JUDGMENT NO. soo? 2 Oval scat Loe AT HW RD EMPLOYEES COMPENSATION - employee suffering cervical spondylosis - employee suffered injury in the course of his employment between 1983 and 1985 - employee injured in motor car accident occurring on his periodic journey in 1987 - employee recovers damages at common law in respect of injuries suffered in motor accident but claim for damages for cervical spondylosis made therein rejected by trial judge - subsequent medical opinion reveals that cervical spondylosis caused by motor accident - employee's claim for compensation determined by employer prior to new medical opinion - appeal by employee to Administrative Appeals Tribunal - claim based on injuries suffered in motor accident in 1987 on employee's periodic journey maintained before Tribunal notwithstanding the matter not dealt with by delegate who decided the claim for compensation - whether Tribunal had jurisdiction to permit employee to rely on new evidence and claim compensation in respect of the 1987 injury. Safety Rehabilitation and Compensation Act 1988, ss.4, 14, 54, 60, 61, 62, 63, 64, 69, 72 Administrative Appeals Tribunal Act 1975, s.43 Telstra rporation Limited v Stephen Charles B Ow lo, W 73 of 1994 CORAM: SHEPPARD, GUMMOW and LEE JJ PLACE: PERTH RECEIVED DATE: 21 OCTOBER 1994 ~7 NOV 1994 FEDERAL COURT OF AUSTRALIA . PRINCIPAL / REGISTRY RTS IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 73 of 1994 GENERAL DIVISION ) DGE OF DE. R FA I BETWEEN: TELSTRA CORPORATION LIMITED - Applicant AND: STEPHEN CHARLES BARROW - Respondent M E F_ORDER; CORAM: SHEPPARD, GUMMOW AND LEE JJ PLACE: PERTH DATE: 21 OCTOBER 1994 ERS THAT : - 1. The appeal be dismissed. 2. The respondent pay to the applicant his costs of the appeal. NOTE: Settlement and entry of orders is dealt with in Order . 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 73 of 1994 GENERAL DIVISION ) M D' THE FEDE I TWEEN: TELSTRA CORPORATION LIMITED - Applicant AND: STEPHEN CHARLES BARROW - Respondent CORAM: SHEPPARD, GUMMOW AND LEE JJ PLACE: PERTH DATE: 21 OCTOBER 1994 RE. NS FOR DGMENT THE COURT: This is an appeal from a judgment of a Judge of this Court (Carr J). Subject to remitting a question of costs to the Administrative Appeals Tribunal, his Honour dismissed an appeal brought by Telstra against a decision of the Tribunal in a matter relating to the respondent's (the respondent was the applicant before the Tribunal) entitlement to compensation under the Safety Rehabilitation and Compensation Act 1988 ("the Act"). Originally, a number of grounds of appeal were relied upon before us. Eventually, only three were pressed. These together raised the single question whether the Tribunal had jurisdiction to make the determination which it did. That determination was that Telstra was liable to pay compensation to the respondent for aggravation of cervical spondylosis caused by injuries deemed to have occurred on 28 March 1983 and 21 February 1987. It is the reference to injuries deemed to have occurred on 21 February 1987 to which Telstra objects. It contends that the Tribunal had no jurisdiction to take account of any injuries suffered by the respondent on that day. The facts of the matter are set out comprehensively in his Honour's judgment. What follows comes substantially from his Honour's reasons. Between 1983 and 1985, the respondent was employed by Telstra in the operation of pneumatic drills and rock cutters. It was common ground that during that period he sustained an injury being aggravation of cervical spondylosis which arose out of and in the course of that employment although at that time the respondent did not make any claim for compensation. Thereafter, Telstra employed the respondent as a linesman which involved lighter duties. On 21 February 1987, whilst riding his motor cycle home from work in Kalgoorlie, the respondent was involved in a motor vehicle accident as a result of which he was thrown over the bonnet of another vehicle for a distance of some 25 metres. In October 1988 he began to notice for the first time the onset of neck pain. On 6 March 1990, he sued the driver of the motor vehicle for damages. Liability was not denied and the matter proceeded as an assessment of damages. In those proceedings the respondent gave evidence that he suffered from severe backache and very severe headache and neck ache although in the statement of claim the injuries sustained in the accident were not described in terms of cervical neck injuries but in terms of lumbar back injuries. His Honour, O'Dea DCJ, accepted expert medical evidence, including the evidence of the late Sir George Bedbrook, a well known orthopaedic surgeon, that whilst the injury to the fourth and fifth lumbar segments in the lumbar column was accident caused, the neck pain was not in any way connected with the motor vehicle accident. When deciding what discount to apply in respect of loss of future earning capacity, O'Dea DCJ noted the respondent's pre-existing injury to the cervical spine and said: "I have reached the conclusion that the discount figure should really be higher since the known injury to the cervical spine must be taken into consideration when making the assessment since this could well have affected the plaintiff's ability to undertake overtime work even with a sympathetic employer." There was an appeal to the Supreme Court of Western Australia from O'Dea DCJ's decision. The Supreme Court increased the amount of the judgment recovered by the respondent. We have not been referred to any part of the Supreme Court judgment and have assumed that nothing said in that judgment affects the problem which we now have. O'Dea DCJ gave judgment on 8 May 1991. Before that occurred, on 25 January 1991, the respondent lodged a claim with Telstra for compensation under the Act. He described his injury as being "cervical spondylosis, cervical spine C3 to C7", gave the date of injury as being from March 1983 to May 1985 and stated the cause of the injury as being pneumatic rock drilling while at Midland Lineyard and rock cutter operator while at Kalamunda Lineyard. On 9 July 1991, a delegate of Telstra accepted liability on its behalf to the respondent for compensation in respect of aggravation only of cervical spondylosis and stated that the date of the accident was deemed to be 28 March 1983. On 22 July 1991, the respondent requested reconsideration of that decision. It was his contention that the cervical spondylosis was caused by the work described above and was not a pre- existing condition which had only been aggravated by that work. On 27 July 1992, following the reconsideration, another delegate of Telstra affirmed the decision to accept liability for aggravation to cervical spondylosis only. On 11 #£4xSeptember 1992, the respondent lodged an application for review by the Tribunal. Some six weeks prior to the hearing in the Tribunal, he was examined by Mr Desmond Williams, an orthopaedic surgeon retained by Telstra. This resulted in an important and, as his Honour said, almost dramatic revelation. In 1988 Mr Williams had reviewed medical reports and X-rays concerning the respondent. However, on this later occasion, Mr Williams called for a scan which disclosed a substantial posterior disc protrusion at the level of C6/7. Mr Williams' opinion was that this prolapsed disc was most probably caused by the motor vehicle accident and he was certain that it was not caused by the rock cutting machine. None of the other specialists, who had examined and reported upon the respondent over the years, had been aware of the prolapsed disc as such a condition apparently does not normally show up on plain X-rays. On 16 and 17 August 1992, the Tribunal heard the application for review which included written and oral evidence from Mr Williams. On 11 September 1992, the Tribunal set aside the delegate's decision and substituted the decision to which we have referred. The statutory framework which concerns us is to be found at a number of sections of the Act and in s.43 of the Administrative Appeals Tribunal Act 1975. Section 14 of the Act, so far as it is relevant, provides that, subject to Part II of the Act in which s.14 appears, Comcare - in this case Telstra - is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results inter alia in incapacity for work or impairment. The expressions "injury" and "impairment" are defined in s.4 of the Act. It was not claimed that the respondent suffered an impairment within the meaning of that expression in the Act. Section 54 of the Act provides that compensation is not payable to a person under the Act unless a claim for compensation is made by or on behalf of the person under the section. Subsection 54(5) provides that strict compliance with an approved form referred to in subsec. (2) of the section is not required and substantial compliance is sufficient. A claim under subsec. (2) is made by giving the relevant authority, in this case Telstra, a written claim in accordance with the form approved by Comcare for the purposes of the paragraph, and, except where the claim is for compensation under ss. 16 or 17, a certificate by a legally qualified medical practitioner in accordance with the form provided by Comcare. Section 61, which appears in Part VI of the Act, which is entitled: "Reconsideration and Review of Determinations", provides that as soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out the terms of the determination, the reasons therefor and a statement to the effect that the claimant, if dissatisfied, may request a reconsideration of the determination under subsec. 62(2). "Determination" is defined in 8.60. Section 62 provides for the reconsideration of determinations. It says that a determining authority may, on its own motion, reconsider a determination made by it or cause such a determination to be reconsidered by a person to whom its power under the section is delegated. It has, of course, power to reconsider by reason of the provisions of subsec. 61(1) which has been referred to. Subsection 62(5) provides that, where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such a manner as the person thinks fit. Section 63 provides that as soon as practicable after a person makes a reviewable decision, the person shall cause to be served on the claimant a notice in writing setting out the terms of the decision, the reasons for the decision and a statement to the effect that, subject to the Administrative Appeals Tribunal Act, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates. "Reviewable decision" is defined in s.60 to mean, relevantly, a decision under s.62 of the Act. Paragraph 64(1)(a) of the act provides that application to the Tribunal for review of a reviewable decision may be made by the claimant, in this case, the respondent to this appeal. Reference should also be made to the provisions of paras 69(a) and 72(a) of the Act. Section 69 provides that, subject to the Act, Comcare and thus Telstra, have a number of functions in addition to other functions under the Act. These include (para. 69(a)) making determinations accurately and quickly in relation to claims and requests made to Comcare under the Act. Paragraph 72(a) provides that, in performing the function referred to in para. 69(a), Comcare (and thus Telstra) is to be guided by equity, good conscience and the substantial merits of the case without regard to technicalities. In passing, mention should be made of s.48, not because it has any relevance to the matters in question here, but because it was a section which was relied upon before the Tribunal and before his Honour. No ground of appeal concerning it was pressed before us. Section 48 applies where an employee recovers damages in respect of an injury to the employee being an injury in respect of which compensation is payable under the Act. Subsection 48(4) provides that compensation is not payable under the Act to the employee in respect of the injury, after the date on which the damages were recovered by the employee. Reference may also be made to subsec. 48(5). It remains to mention s.43 of the Administrative Appeals Tribunal Act. Subsection 43(1) is as follows: " 43 (1) 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) xvemitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal." As emerges from what his Honour said, the application for compensation was restricted to incidents which occurred prior to the motor accident in 1987. In plain terms, it says that the injury or condition is cervical spondylosis at levels C3 to C7. The date is said to be from March 1983 to March 1985. No mention is made of the motor accident or any date in 1987. The same emerges from certain particulars which were provided and to which it is unnecessary to refer in detail. Eventually, the matter came before Mr A.J. Holmes who is described as Delegate (Reconsiderations) Australian and Overseas Telecommunications Corporation which was the predecessor of Telstra. His conclusion was based on the opinion given by the late Sir George Bedbrook. In the absence of any further medical evidence to support the respondent's claim for compensation in respect to "whole of body vibration", he concluded that he should affirm the decision of the delegate that aggravation to cervical spondylitis (sic) only be accepted. In the course of his reasons, Mr Holmes referred to the opinion of Sir George Bedbrook, in which amongst other things it is said: "I would think that the degenerative processes have already started to overtake the effects of the original injury for that is usual in such cases as this. It may be that it is the superimposition of the degenerative processes which have actually given him most of the pain." There was no mention of the motor accident in 1987 and no consideration of it by the delegate who reconsidered the matter simply because the matter was not at that stage raised. So much is clear from the statement furnished to the Tribunal pursuant to s.37 of the Administrative Appeals Tribunal Act which said: "A decision was issued finding the respondent was only entitled to compensation payments with respect to an aggravation of cervical spondylosis, date of injury deemed 28 March 1983. The decision to accept liability for an aggravation only of it by the Telecom delegate was later affirmed by an independent Telecom delegate on 27 July 1992." The motor accident first emerged in a statement of facts and contentions put on by the respondent when the matter reached the Tribunal. The statement was filed pursuant to the Tribunal's usual direction. Amongst other things, the statement said: "The applicant {that is to say the respondent here} has been diagnosed to be suffering from a substantial posterior disc protrusion at C6/7. This has been diagnosed as a cause of the neck symptoms of which the applicant complains. The applicant contends that the disc protrusion described was caused to him by the motor vehicle accident on 21 February 1987." Telstra in its statement dealt with the matter also but it said that it contended that the diagnosed injury sustained by the respondent was not related to his use of the machines referred to but may have been caused by the motor vehicle accident referred to in para. 6 of Telstra's statement of facts and contentions. Accordingly, so it was said, it was not liable to compensate the respondent for his injury. The question of jurisdiction was dealt with by the Tribunal in the course of the case. No considered reasons for its conclusion that it had jurisdiction were given. Amongst other things, it said the claim was related to a work caused worker's compensation claim. It continued: "It was related to a work caused cervical spine problem however you choose to detail it. The cause postulated at that time was some sort of whole body vibration caused from his work on a rock crusher, at the hearing today on the basis of more detailed specialist evidence, we're dealing with the same work caused problem but the cause postulated now is a motor vehicle accident in 1987 on the way home from work." His Honour dealt with the matter as follows: "It must be acknowledged that Mr Barrow's claim [i.e. the respondent's claim] to compensation was based on an injury described as cervical spondylosis caused by carrying out the activities described above at Midland and Kalamunda between March 1983 and May 1985. However, in deciding whether Mr Barrow was entitled to compensation, the initial decision-maker was not confined to the claim or the materials put forward by Mr Barrow. He would have been entitled to require Mr Barrow to undergo a medical examination or to provide further information or copies of relevant documents: see ss.57 and 58 of the Act. Furthermore, the decision- maker in performing that function is required to 'be guided by equity, good conscience and_ the substantial merits of the case, without regard to technicalities' and to 'make determinations accurately and quickly': see ss.72(a) and 69(a) respectively. If the decision-maker had at that time the benefit of the CT Scan and Mr Williams' opinion as to the aggravation of Mr _ Barrow's cervical spondylosis the cause of that aggravation and thus the cause of his various symptoms, in my opinion he would have been entitled and probably obliged to make the determination which was eventually made by the Tribunal." We pause here to say that that last statement was raised with counsel for Telstra before us. He was asked whether he conceded it to be correct or not. He expressly conceded it to be correct. That is a matter to which we shall return in a moment. His Honour continued: "As Mr Marsh, counsel for Mr Barrow, submitted (and I agree) it would not be in accordance with the provisions referred to above for the decision-maker to refuse to make such a determination because Mr Barrow had not referred to the disc protrusion in his claim form (particularly as neither he nor any of the physicians who had examined him were aware of it) and to require him to submit a further claim form. In my view, the same would apply at the reconsideration stage and when the matter came before the Tribunal." His Honour then referred to the decision of this Court in Hospital Benefit Fund of Western Australia v Minister for Health (1992) 111 ALR Ll at 11, and to what the Tribunal had said in the passage from its reasons to which we have referred. His Honour concluded: "In my view, this was not an error of law on the Tribunal's part, it was addressing the same question as was before the primary decision-maker and the reconsideration decision-maker. The essential question for administrative decision was whether, on the facts, Mr Barrow was entitled to compensation under the Act?" We are in respectful agreement with what Carr J has said in the passages which have been read. As mentioned, the passage expressly referred to in the course of our account of his Honour's reasons was not the subject of challenge before us. We consider that the concecsicn which counsel for the appellant made was rightly made. The respondent was seeking compensation for an injury caused him in the course of his employment or, as it turned out before the Tribunal, on his periodic journey. If contrary to the fact, the delegate had been aware of the new medical evidence at the time he made his decision, it would seem to have been an overtechnical and pointless exercise to have compelled the applicant in respect of the same injury to present a new claim for compensation. That is particularly so bearing in mind that the statute is an employees' compensation statute and contains the provisions in paras 69(a) and 72(a) to which his Honour referred. Section 43 of the Administrative Appeals Tribunal Act makes it clear that, 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. It is to make a decision in writing and that decision may set aside the decision under review and make a decision in substitution for the decision so set aside. That is what it did in the present case. It had the powers of the delegate and it acted accordingly. It was empowered to make a determination in substitution for the decision appealed from. We are satisfied that in those circumstances it had jurisdiction to take the course which it did. We emphasise that the only matter that we have considered is jurisdiction, it being the only matter argued. We have not dealt with the question of the applicability of s.48 of the Act to the circumstances of the case nor with any question concerning the proper exercise of the Tribunal's discretion. We mention these matters only to indicate that we have no view about them. They were not before us and we have not considered them. In the result the appeal is dismissed with costs. I certify that this and the 14 preceding pages are a true copy of the reasons for judgment herein of the Court. Associate Wve, 21 Outdeey 1994- Dated APPEARANCES Counsel for the Appellant: Solicitors for the Appellant: Counsel for the Respondent: Solicitors for the Respondent: Date of Hearing: Place of Hearing: P.J. Hannan Mony de Kerloy P.J. Marsh Stoddart & Co. 20 October 1994 Perth ~~.