Pearson and Prosegur Australia Pty Ltd (Compensation) - [2019] AATA 823

Pearson and Prosegur Australia Pty Ltd (Compensation) [2019] AATA 823 (8 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5831
2018/5832

Re:Richard Pearson
APPLICANT

AndProsegur Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:8 May 2019
Place:Perth

The Respondent’s applications to dismiss applications 2018/5831 and 2018/5832 on the basis that the Tribunal does not have jurisdiction are dismissed.
.......[sgd].................................................................
Deputy President Boyle
CATCHWORDS
WORKERS’ COMPENSATION – soft tissue injury – claim made – decision under s 62 Safety, Rehabilitation and Compensation Act 1988 (Cth) – application to dismiss on the basis that the Tribunal does not have jurisdiction – jurisdiction found
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 16, 19, 60(1), 62(1), 62(4)-(5), 64
CASES
Re Lock and Comcare (Compensation) [2018] AATA 2386
REASONS FOR DECISION
Deputy President Boyle
8 May 2019
THE APPLICATIONS

An application is made by the Respondent in each of the proceedings for the dismissal of the Applicant’s claims on the basis that the Tribunal does not have jurisdiction to review the decisions.
THE HEARING
The applications for dismissal were heard on 12 April 2019. The Applicant was represented by Mr Adam Stewart and the Respondent was represented by Ms Ann McMahon.
The material before the Tribunal at the time of the hearing was:
·Applicant’s submissions in reply dated 22 March 2019 (A1);
·Submissions on jurisdiction dated 24 January 2019 (A2);
·Documents to be relied on at hearing dated 25 March 2019 (A3); and
·Respondent’s submissions on jurisdiction dated 6 February 2019 with Annexures A, B and C (R1).
The Tribunal also had before it the Tribunal documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T1-T106).
Application 2018/5831 – incapacity
In these proceedings the Applicant seeks the review of the reviewable decision of
16 August 2018 (T93) (the reviewable decision) which affirmed the determination of
26 June 2018 (T58) (the determination) that the Respondent was not presently liable to pay compensation in the form of incapacity benefits in respect of “soft tissue injury affecting the neck shoulder musculature on the left” sustained 30 January 2018 pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
The background set out in the following paragraphs is taken from the reasons for decision (T93/276-282) which accompanied the reviewable decision (T93/274-275).
The Applicant was employed by the Respondent as an armoured vehicle operator in Perth, Western Australia, 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. Whilst supporting the bumper and walking the truck to a safe location as it was being driven by a co-worker, the front wheel of the…

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.

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Details

Case: [2019] AATA 823
Decision Date: 8 May 2019

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Mr Pearson, for review of a decision by Prosegur Australia Pty Ltd (the Respondent) affirming a determination that the Respondent was not presently liable to pay compensation for incapacity benefits. The Applicant claimed to have sustained a soft tissue injury to his neck and shoulder musculature on 30 January 2018, and had lodged a claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The Respondent had initially accepted liability for a soft tissue injury to the left arm, but subsequently issued a determination and a reviewable decision stating no present liability for incapacity benefits.

The central legal issue before the Tribunal was whether it possessed jurisdiction to review the Respondent's decision. This question hinged on whether the Respondent's decision constituted a "reviewable decision" as defined by the SRC Act, specifically a decision made under section 62 of the Act. The Respondent argued, relying on previous Tribunal decisions, that jurisdiction to review decisions concerning medical expenses (section 16) or incapacity payments (section 19) was contingent on the existence of specific claims made under those sections to which the decision responded.

The Tribunal clarified that its jurisdiction to review decisions arises under section 64 of the SRC Act, which pertains to "reviewable decisions" defined in section 60(1) as decisions made under subsection 38(4) or section 62. The Tribunal's task in prior cases, such as *Re Lock and Comcare*, was to ascertain whether the decision under review was indeed made under section 62. This involved determining if the decision was a reconsideration of a determination on the insurer's own motion under section 62(1), or a decision under section 62(4)-(5) following the rejection of a claim and a request for reconsideration under section 62(2)-(3). In the present case, the Tribunal found that the Respondent's decision, which broadly stated no present liability, did not clearly identify itself as a decision made under section 62, nor was it evident that it was a reconsideration of a specific original determination or a response to a rejected claim and subsequent request for reconsideration.

The Tribunal found that it had jurisdiction to review the decision. The Applicant sought review of the reviewable decision of 16 August 2018, which affirmed the determination of 26 June 2018 that the Respondent was not presently liable to pay compensation for incapacity benefits. The Tribunal's reasoning indicated that the Respondent's decision was a "reviewable decision" under the SRC Act, thus falling within its jurisdiction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In these proceedings the Applicant seeks the review of the reviewable decision of 16 August 2018 (T93) (the reviewable decision) which affirmed the determination of 26 June 2018 (T58) (the determination) that the Respondent was not presently liable to pay compensation in the form of incapacity benefits in respect of “soft tissue injury affecting the neck shoulder musculature on the left” sustained 30 January 2018 pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The background set out in the following paragraphs is taken from the reasons for decision (T93/276-282) which accompanied the reviewable decision (T93/274-275). The Applicant was employed by the Respondent as an armoured vehicle operator in Perth, Western Australia, 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. Whilst supporting the bumper and walking 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, and referred him to Dr Peter Silbert, consultant neurologist, to undergo nerve conduction studies. 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. On 12 February 2018 the Respondent accepted liability to pay compensation under the SRC Act for “soft tissue injury to the left arm” occurring on 30 January 2018. Dr Silbert provided an EMG report on 6 February 2018 and an MRI scan was also undertaken on 12 February 2018. On 17 February 2018 Dr Vanderveen provided the Respondent with a report. Dr Vanderveen diagnosed the Applicant as suffering from “soft tissues injuries shoulder and neck”. Dr Vanderveen did not think the Applicant had sustained a neural injury, although considered that a “stinger” type injury (a “nerve pinch” injury suffered predominantly by athletes in high-contact sports) had possibly occurred. He noted that the symptoms the Applicant had originally complained of in his left hand had resolved. Dr Vanderveen prescribed Panadol, Voltaren and Mersyndol, the use of heat pack, physiotherapy and exercise based treatment. Dr Vanderveen thought the Applicant was fit for suitable duties that did not include repetitive lifting actions and above shoulder height work. He expected the Applicant to be fit to resume pre-injury duties six weeks post injury.

Ratio Decidendi

Legal Principle Established

The case law relied on by the Respondent is set out in its Submissions as follows:16.On 23 July 2018, Deputy President Boyle of the Administrative Appeals Tribunal (the Tribunal) published his reasons for decision in Re Lock and Comcare (Compensation) [2018] AATA 2386 (Lock). The Deputy President decided that, in respect of one of Ms Lock’s applications, the Tribunal did not have jurisdiction to review a decision. The effect of the reasoning for that decision was, in short, that the Tribunal does not have jurisdiction to review a decision pursuant to section 16 (medical expenses) or section 19 (incapacity payments) unless there is a specific claim made under one of those sections to which the decision responds: Lock at [71]-[87].17.In his reasons for decision in Re Weston and Cleanaway Operations [2018] AATA 3740 (Weston), Deputy President Boyle applied the same reasoning as he did in Lock, but a different outcome was reached. The Deputy President decided that the Tribunal had jurisdiction to consider the relevant reviewable decision on the basis that, whilst the relevant determination was expressed in broad terms of there being no present liability under sections 16 and 19 of the SRC Act, the Tribunal was, in the particular circumstances of that case, able to identify specific claims to which the decision responded.18.In the subsequent decision of Re Hickey and Australian Postal Corporation [2018] AATA 3930 (Hickey), Member Gallagher applied the same reasoning as in Lock and decided that the Tribunal did not have jurisdiction to consider one of Mr Hickey’s applications which involved a no present liability determination pursuant to sections 16 and 19 of the SRC Act. In that matter, unlike Weston, the Tribunal was unable to identify any specific claims in respect of medical treatment or incapacity to which the decision responded.Consideration The Respondent’s analysis of the decision in Lock and Comcare [2018] AATA 2386 (Lock) is, with respect, concentrating on the wrong point. As is set out in [79] of the decision in Lock, the Tribunal’s jurisdiction to review decisions arises under s 64 of the SRC Act. The jurisdiction is to review “reviewable decisions” which are defined in s 60(1) of the SRC Act to mean “a decision made under subsection 38(4) or section 62”. In the decision in Lock the exercise that I was undertaking was trying to determine whether there had been a decision under s 62 of the SRC Act, in particular, whether the “decision” that was the subject of that application was one under s 62 of the SRC Act. Because of practices adopted by some insurer respondents, it is not always clear whether what is being issued by them is a determination, as that term is used in the SRC Act, or a decision, as that term is used in the SRC Act and, more particularly, whether it is a decision made under s 62 of the SRC Act. In the case of Lock the exercise that I was undertaking in seeing whether a relevant claim had been made by the Applicant was, primarily, part of determining whether the “decision” that was the subject of the application for review was a decision under s 62 of the SRC Act. In Lock I was not satisfied that the decision the subject of the application for review was a decision under s 62 of the SRC Act because it was not clear that it was a reconsideration of a determination on its own motion under s 62(1) of the SRC Act because a relevant original determination of which the “decision” could be a reconsideration could not be identified (at [77]), nor was I satisfied that it was a decision under s 62(4)-(5) resulting from a relevant claim being rejected and a request for reconsideration being made under s 62(2)-(3) of the SRC Act (at [78]). In the case of Lock the “decision” was a general statement of there being no liability and did not identify itself as being made under s 62 of the SRC Act.