Waititi and Cleanaway Operations Pty Ltd (Compensation) - [2021] AATA 924

Waititi and Cleanaway Operations Pty Ltd (Compensation) [2021] AATA 924 (19 April 2021)
Division:GENERAL DIVISION
File Number:2019/4630
Re:ERIC WAITITI
APPLICANT

CLEANAWAY OPERATIONS PTY LTD And
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:19 April 2021

Place: Brisbane
The decision under review is affirmed.
.............[SGD]..................................................
Senior Member Katter
CATCHWORDS
COMPENSATION – workplace injury – cost of medical treatment – compensation in respect of an injury suffered if the injury results in incapacity for work – cessation of liability to pay compensation – injury no longer results in incapacity for work – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220
Liu v Comcare [2004] AATA 617
REASONS FOR DECISION
Senior Member Katter
19 April 2021
APPLICATION

This is an application for review of the Respondent’s reconsideration decision dated 20 June 2019[1], that decided no further entitlement to medical expenses and incapacity payments from 2 May 2019[2] in accordance with sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”)[3].
[1]           Exhibit 1, T2, page 10.
[2]           Exhibit 1, T54, page 178.
[3]           Exhibit 1, T2, page 13.
CLAIM
The Applicant lodged a claim for compensation with the Respondent dated 15 May 2018, for an injury to the left hand during the course of employment on 12 May 2018[4].
[4] Exhibit 1, T7, pages 42-54.
On 21 May 2018 a determination was issued by the Respondent accepting liability to pay the Applicant compensation pursuant to s 14 of the Act for a left-hand injury: ‘left trapezoid fracture’[5]. The date of the injury in that determination was 12 May 2018[6].
[5] Exhibit 1, T11, pages 58-62.
[6] Exhibit 1, T11, pages 58-62.
On 2 May 2019 a determination by the Respondent stated that the Applicant had ‘no present liability to pay compensation … for medical expenses or incapacity payments under the’ Act for the left trapezoid fracture of 12 May 2018[7].
[7] Exhibit 1, T54, page 178.
On 20 June 2019 the Respondent, further to a request for reconsideration of the determination dated 2 May 2019, determined no present liability for medical expenses and incapacity payments under sections 16 and 19 of the Act for the left trapezoid fracture of 12 May 2018[8].
[8] Exhibit 1, T59, page 188.
An Application for Review of Decision was filed in the Tribunal on 31 July 2019[9], stating as to ‘why the decision of 20 June 2019 was wrong’: ‘I believe that the decision was wrong and that all information was not taken into account’[10].
[9] Exhibit 1, T2, pages 5-9.
[10] Exhibit 1, T2, page 8.
ISSUES
It is submitted that the issue to be determined is whether, as at 20 June 2019 and presently, the Respondent is liable to pay compensation to the Applicant under sections 16 and 19 of the Act[11]. The Respondent submits that the Tribunal must consider whether the Applicant continues to suffer the effects of the accepted left-hand…

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.

Keep reading for free

Create a free CaseChat account to read Waititi and Cleanaway Operations Pty Ltd (Compensation) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] AATA 924
Decision Date: 19 April 2021

CaseChat Overview and Summary

The matter before the Tribunal concerned a claim for compensation by the Applicant, Mr Waititi, against his employer, Cleanaway Operations Pty Ltd. The dispute centred on the Respondent's liability to pay compensation for medical treatment and incapacity for work arising from a workplace injury to the Applicant's left hand, which occurred on 12 May 2018. The Applicant had been employed as a driver for approximately ten years prior to the incident.

The legal issues before the Tribunal were whether the Respondent remained liable to pay compensation to the Applicant under sections 16 and 19 of the relevant Act as at 20 June 2019 and presently. This required the Tribunal to consider whether the Applicant continued to suffer the effects of the accepted left-hand injury, and if so, whether that injury necessitated further medical treatment or resulted in an incapacity for work.

The Tribunal considered the medical evidence, particularly the report of Dr Steadman. Dr Steadman opined that the Applicant had reached maximal medical improvement and did not require further medical treatment for his left-hand injury. He further stated that the Applicant was likely fit to perform normal work duties and that using the hand in normal day-to-day activity would assist in its recovery. The Tribunal noted that section 16(2) of the Act provides that compensation for medical expenses is payable whether or not the injury results in incapacity for work or impairment. However, given Dr Steadman's uncontradicted evidence that the Applicant no longer required medical treatment, the Tribunal found that no further compensation for medical expenses was payable under section 16(1) of the Act.

Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is submitted that the issue to be determined is whether, as at 20 June 2019 and presently, the Respondent is liable to pay compensation to the Applicant under sections 16 and 19 of the Act[11]. The Respondent submits that the Tribunal must consider whether the Applicant continues to suffer the effects of the accepted left-hand injury and, if so, whether the accepted left-hand injury results in the need for medical treatment and/or results in an incapacity for work[12]. [11] Respondent’s submissions dated 7 December 2020, page 1, paragraph 6. [12] Respondent’s submissions dated 7 December 2020, page 2, paragraph 7. EVIDENCE The Applicant had been employed in the same role[13] for some 10 years[14] prior to 12 May 2018, commencing employment with the Respondent on 27 October 2016 as a driver[15]. [13] Transcript, P-7, line 27. [14] Transcript, P-7, line 20. [15] Submissions of the Respondent dated 7 December 2020, page 3, paragraph 13. The Applicant stated that on 12 May 2018 he was: … tipping [a] bin, it’s called a hook truck and it carries one bin and … when you tip the bin, you’ve got to open the door, latch it and then tip [the] bin up. Then when I went to close the door, there was some rubbish stuck in between the hinges, so I held the door with my right hand and put my left hand in to pull the rubbish out and a gust of wind blew the door shut and … caught my hand[16]. This occurred at the Respondent’s ‘base’ location[17] in the morning on 12 May 2018[18]. This was the Applicant’s first bin[19] for the day, with a normal day for the Applicant being some five bin-loads[20]. The Applicant stated that after injuring his hand on that day, he then called his supervisor, told the supervisor what had happened and indicated to the supervisor that he could carry on work for the day[21], which the Applicant did[22]. [16] Transcript, P-7, lines 36-40. [17] Transcript, P-8, line 7. [18] Transcript, P-8, line 14. [19] Transcript, P-8, line 12. [20] Transcript, P-8, line 22. [21] Transcript, P-8, lines 30-32. [22] Transcript, P-8, line 32. After work finished that day, at about 2pm[23], the Applicant stated that his daughter saw that his hand was swollen and took him to the hospital, where the hand was ‘scanned’[24]. The Applicant’s hand was put in plaster[25] and the Applicant was provided with a medical certificate for seven days off-work[26]. In a medical certificate dated 12 May 2018, completed by Dr Hughes of the Logan Hospital, the diagnosis of the Applicant’s left-hand injury is recorded as a ‘[left] scaphoid clinical fracture’[27]. [23] Transcript, P-8, line 32. [24] Transcript, P-8, lines 33-35. [25] Transcript, P-8, line 38. [26] Transcript, P-8, line 37. [27] Exhibit 1, T6, page 28. On the next day, 13 May 2018[28], the Applicant was picked up and taken to work, where he was then working in the office, with the work activities on that day including filing and sweeping[29]. [28] Transcript, P-9, line 1. [29] Transcript, P-9, lines 6-10.

Decision

Reasons for decision

The question as to compensation for medical expenses in sub-s 16(1) of the Act applies whether or not the injury to the Applicant results in incapacity for work or impairment or not: sub-s 16(2) of the Act. The Applicant suffered an injury, for which the Respondent was liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, compensation of such amount as the Respondent determined was appropriate to that medical treatment. Having regard to the medical evidence referred to above, which is not contradicted, the Applicant from the date of the determination under review was not entitled to further compensation for medical expenses in respect of the costs of reasonable medical treatment obtained in relation to the injury: sub-s 16(1) of the Act. As stated by Dr Steadman, the Applicant does not require any medical treatment[132] for the accepted injury and therefore no reasonable medical expenses are required. [132] Exhibit 3. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

In reference to the report of 12 November 2019[96] Dr Steadman stated that there were ‘some changes on the x-ray that were on the radial side of [the Applicant’s] hand around the base of [the] thumb, which is a common sort of finding’[97]. Dr Steadman stated that there were not major differences between the opinion of Dr Marchant and his opinion as to the Applicant’s hand: he had had a crush injury; it had progressed steadily; he did not have carpal tunnel; he had some arthritis; he was probably fit to perform normal work duties; ‘we couldn’t find anything to treat’; he’d reached the stage where he would be at maximal medical improvement, meaning that we didn’t feel that there was any other care that would assist[98]. Dr Steadman stated that it ‘would not have been of any further assistance’ to have gone ‘to the hand therapist twice a week or once a week or once a fortnight … as opposed to … using the hand normally to achieve that last little bit of recovery’[99]. Dr Steadman stated that the Applicant as at 9 November 2020 did not require medical treatment in respect of his left hand injury and did not have any incapacity for work in his opinion[100]. The doctor stated that it was an ‘important point … that if [the Applicant] starts using the hand in normal day-to-day activity [it] actually helps it keep improving’[101]. Dr Steadman stated that ‘getting back to using the hand normally is often the best way to continue to get the hand stronger’[102]. [96] Exhibit 3.[97] Transcript, P-28, lines 12-14. [98] Transcript, P-28, lines 26-33. [99] Transcript, P-32, lines 30-33. [100] Transcript, P-28, lines 43-45. [101] Transcript, P-29, lines 2-6. [102] Transcript, P-31, lines 18-19. CONSIDERATION It is not in contention that the Respondent is a licensed authority according to s 98A of the Act, with references made to Comcare in the Act therefore being taken to be a reference to the Respondent[103]. [103] Respondent’s submissions dated 7 December 2020, page 2, paragraph 8. There is an onus on the Respondent to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made[104]. [104] Comcare v Power [2015] FCA 1502, [70] (Katzmann J). Sections 14, 16 and 19 of the Act[105] relevantly state: [105] Act No. 75 of 1988, C2019C00158 registered 1 May 2019. 14 Compensation for injuries(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in … incapacity for work, or impairment.16 Compensation in respect of medical expenses etc.(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.Note:Compensation is not payable under this subsection in relation to certain claims (see section 119A).(2) Subsection (1) applies whether or not the injury results in … incapacity for work, or impairment. 19 Compensation for injuries resulting in incapacity (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:NWE–AEwhere:AE is the greater of the following amounts:(a) the amount per week (if any) that the employee is able to earn in suitable employment;(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.NWE is the amount of the employee's normal weekly earnings.