Kaukau and Cleanaway Operations Pty Ltd (Compensation) - [2022] AATA 998

Kaukau and Cleanaway Operations Pty Ltd (Compensation) [2022] AATA 998 (4 May 2022)
Division:GENERAL DIVISION
File Number: 2020/2351
Re:Mervyn Kaukau
APPLICANT

AndCleanaway Operations Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:4 May 2022
Place:Perth

The decision of the respondent dated 20 April 2020 which affirmed the determination of 3 March 2020 is set aside and substituted with a decision that the respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the right ankle injury suffered by the applicant on 29 October 2019.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
COMPENSATION – liability to pay compensation for injury suffered under s 14 of the SRC Act – claimed injury of “right ankle inflammation and loose bodies” – previous injury to right ankle – respondent raised defence under s 7(7) of the SRC Act at hearing – applicant’s understanding of relevant forms in answering questions about previous injury – applicant did not make wilful and false representations – preferable medical evidence – applicant suffered an injury under s 5A(1)(c) of the SRC Act – respondent is liable to pay compensation – reviewable decision set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1), 5A(1)(b), 5A(1)(c), 5B, 5B(1)(b), 7(7), 14, 14(1), 16, 19, 54
CASES
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Davis and Australian Postal Corporation [2021] AATA 30
K&S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518
Lees v Comcare [1999] FCA 753
McQueen-Thomson and K&S Freighters Pty Ltd [2016] AATA 510
REASONS FOR DECISION
Deputy President Boyle
4 May 2022
THE APPLICATION

The applicant seeks the review of a decision of the respondent dated 20 April 2020[1] which affirmed a determination of 3 March 2020 which determined that the respondent was not liable to pay compensation to the applicant in accordance with ss 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of “Right ankle inflammation and loose bodies’ claimed to have been sustained on 28 October 2019”.[2]
[1] R1, T21.
[2] R1, T17/76.
BACKGROUND
The applicant is 63 years old. He was formerly employed by the respondent as a waste and vehicle operator at the Chevron site on Barrow Island on a fly-in-fly-out basis.
The applicant says that on 29 October 2019, in the course of his employment with the respondent, he stepped on a rock and rolled his right ankle[3] and that as a result he suffered an “inversion injury which resulted in a pre-existing injury with degenerative changes being aggravated and exacerbated”.[4]
[3] applicant's statement of facts, issues and contentions filed 27 April 2021 (applicant’s SFIC) para 1.
[4] applicant's SFIC para 2.
In 1984 the applicant suffered an injury to his right ankle which was repaired through surgery which involved the insertion of two screws.[5] He says that following that surgery he did not have any symptoms or disability until 2014/2015.…

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: [2022] AATA 998
Decision Date: 4 May 2022

CaseChat Overview and Summary

The applicant, Mr Kaukau, sought compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) for an injury to his right ankle, described as "right ankle inflammation and loose bodies." The respondent, Cleanaway Operations Pty Ltd, raised a defence under section 7(7) of the SRC Act, alleging the applicant had made wilful and false representations regarding a previous injury to his right ankle. The matter came before Deputy President Boyle of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant had suffered an "injury" as defined by the SRC Act, specifically whether his condition constituted an aggravation of a pre-existing injury that arose out of or in the course of his employment. Furthermore, the Tribunal had to consider whether the respondent had successfully established the defence under section 7(7) of the SRC Act, meaning the applicant had made wilful and false representations about his previous ankle condition. Finally, the Tribunal needed to ascertain if the injury resulted in an incapacity for work.

Deputy President Boyle found that the applicant did roll his ankle as claimed on 29 October 2019, resulting in an aggravation of a pre-existing condition that arose out of or in the course of his employment. This satisfied the definition of an injury under section 5A(1)(c) of the SRC Act. The Tribunal preferred the medical evidence supporting the applicant's claim over that of the respondent, finding that the applicant had not made wilful and false representations regarding his previous injury, thus the defence under section 7(7) was not made out. The Tribunal also found, based on medical certificates, that the injury resulted in an incapacity for work.

Consequently, the Tribunal set aside the respondent's decision and substituted a new decision finding the respondent liable to pay compensation under section 14 of the SRC Act in respect of the applicant's right ankle injury.

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

On 23 April 2020 the applicant applied to the Tribunal for the review of the respondent’s decision of 20 April 2020.THE HEARING AND THE EVIDENCE The application was heard on 23, 24 and 25 August 2021. Mr K Wong of Soul Legal (the applicant’s solicitors) appeared as counsel for the applicant on the first day of the hearing and Mr B Nugawela appeared as counsel for the applicant on the subsequent days. Mr C Clark appeared as counsel for the respondent. The following witnesses gave evidence: (a)The applicant;(b)Joanne Marie Cunard;(c)Kyle Martin Eagar;(d)Dr Timothy Ong;(e)Associate Professor Gerard Hardisty (Professor Hardisty);(f)Robert Te; and(g)Professor Peter Steadman. The following documents were admitted into evidence:(a)The applicant’s book of further documents dated 27 April 2021 (A1);(b)The applicant’s supplementary book of further documents dated 12 August 2021 (A2);(c)Applicant’s book of payment slips dated 6 April 2021 (A3);(d)Applicant’s book of statutory allowances dated 1 April 2021 (A4);(e)Submissions and further evidence filed pursuant to directions of the Tribunal dated 30 March 2021 (A5);(f)T-documents (R1);(g)The respondent’s hearing book filed 12 August 2021 (R2);(h)Email from Mr Leon Demarte dated 26 November 2019 (R3);(i)Letter from the respondent to Professor Steadman dated 17 August 2020 (R4); and(j)Letter from the respondent to Professor Steadman dated 21 December 2020 (R5). The following written closing submissions were provided by the parties:(a)The respondent’s outline of submissions filed on 15 October 2021 (respondent’s closing submissions);(b)The applicant’s closing submissions filed on 19 November 2021; and(c)The respondent’s outline of reply submissions filed on 26 November 2021. LEGISLATIVE FRAMEWORK Section 14(1) of the SRC Act relevantly provides:Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. “Injury” is relevantly defined in s 5A(1) of the SRC Act to mean:(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;… “Disease” is relevantly defined in s 5B of the SRC Act to mean:(a)an ailment suffered by an employee; or(b)an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee. Section 7(7) of the SRC Act provides:A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

Decision

Reasons for decision

The only other issue, and one that was raised by the applicant only (see [26] above) is whether the injury has resulted in an incapacity for work. This issue was not specifically addressed by the parties either in their submissions or at the hearing. However, on the basis of the medical certificates issued which are included in the papers admitted into evidence,[183] I find that the injury suffered by the applicant on 29 October 2019 did result in an incapacity for work. [183] A1, 27–68; see also R1, T5; R1, T6; R1, T8; R1, T10; R1, T14; R1, T16; R1, T17; R1, T20.DECISION I make the following findings:(a)The applicant did roll his ankle as claimed on 29 October 2019.(b)The applicant thereby suffered an aggravation of a pre-existing condition and that that aggravation arose out of or in the course of the applicant’s employment. The applicant has therefore suffered an injury as that term is defined in s 5A(1)(c) of the SRC Act.(c)The respondent has not made out a defence to the applicant’s claim under s 7(7) of the SRC Act.(d)The injury has resulted in an incapacity for work. As a result of the above findings, I find that the correct or preferrable decision is that the decision of the respondent dated 20 April 2020 which affirmed the determination of 3 March 2020 be set aside and in substitution there be a decision that the respondent is liable under s 14 of the SRC Act in respect of the right ankle injury suffered by the applicant on 29 October 2019.

Ratio Decidendi

Legal Principle Established

The applicant summarised and addresses[103] the three probable scenarios in Dr Steadman’s report of 21 January 2021[104] as follows:(a)Professor Steadman ruled out the first scenario (ankle asymptomatic with a minor injury causing a major hindfoot derangement) because he disbelieved the applicant’s history of being symptom-free prior to 29 October 2019, disregarded the results of two pre-employment medical examinations conducted in 2018, dismissed the radiological findings of post-traumatic changes and used part of a blood test result to diagnose autoinflammatory disorder. He conceded at the hearing that the last of those was merely a suspicion and not a diagnosis.(b)Professor Steadman’s second scenario (pre-existing long-term pathology with subsequent onset of autoinflammatory chronic infection) is contradicted by the applicant’s history of being symptom free and relies on the wrong diagnosis of an autoinflammatory infection and ignores the lack of any change in the underlying pathology shown by the 2014 and 2015 x-rays.(c)The third scenario, chronic sepsis, is not supported by any evidence and is a mere suspicion of a rheumatological disorder.Consideration[103] applicant's closing submissions para 27.[104] R2, 147–51.The medical evidence As is often the case, the outcome of this application will be determined by which of the competing expert medical opinions is preferred. The applicant primarily relies on the reports and opinions expressed by Professor Hardisty and the respondent primarily relies on the views of Professor Steadman. Both doctors gave evidence at the hearing.Professor Hardisty Professor Hardisty provided two reports.Report dated 9 November 2020 Professor Hardisty examined the applicant on 9 November 2020.[105] Professor Hardisty identified that he had, amongst other records, the report of Professor Steadman dated 28 August 2020 with MRI, Dr Andrej Nikoloski’s report dated 30 April 2020 and records from Fremantle Hospital, Royal Perth Hospital and Queens Park Medical Centre.[106][105] A1, 1.[106] A1, 1–2. The prior injury history provided by the applicant as recounted in Professor Hardisty’s report is set out at [47] above. Relevantly, the report otherwise stated:Injuries Sustained1.Inversion injury of right ankle – exacerbation of ankle degenerative changes.TreatmentSurgical1. Approximately April 1984 open reduction and internal fixation medial malleolus fracture.2. Approximately April 2016 removal of two medial malleolus screws.Other TreatmentsFollowing the removal of the screws he did not require any treatment.…Current Symptoms1. Pain – he gets pain in his right ankle, particularly when he first gets up in the morning.He feels that laterally and sometimes medially and in the arch of his foot.2. He has stiffness in his right ankle, and it is hard for him to walk because of the stiffness and pain, and he uses crutches.3. He feels his right ankle is unstable. He has not had any specific giving way of his ankle. It has not locked up.4. Occasional swelling in his right ankle.Current MobilityHe is using crutches when he goes out. He cannot walk any great distance due to the pain. He is unable to play sport or go to the gym. Prior to the accident he was doing up to 2km on the treadmill either in the onsite gym or in his private gym. He is no longer doing any gym work. He maintains he used to go fishing down at Fremantle, walking on the rocks and he is unable to do this.