Dring and Telstra Corporation Limited (Compensation) - [2018] AATA 3149

Dring and Telstra Corporation Limited (Compensation) [2018] AATA 3149 (31 August 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0093
Re:Ms Danielle Dring
APPLICANT

AndTelstra Corporation Limited
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:31 August 2018
Place:Melbourne

The Tribunal affirms the decision under review.
........................................................................
Ms Anna Burke, Member
Catchwords
WORKERS’ COMPENSATION – injury resulting from fall – whether injury arose out of or in the course of employment – whether injury occurred in interval between periods of work – whether consumption of alcohol constituted serious and willful misconduct – causation – permanent impairment - decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v PVYW [2013] HCA 41 (30 October 2013)
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473; (1992) 106 ALR 611; (1992) 66 ALJR 365 (3 June 1992)
O'Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 (10 September 2015)
Henderson v. Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281
Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126 (14 December 1951)
Government Insurance Office of NSW v Nowalinski 2 MVR 142; (1985) 3 ANZ Ins Case 60-629
Kennedy v Telstra Corporation [1995] FCA 1640 (6 November 1995)
REASONS FOR DECISION
Ms Anna Burke, Member
31 August 2018

Ms Danielle Dring (the Applicant) is seeking review of a decision made by Telstra Corporation Limited (Telstra) (the Respondent) made pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) which affirmed an earlier determination denying liability for the injury of “left hip contusion” sustained in an accident. At the time of the accident Ms Dring was working as a senior project manager for Telstra (where she worked for 14 years until being made redundant) and was visiting Melbourne from Brisbane in relation to that role. On 29 April 2016 Ms Dring submitted an incident report noting that on 14 April 2016 at 2:30am:
I checked into the Novotel on Monday 11th April with a planned 3 night business trip. About 2:30 AM on 14/4 my friend (who resides in Melbourne) and I returned to the hotel (Novotel on Collins, Melbourne), from dinner. During the change of lifts to get from the ground floor to the hotel rooms, as I was walking past reception I urgently needed to use the toilet, so proceeded to the facilities located on level 6 which is the main foyer, restaurant and bar area.
The bar was closed/empty and I didn’t see any employees around, except for the reception staff who were behind the reception desk. As I exited the bathroom, after a step or two I slipped over – and the next thing I remember is landing quite hard on my left upper thigh/hip area with my arms/hands bracing my upper body towards my left side. I also noticed the floor was wet – it appeared to me the floor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Dring and Telstra Corporation Limited (Compensation) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 3149
Decision Date: 31 August 2018

CaseChat Overview and Summary

This matter concerned an appeal by Ms Dring against a decision by Telstra Corporation Limited to reject her workers' compensation claim. The dispute centred on whether Ms Dring's injury, sustained from a fall at the Novotel on 14 April 2016, arose out of or in the course of her employment. The case was heard by Ms Anna Burke, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether Ms Dring's injury resulted from a fall that occurred during her employment, and if so, whether the injury was caused by the fall. The Tribunal also considered the medical evidence regarding the nature and cause of Ms Dring's injuries, including the potential for pre-existing conditions and the impact of lifestyle factors.

The Tribunal's reasoning was based on a careful consideration of the evidence presented. It gave greater weight to the contemporaneous medical report of Ms Dring's general practitioner, Dr Luis, who examined her the day after the fall and concluded the injury arose from the incident. Reports from Dr Pentis and Associate Professor Steadman, obtained later in the claims process, were afforded less weight due to their non-contemporaneous nature. The Tribunal accepted that the claimed condition was a result of the fall, despite conflicting medical opinions regarding pre-existing pathology and the long-term prognosis.

Ultimately, the Tribunal affirmed the decision under review, meaning Ms Dring's injury was not found to be compensable.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ms McKenzie’s evidence and statement accorded in the whole with the evidence provided by Ms Dring, indicating that they had had champagne in the hotel room before attending dinner at Lucy Liu’s. They had consumed what she described as a large dinner consisting of around three shared plates of food and a bottle of wine, with the evening concluding with cocktails at The Toff In Town, where they sat in a little tram booth and conversed the whole time.Medical EvidenceDr John Pentis, orthopaedic surgeon Dr Pentis, in a medico-legal report dated 20 September 2017 opined:The lady has sustained in the stated accident, an injury to the biceps, femoris tendon and thigh plus what appears to be a strain to the left hip joint muscles and ligaments and chondral injury. This has also placed strain on her lower back and she has had some low back pain associated with this in the lumbosacral region and lower lumbar musculature.These are all consistent with the injury mechanism.The length of recovery is acceptable.She has more than likely improved conservatively as much as she will at this stage and she has reached stability. …The impairment pre-injury is zero as there are no problems previously with the hip joint or the biceps femoris tendon. There may have been some problems with her lower back as she has had chiropractic management, I gather, but apparently nothing severe enough to impart an impairment. Dr Pentis’s fundamental evidence during the hearing was that Ms Dring’s hip pain and associated impairment was a result of the trauma she suffered when she slipped and fell in April 2016. Prior to the incident she had no history of hip pain. He noted that every individual over time will have degeneration within the hip area and arthritis due to the ageing process. However, arthritis generally presents more aggressively in a person’s dominant side and given Ms Dring is right-handed it is likely that trauma from the accident has resulted in her experiencing pain in her left side and not any underlying pathology. His prognosis for Ms Dring was fair but he considered she may require more treatment in the future depending on the pain she is experiencing and the impact of her lifestyle on her hips. He outlined that the standard treatment may involve cortisone injections, cleaning up and repairing the tear and eventually if required a full hip replacement. However, there was no guarantee that this would resolve or improve the pain in the area and indeed sometimes surgery can make matters worse. Associate Professor Peter Steadman, consultant orthopaedic surgeon Associate Professor Steadman, in a medicolegal report dated 27 November 2017 opined:The findings of the scan show a chronic condition of the left hip. This is reportedly a clinically symptomatic new condition, which has been diagnosed on MRI. It relates to the acetabulum and the femoral neck rubbing due to the acetabular retroversion mostly and there are no acute features on the MRI. It would be reasonable to assume that she has hip pathology. I note the similarity between the right hip and the left hip radiologically on plain x-ray.Prior to the fall there was radiological pathology in an unusual consultation and so the issue would be whether she had had previous hip problems and/or whether she aggravated a pre-existing condition. It could not be said that the findings of the left hip MRI present acute pathology.It has apparently not resolved. She says that she has had perpetual symptoms since the fall which are getting worse. It is unlikely the calf symptoms recently would come from the hip as they are not anatomically aligned areas.I would expect a soft tissue injury to resolve within six or eight weeks. She does however have pre-existing pathology. The issue is probably more one of whether she had pre-existing hip complaints and had attended the GP for another reported reason but in relation to the hips and then, as a result of the fall, has aggravated for accelerated pre-existing pathology to the extent that she now has chronic left hip pain is requiring further treatment. Her non-physical issues including her redundancy and generalised anxiety disorder, both of which largely are beyond the scope of my specialty, must be taken into account. However, reasonably I would suggest these factors are likely to have a significant impact on the current situation.The current diagnosis is left hip “pincer” lesion, a form of femoroacatabular impingement.The prognosis at the moment appears to be poor for all the reasons notedShe is likely to be able to do pre-injury duties although she tells me that she cannot sit for an extended period and cannot walk very well and develops a limp with walking.Ongoing treatment may be surgical, including a left hip arthroscopy. The standard procedure would be injection with some local anaesthetic and cortisone to determine whether this will actually give her relief of her symptoms. If it does then there may be an indication for hip arthroscopy and surgical treatment of the pincer lesion. In the longer term, she may require hip replacement surgery although this is conceivably not a direct result of the fall due to known condition and its natural history.

Decision

Reasons for decision

Ms Dring’s injury, whilst not found to be compensable, was initially determined to have arisen as a result of the fall which occurred at the Novotel on 14 April 2016. This was based on the evidence from the report of Dr Luis dated 16 August 2016, Ms Dring’s general practitioner who had examined her on the day following the fall. The request for a medical examination by Dr Pentis and Dr Steadman came late in the piece of the claim, and their medical evidence was therefore not contemporaneous with the fall and as such the Tribunal affords it less weight. On the totality of the evidence provided, the Tribunal accepts that the claimed condition arose as a result of the fall. CONCLUSION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.