Case: Lees v Comcare (1999) 56 ALD 84
Outcome: considered
The applicant submitted that the Tribunal wrongly assumed for itself power to exercise jurisdiction under s 62(1) of the SRC Act reconsideration of a determination by a determining authority on its own motion and purported to exercise that jurisdiction. In support of this submission, the applicant pointed to [43] and [48] of the Tribunal's reasons in particular, the Tribunal's observation at [43] that it had been submitted by the respondent '... that on the basis of the evidence, the Tribunal could find that section 14 liability ought never to have been accepted in relation to Mr Riddle ...' and its observations at [48]: 'The Tribunal has noted the submissions of the parties, and relies on the powers regarding reconsideration of own motion accorded to the Commonwealth pursuant to section 62(1) of the Act, and the jurisdiction of the Tribunal ( Lees [v Comcare (1999) 56 ALD 84] (supra)).' 15 I cannot accept, by reference to these passages from the Tribunal's reasons, that it was purporting to exercise jurisdiction under s 62(1). Counsel for the applicant relied on the Tribunal's findings at [94] and [95] of its reasons that it '... was satisfied in relation to Mr Riddle's back pain, that there was only a temporal, and no causal connection with the employment ...' and that it '... was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003' for a submission that this involved a consideration of s 14 liability, presumably made under s 62(1). Likewise, he relied on the Tribunal's finding at [101] of its reasons that it '... was satisfied ... that Mr Riddle had not suffered a disc lesion or other injury or aggravation on the way home from work on 19 February 2003, and that his impairment was as a result of the natural progression of his degenerative lumbar spine, and was not attributable to the nature and conditions of his employment' for a submission that this involved a consideration of s 14 liability, again presumably made under s 62(1). 16 I cannot agree. The Tribunal made it clear at [9] of its reasons that liability pursuant to s 14(1) of the SRC Act was not in question, but even if it was, the Tribunal's reasons do not provide a sufficient basis for a presumption that such consideration was made under s 62(1). 26 In Lees v Comcare (1999) 56 ALD 84, the Full Court said at [35]: '... a determination under s 14 ... will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was "an employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.' 27 These observations were part of an overall review of the scheme of the SRC Act and the place of a determination under s 14 in that scheme. But they were not critical to the decision in either appeal that was before the Court and therefore do not think that, persuasive as they may be, having been embraced in subsequent decisions of single judges of the Court, they are binding upon me. In any event, my departure is small, even if important. I do not think that a determination under s 14 necessarily involves the final finding that the injury 'has resulted in' death, incapacity for work or impairment. It may, but it may not. Such a finding, it seems to me, is ultimately a matter for determination under ss 17, 19 or 24, not s 14. The wording of s 14 is '... if the injury results in death, incapacity for work or impairment' . Thus, a determination under s 14 may determine that Comcare (or a body in a similar position such as the respondent) is liable to pay compensation in respect of an injury suffered by an employee before it results in death, incapacity for work or impairment, on the basis that it will only be so liable 'if the injury results' in death, incapacity for work or impairment. And that is what seems to have occurred in this case. The s 14 determination involved no finding that Mr Riddle's injury had resulted in death, incapacity for work or impairment. The Statement of Reasons merely said: '5. In order for compensation benefits to be payable, I must be satisfied on the balance of probabilities that the claimant sustained an injury, namely aggravation of pre-existing spinal canal stenosis at L4/5 , which has arisen out of or in the course of his employment with Telstra. I have relied on the specialist opinion of Dr Nall in making a decision and that there is no evidence presently available to indicate that the injury did not arise out of or in the course of the claimant's employment.' The s 14 determination undoubtedly involved findings on the first four matters referred to in the extract from the Full Court's judgment in [26], but not the final matter. 28 It follows, in my view, that the Tribunal's findings at [94] and [95] of its reasons that, in relation to Mr Riddle's back pain, there was only a temporal, and no causal connection with the employment; and that having reviewed the medical evidence, the Tribunal was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003 were not inconsistent with any findings underpinning the s 14 determination because none of those findings went that far. 29 It also follows, in my view, that the Tribunal's second finding at [101] of its reasons that Mr Riddle's impairment was as a result of natural progression of his degenerative lumbar spine and was not attributable to the nature and conditions of his employment was not inconsistent with any findings underpinning the s 14 determination because none of those findings went that far. 30 On the other hand, the first finding at [101] of the Tribunal's reasons that Mr Riddle had not suffered a disc lesion, or other injury or aggravation on the way home from work on 19 February 2003 is inconsistent with a finding underpinning the s 14 determination that Mr Riddle had suffered an injury on that day, namely, aggravation of pre-existing spinal canal stenosis at L4/5 , which had arisen out of or in the course of his employment with Telstra. 36 The same question of law was recently considered by Moore J in Hannaford , supra, which I understand is presently on appeal to the Full Court. At [43] his Honour said: 'The Full Court indicated at [39] of its judgment [in Lees ] ... that the powers and discretions exercisable by the Tribunal in reviewing a reviewable decision are limited to the powers that could have been exercised by the person who had reconsidered the determination or determinations under s 62 and who made the reviewable decision. It is not a large step to say, and it would be consistent with the approach taken by the Full Court, that the power to make a finding about one of the five matters arising under s 14, inconsistent with findings earlier made in a determination under that section, exists only when the decision maker is reconsidering that determination and not otherwise. If that is correct then the Tribunal only has power to make a finding that a claimant did or did not suffer from a disease or injury and, if so, the disease or injury had the requisite connection with the employment when the reviewable decision entailed a reconsideration of the determination made under s 14. In my opinion, this is the way the Act (together with the AAT Act) was intended to operate having regard to the Full Court's construction of various provisions of the Act.'