Pearson and Prosegur Australia Pty Ltd (Compensation) - [2021] AATA 312

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pearson and Prosegur Australia Pty Ltd (Compensation) and more:

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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] AATA 312
Decision Date: 25 February 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Respondent, Prosegur Australia Pty Ltd, to cease incapacity payments to the Applicant, Mr. Pearson, who was employed as an armoured vehicle operator. The Applicant claimed to have sustained a soft tissue injury to his left neck and shoulder musculature on 30 January 2018, following a workplace incident where a vehicle’s bumper struck his foot, causing him to fall. The Respondent initially accepted the injury but later determined it was no longer liable to pay incapacity payments, asserting the Applicant had returned to his pre-injury hours with only minor duties. The Applicant sought a review of this decision, arguing he was still suffering from the injury and experiencing pain during his return to work.

The Administrative Appeals Tribunal (AAT) was required to determine whether the Applicant had provided sufficient evidence to establish that, as at 26 June 2018 and thereafter, he was suffering from an injury for which the Respondent remained liable to pay incapacity payments under section 19 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Additionally, the Tribunal needed to consider whether the Applicant had demonstrated that, after 31 December 2018, he was suffering from an injury that would make the Respondent liable for the payment of reasonable treatment expenses under section 16 of the SRC Act, and if so, what that reasonable treatment entailed.

The Tribunal found that the Applicant had failed to adduce sufficient probative evidence to satisfy the requirements of the SRC Act. Specifically, the Tribunal noted a lack of evidence demonstrating the Applicant's ongoing incapacity for work as of 26 June 2018 and beyond, or evidence supporting liability for future medical treatment expenses under section 16. The Tribunal also highlighted the absence of evidence detailing what "reasonable treatment" the Applicant had received or sought after 31 December 2018, which would have been necessary for a determination of liability under section 16.

Consequently, the Tribunal affirmed the Respondent's decision dated 16 August 2018, which upheld the determination of 26 June 2018 to cease incapacity payments. The Tribunal also affirmed the decision dated 26 September 2018, which had set aside a previous determination and substituted it with one accepting liability for certain pharmaceutical expenses and GP reviews up to 31 December 2018 (later varied to 1 January 2019).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

“Injury” is defined in section 5A(1) of the SRC Act to mean:a) a disease suffered by an employee; orb) 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; orc) 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

Decision

Reasons for decision

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; andApplication 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.