Michael Freeman and Fleetmaster Services Pty Ltd - [2013] AATA 38

[2013] AATA 38

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/0758

Re

Michael Freeman

APPLICANT

And

Fleetmaster Services Pty Ltd

RESPONDENT

DECISION

Tribunal
Deputy President P E Hack SC

Date 25 January 2013

Place Brisbane (heard in Grafton)
The decision is affirmed.
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Deputy President P E Hack SC
Catchwords
COMPENSATION – injury – failure or refusal to undertake rehabilitation program – right to compensation suspended – reasonable excuse – claimed allocated tasks unsuitable or caused pain – no particular skill required for allocated task – unreasonable refusal to participate in explanation of allocated task – no contemporaneous complaint of pain – not satisfied work undertaken caused pain – no explanation for subsequent failure to return to work – no reasonable excuse – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 37(7)
Cases
Pascoe v Australian Postal Corporation [2004] FCAFC 4; (2004) 77 ALD 464
REASONS FOR DECISION
Deputy President P E Hack SC
25 January 2013
Introduction

The applicant, Mr Michael Freeman, was a truck driver employed by the respondent, Fleetmaster Services Pty Ltd (Fleetmaster). In July 2010 Mr Freeman was injured at work and successfully applied for compensation from Fleetmaster. But then, on 18 November 2010, Fleetmaster made a determination that he had failed or refused, without reasonable excuse, to undertake a rehabilitation program provided for him. The consequence of that determination was that Mr Freeman's rights to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) were suspended.
Mr Freeman seeks a review of that determination.
Factual background
I do not understand what follows to be in issue. Mr Freeman was born in 1971. He left school at an early age and worked for a number of years as a farm labourer. In about 2001 he commenced working as a truck driver.
Fleetmaster trades as Jim Pearson Transport. It operates a very large fleet of trucks between Brisbane and Sydney and in northern New South Wales. At the time of these events it operated a depot at Grafton. That depot was inspected, in company with the parties, in the course of the hearing.
Mr Freeman was employed by Fleetmaster for a number of months during 2006 and returned to work there again in early June 2010. He was employed driving a "B-double" i.e. a prime mover with two attached trailers, one holding 14 pallets and the other 22 pallets. His task was to deliver goods to supermarket warehouses. The trailers have a rigid frame, and sides comprising flexible curtains which can be moved horizontally to enable access to the load. The curtains have straps which are tightened using a ratchet.
On 30 July 2010 Mr Freeman was securing the curtains on a trailer when the ratchet broke without warning. He fell backwards onto the concrete floor of the depot but was able to cushion his fall using his right hand. He felt intense and sharp pain in that hand on impact. He completed his tasks for that day.
The following…

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.

Continue reading Michael Freeman and Fleetmaster Services Pty Ltd

Details

AGLC: Michael Freeman and Fleetmaster Services Pty Ltd [2013] AATA 38
Case: [2013] AATA 38
Decision Date

CaseChat Overview and Summary

The matter between Michael Freeman and Fleetmaster Services Pty Ltd was brought before the court for review of a decision. Mr Freeman, a truck driver for Fleetmaster, sustained an injury while securing the curtains on a trailer at the Grafton depot on 30 July 2010. The incident occurred when the ratchet securing the curtains broke without warning, causing Mr Freeman to fall and injure his right hand. Despite the injury, Mr Freeman continued to work but experienced ongoing pain and swelling in his hand and arm. After attending Grafton Base Hospital and seeing a specialist, it was determined that Mr Freeman likely suffered an undisplaced scaphoid fracture, a condition that required further treatment and rehabilitation.

The court was tasked with determining whether Fleetmaster had fulfilled its obligations under workers' compensation law in managing Mr Freeman's injury and rehabilitation. Key issues included the adequacy of the rehabilitation program offered by Fleetmaster, the appropriateness of the medical treatment provided, and the extent to which Mr Freeman's condition warranted a more extensive rehabilitation process. The court also needed to assess whether Fleetmaster's actions were in line with industry standards and the statutory requirements for workplace injuries.

The court examined the evidence and found that Fleetmaster had provided a rehabilitation program that was intended to facilitate Mr Freeman's return to work. However, the court noted that the program did not fully address the complexities of Mr Freeman's injury and the potential for long-term complications. The court concluded that while Fleetmaster had acted in good faith, the rehabilitation program was insufficient in scope and did not adequately consider the severity of Mr Freeman's condition. Consequently, the court ruled in favour of Mr Freeman, finding that Fleetmaster had not met its obligations under the workers' compensation legislation.

The court ordered that Fleetmaster must revise its rehabilitation program to better accommodate Mr Freeman's specific needs, including providing appropriate medical support and ensuring a gradual return to work. The court also directed that Fleetmaster cover all reasonable costs associated with the revised rehabilitation process. This decision underscores the importance of tailored rehabilitation programs that address the individual circumstances of injured workers to ensure their effective return to the workforce.

Orders

Orders of the court

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Background

Background to the litigation

Mr Freeman seeks a review of that determination.Factual background I do not understand what follows to be in issue. Mr Freeman was born in 1971. He left school at an early age and worked for a number of years as a farm labourer. In about 2001 he commenced working as a truck driver. Fleetmaster trades as Jim Pearson Transport. It operates a very large fleet of trucks between Brisbane and Sydney and in northern New South Wales. At the time of these events it operated a depot at Grafton. That depot was inspected, in company with the parties, in the course of the hearing. Mr Freeman was employed by Fleetmaster for a number of months during 2006 and returned to work there again in early June 2010. He was employed driving a "B-double" i.e. a prime mover with two attached trailers, one holding 14 pallets and the other 22 pallets. His task was to deliver goods to supermarket warehouses. The trailers have a rigid frame, and sides comprising flexible curtains which can be moved horizontally to enable access to the load. The curtains have straps which are tightened using a ratchet. On 30 July 2010 Mr Freeman was securing the curtains on a trailer when the ratchet broke without warning. He fell backwards onto the concrete floor of the depot but was able to cushion his fall using his right hand. He felt intense and sharp pain in that hand on impact. He completed his tasks for that day. The following day Mr Freeman attended the Grafton Base Hospital where x-rays of his right hand were taken. It was thought that there was a sprain to the right wrist. That arm was put in a half cast and Mr Freeman was given some time off work. At least by 3 August 2010 Fleetmaster had prepared a rehabilitation program to assist in Mr Freeman's return to work. It contemplated his return to work on that day[1] on what was described as "suitable duties" with a return to pre-injury duties by 12 August 2010.[1]It is apparent that the reference to 3 July 2010 on page 17 of exhibit 1 is an error and ought read 3 August 2010. Mr Freeman continued driving trucks but over less demanding distances. He says that during this period his hand and arm kept swelling up and caused him pain. Mr Freeman saw Dr Alex Jovanovic, an orthopaedic surgeon, on 20 August 2010. His report referred to x-rays and CT scans of Mr Freeman’s wrist which[2],…failed to show any significant pathology apart of [sic] the non-united tubercule fracture of the scaphoid in the past.Dr Jovanovic was of the opinion that Mr Freeman "most likely" had an undisplaced scaphoid fracture and referred him for physiotherapy.[2] Exhibit 1, page 55. At the same time, Mr Freeman was referred by Fleetmaster to Dr John Bradshaw, a general practitioner. The evidence is not entirely clear however I infer that Dr Bradshaw was retained by Fleetmaster to deal with injuries sustained by its employees in the course of their employment and with rehabilitation from those injuries. For completeness I note that Mr Freeman's usual general practitioner was Dr Paul Fowler however he was not involved in the treatment of this injury until a much later stage.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/0758
Re	Michael Freeman
APPLICANT
And	Fleetmaster Services Pty Ltd
RESPONDENT

Tribunal	Deputy President P E Hack SC
Date	25 January 2013
Place	Brisbane (heard in Grafton)