FEDERAL COURT OF AUSTRALIA

Engida v Linfox Australia Pty Ltd [2016] FCA 793

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal out of time be granted.

2.    The appeal be dismissed.

3.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

TRACEY J:

1    Mr Haile Engida has applied for an extension of time within which to appeal against a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal’s decision was handed down on 9 December 2014. The application was filed on 12 February 2015.

2    Mr Engida had applied to the Tribunal for review of three decisions, made under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Those decisions had found that his employer (“Linfox”) had no present liability for the payment to him of various forms of compensation. Mr Engida had mixed success. The Tribunal affirmed two of the three impugned decisions but set aside a third.

3    Pursuant to s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), Mr Engida had 28 days within which to appeal from the Tribunal’s decision. His application to the Court was made over a month after this deadline had passed. Mr Engida explained his delay. He said that he had limited English and that he had had difficulty in obtaining assistance in having the Tribunal’s reasons translated and explained to him. He had had difficulty finding the funds to pay for the cost of translation and to assist him in framing his application for an extension of time and the supporting affidavit. He had also had difficulty obtaining legal advice. These problems were compounded by physical and mental health problems which he was suffering at the time.

4    Linfox indicated at an early directions hearing that it would oppose the granting of leave. It did not seek to submit that Mr Engida had failed to give an adequate explanation for the relatively short delay in seeking to file his appeal. It contended, however, that the application should be refused because Mr Engida’s proposed appeal had no reasonable prospects of success.

5    I directed that Linfox file and serve written submissions supporting its contention and sought to facilitate the provision of pro bono legal assistance to Mr Engida.

6    Linfox filed its written submissions. Mr Engida was given the opportunity of responding to them. He filed a detailed response in which, in effect, he argued the legal merits of his appeal. Unfortunately, he remained legally unrepresented.

7    In these circumstances I directed that there be argument on the legal merits of Mr Engida’s proposed appeal on the hearing of his application for an enlargement of time.

8    As a result, the appeal was fully argued.

9    I have concluded, for the following reasons, that leave to appeal should be granted but that the appeal should be dismissed.

10    I accept Mr Engida’s reasons for his delay in commencing the proceeding.

FACTUAL BACKGROUND

11    On 24 April 2006, Mr Engida was employed by Westgate Logistics (“Westgate”) as a picker. His work involved him manually lifting packaged goods. Whilst doing so he suffered injuries to his left shoulder and upper back. Mr Engida later suffered injuries to his lower back while working.

12    Liability for the injuries suffered by Mr Engida while he was employed by Westgate was accepted and processed under the Victorian Work Cover Scheme. Linfox acquired Westgate some time after Mr Engida suffered his injuries.

13    In 2008, Mr Engida made claims against Linfox for injuries to his right shoulder and upper back.

14    On 14 February 2008, he made a claim for workers’ compensation for an injury to his right shoulder sustained on that day. The claim form stated “lifting boxes” as the cause of the injury.

15    On 24 July 2008, Mr Engida made a claim for workers’ compensation for injuries to his shoulder and upper back sustained on 1 July 2008. The claim form identified “lifting heavy boxes” as the cause of the injury.

16    On 14 August 2008, Mr Engida made a claim for workers’ compensation for an injury to his upper back sustained on 13 August 2008. The claim form identified “lifting boxes” as the cause of the injury.

17    Linfox accepted liability for each of these claims. He received payments of compensation for short periods of incapacity and small amounts for the cost of treatment. He then returned to work.

18    On 10 May 2012, Mr Engida’s former solicitors lodged a claim for payment of lump sum compensation for permanent impairment and non-economic loss pursuant to ss 24 and 27 of the Act. The claim related to “Supraspinatus Tendinopathy and Subacromial bursitis, L4-L5 Disc Bulging and Depression – Major”.

19    By letter dated 21 January 2013, Mr Michael Wheeler, Senior Injury Claims Consultant, CGU Self Insurance Services, which was acting on behalf of Linfox, advised Mr Engida about the outcome of his claim for compensation in respect of “midback (Rhomboid) strain” sustained on 13 August 2008, and, in particular, of his claim for permanent impairment compensation under the Act in respect of his “right shoulder”. Mr Wheeler determined that Mr Engida was not entitled to a lump sum permanent impairment payment under ss 24 and 27 of the Act. He explained his decision as follows:

“2.     To assist in determining the level of Whole Person Impairment (WPI), arrangements were made for the claimant to be assessed by Dr David Fish, Consultant Occupational and Environmental Physician, who is on the Comcare list of trained permanent impairment assessors.

3.    In completing this report, Dr Fish advises the following “I assessed that the degree of impairment arising from the right shoulder, figures 9.11.1 (A), (b) and (c) and arrived at 6% whole person impairment. I also assessed his cervical spine pursuant to Table 9.15. I considered that he has no significant clinical findings, no muscular guarding, no documented neurological impairment, no significant loss of motion, segment integrity, no other indication of impairment related to injury or illness. This is equivalent to 0% whole person impairment. His total whole person impairment is therefore 6%. Of these I consider that 4% has arisen from work related factors and 2% as a result of the underlying degenerative disease”.

4.    Subsection 24(7)(b) of the SRC Act states:

“…Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section…”

5.    Therefore I accept the opinion of Dr Fish that the degree of impairment suffered by the claimant is 6% of the whole person in accordance with the Guide, noting his comments “Of these I consider that 4% has arisen from work related factors and 2% as a result of the underlying degenerative disease” and therefore the claimant is precluded by subsection 24(7) of the SRC Act from receiving an award of compensation for permanent impairment pursuant to Section 24 of the SRC Act.

6.    Compensation for non-economic loss pursuant to Section 27 of the SRC Act is only payable where a benefit has been awarded under Section 24 of the SRC Act. On the basis that the claimant does not have entitlement under Section 24 of the SRC Act. On the basis that the claimant does not have entitlement under Section 24 of the SRC Act, nor is there an entitlement to compensation pursuant to Section 27 of the SRC Act.”

20    By letter dated 23 January 2013, Mr Wheeler advised Mr Engida that, on the basis of medical evidence provided by Associate Professor George Mendelson, a consultant psychiatrist, in his report dated 28 September 2012, liability was denied under s 14 of the Act for a secondary condition, namely “depression”. Associate Professor Mendelson found that Mr Engida did not have any “diagnosable mental disorder” and there was “no indication of any loss of work capacity due to any psychiatric illness or psychiatric impairment”.

21    On 12 February 2013, Mr Engida sought review by a Senior Officer of the determinations made by Mr Wheeler on 21 and 23 January 2013.

22    On 25 February 2013, Ms Ciltra Henderson, Litigation – Reconsideration Officer, CGU Self Insurance Services, on behalf of Linfox, wrote to Mr Engida about his claim for permanent compensation under ss 24 and 27 of the Act in respect of “midback (Rhomboid) strain” sustained on 13 August 2008, and, in particular, to his claim for permanent impairment under the Act in respect of his “right shoulder”. Ms Henderson informed Mr Engida that she had affirmed the determination dated 21 January 2013 denying his entitlement to permanent impairment compensation.

23    In a second letter of the same date, Ms Henderson informed Mr Engida that she had affirmed the decision dated 23 January 2013 denying liability to pay compensation for a secondary condition, namely “depression”, pursuant to s 14 of the Act.

24    On 13 March 2013, Ms Katherine Curro, Senior Injury Claims Consultant, CGU Self Insurance Services, on behalf of Linfox, wrote to Mr Engida about his claim for workers’ compensation in respect of his “midback (Rhomboid) strain” sustained on 13 August 2008. Linfox had accepted the claim on 25 August 2008. Having regard to Dr Fish’s report dated 10 October 2012, Ms Curro determined that Mr Engida had ceased to suffer the effects of the compensable injury on 13 August 2008. Accordingly, Ms Curro determined that there was no present liability to pay medical treatment expenses and incapacity benefits pursuant to ss 16 and 19 of the Act.

25    On 18 March 2013, Mr Engida made applications to the Tribunal for review of the determinations made by Ms Henderson on 25 February 2013, affirming the decisions of Mr Wheeler made on 21 and 23 January 2013.

26    On 18 April 2013, Mr Engida sought reconsideration and review by a Senior Officer of the determination dated 13 March 2013 finding no present liability to pay medical treatment expenses and incapacity benefits pursuant to ss 16 and 19 of the Act in respect of his “midback (Rhomboid) strain” sustained on 13 August 2008.

27    On 24 April 2013, Ms Henderson wrote to Mr Engida informing him that she had affirmed the decision dated 13 March 2013 finding no present liability to pay compensation in respect of the “midback (Rhomboid) strain” pursuant to ss 16 and 19 of the Act. Ms Henderson stated that she had considered the various submissions made in support of Mr Engida’s request for reconsideration. Ms Henderson concluded that “the submissions and the accompanying evidence sought to be relied upon…pre-dates the more recent specialist medical evidence provided by Dr Fish.”

28    On 9 May 2013, Mr Engida made an application for review by the Tribunal of the decision dated 24 April 2013 affirming the decision dated 13 March 2013 finding no present liability to pay compensation to Mr Engida in respect of “midback (Rhomboid) strain” pursuant to ss 16 and 19 of the Act.

THE TRIBUNAL DECISION

29    Mr Engida made three applications for review in the Tribunal. The decisions which he challenged were:

(1)    the reviewable decision, made on 25 February 2013, by Ms Henderson, on behalf of Linfox, affirming the determination, made on 21 January 2013, by Mr Wheeler finding no present liability for payment of permanent impairment and non-economic loss compensation pursuant to ss 24 and 27 of the Act in respect of the right shoulder and midback (Rhomboid) strain.

(2)    the reviewable decision, made on 25 February 2013, by Ms Henderson, on behalf of Linfox, affirming the determination, made on 23 January 2013, by Mr Wheeler, which found no present liability for payment of compensation pursuant to s 14 of the Act in respect of the injury or disease of depression; and

(3)    the reviewable decision, made on 24 April 2013, by Ms Henderson, on behalf of Linfox, affirming the determination, made on 13 March 2013, by Ms Curro, finding no present liability for payment of compensation, pursuant to ss 16 and 19 of the Act in respect of the mid back (Rhomboid) strain injury.

30    The Tribunal noted the following, at [8]:

“The applicant has not lodged a claim for compensation seeking the respondent’s liability pursuant to s 14 of the Act for the depression and lower back injury. In respect of the depression claimed in the applicant’s permanent impairment application, I presume the respondent’s decision to deny liability for depression pursuant to s 14 of the Act was made to cause the applicant to establish liability for it before he can recover, if at all, any compensation for permanent impairment. In respect of the claimed lower back injury (being the L4-L5 Disc Bulging), the respondent has not made a decision in relation to liability under s 14 or ss 24 and 27 of the Act.”

31    There was a significant body of medical evidence submitted to the Tribunal. The Tribunal summarised the relevant medical evidence and other evidence submitted by Mr Engida at [9] - [120] of its reasons.

32    It recorded its conclusions at [153]-[166]. Those conclusions, on each of Mr Engida’s claimed injuries, were:

(1)    Right shoulder injury – the Tribunal found that Mr Engida did not meet the 10% whole person impairment threshold and therefore did not qualify for permanent impairment compensation pursuant to ss 24 and 27 of the Act.

(2)    Midback (rhomboid) strain – the Tribunal concluded that there was an absence of medical evidence supporting the presence of an ongoing midback rhomboid strain. Accordingly, there was no present liability pursuant to ss 16, 19, 24 and 27 of the Act.

(3)    Depression – having considered the medical evidence relating to Mr Engida’s psychiatric condition, the Tribunal concluded that his condition was more appropriately described as “mild chronic adjustment disorder with anxious and depressed mood”. The Tribunal remitted the determination to Linfox for consideration of whether the right shoulder pain was attributable to the psychiatric condition and whether Mr Engida’s employment with Linfox made a significant contribution to the injury.

33    The Tribunal referred to a number of other injuries which Mr Engida had mentioned in submissions and evidence. It found that Mr Engida had not made claims against Linfox for lower back, neck or thoracic spine injuries. Linfox had, therefore, not made a decision accepting or rejecting liability in respect of these injuries pursuant to s 14 of the Act. In the circumstances, it concluded that Linfox had no liability to determine Mr Engida’s entitlement for permanent impairment compensation pursuant to s 24: see Australian Postal Corporation v Oudyn (2003) 73 ALD 659 and Lees v Comcare (1999) 56 ALD 84. Accordingly, the injuries could not be considered in the Tribunal’s review.

34    In light of its findings, the Tribunal:

(1)    affirmed the reviewable decisions made on 25 February 2013 holding that Linfox had no present liability to pay permanent impairment and non-economic loss compensation pursuant to ss 24 and 27 of the Act relating to the mid-back (rhomboid) strain and right shoulder injuries;

(2)    set aside the reviewable decision made on 25 February 2013 to the extent that mild chronic adjustment disorder with anxious and depressed mood was substituted for the diagnosis of depression; and

(a)    remitted the remainder of the decision pursuant to s 43(1)(c)(ii) of the AAT Act to Linfox to decide its liability pursuant to s 14 of the Act by way of reconsideration, in accordance with the reasons recorded; and

(b)    in the event of Linfox accepting liability for the condition of mild chronic adjustment disorder with anxious and depressed mood recommended that it determine its liability for payment of compensation pursuant to ss 24 and 27 of the Act; and

(3)    affirmed the reviewable decision made on 24 April 2013 which found no present liability on the part of Linfox for payment of compensation pursuant to ss 16 and 19 of the Act with respect to the mid-back (Rhomboid) strain.

the appeal

35    Mr Engida’s draft notice of appeal identified the following questions of law in respect of the appeal:

“1.    Decision violates Section 28 of the Act. According to Section 28 paragraph 4 of the SRC Act of 1988, the provisions of the approved guide, i.e., Guide 2.1 edition, are binding on the Administrative Appeals Tribunal in its review of assessments.

…

2.    According to SRC 1988 s24 and s27 a 10% assessment of permanent impairment and Non-Economic lost (sic) is required for one to be entitled for compensation.

…

3.    Whether the Respondent should be responsible for injuries sustained by employees before 24 July 2007, when it acquired the business along with the employees from the former owner, Westgate Pty Ltd. I contend that the Respondent should be responsible, as it has received all of us employees with all of our rights and duties since we have not concluded any new agreement with the Respondent.

4.    For affirming the decision made on 24 April 2013, which found no present liability for payments of compensation pursuant to s 16, and s 19 of the SRC 1988 Act. The Tribunal to affirmed (sic) the Linfox decision was (sic) just took account by single sided evidence.

…

5.    The Respondent has not rejected my claim pursuant to SRC s16 and s19 since August 2010 to 24 April 2013 as I have recovered full from the injuries I sustained. The reason to stop paying me the compensation was pursuant [to] s 58 SRC act as follow (sic). The Tribunal states that LINFOX/CJU (sic) had written a letter to the applicant requesting for an information on all employment and earnings as well as medical information from three doctors [Paragraph 59]. However, I received no such letter and the respondent didn’t present their evidence of a letter whether I have received.

…

(6)    According to SRC 1988 s 59 1a I have requested to the respondent documents to be supplied. However it was not supplied on time or not full requested documents.

6.    According [to] s 13 SRC 1988 parts of the documents provided to the Tribunal were included with false and misleading information’s (sic)…”

36    The requirement that appellants identify relevant questions of law when prosecuting appeals from the Tribunal arises from the terms of s 44 of the AAT Act. Any appeal must be “on a question of law”. As a result “[t]he existence of a question of law is … not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself”: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1070 (Gummow J). For some time this Court adopted a strict approach when respondents challenged the competency of appeals because appellants had failed to identify questions of law with precision. Such a failure led in many cases to the upholding of the objection to competency or the Court itself framing a question or questions of law to found its jurisdiction: see, for example, Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60. More recently, this approach has been reviewed. In Haritos v Commissioner of Taxation (2015) 233 FCR 315 a Full Court said, at 350:

“92.     We agree with Ryan J in Lambroglou that merely to assert that the Tribunal erred in law in making a particular finding is not to state a question of law. We also agree with the later statement by Ryan J, at 527, that: “[I]t simply begs the question of law to commence it with the words ‘whether the Tribunal erred in law’. If the question, properly analysed, is not a question of law no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law” (emphasis added). But this is not to say that it is impermissible to commence a question of law for the purposes of s 44 with the expression ‘whether the Tribunal erred in law’ if that is given sufficiently precise content by what follows.

93.    We also agree there would be a deficiency in a notice of appeal if the asserted questions of law did no more than invite the Court to embark on a broad and hypothetical enquiry as to the construction and operation of statutory provisions: Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 at [24] per Keane CJ, Finn and Gilmour JJ.

94.    In our opinion the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.”

37    I am mindful that Mr Engida is not legally qualified and, unsurprisingly, encountered difficulty in crafting the questions of law which were the subject matter of his appeal. Form must not be allowed to prevail over substance. In arguing his case Mr Engida said sufficient to suggest the existence of questions of law as to the basis upon which his whole person impairment was assessed, the relevance of earlier work injuries in assessing his current entitlements and whether the Tribunal had afforded him procedural fairness. In these circumstances I consider it appropriate to deal with each of the grounds raised by Mr Engida.

38    Mr Engida also had difficulty in framing his grounds with precision. They were presented as submissions and, in parts, appeared incomplete. Linfox made an attempt to distil the essence of these “grounds”. It propounded four grounds. They were that:

    The Tribunal failed to assess Mr Engida’s impairment in accordance with the correct edition of the Comcare Guide.

    The Tribunal failed to take into account earlier work injuries.

    Complaints about issues stemming from ss 58 and 59 of the Act.

    The Tribunal committed “an error of law” in accepting “one sided evidence” in relation to evidence regarding Mr Engida’s assessment of the level of permanent impairment.

39    At the hearing, Mr Engida largely accepted Linfox’s summary of his grounds and argued his case accordingly.

40    Linfox contended that each of the grounds lacked substance and did not afford Mr Engida any reasonable prospect of success in his proposed appeal.

The Correct Edition of the Guide?

41    In affirming the decision that Linfox had no present liability for payment of permanent impairment and non-economic loss compensation in respect of Mr Engida’s right shoulder injury, the Tribunal substantially relied on the findings of Dr David Fish, a consultant occupational and environmental physician.

42    Linfox arranged for Dr Fish to conduct an examination of Mr Engida on 12 September 2012 to determine whether Mr Engida had a whole person impairment (WPI) in accordance with criteria prescribed in the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”). Dr Fish provided a report on 10 October 2012 and a supplementary report on 12 November 2013. Adopting the methodology found in the relevant tables in Chapter 9.11 of the Guide in relation to Mr Engida’s right shoulder injury, he assessed Mr Engida’s WPI as 6%.

43    Mr Engida claimed that Dr Fish’s assessment was made in accordance with the 2nd Edition of the Guide, rather than Edition 2.1, which was the edition of the Guide, approved pursuant to s 28 of the Act, at relevant times.

44    Linfox submitted that Dr Fish had made his assessment in accordance with the correct edition of the Guide. It referred to the following paragraph in Dr Fish’s report of 10 October 2012:

“What is the overall percentage WPI resulting from the injury as assessed in accordance with correct table within the Guide 2.1

I assessed his permanent impairment pursuant to the Comcare Guide to the assessment of the degree of permanent impairment 2nd Edition.”

45    Linfox contended that, although Dr Fish referred to the “2nd Edition”, he had applied Edition 2.1 and had been guided by the appropriate tables in that edition.

46    Mr Engida’s claim for payment of permanent impairment and non-economic loss compensation was made pursuant to ss 24 and 27 of the Act, which relevantly provide:

24 Compensation for injuries resulting in permanent impairment

(1)    Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

…

(5)    Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

…

27 Compensation for non-economic loss

(1)    Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.

(2)    The amount of compensation is an amount assessed by Comcare under the formula:

where:

($15,000 x A) + ($15,000 x B)

A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and

B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.

47    Section 28 of the Act deals with approved guides and provides:

28 Approved Guide

(1)     Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:

(a)    criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;

(b)    criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and

(c)    methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.

(2)    Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.

(3)    A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister.

48    The Minister, acting under s 28, approved Edition 2.1 of the Guide on 2 November 2011. The instrument of approval was registered on 16 November 2011. It took effect from 1 December 2011. The instrument revoked the approval of the 2nd Edition of the Guide.

49    Mr Engida was not able to identify any material difference between the 2nd Edition of the Guide and Edition 2.1. The Tribunal found that Dr Fish had used Edition 2.1 of the Guide. It said, relevantly, at [82]:

“Doctor Fish also assessed whether [Mr Engida] had a whole person impairment (WPI) pursuant to the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (the Comcare Guide). In relation to the right shoulder, applying table 9.11, he assessed WPI at 6 per cent. Although the applicant has not made any claim for his neck, Doctor Fish reported he did not find any impairment of the applicant’s cervical spine.”

50    Apart from the statement recorded above at [44], there was no evidence to suggest that Dr Fish had had resort to the incorrect edition of the Guide. Doctor Fish’s reference to the 2nd Edition of the Guide occurred in the course of answering a question, posed for his opinion, about Mr Engida’s level of impairment. The opinion was to be based on an assessment, made in accordance with the figures in Table 9.11.1 (a), (b) and (c) in Edition 2.1 of the Guide. Dr Fish’s written answer may well be attributable to a typographical error. Whether that be so or not the apparent error was of no moment: even had Dr Fish resorted to the 2nd Edition by mistake, that mistake would not have provided a sound basis for impugning his assessment because the figures in Table 9.11.1 (a), (b) and (c) for assessing the level of Mr Engida’s whole person impairment, caused by his shoulder injury, were identical in both editions.

51    For this reason, it was open to the Tribunal to rely on Dr Fish’s assessment in determining Mr Engida’s entitlement to permanent impairment compensation. It did not err by doing so.

Earlier work injuries

52    Mr Engida submitted that the Tribunal had failed to take into account earlier injuries, which he had sustained during his employment at Westgate and for which he contended Linfox was responsible.

53    The Tribunal summarised Mr Engida’s earlier work injuries as follows:

“9.    On 24 April 2006 the applicant was employed by Westgate Logistics (Westgate). On that day, he suffered injuries to his left shoulder and both knees. A report of those injuries was completed by him and found in the documents received from Westgate (Exhibit R6). The circumstances of the injuries are difficult to interpret from the report however it would appear that he fell in between a trailer and ramp when the trailer was moved forward at the employer’s premises. A certificate from Doctor Emezie, dated 20 May 2006 recorded the injuries upper back/shoulder pain post workplace accident. The diagnosis of injury is recorded as back injury. The treatment/medication is described as analgesia. Doctor Emezie certified incapacity between 26 and 27 April, between 8 and 11 May and 17 May. He also certified the applicant fit for light duties between 18 and 31 May 2006.

10.    On 6 August 2007 the applicant again reported injury when employed by Westgate. A file received from Westgate contains a report of the injury which describes him suffering a strain in his lower back after lifting a can of dog food. The report records he experienced sharp pain. A certificate from Doctor Emezie dated 9 August 2007 records that the applicant can now resumme (sic) work since the initial pain issues has significantly reduced and is clinically able to continue his normal work on the 10/08/07 (Exhibit R7).

11.    Westgate’s liability was subject to the Accident Compensation Act 1985 (Victoria) and processed under the Victorian Work Cover Compensation Scheme.

12.    [Linfox] is an eligible corporation and holds a licence to accept liability and manage compensation claims under the Act on behalf of its employees. It acquired Westgate after the applicant suffered the above injuries. The applicant did not know the date of the acquisition but he essentially continued to undertake the same work, as a picker, which involved him manually lifting packaged goods from shelving and loading them, either onto pallets or into cages which were then lifted, using a lifting device known as a tugger, onto trucks which distributed those goods to various retail outlets.”

54    The compensation claims, which were the subject of the Tribunal’s review, concerned injuries to Mr Engida’s right shoulder and upper back. The injuries sustained while Mr Engida was employed by Westgate related to injuries to the left shoulder, upper back and lower back. The Tribunal made the following observations about the relevance of the Westgate injuries:

“124.    The applicant made three compensation claims upon the respondent in February, July and August 2008. Excepting the permanent impairment application, which was lodged much later on 14 May 2012 by his former solicitors, the three claims in 2008 were confined to reports of injury affecting his right shoulder and his upper back.

125.    The first claim form reporting an injury to his right shoulder, disclosed a previous shoulder injury with a query whether the same shoulder was injured in previous employment with Westgate.

126.    Documents lodged in respect of the prior compensation claim with Westgate (Exhibit R6) record a left shoulder injury on 24 April 2006. There is no evidence of the applicant ever having suffered a prior right shoulder injury. There is no evidence in this review of any incapacity or entitlement to compensation in respect of the left shoulder. The left shoulder was never claimed within the employment of Linfox.

127.    The Westgate compensation documents and associated medical certificates recorded [the] applicant also suffering an upper back injury, being one of the injuries claimed as arising out of the employment with Linfox.

128.    The applicant suffered injuries also when employed by Westgate on 6 August 2007 (Exhibit R7). The report of injury records experiencing sharp pain in lower back when lifting a can of dog food (I will assume the applicant was lifting cartons of dog food whilst picking). The claim for compensation completed by the applicant records him having suffered injury to his lower back.

129.    In this review, the applicant agreed he had not ever made a claim upon the respondent for lumbar injury (although a claim for permanent impairment compensation in respect of that injury was made).

130.    The applicant was vehement in his submission that the Respondent, having acquired the business of Westgate, was responsible for the left shoulder injury that he suffered in his former employment. Whilst that contention has no legal validity, it need not be determined, because he injured his left shoulder with Westgate and his right shoulder with Linfox. He did not contend that the upper back and lower back injuries with Westgate were the responsibility of, or were aggravated within his employment with the respondent.”

55    Mr Engida accepted that he was not asserting any entitlement to compensation for a left shoulder injury. He claimed that the injury he suffered to his lower back on 6 August 2007 occurred while he was employed by Linfox and not by Westgate.

56    Mr Engida further argued that the Tribunal should have provided its reasons for concluding, at [130], that his “contention [that Linfox was responsible for the left shoulder injury he suffered during his employment with Westgate] has no legal validity”.

57    It was not necessary for the Tribunal to form a concluded view on this matter as it ultimately found that the claims, the subject of its review, did not concern any injuries which were sustained by Mr Engida while he was employed with Westgate. It may, however, be observed that, unlike Linfox, Westgate was insured under the Victorian workers’ compensation scheme. The claims, made by Mr Engida in respect of injuries sustained by him whilst he was employed by Westgate in 2007, had been dealt with to finality under the Victorian scheme.

58    The Tribunal did not err by basing its decisions on injuries sustained in 2008 when Mr Engida was employed by Linfox and to which the reviewable decisions related.

Issues arising under ss 58 and 59 of the Act

59    Mr Engida claimed that, in August 2010, Linfox wrote to him and advised him that, by reason of his failure to provide a response to documents requested in a letter sent in June 2010, his claim was suspended under s 58(3) of the Act. Mr Engida denied receiving any correspondence in June 2010 requesting the provision of documents.

60    Linfox submitted that the concerns relating to ss 58 and 59 were not raised before the Tribunal. Mr Engida asserted that he made oral submissions about these matters during the hearings on 24 July 2014 and 11 November 2014.

61    The only reference to the suspension in the Tribunal’s reasons appears at [59]:

“On 18 August 2010 the claims agent wrote to the applicant (pages 736 – 737) and advised him, that by reason of him having failed to provide the documents requested in the letter dated 24 June 2010, his claim was suspended pursuant to s 58(3) of the Act until the information is provided.”

62    Section 58 of the Act provides:

58 Power to request the provision of information

(1)     Where a relevant authority has received a claim and is satisfied that the claimant:

(a)    has information or a document that is relevant to the claim; or

(b)    may obtain such information or a copy of such a document without unreasonable expense or inconvenience;

the relevant authority may, by notice in writing given to the claimant, request the claimant to give that information or a copy of that document to the relevant authority within 28 days after the date of the notice or within such further period (if any) as the relevant authority, on the request of the claimant, allows.

(2)     A claimant who has received a notice under subsection (1) shall be taken to have complied with the notice if the claimant gives the relevant authority the information or document specified in the notice within 28 days after the date of notice or within such further period (if any) as the relevant authority has allowed.

(3)     Where a claimant refuses or fails, without reasonable excuse, to comply with a notice under subsection (1), the relevant authority may refuse to deal with the claim until the claimant gives the relevant authority the information, or a copy of the document, specified in the notice.

63    None of the applications for review lodged by Mr Engida with the Tribunal sought a review of a decision under s 58. In any event, under s 60 of the Act, a decision made under s 58(3) is not a decision reviewable by the Tribunal.

64    The Tribunal’s failure to deal with any application in relation to a decision made under s 58 could not and did not give rise to any error on the part of the Tribunal.

“One sided evidence”

65    Mr Engida claimed that the Tribunal unfairly preferred the medical evidence submitted by Linfox over the evidence given by his medical witnesses. He claimed that he had been assessed by 13 doctors and that the Tribunal had only relied on 38% of the medical reports that had been provided to it. Mr Engida objected to the Tribunal’s reliance on Dr Fish’s evidence and the rejection of the evidence of one of his medical witnesses, Mr Myers, a general surgeon.

66    Mr Myers conducted an examination at the request of Mr Engida’s former solicitors on 18 June 2013. He provided four reports dated 24 June 2013, 2 October 2013, 17 June 2014 and 30 June 2014. Mr Myers assessed Mr Engida’s right shoulder injury as amounting to 11% WPI. Mr Myers also conducted permanent impairment assessments for Mr Engida’s cervical spine and lumbar spine. He concluded that Mr Engida suffered 8% WPI for each injury.

67    The Tribunal noted that:

“92.    In [Mr Myers’s] first report, Mr Myers assessed the right shoulder injury as causing an 11 per cent WPI. In his reports of 2 October 2013 and 17 June 2014, which are both identical he concluded that the applicant had suffered a 25 per cent WPI, being 8 per cent for the cervical spine, 8 per cent for the lumbar spine and 11 per cent for the right shoulder.”

68    The Tribunal gave the following reasons for its reliance on Dr Fish’s evidence in relation to Mr Engida’s permanent impairment claim in respect of his right shoulder injury:

“156.     Doctor Fish who assessed on a medico-legal basis on behalf of the respondent was satisfied the applicant did have continuing discomfort in his right shoulder and assessed a WPI at 6 per cent pursuant to table 9.11 of the Comcare Guide. However, entitlement to compensation pursuant to s 24 of the Act will be enlivened only if the degree of permanent impairment is 10 per cent or more.

157.     Mr Myers assessed the applicant and found he had an impairment of 11 per cent. I regret that I found the evidence of Mr Myers, a general surgeon, to be confusing and difficult to comprehend. Unfortunately, Mr Myers understood that the applicant had injured his right shoulder in his prior employment with Westgate and relied on multiple events, with both employers, in reaching his conclusions. Doctor Fish has practised for many years in occupational medicine and has appropriate qualifications. I found his evidence to be sound and balanced. Accordingly, despite the continuing presence of right shoulder pain and discomfort, which I am satisfied has a continuing relationship with his former employment with the respondent, the finding of 6 per cent WPI, being below the minimum the 10 per cent threshold, does not entitle compensation pursuant to s 24 of the Act.”

69    The Tribunal thus considered the evidence of both Dr Fish and Mr Myers and provided reasons for its rejection of Mr Myers’s evidence, in part because it was “confusing and difficult to comprehend”. In these circumstances, it was open to the Tribunal to prefer the evidence of Dr Fish in determining whether Mr Engida’s right shoulder injury met the required whole person impairment threshold.

70    Mr Engida referred in his submissions to the permanent impairment assessments made by Mr Weaver, an orthopaedic surgeon, and Dr Serry, a consultant psychiatrist. Neither of these doctors was called at the hearing. The Tribunal considered the evidence of Dr Serry. A summary of his evidence is at [103] of the Tribunal’s reasons and the evidence provided by him was considered by the Tribunal in its favourable conclusion about Mr Engida’s psychiatric condition: at [161]-[166].

71    In relation to the other medical witnesses, as is evident from the summary of evidence in its reasons at [61]–[120], the Tribunal carefully considered the significant body of medical evidence before it. No specific reference is made to Mr Weaver’s evidence other than a reference to advice Mr Engida claimed to have received from him about bone issues: at [66]. The report provided by Mr Weaver was, however, based on an examination conducted on 14 September 2011. The reports prepared by Mr Myers were based on an examination conducted on 18 June 2013. Accordingly, the evidence of Mr Myers, upon which Mr Engida primarily relied, effectively superseded the report of Mr Weaver. It is, therefore, understandable that the Tribunal would give more attention to the later reports.

Alleged denial of natural justice

72    Mr Engida contended that he had not had a fair hearing before the Tribunal. He referred specifically to the Tribunal’s refusal to grant him an adjournment of the proceeding to accommodate the availability of one of his witnesses and to the Tribunal’s refusal of his request to rely on supplementary documents at the hearing.

73    The hearing was initially fixed for June 2014. Following the fixing of the hearing date, Linfox requested that the hearing be adjourned to facilitate the attendance of one of its medical witnesses, Associate Professor Mendelson. Mr Engida opposed the adjournment because one of his medical witnesses, Dr Mai, his general practitioner, would not be available after June. The Tribunal decided to adjourn the hearing to 22 July 2014.

74    Despite Mr Engida’s earlier advice that Dr Mai would not be available in July, he later informed the Tribunal that Dr Mai would be able to give evidence on 24 July 2014.

75    On the morning of 24 July 2014, Mr Engida reported to the Tribunal that Dr Mai was having difficulties attending the hearing. He sought an adjournment until Dr Mai arrived. The Tribunal determined to proceed. Despite the difficulties reported by Mr Engida, Dr Mai later became available to attend the hearing, and did so during the afternoon of 24 July 2014. His evidence was received. No denial of procedural fairness occurred.

76    Mr Engida further argued that he had not been treated equally in respect of the presentation of his case. He claimed that:

“Before the hearing day, I have notify (sic) Tribunal I will present my case in mother tongue language prepare it in writing and present it by the help of interpreter and it was accepted.

However, on 22nd of July 2014 the tribunal informed me that it did not want to hear in full the claim that I prepared in writing. If the medical reports that I wanted to submit were already in the T-documents, it has got more than 850 pages of the total evidence and stated that it has already looked at it. Therefore, the tribunal denied me the opportunity to present my claim by supporting with evidences, unless I had documents that were not submitted in the T-documents. But Linfox were able to show why they decided not to accept liability by providing and presenting medical reports and documents from the T-documents. Linfox did not provide any document which was not already submitted and contained in the T-documents. If it is looked at from this point of view the hearing process did not provide both sides with the same opportunities, providing Linfox with more rights while denying my right to present my case supported by evidences.”

77    He also argued that:

“During the hearing, many questions were directed at me by the judge and Linfox I was called and I was ordered to be witness on my case by the Tribunal. I also had some questions prepared to ask Linfox as it was directed by the Tribunal that I can ask questions if there are things I want to ask to Linfox. However, to present my questions, I was denied by the tribunal the right to put forward questions to Linfox.”

78    Mr Engida submitted that he was denied the opportunity to ask the following questions:

“-     All the injuries I claimed were the ones I suffered on upper back, lower back and right shoulder. But Linfox was stating that I was only claiming for the injuries suffered on 13 August 2008. I would like to ask for documented evidence that showed that I only claimed for the injury suffered on 13 August 2008 and that I did not claim for the other injuries.

-    In the decision made on 25/2/2013 (T-document 137 page 192 para 5) Linfox that says ‘Mr Engida lodged a compensation claim for Permanent Impairment and non-economic loss on 27 April 2012 in respect of his ‘right shoulder.’ However, I note that the acceptable compensable injury is in respect of midback (Rhomboid) strain’ what was the reasoning behind stating the injury on my right shoulder as unacceptable non-compensable? What evidence did Linfox provide to describe the two or more injuries that I suffered at work as unacceptable?

-    Linfox should produce evidence showing that my claims for permanent impairment were only for the right shoulder but does not include for lower and upper back injuries.

-    I was assessed first and you have received medical reports from Drs. Toni Kostos (to Linfox), Bruce Love and Weaver before I went to be assessed by Drs Fish and Mendelson. Why did you not provide the reports of the medical specialists to Drs Fish and Mendelson?

-    You have rejected Dr. Mihn Mai’s rating of the permanent impairment through Dr. Fish’s specialist report. Why Linfox ignored or rejected indirectly the findings of Dr. Weaver (specialist) 15% for right shoulder 10-15% for lower back and 10-15% for the upper back permanent impairment percentage. Does it mean that Dr. Fish is above Dr. Weaver? And what is the reason for Linfox not considering Dr. Mayers (sic) report and the percentage given by him 25% (WPI) or why Linfox state clearly ignoring the report?

-    To determine the injury suffered in the lower back on 6 August 2007 was not caused when I was employed under Linfox, when did Linfox acquire Westgate? When did I start my employment under Linfox? If the injury that I suffered was under Westgate, when was Westgate running the place where I sustained the injury of that day? When did Linfox start operating at that workplace? Linfox should provide answers accompanied by documented evidences.

-    If Linfox is not taking responsibility for the injuries sustained while employed under Westgate, it should provide legal and documented evidence for its decision. When Linfox transferred us from Westgate and employed us under its management if Linfox had informed us that it was not taking any liability for the injuries suffered under Westgate and we accepted it and agreed to work, could any documented evidence be provided?

-    As per the letter on August 2010 in order to make the following decision ‘because I did not reply within 28 days (as Linfox said) to the mail sent by Linfox in June 2010, pursuant to S58 SRC 1988 the compensation payment process has been stopped’ – Pursuant to S58 it makes it clear that the letter should not only be sent, but should also be received and a reply provided within 28 days; if not the compensation would not be paid until the respondent gives a reply. I did not receive the said letter. What evidence could Linfox present on whether the letter has been delivered or whether I received but didn’t reply? Is it because if the letter was not given to me or I did not receive it, pursuant to S58, the law would not allow Linfox from not paying any compensation?

-    Through my solicitors Nowicki Carburn (sic) the requested document was made available to you in October 2010. Pursuant to S 58 while the requested document was provided why didn’t it rule that the discontinued payment continue? However, Linfox did not pay the compensation based on the legal requirements until the decisions of 2013. Why couldn’t Linfox obey the law and fulfil its obligations?

-    The requirements that I was asked to fulfil by June 2010 were to provide my income since I suffered the injury to the time the letter was written. Why was this question needed to be asked when it is obvious that I was only working for Linfox and I do not have any other income? I was also asked to provide the medical condition of the injury since the time I had the injury to the time the letter was written. I do not have any medical condition that Linfox do not know. Why was I being asked to provide something out of nowhere? When it was proper and easier via Linfox to get the reports directly from the doctors that I have been seeing and particularly from the doctors mentioned in the reports, why was I needed to produce them?

-    The s58 SRC 1988 stated it clear the request should be made if there are things not provided not presented to Linfox. Therefore in order Linfox to deny compensated (sic) me there should be evidence I have hide things from Linfox while it must be presented. In this case what did I fail to provide to Linfox as it is available in my hand? Linfox must have evidence in order to prove I am denying evidences not to be discovered by Linfox. In this case Linfox have the right not to compensate me otherwise if Linfox has not such things I should not be denied the compensation payment. And Linfox must present the proof in order to act according s58. So what is the proof?

-    Pursuant to s59 I repeatedly requested documents from Linfox I needed but I was not given. Why was Linfox exempt from the requirements pursuant to s59 SRC1988.

-    On 3 December 2013 you offered me $50,000.00 and to close the case. If the injuries are not fit to be compensated, why did you (Linfox) offered this amount of money? What was the reason behind this offer of money?”

79    He did not identify, in his written submissions, the witnesses to whom he would have wished to put these questions.

80    The Court faced considerable difficulty in comprehending and assessing these complaints. No transcript of the hearing before the Tribunal was available. There is also a considerable risk that, as a result of language difficulties, Mr Engida had an imperfect understanding of what transpired during the hearing. His claim, for example, that “the tribunal informed me that it did not want to hear in full the claim that I prepared in writing” suggests that he had prepared and provided to the Tribunal written submissions and that the Tribunal, having examined them, told him that it did not require him to develop these submissions in full. Had such an intimation been given it may well have resulted from the Tribunal forming a view that parts of the written submissions covered matters which did not fall for its determination. Such an understanding is consistent with what the Tribunal said at [8] of its reasons (quoted above at [30]) and some of its observations which are recorded above at [33]. Speculation of this kind is necessary because no written submissions to the Tribunal, prepared by Mr Engida, were before the Court.

81    Having examined the Tribunal’s reasons and the submissions of the parties I am not persuaded that Mr Engida was prejudiced by any “practical injustice” (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ)) in presenting his case. Mr Engida appears to have prepared lengthy written submissions and may have provided them to the Tribunal. His account of what he was told by the Tribunal on 22 July 2014 is consistent with him being advised that the Tribunal had read the submissions and the T documents and was familiar with them and did not require Mr Engida to go through each of the medical reports or other documentary material appearing in the bundle. The Tribunal’s reasons recorded that the hearing included a full day during which submissions were made: at [115]. I infer that Mr Engida was given an opportunity to make oral submissions during that time. There is nothing, even on Mr Engida’s account, to suggest that the Tribunal precluded him from referring to any of the documents. There was no asymmetrical treatment of the parties.

82    Many of the “questions” which Mr Engida said that he wished to ask unnamed Linfox “witnesses” were argumentative and propositional in nature. They raised matters which, to the extent to which they were relevant, could have been, and may have been, addressed in submissions. He was able to question each of the witnesses called by Linfox. The evidence of those witnesses was considered by the Tribunal.

83    In reaching its decision the Tribunal did not rely on the evidence of any witness who had not been called to give evidence apart from Dr Serry. Dr Serry’s report was tendered by Mr Engida and it was Linfox who was denied the opportunity to cross-examine the witness, as noted by the Tribunal at paragraph [162] of its reasons for decision.

84    So far as can be ascertained on the available material the Tribunal did its best to ensure that Mr Engida had a fair opportunity to advance his case. The events concerned had occurred many years earlier and there was an enormous volume of medical evidence to be sifted and assessed. The Tribunal familiarised itself with the documentary material. It heard the witnesses who Mr Engida and Linfox presented. It carefully considered and analysed their evidence.

85    Mr Engida has failed to establish any reviewable error arising from the manner in which the Tribunal conducted the hearing.

DISPOSITION

86    None of the grounds relied on by Mr Engida has been successful. Some were, however, arguable.

87    Leave to appeal should be granted but the appeal must be dismissed with costs.

Associate:

Dated:    8 July 2016