Abrahams v Comcare [2006] FCA 1829

FEDERAL COURT OF AUSTRALIA

Abrahams v Comcare [2006] FCA 1829

ADMINISTRATIVE LAW – judicial review – grounds of review – whether Administrative Appeals Tribunal has jurisdiction to consider reformulated claim as to employment injury – whether proposed reformulation of claim vexatious Held: (1) The Administrative Appeals Tribunal had jurisdiction to consider a reformulated claim. (2) The request to reformulate the claim was not so devoid of merit as to be vexatious. Frosch v Comcare [2004] FCA 1642 followed GAVIN ABRAHAMS v COMCARE ACD 24 OF 2006

MADGWICK J

6 DECEMBER 2006

CANBERRA IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 24 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A SENIOR MEMBER

BETWEEN: GAVIN ABRAHAMS

Applicant

AND: COMCARE

Respondent

JUDGE: MADGWICK J

DATE OF ORDER: 6 DECEMBER 2006

WHERE MADE: CANBERRA

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The matter be remitted to the Administrative Appeals Tribunal for further consideration according to law. 3. The respondent is to pay the applicant's costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 24 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A SENIOR MEMBER

BETWEEN: GAVIN ABRAHAMS

Applicant

AND: COMCARE

Respondent

JUDGE: MADGWICK J

DATE: 6 DECEMBER 2006

PLACE: CANBERRA

REASONS FOR JUDGMENT

his honour: 1 This is an unfortunate case. 2 The applicant who appeals on questions of law from the decision of the Administrative Appeals Tribunal ('the Tribunal') is a Commonwealth public servant who has worked for the Commonwealth since 1994, apparently in a clerical capacity. He was first employed in what was the Commonwealth Employment Service and then subsequently with its successor known as Centrelink from 1998. At some point in 2001, said by the Tribunal to have been January 2001, he first experienced pain in his right arm, which he associated with his keyboard duties at work. On 5 June 2001 he lodged a claim with the respondent under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ('the Act'), for compensation in respect of his right arm condition, which he described as: 'overuse injury affecting the right arm'. 3 Comcare accepted liability for particular named conditions of the right upper arm, shoulder, elbow and forearm, as well as of the neck. However Comcare decided that as of 19 February 2003 the applicant no longer suffered from compensable affects of his accepted injury. 4 The applicant was diagnosed in mid-2003 as having right carpal tunnel syndrome. The medical reports contain varying histories of when he first had pain in the region of his right wrist and hand. However, in the claim for compensation furnished for the purposes of s 53 of the Act, and using a form prepared by Centrelink, the applicant gave the following information: '… Injury/Illness Information. 13. A Medical Certificate must be attached before your claim for compensation can be considered What is the precise diagnosis as stated on your medical certificate? Right Carpal Tunnel Syndrome Note The medical certificate: * must be an original from a legal qualified medical practitioner (a General Practitioner or Medical Specialist, unless claiming solely for medical expenses from chiropractic or osteopathic treatment, in which case a medical certificate from the treating chiropractor or osteopath will be sufficient); * must state a precise diagnosis (certificates containing words such as "medical condition", "back pain", "work related stress" will not be accepted); *must state the relationship between the injury/illness and your employment; must certify any claimed periods of incapacity to work. 14. When did your injury first happen or when did you first notice the illness? Date: 01.06.2002 Time: 08.30 15(a) What date did you first have medical treatment for your injury/illness? 06.06.2003 (b) What is the name of the doctor, medical practice or hospital who first treated your for your injury/illness? Dr A Viketos 16(a) Did your Doctor refer you for any diagnostic tests such as X rays pathology, ECG's; evaluation by a psychiatrist or psychologist; or referral to a specialist? Yes 16(b) If yes, provide the following: Nature of Referral Ultrasound of the Right Hand Name and Address of Doctor Canberra Imaging Calvary Hospital Bruce ACT 17(a) In your own words, describe the injury or illness as fully as you can (there is no need to use medical terminology) Right Carpal Tunnel Syndrome 17(b) What body part is affected (eg lower back) Right Hand and wrist 17(c) In your own words describe how this injury now affects you (eg: I'm unable to drive a motor vehicle", "I cannot sit for longer than 15 mins") Causes pain and swelling in right hand and wrist when typing, is often inflamed around the hand without doing anything. Painful to lift/move objects with the right hand. Decrease in strength in hand. 18(a) Have you ever had a similar injury of illness before, work related or otherwise (even if you think it is unrelated to this injury or illness)? Give approximate dates. No 18(b) What is the name of the doctor, medical practice or hospital who treated you at the time? 19(a) Have you claimed for the injury(ies) or illness(es) described in questions 17 & 18? What was the approximate date(s) of the claim(s) 19(b) Who was the claim with? 19(c) Who were you working for at the time? 20. The current injury/illness happened: Usual Workplace 21. What is the address or location where the injury/illness occurred? Centrelink Belconnen Level 1 Northpoint Plaza Belconnen ACT 2617 22. What is the exact location, within the above address, where the injury/illness occurred? (eg: my desk, machine shop, fire stairs) Family Assistance Office … 24. Describe in detail what events contributed to your injury/illness. If there was a sequence of events, we need to know: * what started the sequence of events * the sequence of events * the final result Keyboard work, in particular use of numerical keyboard 25. Fully describe any equipment or machinery involved in the injury/illness. Use of keyboard'. (Solecisms preserved.) 5 That claim was rejected by Comcare, and again internally by Comcare by a review officer. In relation to the second decision, the applicant sought administrative review by the Tribunal of the claim. The Tribunal said: 'The following features of this claim are important. · the part of the body claimed to have been affected was "Right Hand and wrist"; · the injury was said to have been sustained by "keyboard work, in particular use of numerical keyboard"; · the injury was said to have first happened or was first noticed on 1 June 2002; · the effect of the injury was said to be that it caused "pain and swelling in the right hand and wrist when typing, is often inflamed around the hand without doing anything. Painful to lift/move objects with the right hand. Decrease in strength in hand"; · Mr Abrahams answered "no" to the question "have you ever had a similar injury or illness before, work related or otherwise (even if you think it is unrelated to this injury or illness)?"; and · both medical reports in support of the application gave the diagnosis of carpal tunnel syndrome.' 6 After the applicant approached the Tribunal, and as his case was further investigated for the purposes of the Tribunal hearing, more medical information came into his and his legal advisors' hands. In consequence, the legal advisors formed the view that it was no longer possible to sustain a diagnosis of carpal tunnel syndrome. Indeed, at least one of the doctors who had propounded that viewpoint apparently had resiled from it in the light of later medical information. 7 The effect of the medical evidence available to the applicant, however, was that the applicant appeared truthfully and genuinely to be suffering from pain in the right upper limb. This had included pain in the wrist and the hand region, and a range of diagnoses by different doctors was proffered. It seems fair to summarise them as indicating that the applicant either had some physical injury, of an aetiology difficult to establish, or had genuine psychosomatic pain arising from an initial physical injury with pain therefrom, and a long course of medical treatment and investigation, some of it involving mildly invasive treatment such as steroid injections. 8 Counsel for the applicant candidly told the Tribunal at the outset that the case would not be pressed on the basis of carpal tunnel syndrome, but would be pressed on the basis that the applicant's wrist complaints were but part of, and subsumed in, broader, ongoing and varying difficulties over virtually the entirety of his right upper limb, the right shoulder and neck, and even headaches. 9 The Tribunal Member had the initial view that orderly processes of administration would be subverted if he proceeded to hear the claim thus recast. He felt that he should take the view that, if the applicant were now saying that the wrist condition claimed for could be accounted for by the occurrence, or progression, or exacerbation of the original accepted right upper arm and shoulder injury, then the appropriate course was to seek a review of the decision which had resolved that, from February 2003, Comcare was no longer liable. 10 The Tribunal Member considered that this matter went to the Tribunal's jurisdiction. He said in his reasons for decision: '… I decided that the Tribunal did not have jurisdiction to deal with the issue now proposed on behalf of Mr Abrahams. I now provide the reasons for my decision.'