to the operation of the provision because of the need for Comcare (or the Tribunal on review) to determine whether the treatment costs are “reasonable” and whether payment is “appropriate”. That determination cannot be made if particular costs are not claimed.

75    On the basis of this mistaken reasoning, the Tribunal then went on to refer to three occasions on which Comcare had agreed, or appeared have agreed, to pay Ms Lofts’ medical costs, by reference to the claim number of her original claim in 2008. Only one of the three occasions on its face appeared to have any connection with dysphagia. The Tribunal then made the following finding:

On the basis of the evidence referred to above I find that at both the time of the determination (3 March 2011) and the time of the reviewable decision (28 October 2011) Comcare had before it a claim by Ms Lofts for medical expenses relating to the condition of dysphagia, being part of claim 800255/2. At the time the reviewable decision was made Comcare had confirmed that it would pay reasonable costs in relation to the investigation of the claimed condition of dysphagia.

76    The Tribunal suggested in its reasons it had followed the decisions of Fuad 39 AAR 496 and Kotevski 209 FCR 558 in reaching this conclusion. The Tribunal’s reliance on those decisions was misplaced.

77    Fuad concerned a situation where several matters were “put before” the Comcare delegate but only one was decided, and the Tribunal held (39 AAR 496 at [5]) that “all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review”. Deciding what was “put before” Comcare in the reviewable decision was, the Tribunal suggested, a practical rather than a jurisdictional problem.

78    The Tribunal’s decision in Fuad, understood with the limits imposed by Lees, reflects a justifiable approach in the Tribunal. Senior counsel for Comcare conceded in oral argument that it was possible for the first two tiers of decision-making to involve claims under s 14 and one or more other provisions of the SRC Act, for a decision only to be made in respect of s 14 and yet for the Tribunal to have jurisdiction in respect of all claims made. It all depends, as the Tribunal observed in Fuad, on what was “put before” the decision-maker.

79    However, the description of matters being “put before” the decision-maker can only be useful when it reflects the scheme of the SRC Act — that is, the requirements of ss 54, 61 and 62, and the limits and qualifications imposed by other compensation provisions such as, for example, ss 16, 19 or 24. Subject to what is outlined in paragraphs [82] to [84] below, it was not possible, consistently with the ambit of s 16 of the SRC Act, for the kinds of matters identified by the Tribunal in its reasons to be the subject of a claim, or a decision, under s 16. No amounts were claimed on which an assessment of reasonableness could be undertaken. Nor did Comcare purport to make any such decision, or to decline to make any decision under s 16. The debate about the operation of s 16(2) does not affect this conclusion.

80    The decision in Kotevski is to similar effect. It depended on an express claim under s 14 and an express claim under s 16 of hearing aids. The latter was, the Court found, overlooked by the Comcare delegate, while the s 14 claim was expressly determined. Accordingly, the Tribunal had jurisdiction in relation to both claims, because the Court found that by overlooking the claim the delegate had implicitly rejected it. Both Fuad and Kotevski are consistent with the Full Court decision in Irwin, and Ms Lofts’ contentions gain no support from that decision. As the Full Court observed in Irwin 174 FCR 574 at [26], the claimant in that case had made a “joint claim”, with the liability claim being expressly rejected and the compensation claim being implicitly rejected.

81    In the present circumstances, and subject again to what is said at [82] to [84] below, there was nothing capable of being a claim or a decision under s 16 in respect of costs for medical treatment for dysphagia. There was nothing to reject, implicitly or explicitly, when Comcare made its decision under s 14 about liability for compensation in relation to Ms Lofts’ dysphagia, after her telephone call making that claim to Comcare in February 2011.

A concession at the hearing about some expenses related to dysphagia

82    At the hearing, and as a result of the development of Comcare’s submissions about s 16, senior counsel for Comcare properly conceded that, by reason of the events revealed in the evidence as occurring on 7 June 2011, it was strongly arguable Ms Lofts had made a claim under s 16 in respect of identifiable expenses associated with the gastroscopy and colonoscopy she underwent that day. Senior counsel conceded that there were items on the Medicare Notice of Benefits which were plainly referable to those procedures.

83    However, as he also rightly pointed out, that claim under s 16 was accepted and not denied. Whether the claim was specific enough to come within the terms of s 16 is a matter which need not be decided because of what is outlined below. I understood senior counsel to concede that, if those expenses had not been paid yet by Comcare, they would be, provided the claimed treatment expenses were found to be reasonable. Given the claim was accepted in June 2011, it is difficult to see how that determination could even implicitly be said to be part of the reviewable decision made by Comcare on 28 October 2011. There was nothing for the delegate even implicitly to reject. Any perceived inconsistency — between Comcare agreeing to pay these June 2011 expenses and the denial of liability under s 14 for the condition of dysphagia in the reviewable decision in October 2011 — is explicable by the view taken in the reviewable decision that those procedures in June 2011 were investigative, that is, for the purpose of determining whether Ms Lofts suffered from a further injury (dysphagia) arising directly or indirectly from the compensable injuries already established.

84    The proper concession by senior counsel for Comcare does not affect the conclusion that neither expressly nor implicitly was there a claim under s 16 of the SRC Act before Comcare when the reviewable decision was made on 28 October 2011.

Conclusion

85    The Tribunal’s reliance on Comcare’s agreement to pay the June 2011 medical treatment costs provided no support for the approach it took, which was inconsistent with the construction and operation of s 16 of the SRC Act.

86    For the Tribunal to proceed to deal with a claim under s 16 of the SRC Act, when that matter was not part of the reviewable decision expressly or impliedly, takes the Tribunal beyond its jurisdiction, for the reasons set out in Lees.

87    Finally, for the Tribunal to deal with a claim for the costs of medical treatment, on the basis that Ms Lofts had made such claims in relation to the conditions for which Comcare, in October 2008, accepted liability under s 14, is to ignore the centrality of the concept of “injury” in the SRC Act and the requirement for a determination, under s 14 and under any of the specific compensation provisions, to be made in respect of each injury.

88    The Tribunal has no jurisdiction to make a decision in respect of compensation for medical expenses related to Ms Lofts’ dysphagia. Relief setting aside the Tribunal’s decision and making a declaration reflecting the Court’s conclusion should be granted. In this case, the Court’s jurisdiction does not depend solely on s 39B(1) of the Judiciary Act and an order in the nature of prohibition is not necessary. Although it initially sought an order that Ms Lofts pay Comcare’s legal costs if this application succeeded, in its reply submissions Comcare stated it would not seek to recover its costs in those circumstances. Accordingly there will be no order as to the costs of this proceeding. Comcare will be ordered to pay any costs incurred by Ms Lofts and thrown away by reason of the initial proceeding issued under s 44 of the AAT Act.

Associate:

Dated:    18 November 2013