FEDERAL COURT OF AUSTRALIA

Mununggurr v Comcare [2020] FCA 1786

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application filed on 20 December 2019 be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an application for review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) made on 28 June 2019. In that decision the Tribunal found that it had no jurisdiction to determine whether the applicant, Ms Mununggurr, was entitled to permanent impairment compensation for Major Depressive Disorder (MDD) under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

2    The application before the Court application is made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or alternatively s 39B of the Judiciary Act 1903 (Cth).

3    I note that both Ms Mununggurr and the first respondent (Comcare) were represented in the application before me.

Procedural history

4    The applicant filed an originating application on 18 July 2019. A notice of objection to competency was filed by Comcare on 4 September 2019. The grounds of objection were as follows:

1.     The Federal Court lacks jurisdiction to grant relief under the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) in relation to ‘Ground Two’ of the application as:

1.1.     the order of the Tribunal the applicant seeks review of is not a ‘decision’ to which the Act applies, within the meaning of s 5 of the AD(JR) Act and

1.2.     the application was not lodged within ‘the prescribed period’ within the meaning of s 11(1)(c) and 11(3)(a) of the AD(JR) Act and the applicant has not filed an application for an extension of time in accordance with rule 31.02 of the Federal Court Rules 2011.

5    The parties came before me on 6 December 2019 where I made the following orders by consent:

1.    Ground 2 of the originating application be allowed.

2.    The Tribunal's order 3 of 29 May 2019 in application number 2017/0844 be set aside.

3.    The Respondent will pay the Applicant's party-party costs, to be taxed if not agreed, in respect of ground 2 of the originating application.

4.    The hearing in respect of ground 1 of the originating application is to proceed in accordance with the orders of this Honourable Court dated 5 September 2019.

5.    The Applicant file and serve an amended application in light of these orders by 4.00 pm on 20 December 2019.

6    The applicant filed an amended originating application on 20 December 2019, asking the Court to review:

(A)    …

(B)    The decision of the Second Respondent made on 28 June 2019 that it had no jurisdiction to determine whether the Applicant is entitled to permanent impairment compensation for Major Depressive Disorder under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and that the orders made on 29 May 2019 would “remain unaltered”.

7    The applicant relied on the following grounds of review:

Ground one: The Second Respondent’s decision of 28 June 2019 is affected by error of law, because that decision is based on the Tribunal’s erroneous conclusion that the Tribunal did not have jurisdiction to determine whether the Applicant is entitled to compensation for permanent impairment arising from Major Depressive Disorder said to have arisen out of the incident that occurred on 12 April 2014.

Particulars:

a)    By way of a claim form signed on 28 May 2014, the Applicant made a claim to the First Respondent for workers’ compensation in respect of a condition described as “Depression – reactive” arising out of an incident that occurred on 12 April 2014.

b)    On 30 July 2014, the First Respondent determined that it was liable under section 14 of the SRC Act for an injury arising out of the incident on 12 April 2014 but with a deemed date of injury of 28 May 2014 and that the First Respondent described as “Post Traumatic Stress Disorder”.

c)    By way of a claim form signed on 9 June 2016, the Applicant made a claim to the First Respondent for compensation under sections 24 and 27 of the SRC Act for permanent impairment resulting from the injury with the deemed date of injury of 28 May 2014.

d)    On 1 November 2016, the First Respondent rejected the claim for permanent impairment compensation on the basis that the accepted condition did not result in a permanent impairment. On 13 December 2016, the First Respondent affirmed that decision.

e)    On 15 February 2016, the Applicant applied to the Second Respondent for review of the First Respondent’s decision of 13 December 2016.

f)    In those circumstances, and on the proper construction of sections 14, 24 and 27 and Part VI of the SRC Act, the Second Respondent does have jurisdiction to determine whether the Applicant is entitled to compensation for permanent impairment arising from Major Depressive Disorder said to have arisen out of the incident that occurred on 12 April 2014

(tracked changes omitted)

8    The applicant seeks the following orders:

    That the second respondent’s decision of 28 June 2019 be set aside or quashed;

    A declaration that in proceeding number 2017/0844 before the second respondent, the second respondent has jurisdiction to consider and determine:

a. The nature and diagnosis of the “injury” for which the applicant claimed compensation by way of a claim form dated 28 May 2014; and

b. Whether the applicant is entitled to permanent impairment compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 in respect of that “injury”, according to its nature and diagnosis as determined by the second respondent.

    Costs.

Background

9    The history of this matter is helpfully summarised in the applicant’s outline of submissions filed on 10 February 2020, and I have had regard to that summary in setting out the following background to these proceedings.

10    The applicant was born on 4 October 1964 and previously worked for the Commonwealth as a resident manager for the “Jane Arnold Aboriginal Hostel” in New Farm, Brisbane. She was an “employee” under the SRC Act.

11    On 12 April 2014, the applicant was working at the front desk of the hostel when a patron – who had previously been evicted for being drunk – entered the hostel and yelled at her, threatening to “cut her throat”.

12    On 28 May 2014, the applicant made a claim for compensation under the SRC Act in relation to this incident, which was said to be the cause of psychiatric injury to the applicant.

13    In the compensation form lodged on 28 May 2014, the applicant:

    Identified the “injury or illness” as “Depression – reactive”;

    Identified the “Part(s) of the body injured” as “mental state”;

    Identified the date of injury as 12 April 2014;

    Identified the date when the applicant first sought medical treatment for her injury or illness as 28 May 2014; and

    Identified the cause of injury as “Resident who had been evicted returned and threatened to cut my throat”.

14    On 30 July 2014 Comcare issued a determination accepting liability to pay compensation under s 14 of the SRC Act, which relevantly provides

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.

…

15    “Injury” is relevantly defined in s 5A of the SRC Act as:

Definition of injury

(1) In this Act:

"injury" means:

(a)    a disease suffered by an employee; or

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

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

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

…

(emphasis added)

16    “Disease” is defined by s 5B (1) of the SRC Act as meaning:

(a) an ailment suffered by an employee; or

(b) an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

17    In its determination of 30 July 2014, Comcare accepted the applicant’s claimed condition as “post-traumatic stress disorder”. Relevantly Comcare stated:

…

I have described your claimed condition using the International Classification of Diseases and Injuries. This means the wording of your accepted condition may differ from the wording provided on you Claim for Workers’ Compensation form. It is Comcare’s policy to link your claimed condition with an internationally accepted medical standard for classifying injuries.

18    Comcare accepted the date of the applicant’s injury as 28 May 2014, being the date on which the applicant first sought medical treatment for her condition, and on the basis of medical evidence to the effect that the applicant was suffering from a psychological condition on 28 May 2014 but not before then.

19    When making its decision, Comcare had regard to the following material:

    A report dated 26 June 2014 from Dr Chandra, General Practitioner, who diagnosed “Anxiety/Depression”.

    A report dated 26 June 2014 from Ms Lynette Hand, Psychologist, who diagnosed “Post Traumatic Stress Disorder (309.81), Chronic, according to DSMIV – TR”.

    A report dated 17 July 2014 from Dr Oelrichs, Psychiatrist, who diagnosed “Posttraumatic stress disorder acute secondary depressive symptoms”.

20    The applicant received incapacity payments under s 19 and compensation for medical expenses under s 16 of the SRC Act.

21    Comcare received a number of medical opinions concerning the applicant, including:

    Dr Ryan, Consultant Psychiatrist, stating that his “impression” was that the applicant had a “mix of depressive and anxiety symptoms in the context of trauma. Differential diagnoses include post-traumatic stress disorder”.

    Dr Navin, Occupational Physician, who diagnosed “significant reactive depression”.

    Dr Shaikh, Consultant Psychiatrist, who diagnosed PTSD.

    Dr Oelrichs, Consultant Psychiatrist, who diagnosed PTSD “with co-morbid major depressive condition which is now chronic”.

    Dr Ryan, Psychiatrist, who stated, relevantly:

I would agree that PTSD would be considered by some psychiatrists to be a differential diagnosis but I think that Ms Mununggurr’s presentation would be better conceptualised an adjustment disorder with a mix of depressive and anxious symptomology that occurs in the context of multiple psychosocial stressors, some of which are potentially longstanding with issues of attachment and trauma as discussed above.

22    On 6 June 2016, the applicant lodged a claim for permanent impairment and non-economic loss compensation pursuant to ss 24 and 27 of the SRC Act. Relevantly these sections provide:

24. Compensation for injuries resulting in permanent impairment

(1)    Where an injury to an employee results in a permanent impairment, the Commonwealth is liable to pay compensation to the employee in respect of the injury.

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

(a) the duration of the impairment;

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

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

(d) any other relevant matters.

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

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

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

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

(7)     Subject to section 25, if:

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

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

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

(7A)     Subject to section 25, if:

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

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

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

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

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

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

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

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

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

…

27. Compensation for non-economic loss

(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, the Commonwealth is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.

(2)    The amount of compensation is an amount assessed by the MRCC under the formula:

($15,000 x A) + ($15,000 x B)

where:

"A" is the percentage finally determined by the MRCC under section 24 to be the degree of permanent impairment of the employee; and

"B" is the percentage determined by the MRCC under the approved Guide to be the degree of non-economic loss suffered by the employee.

(3)    This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.

23    In her claim form:

    The applicant identified the “accepted condition” as “Post Traumatic Stress Disorder”.

    The applicant identified the “permanent injury/impairment(s) of the body” in respect of which she sought to make a claim as “Psychiatric system”.

    Dr Ryan, as the applicant’s treating practitioner, stated that his preferred diagnosis was: “Adjustment Disorder with depressed & anxious features, chronic (Dr Estensen says PTSD and Depression)”.

    Dr Ryan described impairment to the applicant as “psychological”, and said further:

Have been stable for 6-12 months or more but will improve in the long term.

24    As part of her permanent impairment claim, the applicant relied on a report from psychiatrist Dr Estensen dated 28 May 2016. Dr Estensen diagnosed “Posttraumatic Stress Disorder (chronic) and Major Depressive Episode (moderate severity, treatment resistant). In that report Dr Estensen stated:

Commencing with her being threatened the client had the onset of a range of posttraumatic symptoms including reliving experiences, emotional numbing, cognitive impairment, avoidance behaviour and hypervigilance. The client was unable to return to work and experienced the onset of a depressive illness having the characteristic disturbances of mood, cognitions and neurovegetative function. She has received significant and appropriate treatment but remains symptomatic, with her symptoms causing a reduction of function in many areas of daily living.

25    Dr Estensen assessed the applicant as suffering from a 25% whole person impairment pursuant to table 5.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (edition 2.1).

26    Comcare also received a medical opinion from psychiatrist Dr Lawford who diagnosed “Post Traumatic Stress Disorder” and assessed the applicant as suffering from a 30% whole person impairment.

27    On 1 November 2016 Comcare issued a determination declining liability to pay compensation to the applicant for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act (1 November 2016 determination).

28    In its 1 November 2016 determination Comcare:

    described the “injury” as “adjustment reaction with mixed emotional features”;

    identified one of the issues for it to consider as being “whether you have a compensable condition”;

    did not make any express finding about the nature or diagnosis of the applicant’s condition; and

    concluded that there was a likelihood that the applicant’s condition would improve and that therefore permanent impairment compensation was not payable.

29    More specifically, Comcare stated:

In considering if your condition will improve I note:

Dr Ryan supplied a report in regards to a consultation he had with you on the 16 September 2016. Dr Ryan has indicated in his report dated 27 September 2016 that you may have impairment that is not due to your mental disorder. He further stated at the present time he cannot support the notion that you are totally and permanently disabled.

Dr Ryan has also indicated on your Permanent Impairment application dated 17 June 2016 that your condition will improve in the long term. He also commented that you are an intelligent woman with reasonable prognosis however felt that compensation issues needed to be resolved.

Further supporting the likelihood that your condition will improve, Dr Estensen’s report dated 21 June 2016 recommended a further 60 psychiatric or psychological appointments over the next 5 years and in response to the treatment to date that it has been extensive and appropriate. Dr Estensen further stated that a biopsychosocial model of treatment has been implemented with some benefit.

Therefore, I determine Comcare is not liable to pay compensation to you for permanent impairment under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Comcare is also not liable to pay compensation to you for non-economic loss under section 27 of the SRC Act.

It is not necessary for me to consider whether you have an impairment of greater than 10 because I have found you are not suffering from an impairment which is permanent.

30    On 15 November 2016, the applicant sought review of the 1 November 2016 determination in a letter to the Reconsideration Team of Comcare, attaching a copy of the determination and written submissions supporting the applicant’s request for reconsideration. The applicant relied also on the reports of Dr Oelrichs, Dr Estensen, and Dr Lawford.

31    On 13 December 2016, Comcare issued a further determination (13 December 2016 determination) affirming its original decision. In the 13 December 2016 determination the Senior Review Officer noted that the applicant refuted the claims that she was engaged by Uber as a driver, or had recently completed creative writing works, and or attended a music festival in Arnhem Land. There was a summary of medical evidence, which stated:

I note that Dr Ryan has been your treating psychiatrist since September 2014 and has provided various medical reports dated 12 December 2014, 2 September 2015, 27 June 2016 and 27 September 2016.

I have reviewed all of the reports, but it is his two most recent reports that are the most relevant to the assessment of permanent impairment before me.

In his report dated 27 June 2016, Dr Ryan stated:

In simple terms, the verbal threat that Ms Mununggurr experienced at work in April 2014 is highly unlikely, in my opinion, to be sufficient to explain the severity and duration of Ms Mununggur’s [sic] reported symptoms. Verbal threats whilst no doubt unpleasant and perhaps even amounting to a criminal offence are unfortunate relatively common occurrences in human society and do not usually entail psychological sequelae of an extreme and prolonged kind.

…

In his report of 27 September 2016, Dr Ryan noted the various activities that you had allegedly been involved in over the recent months. These are the ones that your solicitor addressed in recent correspondence to Comcare. Dr Ryan advised that he began the consultation with you on 16 September 2016 with a discussion about these allegations. He reported that you ‘down played’ the issue of the Uber business saying that you had done ‘not much’ driving and would never go alone and that you were angry that you had been ‘checked on’. Dr Ryan further stated that you denied attending as many social events as Facebook might have indicated.

After discussing the allegations directly with you at consultation, Dr Ryan stated in his report that at the present time he could not support the assertion that you have a degree of permanent impairment and it was also unclear whether any impairment is due to a mental disorder.

…

32    The Senior Review Officer accepted the medical opinion of Dr Ryan in light of the fact that he was the applicant’s treating psychiatrist and was the only medical practitioner to have discussed the allegations (namely the Uber driving, completing creative writing works and attending various social events) with the applicant prior to providing his opinion regarding the applicant’s psychiatric impairment. The Senior Review Officer continued:

For compensation to be payable, I must be satisfied that your accepted condition has resulted in an impairment that is permanent. On the evidence currently available, I cannot be so satisfied.

The evidence of Dr Ryan casts significant doubt that the incident in May 2014 has resulted in your current psychiatric impairment. Noting that he is your treating psychiatrist, Dr Ryan still went as far as to state that he could not be satisfied that any impairment you currently experience was due to a mental disorder and even if it was, he identified the most significant contributory factor as the protracted medico-legal issue with Comcare. Conditions or impairments caused by the administration of your claim and processes are not compensable.

33    There was no express reference to or determination of the specific condition by the Senior Review Officer.

34    On 15 February 2017, the applicant applied to the Tribunal for review of the 13 December 2016 determination.

the tribunal hearing

35    On 29 May 2019, the matter was listed for a two day hearing at the Tribunal. At the commencement of the hearing, a question arose as to the Tribunal’s jurisdiction to consider the applicant’s entitlement to permanent impairment compensation pursuant to ss 24 and 27 of the SRC Act.

36    At that hearing, Comcare submitted to the Tribunal that its liability for SRC Act compensation was limited to PTSD, as determined on 30 July 2014. The applicant submitted that the compensable injury embraced both PTSD and MDD, and that the Tribunal had jurisdiction to determine the compensation point on both of those conditions.

37    The applicant sought and obtained an adjournment, and the hearing resumed on 21 June 2019.

Decision of the Tribunal

38    The Tribunal observed that jurisdictional issue was pivotal, because if the Tribunal found that it did not have jurisdiction to consider whether the applicant was entitled to permanent impairment compensation for MDD, the Tribunal would not be obliged to consider MDD as a potential injury of the applicant in the determination of the substantive application. Conversely, if the Tribunal found that it did have jurisdiction, MDD would be within the purview of the Tribunal’s determination about compensation for permanent impairment.

39    The Tribunal at [5] of its reasons referred to the initial determination of 30 July 2014, where Comcare stated:

I have accepted your claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for the following:

•    post traumatic stress disorder

40    The Tribunal noted at [6] of its reasons that at no time had liability been accepted by Comcare for MDD.

41    The Tribunal noted that, since September 2018, it had been open to the applicant to resolve the absence of consensus between the parties by, for example:

    the applicant lodging a fresh claim for compensation for MDD;

    a timely listing of the jurisdictional point for determination by the Tribunal prior to the hearing; or

    the applicant notifying the respondent and the Tribunal of an intention to ventilate the jurisdictional point immediately prior to commencement of the substantive hearing on 29 May 2019.

42    At [10] of its reasons, the Tribunal said:

The jurisdictional point seemed to have been resolved because after some discussion on the morning of the substantive hearing (on 29 May 2019), the Applicant (1) sought (and it was granted) an adjournment of the substantive hearing for PTSD and (2) adopted the Tribunal’s suggestion that the substantive application be placed in abeyance pending determination of a fresh claim for MDD. Appropriately worded Orders were made on 29 May 2019. The Applicant now agitates for a vacation of those Orders on the basis that the jurisdictional issue ought be determined at a preliminary hearing. This preliminary jurisdiction hearing proceeded before me on 21 June 2019 and was preceded by both parties filing respective helpful written submissions.

43    Before the Tribunal the applicant relied on Abrahams v Comcare [2006] FCA 1829 to support a contention that the Tribunal had jurisdiction to make, and was obliged to make, a determination on the applicant’s degree of permanent impairment howsoever diagnosed. In summary, the applicant’s position was as follows:

    a broad approach should be taken to determining the scope of the claim and, consequently, the Tribunal’s jurisdiction on review;

    the Tribunal’s jurisdiction is not constrained by the way Comcare had chosen to construe the claim;

    the claim must be construed as a whole, drawing not only on the claim itself, but also the notice of injury, medical certificates and other documentation submitted at the time; and

    the scope of the claim aligned with the claimant’s condition as determined through later investigations, and was not limited to the condition originally nominated on the form 8.

44    In the Tribunal the applicant cited the following passage from Abrahams:

25.    …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 original 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.

45    The respondent relied on Comcare v Muir [2016] FCA 346 to support its contention that, for the purposes of the substantive application wherein the applicant claimed PTSD, it was not within the jurisdiction of the Tribunal to make a determination about any compensable entitlement the applicant could have had pursuant to ss 24 and 27 of the SRC Act for a permanent impairment arising from MDD. The Tribunal noted at [15] that the facts in Muir were analogous to those of the application before it. The Tribunal continued:

18.    The Applicant has at no time made any claim for (nor made any reference to) compensation for permanent impairment for an ‘injury’ described as ‘Major Depressive Disorder’. It does not appear: -

(i)    in her initial claim made on 17 June 2016;

(ii)    in her request for review made on 15 November 2016;

(iii)    upon her receipt of the reviewable decision dated 13 December 2016 (which did not even mention MDD);

(iv)    upon the filing of her application for review in this Tribunal;

(v)    upon the filing of her SFIC dated 20 August 2018 (which makes no mention of MDD as an ‘injury’; and

(vi)    upon her receipt of the Respondent’s SFIC (in September 2018) that expressly placed her on notice that:

While the specialist evidence indicates that the Applicant also suffers from another psychological ailment (that has been variously described as Major Depressive Disorder and an Adjustment Disorder), as liability has not been accepted for any ailment other than PTSD under s 14 of the SRC Act and, has not been the subject of the ‘three tiered decision making process’ prescribed by the Act, the Tribunal does not have jurisdiction to consider whether the Applicant is entitled to compensation under ss 24 and 27 of the SRC Act in respect of any condition other than PTSD.”

46    The Tribunal noted at [18] that the applicant had not previously made a claim for an injury described as MDD. It further noted that, at the commencement of the substantive hearing before it, the Tribunal was notified for the first time of the applicant’s intention to advance an argument for permanent impairment compensation under ss 24 and 27 of the SRC Act arising from an MDD “injury”, and to ventilate the jurisdictional issue during closing submissions after all the evidence was closed. The Tribunal refused to proceed on that basis.

47    Materially the Tribunal continued:

WHAT THE TRIBUNAL CAN AND CANNOT DO

20.    In procedural terms, the Tribunal begins from the reality that there has never been a determination by the Respondent that the Applicant’s MDD is an ‘injury’ for the purposes of the SRC Act. In the absence of such a determination (and subsequent reviewable decision), the Tribunal cannot discharge its fundamental function to review a decision made by the Respondent. Plainly, with regard to MDD, there is nothing for the Tribunal to review.

21.    The Tribunal is mindful of the Abrahams approach suggesting a ‘broad, generous and practical interpretation’ should be followed in ascertaining the nature of the claim propounded by an Applicant. However, both Madgwick J in Abrahams and Flick J in Muir temper such a ‘broad, generous’ approach.’ Madgwick J said that in any exercise determining the nature of a claim, considerations ‘…enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.’ In a similar vein, Flick J observed that a given claim before the Tribunal ‘…must nevertheless properly and adequately inform Comcare such that Comcare can make an informed decision whether the claim should be met.’ [My underlining]

22.    While the Tribunal has limited flexibility to reformulate a claim, the ambit of that flexibility does not extend to making a determination for compensation pursuant to s 24 of the SRC Act for permanent impairment said to result from MDD in circumstances where (1) there is no determination about MDD and, indeed, (2) the reviewable decision did not consider MDD. To paraphrase the comments of Flick J for present purposes, ‘…a claim confined to an injury [PTSD] cannot be transformed into a claim for [MDD or MDD and PTSD]….’ I thus agree with the Respondent’s submissions: ‘if it were to take that step, the Tribunal would fall into error, for the reasons articulated in Muir.’

23.    The Respondent has at no time accepted liability for the now-propounded MDD and that purported ‘injury’ has not been the subject of the ‘three-tier decision-making process required by the SRC Act. In addition to this legislative requirement, there is authority for the proposition that the ‘three-tier decision-making process [comprises] a central feature of the legislative scheme under the SRC Act.’ Accordingly, the Tribunal does not have jurisdiction to consider whether the Applicant is entitled to compensation under ss 24 and 27 of the SRC Act for any condition other than PTSD.

(Emphasis in original, footnotes omitted.)

48    The Tribunal concluded at [27] that the most appropriate and expeditious approach was:

    for the applicant to lodge a fresh claim for her MDD;

    Comcare could then make a determination whether the applicant’s MDD constituted an “injury” within the meaning of that term in s 5A of the SRC Act; and

    if the MDD claim was not resolved in the claims process, the two applications with the Tribunal should be joined, and heard and determined at the one hearing.

Submissions of the parties

49    In summary the applicant submitted:

    The central question is whether the Tribunal was in error in deciding that its jurisdiction did not permit it to consider whether the applicant was entitled to permanent impairment compensation for a major depressive disorder. If it was in error in that way, that was an error of law reviewable by this Court pursuant to either s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) or s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act).

    At issue is whether the Tribunal had jurisdiction to consider whether the applicant was entitled to permanent impairment compensation arising from MDD. The Tribunal decided that it did not because (a) there had been no determination by Comcare that the applicant’s MDD was an “injury” for the purposes of the SRC Act and (b) the 13 December 2016 determination did not consider MDD.

    Neither of those reasons supported the Tribunal’s conclusion because:

(a)    there was no authority for the proposition that the want of a prior determination that a condition amounted to an “injury” deprived the Tribunal of jurisdiction to consider a permanent impairment claim for that condition. Rather – the Full Court in Lees v Comcare [1999] FCA 753 reached a contrary decision.

(b)    the suggestion that Comcare must “consider” a condition in its reviewable decision before the Tribunal’s jurisdiction is enlivened is against authority: Fuad and Telstra Corporation [2004] AATA 1182, Kennedy v Comcare [2014] FCA 82. It follows that all matters before the decision-maker as part of a claim under the SRC Act are before the Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That left a problem of identifying exactly what was before the decision-maker, however that was a practical problem and not a jurisdictional problem.

    In determining the scope of the applicant’s claim, a “broad, generous and practical interpretation” is called for: Abrahams v Comcare (2006) 93 ALD 147, [18]; Szabo v Comcare [2012] FCAFC 129, [50]; Kennedy v Comcare [2014] FCA 82, [53].

    Taking a broad, generous and practical interpretation of the claim before the decision-maker, the applicant had claimed permanent and non-economic loss compensation for a psychiatric ailment. This could be described as PTSD or MDD.

    The Tribunal’s jurisdiction was not confined by the question whether Comcare had previously determined whether the MDD was an “injury”, or whether Comcare expressly addressed the diagnosis of MDD.

    In any event, in both determinations Comcare described the applicant’s “injury” as “adjustment reaction with mixed emotional features” rather than PTSD.

    Further, in excluding MDD from consideration, the Tribunal failed to recognise that the applicant had never asserted the she had suffered anything other than a psychiatric ailment which she sustained due to an isolated work event. Descriptions of an ailment might evolve over time and the Tribunal should not hold the applicant irretrievably to an earlier medical diagnosis: Abrahams at [21], [23].

    The Tribunal’s jurisdiction to consider the question under s 24(1) of the SRC Act is not narrow. Even if one were to assume that the “injury” was and may only be PTSD, the question then becomes whether the PTSD “results in a permanent impairment”. Were the evidence before the Tribunal to show that the only “injury” was PTSD, but that the PTSD itself resulted in a further condition of MDD, the Tribunal would be required to determine whether the impairment from MDD was nevertheless a result of the PTSD (and compensable on that basis).

50    In turn, in summary Comcare submitted:

    The SRC Act gave pivotal importance to the concept of “an injury” suffered by an employee. In assessing an entitlement to permanent impairment compensation under s 24 of the SRC Act, it is the injury that provides the prism through which permanent impairment compensation in respect of the injury is determined.

    When assessing an entitlement to compensation under s 24, s 24(5) is the central provision. This subsection provides that the MRCC shall determine the degree of permanent impairment of the employee resulting from “an injury” under the provisions of the approved Guide.

    Liability had been accepted by Comcare pursuant to s 14 of the SRC Act for an injury (PTSD) suffered by the applicant. The critical issue raised by this application was whether, in the course of reviewing a “reviewable decision” of Comcare denying liability under s 24 of the SRC Act, the Tribunal also had jurisdiction to determine a permanent impairment claim arising out of another injury (MDD) for which liability had never been accepted by Comcare.

    The Tribunal’s approach to this issue was entirely consistent with the text, structure and purpose of the provisions of the SRC Act and relevant authorities. Its conclusion on this issue did not involve an error of law.

    Although the applicant submitted that her claim was to be assessed as including both PTSD and MDD, the most recent medical evidence before the Tribunal suggested that those two conditions were separate and distinct ailments.

    Section 10(2)(b) of the ADJR Act relevantly provides that the Court may, in its discretion, refuse to grant an application in respect of a decision if adequate provision is made by any other law under which the applicant is entitled to seek a review. The applicant’s entitlement to compensation for her major depression disorder could have been dealt with by the Tribunal if she had simply asked Comcare to determine whether it accepted liability under ss 14 and 24 of the SRC Act for MDD. The Tribunal proceedings were adjourned to enable this to occur, however the applicant chose not to do so.

Consideration

51    Before turning to the arguments before the Court it is helpful to examine key authorities on which the parties rely.

Abrahams

52    The primary authority on which the applicant relied is Abrahams. In that case Mr Abrahams was a Commonwealth public servant who had experienced pain in his right arm from around January 2001, and lodged a claim with Comcare under the SRC Act for compensation in respect of his right arm which he described as “overuse injury affecting the right arm.” Comcare accepted liability for particular named conditions of the right upper arm, shoulder, elbow and forearm, and neck, however in 2003 decided that Mr Abrahams no longer suffered from compensable effects of his accepted injury. In 2003 Mr Abrahams was diagnosed as having right carpal tunnel syndrome. He identified this diagnosis on his compensation claim furnished pursuant to s 53 of the SRC Act, described his injury or illness as “right carpal tunnel syndrome”, and identified his right hand and wrist as the body part affected. Mr Abrahams’ claim was rejected by Comcare, and again internally by Comcare by a review officer.

53    Mr Abrahams sought review by the Tribunal of Comcare’s reviewable decision. However after lodging his application for review, Mr Abrahams received more medical information such that it was no longer possible for his advising doctors to maintain their diagnosis of carpal tunnel syndrome. However the effect of the medical evidence was that Mr Abrahams appeared to be suffering from pain in his right upper limb. In the Tribunal, Mr Abrahams pressed his claim on the basis that his wrist complaints were but part of, and subsumed in broader, ongoing and varying difficulties over virtually the entirety of his right upper limb, the right shoulder and neck, and even headaches.

54    The Tribunal noted that it was not entitled to exercise its powers at large, but rather its powers were for the purpose of reviewing a reviewable decision. Further, the Tribunal considered that it did not have jurisdiction to deal with the issue pressed before it by Mr Abrahams, and observed that Mr Abrahams was urging the Tribunal to make a finding that even though he had not suffered the injury claimed, he had suffered another injury to the same limb. The Tribunal further observed that the decision before it was a decision to deny liability for the specific injury of carpal tunnel syndrome of the right wrist, it had all the powers of the decision-maker for all purposes related to the making of the decision, however these powers did not include the power to treat the application as one for compensation for a different injury, even if that injury was one of which the decision-maker was aware. The Tribunal also concluded that it would have been vexatious to allow Mr Abrahams to continue to have the matter heard on the basis argued by his Counsel, and that it was appropriate to dismiss the application pursuant to s 42B of the AAT Act.

55    Mansfield J stated that the principles stated by the Tribunal had been misapplied, and continued:

18.    The original decision-maker might conceivably have had many powers, the exercise of which may have been prompted by what he or she knew of the applicant’s claim, without those powers being powers or discretions relevant to the exercise of the decision to be made. However, it seems to me that the Tribunal Member did not adequately appreciate or apply the following legal propositions, which I think are correct:

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.

(I note that these five principles were specifically adopted by the Full Court in Szabo v Comcare [2012] FCAFC 129 at [50]).

56    His Honour further considered that the Tribunal took an overly technical and legally impermissible mode of interpretation to hold Mr Abrahams irretrievably to the use of what was plainly the then medical diagnosis which he had received. While Mr Abrahams made a claim for “right carpal tunnel syndrome”:

20.    …It was nevertheless entirely clear that he was complaining in fact of pain, swelling and inflammation in the right hand and wrist associated with decreased ability to lift and move objects with his right hand and decreasing strength in the hand.

57    His Honour also observed at [23] it would have been open to the Tribunal to treat what Counsel for Mr Abrahams was saying as an informal application to amend the notice of injury, if need be, to allege an injury more broadly designated than a “right carpal tunnel syndrome”, or to change it from that designation, provided that the same symptoms, disability and timeframe were still being asserted.

Kennedy v Comcare [2014] FCA 82

58    The applicant before me also relied on the decision of this Court in Kennedy v Comcare. In that case Ms Kennedy worked as a customer service advisor in a Centrelink call centre, and lodged a claim with Comcare on 25 June 2010 claiming mental injury, hearing loss and alopecia said to have resulted from “ongoing harassment/bullying”, “dental trauma” and migraines. In support of her claim, Ms Kennedy submitted a lengthy statement “regarding harassment/bullying during [her] employment at the relevant call centre from 2005–2010. The claim was made with respect to injuries which Comcare deemed to have occurred on 12 July 2007 and 3 May 2010. Comcare found at first instance that it was not satisfied that Ms Kennedy’s employment contributed significantly to either condition, and that it if did it was in the nature of reasonable administrative actions undertaken in a reasonable manner. On review, the review officer affirmed the earlier determination.

59    Before the Court, materially Ms Kennedy took issue with the Tribunal’s alleged failure to deal with her submission that there was an aggravation of her psychiatric disorder in the latter half of 2009 for which Comcare was liable to pay compensation under s 14 of the SRC Act. The Tribunal had formed the view that evidence of such aggravation formed the background to events in April 2010, however Ms Kennedy submitted that this observation misstated her case.

60    Katzmann J noted that in oral argument at the Tribunal, Counsel for Ms Kennedy had submitted that events in the latter half of 2009 provoked some level of psychological injury which pre-dated the remaining events in April 2010. Her Honour therefore accepted that a submission had been made to the Tribunal that Ms Kennedy had suffered an injury in the latter half of 2009 for which she should have been compensated, and which the Tribunal did not address. Comcare submitted that the reviewable decision did not refer to an injury in 2009, and nor did the request for reconsideration, such that the Tribunal had no jurisdiction to entertain the submission.

61    Her Honour examined the decisions of the Full Court in Lees, and Szabo v Comcare [2012] FCAFC 129, however continued:

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: Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136; [2011] AATA 802 (“Durham”) (Jagot J, sitting as a presidential member of the tribunal) at [51]. The question of whether the tribunal lacked jurisdiction to deal with the submission depends on the scope of the applicant’s claim for compensation: Durham at [53].

46.    The claim form Ms Kennedy submitted described her injury as:

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

47.    She said she was injured or first noticed she was ill in August 2005 and that what actually injured her was “ongoing harassment/bullying” by four named supervisors, one of whom was Ms Oostendorp. There was no specific reference to anything occurring in 2009 but, by the same token, there was no reference to an injury in 2007 or 2010. However, in a lengthy statement she made to Comcare in support of her compensation claim, Ms Kennedy wrote [in respect of events in 2009]

62    Her Honour further observed:

51.    The delegate did not take Ms Kennedy to have made any suggestion that these events in 2009 resulted in an injury discrete from that in 2010. Earlier in her statement of reasons, she wrote:

You provided a statement to Comcare (discussed below) in which you state that you were first off work due to your ‘current illness’ in March 2010. I note that you were off work due to a severe viral illness, and have claimed that you were subjected to bullying and harassment in relation to returning to work, which in turn, led to the development of a significant psychological condition.

[Emphasis added]

52.    The reference to “bullying and harassment in relation to returning to work” is plainly a reference to the home visit in April 2010. Without doubt, the delegate’s characterisation of Ms Kennedy’s claim was “unduly restrictive” and “inconsistent with both the terms of the claim and the beneficial character of the Act”: Durham at [60].

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.

63    Her Honour was satisfied that the preconditions to the exercise of the Tribunal’s jurisdiction to consider Ms Kennedy’s submission had been made out, in circumstances where Ms Kennedy had given notice to Comcare of an injury in 2009 and had made a claim that she be compensated for it.

Lees v Comcare [1999] FCA 753

64    In Lees the Full Court of the Federal Court dealt with appeals by two separate claimants. The first claimant, Ms Lees, had sought review by the Tribunal of a decision under s 16 of the SRC Act to deny her compensation for the cost of taxis to attend medical examinations. During the course of the Tribunal proceedings, Ms Lees sought to expand the scope of the Tribunal’s review to include consideration of a claim under s 24 of the SRC Act for compensation for permanent impairment that had not been the subject of either a determination or reviewable decision by Comcare. The second claimant, Mr O’Donohue, sought to challenge a rejection of his claim for an injury under s 14 of the SRC Act in the Tribunal, during which proceedings he sought to expand the scope of the review to include a claim under s 24 of the SRC Act which had not been the subject of the determination or reviewable decision. The Tribunal concluded it had jurisdiction to consider both Ms Lees’ and Mr O’Donohue’s claims for compensation for permanent impairment pursuant to s 24, however those determinations were subsequently overturned.

65    Materially, the Full Court observed:

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.

66    Their Honours further said:

47.    The challenge to the decision of the AAT concerning its jurisdiction was apparently only pressed before Finn J to the extent that the AAT found that it was able to hear Ms Lees' claim for a lump sum payment of compensation for permanent impairment. His Honour concluded that the AAT did not have jurisdiction to make a determination as to the amount of compensation, if any, payable to Ms Lees under s 24 of the Act.

48.    In our view, his Honour was plainly right in so concluding. As is mentioned above, on 16 October 1995 an authorised officer of Comcare had determined pursuant to s 14 of the Act that Comcare was liable to pay compensation in accordance with the Act to Ms Lees in respect of the injury suffered by her. That determination had not been the subject of reconsideration under s 62 of the Act and was therefore not a "reviewable decision" for the purposes of s 64 of the Act. The determination under s 14 established, amongst other things, that Comcare would be liable to pay compensation to Ms Lees under s 24 of the Act if the injury resulted in permanent impairment. We interpolate that we do not read s 24(1) of the Act as a second source of liability to pay compensation in respect of an injury to an employee resulting in impairment. We see that liability as being created by s 14 of the Act. Section 24 we understand as being intended to define the nature and extent of the liability to pay compensation in respect of an injury which results in permanent impairment.

49.    It may be that a situation could arise in which an employee has a claim for compensation for permanent impairment under s 24 of the Act where no determination of Comcare's liability under s 14 of the Act has been made. In such a case it may well be that the Act allows the issue of Comcare's liability to pay to the employee compensation for permanent impairment to be determined under s 24 notwithstanding that no earlier determination under s 14 has been made. However, the practical reality is that such cases will be rare. Ordinarily, before any issue of an employee's, or former employee's, entitlement to compensation for permanent impairment arises, a determination concerning that person's entitlement to compensation will have been made under s 14 of the Act. Neither of the matters under present consideration is an instance of a case in which a claim for compensation for permanent impairment arose in the absence of a determination under s 14 of the Act.

50.    The only issues under s 24 of the Act which required determination in Ms Lees' case were the issues of whether she had a permanent impairment and, if she did, the amount of compensation payable under the section in respect of that impairment. Neither of these issues had been determined at the first tier decision-making stage. Necessarily in the circumstances, there had been no reconsideration under s 62 of the Act of a determination on these issues. Consequently there was no reviewable decision touching on these issues to found an application to the AAT under s 64 of the Act. The reviewable decision which founded Ms Lees' application to the AAT was the determination of the Independent Review Officer concerning Ms Lees' entitlement under s 16 of the Act for compensation in respect of taxi fares incurred, or to be incurred, for the purpose of obtaining medical treatment. It was that determination, and that determination only, that s 64 of the Act authorised the AAT to review. The powers of the AAT under s 43 of the AAT Act were powers which it was authorised to exercise for the purpose of reviewing only that determination.

Comcare v Muir [2016] FCA 346

67    In Comcare v Muir, Ms Muir sought compensation for an injury, being diagnosed conditions of:

    Worsening of Anxiety/Depression, Work place Bullying and Harassment;

    Severe anxiety;

    Severe Depression; and

    Severe Stress.

68    Ms Muir stated in her compensation claim that she was injured, or first noticed she was ill, on 23 October 2013. Ms Muir attached a medical certificate referring to bullying and harassment at work which had been ongoing since October 2011. However in response to a request for further information from Ms Muir, she stated that her claim was for an incident that occurred on 23 October 2013.

69    At first instance Comcare rejected the claim, for reasons including that the medical evidence supported the view that Ms Muir was suffering from a psychological condition outside the bounds of normal mental functioning and behaviour on 23 October 2013. In the course of the decision the delegate stated that, although Ms Muir claimed only for the incident on 23 October 2013, the delegate was required to have regard to the evidence as a whole.

70    Ms Muir sought reconsideration of the first decision, focusing on the determination deeming the date of injury to be 23 October 2013 on the basis that the events of that date were “the culmination to an already long list of issues of ongoing events…” The review officer affirmed the earlier decision.

71    Ms Muir sought review of the reviewable decision by the Tribunal, which set aside that decision. In the course of reaching its decision, the Tribunal observed:

[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.

72    The Tribunal concluded that Scenario B better reflected the totality of the evidence, particularly where it had always been Ms Muir’s claim that she sustained an injury arising out of, or in the course of, the events of 2010-2012.

73    Comcare appealed the decision of the Tribunal, on the basis that the Tribunal had resolved a claim for an injury fundamentally different to the claim Ms Muir made and which was not the claim as resolved by the review officer.

74    Flick J upheld Comcare’s appeal. In summary, his Honour concluded that the characterisation of Ms Muir’s claim as being confined to an injury suffered in October 2013 (rather than in 2010/2011) was supported by the further information provided by Ms Muir identifying 23 October 2013 as the date of injury, email correspondence which informed the subject matter of the claim being made, and the fact that the request for reconsideration proceeded upon a challenge to the manner in which the delegate at first instance assessed the injury as that occurring on 23 October 2013. His Honour further concluded 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.

75    It followed that, in his Honour’s view, the Tribunal erred.

This case

76    Section 43(1) of the AAT Act provides that for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. However, the Tribunal is not authorised to exercise any powers or discretions which would not have been available to Comcare in the making of the “reviewable decision”. Accordingly, the Tribunal’s jurisdiction is limited to reviewing a “reviewable decision” and does not extend to exercising its powers at large.

77    In terms of the claims process under the SRC Act, s 53 requires that a claimant must give notice of the “injury”. Section 54 requires the claimant to make a written claim in accordance with the form approved by Comcare.

78    Fundamentally, the applicant’s case is that she made a claim on Comcare for a “psychiatric injury” arising out of a workplace incident on 12 April 2014, described in various ways, but including as a depressive disorder, and that this claim was twice before Comcare and then before the Tribunal. The applicant contended that neither the Tribunal nor the Court should be constrained by the manner in which she described her injury in her claim. Rather, she submitted that her injury potentially encompassed both PTSD and MDD such that, on review, the Tribunal could have made an assessment on the basis of MDD notwithstanding that Comcare did not make a decision in respect of whether the applicant did suffer from this condition as a result of her injury. To that extent the Tribunal erred in finding that it lacked jurisdiction.

79    Notwithstanding the thoughtful arguments advanced by Counsel for the applicant in the present case, I am not persuaded that the Tribunal erred. I am not satisfied that, in reviewing Comcare’s reviewable decision denying liability under s 24 of the SRC Act for permanent impairment compensation arising out of the applicant’s injury (for which Comcare had accepted liability in respect of PTSD pursuant to s 14), the Tribunal also had jurisdiction to determine a claim under s 24 of the SRC Act for permanent impairment arising out of MDD.

80    First, it is important to keep in mind that the Tribunal is not exercising its powers at large. As the Full Court pointed out in Lees, the powers of the Tribunal are powers for the purpose of reviewing the reviewable decision. The starting point for any exercise of power by the Tribunal is accordingly the reviewable decision, in this case that of the Senior Review Officer at Comcare. In this respect I also note the Tribunal’s statement at [19] of its reasons that the Tribunal was notified – for the first time – of the applicant’s intention to advance an argument for permanent impairment compensation under ss 24 and 27 of the SRC Act arising from an MDD ‘injury’ and to ventilate the jurisdictional issue during closing submissions after all of the evidence was closed. The Tribunal clearly took the view, on the basis of the material before it, that an MDD “injury” had never been raised by the applicant before Comcare.

81    Second, while claims for compensation for an injury, and in respect of injuries resulting in permanent impairment, under the SRC Act are often commenced by non-expert applications by an injured lay person, such that the nature of the injury need not be precisely described at the commencement of the process (and indeed may change over time), nonetheless what is clear from both the statutory framework and the authorities is that:

    The injury the claimant identifies is key to any claim for permanent impairment in respect of that injury under s 24 (and s 27) of the SRC Act.

    Because of the potential imprecision of the description of the injury by the claimant in the claim form, the manner in which the claim was agitated before Comcare, and the material relied on by the claimant in the course of the claims process, may be important in determining the nature of the injury identified by the claimant before the decision maker, and subsequently before the Tribunal.

    The acceptance or otherwise by Comcare of a claim for compensation in respect of an injury does not determine the characterisation or parameters of the injury in circumstances where the claimant seeks review of Comcare’s decision in the Tribunal. However it is likely that a determination by Comcare that it is liable for compensation for an injury reflects the manner in which the claimant has pressed the claim for compensation, and the manner in which the claimant identified the relevant injury.

82    In noting that the manner in which the claim was agitated is important, I respectfully note the following observations of Flick J in Comcare v Muir:

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.

(Emphasis added.)

83    It follows that, notwithstanding that a broad, generous and practical interpretation should be made in construing an applicant’s claim form, the material in that claim form, including medical evidence on which she sought to rely, must be such as to properly and adequately enable Comcare to make an informed decision on whether the applicant’s claim, as made, should be met, in respect of the “injury” claimed.

84    Third, as the High Court explained in Canute v Comcare (2006) 226 CLR 535, the whole person impairment approach operates in respect of a specific injury. While there can be more than one injury that can result from a single workplace incident, each injury must be assessed separately: Comcare v Lilley [2013] FCAFC 121 [46]. In Robson v Military Rehabilitation and Compensation Commission (2013) 214 FCR 1; [2013] FCAFC 101 it was recognised that PTSD and MDD were separate and distinct ailments. Cowdroy, Buchanan and Katzman JJ stated at [25] “it is a separate injury in both its origins and in its clinical manifestations, even though there are some features of the condition which are shared with PTSD.” This is consistent with the evidence before the Tribunal in this case.

85    Fourth, the manner in which the applicant commenced her claim with Comcare, and subsequently sought compensation in respect of permanent impairment, does not support a finding that, at any time, she claimed MDD as an injury before Comcare. In particular I note that:

    In her original compensation claim form lodged on 28 May 2014 the applicant identified the “injury or illness” for which she was claiming as “Depression – reactive”.

    On 30 July 2014, Comcare determined that it was liable to pay compensation to the applicant under s 14 of the SRC Act, on the basis of the applicant suffering an injury by way of PTSD. Indeed, it is uncontroversial that the applicant received incapacity payments under s 19 of the SRC Act, and associated compensation for medical expenses under s 16 of the SRC Act.

86    This point was further expanded by the Tribunal, which relevantly observed:

18.    The Applicant has at no time made any claim for (nor made any reference to) compensation for permanent impairment for an ‘injury’ described as ‘Major Depressive Disorder’. It does not appear: -

(i) in her initial claim made on 17 June 2016;

(ii) in her request for review made on 15 November 2016;

(iii) upon her receipt of the reviewable decision dated 13 December 2016 (which did not even mention MDD);

(iv) upon the filing of her application for review in this Tribunal;

(v) upon the filing of her SFIC dated 20 August 2018 (which makes no mention of MDD as an ‘injury’; and

(vi) upon her receipt of the Respondent’s SFIC (in September 2018).

87    In this respect I also note the extensive medical evidence which was relied on by the applicant and adduced by Comcare during the course of the claim process. This medical evidence informed the decisions of Comcare referable to the injury claimed by the applicant. The medical evidence strongly supported a finding that the applicant’s injury was PTSD, and Comcare’s decisions were made referable to that material. So, for example:

    In making its determination on 30 July 2014, Comcare had regard to:

(a)    A report dated 26 June 2014 from general practitioner Dr Chandra, who diagnosed “Anxiety/Depression”.

(b)    A report dated 26 June 2014 from psychologist Ms Lynette Hand who diagnosed “Post Traumatic Stress Disorder (309.81), Chronic, according to DSMIV – TR”.

(c)    A report dated 17 July 2014 from psychiatrist Dr Oelrichs who diagnosed “Posttraumatic stress disorder acute secondary depressive symptoms”.

    After its determination of 30 July 2014 Comcare received medical opinions regarding the applicant including:

(a)    That of consultant psychiatrist Dr Ryan (dated 12 December 2014), stating that his “impression” was that the Applicant had a “mix of depressive and anxiety symptoms in the context of trauma. Differential diagnoses include post-traumatic stress disorder”.

(b)    That of occupational physician Dr Navin (dated 24 March 2015) who diagnosed “significant reactive depression.

(c)    That of consultant psychiatrist Dr Shaikh (dated 31 July 2015) who diagnosed PTSD.

(d)    A further report from psychiatrist Dr Oelrichs (dated 4 August 2015) who diagnosed PTSD with co-morbid major depressive condition which is now chronic.

(e)    A further report from psychiatrist Dr Ryan (dated 2 September 2015) who agreed that “PTSD would be considered by some psychiatrists to be a differential diagnosis but I think that Ms Mununggurr’s presentation would be better conceptualised an adjustment disorder with a mix of depressive and anxious symptomology that occurs in the context of multiple psychosocial stressors, some of which are potentially longstanding with issues of attachment and trauma as discussed above.”

    In support of her claim for permanent impairment and non-economic loss compensation dated 6 June 2016, the applicant relied on a report of psychiatrist Dr Estensen dated 28 May 2016, in which Dr Estensen diagnosed “Posttraumatic Stress Disorder (chronic) and Major Depressive Episode (moderate severity, treatment resistant)”.

    Comcare received a further medical opinion from psychiatrist Dr Lawford (dated 14 September 2016) who diagnosed PTSD.

88    There was some suggestion that the applicant may have suffered PTSD mixed with depressive symptomology, however the only medical expert to suggest that the applicant could suffer from MDD was Dr Estensen in mid-2016. In the reviewable decision the Senior Review Officer had regard to medical reports before Comcare (including the report of Dr Estensen), but preferred the opinions of Dr Ryan, who had been the applicant’s treating psychiatrist since September 2014 and who had access to more information concerning the applicant than the other medical experts. The Senior Review Officer also noted the opinion of Dr Ryan that the applicant’s reported symptoms appeared to be out of proportion to the nature and magnitude of the incident which she experienced, that the major significant perpetuating factor was the ongoing medico-legal situation relating to her compensation claim, and that in his view the applicant would eventually make a recovery. The Senior Review Officer referred to the opinion of Dr Estensen, however did not give his opinion the same weight as Dr Ryan, for the following reason:

Dr Estensen assessed your impairment in May 2016 at 25% WPI and stated that you required a further five years of treatment and medication. Dr Estensen advised that a biopsychosocial treatment regime had been implemented with some benefit, but he did not identify or comment on any other pre-disposing or contributing factors, such as those articulated by Dr Ryan in his June 2016 report.

(Emphasis added.)

89    To the extent that the applicant submitted that there had been a failure to have regard to any evolution in the diagnosis of her condition, the extensive accumulation of medical evidence over time by Comcare and the reference by Comcare to that evidence in its decisions contradicted any such assertion.

90    Fifth, while statements of principle from other authorities are relevant, I do not consider that comparisons with the facts of such cases as Abrahams and Kennedy are very helpful. Indeed, I consider that the facts in Kennedy in particular are distinguishable, as involving a case where – unlike here – arguments relating to the relevant injury on which the claimant subsequently sought to rely before the Tribunal were clearly ventilated by the claimant before Comcare in the course of its decision-making process.

Conclusion

91    In this case, the applicant made a claim for compensation for a psychiatric injury, giving the notice required under s 53 of the SRC Act. Liability was accepted by Comcare for an injury by way of PTSD. I am not persuaded that the generality of the applicant’s description of her injury encompassed a claim for MDD as she submitted, particularly in light of the manner in which she agitated her claim before Comcare, the subsequent decision of Comcare (which was informed by the details of the applicant’s claim), and the fact that MDD is a distinct ailment from PTSD.

92    In Abrahams, Justice Mansfield at [23] noted that, in that case, it was open to the Tribunal to treat Counsel’s submissions as an informal application to amend the notice of injury by way of broadening or changing its description. There is no scope for such an inference in the present case however, where before the Tribunal the applicant clearly rejected the possibility of amending her application.

93    The Tribunal concluded that, in the circumstances of the case, it lacked jurisdiction to determine a claim for compensation under ss 24 and 27 of the SRC Act arising from the applicant’s alleged MDD injury, and that there was no reviewable decision touching on this issue to found the Tribunal’s power of review under s 64 of the SRC Act.

94    In my view the Tribunal was correct in so concluding.

95    As no error of law has been demonstrated, the appropriate order is to dismiss the applicant’s amended originating application, with costs.

Associate:

Dated:    11 December 2020