Nicholas and Go Offshore Pty Ltd (Compensation)

[2016] AATA 473

Nicholas and Go Offshore Pty Ltd (Compensation) [2016] AATA 473 (5 July 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3724
Re	Grant Nicholas
APPLICANT
And	Go Offshore Pty Ltd
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	5 July 2016
Place	Perth

The Tribunal dismisses application 2015/3724 pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 on the basis that it has no reasonable prospect of success.

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Ms A F Cunningham, Senior Member

CATCHWORDS

WORKERS COMPENSATION – Seafarers Rehabilitation and Compensation Act 1992 – application to dismiss pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 – claim not accompanied by required medical certificate – claim taken not to have been made – application for review dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 – s 42B

Seafarers Rehabilitation and Compensation Act 1992 – s 63

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

5 July 2016

1. This was the hearing of the respondent’s application to dismiss the application for review on the basis that the applicant’s claim for compensation was not validly made and accordingly had no prospect of success. The applicant lodged a claim for workers’ compensation on 1 June 2015 claiming injury to his left foot in the course of his duties on board the vessel, Toisa Dauntless, on 1 May 2011. The applicant’s claim for compensation was disallowed by determination dated 12 June 2015 on the basis that the claim had not been duly made. By reviewable decision dated 23 June 2015, the determination was affirmed.

2. The application was heard by way of telephone link to the applicant in Western Australia and video link to the Perth Registry where the respondent was represented by Mr Ashley Burgess. The applicant appeared on his own behalf.

3. The Tribunal was asked to dismiss this application pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act). Section 42B of the AAT Act states:

   42B     Power of Tribunal if a proceeding is frivolous, vexatious etc.

   (1)  The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a) is frivolous, vexatious, misconceived or lacking in substance; or

   (b) has no reasonable prospect of success; or

   (c) is otherwise an abuse of the purpose of the Tribunal.

   (2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

   (3) The direction has effect despite any other provision of this Act or any other Act.

4. In support of its application the respondent referred to written submissions dated 7 April 2016 and its earlier submissions in response to the application for review dated 12 January 2016. The Tribunal had before it the T documents submitted pursuant to s 37 of the AAT Act, the Tribunal file which included directions issued by the Tribunal and correspondence including that received from the applicant.

5. It is contended by the respondent that the applicant’s purported claim does not satisfy the requirements of section 63(2)(b)of the Seafarers Rehabilitation and Compensation Act 1992 (SRC Act) because the claim was not accompanied by a certificate from a legally qualified medical practitioner in accordance with the form approved by the Authority. Therefore, pursuant to subsection 63(3) of the SRC Act, the claim is taken not to have been made.

6. Section 63 of the SRC Act relevantly provides:

   63   Claims for compensation

   (1)  Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.

   (2)  A claim must be made by giving the employer:

   (a) a written claim, in accordance with a form approved by the Authority for the purposes of this paragraph; and

   (b) except where the claim is for compensation under section 28, 29 or 30 – a certificate by a legally qualified medical practitioner in accordance with the form approved by the Authority for the purposes of this paragraph; and

   (c) a notice setting out:

   (i) the name and address of any other employer who has been given, or to whom it is intended to give, a claim under paragraph (2)(a) in relation to the injury and

   (ii) the name and address of any other employer whose employment is believed to have materially contributed to the injury.

   (3)  If a written claim (other than a claim for compensation under section 28, 29 or 30) is given to a person under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim is taken not to have been made until such a certificate is given to that employer.

   (4)  Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

7. Subsection 63(4) of the SRC Act provides that the strict compliance with the approved form is not required and that substantial compliance is sufficient. It is submitted by the respondent that substantial compliance cannot be inferred in this case because there is no document before the Tribunal from a legally qualified medical practitioner to establish that the applicant has a work related injury. The respondent refers to page 2 of the instructions to the approved claim form. At step one, the applicant is advised how to complete the claim form. Step two refers to the requirement for an original medical certificate to prove the work related injury or illness. It states that the certificate must show:

   ·     a precise medical diagnosis of your condition

   ·     the relationship between the injury or illness and your employment

   ·     the certified period of incapacity for work, and

   ·     any restriction or limitations required for your condition and likely duration of these restrictions (that is, alternative duties you are able to perform).

8. It is evident and the applicant does not dispute that he failed to provide the required medical certificate with his claim form.

9. On 14 September 2015, the Tribunal issued a direction that:

   On or before 9 November 2015, the Applicant must give to the Tribunal and the other party a certificate by a legally qualified medical practitioner in support of the Claim for Workers’ Compensation made on 1 June 2015 that is the subject of this application.

10. On 11 December 2015, a report from Dr Alireza Eskandaripour dated 25 November 2015 was received which stated:

    …

    Mr Nicholas has pain in his left foot. I have consulted him for this pain. I have also requested an X-ray of the left foot which came back normal. I have referred him to a podiatrist for taking care of the foot and also to perform routine diabetic foot examinations and care for him.

    No other medical certificates have been submitted by the applicant.

11. The applicant submitted that he has complied with all directions and requests made of him. He asked the Tribunal to take account of the referral for an MRI which he said he has been unable to afford. The applicant maintained that the respondent was alleging that the information that he had supplied had not been obtained from a medically qualified doctor. It was pointed out to the applicant however, that the issue does not concern the qualifications of the medical practitioners but the fact that he had not submitted a medical certificate which contained a medical diagnosis of his condition and related the condition to the injury that he claims to have suffered during the course of his employment.

12. Despite the Tribunal’s direction, the applicant has failed to comply and continues to argue that he has supplied all relevant information.

13. Whilst the Tribunal’s power to dismiss an application for review pursuant to s 42B of the AAT Act should be exercised with caution, it is abundantly clear in this case that the applicant has failed to comply with mandatory provisions of the SRC Act such that his claim for compensation is inherently invalid. The provisions of subsection 63(3) of the SRC Act provide that a claim that is not accompanied by the required medical certificate is taken not to have been made until such a certificate is given to the employer.

14. The applicant has been given ample opportunity to comply and has failed to do so and also refused to acknowledge the defect in his claim.

15. Section 42B of the AAT Act requires the Tribunal to be satisfied that the application has no reasonable prospect of success. For the above reasons, the Tribunal is satisfied and considers that it would be futile for the proceedings to continue, resulting in unnecessary cost and waste of resources as well as affording the applicant some prospect that his claim might succeed.

    DECISION

16. The Tribunal being satisfied that the application for review has no reasonable prospect of success determines to dismiss the application pursuant to s 42B(1) of the AAT Act. It is accordingly not necessary to consider the respondent’s additional claim that the application is frivolous or vexatious.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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Administrative Assistant

Dated 5 July 2016

Date of hearing	28 June 2016
Applicant	Self-represented (by telephone)
Representative for the Respondent	Mr A Burgess
Solicitors for the Respondent	Sparke Helmore Lawyers