Mutton and Linfox Armaguard Pty Limited
[2009] AATA 352
•15 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 352
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0489
GENERAL ADMINISTRATIVE DIVISION ) Re TREVOR MUTTON Applicant
And
LINFOX ARMAGUARD PTY LIMITED
Respondent
DECISION
Tribunal The Hon B Tamberlin QC, Deputy President Date15 May 2009
PlaceSydney
Decision The applicant’s objections to requirement for a further examination are dismissed and the Tribunal further orders that:
1. The Applicant’s right to continue with the proceedings are suspended until the examination with Dr Sonnabend takes place; and
2. No further action is to be taken in relation to these proceedings without the leave of the Tribunal.
...............[sgd]...............................
Deputy President
CATCHWORDS – Workers Compensation - whether the relevant authority can require applicant to undergo a further medical examination pursuant to s 57 of the Safety, Rehabilitation and Compensation Act 1998 (the Act) - whether s 57 of the Act is open to review by the tribunal in this case – the Act does not prohibit more than one examination - s 57 not open to review in this case.
RELEVANT ACT/S:
Safety, Rehabilitation and Compensation Act 1998: s 4, 14, 53 & 57
CITATIONS:
Re Swierkowski and Telstra Corporation Limited (1993) 35 ALD 194
Bessell v Telstra Corporation Ltd (1994) 35 ALD 660
Re Brice and Comcare [2007] AATA 1476
Australian Postal Corporation v Forgie (2003) 130 FCR 279
Buck v Comcare (1996) 66 FCR 359
REASONS FOR DECISION
15 May 2009 The Hon B Tamberlin QC, Deputy President 1. These reasons relate to a question of interpretation which arises on an application by Mr Mutton for review of a decision of the delegate dated 18 January 2008, that Mr Mutton was not entitled to compensation for “right supraspinatus tear/ bicipital tendonitis” pursuant to ss. 4 and 14 of the Safety, Rehabilitation and Compensation Act (1988) (the SRC Act).
2. The Delegate was satisfied that the applicant had suffered an injury to the right shoulder. However, the Delegate was not satisfied that the injury was sustained on 26 August 2006, while Mr Mutton was employed by the respondent, and that this caused him to be unable to obtain or maintain employment some 12 months later, especially in circumstances where he was able to continue in pre-injury employment for some months and obtain alternative employment following termination of his employment with the respondent. The evidence, in the view of the Delegate, did not establish that the applicant has been incapacitated from normal duties with the respondent prior to termination in January 2007, or thereafter until August 2007 and therefore the respondent was not liable to pay compensation under s.14.
BACKGROUND
3. The applicant was born on 21 June 1950 and had been employed in a road crew with the respondent. He submitted a claim for workers compensation dated 14 September 2007 claiming to have sustained injury as a result of lifting coin bags from a truck to a dock area. He claimed that this occurred on 25 August 2006 and he first sought treatment on 27 August 2006. He continued working until January 2007 when his employment was terminated.
4. The respondent had arranged for the applicant to be medically examined by Dr Faithfull, an orthopaedic surgeon, who prepared a Report dated 26 October 2007 in which he recorded a history that the applicant was involved in two incidents. The first incident was in 1999 when he slipped on some fat and injured his right shoulder. He said he experienced pain in his right shoulder periodically but it was not excessively troublesome until 25 August 2006 when he felt sudden and severe pain in the front of the right shoulder when lifting heavy bags of coins from the truck up to a high level.
5. Dr Faithfull expressed the view that the applicant had a torn right rotator cuff consistent with the symptoms of a painful crunch with elevation. He expressed the opinion that the applicant’s condition in respect of which he claims was related to a small tear in 1999 and then a larger tear on 25 August 2006. He considered that the applicant was able to work full-time if the work was performed below shoulder-level and he recommended repair of the right rotator cuff.
6. A General Practitioner Dr Giang provided a report to the respondent on 2 December 2007 stating that he had treated the applicant since 28 August 2007 and expressed the view that the applicant’s right shoulder pain was the result of repetitive lifting of heavy coin bags over many years of working for the respondent.
7. On 6 December 2007, a determination was issued on the respondent’s behalf, disallowing liability for the claimed injury. It was noted that the applicant had not reported any injury on 25 August 2006 until at least 5 September 2007 when he requested compensation claim papers. However, he continued with his normal employment between August 2006 and January 2007. The determination noted that the applicant did not make a report of the injury as soon as practicable as required by s.53 and that the respondent had been prejudiced in its ability to investigate circumstances surrounding the incident. The determination also considered there was no factual evidence to show the applicant suffered an injury on 25 August 2006 that resulted in incapacity for work or employment to satisfy s.14 of the Act. The determination concluded that the need for medical treatment which arouse in August 2007 was most probably due to an injury occurring subsequent to the applicant’s employment with the respondent and that compensation was not payable under the Act.
8. On 17 December 2007 Mr Mutton requested reconsideration of the determination and a result the reviewable decision of 18 January 2008 was made.
9. On the 16 January 2009 a letter was written to Mr Mutton stating that, as part of the process, arrangements had been made for him to attend independent specialist medical review pursuant to s.57 of the SRC Act and details of the appointment time and location were set our in the letter.
10. Section 57 (1) of the SRC Act provides:
(1) Where:
(a)a notice has been given to a relevant authority under section 53 in relation to an employee; or
(b)an employee has made a claim for compensation under section 54;
the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.
Subsection (2) provides:
(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
SUBMISSIONS
11. The applicant contends that on its correct interpretation this section does not permit the relevant authority to require an employee to undergo an examination where the employee has already been subjected to a previous medical examination. He says that the power under s.57 (1) was limited to one examination by one legally qualified practitioner.
12. In furtherance of this submission, Mr Mutton says that in express terms the subsection, when it refers to “one legally qualified medical practitioner”, means that there can only be one medical examination and that it is not open to the relevant authority to require a further medical examination, so that the reference to “one” means that there cannot be any further medical examination required.
13. The applicant relies on a decision of this Tribunal in Re Swierkowski and Telstra Corporation Ltd (1993) 32 ALD 194 at (36) where the panel said:
The Tribunal refused the application for reasons stated orally at the hearing. In brief, those reasons where that s.57 of the Act, which is the power to require medical examination, had been amended in 1992 (No 7/1992) by omitting from sub (1) the words “by a legally qualified’ and substituting “by one legally qualified”. In the Tribunal’s view that section, as amended, empowers the respondent to direct the applicant to attend before one legally qualified medical practitioner. Once that power has been exercised the Tribunal, standing in the shoes of the respondent, does not have the power to direct further medical examinations. It is because of the change in the law that we take the view that we cannot follow the decision of Deputy President Todd in Hobbes. Also, as noted in the oral reasons, s.57 was not a relevant consideration in that case because the Health Insurance Commission, as the party seeking the order, was not the relevant authority. We think it is clear the parliament intended to limit to one the number of directed medical examinations when it used the words “an examination by one legally qualified medical practitioner” and there is nothing in the Administrative Appeals Tribunal Act 1975 (Cth) that could be construed as overriding the very specific provisions of s.57 of the Act. For these brief reasons the respondent’s request was refused. (Emphasis added)
14. The above passage was considered by Deputy President Breen in Re Bessell and Telstra Corporation Ltd (1994) 35 ALD 660 where at (16) the conclusion reached was that s.57 (1) did not place a limit on the number of examinations which can be required.
15. Deputy President Breen noted the submission for the respondent that if Parliament had intended to limit the number of examinations it was a simple matter to ensure that the amendment was expressed in terms which made it clear that an employee could only be required to undergo a single examination by one legally qualified medical practitioner. Moreover, he noted that the interpretation submitted by the applicant could disadvantage a respondent in circumstances where an applicant suffered from more than one medical condition and different specialists might be required to express an opinion. As the Deputy President noted in that case there may be circumstances were a doctor in one specialty was unable to complete his report without the assistance of practitioners from other specialties. These points in my view have considerable cogency in the case before me. The decision in Bessell has been applied in many later cases in this Tribunal: see, for example, Re Brice and Comcare [2007] AATA 1476 at (27).
16. Counsel for the respondent referred the Tribunal to the Parliamentary Debates and the circumstances in which the amendments inserting the present terms of s.57 (2) were inserted in the Act. The precise amendment proposed and adopted was to omit from subsection (1) the words “by a legally qualified” and substituting the words “by one legally qualified”. The reason expressed in the proposal was that Australia Post, in particular, had chosen to interpret the previous language so as to justify the establishment of a medical board or panel to the perceived detriment of the capacity of some people to present and demonstrate their cases. The amendment was seen by the proponent of the amendment to be a quick and succinct way of removing any possibility of misinterpreting what was really intended.
17. The language used in s.57 (1) in its present form does not prohibit, in terms, a number of examinations but on a plain reading requires that each examination should be by only one legally qualified medical practitioner as opposed to a panel or group of practitioners all of whom are legally qualified.
18. When the terms of s.57 (1) are considered together with the parliamentary material and the circumstantial background to the insertion of the amendment and when regard is had to the considerations referred to in the decision of Deputy President Breen (Re Bessell) the correct interpretation, in my view, is that the provision does not prevent more than one examination.
19. The perceived “mischief” at which the amendment is directed was the previous use of boards or panels so that a respondent might select an expert and also appoint a Chairman with the consequence that an applicant’s representative may be seen to be in the minority in the panel.
20. The second submission for the applicant is that under s.57 (2) Mr Mutton has not failed without reasonable excuse, to undergo an examination because he has already been subjected to a prior examination and it would be unreasonable to require him to make himself again available for further examination. The earlier examination gave rise to a “reasonable excuse”.
21. Counsel for the respondent submits that the fact of a previous examination is not sufficient and that there is in this case, no evidence to establish that the applicant has a “reasonable excuse” for failing to attend, the required further examination.
22. Counsel also referred to the decision of the Full Federal Court in Australian Postal Corporation v Forgie (2003) 130 FCR 279, where the Full Court referred to s.57 (2) of the SRC Act and noted that s.57 was excluded from the definition of “determination” in s.60 (1) of the Act. The Full Court said at (74):
“It is not necessary to speculate about the policy reasons for the distinction but it cannot be said to be irrational. It might well be considered, for example, that the requirement to attend a medical examination, in the context of an employer’s assessment of a claim for compensation, is much less onerous and more transitory than the obligation to comply with a rehabilitation programme. Thus, it may have been considered that merits review in relation to s.57 was not necessary to avoid unfairness to individual employees. A different view could well be taken about compliance with a rehabilitation programme”.
23. I note that in Buck v Comcare (1996) 66 FCR 359, Finn J decided that s.57 (2) did not authorise or require a decision of an administrative character to be taken because the suspension of rights provided for in the subsection occurs by force of the subsection and not by the decision of any person or body so that no proceedings could be brought under the Administrative Decision (Judicial Review) Act (1977), concerning that suspension.
24. In the case before me I am satisfied that Mr Mutton does not have a reasonable excuse on the evidence to refuse or fail to undertake the examination sought. In addition, I do not consider that a decision under s.57 is open to review by the Tribunal in the present circumstances.
25. For the above reasons the applicant’s objections to the requirement for a further examination are dismissed.
I certify that the twenty-five (25) preceding paragraphs are a true copy of the reasons for the decision herein of The Hon B Tamberlin QC, Deputy President..
Signed.......................[sgd].......................................................
AssociateDate of Hearing 1 May 2009
Date of Decision 15 May 2009
Solicitor for the Applicant: Michael Hyland, Turner Freeman
Counsel for the Applicant: Dennis Epstein
Solicitor for the Respondent: Marie Mittiga, Dibbs Abbott Stillman
Counsel for the Respondent: Rhonda Henderson
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