Stephen Catoni and John Holland Group Pty Ltd
[2013] AATA 509
[2013] AATA 509
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4867
Re
Stephen Catoni
APPLICANT
And
John Holland Group Pty Ltd
RESPONDENT
DECISION
Tribunal The Hon Robert Nicholson, Deputy President
Date 18 July 2013 Place Perth Decision Summary
The decision under review is affirmed.
..(Sgd) R Nicholson.............................
The Hon Robert Nicholson, Deputy President
CATCHWORDS
COMPENSATION – workers’ compensation – claim for injury to back - acceptance of knee injury – acceptance of back injury for stated periods – subsequent further diagnosis of back injury – absence of certificates of a legally qualified medical practitioner for periods covered by new diagnosis– whether claim deemed not to have been made
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 54
CASES
Lees v Comcare (1999) 56 ALD 84
Re Sequeira and Comcare [2005] AATA 1284
Re Cao v Australian Postal Commission [1999] AATA 995
REASONS FOR DECISION
The Hon Robert Nicholson, Deputy President
18 July 2013
The applicant, a 56 year old male, commenced employment with the respondent on 1 October 1996. He was engaged pursuant to the John Holland Pty Ltd and RTBU Rail Maintenance Agreement 2009-2012. At the relevant time, he was engaged in work as a Rail Lubricator. This involved him driving and operating a vehicle on rail.
The applicant made a claim for workers’ compensation statutory benefits under the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) in respect of a lower back injury. The following history of his claims is taken from the written submissions of the respondent:
…
a.On 28 February 2011 the applicant lodged a Claim for Workers’ Compensation in relation to his ‘lower back injury’. In relation to when the applicant first became aware of his condition the applicant stated that ‘it was ongoing over the approx. 3 years of using the spring seat – it has been gradually getting worse’ but he included the date of injury as 21 February 2011.
b.By determination dated 20 July 11 it was held that the respondent was not liable to pay the applicant compensation under s 14 of the SRC Act.
c.By reviewable decision dated 30 August 2011, the determination dated 20 July 2011 was affirmed. An application for review was lodged with the Tribunal.
d. On 21 September 2011 the applicant lodged a claim for compensation for a ‘dislocated patella’ said to have been sustained on 21 September 2011.
e.On 1 February 2012 the respondent accepted liability under the SRC Act for a ‘dislocated patella’ (the knee injury). The applicant made no claims for compensation for incapacity under s 19 of the SRC Act in respect of the knee injury.
f. On 28 May 2012 the Tribunal issued a decision pursuant to s 42(c) of the [Administrative Appeals Tribunal Act (1975)] AAT Act that pursuant to s 14 of the SRC Act the applicant sustained a ‘temporary aggravation of disc protrusions at L3/4 and L4/5 and nerve root irritation of the right L4 and L5 nerve roots’ with a date of injury of 21 February 2011 (the back injury).
g.On 3 July 2012 the respondent issued a determination for the back injury under s 19 which covered the period 28 February 2011 to 28 April 2011. The determination noted ‘in a medical certificate dated 28 April 2011 Dr Burford certified the Applicant as fit for pre-injury duties from that day’.
h.On 11 July 2012 the Respondent issued a s 19 determination which covered the period 3 to 8 July 2012. Subsequent determinations have been made on a weekly or fortnightly basis in respect of compensation for incapacity from 8 July 2012 to date.
i. In a letter dated 20 August 2012 the Applicant requested that the Respondent determine liability for incapacity for the back injury for the period 29 April 2011 to 2 July 2012. The letter relied upon a report from Dr Cordova dated 6 October 2011.
j.A letter from the Respondent to the Applicant dated 24 August 2012 was taken to be a determination refusing liability under s 19 of the SRC Act for the period 29 April 2011 to 2 July 2012.
k.On 17 October 2012 the Respondent affirmed the determination dated 24 August 2012.
The chronology of events with respect to the duties performed by the applicant, the medical certificates issued and the medical reports obtained was set out in the submissions of the respondent and are as follows:
• 21/2/2011 – Claimed date of injury for back injury
• 25/2/2011 – Stratos suspension seat and Stratos seat base fitted into Isuzu Ute.
•20/1/-2011 – Medical certificate Dr Hartley – ‘low back injury’ on restricted duties from 28/2 – 21/3
•28/2/2011 - 8/3/2011 – Applicant on combination of sick leave and annual leave.
•21/3/2011 – Medical certificate Dr Hartley – fit for restricted duties from 21/3 – 7/4 – ‘no change to duties’
•21/3/2011 - Respondent provided suitable duties – ‘office based/flagging duties’ – 9 hours per day.
•7/4/2011 – Respondent provided suitable duties – office based/flagging duties’ – 9 hours per day.
•28/4/2011 – Medical Certificate Dr Burford – Fit to return to pre-injury duties – ‘improved a lot still have a little sciatica but not aggravated by work happy to return to full time work’
•30/5/2011 – Medical Certificate Dr Kareem – Fit for pre-injury duties – ‘constant discomfort at lower back with occasional exacerbations’.
•May 2011 – applicant returned to Hi-rail lubricating duties.
•23/6/2011 – Medical Report Dr Sneddon – no work related injury.
•12/9/2011 – Claimed date of injury for left knee injury – Applicant transferred to work as Welder’s Assistant.
•21/9/2011 – Medical Certificate Dr Kareem – dislocated left kneecap – restricted duties 21/9 – 12/10.
•6/10/2011 – Medical Report Dr Cordova – ‘the springy nature of the seat, the continual bumpy rides, the catapulting and the jarring has led to the development of hypersensitivity in his pre-existing radiculopathy’.
•12/10/2011 – Medical Certificate Dr Kareem – restricted duties 12/10 – 2/11.
•14/11/2011 – Medical Certificate Dr Kareem – ‘knee’ – restricted duties 14/11 – 14/12.
•19/12/2011 – Medical Certificate Dr Cleary – restricted duties 19/12 – 17/1 –‘note: back problem currently being reported may act as barrier to closure of this?? Current status of this problem and impact on expected work options will be reviewed by Kareem’
•12/01/2011 – Medical Certificate Dr? – restricted duties.
•9/2/2012 – Medical Certificate Dr Siddiqui – Knee – restricted duties 9/2 – 9/3/12.
•8/3/12 – Medical Certificate Dr Benstead – fit for pre-injury duties – ‘unable to return to previous duties due to back injury.’
•16/4/2012 – Medical Certificate Dr Rehman – knee – fit for pre-injury duties.
•16/5/2012 – Medical Certificate Dr Prasad – fit for pre-injury duties – ‘I understand he has ongoing issues in relation to back injury. However, in terms of L knee, there are no more medical issues or further treatment required. Fit to return to pre-injury duties.’
•30/5/2012 – Medical Certificate Dr Lowe – fit restricted duties – 30 minutes maximum driving, passenger in vehicle unlimited.
•3 July 2012 – Medical Certificate Dr Cordova – fit restricted duties from 3 July 2012 – ‘Degenerative spinal condition with intermittent radiculopathy. Has settled but has potential to be aggravated with excessive or improper postural work demands’.
The decision under review was made on 17 October 2012 by a Legal Counsel, Workers’ Compensation, of the respondent. The decision on review was that the determination, dated 24 August 2012, should be varied in that the applicant was not entitled to incapacity compensation under s19 of the SRC Act during the period from 29 April 2011 to 2 July 2012 in respect of the injury. The ‘injury’ was that referred to in the claim, made on 28 February 2011, for compensation in respect of ‘temporary aggravation of disc protrusions at L3/4 and L4/5 and nerve root irritation of the right L4 and L5 nerve roots’ sustained on 21 February 2011. The reasons find that following the termination of the applicant’s employment on 2 July 2012, medical certificates had been provided for the period from 3 to 22 July 2012 and 23 July 2012 to 2 September 2012 and determinations made in accordance with those certificates. On 20 August 2012, the applicant through his legal representatives had made a claim for incapacity benefits during the period from 29 April 2011 to 2 July 2012 based on the report by Dr Cordova, dated 6 October 2011, which had stated that the applicant had not had the capacity to work in his full pre-accident role since the date of injury and that he would not have capacity in the future. The Legal Counsel was of the view that s 54 of the SRC Act did apply to this application. She stated:
…it is not simply a matter of compensation being payable following an acceptance of liability under section 14 of the SRC Act. Section 19 of the SRC Act requires consideration of the additional issue of whether your compensable injury results in an incapacity for work and if so, the extent of that incapacity and whether any benefits are payable.
She further stated that the requirement of providing a valid medical certificate had been confirmed in Re Sequeira. While accepting that substantial compliance with s54 was acceptable under s 54(5), the applicant had not provided any medical certificates covering the claimed period despite being offered opportunities to do so. The Counsel was not satisfied that Dr Cordova’s report satisfied the requirements of s54. Even if there was a valid claim, the Counsel was not persuaded that the applicant had been incapacitated for work under s19 during the claimed period. Both Dr Burford and Dr Kadeem had certified him as fit for pre-injury duties from 29 April and 30 May 2011 and it appeared that he had resumed working normal hours until he ceased employment with the respondent. The result was a finding that the applicant was not entitled to incapacity benefits under s19 during the period from 29 April 2011 and 2 July 2012.
At the commencement of the present hearing the applicant conceded that he made no claim with respect to the period from 29 April 2011 to 17 September 2011. The applicant’s claim was now to be determined with respect to the period from 18 September 2011 to 2 July 2012.
At the hearing before the Tribunal the applicant was called to give evidence along with Dr Frank Cordova, who gave evidence by telephone. The respondent did not call any witness to give evidence. The s 37 documents were admitted into evidence by agreement.
The issues raised by the application were seen in a different light by the parties. The applicant considered the only issue in dispute was whether or not, pursuant to s 19 of the SRC Act, the respondent is liable to pay the applicant’s incapacity benefits for the period 18 September 2011 to 2 July 2012. The respondent accepts that is an issue. It also contends that the applicant’s claim is precluded by the terms of s 54 of the SRC Act. Further that the applicant’s conduct has made it appropriate to make no order of costs in the applicant’s favour having in mind the terms of s 67(11) of the SRC Act.
Whether the claim for compensation is precluded by the SRC Act
Section 54 of the SRC Act reads:
54.(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2)A claim shall be made by giving the relevant authority:
(a)a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b)except where the claim is for compensation under section 16 or 17 – a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.
(4) Where a claim is given to Comcare, Comcare shall cause a copy of the claim to be given to:
(a)where the employee concerned is or was a member of the Defence Force at the time when the relevant injury or accident occurred – the Secretary of the Defence Department; or
(b)in any other case – the principal officer of the Entity, Commonwealth authority or licensed corporation in which the employee was employed at that time.
(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
The respondent relies principally upon Re Sequeira and Comcare [2005] AATA 1284. There the Tribunal (Senior Member Bell) considered the question whether the absence of medical certificates in relation to the claimed incapacity was an absolute bar to the success of the claim taking into account the provisions of s 54(2), (3) and (5). The applicant Sequeira had suffered a back injury in the course of his employment with Centrelink in 1991. Comcare accepted liability pursuant to s 14 of the SRC Act, paying a 10% permanent impairment claim in 2004. In 1999 Sequeira changed his employer to AAMI. In September 2004 he made a claim for miscellaneous days of compensation leave over the years since the injury, each said to be due to the compensable back injury. He did not lodge any medical certificate or medical reports to support his claim. Relying on the ‘clear and unambiguous requirements’ of s 54 of the SRC Act, citing Re Cao v Australian Postal Corporation [1999] AATA 995 in that respect, the Tribunal held that there was not substantial compliance from the evidence of the applicant, of his friends or of certain medical practitioners and affirmed the decision under review refusing compensation as there was no evidence establishing that the absences from work were related to Sequeira’s compensable injury.
In Cao the applicant sought to renew a claim for compensation which had been decided and which she had not sought to review. The Tribunal (Senior Member Burton) accepted s 54 of the SRC Act to be clear in its terms and unambiguous. He saw no reason to allow the applicant to remake the application because of s 54.
In Lees v Comcare (1999) 56 ALD 84 at 91 the Full Court of the Federal Court (Wilcox, Branson and Tamberlin JJ) said:
[30] It is clear that Pt V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act. The form approved by Comcare as required by s 54(2)(a) reflects the generic nature of a claim under the section. It is headed ‘Claim for Rehabilitation and Compensation”. It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.
[31] The claim, and the claim form envisaged by s 54 of the Act reflects the practical reality that a claim for compensation is likely to be made relatively soon after the suffering of an injury, particularly if incapacity for work or significant medical expenses result from the injury. At the time that this initial claim is made it may be quite impossible for the employee to provide details of, for example, the fact or extent of any permanent impairment. For the reasons expressed below, the determination which is made on a claim, as required by s 54 of the Act, will ordinarily be a determination under s 14 of the Act.
For the applicant it is contended that when s 54 is read with s 53 it is apparent that it applies only to the initiation of a claim. He accepts that unless s 54(2)(b) is complied with initially there cannot be a claim. Further it is contended there is no approved form of certificate by Comcare. Additionally that neither Sequeira nor Cao support the view that s 54(2) applies clearly and unambiguously to every claim. Rather it is argued that it is necessary to examine the initiating claim made here by the applicant and have in mind there are many circumstances where symptoms change.
For the respondent reliance is placed upon the approach of the Tribunal in Sequeira and contends that a medical certificate is required for each claim for compensation, whether being an initial claim or a claim for periodical payment for compensation for incapacity under s 19, permanent impairment (s 24) or household assistance (s 29). It is submitted that this is made clear by the specific exception of claim for compensation under ss 16 or 17. Here is it argued that the absence of a medical certificate means that the claim is taken not to have been made (s 54(3)).
I accept that the requirements of s 54 of the SRC Act are clear and unambiguous; that is, with the exception of a claim for compensation under ss 16 or 17, ‘a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of’ paragraph s 54(2)(b) of the SRC Act must be given to the relevant authority in order for a claim to be made. The real question is whether the evidence in the present application does or does not satisfy the requirements of the section by way of ‘sufficient compliance’ pursuant to s 54(5). It is therefore necessary to more closely examine the evidence.
The effect of the evidence
The applicant
The applicant said that he was a high rail lubricator. As appears from documents in evidence, his first medical certificate was given by Dr Hartley and dated 28 February 2011. It diagnosed a low back injury with a likely impact on the applicant’s sciatic nerve and sanctioned a restricted return to work (the applicant not to sit in a rail lubricator) and referral to a physiotherapist. This was continued by a further certificate on 21 March 2011. On 7 April 2011, Dr Burford gave a similar certificate but allowed a graded return to rail duties. On 28 April 2011, the applicant was recorded as having improved but as being aggravated by return to full time work. On 30 May 2011, Dr Kareem noted a gradual improvement but constant discomfort in the lower back with occasional exacerbations. The applicant’s evidence was that he had back trouble all the way through but continued to work on a trial basis. On 21 September 2011, Dr Kareem found that applicant had a dislocated patella of the left knee. The applicant said he had been using his left leg on the accelerator. Again he had a restricted return to work. The applicant said he had the seat of the lubricator removed but when he tried driving a couple of times it aggravated his back. On 30 May 2012, Dr Lowe, in assessing the applicant’s fitness for work, listed a number of restrictions designed primarily to take into account the applicant’s back injury.
On 6 October 2011, Dr Cordova provided a report. He had seen the applicant twice. In his view, as well as his pre-existing degenerative changes that have been aggravated, the applicant had also in the period of time leading up to the episode of low back pain and right leg pain precipitation, aggravated some discs, protruding mild radiculopathy, especially at L5. He considered that with all the bumping and jarring the applicant’s L5 radiculopathy had become ‘sensitized’ in that the L5 nerve root has become more irritable. The altered sensation over the L5 and possibly the L3 dermatomes may have given the applicant the impression of the seat being harder than it really was. In short he was of the opinion that the applicant had developed hypersensitivity along the right sciatic nerve giving him clinical sciatica and displaying hypersensitivity in the dermatomal areas. Dr Cordova also found that there was definitely a relationship between the sustainment of the applicant’s injury of 28 February 2011 and his current condition. This was because the jarring had triggered off nerve root sensitization which caused pain to refer along the sciatic nerve and increased muscle tone as well in accompanying muscles. He did not consider the applicant had the capacity in reality to carry out the full range of pre-injury duties as a rail lubricator.
In cross-examination the applicant said that his back injury had first presented in 2011. He had done some office duties and then returned to rail lubrication in April 2011. He stopped that when his knee injury manifested. Subsequently he had moved into welding. In 2011-12 he had remained at the same classification. The differences in amount he was paid depended upon the amount of overtime attaching to the work he was doing. As a rail lubricator there had been an extra hour per day of overtime. As a welder overtime had been earned on weekends, depending upon the needs of the business. He had stopped going to Prime Medical Centre in 2011 because they did not seem to offer much help. His next certificate had come from Dr Cordova on 3 July 2012. In his certificate, on 3 July 2012, Dr Cordova found that the applicant’s degenerative spinal condition with intermittent radiculopathy had settled but had potential to be aggravated with excessive or improper postural work demands. After 30 August 2012, he had seen Dr Cordova who had declined his request for a back-dated certificate. He said that the reason he did not get a certificate was that he did not have information from the respondent.
In re-examination the applicant reiterated that his back injury had worried him all through. When he was cleared to be a welder’s assistant at the time of his knee injury his bad back remained.
Dr Cordova
Dr Cordova stated that he had seen the applicant on 30 August 2011, 20 September 2011 and 3 July 2012. In his view any peripheral sensation would activate the applicant’s symptoms. In July the applicant had improved but was not back to his pre-injury work.
In cross-examination Dr Cordova stated that he had been referred to the applicant by a medical legal connection asking he could attend for advice on the issue of certificates. When he saw the applicant, on 30 August 2011, it appears from his notes that the applicant had referred to his right knee. Perhaps cross over nerve effects were relevant. In his view the applicant had an over cautious approach to the future, fearing further injury. Nevertheless the applicant had appeared to be attempting a full capacity for work but not doing so well.
In re-examination Dr Cordova said that he understood the applicant saw him concerning his back only. He said that three factors set the applicant’s condition off: the bumping and jarring nature of his work; the suspension mechanism and the ergonomics of his occupation – pro-longed sitting and the operation of pedals. When he saw the applicant on 3 July 2012 he considered he had improved but not enough to have a career in the same job. He had declined to certify him. His capacity for work was for something with a less heavy demand.
Determination of issues
Returning to the provisions of s 54 of the SRC Act, it is important that subsection (1) states that ‘compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.’ That provision makes it absolutely clear that compensation is ‘not payable’ unless a claim is made ‘under this section.’ If no claim is made under the section, no compensation can be payable.
Although both parties were directed to inform the Tribunal of what form had been approved by Comcare for the purposes of s 54(2)(a), no definitive response has been received. The applicant has not addressed the issue and the respondent has advised the Tribunal of what medical certificates are available on Comcare’s website but that none of them have been approved by Comcare for the purposes of s 54(2) of the SRC Act. However, the respondent has not denied that the written claim by the applicant was ‘in accordance with the form approved by Comcare for the purposes of’ s 54(2). I therefore must accept that a claim was properly made under s 54(2)(a).
Nevertheless s 54(2)(a) is not to be read alone. It includes the word ‘and’ linking it to the requirements of s 54(2)(b). The applicant’s claim is not pursuant to either s 16 or s 17, the exceptions to the application of s 54(2)(b). It is a claim pursuant to s 14 of the SRC Act. Accordingly the word ‘and’ requires that there be ‘a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of’ the paragraph. Again there is no proof of Comcare having approved any particular form. The forms which have been and which are now available on Comcare’s website require a medical certification of whether the person in question is fit to continue pre-injury duties or to return to pre-injury duties or is fit for modified duties and in respect of what particular period. Such a certification would add to the evidence before the source of payment of compensation and most relevantly so.
Sub-section 54(5) provides that ‘strict compliance with an approved form referred to in s 54(2) is not required and substantial compliance is sufficient.’ In my view, substantial compliance cannot be inferred when there is no certificate of any type under s 54(2)(b). Such provision enables this Tribunal to accept that the written claim to which s 54(2)(a) refers substantially complies even if the form has not been formally approved by Comcare. So far as s 54(2)(b) is concerned, there is no certificate upon which the requirement of substantial compliance can attach. There is the evidence of the applicant and of Dr Cordova. None is expressed in anything like a certificate approximating to the requirements in the forms on the website of Comcare for such a certificate. Further, the evidence is that Dr Cordova refused the applicant’s request to provide such a certificate retrospectively.
In my opinion the requirements of s 54 are clear and unambiguous and themselves require the applicant to produce a certificate under s 54(2)(b) or some document approximating it which would be sufficient to attract the provision respecting substantial compliance.
I do not reach this opinion as the result of any submissions by the respondent concerning the effect of s 19 of the SRC Act.
As the written claim was not accompanied by a certificate of the kind referred to in par 54(2)(b) of the SRC Act, the claim ‘shall be taken not to have been made until such a certificate is given…’
Conclusion
For the above reasons I consider that the decision under review be affirmed.
I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of The Hon Robert Nicholson, Deputy President ..(Sgd) T Freeman.................
Associate
Dated 18 July 2013
Date(s) of hearing 28 May 2013 Representative for the Applicant Mr A Stewart Solicitors for the Applicant Chapmans, Barristers & Solicitors Representative for the Respondent Mr B Dube Solicitors for the Respondent Sparke Helmore
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