FEDERAL COURT OF AUSTRALIA
Engida v Linfox Australia Pty Ltd [2016] FCA 793
File number: VID 58 of 2015 Judge: TRACEY J Date of judgment: 8 July 2016 Catchwords: WORKERS’ COMPENSATION – application for extension of time to appeal from a decision of the Administrative Appeals Tribunal relating to the applicant’s entitlement to compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) – whether appeal has reasonable prospects of success – whether the Tribunal correctly assessed the applicant’s level of impairment – whether Tribunal should have considered earlier work injuries – whether applicant afforded procedural fairness Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 44(2A)
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 24, 27, 28, 58, 58(3), 59, 60
Cases cited: Australian Postal Corporation v Oudyn (2003) 73 ALD 659 – cited
Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 – cited
Haritos v Commissioner of Taxation (2015) 233 FCR 315 – applied
Lees v Comcare (1999) 56 ALD 84 – cited
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 – cited
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 – cited
Date of hearing: 15 October 2015 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 87 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr CJ Clark Solicitor for the Respondent: Moray & Agnew Lawyers ORDERS
VID 58 of 2015 BETWEEN: HAILE ENGIDA
Applicant
AND: LINFOX AUSTRALIA PTY LTD
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
8 JULY 2016
THE COURT ORDERS THAT:
1.The applicant’s application for leave to appeal out of time be granted.
2.The appeal be dismissed.
3.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
TRACEY J:
Mr Haile Engida has applied for an extension of time within which to appeal against a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal’s decision was handed down on 9 December 2014. The application was filed on 12 February 2015.
Mr Engida had applied to the Tribunal for review of three decisions, made under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Those decisions had found that his employer (“Linfox”) had no present liability for the payment to him of various forms of compensation. Mr Engida had mixed success. The Tribunal affirmed two of the three impugned decisions but set aside a third.
Pursuant to s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), Mr Engida had 28 days within which to appeal from the Tribunal’s decision. His application to the Court was made over a month after this deadline had passed. Mr Engida explained his delay. He said that he had limited English and that he had had difficulty in obtaining…
Keep reading for free
Create a free CaseChat account to read Engida v Linfox Australia Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2016] FCA 793
- Decision Date
CaseChat Overview and Summary
Engida v Linfox Australia Pty Ltd involves a dispute over the applicant's entitlement to workers' compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth). Mr Engida, a former employee of Westgate Logistics, which was later acquired by Linfox, sought compensation for injuries sustained during his employment, including injuries to his left shoulder and upper back, lower back, and right shoulder. The dispute primarily revolves around the assessment of Mr Engida's level of impairment and the Tribunal's consideration of earlier work injuries. The central legal issues in this case are whether the Administrative Appeals Tribunal (AAT) correctly assessed Mr Engida’s level of impairment, whether the AAT should have considered earlier work injuries, and whether the applicant was afforded procedural fairness.
The court examined the AAT's assessment of Mr Engida's level of impairment and its reliance on medical evidence. The AAT found that Mr Engida's degree of whole person impairment (WPI) was 6%, which did not meet the 10% threshold for compensation under the Act. The court considered the AAT's reasons for preferring the evidence of Dr Fish over Mr Myers, a general surgeon, and found that the AAT's decision was reasonable given the conflicting evidence and the soundness of Dr Fish's assessment. The court also reviewed the AAT's handling of earlier work injuries and concluded that the Tribunal did not err in its consideration of these issues. Regarding procedural fairness, the court found no basis for Mr Engida's claim that he was unfairly treated in the AAT's consideration of evidence.
The court granted Mr Engida's application for leave to appeal out of time, acknowledging his reasons for delay. However, the appeal was ultimately dismissed, and the applicant was ordered to pay the respondent's costs. The court's decision affirmed the AAT's findings that Mr Engida did not meet the impairment threshold for compensation and that his claims for compensation were not substantiated by the evidence presented.
The court examined the AAT's assessment of Mr Engida's level of impairment and its reliance on medical evidence. The AAT found that Mr Engida's degree of whole person impairment (WPI) was 6%, which did not meet the 10% threshold for compensation under the Act. The court considered the AAT's reasons for preferring the evidence of Dr Fish over Mr Myers, a general surgeon, and found that the AAT's decision was reasonable given the conflicting evidence and the soundness of Dr Fish's assessment. The court also reviewed the AAT's handling of earlier work injuries and concluded that the Tribunal did not err in its consideration of these issues. Regarding procedural fairness, the court found no basis for Mr Engida's claim that he was unfairly treated in the AAT's consideration of evidence.
The court granted Mr Engida's application for leave to appeal out of time, acknowledging his reasons for delay. However, the appeal was ultimately dismissed, and the applicant was ordered to pay the respondent's costs. The court's decision affirmed the AAT's findings that Mr Engida did not meet the impairment threshold for compensation and that his claims for compensation were not substantiated by the evidence presented.
Orders
Orders of the court
1. The applicant’s application for leave to appeal out of time be granted.
2. The appeal be dismissed.
3. The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
I accept Mr Engida’s reasons for his delay in commencing the proceeding. FACTUAL BACKGROUND On 24 April 2006, Mr Engida was employed by Westgate Logistics (“Westgate”) as a picker. His work involved him manually lifting packaged goods. Whilst doing so he suffered injuries to his left shoulder and upper back. Mr Engida later suffered injuries to his lower back while working. Liability for the injuries suffered by Mr Engida while he was employed by Westgate was accepted and processed under the Victorian Work Cover Scheme. Linfox acquired Westgate some time after Mr Engida suffered his injuries. In 2008, Mr Engida made claims against Linfox for injuries to his right shoulder and upper back. On 14 February 2008, he made a claim for workers’ compensation for an injury to his right shoulder sustained on that day. The claim form stated “lifting boxes” as the cause of the injury. On 24 July 2008, Mr Engida made a claim for workers’ compensation for injuries to his shoulder and upper back sustained on 1 July 2008. The claim form identified “lifting heavy boxes” as the cause of the injury. On 14 August 2008, Mr Engida made a claim for workers’ compensation for an injury to his upper back sustained on 13 August 2008. The claim form identified “lifting boxes” as the cause of the injury. Linfox accepted liability for each of these claims. He received payments of compensation for short periods of incapacity and small amounts for the cost of treatment. He then returned to work. On 10 May 2012, Mr Engida’s former solicitors lodged a claim for payment of lump sum compensation for permanent impairment and non-economic loss pursuant to ss 24 and 27 of the Act. The claim related to “Supraspinatus Tendinopathy and Subacromial bursitis, L4-L5 Disc Bulging and Depression – Major”. By letter dated 21 January 2013, Mr Michael Wheeler, Senior Injury Claims Consultant, CGU Self Insurance Services, which was acting on behalf of Linfox, advised Mr Engida about the outcome of his claim for compensation in respect of “midback (Rhomboid) strain” sustained on 13 August 2008, and, in particular, of his claim for permanent impairment compensation under the Act in respect of his “right shoulder”. Mr Wheeler determined that Mr Engida was not entitled to a lump sum permanent impairment payment under ss 24 and 27 of the Act. He explained his decision as follows:“2. To assist in determining the level of Whole Person Impairment (WPI), arrangements were made for the claimant to be assessed by Dr David Fish, Consultant Occupational and Environmental Physician, who is on the Comcare list of trained permanent impairment assessors.3.In completing this report, Dr Fish advises the following “I assessed that the degree of impairment arising from the right shoulder, figures 9.11.1 (A), (b) and (c) and arrived at 6% whole person impairment. I also assessed his cervical spine pursuant to Table 9.15. I considered that he has no significant clinical findings, no muscular guarding, no documented neurological impairment, no significant loss of motion, segment integrity, no other indication of impairment related to injury or illness. This is equivalent to 0% whole person impairment. His total whole person impairment is therefore 6%. Of these I consider that 4% has arisen from work related factors and 2% as a result of the underlying degenerative disease”.4.Subsection 24(7)(b) of the SRC Act states:“…Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section…”5.Therefore I accept the opinion of Dr Fish that the degree of impairment suffered by the claimant is 6% of the whole person in accordance with the Guide, noting his comments “Of these I consider that 4% has arisen from work related factors and 2% as a result of the underlying degenerative disease” and therefore the claimant is precluded by subsection 24(7) of the SRC Act from receiving an award of compensation for permanent impairment pursuant to Section 24 of the SRC Act.6.Compensation for non-economic loss pursuant to Section 27 of the SRC Act is only payable where a benefit has been awarded under Section 24 of the SRC Act. On the basis that the claimant does not have entitlement under Section 24 of the SRC Act. On the basis that the claimant does not have entitlement under Section 24 of the SRC Act, nor is there an entitlement to compensation pursuant to Section 27 of the SRC Act.”
Evidence
Evidence Before The Court
The Tribunal’s failure to deal with any application in relation to a decision made under s 58 could not and did not give rise to any error on the part of the Tribunal.“One sided evidence” Mr Engida claimed that the Tribunal unfairly preferred the medical evidence submitted by Linfox over the evidence given by his medical witnesses. He claimed that he had been assessed by 13 doctors and that the Tribunal had only relied on 38% of the medical reports that had been provided to it. Mr Engida objected to the Tribunal’s reliance on Dr Fish’s evidence and the rejection of the evidence of one of his medical witnesses, Mr Myers, a general surgeon. Mr Myers conducted an examination at the request of Mr Engida’s former solicitors on 18 June 2013. He provided four reports dated 24 June 2013, 2 October 2013, 17 June 2014 and 30 June 2014. Mr Myers assessed Mr Engida’s right shoulder injury as amounting to 11% WPI. Mr Myers also conducted permanent impairment assessments for Mr Engida’s cervical spine and lumbar spine. He concluded that Mr Engida suffered 8% WPI for each injury. The Tribunal noted that:“92.In [Mr Myers’s] first report, Mr Myers assessed the right shoulder injury as causing an 11 per cent WPI. In his reports of 2 October 2013 and 17 June 2014, which are both identical he concluded that the applicant had suffered a 25 per cent WPI, being 8 per cent for the cervical spine, 8 per cent for the lumbar spine and 11 per cent for the right shoulder.” The Tribunal gave the following reasons for its reliance on Dr Fish’s evidence in relation to Mr Engida’s permanent impairment claim in respect of his right shoulder injury:“156. Doctor Fish who assessed on a medico-legal basis on behalf of the respondent was satisfied the applicant did have continuing discomfort in his right shoulder and assessed a WPI at 6 per cent pursuant to table 9.11 of the Comcare Guide. However, entitlement to compensation pursuant to s 24 of the Act will be enlivened only if the degree of permanent impairment is 10 per cent or more. 157. Mr Myers assessed the applicant and found he had an impairment of 11 per cent. I regret that I found the evidence of Mr Myers, a general surgeon, to be confusing and difficult to comprehend. Unfortunately, Mr Myers understood that the applicant had injured his right shoulder in his prior employment with Westgate and relied on multiple events, with both employers, in reaching his conclusions. Doctor Fish has practised for many years in occupational medicine and has appropriate qualifications. I found his evidence to be sound and balanced. Accordingly, despite the continuing presence of right shoulder pain and discomfort, which I am satisfied has a continuing relationship with his former employment with the respondent, the finding of 6 per cent WPI, being below the minimum the 10 per cent threshold, does not entitle compensation pursuant to s 24 of the Act.” The Tribunal thus considered the evidence of both Dr Fish and Mr Myers and provided reasons for its rejection of Mr Myers’s evidence, in part because it was “confusing and difficult to comprehend”. In these circumstances, it was open to the Tribunal to prefer the evidence of Dr Fish in determining whether Mr Engida’s right shoulder injury met the required whole person impairment threshold.
Decision
Reasons for decision
On 9 May 2013, Mr Engida made an application for review by the Tribunal of the decision dated 24 April 2013 affirming the decision dated 13 March 2013 finding no present liability to pay compensation to Mr Engida in respect of “midback (Rhomboid) strain” pursuant to ss 16 and 19 of the Act.THE TRIBUNAL DECISION Mr Engida made three applications for review in the Tribunal. The decisions which he challenged were:(1)the reviewable decision, made on 25 February 2013, by Ms Henderson, on behalf of Linfox, affirming the determination, made on 21 January 2013, by Mr Wheeler finding no present liability for payment of permanent impairment and non-economic loss compensation pursuant to ss 24 and 27 of the Act in respect of the right shoulder and midback (Rhomboid) strain. (2)the reviewable decision, made on 25 February 2013, by Ms Henderson, on behalf of Linfox, affirming the determination, made on 23 January 2013, by Mr Wheeler, which found no present liability for payment of compensation pursuant to s 14 of the Act in respect of the injury or disease of depression; and (3)the reviewable decision, made on 24 April 2013, by Ms Henderson, on behalf of Linfox, affirming the determination, made on 13 March 2013, by Ms Curro, finding no present liability for payment of compensation, pursuant to ss 16 and 19 of the Act in respect of the mid back (Rhomboid) strain injury. The Tribunal noted the following, at [8]:“The applicant has not lodged a claim for compensation seeking the respondent’s liability pursuant to s 14 of the Act for the depression and lower back injury. In respect of the depression claimed in the applicant’s permanent impairment application, I presume the respondent’s decision to deny liability for depression pursuant to s 14 of the Act was made to cause the applicant to establish liability for it before he can recover, if at all, any compensation for permanent impairment. In respect of the claimed lower back injury (being the L4-L5 Disc Bulging), the respondent has not made a decision in relation to liability under s 14 or ss 24 and 27 of the Act.” There was a significant body of medical evidence submitted to the Tribunal. The Tribunal summarised the relevant medical evidence and other evidence submitted by Mr Engida at [9] ‑ [120] of its reasons. It recorded its conclusions at [153]-[166]. Those conclusions, on each of Mr Engida’s claimed injuries, were:(1)Right shoulder injury – the Tribunal found that Mr Engida did not meet the 10% whole person impairment threshold and therefore did not qualify for permanent impairment compensation pursuant to ss 24 and 27 of the Act.(2)Midback (rhomboid) strain – the Tribunal concluded that there was an absence of medical evidence supporting the presence of an ongoing midback rhomboid strain. Accordingly, there was no present liability pursuant to ss 16, 19, 24 and 27 of the Act.(3)Depression – having considered the medical evidence relating to Mr Engida’s psychiatric condition, the Tribunal concluded that his condition was more appropriately described as “mild chronic adjustment disorder with anxious and depressed mood”. The Tribunal remitted the determination to Linfox for consideration of whether the right shoulder pain was attributable to the psychiatric condition and whether Mr Engida’s employment with Linfox made a significant contribution to the injury.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.