McQueen-Thomson and K&S Freighters Pty Ltd (Compensation) - [2016] AATA 510

McQueen-Thomson and K&S Freighters Pty Ltd (Compensation) [2016] AATA 510 (20 July 2016)

Division

GENERAL DIVISION

File Number

2014/5365

Re

Andrew McQueen-Thomson

APPLICANT

And

K&S Freighters Pty Ltd

RESPONDENT

DECISION

Tribunal Dr Damien Cremean, Senior Member

Date 20 July 2016

Place Melbourne
The Tribunal sets aside the decision under review and in substitution decides that:
(a)The Applicant suffered incapacity as a result of an injury to the left shoulder, the subject of a claim for compensation dated 5 June 2014, which arose out of or in the course of employment, or to which employment with K&S Freighters Pty Ltd contributed to a significant degree. This gives rise to entitlement to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (the ‘Act’);
(b)The matter is further remitted to the Respondent to calculate the Applicant’s specific entitlements to compensation in respect of:
(i)The costs of all medical and related treatment expenses incurred in respect of the injury pursuant to section 16 of the Act; and
(ii)Weekly payments of compensation in respect of incapacity for work pursuant to section 19 of the Act.

(c)The Respondent is ordered to pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the Act.

.....................................[sgd]...................................
Dr Damien Cremean, Senior Member
COMPENSATION – left shoulder injury – injury or injury (other than a disease) – disease – ailment or aggravation of an ailment – meaning of aggravation – meaning of significant – whether false and wilful statement – decision under review set aside.
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B, 7(7), 14, 53, 67
Cases
Comcare v Reardon (2015) 148 ALD 356
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Jones v Dunkel (1959) 101 CLR 298
Military Rehabilitation and Compensation Commission v May (2016) 90 ALJR 626
Re Muscat and Australian Postal Corporation [2016] AATA 13
Re Wilson and Comcare [1996] AATA 862
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
20 July 2016

This is an application for review of a decision (the ‘reviewable decision’) of the Respondent made on 9 September 2014.
The reviewable decision affirms a determination made on 30 July 2014 that the Respondent is not liable to pay compensation to the Applicant under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the ‘Act’) in respect of the Applicant’s left shoulder injury.
The matter was heard by the Tribunal between 8 February 2016 and 10 February 2016. At the hearing, the Applicant was represented by Mr Mark Carey of Counsel, instructed by Maurice Blackburn. The Respondent was represented by Mr Michael Snell of Counsel, instructed by Clarke Legal.
The Applicant, Mr McQueen-Thomson, gave sworn evidence. Medical evidence was called on his behalf. The Respondent called only medical evidence.
In what follows, I provide an outline of the Applicant’s…

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: [2016] AATA 510
Decision Date: 20 July 2016

CaseChat Overview and Summary

This matter concerned an application for compensation by Mr McQueen-Thomson against his former employer, K&S Freighters Pty Ltd, before Senior Member Dr Damien Cremean. The dispute arose from an injury Mr McQueen-Thomson sustained to his right shoulder on 17 December 2012, while employed by K&S Freighters, which he alleged resulted in his incapacity for work. The Respondent contended that Mr McQueen-Thomson was precluded from receiving compensation under section 7(7) of the relevant Act due to a wilful and false representation made in connection with his employment.

The primary legal issue before the Senior Member was whether Mr McQueen-Thomson was disqualified from receiving compensation under section 7(7) of the Act. This section precludes compensation for a disease or aggravation of a disease if the employee made a wilful and false representation that they did not suffer, or had not previously suffered, from that disease for purposes connected with their employment or proposed employment. The Senior Member was required to determine if Mr McQueen-Thomson's actions, specifically his response to a question concerning his health, constituted such a wilful and false representation made for the relevant purposes.

The Senior Member found that the Applicant had suffered an injury to his left shoulder which resulted in incapacity for work, and that this was not in dispute. The critical determination was the application of section 7(7). The Senior Member was not satisfied that, in answering "No" to a particular question (question 13), Mr McQueen-Thomson was making a representation for purposes connected with his employment. Instead, the Senior Member concluded that his purpose in answering the question was connected with his injury or illness, rather than his employment. Consequently, the Senior Member was satisfied that the Applicant's injury was compensable under the Act.

The Senior Member set aside the decision under review and substituted a decision that the Applicant did suffer incapacity as a result of an injury to his left shoulder arising out of or in the course of employment, or to which employment contributed to a significant degree. The matter was remitted to the Respondent to calculate the Applicant's entitlements for medical expenses and weekly payments, and the Respondent was ordered to pay the Applicant's costs.

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

In what follows, I provide an outline of the Applicant’s evidence and that of the witnesses for both parties. Outline of EvidenceApplicant The Applicant, Mr McQueen-Thomson, was born on 17 July 1953 and was aged 62 at the date of hearing. He is now aged 63. The Applicant commenced work with K&S Freighters Pty Ltd in 2005. The Applicant had previously worked for Douglas Transport Management before that business was taken over by the Respondent. The Applicant was dismissed from his employment with the Respondent on 29 July 2014 due to a driving incident that had taken place in the preceding week. The Applicant graduated from School at Xavier College. Following this, the Applicant commenced an apprenticeship in motor mechanics. Shortly after commencing his apprenticeship, the Applicant enlisted in the Australian Army. However, due to a back injury, for which he underwent surgery, he was discharged from the Army in around February 1974. Following his discharge from the Army, the Applicant completed his High School Certificate. The Applicant did casual work in various locations, mostly involving driving. He recalls driving concrete trucks and buses and doing some factory work. In 1982, the Applicant undertook studies in applied biology at the Gippsland Institute of Advanced Education. He did not complete these studies, having in 1985 returned home to live with and care for his mother after his father died. After returning home, the Applicant again took up casual driving. He can recall working on buses and taxis as well as doing general freight delivery driving semi-trailers and rigid trucks. In around 2005, he took up steady employment with the Respondent working full time. This work involved doing at least 55 hours per week including overtime. He was mainly in mini bulk tank work. This mostly involved the transportation of liquefied refrigerated carbon dioxide (colloquially referred to as dry ice). This is a product used in adjusting the pH levels of swimming pools, food processing and packaging and in engineering as a mix for other gases for welding purposes. It is also used for various purposes in the hotel and catering industries. The Applicant worked mostly on 4-tonne tankers but would work sometimes on 8-tonne tankers. The liquefied product on board the vehicle would be unloaded via hose and pumped into tanks at the various delivery points. The hose connected either at chest height or at shoulder height depending on the vessel concerned. Lifting the hoses imposed a deal of physical strain on the Applicant as they were quite heavy. A typical vessel could take 20-25 minutes to fill. At some locations there could be as many as four vessels to fill. At the end of each vessel fill, the hoses would be disconnected and then reeled in. Mr McQueen-Thomson would often do as many as eight deliveries in the metropolitan area and a further four in a country area per day. On 17 December 2012, the Applicant suffered an injury to his right shoulder while delivering liquefied carbon dioxide to a client in Tullamarine. He was helping a forklift operator offload a container which held about 300 kg of product and was on castors. While standing on the side of his truck, the Applicant lost his footing due to the wet and slippery conditions and fell onto the concrete.

Decision

Reasons for decision

In any event, I am not satisfied that, in answering No to question 13, the Applicant was making any representation for purposes connected with his employment. As I see it, his purposes in reality had nothing to do with his employment, except in a necessary factual sense, but were connected with his injury or illness.Conclusion For the reasons given, I am satisfied that the Applicant’s injury is a compensable one under the Act and that he is entitled to compensation accordingly. Accordingly, the decision under review must be set aside. In substitution, I decide that:(a)The Applicant did suffer incapacity as a result of an injury to the left shoulder, the subject of a claim for compensation dated 5 June 2014) which arose out of or in the course of employment, or to which employment with K&S Freighters Pty Ltd contributed to a significant degree and which gives rise to entitlement to compensation pursuant to the Act.(b)The matter is further remitted to the Respondent to calculate the Applicant’s specific entitlements to compensation in respect of: (i)the costs of all medical and related treatment expenses incurred in respect of the injury, pursuant to section 16 of the Act; and (ii)weekly payments of compensation in respect of incapacity for work, pursuant to section 19 of the Act. (c)The Respondent must pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the Act.

Ratio Decidendi

Legal Principle Established

The Respondent contends that the Tribunal should make a decision affirming the reviewable decision. In particular, the Respondent submits that the Applicant is precluded from receiving compensation by section 7(7) of the Act.ConsiderationRelevant Legislation Pursuant to section 14 of the Act, the Respondent is liable to pay compensation in accordance with the Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 4(9) of the Act defines an incapacity for work as an incapacity for work suffered by an employee as a result of an injury. Sections 4(9)(a) and (b) define incapacity as an incapacity to engage in any work or to engage in work at the same level the employee was engaged in immediately before the injury occurred. An injury is defined in section 5A(1) of the Act as a disease suffered by an employee or 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 such employee’s employment. A disease is defined in section 5B(1) of the Act as an ailment suffered by an employee or an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment. By section 4(1) of the Act aggravation of an ailment includes an acceleration or recurrence. An ailment is defined in section 4(1) of the Act as meaning any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). The term significant degree is defined in section 5B(3) of the Act as meaning a degree that is substantially more than material. Matters which may be taken into account in determining this question of degree are set out in section 5B(2) of the Act. They include, amongst others, the duration of an employee’s employment and the nature of, and particular tasks involved in, that employment. Section 5B(2) allows other matters to be taken into account, and places no limit on the scope of these. Section 7 of the Act includes further provisions in relation to diseases. Relevantly to this case, section 7(7) of the Act precludes compensation in certain circumstances, providing thatA 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. I should say at the outset that I am satisfied, on the balance of probabilities, that the Applicant has suffered an injury to his left shoulder and that this has resulted in his incapacity for work or impairment. As I see the matter, the question of the existence of an injury and subsequent incapacity was not in issue. It was not suggested that the Applicant was fabricating his evidence. Nor was it suggested that the Applicant was exaggerating or overstating the nature of his injury. Indeed, the Applicant was described as stoical by one witness.

Division	GENERAL DIVISION
File Number	2014/5365
Re	Andrew McQueen-Thomson
APPLICANT
And	K&S Freighters Pty Ltd
RESPONDENT

Tribunal	Dr Damien Cremean, Senior Member
Date	20 July 2016
Place	Melbourne