Torr and Cleanaway Operations Pty Ltd (Compensation) - [2022] AATA 2134

Torr and Cleanaway Operations Pty Ltd (Compensation) [2022] AATA 2134 (30 June 2022)
Division:GENERAL DIVISION
File Number: 2020/7099
Re:Robert Torr
APPLICANT

AndCleanaway Operations Pty Ltd
RESPONDENT

Decision
Tribunal:Senior Member P.Q. Wood
Date:30 June 2022
Place:Melbourne

The Tribunal sets aside the Reviewable Decision, and in substitution decides:
1.the Applicant suffered incapacity and impairment as a result of a left shoulder condition which arose out of or in the course of employment with the Respondent on or about 3 March 2020, the subject of a claim for compensation dated 4 June 2020, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and
2.the Respondent shall pay the Applicant’s costs and disbursements in respect of this Application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

............................[sdg]............................................
Senior Member P.Q. Wood
Catchwords
COMPENSATION – left shoulder condition – whether condition suffered is an injury or a disease – whether arose out of or during the course of employment – reviewable decision set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
REASONS FOR DECISION
Senior Member P.Q. Wood
30 June 2022
Introduction

On 16 November 2020, Robert Torr (“the Applicant”) applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of a decision made by Cleanaway Operations Pty Ltd (“the Respondent”) on 24 September 2020, which affirmed an earlier determination dated 30 July 2020 denying liability for the Applicant’s claimed left shoulder condition pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).
Mr K Pattenden appeared for the Applicant and Mr C Clark appeared for the Respondent before the Tribunal.
Oral testimony was heard from the Applicant, Dr Zahib Iqbal, Dr Brett Jackson, Dr Garry Grossbard and Dr Peter Steadman.
The matter was heard on 16 and 17 December 2021.
For the reasons below, the Reviewable Decision is set aside.
Background
The Applicant is a 61-year-old male who commenced employment as a Front Lift Driver with the Respondent on 25 January 2016.
On 3 March 2020, an incident report was completed regarding the incident that caused the left shoulder condition. It describes that the Applicant was pulling a 3 tonne organics Coles bin, which he then lost control of, and which pinned him to the wall, causing the claimed condition. The same day, a medical certificate was completed by Dr Iqbal relevant to a condition described as ‘muscular injury shoulders and ribs bilateral’. The Applicant resumed work, after being certified as fit for suitable duties, on a restricted basis, for a week.
On 10 March 2020, the Applicant underwent an ultrasound and x-ray on his left shoulder, which revealed supraspinatus tendinosis with a partial tear of the anterior supraspinatus near the insertion.
The Applicant subsequently lodged a claim for workers compensation…

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: [2022] AATA 2134
Decision Date: 30 June 2022

CaseChat Overview and Summary

The applicant, a 61-year-old Front Lift Driver, brought a claim for workers' compensation against his employer, Cleanaway Operations Pty Ltd, for a left shoulder condition. The applicant alleged that the condition arose from an incident on 3 March 2020, where he lost control of a heavy organics bin, which pinned him against a wall. The employer had refused the claim, asserting that the employment did not contribute to the condition to a significant degree and that the applicant had not suffered an injury or disease under the relevant sections of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The matter came before P.q. Wood SM of the Tribunal.

The central legal issues before the Tribunal were whether the applicant's left shoulder condition constituted an "injury" or a "disease" as defined by the SRC Act, and if so, whether it arose out of or in the course of his employment. Specifically, the Tribunal had to determine if the injury was suffered by the applicant and arose out of, or in the course of, his employment, or if it was a disease to which his employment contributed to a significant degree.

The Tribunal considered the evidence, including the applicant's detailed account of the incident, medical reports, and expert testimony. The applicant described how he was attempting to manoeuvre a 1,200-kilogram bin down a slope when he lost control, and it pinned him against a wall, causing him to experience pain in his left arm and shoulder. Medical examinations revealed supraspinatus tendinosis with a partial tear. The Tribunal found that the applicant's left shoulder condition was an injury that arose out of or in the course of his employment with the respondent.

Consequently, the Tribunal set aside the reviewable decision and substituted a decision in favour of the applicant. It was determined that the applicant suffered incapacity and impairment as a result of the left shoulder condition, which arose out of or in the course of his employment on or about 3 March 2020, entitling him to compensation under s 14 of the SRC Act. The Tribunal also ordered the respondent to pay the applicant's costs and disbursements.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons below, the Reviewable Decision is set aside. Background The Applicant is a 61-year-old male who commenced employment as a Front Lift Driver with the Respondent on 25 January 2016. On 3 March 2020, an incident report was completed regarding the incident that caused the left shoulder condition. It describes that the Applicant was pulling a 3 tonne organics Coles bin, which he then lost control of, and which pinned him to the wall, causing the claimed condition. The same day, a medical certificate was completed by Dr Iqbal relevant to a condition described as ‘muscular injury shoulders and ribs bilateral’. The Applicant resumed work, after being certified as fit for suitable duties, on a restricted basis, for a week. On 10 March 2020, the Applicant underwent an ultrasound and x-ray on his left shoulder, which revealed supraspinatus tendinosis with a partial tear of the anterior supraspinatus near the insertion. The Applicant subsequently lodged a claim for workers compensation for the left shoulder condition, which was refused on 30 July 2020, and then refused again on 24 September 2020 after reconsideration, on the basis that the Respondent on the day of the incident, 3 March 2020, did not contribute to, to a significant degree, either the causation or aggravation of the claimed condition, and that the Applicant had not suffered an injury or disease pursuant to ss 5A or 5B of the SRC Act. issues The issue before the Tribunal is whether the Applicant is entitled to compensation under s 14 of the SRC Act for the left shoulder condition. Subsequently, the Tribunal must consider:1.whether the Applicant’s left shoulder condition is considered a ‘injury’ or a ‘disease’ in accordance with ss 5A and 5B of the SRC Act; and if so2.whether the ‘injury’ arose out of, or in the course of the Applicant’s employment with the Respondent; or3.whether the ‘disease’ was contributed to, to a significant degree, by the Applicant’s employment with the Respondent. legislation Liability for compensation arises under s 14 of the SRC Act in respect of an injury suffered by an employee that results in death, incapacity for work, or impairment. ‘Injury’ is defined under s 5A(1) of the SRC Act to mean: (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. The definition of ‘disease’ is found under s 5B(1) of the SRC Act, which includes:(a)an ailment suffered by an employee; or(b)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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In light of the matters set out above, I find it correct and preferable to set aside the reviewable decision and make a substitute decision in favour of the Applicant. Consequently, it is appropriate to also make a costs order.DECISION The Tribunal sets aside the Reviewable Decision, and in substitution decides:(a) the Applicant suffered incapacity and impairment as a result of a left shoulder condition which arose out of or in the course of employment with the Respondent on or about 3 March 2020, the subject of a claim for compensation dated 4 June 2020, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and(b) the Respondent shall pay the Applicant’s costs and disbursements in respect of this Application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Ratio Decidendi

Legal Principle Established

Under s 5B(2) of the SRC Act a number of matters may be taken into account when determining whether the ailment, or its aggravation, meets the causal test in s 5B(1):(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.consideration The evidence considered by the Tribunal includes:1.the documents lodged by the respondent pursuant to s37 of the Administrative Appeals Act 1975, called the T Documents;2.the Applicant’s statement dated 9 March 2021;3.various medical reports and other tendered documents, comprising Exhibits A1, A2, R2 and R3; and 4.the oral evidence of:(i)the Applicant; (ii)Dr Zahib Iqbal, general practitioner;(iii)Dr Brett Jackson, orthopaedic surgeon;(iv)Dr Garry Grossbard, orthopaedic surgeon; and (v)Professor Peter Steadman, orthopaedic surgeon. I also considered the submissions of the parties, including the submissions of the parties put forward after the transcript of the hearing became available.The Applicant As I have remarked above, the Applicant is a 61-year-old male who is employed as a driver for the Respondent. The Applicant’s evidence is that his work involves physically moving large, 3-tonne commercial rubbish bins into position, so that he can then access the bins in order to empty them using forks attached to his truck. The Applicant gave evidence that on 3 March 2020 he was doing just that, when he lost control of a bin, which struck him, causing the beforementioned left shoulder condition. The events are summarised in the Applicant’s statement dated 9 March 2021 which states, in part:On 3 March 2020 at about 11.00am in the morning I attended at the Coles store at Moonee Ponds in order to empty their bin. When I got there, a Coles truck was at the loading dock so I could not get my truck close to the dock to get access to the bin. There is a fifteen minute wait time at this store but my truck would have been blocking other traffic so I decided to move the bin to an area where I could empty it rather than wait and hold up other traffic. A Coles employee who I know as Bill helped me move the bin. In order to get the bin to my truck, Bill and I had to push the bin down a concrete slope. I was in front of the bin trying to guide it and Bill was pushing from the rear of the bin. The bin was full and very heavy. As we were moving the bin down the slope it started to gain speed. Bill yelled out words to the effect ‘Get out of the way, it’s gone’. I tried to slow the bin up by pushing back against it but it was too heavy and wouldn’t stop rolling. The bin hit a gutter and channel and that stopped it as it couldn’t travel any further. Behind the kerb was a wall. The gap between the bin (now up against the gutter) and the wall behind it was very narrow. I was caught in that gap. I was sideways in the gap and was about to run to exit the space but didn’t have time. The bin struck me on the left side and my right arm was pressed against the wall. As this happened so quickly, I am unsure of the positioning of my left arm when I was struck. It may have remained in contact with the bin, via a rail I had been holding on to, trying to stop the bin’s progress. In order to get out, I had to twist and turn so that my back was against the wall and then I squeezed out through the gap between the bin and the concrete wall. Bill asked me if I was alright and I said ‘I think so, I didn’t hear anything crack’. The incident report says that the bin’s impact with me was significantly lessened by it striking a gutter that ran parallel with the concrete wall. This is not correct. I was a bit shaken after the incident but managed to walk back to my truck. I moved the truck closer to the bin so that I could empty it. Each bin is weighed by the truck when it is on the forks, before it is emptied. I noticed the weight of the bin was 1,200 kilograms. After emptying the bin I rang Cleanaway’s health and safety representative, Corey Smith, and explained what had happened. He said he would arrange an ambulance but I told him I thought I would be able to drive the truck back to the depot. While driving back to the depot I felt pain in my left arm, shoulder and chest. When I got back to the depot, the acting Supervisor, Haydn Azzopardi, took me to the Sonic Health Clinic for treatment. The doctor gave me a medical certificate allowing me to do light duties. The doctor also arranged for an ultrasound and referred me for physiotherapy. I believe the ultrasound found that I had tear in the supraspinatus tendon and bursitis.On my return to work I did some office duties for a week then did driving duties emptying bins. Another employee was assigned to be with me in the truck to pull the bins out so that I did not have to physically handle the bins. I did light driving duties for about three months but my left arm and shoulder weren’t improving. I decided to see another doctor and attended at Goonawarra Medical Centre in about early June 2020. That doctor referred me to Mr Jackson, an Orthopaedic Surgeon. Mr Jackson arranged for me to have an MRI and then recommended I have an operation on my left shoulder. Since June 2020 he has been certifying me as unfit to undertake any employment. Aside from having physiotherapy, I have also been taking anti-inflammatories and pain killers. I try not to take medication as I don’t like taking it. I lodged a claim for compensation but that claim was denied by Cleanaway.