Kallimanis and Linfox Australia Pty Ltd (Compensation)
[2022] AATA 3737
•7 November 2022
Kallimanis and Linfox Australia Pty Ltd (Compensation) [2022] AATA 3737 (7 November 2022)
Division:GENERAL DIVISION
File Number(s): 2021/3157, 2022/2947 & 2022/3308
Re:Eftimios Kallimanis
APPLICANT
AndLinfox Australia Pty Ltd
RESPONDENT
Decision
Tribunal:Deputy President B W Rayment OAM KC
Date:7 November 2022
Place:Sydney
The application for dismissal of the applications for review under s42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
................................[SGD]........................................
Deputy President B W Rayment OAM KC
Catchwords
WORKERS’ COMPENSATION – s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – previous application for review to the Tribunal – previous application affirmed by the Tribunal – new application based on similar facts – not clear that same claim is being made – abuse of process not established – application for dismissal refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)Cases
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535
Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20
Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18
Kallimanis and Linfox Australia Pty Ltd (Compensation) [2020] AATA 1796
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253REASONS FOR DECISION
Deputy President B W Rayment OAM KC
7 November 2022
In these interlocutory proceedings the respondent claims that the present proceedings are an abuse of process, having regard to the fact that in earlier Tribunal proceedings between the same parties, the Tribunal, by Deputy President Constance and Member Dr Bygrave, rejected a relevantly similar claim made by the present applicant. The moving party says that the matters found by DP Constance and Dr Bygrave answer the claim now put forward by the applicant.
The relevant background is that in the earlier Tribunal proceedings, the Tribunal affirmed two reviewable decisions made by Linfox Australia Pty Ltd (‘Linfox’). The first was a reviewable decision of 8 May 2018 that Mr Kallimanis had no present entitlement to payment of compensation for medical treatment expenses and incapacity benefits pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the ‘Act’ or ‘SRC Act’) arising from an accepted left elbow condition. The second was a reviewable decision of 12 April 2019 denying liability to compensate Mr Kallimanis pursuant to the Act for claimed conditions of left ulnar neuritis, left auxiliary nerve lesion and left lateral epicondylitis. Earlier workers’ compensation claims made by Mr Kallimanis, being claims made in January 2017 and thereafter until 26 March 2018 under ss 16 and 19 of the Act, had been accepted by Linfox and paid. They arose from an accident at work in which he suffered on 12 January 2017 an acute rupture of a tendon in the left distal bicep.
The Tribunal’s reasons discuss views as to causation expressed by two specialists qualified by the parties, and prefer the views expressed by Dr Steadman, called by Linfox.
The decision of the Full Court of the Federal Court in Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18 (Allsop CJ, Reeves and Derrington JJ) resolves a number of matters which affect the present application.
Snell was concerned with the Seafarers Rehabilitation and Compensation Act 1992 s 78 and its interaction with the Administrative Appeals Tribunal Act 1975.
Section 78 of the Seafarers Rehabilitation and Compensation Act 1992 is cognate with a provision of the Safety, Rehabilitation and Compensation Act 1988: s 62. Sections 62(1) and (2) of the latter Act provide as follows:
62 Reconsideration of determinations
1A determining authority may, on its own motion:
(a)reconsider a determination made by it; or
(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
2A request to a determining authority to reconsider a determination made by it may be made by:
(a)the claimant; or
(b)if the determination affects the Commonwealth—the Commonwealth; or
(c)if the determination affects a Commonwealth authority—that Commonwealth authority.
An “earlier determination” will include a case in which this Tribunal has given the relevant decision in place of an internal review decision, because s 43(6) of the Administrative Appeals Tribunal Act 1975 provides that:
43 Tribunal’s decision on review
6A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
As was held by the Court in Snell, it follows that (in an SRC Act case) the Tribunal may reconsider an earlier Tribunal determination deemed for all purposes to be an earlier determination of the respondent, and it also follows that no issue estoppel exists in the Tribunal. More generally, the Court in Snell stated that the doctrine of issue estoppel is not apposite to the constitutional and statutory context of this Tribunal. In an SRC Act case in particular, it was decided that section 62 produced the result that the Tribunal was not bound by its own earlier decisions between the same parties. Its obligation in the later proceedings is to consider the evidence before it, and not to reject it on the ground that it is inconsistent with an earlier Tribunal decision. If nothing is added to the evidence led before the earlier Tribunal, and the later proceeding is not disposed of summarily, then the earlier Tribunal decision will have significant if not overwhelming weight.
The Court referred to the earlier Full Court decision of Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 which, in the light of the text, structure and underlying policy of the Safety, Rehabilitation and Compensation Act 1988, did not suggest that any decision made under it “permanently enshrines’ every finding of fact on which it is made. The Court there said that s 62 specifically permitted the employer to reconsider earlier decisions at any time, including reconsidering any prior finding of fact. As Conti J, with whose reasons the other members agreed said, the Act allows for progressive and evolving decision-making, for adjustment or change in light of events and circumstances which may subsequently happen.
The court approved the reasons of Bennett J in Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20, to the effect that reconsideration (under s 62) is “not confined”. Reconsideration is “untrammelled by any previous determination”. In cases involving the same facts and issues already determined, it is open to the Tribunal to proceed in the same manner, but there is no requirement for it to do so. Earlier findings of fact can be revisited when reviewing a different reviewable decision. Bennett J observed that it is open to the later Tribunal to analyse the necessary facts, including further medical reports, and even to determine that there never had been a causal relationship between the conditions of the applicant and his or her work.
On the other hand, her Honour said, it is also open to the Tribunal to limit issues so as to exclude issues resolved in the earlier proceedings.
As to a typical case in which it will be appropriate to order summary dismissal, the Court in Snell said at [78]:
That is not to say that dissatisfied employees under the Seafarers Act might simply make repetitious claims based on substantially the same facts and require the Tribunal to constantly review the rejection of the same by the employer. The Tribunal has considerable power under s 42B to expeditiously deal with any such applications for review. Such proceedings may be easily seen as frivolous, vexatious, misconceived or lacking in substance. Alternatively, they may be seen as an abuse of process and it is to be kept in mind that the categories of cases which fit that description are not closed and cannot be exhaustively defined. A careful review of the authorities concerning the concept of abuse of process was undertaken by Perry J in Novosel v Comcare (2017) 72 AAR 269 at [104]-[114]. Nevertheless, before the Tribunal determines to dismiss a proceeding relying on s 42B it would need to be satisfied that the proceeding was of such a nature that the issues raised should not be accorded a proper hearing.
In this case, Linfox seeks summary dismissal of the proceedings on those grounds. Mr Richard Douglas KC, who argued the case for Linfox, recognised that at a verbal level, the particular conditions which the applicant seeks to agitate on the present review are different from those described in the previous proceedings. Claims about other injuries could not have been ruled upon in the earlier proceedings because they had not been considered by Linfox. At best from the applicant’s point of view, the case could have been adjourned to enable Linfox to make an original decision, an internal review decision, and then the matter could have been brought back on for hearing to deal with all reviewable decisions at once.
An applicant will not be permitted, after an adverse Tribunal decision, simply to make the same claim again on substantially the same facts. That is the kind of thing referred to by the Full Court in Snell at [78]. Mr Douglas sought to suggest that the two reports now relied upon by the applicant do no more than restate the same case as the applicant relied upon in the earlier proceedings.
Mr Douglas drew attention to the fact that no attempt has been made in the reports filed by the applicant to identify any error in the evidence led before the earlier Tribunal. That may be an indication that the applicant did not anticipate the present application at the time of filing the reports. No directions have so far been made in this case. The doctors relied upon by the applicant may put on evidence in reply to any witnesses called by the respondent. Because directions have not yet been made in this case, it is not necessarily the case that when Dr Boesel and/or Dr Ho prepare reports suitable for tender in chief, they will not be asked to comment on evidence led before the earlier Tribunal.
Mr Douglas submitted that the incurring of costs by Linfox produces the unfairness required by the abuse of process authorities.
I am inclined to accept that submission insofar as the case is put as an abuse of process if the case for an order under s 42B is otherwise made out.
The Tribunal should be slow to make an order under s 42B, unless the case for summary dismissal is clearly made out.
Mr Douglas took me to the reasons of the earlier Tribunal and to the terms in which Dr Ho and Associate Professor Boesel expressed themselves in reports served by the applicant on Linfox. The medium neutral citation of the earlier Tribunal decision is [2020] AATA 1796.
Associate Professor Boesel, a pain management physician, examined the applicant. His report says as to diagnosis:
Mr Kallimanis is indeed suffering from a complex pain disorder of the left upper limb. He has the following relevant diagnoses:
·Left-sided neuropathic pain in the ulnar nerve distribution related to compression at the elbow. This has not improved with surgical cubital tunnel release and causes persistent difficulties.
·Left-sided lateral epicondylitis.
·Left-sided rotator cuff (supraspinatus) partial tear with chronic shoulder pain.
·Residual tendinopathy of the reattached distal biceps tendon.
As to causation he says:
It is clear that he suffered the biceps tendon injury at the time of the incident. On history and on subsequent developments, he appears to have had left-sided ulnar nerve symptoms from very early on in the course. Given the early nature of his surgery to correct the biceps tendinosis and the persistent pain in spite of the operation, I am satisfied that the ulnar nerve symptomatology arose in the postoperative recovery period. I am uncertain as to the time-point when the pathology started. It is possible that the tear occurred at the time of his injury, with the pain having been masked by the severe biceps pathology. Alternatively, it may have occurred during the recovery process. The starting timepoint is somewhat unclear.
I do point out that Mr Kallimanis was a highly physically active gentleman with an occupation that required robust upper limb function. He appears never to have been symptomatic prior to the occasion of his injury. As such, I am very reluctant to allocate any of the pathologies he has to significant pre-existing condition.
One aspect of the report deals expressly with a matter dealt with in the reasons of DP Constance and Dr Bygrave. They accepted evidence given by Dr Steadman that to the extent to which Mr Kallimanis had a continuing condition, it was caused by constitutional factors, unrelated to the employment. The earlier Tribunal preferred that view to evidence from Dr Pillemer. Possibilities mentioned by Dr Pillemer resemble some discussed in the Boesel report.
Dr Ho, a specialist in pain and rehabilitation medicine, found the applicant to suffer from chronic pain syndrome, which he diagnosed from three causes:
1Chronic nociplastic shoulder/elbow secondary to central sensitisation, post repair of left biceps tendon.
2Chronic neuropathic upper extremity pain secondary to left ulnar neuropathy, central sensitisation.
3Cortical augmentation with adjustment disorder, catastrophisation and reduced self-efficacy.
He said that the above diagnoses are “triggered by the workplace injury as above, contributed to by central sensitisation, perpetuated by adjustment disorder, catastrophisation and reduced self-efficacy. I opine that Mr Kallimanis has not reached maximum medical improvement as there is further active treatment planned.”
Neither the complex pain syndrome mentioned in the Boesel report nor the chronic pain syndrome discussed by Dr Ho were expressly mentioned in the findings made by the earlier Tribunal, although there was a mention at [116] of chronic pain syndrome in reports of a witness not called before the earlier Tribunal.
There are clear intersections between the evidence which the earlier Tribunal preferred and the reports of Associate Professor Boesel and Dr Ho. Dr Allan, a psychiatrist, wrote a report premised upon the report of the earlier in point of time of the pain specialists relied upon by the applicant (Dr Ho). It is, of course, not unusual for specialists from different medical disciplines to express different views about similar facts.
A reading of the reports does not make it clear to me that the applicant is relying on the Boesel and Ho reports to make the same claim on substantially the same facts. For instance, as mentioned above, the Boesel report does appear to contradict the opinion advanced by Dr Steadman that the continuing problems suffered by the applicant are constitutional in origin. Whether the Boesel view that condition was not constitutional proceeded from the same reasoning as advanced by Dr Pillemer is not clear to me from the reasons of the earlier Tribunal.
If evidence reveals to be correct the proposition that the applicant is seeking to make substantially the same claim on substantially the same facts, then Linfox may seek to pray in aid the earlier Tribunal decision, in addition to calling again Dr Steadman, or other evidence to the same effect.
Mr Mrsic for the applicant, amongst other matters, placed stress on the High Court decision in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 at 540 [10]. In the course of rejecting a submission based upon that decision, the Full Court in Snell at [91] pointed out that the Canute case says nothing about the factual causation of two distinct consequences flowing from the same event, each of which consequences can be regarded as distinct injuries. Two injuries may stem from one cause. An injured worker must establish that the common cause is work-related.
It seems to me that Linfox’s submissions on this application amount to a submission that the same consequences are still alleged to follow as were asserted in the earlier Tribunal proceedings, and for the same reason or reasons. That is a submission that I have decided is not so clearly established to justify an order being made under s 42B of the Administrative Appeals Tribunal Act 1975, on any of the grounds mentioned in that section, including abuse of process.
Linfox’s application is therefore refused.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC
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Associate
Dated: 7 November 2022
Date(s) of hearing: 28 September 2022 Counsel for the Applicant: Mr J Mrsic Solicitors for the Applicant: Mr G Watson, Grieve Watson Kelly Lawyers Counsel for the Respondent: Mr R Douglas KC Solicitors for the Respondent: Ms E Stower, HWL Ebsworth Lawyers
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