Mutton and Linfox Armaguard Pty Limited - [2009] AATA 352

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…

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.

Keep reading for free

Create a free CaseChat account to read Mutton and Linfox Armaguard Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] AATA 352
Decision Date: 15 May 2009

CaseChat Overview and Summary

Mutton sought a review of a decision by Linfox Armaguard Pty Limited, the relevant authority, to require him to undergo a further medical examination pursuant to section 57 of the Safety, Rehabilitation and Compensation Act 1998 (the Act). The dispute was heard by the Administrative Appeals Tribunal of Australia (the Tribunal). The primary issue before the Tribunal was whether the relevant authority was authorised to require Mutton to undergo a further medical examination and, if so, whether the Tribunal could review the relevant authority’s decision under section 57 of the Act. The Tribunal considered whether the relevant authority’s decision was subject to review and whether there was any basis for the Tribunal to interfere with the decision.

The Tribunal held that the relevant authority was entitled to require Mutton to undergo a further medical examination. The Tribunal found that the Act did not prohibit more than one medical examination, and that the relevant authority was not required to accept Mutton’s contention that the examination was unnecessary. The Tribunal also found that section 57 of the Act was not open to review by the Tribunal in this case, as it did not provide for a right of appeal or review of the relevant authority’s decision. The Tribunal noted that the relevant authority’s decision was based on a finding that Mutton’s claim for workers’ compensation was not accepted, and that the decision was therefore not reviewable by the Tribunal. The Tribunal also found that Mutton had not demonstrated that the relevant authority’s decision was otherwise flawed or unlawful.

The Tribunal dismissed Mutton’s objections to the requirement for a further examination. The Tribunal further ordered that Mutton’s right to continue with the proceedings were suspended until the examination with Dr Sonnabend took place, and that no further action was to be taken in relation to these proceedings without the leave of the Tribunal. The Tribunal’s decision was based on its finding that the relevant authority was entitled to require Mutton to undergo a further medical examination and that the decision was not subject to review by the Tribunal. The Tribunal also found that Mutton had not demonstrated that the relevant authority’s decision was otherwise flawed or unlawful.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.