Ta and Linfox Australia Pty Ltd (Compensation)

[2021] AATA 4476

Ta and Linfox Australia Pty Ltd (Compensation) [2021] AATA 4476 (26 October 2021)

Division:GENERAL DIVISION

File Number(s):      2019/8204

Re:Van Kieu Ta

APPLICANT

AndLinfox Australia Pty Ltd

RESPONDENT

DECISION

Tribunal:Senior Member Damien O'Donovan (Presiding)

Senior Member P. Q. Wood

Date of Decision:                   26 October 2021

Date of Written Reasons:      2 December 2021

Place:Canberra

In conducting its review of the respondent’s reviewable decision of 22 November 2019, the Tribunal:

(a)has jurisdiction to consider whether the applicant suffered an injury, as defined in section 5A of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) (including an aggravation of an ailment), on 5 March 2019;

(b)The Tribunal does not have jurisdiction to consider whether the applicant suffered an injury as defined in section 5A of the SRC Act, by reason of the nature and conditions of his employment since commencing employment with the respondent.

...........[sdg]...........................................................
 Senior Member O’Donovan and Senior Member P. Q. Wood

Catchwords

WORKERS’ COMPENSATION – whether the Tribunal has jurisdiction to consider a different injury to the injury identified on the claim form – whether the Tribunal has jurisdiction to consider whether the applicant suffered an injury as defined in section 5A of the SRC Act, by reason of the nature and conditions of his employment – jurisdiction established in relation to a frank injury on a particular day – no jurisdiction established in relation to an injury suffered by reason of the nature and conditions of employment.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988(Cth)

Cases
Canute v Comcare (2006) 226 CLR 535
Comcare v Muir [2016] FCA 346
Lees v Comcare [1999] FCA 753, [32]; (1999) 56 ALD 84, 91

Szabo v Comcare (2012) 58 AAR 152; [2012] FCAFC 129

REASONS FOR DECISION

Senior Member Damien O'Donovan

Senior Member P. Q. Wood

2 December 2021

Introduction

1. The applicant has been denied compensation in relation to a back injury which he claims was suffered at work in compensable circumstances.

2. When the matter was considered by the respondent, the claim was framed by reference to a specific injury on a specific day – 5 March 2019. As the review has progressed through the Tribunal’s processes, the claim has undergone a change in character and is now presented by the applicant as an injury which developed over the course of his lengthy period of employment with Linfox.

3. In its statement of facts issues and contentions the respondent contends that the Tribunal’s jurisdiction is limited to considering whether the applicant is entitled to compensation in relation to an injury suffered in an incident on 5 March 2019. That position was not accepted by the applicant. After some significant delay, an application was made by the respondent for the question of jurisdiction to be determined prior to the substantive hearing of the matter.

4. Hearings in relation to jurisdiction were held on 8 and 22 October 2021 by videoconference as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (AAT Act), and consistent with the Tribunal President’s COVID-19 Special Measures Practice Direction - General, FOI and Veterans' Appeals issued in relation to the current public health emergency.

5. On 26 October 2021 the Tribunal made a decision that it only had jurisdiction to consider whether the applicant was entitled to compensation in relation to an injury (in the statutory sense of that word) suffered on 5 March 2019.  

6. On 4 November 2021 the applicant requested written reasons for that decision. These are the reasons for decision.

   Facts

7. A number of documents describe the circumstances which prompted the applicant to make a claim for compensation.

8. An incident report prepared on 5 March 2019 states:[1]

   At 1720 on Tuesday the 5th of March, a worker was picking cartons when they felt the onset of back and neck pain. The worker continued to pick the remainder of the order during which time the back pain became worse. They then reported the pain to their Supervisor. As the preferred medical clinic was closed the worker was taken to the local hospital Emergency Department where they were signed off work for a week. A review with the individual's GP the next day confirmed that the worker would not be able to work for a period due to the injury.

   [1] T30

9. On the same date, 5 March 2019, the applicant prepared his own handwritten statement which states:[2]

   Today my turn pick-case and I pick order 142 cartons and when I pick I have bent my back to lifting the carton the remedy boxes and I hurry pick and bend my back to pick and back and neck feel sore. The reason I hurry every time I pick case I got trouble about down time. This is first order. The time it happen 5:20 PM it start sore but I continue order to finish.

   Where is the pain? Middle back and neck.

   [2] T33

10. A further incident report records an incident number, 003089, and states:[3]

    Storeman was completing pick case (Remedy boxes) when he reported feeling pain in the middle of his back and neck. Storeman had been working for 1 hour 50 mins at time of reported pain. Linfox preferred doctors were not available that evening. Shift manager accompanied storeman to Werribee hospital, where he was seen by a doctor at 9.00pm. After a Storeman is seeing Linfox preferred doctor at 3:45pm today with Injury Management team member.

    [3] T32

11. On 6 March 2019, in completing the relevant worker’s compensation application form, the applicant answered the questions below as follows:[4]

    [4] T38

    Whatis your injury/condition, and which parts of your body are affected?

    Cervical Disc Prolapse Neck injury.

    What happened and how were you injured?

    When I was case picking, I had to reach and bend my back which caused pain in neck and back.

    What were you doing when you were injured?

    Case picking.

12. By letter dated 12 March 2019 the Respondent wrote to the Applicant acknowledging his compensation claim in relation to a “neck and back condition, alleged to have been sustained on 5 March 2019”. The applicant did not dispute this description of the claim.

13. Indeed, when the applicant was examined by specialists for medico-legal purposes he confirmed that his claim concerned the sudden onset of immediate neck pain when he picked up a box.[5]

    [5] See the report of Dr Wong dated 20 March 2019 (T48) and the report of Dr Steadman dated 3 April 2019 (T50)

14. On 4 April 2019, the Respondent made a determination, denying liability for the Applicant's neck and back condition pursuant to section 14 of the SRC Act. The determination is recorded as follows:

    In reference to the claim dated 6 March 2019 by Mr Van Ta employed by Linfox Australia Pty Ltd (“Linfox”) for workers’ compensation under the SRC Act in respect of a neck and back condition, alleged to have been sustained on 5 March 2019.

    Determination

    In accordance with the provisions of the SRC Act, I hereby determine that Linfox is not liable to pay compensation in respect of Mr Ta’s claimed neck and back condition, pursuant to section 14 of the SRC Act.

15. On 23 October 2019, the Applicant sought reconsideration of the determination and did not seek to expand or correct the scope of the claim.

16. On 22 November 2019, the Respondent made a reviewable decision affirming the determination dated 4 April 2019. The reconsideration decision was in the following terms.

    In reference to the claim for workers’ compensation dated 6 March 2019 by Mr Ta employed by Linfox Australia Pty Ltd (“Linfox”) for compensation under the SRC Act in respect of a neck and back condition, said to have been sustained on 5 March 2019.

    Reconsideration

    In accordance with the provisions of section 62(1) of the Safety, Rehabilitation and Compensation Act 1988, I have affirmed the Determination dated 4 April 2019, which found Linfox to have no liability to pay compensation in respect of Mr Ta’s claimed neck and shoulder condition, pursuant to section 14 of the SRC Act.

17. An application for review of that decision was lodged on 11 December 2019.

    Events after the Application for Review was lodged

18. As noted above, after the application was lodged with the Tribunal, medical evidence was obtained which suggested that whatever may have occurred on 5 March 2019, the applicant had a serious underlying back condition which required surgery. The applicant filed evidence that supported the view that his duties at work over-time accelerated and aggravated an underlying degenerative cervical spondylosis.[6]

    [6] See for example the report of Dr Awad dated 30 July 2020, Dr Brazier dated 24 September 2020 and Dr McCallum dated 2 October 2020.

19. On 23 June 2020 a statement was provided by the applicant. In this document the applicant makes reference to various occurrences of back and neck pain during his employment with Linfox that are in addition to the 5 March 2019 incident. The expansion of the applicant’s claim is confirmed in the Applicant’s Statement of facts, issues and contentions dated 27 November 2020 which we have read and had regard to.

20. The respondent in its statement of facts, issues and contentions noted the expansion of the applicant’s claims and contended that the expanded claims were not injuries which had been the subject of a decision and a reconsideration decision and therefore the Tribunal lacked jurisdiction to consider them. It is this issue which we need to resolve.

    The law

21. The following principles are relevant to the consideration of this question.

22. First, the SRC Act establishes what is known as a “three tiered decision-making process” relating to eligibility to compensation benefits. It consists of the following:[7]

    a) following an employee making a claim for compensation for an injury under section 54, the respondent must issue a determination on whether compensation is payable for the claimed injury under section 14;

    b)    an employee may then seek a reconsideration of that determination. Upon receiving a request from an employee seeking reconsideration, the respondent must reconsider the determination and issue a reviewable decision which either affirms, revokes or varies the determination;

    c) if an employee remains unsatisfied, section 64 provides for the review of a reviewable decision by this Tribunal.

    [7] Lees v Comcare [1999] FCA 753, [32]; (1999) 56 ALD 84, 91; Comcare v Muir [2016] FCA 346, [12]

23. Section 64 of the SRC Act and section 43(1) of the AAT Act limit the Tribunal to reviewing the reviewable decision.

24. If a claim has not been the subject of a determination and a reviewable decision then the Tribunal has no jurisdiction to consider it.

25. Second, as noted by the High Court in Canute v Comcare (2006) 226 CLR 535, the focus of the SRC Act is on ‘an injury’ (in the statutory sense of that word). While in Canute the Court was concerned with decisions under section 24 of the SRC Act, the same focus on ‘an injury’ is required by the statutory words when considering liability under section 14. Claims are made in relation ‘an injury’, not in relation to an incident or impairment of part of the body.

26. Third, a broad, generous and practical interpretation should be made of any claim form which gives notice of an injury. However, in deciding what injury the claimant has given notice of, the purposes of giving notice must be borne in mind – in particular, that the purpose is to enable the respondent to determine whether the claim should be met.[8]

    [8] Abrahams v Comcare (2006) 93 ALD 147

27. Applying these principles, it is clear that the injury (in the statutory sense of that word) that the applicant’s claim related to, was an injury to his neck, arising from a specific event (when the disc prolapsed) suffered while picking up boxes. It may be possible to characterise that event in a number of different ways, including as an aggravation of an underlying ailment, but it was a specific event that occurred on a specific day. That was the premise on which both the original determination and the reviewable decision were made.

28. The applicant’s contentions and evidence now focus on a quite different injury (in the statutory sense of that word). The basis on which compensation is now sought is in relation to the aggravation of the applicant’s underlying degenerative condition of the spine (probably an ailment) to which the nature and conditions of his employment as well as other workplace injuries have contributed. There has been no claim in relation to injuries of this kind nor has the respondent had an opportunity to consider whether such a claim should be met.

29. Accordingly, the applicant is now asking the Tribunal to consider for the first-time injuries suffered generally by the applicant over the whole of his working life with Linfox rather than a specific injury suffered on 5 March 2019. In this respect, the circumstances are almost identical to circumstances which were considered in Szabo v Comcare (2012) 58 AAR 152; [2012] FCAFC 129. In that matter the Tribunal determined that it only had jurisdiction to consider Comcare’s liability in relation to a claim concerning an employee’s back injury suffered on a specific date. It found it did not have jurisdiction to consider Comcare’s liability in relation to an injury suffered as a result of the nature and conditions of his employment. The primary judge upheld the Tribunal’s decision and the Full Court dismissed an appeal with Emmett and Greenwood JJ holding that the applicant’s claimed injury arose from a discrete incident and that the application for compensation he submitted did not contain a claim in relation to injury or disease arising out of the nature and conditions of his employment.[9] Their Honours held that “until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal”.[10]

    [9] At [41]

    [10] At [42]

    Conclusion

30. As outlined above, it is clear that the scope of the claim lodged by the applicant prior to the Tribunal application was limited to a back and/or neck injury that he sustained in the course of his employment on 5 March 2019. Importantly, it was not until after the applicant had applied to the Tribunal that he sought to claim that the nature of his employment duties “over time” contributed significantly to his back and/or neck injury condition. It follows that the Tribunal does not have jurisdiction in relation to these other parts of the applicant’s claim.

    DECISION

31. In conducting its review of the respondent’s reviewable decision of 22 November 2019, the Tribunal:

    a)has jurisdiction to consider whether the applicant suffered an injury, as defined in section 5A of the Safety, Rehabilitation and Compensation Act 1988 (including an aggravation of an ailment), on 5 March 2019;

    b)The Tribunal does not have jurisdiction to consider whether the applicant suffered an injury as defined in section 5A of the SRC Act, by reason of the nature and conditions of his employment since commencing employment with the respondent.

32.     I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for the decision herein of Senior Members O’Donovan and Wood

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Associate

Dated: 2 December 2021

Dates of hearing:	8 and 22 October 2021
Counsel for the Applicant:	M Carey
Solicitors for the Applicant	Zaparas Lawyers
Counsel for the Respondent:	P Nolan
Solicitors for the Respondent:	HWL Ebsworth