Barry and Cleanaway Operations Pty Ltd (Compensation) - [2021] AATA 369

Barry and Cleanaway Operations Pty Ltd (Compensation) [2021] AATA 369 (3 March 2021)
Division: GENERAL DIVISION
File Number(s): 2018/2895, 2018/4879, 2018/7312, 2019/3601, 2019/3602, 2019/3603
Re: Anthony Barry
APPLICANT

AndCleanaway Operations Pty Ltd
RESPONDENT

DECISION
Tribunal:R Cameron Senior Member
Date:3 March 2021
Place:Melbourne

The Tribunal affirms each of the reviewable decisions.
....................[]....................................................
R Cameron Senior Member
Catchwords
COMPENSATION – anxiety insomnia - severe clinical depression - permanent impairment, psychological condition - pains to the umbilicus post-surgery – seroma - scar tissue - scarred and contracted mesh - paraumbilical hernia - whether that condition arose out of or during the course of employment - entitlement of compensation - reliability of Applicant’s evidence - whether injury significantly contributed to by employment – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australian Postal Corporation v Tzikas (1985) 5 AAD 187.
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463.
Nguyen v Comcare [2018] AATA 1623.
Portors v Comcare [2018] FCA 914.
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.
Zaveczky v Comcare [2020] AATA 4960.
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1
REASONS FOR DECISION
R Cameron Senior Member
3 March 2021
INTRODUCTION

There are six applications for review before the Tribunal.
The first application, No 2018/2895 seeks review of a decision made on 11 April 2018 denying liability for a claim made by the Applicant for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for “anxiety, insomnia and severe clinical depression directly connected with fluctuating pain stemming from a workplace injury in July 2016” (“The First reviewable decision”).
The second application, No 2018/4879 seeks review of a decision made on 25 July 2018 denying liability for a claim made by the Applicant for compensation under the SRC Act for a “paraumbilical hernia” sustained on 12 July 2016 (“The Second reviewable decision”).
The third application, No 2018/7312 seeks review of a decision made on 26 November 2018 denying liability under section 14 of the SRC Act for “pains to the umbilicus post surgery, seroma, scar tissue, scarred and contracted mesh”, sustained on 26 March 2017 (“The Third reviewable decision”).
The fourth application, No 2019/3603 seeks review of a decision made by the Respondent under section 62(1) of the SRC Act on 7 May 2019 finding that there was no liability to pay compensation in respect of “recurrent small hernia” sustained on 26 March 2017 (“The Fourth reviewable decision”).
The fifth application, No 2019/3602 also seeks review of a decision made by the Respondent under section 62(1) of the SRC Act on 7 May 2019 finding that there was no liability to pay compensation in respect of a “paraumbilical hernia” sustained on 12 July 2016 (“The Fifth reviewable decision”).
The sixth application, No 2019/3601 seeks review of a decision made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 369
Decision Date: 3 March 2021

CaseChat Overview and Summary

This matter concerned an application for compensation by Mr Barry against Cleanaway Operations Pty Ltd. The dispute centred on whether Mr Barry's psychological condition, including anxiety, insomnia, and severe clinical depression, as well as physical complaints such as pains to the umbilicus, a seroma, scar tissue, and a paraumbilical hernia, arose out of or in the course of his employment with Cleanaway Operations.

The Tribunal was required to determine several legal issues. Firstly, it needed to assess the reliability of Mr Barry's evidence regarding the alleged hernia episode in July 2016 and whether this condition was work-related, notwithstanding a previous admission of liability by the respondent. Secondly, the Tribunal had to consider whether the identified stressors contributing to Mr Barry's psychological condition arose out of or in the course of his employment. Finally, the Tribunal was tasked with determining whether Mr Barry's employment significantly contributed to his alleged injuries.

The Tribunal reasoned that a determination under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) by a respondent does not permanently bind that respondent to all factual findings made in an initial decision to accept liability. Therefore, the Tribunal was empowered to re-examine the facts concerning the alleged hernia episode. The Tribunal found that comments made by Dr Burke, an occupational physician, regarding Mr Barry potentially losing his employment did not arise out of or in the course of his employment, as they were made in Dr Burke's rooms and not during work duties. The Tribunal also found that the steps taken in reliance on Dr Burke's report, including the establishment of a rehabilitation program, constituted reasonable administrative action taken in a reasonable manner under section 5A(1) of the Act. Ultimately, the Tribunal concluded that it could not accept Mr Barry's evidence concerning the hernia episode and could not conclude it was work-related, based on the preponderance of both lay and medical evidence.

The Tribunal affirmed the decision regarding the alleged hernia episode in July 2016, finding that it was not work-related. Consequently, Mr Barry was not entitled to compensation for this condition. The Tribunal also found that the stressors identified as contributing to Mr Barry's psychological condition did not arise out of or in the course of his employment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Applicant returned to work on 20 October 2016 on restricted duties. He was certified for pre-injury work duties as and from 5 November 2016.CONCLUSION ON THE ALLEGED HERNIA EPISODE IN JULY 2016. In reaching a conclusion on this issue, some preliminary observations should be made by the Tribunal. The Applicant contended that because a previous claim had been made by him and admitted by the Respondent for this alleged hernia episode in July 2016 it became “a non-disputed claim”.[15] He put it in layman’s terms that in effect having admitted the July 2016 hernia claim previously, it was bound by that admission and could no longer dispute it in this hearing.[15] Paragraph 7 of the Applicant's Statement of Facts, Issues and Contentions dated 8 December 2019, are specifically referred to. Submissions of a similar thrust were made by the Applicant in the course of the hearing of this occasion. The Applicant’s contention was understandably disputed. Counsel for the Respondent directed the Tribunal to several authorities which have held that this Tribunal is empowered subsequently to make findings of fact concerning a claim that may have been previously admitted by a Respondent employer. Reference was made to the leading case of Telstra Corp v Hannaford.[16] Passages of the decision were referred to which found that on the true and proper construction of the SRC Act, this Tribunal is empowered to make findings of fact and effectively undercut the necessary findings of fact made in the initial or original decision of a respondent under section 14 of that Act to accept liability in respect of a claim for compensation.[16] (2006) 151 FCR 253 at paragraphs [57] to [59]. References also made to a helpful decision of this Tribunal in Zaveczky v Comcare [2020] AATA 4960 at [236]. Another authority also mention was the Federal Court decision of Portors v Comcare [2018] FCA 914 at [26] to [31]. Robertson J observed in that case appositely: "In my opinion, an applicant would have no further entitlements to the payment of compensation for an injury as a result of medical treatment of an injury where it had been found that there was no further entitlements to payment of compensation for the original injury because it was not workplace related." The Tribunal accepts the submissions made by the Respondent’s counsel to be an accurate statement of the law. Upon a true and proper construction of it, a determination under section 14 of the SRC Act by a respondent does not permanently enshrine every finding of fact upon which the determination was based. It does not otherwise create an issue estoppel, or an admission by conduct or even an election that otherwise binds a respondent to prevent it from thoroughly ventilating all issues of fact and law at a subsequent hearing concerning a further claim, before this Tribunal. As counsel for the Respondent appositely contended in layman’s terms, it means that “the egg can be unscrambled”. The Tribunal cannot accept the evidence of the Applicant concerning what occurred to him on 12 July 2016. It cannot conclude that the hernia was work-related. The reasons for reaching this conclusion arise from two sources. Firstly, the preponderance of the lay evidence. Secondly, the preponderance of the medical evidence.

Ratio Decidendi

Legal Principle Established

It is difficult for the Tribunal to reach a conclusion on this topic in the absence of evidence from Dr Burke. His report does not make such a comment and it does strike an outside observer such as the Tribunal is something that a Consultant Occupational Physician of Dr Burke’s experience and expertise would be unlikely to do. However, the Respondent did not really contest the Applicant’s evidence on this topic.CONSIDERATION OF THE MENTAL HEALTH CLAIMS. The Tribunal will now look at each of the stressors identified by Associate Professor Mendelson (they were also largely identified by Dr Weissman and Dr Grech in their reports also) and whether they arose out of or in the course of the Applicant’s employment with the Respondent. If the Applicant was advised by Dr Burke that he might lose his employment with the Respondent it cannot be said to have arisen out of, or in the course of his employment. The comments were not made whilst the Applicant was undertaking any duties as an employee. He was not at work. The comments were made by Dr Burke and his rooms in the city. The comments cannot be said to be by or on behalf of the Respondent employer. The Applicant was referred to Dr Burke for an examination under section 36 of the SRC Act. This is a legal process prescribed by the Act. It took place in Dr Burke’s rooms in the city as part of that process. It is a requirement under the legislation for the purposes of formulation of a rehabilitation program. This matter is in the realm of an ailment that requires a contribution to a significant degree from the Applicant’s employment. It simply did not occur there. It was not the Respondent’s doing. The next issue that emerges relevant to Dr Burke’s report was an assessment of what duties the Applicant was fit to undertake. That assessment was that the Applicant was fit to return to pre-injury duties. There was a view held by the Applicant’s treating medical practitioners that he should not lift anything more than 5 kg. Ms Boron gave evidence about the referral to Dr Burke who it will be recalled is a highly qualified Consultant Occupational Physician. She also gave evidence that she preferred the opinion of Dr Burke because he is a specialist, he is independent and an expert in that particular field. It was not suggested by the Applicant that it was unreasonable for the Respondent including its proper officers such as Ms Boron, who it should be noted is an experienced Rehabilitation and Injury Management Advisor, to prefer the opinions expressed by Dr Burke in his report (nor was it put to her). She was a witness who struck the Tribunal as fair minded and concerned for the welfare of the Respondent’s employees, who took her role very seriously. It was also put to the Applicant in cross examination that it was reasonable for the Respondent including Ms Boron, to rely upon and prefer the opinions expressed by [40] See Commonwealth Bank of Australia v Reeve(2012) 199 FCR 463 at [60].Dr Burke. The Applicant agreed with that proposition. The Tribunal considers that the steps taken in reliance upon Dr Burke’s report which included the establishment of a specific Rehabilitation Program for the Applicant were directed to his employment itself, as opposed to action forming part of the everyday duties or tasks that he performed in his employment or job. It fell within the definition of reasonable administrative action taken in a reasonable manner contained in section 5A (1) of the SRC Act.[40]