Scully and BIS Industries Ltd (Compensation) - [2019] AATA 503

Scully and BIS Industries Ltd (Compensation) [2019] AATA 503 (21 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/0028
Re:Grant Scully
APPLICANT

AndBIS Industries Ltd
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:21 March 2019
Place:Brisbane

I affirm the decision under review.
...........................[SGD].........................................
Deputy President Dr P McDermott RFD
Catchwords
COMPENSATION – consideration of a previous decision of the Tribunal where it was decided that the applicant was entitled to compensation – reconsideration of own motion respondent accepted liability to pay compensation for “muscle spasm” – whether the applicant can agitate findings of fact made in a previous Tribunal hearing – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Clement v Comcare [2014] FCA 654
Nozohoor Mehrabad v Department of Immigration and Border Protection (2015) 67 AAR 423
Rana v Military Rehabilitation and Compensation Commission (2011) 55 AAR 300
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
21 March 2019
INTRODUCTION

Mr Grant Scully (“the applicant”) was employed as a driver by BIS Industries Ltd (“the respondent”) and in a workers’ compensation form dated 29 October 2014, submitted a claim for “multi-sectional disc degeneration maximal at L5/S1 severe left + moderate right L5 root entrapment due to foraminal stenosis”[1] as a result of operating heavy vehicles on rough surfaces where jarring, bouncing, jolting occurred constantly over a shift[2] on 21 October 2014.
[1] Exhibit A, T-Documents, p.8.
[2] Exhibit A, T-Documents, p.11.
On 3 December 2014, the respondent denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of “exacerbation of degeneration changes of the lumbar spine”.
On 16 February 2017, Senior Member Sosso (as he then was) set aside the decision of the respondent and determined that the applicant was entitled to compensation under s 14 of the Act. The matter was remitted to the respondent to calculate the amount of compensation.
On 16 March 2017 after a reconsideration of own motion, the respondent accepted liability to pay compensation to the applicant in respect of “muscle spasm” sustained on 21 October 2014 and determined that there was no ongoing liability to pay compensation for medical expenses and incapacity for work pursuant to sections 16 and 19 of the Act as at 21 November 2014.
On 2 January 2018, the applicant lodged an application for review of the respondent’s decision dated 16 March 2017 stating:
“I now live with a conolision thats (sic) been referred to as a simple mussel spazium (sic). And now recieved (sic) about $3,700.? 2.5 years compo should be the period payed! Not this ‘one month’ pay out. This sick joke has had a major empact (sic) on my quality of life. Its (sic) impeding me from gaining in any area of my disrupted life serverly (sic).”
DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
The decision of the Tribunal dated 16 February…

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 503
Decision Date: 21 March 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Administrative Appeals Tribunal (AAT) concerning compensation for an applicant, Scully, against his former employer, BIS Industries Ltd. The dispute centred on whether the applicant could re-agitate findings of fact made in a previous AAT hearing, where it had been determined that the applicant was entitled to compensation for a "muscle spasm" injury sustained during his employment. The respondent had accepted liability for this specific injury.

The primary legal issue before the Tribunal was whether the applicant was entitled to raise new allegations, including bullying, racial discrimination, and various other physical ailments such as abdominal pain, neck pain, nose bleeds, pelvic pain, and depression, which had not been part of the original determination. Furthermore, the Tribunal had to consider whether the applicant could challenge the factual findings made in the prior hearing regarding the cause and extent of his injury.

The Tribunal, referencing section 39 of the *Administrative Appeals Tribunal Act 1975* (Cth) and the principles outlined in *Rana v Military Rehabilitation and Compensation Commission*, determined that while a tribunal may adopt previous findings of fact, there must be a limit to a party's ability to repeatedly revisit such findings. The Tribunal acknowledged that in certain circumstances, such as where a party was previously unrepresented or new evidence is available, re-agitation might be permitted. However, in this instance, the applicant had not provided sufficient medical evidence to substantiate the new claims, nor had he demonstrated grounds to overturn the previous factual findings. The Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In the decision of 16 February 2017, it was not disputed that the applicant suffers from multisegmental disc degeneration and severe left and moderate right foraminal root entrapment. The issue before the Tribunal was whether the applicant suffered an aggravation of this ailment that was contributed, to a significant degree, by his employment: namely the jarring and jolting of his lower back from driving road trains over rough surfaces which trucks contained faulty or inadequate seating. The Tribunal rejected the contention that the applicant suffered jarring and jolting such as to aggravate his pre-existing ailment. However, instead, the Tribunal was prepared to accept that the applicant suffered an “injury” in the form of a sudden and ascertainable physiological change on 21 October 2014 that manifested itself in the onset of immobilising pain in the lower back, muscle spasms and an inability to stand up or walk during the course of his employment with the respondent. EVIDENCEReport of Associate Professor Peter Steadman, consultant orthopaedic surgeon dated 31 August 2018 Professor Steadman considered that the applicant most likely suffered from a short exacerbation of his pre-existing degenerative disease of the spine based upon the history provided and consideration of the Tribunal’s findings. Professor Steadman considered that the medical evidence indicates that the applicant should recover within 20 days following the injury and then after this period, the applicant’s degeneration would dominate as the cause of the ongoing pain. Professor Steadman considered that the applicant’s incapacity is entirely the consequence of his pre-existing condition. Professor Steadman did not consider the applicant requires professional treatment and that the main strategies as treatment would be ‘regular self-managed exercise, weight loss and core strengthening’. Applicant’s submissions At the hearing of this application, the applicant raised a number of issues as a result of his employment with the respondent: these issues are bullying and racial discrimination; abdominal pain; neck pains; nose bleeds; pelvic pain or a twisted pelvis; and depression. The applicant who was unrepresented was given the opportunity to obtain legal advice and in his final submissions dated 11 December 2018 he remarked:“Dear / sir mam, 2014 employment with Bis industries on cloudbreak mining site. For mounts I was dealing with a culture that is and has been identified by the mines and government and treated with a Zero tolerance Racial discrimination and bullying in the workplace until my body gave up from all of what I had been subjected to . Then the physical injury mis prognosis a Twittered pelvic trauma a spasm that toure muscle in my groin and lower back left untreated because BIS Industries Limited where chasing what suits them and there needs not mine! A professor gave a report to the Tribunal with only partial injury sernarial given by Bis industries to the tribunal to suit there needs to win a case ! I have not found any compassion in there actions I have seen them contourt an area of interest to suit there needs witch did a cure in the racial discrimination bullying process. As pointed out by them it’s a pre existing injury before October 21 2014 . 3 - 4 months of being subject to a toxic culture is long enough for a disease to manifest in the body. From October 2014 I have an injury to my pelvic region causing my spine and neck to behave abnormally this will lead to more completions in the future life, left outter hip right inner hip lower lumber my neck neurological problems all because it does not suit there needs. My finds are my life’s journey has changed and it will continue to change from these experiences with Bis industries as they have hert my for a long time to come. Thanks.”Respondent’s submissions

Decision

Reasons for decision

On 2 January 2018, the applicant lodged an application for review of the respondent’s decision dated 16 March 2017 stating:“I now live with a conolision thats (sic) been referred to as a simple mussel spazium (sic). And now recieved (sic) about $3,700.? 2.5 years compo should be the period payed! Not this ‘one month’ pay out. This sick joke has had a major empact (sic) on my quality of life. Its (sic) impeding me from gaining in any area of my disrupted life serverly (sic).” DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL The decision of the Tribunal dated 16 February 2017 set aside the decision under review and instead substituted a decision that the applicant was entitled to compensation pursuant to s 14 of the Act. The matter was remitted to the respondent for calculation of quantum. In the decision of 16 February 2017, it was not disputed that the applicant suffers from multisegmental disc degeneration and severe left and moderate right foraminal root entrapment. The issue before the Tribunal was whether the applicant suffered an aggravation of this ailment that was contributed, to a significant degree, by his employment: namely the jarring and jolting of his lower back from driving road trains over rough surfaces which trucks contained faulty or inadequate seating. The Tribunal rejected the contention that the applicant suffered jarring and jolting such as to aggravate his pre-existing ailment. However, instead, the Tribunal was prepared to accept that the applicant suffered an “injury” in the form of a sudden and ascertainable physiological change on 21 October 2014 that manifested itself in the onset of immobilising pain in the lower back, muscle spasms and an inability to stand up or walk during the course of his employment with the respondent. EVIDENCEReport of Associate Professor Peter Steadman, consultant orthopaedic surgeon dated 31 August 2018 Professor Steadman considered that the applicant most likely suffered from a short exacerbation of his pre-existing degenerative disease of the spine based upon the history provided and consideration of the Tribunal’s findings. Professor Steadman considered that the medical evidence indicates that the applicant should recover within 20 days following the injury and then after this period, the applicant’s degeneration would dominate as the cause of the ongoing pain. Professor Steadman considered that the applicant’s incapacity is entirely the consequence of his pre-existing condition. Professor Steadman did not consider the applicant requires professional treatment and that the main strategies as treatment would be ‘regular self-managed exercise, weight loss and core strengthening’. Applicant’s submissions At the hearing of this application, the applicant raised a number of issues as a result of his employment with the respondent: these issues are bullying and racial discrimination; abdominal pain; neck pains; nose bleeds; pelvic pain or a twisted pelvis; and depression.

Ratio Decidendi

Legal Principle Established

The respondent submits that the Tribunal is confined within its powers as a decision-maker and cannot review the allegations raised by the applicant in the hearing (bullying and racial discrimination, abdominal pain, neck pains, nose bleeds, pelvic pain/twisted pelvis and depression). The respondent submits that the applicant has not provided any medical evidence to substantiate the existence of any of the alleged conditions and thus should affirm the decision under review, that is, the respondent’s re-consideration of own motion dated 16 March 2017. CONSIDERATION The Tribunal is required under s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. In essence this application really concerns whether the applicant can re-agitate findings of fact that were made in an earlier Tribunal hearing. In Rana v Military Rehabilitation and Compensation Commission (2011) 55 AAR 300, Marshall, Tracey and Flick JJ outlined the obligations of the Tribunal under s 39 of the AAT Act in a case where an applicant wishes to re-agitate findings made in an earlier Tribunal hearing. Their Honours remarked (at [26-28]):“The task of the Tribunal under the AAT Act is, albeit very generally expressed, to reach the correct or preferable decision on the merits (s 43) and in doing so to “ensure that every party … is given a reasonable opportunity to present his or her case” (s 39).In discharging those tasks, in an appropriate case, the tribunal may have regard to findings of fact made between the same parties in earlier proceedings before the same or a differently constituted tribunal. Although a tribunal may not be bound to make the same findings of fact, findings previously made – especially after a contested hearing – may appropriately be adopted in subsequent proceedings. Its freedom to do so may well depend upon the facts and circumstances of each individual case. There must be a limit to the ability of a disappointed party repeatedly to revisit findings once made.But the obligation to "ensure that every party … is given a reasonable opportunity to present his or her case", may require that a party be given an opportunity to again re-agitate findings of fact with a view to persuading a subsequent tribunal to reach a finding of fact contrary to one previously made. It may not be possible, and it would be certainly imprudent to attempt exhaustively to identify those circumstances where a party should be extended that opportunity. Subject to that necessary qualification, some of those circumstances may include the following: where a party was previously unrepresented, but is now represented and where there may now be a more thorough and focussed cross-examination on the evidence; and where a party wishes to adduce evidence which was not previously available. The circumstances may also include those where a subsequent Tribunal simply is of the view that it would not make the same findings of fact. Such a tribunal may be of the view that the findings of fact previously made may not be wrong; it may simply be of the view that the "correct or preferable" finding is one different from that previously made.”