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…

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: [2013] AATA 509
Decision Date

CaseChat Overview and Summary

In the case of Stephen Catoni and John Holland Group Pty Ltd, the applicant sought to challenge a decision related to a workers' compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The primary issue before the court was whether the applicant's claim was sufficiently compliant with the statutory requirements of the Act, specifically concerning the submission of a medical certificate by a legally qualified medical practitioner. The court was required to determine if the evidence provided by the applicant met the criteria set out in section 54 of the Act, which mandates the submission of such a certificate for claims not covered by sections 16 or 17 of the Act.

The court examined the evidence provided by the applicant, including multiple medical certificates issued by various doctors over the course of the applicant's injury and treatment period. The certificates detailed the applicant's injuries, the restrictions placed on his return to work, and the progression of his condition. The applicant argued that his ongoing back issues and the subsequent development of sciatica were work-related injuries that warranted compensation. However, the court focused on whether the claim itself was made in accordance with the statutory requirements, specifically the submission of the required medical certificate. The applicant's claim was initially made without the necessary certificate, and despite subsequent submissions of medical certificates, the court found that these did not cure the initial defect.

In its decision, the court upheld the original determination that the applicant's claim was not validly made due to the absence of the required medical certificate at the time of the claim. The court found that the statutory provisions were clear and unambiguous, and that the applicant had not complied with the necessary requirements. Consequently, the court affirmed the decision under review, dismissing the applicant's challenge to the initial determination.

The court ordered that the decision under review be upheld, and the applicant's claim was deemed not to have been made in accordance with the statutory requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 evidenceThe 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4867
Re	Stephen Catoni
APPLICANT
And	John Holland Group Pty Ltd
RESPONDENT

Tribunal	The Hon Robert Nicholson, Deputy President
Date	18 July 2013
Place	Perth