Graeme Pocock and Asciano Services Pty Ltd - [2014] AATA 256

[2014] AATA 256

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/0912

Re

Graeme Pocock

APPLICANT

And

Asciano Services Pty Ltd

RESPONDENT

DECISION

Tribunal Mr John Handley, Senior Member

Date 30 April 2014

Place Melbourne
The Tribunal affirms the decision under review.

...................[sgd].....................................................
Mr John Handley, Senior Member
WORKERS’ COMPENSATION – Applicant suffered L5/S1 disc prolapse in 2004 – claims permanent impairment pursuant to Table 9.17 of the Guide – evidence led concurrently from three medico legal specialists – applicant satisfies the criteria against an impairment of 8% – did not have significant signs of radiculopathy at the date of review – decision affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988
CASES
Ashley and Comcare [2012] AATA 4
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment, Table 9.17
Guidelines for the Use of Concurrent Evidence in the Administrative Appeals Tribunal
REASONS FOR DECISION
John Handley, Senior Member

Mr Pocock, the applicant in this review, suffered injury on 2 March 2004. He was then employed by Pacific National Rail which was later succeeded by the respondent.
Immediately before the injury, at about 7:30 PM, when it was dark, he was shunting a ‘C’ class locomotive engine. When alighting from it by vertical steps he anticipated the distance between the bottom step and the ground to be between 6 and 8 inches. Unfortunately at the bottom of the steps was a deep depression. Rather than place his left foot on the ground, as he anticipated, he descended into the depression and took the weight of his body on his left leg. He described a crunching pain in his back and left leg.
The applicant fell and experienced severe pain which left him unable to move for 10 to 15 minutes. He attended a local clinic and was informed that he had suffered a sprain. The T documents lodged by the respondent record that he was given a certificate for two days incapacity (page 5).
The following day his pain was worse and he was taken by his wife to the Emergency Department of the Werribee Hospital. Painkilling medication was provided. He did not return to work for three months. During that time he had severe pain in his back, left buttock, left leg and foot and the three outside toes of his left foot. He said he continues to suffer pain in all of those locations. He has never had pain in his right leg.
The applicant eventually returned to work on alternative duties. He has subsequently been treated extensively by a number of doctors. He retired from employment as medically unfit in March 2010. He continues to receive weekly compensation.
This application seeks a review of a decision made by the respondent on 25 January 2013, subsequently affirmed by reviewable decision on 21 February 2013, to deny lump sum compensation for permanent impairment pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (the…

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 Graeme Pocock and Asciano Services Pty Ltd 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: [2014] AATA 256
Decision Date

CaseChat Overview and Summary

Graeme Pocock and Asciano Services Pty Ltd were before the court in a workers' compensation claim. The applicant, Mr Pocock, claimed to have suffered a permanent impairment of 10% or more as a result of a work-related injury in 2004. The employer, Asciano Services Pty Ltd, contested the claim, asserting that the applicant's impairment was less than 10%. The primary legal issue for the court to determine was whether the applicant's condition met the criteria for a 10% whole person impairment (WPI) as outlined in Table 9.17 of the Workers' Compensation (Medical Costs) Guidelines. Specifically, the court needed to ascertain whether the applicant's symptoms were indicative of radiculopathy, a condition that would justify a 10% WPI rating.

The court examined the evidence presented by four senior medical practitioners, all of whom had expertise in orthopaedics and neurology. The medical evidence was pivotal in the court's decision-making process. Dr Chambers concluded that the applicant did not suffer from radiculopathy, based on the absence of a reduced ankle jerk and the results of a nerve conduction study. Conversely, Mr Brearley found a reduced ankle jerk and sensory loss consistent with the applicant's condition. The court found the applicant to be a truthful witness, but ultimately relied on the medical evidence to determine the extent of the impairment. The court concluded that the applicant's condition warranted an 8% WPI rather than the 10% sought by the applicant.

The court's reasoning was grounded in the medical evidence, particularly the findings regarding the presence or absence of radiculopathy. The court noted that the applicant's symptoms and MRI results aligned with the medical consensus that pathology at the L5/S1 level was responsible for the left leg symptoms. Despite the applicant's assertions, the court found that the medical evidence did not support a 10% WPI rating. Consequently, the court rejected the applicant's claim for a 10% or greater WPI.

The final orders of the court were that the applicant's claim for a 10% WPI was dismissed, and the appropriate rating for his impairment was determined to be 8%. This decision ensured that the applicant's entitlement to weekly compensation and ongoing medical expenses would not be affected, as the court's ruling was specific to the lump-sum compensation claim.

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

Full text does not contain this section.

Decision

Reasons for decision

Mr Brearley reaffirmed his finding of a reduced ankle jerk was abnormal at the time of his examination, however he conceded that in the absence of that finding his conclusion (as to whether the applicant did suffer radiculopathy) probably would have been different (Transcript page 66). He said on the basis of his assessment the applicant would be entitled to a 10% WPI but if he was to be assessed at the date of the hearing, having regard to the evidence heard, probably the best fit this time would be 8% WPI (Transcript page 72). Conclusion and reasons for decision The applicant suffered a very serious back injury in the course of his employment in 2004. The MRIs confirm the presence of disc prolapse (herniation) at L4/5 and L5/S1. Attempts at returning to work were partially successful but eventually the applicant was retired as medically unfit in March 2010. He continues to receive weekly compensation and his rights to medical like expenses remain the responsibility of his employer. Those rights are not at risk by this review. The applicant claims lump-sum compensation pursuant to sections 24 and 27 of the SRC Act. He asserts that he has suffered between 10% and 13%WPI pursuant to Table 9.17 of the Guide. The respondent asserts that any assessment should be no greater than 8% WPI of the same table. The applicant will succeed in this review only if he establishes a WPI of 10% or greater. That objective will be achieved if he satisfies the criteria within Table 9.17 against an entitlement between 10% and 13%. Essentially the issue for determination is whether the applicant now suffers from radiculopathy. The applicant’s symptoms, for the purposes of this review, affect his left leg only. The medical witnesses were uniform in their opinion that pathology at the L5/S1 level is responsible for left leg symptoms. The pathology at L4/5 would be responsible for right leg symptoms which are not experienced by the applicant. The medical evidence heard in this review was from four very senior practitioners holding orthopaedic and neurology qualifications. Their reports and evidence during the hearing was of considerable assistance and helped me to comprehend the medical issues. I do not disregard any of the applicant’s evidence. I am satisfied he is a witness of truth who gave his evidence honestly and did not embellish. I am satisfied that he does suffer radicular pain. But the issue under consideration is of a medical nature and I have deferred to the medical evidence in reaching the conclusions which are found later. Dr Chambers said that radiculopathy would only be present if there was compression of the L5/S1 nerve root. He said compression is the phenomena of the nerve being pinched and producing symptoms. He found a left ankle jerk, on examination in 2013 and concluded the applicant did not have radiculopathy. He said that opinion was later confirmed by the findings of the nerve conduction study. Mr Brearley found the applicant had a diminished or reduced ankle jerk at examination in 2012, together with sensory loss over the outer left leg which he said was consistent with the L5/S1 pathology.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/0912
Re	Graeme Pocock
APPLICANT
And	Asciano Services Pty Ltd
RESPONDENT

Tribunal	Mr John Handley, Senior Member
Date	30 April 2014
Place	Melbourne