VYRP and Comcare (Compensation) [2018] AATA 3202 (25 July 2018)

Last Updated: 5 September 2018

VYRP and Comcare (Compensation) [2018] AATA 3202 (25 July 2018)

Division: GENERAL DIVISION

File Number(s): 2016/7005

Re: VYRP

APPLICANT

And Comcare

RESPONDENT

DECISION

Tribunal: Mr S. Webb, Member

Date: 25 July 2018

Place: Canberra

The Tribunal has jurisdiction to review Comcare’s 17 November 2016 reconsideration decision in respect of VYRP’s 11 August 2016 compensation claim for a mental health injury on or about 2 December 2013.

..............................[sgd]..........................................

Mr S. Webb, Member

WORKERS’ COMPENSATION – claim for injury – determination to reject claim affirmed on reconsideration – scope of claim – statutory requirements for claim to be ‘made’ – approved form of claim – requirement for a medical certificate – no approved form of medical certificate – when claim is deemed to be ‘made’ – consideration of documents ancillary to a claim – claim to be construed according to its terms having regard to notice given and relevant ancillary materials – content of claim - temporal considerations – injury claim for onset and worsening of ailment

JURISDICTION – application for review of reconsideration decision – reconsideration decision affirmed primary determination rejecting liability for injury – primary and reconsideration decision makers expressly considered but did not expressly decide all aspects of the claim made - implied decision to refuse earlier date of claimed injury by primary and reconsideration decision makers – Tribunal has jurisdiction to review all aspects of the claim

Legislation

Administrative Appeals Tribunal Act 1975 s 25, 35

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 16, 19, 53, 54, 60, 62, 64

Cases

Abrahams v Comcare [2016] FCA 1829 at [18]

Buhr v Comcare [2007] FCA 575 at [40]- [46]

Comcare v Bromham [2017] FCA 174 at [25]

Comcare v Muir [2016] FCA 346 at [30]

Kennedy v Comcare [2014] FCA 82 at [45]

Lees v Comcare [1999] FCA 753 at [18]

Re Bureau of Meteorology and Comcare and Anor [2015] AATA 267 at [44]

Re Durham and TNT Australia Pty Ltd [2011] AATA 802 at [51]

Sellick v Australian Postal Corporation [2009] FCAFC 146

Smith v Comcare [2013] FCAFC [12], [38]

Smith v Comcare [2015] FCAFC 24 at [57]- [60]

Szabo v Comcare [2012] FCAFC 129 at [33]-[34]

REASONS FOR DECISION

Mr S. Webb, Member


25 July 2018

1. VYRP claimed compensation for a work-related psychological injury. Comcare refused her claim by primary determination and on reconsideration. Unhappy with this result, VYRP applied for review.
2. A threshold issue arose at the outset of the hearing concerning the Tribunal’s jurisdiction and the contents and construction of the compensation claim VYRP lodged with her employer on 11 August 2016.
3. The parties sought a ruling on this point before proceeding further with the hearing. With this I concurred – the scope of matters within jurisdiction conferred upon the Tribunal in a particular case is for it to determine.
4. For practical reasons relating to the conduct of the hearing, as I explained to the parties, I gave the ruling orally in summary form to be followed by more extensive written reasons. I now set out those reasons.
5. In consequence of the ruling, having heard the parties, the hearing was adjourned in order to allow time for further investigations to be undertaken and additional materials to be provided to the Tribunal.
6. Furthermore, VYRP requested that her identity should not be revealed. The reason for this relates to her employment in the justice system. Comcare did not object to the request. I am satisfied that the nature of VYRP’s employment, and the reasons she gave for not publicly disclosing her identity, are sufficient to render it appropriate to acede to her request. In consequence, I gave orders under s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). It is for this reason she is referred to as VYRP.

BACKGROUND FACTS

7. The following uncontroversial facts are established by the materials before the Tribunal.
8. From 3 November 2008, VYRP was employed as a Probation and Parole Officer at the ASO6 level in the Probation and Parole Section of the Community Corrections Branch (the Branch) of the ACT Department of Justice and Community Safety (the Department).
9. In 2012, VYRP experienced back pain. She obtained treatment and underwent lumbrosacral spinal fusion surgery. This was not related to her employment.
10. At some time in 2013, management in the Branch changed and a new General Manager commenced. She alleges that things did not go well for her thereafter.
11. On 21 October 2013, VYRP was involved in a motor vehicle accident – her car was struck from behind by another vehicle. She sustained a number of injuries in respect of which she claimed compensation. She experienced chronic back pain. These injuries and her motor vehicle accident compensation claim were not related to her employment.
12. VYRP returned to work on modified duties. She alleges that her circumstances at work became more difficult.
13. On 18 August 2014, VYRP commenced a temporary appointment on higher duties at the SOGC level in the Department’s Workforce Development and Training Unit (WTDU). This continued until 17 August 2016.
14. On 11 August 2016, VYRP submitted a claim for compensation in respect of an alleged “psychological” injury.^[1] I understand that she completed the claim form online and that this was lodged automatically and electronically with her employer. The employer completed Part 2 of the form and lodged the completed form with Comcare on 5 September 2016.
15. In the claim form, VYRP advised that she first experienced symptoms of the alleged injury on 2 December 2013,^[2] and she first sought medical treatment for this on “21/12/2003”.^[3] Counsel for VYRP informed me that the reference to 2003 is an error and that this was meant to be 2013 – this will be a matter for evidence at the substantive hearing should anything turn on it.
16. It appears that VYRP attached a statement and other documents to the claim form she lodged on 11 August 2016, namely –
    • (a) a letter from Dr Bailey, her treating general practitioner, to her employer dated 9 May 2016 (T7);
    • (b) a medicolegal report by Dr McBurnie, a consultant occupational physician, addressed to VYRP’s employer dated 4 July 2016 (T11);
    • (c) a medical certificate of Dr Bailey dated 22 August 2016 (T20); and
    • (d) an undated statement to which she referred in response to the question What happened and how were you injured? in the claim form (T29).
17. As can be seen, the statement sets out a number of alleged circumstances in her employment from 2013.
18. On 5 September 2016, the employer lodged the completed form (Part 2 of the form is to be completed by the employer) with Comcare, including responses to the following questions –
    • (a) When were you first notified of employee’s injury/illness?, the employer recorded “15/02/2016”; and
    • (b) At the time of the injury/illness, what was the employee’s job title and their main duties?, the employer recorded “Probation and Parole Officer Managing offenders on parol [sic]”.^[4]
19. On 22 September 2016, Nicole Daly, VYRP’s treating clinical psychologist, provided a report to Comcare.^[5] Ms Daly sets out the history, including –

“VYRP was later injured in a motor vehicle accident (MVA) in October 2013 resulting in significant back pain and injury to the right knee. She has experienced higher levels of chronic pain since this time. VYRP felt the workplace was unaccommodating of her needs. VYRP reported she had real difficulty in being able to use her FLEX time to attend rehabilitation appointments. Rehabilitation was impeded and chronic pain was having an impact on her ability to carry out her duties. She began to experience panic attacks and depression due to concerns about her physical health, managing her case load and concerns about the future. At times she expressed suicide ideation.”

20. On 23 September 2016, an officer of the Department provided Comcare with a statement with numerous and voluminous attachments, addressing the claim.^[6] The first page of this document sets out reference information –

“Condition claimed: Psychological
Claimed date of injury: 2 December 2013”

21. This information appears in a number of subsequent documents created by the employer and by Comcare.^[7] The employer’s statement sets out extensive and detailed information, including the following passage –

“[VYRP] has indicated that she first noticed symptoms on 2 December 2013. [VYRP’s] flex sheet for this period does not indicate any absences from the workplace for the period 2 December 2013 to 18 December 2013 other than 2 flex days.”^[8]

22. On 28 September 2016, VYRP sent an email to Comcare, responding to the statement her employer provided to Comcare. In her response she states –

“Thank you for this, after reading it I have found that they have completely failed to address the core of my complaint – psychological complaint. Which is essentially the way I was meant [sic] to feel by management that led to an increase in anxiety and depression and led to panic attacks which I have never had, which commenced in 2013 when new management came on board. It became so bad at work that it led to suicide ideation and me almost driving myself into a tree. They knew of my limitations and yet kept piling on more and more work, as I said most nights I had to work at home to fulfil management needs.
While ACTCS state I may have taken a lot of flex, they cancelled a lot as well until I became so unwell I would have to use my personal leave.
My complaint is not about having to go back to corrections it is about how an organisation treated someone and caused mental health issues that I was treated so poorly my [sic] management at the workplace who knew exactly what I was going through, I developed panic attacks in the workplace, became overwhelmed with all the work that was being piled up on my desk continually despite stating I couldn’t do it that I almost killed myself...”

23. VYRP sent a further more detailed response to Comcare later that day.^[9]
24. On 21 October 2016, Comcare determined to reject the claim. The primary decision-maker expressly referred to VYRP’s assertions about circumstances in her workplace in 2013, but made no express decision in respect of an ‘injury’ at that time. Rather, the decision maker stated that “your condition has been partly contributed to by your employer advising of the outcome of the Fitness For Duty (FFD) Assessments undertaken with regard to your substantive role”.^[10] The decision maker recorded that this advice was given to VYRP by her employer in February 2016 and on 25 July 2016. It appears that the decision maker considered these circumstances fell within the ‘exclusionary provisions’ of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) – impliedly the exclusionary proviso set out in s 5A(1) relating to ‘reasonable administrative action undertaken in a reasonable manner’ in connection with VYRP’s employment.
25. On 21 October 2018, VYRP applied for reconsideration of this decision. In so doing she provided Comcare with further explanation of her claim, including –

“My condition developed as a result of ongoing workplace issues once management found out about the extent of my physical issues – not following the MVA as the investigator stated.
I reported ongoing workplace issues going back to 2013/2014, noting lack of support from my manager in regards to my pain issues in regards to back issues.
...
The investigator stated that she believed my condition “has been partly contributed to by your employer advising of the outcome of the fitness for duty assessments ... we consider that this action constitutes an administrative action under the SRC Act”. I have no idea where this came from as this is totally incorrect; it should be noted I requested the assessments in an effort not to return to the bullying and harassing environment that had caused my psychological injury in the first place and was extremely relieved and felt calmer when I was advised by Workplace Injury and HR of the outcome. My GP, Psychologist and family can confirm this if required.”^[11]
[Original emphasis]

26. On 17 November 2016, Comcare issued a reconsideration decision affirming its earlier determination to reject VYRP’s compensation claim.^[12] The reconsideration decision maker stated –

“I note that you have claimed compensation for a psychological condition. You have stated that you first noticed the condition in 2013 and attributed it to workplace issues at the time, but you did not lodge your claim until 30 August 2016.
The specialist psychiatric opinions of Dr Cohen and Dr Ventura support that any condition from 2013, had resolved with the transfer to the training role. This is also supported by your other treating practitioners who confirm your current condition is either an aggravation or a new episode due to a different set of circumstances to those in 2013.
Your own statements also strongly support that you had recovered from any condition which may have developed in 2013/2014 and the current episode was caused by your persisting pain condition and injuries from the motor vehicle accident, being notified that you would need to return to your substantive role and that you would not remain in the training unit.
A further contributing factor was the direction to you to return to suitable alternative duties for three months following the FFD assessments, while more permanent alternative duties were identified.
The facts of this case are that you worked in an area in 2013 where you perceived there to be issues and as a result you experienced symptoms of anxiety and panic attacks. You obtained temporary employment at a higher level for two years commencing in August 2014 and ending in August 2016. After being notified that your temporary higher duties would be coming to an end and that you would be returned to the area where you had encountered difficulties previously, you sustained a recurrence of the symptoms from 2013...
Your evidence clearly sets out that you wished to remain in the training area as you viewed this area as a favourable place to work given your predicament. You became sick after being notified that you would not be able to remain in this area and would be required to return to your previous substantive position...”^[13]

27. The reconsideration decision maker concluded that VYRP’s claimed injury was the result of reasonable administrative action undertaken in a reasonable manner by her employer in 2016, such that it was excluded under s 5A of the SRC Act. Furthermore, the decision maker considered that the claimed injury was excluded on grounds that it resulted from a failure to retain a benefit, namely staying in the training unit –

“However, once you were made aware that you would not be able to remain in the training unit after the cessation of your higher duties, your anxiety, depression and panic attacks returned immediately... The evidence supports that your failure to retain the benefit of staying in your preferred workplace unequivocally contributed significantly to your current psychiatric condition.”^[14]

28. Subsequently, VYRP applied for review.

CONSIDERATION

29. VYRP argues that Comcare did not address the central point of her claim – being a claim for a psychological injury in 2013. In her submission the injury under claim arose in the period from October 2013 to August 2014 as a result of perceived maltreatment by a manager in the Community Corrections section where her substantive position was located. She maintains that she informed her employer of difficulties she was encountering in the workplace at the time. She accepts that her symptoms were relieved when she transferred to a different section performing higher duties in August 2014, but they became worse in 2016 when she was required to return to her substantive position.
30. VYRP argues that the claim she made in August 2016 is to be construed broadly and it is sufficient to encompass the injurious effects of circumstances in her employment from 2013. In addition, in her submission, if the worsening of symptoms in 2016 is to be treated as an ‘aggravation’ or a different injury for the purposes of the SRC Act, this too is covered by her claim.
31. VYRP argues that she provided medical certificates and medical reports to her employer and Comcare. In her submission these documents are sufficient to substantially comply with the requirements of s 53 and s 54 of the SRC Act.
32. Furthermore, VYRP asserts that, as Comcare did not squarely address the central element of her compensation claim relating to a work-related psychological ailment arising in 2013, this part of her claim may be deemed to have been refused by the primary and reconsideration decision makers, and it is now squarely before the Tribunal.
33. Comcare maintains that VYRP’s claim was not made in respect of any alleged injury in 2013. Comcare argues that the claim cannot properly be construed in that way even though VYRP expressly refers to dates in December 2013 when she first experienced symptoms and first sought medical treatment for the claimed ailment. In Comcare’s submission the claim arose from events in VYRP employment in 2016.
34. In Comcare’s submission, VYRP did not make a proper claim in respect of an alleged injury in 2013 – any such purported claim was not properly made under s 54 of the SRC Act.
35. Comcare says VYRP failed to give notice of an alleged injury on or about 2 December 2013 under s 53 of the SRC Act. This failing, Comcare argues, should inform proper construction of the claim she made in August 2016.
36. In Comcare’s submission, the medical certificate provided with the claim was not sufficient for the purposes of s 54(2)(b), such that s 54(3) is enlivened. Comcare argues this is because the medical certificate does not set out information specifying the nature of the medical condition (including the date on which it began), the relationship of the condition to the employment, and details of any resulting impairment or incapacity, such as would be necessary to establish an ‘injury’ for the purposes of s 14 of the SRC Act at the particular time.
37. Thus, in Comcare’s submission, no claim was ever properly made in respect of an alleged injury in 2013, despite VYRP specifying the date and time on which she first experienced symptoms and first obtained medical treatment in the claim form. For these reasons, Comcare asserts that no such claim was before the original or reconsideration decision makers, and the Tribunal has no jurisdiction or power to determine if VYRP sustained a compensable ‘injury’ for the purposes of the SRC Act on or about 2 December 2013. Without proper notice and a valid claim that has been considered, determined and reconsidered by Comcare, so the argument goes, the Tribunal is not seized of jurisdiction and it lacks power to make any related determination of the alleged claim.
38. Comcare maintains that the only injury under claim is an alleged injury in 2016, and that is the claim that was rejected by primary determination and on reconsideration.
39. These matters give rise to two inter-related issues. The first relates to the scope and proper construction of the claim made. The second relates to the Tribunal’s jurisdiction.

SCOPE OF THE CLAIM MADE

40. In order to properly determine the scope of VYRP’s claim for compensation, and to address the matters raised in submissions made by the parties, three considerations arise –
    • (a) What are the essential requirements for a claim to be ‘made’ for the purposes of s 54?
    • (b) To what extent, if at all, are documents ancillary to a claim to be considered when construing the substance or scope of the claim?
    • (c) What is the scope of the claim made by VYRP?

Making a claim

41. The requirements for a claim to be ‘made’ are set out in s 54 –

54 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.
(3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.
(4) If a claim relating to an employee is given to Comcare, Comcare must cause a copy of the claim to be given to the principal officer of the Entity, Commonwealth authority or licensed corporation in which the employee was employed at that time.
(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

42. As can be seen, there are three essential requirements for a claim to be ‘made’ –
    • (a) the claim must be given to the ‘relevant authority’ (the relevant authority in this case is Comcare);
    • (b) it must be in writing in a form that substantially complies with the form approved by Comcare for the purposes of s 54(2)(a); and
    • (c) unless the claim is for compensation under s 16 or s 17, a medical certificate that substantially complies with the form approved by Comcare for the purposes of s 54(2)(b) must be given to the relevant authority. It should be noted that the giving of a medical certificate of the requisite kind is not optional – a claim will not be taken to have been made until a certificate of that kind is given.
43. In addition, the provision of notice under s 53 is an essential precondition of the applicability of the SRC Act to an injury -

53 Notice of injury or loss of, or damage to, property
(1) This 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:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.
(2) This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in the loss or damage is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware that the accident had resulted in the loss or damage; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.
(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.

44. There is some latitude allowed in the giving of notice ‘as soon as practicable after the employee becomes aware of the injury’ - in certain circumstances, the requirement for notice to be given may be satisfied even though the time specified in s 53(1) has not been complied with.
45. The clear purpose of these requirements is to ensure that a relevant authority is alerted to the existence of an alleged injury in a timely manner, in order to avoid prejudice occasioned by delay, and that any related claim for compensation is formally made with supporting medical certification sufficient for the relevant authority to comprehend and investigate the claim for the purpose of deciding if it should be met. Generally, this would include information about the nature of the injury or ailment and the connection of the injury claimed with the person’s employment. It is of paramount importance that the decision maker has a fair opportunity to investigate the claim made.
46. Comcare argues that the claim should include the specific basis on which liability is pressed and the nature of the compensation sought.^[15] To the extent that information of this kind, at least in general terms, is desirable, I agree. As Flick J said In Comcare v Muir^[16] at [30] – “Even though a claim may be generally expressed, it must nevertheless properly and adequately inform Comcare such that Comcare can make an informed decision on whether the claim as made should be met”. I am not persuaded, however, that specificity is a mandatory requirement that arises from s 54(2) as an essential precondition to the making of a claim. The claim form published on Comcare’s website (that VYRP used) does not expressly require specific information of this kind (see T14).
47. At this point, it is necessary to note that Comcare informed me during the hearing that no form has been formally approved for the purposes of s 54(2)(b). Without a form approved for the purposes of s 54(2)(b), it is difficult to determine the ‘kind’ of certificate that is required. It should be noted that the requirement to supply a medical certificate of the requisite kind does not apply to claims relating to medical treatment expenses under s 16 and death under s 17.
48. In answer to this deficiency, information printed from the Comcare website was tendered. This included information regarding “Lodging a claim”^[17] and “Medical certificate of incapacity”,^[18] as well as a form headed “Certificate of capacity for work”^[19].
49. Comcare asserts that these documents are expressions of organisational policy that should be complied with by claimants. I understand they have been approved by an officer without exercise of delegated power under the SRC Act.
50. Well it may be that the website documents are instruments of policy, and to that extent it may be desirable for them to be adhered to, but in effect and legally they are no more than guides for the assistance of prospective claimants. They have no binding force.
51. Nevertheless, the language used in the website documents is indicative of the form and kinds of information that should be provided. The form is “Comcare’s preferred medical certificate”: “the Certificate of Capacity”. The information that “should” be provided is described in the following way –

“To ensure that determinations are made in the timeliest way, the Certificate of Capacity needs to include:
employee’s detail
precise diagnosis or description of the condition and symptoms
cause of the condition
date of injury
date the employee first sought treatment for the condition
details of any pre-existing or contributing factors
recommended treatment
capacity for work
the legally qualified medical practitioner’s signature and date
If the Certificate of Capacity attached does not state the diagnosis or description of the condition and does not state the cause of the condition, Comcare will not be able to assess the claim until this is received and will advise employees to obtain this information.
Please note the cause of the condition is not required in psychological injury claims as further medical evidence will be sought.”^[20]

52. While there may be good reasons to follow Comcare’s policy as expressed in these documents, this does not amount to a mandatory requirement for the purposes of making a claim in satisfaction of s 54.
53. Furthermore, s 54(5) provides that ‘substantial compliance’ with an approved form is sufficient for the purposes of s 54(2). Whatever the boundaries of ‘substantial compliance’ might be in this context, strict compliance with the forms approved for the purposes of s 54(2) is not required. I should say immediately that the phrase ‘substantial compliance’ is to be read in the light of s 54(3), such that a claim (other than one relating to s 16 or s 17) cannot proceed until a medical certificate of the kind required by s 54(2)(b) is provided.
54. Consistent with the authorities to which reference has been made, I think the best that can be said is that for a medical certificate to substantially comply with the ‘kind’ of form contemplated by the section, at the minimum it should set out sufficient information about the nature of the alleged injury, describing the ailment or impairment and the circumstances in which it arose from a medical perspective. When fairly read together, without an unduly technical approach, the claim and the medical certificate should be sufficient to enable Comcare to comprehend the claim it is being asked to meet.
55. While detailed information about the alleged injury is clearly desirable, I do not accept Comcare’s submission that the medical certificate required under s 54(2)(b) for the making of a claim must specify the compensable consequences of the injury in terms of particular impairment or incapacity. Without a form approved for the purposes of s 54(2)(b), the plain language of the section and the statutory context in which it sits do not convey a mandatory requirement for specific information of that kind in all cases. So long as the information given is sufficient to enable Comcare to comprehend the injury that is subject of the claim being made, such that it has a fair opportunity to investigate and decide if the claim should be met, the section may be satisfied and the preclusion set out in s 54(3) may not be enlivened.
56. Furthermore, it is not for a doctor to assess if any particular impairment, incapacity for work or other consequence of an alleged injury is compensable – those are matters for Comcare to determine. The important information for the doctor to certify is the nature of the injury or ailment, in terms of symptoms or impairment, diagnosis, causation or circumstances in which it is said to have arisen in the context of employment, and any medical consequences, such a treatment required or incapacity for work for example.
57. Comcare argues that s 54 should be construed in the context of s 14, such that certification of the particular kind of impairment, incapacity or death is required for the purposes of s 54(2)(b). There are three flaws in this argument.
58. Firstly, when the purposes of s 54 are considered in the scheme of the SRC Act, it can readily be understood that a claim is not confined to matters set out in s 14. Section 14 is a gateway provision that is directed to determination of Comcare’s liability to pay compensation in respect of an injury that results in death, incapacity for work or impairment. This section is not applicable to all claims for compensation. A claim for compensation may have a different ambit in respect of the results or effects of an ‘injury’ found under s 5A. A person might claim compensation in respect of medical treatment expenses under s 16 or household or attendant care services under s 29, for example, that may be payable without a prior finding that the ‘injury’ results in death, incapacity for work, or impairment.^[21]
59. Secondly, the determination of liability to pay compensation under Part 2 of the SRC Act is essentially preconditioned by a claim, and it involves a threshold determination whether the claim can be met. While a claim may benefit from particularity, such that a claim for compensation relating to incapacity for work might be expected to specify the nature and extent of the incapacity, or a claim for compensation in respect of medical treatment expenses might specify the particular treatment in relation to the injury and related costs, it does not follow that a claim made in imprecise or general terms in respect of an alleged injury must fail, or that a claim of this kind should be taken as not having properly been ‘made’ for the purposes of s 54.^[22]
60. It is now well-established that notice of an alleged injury, and any related claim for compensation, is to be construed in a manner that is “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”^[23] will be giving the notice or making the claim. An “unduly restrictive construction inconsistent with both the terms of the claim and the beneficial character of the Act” of the kind Jagot J referred to in Re Durham and TNT Australia Pty Ltd^[24] at [60] is not to be preferred. In Comcare v Bromham,^[25] Flick J said at [25] –

A claim, it is to be recalled, should be given “a broad, generous and practical interpretation” (Abrahams v Comcare [2006] FCA 1829 at [18], [2006] FCA 1829; (2006) 93 ALD 147 at 152 per Madgwick J) and “need not be expressed with the same degree of particularity or formality of a pleading or a statement of claim in a superior court” (Farrell v Comcare [2015] FCA 1337 at [31], [2015] FCA 1337; (2015) 148 ALD 527 at 536 per Flick J).

61. Furthermore, the precise basis of liability ultimately pressed or the particularity of compensation sought consequent upon and subsequent to an ‘injury’ may not be apparent to the claimant, or to their treating doctor, when the initiating claim in respect of an alleged injury is made. This may be especially so in claims involving psychiatric ailments, where the precise nature of the claim may not be easy to discern at the outset.^[26]
62. Nevertheless, for a claim to be ‘made’ in respect of an alleged injury, at the minimum, as I have said, the nature of the alleged injury and the relationship of the injury to the person’s employment should be set out, at least in general terms. This should include reference to any ‘impairment’ that is medically identified at the time of the claim. If the claim extends to compensation for ‘incapacity for work’ as a result of an injury, then the incapacity should be medically certified.
63. This is consistent with the scheme of the Act. For compensation to be payable, a claim must first be made. In order for the claim to be met, and for liability to pay compensation to lie against Comcare, an ‘injury’ must first be established, having regard to the defined meaning of that term in s 4 and s 5A. Compensation is to be determined by assessment of the results or effects of the ‘injury’ - claims for payment may be made under the specific heads of compensation set out in Part 2 of the Act.
64. The third flaw in Comcare’s construction argument is that the SRC Act is beneficial in nature and, where ambiguity exists in the language used, a beneficial construction should be preferred. Insofar as there may be ambiguity in the terms and construction of s 54, particularly with regard to the form of medical certificate required for the purposes of s 54(2)(b), a narrow or restrictive interpretation is not preferred. To my mind, construing s 54 in a manner for which Comcare contends, such that a claimant (or their doctor) must specify the liability pressed and the compensation sought before a claim can be taken to have been made is not consistent with the beneficial objects and purposes of the SRC Act, and it is not supported by established authority.

Ancillary documents

65. The formulation of a claim is not confined, solely or exclusively, to the content of information supplied by a claimant in a claim form and no unnecessary emphasis should be placed on the information it contains.^[27] Other documents or information given by a claimant may serve to inform a better understanding of the claim or, in some cases, to assert a different injury than that originally claimed.^[28] In some cases, substantial compliance with the requirements of s 54(2)(a) in respect of the form of a claim may be achieved without a use of a claim form at all.^[29]
66. It is quite clear that ancillary materials provided to Comcare after a claim has been made may assist a proper understanding of the claim. Such was the case in Kennedy v Comcare^[30] and Re Durham and TNT Australia Pty Ltd,^[31] for example.
67. Nevertheless, caution is required when considering ancillary materials relating to a claim. This is especially so where such materials are relied upon or purport to change, narrow or expand the substantive elements of the claim made. Where temporal or causal incidents of the alleged injury are specified in a claim form, and subsequently the claimant attempts to reformulate the claim more broadly, this may not be permissible. Matters of this kind were dealt with negatively in Sellick v Australian Postal Corporation,^[32] Szabo v Comcare^[33] and Muir v Comcare.^[34] While each of these cases turns on its particular facts, the over-arching principle is as stated by Flick J in Muir’s case at [30] –

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

68. As can be seen, Flick J’s remarks are in respect of a ‘generally-expressed claim’. To my mind, they apply equally to a decision maker – the requirement for good administration and the proper resolution of claims is not served by the reformulation of a claim by a relevant authority. Just as it is not appropriate for a claimant to opportunistically reformulate a claim made to avoid the operation of exclusionary provisions that may otherwise apply, so too it is not appropriate for a decision maker to recharacterize a claim in such a way that would bring it within exclusionary provisions that otherwise may not apply.
69. A proper assessment of the claim made is required. Generally, a claim is to be construed practically and beneficially in its terms. This may be assisted by ancillary materials and information provided - information derived from materials ancillary to a claim form may assist a decision maker to properly understand the claim being made.
70. This notwithstanding, where a claimant specifies that an injury, or the symptoms of an injury, under claim occurred at a particular point in time, as a result of particular incidents or circumstances, this cannot simply be ignored and it should not too readily be departed from.^[35] Any departure from a claim formulated with such precision would need to be supported by robust materials indicating that the claim as made is not pressed, or that the claimed injury arose at a different time or in different circumstances, such that the decision maker has a fair and adequate opportunity to investigate the claim and to decide if it should be met.
71. Similarly, where a claim is made in respect of an injury allegedly caused by employment related events and incidents over a period of time, a decision maker should not too readily construe the claim as relating to a shorter period or to particular events or incidents. Quite clearly, if the claim made alleges a causal contribution by the particular employment to an injury over a span of time, even a long time, a decision maker is bound to consider the entire span when determining the claim.^[36]
72. Difficulty may arise construing a claim that is made well after an alleged injury, where ancillary documents refer to subsequent events or incidents of the employment that made the alleged injury worse. In a case of that kind, it cannot be assumed that the alleged injury specified in the claim form is foregone on the basis of subsequent events; nor can it be assumed that the subsequent events are outside the scope of the claim made. While a practical eye may be required when construing the claim made, where a proper understanding of the condition claimed as an injury may be informed by subsequent medical evidence for example, temporal features of the claim, in terms of the incidents said to have caused the injury claimed or the onset of related symptoms or other effects, should be carefully considered and investigated when determining if the claim should be met. Reformulation of a claim by a claimant or by a decision maker should not be entertained without proper authority and supporting evidence, especially where the express terms of the claim are departed from, such that each party to the claim has a proper and fair opportunity to consider the reformulation.
73. On review, it is for the Tribunal to determine the proper scope and all of the elements that legitimately fall within the ambit of the claim made.^[37]

Scope of VYRP’s claim

74. As I have said, VYRP lodged a claim for compensation with her employer on 11 August 2016. She did so using an electronic lodgement facility (including an electronic form) found on Comcare’s website. She attached four documents to the claim form. These included a medical certificate of Dr Bailey dated 22 August 2016. Her employer completed Part 2 of the form and lodged it with Comcare on 5 September 2016.
75. On the information provided to Comcare in Part 2 of the claim form, it can be seen that the employer states it was first notified of VYRP’s claimed injury on 15 February 2016. At that time and subsequently to the present, no issue of failure to comply with the notice requirements under s 53 has been raised, although this may yet eventuate. The present materials do not establish that the employer is prejudiced by the giving of notice on that date, however this has not been the subject of detailed evidence and it has not properly been argued. So I will go no further on that point.
76. I was informed that the employer inserted this date because it was understood to be the date on which administrative processes commenced that were understood to have caused VYRP’s claimed injury. Whether or not that is correct, it is not material to the issue I must presently determine. I simply observe, as I have gone to some lengths to explain, that a claim for compensation should be construed broadly, generously and practically, according to its terms, taking account of ancillary materials.
77. I am reasonably satisfied that VYRP’s claim, comprising the claim form, the medical certificate of Dr Bailey and the other attached documents, substantially complies with the requirements of s 54.
78. Dr Bailey’s 22 August 2016 medical certificate is not set out formulaically, but is headed “Medical Certificate” and it has the form of a brief report. The certificate sets out a diagnosis and description of medical ailments VYRP was suffering from, namely a chronic pain condition, depression and anxiety. I am satisfied that the certified depression and anxiety are within the meaning of ‘impairment’ set out in s 4(1) of the SRC Act.
79. Dr Bailey explains in some detail the circumstances in which the ailments arose. When read with the claim form and the attached statement of VYRP it is abundantly clear that the onset of the ailments claimed as an injury allegedly occurred in the latter part of 2013. The medical materials provided to Comcare by VYRP and her employer, as well as the report Comcare obtained from Ms Daly before the claim was first determined, support this assessment, albeit with some improvement of symptoms from August 2014 and a worsening or recurrence of symptoms in 2016 prior to VYRP lodging the compensation claim. These are matters for evidence.
80. On any fair reading of the documents VYRP gave Comcare with her claim form and subsequently,^[38] it can clearly be understood that her compensation claim relates to the onset of a psychological ailment in the latter part of 2013 and to the apparent worsening or recurrence of that psychological condition in 2016 in the context of her employment at the time.
81. Consistent with this interpretation of her claim, Comcare’s own documents refer to the date of the claimed injury in 2013,^[39] and proceed to address the effects of events in 2016.
82. The information provided by her employer impliedly supports this construction of her claim, albeit that the employer formed the view that the ailment was the result of events in 2016. The employer specified that VYRP was performing the duties of her substantive position as an ASO6 Probation and Parole Officer at the time of the alleged injury.^[40] I note that she ceased performing these duties on 17 August 2014, albeit that her substantive position remained the same, when she assumed higher duties in a different role. It is not clear to me how events in the period from February to August in 2016 could have causally contributed to the onset of psychological symptoms in or about December 2013.
83. It will be clear by now that I am satisfied that VYRP’s claim for compensation relates to an alleged injury on or about 2 December 2013.
84. Insofar as the materials she gave Comcare with the claim form suggest that she may have suffered a worsening or recurrence of psychological symptoms in 2016 in circumstances related to her employment, properly construed, the claim may be taken to encompass those occurrences as a continuation of the claimed injury in 2013. It remains to be determined if the worsening or recurrence is consistent with an ‘aggravation’ for the purposes of the SRC Act and, if so, the extent to which, if at all, it may bear upon her entitlement to payment of compensation (which remains to be determined).

JURISDICTION

85. Having regard to s 25 of the AAT Act, the Tribunal’s jurisdiction in this matter is conferred by operation of s 64 of the SRC Act. It is enlivened by VYRP’s application for review of Comcare’s reconsideration decision under s 62 – that decision was made on 17 November 2016.^[41] By this decision, Comcare affirmed a primary determination under s 60 to reject VYRP’s compensation claim.^[42]
86. The extent of the Tribunal’s jurisdiction is to be determined having regard to the scope of VYRP’s compensation claim. As I have said, that claim relates to an alleged injury in the form of an ailment in 2013 that recurred or became worse in 2016.
87. I am satisfied that VYRP’s claim in respect of an alleged injury on or about 2 December 2013 was squarely before each decision maker, and that each decision maker considered the particular circumstances of her claim.
88. Insofar as Comcare argued that no decision had been made in respect of an alleged injury in December 2013, I do not agree.
89. It is very clear that both decision makers considered and expressly referred to the history VYRP supplied in respect of her claimed injury from 2013. Each decision maker expressly referred to the history given by VYRP, for example –

“You report ongoing workplace issues going back to 2013-2014, noting in particular perceived lack of support from your manager following a motor vehicle accident in October 2013 from which you suffered both physical and psychological problems.”^[43]
“I note you have claimed compensation for a psychological condition. You have stated that you first noticed the condition in 2013 and attributed it to workplace issues at that time, but you did not lodge your claim until 30 August 2016.”^[44]

90. The history was also set out in medical reports and other documents in Comcare’s possession before the primary determination was made, for example the 4 July 2016 medical report of Dr Ventura, a consultant psychiatrist,^[45] the 22 September 2016 report of Ms Daly and the 13 October 2016 report of Dr Cohen, another consultant psychiatrist.^[46]
91. There was sufficient material before each decision maker referring to the circumstances of the alleged injury in 2013 to enable a proper examination of medical and other issues pertaining to the claim as made. I am satisfied that each decision maker considered and evaluated those materials, which are expressly referred to in the reasons for each decision.
92. In the result, both decision makers decided to reject the claim because the claimed injury was significantly contributed to by events in 2016 were within the exclusionary proviso set out in s 5A(1), relating to reasonable administrative action undertaken in a reasonable manner in connection with her employment.
93. While each decision maker does not clearly express the reasons for rejecting the claimed injury in 2013, each stated that VYRP’s psychological symptoms in 2013 improved or resolved, but returned again in 2016. The absence of clearly expressed reasons does not mean that a decision was not made. I am satisfied that the reconsideration decision maker and the primary decision maker decided, impliedly at least, that VYRP did not sustain an ‘injury’ in the latter part of 2013.
94. It is not for me to comment upon the logic of these decisions, or to find fault with them.
95. The tiered decision making procedure the SRC Act provides has been engaged. The ‘reviewable decision’ made in respect of VYRP’s compensation claim deals with her claimed injury on or about 2 December 2013. The primary determination under reconsideration in that decision also dealt with this aspect of her claim.
96. From this it follows that the Tribunal has jurisdiction in respect of VYRP’s compensation claim for injury on or about 2 December 2013.
97. Under s 43 of the AAT Act, for the purposes of reviewing a decision, the Tribunal exercises all of the powers that were available to the person who made the decision under review.
98. Presently, therefore, the Tribunal exercises all of the powers available to the person who made the reconsideration decision. As that person had power to decide VYRP’s compensation claim for injury in December 2013, so too does the Tribunal.
99. Furthermore, insofar as VYRP’s claim extends to include a worsening or recurrence of the ailment she says began in 2013, and those matters were squarely decided by primary and reconsideration decision makers, the Tribunal has jurisdiction and power to determine whether these matters amount to an ‘aggravation’ or an ‘injury’ for the purposes of the SRC Act should it be necessary to do so.

DECISION

100. The Tribunal has jurisdiction to review Comcare’s 17 November 2016 reconsideration decision in respect of VYRP’s 11 August 2016 compensation claim for a mental health injury on or about 2 December 2013.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

........................[sgd]...............................................
Associate

Dated: 17 August 2018

Date(s) of hearing:	24-25 July 2018
Solicitor for the Applicant:	Slater & Gordon Lawyers
Solicitors for the Respondent:	Lehmann Snell Lawyers

---

^[1] T14.

^[2] T14 folio 49.

^[3] Ibid folio 50.

^[4] Ibid, folios 52-53.

^[5] T28.

^[6] T30.

^[7] See T26 and T27, for example.

^[8] T30 folio 84.

^[9] T35.

^[10] T42 folio 202.

^[11] T43 folio 207.

^[12] T50.

^[13] T50 folios 222-223.

^[14] Ibid, folio 224.

^[15] Re Bureau of Meteorology and Comcare and Anor [2015] AATA 267 at [44].

^[16] [2016] FCA 346.

^[17] Exhibit 1.

^[18] Exhibit 2.

^[19] Exhibit 3.

^[20] Exhibit 2.

^[21] Lees v Comcare [1999] FCA 753 at [18].

^[22] Szabo v Comcare [2012] FCAFC 129 at [33]-[34], per Emmett and Greenwood JJ.

^[23] Abrahams v Comcare [2016] FCA 1829 at [18].

^[24] [2011] AATA 802.

^[25] [2017] FCA 174.

^[26] Kennedy v Comcare [2014] FCA 82 at [45].

^[27] Comcare v Muir [2016] FCA 346 at [30].

^[28] Abrahams v Comcare [2006] FCA 1829 at [18].

^[29] Buhr v Comcare [2007] FCA 575 at [40]- [46].

^[30] [2014] FCA 82 – see [45]-[57].

^[31] [2011] AATA 802.

^[32] [2009] FCAFC 146.

^[33] [2012] FCAFC 129.

^[34] [2016] FCA 346.

^[35] Szabo v Comcare [2012] FCAFC per Emmett and Greenwood JJ at [34].

^[36] Smith v Comcare [2013] FCAFC per Buchanan J at [12] and [38]; see also Smith v Comcare [2015] FCAFC 24 at [57]- [60].

^[37] Comcare v Bromham [2017] FCA 174 at [25]; Kennedy v Comcare [2014] FCA 82 at 45; Re Durham and TNT Australia Pty Ltd [2011] AATA 802 at [51].

^[38] See T29, T35 and T45, for example.

^[39] See T26 folio 69 and T41 folios 210-202, for example.

^[40] T14 folios 52-53.

^[41] T50.

^[42] T42.

^[43] T42 folio 201.

^[44] T560 folio 222.

^[45] T10.

^[46] T41.