SHERMAN YOUNG and TNT AUSTRALIA PTY LTD
[2013] AATA 72
[2013] AATA 72
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3032
Re
SHERMAN YOUNG
APPLICANT
And
TNT AUSTRALIA PTY LTD
RESPONDENT
DECISION
Tribunal Mr P Wulf, Member
Date 15 February 2013 Place Brisbane The Tribunal affirms the decision under review.
[Sgd]
Mr P Wulf, Member
CATCHWORDS
WORKERS’ COMPENSATION – claim for compensation in respect of injury to left ear – respondent’s determination and reviewable decision made on basis that injury was non-employment related – Tribunal’s jurisdiction – True scope of applicant’s claim – No medical evidence to support claim – Decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 6
CASES
Re Durham and TNT Australia Pty Ltd [2011] AATA 802
REASONS FOR DECISION
Mr P Wulf, Member
15 February 2013
The applicant, Sherman Young[1] seeks review of the respondent’s decision to reject his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
[1] Exhibit 1, T-Document 1/1-2.
The applicant lodged a claim on 22 March 2012[2] for workers’ compensation in relation to what he suggested was an injury to his left ear as a result of the use of a mobile phone for work purposes. On 24 April 2012, Allianz Australia, on behalf of the respondent, rejected the claim[3] on the basis that the alleged injury did not happen in the course of his employment. On 29 May 2012, the decision was affirmed particularly given the medical report of Dr Wagner dated 22 March 2012.[4]
[2] Exhibit 1, T-Document 4/7-13.
[3] Exhibit 1, T-Document 8/20.
[4] Exhibit 1, T-Document 11/27.
Consistent with the decision of Re Durham and TNT Australia Pty Ltd,[5] the Tribunal has jurisdiction to hear the application for review.
[5] Re Durham and TNT Australia Pty Ltd [2011] AATA 802.
For the reasons that follow, and as determined by the oral decision handed down at the hearing, the Tribunal finds that there is no evidence to suggest the applicant has suffered any injury when in the workplace. Therefore the decision was affirmed. Written reasons for the oral decision were requested at the hearing and these are provided below.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal to determine are whether:
(a)The applicant suffered an injury, that being his left ear aches, pursuant to s 5A of the Act; and, if so
(b)The alleged injury was contributed to by the employee’s employment with the respondent pursuant to s 6 of the Act; and, if so
(c)The applicant is entitled to compensation pursuant to s 14 of the Act.
LEGISLATION
The Act provides for a scheme whereby employees may claim compensation for certain injuries, loss or damage arising in relation to their employment. In general, liability for payment of such compensation falls to Comcare as the “relevant authority” (s 4(1)). This liability is detailed in Part II and, by s 11, is defined as the liability to pay such amounts as are determined by the relevant authority to be payable under the Act. As such, Comcare is also generally responsible for determining whether compensation is payable when an employee makes a claim.
Part VIII of the Act enables the Safety, Rehabilitation and Compensation Commission to grant licences to certain corporations authorising them to accept liability to pay compensation under the Act in respect of injuries, loss or damage suffered by their employees (ss 108 and 108A). If a licence is granted to a corporation, the corporation becomes the “relevant authority” in respect of its employees and takes on Comcare’s role of determining and managing claims, and of paying compensation to eligible employees (ss 4(10) and (10A), 98A).
Claims for compensation under the Act are governed by the provisions of Part V. Section 53(1)(a) of that Part provides that the Act does not apply to an injury in relation to an employee unless written notice of the injury is given to the relevant authority as soon as practicable.
An “injury” is defined in s 5A(1) as:
(a)a disease suffered by an employee; or
(b)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; or
(c)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;
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.
For the purposes of s 5A(1), s 5A(2) states that without limiting that subsection, “reasonable administrative action” is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
A “disease” is defined in s 5B(1) as:
(a)an ailment suffered by an employee;
(b)or an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
Section 5B(2) indicated that in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
Section 6 relates to an injury arising out of, or in the course of, employment and provides a broad definition of a workplace, although for the purpose of this matter, the use of the phone occurred within the workplace.
Section 14 relates to compensation for an injury and states that Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment unless the injury was intentionally self‑inflicted, or, if an injury was caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
THE EVIDENCE
The evidence before the Tribunal comprised:
(a)Exhibit 1: the “T Documents” (T1-21: pp 1-46) lodged by the TNT Australia Pty Ltd in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
(b)Exhibit 2: medical report prepared by Dr Paul Canty dated 24 September 2012;
(c)Exhibit 3: statutory declaration of Mr Allan James Davie dated 18 December 2012; and
(d)Exhibit 4: respondent’s Statement of Facts, Issues and Contentions dated 20 November 2012.
ANALYSIS
Does the applicant have an injury?
The applicant’s case appeared to rely on a presumption that the use of a mobile phone during the course of his employment has caused him an injury for which the respondent should be liable for. The injury he suggests that has occurred is to his left ear through the use of a mobile phone.
The question as to whether compensation should be paid is based on a three part test, the first being whether the applicant suffered from an injury, that being his left ear aches, pursuant to s 5A of the Act.
In this matter, the medical evidence is fairly conclusive, this being that there is no evidence of an injury to the applicant’s left ear, and moreover, not one that was contributed to by a significant degree by his employment with the respondent. Dr Wagner, in her report dated 10 April 2012,[6] indicated that it was unlikely that the condition with the applicant’s left ear was “caused by mobile phone use and is not work related.” Instead, Dr Wagner indicated that the pain allegedly resulting from the use of a mobile phone was likely related to recent dental work undertaken on the same side within three weeks of the pain becoming apparent. This diagnosis was further enhanced by Dr Canty’s report dated 24 September 2012[7] for the applicant, who found that there “was nothing much to find” and that “I do not believe the mobile phone has anything to do with the symptoms he presents with”.
[6] Exhibit 1, T-Document 20/45.
[7] Exhibit 2.
The opinions of the two medical doctors suggest that the applicant cannot pass the first limb of the three part test highlighted above, in that there is no basis for the suggestion that there is an injury consistent with s 5A of the Act.
On this basis, there is no need for the Tribunal to assess whether there was an injury contributed to by the employee’s employment pursuant to s 6 of the Act, nor that the applicant is entitled to compensation pursuant to s 14 of the Act. The decisions of both the 24 April 2012[8] and 29 May 2012[9] were correctly based on the medical evidence available at the time and the subsequent medical report of Dr Canty.
[8] Exhibit 1, T-Document 8/20.
[9] Exhibit 1, T-Document 11/27.
DECISION
For the reasons set out above, Tribunal finds that the applicant does not have an injury for the purposes of s 5A and therefore does not have an injury that was caused in his employment with the respondent. Therefore the decision is affirmed.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member. ........................[Sgd].............................................
Associate
Dated 15 February 2013
Date of hearing 20 December 2012 Applicant In person Counsel for the Respondent Mr Charlie Clark Solicitors for the Respondent Moray & Agnew
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