FEDERAL COURT OF AUSTRALIA
Ellison v Comcare [2022] FCA 95
ORDERS
| ||
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The decision of the Administrative Appeals Tribunal made on 2 April 2020 to affirm the decision under review be set aside, and the Applicant’s claim be remitted to the Tribunal to be determined according to law.
2. Unless, within seven days from the date of this order either party files and serves short written submissions (not more than three pages) opposing the order, the Respondent is ordered to pay the Applicant’s costs of and incidental to this proceeding on a party-party basis, to be agreed and if not agreed to be assessed by a Registrar on a lump sum basis.
3. In the event that within seven days a party makes submissions in opposition to the costs order proposed in Order 2, the other party shall within seven days thereafter file responding short written submissions (not more than three pages). The issue of costs will then be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MURPHY J:
INTRODUCTION
1 At all material times the applicant, David Ellison, was employed by the Australian Customs Service (Customs) as a Marine Tactical Officer and was a Commonwealth employee for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). On 21 April 2009 he felt pain in his lower back during a training exercise in the course of his employment. That day he filled out an “Injury Information” form (the Injury Information Form) and an “Occupational Health and Safety Investigation Form” (the Incident Report) was completed, which notified Customs of a low back injury. Subsequently Mr Ellison lodged a claim for workers compensation under the SRC Act with the respondent, Comcare, doing so using the prescribed claim form (Claim Form). In the Claim Form, in response to the question “[w]hen were you injured or when did you first notice you were ill?” he answered 21 April 2009 at 9.00 am. In response to another question, he said that he had suffered similar “soreness and stiffness” in his lower back two or three times in the previous five years.
2 On 20 June 2009 Comcare accepted liability for compensation under the SRC Act for the injury, which it characterised as a “lumbar sprain”. Comcare paid compensation to Mr Ellison for his incapacity for work as a result of that injury for a period of almost three months immediately following the incident, for various short periods between 2010 and 2015, for large parts of 2016 and for almost all of 2017, and met his reasonable medical and like expenses.
3 On 11 January 2018 Comcare determined to cease compensation payments on and from that date. In summary, Comcare decided that Mr Ellison’s low back condition at that time was related to pre-existent degenerative changes consistent with ageing and was not related to the “lumbar sprain” injury that he sustained in the course of his employment on 21 April 2009. Mr Ellison applied for internal reconsideration of the determination, and by a reconsideration decision dated 6 April 2018 Comcare affirmed the determination. He then applied for merits review of the reconsideration decision in the Administrative Appeals Tribunal. On 2 April 2020 the Tribunal decided to affirm the reviewable decision (Ellison v Comcare [2020] AATA 698).
4 In this proceeding Mr Ellison appeals the Tribunal’s decision pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Mr Ellison’s appeal boils down to the contention that the Tribunal made an error of law in concluding that it did not have jurisdiction to decide whether Mr Ellison was entitled to workers’ compensation in respect of degenerative disease in his low back which was contributed to, to a significant degree, by his physically demanding work for Customs from 2002-2009, as distinct from the low back injury he suffered on 21 April 2009.
5 For the reasons I now explain, I am satisfied that the Tribunal fell into error as alleged. The SRC Act establishes a three-tiered decision-making process, the first tier being determination by the relevant authority (in the present case, Comcare); the second tier being a reconsideration of that determination by Comcare, usually by a different decision-maker; and the third tier being a review of that reconsideration decision by the Tribunal. In undertaking a review of the reconsideration decision, the Tribunal stood in the shoes of Comcare. It had an inquisitorial role in which it was required to decide the issues raised by the material before it, which issues were not restricted to the case expressly articulated by Mr Ellison.
6 The material before Comcare in the reconsideration application (and also before the Tribunal in the review application) raised a claim that Mr Ellison’s current incapacity for work was the result of spinal degeneration in his low back which was contributed to, to a significant degree, by the workplace incident on 21 April 2009 and the physically demanding work he undertook in the course of his employment with Customs from 2002 to 2009. Comcare was on notice of those claims at the time it made the reconsideration decision, and the issues before the Tribunal in the review application were not restricted to a claim that Mr Ellison’s low back injury was just a “lumbar sprain” which arose only from the specific incident on 21 April 2009. The Tribunal was obliged to consider and determine the claims which had been before Comcare in the reconsideration application, and which were before the Tribunal in the review application. It erred in concluding that it had no jurisdiction to decide Mr Ellison’s claim that his lumbar spinal degeneration was contributed to, to a significant degree, by his work with Customs between 2002 and 2009.
7 It is appropriate to make orders to set aside the Tribunal’s decision, and to remit Mr Ellison’s claim for compensation under the SRC Act to the Tribunal to be decided in accordance with law.
THE LEGISLATIVE FRAMEWORK
Entitlement to compensation
8 Part II of the SRC Act is headed “Compensation”. Section 14(1) in that Part provides:
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.
9 Section 16(1) provides that Comcare is liable to pay compensation “in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)…”
10 Section 19 provides that Comcare is liable to pay compensation to an employee who is “incapacitated for work as a result of an injury” in the form of weekly payments where the employee’s ability to work results in less earnings than the employee’s normal weekly earnings (other than in circumstances that are not presently relevant).
11 Section 4(9) explains the notion of “incapacity for work” as follows:
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
The meaning of “injury” under the SRC Act
12 Section 5A(1) defines “injury” as follows:
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.
13 Section 5B(1) of the SRC Act provides that “disease” means:
(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.
14 Section 4(1) provides that unless the contrary intention appears:
“aggravation” includes acceleration or recurrence.
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
“impairment” means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
15 Sections 5A and 5B thus contain four alternative ways in which “injury” may be found:
(a) first, a disease suffered by an employee (s 5A(1)(a)), being an “ailment” suffered by an employee that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth (s 5B(1)(a));
(b) second, a disease suffered by an employee (s 5A(1)(a)), being an aggravation of such an “ailment” that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth (s 5B(1)(b));
(c) third, 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 (s 5A(1)(b)); and
(d) fourth, 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 (s 5A(1)(c)).
It is not relevant in the present case, but for completeness I note that “injury” 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: s 5A(1).
16 It is common ground between the parties that degenerative changes of the lumbar spine suffered by an employee is an “ailment”, and if it is contributed to, to a significant degree, by the employee’s employment then it is a “disease” under s 5B(1). If it is a “disease” under s 5B(1) then it is an “injury” under s 5A(1)(a).
17 Section 5B(2) sets out a non-exhaustive list of considerations in relation to whether employment has contributed, to a significant degree, to an ailment or its aggravation. Section 5B(3) provides that “significant degree” means a degree that is substantially more than material.
The requirements regarding a claim for compensation
18 Part V of the SRC Act sets out the procedure for making a claim for compensation.
19 Section 53(1) relevantly provides that the SRC Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority “as soon as practicable after the employee becomes aware of the injury”. Section 53(3) provides some leeway in relation to compliance with s 53(1). It relevantly provides that where a notice of injury has been given which fails to comply with the requirements of the section, the notice shall be taken to have been given if the relevant authority would not, by reason of the failure, be prejudiced; or if the failure resulted from ignorance, a mistake or any other reasonable cause. In the appeal it is uncontroversial that the Injury Information Form and the Incident Report lodged on 21 April 2009 gave notice in writing of Mr Ellison’s injury as soon as practicable after he became aware of it.
20 Section 54 in this Part lies at the heart of the appeal. It relevantly provides:
Claims for compensation
(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b) except where the claim is for compensation under section 16 or 17-- a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
…
(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
In summary, compensation is not payable unless a written claim is made under s 54 by or on behalf of a person, in the form approved by Comcare. Subject to exceptions which are not presently relevant, the written claim must be accompanied by a medical certificate in the approved form. Substantial compliance with the approved claim form is sufficient.
Reconsideration and review of determinations
21 Part VI of the SRC Act is headed “Reconsideration and review of determinations”. Within this Part:
(a) section 60 defines “determination” as a determination, decision, or requirement made under (relevantly), ss 14, 16 and 19 of the SRC Act;
(b) section 61 requires that as soon as practical after making a determination, Comcare must serve upon the claimant a notice setting out the determination, the reasons for it, and a statement to the effect that the claimant can seek reconsideration of the determination;
(c) section 62 provides for the making of requests for reconsideration of a determination. The person who reconsiders a determination may affirm, revoke or vary the determination in such a manner as the person thinks fit. Section 60 provides that a reconsideration decision made under s 62 is a “reviewable decision”;
(d) section 63 requires that as soon as practical after making a reviewable decision, the decision-maker must serve upon the person who requested reconsideration a notice setting out the reviewable decision, the reasons for it, and a statement to the effect that the person can apply to the Tribunal for review of the reviewable decision; and
(e) section 64 provides that an application for review of a reviewable decision may be made to the Tribunal.
22 The “reviewable decision” before the Tribunal in the present case was the reconsideration decision dated 6 April 2018.
THE FACTUAL AND PROCEDURAL BACKGROUND
23 The factual and procedural background here set out is uncontentious in the appeal, but that does not necessarily mean it will be uncontentious upon the Tribunal hearing the remitted application. The background is drawn from the Tribunal’s reasons, the documents before the Tribunal and the evidence before the Court.
24 At all material times Mr Ellison was employed by Customs as a Marine Tactical Officer, having commenced in 2002. On 21 April 2009 Mr Ellison claimed to have hurt his lower back while participating in a “Use of Force” group training exercise held in Canberra as part of his employment with Customs, which exercise involved the participants “tagging” each other within a confined space. When there was a break in the exercise, Mr Ellison said he had to lie down on the floor due to the pain in his back. In the Injury Information Form he completed that day, Mr Ellison described the claimed injury as “substantial pain in lower back” suffered at 8.50am on 21 April 2009 when he was undertaking a “warm up exercise involving rapid running and manoeuvring in [a] small area.” The Incident Report which was also completed that day described the injury and circumstances of injury in similar terms.
25 The following day Mr Ellison consulted Dr John Broderick, a general practitioner practising in Canberra, who prescribed anti-inflammatories and pain-relieving medication, and issued him with a medical certificate. The medical certificate stated that Mr Ellison suffered from a “musculo ligamentous strain lumbo-sacral spine”. After the incident Mr Ellison remained in Canberra for three days before driving to his home in Bairnsdale, Victoria. Upon arriving home, Mr Ellison saw his usual general practitioner, Dr Philip Sewell, who issued him with further medical certificates and continued to treat him over some years. Mr Ellison said that over the following few months his back “felt better to a degree”, but he said “it was never right”. Initially, Mr Ellison was incapacitated for work as a result of his injury from 21 April 2009 to 19 July 2009, but by reason of his roster he did not actually return to work until 8 August 2009.
The compensation claim
26 On 2 June 2009 Mr Ellison lodged a claim for workers compensation pursuant to s 54 of the SRC Act on the prescribed Claim Form, attaching a medical certificate as required.
27 Mr Ellison completed Part 1 of the Claim Form as required.
(a) Question 10 asked:
For what injury or illness are you claiming workers’ compensation?
Quote the precise diagnosis as stated on a medical certificate.
For example: diagnosed conditions are: disc prolapse, strained cruciate ligament and anxiety disorder, and they are not, back pain, sore knee and stress.
Mr Ellison answered:
Muscle, soft tissue and disc damage. “Musculo ligamentous strain of lower back.”
(b) Question 12 asked:
When were you injured or when did you first notice you were ill?
Give approximate time if exact time is not known.
Mr Ellison answered 21 April 2009 at 9.00 am.
(c) Question 16 asked:
Have you ever had a similar symptom, injury or illness, work-related or otherwise?
Mr Ellison ticked the box marked “yes” and answered:
Soreness and stiffness to lower back. 2-3 times in the last 5 years.
(d) Question 24 asked:
What were you doing at the time you were injured or contracted your illness?
i.e: What started the chain of events that led to your injury or illness?
Mr Ellison answered:
Completing morning warm-up for first lesson of the day, which involved rapid zig zag running movements.
(e) Question 25 asked:
What action, exposure or event happened to cause your injury or illness?
For example: I slipped on the floor, I lifted a box.
Mr Ellison answered:
Stretching, zig zag running or lunges.
(f) Question 26 asked:
What actually injured you, or made you ill?
For example: a car, the floor, a computer keyboard, a person, a stairway, a box.
Mr Ellison answered, “one of the above”, referencing his answer to question 25.
The determination to accept liability
28 By a determination made on 20 June 2009 Comcare accepted liability to pay compensation pursuant to s 14(1) of the SRC Act. By letter to Mr Ellison dated that day a Comcare delegate relevantly stated:
I am writing in relation to your claim for compensation and rehabilitation for muscle soft tissue and disc damage, which occurred on 21 April 2009.
Under s14 of the SRC Act I have decided to:
accept lumbar sprain.
In reaching my decision I considered evidence including your claim form, relevant statements and medical evidence. My statement of reasons and information relevant to this decision are attached.
29 The attached statement of reasons relevantly said:
Your Claim
You have submitted a claim for compensation in respect of a lower back injury.
(a) You stated the cause of your condition occurred during a warm up session for a training course;
(b) You first noticed your condition on 21 April 2009; and
(c) You first sought medical treatment in [sic] 22 April 2009.
Medical relationship
You provided a medical certificate from Dr Broderick who diagnosed you as suffering from musculo-ligamentous strain of the lumbo-sacral spine. In summary compensation is payable under section 14 of the SRC Act, where it is established that an employee suffered an injury. In view of the medical evidence before me, I am satisfied that you have suffered “an injury” as defined in the Act.
Employment relationship
Having regard to the circumstances of your claim I consider your claim should be assessed under the “injury” provisions, as defined in subsection 5(A) [sic] of the SRC Act.
You have stated your injury occurred as a result of completing a warm up session for a training course.
Your employer has provided a copy of the incident report in relation to your condition.
Dr Broderick has stated your injury was caused by “Defensive Tactics Training”.
In view of the evidence before me, I am satisfied that the evidence has established that your claimed condition arose out of or in the course of your employment. I determined that you suffered an injury as defined in the SRC Act. Subsequently [sic] your claim for injury, under section 14 of the SRC act, is allowed.
The periods of compensation for incapacity for work
30 The periods during which Mr Ellison was off work by reason of his accepted injury were not entirely clear before the Tribunal. Following its consideration of the evidence including Mr Ellison’s “sea book” and Customs’ leave records, the Tribunal was satisfied that Mr Ellison was on compensation leave during the following periods of time (see paragraphs [75], [79] and [80] of the Tribunal decision):
(a) in 2009, from 21 April 2009 to 19 July 2009;
(b) in 2010, seven days of “personal leave/compensation leave” in December 2010;
(c) in 2011, “compensation or personal leave” for most of February and March 2011;
(d) in 2012, “compensation or personal leave” over two periods from 20 to 30 April 2012 and 16 May to 11 June 2012;
(e) in 2013, compensation leave from 20 November 2013 to 1 December 2013 and on 12 and 13 December 2013;
(f) in 2014, compensation leave for two substantial periods from 24 March 2014 to 16 June 2014 and from 1 September 2014 to 24 December 2014;
(g) in 2015, compensation leave from 2 to 14 January 2015, 8 September 2015 to 24 December 2015 and on 30 and 31 December 2015;
(h) in 2016, save for a few days, compensation leave from 2 January 2016 to 5 August 2016 and from 22 November 2016 to 23 December 2016;
(i) in 2017, save for a few days, compensation leave for the entire year; and
(j) in 2018, save for a few days, compensation leave until 10 January 2018 (when the 11 January 2018 determination to cease compensation came into effect).
It appears that Customs’ leave records before the Tribunal did not differentiate between “personal” and “compensation” leave in (b), (c) and (d) above. Before me, the periods over which Mr Ellison was incapacitated for work by reason of the accepted injury were uncontroversial.
The determination to cease liability for compensation
31 Over the years between 2009 and January 2018 Mr Ellison continued to be treated by Dr Sewell, and by several treating specialists including Dr Royston Carey, an orthopaedic surgeon, and Dr Daniel Bates, a pain specialist. He also saw several specialists engaged by Comcare. Each of the treating doctors and consultant specialists provided reports to Comcare.
32 In October 2017 Comcare arranged for Mr Ellison to be medically examined by Dr Philip Haynes, a consultant occupational physician. Dr Haynes provided a report dated 14 November 2017 in which he opined that Mr Ellison was incapacitated for work as a Marine Tactical Officer based on an offshore ship because his low back condition would limit his capacity for bending, lifting and performing other physical work. But in his opinion Mr Ellison’s incapacity was not contributed to by his employment with Customs as he considered that Mr Ellison’s condition was related to degenerative changes in the lumbar spine rather than the workplace incident on 21 April 2009.
33 On 16 November 2017 a Comcare delegate gave Mr Ellison notice of Comcare’s intention to determine that it was no longer liable to pay him compensation, and gave him an opportunity to provide further medical evidence to support his claim.
34 Dr Sewell provided a report to Comcare dated 5 December 2017 in which he opined that “lumbar sprain” was not an appropriate description of the condition from which Mr Ellison suffered. He agreed with Dr Haynes’ opinion that Mr Ellison was suffering from disc changes at the L4/L5 and L5/S1 levels of the lumbar region consistent with a degenerative process, but strongly disagreed that those degenerative changes were due to ageing processes. In his opinion the degenerative changes in Mr Ellison’s spine were related to the incident which occurred on 21 April 2009, and also his duties as a Marine Tactical Officer for a period of seven years which included sitting on a moving boat, bouncing up and down in waves for up to 8 to 12 hours per day, lifting heavy objects in confined spaces, moving up and down confined ladders, boarding moving vessels, crawling through fishing boats, and lifting heavy objects off fishing boats and other boats that were intercepted in the course of his work.
35 By letter dated 11 January 2018 the delegate advised Mr Ellison that Comcare had determined that on and from that date it had no liability to Mr Ellison for incapacity payments under s 19 of the SRC Act or for medical expenses under s 16. The reasons for decision stated:
I note your general practitioner, Dr Sewell, in his report agrees with Dr Haynes, occupational physician, that you suffer from disc changes at the at the L4/5 and L5/S1 levels of the lumbar region consistent with a degenerative process, but he also believes that your current condition is related to the reported incident on 21 April 2009 and to your employment as a Marine Tactical Officer.
In contrast, Dr Haynes, considers that your current lumbar condition is related to pre-existent degenerative changes consistent with ageing processes and is not related to the lumbar sprain injury that was sustained in the course of your employment on 21 April 2009.
Matters of compensation are determined on the balance of probabilities as distinct from possibilities. I have given consideration to the medical evidence and prefer the specialist medical opinion of Dr Haynes over the opinion of your GP, Dr Sewell, and I find that your current condition is no longer related to the injury that arose out of or in the course of your employment on 21 April 2009.
This determination will be effective from 11 January 2018 when you will no longer be paid for:
• medical expenses
• incapacity payments.
The reconsideration decision
36 On 10 March 2018, Mr Ellison lodged a request for reconsideration of the determination dated 11 January 2018.
37 On 6 April 2018 a Comcare review officer decided to affirm the determination dated 11 January 2018. The reasons for decision stated:
In reviewing the determination regard has been given to all the relevant evidence contained within your claim file, the reasons for requesting a reconsideration and the relevant provisions of the SRC Act.
On 2 June 2009 you submitted a claim for compensation for ‘musculo ligamentous strain of lower back’. You claimed you first noticed your symptoms on 21 April 2009 and first sought treatment with Dr John Broderick (general practitioner) on 22 April 2009. You claimed you sustained your injury when you were completing a morning warm-up. You also noted on your claim form that you had experienced similar symptoms of soreness and stiffness in your lower back two to three times in the last five years.
By determination dated 20 June 2009, liability was accepted for lumbar sprain (unspecified). The determination noted that the evidence supported that your claimed condition arose out of or in the course of your employment.
By determination dated 11 January 2018, liability for ongoing medical treatment and incapacity was declined. The termination was based on the opinion of Dr Philip Haynes (consultant occupational physician) who considered that your current lumbar condition was related to pre-existing degenerative changes consistent with the ageing processes and not related to the lumbar sprain injury that was sustained in the course of your employment on 21 April 2009.
On 11 March 2018, you requested reconsideration of the determination dated 11 January 2018.
The issue to decide in this reconsideration is whether you are entitled to compensation for medical expenses and incapacity payments in respect of lumbar sprain (unspecified). I note that you dispute the labelling of your accepted condition, however, Comcare have continued to pay compensation for your injury since 2009, irrespective of the labelling of your accepted condition, and, consequently this review is based on the medical evidence at hand.
To be entitled to compensation for medical treatment and incapacity payments under sections 16 and 19 of the SRC Act, it must be satisfied that the requirement for medical treatment and incapacity payments are as a result of the injury sustained on 21 April 2009.
(Emphasis added.)
38 Various medical reports were before Comcare in the reconsideration application, which the review officer summarised in the following terms:
(a) Dr Haynes’ report dated 14 November 2017:
In his report dated 14 November 2017, Dr Haynes diagnosed you with disc changes at L4/5 and L5/S1 levels of the lumbar region consistent with degenerative processes. Dr Haynes opined that any lumbar sprain has been superseded by degenerative changes in the lumbar spine. Dr Haynes opined that this condition was likely to become progressively worse with ageing which occurred in all persons. Dr Haynes commented that the MRI scan investigation reports support his conclusion. Dr Haynes considered that your back condition would be in its present state whether or not you had been undertaking work activities of a Marine Tactical Officer.
…
Dr Haynes did not consider that your incapacity for work was contributed to by your employment, noting that your current degenerative back symptoms prevented you from the performance of your duties as a Marine Tactical Officer…Dr Haynes considered that you were fit to undertake work duties where you could stand or sit as required and avoid repetitive bending or lifting…
(b) Dr Sewell’s report dated 5 December 2017:
In his report dated 5 December 2017, Dr Philip Sewell (general practitioner) noted the report of Dr Haynes and agreed with Dr Haynes’ diagnosis of disc changes at L4/5 and L5/S1 levels on [sic] the lumbar region. However, he disagreed with Dr Haynes’ opinion that your current presentation was due to the ageing process. Dr Sewell considered that if it were not for the duties you performed over a period of seven years, you would not have developed the degenerative disease in your spine. Dr Sewell opined that your current condition was due to the incident in 2009 and the duties you performed over a period of seven years.
…
Dr Sewell agreed with Dr Haynes’ opinion that you had a capacity to work, however, due to your geographical isolation from suitable jobs and your inability to travel for long periods of time in a car, prevented you from obtaining gainful employment.
(c) Reports by Dr Carey, dated 26 August 2015, 22 September 2015 and 30 January 2018:
Dr Carey did not agree with Dr Haynes’ opinion that your back condition had changed from being caused by the accepted injury to that of a degenerative/constitutional/congenital condition.
…
Dr Carey does not provide any opinion on your capacity to work, rather he just disagreed that your condition was now degenerative and continued to opine that your current condition was as a result of the initial injury in 2009.
(d) A report of Dr Craig Mills, a consultant orthopaedic surgeon engaged by Comcare, dated 30 December 2015:
In his report dated 30 December 2015, Dr Craig Mills (orthopaedic surgeon) diagnosed you with two-level discal disease and two-level facet disease mostly on the left hand side and mildly degenerative facet joints on the right. Dr Mills considered that your condition was consistent with the stated cause of your injury [in April 2009].
(e) A Rehabilitation Management Functional Capacity Assessment report dated 14 December 2015:
The Rehab Management Functional Capacity Assessment report dated 14 December 2015, stated that you reported a gradual onset of lower back pain which you attributed to your work on a customs boat. You reported that you had experienced many episodes of back pain over a period of four years (2011-2015). You reported that you [initially] experienced a lower back ‘spasm’ while completing a warm up for a training course when based in Canberra [in 2009]. You reported that you continued to experience occasional flare ups. You reported that in 2013, you…completed a fun run when you felt a twinge in your back that caused an aggravation of your lower back injury. You reported that you attempted to return to work three or four times since this incident however you continued to experience spasms and symptom aggravation upon returning to work.
39 The review officer reached the following conclusions:
Given the chronological timeline and the passage of time since your injury in April 2009, and based on the specialist opinion of Dr Haynes, there is no objective evidence that a specific work injury in the past is the ongoing cause of your current back condition…
Dr Haynes opined that your current presentation was due to the degenerative changes at L4/5 and L5/S1 which are consistent with the ageing process. Dr Haynes opined that any lumbar sprain [sustained in April 2009] had been superseded by degenerative changes in your lumbar spine.
…Dr Haynes further opined that any incapacity to work was as a result of your degenerative back symptoms, rather than your employment injury in April 2009.
It is acknowledged that you disagree with Dr Haynes’ opinion in relation to your ongoing entitlement to compensation for your compensable condition; however, Dr Haynes had the benefit of a holistic view of the evidence, is qualified to make an assessment regarding your physical condition and has an independent perspective. Dr Haynes provided a comprehensive medical assessment of you including a review of the previous medical records of independent experts and treating practitioners. Also, Dr Haynes’ opinion is the most independent contemporaneous medical evidence on your claim file. As such, I have preferred his specialist opinion over that of Dr Carey and Dr Sewell.
The medical evidence indicates that the requirement for medical treatment and incapacity is related to your underlying degenerative condition and factors outside your employment (such as the possible non-compensable aggravation in 2013, alluded to in the Rehabilitation report dated 14 December 2015) rather than being due to the circumstances that gave rise to your compensable condition of lumbar sprain (unspecified) on 21 April 2009.
Decision
Therefore the determination dated 11 January 2018 which declined liability for medical expenses and incapacity payments under sections 16 and 19 of the SRC Act has been affirmed.
(Emphasis added.)
THE TRIBUNAL DECISION
40 Mr Ellison applied to the Tribunal to review the reconsideration decision. On 2 April 2020 the Tribunal decided to affirm that decision.
41 In its reasons for decision (at [1]) the Tribunal identified the question for decision as being whether Mr Ellison is entitled to receive incapacity payments under s 19 of the SRC Act, and payment of medical expenses under s 16, as from 11 January 2018 to the present “in respect of a lower back injury he suffered from a specific incident that took place on 21 April 2009 during a training course for which Comcare accepted liability to pay compensation under s 14 of the Act” (emphasis added), which the Tribunal defined as the “Compensable Injury”. The Tribunal defined the incident on 21 April 2009 as the “2009 Workplace Incident”.
42 The Tribunal’s decision may be summarised as follows:
(a) under the heading “Relevant Legislation” (at [8]-[14]) the Tribunal set out the applicable provisions of the SRC Act;
(b) under the heading “Background” (at [15]-[35]) the Tribunal summarised Mr Ellison’s work history, including the physically demanding work which he undertook with Customs; and noted the injury he suffered in the 2009 Workplace Incident. It summarised the evidence as to Mr Ellison’s condition and treatment and noted that as a result of his low back condition Mr Ellison ceased working for Customs in May 2015;
(c) under the heading “Evidence”, the Tribunal summarised the various radiological findings in relation to Mr Ellison’s low back condition (at [36]-[44]) being the results of x-rays, CT scans and MRIs performed in relation to Mr Ellison’s lumbar spine from 2009 to 2015;
(d) also under the heading “Evidence” (at [45]-[124]), the Tribunal recounted or summarised “Mr Ellison’s evidence”:
(i) that he did not have “any ongoing back pain” prior to the 2009 Workplace Incident, and that following that incident he was in “continuing pain to different degrees and [his] movements were restricted depending on the activities [he] had undertaken that day”, and since the incident he had been in “constant pain and had restricted movement” (at [45]-[46]);
(ii) regarding incidents of low back pain he suffered, as recorded in the clinical notes of treating doctors, which preceded the 2009 Workplace Incident, described as the “2003 NZ cramped driving event”, the “2004 beach rugby tackle event” and the “2004 lifting trailer event” (at [47]-[54]);
(iii) regarding the details of the Claim Form he lodged after the 2009 Workplace Incident (at [55]-[56]);
(iv) regarding the history of medical certificates he had provided and the medical treatment he had received since the 2009 Workplace Incident (at [57]-[73]);
(v) as to his periods of absence from work after the 2009 Workplace Incident (at [74]-[80]);
(vi) regarding the extent of any improvement in his back condition after the 2009 Workplace Incident (at [81]-[83]);
(vii) regarding incidents of low back pain he suffered after the 2009 Workplace Incident, as recorded in the clinical notes of treating doctors, described as the “2011 Lorne surf event”, the “2013 fun run event”, the “2013 flare up while working on a ship”, “other injuries sustained in 2013 and 2014”, the “March 2014 plane event” (which may have involved two incidents), and the “April 2014 home gym event” (at [84]-[98]);
(viii) regarding the decision, in consultation with a rehabilitation consultant, for him to cease duties with Customs in May 2015 and to pursue retraining and alternative employment (at [99]-[100]);
(ix) that he was able to perform maintenance work on his four-acre property which he purchased in 2010 (at [101]-[103]);
(x) that he took over ownership of an established arbory (tree lopping) business in March 2019, and his work in that business which was restricted to administration, quotes, maintenance organisation, and sometimes “a bit of light raking” (at [104]-[114]);
(xi) that he had been involved in building a kit plane on his property as a hobby between 2008 and 2016 (at [115]);
(xii) as to his activities when he worked as a police officer prior to commencing his work for Customs and any injuries he had during that period (at [116]-[118]);
(xiii) regarding the physically demanding duties he undertook in working for Customs as a Marine Tactical Officer (at [119]-[121]);
(xiv) that he regarded the 2009 Workplace Incident as part of “a bigger incident” over the preceding years from the physically demanding nature of the work he undertook with Customs. He described the incident as the “catalyst” for the varying pain he has experienced since then (at [122]-[123]); and
(xv) that he had not had any surgery since 2016, and since then had been managing his pain through exercise and knowledge and was not attending a physiotherapist (at [124]).
None of those matters are contentious in the appeal herein.
Summary of the medical evidence
43 The Tribunal then summarised the medical records of Mr Ellison’s treating medical practitioners and the medical reports before it, as well as the oral evidence of his treating orthopaedic surgeon, Dr Carey, and two consultant orthopaedic surgeons, Mr John O’Brien (engaged by Mr Ellison’s solicitors) and Mr Iain Kelman (engaged by Comcare) (at [125]-[202]). Many of the same medical reports were before Comcare in the reconsideration application. The Tribunal’s reasons for decision included references to the following evidence.
44 The medical records, reports and letters of Dr Carey dated 12 April 2011, 20 July 2011, 26 August 2015, 22 September 2015 and 30 January 2018, and his testimony, were summarised by the Tribunal at [125]-[147]. Dr Sewell referred Mr Ellison to Dr Carey for treatment in March 2011. Amongst other things, the Tribunal noted that Dr Carey opined in his April 2011 report that Mr Ellison “likely has a symptomatic degenerative disc at the base of the spine”, and in September 2015, confirmed that Mr Ellison had degenerative discs in his lower back. In his August 2015 and September 2015 reports, Dr Carey opined that it would be “difficult or impossible” for Mr Ellison to undertake work as a Marine Tactical Officer.
45 The Tribunal noted (at [130]) that Dr Carey’s report dated 30 January 2018 stated as follows:
There is nothing in Mr Ellison’s history or upon review of the letter of Dr Phillip Sewell 5.12.2017 to indicate that Mr Ellison has ever had anything other than a continuum of low back problems causing pain and disability since the time of his accepted injury [in] April 2009.
If indeed there has been a continuum of pain since the accepted injury, it would surely be up to the reporting occupational physician, Dr Haynes, to determine at which time the pain and disability changed from being work related to being constitutional/degenerative.
Further, accepting the diagnosis of a “sprain” as the accepted and compensable injury has not been helpful, as of course one would expect (given its definition) that all of the symptoms associated with a sprain (of anything) would have completely resolved by 6-12 weeks.
Further, there is no such thing as “…pre-existent congenital degenerative changes…” as proposed by your IME.
Lastly, pain and disability does not necessarily accord with imaging changes otherwise described as “degenerative”.
For all of these reasons, I could not possibly support the suggestion that in some way Mr Ellison’s problem has changed from being caused by the accepted injury to now being degenerative/constitutional/congenital, an opinion which, given that you initially accepted the claim, makes now no medical sense.
(Emphasis in original.)
46 The Tribunal also referred to Dr Carey’s testimony in which he stated his disagreement with a diagnosis of “lumbar sprain”, doing so by reference to the duration of Mr Ellison’s symptoms. Dr Carey said that “sprain” was used by definition to describe an injury that is “resolved in six to twelve weeks maximum” and that “something that goes on for years is not a sprain” (at [136]).
47 The report of Dr Bates, a treating pain specialist, dated 1 September 2014, was summarised by the Tribunal at [148]-[150]. On two separate occasions in October 2014 Mr Ellison underwent a left L3, L4 and L5 medial branch block procedure, and in November 2014 he underwent a lumbar radiofrequency neurotomy procedure. The Tribunal noted that Dr Bates made a provisional diagnosis that Mr Ellison had “left L4 and L5/S1 facet joint arthropathy” and that his back pain was “likely arising from lower lumbar facets, sacroiliac joint or disc origin”. In his report dated 1 September 2014, Dr Bates concluded that it would be unsafe for Mr Ellison to work on a boat at that time.
48 The report of Dr Mills dated 30 December 2015, was summarised by the Tribunal at [151]-[152]. In Dr Mills’ opinion, Mr Ellison had:
…two level discal degeneration shown on the CT scan and more recently on MR scan…He has had facet joint progressive degenerative disease [in] at least two levels, L4/5 and L5/S1 with repeated injections and denervations which have failed to provide long-term improvement. Diagnosis are thus L4/5 and L5/S1 discal degeneration and L4/5 and L5/S1 particularly left-sided currently facet joint degeneration without neurologic loss.
He considered that Mr Ellison’s injury was “consistent with the stated cause with a torsion injury to the lumbar spine producing discal injury and producing facet joint ongoing problems.” That is, in his opinion Mr Ellison’s low back injury was consistent with it having arisen in the training exercise on 21 April 2009.
49 The report of Dr Haynes dated 14 November 2017 was summarised by the Tribunal at [154]-[158]. As previously set out, Dr Haynes opined that Mr Ellison’s incapacity for work was not contributed to by his employment with Customs because his symptoms at that time were related to degenerative changes in the low lumbar region.
50 The medical records and reports of Dr Sewell dated 17 March 2014 and 5 December 2017, were summarised by the Tribunal at [159]-[162]. In his March 2014 report, Dr Sewell opined:
Mr Ellison currently suffers from chronic lumbar spine degenerative disease with disc bulging and compression of nerve roots in his back causing intermittent sciatica. His main symptoms relate to lumbar muscle spasm as a result of either facet joint degeneration inflammation or a sub acute disc prolapse.
…
The injury we are treating Mr Ellison for now is still the same injury that occurred on 21 April 2009. It is an aggravation of that injury.
The injury has never completely resolved, however, the situation, severity, [sic] at times allows Mr Ellison to complete the duties required of him as a customs officer to its full extent and at other times being aggravated by heavy lifting, bending or twisting. Increased pain and stiffness. Treatment as described above.
(Emphasis added.)
51 In his 5 December 2017 report, in which he was asked to comment on Dr Haynes’ medical opinion about Mr Ellison’s back condition, Dr Sewell opined:
I agree that Mr Ellison is suffering from disc changes at the L4/5 and L5/S1 levels of the lumbar region consistent with a degenerative process. However, I completely disagree with [Dr Haynes’] opinion that these degenerative changes are due to aging processes which may occur in all persons.
Mr Ellison was employed as a Marine Tactical Officer for a period of 7 years, the duties of which involved sitting on a moving boat seat, bouncing up and down in waves for up to 8-12 hours per day, lifting heavy objects in confined spaces, moving up and down confined ladders and boarding moving vessels, crawling through fishing boats and lifting heavy objects off fishing boats and other boats that were intercepted in the course of his work.
I believe that if Mr Ellison was not employed for 7 years in these roles, he would not have developed this degenerative disease in his spine that he has done. In fact, it is difficult to believe that Mr Haynes has not taken into account any of the duties of Mr Ellison’s previous work.
…
I also believe the condition currently suffered by Mr Ellison is related to:
• The reported incident at work, on 21st April 2009
• The aspects of his employment as described above which contributed to the degenerative changes. I do not believe there are any factors unrelated to work that have contributed to this condition and despite there being the potential for pre existing lower back condition and degeneration, I do not believe this would have adversely affected Mr Ellison unless he had been employed for 7 years as a Marine Tactical Officer.
[Dr Haynes’] report continually refers to a lumbar sprain condition, however, this is not a medical term that is currently being used and a more descriptive term is lumbar disc disease with degeneration of the facet joints with intermittent lumbar nerve root compression, is a more adequate description of Mr Ellison’s condition…
(Emphasis added.)
52 The report of Dr Nicholas Burke, consultant occupational physician, dated 27 July 2018, was summarised by the Tribunal at [163]-[165]. The report stated that Mr Ellison said he was pain-free and had been pain-free for at least a one to two year period, and did not report any limitation with activities of daily living. Even so, Dr Burke opined that Mr Ellison would not be capable of performing each of the inherent requirements of his position as a Marine Tactical Officer due to its significant physical demands, and there remained a significant residual risk of exacerbating or aggravating his condition if he returned to that work.
53 The report of Mr John O’Brien dated 10 October 2018 and his oral evidence, was summarised by the Tribunal at [166]-[181]. In his report Mr O’Brien concluded that Mr Ellison suffered from “chronic low back pain related to symptomatic lumbar spondylosis recurrent episodes of discogenic pain causing intermittent ‘flare ups’”. He opined:
Based on this patient[’]s history and clinical course I would consider that the reported incident in 2009 precipitated symptomatic spondylosis which has indeed been a source of continuing chronic back pain. I would therefore conclude that employment is a significant contributing factor to the patient’s current clinical condition. There clearly has been no alternation in the aetiology of this patient[’]s chronic back pain since the original work related incident and there is absolutely no clinical evidence to suggest that the patient[’]s clinical condition since the work injury relates to the spontaneous presence of radiological signs of degenerative change. Further degenerative change are not congenital as proposed by Dr. Haynes’ report dated the 14th of November 2017.
Mr O’Brien said that Mr Ellison could not undertake any form of unrestricted duties and that given the extent of his pain and employment background, the likelihood of him returning to any form of suitable employment was minimal.
54 Mr O’Brien said that the other various episodes of back pain revealed by the medical records, being the 2003 NZ cramped driving event, the 2004 beach rugby tackle event, and the 2004 trailer lifting event, did not alter the opinion expressed in his medical report. Nor was his opinion altered following consideration of further information that was not before him when he wrote his report, being the radiological investigations undertaken in 2011 and 2015, and the CT scan performed on 17 June 2009 which showed “left L5/S1 exit foraminal stenosis related to disc margin disc changes. Mild central canal stenosis L4/5”.
55 Mr O’Brien gave the following evidence as to whether he had considered the nature of Mr Ellison’s work over the seven years prior to 2009:
…What we have established is that he has developed symptomatic pathology in April 2009. The severity of pain [since then] obviously had fluctuated. And he has clearly has [sic] been able to get back to work and has been able to do work duties to the standard required…He was obviously able to modify his situation such that at that time he didn’t aggravate the pain.
We move along and suddenly something happens - not to create a new injury, but to aggravate what is already present. It’s not gone away. The same pathology, it is just got worse…The fact of the matter is, what he had is an aggravation of pain which we have seen on several occasions, required medical attention, and what we have seen on each occasion that the pain did not quite return to where it was in 2009 and each occurrence got that little bit worse, until the point was he just couldn’t cope. Now, the pathology…has not changed it is just the amount of symptoms of changed…
56 Mr O’Brien’s opined that the “reported incident in 2009 precipitated symptomatic spondylosis which has…been a source of continuing chronic back pain”. In cross examination he said that Mr Ellison had radiological changes in his lumbar spine which were previously asymptomatic and then the incident in 2009 precipitated pain which was related to aggravation of those radiological changes. He opined that “presumably” the pain was coming from “the degenerative disc, maybe from the facet joints”, which he called “symptomatic spondylosis”. He said that “[t]o the best of our knowledge, from the available history, examination and x-rays, we believe this spondylitic process is now the source of pain”.
57 The report of Dr Iain Kelman dated 6 February 2019 and his oral evidence was summarised by the Tribunal at [182]-[202]. In his report Dr Kelman referred to various episodes of aggravation of back pain experienced by Mr Ellison in January 2011, October/November 2013, March 2014 and May 2015. Dr Kelman concluded that Mr Ellison suffered a ligamentous and soft tissue sprain of his lumbar spine as a result of the 2009 Workplace Incident from which he made a satisfactory recovery sufficient to enable him to return to work to normal duties. In his opinion, “the original injury [in April 2009] and all the aggravations that occurred subsequently were of a soft tissue and ligamentous nature” which did not result in any bony injuries. In his view the injury suffered in April 2009 had resolved with conservative treatment.
58 Dr Kelman also diagnosed Mr Ellison with degenerative spondylosis of the lumbar spine which he said was a condition related to ageing and underlying degenerative disease, and was not related to Mr Ellison’s work. In his opinion Mr Ellison would be ill-advised to undertake the physical work of a Marine Tactical Officer because of his degenerative spondylosis but he considered Mr Ellison could carry out an alternative sedentary occupation within Customs. He disagreed with Mr O’Brien’s opinion that the injury Mr Ellison suffered in April 2009 continued for the following 10 years.
The Tribunal’s consideration
59 Under the heading “Consideration” (at [203]-[204]), the Tribunal accepted Mr Ellison’s submission that where, as in the present case, the Tribunal is undertaking a review of a determination that liability to pay compensation has ceased, Comcare has the burden of persuading the Tribunal that the circumstances that had entitled the employee to compensation (“entitling circumstances”) had ceased to exist as from the nominated date in order to justify a conclusion that compensation payments should no longer be made from that date. The Tribunal said that it was necessary for it to be persuaded about such a change in circumstances before it could conclude that the reviewable decision should be affirmed, citing Reitano v Commonwealth of Australia [1985] FCA 657 (Burchett J); McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 (Woodward J) and Comcare v Power [2015] FCA 1502; 238 FCR 187 at [70]-[71] (Katzmann J).
60 The Tribunal then turned to consider whether the entitling circumstances had changed such that Mr Ellison was no longer entitled to compensation as from 11 January 2018 (at [205]-[263]). It noted that on 20 June 2009 Comcare assessed that Mr Ellison had an “injury” as defined under the SRC Act upon which it based its determination that it was liable under s 14 for the injury to his lower back sustained in the 2009 Workplace Incident; that determination described Mr Ellison’s injury as a “lumbar sprain”; and the 11 January 2018 determination decided that Mr Ellison no longer suffered the effects of that injury. The Tribunal said that Comcare ran its case on the basis that at some stage before 11 January 2018 Mr Ellison recovered from the Compensable Injury (which, as noted earlier, it defined as a lower back injury Mr Ellison suffered in the 2009 Workplace Incident).
61 The Tribunal summarised Mr Ellison’s submissions on this issue (at [207]-[236]), including his contention that the medical and other evidence showed that he continued to be incapacitated by his low back injury and that there had not been a change of entitling circumstances such that he was no longer entitled to compensation for the injury he sustained in the 2009 Workplace Incident. Mr Ellison argued that a person can have an “injury” as defined in the SRC Act together with an underlying “disease” as defined, citing Salisbury v Australian Iron and Steel Ltd [1943] WCR (NSW) 97; 44 SR (NSW) 157 at 161-162 (Sir Frederick Jordan CJ). He contended that it was important to understand that when there exists an asymptomatic condition (such as degenerative changes in the spine) that, through “injury”, becomes a compensable injury that continues, the entitlement to compensation continues while that injury persists (at [217]). He submitted that none of the subsequent events referred to by Comcare resulted in a new or intervening injury and Comcare did not put on evidence of any new or intervening injuries suffered by Mr Ellison (at [230]).
62 The Tribunal summarised Comcare’s position (at [237]-[263]), including that it:
(a) accepted that where there had been an acceptance of liability by it and a decision made to change that, it was required to show a change in the entitling circumstances;
(b) accepted that the Tribunal was not bound by any diagnostic label as to the injury suffered, but it was required “to identify the injury in respect of which notice was given, compensation was claimed and liability was accepted” and “to consider how that injury related to Mr Ellison’s current condition” (at [237]);
(c) noted the observations of Madgwick J in Abrahams v Comcare [2006] FCA 1829; 93 ALD 147 at [18] and [21], and contended that Mr Ellison’s case was put as a “specific incident” case arising from the events on 21 April 2009 and not a case based on the “nature and conditions” of his work from 2002 to 2009. It argued that the Tribunal was required to focus on the injury in the 2009 Workplace Incident, that being “the injury in respect of which notice was given and compensation claimed” (at [238]-[240]);
(d) cited Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253 (Heerey, Dowsett and Conti JJ) as authority for the proposition that the Tribunal is able to look back at an acceptance of liability under s 14 of the SRC Act and consider what liability was accepted for or could or should have been accepted for (at [241]);
(e) made submissions regarding the medical evidence in relation to other incidents involving Mr Ellison’s lower back, and in relation to whether the injury suffered in the 2009 Workplace Incident had settled by the time the other incidents occurred. It invited the Tribunal to make findings of fact as to whether the events in 2011, 2013, 2014 and 2015 were new injuries as defined in s 5A of the SRC Act, which included aggravations of an injury. It contended that if the Tribunal were to find that there was a new injury, including an aggravation, it should also consider whether that new injury or aggravation was the source of any incapacity for work or need for medical treatment as from 11 January 2018 (at [254]); and
(f) contended that as at 11 January 2018, Mr Ellison was not incapacitated for work and did not require medical treatment for the injury he sustained in the 2009 Workplace Incident.
63 Under the heading “Existence of an ‘injury’ as defined by the Act as from 11 January 2018”, the Tribunal then expressed views which are significant in the appeal (at [264]-[266]). The Tribunal expressed some them as findings and, somewhat curiously, others as “non-binding observations following a review of the evidence”. Neither party endorsed the Tribunal’s approach in making the purportedly “non-binding observations”.
64 At [265], the Tribunal made the following findings:
Based on a consideration of the evidence before it (as addressed in the paragraphs below), the Tribunal finds that:
(a) the Compensable Injury was misdescribed by Comcare [in its determination dated 20 June 2009] when it accepted Mr Ellison’s claim as a “lumbar sprain”;
(b) the Compensable Injury that Mr Ellison sustained on 21 April 2009 arising from the 2009 Workplace Incident was an “aggravation of degenerative spondylosis, disc degeneration and canal stenosis at the L4/L5 and L5/S1 vertebra and facet joints”. This constitutes an “aggravation” of an “ailment” as those two terms are defined in s 4(1) of the Act and falls within the definition of “disease” as defined in s 5B(1)(b) of the Act. Therefore, the Tribunal is satisfied that the Compensable Injury being an “aggravation of degenerative spondylosis, disc degeneration and canal stenosis at the L4/L5 and L5/S1 vertebra and facet joints” constitutes an “injury” as defined in s 4(1) in conjunction with s 5A(1)(a) of the Act; and
(c) the effects of the Compensable Injury being an “aggravation of degenerative spondylosis, disc degeneration and canal stenosis at the L4/L5 and L5/S1 vertebra and facet joints”, has ceased to exist as from 11 January 2018 to the present time and at the present time.
65 At [266] the Tribunal stated as follows:
The Tribunal also makes the following non-binding observations following a review of the evidence presently before it:
(a) as at 11 January 2018 to the present time and at the present time, Mr Ellison nevertheless had an “injury” as defined by the Act, but it was not the Compensable Injury nor any other injury for which he has (yet) made a claim for compensation under s 54 of the Act;
(b) the “injury” as defined by the Act that has continued to exist as from 11 January 2018 to the present time and at the present time, and from which Mr Ellison continues to suffer the effects of, is a “disease” as defined by s 5B of the Act being “degenerative spondylosis, disc degeneration and canal stenosis at L4/L5 and L5/S1 vertebra and facet joints” (Underlying Degenerative Disease) which existed prior to the April 2009 Workplace Incident; and
(c) as required by s 5B(1) of the Act, the Underlying Degenerative Disease was contributed to, to a significant degree, by the extremely physically demanding general nature and conditions of Mr Ellison’s employment with Customs as a full-time Marine Tactical Officer from 2002 to 2009.
66 At [267]-[294] the Tribunal considered the medical evidence relevant to those findings. It is unnecessary to descend to the detail of that analysis and it suffices to note that the Tribunal did not accept that the degenerative changes in Mr Ellison’s lumbar spine were not related to his employment with Customs. The Tribunal considered, in line with Dr Sewell’s opinion, that Mr Ellison’s physically demanding work with Customs from 2002 to 2009 had contributed to, to a significant degree, the degeneration of his lumbar spine (at [287]), which (as set out above) the Tribunal defined as “degenerative spondylosis, disc degeneration and canal stenosis at the L4/L5 and L5/S1 vertebra and facet joints” (Underlying Degenerative Disease).
67 The Tribunal reached the following conclusions at [286] and [293], some of which were expressed as findings and others as “non-binding observations”:
(a) (at [286]):
The Tribunal accepts that the 2009 Workplace Incident contributed to, to a significant degree, Mr Ellison’s Compensable Injury but the effects of this injury had ceased to exist as from at least 11 January 2018 to the present time and at the present time. The Tribunal considers that Mr Ellison continued to suffer from the effects of his Underlying Degenerative Disease as at 11 January 2018 to the present time and at the present time. As mentioned above, the Tribunal makes a non-binding observation that it considers that the Underlying Degenerative Disease was contributed to, to a significant degree, by the general nature and conditions of his employment with Customs over the period 2002 to 2009;
and
(b) (at [293]):
In conclusion, the Tribunal is satisfied that Mr Ellison’s Underlying Degenerative Disease was contributed to, to a significant degree, by the nature and conditions of his employment with Customs over the period 2002 to 2009 and that he suffered specific aggravations at different times between 2003 and 2014 to his back, one of which was the Compensable Injury. However, and importantly the purpose of deciding the present application, the effects of the Compensable Injury had ceased to exist as from at least 11 January 2018 to the present time and at the present time.
68 Then, under a heading “Injury sustained for which claim has not yet been made” the Tribunal turned to consider whether there was a difficulty arising from Mr Ellison having made his claim on the basis that it arose from the 2009 Workplace Incident, when some of the medical evidence pointed to the likely impact of the physically demanding nature and conditions of his duties on patrol boats for Customs over the seven years from 2002 to 2009. In summary (at [295]-[296]), counsel for Mr Ellison acknowledged the decision in Szabo v Comcare [2012] FCAFC 129 (Szabo FFC) but said that there was “no such thing as a nature and conditions claim” and that the decision-maker had to turn their mind to the elements of any injury. Counsel for Comcare disagreed and invited the Tribunal to focus on the 2009 Workplace Incident because that was “the injury in respect of which notice was given and compensation claimed”.
69 The Tribunal said (at [297]) that, while Mr Ellison was suffering from the effects of an “injury” as defined by the SRC Act (being the Underlying Degenerative Disease) on and from 11 January 2018, that was not the Compensable Injury which was the subject of his claim. Instead, it was an injury that arose due to “the general nature and conditions of his employment” between 2002 and 2009.
70 The Tribunal accepted (at [298]) that there was authority for the proposition that, notwithstanding the characterisation of the claim made by an earlier decision-maker, it had power to reformulate the terms of a claim for workers’ compensation consistently with the evidence before it, citing Abrahams and Re Durham and TNT Australia Pty Ltd [2011] AATA 802; 124 ALD 136 (Jagot J sitting as a presidential member of the Tribunal). In Durham, Jagot J explained at [51] that “the Tribunal must assess for itself the true scope of the claim and is empowered to conduct its review on that basis.”
71 The Tribunal also cited (at [299] and [300]):
(a) Comcare v Muir [2016] FCA 346; 150 ALD 321 at [37] in which Flick J held that, while the Tribunal has some limited flexibility to reformulate a claim, a claim confined to an injury suffered in October 2013 could not be transformed into a claim for an injury suffered in 2010-2012; and
(b) Szabo FFC where the Full Court (Emmett, Bennett and Greenwood JJ) held that the applicant’s claim as notified in the claim form was a claim for a specific injury occurring on a specific date and did not extend to a claim in respect of an injury arising from the nature and conditions of his employment over time. Emmett and Greenwood JJ observed (at [42]):
That is not to say that it would not now be open to [the applicant] to make a claim. However, until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal. There was no error on the part of the Tribunal.
72 The Tribunal concluded that it was bound to adopt the same approach in the present case. It said (at [301]) that:
…Mr Ellison’s claim did not extend beyond a claim for a specific injury suffered as a result of the 2009 Workplace Incident being the Compensable Injury, to a claim in respect of the [sic] some other injury or disease (and as the Tribunal has found, specifically, the Underlying Degenerative Disease) arising from the nature and conditions of his employment with Customs.
73 It said (at [302]) that it was open to Mr Ellison to consider making a claim for compensation under the SRC Act in respect of his Underlying Degenerative Disease, and that if he made such a claim, it would proceed under the usual claims processes under the SRC Act.
74 The Tribunal concluded as follows (at [303]-[306]):
303. In summary, the Tribunal has found that before the 2009 Workplace Incident, Mr Ellison suffered from a symptomatic Underlying Degenerative Disease being, “degenerative spondylosis, disc degeneration and canal stenosis at the L4/L5 and L5/S1 vertebra and facet joints”. As a result of the 2009 Workplace Incident, Mr Ellison suffered an aggravation of the Underlying Degenerative Disease, being the Compensable Injury. However, the Tribunal is persuaded that as from 11 January 2018 to the present time and at the present time, the effects of the Compensable Injury has ceased to exist.
304. By way of observation, the Tribunal considers that as from 11 January 2018 to the present time and at the present time, Mr Ellison has continued to suffer from the effects of his Underlying Degenerative Disease. Given the general nature and conditions of Mr Ellison’s employment with Customs from 2002 to 2009, the Tribunal considers that this employment contributed to, to a significant degree, the development of his Underlying Degenerative Disease.
305. Accordingly, while the Tribunal is persuaded that the “gateway” entitling circumstance of Mr Ellison having an “injury” as defined by the Act, did, in fact, exist from 11 January 2018 to the present time and at the present time, this injury was not the subject of any claim (as yet) that Mr Ellison has made under s 54 of the Act, for which Comcare has accepted liability under s 14. Mr Ellison is at liberty to make such claim should he wish to do so subject to the requirements and procedures under the Act.
306. On the basis of the conclusion in paragraph [303-305], there is no need to address whether the other entitling circumstances under ss 16 and 19 of the Act as referred to in paragraph [7(b)] in respect of the Compensable Injury, existed as from 11 January 2018 to the present time and at the present time, or to address the contentions of the parties in relation to those matters.
THE APPEAL
75 The notice of appeal posed three questions of law:
1.1 In concluding that Mr Ellison did not have a continuing entitlement to compensation on and from 11 January 2018, did the Tribunal fail to apply the correct statutory test for “injury” to the facts as found by the Tribunal?
1.2 In concluding that the Applicant failed to make a claim, described as a “nature and conditions” claim, did the Tribunal take into account an irrelevant consideration?
1.3 Did the Tribunal fail to exercise its jurisdiction to determine the question of Comcare’s continuing liability for compensation for incapacity resulting from injury by assuming that no claim had been made for the continuing employment injury, despite finding facts that demonstrate that such a claim had been made?
76 The parties’ written submissions addressed the appeal by reference the three grounds of appeal advanced by Mr Ellison, but in oral submissions it was common ground that the appeal boiled down to whether the Tribunal erred in concluding that it did not have jurisdiction to decide a claim that Mr Ellison is entitled to compensation on and from 11 January 2018 in respect of the effects of his Underlying Degenerative Disease to which his employment with Customs from 2002 to 2009 contributed to, to a significant degree. I will address the appeal by reference to that central question.
COMCARE’S SUBMISSIONS
77 Comcare submits that the Tribunal correctly understood the application before it when it said at [1] of its reasons:
This application is about whether the Applicant, Mr David Ellison, is entitled to receive incapacity payments and payment of medical expenses under [the relevant provisions of the SRC Act] as from 11 January 2018 to the present time and at the present time, in respect of a lower back injury he suffered from a specific incident that took place on 21 April 2009 during a training course for which Comcare accepted liability to pay compensation under s 14 of the Act (Compensable Injury).
78 It argues that the application before the Tribunal concerned the injury, as notified by Mr Ellison, which arose out of a specific incident that occurred on 21 April 2009, for which Comcare accepted liability under s 14 of the SRC Act on 20 June 2009. On Comcare’s argument, the application before the Tribunal did not concern an injury which occurred over seven years of employment, and the Tribunal was correct in characterising Mr Ellison’s claim for compensation as being limited to the 2009 Workplace Incident.
79 Comcare’s submissions rely heavily on the fact that in response to question 12 in the Claim Form which asked “[w]hen were you injured or when did you first notice you were ill?”, Mr Ellison gave a specific date, 21 April 2009, and a specific time, 9.00 am. The note to the question said that an approximate time could be given if an exact time was not known. It also relies on Mr Ellison’s answers to questions 22 to 26, noting that:
(a) question 22 asked, “[w]here were you when you were injured or contracted your illness?”; to which Mr Ellison answered that he was “attending an approved course of study”;
(b) question 23 asked the address at which Mr Ellison was injured or contracted his illness; in response to which he gave the address of the training college in Canberra, and described the location as “on exercise mats in training room”;
(c) question 24 asked:
[w]hat were you doing at the time you were injured or contracted your illness?
ie: What started the chain of events that led to your injury or illness?
Mr Ellison answered that he was completing the morning warm-up for the first lesson of the day, which involved rapid zig zag running movements;
(d) question 25 asked, “[w]hat action, exposure or event happened to cause your injury or illness?” to which Mr Ellison answered, “stretching, zig zag running or lunges”; and
(e) question 26 asked, “[w]hat actually injured you, or made you ill?” to which Mr Ellison answered “one of the above”.
Comcare also notes that the Incident Report and the Injury Information Form consistently refer to Mr Ellison being injured on 21 April 2009 during a specific incident.
80 Comcare contends that it is plain from these documents that Mr Ellison claimed compensation for an injury sustained in a specific incident on a specific date, noting also that the Claim Form and the medical certificate recorded the injury as “musculo ligamentous strain, lumbosacral spine”.
81 It says that the Tribunal was satisfied that Mr Ellison’s claim for compensation was made in respect of an injury that was the result of the 2009 Workplace Incident, and that the Tribunal was correct in finding (at [301]) that:
… Mr Ellison’s claim did not extend beyond a claim for a specific injury suffered as a result of the 2009 Workplace Incident being the Compensable Injury, to a claim in respect of the [sic] some other injury or disease (and as the Tribunal as found, specifically, the Underlying Degenerative Disease) arising from the nature and conditions of his employment with Customs.
82 It relies on Frosch v Comcare [2004] FCA 1642 at [8] where Whitlam J said:
There is no prescribed form of notice for the purposes of s 53 of the Act. The specification required for such a notice is dictated by the words ‘injury’ and ‘employee’, which are defined respectively in s 4(1) and s 5 of the Act. In turn, those definitions direct attention to the definition of ‘disease’ in s 4(1), the extended meaning given by s 6 to ‘an injury arising out of or in the course of employment’, and the provisions relating to diseases in s 7. It is not necessary to set out the terms of those provisions. Their effect is that the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment. Assessing whether the contents of a document meet those requirements involves, in my opinion, a question of law.
(Emphasis added.)
It argues that if Mr Ellison did not know when his injury occurred he could (and should) have said so in the Claim Form; instead he claimed compensation for an injury which occurred on a specific date as a result of a specific activity.
83 On its argument, regardless of whether some of the medical evidence pointed to the likely impact on Mr Ellison’s low back condition of the physically demanding nature and conditions of his duties with Customs from 2002 to the 2009, the only claim the Tribunal had jurisdiction to decide was a claim for compensation in relation to the low back injury suffered in the 2009 Workplace Incident because that was the injury in respect of which notice was given and compensation was claimed.
84 Notwithstanding that, Comcare agrees with the Tribunal’s observation (at [298]) that, despite any characterisation of the claim for compensation by an earlier decision-maker in the process under the SRC Act, the Tribunal may reformulate the terms of a claim consistently with the evidence before it. It accepts that a claim for compensation need not be expressed “with the same degree of particularity or formality of a pleading or a statement of claim in a superior court” (citing Farrell v Comcare [2015] FCA 1337; 148 ALD 527 at [31] (Flick J)), but it says that the claim that was before the Tribunal must be understood in light of the fact that 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”, citing Abrahams at [18].
85 Comcare’s argument relies heavily on Szabo FFC (at [33], [41]-[42]), in which Emmett and Greenwood JJ said:
33 …In deciding what the injury is, of which a claimant has given notice, the purposes of giving notice must be borne in mind. Those purposes include enabling Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met. In construing a notice of injury or notice of claim, consideration of the purpose of giving notice of injury and of enabling the decision-maker to have a fair opportunity to investigate the claim properly are paramount (see Abrahams v Comcare (2006) 93 ALD 147 at [18]). Comcare did not take issue with that formulation of the approach that should be adopted in construing notice of a claim.
…
41 It is not possible to find, in the documents completed by or on behalf of Mr Szabo immediately following the incident of 20 June 1989, a claim in respect of some injury or disease arising from the nature and conditions of his employment. The extract set out in the Schedule to these reasons makes clear that Mr Szabo gave specific responses to specific questions. Thus he says:
• The injury occurred at 9.50 am on 20 June 1989.
• The part of his body affected was back (lower).
• The type of injury or disease suffered was strain.
• At the time of the injury, he was inspecting lambs.
• The injury happened because of constant bending and lifting.
• The thing that caused the injury or disease was continuous lifting of lamb shanks.
Those answers do not amount to a claim for a disease or injury that was aggravated or contributed to in a material degree by the nature and conditions of Mr Szabo’s employment.
42 That is not to say that it would not now be open to him to make a claim. However, until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal. There was no error on the part of the Tribunal.
(Emphasis in original.)
86 Comcare also relies on the remarks of Bennett J in that case at [51] and [61]-[63] where her Honour agreed with the majority’s conclusions and said:
51 The issue is whether the claim was for an injury that occurred on a specific date, namely 20 June 1989, being lower back strain arising from the constant bending and lifting resulting from continuous lifting of lamb shanks at M.C. Herds, or whether it was a claim for injury arising from the general nature of the work undertaken by Mr Szabo in the course of his employment, referred to by the parties as a “nature and conditions” claim. If the latter, Mr Szabo says that injuries arising before and after the event of 20 June 1989 should have been considered by the Tribunal in order to determine the scope of his claim.
…
61 I agree with the reasoning of the primary judge as to the construction of the claim form. I am not satisfied that the claim form, properly understood, extends beyond a claim for a specific injury that occurred on 20 June 1989, which injury was caused by the actions set out in answer to question 3 of the claim form. It is a claim for an injury that occurred on that date.
62 It follows that previous and subsequent events and injuries were not relevant to the Tribunal’s consideration of the reviewable decision. I accept that Mr Szabo was not legally qualified and that the claim form should be construed beneficially to him, but he had received legal advice before completing the claim form. The questions and answers in the claim form are clear and consistent with the injury report that he had earlier completed and submitted.
63 I agree with Emmett and Greenwood JJ’s conclusion that Mr Szabo’s contention that the Tribunal denied him procedural fairness is misconceived.
87 Comcare also relies Muir at [37] where Flick J said:
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.
88 It accepts that the Tribunal was required to undertake its own analysis of the claim to identify the injury, and was not bound by Comcare’s characterisation of the injury as a “lumbar sprain”, and it notes that in Hannaford at [57], Conti J (with whom Heerey and Dowsett JJ agreed) described the statutory scheme in the SRC Act as one which allows for “progressive and evolving decision-making”. But it argues that later authorities including Abrahams at [18], Szabo v Comcare [2012] FCA 28; 126 ALD 469 at [25]-[30] (Stone J), Szabo FFC at [33], Kennedy v Comcare [2014] FCA 82 at [39], [44]-[53] (Katzmann J), Munswamy v Australian Postal Corporation [2015] FCA 678 at [21]-[24] (Jagot J), and Muir at [30], [34]-[37], demonstrate that the Tribunal’s jurisdiction is ultimately constrained by the characterisation of the injury in respect of which notice was given, and which was the subject of a claim that has been the subject of a determination, application for reconsideration, reviewable decision, and application to the Tribunal.
89 On its argument, Mr Ellison’s claim, as construed by Comcare, and then as subsequently construed by the Tribunal, was for an injury to Mr Ellison’s lower back as a consequence of the training exercise on the morning of 21 April 2009. While some flexibility was available to the Tribunal in relation to the characterisation of the injury and reformulating the claim, it says that the Tribunal had no jurisdiction to determine a claim for an injury which is claimed to have occurred as a result of the nature and conditions of Mr Ellison’s employment over the period 2002 to 2009. It argues that treating Mr Ellison’s claim for compensation as being for an injury arising in those circumstances would involve transforming the claim into one that was not made, that doing so would be inconsistent with the “orderly process” for administration of compensation claims contemplated in Abrahams at [16], and that the principles articulated in Abrahams at [18] must be understood in that light.
90 Comcare says that if Mr Ellison wishes to make a claim that he suffers from lumbar spinal degeneration which was contributed to by his employment with Customs from 2002 to 2009, he must lodge a fresh claim in respect of that injury.
CONSIDERATION
91 In my view the Tribunal expressed its satisfaction (at [265] and [266]) that Mr Ellison had suffered the following two “injuries” as defined under the SRC Act, each of which had the necessary connection with employment so as to entitle him to compensation. It said:
(a) (at [265]) that he suffered an aggravation of the Underlying Degenerative Disease (being “aggravation of degenerative spondylosis, disc degeneration and canal stenosis at L4/5 and L5/S1 vertebra and facet joints”) in the 2009 Workplace Incident, which is an “aggravation” of an “ailment” as those terms are defined in s 4(1) of the SRC Act and which falls within the definition of “disease” in s 5B(1)(b)); but the effects of that injury had ceased by 11 January 2018. Here, the Tribunal made a finding regarding that “injury”, its connection to Mr Ellison’s employment and the duration of its effects; and
(b) (at [266]) that on and from 11 January 2018 he continued to suffer from the effects of the Underlying Degenerative Disease (being “degenerative spondylosis, disc degeneration and canal stenosis at L4/5 and L5/S1 vertebra and facet joints”), which had existed prior to the 2009 Workplace Incident and was contributed to, to a significant degree, by the “extremely physically demanding general nature and conditions” of Mr Ellison’s work as a Marine Tactical Officer over the years 2002 to 2009 (thus being a “disease” under s 5B(1) of the SRC Act and an “injury” under s 5A(1)(a)). Here, the Tribunal made a “non-binding observation following a review of the evidence” in which it expressed satisfaction as to the existence of that “injury”, its connection to Mr Ellison’s employment and the duration of its effects. This may or may not be a “finding” but the Tribunal’s satisfaction is plain.
92 The Tribunal said (at [279]-[280]) that Mr Ellison’s impairment from the Underlying Degenerative Disease allowed him to engage in some activities but he was no longer fit for work at the same level as his pre-injury duties; and he was no longer fit to work as a Marine Tactical Officer for Customs and had not done so since 2015.
93 Although the Tribunal was so satisfied, it did not go on to decide whether Mr Ellison was entitled to compensation in relation to the Underlying Degenerative Disease. It is plain from the Tribunal’s reasons at [300]-[301] that it did not do so because it considered that Mr Ellison’s claim for compensation was a claim for a specific injury resulting from the 2009 Workplace Incident; and the claim did not extend to a claim in respect of the Underlying Degenerative Disease arising from his work with Customs from 2002 to 2009. While the Tribunal was satisfied (at [305]) that the Underlying Degenerative Disease was an “injury” as defined by the SRC Act which continued to exist from 11 January 2018 to the date of the Tribunal’s decision, in the Tribunal’s view Mr Ellison had not made a claim under s 54 of the SRC Act for such an injury. On that basis the Tribunal concluded that it did not have jurisdiction to decide any such claim.
94 In my view the Tribunal fell into error in concluding that it had no jurisdiction to determine whether Mr Ellison was entitled to compensation for (what the Tribunal described as) the Underlying Degenerative Disease which was contributed to, to a significant degree, by his employment with Customs over a seven year period.
95 That is so, first, because of the scope of the Tribunal’s powers in undertaking a review of the reviewable decision under the SRC Act, being the reconsideration decision dated 6 April 2018.
96 Section 61(1A) of the SRC Act 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 such a determination by the determining authority. Section 64 provides for the review of such a reconsideration decision, being a “reviewable decision”, by the Tribunal. Section 60 defines a “reviewable decision” as one made under s 62.
97 The SRC Act thereby establishes a three tiered decision-making process. In Lees v Comcare [1999] FCA 753; 56 ALD 84 at [32] the Full Court (Wilcox, Branson and Tamberlin JJ) said:
Part 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.
98 Section 43(1) of the AAT Act provides:
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 and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
(Emphasis added.)
99 In relation to the powers and discretions that may be exercised by the Tribunal, the Full Court in Lees said (at [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 [Tribunal] 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 [Tribunal] 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 [Tribunal] will not be authorised on review of a reviewable decision to exercise any powers and decisions 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.
(Emphasis added.)
100 As Flick J noted in Muir (at [13]) a recurring issue before the Court:
…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.
101 In Hannaford at [57] the Full Court affirmed the decision in Lees. Conti J, with whom Heerey and Dowsett JJ agreed, explained as follows:
…[u]pon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I focused attention in these reasons [(relevantly, determinations under ss 14, 16, 19, 24 and 27 and reconsideration under s 62)], that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker…made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part…’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
(Emphasis added.)
102 Hannaford is authority for the proposition that the SRC Act provides for “progressive and evolving decision-making” through an initial determination by the determining authority (in the present case, Comcare), reconsideration of that initial determination by the determining authority, and review of the reconsideration decision by the Tribunal. At each stage, the relevant decision-maker is required to take into account any changes in events or circumstances that have occurred. That points away from concluding that Mr Ellison should be (to use the words in Abrahams) “irretrievably” held to the initial medical diagnosis he received as to the injury he suffered and notified in the claim form.
103 Second, in reviewing the reconsideration decision, the Tribunal had an inquisitorial role. It was required to determine the substantive issues in the application as raised by the materials before it, and it was not restricted to the case expressly articulated by Mr Ellison. In Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-425, in relation to the nature of the Tribunal’s function and the application of s 120 of the Veterans’ Entitlements Act 1986 (Cth), Brennan J explained:
Proceedings before the [Tribunal] may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the [Tribunal] is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate,…the [Tribunal] itself may compel the production of further material.
104 Brennan J’s observations regarding the Tribunal’s inquisitorial role are not limited to the arena of veterans’ entitlements. They have been cited with approval in numerous decisions in relation to the SRC Act: see for example, Comcare Australia v O'Dea [1997] FCA 1409 at 7 (Northrop J); Lodkowski v Comcare [1998] FCA 158; 53 ALD 371 at 385 (Goldberg J); Haberfield v Department of Veterans Affairs as Delegate for Comcare [2002] FCA 1579; 121 FCR 233 at [59] (Sackville J); Pelgrave v Comcare Australia [2002] FCA 1025 at [14] (Merkel J); see more generally Australian Postal Corporation v Hughes [2009] FCA 1057; 111 ALD 579 at [47]-[48] (Flick J); Leach v Comcare [2021] FCAFC 134 at [117] (Charlesworth J).
105 In Benjamin v Repatriation Commission [2001] FCA 1879; 70 ALD 622 at [47] the Full Court (Moore, Emmett and Allsop JJ (as his Honour then was)) explained the position as follows:
Proceedings before the Tribunal sometimes give the appearance of being adversarial but, in substance, a review by the Tribunal is inquisitorial. Each of the Commission, the Board and the Tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the Tribunal is one in which the Tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant – Grant v Repatriation Commission [1999] FCA 1629 paragraphs [17]-[18], 57 ALD 1 at 6 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
(Emphasis added.)
106 Applying that approach to the facts of that case, the Full Court said the following (at [48]):
The facts that the claim originally lodged by the Veteran referred only to “PTSD” and that the medical impairment assessment by Dr Dunstan in support of it assessed only the disability of “post traumatic stress disorder” do not preclude the relevant decision-maker, be it the Commission or the Tribunal, from reaching a conclusion that the Veteran suffered from a different disability. Certainly, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration. However, where a finding is made by the decision-maker, for example, that a veteran has contracted a disease, and it would be open to conclude that such a disease may be war caused, it would be incumbent upon the decision-maker to consider that possibility and make a decision concerning it.
(Emphasis added.)
Those remarks are apt in the present case.
107 Third, it can be accepted as Comcare submits, that ss 53 and 54 of the SRC Act impose preconditions upon a decision-maker, including the Tribunal, deciding a claim for compensation.
108 Section 53(1) provides that the SRC Act does not apply in relation to an injury unless the employee has given notice in writing of the injury as soon as practicable after the employee becomes aware of the injury. As outlined above, s 53(3) provides that the requirement is not absolute and in certain circumstances, even where there has been a failure to comply with s 53(1), the notice shall be taken to have been given. In the present case it is uncontentious that Mr Ellison gave written notice of injury as soon as practicable after becoming aware of the injury. The Injury Information Form and the Incident Report said little more than that he felt pain in his lower back during a training exercise on 21 April 2009.
109 Section 54(1) provides that compensation is not payable under the SRC Act unless a written claim is made by or on behalf of the employee using an approved form; substantial compliance with that requirement is sufficient. It is uncontentious that Mr Ellison made a claim for compensation, in which he notified Comcare of a low back injury which he understood he had suffered on 21 April 2009. In the Claim Form he described the injury as “Muscle, soft tissue and disc damage. Musculo ligamentous strain of lower back”. It is worth noting that in referring to “disc damage”, Mr Ellison did not restrict his claim to a “musculo-ligamentous injury”.
110 As Mr Ellison submits, the approved claim form is “less than completely demanding of an unequivocal answer”. For example, question 10 asks, “[f]or what injury or illness are you claiming workers compensation?” and question 12 asks, “[w]hen were you injured or when did you first notice you were ill?” (emphasis added). Notwithstanding that each question contains two alternative questions (due to the inclusion of the word, “or”), each of them only demands a single, undifferentiated response. Thus, there is some ambiguity in Mr Ellison’s answer to question 12 as to whether “21/4/2009” at “0900 am” is the claimed date and time of the injury or the claimed date and time when Mr Ellison first noticed he was injured. Even so, having regard to all the materials it is clear enough that in lodging the Claim Form Mr Ellison claimed that he suffered an injury to his low back in a workplace incident on 21 April 2009.
111 Comcare’s argument turns on the nature of the injury and its aetiology being fixed by how Mr Ellison described it in the Claim Form, notwithstanding that in doing so Mr Ellison merely stated his understanding, based on the medical advice he had received at that early point, about the nature of the low back injury he had suffered and its cause, apparently doing so without the benefit of legal advice. Further, Comcare makes that argument notwithstanding that medical reports before it in the reconsideration application raised the claim that the injury suffered was: (a) more than a mere lumbar sprain; and (b) was related to a specific incident on 21 April 2009 and also to his work with Customs over the seven years from 2002 to 2009.
112 In relation to whether Mr Ellison’s injury was just a musculo-ligamentous injury, or “lumbar sprain” as determined by Comcare, the medical reports before Comcare in the reconsideration application included the following:
(a) a report by Nicole Kee, a physiotherapist, dated 5 June 2012 which stated:
Clinically, David has been experiencing low back pain and bilateral leg pain (left greater than right) since 21 April 2009. His back and leg pain symptoms increased last year and more recently reports left neck and shoulder pain.
MRI lumbar spine completed on 19 May 2011 shows a variety of abnormalities including tear and dorsal bulge of L4/5 disc with contact of the right L5 nerve and a dorsal left eccentric caudal protrusion L5/S1 disc indenting on left S1 nerve root.
(Emphasis added.)
At that early point the radiological evidence indicated some disc abnormalities rather than just a musculo-ligamentous injury.
(b) Dr Sewell’s report dated 17 March 2014, which provided the following answers to questions posed by Comcare:
(i) What is the specific diagnosis of the condition which Mr Ellison currently suffers?
Mr Ellison currently suffers from chronic lumbar spine degenerative disease with disc bulging and compression of nerve roots in his back causing intermittent sciatica. His main symptoms relate to lumbar muscle spasm as a result of either facet joint degeneration inflammation or a sub acute disc prolapse.
(Emphasis added.)
(ii) What do you consider to be the cause of Mr Ellison’s current symptoms and the need for further treatment?
Mr Ellison’s current symptoms is lumbar spin [sic] degenerative disease with disc prolapse. I believe there is no further treatment needed apart from gentle exercise. Avoidance of exacerbating conditions such as heavy lifting, bending or twisting and physiotherapy.
(Emphasis added.)
(iii) Is the injury you are treating Mr Ellison for now still the same injury incurred on 21 April 2009, an aggravation of that injury, or a new incident? If a new injury, would you please explain the cause? If an aggravation, has the injury ever resolved?
The injury we are treating Mr Ellison for now is still the same injury that occurred on 21 April 2009. It is an aggravation of that injury.
The injury has never completely resolved, however, the situation, severity, [sic] at times allows Mr Ellison to complete the duties required of him as a customs officer to its full extent and at other times being aggravated by heavy lifting, bending or twisting, increased pain and stiffness. Treatment as described above.
(c) the reports by Dr Bates dated 8 October and 22 October 2014 in relation to the L3/L4/L5 medial branch block procedures he performed, and a report by Dr Mitchell, another treating pain specialist, dated 26 November 2014 in relation to the L3/L4/L5 radiofrequency neurotomy he performed. Comcare accepted liability for each of the procedures and it goes without saying that such procedures would not be required for a mere lumbar sprain;
(d) Dr Mills’ report dated 30 December 2015 in which he opined that:
…[Mr Ellison] has two level discal degeneration shown on the CT scan and more recently on MR scan…He has had facet joint progressive degenerative disease [in] at least two levels, L4/5 and L5/S1 with repeated injections and denervations which have failed to provide long-term improvement. Diagnosis are thus L4/5 and L5/S1 discal degeneration and L4/5 and L5/S1 particularly left-sided currently facet joint degeneration without neurologic loss.
Assessment
In terms of consistency this is consistent with the stated cause with a torsion injury to the lumbar spine producing discal injury and producing facet joint ongoing problems…
There are no previous employers involved. He has undergone a battery of investigations thus far, all of which have served to confirm his slowly progressive degenerative disease of the two lower levels of his lumbar spine.
(Emphasis added.)
The “stated cause” must be a reference to the 2009 Workplace Incident which was earlier summarised by Dr Mills under the sub-heading, “Mechanism of alleged injury/ sequence of events”. Dr Mills also noted that Comcare had provided him with Dr Carey’s reports dated 26 August 2015 and 22 September 2015 which said that Mr Ellison was suffering from degenerative changes in his lumbar spine.
In answer to specific questions regarding Mr Ellison’s lumbar spine injury and whether it was employment-related, Dr Mills said the following:
Diagnosis and prognosis
…
2. From what specific condition does Mr Ellison currently suffer? Please provide a short description of the condition, including its known origins and progression…
See above. He has two-level discal disease and two-level facet disease mostly on the left hand side but the right hand side is also mildly degenerate at present in terms of facet joints.
…
Employment Relationship
1. Is/was the condition suffered by Mr Ellison related to:
e) his employment as a [Marine Tactical Officer]
Yes.
f) factors unrelated to work
No.
g) a pre-existing, congenital, constitutional or under-lying condition
No.
h) the natural progression of an underlying condition
No.
i) underlying degeneration as part of the natural ageing process, or
No.
j) other health issues.
No.
Thus, a specialist engaged by Comcare opined that Mr Ellison suffered from “facet joint progressive degenerative disease” in his lumbar spine at L4/5 and L5/S1, which condition was related to his employment with Customs; was consistent with the 2009 Workplace Incident; and was not related to factors distinct from his work such as degeneration as part of the natural ageing process, or the natural progression of an underlying condition, a pre-existing, congenital, constitutional or underlying condition or another underlying health issue; and
(e) a Rehab Management report dated 30 November 2015 which said that Mr Ellison had not worked since May 2015, and that he had been “advised that he sustained severe degeneration in his lumbar spine since the last medical review in 2011”. A Rehab Management Rehabilitation Program Alteration Report dated 8 June 2016 changed the description of the “nature of injury” from “lumbar sprain” (which appeared in the previous rehabilitation program report dated 29 February 2016) to “degenerative disease of the lumbar spine”.
113 As is apparent, some of those medical reports also expressed opinions regarding the aetiology of the injury. Dr Sewell’s March 2014 report said that Mr Ellison’s “chronic lumbar spine degenerative disease with disc bulging and compression of nerve roots in his back” was still the same injury that occurred on 21 April 2009. Dr Mills’ December 2015 report said that Mr Ellison’s “facet joint progressive degenerative disease” in his lumbar spine at L4/5 and L5/S1 was consistent with the “torsion injury” he suffered on 21 April 2009. Dr Sewell’s December 2017 report (the relevant parts of which are set out at [37] above]) stated that Mr Ellison suffered from lumbar spinal degeneration related:
(a) to the 2009 Workplace Incident; and
(b) to the physically demanding nature of his work with Customs from 2002 to 2009.
114 In the reconsideration decision the review officer noted Dr Sewell’s opinion, yet in deciding to affirm the determination to cease compensation, as previously noted, she said the following:
The issue to decide in this reconsideration is whether you are entitled to compensation for medical expenses and incapacity payments in respect of lumbar sprain (unspecified). I note that you dispute the labelling of your accepted condition, however, Comcare have continued to pay compensation for your injury since 2009, irrespective of the labelling of your accepted condition, and, consequently this review is based on the medical evidence at hand.
To be entitled to compensation for medical treatment and incapacity payments under sections 16 and 19 of the SRC Act, it must be satisfied that the requirement for medical treatment and incapacity payments are as a result of the injury sustained on 21 April 2009.
115 Having regard to the claim raised by the materials before Comcare in the reconsideration application, it was erroneous for the review officer to restrict her consideration to whether Mr Ellison was entitled to compensation in respect of a “lumbar sprain”. The materials before it clearly raised a claim that Mr Ellison suffered from work-related lumbar spinal degeneration. It was also erroneous for Comcare to restrict its consideration to whether Mr Ellison was entitled to compensation in respect of an injury sustained on 21 April 2009. The materials before it clearly raised a claim that Mr Ellison suffered from lumbar spinal degeneration to which his employment with Customs between 2002 and 2009 had contributed, to a significant degree.
116 The SRC Act allows for progressive and evolving decision-making by the relevant decision-maker, which provides for adjustment or change in the light of events and circumstances which may subsequently happen: Hannaford at [57]. In the reconsideration application, Comcare had an inquisitorial role and was obliged to consider and decide the claims raised by the materials.
117 The review officer, however, decided the reconsideration application by reference only to the claim it identified, and it affirmed the determination dated 11 January 2018 to cease liability for compensation on and from that date on the basis that Mr Ellison no longer suffered any effects from the “lumbar sprain” and that there was “no objective evidence that a specific work injury in the past is the ongoing cause of [Mr Ellison’s] current back condition”. As previously set out at [24] above, the review officer decided as follows:
Given the chronological timeline and the passage of time since your injury in April 2009, and based on the specialist opinion of Dr Haynes, there is no objective evidence that a specific work injury in the past is the ongoing cause of your current back condition…
Dr Haynes opined that your current presentation was due to the degenerative changes at L4/5 and L5/S1 which are consistent with the ageing process. Dr Haynes opined that any lumbar sprain [sustained in April 2009] had been superseded by degenerative changes in your lumbar spine.
…Dr Haynes further opined that any incapacity to work was as a result of your degenerative back symptoms, rather than your employment injury in April 2009.
…
The medical evidence indicates that the requirement for medical treatment and incapacity is related to your underlying degenerative condition and factors outside your employment (such as the possible non-compensable aggravation in 2013, alluded to in the Rehabilitation report dated 14 December 2015) rather than being due to the circumstances that gave rise to your compensable condition of lumbar sprain (unspecified) on 21 April 2009.
118 In reviewing the reconsideration decision, the Tribunal stood in the shoes of Comcare. Subject to the preconditions in ss 53 and 54 of the SRC Act it was obliged to review the decision on the claims before Comcare in the reconsideration application. It had an inquisitorial role and was obliged not to limit its decision to the case expressly articulated by an applicant: Bushell at 424-425 and Benjamin at [47].
119 The Tribunal recognised that the materials before it raised a claim that Mr Ellison was entitled to compensation for the Underlying Degenerative Disease which was contributed to, to a significant degree, by his work for Customs between 2002 and 2009. Not only did the Tribunal recognise that the medical evidence raised that broader claim, at [266] it expressed its satisfaction as to the existence of that injury, its connection to Mr Ellison’s employment, and its continuing effects on and from 11 January 2018. At [279]-[280] it expressed its satisfaction that Mr Ellison was incapacitated for work as a Marine Tactical Officer by reason of this injury from 11 January 2018 to the date of the Tribunal’s decision.
120 Given that broader claim was before the review officer in the reconsideration application, the Tribunal had jurisdiction to decide it. Its jurisdiction was not limited only to the injury notified in the Claim Form.
121 Fourth, Comcare seeks to rely on the decisions in Szabo, Szabo FFC and Muir in support of its argument that the claim before the Tribunal did not extend to a claim that Mr Ellison was entitled to compensation for his Underlying Degenerative Disease. However, the question as to whether a claim is raised by the materials in the reconsideration application of a case, and whether a claim is properly before the Tribunal such that it has jurisdiction to decide it, is fact- sensitive. Having regard to that, while some assistance may be derived from previous judicial examinations of similar problems (Scott v Copenhagen Reinsurance Co (UK) Ltd [2003] EWCA Civ 688; 2 All ER (Comm) 190 at [33] (Rix LJ)), there is a danger in extracting judicial statements based on the facts of one case and treating them as binding legal principles in another case with different facts.
122 As Windeyer J (with whom McTiernan J agreed) explained in Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503:
…[D]ecisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from the context and treated as propositions of universal application…
Recently, in Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98 at [29] the Full Court (Logan, Charlesworth and Wheelahan JJ) described the remarks in Teubner as being of “enduring relevance”.
123 The facts in Szabo and Muir are readily distinguishable from the facts in the present case. In summary, the applicant in Szabo suffered an injury to his lower back in 1985 while employed as a meat inspector by the Victorian Department of Agriculture and Rural Affairs (the 1985 injury). In July 1986, he commenced a common law claim for damages against the State of Victoria in relation to the 1985 injury. In 1988, the applicant commenced work as a meat inspector with a Commonwealth employer. On 20 June 1989 the applicant suffered another injury to his lower back (the 1989 injury) and made a compensation claim under the SRC Act for that injury. The accident report submitted on 21 June 1989 in respect of the 1989 injury said that the injury had been suffered on a specific date (20 June 1989) at a specific time, but also referred to “constant lifting & bending whilst carrying out inspection duties on mutton chain”. In August 1989, Comcare accepted liability for the 1989 injury which it described as “aggravation of pre-existing lower back degenerative disease”. Subsequently Comcare made various determinations allowing continuing compensation for the 1989 injury under the SRC Act.
124 In 1992 the applicant and the State of Victoria settled the common law claim for $115,000. Then in June 2008 Comcare determined that the applicant no longer suffered from the effects of the 1989 injury, and that he was no longer eligible for compensation pursuant to sections 16 and 29 of the SRC Act. Comcare affirmed that determination on reconsideration and the applicant then applied to the Tribunal. Before the Tribunal the applicant argued that his employers had accepted four accident reports that he had lodged after the 1989 injury, and, at times, he made claims for compensation on the basis of the “nature and conditions” of his work: Szabo v Comcare [2011] AATA 114 at [27] (Szabo AAT). He argued that given the effluxion of time and the dearth of Comcare documents available for consideration, it was not possible to reconstruct what discussions he had with his employers and Comcare in relation to the accident reports and the claims he made at various times; and he maintained that Comcare had treated his claim as a “nature and conditions claim”: Szabo AAT at [30].
125 Comcare contended that it had not had the opportunity of reviewing a claim based on the nature and conditions of employment and that therefore the Tribunal had no jurisdiction to entertain such a claim: Szabo AAT at [32]. The Tribunal concluded that Comcare had not been provided with the necessary opportunity afforded to it under the legislation to consider and determine a nature and conditions claim; it found that the Tribunal had no jurisdiction to make a decision in relation to the nature and conditions claim: Szabo AAT at [41]. On application to this Court, Stone J upheld the Tribunal’s decision, and on appeal the Full Court found no error in her Honour’s approach.
126 In contrast to that, in the present case it is plain that Comcare was on notice of a claim that Mr Ellison was entitled to compensation from 11 January 2018 on the basis of his Underlying Degenerative Disease which was contributed to by the physically demanding nature of his work for Customs between 2002 and 2009. It had ample opportunity to investigate that claim as part of the reconsideration application, and it also had ample opportunity to investigate that claim in the application before the Tribunal. Indeed, in the application before the Tribunal, Comcare relied on Dr Haynes’ and Mr Kelman’s opinions that the degenerative changes in Mr Ellison’s lumbar spine were age-related rather than employment-related. That is different to the position in Szabo where the Tribunal found that the claim made did not include a “nature and conditions” claim and Comcare did not have a proper opportunity to review such a claim, which finding was upheld on appeal at first instance and before the Full Court.
127 Another difference between the present case and Szabo is that the question of whether Comcare had been given notice of the nature and conditions claim was of critical importance to the claim’s prospects of success. In Szabo, if the applicant’s claim was limited to the incident which caused the 1989 injury when he was a Commonwealth employee (which was an aggravation of the 1985 injury he sustained with a different employer), the claim could not succeed because the Tribunal found that the applicant had recovered from that aggravation, and had already been compensated for his pre-existing injury through the 1992 settlement with the State of Victoria. The Tribunal held (at [96]):
I am satisfied from the medical evidence that there is no present liability from 13 June 2008 for compensation, and that the Applicant does not continue to suffer from the effects of his aggravation of pre-existing lower back degenerative disease injury sustained on 20 June 1989. I accept that the back pain he suffers is as a result of the significant injury he suffered on 24 September 1985 for which he has been compensated.
On appeal, Stone J said (at [34]) that treating the further accident reports as extending the claim beyond that described in the original notice of injury would be inconsistent with the findings of fact made by the Tribunal.
128 That stands in contrast with the present case in which the materials before Comcare in the reconsideration application raised a claim that Mr Ellison was entitled to compensation for the Underlying Degenerative Disease which was contributed to by his employment with the same employer over seven years, as well as a claim for compensation on the basis of an injury suffered in the 2009 Workplace Incident. Extending the claim beyond that described in the original notice of injury does not give rise to any inconsistencies with factual findings made by the Tribunal; indeed, permitting that course would be consistent with the Tribunal’s view of the evidence (at [266]).
129 Another difference is that, in Szabo the applicant did not argue that the “injury” for which he claimed an entitlement to compensation had a dual character, in that it was both a disease (being an “ailment” or “an aggravation of such an ailment”) under s 5B(1) of the SRC Act, as well as an “injury (other than a disease)” under s 5A. The applicant’s case before the Tribunal, and on appeal, focussed on whether he had made a claim in which he asserted that he had suffered an injury due to the nature and conditions of his work in the period from October 1988 to March 1990. The applicant in Szabo also received legal advice before completing his claim form. That may be contrasted with the present case where Mr Ellison’s claim has a dual character; in the Claim Form he claimed to have suffered an injury of the kind defined in s 5A(1)(b), but the materials before Comcare in the reconsideration application also raised a claim that he suffered a “disease” to which his employment between 2002 and 2009 contributed, to a significant degree, of the kind defined in s 5B(1).
130 The facts in Muir are also distinguishable from those in the present case. Flick J set out the relevant facts at [17]-[27]. In brief summary, in November 2013 the applicant made a claim for compensation under the SRC Act in relation to her employment with the Australian Federal Police (AFP). In the claim form she described the injury as “[w]orsening of anxiety/depression, work place bullying and harassment, severe anxiety, severe depression, severe stress”, and said that she was first injured or noticed she was ill on 23 October 2013 at 9am. She lodged an incident report with her claim in which she detailed a number of “significant issues/events” that she said had impacted upon her psychological well-being “over the years”. A short time prior to the initial determination of the claim, the applicant provided further information to Comcare in response to material that had been provided by the AFP. In this the applicant said:
My position is that this information [provided by the AFP] 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.
131 On 20 January 2014, Comcare accepted that the applicant’s injury occurred on 23 October 2013, but concluded that the claim fell within the exclusion in s 5A of the SRC Act because it was in relation to 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.” In February 2014, the applicant made a request for reconsideration which focussed upon the finding that the date of injury was 23 October 2013 and queried Comcare’s reliance on the statements by AFP staff in relation to events prior to 23 October 2013. The request for reconsideration stated:
…[I]f 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.
132 On reconsideration, Comcare affirmed the initial determination and the applicant then sought review by the Tribunal. In deciding to uphold the applicant’s claim, the Tribunal concluded that while Abrahams allowed it to reformulate the terms of the claim that had been made, it was unnecessary to do so because the applicant had always claimed that she sustained a mental injury arising out of or in the course of her employment in the period 2010-2012: Re Muir and Comcare [2015] AATA 612 at [38] (Humphries DP). The Tribunal found that unlike the event which occurred on 23 October 2013, the events in 2010-2012 which contributed to the applicant’s claimed condition did not fall under the exclusion in s 5A (at [13]).
133 Comcare appealed the Tribunal’s decision to this Court. In setting aside the Tribunal’s decision, Flick J said (at [25]) that the Tribunal was acutely aware of the prospect that if the applicant’s psychological injury was suffered on 23 October 2013, any claim to compensation would have been precluded by s 5A of the SRC Act. In this way, the date of the applicant’s injury was critical to the claim’s prospects of success, whereas in the present case nothing of substance turns on a finding as to whether Mr Ellison suffered injury in a specific workplace incident in 2009 or through physically demanding work between 2002 and 2009.
134 In Muir, Flick J found (at [28]-[29]) that the October 2013 injury was the subject of the claim as made in November 2013, the initial determination in January 2014, the request for reconsideration in February 2014, and the reconsideration decision in April 2014. It was against that factual backdrop that his Honour said that a claim confined to an injury suffered in October 2013 cannot be transformed into a claim for an injury suffered in 2010-2012 (at [37]). That stands in contrast to the present case in which the materials before Comcare in the reconsideration application raised a claim on the basis of an injury suffered in a specific incident in 2009 and on the basis of the Underlying Degenerative Disease which was contributed to by his work for Customs between 2002 and 2009.
135 Fifth, there is nothing in Szabo, Szabo FFC, Muir or the other cases to which Comcare referred which express any disagreement with the principles explained in Lees, Hannaford or Abrahams. Counsel for Comcare made no suggestion that those decisions were no longer good law.
136 In Abrahams the injury notified by the applicant in the prescribed claim form was “right carpal tunnel syndrome”. Then, for the first time, before the Tribunal, counsel for the applicant said that the case would not be pressed on the basis of carpal tunnel syndrome, and would instead be pressed on the basis that the applicant’s 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”: Abrahams at [8]. The Tribunal took the view that the orderly processes of administration of compensation claims would be subverted if it allowed the applicant to recast his application in that way, and decided that the Tribunal did not have jurisdiction to deal with the claim as it was then proposed: Abrahams at [9]-[10].
137 On appeal Madgwick J held that the Tribunal erred in taking that approach. In an explanation that has been cited with approval on numerous occasions (see Muir at [14]-[15]; Sellick v Australian Postal Corporation [2009] FCAFC 146; 113 ALD 58 at [7] (Mansfield and McKerracher JJ); Szabo FFC at [33] (Emmett and Greenwood JJ) and at [50] (Bennett J)), Madgwick J said the following at [16]-[21]:
16. …while, as a matter of generality, the principles stated by the Senior Member are correct, they have been, with respect, misapplied. The maker of the reviewable decision had the same powers in relation to the decision to be made as the original decision-maker, as had the Tribunal. There is certainly an orderly process of administration contemplated by the Act, and it includes, importantly, a requirement that a person may not claim for compensation unless he or she has given: ‘notice in writing of the injury...to the relevant authority...as soon as practicable after the employee becomes aware of the injury’ per s 53(1)(a).
17. There is no form of notice of injury legally prescribed. What is a ‘notice of injury’ complying with s 53 is, as Whitlam J noted in Frosch v Comcare [2004] FCA 1642 at [8], a matter of law.
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.
19. While no legal criticism can be made of the Tribunal for declining to accept counsel’s invitation to reconsider the matter entirely, since something new in 2002 was being propounded as the injury, it seems to me to have been over-technical, and to have been a legally impermissible mode of interpretation, to hold the applicant irretrievably to the use of what was plainly the then medical diagnosis which he had received.
20. The claim form indicates that the diagnosis was right carpal tunnel syndrome. In the ‘Report of injury or disease’ (which apparently accompanied the claim for compensation), where the applicant answered the question: ‘What injury/disease did you sustain? (Nature of injury):’, were the words: ‘Right Carpal Tunnel Syndrome’. In the context, it is clear that he was simply adopting the then medical diagnosis of his injury. 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.
21. Nothing is more common than that medical diagnoses change and evolve, or are or become various. In my opinion, to hold that the applicant was irretrievably asserting that he had a right carpal tunnel syndrome as the injury to his hand is to take an over-literal view of a document that, as I have indicated, should be beneficially, broadly and practically interpreted.
(Emphasis added.)
138 It is worth noting that in Abrahams the “change” in the injury the subject of the claim was first made before the Tribunal (see Abraham at [6]), whereas in the present case the change in the injury and its cause was first raised at the reconsideration stage. Even in relation to a changed claim that was first raised before the Tribunal, the Court in Abrahams found that the Tribunal erred in deciding that it had no jurisdiction.
139 In Sellick, Buchanan J emphasised that it is appropriate to be cautious before concluding, under the notice of injury requirements in beneficial legislation, that a notice of injury provided by a layperson without the benefit of legal advice, irretrievably sets the boundary of a compensation claim in a jurisdictional sense. I respectfully agree with his Honour’s remarks at [23], where he said:
There may be a real question whether the AAT is jurisdictionally confined by the particular description given by an employee of the cause of an otherwise compensable injury. Although it is necessary that an injury, in order to properly found a claim for compensation, arise out of or in the course of employment it may not be necessary, at least in every case, that absolute precision be supplied if it is otherwise clear that a sufficient connection with employment exists. I would not, without further consideration, endorse a suggestion that a claim that a medical condition was based on walking would exclude from consideration, in any jurisdictional sense, the possibility that the true explanation, supported by medical evidence, was that it was caused by lifting…
(Emphasis added.)
140 In Sellick, in a brief concurring judgment, Mansfield and McKerracher JJ agreed with Buchanan J’s conclusion that the appeal should be dismissed with costs (at [1]), and by way of an additional comment at [7], their Honours said the following:
There is something to be said for the proposition that the notice of injury initially given by the applicant, namely “pain in the right shoulder” was, by the subsequent presentation of various medical certificates and medical reports, sufficient to have constituted a claim that the pain in his right shoulder flowed either from soft tissue injury in the shoulder, or from aggravation of a degenerative spinal condition, or from chronic sprained interspinous ligament, or from a combination of those conditions: see eg the remarks of Madgwick J in Abrahams v Comcare (2006) 93 ALD 147 at [18] and at [21], and in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [57].
141 Applying the principles set out in the authorities to the circumstances of the present case involves taking into account that:
(a) a broad, generous and practical approach is appropriate in construing a document purporting to be a notice of injury under the SRC Act (Abrahams at [18(1)]);
(b) notice is taken to have been given even if the notice fails to comply with the requirements under s 53(1) where the failure is caused by ignorance, mistake or any other reasonable cause, or where the relevant authority would not be prejudiced if the notice is treated as sufficient: s 53(3);
(c) strict compliance with the requirements of the prescribed claim form under s 54 is not required; substantial compliance is sufficient: s 54(5);
(d) the notice of injury requirements by the legislation are to be construed beneficially for claimants: Abrahams at [18(1)] and Sellick at [23];
(e) medical diagnoses as to the nature and aetiology of an injury commonly evolve over time: Abrahams at [21];
(f) the statutory scheme allows for “progressive and evolving decision-making” in the light of subsequent events and circumstances: Hannaford at [57];
(g) the purpose of requiring notice of injury is so that Comcare is appropriately informed as to “the nature of an injury or ailment and its connection with the employment”: Frosch at [8]; and
(h) the purpose of requiring notice and of enabling the decision-maker to have a fair opportunity to properly investigate the claim are paramount considerations when determining whether notice of injury has been given under the SRC Act: Abrahams at [18(5)].
142 Taking those matters into account, in undertaking a review of the reconsideration decision and in exercising its inquisitorial role, I consider the Tribunal had jurisdiction to decide a claim that Mr Ellison was entitled to compensation for the Underlying Degenerative Disease which was contributed to, to a significant degree, by the work he performed for Customs between 2002 and 2009. The Tribunal’s approach does not show a broad, generous and practical approach to construing Mr Ellison’s notice of injury; nor does it take it account of the fact that medical diagnoses as to the nature and aetiology of Mr Ellison’s injury evolved over time, and the statutory scheme allows for progressive decision-making.
143 The paramount consideration is whether Comcare was appropriately informed as to the nature of the claimed injury and its connection with the employment; and whether it was provided a fair opportunity to properly investigate that claim. As I have said, the materials before Comcare in the reconsideration application raised that claim. Comcare was on notice of it and had ample opportunity to properly investigate it. That it had notice of the claim is plain when one considers that, after Comcare gave notice of its intention to cease compensation payments and provided Mr Ellison with an opportunity to provide further medical evidence, Dr Sewell provided his December 2017 report to Comcare. That report expressly informed Comcare of Dr Sewell’s opinion that Mr Ellison was incapacitated for work by reason of spinal degeneration in his low back which was related both to the 2009 Workplace Incident and to his employment with Customs from 2002 to 2009. That report was plainly significant to the reconsideration application; and the review officer specifically referred to and briefly summarised it. That broader claim had been before Comcare in the reconsideration application, and the Tribunal had jurisdiction to consider and decide it.
144 Treating the broader claim as being properly before the Tribunal does no harm to the “orderly process of administration contemplated by the Act” (Abrahams at [16]). The orderly process of administration contemplates “progressive and evolving decision-making” in the light of subsequent events and circumstances: Hannaford at [57]. In the present case the subsequent circumstances are that, over time, the medical opinions relating to the nature and aetiology of Mr Ellison’s condition evolved. As I have said, Comcare had notice of those changes of medical opinion and had a fair opportunity to properly investigate the claims raised by them. In the circumstances of the present case, it is difficult to see what more Mr Ellison was realistically required to do to allow Comcare a proper opportunity to investigate his claim and for its orderly processing.
145 Mr Ellison was in receipt of compensation payments from Comcare for all his periods of incapacity for work from April 2009 until 11 January 2018. That does not prove that Mr Ellison was legally entitled to such payments, but there was no practical reason for him to make a fresh compensation claim nor to do anything more to notify Comcare of the changed medical opinions as to the nature and aetiology of his injury. He had provided Comcare with medical certificates throughout the period; had authorised Comcare to obtain reports from his treating doctors and Comcare had done so; had attended medical examinations by doctors engaged by Comcare as required; and, most importantly, Comcare had Mr Sewell’s December 2017 report and it was on notice of the broader claim. It cannot realistically be said that Mr Ellison completing a fresh claim form, and thus going back to the start of the claims process under the SRC Act, was necessary for the orderly processing of the broader claim.
CONCLUSION
146 It is appropriate to make orders to set aside the Tribunal’s decision, and for the matter to be remitted to the Tribunal to be determined according to law. Mr Ellison seeks that the matter be determined by a differently constituted Tribunal, but I am not persuaded that is necessary. A Tribunal member has already given detailed and careful consideration to the medical evidence and there may be some efficiency in having the case dealt with by that member. In the circumstances the constitution of the Tribunal on remittal should be left to the President.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. |
Associate:
