Scully and BIS Industries Ltd (Compensation)
[2019] AATA 503
•21 March 2019
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.
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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 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.
EVIDENCE
Report 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
The respondent pointed out that the applicant’s previous application with the Tribunal concerned whether or not the truck seats had faulty mechanisms which likely contributed to the applicant’s alleged back conditions and highlighted that the Tribunal rejected this claim but was instead prepared to find that the applicant had suffered an “injury” during the course of his employment. The Tribunal relied upon the evidence that the applicant had experienced lower back symptoms when he sought to stand up initially at breakfast and a short time later during a meeting with management on the morning of 21 October 2014.
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.”
The circumstances of this application are certainly not within any of the considerations that were enunciated by their Honours in Rana v Military Rehabilitation and Compensation Commission (2011) 55 AAR 300. The applicant was not previously unrepresented before the Tribunal. The reasons of the Tribunal (at [160]) record not only that the applicant was represented but the counsel who appeared on behalf of the applicant “was only engaged at short notice prior to the hearing, but nevertheless was able to master her brief and assisted the Tribunal in the discharge of its duties”. When the applicant previously appeared before the Tribunal, there is no evidence that there was any denial of natural justice that occurred; nor was there any denial of the reasonable opportunity referred to in s 39 of the AAT Act.
While their Honours in Rana v Military Rehabilitation and Compensation Commission (2011) 55 AAR 300 had not exhaustively set out the circumstances where an applicant may re-agitate findings of fact that were made in a previous Tribunal hearing, there are no circumstances before me which I consider warrant my making a finding of fact which is inconsistent with the findings in the previous Tribunal decision.
In Clement v Comcare [2014] FCA 654, Flick J particularly at [26]-[27], concluded that a Tribunal did not err in circumstances where it informed itself by reference to an earlier decision between the same parties and where no new evidence was sought to be adduced in the subsequent Tribunal decision. The applicant has made a number of assertions before the Tribunal but has not placed any new medical evidence before the Tribunal which challenges or contradicts the evidence of Professor Steadman upon which I rely. The applicant has also not placed any evidence before the Tribunal of any relevant medical expenses that he has incurred. The Tribunal in the previous decision had comprehensively examined the claims of the applicant who then had legal representation and I respectfully adopt the previous finding that the applicant did not suffer an injury, namely the aggravation of a disease because of the jarring and jolting of truck seats whilst he was driving road trains.
I do not accept the submissions of the respondent that the Tribunal is confined within its powers as a decision maker. I respectfully agree with Senior Member Popple in Nozohoor Mehrabad v Department of Immigration and Border Protection (2015) 67 AAR 423 at [14] who explained that the Tribunal was not “bound to make findings of fact consistent with findings previously made by the Tribunal”. However, this is not such an instance where I am able to make findings which are not consistent with findings of fact previously made by the Tribunal
DECISION
I affirm the decision under review.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 21 March 2019
Dates of hearing: 16 November 2018 Date final submissions received: 4 February 2019 The Applicant: In person Solicitors for the Respondent: HBA Legal
Counsel for the Respondent: Mr Charles Clark
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