Australia: Jurisdiction To Multi Task

Last Updated: 22 November 2008
Article by Holly Weston

In Aunela and Telstra Corporation Ltd [2008] AATA 153, the Administrative Appeals Tribunal found that it had jurisdiction to consider an additional injury to that which was considered in the reviewable decision. The Tribunal found that reports sent to the respondent over a number of years may represent sufficient notice under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

FACTS AND DISCUSSION

The employee had an accepted claim for a soft tissue injury to his right elbow and left ankle arising from a workplace injury on 19 April 1993. On 16 March 2006, Telstra determined the effects of the compensable injury had ceased. The decision was affirmed and appealed to the Tribunal. A jurisdictional hearing was listed to determine whether the Tribunal could also consider whether the applicant had a compensable psychiatric injury. Senior Member Constance helpfully set out several principles applicable to the question of the Tribunal's jurisdiction:

  • There is no basis to distinguish between an initial injury and a consequential or secondary injury; compensation is payable in accordance with the Act in respect of each injury suffered by an employee (Canute v Comcare [2006] HCA 47).
  • In determining whether a new injury is being claimed 'a broad, generous and practical interpretation should be made' (Abrahams v Comcare (2006) 93 ALD 147).
  • Evidence before the Tribunal may establish a valid claim has been made notwithstanding the lack of a formal claim (Buhr v Comcare [2007] FCA 575).
  • The SRC Act provides a three tier decision making process where the Tribunal's role is limited to reviewing a 'reviewable decision' (Lees v Comcare [1999] FCA 753).
  • The powers and discretions available to the Tribunal in reviewing a decision are limited to those available to the determining authority at the stage of making the reviewable decision.
  • When reviewing a decision the Tribunal has before it all matters put before the decision maker as part of the claim for compensation (Fuad and Telstra Corporation Limited, Re [2004] AATA 1182).
  • In considering the matters before it the Tribunal is not limited to consideration of the case argued by the applicant.

The Tribunal set out a number of medical reports provided to Telstra over the years, which considered a diagnosis of a psychiatric condition as a sequela to the workplace accident. Senior Member Constance found that the reports constituted written notice of the injury and a claim for compensation under the SRC Act.

One report was singled out as having indicated that Telstra treated such a claim as having been made, as it showed that it must have asked the doctor to consider whether the employee had a diagnosed psychiatric condition. Senior Member Constance also drew attention to the phrase used in the determination and reviewable decision that 'all available medical and other evidence' had been considered. Senior Member Constance noted that the evidence before the decision maker included the medical reports in which a psychiatric condition had been diagnosed and, following Fuad, it was held that the Tribunal has jurisdiction to consider such a claim.

SIGNIFICANCE TO EMPLOYERS

If an employer is in receipt of reports or correspondence that an employee suffers from an injury:

  • It may be taken as a valid notice and claim for compensation under the SRC Act.
  • The Tribunal may have jurisdiction to consider the claim even if it has not been considered in a determination or reviewable decision.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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