The SRC Report: Ellison V Comcare – Examining the Jurisdiction of the Administrative Appeals Tribunal for Claims Managers

Welcome to McInnes Wilson's SRC Report. My name is Abe Ghaleb, and I'm joined today by my associate, Sama Khan.

In this episode, we'll be discussing:

• The scope of what decision-makers must consider when determining Comcare claims; and
• The jurisdiction of the Administrative Appeals Tribunal when reviewing such decisions in the Tribunal.

This will be done in reference to the Federal Court of Australia's decision in Ellison and Comcare, that was handed down on the 14th of February 2022.

Sama, can you tell us what happened in that decision?

Yeah. Thanks, Abe.

This decision by His Honour Justice Murphy in the Federal Court originated as a result of Mr. David Ellison's appeal of the decision of the Tribunal in Comcare and Ellison that was decided in April 2020. Before we get into the Tribunal's decision and the Federal Court's decision, a bit of background for you.

Mr. Ellison was employed by the Australian Customs Service as a marine tactical officer from 2002. On 21st of April 2009, whilst undertaking a training exercise in the course of his employment, he felt a pain in his lower back. He filled out an injury information form and an occupational health and safety investigation form, which is also known as just an incident report. Then, soon after, he filed a claim for workers' compensation.

Now, in his workers' compensation claim form, in answer to the question, When were you injured or when did you first notice you were ill? he answered, "the 21st of April 2009 at 9:00 AM." In response to another question about whether he had suffered a similar injury before, he stated soreness and stiffness in his lower back, two or three times in the previous five years.

Right. So, then Comcare accepted liability for that injury, and they characterized it as a "lumbar sprain" as a result of that training exercise on the 21st of April 2009. Is that right?

Exactly. Mr. Ellison received compensation for that injury for various short periods between 2010 and 2015, and for large periods in 2016, and almost all of 2017.

Then, in January 2019, Comcare issued a no-present liability decision deciding that Mr. Ellison's lower back condition at that time was related to a pre-existent degenerative change or changes consistent with ageing and not because of the injury that occurred on the 21st of April 2009. Mr. Ellison then requested a reconsideration of that decision. On review, Comcare affirmed the no present liability decision, and Mr. Ellison appealed that decision to the AAT.

Okay. When it goes to the AAT, there Comcare argues, amongst other things, that Mr. Ellison's claim for compensation was put as a specific incident case arising from the events on the 21st of April and not the case based on the nature and conditions of his work generally

As I understood it, what Comcare then argues is that, well, the Tribunal is only allowed to focus on the injury in the 2009 or from the 2009 workplace incident. That being "injury in respect of which notice was given, and compensation claimed."

What does the Tribunal then go on to do?

That's right. The Tribunal ultimately made the following findings, which are relevant to the Federal Court appeal that comes later.

Firstly, the compensable injury was mis-described by Comcare when it accepted Mr. Ellison's claim as a "lumbar sprain." The compensable injury arising out of the 2009 workplace incident was an aggravation of an ailment and, therefore, it fell within the definition of a disease as defined by Section 5(B)(1)(b) of the SRC Act. And the effects of the compensable aggravation ceased from the 11th of January 2018 to present time.

The Tribunal... Oh, sorry, I interrupted. But the Tribunal essentially says, "In terms of the lumbar sprain, that's finished. We don't need to effectively deal with that specific injury anymore." That's right?

That's right. 

Okay.

Okay. Yeah. Curiously, the Tribunal also did make some non-binding observations, as they called it. Including that as of that date, the 11th of January 2018, to the present time, Mr. Ellison had an injury as defined by the Act, but it was not a compensable injury.

So, not the lumbar spine. It's something else.

That's exactly right. It's not that, nor is it any other injury for which he had yet made a claim for compensation.

They also went on to make a non-binding observation that the injury, as defined by the Act, that continued to exist from the 11th of January 2018 to the present time, which he continued to suffer from, was a disease. This disease was the underlying degenerative disease, and it existed prior to the April 2009 workplace incident.

Perhaps, most curiously, they also found that the underlying degenerative disease was contributed to, to a significant degree, by the extremely physically demanding general nature and conditions of Mr. Ellison's employment with Customs as a full-time marine tactical officer from 2002 to 2009.

The Tribunal went on to say that Mr. Ellison was at liberty to make a claim, should he wish to do so, subject to the requirement and procedures under the Act.

Right. If I've got it right in my mind, the Tribunal says that that lumbar sprain, which isn't even the correct diagnosis, stopped being compensable on 11 January 2018. But there's an underlying condition that existed prior to the April 2009 incident, which Mr. Ellison hasn't sought compensation for. But the Tribunal considers that it had been contributed to, to a significant degree by his work. Is that right, so far?

That's it. You've got it.

Okay. Then the Tribunal is effectively saying, "Well, if, for once, Mr. Ellison makes that claim for compensation, Comcare needs to accept it." The reason why the Tribunal can't make that decision is because Mr. Ellison hasn't made a claim for compensation under Section 54 of the SRC Act. Therefore, it's not before the Tribunal to consider that specific condition, even though they think it is a compensable one.

That's right. That's what they found.

What does the Federal Court say about all of that? When the matter was appealed to the Federal Court, the common ground of the appeal basically boiled down to whether the Tribunal had erred in concluding that it did not have the jurisdiction to decide a claim that Mr. Ellison was entitled to compensation on and from the 1st of January 2018, in respect to the effects of his underlying degenerative disease, to which his employment from 2002 to 2009 with Customs had contributed to, to a significant degree.

In effect, should the Tribunal have actually decided on whether the nature and conditions of his employment significantly contributed to the underlying degenerative disease instead of just focusing on the specific April 2009 incident. Is that right? I've got that?

Yes, that's right.

Yeah.

Before the Federal Court, Comcare broadly made similar submissions to that before the Tribunal. They argued that the Tribunal was only entitled to look at the 2009 injury for a number of reasons, including that Mr. Ellison's workers' compensation claim form gave a specific date and time when he first noticed he was injured, being the 21st of April at 9:00 AM. He gave specifics about what he was doing and how he became injured. The incident report also . . . Within that, he did something similar. There were also a number of other matters raised. But I just want to take you to one of the main arguments. And that is where Comcare relied on a decision in Comcare and Muir, which is a 2016 Federal Court decision, where His Honour Justice Flick stated that:

Well, that makes sense. I mean, and that makes sense why Comcare are making the arguments that it does make before the Tribunal or before the Federal Court.

Yeah, exactly. Comcare also submitted that it accepted that the Tribunal was required to undertake its own analysis of the claim to identify the injury but argued that later authorities demonstrated that the Tribunal's jurisdiction was ultimately constrained by:

• The characterization of the injury in respect of which notice is given; and
• Which was a subject of a claim that had been the subject of a determination, an application for reconsideration, reviewable decision and an application to the Tribunal.

But the Federal Court's not persuaded by that argument.

No. Ultimately, Justice Murphy found that the Tribunal had fallen into error in concluding that it had no jurisdiction to determine whether Mr. Ellison was entitled to compensation for the underlying degenerative disease.

Why is that?

Yeah. Well, in reaching this conclusion, Justice Murphy noted that:

• There was a line of authorities that supported the proposition that the SRC Act provides for progressive and evolving decision-making at each stage of the review process; and
• That this points away from including that Mr. Ellison should be irretrievably held to the initial medical diagnosis he received as to the injury he suffered and notified in the claim form.

Typically, that progressive and evolving decision-making is also the same progressive and evolving decision-making that allows Comcare, in certain circumstances, to make determinations overturning their initial acceptance of liability. Isn't it? That is, new evidence comes to light, which suggests that the mechanism of injury could not actually have resulted in that specific injury, for example.

But in this case, it was the Tribunal saying, "Well, Comcare should also give consideration to the mechanism of injury as to whether there's a cause leading to compensation, which," for lack of a better phrasing, "hasn't otherwise been articulated."

Exactly right. That flows onto what Justice Murphy said. The Tribunal has an inquisitorial role when it's reviewing the decision and was not confined to the case as expressly articulated by Mr. Ellison.

Yeah. I mean, it's Mr. Ellison directly because it's . . . I think one of the points that I saw was, "Well, Mr. Ellison wasn't legally represented."

Exactly. And that has a bearing on what will be considered before the Tribunal or the Court.

Comcare's argument also turned on the nature of the injury and its aetiology being fixed by how Mr. Ellison described it in the claim form. Notwithstanding that, in doing so, Mr. Ellison had merely stated his understanding based on the medical advice that he'd received at that early point about the nature of the lower back injury he'd suffered. And it's because, as you say, without the benefit of legal advice.

Okay. That's really interesting. Was that it? Was that the crux of it?

There's one more thing. Also, in determining whether the condition was a sprain, some of the medical evidence that was before the decision-maker expressed opinions about the aetiology of the injury. Including that Mr. Ellison had a facet joint progressive degenerative disease in his lumbar spine.

Right. But what kind of evidence of that is the Court talking about there?

There was a report by Mr. Ellison's GP in December 2017. It stated that Mr. Ellison suffers from a lumbar spinal degenerated condition related to the 2009 workplace incident and the physically demanding nature of his work with Customs from 2002 to 2009. The Federal Court found that having it in regards to the claim raised by the materials before Comcare in the reconsideration application, it was then erroneous for the review officer to restrict her consideration to whether Mr. Ellison was entitled to compensation for a sprain. This was because the materials before it, including that report I just mentioned, clearly stated that he was suffering from work-related lumbar spinal degeneration.

Yeah. So, in the reconsideration decision, the Tribunal stood in the shoes of Comcare and, as such, was obligated to review the claims in the reconsideration application. The Tribunal's inquisitor role was not obliged to limit its decision to the case as expressly articulated by Mr. Ellison. This point is made a few times in the Federal Court's decision. The Tribunal had recognized that the materials raised a claim that he was entitled to compensation for the underlying degenerative disease. Given the broader claim was before the review officer when Mr. Ellison made his request for review of the initial determination, the Tribunal had jurisdiction to decide on that issue. The Tribunal's jurisdiction was not limited to only the injury notified in the claim form, and that's what the Federal Court made a point of a number of times in the decision.

This is such a fascinating decision, and you know that I'm really big on lessons learned. What is the lesson learned here? That decision-makers need to really examine all the evidence before them? And, I guess, not just examine the evidence through the prism of how the claim has been made?

Pretty much. The Federal Court set out some principles which should be taken into account when making decisions of this sort. The first one is consistent with authorities before it; that you take a broad, generous, and practical approach, and that's appropriate to take in when you are construing a document purporting to be a notice of injury under the Act.

The Federal Court also noted that medical diagnosis as to the nature and aetiology of an injury commonly evolve over time, and consideration needs to be had to that. As we touched on before, the statutory scheme also allows for progressive and evolving decision-making in light of subsequent events and circumstances and new evidence.

Right. For Mr. Ellison, this finding's been made because there was evidence before the reviewable officer and the Tribunal that the injury suffered by him was the underlying condition and not the lumbar sprains.

What I find interesting, though, is that the injury has been claimed as arising for a decade from an incident in April 2009, and everyone essentially agrees that that's the correct diagnosis. Then it goes to the Tribunal, and then on appeal, of course, the Court actually says, "Well, no, everyone's wrong." Despite Comcare:

• Not getting to do their own examination of the factual circumstances and potentially finding in favour of Mr. Ellison at that early stage, at that reviewable decision stage, or that initial determination stage;
• Avoiding paying lawyers' fees; and
• Avoiding having to obtain all these disbursements

Comcare is still found liable, and they still need to pay both the compensation for the underlying degenerative condition, which they haven't really explored, and pay the applicant's legal costs and disbursements.

Yeah. Well, again, what the Federal Court said was that Comcare could have done that at the reconsideration stage. The evidence was already there for them to consider at that time. To have confined themselves so strictly to being locked into that April 2009 incident did not show a broad, generous and practical approach to considering Mr. Ellison's notice of injury. Nor did it take into account the fact that the medical diagnosis as to the nature and aetiology of the injury evolved over time, and the statutory scheme allowed for that progressive decision-making.

The paramount consideration is whether Comcare was appropriately informed as to the nature of the claimed injury and whether they had a fair opportunity to investigate it. The materials showed that the reconsideration application raised the claim, and Comcare was on notice of it and had the opportunity to properly investigate it.

 Yeah. What about the costs and time spent dealing with it at the Tribunal level and on appeal?

Well, the Federal Court found that treating the broader claim as being properly before the Tribunal did no harm to the odd process of administration contemplated by the Act. Because that process contemplated progressive and evolving decision-making in the light of subsequent events and circumstances.

But why not just have Mr. Ellison make a new claim for compensation where he clearly articulates that this is for the nature and conditions of employment? This is not an injury arising specifically from the 2009 incident.

Yeah, it's a really great question. The Federal Court addressed that too and found that given Mr. Ellison was in receipt of compensation, why would he make a new claim? There was certainly no practical reason for him to do so, and it's not like he was taking Comcare by surprise. There was no need to notify Comcare of the changed medical opinions because they were getting these opinions themselves as to the nature and aetiology of the condition. He had provided Comcare with medical certificates throughout the period and authorized Comcare to obtain reports from his treating doctors. He'd attended IMEs or medical examinations.

Comcare had that report I mentioned before from Dr. Saul, the December 2017 one, which noted that he had this broader claim, and so Comcare was on notice of it throughout this whole process. It couldn't realistically be then said that Mr. Ellison completing a fresh claim form. Therefore, going back to the start of the claims process under the SRC Act was necessary for the orderly processing of the broader claim.

It just seems to me to raise a really interesting or perhaps difficult situation for claims managers and decision-makers. What it seems to be requiring is a lot of initiative for them to look more broadly at the medical evidence, I guess. Not just at the time the claim is made but actually during the duration of the claim itself. To see whether the claim is appropriately characterized or whether it should be characterized differently, whether the injury has evolved or changed, and what's within the scope of them to consider when making decisions in respect of claims.

Look, all right. Well, I think that's not a particularly envious position for them to be in. Any last words of advice for a claims manager under the SRC scheme?

Mm. Well, probably that there is an emphasis on decision-makers to construe the evidence broadly and not be limited by the descriptors given to injuries when accepted. Instead, as you mentioned before, focus on the changes of diagnosis and what the applicant's claiming for. That means probably going through the consideration of the medical evidence, which comes across the claims manager's desks. And, as you said earlier, don't consider the evidence through the prism of how the claims have previously been accepted or framed.

Yeah. All right. Well, look, Sama, thank you again. That's been really helpful, I think. Thanks for joining me today on the SRC Report. I hope everyone listening found this valuable, and if there was something you'd like us to report on, please feel free to get in touch with us.

Thanks, Sama.

Thanks, Abe.

Bye.

Bye.