Case: Abrahams v Comcare (2007) 93 ALD 147
Outcome: applied
The Tribunal thought the matter fell squarely within "the principles set out by the Federal Court in the Abrahams decision." This was a reference to a decision in Abrahams v Comcare (2007) 93 ALD 147. In Abrahams , I said, at [18]: 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. 15 Quite apart from the absence of a bright dividing line, this case is further complicated by reason of the following further events. As indicated, Dr Kose has had an accepted claim for psychological incapacity. Comcare suggests that the exact condition recognised is "an adjustment reaction with mixed emotional features"; a claim originally accepted in 2001. On 8 May 2006, no doubt upon legal advice, Dr Kose lodged a further claim for compensation for "somatoform pain disorder/regional pain disorder with anxiety and depression," a claim denied by Comcare both initially and upon reconsideration. On 30 May 2007, Dr Kose lodged an application for review by the Tribunal of that denial the operative date of which seems to be 10 May 2007, the date of the internal review decision. It appears that Dr Kose's legal advisors have arranged that her claim in respect of that 2007 decision will be heard at the same time as the subject claim. 16 Counsel for Comcare was unable to suggest any practical result of significance to his client from the present litigation before me, given those last-mentioned events. Comcare, however, sees the need for a minimum degree of orderliness in the processing of claims and points out here that the subject claim, until the very heel of the hunt, before Comcare's reconsideration of the matter, appeared (1) to be confined to the lower portions of the right upper limb; (2) to be organically based and; (3) principally to be about treatment given for a physically-based condition, and operative treatment proposed, for such a condition. Comcare further points out that, although there were references to possible pain elsewhere and possible psychosomatic explanations for it, Dr Kose, an educated applicant, seems to have been at pains not to rely on psychosomatic factors in relation to the instant claim. 17 It appears that nobody explored in detail, before the Tribunal, though the matter was mentioned before me, the circumstances in which Dr Kose was apparently talked out of seeking to have her claims in respect of the ganglion assessed as falling within Comcare's liability for her accepted psychosomatic injury. 18 For Dr Kose, it is said that there is nothing more common than that medical diagnoses develop with time; that pain in her right upper limb, including up to the shoulder and even into the neck, was notified to Comcare and the prospect of a psychological explanation for a person with an accepted work-related psychological disability was such as to put Comcare on ample notice of the need to assess whether the claimed injury could not have, in whole or in part, been explained by work-related psychological factors. 19 I refer to what I said in Abrahams 93 ALD at [18] and set out in para 14 above, in particular point number 5. 20 In my opinion, there is something to be said in support of both points of view as to which side of the dim dividing line this case would fall on. However, as there is no practical result of significance that could occur in the instant case, given the events which have otherwise happened, I do not think it helpful to embark on the matter, and I think that indeed, in the discretion of the Court, I should refrain from giving the relief sought, even if Comcare would otherwise be entitled to it. 21 I make clear, for the benefit of the Tribunal, that the result is that the Tribunal should proceed on the basis that the decision that it made is correct, even though I have not ruled that that is so. In any case the Tribunal will have to decide the substance of the matter by reason of the second application for review now before it (and referred to in para 15). If, at the end of the day, once the Tribunal has dealt with the substance of the matter, Comcare should take the position that there would be some practical injustice to it as a result of that jurisdictional decision of the Tribunal, Comcare can, of course, exercise such rights it may have to "appeal" to this Court on a question of law involving that jurisdictional matter. 22 I appreciate that Comcare does not seek any order for costs against Dr Kose, nor has it prolonged this matter. However, as it has failed, costs should follow the event. 23 The application will be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 1 August 2007 Counsel for the Applicant: Mr B Dub&eacute; Solicitor for the Applicant: DLA Phillips Fox Counsel for the Second Respondent: Mr A Anforth Solicitor for the Second Respondent: Elrington Boardman Allport Date of Hearing: 24 July 2007 Date of Judgment: 24 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1132.html