Wilson and K&S Freighters Pty Ltd (Compensation) - [2018] AATA 429

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2014/5639,2015/6468
  )         2016/2258, 2016/3477
  )         and 2016/3563
General Division  )
Re: Larry Wilson
Applicant

And: K & S Freighters Pty Limited
Respondent
CORRIGENDUM
TRIBUNAL:              Deputy President S Boyle
DATE OF
CORRIGENDUM:     19 March 2018
PLACE:                    Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
· Paragraph 245 be amended from: “Pursuant to s 67(8) of the SRC Act the Tribunal directs that the Respondent pay the costs incurred by the Applicant in these proceedings.” to now read: “Pursuant to s 67(8) of the SRC Act the Tribunal directs that the Respondent pay the costs incurred by the Applicant as set out in paragraphs 246 to 249 below.”
........[sgd].......................................................
Deputy President

Wilson and K&S Freighters Pty Ltd (Compensation) [2018] AATA 429 (8 March 2018)
Division:GENERAL DIVISION

File Numbers:         2014/5639
2015/6468
  2016/2258
  2016/3477
  2016/3563

Re:Larry Wilson
APPLICANT

K&S Freighters Pty LtdAnd
RESPONDENT

Decision
Tribunal:Deputy President S Boyle
Date:8 March 2018
Place:Perth

Application 2014/5639

The Tribunal:

(a)     sets aside the reviewable decision of 23 October 2014 and substitutes a decision that the determination of 9 October 2014 that the Applicant’s rights to compensation be suspended on and from 9 October 2014 be set aside; and

(b)     directs that the Respondent pay the costs of these proceedings incurred by the Applicant.

Application 2015/6468

The Tribunal:

(a) sets aside the reviewable decision of 1 December 2015 and substitutes a decision that the Respondent’s determination of 20 November 2015 to deny liability be set aside and that in substitution for that determination there be a determination that the Respondent is liable to pay compensation to the Applicant in accordance with s 14 of the SRC Act in respect of further injuries sustained to the right hip, left knee, left shoulder and neck sustained on 12 June 2012; and

(b)     directs that the Respondent pay the costs of these proceedings incurred by the Applicant.

Application 2016/2258

The Tribunal:

(a) sets aside the reviewable decision of 28 April 2016 and substitutes a decision that the determination of 21 April 2016 be set aside and that in substitution for that determination there be a determination that the Respondent is liable to pay compensation to the Applicant in accordance with s 14 of the SRC Act in respect of psychological injury, namely depression; and

(b)     directs that the Respondent pay the costs of these proceedings incurred by the Applicant.

Application 2016/3477

The Tribunal:

(a) sets aside the reviewable decision of 28 June 2016 and substitutes a decision that the Respondent’s decision of 7 June 2016 be set aside and in substitution for that decision there be a decision that anterior cervical fusion is a valid treatment for the Applicant’s neck condition and that the Respondent is liable for the cost of such procedure pursuant to s 16 of the SRC Act; and

(b)…

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.

Continue reading Wilson and K&S Freighters Pty Ltd (Compensation)

Details

AGLC: Wilson and K&S Freighters Pty Ltd (Compensation) [2018] AATA 429
Case: [2018] AATA 429
Decision Date: 8 March 2018

CaseChat Overview and Summary

This matter concerned applications brought by the applicant, Wilson, against his employer, K&S Freighters Pty Ltd, concerning claims for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The applicant had suffered workplace injuries which subsequently led to psychiatric injuries and degenerative changes. The core of the dispute revolved around the employer's liability for various aspects of the applicant's ongoing medical treatment and compensation.

The Tribunal was required to determine several legal issues. These included whether the applicant had a reasonable excuse for not undertaking a rehabilitation program, whether he was unable to return to his pre-injury work duties, and crucially, whether the costs of certain medical treatments, specifically an anterior cervical fusion, were reasonable and therefore payable by the respondent. The Tribunal also had to consider the respondent's liability for psychological injury, including depression, and for further physical injuries sustained to the applicant's hip, knee, shoulder, and neck.

In its reasoning, the Tribunal set aside several of the respondent's decisions. It found that the respondent was liable to pay compensation for the applicant's psychological injury and further physical injuries sustained on 12 June 2012. The Tribunal also determined that anterior cervical fusion was a valid treatment for the applicant's neck condition and that the respondent was liable for its cost under s 16 of the SRC Act. However, in one application, the Tribunal affirmed the reviewable decision.

Consequently, the Tribunal directed that the respondent pay the costs incurred by the applicant in these proceedings across multiple applications. The Tribunal also set aside determinations that had suspended the applicant's rights to compensation and denied liability for further injuries, substituting them with determinations of liability in favour of the applicant.

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

Pursuant to s 67(8) of the SRC Act the Tribunal directs that the Respondent pay the costs incurred by the Applicant in these proceedings.decisionApplication 2014/5639 The Tribunal: (a)sets aside the reviewable decision of 23 October 2014 and substitutes a decision that the determination of 9 October 2014 that the Applicant’s rights to compensation be suspended on and from 9 October 2014 be set aside; and (b)directs that the Respondent pay the costs of these proceedings incurred by the Applicant.Application 2015/6468 The Tribunal: (a)sets aside the reviewable decision of 1 December 2015 and substitutes a decision that the Respondent’s determination of 20 November 2015 to deny liability be set aside and that in substitution for that determination there be a determination that the Respondent is liable to pay compensation to the Applicant in accordance with s 14 of the SRC Act in respect of further injuries sustained to the right hip, left knee, left shoulder and neck sustained on 12 June 2012; and(b)directs that the Respondent pay the costs of these proceedings incurred by the Applicant.Liability for psychiatric injury 2016/2258 The Tribunal: (a)sets aside the reviewable decision of 28 April 2016 and substitutes a decision that the determination of 21 April 2016 be set aside and that in substitution for that determination there be a determination that the Respondent is liable to pay compensation to the Applicant in accordance with s 14 of the SRC Act in respect of psychological injury, namely depression; and(b)directs that the Respondent pay the costs of these proceedings incurred by the Applicant.Application 2016/3477 The Tribunal: (a)sets aside the reviewable decision of 28 June 2016 and substitutes a decision that the Respondent’s decision of 7 June 2016 be set aside and in substitution for that a decision there be a decision that anterior cervical fusion is a valid treatment for the Applicant’s neck condition and that the Respondent is liable for the cost of such procedure pursuant to s 16 of the SRC Act; and(b)directs that the Respondent pay the costs of these proceedings incurred by the Applicant.Application 2016/3563 The Tribunal affirms the reviewable decision.

Ratio Decidendi

Legal Principle Established

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