Case: Lees v Comcare (1999) 56 ALD 84
Outcome: considered
In aid of this submission, Mr Bryant pointed to observations made by the Full Court in Lees v Comcare (1999) 56 ALD 84 , at [39] to the effect that the powers and discretions conferred on the Tribunal by s 43 of the AAT Act are conferred for the purpose of reviewing the decision under review and are not powers able to be exercised at large. Reference was also made to observation of the Full Court of the High court in Canute v Comcare [2006] HCA 47 ; (2006) 226 CLR 535 , at 542, [14], taken up by Greenwood J in Parker v Military Rehabilitation and Compensation Commission (2007) 96 ALD 624 , at [52], to the effect that the Approved Guide fell for application through the "prism" of the injury which the claimant had suffered resulting in permanent impairment. Reliance was also placed upon the proposition, flowing from the rejection of a submission to the contrary by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 , at 96, that s 24(5) of the SRC Act was not to be construed in a way which admitted of an assessment of the degree of permanent impairment proportionate to the causal contribution of the incident giving rise to the compensation claim. 31 In Telstra Corporation Limited v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 , after an exhaustive review of earlier authority, Conti J, with the agreement of Heerey and Dowsett JJ, reached (at 273-274, [57] - [59]) the following conclusions: 57 In my opinion, it should be concluded, upon the correct construction of the SRC Act , and in particular of the provisions thereof upon which I have focused attention in these reasons, 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 (here of course Telstra) 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. 58 The first instance decisions of this Court in Power, Hill and Riddle, which I have reviewed, each reflect in my opinion correctly the operation of the statutory scheme, and in particular its provision for ongoing adjustment designed to accommodate changing circumstances inclusive for instance (as here involved) of changing medical diagnosis. The approach to statutory construction and operation evident in those first instance authorities is not at odds with the approach to statutory construction and operation adopted by the Full Court in Lees subsequently to Power and Hill and prior to Riddle . 59 I would therefore conclude , contrary to the decision of the primary judge, that the AAT below was duly empowered , upon the true construction of the SRC Act and in the events which happened: (i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford's claim for compensation; and (ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act , and/or under ss 21 and 27 of the SRC Act ; and (iii) to do so in the circumstances further where Telstra's s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT. In short, it matters not, upon the true construction of the SRC Act , that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford's claim originally made on 1 May 2002 had been accepted. (Emphasis added; citations for cases referred to in the passage quoted omitted) 32 These conclusions as to the operation of the AAT Act, in the context of the jurisdiction conferred upon the Tribunal by s 64 of the SRC Act were reached after, materially, consideration of what had been said on the subject by an earlier Full Court in Lees v Comcare (1996) 29 AAR 350. They bind me as much as they bound the Tribunal. Given that, there is no utility in a rehearsal of earlier authority. Rather, the task is to ascertain how those conclusions operate on the facts of the present case. 33 Here, as it was entitled to do in its administration of the SRC Act , the Commission chose to bifurcate the process of making of determinations in response to a claim made by Mr Bryant, via his solicitors, on 15 July 2005 to extend the Commission's existing liability to pay compensation under the SRC Act so as to include a headache condition and to reassess his lump sum impairment compensation entitlement accordingly. Initially, on 25 January 2006, the Commission determined that Mr Bryant had suffered the contraction of a disease to which his military service had contributed to a material degree. The disease concerned was identified as "Muscle-tension type headache". It was determined to be a "stand-alone condition", i.e. one unrelated to Mr Bryant's earlier accepted compensable injury to his neck. The disease identified in this determination was an "injury" for the purposes of the SRC Act .