Jovanovski v Telstra Corporation Limited
[2008] FCA 465
•11 April 2008
FEDERAL COURT OF AUSTRALIA
Jovanovski v Telstra Corporation Limited [2008] FCA 465
ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – whether Tribunal erred in determining not to apply s 7(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Tribunal erred in finding no evidence to establish presumption pursuant to s 7(1)
Administrative Appeals Tribunal Act 1975 (Cth), s 44(1)
Safety Rehabilitation and Compensation Act 1988 (Cth), s 7(1)Jovanovski v Telstra Corporation Ltd [2007] AATA 1235 set aside
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 citedLees v Repatriation Commission (2002) 125 FCR 331 cited
GEORGE JOVANOVSKI v TELSTRA CORPORATION LIMITED
NSD 846 OF 2007
GYLES J
11 APRIL 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 846 OF 2007
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER G ETTINGER AND DR MEC THORPE, MEMBER
BETWEEN:
GEORGE JOVANOVSKI
ApplicantAND:
TELSTRA CORPORATION LIMITED
Respondent
JUDGE:
GYLES J
DATE OF ORDER:
11 APRIL 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decisions of the Administrative Appeals Tribunal be set aside.
3.The cases be remitted to the Administrative Appeals Tribunal to be heard again.
4.The respondent pay the applicant’s costs of the appeal, save for costs already ordered.
5.The costs of the proceedings in the Administrative Appeals Tribunal be reserved until the cases are reheard.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 846 OF 2007
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER G ETTINGER AND DR MEC THORPE, MEMBER
BETWEEN:
GEORGE JOVANOVSKI
ApplicantAND:
TELSTRA CORPORATION LIMITED
Respondent
JUDGE:
GYLES J
DATE:
11 APRIL 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The main point of this appeal – the application of s 7(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) to the proceedings in the Administrative Appeals Tribunal (the Tribunal) – is partly procedural and partly substantive.
On 5, 6 and 7 March 2007 the Tribunal heard two applications by the applicant, George Jovanovski, for review of decisions made by the respondent, Telstra Corporation Limited (Telstra), pursuant to the Act, together.
The first was a review decision (made on 15 November 2005) which affirmed a decision of the primary delegate as follows:
Since 1 September 2005 and as at the present date, the condition that occurred on 4 December 1990 for which liability has been accepted for “lumbar disc lesion-exacerbation of previous injury (‘1990 injury”) has no longer resulted in incapacity for work or the need for medical treatment.
Accordingly, since 1 September 2005 and as at the present date, Telstra is not liable to pay compensation under section 16 and Part II Division 3 of the SRC Act in respect of the 1990 injury.
The second was also a review decision (made on 29 June 2006) which affirmed a decision of the primary delegate as follows:
In accordance with the provisions of the Safety Rehabilitation and Compensation Act 1988, I have determined that:
(a)The Claimant suffered injury on 26 September 1979 in the form of “strained back”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 27 October 1979.
(b)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 27 October 1979.
(c)The claimant suffered injury on 1 October 1981 in the form of “sprained back”. The effects of the injury resulting in any incapacity for work pursuant or the need for medical treatment ceased as at 10 October 1981.
(d)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 10 October 1981.
(e)The claimant suffered injury on 25 May 1982 in the form of “right sacroiliac and lumbar strain”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 31 May 1982.
(f)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 31 May 1982.
(g)The claimant suffered injury on 23 July 1985 in the form of “sore back”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 5 August 1985.
(h)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 5 August 1985.
(i)The claimant suffered injury on 29 May 1991 in the form of “low grade form of lumbosacral strain”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 14 November 1991.
(j)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 14 November 1991.
(k)The claimant suffered injury on 10 August 1992 in the form of “aggravation of previously abnormal L5/SI disc”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 31 March 1993.
(1)Telstra Corporation Ltd has no liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 31 March 1993.
(m)The claimant suffered injury on 26 July 1994 in the form of “aggravation of degenerative condition”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 8 August 1994.
(n)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and or 16 of the SRC Act as at 6 June 2006 and has not been liable since 8 August 1994.
(o)The claimant did not suffer injury in March 2003 and accordingly Telstra Corporation Ltd is not liable to pay compensation pursuant to section 14 of the SRC Act.
(p)The claimant did not suffer injury in respect of the nature and conditions of his employment and accordingly Telstra Corporation Ltd is not liable to pay compensation pursuant to section 14 of the SRC Act.
The Tribunal identified the issues for decision as follows:
·Whether Mr Jovanovski continues to suffer from the effects of a work related injury to his back, and whether he is presently entitled, after 1 September 2005, to work related incapacity and compensation payments pursuant to sections 16, 19, 20 and 21 pursuant to the Act.
·Whether Mr Jovanovski has an incapacity for work arising from a compensable condition.
·In doing so, the Tribunal had also to consider whether Mr Jovanovski suffered injury (in terms of the legislation) as a result of the nature and conditions of his employment, and whether Telstra was therefore liable to pay compensation pursuant to section 14 of the Act.
The Tribunal had to consider a long history. The applicant had commenced working for Telstra in 1975 and had worked as a labourer for some 18 years. As appears from the second decision, he suffered compensable injury to his back as long ago as 26 September 1979, and various other injuries related to his back over the years. He was transferred to light clerical duties in 1992 and was made redundant in 2005.
The Tribunal received a volume of written and oral evidence. Both parties were represented by solicitors and counsel. Several days after the Tribunal had reserved its decision, counsel for the applicant communicated with the Tribunal as follows:
1.The Applicant also relies upon s.7(1) of the SRC Act. Amongst the conditions specified in writing by the Minister as a disease related to employment is “diseases caused by vibration (disorders of muscles, tendons, bones, joints, peripheral blood vessels or peripheral nerves)” arising from “employment involving exposure to vibration”: see Ballard & Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988, Seventh Edition, page 740.
2.The Applicant says that his work as a labourer with Telecom carrying out jackhammering work on a daily basis is work which exposed him to vibration of the kind referred to in the Minister’s specification. Accordingly, there is presumed to be a work connection to the Applicant’s spinal degenerative disease unless the evidence establishes to the contrary. The Applicant says that the evidence does not permit such a contrary conclusion to be drawn.
Section 7(1) of the Act provides as follows:
(1) Where:
(a)an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;
(b)the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and
(c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;
the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.
The relevant portion of the Declaration under s 7(1) is as follows:
Occupational diseases
Employment involving exposure to risk
22. Diseases caused by vibration (disorders of muscles, tendons, bones, joints, peripheral blood vessels or peripheral nerves).
Employment involving exposure to vibration.
Counsel for Telstra responded on the same day as follows:
1.The Respondent says the Applicant is not entitled to rely on s7(1) of the SRC Act for the following reasons:
(a)s7(1) was not an issue before the Tribunal at the hearing. See Statements of Facts and Contentions.
(b)The Applicant gave not a word of evidence about being exposed to vibration. At its highest an inference would have to be drawn and even if this was done the Tribunal has no detail as to any such exposure. On the applicant’s vague evidence the Tribunal would not be satisfied that any such inference could reliably be drawn.
(c)None of the Doctors who gave evidence (orally or by report) have dealt with the matter.
The District Registrar of the Tribunal wrote to both counsel on the following day as follows:
Senior Member Ettinger and Dr Thorpe have drawn to my attention the email you sent to Ms Eva Toth with further submissions on behalf of Mr Jovanovski.
You will be aware that this matter was heard over three days on 5, 6, and 7 March, and that there was ample time for both parties to make full submissions and closing addresses, which in fact took place on the final day. The matter was reserved on that day.
It is unusual for the Tribunal to reopen a case which has been concluded and reserved, but if the Applicant wishes to make a case to try and persuade the Tribunal that it would be of assistance to do so, then that application may be considered. Meanwhile the additional material from both parties will not be taken into account in the preparation of the decision.
Please let me know by close of business on or before Monday 19 March 2007 how you wish to proceed.
The reply by counsel for the applicant concluded (in substance) as follows:
You have asked how I wish to proceed to “try and persuade the Tribunal that it would be of assistance” to “reopen a case which has been concluded and reserved”. The answer to your question is that I do not wish to do any more than I have done, which is simply to draw s.7(l) to the Tribunal’s attention, with as concise an explanation as I can muster as to why it is relevant to the Tribunal’s consideration of the matter.
Clearly, the Tribunal is now aware of s.7(1) and the associated determination (and may have been aware of it before I sent my additional submission). The Applicant says it is relevant. I expect that the Respondent says it is not. It is a matter for the Tribunal, on the existing evidence, to decide which view is correct, and then complete its consideration of the case taking that decision into account. In my respectful submission, the one thing that the Tribunal cannot do is simply ignore the fact that s.7(1) and the associated determination have been drawn to its attention as being relevant to the case. The point is that s.7(1) is not a discretionary provision. If it is relevant to the evidence in this case, then it must be applied in reaching the correct or preferable decision for Mr Jovanovski. Even if the Tribunal could ignore the submission on s.7(l) as a matter of law, it is respectfully submitted that there is no evident reason why it would choose to do so in the circumstances.
Counsel had referred to s 33(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) and indicated that he did not wish to adduce fresh evidence or make any lengthy submissions that might have required the recalling of witnesses.
The District Registrar of the Tribunal responded as follows:
Thank you for your reply to my letter of 13 March 2007 which I have referred to Senior Member Ettinger and Dr Thorpe.
The Tribunal has noted that you do not make application to have the case re-opened, assures you it is mindful of its role in deciding cases, and is aware of relevant statutory provisions relating to the various legislative enactments which empower it.
(Emphasis added.)The Tribunal said, early in its decision (Jovanovski v Telstra Corporation Ltd [2007] AATA 1235 at [19]):
After the conclusion of the hearing, Mr Grey also drew to our attention section 7(1) of the Act of which we are aware.
Later, having summarised how the issue of s 7(1) arose, the Tribunal said (at [46]):
There was no evidence led as to vibration in the evidence before us, and we cannot take that into account in coming to a decision.
The Tribunal summarised its conclusions as follows (at [102]):
—Mr Jovanovski has a degenerative spine, constitutional in origin, and [we] are satisfied that he will suffer pain and aggravations to it from time to time as agreed by the doctors whose reports we have considered.
—Mr Jovanovski suffered injury or aggravation at work, and liability for injury or aggravation to Mr Jovanovski’s degenerative back was accepted by the Respondent several times between 1979 and 2003. Each time Mr Jovanovski was able to return to work after a short time when the aggravation had settled. In Matter N2005/1628, which we have affirmed, the decision maker held that at 1 September 2005 the condition that occurred as a result of the 1990 lumbar disc lesion exacerbation no longer resulted in incapacity for work or the need for medical treatment. We have accepted from the evidence and Matter N2006/835, that the first incident of aggravation to Mr Jovanovski’s lumbar spine was in 1979. We are satisfied that at 1 September 2005 and at the time of our decision, Mr Jovanovski does not suffer incapacity for work or the need for medical treatment, and has no present entitlement to compensation for work related injury pursuant to section 19, 20, 21 of the Act or section 16 medical expenses.
—Mr Jovanovski did not suffer a back injury likely to have been of sufficient severity to result in internal disc derangement; Mr Jovanovski did not sustain a significant disc protrusion. He did not have any radicular signs nor symptoms while doing physical work (Drs Dalton & Maxwell);
—In regard to Matter N2006/835, we noted that the decision maker concluded that at 6 June 2006:
(a)The Respondent had no present liability to pay compensation to the Applicant pursuant to sections 19, 20, 21 or section 16 of the Act after 8 August 1994. Having regard to the findings in N2005/1628, and the fact that the legislation is beneficial legislation, we have found that at 1 September 2005 (rather than at 8 August 1994), at the time of our decision, Telstra has no present liability for Mr Jovanovski pursuant to sections 19, 20, 21 or section 16 of the Act.
(b)The Respondent stated that he did not accept liability for the March 2003 injury. We are satisfied to accept the agreement of the parties that liability was accepted for the March 2003 injury and is not disputed.
(c)The Respondent stated that he did not accept liability for injury in respect of the nature and conditions of Mr Jovanovski’s employment pursuant to section 14 of the Act. We were satisfied from the opinions of Drs Searle, Dalton, Stephenson, Matheson, Weisz and Potter who opined that Mr Jovanovski’s different episodes of back pain between 1979 and 1992 were contributed to by the nature and conditions of his work as a labourer with Telstra, and that the effects of the aggravations had resolved when they examined Mr Jovanovski in 2005/6. We accept their opinions, and decide accordingly, that at 1 September 2005 and at the time of our decision, Telstra has no present liability for Mr Jovanovski pursuant to sections 19, 20, 21 or section 16 of the Act.
(d)Mr Jovanovski’s subsequent and present complaints are not work related, and are due to the degenerative condition of his lumbar spine.
—The effects of the pre-existing degenerative low back condition have overtaken the effects of any work related contribution; (Drs Dalton, Maxwell, Potter)
—Mr Jovanovski has no present entitlement since 1 September 2005 to compensation for work related injury pursuant to sections 19, 20 or 21 of the Act, and is not presently after 1 September 2005 eligible for section 16 medical expenses. We are satisfied that any medication he needs or exercise program he has been recommended to take is in connection with his constitutional degenerative back, and not as a result of work related injury or aggravations.
—Mr Jovanovski is fit for clerical duties which he had been doing for some 13 years before 2005.
The decision was as follows (at [103]–[104]):
103.The Tribunal affirms the decision in Matter N2005/1628.
104.In Matter N2006/835, the Tribunal varies the decision of the Respondent:
(a)We are satisfied that Mr Jovanovski’s different episodes of back pain between 1979 and 1992 were contributed to by the nature and conditions of his work as a labourer with Telstra, and that the effects of the aggravations have resolved so that Mr Jovanovski has no present entitlement since 1 September 2005 and at the date of this decision to compensation for work related injury pursuant to sections 19, 20 or 21 of the Act, and is not presently after 1 September 2005 eligible for section 16 medical expenses. Any subsequent and present complaints are due to the degenerative condition of his lumbar spine.
(b)We find that Mr Jovanovski has no present entitlement since 1 September 2005 to compensation for work related injury pursuant to sections 19, 20 or 21 of the Act, and is not presently after 1 September 2005 and at the date of this decision, eligible for section 16 medical expenses.
(c)The Respondent stated that he did not accept liability for the March 2003 injury. We are satisfied to accept the agreement of the parties that liability was accepted for the March 2003 injury and is not disputed.
There is an issue as to whether the Tribunal was correct in rejecting the application of s 7(1) for the reason given. The Tribunal accepted that the applicant did heavy manual work, including jackhammering, for 18 years. There was ample evidence of the regular use of jackhammers by the applicant.
In cross-examination by counsel for Telstra, Dr Searle gave the following answer:
Now, if for example he was working on a jackhammer and experienced some back pain, do you say the damage was done to the spine at that stage?---It could have been, if it wasn’t - - -
It could have been, but was it?---Well, I don’t know when he was using the jackhammer. If he was using the jackhammer and it wasn’t causing symptoms it would still be causing problems with the spine because it’s also been shown quite clearly that that vibration effect does cause damage to the joints through which the vibration is transmitted.
(Emphasis added.)Dr Dalton, when cross-examined by counsel for the applicant, said:
… they’re doing jackhammering which has got hours of repeated vibration most days, heavy digging, pits, crowbars, that kind of thing, firstly, you would agree that a lot of stress gets placed on the spine. You would agree with that, wouldn’t you?---Yes.
And that if a person has, for example, a constitutionally greater tendency to react in the spine to those kinds of stresses, develop degeneration as a result of those stresses, wearing of the articular cartilage and that kind of thing, then you might expect that that person would develop greater degeneration than someone who didn’t have that constitutional predisposition. Is that correct?---You certainly might expect, you would expect that they would get deterioration; I accept that that’s certainly the case but as I said, it’s interesting people who don’t have load will also get deterioration. So the correlation is not as clear cut as it seems although certainly, if you have a degenerative back and you shovel and dig, it’s not unreasonable that that will render it symptomatic at various times. The extent to which that actually causes acceleration or not is a difficult one and I. think the problem with - - -
It’s a difficult one but it’s not, you don’t say, do you, you don’t go as far as saying that doesn’t happen?---No.
Ever?---No.
All you’re saying is, as I understand you, that in a particular case it may be difficult to determine whether it’s happened?---Yes.
(Emphasis added.)Counsel for Telstra submitted that the applicant gave no evidence of experiencing vibration whilst using a jackhammer that caused him any concern or problems and that there is no mention in any of the medical or compensation records of any issue or problem with vibration. It is submitted that, if that question were to be explored, evidence would be needed including, for example, the type of equipment the applicant was using, the amount of vibration emitted, the length of time that the applicant used any such pieces of equipment and any medical evidence as to the effect of such use. It was also submitted that there was no medical evidence before the Tribunal which opined that the applicant was suffering from a “disease of any nature caused by vibration”.
There is no doubt that the applicant’s employment involved exposure to vibration via use of jackhammers over many years. The evidence of Drs Searle and Dalton, to which I have referred, would provide an arguable basis for finding that the applicant’s back condition was a disorder of muscles, tendons, bones or joints caused by vibration. That finding as to the existence of the occupational disease does not involve any aspect of causation in the particular case. In particular, it does not require a finding that the disorder was caused by vibration in the particular case under consideration. That is the ultimate fact to be determined, with the benefit of the statutory presumption pursuant to s 7(1) where applicable. In practical terms, the question is whether the condition presented is known to be caused by vibration or, put another way, whether it is consistent with being caused by vibration. Then, if employment involved the exposure to vibration, the statutory presumption applies. This alleviates the difficulty of diagnosis referred to by Dr Dalton that would otherwise exist.
The statutory presumption would be of importance if it applied in this case. The applicant had worked with jackhammers for about four years before the first report of back injury. The presumption would, thus, bear upon the initial diagnosis as well as the subsequent diagnoses following the continuation of jackhammer work over the years and the recurrence of back trouble.
The Tribunal was placed in a difficult situation by reason of the issue having been expressly adverted to only after the completion of the hearing in the way it was. However, the Tribunal, by implication, professed to be aware of s 7(1) and then went on to expressly consider that issue in the decision. In doing so, it held that there was no evidence in relation to it. That was not correct. To so hold was an error on a question of law within the meaning of s 44(1) of the Administrative Appeals Tribunal Act (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355 (agreed with by Brennan J and Deane J); Lees v Repatriation Commission (2002) 125 FCR 331 at [21]–[25]).
The appeal must be allowed, the orders below set aside and the cases remitted to the Tribunal to be heard and decided again. That being so, it is neither necessary nor desirable that the other purported grounds of appeal be determined. They involve challenges to decisions on questions of fact that will arise again, but in a somewhat different setting. The constitution of the Tribunal that rehears the cases and the procedure to be adopted are matters for the Tribunal.
Telstra must pay the applicant’s costs of this appeal. Costs of the hearing before the Tribunal should await the ultimate outcome of the case when all relevant aspects can be taken into account by the Tribunal.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate:
Dated: 11 April 2008
Counsel for the Applicant: Mr LT Grey Solicitor for the Applicant: Gerard Malouf & Partners Counsel for the Respondent: Mr N Polin Solicitor for the Respondent: Henry Davis York
Date of Hearing: 2 November 2007 Date of Judgment: 11 April 2008
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