Federal Court of Australia
John Holland Pty Ltd v Bartlett [2023] FCA 1030
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal is allowed.
2. The Tribunal’s decision setting aside the reviewable decision and remitting the matter to the applicant for the quantification of entitlements is set aside.
3. The matter is remitted to the Tribunal to be determined according to law.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
O’SULLIVAN J:
1 The applicant, John Holland Pty Ltd, is a licensee under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and is authorised to accept liability to pay and to manage claims for compensation pursuant to ss 108, 108A and 108C of the SRC Act.
2 The respondent commenced employment with the applicant at the Shoal Bay Waste Disposal Facility in the Northern Territory on 1 March 2013. His role is variously described as a ‘machine operator’ and a ‘Level 5 Operator’.
3 In April 2015, the respondent noticed he was suffering from an increasing number of sneezing fits, as well as coughing, a continually runny nose, frequent headaches which could go on for many weeks and lethargy. He was ultimately diagnosed with chronic sinusitis and was referred to various medical specialists.
4 On 15 August 2017, the respondent lodged a claim for Workers’ Compensation in relation to a “chronic sinus infection requiring multiple surgeries”. The respondent claimed that in “working over a period of 5 years’ time at waste Department (Dump) [he] became fatigued developed headache, flu like symptoms, rough throat, sneezing. Constant exposure to air borne dust and pollutants led to chronic sinus infection.”
5 When he submitted his claim for compensation it was without a supporting medical certificate. John Holland informed him he would need to provide one, which he did, albeit in the incorrect form.
6 The respondent was provided with a template of the applicant’s Workers’ Compensation Medical Certificate Form by John Holland.
7 The opinion of the respondent’s treating Ear, Nose and Throat Surgeon that the respondent was unfit for work was provided to John Holland.
8 For numerous periods between 30 April 2015 and 1 November 2017, the respondent obtained and submitted to John Holland medical certificates relating to his incapacity for work.
9 The respondent’s treating doctors variously opined that the respondent was not fit to perform the requirements of his role and he was certified as unfit for work for lengthy periods.
10 On 12 October 2017, John Holland terminated the respondent’s employment on the basis that there were no reasonable adjustments that could be made to the respondent’s role that would allow him to continue his employment.
11 On 12 April 2018, John Holland made a determination rejecting the respondent’s claim for compensation on the basis the condition of which he complained “did not arise out of employment”. This decision was affirmed on 17 June 2018 and the respondent sought review in the Administrative Appeals Tribunal.
12 On 19 December 2019, by way of a consent decision under s 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), John Holland accepted liability under s 14 of the SRC Act for the respondent’s employment related “chronic sinus infection with headaches” (the injury) with a deemed date of injury of 30 April 2015.
13 On 26 February 2020, John Holland determined it was liable to compensate the respondent under s 19 of the SRC Act for periods between 30 April 2015 and 1 November 2017.
14 By a determination dated 31 March 2020, John Holland denied liability for s 19 benefits beyond 2 November 2017. The liability for s 19 benefits was refused because the decision-maker determined that there had not been sufficient compliance with s 54 of the SRC Act, that the medical reports and general medical certificates provided by the respondent did not specify the medical condition that resulted in an incapacity for work and did not assist in identifying the period within which the compensable injury resulted in an incapacity for work. The determination was affirmed on 30 April 2020 (reviewable decision).
15 On 21 May 2020, the respondent applied to the Tribunal for review of the reviewable decision. The Tribunal’s decision in relation to that review made on 19 May 2022 is the subject of this appeal.
Relevant provisions of the SRC Act
16 Central to this appeal is a proper understanding of the interrelationship between ss 4, 5, 14, 19, 53 and 54 of the SRC Act.
17 The legislative scheme established by the SRC Act is concerned with compensating Commonwealth employees and employees of licensees, for injuries arising out of, in the course of, or that were significantly contributed to, by their employment. Since its inception, the SRC Act has given “pivotal importance” to the concept of “an injury”: Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 at 539, [8]. See also Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220 at [9].
18 The liability to compensate an employee under the SRC Act depends on an “injury”. “Injury” is not used in a “global sense” and the structure of the SRC Act assumes that an employee may suffer more than one “injury”: Canute at [10]. The word “injury” is defined in s 5A of the SRC Act.
19 As a preliminary observation, ss 69(a) and s 72(a) of the SRC Act, provide that John Holland, as a licensee, has the same functions as Comcare depending on the scope of its licence:
69 Subject to this Act, Comcare has the following functions, in addition to its other functions under this Act:
(a) to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act;
(b) …
72 In performing the function referred to in paragraph 69(a), Comcare:
(a) shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;
(b) …
20 Section 4(8) of the SRC Act provides that:
A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.
21 Section 5A defines “injury” as meaning, amongst other things:
(a) …
(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 employees employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment.
22 The structure of the SRC Act is such that the SRC Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority in accordance with the requirements of s 53.
23 Section 53 provides:
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) …
24 Notice having been given in accordance with s 53, s 54 provides for the claims procedure:
54 Claims for compensation
(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b) except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.
(4) If a claim relating to an employee is given to Comcare, Comcare must cause a copy of the claim to be given to the principal officer of the Entity, Commonwealth authority or licensed corporation in which the employee was employed at that time.
(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
25 If the claim is accepted, the obligation to pay compensation is found in s 14 of the SRC Act: Woodhouse v Comcare [2021] FCAFC 95; (2021) 285 FCR 14 at [104].
26 Section 14, insofar as relevant, provides:
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) …
27 The respondent in this case referred repeatedly to a claim for compensation under s 14. That is not the case. A claim is made under s 54. The Full Court made clear in Lees v Comcare [1999] FCA 753; (1999) 29 AAR 350 at [34], that a determination under s 14 amounts to no more than a determination that in the circumstances of this case, John Holland “is liable to pay compensation in accordance with this Act” in respect of a particular injury with the amount of compensation and the person or persons to whom the compensation will be payable and the time or times at which the liability gives rise to a present obligation to make payments all being determined under other provisions of the SRC Act.
28 The Full Court continued at [35] that a determination under s 14:
… will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an “employee” at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.
29 The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the SRC Act: Prain v Comcare [2017] FCAFC 143; (2017) 256 FCR 65 at [89]. These determinations give substance to the liability “… to pay compensation in accordance with this Act”, provided for in s 14: Australian Postal Corporation v Oudyn [2003] FCA 318 at [31]. Subject to the criteria in each provision being met, an employee who suffers from an “injury” for which liability has been accepted under s 14 of the SRC Act, may be entitled to various kinds of compensation including for: medical expenses (s 16); incapacity for work (s 19); injuries resulting in permanent impairment (s 24); and household services and attendance care services (ss 29 and 29A). If there is no liability for an injury under s 14, no liability to pay compensation under the SRC Act can arise: Lees.
30 A determination under s 14 having been made, the amount of compensation payable to an employee who is incapacitated for work as result of an injury, other than an employee to whom ss 20, 21, 21A or 22 applies, none of which are relevant to this matter, is calculated in accordance with s 19 of the Act.
31 Since John Holland accepted liability in this case by consent order made in the Tribunal on 19 December 2019, the Tribunal in the present matter was concerned with whether the respondent was entitled to compensation under s 19 of the SRC Act. The Tribunal had to be satisfied that the criteria in s 19(1) were satisfied, including determining that there is an “incapacity for work” during the period under consideration. If the Tribunal is so satisfied, the formula provided for in ss 19(2) to (14) is applied to determine the quantum of compensation payable.
32 Section 4(9), a central provision in these proceedings, defines “incapacity for work” in the following terms:
(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.
33 Once that structure is understood, in this matter, the following process emerges:
(1) A notice of claim complying with the requirements of s 53 is required;
(2) A claim for incapacity arising out of an injury to which the SRC Act applies (work injury) is made under s 54, accompanied by a medical certificate, albeit not necessarily in the approved form (s 54(5)). Upon acceptance of that claim, a liability arises to pay compensation (s 14);
(3) That liability is calculated in accordance with s 19;
(4) The liability to pay compensation to the respondent in respect of his injury applies while he is incapacitated for work as a result of the work injury (s 19);
(5) The liability to pay compensation to the respondent only operates whilst he is incapacitated for work as a result of the work injury (s 19);
(6) In circumstances where a claim has been made under s 54 and accepted such that the obligation in s 14 operates, if the incapacity continues past the expiry of the initial period of incapacity identified in the medical certificate which accompanied the claim under s 54, it is not the case that another claim in accordance with s 54 is required;
(7) There is no specific requirement in s 19 for the worker to provide medical certificates as to ongoing incapacity if the period of incapacity the subject of a claim under s 54 continues past the period identified in the medical certificate that accompanied the claim under s 54. Nonetheless, given the initial obligation imposed upon the employee in s 54 to provide a claim and a medical certificate as to incapacity, the context and purpose of the legislation is such that it is implicit in s 19 that the employee is obliged to provide further medical evidence as to ongoing incapacity arising from the work injury for the purposes of s 19. Were that not the case, the relevant authority will not be able to determine whether the incapacity consequent upon the work injury is continuing or not; and
(8) If the period of incapacity the subject of a claim under s 54 comes to an end: eg because the consequences of the work injury have resolved and the employee is no longer incapacitated, then in the event of a further injury, a new claim under s 54 accompanied by a medical certificate certifying incapacity will need to be made.
34 As to the seventh step, I note the relevant authority has the option under s 57 to require an examination by one legally qualified medical practitioner in circumstances where a notice has been given under s 53 in relation to an employee or an employee has made a claim for compensation under s 54.
35 Sections 57(1) and (2) provide:
(1) Where:
(a) a notice has been given to a relevant authority under section 53 in relation to an employee; or
(b) an employee has made a claim for compensation under section 54; the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.
(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
36 The terms of s 57(2) when considered in the context of s 57(1) suggests that the option of examination by a different medical practitioner is available to the relevant authority at any stage of the process including whilst the employee is receiving payments for incapacity for a work related injury. That is not inconsistent with the obligation on the employee to provide medical certificates as to ongoing capacity for the purposes of s 19. Rather, it provides an opportunity for the relevant authority to have the employee examined independently whether for the purposes of accepting a claim made under s 54 or for assessing ongoing incapacity for the purposes of s 19.
37 The power to request provision of information in s 58 is directed to information that the relevant authority may request from the claimant upon receipt of a claim.
Tribunal’s Reasons
38 The Tribunal Member set out a detailed background to the application before identifying that there were four issues before him:
(a) Has there been compliance, or substantial compliance, with s 54 of the SRC Act in the making of the claim?
(b) Does any failure to provide medical certification after the compensation claim was denied amount to a bar to compensation pursuant to s 19 of the SRC Act?
(c) Is there an incapacity for work within the meaning of s 19 of the SRC Act? and
(d) Is any incapacity for work still on account of the accepted condition?
Grounds of review
39 In its notice of appeal, John Holland identifies seven questions of law which, it contends arises from the Tribunal’s decision:
(1) Misconstruing s 54 of the SRC Act by determining that s 54(1) did not need to be complied with for each period that compensation was claimed under s 19 of the SRC Act (first ground of review);
(2) Failing to consider and resolve John Holland’s submission that s 54(1) of the SRC Act was not satisfied with respect to each period for which the respondent sought to be paid compensation under s 19 of the SRC Act (second ground of review);
(3) Taking into account an irrelevant consideration in the course of addressing whether s 54(1) had been satisfied (third ground of review);
(4) Failing to address and make findings required to be made under s 4(9) of the SRC Act (fourth ground of review);
(5) Failing to consider and resolve John Holland’s submission that the respondent did not have an incapacity for work within the meaning of s 4(9) of the SRC Act (fifth ground of review);
(6) Taking into account an irrelevant consideration in the course of addressing s 4(9) of the SRC Act (sixth ground of review); and
(7) Failing to provide reasons, or adequate reasons, for its decision (seventh ground of review).
40 John Holland grouped the asserted questions of law into three categories:
(a) Errors concerning the way the Tribunal dealt with the issues arising under s 54 (questions 1, 2 and 3);
(b) Errors concerning the way the Tribunal dealt with the issues arising under s 4(9) (incapacity) (questions 4, 5 and 6); and
(c) Errors with respect to the sufficiency of the Tribunal’s reasons (question 7).
First category - Questions 1, 2 and 3
Question 1 - Statutory construction of s 54
41 Whereas each case will differ, the question of whether the Tribunal has erred in its construction of s 54, is capable of being a question of law: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 [194], [200]. See also Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12, [27] (Gleeson CJ, Gummow and Callinan JJ). I am satisfied that in the circumstances of this matter, this question is a question of law.
42 It is well-settled that the task of statutory interpretation begins with the text whilst at the same time regard is had to its context and purpose. Context should be regarded at the first stage and not at a later stage and should be regarded in its widest sense. “Considerations of context and purpose simply recognise that understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected”: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ); See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
43 There is no issue that when putting in his claim under s 54, the respondent ultimately complied with s 54(2)(b) by providing a certificate of incapacity for work by a legally qualified medical practitioner. The Tribunal Member recorded this fact at reasons [17].
44 At reasons [18], the Tribunal Member referred to an argument from the respondent’s solicitors that when terminating his employment, John Holland did not advise the respondent that he would thereafter need to provide continuing medical certification. In that context, the Tribunal Member observed that it was not clear from the terms of s 54 that the provision of ongoing medical certification is required by that section before concluding at reasons [55(a) and (b)] that:
55(a) The respondent worker complied with the requirements of s 54 in making the subject claim for compensation; and
55(b) Any failure to provide medical certification after the claim was denied did not amount to a bar to compensation pursuant to s 19. [The] Tribunal is confident that the material before it by way of medical reporting, general practice and other medical notes, confirms the worker’s continuing symptomatology since the original making of the claim.
45 In addressing the question as to whether s 54 requires the provision of ongoing medical certificates, there was no attempt by the Tribunal Member to interpret s 54 or other provisions of the SRC Act.
46 John Holland contends that the Tribunal misconstrued s 54 of the Act by determining that s 54(1) did not need to be complied with on each occasion when compensation was sought under s 19 of the Act.
47 There are two aspects to this question. First, insofar as John Holland submits that because the claim was denied on 12 April 2018, with that decision being affirmed on 17 June 2018, a new claim under s 54 was required. However, since John Holland consented to the decision of the Tribunal on 19 December 2019, that it was liable under s 14 for the respondent’s injury with a deemed date of 30 April 2015, the only question becomes periods of incapacity consequent upon that injury after that date.
48 The second aspect is whether in seeking compensation for periods of incapacity subsequent to the initial period of incapacity, which are a continuation of the period of incapacity the subject of the claim, a new claim under s 54 accompanied by a medical certificate was required on each occasion.
49 First, John Holland submits its construction is consistent with the text of s 54 and the use of the word “compensation” as used in various provisions of the SRC Act such that the word should be given a consistent meaning throughout a statute. So much so may be accepted at a general level but that is not what John Holland seeks to do. The effect of John Holland’s submission is to link the word “compensation” to “claim” in s 54 and apply that link to other provisions of the SRC Act such that wherever the word “compensation” appears, it is in the context of a claim being made in relation to that compensation, even in circumstances where a claim has been accepted and the compensation is for ongoing incapacity the subject of that claim. Given my interpretation of how s 54 operates, I do not accept that submission.
50 Second, John Holland submits its construction is consistent with the structure of the SRC Act. It contends that by construing s 54 as only applying to an initial claim for compensation under s 14 and not under other provisions of the SRC Act, betrays a misunderstanding of how s 14 operates. It submits that an acceptance of liability under s 14 brings into play other provisions of the SRC Act such that the prohibition in s 54(1) against compensation being payable under the SRC Act in the absence of a claim applies not only to the first occasion when an employee seeks to establish an entitlement by satisfying the criteria in s 14 but on every subsequent occasion.
51 I do not accept that submission. The submission proceeds on the mistaken construction of s 14 that it is that section which constitutes an acceptance of liability. As I have noted above, s 14 proceeds on the basis that a claim has been accepted and records the consequence of that acceptance as being a liability to pay compensation in accordance with the SRC Act. It is under those circumstances that the liability to pay compensation in s 14 arises.
52 Third, John Holland submits the construction for which it contends fits into the hierarchy of decision-making established by the SRC Act.
53 I do not accept that submission. When the structure of the legislative scheme is considered, it is apparent that continual claims in the manner prescribed by s 54 are not required in circumstances where a claim has been accepted and there is ongoing incapacity requiring further medical certificates or other evidence of that incapacity for the purposes of s 19.
54 Fourth, John Holland submits that its construction of s 54 facilitates the purpose of the statutory scheme in the sense that the person claiming compensation under s 19 must demonstrate that in each week that compensation is sought they continue to suffer an “injury” for the purposes of the SRC Act and that during that week they are incapacitated for work as a result of the injury. I do not accept that a person claims compensation under s 19. As I have noted, that process occurs in s 54. Section 19 is an administrative section which sets out the process by which the compensation to which an incapacitated employee is entitled is calculated. It is only called into operation when s 14 operates which in turn depends upon the acceptance of a claim made pursuant to s 54.
55 Finally, John Holland refers to Lofts and Telstra Corporation Ltd v Kotevski (2013) 209 FCR 558; [2013] FCA 27 as being supportive of its interpretation of s 54. That is not so.
56 The respondent submits that John Holland’s submission overlooks the absurdity of the worker submitting a claim form on each occasion that the worker provides a medical certificate evidencing ongoing incapacity arising from the current work injury. The respondent also submits that while the legislature contemplated that an employee would not be restricted to a single ‘claim for compensation’, this does not mean the legislature intended an employee would potentially have to submit a multitude of “claims for compensation” in relation to the one injury.
57 I accept those submissions. To accept John Holland’s submission would run counter to the structure of the SRC Act.
58 The respondent also submits that the SRC Act is remedial legislation and where two constructions of the Act are possible that which is favourable to the employee should be preferred with reference to Brennan v Comcare (1994) 50 FCR 555 at 559, Repatriation Commission v Hawkins (1993) 45 FCR 205 at 211 and Gye v McIntyre [1991] HCA 60; (1991) 171 CLR 609 at 619. I accept that the SRC Act is remedial legislation, however I am not satisfied that there are two possible constructions of s 54 such that these authorities do not assist.
59 In view of the matters I have set out above concerning the legislative structure, John Holland’s construction of s 54 cannot be accepted. Once an injury has been accepted following a claim under s 54, the provision of compensation for incapacity arising from that injury in the circumstances of this matter is dealt with in s 19.
60 Although only one claim is required, since payment of compensation under s 19 is dependent upon ongoing incapacity for work as a result of the work injury the subject of the claim made under s 54, ongoing medical certificates evidencing continuing incapacity are required for the purposes of s 19.
61 I would not allow an appeal on the basis of this question.
Question 2 - Did the Tribunal fail to consider and resolve an argument namely whether s 54(1) had been satisfied with respect to each period for which the respondent sought to be paid compensation under s 19
62 The applicant’s submissions are directed at the Tribunal failing to consider an argument of substance which was worthy of serious consideration and which was seriously advanced by John Holland.
63 In Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, when considering the question of jurisdictional error on the part of an Administrative Tribunal, the High Court said at 179:
If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
64 The Tribunal did not address the question of whether s 54(1) had to be satisfied with respect to each period for which the respondent sought to be paid compensation under s 19. Although the Tribunal identified this issue at reasons [18] and reaches a conclusion at reasons [21] and [55] the Tribunal Member seems to have conflated the operation of s 54 and its proper construction with a requirement on the part of John Holland to give notice to the respondent that he was required to provide ongoing medical certificates.
65 The consequence is that the Tribunal failed to consider directly and resolve the argument as to whether s 54(1) had to be satisfied with respect to each period for which the respondent sought to be paid compensation arising out of the claimed injury under s 19.
66 In so doing, the Tribunal Member has erred in law.
67 However, not all errors of law are fatal to a decision: Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [45]-[47]; (2019) 264 CLR 421, per Bell, Gageler & Keane JJ; Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 123 at 130 at [17]-[31], per Kiefel CJ, Gageler and Keane JJ.
68 In SZMTA at [45]-[47], Bell, Gageler and Keane JJ said:
Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
69 Notwithstanding the Tribunal Member has erred in law, in view of the interpretation of s 54 I have taken, the Tribunal Member’s failure to deal specifically with the proper construction of s 54 is not such that it could realistically have resulted in a different decision.
70 I would not allow the appeal on the basis of this error of law.
Question 3 – Whether or not John Holland advised the respondent of the requirements of s 54 relevant in determining whether s 54(1) has been satisfied in respect of each period for which compensation was sought
71 John Holland submits that in the course of addressing the s 54 issue, the Tribunal took into account a submission made on the respondent’s behalf that to the extent s 54 was not complied with, it was as a consequence of John Holland failing to advise the respondent of the need to do so. It submits that was an irrelevant consideration such that in taking it into account the Tribunal Member fell into error.
72 The Tribunal Member found at [18]-[22] that:
18 Before this Tribunal the applicant’s solicitors argued that when terminating the applicant’s employment the respondent did not advise him that he would thereafter need to provide continuing medical certification. Further, it is not clear from the terms of s.54 that the provision of ongoing medical certification is required by that section. It seems that the respondent, unknown to the applicant, was essentially treating the provision of ongoing medical certification as amounting to the ongoing making of new worker’s compensation claims. The applicant’s solicitors urged upon the Tribunal that the employer did not advise the applicant that it required medical certificates in order to make further determinations for incapacity payments in the period September 2016 until 31 March 2020.
19 They also asserted that the employer had failed to advise the applicant that it would require medical certificates in order to determine incapacity payments at the completion of the preceding AAT proceedings which had ended with the Consent Order of Deputy President Britten-Jones referred to hereabove. There is no evidence before this Tribunal that at any time has the worker been non-compliant with what he has been advised are his obligations in respect of the making and maintenance of his worker’s compensation claim. When he was told, after making the initial claim, that for it to be considered it needed to be accompanied by a certificate completed by a legally qualified medical practitioner in an approved form he then provided same.
20 There is no indication that he was advised that he needed to continue providing continuing medical certificates as the respondent did not make him aware that, in their apparent view, each medical certificate was, in effect, a new claim for compensation. In the determination of 30 April 2020, which is for review by this Tribunal, and which confirmed the rejection of the claim, it is stated in paragraph 45 that:
“The only medical certificates you have provided in the period 2 November 2017, 31 March 2020 were issued by Dr Ali on 10 July 2019, 29 July 2019, 16 August 2019 and 23 August 2019. They were in the form of general nonwork-related medical certificates which indicate that you are unfit for work for various periods of time due to an unspecified medical condition. They do not refer to the compensable condition or provide a reason for the incapacity for work which are necessary to assess and determine whether incapacity for compensation is payable”.
21 This the worker is told as late as April 2020. The worker having made his initial claim, his provision subsequently of medical certificates even in a technically incorrect form were nonetheless notice to the respondent that the applicant was asserting a continuing incapacity for work. They did not, moreover, respond to the serving of the non-prescribed forms by way of identifying to the applicant that they required different forms or certificates.
22 In paragraph 54 of the confirmation of decision the decision maker states:
“I am not satisfied that the evidence supports the finding, on the balance of probabilities as opposed to possibilities, that you were incapacitated for work for the period 2 November 2017 to 31 March 2020 so as to entitle you to incapacity compensation under s,19 of the Safety and Rehabilitation Act for that period”.
73 On the terms of s 54 and/or s 19, there is no obligation on John Holland to advise the respondent of an ongoing requirement to make a claim and provide medical certificates pursuant to s 54 in the case of ongoing incapacity as a consequence of a claim which has been accepted. That is because the respondent does not have that obligation under s 54.
74 The respondent’s obligation is to provide ongoing medical certification as to his continuing incapacity due to the injury for which his claim has been accepted in order to receive compensation calculated in accordance with s 19.
75 Accordingly, the requirement to give notice is an irrelevant consideration and to that extent in taking it into account at reasons [20], [21], the Tribunal Member erred in law: Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 19 FCR 127, 135.
76 However, for the same reasons set out above in relation to question 2, the error is not material such that I would not allow the appeal on the basis of this error of law.
Second category - Questions 4, 5 and 6
77 The applicant addressed questions 4, 5 and 6 at the same time as each of them deal with whether the respondent was incapacitated for work within the meaning of s 4(9).
78 John Holland submits the Tribunal failed to make findings with respect to whether the respondent had an incapacity to engage in work at the same level at which he was engaged by the applicant in that work, specifically:
(a) The level of the work the respondent was engaged in for John Holland immediately before the injury happened; and
(b) In each relevant period for which compensation under s 19 was claimed, whether the respondent suffered an incapacity to engage in work at that same level.
79 At [55(c) and (d)], the Tribunal concluded:
(c) This Tribunal finds that the applicant has, at all material times up to and including the time of the hearing, an incapacity for work within the meaning of s.4(9) and s.19 of the Act and finds specifically that the applicant has a physical disability f or actually doing work in dusty and dirty environments as a result of the accepted condition. He is unable to work as a machine operator as he was trained to do in his occupation of choice. This Tribunal accepts that the applicant has not been able to work as a machine operator since 2 November 2017 and that he has suffered incapacity to engage in work at the same level at which he was engaged by the respondent.
(d) As can be seen from the foregoing, this Tribunal finds that the applicant’s incapacity for work is still on account of the accepted condition. In this respect the Tribunal’s conclusions have been guided by the accepted evidence of the applicant that there has been no relent in his condition since its onset and that it continues to incapacitate him in circumstances where the Tribunal accepts the evidence of Dr Rosen as to causation, including causation of incapacity.
80 The applicant refers to the observations of Merkel J in Comcare Australia v Rowe [2002] FCA 1034 at [7]:
In my view Comcare was correct in contending that s 4(9)(b) required the AAT to address each of the following questions:
(a) When did the “injury” happen?
(b) What was the work in which the employee was engaged by the Commonwealth or a licensed corporation immediately before the injury happened?
(c) What was the “level” at which the employee was engaged to work immediately before the injury?
(d) Is the employee incapacitated from engaging in work at the “same level” at which he or she was engaged to work by the Commonwealth or a licensed corporation?
81 There is no suggestion that the respondent is incapacitated from engaging in any work. Accordingly the question before the Tribunal involved a consideration of s 4(9)(b).
82 I accept that the questions identified by Merkel J in Rowe are relevant questions for the Tribunal to determine when considering the requirements of s 4(9)(b).
When did the “injury” happen
83 It is apparent from the Tribunal’s reasons and not in dispute given the consent orders made by the Tribunal on 19 December 2019: reasons [11], that John Holland accepted liability for the respondent’s “chronic sinus infection with headaches” as from 30 April 2015.
84 That being the case, there is no issue about the occurrence of the injury and no issue was raised by John Holland as to when it occurred.
What was the work in which the employee was engaged by the Commonwealth or a licensed corporation immediately before the injury happened?
85 As to the second question, again, there was no issue that the respondent was employed as a machine operator.
What was the “level” at which the employee was engaged to work immediately before the injury?
86 John Holland submits that nowhere in the Tribunal’s reasons is this issue clearly set out and addressed, nor were John Holland’s submissions that went to this question addressed.
87 Before the Tribunal, John Holland submitted that what was meant by “at the same level” was not that the respondent was prevented from returning to precisely the same duties. It submitted on appeal that the Tribunal had medical evidence before it to the effect that the respondent had capacity to perform work in a relatively clean environment, an indoor environment and anywhere but a dusty/dirty environment, yet the Tribunal failed to deal with that submission in its reasons, referring to the Tribunal’s conclusion at reasons [55(c)].
88 The respondent submits that “machine operator” describes both the respondent’s job and his “level” within John Holland. It submits the Tribunal was not referred to any evidence about levels of work within John Holland.
89 Every case will, of course, differ. The reference to the same “level” is capable of a number of meanings, however I accept the respondent’s submissions that in this particular case “machine operator” identifies both the job description as well as the “level” of his employment. It does not, however, mean that the “level” is a machine operator working in a dusty/dirty environment for the reasons which appear below.
Is the employee incapacitated from engaging in work at the “same level” at which he or she was engaged to work by the Commonwealth or a licensed corporation?
90 The Tribunal addressed the question of incapacity for work initially at reasons [23]-[24] and then moved to consider the medical evidence of Dr Rosen, a Neurologist called by the respondent and Dr DuPlessis, a Neurologist and Rehabilitation Physician called by John Holland at reasons [32]-[54].
91 Although it had a significant amount of medical evidence before it, to which it referred at reasons [40], it addressed the two competing neurological opinions in view of the submission by the parties that the Tribunal would be primarily guided by the view the Tribunal took of those two neurological opinions: reasons [29].
92 The Tribunal considered Dr Rosen’s evidence at length, concentrating primarily on the nature of the respondent’s debilitating headaches.
93 The Tribunal also considered Dr DuPlessis’ evidence as to the nature of the respondent’s headaches and his opinion that the respondent’s ongoing headaches are no longer sinus related and should be considered to have a different cause that was not employment related, such as medication.
94 The Tribunal preferred Dr Rosen’s evidence to that of Dr DuPlessis. It did so, in part, on the basis that the Tribunal accepted the respondent’s evidence of uninterrupted symptoms and incapacity since the onset of the accepted injury. The Tribunal accepted Dr Rosen’s evidence that irrespective of the classification of the type of headache from which the respondent suffers, there was no other convincing explanation for his present condition and incapacity for work other than chronic sinusitis: reasons [30]-[31].
95 The Tribunal set aside the reviewable decision and determined that the respondent was entitled to compensation under s 19 of the SRC Act for “the accepted condition, whether described as ‘sinusitis with headache’ or simply as ‘headache’, since 1 November 2017”: reasons [56].
96 However, nowhere in the reasons is there a discussion or any reference to different tasks a machine operator may undertake. In that sense, John Holland submits that the Tribunal failed to consider and resolve John Holland’s submission that the respondent was not incapacitated to work “at the same level” at which he was engaged by John Holland immediately before the injury because an inability to work in precisely the same conditions or place is not sufficient to establish that s 4(9)(b) of the SRC Act is satisfied.
97 The respondent submits that the Tribunal made findings necessary to properly deal with s 4(9) of the SRC Act at reasons 55(c) in which it found that the respondent:
(a) Is unable to work as a machine operator as he was trained to do in his occupation of choice;
(b) Has not been able to work as a machine operator since 2 November 2017; and
(c) Has suffered incapacity to engage in work at the same level at which he was engaged by John Holland.
98 However, although it would seem the respondent is unable to work in dusty/dirty environments, other than the reference to the respondent’s occupation of choice, to which I refer below, there is no discussion anywhere in the reasons nor any reference to different tasks a machine operator may undertake, nor reasons as to why there is no possibility of him working as a machine operator.
99 The reasons are silent as to the respondent’s inability to work as a machine operator save for the specific circumstances in which the respondent worked, the point being that machine operators work in various locations and under various circumstances. In that sense, the Tribunal failed to deal with John Holland’s submission that the respondent had capacity to perform work in a relatively clean environment.
100 Accordingly, I accept John Holland’s submissions. In failing to deal with the respondent’s incapacity to work as a machine operator under any circumstances, the Tribunal failed to deal with a central issue arising out of s 4(9)(b) and in so doing made an error of law.
101 John Holland also submits that the respondent being “unable to work as a machine operator as he was trained to do in his occupation of choice” is irrelevant to deciding whether the respondent had an incapacity to engage in work at the same level at which he was engaged by John Holland immediately prior to the injury. John Holland submits that when that finding is discarded, no other findings remain to demonstrate that the Tribunal determined whether the respondent had an incapacity to engage in work at the same level at which he was engaged by John Holland for the purposes of s 4(9) of the SRC Act.
102 I accept that submission. The question of being unable to work as a machine operator in the respondent’s occupation of choice is an irrelevant consideration. In referring to that consideration in its conclusions in [55(c)], the Tribunal took into account an irrelevant consideration and made an error of law.
103 The errors of law I have identified are material in the sense described above. Accordingly, I would allow the appeal on the basis of questions 4, 5 and 6.
Question 7 – Failure to provide reasons
104 John Holland submits that the Tribunal failed to provide adequate reasons, in breach of its obligation to do so under s 43(2B) of the AAT Act, in three respects:
(a) Failing to provide adequate reasons for its finding in reasons [55(b)];
(b) Failing to deal in its reasons with John Holland’s case that the respondent did not have an incapacity for work “at the same level” as the level of work he performed for John Holland immediately before the injury happened; and
(c) Failing to explain why it was satisfied that only machine operator work in a dusty and dirty environment was work that was “at the same level” as that which the respondent was employed in by John Holland immediately prior to the injury.
105 The respondent submits that the Tribunal’s reasons clearly refer to the evidence on which it based its findings, where the Tribunal’s reasons also reveal why it considered:
(a) The respondent had an incapacity for work “at the same level” as that which he was employed by John Holland immediately prior to the injury: reasons [48]-[50]; and
(b) Why the respondent has not been able to work as a machine operator since 2 November 2017: reasons [12.1], [12.8]-[12.12] and [13.6]-[13.7].
106 The Tribunal’s duty to provide adequate reasons for its decision is contained in s 43(2B) of the AAT Act. It states relevantly:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
107 A failure to give reasons in accordance with ss 43(2) or (2B) involves a question of law: Comcare v ZZRP [2019] FCA 952 at [18]. In evaluating the task under an analogous provision, the High Court has held that the requirement to provide reasons is satisfied if the Tribunal “set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision”: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [68].
108 The Tribunal’s reasons in its consideration of questions 4, 5 and 6 above are inadequate for the reasons I have set out at [96]-[102] above.
109 In failing to provide adequate reasons, the Tribunal has made an error of law such that the appeal must also be allowed on that ground.
Conclusion
110 The appeal is allowed.
111 The orders will be that the Tribunal’s decision setting aside the reviewable decision and remitting the matter to the applicant for the quantification of entitlements is set aside. The matter will be remitted to the Tribunal to be determined according to law.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. |
Associate:
