Weston and Cleanaway Operations Pty Ltd (Compensation) - [2018] AATA 3740

Weston and Cleanaway Operations Pty Ltd (Compensation) [2018] AATA 3740 (5 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0753
2017/6454

Re:Stephen Weston
APPLICANT

AndCleanaway Operations Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:5 October 2018
Place:Perth

In applications 2017/0753 and 2017/6454 the Tribunal:
1. sets aside the reviewable decisions and in substitution for those decisions makes the determination that:
a. the Respondent is liable under s 16 of the SRC Act for the cost of the surgery undertaken by Dr Khoo on 27 July 2018 and all other costs associated with that surgery: and
b. the Respondent is liable under s 19 of the SRC Act to pay to the Applicant compensation in respect of the Applicant’s partial incapacity for work.

2. directs that the Respondent pay the costs incurred by the Applicant in applications 2017/0753 and 2017/6454.
......[sgd]..................................................................
Deputy President Boyle
CATCHWORDS
COMPENSATION – not presently liable under s 16 and s19 of the SRC Act – left shoulder injury – jurisdiction – whether the decisions are reviewable decisions – the Tribunal has jurisdiction – whether the proposed surgery is reasonable medical treatment – the decisions under review are set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 37(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 14, 16, 19, 54(1), 60, 62, 62(1) – (5), 64
CASES
Johanson and the Civil Aviation Safety Authority [2012] AATA 239
Lees v Comcare [1999] FCA 753
Lock and Comcare [2018] AATA 2386
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Taylor v Secretary to the Department of Social Security (1998) 18 FCR 322
Woodbridge v Comcare [1994] FCA 1249
REASONS FOR DECISION
Deputy President Boyle
5 October 2018
THE APPLICATIONS

The Applicant seeks the review of two decisions made by delegates of the Respondent. The two decisions were dealt with together. They are:
1. Application 2017/0753
Decision dated 2 February 2017 (R1, T140) which affirmed a determination dated 5 January 2017 “…that Cleanaway Operations Pty Ltd is not presently liable to pay compensation benefits under section 16 (medical treatment) and section 19 (Incapacity payments) of the SRC Act” (R1, T137 at 282).
2. Application 2017/6454
Decision dated 19 October 2017 (R2, T16) which affirmed a determination dated 30 August 2017 that stated:
…that Cleanaway Operations Pty Ltd is:
(a)liable to pay compensation, pursuant to section 14 of the SRC Act, for temporary aggravation of pre-existing osteoarthritis to the AC joint, sustained on 7 July 2016; and
(b)not presently liable to pay compensation pursuant to section 16 (medical treatment) or section 19 (incapacity payments) as of 18 October 2016.
(R2, T13 at 54)
Identity of the Respondent
There appears to be some confusion as to the proper identity of the Respondent. The Tribunal files for both applications at all times identified the Respondent as “Cleanaway Operations Pty Ltd” and all correspondence, orders and directions issued by the Tribunal have identified that company as the Respondent. As…

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 Weston 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: [2018] AATA 3740
Decision Date: 5 October 2018

CaseChat Overview and Summary

This matter concerned an application for review by the Applicant, Mr. Weston, against decisions made by Cleanaway Operations Pty Ltd (the Respondent). The dispute arose from a workers' compensation claim following a motor vehicle accident on 30 March 2015, which resulted in a left shoulder injury. While initial liability for temporary aggravation of bursitis and rotator cuff strain was accepted, subsequent decisions by the Respondent rejected the Applicant's claim for compensation for proposed surgery under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The case was heard by Deputy President Boyle of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether it had jurisdiction to review the Respondent's decisions, and whether the proposed surgery constituted reasonable medical treatment for the Applicant's injury. The Respondent raised several jurisdictional challenges, including the correct identification of the reviewable decision and its date. The Tribunal was required to determine if the decisions under review were indeed "reviewable decisions" as defined by the SRC Act and the *Administrative Appeals Tribunal Act 1975*.

Deputy President Boyle reasoned that the Tribunal possessed jurisdiction under section 64 of the SRC Act. This was based on the finding that the Respondent's determination of 5 January 2017, which rejected liability for compensation under sections 16 and 19, effectively reconsidered and reversed the Respondent's earlier determination of 8 May 2015 that had accepted such liability. The Tribunal found that despite some inaccuracies in the application form regarding the date of the decision, the Respondent clearly understood the substance of the matter and the relevant decision being challenged. The Tribunal adopted a practical and sensible approach, consistent with the objectives of the AAT Act, to ensure accessibility and efficiency in the review process.

The Tribunal set aside the Respondent's decisions and substituted its own determination. It found that the proposed surgery was reasonable medical treatment and that the Respondent was liable to pay compensation in accordance with sections 16 and 19 of the SRC Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The reviewable decisions in both applications (R1, T140 at 298 and R2, T16 at 64) purported to be decisions issued “For and on behalf of Cleanaway Operations Pty Ltd” as were the decisions that were being reviewed in each of those reviewable decisions (R1, T137 at 287 and R2, T13 at 54). Accordingly, Cleanaway Operations Pty Ltd is the correct and appropriate Respondent. References in this decision to the Respondent are references to that company.BACKGROUND The Applicant was born in February 1968. On 30 March 2015 the Applicant was working as a truck driver for the Respondent when his truck was hit by an out of control vehicle. There was extensive damage to the truck that the Applicant was driving and the Applicant sustained a left shoulder injury. On 21 April 2015 the Applicant made a claim for workers’ compensation (R1, T3) for compensation in respect of “left sholder (sic). SA Bursitis cuff” (R1, T3 at 13). By determination dated 8 May 2015, CGU on behalf of the Respondent accepted liability “…to pay compensation…in accordance with Section 14 of the SRC Act in respect of temporary aggravation of left shoulder bursitis and rotator cuff strain, left distal lower leg soft tissue strain sustained on 30/03/2015” (R1, T14 at 54). The Applicant received treatment for the accepted injury including an ultrasound guided steroid injection on 13 May 2015 (R1, T17) and in September 2015 surgery by Dr Jarrett being:Shoulder arthroscopy through posterior portal. Subacromial bursectomy. Subacromial decompression using radiofrequency probe and 5.5 mm burr. Cuff repair undertaken via lateral and anterior incisions. Cuff repaired using 1 x Conmed Y knot medial row anchors and 2 x Conmed 3.5 mm Poplok lateral row anchors to create double row knotless repair…(Report of Dr Jarrett R1, T42) The left shoulder improved steadily following surgery, however, there was a side-effect being forearm symptoms and loss of use of the left thumb. As at March 2016, although his shoulder had not recovered fully and he was still suffering numbness in his thumb, the Applicant had returned to work and was able to perform “the majority of his tasks at work with relative ease” (Report of Dr Jarrett dated 16 March 2016, R1, T83). The Respondent accepted liability for the cost of the tendon transfer surgery to address the Applicant’s thumb issue which was scheduled for 14 July 2016. Sometime between 6 and 8 July 2016 the Applicant was driving an oil collection tanker for the Respondent. He says that in throwing a collection hose onto or over a bracket on the truck he felt his left shoulder crack and immediately felt pain. He reported the incident to the Respondent (R1, T94). The day on which the incident occurred is not clear as various documents identify different dates for this incident. For instance, the Applicant’s witness statement says that it occurred on 8 July 2016 (A1 page 7) as does the workers’ compensation claim form lodged by the Applicant in July 2017 (R2, T3 at 7), although that does erroneously (I assume) identify the date of the incident as 8 July 2017, yet the Applicant’s Statement of Issues, Facts and Contentions (Applicant’s SIFC) (at para 9) and the Applicant’s Personal Statement (R2, T11) say that the incident occurred on 7 July 2016. The date of 6 July 2016 for the incident is indicated by the email sent by the Respondent’s Rehabilitation and Injury Management Advisor, Ms Taylor, on Friday 8 July 2016 (R1, T94) wherein she advised that the Applicant had advised her that the incident occurred on the previous Wednesday, that is 6 July 2016. Whichever of those dates is the correct one, I do not understand the Respondent to be disputing that some incident did occur on one of those days when the Applicant was collecting oil. Nothing hinges on which of those dates the incident actually occurred.

Evidence

Evidence Before The Court

For the reasons set out above, in respect of both applications, I find that the Tribunal does have jurisdiction under s 64 of the SRC Act to review the decisions.THE MEDICAL EVIDENCE Dr Kiat Tang (General Practitioner) issued a WorkCover WA First certificate of capacity on 31 March 2015 (R1, T6) the day following the motor vehicle accident. That certificate identified the Applicant’s symptoms as “L shoulder pain, L lower leg/ankle pain” and diagnosed “L shoulder SA bursitis/rotator cuff strain, L distal lower leg soft tissue strain” and assessed the Applicant to have some capacity for work “modified or alternative duties” from 31 March to 7 April 2015. Dr Tang provided further WorkCover WA progress certificates of capacity (R1, T7 and T8) which certified the Applicant fit to perform modified or alternative duties from 13 April to 28 April 2015 and prescribed pain relieving medication (R1, T8 at 42). Dr Tang continued throughout the relevant period to provide progress certificates of capacity. The Applicant underwent a left shoulder MRI on 24 April 2015. The MRI report (R1, T11) advised that the Applicant was suffering osteoarthritis through his acromioclavicular joint with type II acromion and early anterolateral subacromial spurring and narrowing and moderate subdeltoid bursitis with insertional tendinopathy and supraspinatus tendon. On 28 April 2015 Dr Tang referred the Applicant to Dr Paul Jarrett (Orthopaedic Surgeon) for further opinion (R1, T12). Dr Tang also issued a further WorkCover WA progress certificate of capacity on 28 April 2015 (R1, T13). Dr Jarrett provided a report dated 11 May 2015 (R1, T16) in which Dr Jarrett stated that “Clinically his symptoms appear due to the impingement and not from his acromioclavicular joint (original emphasis)” and advised that he had “arranged for a subacromial space steroid injection” which was carried out by Dr Butterfield on 13 May 2015 (R1, T17). By report dated 27 May 2015 (R1, T24), Dr Jarrett advised that the injection had been administered, however this had only worked for one week and had since worn off. Dr Jarrett recommended that the Applicant undergo arthroscopic subacromial decompression. By brief dated 15 June 2015 (R1, T29), CGU sought a report from Mr Frederick Phillips (Orthopaedic Surgeon). He provided a report dated 11 August 2015 (R1, T33). Mr Phillips reported that the Applicant had continued to experience moderately high levels of pain with difficulty in elevation, and could not lie on his left arm. On examination, Mr Phillips reported that the Applicant's shoulder was very irritable and the Applicant had restricted range of motion. Mr Phillips was of the view that the Applicant's osteoarthritis was long standing and unrelated to the incident. Mr Phillips considered that the incident had provoked the subacromial bursitis to become symptomatic. Mr Phillips recommended that the Applicant undergo a further injection, and also stated that surgery would be appropriate.

Decision

Reasons for decision

A number of jurisdiction issues were raised by the Respondent prior to the hearing. Submissions on the jurisdiction issues were filed by each of the parties.Incorrect identification of reviewable decision in Application 2017/6454 In addition to the issues addressed in the jurisdiction submissions, the Respondent at paragraph (1)(c) of its Outline handed up by counsel in closing on 24 August 2018, the Respondent noted that the application lodged by the Applicant in 2017/6454, in the box “Date the decision was made” on the second page of the application form (R2, T1 at 2), identified the date of the decision as being “30/08/2017”. As the Respondent points out, that is not the date of the reviewable decision, but rather the date of the determination which was reconsidered in the reviewable decision of 19 October 2017 (see [3] above). It is apparent, however, that the Respondent understood and proceeded in this application on the basis that the “reviewable decision” was that of 19 October 2017 which affirmed the determination of 30 August 2017. The Respondent’s Section 37 Statement (R2, T2) (the statement required to be filed by the decision-maker within 28 days after receiving notice of the application for review under s 37(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act)) identified the “Reviewable Decision” as follows:On 19 September (sic) 2017, EML issued a reviewable decision on behalf of the respondent which affirmed the determination of 30 August 2017 (R2, T2 at 3). I find that the reference to 19 September 2017 in the Respondent’s Section 37 Statement was meant to be 19 October 2017. In any event, it is clear the wrong date being nominated in the application form filed with the Tribunal had no effect on the way that the Respondent presented its case. The application proceeded on the basis that the reviewable decision, the substance and effect of which were to affirm the 30 August 2017 determination that there was no present liability under ss 16 and 19 of the SRC Act, was the decision of 19 October 2017. Section 2A of the AAT Act requires the Tribunal to provide a mechanism for the review of decisions which is, amongst other things, accessible, economical, informal, quick and which promotes trust and confidence in the decision-making of the Tribunal. Those objectives would not be served by the Tribunal taking a pedantic technical point of a wrong date being nominated in the application form when the Respondent clearly understood the relevant decision to be the decision of 19 October 2017 affirming the determination of 30 August 2017 and the whole application having proceeded on that basis. I also note the judgment of the Full Court of the Federal Court in Taylor v Secretary to the Department of Social Security (1988) 18 FCR 322, a case in which the Court (Lockhart J, Beaumont J, Wilcox J) found no issue, jurisdictional or otherwise, with the Tribunal having reviewed a decision in circumstances where it was difficult to even discern the making of a relevant decision, let alone the date of the decision. The Court observed (at 329):Taking a sensible and practical view, it is my view that the fair reading of what occurred is that on 4 November 1986 the delegate of the Secretary decided not to waive recovery of the overpayment pursuant to the powers in that behalf conferred by s 186, thus bringing into play by its own force the statutory requirement of s 181 (2) that the overpayment be recouped; and the delegate then went on to decide that the amount of that recoupment should be as had hitherto been decided within the Department.It has been no easy task to identify the decision-making process in this case and, in particular, to determine whether there was an administrative decision susceptible of review by the Administrative Appeals Tribunal. Even on the view that I have taken, there remains difficulty in determining precisely the terms of the decision under review.

Ratio Decidendi

Legal Principle Established

In other words, the relevant decision for review by the tribunal in that case was the inferred or assumed decision which was actually implemented by the department. In the present case, irrespective of the broader terminology used in the determination, affirmed on reconsideration, the effect of the determination was that the Applicant’s claim for compensation for surgery under s 16 of the SRC Act was rejected. It is that decision which is to be reviewed by the Tribunal.Was the determination of 5 January 2017 a reconsideration on own motion? An alternative characterisation of the determination of 5 January 2017 is that it was a reconsideration on own motion under s 62(1) of the SRC Act. Hill J noted in Woodbridge v Comcare at [57] that:…By force of s.64 of the Act, jurisdiction is conferred upon the Tribunal to review a “reviewable decision”. The expression “reviewable decision” is defined in s.60(1) as a decision made either under sub-sec.38(4) or s.62. Section 38 is concerned with rehabilitation programmes and appears to have no application in the present case. It is s.62 which is presently operative. Under that section Comcare may, of its own motion, reconsider a determination, in which event, it is the reconsideration which is the “reviewable decision” or, if requested so to do, inter alia by the employee, Comcare is required to reconsider the determination in which event it is that decision which is reviewable by the Tribunal. If, as the Respondent argues, the determination of 5 January 2017 did not relate to the claim for surgery proposed by Dr Khoo, noting that I have found that it did, then the determination can be treated as a reconsideration on own motion under s 62(1) of the SRC Act. The determination of which the 5 January 2017 determination would be a reconsideration would be the determination of the Respondent dated 8 May 2015 (R1, T14) (see [9] above). The determination of 5 January 2017 “reconsiders”, and in effect reverses, the Respondent’s original determination of the Applicant’s claim for compensation of 21 April 2015 (R1, T3). At paragraph 7 of the determination of 8 May 2015 (R1, T14 at 55) the Respondent determined that the Respondent was “liable to pay compensation in respect of this claim under Section 14 of the SRC Act and that Mr Weston is entitled to compensation under Sections 16 and 19 of the SRC Act”. The “reconsideration” of that determination on 5 January 2017 replaced the original determination. The general language of the determination of 5 January 2017, namely that there was “no present liability to pay compensation …in accordance with Section (sic) 16 and 19 of the SRC Act” is reflective of the determination which it is reversing, namely that of 8 May 2015 which determined that the Respondent was “liable to pay compensation…under Sections 16 and 19 of the SRC Act”. Up to the time that the reconsideration occurred on 5 January 2017 the original determination of 8 May 2015 applied and the Respondent accepted liability under s 14 for payment of compensation under s 16 and s 19 of the SRC Act. That changed as a result of the reconsideration on 5 January 2017.