FEDERAL COURT OF AUSTRALIA

Comcare v Muir [2016] FCA 346

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The decision of the Administrative Appeals Tribunal is set aside.

3.    The Respondent is to pay the costs of the Applicant.

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

REASONS FOR JUDGMENT

1    The Respondent in the present proceeding, Ms Linda Muir, has been working for the Australian Federal Police for more than 20 years.

2    On 26 November 2013 she made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).

3    That claim was disallowed by a delegate of Comcare on 24 January 2014. On 12 February 2014 Ms Muir sought reconsideration. A Review Officer affirmed the Delegate’s decision on 14 April 2014.

4    Ms Muir then sought review by the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal set aside the decision made on 14 April 2014 and concluded that Comcare was liable to pay compensation: Re Muir and Comcare [2015] AATA 612.

5    Comcare now appeals from the decision of the Tribunal. At the heart of the appeal is the question of whether the Tribunal had jurisdiction. Comcare maintains that the Tribunal lacked jurisdiction because it resolved a claim for an injury fundamentally different to the claim Ms Muir made and, more importantly, not the claim as resolved by the Review Officer.

6    The appeal is to be allowed and the decision of the Review Officer affirmed. Given the findings made by the Tribunal, there is no utility in remitting the claim for compensation to the Tribunal for reconsideration.

THE MAKING OF A CLAIM

7    The Safety, Rehabilitation and Compensation Act provides for the making of a “claim for compensation” and for the review of determinations made in respect to such claims.

8    Section 14(1) of the Act provides that, subject to Part II of the Act, “Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”. Section 5A defines the term “injury” but relevantly excludes from the definition “a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner…”. The phrase “as a result of” requires there to be a “causal relationship”, with causation being “a matter of common sense”: Martin v Comcare [2015] FCAFC 169 at [107] to [108], (2015) 148 ALD 1 at 23 to 24 per Murphy J (Siopis J agreeing). Section 54(2) of the Act requires a claim to be made “in accordance with the form approved by Comcare”.

9    Section 7(4) of the Act provides that an employee is taken to have sustained an injury, disease, or an aggravation of a disease when the employee first sought medical treatment, or when the disease or aggravation first resulted in the incapacity for work or impairment, whichever happens first. Attention need only be given to s 7(4) once liability under s 14 has been established: Gaffey v Comcare [2015] FCA 1024 at [79] per Wigney J.

10    Section 61(1A) provides that a determining authority is to “determine each claim for compensation under section 14 within the period prescribed by the regulations”. Section 62 provides for the reconsideration of a determination.

11    It is s 64 which provides for the review of a “reviewable decision” by the Administrative Appeals Tribunal. Section 60 relevantly defines a “reviewable decision” as one made under s 62.

12    The Safety, Rehabilitation and Compensation Act thus establishes a three tiered decision-making process: Lees v Comcare [1999] FCA 753, (1999) 56 ALD 84 at 91. Wilcox, Branson and Tamberlin JJ there observed:

[32]    Pt VI of the Act is headed “Reconsideration and Review of Determinations”. It establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision - but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination.

With respect to the powers and discretions that may be exercised by the Tribunal, their Honours went on to conclude:

[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.

13    The manner in which these statutory provisions have been interpreted and applied has been the subject of some consideration by this Court. A recurring issue presented for resolution is the extent to which the description of an injury may later confine the jurisdiction entrusted to the Tribunal for review. Not surprisingly, some flexibility in the formulation of a claim has been permitted. Frequently, many claims for compensation have been drafted by claimants without the benefit of legal assistance, and in many cases a medical condition may change and evolve over time.

14    Summarising some of the principles to be applied, Madgwick J in Abrahams v Comcare [2006] FCA 1829, (2006) 93 ALD 147 at 152 observed:

[18]     …

1.    In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.

2.    In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.

3.    The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given.

4.    Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.

5.    There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.

It was there concluded that the Tribunal had jurisdiction to review a claim originally formulated as “right carpal tunnel syndrome” and later reformulated as a broader right arm and shoulder condition. These principles were subsequently endorsed by the Full Court in Szabo v Comcare [2012] FCAFC 129 at [33] per Emmett and Greenwood JJ, at [50] per Bennett J. It is, accordingly, accepted that a “claim seeking compensation obviously need not be expressed with the same degree of particularity or formality of a pleading or a statement of claim in a superior Court”: Farrell v Comcare [2015] FCA 1337 at [31] per Flick J.

15    As Madgwick J in Abrahams envisaged, it is on occasions difficult to draw a “bright dividing line” between whether a claim is one in respect to which notice has been given “or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted.”

16    A further instance of where that “line” should be drawn came before the Court in Kennedy v Comcare [2014] FCA 82, (2014) 63 AAR 100. Ms Kennedy had worked as a customer service adviser in a Centrelink call centre. She lodged a claim for compensation. The claim form she submitted described her injury as follows:

Anxiety disorder, stress & panic attacks, headache migraines, hair loss, prolonged illness, due to stress, hearing loss, trauma, dental.

She maintained that she was injured or first noticed she was ill in August 2005. She made no specific reference to anything occurring in 2009. But the statement submitted in support of her compensation claim referred to events in 2009 including “inappropriate comments” and an account of harassment and bullying in that same year. In concluding that the Tribunal had jurisdiction to consider a claim for compensation in respect to a 2009 injury and that the Tribunal had erred in not considering that claim, Katzmann J relevantly concluded:

[45]    In a case of psychiatric injury, however, it is not always easy to discern the nature of a claim. Neither the original decision-maker nor the review officer referred to a claim for compensation for injury in 2009. But the tribunal’s jurisdiction does not depend on how Comcare characterises the claim. To the contrary, “the tribunal must assess for itself the true scope of the claim” and conduct the review on that basis … The question of whether the tribunal lacked jurisdiction to deal with the submission depends on the scope of the applicant’s claim for compensation …

…

[53]    Similarly, in his summary of Ms Kennedy’s compensation claim the review officer did not refer to an allegation of bullying and harassment by Ms Oostendorp that preceded the home visit. Comcare explained this omission by arguing that in her request for reconsideration Ms Kennedy had resiled from making the allegation. I am persuaded, however, that she did not. The contention could certainly have been put with greater precision in the request for reconsideration, but “a broad, generous and practical interpretation” is called for: Abrahams v Comcare (2006) 93 ALD 147, [2006] FCA 1829 at [18]; Szabo at [50]. Construed broadly, generously and practically Ms Kennedy was asking Comcare to reconsider several aspects of her case. One of them was her claim that bullying and harassment at the workplace from June/July 2009 caused her injury.

…

[58]    If the review officer did not make a decision on the matter of the 2009 injury, it is at least arguable that this amounted to a refusal to make a decision … A refusal to make a decision is a “decision” for the purposes of both the AAT Act and the SRC Act: AAT Act, s 3(3)(a); SRC Act, s 60. No such argument was advanced in the present case and it is unnecessary to consider the matter further. That is because I am persuaded that the review officer did make a decision.

[59]    If an issue is before a review officer on an application for reconsideration and the officer does not deal with it expressly, (s)he might be taken to have implicitly rejected it: Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574 at [26]; Telstra Corporation Ltd v Kotevski (2013) 209 FCR 558 at [52], [56]. Here, in the light of the evidence before him and the statement that he had had regard to all of it, as well as his assertion that the “numerous other workplace incidents” would be addressed in his reasons, the review officer should be taken to have implicitly rejected Ms Kennedy’s contention that she suffered injury as a result of Ms Oostendorp’s behaviour towards her during 2009.

[60]    I am therefore satisfied that the preconditions to the exercise of the tribunal’s jurisdiction to consider the submission have been made out. Ms Kennedy had given notice to Comcare of an injury in 2009 and had made a claim that she be compensated for it. In the original determination Comcare did not allow it. Ms Kennedy sought to have Comcare’s determination reconsidered. The reconsideration was unfavourable. It follows that the tribunal had jurisdiction to consider the submission relating to the alleged injury and it erred in law in neglecting to do so.

Similarly, in Comcare v Lofts [2013] FCA 1197, (2013) 217 FCR 220 it was concluded that the Tribunal had no jurisdiction to make a decision in respect to a claim for medical expenses which were not “expressly or impliedly” the subject of a claim resolved by the “reviewable decision”.

THE CLAIM AS MADE & RESOLVED BY THE TRIBUNAL

17    Although it is not necessary in the present case to detail each step in the chain of decision-making and the information communicated to each decision-maker, it is (regrettably) necessary to refer to some of the detail in order to understand both the context in which Ms Muir made a claim for compensation and the character of the claim as it in fact was made.

18    That decision-making chain starts, obviously enough, with the compensation claim.

19    The form of claim as approved by Comcare and as completed by Ms Muir in November 2013 set forth a number of questions and her answers. Three of those questions and the answers provided by Ms Muir were in part as follows:

Forming part of the claim as made was a medical certificate which referred to “alleged bullying/harassment at work which has been ongoing since October 2011”. The diagnosis was “worsening of anxiety/depression”. Also forming part of the claim was an “incident report” prepared by Ms Muir. That report set forth in considerable detail the work history of Ms Muir since she commenced working at the Forensic Offices of the Australian Federal Police in September 2007. The report referred to events in 2013 but also contained a number of statements well preceding those dates. The report thus states, in part:

I have been a Band 6 Senior Member for some 7 years and have never experienced workplace bullying and harassment such as what I have experienced in Forensics…

The report continues:

Outlined below are a number of significant issues/events that have impacted on my well-being over the years and have directly been related to me and also a number of conversations that have been very specific which have caused me to lose all my confidence in my ability to do my work. Below in brief describes what I have been trying to cope with and living with for some time which has been building-up to the most recent incident on Wednesday 23 October 2013.

Reference is thereafter made to the lodging of a complaint in “late 2010 … through the AFP CRAMS system…” and the report continues:

In February 2011 through to February 2013, I experienced on-going personal attacks regarding my work to other work colleagues by Robyn Douglas. I raised my concerns with various people (Coordinator, Team Leader, Manager Forensic Operations, and National Manager HR) in the hope that I could gain some support for myself. I also spoke to Wellbeing services, the Confidant Network and the Team Leader Professional Standards regarding my concerns.

20    In order to determine the claim, further information was sought from Ms Muir. On 20 January 2014, and some 4 days prior to the initial determination being made on 24 January 2014, a response was provided either by Ms Muir or on her behalf as follows (without alteration):

In response to information and statements provided by the Australian Federal Police (AFP) I provide the following response:

My position is that this information is misleading to my Claim; my Claim is for the incident that occurred on 23 October 2013.

The incident report I provided with my claim has historical information that gave a holistic view to the issues I had been dealing with up-to and including the day in question. I provided this information and standby what I have said, however the responses given by the AFP are relevant to historical events and not what happened on Wednesday 23 October 2013.

The material in bold type was as set forth in the response provided.

21    The determination rejecting the claim for compensation was thereafter made. The Comcare Delegate provided reasons which provided, in part, as follows (without alteration):

In your further statement dated 20 January 2013, you state that your claim is only for the incident which occurred on 23 October 2013 in which ‘completely untrue’ allegations were made against you. You stated that even though ‘[you] anxiety and stress levels had elevated’ in relation to the CRAMS complaint regarding your work mobile phone, you did not have time off work.

Although you consider you are claiming only for the incident on 23 October 2013, I must have regard to the evidence as a whole, and in doing so, I consider that a series of events caused your condition and culminated in the incident on 23 October 2013 which in your words ‘tipped you over the edge’. I consider your evidence makes numerous representations to your ‘anxiety and stress levels’ being ‘elevated’ for example, in relation to the CRAMS complaint regarding the interrogation of text message left on your returned work mobile phone.

When addressing the date of injury the Delegate wrote:

I consider that this medical evidence supports the view that you were suffering from a psychological condition, which was outside the bounds of normal mental functioning and behaviour on 23 October 2013, but not before then.

I note in her report, Dr Nambiar indicated that you presented to her on 27 September 2013 regarding stress at work after a very stressful interview. There is no evidence in this claim that explains what occurred on this day. On this basis, and on the basis of the evidence as a whole which supports the view that other significant events caused an aggravation of your injury, I am unable to consider this date as relevant to this claim.

Therefore, I have deemed your date of injury to be 23 October 2013 under section 7(4) of the SRC Act.

The Delegate went on to conclude that the claim fell “within the exclusionary provisions of the SRC Act”, namely the exclusion set forth in s 5A.

22    Ms Muir then made a request for reconsideration of the Delegate’s decision in February 2014. That request for reconsideration focussed upon the determination deeming the date of injury to be 23 October 2013. The request stated that the events of 23 October 2013 were “the culmination to an already long list of issues of ongoing events…”. The request also stated:

If Comcare made the determination based purely on what happened on 23 October, why has Comcare considered statements made by AFP staff who were not there on the 23rd of October and who are bringing up details of issues/events that happened prior to 23 October. As stated earlier, if events that happened prior to 23 October are to be used against me then other incidents that add weight to my claim and have contributed to the way I am feeling and the breakdown that I have suffered, should also be taken into account. I would also dispute a lot of what they have said in their statements.

23    The Review Officer agreed with the Delegate. Again reasons were provided. Part of those reasons addressed Ms Muir’s concern that reliance had been placed upon events preceding 2013, as follows:

I further consider that the Delegate was correct when she stated that she had to have regard to the evidence as a whole and not just the particular incident of 23 October 2013 when considering your claim. I note that you have stated that Comcare cannot find a date of injury of 23 October 2013 and then consider issues which happened prior to that time. Where an injury results from a ‘build up’ of issues over a period of time it is frequently the case that a person can remain at work whilst suffering the symptoms of psychological condition. It may not be until an incident occurs which was ‘the last straw’, as occurred with you on 23 October 2013 that those symptoms became clinically significant. It remains very relevant to take into account the issues which may have been occurring in the lead up to the date of injury, provided that they were also causative of your condition.

24    In resolving the application for review which had been made by Ms Muir, the Tribunal stated that the claim “rests on several matters”. In summarising the past events and the contention advanced by Ms Muir, the Tribunal stated:

[6]    The present claim before the Tribunal rests on several matters involving Ms Muir, some lasting for a year, between 2010 and 23 October 2013. It was contended by Ms Muir that each of these matters contributed significantly to the injury she sustained pursuant to s 14 of the Act. I will categorise these matters, and the periods over which they occurred, as follows:

(a)    a claim against co-worker Moira Johnson of bullying and harassment from 2010 to 2011;

(b)    a claim against co-worker Robyn Douglas of bullying and harassment from February 2012 to February 2013; and

(c)    a claim against Federal Agent Mark Simpson of sexual harassment in April 2012

I will refer to these three matters as the 2010-2012 matters, noting that the matter involving Robyn Douglas actually extended to February 2013.

(d)    incidents surrounding Ms Muir’s failure to be selected for a Team Leader Business Support position, between July and September 2013 (the Business Support matter);

(e)    incidents surrounding Ms Muir’s application for a Team Leader - Training position, between May and October 2013 (the Training matter); and

(f)    a series of incidents at the Weston Creek complex which culminated on 23 October 2013 (the Weston matter)

I will refer to these three matters as the 2013 matters.

Having outlined these matters, the Tribunal then went on to introduce its reasoning process in part as follows:

[13]    For reasons set out below, I find that each of the six matters referred to in paragraph 6 above contributed significantly to the condition Ms Muir has claimed for. I further find that most of these matters do not fall under the exclusion in s 5A, but that two matters - the Training matter and the Weston matter - are properly to be considered reasonable administrative action, taken in a reasonable manner, in respect of her employment.

[14]    I turn now to a discussion of the six causes of Ms Muir’s condition.

25    In resolving the application for review, the Tribunal was acutely aware of the prospect that any claim for compensation may be precluded by s 5A of the Safety, Rehabilitation and Compensation Act if the injury was that suffered on 23 October 2013. The Tribunal identified this prospect as follows:

[33]    It was accepted before the Tribunal that, when she went off work on 23 October 2013 following the Weston matter, Ms Muir had an injury, or more specifically an ailment, under s 14 of the Act. For reasons which I set out below, I consider that two of the 2013 matters - or causes, to adopt the language of the Full Court in Hart - giving rise to Ms Muir’s complained-of condition constituted reasonable administrative action, per s 5A. This conclusion in turn imposes upon the Tribunal consideration of two alternative scenarios based on the evidence before it:

Scenario A: Ms Muir suffered her injury on 23 October 2013. The 2013 matters were significant contributors to that injury. The 2010-2012 matters may also have contributed significantly to that injury. Because at least one of the causes of that injury falls within the definition of reasonable administrative action under s 5A, all the causes are excluded from constituting an injury under the Act. Ms Muir must fail.

Scenario B: Ms Muir suffered an injury or injuries, some time prior to May 2013, to which the 2010-2012 matters, or some of them, were significant contributors. The 2013 matters were significant contributors either to a fresh injury or injuries, or to an aggravation of the injury or injuries arising from the 2010-2012 matters. Because there is no suggestion of reasonable administrative action in relation to the 2010-2012 matters, s 5A does not apply. Ms Muir must succeed.

Faced with this choice, the Tribunal concluded that Scenario B better reflected “the totality of the evidence…”.

26    In considering the claim as made and its conclusion that Scenario B better reflected the evidence, the Tribunal concluded:

[38]    Abrahams v Comcare [2006] FCA 1829 is authority for the proposition that the Tribunal may reformulate the terms of a claim for workers’ compensation, consistent with the evidence before it, notwithstanding the claim’s characterisation by an earlier decision maker. However, I do not regard the present matter as requiring any reformulation of the applicant’s claim; it has always been her claim that she sustained an injury, specifically a mental injury, arising out of, or in the course of, inter alia, the events of 2010-2012, events intimately connected with her employment.

In applying its approach to the six “matters” upon which the claim “rested”, the Tribunal concluded:

[44]    Accordingly, I find that the events which make up what I have called the 2010-2012 matters did significantly contribute to an injury Ms Muir sustained. Because the clinical notes of Dr Nambiar were not tendered, the most likely deemed date of injury under s 7(4) of the Act is uncertain, but it would be the date in 2010 or 2011 when Ms Muir consulted her for the work-related condition and was prescribed an antidepressant.

27    The Tribunal, accordingly, proceeded to state that on its approach it did not consider the “2013 matters” as “relevant in the determination of this application”. It nevertheless went on to find that the “Training matter” involved “reasonable administrative action, taken reasonably”: [2015] AATA 612 at [61]. It also found that the “Weston matter” constituted “reasonable administrative action notwithstanding that there was no expectation that this informal step would be followed by more formal ones…”: [2015] AATA 612 at [63]. But these additional findings, the Tribunal said, “do not assist Comcare” as “Ms Muir had already sustained her injury prior to the 2013 matters”: [2015] AATA 612 at [65].

THE INJURY THE SUBJECT OF THE CLAIM?

28    It is concluded that the October 2013 injury was the subject matter of:

    the claim as originally made in November 2013;

    the determination of the Delegate in January 2014;

    the request for reconsideration as made in February 2014; and

    the determination by the Review Officer in April 2014.

29    It is respectfully considered that these conclusions, and this characterisation of the claim being a claim confined to an injury suffered in October 2013 and not an injury suffered in 2010/2011, are supported by:

    the answer provided in response to Question 12 in the form of claim as completed by Ms Muir. Although the answer to that question falls well short of unequivocally confining the claim to an injury suffered in October 2013, the answer does provide some support for that conclusion. Given the earlier response to Question 10 and the acknowledgement on the part of Ms Muir that she had experienced a “worsening of anxiety/depression”, the answer provided in response to Question 12 cannot be understood as an answer to the question as to “when did you first notice you were ill”. The answer provided identifies the date upon which she claimed she was injured;

    the fact that the email forwarded on 20 January 2014 unequivocally confined the claim to “the incident that occurred on 23 October 2013” and characterised the factual information predating 2013 as “historical information” and as “historical events”. Although a claim for compensation is a claim in respect of an “injury” and not an “incident”, the email does inform what was the subject matter of the claim being made;

    the fact that the Delegate’s determination in January 2014 expressly refers to the 20 January 2014 email and characterises the preceding events as “a series of events [that] caused your condition and culminated in the incident on 23 October 2013” and identifies the deemed date of injury to be 23 October 2013; and

    the fact that the request for reconsideration does not either expressly or inferentially seek to contend that the Delegate identified the injury as that occurring in 2010-2012 as opposed to 23 October 2013, but rather proceeds upon a challenge to the manner in which the Delegate assessed the injury as that occurring on 23 October 2013.

The conclusion which it is respectfully considered must be reached is that up to and including the time at which the Review Officer determined the application for reconsideration, the claim as made by Ms Muir was a claim confined to an injury suffered in October 2013. Excluded from that claim, moreover, was any claim for injuries suffered in 2010-2012.

30    No unnecessary emphasis should be placed, for example, upon the answers provided in a claim form. And the terms of emails forwarded on behalf of a claimant should not be parsed and analysed with a view to limiting what is otherwise a more generally-expressed claim for compensation. A practical and common-sense approach, even a “generous” approach, should be adopted in reaching an informed decision regarding the nature of the claim sought to be resolved. Even though a claim may be generally expressed, it must nevertheless properly and adequately inform Comcare such that Comcare can make an informed decision on whether the claim as made should be met: cf. Abrahams [2006] FCA 1829 at [18], (2006) 93 ALD at 152. Nor does it promote good administration and the proper resolution of claims for compensation to encourage a course whereby claimants may opportunistically (for example) seek to re-characterise a claim as one other than that in fact made in order to avoid the consequence of findings already made, or which may be made, that would exclude any entitlement to compensation (such as findings that an injury resulted from “reasonable administrative action taken in a reasonable manner”).

31    On the facts of the present case, and for whatever reason, there seems to have been a shift in the manner in which Ms Muir presented her claim for compensation at least by the time of the Tribunal hearing.

32    The application for review as filed by Ms Muir in the Tribunal in May 2014 sets forth detailed “Reasons for Application” which address the events as they unfolded in October 2013. Those reasons nevertheless also state in part as follows:

I should add I do not accept the date of the injury to be 23 October 2013 solely. There were a number of work related incidents commencing in 2011 and leading up to the incident on 23 October was the culmination as a result of those incidents for which I had received treatment. I would be pleased to provide full details of those at an appropriate time.

The Amended Statement of Facts, Issues and Contentions filed on her behalf in March 2015 perhaps characterises the issue somewhat differently by contending that “Comcare is liable with respect to her incapacity from 23 October 2013 until 19 May 2014…”.

33    Despite such inferences as may possibly be drawn from these reasons and contentions, before the Tribunal it would appear that submissions were being advanced relying upon an injury in 2010-2012. In rejecting a submission advanced on behalf of Comcare that “Comcare has not made a decision in respect of the 2010-2012 matters” and that if the Tribunal “regarded those matters as being part of the present claim, they should be remitted to Comcare for a decision”, the Tribunal concluded:

[36]    I cannot accept this submission. Ms Muir’s original claim for workers’ compensation included reference to the events of 2010-2012 as a basis for her claimed injury. In seeking reconsideration of the original rejection of her claim on 24 January 2014, Ms Muir again sought a decision which took into account the 2010-2012 matters. And she again pointed to those matters in her application to initiate the review by this Tribunal. Although the documentation filed on her behalf prior to the hearing did not consistently highlight these matters, some of it - her statement of 3 September 2014 in particular - most certainly did. Her counsel pressed those matters at the outset of the hearing, and throughout. If Comcare has not made a decision in respect of the 2010-2012 matters, as was submitted at the hearing, this was because it repeatedly chose to discount their relevance, and not because the matters were not properly before it. There is no unfairness to Comcare because it had notice throughout the process that these matters were relevant.

Concurrence, regrettably, cannot be expressed with this conclusion of the Tribunal. It perhaps matters not that the Tribunal did not give further consideration to Comcare’s submission that it had “not made a decision in respect of the 2010-2012 matters” and that the Tribunal simply characterised the earlier matters as “relevant”.

34    The central question was the claim as made. When addressing this question, the Tribunal did not find it necessary to “reformulate … the applicant’s claim”; it concluded that it had “always been her claim that she sustained an injury, specifically a mental injury, arising out of, or in the course of, inter alia, the events of 2010-2012”: [2015] AATA 612 at [38].

35    This conclusion is perhaps a little ambiguous. It is consistent with the claim for injury being an injury suffered on 23 October 2013, albeit one which arose in part “out of … the events of 2010-2012”. What is not ambiguous is the conclusion of the Tribunal (at para [65] of its reasons for decision) that Ms Muir was entitled to compensation because she “had already sustained her injury prior to the 2013 matters…”.

36    In so concluding, the Tribunal erred either because:

    the “reviewable decision” which was before the Tribunal did not include any decision made in respect to any injury that may have been suffered “prior to the 2013 matters” (cf. Lees v Comcare); and/or

    the claim as made never included a claim for any injury other than one suffered in October 2013.

The conclusion of the Tribunal also does not sit comfortably with the finding previously made (at para [13] of its reasons for decision) that “each of the six matters referred to in paragraph 6 above contributed significantly to the condition that Ms Muir has claimed for…”. Those “six matters” included, of course, events which post-dated “the events of 2010-2012…”. Not fully explained is how such later events could have “contributed significantly” to a claim for an injury “sustained … prior to the 2013 matters…”. Given the conclusion that the Tribunal erred for either of the two reasons identified, it is unnecessary further to pursue the manner in which paras [6], [13], [36] and [65] may possibly be reconciled.

37    Although limited flexibility is conferred upon the Tribunal to reformulate a claim, and whatever may be the outer limits of the power to do so, a claim confined to an injury suffered in October 2013 cannot be transformed into a claim for an injury suffered in 2010-2012. Unlike the claim resolved by Katzmann J in Kennedy where there had been a general description of the injury suffered and no specification of the date of injury, the facts in the present case stand in contrast. On the facts of the present case there was repeated reference to the injury the subject of the claim being that suffered in October 2013. It is not capable, with respect, of a conclusion that the claim was for an injury suffered at an earlier, unspecified point of time.

CONCLUSIONS

38    The appeal should be allowed and the decision of the Tribunal set aside.

39    No order should be made remitting the application for review to the Tribunal for reconsideration. If the claim is confined (as it should be) to the injury suffered on 23 October 2013, the additional findings made by the Tribunal preclude that claim having any chance of success. Those additional findings were the findings that the “Training matter” and the “Weston matter” were reasonable administrative action taken in a reasonable manner. Such findings place the facts within the exclusion from liability found in s 5A of the Safety, Rehabilitation and Compensation Act. No submission was advanced at the hearing of this appeal that these two matters were not “reasonable administrative action, taken in a reasonable manner”.

40    It should be noted that Counsel for Comcare expressly acknowledged that it nevertheless remains open to Ms Muir to make a fresh claim in respect to any injury she claimed to have suffered in 2010-2012.

41    It was common ground that costs should follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is allowed.

2.    The decision of the Administrative Appeals Tribunal is set aside.

3.    The Respondent is to pay the costs of the Applicant.

Associate:

Dated:    13 April 2016