Pearson and Prosegur Australia Pty Ltd (Compensation)
[2021] AATA 312
•25 February 2021
Pearson and Prosegur Australia Pty Ltd (Compensation) [2021] AATA 312 (25 February 2021)
Division: GENERAL DIVISION
File Numbers: 2018/5831
2018/5832
Re:Richard Pearson
APPLICANT
AndProsegur Australia Pty Ltd
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:25 February 2021
Place:Perth
Application 2018/5831
The decision dated 16 August 2018 by which the Respondent affirmed the determination dated 26 June 2018 is affirmed.
Application 2018/5832
The decision dated 26 September 2018 by which the Respondent decided to set aside the determination dated 30 August 2018, and substitute a decision accepting liability to pay reasonable pharmaceutical expenses and monthly GP reviews in respect of the accepted condition pursuant to s 16 of the SRC Act up to 31 December 2018 is affirmed.
.......[SGD].................................................................
Deputy President Boyle
CATCHWORDS
COMPENSATION – incapacity payments – liability to pay medical expenses – soft tissue injury affecting the neck shoulder musculature on the left – accepted condition – interlocutory applications made at the hearing – applications for dismissal – failure to provide evidence in accordance with directions – non-compliant SFIC – application for leave to admit documents into evidence – s 66 SRC Act – subjectively experienced symptoms without accompanying physiological change – reviewable decisions affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A(1), 5A(1)(a), 5A(1)(b), 5A(1)(c), 5B, 8, 14(1), 16, 16(1), 19, 19(1), 66, 66(1)
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 42A(5), 42A(5)(b), 42B
CASES
Beezley v Repatriation Commission (2015) 150 ALD 11
Chu Yu Chee and Comcare [2018] AATA 1241
Comcare v Stefaniak [2020] FCA 560
Fresh Fields Aged Care Pty Ltd and Secretary, Department of Health [2020] AATA 3952
Hutchinson and Comcare [2018] AATA 4357
Keys and Comcare [2011] AATA 277
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Moon and Telstra Corporation Ltd (2006) 93 ALD 740
Pearson and Prosegur Australia Pty Ltd [2019] AATA 823
Smith and Comcare [2002] AATA 249
Sullivan and Comcare [1998] AATA 907
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Whitlock and Comcare [2020] AATA 1353
Williamson and Comcare [2019] AATA 4774
SECONDARY MATERIALS
Administrative Appeals Tribunal, Guide to Workers’ Compensation Jurisdiction (July 2015) – para 2.5
REASONS FOR DECISION
Deputy President Boyle
25 February 2021
THE APPLICATIONS
On 12 February 2018 the Respondent determined that it was liable to pay compensation for "soft tissue injury to the left arm" sustained on 30 January 2018, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
On 4 April 2018 the description of the Applicant's injury was amended by the Respondent to "soft tissue injury affecting the neck shoulder musculature on the left" (the accepted condition).
Application No. 2018/5831 - Incapacity payments
In a determination dated 26 June 2018, the Respondent determined that it was not presently liable to pay incapacity payments for the accepted condition pursuant to s 19 of the SRC Act.
The Applicant sought a reconsideration of that determination and by a decision dated 16 August 2018 (R3, T93) the Respondent affirmed the determination dated 26 June 2018.
The Applicant seeks review of the decision of 16 August 2018 (R3, T1).
Application No. 2018/5832 - Medical expenses
In a determination dated 30 August 2018 the Respondent determined that it was not presently liable to pay medical expenses for the accepted condition pursuant to s 16 of the SRC Act.
The Applicant sought a reconsideration of that determination and, by a decision dated 26 September 2018, the Respondent decided to set aside the determination dated 30 August 2018 and substitute a decision accepting liability to pay reasonable pharmaceutical expenses and monthly GP reviews for the accepted condition pursuant to s 16 of the SRC Act up to 31 December 2018. The reconsideration determined that liability pursuant to s 16 of the SRC Act should cease on and from 1 January 2019.
The Applicant seeks review of that decision (R3, T2).
BACKGROUND
The background which follows is largely taken from the reasons for decision dated 16 August 2018 (R3, T93/276–282) which is the decision to be reviewed in matter 2018/5831. This background was also set out in this Tribunal’s decision on the Respondent’s applications for dismissal of the applications for lack of jurisdiction in May 2019 (Pearson and Prosegur Australia Pty Ltd [2019] AATA 823). It is not meant to be a complete statement of the whole of the history and the evidence, which will be referred to as relevant in the Tribunal’s below considerations, but rather to provide context to the Applicant’s relevant claims and the two decisions under review.
The Applicant was employed by the Respondent as an armoured vehicle operator in Perth from late 2015.
The Applicant claims that on 30 January 2018 he sustained an injury when he was attempting to support the front bumper of a work vehicle outside the Kwinana Hub Shopping Centre. The front bumper had come adrift on the passenger side of the truck. While supporting the bumper and walking with the truck to a safe location as it was being driven by a co-worker, the front wheel of the truck clipped the Applicant’s foot causing him to fall backwards onto the bitumen road.
The following day the Applicant experienced pain and tingling in his left arm, and sought treatment from his general practitioner, Dr Garry Vanderveen. Dr Vanderveen diagnosed him as suffering from left shoulder pain, neck pain and tingling in his left palm. Dr Vanderveen certified the Applicant as fit to undertake suitable duties.
On 2 February 2018 the Applicant lodged a claim for compensation under the provisions of the SRC Act in respect of an injury described as “left arm injury” with a date of injury of 30 January 2018.
After that time the Applicant was seen by various medical and health practitioners including a physiotherapist and a consultant orthopaedic surgeon as well as the Applicant’s general practitioner. Various investigations were carried out to determine whether there was bony or neurological injury, or just soft tissue injury. The Applicant also received treatment during this period.
By a reconsideration on its own motion dated 4 April 2018, the Respondent changed the description of the Applicant’s compensable injury to be “soft tissue injury affecting the neck shoulder musculature on the left” to more accurately, according to the Respondent, reflect the medical evidence.
On 26 June 2018, the Respondent determined that it was no longer liable to pay incapacity payments pursuant to s 19 of the SRC Act for “soft tissue injury affecting the neck shoulder musculature on the left” because the Applicant had successfully returned to his pre-injury hours with only minor duties several weeks before (R3, T58).
In his request dated 21 July 2018 (R3, T78) for reconsideration of the determination of 26 June 2018, the Applicant said:
I would like to appeal against the decision for my incapacity payments to stop.
I feel that this decision has been made prematurely as I am still suffering with claimed injury.
I need to note that the letter dated 26 June 2018 stating under terms of decision 1, Prosegur is not presently liable to pay compensation in the form of incapacity benefits in respect of your accepted soft tissue injury affecting the neck and shoulder musculature on the left sustained on 30 January 2018 pursuant to section 19 of the SRC Act.
As my injury is still a problem and a company doctor giving medical evidence that I can work as per return to work schedule, in which I complete with extreme pain [sic].
When I attend doctors [sic] appointment the doctor has continued to say that I am better to work with injury than sitting at home making it worse.
As my only duties are driving the use of manual vehicles and the use of left arm the injury has sustained pain up to and including this morning.
My physiotherapist from Flinders Lane Physiotherapy in Rockingham has on several occasions spoken with the insurance company members and has stated that I can work hours but with extreme pain.
As I am unable to compete [sic] a full day without pain as per pre injury hours I feel that I am doing this injury more harm.
The evidence to stop incapacity payments is due to medical evidence of Dr Phillips is premature [sic] as at this time I had not had a cortisone injection to the injured shoulder.
Also stating that the neck shoulder musculature on the left (7) would resolve within 2 weeks of a successful injection. The injection did not work and in fact I now have a clicking noise to the injured shoulder, which was not apparent prior to injection.
My second injection that was completed on the 16 July 2018 at this time has not worked.
As I am currently still having treatment to my injured shoulder I wish your decision to be reversed.
On 27 July 2018 (R3, T83) the Applicant sent an email to his supervisor which said:
I ... would like to advise you of my resignation dated 27th July 2018. The reason for my resignation is due to my mental health, attached is a medical certificate for you per usual. The continued bullying and harassment due to my injury has helped with this decision. My last day will be 10 August 2018.
The Applicant provided a medical certificate from Dr Biju Bhargavan, general practitioner, dated 27 July 2018 (R3, T85) which read:
This is to certify that Mr Richard Pearson is unable to work from 27/07/2018 to 3/08/2018 inclusive due to a medical condition.
From 19 February 2018 to 10 June 2018, with the exception of the week 23–29 April 2018, the Respondent made weekly workers’ compensation payments. The Respondent also made a workers’ compensation payment for the week 15–22 July 2018.
THE ISSUES
The Respondent in its Statement of Facts, Issues and Contentions (the Respondent’s SFIC) dated 13 March 2020 identified the issues for determination as:
AAT Application No. 2018/5831 - Incapacity Payments
76. Whether the Applicant is entitled to weekly payments pursuant to section 19 of the SRC Act, on and from 26 June 2018, including consideration of whether:
(a) On and from 26 June 2018, the applicant was incapacitated for work as a result of the accepted condition?
(b) On and from 26 June 2018, the applicant's ability to earn in suitable employment, or his actual earnings, were equal to or greater than his normal weekly earnings.
And
AAT Application No. 2018/5832 - Medical expenses
77. Whether from 1 January 2019 the Applicant is entitled to compensation for medical treatment for the accepted condition pursuant to section 16 of the SRC Act.
(Original emphasis.)
The Applicant in his Statement of Facts, Issues and Contentions (the Applicant’s SFIC) dated 25 February 2020 identified the issues for determination “in the present application” as:
7.1 Whether it was lawful and appropriate to cease the Applicant’s weekly compensation payments; and
7.2 Whether it was lawful and appropriate to cease payment/reimbursement of the Applicant’s medical treatment expenses.
The Applicant’s statement of the issues to be determined in these proceedings does not reflect the task to be undertaken by the Tribunal in reviewing the two decisions. Firstly, the Tribunal assumes that when the Applicant refers to “the present application”, he means to refer to both applications 2018/5831 and 2018/5832. Secondly, and more importantly, the questions posed by the Applicant misunderstand the role of the Tribunal in reviewing a decision. The role of the Tribunal is not to consider whether the decision, or in this case the decisions, were “lawful and appropriate”. The role of the Tribunal, standing in the shoes of the original decision maker, based on all of the evidence before the Tribunal, is to make what it thinks to be the correct or preferable decision. This Tribunal summarised the role of the Tribunal in reviewing decisions in Fresh Fields Aged Care Pty Ltd and Secretary, Department of Health [2020] AATA 3952 at [12] as follows:
… As has been repeatedly held by superior courts, the role of the Tribunal is to reach its own correct or preferable decision, not to examine the decision under review for error, whether that be legal, evidential, substantial, procedural or other. This Tribunal summarised the role of the Tribunal in reviewing a decision in Kang and Secretary, Department of Social Services at [18] as follows:
The role of the Tribunal in such a review is to determine for itself what is the correct and preferable decision: see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi). The Tribunal is not limited to reviewing the decision for legal or other error, but rather conducts its own de novo assessment and determination of the matter. Its role is ‘to “do over again” what the original decision maker did’: see Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21 at [41] per Perry J (White and Wigney JJ agreeing), referring to Shi at [100] (per Hayne and Heydon JJ) and at [37] (per Kirby J). See also Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at [589] and reference to that case in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [37].
(See also Carter and Australian Securities and Investments Commission [2020] AATA 809 at [50]; Eley and Tax Practitioners Board [2020] AATA 3192 at [63]).
(Footnotes omitted.)
With one exception, the Tribunal agrees with the Respondent’s statement of the issues for determination by the Tribunal. That exception is to the use of the term “accepted condition” in both applications. The use of that term was reviewed by this Tribunal in Hutchinson and Comcare [2018] AATA 4357 (Hutchinson) at [30] as follows:
There is no qualification or condition in s 16 of the SRC Act that “the injury” in relation to which treatment is sought must be one that has previously been “accepted”, or for which liability has previously been “accepted”, in order for liability for compensation to arise under that section. Subject to the qualification to which I refer below, all that is required for liability to arise under s 16 is that compensation is sought for treatment that is reasonable in the circumstances, for an injury. An injury, as s 5A of the SRC Act defines it, is an injury that is suffered in the course of or arising out of the employee’s employment. Similarly, there is no qualification or condition in s 20 of the SRC Act that the injury that incapacitates the employee is one for which liability has previously been accepted. All that is required is that there is an injury (as defined in s 5A) which causes an incapacity for work.
The same applies to liability arising under s 19 of the SRC Act. Too often an employer’s (or their insurer’s) determination of whether the employer is or remains liable to pay compensation is made on the basis of whether the worker still suffers from the so-called “accepted injury”. That is not addressing the correct issue. As pointed out in Hutchinson, the correct question is whether the employee suffers from an injury as that term is defined in the SRC Act, not whether the worker continues to suffer from a previously accepted injury or condition. This is particularly important because it is the employer, or its insurer, who, in the majority of cases, has defined the “accepted injury” and, in a lot of cases, as in this case, even redefined the injury (see [2] above). This concentration on looking at the “accepted injury” often causes the question asked in seeking medical opinion to be inappropriately framed: the employer or insurer asks the medical practitioner whether the employee still suffers from the defined accepted injury. That question can be answered, literally, in the negative because, in the doctor’s opinion, the employee no longer suffers from the original accepted injury as defined by the employer or insurer, but rather from a sequela of the accepted injury or from another injury which still may have arisen out of or been incurred in the course of the employment. The negative answer would, however, be literally correct given the question asked: it is simply the wrong question.
Accordingly, the Tribunal considers the relevant issues for determination to be as identified by the Respondent with the words “the accepted condition” being changed to “an injury”. As was pointed out in Hutchinson, the qualification that must be attached to the words “an injury” is that it has to have been an injury for which the employee has made a claim. In Hutchinson this Tribunal noted:
32.One qualification which, in the Tribunal’s view, does apply to the application of liability under ss 16 and 20 of the SRC Act is that the injury for which compensation is sought must be an injury in relation to which a claim has been made. Consideration of liability under s 16 of the SRC Act would, on its face, only need to consider whether an applicant suffers from an injury that arose out of or in the course of their employment (s 5A of the SRC Act, definition of “injury”) and whether the treatment sought for that injury is reasonable in the circumstances. However, s 16 of the SRC Act must be read in light of the whole of the SRC Act, including s 54(1) of the SRC Act which relevantly provides that:
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.
33.The qualification which, therefore, arises in the present enquiry to the term “injury”, when used in ss 16 and 20 of the SRC Act, is that it must be an injury for which a claim has been made by the Applicant. Such qualification is consistent with the approach taken in Lees v Comcare. While the claim made can be generic as to the compensation claimed, the injury must be identified.
LEGISLATIVE FRAMEWORK
Section 14(1) of the SRC Act relevantly provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 16(1) of the SRC Act provides:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 of the SRC Act, relevantly provides:
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
…
Section 8 of the SRC Act sets out the formula by which “normal weekly earnings” (NWE) for the purposes of the SRC Act are to be calculated.
“Injury” is defined in section 5A(1) of the SRC Act to mean:
a) a disease suffered by an employee; or
b) 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, the employee’s employment; or
c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
d) but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
THE HEARING AND THE EVIDENCE
The applications were heard on 15 and 16 June 2020 and oral closing submissions were made on 20 November 2020. Mr M Lourey, of Chapmans Barristers and Solicitors, appeared for the Applicant on 15 June 2020, before the luncheon adjournment on 16 June 2020 and made the closing submissions on 20 November 2020. Mr Stewart of counsel appeared for the Applicant after the luncheon adjournment on 16 June 2020. Mr P Woulfe of counsel, instructed by Moray & Agnew Lawyers, appeared for the Respondent on all days of the hearing and made oral closing submissions on 20 November 2020. At the conclusion of the evidence on 16 June 2020, directions were made for the parties to provide written closing submissions. The directions made on 16 June 2020 were subsequently revoked and directions made for the parties to provide submissions as follows: the Applicant by 6 July 2020, the Respondent by 3 August 2020 with the Applicant to provide any reply by 10 August 2020. The Applicant provided his closing submissions on 6 July 2020, the Respondent provided its closing submissions on 3 August 2020 and the Applicant provided responsive submissions on 10 November 2020.
The following documents were admitted into evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions (Exhibit A1);
(b)Correspondence between the Applicant and the Respondent dated 20 June 2018 and 21 June 2018 (Exhibit A2);
(c)Respondent’s bundle of documents including its Statement of Facts, Issues and Contentions (Exhibit R1);
(d)Letter from the Respondent’s lawyer dated 26 November 2018 and attached document (Exhibit R2); and
(e)Section 37 T-Documents (Exhibit R3).
The following witnesses gave oral evidence at the hearing;
(a)The Applicant;
(b)Ms Leila Georges; and
(c)Mr Fredrick Phillips.
Interlocutory applications at the hearing
Two applications were made at the commencement of the hearing on 15 June 2020. Both were made orally. No notice of these applications was provided by either party to the other, or to the Tribunal. The first was an application by the Respondent to dismiss the proceedings pursuant to s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The second was an application by the Applicant to admit documents into evidence which had not been filed and served in accordance with orders made by the Tribunal or the SRC Act. The two applications are intertwined.
The Respondent’s application for dismissal of the proceedings under s 42A(5)(b) or 42B of the AAT Act
Section 42A(5) of the AAT Act provides that:
If an applicant for a review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
The Tribunal had made a number of directions which required the parties to file and serve various documents with which, according to the Respondent, the Applicant had failed to comply. The following directions, are relevant:
a) 6 June 2019
1. On or before 13 June 2019, the Applicant must give to the Respondent a list of the health professionals consulted by the Applicant since 1 January 2016.
2. On or before 4 July 2019, the Applicant must give to the Tribunal and the other party copies of the following documents:
(a)any further medical report, together with a copy of the briefing letter to the doctor, on which the Applicant intends to rely.
(b)a schedule of the compensation sought by the Applicant as weekly earnings and for medical expenses.
(c)a witness statement from the Applicant.
b) 27 August 2019
1.On or before 11 October 2019, the Applicant file with the Tribunal any further expert and lay witness evidence on which the Applicant proposes to rely at the hearing, including a witness statement from the Applicant, and serve a copy on the Respondent. This evidence should include copies of any briefing letters to any expert medical or other witnesses.
…
4.On or before 20 December 2019, the Applicant file with the Tribunal a Statement of Facts, Issues and Contentions, and serve a copy on the Respondent.
…
7.Not less than 5 business days before the scheduled hearing, each party file with the Tribunal and serve on the other party an index of medical reports and other documentation upon which the party will seek to rely at the hearing.
8.Not less than 5 business days before the scheduled hearing, each party provide the Tribunal with written confirmation that any medical or other expert witness that a party proposes to call at the hearing has been provided with the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence.
c) 5 February 2020
1.Direction 4 of the Direction made by the Tribunal on 27 August 2019 be varied by changing the date by which the Applicant is to file and serve a Statement of Facts, Issues and Contentions from 20 December 2019 to 14 February 2020.
On 26 February 2020 the Applicant filed a SFIC. Whether the Applicant’s SFIC complies with the requirements of a Statement of Facts, Issues and Contentions under the Tribunal’s Practice Directions is a matter of contention. That issue is addressed below.
On 5 June 2020 the Applicant’s lawyers filed a bundle of documents which they described as the “Applicant’s Book of Documents” along with a statement by the Applicant dated 5 June 2020 attaching various documents and a bundle of documents described as “Applicant’s Book of Relevant Determinations” comprising the determinations made by the Respondent under the SRC Act whereby the Respondent assessed the amounts paid to the Applicant under s 19 of the SRC Act in respect of the Applicant’s incapacity.
At various times leading up to the hearing, the Respondent had raised what it saw as the Applicant’s failure to comply with the directions for the filing of documents. The Applicant’s failure to comply with paragraphs 1 and 2 of the directions made on 6 June 2019 was raised by the Respondent’s lawyers in a letter dated 18 July 2019 sent to the Tribunal and copied to the Applicant’s lawyers.
Further orders for the filing of documents were made at a telephone conference with the Tribunal’s Conference Registrar on 27 August 2019 (see [37](b) above). The Applicant’s lawyers wrote to the Tribunal on 2 September 2019 referring to the directions made on 27 August 2019 and saying, amongst other things:
We note that after this matter has been delayed for over 10 months, most of the delay at the hands of the respondent, and none of which is at the hands of the applicant, the best the Tribunal can do is allocate the matter to a Hearing in February, March or April 2020. That is unacceptable to the Applicant.
It simply cannot be the case that injured workers in the Commonwealth workers compensation system who have had their weekly compensation payments ceased, on this occasion in July 2018, cannot get a matter heard by the Tribunal until over 18 months later. If that is the case, then clearly the Tribunal should not be the forum for disputes within the Commonwealth workers compensation system.
The Applicant urgently requires the Direction Orders to be reset and he certainly does not need until 11 October 2019 to file “…any further expert and lay witness evidence”
(emphasis added.)
The Tribunal Conference Registrar replied to the Applicant’s lawyer’s letter of 2 September 2019 by letter dated 3 September 2019 (R1, tab 22) stating that the programming orders made on 27 August 2019 were made during the telephone conference attended by legal representatives of both the Applicant and the Respondent and that the timetable reflected in the directions had been discussed and agreed by the parties.
By letter dated 5 September 2019 the Applicant’s lawyers responded to the Tribunal Conference Registrar’s letter of 3 September 2019 asserting:
It is not correct that the Applicant agreed to the timetable of Directions at the recent Conference.
Further, the way that the Directions are set out, it does not matter if the Applicant does everything he needs to “ahead of the dates set out in the Directions”.
The Applicant asks again for the Directions to be reset to enable the Hearing of his matter to occur no later than October or November this year.
The Tribunal has spoken to the Conference Registrar who made the directions on 27 August 2019 and is satisfied that, contrary to the claim by the Applicant’s lawyers, the directions made on 27 August 2019 were discussed and agreed by the Applicant’s lawyer attending that conference. The directions were, in any event, standard programming directions for a compensation matter.
By 7 November 2019 the Applicant had not provided any of the documents the subject of the directions of 6 June 2019 or 27 August 2019. This fact was raised by the Respondent’s counsel at a directions hearing on 7 November 2019. Mr Lourey appeared for the Applicant at that directions hearing and Ms Waldron-Hartfield appeared for the Respondent. The need for this directions hearing had, in part, been caused by the Applicant having not attended an appointment on 23 September 2019 to be examined by Dr Flahive at the request of the Respondent. The Respondent’s agreement to the programming directions made on 27 August 2019 had been provided on the assumption that the Applicant would attend that appointment and that a report would be provided by Dr Flahive.
At the directions hearing on 7 November 2019 the Respondent’s counsel raised what the Respondent considered to be the Applicant’s failure to comply with the directions that had been made. The Tribunal pointed out that, while it was the case that the Applicant had failed to lodge any of the documents the subject of the directions made on 6 June 2019 and had not lodged expert or lay witness evidence by 11 October 2019 pursuant to the directions made on 27 August 2019, insofar as the Applicant had not filed expert and lay witness evidence, the direction of 27 August 2019 was for the Applicant to file “any further expert and lay witness evidence on which the Applicant proposes to rely at the hearing”. There was (as there always is in Tribunal matters) already evidence in the applications for review lodged by the Applicant and in the documents lodged by the Respondent on 21 November 2018 pursuant to s 37 of the AAT Act (T-documents). It is for that reason that it is the Tribunal’s practice in making directions for the filing of evidence to refer to “any further evidence”, there already usually being considerable evidence filed. It was the case, however, that the Applicant was still in breach of the directions made on 6 June 2019.
In relation to the form of the direction made by the Tribunal on 27 August 2019 requiring the Applicant to file and serve “any further evidence”, the Tribunal observed at the directions hearing on 7 November 2019 that it was not up to the Respondent, or for that matter the Tribunal, to dictate to the Applicant how he was to present his case or what evidence he was to file. Those were choices to be made by the Applicant and his legal advisers. At that directions hearing the Tribunal did, however, say that if the Applicant chose not to put on any further evidence in accordance with the directions made by the Tribunal, he ran the risk of being refused leave to file and rely on evidence if he sought to file and serve such evidence shortly before the hearing. In response to that comment, Ms Waldron-Hartfield asked whether the Tribunal was saying that the Applicant did not have to put on any further evidence. The Tribunal responded that that was not what the Tribunal was directing but rather, if the Applicant wanted to, he could proceed to a hearing relying solely on the T-documents. That would be his choice.
At that directions hearing Ms Waldron-Hartfield advised that Mr Lourey had indicated to her that the evidence upon which the Applicant intended to rely at the hearing had been filed. There was also discussion at that directions hearing about the Applicant’s failure to attend the appointment with Dr Flahive on 23 September 2019 and the effect that that had on the Respondent’s ability to file and serve its expert and lay witness evidence by 6 December 2019 in accordance with the directions of 27 August 2019. A further appointment had been made by the Respondent for the Applicant to be examined by Dr Flahive on 19 December 2019. As a result the Respondent sought an extension of the time for filing and serving its further expert and lay evidence to 24 January 2020.
No extension of time for the filing of evidence or for the filing of the Applicant’s SFIC (due on 20 December 2019) was sought by the Applicant.
At the directions hearing on 7 November 2019, the Tribunal made orders extending the time for the Respondent to file and serve any further expert or lay witness evidence to 24 January 2020 and the direction made on 27 August 2019 requiring the parties to file and serve hearing certificates was extended from 13 December 2019 to 24 January 2020.
On 6 January 2020 the Respondent’s lawyers wrote to the Applicant’s lawyers, copied to the Tribunal, noting that the Applicant had not filed and served his SFIC which was, pursuant to the directions of 27 August 2019, due on 20 December 2019. As a result of this failure to provide the SFIC, the Tribunal listed the matter for further directions on 5 February 2020. Mr Lourey again appeared for the Applicant at that directions hearing.
The Tribunal asked Mr Lourey why nothing had been filed by the Applicant. Mr Lourey advised that he had only received Dr Flahive’s report dated 20 December 2019 (reporting on Dr Flahive’s examination of the Applicant on 19 December 2019) on 28 January 2020. The Tribunal asked how long it would take the Applicant to prepare and file his SFIC. Mr Lourey advised that it could be done by the end of February. Given the need to move the application along, and consistent with the Applicant’s claims of wanting the hearing to be as soon as possible, the Tribunal made an order extending the time for the Applicant to file and serve his SFIC from 20 December 2019 to 14 February 2020. Directions were also made that day extending time for the Respondent to file and serve its SFIC based on the Applicant filing and serving his SFIC by 14 February 2020.
The Applicant’s SFIC was not filed by 14 February 2020 and so, on 20 February 2020, the Tribunal sent a notice to the parties of the listing of a non-compliance directions hearing on 26 February 2020. The Applicant filed and served his SFIC (A1) on 26 February 2020.
On 4 March 2020 the Tribunal sent a listing notice to both parties advising that the matter had been listed for hearing on 15, 16 and 17 June 2020.
By letter dated 17 April 2020 sent to the Tribunal, the Applicant’s lawyers sought that directions be made requiring the Respondent “to ensure that each of” eight named persons attend the hearing to be cross-examined. In response to that letter the Tribunal scheduled a further directions hearing for 13 May 2020. At that directions hearing the Tribunal pointed out that a party could not be compelled to call a particular witness. There was also discussion at that directions hearing about certain documents, in particular medical records, that had been produced under summonses issued at the request of the Respondent.
On 5 June 2020 the Applicant’s lawyers filed the bundle of documents which they described as the “Applicant’s Book of Documents” more particularly described in [39] above. No leave had been sought by the Applicant to file those documents nor had any application been made by the Applicant to vary the directions of 27 August 2019 to extend the time for the filing and serving of any further evidence.
At the commencement of the hearing, Mr Woulfe for the Respondent made an oral application for the applications to be dismissed pursuant to s 42A(5)(b) of the AAT Act. That section is set out at [36] above.
Mr Woulfe stated the Respondent’s argument as follows:
In this case, in addition to the substantial failure to comply with a direction to file and serve a statement of facts, issues, and contentions, and by that I mean the failure to provide one with respect that has cogency, clarity, and provides some materials within which a respondent may respond, and the materials which may assist the tribunal to fulfil its review function, there are at least two directions which the applicant has failed to meet.
(transcript at 6).
Mr Woulfe then referred to the directions made on 6 June 2019 (see [37](a) above) and pointed out that paragraphs 2 and 3 in the Notes to the Directions in the extracted version of the directions sent by the Tribunal to the parties, warned that failure to comply with a direction could result in the dismissal of his application. Notes 2 and 3 were as follows:
2. The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.
3. If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.
Mr Woulfe then made the following submissions:
The applicant did not obtain a vacation of that direction, on the contrary, in my submission, the applicant engaged in some fairly combative and unhelpful correspondence with both the tribunal and the respondent. And the relevant documents that demonstrate that circumstance are [R1, tabs 3–6].
First of all, [R1, tab 3] is essentially a request for particulars made by the respondent’s solicitors and sent to the applicant’s solicitors by facsimile on 10 June 2019. A range of requests are made of the applicant through that correspondence, including but not limited to the names of each of the applicant’s employers since he left his employment with the respondent, the nature of work undertaken, hours, and finally, at number 5, the amount he has earned in each employment, i.e. wages/income for each period of employment. At page 2 of that letter the respondent stated,
As discussed during the conference, we consider this information to be relevant to the applicant’s ability to earn, and to the quantum of his claim for incapacity payments.
And that clearly is one of the integers of a claim, I would submit, in section 19 of the Act. …
(transcript at 7).
The Tribunal agrees with Mr Woulfe that the information sought is relevant to the calculation of the Applicant’s entitlement to incapacity payments under s 19 of the SRC Act. That is the sort of information that is ordinarily provided by the Applicant in making their claim. It is certainly information that the Tribunal would need in order to make a calculation of the quantum of any incapacity payments. It is also, in part at least, the sort of information that the Applicant would need to provide to support the compensation sought as weekly earnings which the Applicant was directed to provide under paragraph 2(b) of the directions made on 6 June 2019 (see [37](a) above).
Mr Woulfe then submitted:
… this is the kind of correspondence that is designed to assist both the respondent and perhaps, with respect, more importantly the tribunal, to understand what sort of case has to be dealt with and what sort of matters remain in issue at any final hearing. Instead of obliging and providing a response to that, if I could ask the tribunal, please, to turn to [R3, tab 4]. Instead of obliging and providing the information, the applicant wrote to the respondent on 26 June 2019 referring to the letter of 10 June, asserting,
Please note, you do not need to tell us what needs to be included in our client’s witness statement if this matter goes that far.
And,
We confirm also that at the moment there is no formal requirement on our client to provide particulars of his application.
…
Now, that sort of response, in my submission, amounts to cavilling and obstructing, and essentially puts the issue – puts the cart before the horse, if I could use that analogy, insofar that one can’t work out whether to pay weekly compensation, or the amount, until and unless the relevant particulars are provided, especially within the context of a written statement, as requested. Then at [R3, tab 5], Deputy President, the applicant corresponds with the tribunal directly on the issue, granted of course copying Moray & Agnew Lawyers,
We refer to the orders made on 6 June 2019. The applicant is somewhat perplexed as to why the tribunal would require him to provide the information and documents requested when, in the applicant’s opinion, the majority of what is contained in those directions is unnecessary for this matter to be determined in the circumstances. Could the tribunal please indicate which section of the Act it has relied on to issue the directions of 6 June.
(transcript at 7–8).
Mr Woulfe then noted, correctly, that the Applicant at no time sought any variation to the directions of 6 June 2019.
The Tribunal had responded on 4 July 2019 to the Applicant’s lawyer’s letter quoted by Mr Woulfe in the passage reproduced at [62] above to the effect that the orders made on 6 June 2019 were;
… based on the discussions between the parties and Conference Registrar Waring (and were agreed to) at the telephone conference …
If it is the case that those directions are now not considered necessary, you are welcome to seek that the Tribunal revoke them, subject to the Respondent not raising an objection.
(R1, tab 6).
The Respondent’s lawyers by letter dated 18 July 2019 advised that the directions made on 6 June 2019 were made at the conference with the Conference Registrar, at which the Applicant was represented by counsel Mr Stewart, “… during [which] there was discussion between the parties as to directions that would be appropriate in this matter” and that it was in fact Mr Stewart who had suggested the timeframe reflected in the directions. That letter also observed, again correctly in the Tribunal’s view, that the directions made on 6 June 2019 were “usual in their content and appropriate in these applications”.
Mr Woulfe then took the Tribunal to the directions made on 27 August 2019 (see [37](b) above) and observed that directions of this sort are standard in compensation matters and that, again, the extracted version of those directions contained the same notes 2 and 3 that were attached to the directions made on 6 June 2019 (see [59] above). Rather than seek any variation or revocation of the directions of 27 August 2019, the Applicant’s lawyers sent the letter dated 2 September 2019 (see [41] above) to the Tribunal. Mr Woulfe describes this letter as a “combative and unhelpful correspondence”. The Tribunal agrees with that characterisation.
Mr Woulfe then submitted that the directions of 6 June 2019 and 27 August 2019 “remain unfulfilled”. At this point the Tribunal pointed out to Mr Woulfe that insofar as the directions required the filing of evidence by the specified date, it was a requirement only to file any “further evidence” (see [46] above) as had been discussed in the directions hearing on 7 November 2019. If the Applicant, legally represented and presumably acting on legal advice, chose not to put on any further evidence in accordance with a direction, that was an informed choice made by the Applicant, but it would not constitute non-compliance with the direction to file further evidence. Mr Woulfe’s response to that was:
That is a possibility, Deputy President. However, there are reasons why, in this particular case, the applicant’s conduct demonstrates that there was an intention to file any or additional evidence, and simply did not do so and left it to the heel of the hunt. … first of all, the applicant failed to achieve a vacation of the directions. At any stage he could have obtained further time in which to comply on any reasonable grounds that he wished or may have wished to put to seek an extension of time. He simply did not do that. Throughout the process he cavilled and obstructed and did not comply with the directions.
(transcript at 11).
The Tribunal agrees with Mr Woulfe’s observation. Mr Woulfe further submitted that:
The second is, the applicant has not advanced any reasonable basis for his non-compliance with the directions, despite being warned of the potential consequences. The third reason is that failure to comply with a direction is a serious matter. Not only can it have consequences under section 42A(5), but it may also be treated as contempt of the tribunal under section 63(2) of the Administrative Appeals Tribunal Act.
(transcript at 11).
Mr Woulfe then referred to s 2A of the AAT Act, the Tribunal’s objective, and submitted as follows:
Now, in my submission those ends are not served by the applicant’s conduct of the matter, essentially putting the respondent into the present position which it finds itself, and the tribunal, in my respectful submission, into the position it finds itself today. In that respect one of the principle failures is one as to fairness. By failing to provide the documents he was directed to provide, the applicant has put the respondent into a procedurally unfair position, as it does not know the case it is required to meet. For example, and again at the statement of facts, issues, and contentions, the respondent here does not know how the applicant alleges the decision under review or decisions are review are said to be correct.
(transcript at 12).
The other non-compliance with a direction that the Respondent identified was the failure to provide a SFIC. Albeit not in accordance with the directions made by the Tribunal, the Applicant did file and serve a SFIC. In respect of the document filed by the Applicant, the Respondent contended that;
… the statement of facts, issues, and contentions is bereft of the kind of detail that both the respondent and tribunal would need in order properly to respond and appear at a hearing. First, there’s the nature of application and a purported factual background, but it’s really bereft of the kind of facts that would go to the issues in a claim such as this. First, whether we’re dealing with an ailment or a “injury other than a disease”, secondly, which evaluative threshold is met. And pausing there, aggravation is relevant too, I should have mentioned that, so sorry.
Ailment or injury is the first issue. The second issue is aggravation. The next is whether the requisite causal connection, as it were, with employment, remains active, consistent with authorities such as Prain v Comcare where the Federal Court held that an ongoing psychological condition may no longer have a significant contribution from employment. Next, whether such an injury, for the purpose of the Act, continues to result in incapacity for work, the extent of that incapacity would be another issue, and then also what reasonable medical treatment, if any, was obtained by the applicant for the purpose of section 16. So there is a whole host of issues that simply are not grappled with or met, notwithstanding the fact that the applicant exerted sections 16 and 19.
The only contention made is one that, with respect, is nebulous, that Prosegur wrongly applied the relevant law to the applicant’s circumstances in or about July/August of 2018. Really no facts are pleaded that would reasonably let the tribunal or the respondent know the case that it’s to meet, and it’s procedurally unfair for the respondent to have to deal with a case of that kind.
(transcript at 14).
The criticisms of the Applicant’s SFIC are fair. The SFIC filed and served by the Applicant did not come close to complying with the AAT’s Guide to Workers’ Compensation Jurisdiction which, at para 2.5, provides that:
A Statement of Issues, Facts and Contentions must clearly set out:
othe issues that remain in dispute;
othe essential facts that are relevant to those issues; and
othe arguments that you or the decision-maker want to make based on those facts.
Towards the end of his submissions on the Respondent’s application for dismissal of the applications under s 42A(5) of the AAT Act, Mr Woulfe also added a submission that the applications should be dismissed under s 42B of the AAT Act on the basis that they had no reasonable prospects of success because:
The issue is really whether the applicant has evidence of sufficient quality and weight such as to succeed at trial, and here the unanimous opinion of the experts retained by the respondent, and eminent ones I would submit, is that the applicant doesn’t require medical treatment, didn’t suffer an incapacity for work at material times, and that is probably all I need to say about those reports for present purposes.
Section 42B of the AAT Act relevantly provides:
(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 process of the Tribunal.
…
The Tribunal did not on 15 June 2020, and will not now, dismiss the applications under s 42A(5)(b) or s 42B of the AAT Act. Firstly, as the Tribunal pointed out to Mr Woulfe at the time of his making the application on the first day of the hearing, the utility of dismissing an application is significantly diminished if the dismissal only occurs at the commencement of the hearing. The substantial expenditure of money and time, including the Tribunal’s time, has already been incurred by that stage. The failures of the Applicant to comply with directions made by the Tribunal were long-standing or historical. Such applications should be made as early as possible after the non-compliance. There was no reason why the application to dismiss under s 42A(5)(b) could not have been made at the time of the claimed non-compliance. Secondly, while the issues raised by the application for dismissal were not complex, the Tribunal is mindful of the fact that no notice of the application was provided to the Applicant and that Mr Lourey was having to respond to the matters raised on the run. Thirdly, while the Applicant’s failure to put on evidence in accordance with the directions remains unexplained, the failure to put on such evidence was, technically, not a breach of the relevant directions for the reasons set out in [46]-[47] above.
In relation to the claimed non-compliance with the direction for the filing and service of the SFIC, the Applicant had, albeit belatedly, filed a SFIC. Although, for the reasons identified by the Tribunal at the hearing (transcript at 4–5) and by Mr Woulfe (see [70] above), the Applicant’s SFIC was inadequate, it could not be said that a SFIC had not been filed. Its patent inadequacy is not sufficient, in the Tribunal’s view, to warrant the dismissal of the Applicant’s applications on the basis of non-compliance with the direction. Further, if, as the Respondent contends, the SFIC is so defective as to not constitute compliance with an order for the filing of a SFIC, that is an application which should, preferably, have been made when the SFIC was filed and served on 26 February 2020, not on the first day of the hearing.
In relation to the application for dismissal under s 42B of the AAT Act, although the Applicant’s case was not helped by the failure to file further evidence, there was evidence, including medical evidence in the form of medical reports, progress certificates of capacity, medical records (including summonsed medical records), and statements made by the Applicant, in the T-documents. The Tribunal also notes that a number of the documents that the Applicant included in the bundle of documents lodged on 5 June 2020 were already included in the T-documents (a fact conceded by Mr Lourey in oral closing submissions: transcript at 221). It could not be said, either at the time of the application for dismissal under s 42B or now, that, based on the evidence properly before the Tribunal, the Applicant’s applications were frivolous, vexatious, misconceived or lacking in substance, had no reasonable prospect of success or were otherwise an abuse of the process.
The Tribunal’s observations in relation to the diminished utility, lateness and lack of notice in respect of the Respondent’s application for dismissal of the applications under s 42A(5)(b) made at [74] above also apply to the application for dismissal under s 42B of the AAT Act.
For the reasons set out above, the Tribunal is not prepared to dismiss the applications under s 42A(5)(b) or s 42B of the AAT Act.
The Applicant’s application to admit the documents filed on 5 June 2020 into evidence
The Applicant faced a number of hurdles with this application, the more obvious of which included:
(a)section 66 of the SRC Act;
(b)the terms of the directions of 6 June 2019 and 27 August 2019 (see [37] above);
(c)the repeated warnings of the Tribunal as to the consequences of non-compliance with the directions;
(d)the extent of the delay;
(e)the lack of any explanation for the delay;
(f)the lack of any application to vary the directions of 6 June 2019 or 27 August 2019 over the 12 months leading up to the Applicant lodging the bundle of documents 10 days before the hearing;
(g)the lack of any notice of an application to admit the documents into evidence; and
(h)the obvious prejudice to the Respondent.
Section 66(1) of the SRC Act provides;
Where:
(a) a claimant who has instituted proceedings under this Part seeks to adduce any matter in evidence before the Administrative Appeals Tribunal in those proceedings; and
(b) the claimant had not disclosed that matter to the Tribunal at least 28 days before the day fixed for the hearing of those proceedings;
that matter is not admissible in evidence in those proceedings without the leave of the Tribunal.
These difficulties were taken up by the Tribunal with Mr Lourey. He was unable to address any of the issues identified in [79] above. The following exchange took place:
TRIBUNAL: Mr Lourey, you have now summarised a case which I had no idea what your case was. The statement of facts issues and contentions is patently deficient. You need to explain firstly why was the practice direction not followed and why weren’t any of the orders followed. You haven’t provided any explanation for that.
MR LOUREY: I have no submission in response to that, your Honour.
TRIBUNAL: How can you not have a submission?
MR LOUREY: It simply wasn’t done, your Honour. It should have been, it wasn’t done.
TRIBUNAL: Is there any legitimate reason - clearly as is pointed out by Mr Woulfe you face a very significant problem by virtue of section 66 of the Act which unless there is leave granted, and that’s a discretionary matter, I can’t take into account any of the material that you have filed, particularly in light of your statement now that there is simply no explanation and you make no submission. Clearly I can’t exercise a discretion without some basis, and you haven’t put forward any basis …
…
… You are not making any submissions to try to explain why the directions, which are absolutely standard directions, and which are necessary as Aon and other cases made clear for this tribunal to discharge its functions in accordance with section 2A of the Act. I am still struggling to understand on what basis I could resist the application made by the respondent. So I again ask are there any reasons why you have waited until a time very shortly before the hearing to file matters which on any assessment were clearly matters that you were going to rely on and have been it appears in your possession for over a year? What’s to stop me drawing the inference that this is done deliberately to ambush the respondent?
MR LOUREY: I will submit, your Honour, there has certainly been no intention to ambush the respondent whatsoever, and certainly no contemptuous attitude towards the tribunal.
…
TRIBUNAL: In terms of section 66 as the respondent points out the material that you have filed is not admissible into evidence because it was filed within the 28 days before the date fixed for the hearing.
MR LOUREY: One of the preliminary matters I had intended to deal with, your Honour, before my friend took over with the application he has made was to seek leave for those late documents to be accepted.
TRIBUNAL: On what basis?
MR LOUREY: One, to enable the hearing to proceed, and (2) allow my client’s claim to proceed to a determination in accordance with the law.
TRIBUNAL: I have to exercise a discretion which would justify going outside the standard rule, which is material that’s not filed at least 28 days beforehand and provided to the respondent is simply not admissible. You have not put forward a single reason why the discretion should be exercised in favour of the applicant. You have basically said there is no reason. …
MR LOUREY: I would simply repeat my submission, your Honour, that the discretion be exercised in favour of the applicant to enable those materials to be admitted. If there is prejudice, prejudice might be cured, and I am loathe to make this application, but in the event that you determine appropriate or that you might determine to not allow the respondent’s initial application I would foreshadow an application for an adjournment.
TRIBUNAL: And again the exercise of that discretion to adjourn a matter - see one of the problems is, and I know you and I have had this discussion before I think, in relation to costs. Unfortunately, this tribunal doesn’t have any power to award costs. All of the authorities from Jackamarra onwards of course always look at courts exercising a discretion to grant an adjournment on the basis that costs are an adequate recompense for prejudice suffered by the party, the innocent party who has had the matter adjourned. Unfortunately the tribunal cannot order costs against an applicant who is through his own conduct necessitated an adjournment.
(transcript at 20–22).
(Note: the Tribunal has corrected the spelling of Mr Lourey’s name which was incorrectly spelt in the transcript.)
As the Tribunal pointed out to Mr Lourey, while s 66 of the SRC Act does provide the Tribunal with power to grant leave to admit evidence submitted within 28 days before the hearing, in the absence of any substantive submission by the Applicant’s counsel or any explanation as to why the directions for lodging evidence and s 66 of the SRC Act were not complied with, there was no sufficient basis upon which leave to admit the material filed on 5 June 2020 should be granted. Accordingly, leave was not granted.
Similarly, there was no sufficient basis to grant an adjournment. This matter, as the Applicant’s lawyers had pointed out in their correspondence had already been delayed, in no small part due to the Applicant’s actions, and it was the Applicant who had “pushed” for the hearing to proceed as soon as possible. The difficulties that the Applicant found himself in at the commencement of the hearing were all of his own making, caused solely by the Applicant’s disregard for the directions made by the Tribunal and the provisions of s 66 of the SRC Act. The Tribunal refused the application for an adjournment and the hearing proceeded.
THE PARTIES’ CASES
The Applicant’s work history, the facts surrounding the Applicant suffering the claimed injury at work on 30 January 2018 and the events that followed as set out in [9]–[20] above are, as far as the Tribunal is aware, not disputed.
As discussed at length above, the Applicant’s SFIC did not, in any useful way, identify the issues that were in dispute and the Applicant’s case in respect of those issues. The most useful way to set out the parties’ respective cases, is to summarise the parties’ closing submissions.
Applicant’s closing submissions
The Applicant’s written closing submissions dated 6 July 2020 outlined the Applicant’s case as follows:
(a)It is not in disputed that the Respondent paid the Applicant's weekly payments of compensation for all periods of total and/or partial incapacity for the period 30 January 2018 to on or about 26 June 2018 and paid all medical treatment expenses between 30 January 2018 and on or about 30 August 2018.
(b)The Respondent reconsidered the determination as to the Applicant’s entitlement to medical treatment expenses extending the payment of some, but not all, of those expenses to no later than 31 December 2018.
(c)Pursuant to s 19 of the SRC Act the Applicant seeks weekly compensation payments for all periods of incapacity from 27 June 2018 to the present and continuing (application 2018/5831).
(d)Pursuant to s 16 of the SRC Act, the Applicant seeks payment for medical treatment required from 31 August 2018, or alternatively 1 January 2019, to the present and continuing (application 2018/5832).
(e)The admissible evidence before the Tribunal, (Exhibits A1, R2 and R3; together with the oral evidence of the Applicant, Ms Georges and Mr Phillips) even without the evidence submitted on his behalf which was not allowed into evidence, establishes without doubt that the Respondent acted prematurely in June and August 2018 in ceasing the weekly payments of compensation and medical treatment expenses.
(f)In relation to the determination of 26 June 2018:
(i)liability under the SRC Act for the Applicant's injury was not accepted "… largely on the basis of the medical evidence of [Mr] Phillips.." as stated in the determination;
(ii)the Applicant at that point had not returned to his full pre-injury duties and hours;
(iii)the Applicant's treating GP at the time, Dr Vanderveen, had not certified him fit for suitable duties with no hourly restrictions;
(iv)the Applicant was not performing his pre-injury duties and work in the same way that he was rostered prior to the injury, and it was not in the same way that he was rostered prior to the injury, and it was not the case that his injury had no impact on the number of hours for which he was rostered; and
(v)there was no reliable medical evidence “at hand” to support the suggestion that the Applicant was “ … fit to work your pre-injury employment for your pre-injury hours.”
(g)In relation to the determination of 30 August 2018;
(i)liability under the SRC Act for the Applicant’s injury was not accepted “ … largely on the basis of the medical evidence of Dr Phillips … ” as stated in the determination.
(ii)The Applicant’s symptoms were not “minor”, and those symptoms had not “ … practically fully resolved”;
(iii)it was not the case the Applicant did not require any further medical treatment; and
(iv)there was ample persuasive medical evidence before the Respondent confirming that the Applicant required ongoing medical treatment as at 30 August 2018.
(h)The remainder of the Applicant’s submissions of 6 July 2020 relate to what the Applicant perceives to be criticism by the Tribunal of the way that the Applicant’s case was presented up to the time of the hearing. None of those comments is relevant to the issues to be determined in the applications.
The Respondent’s closing submissions
The Respondent’s written closing submissions dated 3 August 2020 outlined the Respondent’s case as follows;
[The Tribunal notes that the Respondent throughout its closing submissions identified the relevant evidence to support each of the factual contentions made. Those references to evidence are not reproduced below.]
(a)The Applicant enlisted in the Australian Army on 10 November 1999. He was not suited to that employment. His personality was not the “right fit” for military service. Psychiatric assessment of the Applicant was that his problems were intrinsic and related to his personality and upbringing. The Applicant was discharged on 18 November 2001. The Applicant did not like his role in the military and did not achieve the job satisfaction that he wanted.
(b)The Applicant commenced employment with the Respondent in or about October 2015 but by approximately March 2017, the Applicant had also not achieved the job satisfaction he wanted in that employment.
(c)As the issues for determination emerged through the hearing, the issues for determination by the Tribunal are:
(i)whether the Applicant actually suffered an “injury” for the purposes of the SRC Act at all material times;
(ii)whether an “incapacity for work” resulted from such an “injury” for the purpose of s 19(1) of the SRC Act at all material times;
(iii)if so, whether the Applicant’s “AE” was equal to, or greater than, his “NWE” for the purpose of the formula in s 19(2) of the SRC Act at all material times; and
(iv)whether the Applicant reasonably obtained medical treatment in relation to an “injury” for the purpose of s 16(1) of the SRC Act at all material times.
(d)The Tribunal’s decision must be based on relevant and probative material that is probative of the matters for which the SRC Act provides citing Beezley v Repatriation Commission (2015) 150 ALD 11 (Beezley).
(e)In the present case, the Applicant did not provide evidence and information sufficient to meet the statutory requirements of the SRC Act. On the contrary, the relevant and probative material before the Tribunal establishes the following matters.
(i)the Applicant did not actually suffer an “injury” for the purposes of the SRC Act at all material times;
(ii)an “incapacity for work” did not result from an “injury” for the purposes of s 19(1) of the SRC Act at all material times;
(iii)in the alternative, the Applicant’s “AE” was equal to, or greater than, his “NWE” for the purpose of the formula in s 19(2) of the SRC Act at all material times; and
(iv)the Applicant did not reasonably obtain medical treatment in relation to an “injury” for the purpose of s 16(1) of the SRC Act at all material times.
No injury for the purposes of the SRC Act
(f)The Respondent cites the High Court’s judgment in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May) in particular at [50], [52] and [57] which, according to the Respondent, established that genuine, subjectively experienced symptoms without an accompanying physiological or psychiatric change, are not sufficient to establish the existence of an “ailment” or an “injury (other than a disease)” for the purpose of ss 5A(1) and 5B of the SRC Act.
(g)In support of that contention the Respondent also cites the decision of Deputy President the Hon. John Pascoe AC CVO in Williamson and Comcare [2019] AATA 4774; the decision of the tribunal in Whitlock and Comcare [2020] AATA 1353; the judgment of the Federal Court in Comcare v Stefaniak [2020] FCA 560 (Stefaniak) at [5]–[6].
The evidence that supports there being no injury for the purposes of the SRC Act
(h)The evidence and other materials before the Tribunal establish that the Applicant’s complaints always were and are of subjectively experienced symptoms, including alleged pain, in the absence of a physiological change and thus there is/was no “injury” for the purposes of the SRC Act.
(i)The evidence to support that is:
(i)The 6 February 2018 electromyography (EMG) test returned a normal result. There was no electrophysiological evidence of a left cervical radiculopathy. There was no electrophysiological evidence of a left median neuropathy at the wrist (carpal tunnel syndrome). Accordingly, as early as 6 February 2018, EMG established the absence of a diagnosable physiological change in the Applicant’s circumstances.
(ii)From 8 February 2018, Dr Gerry Vanderveen did not diagnose the Applicant with any specific medical condition. On the contrary, under the heading “diagnosis” on his various medical certificates, Dr Vanderveen relevantly certified the Applicant as having what may only be described as a collection of subjectively reported symptoms: for example, pain and numbness. In that respect, the clicking (if any) in the Applicant’s shoulder was probably a “normal event” which was not symptomatic. Accordingly, Dr Vanderveen’s certificates support a finding that there were only subjectively reported symptoms, in the absence of a physiological change, in the Applicant’s circumstances from as early as 8 February 2018.
(iii)On 12 February 2018 an MRI identified only minor C5/6 disc bulging on a background of a large canal with “no neural impingement”. That absence of neural impingement on MRI established the absence of a diagnosable physiological change as early as 12 February 2018.
(iv)The report following the examination by Mr Frederick Phillips (orthopaedic surgeon) on 22 March 2018 showed:
· although the Applicant appeared genuine, Mr Phillips “could only speculate regarding the anatomical cause of his complaint”; and
· he could not offer a precise anatomical diagnosis given “there is no clear evidence of bony or neurological injury” and advised that identifying a precise anatomical cause was difficult noting there was no immediate pain on 30 January 2018.
(v)Accordingly, Mr Phillips’ opinion supports a conclusion that a physiological change was never responsible for the Applicant’s symptoms.
(vi)The 10 May 2018 MRI of the Applicant’s left shoulder revealed no rotator cuff tendon tear which supports the conclusion that the Applicant did not ever have a diagnosable physiological change, despite his subjectively reported symptoms.
(vii)The 10 May 2018 MRI also showed mild subacromial bursal thickening. Mr Phillips speculated, on 31 May 2018, that mild subacromial bursitis had possibly been “provoked”. Accordingly, Mr Phillips diagnosed mild subacromial bursitis until proven otherwise. That was subject to the qualification that,
“if the bursa as demonstrated on the MRI scan is indeed the cause of his symptoms, then the Applicant should respond rapidly to a single steroid injection.
Very rarely a second or third injection would be required.”
(viii)The Applicant did not respond to left subacromial injections which were given on 8 June 2018 and 16 July 2018. The injections did not help “at all”. Thus, the subacromial bursa as identified on the scans was never a source of his symptoms and an anatomical shoulder pathology was ruled out. Accordingly, the MRI of 10 May 2018 did not establish the existence of a physiological change that was responsible for the Applicant’s symptoms, on the contrary, when read with the other evidence, it established that a physiological change was never responsible for the Applicant’s symptoms.
(ix)The possibility of a “stinger injury” was suggested by Dr Rob Boland PhD (physiotherapist). Mere possibilities are not enough for making findings of fact in the Tribunal. Mr Phillips advised he would consider the “possibility” of a “stinger injury”, however, Mr Phillips also advised that there was no objective evidence of an anatomical injury pathology. Dr Martyn Flahive (occupational physician) did not accept such a diagnosis given the normal mechanism of that type of injury, the Applicant’s description of his fall, and his symptoms and clinical findings. Dr Boland is not a medical practitioner therefore his suggestion of a “stinger injury” ought properly to be put to one side.
(x)Mr Phillips agreed with the proposition that what we are dealing with in the Applicant’s circumstances is a series of subjectively reported symptoms in the absence of a physiological change or disturbance. In support of that:
· Mr Phillips confirmed that the EMG of 6 February 2018 was normal and there was no electrophysiological evidence of a left cervical radiculopathy.
· Mr Phillips confirmed that the disc bulge identified on the MRI taken on 12 February 2018 was not responsible for the Applicant’s symptoms;
· Mr Phillips confirmed there had never been any proven pathology of the Applicant’s neck;
· Mr Phillips confirmed that the “bursa” was not a source of the Applicant’s (subjectively reported) pain. Mr Phillips explained that the fact that the Applicant did not respond to the injection would mean that the bursa was a normal bursa, a normal finding, and that it was not inflamed. In summary, bursal thickening or bursitis was/were not ever responsible for the Applicant’s symptoms;
· Mr Phillips elaborated that there is a distinction between bursal thickening and bursitis and discounted bursal thickening and bursitis as being caused by a single impact incident. He explained that a single impact incident would not cause the bursa to become thickened and added that the fact that the Applicant did not respond to the injections meant that his “presumption that that diagnosis was a possibility was in fact incorrect”;
(xi)Mr Phillips also advised that the clinical course of a soft tissue strain is that symptoms are expected to resolve within two to six weeks. Mr Phillips considered that any soft tissue injury would have resolved by the time he saw the Applicant on 28 May 2018, which was why he explored the possibility of another diagnosis. But that possibility was ruled out;
(xii)Since the time he provided his reports, Mr Phillips received documents from Rockingham Medical and Family Practice, Dr Allan Wang (orthopaedic surgeon), Dr Peter Silbert (neurologist), Perth Radiological Clinic and the Department of Defence (regarding the applicant’s Army service). Mr Phillips advised that those documents reinforced an opinion that by May 2018, the Applicant did not have any objective evidence of an injury pathology.
(xiii)Mr Phillips explained that when the Applicant was in the Army in 2001, he injured his back: he had a CT scan, which basically showed a minor disc bulge and he displayed marked abnormal pain behaviour through (physical) examination.
(xiv)in the Applicant’s general practitioner records, there was evidence of psychosocial issues, prior to the 2018 incident, associated with depression and dissatisfaction with work and the fact that the Applicant had complained of similar symptoms in 2006 reinforced Mr Phillips’ conclusion that he could not find objective evidence of an injury in relation to the incident of 30 January 2018.
(xv)A clinical note of 15 March 2017 from the Applicant’s medical records effectively recorded that he had changed his jobs 12 months previously and had not achieved the satisfaction that he thought he would. Mr Phillips advised that the note reinforced an opinion that there is a possibility that an individual would look for a reason to exit their particular situation; in this case, a job. As a general observation, Mr Phillips said that it is always more respectable to have an injury rather than a non-injury cause. As a convenient shorthand, that may be described as tendency to “medicalise” one’s situation.
(xvi)Mr Phillips referred to documents relevant to the applicant’s Army service which support that conclusion, in particular, the note made by the Applicant’s commanding officer which concluded that:
“On review of Trooper Pearson’s psychological report, it is obvious that psychosocial factors seem to dominate the member’s pain experience”.
(xvii)Based on an opinion that by May 2018 the Applicant did not have objective evidence of injury pathology, Mr Phillips advised that it followed that there was no evidence of an injury that would cause incapacity for work and no evidence that any treatment was required
(j)Accordingly, the expert evidence proves that the Applicant did not ever suffer, or continue to suffer, from an “injury” for the purpose of the SRC Act at material times;
(k)Further or in the alternative, Mr Phillips’ opinion as expressed at hearing was supported by the lay evidence and concessions made by the Applicant in cross-examination. Those claimed concessions are set out in para 29.2 of the Respondent‘s closing submissions. These included the admission that as at 26 June 2018, the Applicant was working his normal hours and that as at 1 January 2019, there was no medical treatment that the Applicant was obtaining in relation to his claimed condition. The Applicant did not put on any medical evidence “at all” to show that he was suffering incapacity for work as at 26 June 2018 or that he needed treatment on 1 January 2019.
(l)On 27 July 2018 the Applicant resigned. He asserted that continued bullying and harassment “had helped with [that] decision”. However, almost immediately prior to his resignation, the Applicant was confronted with allegations of misconduct.
(m)On 22 April 2020 the Applicant’s pain was slightly improved but he told his GP that the “legal issue is the sticking point”.
(n)In re-examination, the Applicant conceded that from 26 June 2018 through to the point where he last worked for the Respondent he was doing his duties – lifting (up to 18 kg), carrying, pulling, pushing, bending, stooping, climbing stairs, crouching, squatting etc – in the ordinary way which he would have “prior to injury”. That concession reinforces the view that the Applicant tends to “medicalise” his situation, and/or blames employment for that situation without a proper basis and seeks financial gain on insufficient grounds.
(o)On 8 December 2000, the Applicant told the Army Chief Medical Officer, MJ Stacey, that he developed low back pain in July 2000 after “twisting in bed” and reaching over to switch off the alarm clock. CMO Stacey advised that the Applicant displayed no enthusiasm for rehabilitation, expected to be “discharged with compensation”, and said he would take legal action if he did not get compensation and that “by [the Applicant’s] own admission [this] is not a service related complaint”.
(p)Notwithstanding that, the Applicant obtained and continues to draw a part pension from his alleged service-related injury.
(q)The Applicant additionally asserted that he enjoyed his role with the Respondent and the only thing with which he had a problem was his alleged January 2018 injury. However, the Applicant was actually dissatisfied with his role with the Respondent no later than 15 March 2017. The fact that the Applicant instinctively blamed an alleged injury of 30 January 2018 for his state of mind back in March 2017 further reinforces the view that he tends to “medicalise”, and seeks to blame employment for his situation without a proper basis for doing so.
(r)In summary, there is a sound foundation in the evidence from which the Tribunal may draw the inference that inappropriate motivational and attitudinal issues, rather than any physiological change or disturbance, led to and perpetuated the Applicant’s present dispute with the Respondent.
(s)In any event, Mr Phillips’ clear evidence establishes that the Applicant’s complaints are only of subjectively reported symptoms in the absence of a physiological change or disturbance.
(t)Alternatively, Mr Phillips’ evidence shows that he took all of the relevant information and considerations into account and Mr Phillips’ evidence – showing that the applicant complains only of subjectively experienced symptoms in the absence of a physiological change – ought properly to be accepted.
(u)The only “expert” on whom the Applicant might have sought to rely was Dr Alex Speight. However, as a general practitioner, Dr Speight’s evidence would have been outweighed by the evidence of Mr Phillips given the latter’s more pertinent qualifications, training and experience. And any other material which the Applicant might have sought to adduce in breach of serial Tribunal directions and/or s 66(1) of the SRC Act would not have altered that circumstance.
(v)Thus, in the words of the Full Court in Beezley at [68], the Applicant did not provide evidence and information sufficient to meet the statutory requirements of an “injury”.
(w)Mr Phillips described as “pure speculation” the suggestion that it was possible that thickening of the bursa was caused by the Applicant’s incident in January 2018. Mr Phillips added that a thickened bursa, as such, is a normal finding in the Applicant’s age group. In any event, Mr Phillips again confirmed that the fact that the Applicant had injections, with no benefit, would indicate that the thickened bursa was not a cause of his symptoms: a single incident would not provoke a thickened bursa. Indeed, Mr Phillips added that there was no evidence that the Applicant suffered bursitis when he was examined in March 2018.
(x)The Applicant does not satisfy the meaning of the words “ailment”, “injury (other than a disease)” or “aggravation” in s 5A(1) of the Act. That is because the Applicant’s reports are (and always were) of subjectively experienced symptoms in the absence of a diagnosable physiological change.
(y)The present case is indistinguishable from May and Stefaniak. Here, imaging ruled out an injury. Alternatively, the evidence shows that any soft tissue injury would have been a spent force by no later than mid-March 2018.
No incapacity for work (application 2018/5831)
(z)As that Applicant did not suffer an “injury” for the purpose of the SRC Act, the Applicant could not have suffered incapacity for work as a result of such an “injury” for the purposes of s 19(1) of the SRC Act.
(aa)Alternatively, the evidence before the Tribunal shows that the Applicant did not suffer incapacity to engage in any work, for the purpose of s 4(9)(a) of the SRC Act (citing Sullivan and Comcare [1998] AATA 907, nor for the purpose of s 4(9)(b) of the SRC Act (citing Smith and Comcare [2002] AATA 249 at [85]; Moon and Telstra Corporation Ltd (2006) 93 ALD 740 at [21]; Keys and Comcare [2011] AATA 277.
(bb)The evidence to support these findings is:
(i)from 17 May 2018,106 Dr Vanderveen certified the Applicant as having some capacity for work;
(ii)the Applicant conceded that from 26 June 2018 through to the point where he last worked for the Respondent, he was doing his duties and was working his normal hours as at 26 June 2018;
(iii)the Applicant relevantly agreed with return to work schedules requiring him to work his normal duties on his normal days from as early as 18 May 2018 up to his resignation;
(iv)the Applicant only had time off work between 16 July 2018 and 22 July 2018 following a cortisone injection;
(v)Mr Phillips medical report dated 28 August 2018 advised that the Applicant “remains” fully fit for pre-injury duties for another employer;
(vi)Dr Flahive’s medical report dated 20 December 2019 advised that the Applicant was fit to undertake his normal work duties without restriction.
No compensable medical treatment (2018/5832)
(cc)The non-existence of any “injury” for the purpose of the SRC Act, medical treatment could not have been obtained in relation to an “injury” for the purpose of s 16(1) of the SRC Act at any material time.
(dd)In the alternative, there was no medical treatment that it would have been reasonable for the Applicant to obtain in relation to an “injury” for the purpose of s 16(1) of the SRC Act based on:
(i)from 28 August 2018, Mr Phillips advised that he would not recommend any treatment for the Applicant and did not resile from that position at the hearing.
(ii)the Applicant conceded under cross-examination that there was no medical treatment that he was obtaining in relation to his claimed condition as at 1 January 2019;
(iii)on 20 December 2019, Dr Flahive advised that there was no indication that the Applicant warranted specific exercises for his cervical spine and did not recommend any other treatment in relation to an “injury” for the purpose of the SRC Act.
The Applicant’s submissions in response
In a report dated 1 May 2018 (R3, T39), Mr Garry Sutijono reported that the Applicant had been making slow but good progress over the last few months and had been back at work for 40 hours a week for the last two weeks on restricted duties. The report advised that on examination the Applicant was able to achieve full range of motion with minimal pain. The Applicant had some tenderness and tightness of the upper trapezius depending on the amount of work undertaken.
In a further letter dated 8 May 2018 (R3, T45), Mr Sutijono said he thought that the Applicant’s prognosis was “slow recovery due to nature of injury but should have full function by end of treatment”. He recommended a further six to 10 physiotherapy sessions, once or twice per week.
On 10 May 2018 the Applicant had an MRI of his left shoulder. The report on that MRI (R3, T46) advised that the Applicant’s left shoulder was normal with no rotator cuff tearing. The only comment noted by the author, Dr Robert Nairn, was “Mild subacromial bursal thickening”.
In a certificate of capacity dated 31 May 2018 (R3, T51), Dr Vanderveen certified the Applicant as “suitable for driving duties 4 days. 1 day transactioning Wednesday increasing as per RTW [return to work]”. Dr Vanderveen recommended the Applicant take Voltaren/Panadol, physiotherapy treatment and home exercises.
During this period Dr Vanderveen issued progress certificates of capacity certifying that the Applicant was suffering from neck and upper arm pain, tenderness left neck musculature, lateral dorsi pain and lateral trapezius tenderness and that the Applicant had some capacity to work on modified duties and hours (e.g. R3, T42: certificate issued 3 May 2018).
Dr Vanderveen’s medical certificate dated 31 May 2018 (R3, T51), certified the Applicant as “suitable for driving duties 4 days. 1 day transactioning Wednesday increasing as per RTW [return to work]”. Dr Vanderveen recommended the Applicant take Voltaren/Panadol, physiotherapy treatment and home exercises.
In his supplementary report dated 31 May 2018 (R3, T52), Mr Phillips reported as follows:
(a)there had been an increase in the Applicant’s work capacity; he was working “almost full-time but driving only”;
(b)the Applicant still had trouble working the gear shift and hand brake in some vehicles;
(c)the Applicant did experience some pins and needles in his hand which had rapidly resolved;
(d)he reported a feeling of clicking and bruising and some discomfort/pain in the region of the shoulder;
(e)the Applicant said that he suffered from “fatigue” around the left shoulder;
(f)in relation to ADLs he is coping with most normal chores and duties;
(g)he still notices discomfort when lifting his grandchild.
Mr Phillips also noted that physiotherapy continued once a week. An MRI scan dated 10 May 2018 (R3, T46) confirmed an intact rotator cuff and a mild subacromial bursal thickening. Mr Phillips commented:
It is possible that under the circumstances described [the Applicant] did suffer a minor soft tissue injury around the cervical spine but also at the shoulder.
...
It is possible that the injury as described provoked a mild subacromial bursitis, the symptomology of which is now becoming more clear.
If the bursa as demonstrated on the MRI scan is indeed the cause of his symptoms then he should respond rapidly to a single steroid injection.
Mr Phillips diagnosed the Applicant as suffering from “[m]ild subacromial bursitis until proven otherwise, …” explaining, “my reasoning being that there has never been any proven pathology of the neck” (R3, T52/161). He said that he expected this would resolve after a steroid injection, although he noted that very occasionally a second or third injection may be considered. Mr Phillips thought that the Applicant would be fit to return to his pre-injury duties as an armoured vehicle operator within two weeks of a successful steroid injection.
The Applicant underwent a steroid injection to his left shoulder on 8 June 2018 (R3, T55).
In a medical certificate dated 14 June 2018 (R3, T56), Dr Vanderveen certified the Applicant’s condition as “suitable for driving duties 4 days. 1 day transactioning”. Dr Vanderveen recommended that the Applicant take Voltaren/Panadol/mersyndol, physiotherapy treatment and home exercises.
On 26 June 2018 (R3, T58), the Respondent determined that it was no longer liable to pay incapacity payments pursuant to section 19 of the SRC Act for “soft tissue injury affecting the neck shoulder musculature on the left” because the Applicant had successfully returned to his pre-injury hours several weeks beforehand.
In a progress certificate of capacity dated 14 June 2018 (R3, T56) Dr Vanderveen diagnosed the Applicant as suffering “left neck and upper arm pain, tenderness left upper trapezius neck musculature”.
In a progress certificate of capacity dated 28 June 2018 (R3, T60), Dr Vanderveen diagnosed “left neck and upper arm pain. tenderness [sic] left upper trapezius neck muscalture”. This is substantially the same diagnosis that Dr Vanderveen provided in the progress certificates of capacity dated 8 February 2018 (R3, T14), 15 February 2018 (R3, T21), 22 February 2018 (R3, T24), 8 March 2018 (RT3, T29), 22 March 2018 (R3, T32), 5 April 2018 (R3, T37), 3 May 2018 (R3, T42), 17 May 2018 (R3, T48), 31 May 2018 (R3, T51), 14 June 2018 (R3, T56), 28 June 2018 (unsigned) (R3, T60), one undated certificate apparently issued 9 July 2018 (R3, T72), 12 July 2018 (R3, T75), 23 July 2018 (R3, T79), 6 August 2018 (R3, T88) and 20 August 2018 (R3, T94).
Dr Rob Boland, specialist musculosketetal physiotherapist, prepared a report dated 4 July 2018 (R3, T69). Dr Boland opined that the Applicant “is likely to have received a ‘stinger’ injury that has a natural course for resolution in the absence of abnormal neurophysiological investigations which the worker has undergone with no significant findings”. Dr Boland thought it reasonable that the Applicant undergo a small amount of physiotherapy treatment and return to work on a graduated program.
An ultrasound of the left shoulder dated 5 July 2018 (R3, T71) reported as showing:
Moderate subacromia/bursal thickening with signs of impingement suggestive of bursitis. No rotator cuff tear. Small focus of calcification in the subscapularis tendon. This likely reflects mild calcific tendonitis.
In the progress certificate of capacity dated 12 July 2018 (R3, T75) Dr Vanderveen certified the Applicant as being “suitable for driving duties 4 days. 1 day half transactioning/half driving.” Dr Vanderveen recommended that the Applicant take Voltaren/Panadol, physiotherapy treatment and home exercises. Dr Vanderveen also referred the Applicant for a second steroid injection (booked for 16 July 2018).
In a further report dated 18 July 2018 (R3, T77), Dr Boland stated that the Applicant “is likely to have received a ‘stinger’ injury according to his Nominated Treating Doctor”. That statement, if not at odds with the statement made by Dr Boland in his first report of 4 July 2018 (see [130] above), certainly qualifies the earlier statement that in his view the Applicant was likely to have suffered a stinger injury. Dr Boland seems to advise in the second of his reports that that was the assessment of the Applicant’s treating doctor, not that of Dr Boland himself. In that second report of 18 July 2018 Dr Boland expressed the view that:
(a)the Applicant should attend to physiotherapy sessions over the following two weeks with two final sessions over the subsequent month;
(b)it is possible that not all sessions will be required to achieve pre-injury duties;
(c)exercise physiotherapy was not reasonably necessary;
(d)a gym program was not reasonably necessary;
(e)hydrotherapy was not reasonably necessary; and
(f)a work-related activity program was not reasonably necessary.
In the progress certificates of capacity dated 23 July 2018 (R3, T79) Dr Vanderveen certified that the Applicant was “suitable for driving duties 4 days. 1 half day transactioning/half driving”. Dr Vanderveen recommended that the Applicant take Voltaren/Panadol, physiotherapy treatment and home exercises. Dr Vanderveen commented that the “second steroid injection of subacromial bursa [had] not helped”. He noted the Applicant was to be referred to Professor Allan Wang, orthopaedic surgeon, for review.
The Applicant provided a medical certificate from Dr Biju Bhargavan, general practitioner, dated 27 July 2018 (R3, T84) which read:
This is to certify that Mr Richard Pearson is unable to work from 27/07/2018 to 3/08/2018 inclusive due to a medical condition.
In the progress certificate of capacity dated 20 August 2018 (R3, T94), Dr Vanderveen certified that the Applicant was “suitable for driving duties 4 days. 1 day transactioning”.
Mr Phillips’ evidence at the hearing was, relevantly, as follows:
MR WOULFE: You’ve had occasion to see Mr Richard James Pearson on three occasions in connection with claim for workers’ compensation, haven’t you?
MR PHILLIPS: That is correct.
MR WOULFE: The first occasion was 22 March 2018, the second occasion was 28 May 2018 and the third occasion was 20 August 2018, weren’t they?
MR PHILLIPS: Correct.
…
MR WOULFE: Is it the case that you took into account an MRI of the cervical spine which was undertaken on 12 February 2018?
MR PHILLIPS: Yes, I’ve got that in front of me.
MR WOULFE: Is it the case that that identified only a minor C5/6 disc bulge with no evidence of any neural compromise?
MR PHILLIPS: That is correct. But I also made note that he had a large spinal canal which would mitigate any - against any effect of a disc bulge compromising a nerve, i.e., he had plenty of room within his spinal canal to accommodation any possible bulge.
MR WOULFE: Based on the EMG and the comments that you’ve just made in relation to the disc bulge, what do we make of the imaging, in terms of explaining his symptoms (indistinct)?
MR PHILLIPS: There was no - I could not identify an anatomical cause for his symptoms.
(transcript at 171).
…
MR WOULFE: At the bottom of that page [referring to Mr Phillips’ report dated 31 May 2018 (R3, T52/161)] , you provide a diagnosis of mild subacromial bursitis until proven otherwise. And you say, “My reasoning is that there has never been any proven pathology of the neck”, don’t you?
MR PHILLIPS: That is correct. Yes.
…
MR WOULFE: You subsequently became aware of Mr Pearson undergoing two injections of the left subacromial bursa, didn’t you?
MR PHILLIPS: I did. I - he had a click when I examined him in May, there was a click at the shoulder joint, which I felt was - could be related to the bursa. It wasn’t the actual joint or the acromioclavicular joint. I considered the clicks can be incidental findings and often are, but given his symptoms and I felt was a very mild positive test for impingement, I considered that - a possibility that the bursa was causing his symptoms. And on that basis, I recommended a local anaesthetic and steroid injections.
MR WOULFE: By the time you saw Mr Pearson in 20 August 2018, he’d had two subacromial injections, hadn’t he?
MR PHILLIPS: He had, yes.
MR WOULFE: He reported to you that they had no benefit, didn’t he?
MR PHILLIPS: That is correct.
(transcript at 172).
…
MR WOULFE: What does that tell us, if anything, about the diagnosis that you gave of “mild subacromial bursitis until proven otherwise”?
MR PHILLIPS: The diagnosis was not present, at least by the time the injections were given. I specifically asked about the effect of low climasthetic, because even if the steroid injection doesn’t, as it were, cure the condition, is an appropriate response to local anaesthetic which relieves symptoms for a brief period of time. I specifically asked about that and there was no response which meant to me that the bursa was not a source of his pain.
…
MR WOULFE: You said, in your report, that there was no objective evidence of an anatomical injury pathology, didn’t you?
MR PHILLIPS: That is correct. And that is in - I also had made note of him having had an MRI scan of the shoulder which demonstrated a bursa. Simply demonstrating a bursa doesn’t actually indicate that this is a pathology or an injury. It - the MRI scan did not identify any other indication of an injury.
MR WOULFE: Is it the case, or not, that the minor C5 disc bulging is not responsible for Mr Pearson’s symptoms?
MR PHILLIPS: That would be my opinion.
MR WOULFE: So, not responsible, is that your opinion?
MR PHILLIPS: Yes.
MR WOULFE: Given the inability of the steroid injections to provide benefit, does that support the conclusion, or not, that the mild subacromial bursitis is not responsible for his symptoms?
MR PHILLIPS: Well, I - bursitis is an actual condition, it’s an inflammation condition. He had bursal thickening and it’s an assumption that if you’ve got symptoms that it’s inflamed. The fact that he didn’t respond to the injection would mean that the bursa was a normal bursa, a normal finding, and that it was not inflamed. The other issue of relevance is that even though it may have been a bursitis, I would not have expected a bursitis to occur from a single impact. Bursitis, which is inflammation of the bursa, is usually occasioned - is normally occasioned by a repetitive, usually overhead activity, not a single impact.
MR WOULFE: To summarise that, the bursal thickening or the bursitis were not responsible ever for his symptoms, given the progression after the injections. Is that right?
MR PHILLIPS: That is correct. In summary, after I saw him in August, it was my conclusion that I could find no objective evidence of any injury pathology.
(transcript at 173).
…
MR WOULFE: In relation to the bursal thickening, as distinct from the inflammation which is the bursitis, your evidence, I think, was that the bursitis is not caused by a single impact incident?
MR PHILLIPS: Bursitis, in general, is not caused by a single impact, so the inflammatory or clinical condition is not caused by a single impact. A thickened bursa is a radiological finding, often reported on - it’s simply a radiological finding.
MR WOULFE: Is that a condition which is similarly not associated with a single impact incident?
MR PHILLIPS: No. A thickened bursa - well, a bursa is a normal structure, a thickened bursa is a radiological finding. And unless it is proven to be symptomatic, it’s just a normal structure. The word, “thickened”, is a description, it doesn’t really - it doesn’t mean - it has no meaning unless it is associated with specific symptoms, such as inflammation or impingement, whereby the - when you elevate your shoulder, the part of the humerus actually impacts and pinches the bursa against the bone that goes over the top of the shoulder which is the acromion.
…
MR WOULFE: Similarly, where you discounted a single impact incident causing bursitis, a single impact incident is not, is it, in any way causally related to, or is the thickening of the bursa associated with a single impact?
MR PHILLIPS: That is correct. If the bursa has the appearance of thickening but is not symptomatic, then it is quite simply a description of what the radiologist sees.
(transcript at 174).
…
MR WOULFE: Well, the line of questioning and you’ve answered, was concentrating on the incident not causing the bursitis. What I’m trying to get clear in my mind is whether the medical evidence that you’re giving is that the thickening of the bursa is also not a result of a single impact incident?
MR PHILLIPS: That would be my opinion. Unless you can - you have evidence that the thickened bursa is causing symptoms, then it has no clinical relevance.
…
MR WOULFE: Is it the case that once you take into account the results of the injections, then you draw the conclusion that the thickening of the bursa, or any alleged bursitis, are not responsible for his symptoms?
MR PHILLIPS: That is correct.
MR WOULFE: Tell me, please feel free to disagree, but is that a similar proposition in terms of the radiological findings of the cervical spine, insofar that they’re not responsible for his symptoms?
MR PHILLIPS: Yes. I do not consider - I consider the radiological changes identified, or description of his cervical spine is in fact quite a normal description for age and there is no evidence of any structure there that could be related to his symptoms.
MR WOULFE: Tell me if you disagree with this proposition, or whether you agree with it, please? Is it the case that what we’re dealing with in Mr Pearson’s circumstances is a series of subjectively-reported symptoms in the absence of a physiological change or disturbance?
MR PHILLIPS: That would be a good summary, yes.
(transcript at 175).
…
MR WOULFE: Yes. Now, Mr Phillips, is it the case that since you provided your reports you’ve had an opportunity to review a range of documents produced on summons?
MR PHILLIPS: Yes, I have.
MR WOULFE: And is it the case that you’ve received documents from Rockingham Medical and Family Practice, Mr Allan Wang, Dr Peter Silbert, Perth Radiological Clinic, and the Department of Defence regarding the Army service?
MR PHILLIPS: Yes, I have.
MR WOULFE: Now, in terms of your opinion, that Mr Pearson’s condition – or, your opinion to the effect that by 28 May 2018 Mr Pearson’s condition was subjectively experienced symptoms in the absence of a physiological change or disturbance. Do the documents produced on summons fortify, weaken, or do anything else in relation to your opinions?
MR PHILLIPS: I wasn’t aware of the issues in those documents when I saw Mr Pearson. The documents subsequently provided reinforce my opinion that by May 2018, Mr Pearson did not have any objective evidence of an injury pathology … I seen him [sic] when he was in the army, 2001, he injured his back. He had a CT scan, which basically showed a minor disc bulge which one would not normally consider the specific injury. And when he was examined, he displayed a marked abnormal pain behaviour, through the examination … And in his general practitioner records, there was evidence of what I would describe as psychosocial issues, prior to the incident. That’s associated with depression and dissatisfaction with work.
MR WOULFE: And could I first take up the ‘marked abnormal pain behaviour in the examination’. To what extent, if at all, does that go towards explaining the alleged symptoms in the present circumstance?
MR PHILLIPS: It doesn’t explain them, but it indicates that the individual has demonstrated an abnormal pain behaviour pattern in the past.
(transcript at 177–178).
Mr Phillips was taken to medical records that had been produced under summons by the general practice attended by the Applicant (R1, tab 46). These records included a note of the Applicant being seen by Dr Speight on 8 March 2019 (R1, tab 46/ pp 84,86). The following exchange then took place:
MR WOULFE: … I’ll just ask you to assume this, on 8 March 2019, Mr Pearson was examined by Dr Alex Speight, GP, who found a reasonable range of motion actively, painful arc, negative impingement, a good range of motion to the neck? To what extent, if any, does that support your opinion?
…
MR PHILLIPS: … It would reinforce my original impression that the likely, most likely injury that could have occurred would have been a simple strain.
MR WOULFE: Could I ask you to assume as well that on 22 April 2020, Mr Pearson presented to Dr Speight and said, “Pain slightly improved, legal issues are sticking point” or words to that effect? [R1, tab 46] Do you follow?
MR PHILLIPS: I do follow. Yes. Again, that - I would have expected a strain injury to have resolved within two to six weeks of the injury and that would be in keeping with concerns regarding ongoing complaint [sic].
…
(transcript at 180–181).
MR WOULFE: Do those red flags indicate some other cause for the complaint of symptoms rather than a physiological cause, or not?
MR PHILLIPS: They - the concern is that there is no anatomical cause that I could diagnose that would give rise to those symptoms. ...
…
MR WOULFE: You’ve given evidence, Doctor, that it’s your opinion that by May 2018 the applicant didn’t have objective evidence of injury pathology?
MR PHILLIPS: Yes.
MR WOULFE: Please tell us, does it follow, therefore, that by that date, there was no incapacity for work resultant from an injury?
MR PHILLIPS: That - it follows that there was no evidence of an injury that would cause incapacity for work.
MR WOULFE: Does it also follow that there’s no evidence of an injury that would result in a need to obtain medical treatment, or not?
MR PHILLIPS: If there was no evidence of an injury, no objective evidence, then there would be no evidence that any treatment was required.
(transcript at 182).
Mr Phillips gave the following evidence in cross-examination:
MR STEWART: Could it be the case that, in circumstances where someone is carrying out that repetitive lifting, that a particular event could then bring the diagnosis on quicker or at an immediate point in time?
MR PHILLIPS: That is a possibility.
…
MR WOULFE: I mean, of course it’s a possibility. If a person is prone to a particular condition, then a single incident might make that symptomatic. But a thickened bursar, as such, in this age group, is a normal structure. If it’s not inflamed as a bursitis, then it’s not symptomatic. And the fact that he had injections, with no benefit, would indicate the thickened bursar was not a cause of his symptoms.
MR STEWART: Is it not the case though that what you had indicated in your May 2018 report was that in the context of what you’ve just said regarding this being something that many people, particularly this age group, may encounter? Is it not the case that the incident in 2018 could have provoked that?
MR PHILLIPS: No. A thickened bursar would be a thickened bursar. A single incident would not provoke a thickened bursar. It would not lead a - what’s described as a non-thickened bursar to become a thickened bursar. Unfortunately, I have to keep repeating, my understanding of a thickened bursar is quite simply that this is a radiological description of an image. It’s not a pathological condition, unless it is seen to be causing symptoms.
(transcript at 182).
Mr Stewart then sought to put to Mr Phillips questions going to whether the fall on 30 January 2018 could have aggravated a pre-existing condition. Objection was taken by Mr Woulfe as follows:
MR WOULFE: I now object, Deputy President, on jurisdictional grounds. The first of those is Zabo v Comcare. It’s never been part of the applicant’s case, prior today, and again, it’s a problem with no provision of evidence or any assistance from the applicant, that the nature and conditions of his employment led to some predisposition that would have to go into the factual matrix and be considered as part of the original notice of injury and claim and the matters to be determined and reconsidered and put before the tribunal. The authority for that is Zabo, a long- standing authority of the Full Court of the Federal Court from 2012. And then, again, with respect, it illustrates a jurisdictional issue and the unsatisfactory preparation of the case on the applicant’s part.
The Tribunal understands why Mr Woulfe raised the objection. The claim as made by the Applicant had always been a one-dimensional one, that the fall at work on 30 January 2018, and that alone, was the cause of the injury. Mr Stewart explained that the Applicant was not trying to run a second line of argument, but rather was asking Mr Phillips whether a person with a thickened bursa may be more susceptible to an onset of symptoms caused by a fall. The following question and answer then ensued:
MR STEWART: Yes. Mr Phillips, so as I’d indicated there, whilst accepting that the single incident, in itself, might not give rise to the bursal thickening, is it your opinion that, on that background, a single event including the incident in January 2018, could give rise - you’ve used the word “provoked” - symptoms or complaints?
MR PHILLIPS: Again, in my experience, a single impact does not lead to inflammation of the bursar. So, the - almost certainly, it would be my opinion that a thickened bursar was a normal structure in a person of this age group. And a single impact would not cause a bursitis, which is a symptomatic issue and there was no evidence, when examined in March, that he was suffering from a bursitis.
(transcript at 187).
Mr Phillips agreed in cross-examination that the Applicant may have suffered a soft tissue injury:
MR STEWART: Then, your evidence is that, at the very least then, Mr Pearson had suffered a soft tissue injury?
MR PHILLIPS: Yes. That was my feeling at the time, that he had suffered a strain injury.
It was also put to Mr Phillips that when he examined the Applicant on 28 May 2018, the Applicant was still not fully fit for work:
MR STEWART: Nonetheless, would you not accept that when you reviewed Mr Pearson on 28 May 2018 that you took the view he wasn’t, at that point in time, fully fit for his pre-accident role?
MR PHILLIPS: That was based on his symptoms, as he related them.
MR STEWART: We’ve obviously, both myself and my friend, have put numerous questions to you in relation to the diagnosis aspect of this, but would you accept that even in respect of a soft tissue injury that those restrictions could have applied at that point in time?
MR PHILLIPS: No. A soft tissue injury, they - a strain would resolve at between two and six weeks.
(transcript at 189).
On further cross-examination Mr Phillips agreed that when he examined the Applicant on 28 May 2018, he considered that he was not fully fit for work, however, his evidence was that that view was based on what the Applicant was telling him at that time and because he considered that the Applicant had bursal pathology, which is why he made the suggestion regarding steroid injections (transcript at 190).
In re-examination Mr Phillips made the following observation:
MR WOULFE: You took the view that at the time he was partially restricted and at the time he was genuine and all of those sorts of things?
MR PHILLIPS: Yes.
MR WOULFE: What if anything has changed in terms of the material and the subsequent evidence that may or may not have led to a change in your view?
MR PHILLIPS: The subsequent evidence is that there’s never - subsequent - well, previous investigations had not identified an injury pathology, his progress had not been in keeping with what I would have expected from a simple soft tissue injury. And having given him the benefit of the doubt regarding subacromial pathology, not responding to the steroid injections even briefly, accepting that not all such conditions are cured by the injection, I have come to the conclusion that there was no objective evidence of any ongoing anatomical injury pathology.
The other doctor who was scheduled to give evidence at the hearing was Dr Flahive. Dr Flahive had provided a report dated 20 December 2019 (R1, tab 41) (see [45], [48], [52], [87](i)(xi), [87](bb)(vi) and [87](dd)(iii) above), however, in the end the Respondent did not call Dr Flahive.
In effect, the only expert medical evidence placed before the Tribunal was that of Mr Phillips. Mr Phillips’ qualifications and experience are very considerable. His curriculum vitae (R1, tab 43) discloses that he is a specialist having practiced since 1983 in, amongst other areas, general orthopaedics involving the spine, is a member of numerous relevant medical associations and has held significant professional postings. The Applicant did not contest Mr Phillips standing as an expert.
As noted above, Dr Boland, specialist musculosketetal physiotherapist, provided a two reports the first dated 4 July 2018 (R3, T69) and the second dated 18 July 2018 (R3, T77) in which he raised the possibility (in the second report only on the basis of the treating doctor’s opinion) that the Applicant could have sustained a “stinger” type injury.
The likelihood of the Applicant having suffered a stinger injury was in effect discounted by Mr Phillips at the hearing. Further, as the Respondent correctly contends, a mere possibility is not enough for the Tribunal to make findings of fact. The Tribunal also notes that Dr Flahive did not accept the diagnosis of a stinger injury given the normal mechanism of that type of injury, the Applicant’s description of his fall, and his symptoms and clinical findings (see [87](i)(ix) above). While Mr Phillips advised he would consider the “possibility” of a “stinger injury”, Mr Phillips also advised that there was no objective evidence of an anatomical injury pathology (R3, T97). Further, all of the medical evidence was to the effect that such an injury would resolve over a relatively short period (Dr Boland’s report – R3, T69) and the Tribunal finds that, even if the Applicant did suffer a “stinger” injury on 30 January 2018, by 26 June 2018 he was no longer suffering such an injury. This is supported by the fact that as at 26 June 2018 the Applicant was working and being paid on the basis of his pre-injury hours and NWE and the Respondent had, and continued, to provide the Applicant with full-time duties at his pre-injury rates of pay. The Applicant conceded in re-examination that from 26 June 2018 through to the point where he last worked for the Respondent he was doing his duties – lifting (up to 18 kg), carrying, pulling, pushing, bending, stooping, climbing stairs, crouching, squatting etc – in the ordinary way which he would have “prior to injury”. Additionally, the Applicant conceded that he was working his normal hours as at 26 June 2018 (transcript at 113).
The Tribunal accepts the evidence of Mr Phillips that there is no evidence of any relevant change in the Applicant’s physiology. Under the principle emerging from May and the cases referred to in [87](f) and (g) above, the Applicant’s subjectively experienced symptoms, without an accompanying physiological change, are not sufficient to establish the existence of an “injury” for the purpose of s 5A(1) of the SRC Act.
The Tribunal finds that there is insufficient evidence probative of the matters for which the SRC Act provides (see Beezley) which, in this case, are that as at 26 June 2018, and thereafter, the Applicant was suffering from an injury for the purposes of s 19 of the SRC Act or that after 31 December 2018 the Applicant was suffering from an injury which would make the Respondent liable for payment for reasonable treatment under s 16 of the SRC Act. The Tribunal also notes that there was no probative evidence presented by the Applicant as to what “reasonable treatment” the Applicant had received after 31 December 2018 or what “reasonable treatment” the Applicant now sought upon which the Tribunal could make a determination of liability under s 16 of the SRC Act.
DECISION
For the reasons set out above, the Applicant has failed to establish liability on the part of the Respondent under either ss 16 or 19 of the SRC Act. Accordingly:
Application 2018/5831
(a)The decision dated 16 August 2018 by which the Respondent affirmed the determination dated 26 June 2018 is affirmed; and
Application 2018/5832
(b)The decision dated 26 September 2018 by which the Respondent decided to set the determination dated 30 August 2018 aside, and substitute a decision accepting liability to pay reasonable pharmaceutical expenses and monthly GP reviews in respect of the accepted condition pursuant to s 16 of the SRC Act up to 31 December 2018 (subsequently varied to 1 January 2019) is affirmed.
I certify that the preceding 152 (one hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.....[SGD]...................................................................
Associate
Dated: 25 February 2021
Dates of hearing: 15 and 16 June 2020, 20 November 2020 Counsel for the Applicant: Michael Lourey Solicitors for the Applicant: Chapmans Barristers & Solicitors Counsel for the Respondent: Peter Woulfe Solicitors for the Respondent: Moray & Agnew
3
15
0