FEDERAL COURT OF AUSTRALIA

K&S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

Introduction

1    This is an appeal, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), against a decision of the Administrative Appeals Tribunal (the Tribunal), wherein the Tribunal set aside a decision of the applicant K&S Freighters Pty Ltd and substituted its decision that Mr McQueen-Thomson was entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).

2    Appeals to the Federal Court from the Tribunal pursuant to s 44 are in the original jurisdiction of the Court and are confined to questions of law. K&S Freighters Pty Ltd, in summary, contends that the Tribunal made two fundamental errors of law: first, concerning s 14 of the SRC Act and, second, concerning s 7(7) of the SRC Act. It identifies the following alleged errors of law:

6.    Did the Tribunal fail to consider a relevant factor or misapprehend the matters of which it had to be satisfied in order to find a liability to pay compensation pursuant to s 14 of the SRC Act?

7.    Did the Tribunal misconstrue and misapply s 5A, 5B and/or s 14 of the SRC Act, in concluding Mr McQueen-Thompson’s left shoulder condition(s) resulted in incapacity for work?

8.    Did the Tribunal misconstrue the phrase ‘purposes connected with his or her employment’ in s 7(7) of the SRC Act?

(Amendment formatting omitted, numbering as per original.)

3    K&S Freighters Pty Ltd seeks to have the matter remitted to a differently-constituted Tribunal to be heard and determined according to law. In doing so it relies on the following grounds of appeal:

1.    The Tribunal erred in law by concluding Mr McQueen-Thomson suffered incapacity for work as a result of a left shoulder condition(s), without considering whether his incapacity for work was the result of ‘an injury’, within the meaning of ss5A (1), 5B (1) and 14 (1) of the SRC Act, as distinct from his non-employment related pre-existing left shoulder ailment that did not constitute such ‘an injury’.

…

5.    The Tribunal erred in law by incorrectly interpreting the phrase ‘purposes connected with’ in s 7 (7) of the SRC Act in finding that a representation made on a worker’s compensation claim form submitted to his employer was not a representation ‘for purposes connected with’ his employment.

(Amendment formatting omitted, numbering as per original.)

4    I note the potential for confusion given that “the applicant” in the Tribunal was Mr McQueen-Thomson, but in the appeal “the applicant” is the employer K&S Freighters Pty Ltd (and, of course, there is similarly position reversal in respect of “the respondent”). It is convenient that I refer to Mr McQueen-Thomson as “the employee” and K&S Freighters Pty Ltd as “the employer”, to avoid any confusion.

Background

5    The employee was born in 1953, and has worked most of his life as a professional driver of vehicles including buses, trucks and taxis. He is left-hand dominant. The employee commenced working with the employer in 2005, although prior to then he had worked for a business which was taken over by the employer. The employee ceased working for the employer when he was dismissed on 29 July 2014 as result of a driving incident that had taken place in the preceding week.

6    At relevant times the employee worked at least 55 hours per week including overtime. The employee’s work largely involved “mini bulk tank work”, including the transportation of liquefied refrigerated carbon dioxide (also known as “dry ice”).

7    The employee generally worked with 4-tonne tankers but sometimes also worked with 8-tonne tankers. In the ordinary course the product on the tanker would be unloaded via a hose and pumped into a vessel at the delivery points. Relevantly, hoses used for unloading would be manually connected by the employee either at chest height or shoulder height, depending on the vessels at the delivery point.

8    The employee indicated that the hoses were heavy and that lifting them involved a deal of physical strain. A typical vessel at a delivery point could take between approximately 20 and 25 minutes to fill, and there would be up to four vessels at some delivery points. Once the vessels were filled, the hose would be disconnected and retracted. The employee frequently made up to eight metropolitan deliveries and an additional four country deliveries per day.

9    On 17 December 2012, the employee suffered an injury to his right shoulder. At the time of the injury, the employee was assisting a forklift operator offload a container containing approximately 300kg of product. Because of wet and slippery conditions the employee lost his footing while standing on the side of his truck, and fell onto concrete. The employee continued working and completed his deliveries for the day. At the end of the day, the employee attended at the company doctor, who advised the employee to take several days off work, which the employee did.

10    The employee returned to work throughout December 2012, January 2013 and February 2013, but the pain in his right shoulder persisted. The employee attended his general practitioner at a clinic at Coolaroo in Victoria. The general practitioner recommended that the employee undergo an ultrasound, and the employee did so on 27 February 2013.

11    The employee was subsequently referred to Dr Anita Boecksteiner, an orthopaedic surgeon, who advised the employee that he required surgery for a torn rotator cuff in the right shoulder. At about this time, the employee lodged a claim for compensation from the employer for the injury to his right shoulder. The employee underwent shoulder surgery on 2 May 2013.

12    The employee returned to work on light duties in early July 2013, but was still in pain. At the suggestion of his surgeon, the employee attempted full time driving duties. The employee at first drove trucks making refrigerated carbon dioxide deliveries, but was later put back on mini bulk tanker duties. The employee said that he found the hoses heavy to lift and would feel pain in his right shoulder. As a result, the employee said that he would rely mainly on his left shoulder to take the weight of the hoses and to do most of the lifting and dragging involved. The employee said that he previously had used both arms to perform these actions.

13    In May 2014, the employee developed pain in his left shoulder which he described as a “sharp tooth-ache like pain” while pulling himself into the cabin of a truck. The employee said that the pain would stay for a couple of minutes and then ease. The pain would occur when the employee used his left shoulder for lifting or when the employee was getting into the cabin of a truck. The employee reported the pain to his work in the week of 26 May 2014. The employee said that he was unclear about how to report his left shoulder injury because there was no specific event that had brought on the pain.

14    The employee lodged a claim for compensation in respect of his left shoulder on 5 June 2014. The employer denied the claim on 30 June 2014. By statement dated 26 June 2015 the employee sought review of the employer’s decision in the Tribunal.

medical evidence BEFORE THE TRIBUNAL

15    Numerous medical practitioners gave evidence before the Tribunal.

16    Dr Mui Kak Lim was the employee’s general practitioner who worked at the Coolaroo clinic. Dr Lim gave evidence that his notes recorded a consultation with the employee on 29 June 2010, in which he noted that the employee had poor range of abduction in his supraspinatus and made a differential diagnosis of a rotator cuff injury. Dr Lim referred the employee for imaging, which revealed a full thickness tear in the supraspinatus. On 17 July 2010, Dr Lim referred the employee to an orthopaedic surgeon.

17    Dr Slesenger is a specialist occupational physician who was consulted by the employee from 2009. Dr Slesenger prepared a report on 13 December 2015 at the request of the employee’s legal representative in which Dr Slesenger stated that the employee had sustained a left shoulder supraspinatus tear and acromioclavicular joint arthritis. Dr Slesenger also states that there was evidence of adhesive capsulitis. Dr Slesenger also reported on the condition of the employee’s right shoulder, concluding that the employee had osteoarthritis at the acromioclavicular joint, a rotator cuff tear and bursitis and had responded reasonably well to surgical intervention. Dr Slesenger considered that the employee’s left shoulder impairment dated back to 2006, and that the activities of 2012 aggravated this pre-existing left shoulder impairment. Dr Slesenger also opined that the employee’s right shoulder impairment was secondary to the injury in December 2012, which in turn further aggravated his pre-existing left shoulder impairment.

18    Dr Michael Khan is an orthopaedic surgeon who examined the employee on 15 April 2015, and made reports dated 4 June 2015 and 1 December 2015. Dr Khan stated that the employee’s left shoulder movement was limited at the time of the examination and also noted that the employee continued to experience symptoms in his right shoulder, despite the surgery. Dr Khan’s opinion was that the employee had a left shoulder condition that was contributed to by his employment with the employer. Dr Khan noted pre-existing degenerative changes in the left acromio-clavicular joint and glenohumeral joint which gradually flared up when the employee returned to work after the surgery to his right shoulder as a result of mainly using his left shoulder in work activities. In his second report, after reviewing reports from Dr Powell and x-rays from 2010, Dr Khan’s opinion was that the employee had pre-existing degenerative arthritis and a large bone spur which were further aggravated following the surgery to his right shoulder as a result of the employee’s work with the employer.

19    Dr Gerard Powell is also an orthopaedic surgeon who examined the employee at the request of the employer on 27 April 2015 and made reports dated 27 April 2015 and 6 July 2015. Dr Powell was similarly of the view that the employee’s employment with the employer played a significant role in the development of the pathologies in both shoulder conditions, especially because of the repetitive overhead use of the employee’s arms during his work. Dr Powell further considered that the mechanism of injury was consistent with his conclusion of a full thickness tear of the supraspinatus being work related. Dr Powell additionally noted that there was no pre-existing history of symptoms relating to the left or right shoulders, other than a “niggle” of pain not requiring specific treatment.

The decision of the tribunal

20    Before the Tribunal, the employee argued that the employer should be required to determine the employee’s specific entitlements to compensation. The employer maintained that the employee was not entitled to compensation because of the operation s 7(7) of the SRC Act, which essentially precludes compensation in the event that an employee makes a wilful and false representation in relation to a disease suffered by an employee or an aggravation of such a disease.

21    In the Tribunal the employee gave sworn evidence, and medical evidence was given on his behalf. The employer called only medical evidence.

22    The Tribunal examined relevant legislative provisions and observed:

68.    I should say at the outset that I am satisfied, on the balance of probabilities that the Applicant has suffered an injury to his left shoulder and that this has resulted in his incapacity for work or impairment.

69.    As I see the matter, the question of the existence of an injury and subsequent incapacity was not in issue. It was not suggested that the Applicant was fabricating his evidence. Nor was it suggested that the Applicant was exaggerating or overstating the nature of his injury. Indeed, the Applicant was described as stoical by one witness.

70.    There are, however, a number of ways of characterising this condition within the terms of the Act. It could be characterised as an injury which is an injury (other than a disease). It could also be characterised as an injury which is a disease. If a disease it could be an ailment or an aggravation of an ailment.

71.    However, even if the Applicant’s left shoulder condition would otherwise be compensable under the Act on whatever basis, it could still fail to be compensable if the provision in section 7 (7) of the Act applies so as to exclude him.

23    The Tribunal noted that the employee had referred to two specific incidents of sharp pain occurring in May 2014, but also had regard to the employee’s evidence that he was unclear as to how to report his injury because he could not pinpoint a specific event which precipitated it such as a fall or an accident in the ordinary sense (at [75]). The Tribunal was not satisfied that the incidents of May 2014 were occasions of an injury simpliciter.

24    The Tribunal relied in particular on the evidence of Mr Khan, whom the Tribunal described as an orthopaedic surgeon of great experience and ability, and said:

83.    I accordingly find on the basis of Mr Khan’s evidence that in May 2014 the applicant had pre-existing degenerative changes in the left acromio-clavicular joint and glenohumeral joint. These flared up when he eventually returned to work following right shoulder surgery. This is in accord also with the account given by the Applicant in his evidence.

84.    As has been noted, Mr Khan is of the view that the Applicant has developed severe impingement of the supraspinatus tendon with a tear and a flare-up of degenerative tendinopathy in the supraspinatus, infraspinatus and the biceps tendons as well as flare-up of pre-existing asymptomatic acromio-clavicular joint degeneration.

25    At [88] the Tribunal found:

88.    The conditions described by the medical witnesses, in my view, satisfy the definition of an injury as a disease and, on this basis, the Applicant suffered either an ailment or an aggravation of an ailment which, on whoever basis, is compensable if the provision in section 7 (7) of the act does not exclude his claim.

26    The Tribunal went on to consider the provisions relating to aggravation of the employee’s ailment, and found that there was some degree of ambiguity in the medical evidence. The Tribunal member found at [94]-[95] that on one analysis, the left shoulder condition would qualify as an ailment arising out of or in the course of employment, being a physical ailment defect or disorder (whether of sudden or gradual development); however, on another analysis, the evidence supported a view that the employee suffered an aggravation of an ailment, namely by way of an acceleration or recurrence of a pre-existing condition in the left shoulder also arising out of or in the course of his employment. Notwithstanding this ambiguity, the Tribunal was satisfied that the medical evidence supported a finding that the employee’s left shoulder condition was compensable as a disease under the SRC Act. The Tribunal stated:

97.    The disease I have identified has led to the Applicant’s incapacity, in that he cannot do his usual work, leaving aside the question of his later dismissal. I accept his evidence that he cannot drive trucks, which has been almost his lifelong pursuit.

98.    For these reasons, the Tribunal concludes there is an injury within the meaning of the Act causing incapacity. The fact that this left shoulder condition arose out of or in the course of his employment, either as an ailment or as an aggravation of an ailment, seems plain beyond doubt on the evidence.

99.    Reference need only be made to the nature of the Applicant’s duties in unloading product from tankers visa hose. The hoses were heavy to lift and imposed a deal of physical strain on the Applicant. I expect the strain in lifting a heavy hose and placing it into position would be considerable. The Applicant could be doing this for as many as 20 or more deliveries a day. He would be using both hands and both shoulders before injuring his right shoulder and undergoing surgery.

27    The Tribunal was also satisfied that the contribution of the employee’s work to his left shoulder condition was significant: that is, substantially more than material. The Tribunal observed:

105.    The medical evidence in the case is, in my view plainly to this effect. Dr Slesenger is specific in saying that the Applicant’s employment with the Respondent was a significant contributory factor to his left shoulder impairment. Dr Powell says that the Applicant’s employment with the Respondent has played a significant roles in the development of the pathologies in both his shoulder conditions.

106.    There is not, in my view any evidence in the case which would cause me to doubt that the degree of contribution was significant.

28    As the employee suffered a disease, s 7(7) of the SRC Act was potentially relevant. The employer’s argument in this respect before the Tribunal was that the employee had falsely circled “No” to question 13 on his claim form dated 5 June 2014, which was a question as to whether the employee had ever experienced similar symptoms, injury or illness.

29    The employee conceded in evidence that he had provided an incorrect response to question 13 on his claim, because he had developed left shoulder pathology and had previously had investigations which revealed a full thickness tear of the supraspinatus. However, the employee gave evidence that when completing this part of the claim form he received assistance from an employee of the employer concerned with injury management, and that in in completing his claim form he had in mind his right shoulder injury which he had been discussing with that employee. The Tribunal noted that the employer did not call the employee.

30    In relation to s 7(7) the Tribunal observed:

116.    The consequences of finding a case made out under section 7 (7) are serious indeed. Bearing that in mind, I consider a case should not be held to be made out under the section unless it is clearly established (Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555).

31    The Tribunal accepted the employee’s contentions in this regard, finding:

117.    The Applicant has an explanation for the answer he gave which, if accepted, is consistent with carelessness or confusion on his part. It does not show the making of a wilful and false representation.

118.    I observed the Applicant carefully when giving his evidence and I am not satisfied I should reject his explanation as untrue, or find that he is lying. In my view, the Applicant was telling the truth, when he said he was confused when he filled out his claim form.

119.    It is clear that the expression in section 7(7) is wilful and false, not wilful or false (Re Wilson and Comcare [1996] AATA 862 at [103]). The Applicant’s answer No to question 13 is wrong, as conceded by him, but I am not satisfied that by merely being wrong, because of confusion, his answer was wilfully false.

120.    I am satisfied with the explanation given by the Applicant, which I accept, and I reject the Respondent’s submission that his answer was wilfully false.

121.    I consider also that the Applicant’s confusion is evident by him not proceeding to question 16 but answering questions 14 and 15, which he answered truthfully. I am unable to see that the Applicant would stand to gain anything out of a deliberately false answer to question 13. There is no the [sic] motivation for him to make a wilfully false answer.

32    Materially for the present application however the Tribunal also found as follows:

122.    In any event, I am not satisfied that, in answering No to question 13, the Applicant was making any representation for purposes connected with his employment. As I see it, his purposes in reality had nothing to do with his employment, except in a necessary factual sense, but were connected with his injury or illness.

33    In conclusion, the Tribunal was satisfied that the employee’s left shoulder condition was compensable under the SRC Act, set aside the decision under review, and substituted a decision that the employee was entitled to compensation. The matter was remitted to the employer for calculation of that compensation.

The legislative framework

34    It was common ground that s 14 of the SRC Act establishes liability on the part of the employer to pay compensation in accordance with that legislation in respect of an injury suffered by an employee if the injury resulted in death, incapacity for work, or impairment.

35    Section 4 of the SRC Act defines “incapacity for work” as follows:

(9)    A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a)    an incapacity to engage in any work; or

(b)    an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

36    Section 5A of the SRC Act defined “injury” for the purposes of the compensation under the SRC Act:

(1)     In this Act:

injury means:

(a)     a disease suffered by an employee; or

(b)    an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

…

37    Section 5B defines “disease”, which is one subset of potentially compensable injuries under the SRC Act, as follows:

(1)     In this Act:

disease means:

(a)    an ailment suffered by an employee; or

(b)    an aggravation or such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2)    In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee’s health.

This subsection does not limit the matter that may be taken into account.

(3)     In this Act:

significant degree means a degree that is substantially more than material.

Further, “ailment” is defined in s 4 of the SRC Act as meaning “… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

38    Section 7 of the SRC Act contains various provisions concerning particular considerations for ‘diseases’. Relevantly for present purposes s 7(7) provides:

A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

Consideration

Ground of appeal 1

39    The first ground of appeal was that:

1.    The Tribunal erred in law by concluding Mr McQueen-Thomson suffered incapacity for work as a result of a left shoulder condition(s), without considering whether his incapacity for work was the result of ‘an injury’, within the meaning of ss5A (1), 5B (1) and 14 (1) of the SRC Act, as distinct from his non-employment related pre-existing left shoulder ailment that did not constitute such ‘an injury’.

40    In summary the employer submitted:

    There was no basis for the Tribunal’s conclusion at [68] that the employee had suffered an injury to his left shoulder which had resulted in his incapacity for work or impairment

    The Tribunal erred at [69] in stating that the existence of an injury and subsequent incapacity was not in issue

    Section 14 of the SRC Act refers to an injury resulting in death, incapacity for work or impairment. Only incapacity is relevant in this case.

    The only comments in the Tribunal’s decision concerning incapacity were at [30], [68], [69] and [97]. The Tribunal’s finding at [97] that the employee cannot drive trucks is the only finding in respect of incapacity.

    While the employer accepts that the employee has an injury, and further that he suffers an incapacity for work, the Tribunal did not squarely engage with the question the Tribunal needed to ask itself under s 14 of the SRC Act read in light of s 4(9) of the SRC Act, namely whether the injury caused the incapacity. It was critical that the Tribunal find that link in light of the evidence of a strong underlying pre-existing problem with the left shoulder, and evidence that the employee continued to work full-time for two months after the workplace injury of May 2014.

41    The employee submitted that:

    In the Tribunal the key issue was whether the employee’s condition was an injury simpliciter, a disease or the aggravation of a disease.

    In the Tribunal the employer argued that the condition of the employee should be regarded as a disease, and therefore he was precluded from claiming compensation by the operation of s 7(7). The employer did not argue any particular fact or circumstance relating to incapacity for work

    The connection between the injury to the employee and the employee’s incapacity was not contested by the employer in the Tribunal. It was for this reason that the Tribunal observed that the issue was not in contention.

    At the end of the discussion concerning disease and in circumstances where the Tribunal rejected the submission that there was an injury other than a disease, the Tribunal made explicit findings at [97] that the employee’s injury was not merely an aggravation of a prior symptomatic ailment, but the result of an employment contribution to the development and the worsening of an ailment. These findings were referable to the precise language of the SRC Act.

42    The employee relies on authorities including Ilsley v Wattly Australia Pty Ltd [1997] FCA 427.

43    In my view the Tribunal did properly engage with the issue required for determination under s 14 SRC Act, namely whether the employee’s incapacity “resulted from” the relevant injury. I have formed this view for the following reasons.

44    First, and contrary to the claims of the employer, I am not satisfied that there was error in the statement of the Tribunal at [69] that “the question of the existence of an injury and subsequent incapacity was not in issue”. Certainly at the hearing of the appeal Counsel for the employer accepted that the employee had an injury within the meaning of the SRC Act, and further that the employee suffered an incapacity within the meaning of the SRC Act (because he could not drive trucks): transcript page 7 lines 40-46. The Tribunal’s use of the word “subsequent” is correct in a temporal sense – the Tribunal found on the material before it that the injury predated the incapacity. While the employer alleges an improper conclusion reached by the Tribunal in respect of the causal nexus between the injury and the incapacity, this is not strictly evidenced by comments of the Tribunal at [69].

45    Second, and as alleged by the employee in the appeal, the primary contentions of the parties in the Tribunal concerned whether the employee had suffered an injury simpliciter to his left shoulder or whether he suffered from a disease, and whether s 7(7) operated to preclude the employee claiming compensation under the SRC Act. So, for example, I note at paragraph [3] of his written submissions dated 25 February 2016 the employee identified issues for determination as:

(a)    Whether the Applicant suffered “an injury (other than a disease)” arising out of his employment when, on or about a day in mid to late May 2014, he suffered the sharp pain while holding the gas hose with his left hand at or above shoulder height?

(b)    Whether employment, over time but particularly in 2014, contributed to the aggravation of the left shoulder ailment to a significant degree?

(c)    Whether those injuries resulted in incapacity for employment at the employee’s normal level.

(d)    If the finding is that the injury by reason of “aggravation of an ailment” to the exclusion of “injury (other than as disease)” then the further question arises on the Respondent’s submission, whether the Applicant made any relevant representation that was both wilfully and false, for the purposes of employment, that he did not previously suffer from a disease, aggravated by the employment in 2014?

46    Further, in written submissions dated 14 March 2016 the employer identified issues for determination as follows:

2.    The Respondent notes and respectfully repeats those issues for determination specified by the Applicant in his Submissions at [3(a)] to [3(d)].

3.    The Respondent accepts that if the Tribunal concludes that the Applicant has suffered an injury simpliciter to his left shoulder (and not ‘a disease’, or ‘the aggravation of a disease’) then the only relevant inquiry will be as to whether that injury resulted in incapacity for work or impairment.

4.    If the Tribunal concludes, as the Respondent submits it should, that the Applicant has suffered an ailment and therefore a disease (and not an injury simpliciter), the Tribunal must determine whether that disease was suffered in circumstances that attract the operation of s 7 (7) of the SRCA.

5.    In such circumstances, only if it concludes that the provisions of s 7 (7) were not attracted will it be necessary to further determine if the disease resulted in incapacity for work or impairment so as to satisfy the compensable requirement in s 14.

6.    As Counsel for the Applicant noted in opening the Applicant’s case the above issues, depending upon the facts found, potentially make important the question of whether there has or not been suffered an “injury (other than a disease)”.

7.    However, significantly for the resolution of the issues in the Respondent’s submission, the Applicant’s submissions now accept that prior to the relevant period of employment there certainly existed an ailment that became aggravated by subsequent employment events.

8.    Thus the condition for which s 14 liability is sought might be (if any):

(a)    an “injury (other than a disease)” [often referred to as ‘a frank injury’ or an ‘injury simpliciter’]

(b)    a ‘disease’ or the ‘aggravation’ of a disease

(c)    a combination of (a) and (b)

(Footnotes omitted.)

47    Paragraphs [9]-[21] of the employer’s submissions related to the nature of the employee’s injury. Paragraphs [22]-[36] related to the operation of s 7(7) SRC Act.

48    The manner in which the contentions of the parties focussed on these issues explains to a significant degree the Tribunal’s focus on the proper characterisation of the employee’s injury. Examining the Tribunal’s decision, the Tribunal set out, at [6]-[30], relevant background facts including events relating to the development of the shoulder pain experienced by the employee and the employee’s claim for compensation. At [31]-[57] the Tribunal explained, in detail, medical evidence before it. At [72]-[98] the Tribunal considered the nature of the employee’s injury, and at [110]-[122] the Tribunal examined the application of s 7(7) SRC Act. This analysis was responsive to the manner in which it appears the parties conducted the case in the Tribunal.

49    Section 14 SRC Act required the Tribunal to determine whether there was a causal link between the injury and the incapacity: Ilsley. This was irrespective of the parties’ focus on other issues in the conduct of the proceedings in the Tribunal. However, it is apparent that, in determining the application and considering the arguments before it, the Tribunal at all times had in mind the question whether there was a causal nexus between the injury and the incapacity, as required by s 14 SRC Act. The employer refers to paragraphs [30], [68], [69] and [97] of the Tribunal’s decision, and it is useful to revisit them:

30.    The Applicant says he kept working on full duties with the Respondent until he was dismissed at the end of July 2014. He says he is still in pain and has not worked since that time because he cannot drive trucks. This is due to his left shoulder being too painful. He does, however, still drive a car. On occasion he also suffers pain in his right shoulder.

…

68.    I should say at the outset that I am satisfied, on the balance of probabilities, that the Applicant has suffered an injury to his left shoulder and that this has resulted in his incapacity for work or impairment.

69.    As I see the matter, the question of the existence of an injury and subsequent incapacity was not in issue. It was not suggested that the Applicant was fabricating his evidence. Nor was it suggested that the Applicant was exaggerating or overstating the nature of his injury. Indeed, the Applicant was described as stoical by one witness.

…

97.    The disease I have identified has led to the Applicant’s incapacity, in that he cannot do his usual work, leaving aside the question of his later dismissal. I accept his evidence that he cannot drive trucks, which has been almost his lifelong employment pursuit.

50    While the Tribunal referred to the statutory language of causation in these paragraphs, a fair examination of the Tribunal’s broader reasoning demonstrates that the Tribunal had regard to both lay and medical evidence supporting a finding that the employee’s inability to drive trucks (that is, his undisputed incapacity) was caused by an ailment aggravated by his employment. I note for example the following observations of the Tribunal referable to that evidence:

79.    I am not reasonably satisfied, therefore, that either the late May or the early May incident was the occasion of an injury simpliciter. The evidence seems to suggest a continuing issue in the left shoulder rather than a specific injurious hurt event.

80.    Both incidents in May 2014 occur against a background of a number of other events including right shoulder surgery some 12 months before. Following this surgery the Applicant returned to work but continued to experience pain in his right shoulder, especially when lifting hoses. As a result, the Applicant said he was using his left shoulder to do the bulk of the lifting and dragging. The Applicant had previously done this using both arms. Using his left arm involved, of course, left shoulder movement.

81.    The Applicant was using his left arm to compensate for a reduced ability to use his right arm. This was due to the right shoulder pain he was experiencing following the shoulder surgery and return to work.

82.    This overuse, as I would describe it, in turn caused a flare up, to use Mr Khan’s expression, of a pre-existing condition in the Applicant’s left shoulder. This was the evidence of Mr Khan. Mr Khan impressed the Tribunal as an orthopaedic surgeon of great experience and ability, whose evidence I should accept.

83.    I accordingly find on the basis of Mr Khan’s evidence that in May 2014 the Applicant had pre-existing degenerative changes in the left acromio-Clavicular joint and glenohumeral joint. These flared up when he eventually returned to work following right shoulder surgery. This is in accord also with the account given by the Applicant in his evidence.

(Emphasis added.)

51    Later, the Tribunal observed:

87.    I am satisfied that, on the evidence, by the end of May 2014 the Applicant had a left shoulder condition best described in the terms set out by Mr Khan. I further conclude that this condition was affected by several incidents occurring in that month. It had, however, already been affected by the Applicant’s overuse of his left arm, making up for loss of use in his right arm after shoulder surgery the year before.

88.    The conditions described by the medical witnesses, in my view, satisfy the definition of an injury as a disease and, on this basis, the Applicant suffered either an ailment or an aggravation of an ailment which, on whichever basis, is compensable if the provision in section 7 (7) of the Act does not exclude his claim.

(Emphasis added.)

52    The conclusory observation of the Tribunal at [97] concerning the employee’s incapacity must be read against the background of the Tribunal’s acceptance of the evidence of aggravation of his underlying disease by the employment. It would be artificial to read the Tribunal’s reasons in any way other than that the Tribunal accepted the employee’s arguments and evidence in support of the causal nexus between his injury and the incapacity. In light of those arguments and evidence, the Tribunal clearly concluded that the employee suffered incapacity for work as a result of a left shoulder condition.

53    The interpretation of the Tribunal’s reasons suggested by the employer in this appeal requires an eye finely attuned to the perception of error, contrary to the well-settled approach explained in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]-[31].

Ground of appeal 5

54    The fifth ground of appeal was that:

5.    The Tribunal erred in law by incorrectly interpreting the phrase ‘purposes connected with’ in s 7 (7) of the SRC Act in finding that a representation made on a worker’s compensation claim form submitted to his employer was not a representation ‘for purposes connected with’ his employment.

55    In respect of this ground of appeal the employer relied on Commonwealth of Australia v Christoffelsz (1988) 18 FCR 415 and Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 304-305. In particular, at 420-421 of Christoffelsz, Neaves J said:

The Tribunal concluded that there was an ambiguity in the meaning of the relevant words in s 29(3). It considered whether there was any extrinsic aid to construction which would assist in resolving the perceived ambiguity but found none. The Tribunal’s reasons for decision then proceeded:

“Thus it is proper to interpret s 29(3) of the Act in accordance with its context in an Act to provide compensation ‘by reason of injury or disease ...’ On that interpretation s 29(3) has no application to a false statement made in circumstances unrelated to the liability of the Commonwealth to pay compensation. In my view the circumstances in which the false statement was made were circumstances related to admission to the superannuation fund and to permanency, although quite what permanency means was not made clear. They were not circumstances related to the liability of the Commonwealth to pay the applicant [respondent] compensation under the Act. I so find; thus s 29(3) of the Act is not relevant.”

In my respectful opinion, the Tribunal’s approach to the question of construction of s 29(3) of the Act which arose for its consideration cannot be accepted….

56    His Honour continued (at 422):

In my opinion, there is no warrant for reading the relevant language of s 29(3) in the restricted sense adopted by the Tribunal. What the provision requires is that the wilful and false representation be made “for purposes connected with his [the employee’s] employment or proposed employment by the Commonwealth”. It is sufficient that the representation be made “at any time”. The words of the provision are ordinary English words and, prima facie, are to be given their ordinary meaning. So read, the meaning of the provision is clear and unambiguous. To require that the representation be made in circumstances related to the liability of the Commonwealth to pay to the employee compensation under the Act is to do violence to the language of the provision in circumstances where there is nothing in the context to require such a departure from the intention of the legislature as disclosed by the ordinary meaning of the words used. To give effect to the unqualified words of the provision does not result in an irrational result calling for some limitation to be placed upon them. Nor does it result in any disharmony between s 29(3) and any other provision of the statute.

57    The employer also relied on observations of the Full Court in Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280 relating to the phrase “connected with”, wherein the Court noted the ordinary meaning of the phrase to concern a relation between things, one of which is bound up with or involved in another.

58    In summary, the employer submitted:

    There is a clear recognition on the part of the legislature that the connection between the cause of a disease and the disease itself can be very difficult to determine, such that Parliament has enacted provisions to assist employees and employers to determine whether or not there is a necessary link to found compensation;

    The flipside of this recognition is that s 7(7) encourages candour or honesty or full disclosure on the part of an employee in relation to any prior incidents they have had of a disease so that the difficult task of establishing whether or not there is a sufficient link between employment and the contraction of a disease or sufficient link between the disease and incapacity can be properly determined;

    Section 7 is not to be read in a narrow way, and certainly not in such a way as to carve out from its reach representations made in the course of a claim form which is submitted for the sole purpose of determining whether compensation is paid and, if so, how much

    The Tribunal erred at [122] where it stated:

I am not satisfied that, in answering no to question 13, the applicant was making any representation for purposes connected with his employment. As I see it, his purpose in reality had nothing to do with his employment except in the necessary factual sense but were connected with his injury or illness.

    The employee made a false statement on a form generated by the employer for the purposes of the employer deciding what, if any, compensation should be paid and what, if any, rehabilitation should be undertaken.

59    It is useful at this point to repeat the relevant observations of the Tribunal:

117.    The Applicant has an explanation for the answer he gave which, if accepted, is consistent with carelessness or confusion on his part. It does not show the making of a wilful and false representation.

118.    I observed the Applicant carefully when giving his evidence and I am not satisfied I should reject his explanation as untrue, or find that he is lying. In my view, the Applicant was telling the truth, when he said he was confused when he filled out his claim form.

119.    It is clear that the expression in section 7 (7) is wilful and false, nor wilful or false (Re Wilson and Comcare [1996] AATA 862 at [103]). The Applicant’s answer No to question13 is wrong, as conceded by him, but I am not satisfied that by merely being wrong, because of confusion, his answer was wilfully false.

120.    I am satisfied with the explanation given by the applicant, which I accept, and I reject the Respondent’s submission that his answer was wilfully false.

121.    I consider also that the Applicant’s confusion is evident by him not proceeding to question 16 but answering questions 14 and 15, which he answered truthfully. I am unable to see that the applicant would stand to gain anything out of a deliberately false answer to question 13. There is no the [sic] motivation for him to make a wilfully false answer.

122.    In any event, I am not satisfied that, in answering No to question 13, the Applicant was making any representation for purposes connected with his employment. As I see it, his purposes in reality had nothing to do with his employment, except in a necessary factual sense, but were connected with his injury or illness.

(Emphasis in original.)

60    The Tribunal’s interpretation of the words “wilful” and “false” is not criticised by the employer. In light of that interpretation, at [117]-[120] the Tribunal made a factual finding that the employee had not made a wilful and false representation in circling the word “No” in answer to question 13, but rather had done so because of his confusion. At [121] the Tribunal noted that this confusion on the part of the employee was exemplified by the employee’s answers to questions 14 and 15. The factual finding of the Tribunal in this respect is not appellable, because it does not involve an error of law.

61    Ground of appeal 5 relates to the reasoning of the Tribunal at paragraph [122]. In my view the criticism by the employer of paragraph [122] is understandable. It is difficult to see how the completion of the relevant form by the employee would not be for purposes connected with his employment, as the Tribunal observed, given that the relevant form concerned an application by the employee for compensation from the employer for an incapacity resulting from aggravation of an ailment in the workplace. However:

    Quite properly, the Tribunal focussed on the issue of wilfulness and falsity of the employee’s conduct in answering “No” to question 13. This approach was entirely consistent with the terms of s 7(7) SRC Act, which primarily focuses on the question whether the employee has made a “wilful and false representation”.

    The Tribunal’s findings of absence of wilfulness and falsity at [117]-[121] were referable to the state of mind of the employee in answering question 13, not the purpose connected with the making of the relevant representation. This approach is consistent with the natural and ordinary meaning of the words “wilful” and “false”.

    It is evident from the reasoning of the Tribunal that its comments in [122] concerning purpose were an addendum to its primary findings concerning the absence of wilfulness and falsity on the part of the employee in completing the form. With respect, the comments of the Tribunal at [122] were unnecessary to its decision, appeared to be by way of afterthought, and were obiter: see, for example, Gaffey v Comcare [2015] FCA 1024; (2015) 239 FCR 76 at [67], [79]; Crick & Bennett [2018] FamCAFC 68 at [67], [74].

    I am not satisfied that any misconstruction by the Tribunal of “purposes of employment” within the meaning of s 7(7) of the SRC Act infected its findings concerning the absence of wilfulness and falsity in the employee’s conduct. Indeed if the comments of the Tribunal in paragraph [122] were omitted, its factual findings in [117]-[121] would remain unaffected.

    The employer has indicated at [32] of its written submissions that a finding of error on the part of the Tribunal in respect of its interpretation of “purposes of employment” does not, of itself, give cause to remit that matter to the Tribunal.

62    Section 7(7) of the SRC Act is triggered in circumstances where the employee has made a wilful and false representation, and where that representation is made for purposes connected with his or her employment. As the employee has correctly submitted, any postscript error of law made by the Tribunal in interpreting the meaning of “purposes connected” with employment would not substantively affect the Tribunal’s finding that s 7(7) was not applicable because of the absence of a wilful and false representation by the employee. In the circumstances this ground of appeal has no merit.

Conclusion

63    The appropriate order is to dismiss the application with costs.

Associate:

Dated:    11 October 2018