Tribunal finds Cleanaway not liable for medical and incapacity payments of truck driver

Date: May 18, 2021

 

Waititi and Cleanaway Operations Pty Ltd [2021] AATA 924.

 

Key Points:

 

Background:

Mr Waititi was employed by Cleanaway Operations Pty Ltd as a Driver of Hook Lift Trucks, emptying rubbish bins.  On 15 May 2018, Mr Waititi submitted a claim for workers’ compensation for an injury to his left hand sustained when he put his hand inside a bin door to dislodge rubbish. On 21 May 2018, Cleanaway accepted liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of “left trapezoid fracture” sustained on 12 May 2018.

On 2 May 2019, Cleanaway determined there was no present liability to pay compensation for medical treatment and incapacity to work, pursuant to sections 16 and 19 of the SRC Act. Mr Waititi requested a reconsideration of the determination and on 20 June 2019, the determination was affirmed.  Mr Waititi sought further review at the Administrative Appeals Tribunal.

The Tribunal was required to consider whether Mr Waititi continued to suffer the effects of his injury and, if so, whether he was entitled to compensation for medical treatment and incapacity to work.

 

The Law:

Section 16(1) of the SRC Act provides that an employer is liable to pay compensation in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances.

Section 19(1) of the SRC Act provides that an employer is liable to pay compensation to an employee in respect of an injury, for each week the employee is incapacitated for work.

 

Conclusion:

Mr Waititi went to live in New Zealand in August 2019. He gave evidence that he had attended a general practitioner in New Zealand in relation to his hand but had not received a referral to a specialist.

Mr Waititi argued that he continued to experience symptoms from the hand condition, including pain, swelling and reduced dexterity. Mr Waititi claimed that the condition continued to result in incapacity for work and a requirement for medical treatment, including ongoing hand therapy.

The evidence from Dr Peter Steadman, Orthopaedic Surgeon, was that Mr Waititi did not require medical treatment for his hand injury and that ongoing hand therapy would not be as effective as using the hand normally to achieve the final aspect of recovery. Dr Steadman gave evidence that Mr Waititi had the capacity to undertake his pre-injury duties.

The Tribunal found that the uncontradicted medical evidence indicated that by 2 May 2019 Mr Waititi was no longer incapacitated for work and was not entitled to compensation for incapacity to work in accordance with section 19 of the SRC Act.

The Tribunal accepted Dr Steadman’s evidence that no further medical treatment was required and as such there was no liability to pay compensation for medical treatment expenses under section 16 of the SRC Act.

 

Lessons Learnt:

Evidence of specific, identifiable and reasonable medical expenses is necessary before compensation is payable under section 16 of the SRC Act. An employee is not entitled to incapacity payments under section 19 of the SRC Act unless they can demonstrate continuing incapacity as a result of a work injury.

 

Contact:

Daniel Iminjan                                                                Claire Tota
Solicitor                                                                             Partner
Direct: +61 (02) 9376 1100                                          Direct: +61 (08) 9625 6011
daniel.iminjan@hbalegal.com                                claire.tota@hbalegal.com

 

Download PDF here:  Waititi and Cleanaway Operations Pty Ltd

 

 

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