Talevski and K & S Freighters Pty Ltd (Compensation) - [2016] AATA 492

Talevski and K & S Freighters Pty Ltd (Compensation) [2016] AATA 492 (13 July 2016)

Division	GENERAL DIVISION
File Number(s)	2014/5463
Re	Norman Talevski
APPLICANT
And	K & S Freighters Pty Ltd
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	13 July 2016
Place	Sydney

The decision under review is set aside and substituted with a decision that the Applicant was not offered suitable employment on or about 27 September 2011, and is therefore entitled to compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1998.

...........................[sgd].............................................

Ms N Isenberg, Senior Member

Catchwords

COMPENSATION – incapacity to work – whether offer of suitable employment made – return to work plan – whether unreasonable failure to take up offer of suitable employment – decision under review set aside and substituted

Legislation

Safety, Rehabilitation and Compensation Act 1998 ss 4(9), 19(4), 62 & 64

Cases

Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659
Fuad and Telstra Corporation Limited [2004] AATA 1182
Goodrickev Comcare [2011] FCA 694
Sollazzo and Comcare [2000] AATA 65

Sumner and Comcare [1998] AATA 1031

REASONS FOR DECISION

Ms N Isenberg, Senior Member

13 July 2016

The Applicant, Norman Talevski, seeks review of a reviewable decision dated 13 October 2014 which affirmed an earlier determination dated 5 August 2014, which found that the Applicant was offered suitable employment by the Respondent, K & S Freighters Pty Ltd (‘K&S’) from 27 September 2011 but failed to accept that offer.

Background

Following a decision by this Tribunal (differently constituted) that the Respondent was liable for injuries sustained by the Applicant to his right knee and to his left elbow and lower back (Re Talevski and K & S Freighters Pty Ltd [2014] AATA 334), the Applicant’s solicitors wrote to the Respondent with details of the Applicant’s treatment expenses, a request for approval for ongoing treatment, and asked the Respondent to confirm the Applicant’s Normal Weekly Earnings (‘NWE’). There does not appear to have been a response in relation to the treatment expenses and the request for approval for ongoing treatment, although payments were subsequently made in respect of the medical expenses.

However, apparently in response, the Respondent determined, on 5 August 2014, the Applicant’s entitlements to incapacity payments up to 27 September 2011 on which date, it said, the Applicant had been offered suitable employment, but he had failed to accept that offer. Nonetheless, the Respondent determined the Applicant’s payment of compensation pursuant to s 19(4)(b) of the Safety, Rehabilitation and Compensation Act 1998 (‘SRC Act’) up until 14 February 2012, and then ceased it completely.

JURISDICTIONAL ISSUE

On the first day of the hearing, after the Applicant’s evidence was well-advanced, the Respondent raised, for the first time, what it said was a jurisdictional issue in relation to s 19 entitlements having regard to the “claim” made by the Applicant pursuant to s 54 of the SRC Act and the reviewable decision; in particular, whether the Tribunal’s jurisdiction in relation…

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: [2016] AATA 492
Decision Date: 13 July 2016

CaseChat Overview and Summary

This matter concerned an application for review by Mr Talevski against a decision made by K & S Freighters Pty Ltd. The dispute centred on Mr Talevski's entitlement to compensation payments under section 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) for incapacity to work. The core of the disagreement was whether Mr Talevski had unreasonably failed to take up an offer of suitable employment made by the respondent. The decision was made by Ms N Isenberg, Senior Member, of the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine whether the decision-maker had jurisdiction to consider Mr Talevski's compensation entitlements up to 5 August 2014. Furthermore, the Tribunal needed to ascertain whether Mr Talevski had an "incapacity for work" as defined by the SRC Act, particularly in light of medical certificates provided by his treating general practitioner. A key issue was whether the respondent had made a valid offer of suitable employment and, if so, whether Mr Talevski's failure to accept it had ceased his entitlement to compensation.

The Tribunal found that it had jurisdiction to review Mr Talevski's entitlements under section 19 of the SRC Act up to 5 August 2014, as this period was before the determination being reviewed. The Senior Member noted that all matters put before the original decision-maker were before the Tribunal for review. The Tribunal observed that Mr Talevski had been certified as fit for suitable duties with specific restrictions from 1 August 2011 onwards, indicating he was not fit for his pre-injury employment. The respondent's subsequent consideration of a return to work with modified duties acknowledged this incapacity. The Tribunal concluded that the issue of incapacity payments up to 5 August 2014 was before both the original decision-maker and the reviewer.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The reviewable decision noted in relation to the Applicant’s solicitor’s complaint that the scope of the original decision did not deal with entitlements up to 5 August 2014, that “Mr Talevski has been paid compensation payments pursuant to Section 19 of the SRC for the duration of the Medical Certificates or Certificates of Capacity that have been provided to K&S Freighters” [Emphasis added]. I observethat a similar issue arose in Fuad and Telstra Corporation Limited [2004] AATA 1182 where President Downes, after referring to Australian Postal Corporation v Oudyn[2003] FCA 318; (2003) 73 ALD 659, said at [5]:It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem. The determination of 5 August 2014, specifically referred to the payment of compensation (under s 19), “for time off work”, but proceeded on the basis that the Applicant had been offered suitable employment and that he had failed to accept the offer. Notwithstanding having come to that view in the original decision (which was repeated in the decision under review), the reviewer also said that the Applicant’s entitlement to compensation payments under s 19 of the SRC Act were for the duration of the Medical Certificates which had been provided, although these appear to have extended to October 2012 in any event. Having come to the view that from late September 2011 when the Applicant was said to have been offered suitable employment that he had failed to accept, that position affected the compensation the Respondent considered was payable to the Applicant under s 19 of the SRC Act; no matter what further certificates the Applicant might have provided, the Respondent would have made no difference, because the Respondent had come to the view that the Applicant’s entitlement to compensation had ceased because it was of the view he had failed to accept the suitable employment which he had been offered. I consider that both the original decision maker and the reviewer clearly had before them the issue of incapacity payments until 5 August 2014, the date of the determination. Consequently, I find that the Tribunal has jurisdiction to determine the Applicant’s entitlement under s 19 of the SRC Act at least up to 5 August 2014. The Applicant will be properly regarded as having had an “incapacity for work” since the accidents in July 2011, if he had an incapacity to engage in his pre-injury employment with the Respondent: s 4(9)(b) of the SRC Act. On 1 August 2011 Dr Ong, the Applicant’s treating GP, certified the Applicant as fit for suitable duties from 1 August 2011 to 5 August 2011, working 8 hours per day, 5 days per week but with sitting tolerances up to 10 minutes, travelling up to half an hour, walking up to 5 minutes and standing up to 5 minutes. On 5 August 2011 he certified the Applicant as fit for suitable duties with restrictions of working 8 hours per day, 5 days a week with tolerances of half an hour sitting, travelling, walking and standing. It was clear that the Applicant was not considered fit for his pre-injury employment and that the Respondent accepted that to be the case because, from about that time, it commenced considering his return to work (‘RTW’), but with modified duties.