Christy and TNT Australia Pty Ltd (Compensation)
[2016] AATA 813
•17 October 2016
Christy and TNT Australia Pty Ltd (Compensation) [2016] AATA 813 (17 October 2016)
Division
GENERAL DIVISION
File Numbers
2013/5260
2014/1090
2015/1879
2015/1880
2015/60342015/6278
Re
Stanley Christy
APPLICANT
And
TNT Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Professor McGrowdie, Senior Member
Senior Member A PoljakDate 17 October 2016 Place Sydney Application 2014/1090
1. The reviewable decision made 19 February 2014, being the decision of TNT Australia Pty Ltd that on 6 January 2014 Mr Christy had no entitlement to compensation in respect of medical expenses or to incapacity payments in respect of an injury which occurred on 14 June 2011, is set aside.
2. The matter is remitted to TNT Australia Pty Ltd for reconsideration of Mr Christy’s entitlement to compensation under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with these reasons for decision.
3. Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the Applicant.
Application 2015/1880
4. The reviewable decision made 16 April 2015, being the decision of TNT Australia Pty Ltd to refuse to compensate Mr Christy for an injury being “adjustment disorder with anxiety and depression, panic disorder” is set aside.
5. In substitution it is decided that the Respondent is liable to pay compensation to Mr Christy in respect of an injury being adjustment disorder with anxiety and depression suffered on 14 October 2013.
6. Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the Applicant.
7. The reviewable decision made 16 April 2015, being the decision of TNT Australia Pty Ltd to refuse to pay compensation to Mr Christy for permanent impairment resulting from the psychiatric injury which occurred on 14 October 2013, is affirmed.
Application 2015/6034
8. The reviewable decision made 12 November 2015, being the decision of TNT Australia Pty Ltd to deny liability to compensate Mr Christy in respect of the claimed injury of muscular-ligamentous contusion, aggravation of future degenerative change in the thoracic and lumbar spine, is affirmed.
Application 2015/6278
9. The reviewable decision made 13 November 2015, being the decision of TNT Australia Pty Ltd refusing Mr Christy’s claim for permanent impairment resulting from the claimed injury of muscular-ligamentous contusion, aggravation of future degenerative change in the thoracic and lumbar spine, is set aside.
10. The matter is remitted to the Respondent for reconsideration with a direction that the Respondent is liable to pay compensation to Mr Christy in respect of the injury to his lumbar spine which has resulted in a whole person permanent impairment of 13 per cent.
11. Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the Applicant.
Application 2013/5260
12. The reviewable decision made 16 August 2013, being the decision of TNT Australia Pty Ltd to deny liability to compensate Mr Christy in respect of a capsular infiltration procedure, is affirmed.
Application 2015/1879
13. The reviewable decision made 2 April 2015, being the decision of TNT Australia Pty Ltd that the rate at which compensation is payable, should Mr Christy be incapacitated, be reduced from $1422.07 per week to $1389.30 per week, is affirmed.
..............[sgd].................................................
J W Constance
Deputy PresidentCATCHWORDS
COMPENSATION – workers compensation – accepted lumbar spine injury – whether Applicant entitled to medical expense and incapacity payments – whether Applicant ceased to suffer the effects of the injury – decision set aside and remitted
COMPENSATION - workers compensation – psychological injury – adjustment disorder with anxiety and depression – panic disorder – whether Applicant suffered a psychological injury – when injury taken to have been sustained – decision set aside and substituted – whether psychiatric injury resulted in permanent impairment – decision affirmed
COMPENSATION – workers compensation – muscular-ligamentous contusion, aggravation of future degenerative change in thoracic and lumbar spine – whether separate injury to later accepted injury – decision affirmed
COMPENSATION – workers compensation – accepted lumbar spine injury – whether injury resulted in permanent impairment – decision set aside and remitted
COMPENSATION – workers compensation – accepted lumbar spine injury – whether liable to pay compensation for cost of capsular infiltration procedure – where claim not pressed by Applicant – decision affirmed
COMPENSATION – workers compensation – normal weekly earnings – normal weekly earnings reduced – re-calculation of normal weekly earnings where there has been change in employer’s circumstances – not for Tribunal to prescribe methodology of calculation – insufficient information – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1), 5B(1), 7(4), 8, 9, 14(1), 16(1), 19(2), 24
CASES
Telstra Corporation v Hannaford (2006) 151 FCR 253
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1, Table 9.17
REASONS FOR DECISION
Deputy President J W Constance
Professor McGrowdie, Senior Member
Senior Member A Poljak17 October 2016
PART A
INTRODUCTION
Mr Christy has applied to the Tribunal to review seven decisions made by his employer, TNT Australia Pty Ltd, the Respondent in these proceedings. All the decisions relate to a back injury suffered by Mr Christy whilst working as a pick-up and delivery driver.
Application 2014/1090
In August 2011 the Respondent accepted liability to compensate Mr Christy under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being “mechanical back strain” he suffered on 14 June 2011. From then until 6 January 2014 the Respondent paid compensation for medical treatment obtained in relation to the injury and for incapacity suffered as a result of the injury.
On 19 February 2014 the Respondent affirmed an earlier decision that by 6 January 2014 the injury had resolved and at that time no further compensation was payable.[1]
[1] Exhibit R1 2014/1090 p.23.
For the reasons which follow the reviewable decision will be set aside. It will be decided that continuously since 6 January 2014 and at the time of this decision, compensation has been payable in respect of medical expenses and incapacity in accordance with the Act.
Application 2015/1880
On 16 April 2015 the Respondent denied liability to compensate Mr Christy for an injury being “adjustment disorder with anxiety and depression, panic disorder” which he claimed was a consequence of the physical injury to his lower back. At the same time the Respondent refused a claim for compensation for permanent impairment said to arise from this injury.[2]
[2] Exhibit R1 2015/1880 p.100.
For the reasons which follow the decision denying liability to compensate Mr Christy for the claimed injury will be set aside. In substitution it will be decided that the Respondent is liable to pay compensation to Mr Christy in respect of the injury.
The decision to refuse the claim for compensation for permanent impairment resulting from this injury will be affirmed.
Application 2015/6034
By a decision made on 12 November 2015, the Respondent denied liability to compensate Mr Christy in respect of a claimed injury of a muscular-ligamentous contusion, aggravation of future degenerative change in the thoracic and lumbar spine.[3] Mr Christy claimed that this injury arose from the nature and conditions of his work (i.e. frequent bending, twisting and lifting) as a pick-up and delivery driver.
[3] Exhibit R1 2015/6034 p.60.
The decision will be affirmed.
Application 2015/6278
On 13 November 2015 the Respondent denied that the injury referred to in the immediately preceding application had resulted in a permanent impairment and therefore denied liability to pay compensation to Mr Christy in respect thereof.[4]
[4] Exhibit R1 2015/6278 p.65.
Although we have decided that Mr Christy has not suffered an injury to his lumbar spine other than that in respect of which the Respondent has already accepted liability, we have decided that he has suffered permanent impairment as a result of the accepted injury. For this reason the reviewable decision will be set aside and the matter will be remitted to the Respondent with a direction for further consideration.
Application 2013/5260
In 2013, acting on medical advice, Mr Christy sought payment from the Respondent to enable him to undergo capsular infiltration procedure as treatment for his accepted lower-back injury. By a decision of 16 August 2013[5] the Respondent refused this claim.
[5] Exhibit R1 2013/5260 p.198.
The decision will be affirmed.
Application 2015/1879
Under section 19 of the Safety, Rehabilitation and Compensation Act the Respondent is liable to compensate Mr Christy for loss of earnings during periods of incapacity which result from the injury to his lower back. On 2 April 2015 the Respondent decided that the rate at which compensation is payable, should Mr Christy be incapacitated, be reduced from $1422.07 per week to $1389.30 per week.[6]
[6] Exhibit R1 2015/1879 p.47.
The decision will be affirmed.
PART B
BACKGROUND
Unless stated otherwise the findings of fact in these reasons have been made on the basis of the evidence of Mr Christy.
Mr Christy is 39 years old. He left school after Year 10 and gained employment as a mechanic. He then worked in real estate for five or six years, initially as a sales person. He was promoted to sales manager. After this he worked for a freight company as a driver until he was promoted to warehouse manager.
On 21 April 2008 Mr Christy started working for the Respondent as a pick-up and delivery driver. He describes the nature of his duties as follows:
·I worked between 7:30 am up to 8:30 pm, five days a week
·I was driving a 3 tonne Pantech truck
·Loading and unloading a truck which involved lifting boxes of various weights ranging from less than a kilo up to 40-50 kilos, sometimes with assistance and mainly without any assistance. Sometime [sic] the loading and unloading involved the use of a trolley. At other times, I had to carry the loads.
·Movements involving bending, twisting, prolonged sitting, prolonged standing, climbing in and out of vehicle, pushing trolleys with items up to 100-200 kilos using the hand trolley.
·I would also use the flat bed trolley which takes up to 300 kilos in weight
·Having to negotiate lifts, stairwells, uneven surfaces and the like.[7]
We accept Mr Christy’s evidence in this regard.
[7] Exhibit A1 para.7
Between 21 April 2008 and 14 June 2011 Mr Christy sought medical advice and treatment for four episodes of back pain. Dr Dias, the Respondent’s nominated practitioner for workplace injuries, noted these incidents as follows:
Ø 9 September 2008 – Lower thoracic spine back strain. Cleared on 29.09.2008.
Ø 17 November 2009 – left lower thoracic spine back strain. Cleared on 19.11.09.
Ø 13 May 2010 – Neck and thoracic spine back strain. Last consultation on 17.5.10 (though not cleared for this injury by NTD at time [5 August 2011]).
Ø 9 March 2011 – Thoracic spine back strain – Cleared on 22.06.2011.[8]
[8] Exhibit R1 2013/5260 p.52.
During his delivery run on 14 June 2011 Mr Christy bent over to pick up a small box, weighing about 2 kg, from the floor of his delivery van. As he did so he felt the sensation of two momentary electric shocks in the lower part of his right shin and in his right foot. Mr Christy notified his supervisor of this incident.
The next day or the following day Mr Christy attended Dr Dias a medical provider preferred by his employer. He was told that there was nothing to find and no further intervention was provided.[9]
[9] History provided to Dr Beran in September 2012, exhibit R1 2013/5260 p.116.
About one week after this incident Mr Christy was walking back to his van, having completed a delivery, when his back “locked up” and he was unable to walk. After 10-20 seconds he was able to return to his vehicle. He notified the radio room of the incident, and drove his van back to the depot. He was then transported to Dr Dias’ rooms where he was given medication to reduce the pain in the middle of his lower back, just below the belt line.
On 22 June 2011 Dr Dias certified Mr Christy fit for suitable duties (not including driving trucks), four hours per day. He commenced light duties working in the office doing administrative tasks.[10]
[10] Exhibit R1 2013/5260 p. 51.
On 2 August 2011 the Respondent accepted liability to compensate Mr Christy in respect of “mechanical back strain” suffered by him on 14 June 2011. Liability was accepted in accordance with section 14 of the Safety Rehabilitation and Compensation Act. The Respondent also accepted liability to pay compensation for weekly incapacity and medical and like expenses in accordance with sections 19 and 16 of the Act respectively.
On 12 September 2011 Dr Dias certified that Mr Christy was fit to drive a forklift, but not a truck.[11] Mr Christy attempted forklift-driving for a short period but ceased this work as it was aggravating his back injury. At about this time Mr Christy was referred to Sawtell & Associates, Clinical Psychologists, as he was having difficulty dealing with the pain in his lower back.
[11] Exhibit R1 2013/5260 p.231
On 14 November 2011 Dr Dias certified that Mr Christy was fit for up to 4 hours truck-driving per shift.[12] Mr Christy was keen to return to delivery work. He drove a vehicle with freight loaded on pallets which meant that he did not have to do any heavy lifting. He requested that he be able to trial driving for eight hours per day. He tried this for a few months but found that the pain in his back worsened.
[12] Exhibit R1 2013/5260 p.235.
By early 2012 Mr Christy had returned to light duties in the office. However the office work allocated to him, which involved lengthy periods sitting at a computer, worsened the pain in his back. He underwent a number of treatments by injection into both sides of his lower back.
One of these treatments, a neural blockade carried out in September 2012, temporarily reduced the pain he was experiencing and the movement of his back improved. Towards the end of that year Mr Christy tried to return to commercial driving but after a short period he was unable to proceed with this by reason of back pain. He underwent further treatment but this did not improve his condition.
In April 2013 Mr Christy consulted a psychologist and undertook a pain management program.
By October 2013 Mr Christy was experiencing difficulties with his mood and with sleeping and was experiencing pain with most activities. The pain was particularly exacerbated by prolonged standing, sitting, bending and lifting. He continued to do administrative work in the office.
On 23 December 2013 the Respondent advised Mr Christy that it had made the following decision in accordance with the provisions of the Safety, Rehabilitation and Compensation Act:
Mr Stan Christy no-longer suffers from the effects of the compensable injury.
Accordingly, I determined that there is no present liability to pay compensation for medical treatment or incapacity for work under Sections 16 and 19 of the SRC Act effective from 6th January 2014.[13]
[13] Exhibit R1 2014/1090 p.18.
On 10 January 2014 Mr Christy was advised by the general manager of the depot that suitable duties had been withdrawn. At the time there was data entry work available. Mr Christy had previously carried out this work.
On 19 February 2014 the Respondent affirmed the decision of 23 December 2013.
Mr Christy continues to be employed by the Respondent. He has not returned to work. The Respondent has not offered him alternative work nor has there been any offer of a graduated return to work program. He is currently certified as being fit to work five hours per day, three days per week. He believes that he would be able to perform this work under the right conditions if it was offered to him.
PART C
LEGISLATION
Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
(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.
Subsection 16(1) provides:
(1) Where an employee suffers an injury, Comcare is liable to pay, 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), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Note: Compensation is not payable under this subsection in relation to certain defence-related claims (see Division 2A of Part XI).
Subsection 19(2) provides in part:
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula …. [set out in the subsection].
The relevant provisions of the Act which refer to Comcare apply to the Respondent as a licensee under the Act.
Additional sections of the Act will be set out later in these reasons.
PART D
APPLICATION 2014/1090
REVIEW OF DECISION TO CEASE PAYMENTS FOR INCAPACITY AND MEDICAL EXPENSES IN RELATION TO THE LOWER BACK INJURY
By the reviewable decision made 19 February 2014 the Respondent affirmed its earlier determination that from 6 January 2014 Mr Christy had no entitlement to compensation in respect of medical expenses or to incapacity payments in respect of the injury to his lower back suffered on 14 June 2011. The determination was made on the basis that as at 6 January 2014 Mr Christy no longer suffered from the effects of the injury.
Section 14 of the Act provides for a determination as to whether the Respondent is liable to pay compensation for a claimed injury. Section 16 sets out the circumstances in which compensation is payable for medical expenses obtained in relation to an accepted injury. This section requires the Respondent to consider each expense claimed and to make a decision whether or not compensation is in fact payable. Similarly section 19 requires the Respondent to decide upon the compensation payable for each claimed period of incapacity.
The Act does not require the Respondent to revisit the original decision to accept liability to compensate made under section 14 when deciding that compensation is no longer payable under section 16 and/or section 19.
The issues
The Tribunal stands in the shoes of the original decision-maker and it must take into account all of the evidence before it. The issues we must decide follow.
(1) Has Mr Christy any entitlement to compensation for medical expenses incurred in relation to the compensable injury on, or at any time since, 6 January 2014?
(2)Has Mr Christy any entitlement to incapacity payments at any time on or since 6 January 2014, in relation to the compensable injury?
Evidence of Mr Christy
In his statement made 29 July 2014, Mr Christy described his current complaints and restrictions relating to his lower back as follows:
opain and restriction of movement of the lower back
oreferred pain to the right low[er] leg all the way down to the foot
oI have a tingling sensation in the right foot which is aggravated by prolonged sitting, prolonged standing and prolonged walking
oI also get referred pain to the left leg on rare occasions
opain around the middle lower spine more towards… the left side.[14]
When he gave evidence Mr Christy confirmed that he continues to suffer the symptoms set out above. He said the pain had worsened over the past three years, but had stabilised over the past six months.
[14] Exhibit A1 p.3-4.
In 2003, approximately five years before he commenced working for the Respondent, Mr Christy was involved in a motor vehicle accident in which he suffered a soft tissue injury to his back and right shoulder. He suffered headaches and neck pain on movement.[15]
[15] Exhibit R2.
In a statutory declaration made by Mr Christy on 13 May 2008 in relation to the motor vehicle accident, he stated that he sustained injuries which included an injury to his middle back and to his lower back.[16] When he gave evidence in this application, Mr Christy maintained that the injury he suffered in the accident was injury to his neck. He conceded that he may not have read the statutory declaration as thoroughly as he should have.[17]
[16] Exhibit R3.
[17] Transcript 01/06/2016 p-52.
At the time he commenced employment with the Respondent Mr Christy had no history of back pain or back injury. During his employment, prior to June 2011, he suffered back injury on four occasions.
In September 2008 he lifted a computer server which weighed around 35 kg when he felt a “crack” and pain in his left shoulder blade. This injury settled down after some treatment, although Mr Christy described it as “a niggling injury” which recurred on two occasions.[18] He returned to normal duties within two months.[19]
[18] Transcript 01/06/2016 p-19.
[19] Reported to Dr McGill, exhibit R1 2015/1880 p.57.
He suffered further episodes of upper back pain in November 2009, May 2010 and March 2011. He was able to return to normal duties following these episodes.
Since 14 June 2011 he has experienced pain in his lower back and tingling in his left shin following the incident described earlier in these reasons.
Report of Dr Dias, Respondent’s Workplace Medical Practitioner
Mr Christy consulted Dr Dias on 22 June 2011, being the day he suffered the sudden severe stiffness in his back.
In a report dated 5 August 2011[20] Dr Dias stated:
Mr Christy was in moderate to severe pain and having difficulty with standing, sitting or walking for any appreciable length of time on 22.6.11. He was placed on heavy analgesia (Oxycodone) plus neuropathic pain agents (Gabapentin), restricted from driving trucks and his work hours were restricted to 4 hours per shift.
[20] Exhibit R1 2013/5260 p.51.
In relation to the back injuries suffered by Mr Christy prior to June 2011, Dr Dias noted that:
Whilst there had been an element of lower back pain in some of these injuries, the predominant pain focus for these injuries for Mr Christy was in the thoracic spine, not in the lumbar spine.
In the opinion of Dr Dias, Mr Christy had a sub-chronic mechanical lower back strain. He noted that Mr Christy reported sharp jolting pains radiating down his right leg associated with numbness. Further, Dr Dias reported that the MRI scan could find no evidence of nerve root compromise that would explain this finding; otherwise the results of the investigations were in accordance with the elicited clinical findings.
Reports of Dr Breit, Orthopaedic Surgeon
Dr Breit assessed Mr Christy on 13 July 2011 at the request of the Respondent’s insurer.
In his report of 18 July 2011[21] Dr Breit noted that a lumbar MRI of 29 June 2011 showed bulging of the L4/5 and L5/S1 discs.
[21] Exhibit R1 2013/5260 p.38.
He reported that Mr Christy suffered thoracic and lumbar spondylosis and that his employment by the Respondent had been an aggravating factor. At the time of the assessment the aggravations had not ceased; they were expected to resolve in three months
Dr Breit gave a “guarded” prognosis. Further he stated:
This gentleman’s symptoms will almost certainly settle completely but there is a very high probability of recurrent symptomatology if he continues with this type of employment.
In the opinion of Dr Breit, Mr Christy was fit to work normal hours on light duties.
Dr Breit provided a supplementary report dated 16 August 2011.[22] He reported that “normal hours could be worked and it is unlikely that he will be ‘normal’ and fit for his pre-injury duties.”
[22] Exhibit R1 2013/5260 p.56.
On 30 January 2012 Dr Breit again assessed Mr Christy. He provided a report dated 1 February 2012.[23]
[23] Exhibit R1 2013/5260 p.62.
Mr Christy gave a history of his pain continuing and seeming “more constant, possibly little worse and is still aggravated by activities.” At the time he was driving a new vehicle delivering loads already stacked on pallets. Previously he had spent about six months working in the office doing data entry.
Dr Breit reported that:
This gentleman gives a number of specific traumatic episodes which have led to an aggravation which has not settled. As well is that, part of the degenerative disease is due to the nature and conditions of employment, where there is significant lifting and carrying.
……
Thoracic spine – the effect has ceased
Lumbar spine – the effect has not ceased.
……
Lumbar spine – this is very hard to assess given the ongoing complaints and it is quite likely that this will be permanent. It is still a little too early to indicate that definitively.
……
The prognosis at this stage is guarded.
In a supplementary report dated 23 April 2012[24] Dr Breit considered a copy of the suitable duties scheduled for Mr Christy in February 2012, which reflected the advice he had previously provided. The schedule indicated that Mr Christy “could work 40 hours a week with a reasonable weight-lifting limit in an area where he could move about according to comfort. They have indicated 12 ½ kg lifting limit and five-minute rest breaks every 30 minutes. They have also introduced a graduated increase in his hours of work back to those usually undertaken.” Dr Breit considered that this schedule was quite appropriate.
[24] Exhibit R1 2013/5260 p.81.
Report of Dr Beran, Consultant Neurologist
Mr Christy was assessed by Dr Beran at the request of the Respondent’s insurers in September 2012. He provided a report dated 10 September 2012.[25]
[25] Exhibit R1 2013/5260 p.116
Dr Beran reported that “the patient impressed as being genuine and of integrity and I do not believe that he is fabricating his complaints although I do not believe they relate to the incident as described ……”. In the opinion of Dr Beran it was possible that repeated bending and lifting could have contributed to Mr Christy’s initial complaint but that he expected that his symptoms would settle in a matter of a month. In his view Mr Christy appeared to have a constitutional predisposition to an arthritic complaint and should be referred to a rheumatologist.
Report of Dr Potter, Rheumatologist
Mr Christy was assessed by Dr Potter in April 2013 at the request of the Respondent’s insurers. He provided a report dated 17 April 2013.[26]
[26] Exhibit R1 2013/5260 p.167.
Dr Potter reported that:
Mr Christy’s progress has been that of prolonged symptoms with no clear evidence to me of injury ongoing but symptoms do persist. The compounding factor is probably behavioural, characterised by aspects of fear avoidance behavior ……. We now have to deal with the chronicity and prolonged symptoms longer than the usual criteria allowed. ….. Restriction should be gradually tapered in line with the GRTW required….
The responsible care remains the following principles:
(a)reassurance and counselling
(b)simple analgesia
(c)no further tests
(d)home exercises
(e)return to normal duties.
In a further report dated 27 June 2013[27] Dr Potter referred to the problems of non-specific low back pain “from which oftentimes, there is no clinically precise diagnosis and oftentimes, not a good imaging correlation. But the facts remain the man is left with significant pain ……” .
[27] Exhibit R1 2013/5260 p.183.
Report of Dr Ellis, Specialist Surgeon
Dr Ellis assessed Mr Christy in October 2013 at the request of his Solicitors. He provided a report dated 30 October 2013.[28]
[28] Exhibit R1 2014/1090 p.11.
In the opinion of Dr Ellis:
As a result of work-related lifting strains with TNT, Mr Christy has suffered musculo-ligamentous contusion, aggravation of future degenerative change in his thoracic and lumbar spines.
……
In the lumbar region the MRI has demonstrated desiccation or internal disc disruption affecting lumbar discs 4 and 5, and broad based posterior disc bulging at L4/5 and L5/S1 with mild narrowing of the right neural exit canal of L5/S1 consistent with the neurological deficit he has in the right leg. …… Desiccation or internal disc disruption is associated with leakage of denatured protein from the damaged disc with secondary effects in radiculopathy as a consequence of the effects on the adjacent spinal nerves at the disc level.
……
Rehabilitation assessment and assistance should be provided in an attempt to retrain Mr Christy in work other than physically demanding work. If he attempts to return to this type of work in the future recurrence and exacerbation of his condition can be expected. …… He is permanently unfit for physically demanding work requiring repeated bending and heavy lifting.
There is no evidence of psychosomatic illness and no evidence of previous abnormality, debility or injury contributing to his impairment assessment.
Report of Dr van Gelder, Neurosurgeon and Spinal Surgeon
Dr van Gelder assessed Mr Christy on referral from his general practitioner in April 2014. He provided a report dated 15 April 2014[29]
[29] Exhibit R14.
In the opinion of Dr van Gelder:
Mr Christy had nonspecific low back pain associated with early degenerative changes with a high degree of contribution from non-structural factors particularly apprehension about moving his back and fear of movement, and misunderstanding about his back condition. …… Mr Christy may be helped by counselling and reassurance, encouragement with light normal activities and aerobic exercise, and he should not be managed with further radiological investigations and interventions.
Evidence of Dr Browne, Rheumatologist
Dr Browne assessed Mr Christy at the request of his Solicitors in June 2014. He provided a report dated 8 June 2014 and gave evidence.
Dr Browne reviewed various investigations of Mr Christy’s spine and reported as follows:
A bone scan and CT examination of the thoracolumbar spine in November 2008 reveals posterior disc bulging at T6, T7 and lower lumbar discs without neural impingement.
MRI scan of the thoracic spine on the 20th May 2011 reveals generalized spondylitic change with features suggesting Scheuermann’s disease. A small left sided disc protrusion was noted at T2/3 and central protrusions at T7/8 and T10/11.
MR scan of the lumbar spine reveals mild spondylitic change but no disc protrusion or neural compression on the 30th June 2011.
A bone scan dated 9th December 2011 suggested some left SI joint arthritis change.
A further MRI scan of the lumbar spine on 20th July 2012 reveals a broadbased disc bulge at L4/5 while at L5 S1 a mild broadbased annular bulge is evident with some contact of the right L5 nerve root.[30]
[30] Exhibit R1 2015/1880 p.41-42.
In the opinion of Dr Browne, Mr Christy is suffering from thoracolumbar spondylosis with probable right lumbar radiculopathy. It is likely that his symptoms arise from “the left lower lumbar spine segments with pain that is either discogenic or related to facet joint changes.” Further, Dr Browne considered Mr Christy to be permanently unfit to resume his pre-injury duties, although “he is likely to be suitable for officebased duties”.[31]
[31] Exhibit R1 2015/1180 p. 42.
When asked as to the effect of the incident of 14 June 2011, Dr Browne said that the act of bending over “just may be the final event in the process which leads to a further protrusion, mechanical problem with the disc, leading to some impression on the nerve, and then triggering off that sensation of electrical discomfort. So I think it was probably the end stage of a long process, which may have evolved, you know, years before, but was accelerated by the nature and conditions of his work over time.”[32] The sensation of an electric shock in the lower shin and foot was consistent with referred pain from an injury at the fifth lumbar level.
[32] Transcript01/06.2016 p-90.
The evidence of Dr McGill, Rheumatologist
Dr McGill assessed Mr Christy at the request of the Respondent’s Solicitors on 20 August 2014. He provided a report dated the same day[33] and gave evidence.
[33] Exhibit R1 2015/1880 p.57.
Dr McGill also reviewed the earlier imaging studies.
In his report, Dr McGill expressed the opinion that Mr Christy’s thoracic symptoms have “largely” resolved. He noted that physical examination revealed no objective abnormality but that “minor disc bulging and minor facet joint hypertrophy have been demonstrated”. In his view non-specific low back pain is an appropriate diagnosis. In giving evidence he explained that this was an appropriate label when the cause of a person feeling back pain cannot be exactly determined. It incorporates both psychological and physical factors.[34]
[34] Transcript 02/06/2016 Mr Pathan-159.
Dr McGill was of the view that it is likely that non-organic factors play a large role in Mr Christy’s experience of, or reporting of, symptoms and that “there is no physical reason why he should not perform his previous full normal duties without restriction.”[35]
[35] Exhibit R1 2015/1880 p. 62. .
Discussion
Whilst neither party bears an onus of proof, there is an evidentiary burden on the Respondent which must be discharged if the decision under review is to be affirmed. For this to occur we have to be satisfied that:
(a)Mr Christy has not suffered from the effects of the compensable injury such as to reasonably require medical treatment; and/or
(b)that he has not been incapacitated for work as a result of the injury,
at any time since 6 January 2014.
If we cannot be so satisfied the reviewable decision must be set aside and another decision substituted.
Having considered the evidence, we are not satisfied on the balance of probabilities that Mr Christy has ceased to suffer the effects of the injury at any time since 8 January 2014. We accept the evidence of Mr Christy that he has continued to suffer pain, at times severe, in his lower back.
There were some aspects of Mr Christy’s evidence that caused us concern that he was not being entirely frank. We have taken into account the argument put by Counsel for the Respondent that we should not accept his evidence on the basis that he had not been honest when he denied that he had regularly worked out at a gym a short time prior to his suffering the injury to his lower back. It does appear to us unlikely that on several occasions more than one health professional made an error in the history taken from Mr Christy.
In a Workplace Assessment Report made 15 April 2011, Ms Miller, Rehabilitation Case Manager reported that Mr Christy “advised that he previously attended the gym at least 3 times per week but this has ceased due to his injury”.[36] On 13 January 2009 Dr Bodel reported that “this gentleman used to enjoy attending a gymnasium five or six days a week. He now does mainly cardio work rather than weight training.”[37] The notes of the Sydney Medical Centre, where Mr Christy attended a number of general practitioners, referred to an “intense workout last night, this morning nR upper neck pain and stiffness” (22.05.2009); a reference to Mr Christy having started “training hard” in March 2009 and “quad tightness after squats at gym” in September 2008. The notes also refer to Mr Christy having suffered an injury while kickboxing in August 2008.[38]
[36] Exhibit R1 2013/5260 p.4.
[37] Exhibit A8.
[38] Exhibit R9.
Mr Christy rather belatedly offered an explanation that he had regularly attended a gym as a teenager. He suggested that the references to gym work in later years were references to his strengthening training necessitated by his previous injuries. However the references in the clinical notes which we have mentioned suggest that Mr Christy was engaged in more intensive gym work than he was prepared to admit. If he was not being entirely frank in his answers, it is difficult to see why he would be so, as the notes of his attending a gym preceded the subject injury. On the other hand he may have been anxious to advance his “nature and conditions” claim, to which we shall return later in these reasons.
We do not consider that his evidence denying more recent gym attendance was of such importance that we should regard him as an unreliable witness in all respects. There are many recorded findings which support his claim that he has continued to suffer chronic lower back pain since June 2011. On the advice of his doctors he has subjected himself to many forms of treatment, some invasive, in attempts to relieve the pain.
Whilst we are satisfied that prior to 14 June 2011 he suffered some incidences of back pain, we are satisfied that on these occasions he complained of pain in the area of his thoracic spine, not his lumbar spine. We are satisfied also that on each occasion the pain resolved and he was able to continue with his normal delivery duties. We make these findings based on the evidence of Mr Christy and the reports of Dr Dias who examined him before and very shortly after 14 June 2011. We take into account that Dr Dias was the medical practitioner appointed by the Respondent to assess workplace injuries and to whom Mr Christy was transported immediately after his complaint of his back “locking up” on 22 June 2011.
We accept Mr Christy’s evidence that since 14 June 2011 he has suffered ongoing lower back pain and a tingling sensation in his left shin and foot. These are the same symptoms as he reported immediately following the injury for which the Respondent accepted liability. It may be that Mr Christy’s perception of his pain and disability has been affected by psychological factors. This does not mean that his experience of pain is not real.
In reaching our conclusion we have preferred the opinion of Dr Browne to that of Dr McGill. In the opinion of Dr Browne the incident of 14 January 2011 was an event which triggered the onset of pain arising from working conditions which involved repeated bending, twisting and lifting, at times of heavy objects. This is consistent with the symptoms Mr Christy says he has continued to suffer from that date and which he says he did not suffer previously. We accept the opinion of Dr Browne that Mr Christy is not fit to resume the duties he was undertaking prior to his suffering the injury.
The opinion of Dr Browne is supported by the opinions expressed by Dr Dias, Dr Breit and Dr Ellis.
On the other hand, Dr McGill makes a diagnosis of “non-specific back pain” which he describes as the appropriate diagnosis when the cause of back pain cannot be exactly determined. He accepted that the cause may be both physical and psychological. Dr van Gelder also diagnosed “non-specific back pain”.
Dr McGill made specific reference to Mr Christy’s significant muscle development. He stopped short of suggesting that Mr Christy was not telling the truth and did not expand upon his comment in this regard. Nevertheless we understood Dr McGill to be suggesting that Mr Christy’s muscle development was inconsistent with a history he has given.
We have taken into account that Mr Christy has worked in various positions and was engaged in light duties at the time the Respondent decided to withdraw those duties from him. He returned to his delivery duties after previous episodes of back pain and tried to return to that work after the injury he suffered on 14 January 2011. Further, he underwent significant treatment in an effort to overcome the injury, unfortunately without success. There is nothing in the evidence which suggests that he would not have returned to his pre-injury duties on a permanent basis had he been fit to do so. His work history supports his claim that he enjoys working and wishes to return to work given appropriate duties.
We note that prior to the decision to cease payments there was no offer of suitable work to Mr Christy, nor was there a return to work programme in place. It also appears that no counselling assistance was given to prepare Mr Christy to return to the workforce leading up to the reviewable decision being made.
In all the circumstances we are not satisfied on the balance of probabilities that Mr Christy had ceased to suffer the effects of the injury at the date of the reviewable decision or at any time since. We are satisfied that since 6 January 2014 and at the date of this decision, Mr Christy is entitled to medical expenses reasonably incurred in relation to the injury and to compensation for incapacity caused by the injury.
The decision under review will be set aside.
The matter will be remitted to the Respondent for reconsideration of Mr Christy’s entitlement to compensation under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with these reasons for decision.
PART E
APPLICATION 2015/1880
REVIEW OF DECISIONS TO DENY LIABILITY TO PAY COMPENSATION FOR AN INJURY BEING “ADJUSTMENT DISORDER WITH ANXIETY AND DEPRESSION, PANIC DISORDER” AND TO DENY LIABILITY TO PAY COMPENSATION FOR PERMANENT IMPAIRMENT RESULTING FROM THE INJURY
The claims
By letter dated 28 January 2015 Mr Christy’s Solicitors lodged a claim for a work-related psychological injury diagnosed as adjustment disorder with depression and anxiety. Mr Christy was also diagnosed as suffering panic disorder.[39] At the same time a claim was lodged for compensation for permanent impairment and non-economic loss resulting from the psychological injury.[40]
[39] Exhibit R1 2015/1880 p.77.
[40] Exhibit R1 2015/1880 p.64.
Legislation relating to liability to compensate for an injury
Subsection 14(1) of the Act provides:
(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.
Subsection 5A(1) provides:
(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 (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;
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.
Section 5B(1) provides:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
Ailment is defined in subsection 4(1) to mean:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Legislation relating to compensation for permanent impairment resulting from an injury
Section 24 of the Act provides in part:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
…
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
Mr Christy’s evidence
In late 2011 Dr Dias referred Mr Christy to Sawtell & Associates, Clinical Psychologists, as he was having difficulty dealing with the pain and the injury he had suffered. At the time he was feeling depressed with the situation in which he found himself and was starting to suffer symptoms of anxiety. In addition he felt he was being unfairly treated in relation to his injury and symptoms by certain staff members in the Respondent’s office.[41]
[41] Transcript 01/06.2016 p-25.
Mr Christy continued to have problems coping with constant pain in his lower back. By September 2012 the pain was affecting his sleeping, he was having problems at work and he continued to feel anxious and depressed. He experienced a gradual withdrawal from his friends and a breakdown in his relationships. He felt that his health was deteriorating.[42]
[42] Transcript 01/06/2016 p-30.
In April 2013 Mr Christy consulted Ms Kwok, Psychologist, for assistance with pain management. He described the situation at that time as “my condition was further deteriorating, my depression symptoms increased because of, you know, unsuccessful treatment, and obviously there was no light at the end of the tunnel, so it was upsetting”.[43]
[43] Transcript 01/06/2016 p-33.
In October 2013 Mr Christy again consulted Ms Sawtell, Psychologist. At that time he reported difficulties with his mood and sleep patterns and that he was experiencing pain associated with most activities. The pain was exacerbated by prolonged standing, sitting, bending and lifting. His libido was reduced.[44]
[44] Transcript 01/06/2016 p-34.
Mr Christy was referred to Dr Kaye, Psychologist in May 2014. Dr Kaye has assisted Mr Christy with pain management techniques. Mr Christy continues to see Dr Kaye every 4 to 8 weeks.
Report of Dr Beran, Consultant Neurologist
As we have noted previously, in his report of 10 September 2012[45] Dr Beran formed the view that Mr Christy was genuine and not fabricating his complaints. Further, he reported that “Mr Christy shows clear signs of emotional disturbance and this will have a negative impact on his well-being and likely improvement”.[46]
[45] Exhibit R1 2013/5260 p.116.
[46] Exhibit R1 2013/5260 p.120.
Report of Ms Kwok, Psychologist (Successful Rehabilitation Services)
Mr Christy was referred to Successful Rehabilitation Services in 2013 to assist with his rehabilitation.
In a report dated 16 April 2013[47], Ms Kwok, a Workcover Approved Psychologist, stated that “the claimant did not present with psychological problems that may prevent him from returning to pre-injury duties; however, physical examinations may reach an alternative conclusion.” Nevertheless testing carried out by Ms Kwok in April 2013 gave scores of extremely severe for depression, severe for anxiety and severe for stress.
[47] Exhibit R1 2013/5260 p.160.
Ms Kwok identified a number of barriers to Mr Christy’s returning to pick-up and delivery duties. She proposed a number of treatment strategies to overcome these barriers including cognitive behavioural therapy, psycho-education, improved sleep hygiene and management of the conflict that he reported in his workplace. Mr Christy attended three sessions of psychotherapy but he terminated treatment early due to lack of progress.
Report of Dr Kaye, Psychologist, Sydney Trauma Clinic
Mr Christy was referred to Dr Kaye by his general practitioner, Dr I Khan, in April 2014. He provided a report dated 4 June 2014.[48]
[48] Exhibit R1 2015/1880 p.24.
Testing carried out by Dr Kaye in May 2014 indicated that Mr Christy suffered depression and anxiety levels in the severe range. In the opinion of Dr Kaye, Mr Christy’s history of treatment-resistant chronic back pain and anxiety and depression indicated that his prognosis was “guarded”. Further, in his view, “Mr Christy has a number of significant medical, psychological and occupational barriers to employment which need to be attended to before any attempt is made to return him to full time gainful employment”.
Evidence of Dr Morse, Consultant Psychiatrist
Dr Morse assessed Mr Christy at the request of his Solicitors in July 2014. He provided a report dated 15 July 2014 and gave evidence.
Dr Morse reported, in part:
He is depressed, he has low self-esteem and a lack of self-confidence. He lacks motivation, interest and enjoyment of life. His relationship with his mother has deteriorated because of his depressed irritable state. He is withdrawn from friends. He has sleep disturbance because of his thoughts of his current distress and his pain. He has had suicidal thoughts but no intent.
Although it is well over six months since the original injury, factors stemming from the injury are the pain, discomfort, the difficulties with TNT and others, and his perceived lack of proper treatment are continued course [sic] of distress and I make a diagnosis of Adjustment Disorder with depression and anxiety. [49]
[49] Exhibit R1 2015/1880 p.52.
Later in the report Dr Morse stated:
I do not consider that Mr Christy’s emotional state would prevent him carrying out his previous occupation as a driver/delivery person. I’ve mentioned that his emotional state may have a slight negative effect on his ability to find other work suitable to his physical condition.
Report of Dr George, Consultant Psychiatrist
Mr Christy was assessed by Dr George in February 2015 at the request of the Respondent. He provided a report dated 1 March 2015.[50]
[50] Exhibit R1 2015/1880 p.84.
Dr George reported that Mr Christy was cooperative during the interview, but under the heading “Summary and Opinion” he said that Mr Christy “presented in an evasive, guarded and defensive manner”.[51]
[51] At p.7 of the report.
Dr George also reported that he was unable to make a psychiatric diagnosis and that he would need Mr Christy to undergo a forensic psychological assessment to test the validity of his general presentation and alleged psychopathology.
Evidence of Mr O’Neill, Clinical Psychologist
Mr O’Neill assessed Mr Christy at the request of the Solicitors for the Respondent in August 2015. He provided a report dated 13 August 2015[52] and gave evidence.
[52] Exhibit R5.
In the Summary of Assessment Outcome included in his report, Mr O’Neill stated:
…… there is no psychological injury of a work-related nature.
Mr Christy is psychologically fit to work normal hours and duties in a job for which he is physically fit. I defer to medical opinion to comment on his physical fitness. A vocational assessment may assist and identify work options.
Mr Christy does not require any psychological treatment for any work-related claimed psychological condition. He may benefit from a referral to the Commonwealth Rehabilitation Service or other rehabilitation agency to assist in vocational assessment and planning for return to work opportunities. He is currently receiving Centrelink benefits, being on a disability support pension.
Evidence of Dr Champion, Consultant Psychiatrist
Dr Champion assessed Mr Christy on 1 December 2015 at the request of the Respondent’s Solicitors. He provided a report dated 15 December 2015[53] and gave evidence.
[53] Exhibit R6.
It is Dr Champion’s opinion that at no time has Mr Christy suffered a psychiatric disorder secondary to his back injury. The level of emotional response to an injury and subsequent pain varies from person to person. In Mr Christy’s case his emotional response is within the bounds of normality and does not meet the requirements of an Adjustment Disorder. There was absolutely nothing in his presentation to suggest either anxiety or depression. He was upset because he felt that he could have continued in his role in the office.[54]
Discussion
[54] transcript 03/06/16 p-207.
Has Mr Christy suffered a psychiatric injury?
On the basis of the evidence of Dr Morse and Mr Christy we find that Mr Christy suffers from adjustment disorder with depression and anxiety. Further we are satisfied on the basis of the evidence of Dr Morse that this condition is an ailment that was contributed to, to a significant degree, by Mr Christy’s employment by the Respondent.
We accept the opinion of Dr Morse that factors caused by the injury, being pain, discomfort and loss of his employment, have significantly contributed to the development of Mr Christy’s condition.
We have considered the evidence that Mr Christy was treated with antidepressant medication in about 2006. However the circumstances of this treatment are unclear and we are not satisfied that a psychological condition (if any) suffered by Mr Christy prior to June 2011 had any effect on his present condition.
The conclusion we have reached is supported by the evidence of Dr Kaye, who has the advantage of having treated Mr Christy on a regular basis since April 2014.
We prefer the opinion of Dr Morse to those of Dr Champion and Mr O’Neill.
Dr Champion acknowledged that the differing diagnoses made by Dr Morse and himself involved their respective judgments as to the nature of Mr Christy’s reaction to the injury and the pain he has suffered. He stated that their judgments were on a continuum. In other words, Dr Champion assessed Mr Christy’s response to pain as within normal limits while Dr Morse formed the view that his response has gone beyond normal limits and is such that adjustment disorder was the appropriate diagnosis.
In our view neither Dr Champion nor Mr O’Neill satisfactorily explained why he considered that Mr Christy’s reaction was within normal limits despite his not being gainfully employed in his pre-injury capacity or other positions for which he is experienced, since the Respondent ceased to offer him work in January 2012. This is in contrast to Mr Christy’s work-history prior to his being injured. We have also taken into account that Mr Christy has subjected himself to extensive investigation and treatment and has continued to take medication regularly. Notwithstanding this, he has consistently complained of constant pain.
Dr Champion stated that he did not believe Mr Christy was a malingerer and reported that there was no evidence of voluntary or involuntary exaggeration of symptoms or signs.[55]
[55] Report p.16.
When did Mr Christy sustain the adjustment disorder?
Subsection 7(4) of the Act provides:
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
The evidence as to when Mr Christy first sought medical treatment for his psychological condition is unclear. Although he gave evidence of having been referred to Ms Sawtell in late 2011, Ms Sawtell’s records show that he was referred by Dr Khan on 14 October 2013.[56]
[56] Exhibit R12.
On the basis of Ms Sawtell’s records we are satisfied that Mr Christy is to be taken to have suffered the psychiatric injury on 14 October 2013.
Has the psychiatric injury resulted in permanent impairment?
Dr Morse reported that in July 2014[57]:
Mr Christy spoke throughout the interview of the poor treatment he had with TNT Express. He was distressed at the lack of approval for the injections and other treatment. He was visibly upset when talking about the way he had been treated in the office at TNT.
When Dr Morse asked him about the future he said that “everything has been held up until he gets some treatment to try and get better”.
[57] Exhibit R1 2015/1880 p.49.
So far as treatment was concerned, Dr Morse reported:
Mr Christy requires psychological treatment as part of the pain management program with methods to deal with the pain and to increase his physical functioning. It is known that such programs can increase a person’s ability to have improved function in a number of areas of their life and are less emotionally disturbed by the pain even though the pain is still intense.
……
As mentioned above, Mr Christy should attend a pain management program with particular input by an experienced pain management psychologist. Part of pain management program would be to reduce his daily dosage of Panadeine Forte. It is noted that he did not get much help from a previous pain management program but it should be trialed again.
Under the heading Prognosis Dr Morse again referred to Mr Christy holding the opinion that he is not receiving what he regards as effective treatment to relieve his physical symptoms and that this has led to a preoccupation with his physical condition and anger against the Respondent and the insurance company which have refused to pay for any further treatment. Whilst Dr Morse expressed the view that it is always difficult to estimate the outcome of recommended treatment, with pain management, psychological support and possible medication, it was hoped that there would be an improvement in his emotional state.
On the basis of this evidence we are not satisfied that Mr Christy’s psychiatric condition is permanent.
We have taken into account that his condition has persisted for at least three years. However, Mr Christy expressed his anger concerning the way in which his claims have been managed to both Dr Morse and in his evidence before the Tribunal. Dr Morse suggests that with further treatment and the finalisation of these proceedings there is a reasonable likelihood that his condition will improve.
If, after further treatment Mr Christy’s condition does not improve, it is open to him to make a further application for compensation for permanent impairment.
PART F
APPLICATION 2015/6034
REVIEW OF DECISION DENYING LIABILITY TO COMPENSATE FOR AN INJURY BEING MUSCULO-LIGAMENTOUS CONTUSION, AGGRAVATION OF FUTURE DEGENERATIVE CHANGE IN THE THORACIC AND LUMBAR SPINE AS A RESULT OF NATURE AND CONDITIONS OF EMPLOYMENT
The claim
On 4 April 2014 Mr Christy’s Solicitors wrote to the Respondent requesting a determination dealing with “the nature and conditions of the employment pursuant to the disease provisions of the SRC Act given that Dr Ellis in effect has assessed the work related required a whole person impairment pursuant to the current Comcare Guides, ‘as a result of work related lifting strains with TNT … musculo-ligamentous contusion … aggravation of … degenerate change… in his thoracic and Lumber [sic] Spine.” [58]
[58] Exhibit R1 2015/6034 p.15
On 12 November 2015 the Respondent affirmed an earlier decision denying liability to pay compensation in respect of the above claim.
At the hearing Counsel for Mr Christy informed us that the claim in respect of the thoracic spine is not pressed. We note the evidence that Mr Christy had recovered from the injuries to his thoracic spine prior to 14 June 2011 and there is no claim for an injury to that part of the spine subsequent to that date.
Legislation
As the claim is for an aggravation of degenerative change, it is to be considered under the provisions relating to disease. These provisions are set out in Part E of these reasons.
Evidence
The evidence relating to the condition of Mr Christy’s spine is set out in Part D of these reasons.
In particular, we take into account the evidence of Dr Browne that the injury suffered on 14 June 2011 “just may be the final event in the process which leads to a further protrusion, mechanical problem with the disc, leading to some impression on the nerve, and then triggering off that sensation of electrical discomfort. So I think it was probably the end stage of a long process, which may have evolved, you know, years before, but was accelerated by the nature and conditions of his work over time.”[59]
[59] Transcript 01/06/2016 p-90.
Discussion
On the basis of the evidence of Dr Browne we are satisfied that the injury to Mr Christy’s lumbar spine on 14 June 2011 was caused by the repeated bending lifting and twisting in which he was engaged as part of his employment.
We have found that Mr Christy continues to suffer from the effects of the injury of 14 June 2011. There is no evidence to support a finding that Mr Christy suffered a separate injury to his lumbar spine, either before or after the incident on 14 June 2011. Counsel for Mr Christy did not submit that there was evidence of a separate injury.
The decision under review will be affirmed
PART G
APPLICATION 2015/6278
REVIEW OF DECISION TO DENY LIABILITY TO PAY COMPENSATION FOR PERMANENT IMPAIRMENT RESULTING FROM AN INJURY TO THE LUMBAR AND/OR THORACIC SPINE
The claim
On 2 September 2014 Mr Christy made a claim for compensation for permanent impairment resulting from the injury to his lumbar and/or his thoracic spine.
As noted earlier in these reasons, Mr Christy does not press a claim in respect of his thoracic spine. In view of our finding that Mr Christy did not suffer a separate injury to his lumbar spine apart from that which has been accepted by the Respondent, any claim for compensation for permanent impairment is restricted to the lumbar injury suffered on 14 June 2011.
We have set out earlier our reasons for preferring the evidence of Dr Browne. We accept his evidence that Mr Christy is permanently unfit to resume his pre-injury duties. We also accept his evidence that Mr Christy has suffered a 13% whole person impairment in accordance with Table 9.17 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1.
Table 9.17 relates to the lumbar spine. The rating of 10%-13% was made against criteria, which include:
Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, alteration of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location (may be verified by electrodiagnostic findings).
In the opinion of Dr Browne, Mr Christy “in that L5 territory, he has pain in that distribution, then he has a herniated disc demonstrated on the MRI scan.” [60]
[60] Transcript 01/06/2016 p-93.
The decision under review will be set aside. The matter will be remitted to the Respondent for reconsideration with a direction that the Respondent is liable to pay compensation to Mr Christy in respect of the injury to his lumbar spine which has resulted in a whole person permanent impairment of 13%.
PART H
APPLICATION 2013/5260
REVIEW OF DECISION TO DENY LIABILITY TO PAY COMPENSATION IN RESPECTOF THE COST OF CAPSULAR INFILTRATION PROCEDURE
Mr Christy accepts medical advice he has received which indicates that capsular infiltration is unlikely to assist him.
He does not press this claim and the decision under review made 16 August 2013 will be affirmed.
PART I
APPLICATION 2015/1879
REVIEW OF DECISION DETERMINING MR CHRISTY’S NORMAL WEEKLY EARNINGS
The application
When the Respondent accepted liability to compensate Mr Christy in respect of his injury, it determined the amount of compensation payable for those periods during which he was totally or partially incapacitated for the work in which he was engaged prior to his suffering the injury. Over time the amounts were varied.
By a decision made on 2 April 2015[61] the Respondent determined that, effective from 2 February 2015, the weekly compensation payable (if any) would be based on Mr Christy’s normal weekly earnings being $1389.30. This was a reduction from the normal weekly earnings figure previously calculated. It should be noted that at the time Mr Christy was not receiving incapacity payments as the Respondent had determined that he had recovered from the effects of the injury. Nevertheless it was justified in making the recalculation if the amount Mr Christy would have received had he not been incapacitated for work had changed.
[61] Exhibit R1 2015/1879 p.47
Mr Christy seeks to have this decision set aside. He does not ask that we determine the precise figure of his normal weekly earnings, but that we give directions as to the proper method of calculation of this figure.
Relevant provisions of the Act
Subsection 19(2) provides:
Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula …. [set out in the subsection].
Section 8 sets out how the amount of normal weekly earnings is to be calculated. Subsection 8(2) provides:
Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula [set out in the subsection].Relevant period is defined in section 9. Subject to various qualifications, it is the latest period of two weeks during which the employee was continuously employed prior to the date of injury.
The Respondent’s calculation
It is not in dispute that the manner in which the Respondent conducts its business has changed since 10 January 2014, the last day on which Mr Christy attended work. The delivery/pick-up areas for drivers such as Mr Christy have changed, the rates of pay have changed and the kind of work done has changed. It is accepted that all these factors may affect the calculation of the normal weekly earnings figure.
In calculating Mr Christy’s normal weekly earnings as at 2 February 2015 the Respondent provided payroll data for five employees considered to be comparable employees, spanning periods between 18 May 2014 and 26 October 2014. The average earnings for each employee was calculated and then the average earnings of all five employees was calculated. This figure ($1389.30) was determined to be Mr Christy’s normal weekly earnings as at 2 February 2015.
The argument on behalf of Mr Christy
Counsel for Mr Christy argued that this procedure was not provided for by section 8 of the Act. That section only provides for the use of the amount of the earnings of an employee doing comparable work when the normal weekly earnings of the injured employee for the period of two weeks prior to the date of injury cannot be calculated. An example of such a situation is when an employee is injured less than two weeks after commencing employment. The Act does not provide for an employer to reduce the amount of an injured employee’s normal weekly earnings based on the earnings of comparable workers.
It was put that the correct approach is to calculate normal weekly earnings in accordance with the formula set out in the first two subsections of section 8 and then to make the various adjustments provided for in the following subsections from time to time. The Act does not permit an employer to take the average earnings of a number of workers and then, on this basis alone, reduce the normal weekly earnings of an injured worker.
Discussion
As stated by the Full Court of the Federal Court in Telstra Corporation v Hannaford [62]:
The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of the course of workers compensation, being review which allows for adjustment for change in the light of events and in circumstances which may subsequently happen.
[62] (2006) 151 FCR 253 at 273[57]:
Subsection 8(10) provides a cap on the amount of the normal weekly earnings of an employee. This follows the subsections of section 8 which provide for various adjustments to the normal weekly earnings figure.
Subsection 9 (10) provides in part:
If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a)where the employee continues to be employed by the Commonwealth or a licensed corporation—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work;...
It is clear from the wording of subsection 8 (10) that it was the intention of Parliament that an injured employee not receive more by way of weekly compensation than he or she would have earned had the injury not occurred.
In John Holland Group Pty Ltd v Robertson[63] Dowsett J (with whom Spender J agreed) said:
Clearly, s 8(10) seeks to limit the compensation payable to an injured employee by reference to his or her notional earnings derived from employment with the same employer had he or she not been injured. Section 8(10)(a) demands a notional enquiry which commences with the employee’s actual current employment. The enquiry is as to his or her earnings in that employment had he or she not been injured. Such enquiry would involve consideration of how, in those circumstances, the employee would have been employed, including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident.
[63] [2010] FCAFC 88 at para.74.
Calculation of incapacity payments is made on a weekly basis. Subsection 19(2) specifically refers to an amount of compensation “for each week”. This means that it is open to an employer to re-calculate normal weekly earnings from week to week, provided there is a proper factual basis for making such a change. Normally, once a calculation has been made the same figure will be used for subsequent weekly calculations for a considerable period of time. This is simply a reflection of the fact that circumstances have not changed.
The Act is silent as to how ”the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work” is to be calculated. In our view it is not for the Tribunal to attempt to prescribe a methodology for determining this figure. The normal weekly earnings of a particular injured employee at a particular time is a fact to be determined prior to calculating the compensation payable under section 19.
Whether a determination based on the average earnings of a group of employees said to be comparable to an injured employee is correct or not will depend on the facts of the particular case. In this matter we do not have sufficient information to determine whether or not Mr Christy’s normal weekly earnings have been correctly determined using this method. However, it is not for the Tribunal to endeavour to fetter the means of performing the calculation required by sections 19 and 8 of the Act.
We do not accept the proposition put on behalf of Mr Christy that the method used by the Respondent in the decision under review is necessarily wrong. Whether the resultant calculation is wrong in this case requires a consideration of all relevant facts, not all of which are before us.
The decision under review, being the decision of the Respondent made on 2 April 2015 that Mr Christy’s normal weekly earnings as at 2 February 2015 was $1389.30, will be affirmed.
PART J
CONCLUSION
Application 2014/1090
The reviewable decision made 19 February 2014, being the decision of TNT Australia Pty Ltd that on 6 January 2014 Mr Christy had no entitlement to compensation in respect of medical expenses or to incapacity payments in respect of an injury which occurred on 14 June 2011, will be set aside.
The matter will be remitted to TNT Australia Pty Ltd for reconsideration of Mr Christy’s entitlement to compensation under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with these reasons for decision.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the Applicant.
Application 2015/1880
The reviewable decision made 16 April 2015, being the decision of TNT Australia Pty Ltd to refuse to compensate Mr Christy for an injury being “adjustment disorder with anxiety and depression, panic disorder” will be set aside.
In substitution it will be decided that the Respondent is liable to pay compensation to Mr Christy in respect of an injury being adjustment disorder with anxiety and depression suffered on 14 October 2013.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the Applicant.
The reviewable decision made 16 April 2015, being the decision of TNT Australia Pty Ltd to refuse to pay compensation to Mr Christy for permanent impairment resulting from the psychiatric injury which occurred on 14 October 2013, will be affirmed.
Application 2015/6034
The reviewable decision made 12 November 2015, being the decision of TNT Australia Pty Ltd to deny liability to compensate Mr Christy in respect of the claimed injury of muscular-ligamentous contusion, aggravation of future degenerative change in the thoracic and lumbar spine, will be affirmed.
Application 2015/6278
The reviewable decision made 13 November 2015, being the decision of TNT Australia Pty Ltd refusing Mr Christy’s claim for permanent impairment resulting from the claimed injury of muscular-ligamentous contusion, aggravation of future degenerative change in the thoracic and lumbar spine, will be set aside.
The matter will be remitted to the Respondent for reconsideration with a direction that the Respondent is liable to pay compensation to Mr Christy in respect of the injury to his lumbar spine which has resulted in a whole person permanent impairment of 13 per cent.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the Applicant.
Application 2013/5260
The reviewable decision made 16 August 2013, being the decision of TNT Australia Pty Ltd to deny liability to compensate Mr Christy in respect of a capsular infiltration procedure, will be affirmed.
Application 2015/1879
The reviewable decision made 2 April 2015, being the decision of TNT Australia Pty Ltd that the rate at which compensation is payable, should Mr Christy be incapacitated, be reduced from $1422.07 per week to $1389.30 per week, will be affirmed.
I certify that the preceding 192 (one hundred and ninety -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance, Professor McGrowdie, Senior Member and Senior Member A Poljak.
..................[sgd]......................................................
Associate
Dated 17 October 2016
Dates of hearing 1-3 June 2016 Date final submissions received 3 June 2016 Counsel for the Applicant Mr L Grey Solicitors for the Applicant Mr T Mannah; Mannah Lawyers Counsel for the Respondent Mr B Kelly Solicitors for the Respondent Ms E O'Connor; Sparke Helmore
Key Legal Topics
Areas of Law
-
Employment Law
-
Negligence & Tort
Legal Concepts
-
Causation
-
Damages
-
Duty of Care
-
Negligence
-
Remedies
0
2
0