Haile Engida and Linfox Australia Pty Ltd - [2014] AATA 912

[2014] AATA 912

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/1183, 2013/1184, 2013/2128

Re

Haile Engida

APPLICANT

And

Linfox Australia Pty Ltd

RESPONDENT

DECISION

Tribunal
John Handley, Senior Member

Date 9 December 2014

Place Melbourne
The Tribunal:
(a)affirms the reviewable decision made on 25 February 2013 finding no present liability for permanent impairment compensation pursuant to s 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) with respect to the midback (rhomboid) strain and right shoulder injuries; and
(b)sets aside the reviewable decision made on 25 February 2013 in so far as:
(i)mild chronic adjustment disorder with anxious and depressed mood is substituted for the diagnosis of depression; and
(ii)remits the remainder of the decision pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 to the respondent to decide its liability pursuant to s 14 of the Act by way of reconsideration, in accordance with the reasons recorded; and
(iii)in the event of the respondent accepting liability for the condition of mild chronic adjustment disorder with anxious and depressed mood it is recommended that it determine its liability for payment of compensation pursuant to ss 24 and 27 of the Act.

(c)affirms the reviewable decision made on 24 April 2013 which found no present liability for payment of compensation pursuant to ss 16 and 19 of the Act with respect to the midback (rhomboid) strain.

....[sgd]....................................................................
John Handley, Senior Member
WORKERS’ COMPENSATION – applicant claimed compensation for left shoulder and upper back injuries with another employer in 2006; liability accepted under the Victorian Work Cover Scheme; report of three incidents at work in 2008 claiming injuries to his right shoulder and upper back; liability accepted; many attempts to return to work under rehabilitation schemes until 2010; did not succeed; claim for permanent impairment compensation made for injuries not previously claimed; liability therefore never determined; claimed injuries did not meet 10 percent threshold for whole person impairment; whether applicant suffered depression or mild chronic adjustment disorder as a consequence of ongoing pain for right should injury; claim for permanent impairment compensation for depression not determined by the respondent; the respondent’s liability is remitted for reconsideration with recommendations; other decisions affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988, sections 14, 16, 19, 24 and 27
Cases
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Lees v Comcare (1999) 56 ALD 84
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
John Handley, Senior Member
9 December 2014

Mr Engida, the applicant, contends he suffered injuries to his neck, upper, middle and lower back, right shoulder and depression arising out of his employment with the respondent, Linfox. At the hearing of the application, he appeared without legal or other representation. He was assisted throughout by an interpreter in the Tigrian language.
An enormous quantity of Tribunal documents (T-documents) were lodged by the respondent in these applications. In these reasons, page numbers apply to the T-documents in application 2013/2128.

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.

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Details

Case: [2014] AATA 912
Decision Date: 9 December 2014

CaseChat Overview and Summary

The case of Haile Engida against Linfox Australia Pty Ltd involved a dispute over workers' compensation claims, with Engida asserting ongoing physical injuries and psychological distress stemming from an incident at work in 2008. The case was heard in a relevant Australian tribunal, tasked with reviewing the validity of the compensation claims made by Engida. Engida, a former employee of Linfox Australia, argued that he had sustained injuries that led to ongoing physical pain and psychological issues, which impaired his ability to work and engage in social activities. Linfox Australia contested these claims, arguing that there was insufficient evidence to support the ongoing nature of Engida's injuries and that his claims were exaggerated. The tribunal was required to determine the legitimacy of Engida's claims, assess the evidence provided, and decide whether the injuries were indeed related to his employment with Linfox Australia.

The court examined several key issues in reaching its decision. It needed to verify the nature and extent of Engida's injuries, assess whether these injuries were indeed caused by his employment with Linfox Australia, and determine if there was any ongoing impact on his health and ability to work. The tribunal also considered Engida's credibility and the consistency of his claims over time, alongside the medical evidence and testimonies provided. Engida presented evidence of his injuries, including medical reports and personal testimony detailing his pain and limitations. Linfox Australia provided counter-evidence, including historical medical records and expert opinions suggesting that Engida's injuries were not as severe or ongoing as claimed. The tribunal carefully weighed the evidence, taking into account the applicant's medical history, the nature of the workplace incident, and the progression of his symptoms over time.

After thorough consideration, the tribunal concluded that while Engida did suffer injuries at work, there was insufficient evidence to support the claim that these injuries had a continuing connection to his employment with Linfox Australia, except for a mild chronic adjustment disorder and a right shoulder injury. The tribunal found that Engida's claims were not fully substantiated, and as a result, his compensation claims were not upheld. The tribunal's decision was based on the lack of objective evidence linking his ongoing symptoms to his employment, despite Engida's subjective reports of pain and disability. The tribunal acknowledged Engida's distress but found that the claims were not sufficiently supported by the available evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 7 October 2010, solicitors who had been acting for the applicant since 1 April 2010, wrote to the claims agent (page 738) providing copies of the clinical files of Doctors Ordonez, Mai and Jensen. The letter does not record that the employment and earnings information also sought by the request of 24 June 2010 was supplied. The Applicant’s Evidence The applicant was born in Ethiopia. He entered Australia as a refugee and has successfully applied for permanent residency. After the episode at work on 13 August 2008, the applicant said he had pain in his upper back and right shoulder. Relief from pain was not achieved by visiting a physiotherapist. His general practitioner Doctor Leslie prescribed painkilling medication to him and referred him to Mr Bruce Love, an orthopaedic surgeon. Mr Love arranged for an ultrasound and x-rays. He was later referred to Doctor Jensen, who became aware that the applicant suffered neck pain and decided that physiotherapy should cease. Between 2008 and 2010, the applicant said he had been undertaking light duties, during reduced hours at work as recommended by Doctor Jensen. He said he was also told to rest when necessary because of pain. However, there was an occasion when Mr Harris, the applicant’s manager told him that he could not rest at work and he should go home. The applicant said he has not worked since that day. Thereafter he has been provided with medical certificates on a regular basis which he has continued to provide to the respondent and to Centrelink, who make regular payments to him of sickness allowance. The applicant said his compensation payments stopped in August 2010. When he enquired why the payments had ceased he was told that he had not responded to a letter which had been sent to him (refer paragraph 58 above). The applicant said he notified the respondent that such a letter had not ever been received. However, payments were not restored. Under cross-examination, he said that he had instructed his lawyers to challenge that decision and provide the documents requested but they had failed to act. The applicant said that his physical injuries have not improved since 2008. He said his situation is worse because he has suffered increasing pain which is always present. He said he is unable to sleep because of persisting pain and when brushing his teeth, being right-handed, he suffers increased pain in his shoulder. He said he has also suffered stress because of continuing pain, which is worsened by activity, poor sleep (because of the presence of pain) and the refusal of the respondent to pay his pharmacy expenses (which deny him taking analgesics). He said he was also stressed by advice he was given by Mr Weaver, whom he identified as a bone specialist, who advised him that he might end up with serious bone issues. The applicant said the continuing pain affects his thinking and all activities are ruined. He said he was unable to have sexual relationships because to do so increases pain in his shoulder, neck and back. He said social interaction in his Ethiopian community has ended because he has become withdrawn.

Decision

Reasons for decision

I note the applicant, in his capacity as the former public officer of the Association, consulted with and sought advice from a doctor at the Millennium Medical Centre on 12 February 2009 (Exhibit R4) about the prevalence of HIV in the Ethiopian community. The doctor recorded that issue had been discussed at a committee meeting and the applicant expressed interest in knowing how to help young people protect themselves from HIV. The entry in the notes supports the evidence of the witnesses and the authors of references of the preparedness of the applicant to serve his community.Conclusion and Reasons for Decision The solicitors who made the permanent impairment application on behalf of the applicant had ceased to act for him prior to the commencement of the hearing. The applicant appeared without legal representation. He was able to speak some English. However, he did need the assistance of an interpreter. I think he regarded the process of litigation suspiciously as an affront to his integrity and honesty. I am satisfied the applicant did suffer some injuries in the workplace which caused temporary periods of incapacity. So was the respondent because the applicant was compensated on those occasions. I am also satisfied that he then experienced pain and discomfort. I am also satisfied that the applicant believes he continues to experience pain and discomfort. However, for reasons which will emerge, I am satisfied, on the probabilities, excepting the right shoulder and a mild chronic adjustment disorder, there is no objective evidence of injury or disease having any continuing connection with his former employment. I will return to consideration of the applicant’s right shoulder later in these reasons. The applicant made three compensation claims upon the respondent in February, July and August 2008. Excepting the permanent impairment application, which was lodged much later on 14 May 2012 by his former solicitors, the three claims in 2008 were confined to reports of injury affecting his right shoulder and his upper back. The first claim form reporting an injury to his right shoulder, disclosed a previous shoulder injury with a query whether the same shoulder was injured in previous employment with Westgate. Documents lodged in respect of the prior compensation claim with Westgate (Exhibit R6) record a left shoulder injury on 24 April 2006. There is no evidence of the applicant ever having suffered a prior right shoulder injury. There is no evidence in this review of any incapacity or entitlement to compensation in respect of the left shoulder. The left shoulder was never claimed within the employment of Linfox. The Westgate compensation documents and associated medical certificates recorded applicant also suffering an upper back injury, being one of the injuries claimed as arising out of the employment with Linfox. The applicant suffered injuries also when employed by Westgate on 6 August 2007 (Exhibit R7). The report of injury records experiencing sharp pain in lower back when lifting a can of dog food (I will assume the applicant was lifting cartons of dog food whilst picking). The claim for compensation completed by the applicant records him having suffered injury to his lower back.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1183, 2013/1184, 2013/2128
Re	Haile Engida
APPLICANT
And	Linfox Australia Pty Ltd
RESPONDENT

Tribunal	John Handley, Senior Member
Date	9 December 2014
Place	Melbourne