Previtera and Decision Maker (Practice and procedure)
[2025] ARTA 1009
•11 April 2025
Previtera and Decision Maker (Practice and procedure) [2025] ARTA 1009 (11 April 2025)
Applicant/s: Belinda Previtera
Respondent: Decision Maker
Tribunal Number: 2024/0293
Tribunal:General Member M. Carey
Place:Melbourne
Date:11 April 2025
Decision:The matter is dismissed pursuant to section 97 of the Administrative Review Tribunal Act 2024 (Cth) on the grounds that the decision made is not a reviewable decision by the Tribunal.
......................[SGD].................................................
General Member M. Carey
Catchwords
DISMISSAL – decision made by Medical Assessment Tribunal Review Panel of Queensland under Workers Compensation and Rehabilitation Act 2003 (Qld) – application for review lodged with AAT and continued by ART – decision not a ‘reviewable decision’ for the purposes of section 12(1) ART Act – dismissal as decision not reviewable by Tribunal
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Workers Compensation and Rehabilitation Act 2003 (Qld)
Judicial Review Act 1991 (Qld).Statement of Reasons
Ms Belinda Previtera is a resident of the State of Queensland who made an application for review of a decision on 9 January 2024 to the Administrative Appeals Tribunal. That proceeding was designated by Tribunal Number 2024/0293.
Since that time, nothing has been done in respect of the application, there being a difficulty in identifying a respondent party, for reasons which will become clearer later in this decision.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
When she lodged her application for review, Ms Previtera stated that she was seeking to have a decision dated 16 September 2021 reviewed by the Tribunal. In answer to a question on the application form was to what was wrong with the decision, she stated:
The Orthopaedic Assessment Tribunal assessed my (Belinda Previtera) Wesfarmers/Bunnings work cover claim in 2021 followed by the MAT Review Board "review of new medical evidence". On both occasions chaired by Dr J North. The MAT reckless decision to totally overlook the obvious Bursitis evidence (the MAT review due to "fresh evidence" we produced in the form of a much clearer MIR scan and report of both shoulders. The new scans were of far better quality than that used by all the previous Decision makers. My medical assessment at the MAT was in person in Brisbane city 17 June 2021 and second MAT medical assessment via email document correspondence 16 September 2021. Reasons for Decision prepared by the Workers' Compensation Regulator was as follows – with respect to the left shoulder Bursitis - conditions prepared with separate correspondence in relation to those Decisions. The Orthopaedic Assessment Tribunal ordered two separate Decisions in relation to my left shoulder injury - one being for the left shoulder calcific tendinitis and the other for left shoulder bursitis. The Orthopaedic Assessment Tribunal set out these orders for assessment of Left shoulder bursitis. The matter is referred to the tribunal in accordance with the Workers' Compensation and Rehabilitation Act 2003.
Attached to the application was a copy of the decision made by the Medical Assessment Tribunal Review Panel which had been convened on 16 September 2021.
Background
In late 2019 Ms Previtera had sustained an injury over a period of time affecting her left shoulder while working as a warehouse team leader for Bunnings Group Limited over the previous six years.
From various materials lodged with the ART since January 2024, it is apparent that Ms Previtera is dissatisfied with the way she has been treated and complains that she has not been provided with an adequate hearing of her complaints. From a particular email from her husband, Dale Previtera, the following matters were alleged:
(a)Belinda commenced employment with Wesfarmers at Morayfield in the State of Queensland in 2014 as a permanent, part-time, employee working between 25 and 30 hours per week in a section where ‘trucks come in at the back and a group of workers break down pallets continuously all shift and place all sorts of inbound stock onto gages for transport to the sales floor’, involving her in ‘2-3 years (very heavy, repetitive lifting)’.
(b)In 2017 she was moved to a position on the sales floor at the same workplace in the ‘Landscape’ section.
(c)She alleges that she suffered a violent assault from a disgruntled Bunnings customer in March 2018.
(d)She further alleged that she was ‘often be in a position whereby floor staff were stretched thin during the day (busy period) would result in often [her] running 3 Department's due to either /staff /no shows/poor rostering or combination of both’. The email from Mr Previtera stated that on ‘[t]he day of the assault which resulted in a punch in the face to Belinda’ the employer’s response was ‘a Bunnings team leader hushing the incident and giving the perpetrator a BOX of plants and ushered her away!!! One of Belinda's "regulars" witnessed the assault and reported it to Caboolture police. (police report taken/no follow up by the store.’
(e)After those events, ‘Rostering and pay issues continued through 2018-2019 in Landscape/ Leisure and Plant Care and much of the heavier lifting (e.g., Searles 65ltrs potting mix regularly etc, etc) was starting to effect on Belinda's left shoulder in late 2019.’ She ‘eventually opted [in] early 2019 to only work weekends still in Landscape to avoid a lot of the ongoing store politics.’
(f)As to the onset of symptoms in the right shoulder, ‘Significant pain started appearing in late November - December 2019 resulting in a GP visit 5/12/2019 D[r] Sawhney in relation to pain in the left shoulder and all the work pressure of recent interactions and stressful events at work.’
The employer, Wesfarmers Limited, rejected the liability for that claimed injury. On 7 December 2020, Turner Freeman Lawyers, sought a review of that decision on Ms Previtera’s behalf.
The issue of injury was referred to the Medical Assessment Tribunal convened under the Workers Compensation and Rehabilitation Act 2003 (WCRA) (Qld) from which an Orthopaedic Assessment Tribunal was convened on 17 June 2021. An assessment was made, and the Medical Assessment Tribunal Review Panel made its 16 September 2021 decision.
While that is the history of the decision that is the subject of review, Mr Previtera related that the applicant, Belinda Previtera, had complained of the way the Medical Assessment Tribunal dealt with the assessment. Mr Previtera states that the Tribunal’s response was extremely short and did not come to grips with the evidence available concerning shoulder bursitis. A complaint had been made to the Office of Fair Trading in relation to this matter. In fact, following advice of a certain political office, a complaint was made to the Crime and Corruption Commissioner.
Further, there were claims made upon a total and permanent disability policy associated with Ms Previtera’s superannuation account that was delayed and led to the replacement of representation by a different solicitors’ firm. Ms Previtera is now, at the age of 50 years, in receipt of a Disability Support Pension.
Jurisdiction to review
Section 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides:
12 Reviewable decisions
(1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.
Decisions by the Queensland Medical Assessment Tribunal Review Panel are regarded as final and cannot be questioned in a proceeding before a court or tribunal except under section 512 of the WCRA. Limited rights of review are conferred by section 512 of the WCRA of a decision by the Queensland Medical Assessment Tribunal Review Panel in the circumstances of the provision of fresh evidence. There is a judicial review right (not on the merits of the case but on whether lawful decision processes occurred) pursuant to the Judicial Review Act 1991 (Qld). Such right of review is exercised in the Supreme Court of Queensland.
Mr Dale Pervitera, in today’s hearing, acknowledged that he and his wife were aware of their rights to seek review before the Supreme Court of Queensland but could not afford the costs of legal representation that a judicial review application would entail.
It was apparent that the appeal to the AAT, now the ART, was an attempt to enlist support from Commonwealth bodies to achieve compensation where the authorised appeal mechanisms in Queensland had not resulted in any better outcome.
At the hearing of this matter, Mr Previtera also expressed concern about the nature of self-insurance in compensation systems and the potential for bias to play a role in decision-making where he submitted that financial self-interest in denying compensation claims was a likely factor.
Outcome
There is no provision in any legislation for review of any decision made for the purposes of the Queensland Workers Compensation and Rehabilitation Act2003 by any Commonwealth tribunal, whether to the former Administrative Appeals Tribunal or to the current Administrative Review Tribunal.
This Tribunal does review workers compensation decisions but only those made pursuant to Commonwealth acts such as the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) or the Seafarers Rehabilitation and Compensation Act 1992. The SRC Act does make provision for certain corporations to be admitted as self-insuring ‘licensee’ and thereby making provision for workers compensation under that Act. Wesfarmers, Ms Previtera’s employer is not a licensee for the purposes of the SRC Act. It is, however, a self-insuring licensee under the Queensland WCRA.
Accordingly, the decision of 16 September 2021 by the Medical Assessment Tribunal Review Panel of Queensland is not a ‘reviewable decision’ for the purposes of the Commonwealth ART Act and the proceedings in ART Matter number 2024/0293 shall be dismissed pursuant to section 97 of the ART Act as a decision that is not reviewable.
Date(s) of hearing: 1 April 2025 Advocate for the Applicant: Mr Dale Previtera
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