Hilbert and Linfox Australia Pty Ltd (Compensation) - [2024] AATA 3608

Hilbert and Linfox Australia Pty Ltd (Compensation) [2024] AATA 3608 (10 October 2024)
Division:GENERAL DIVISION
File Number: 2023/3575
Re:Mr Matthew Hilbert
APPLICANT

AndLinfox Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Ms A E Burke, Member
Date:10 October 2024
Place:Melbourne

The Tribunal sets aside the decision under review and decides that Linfox is liable to pay compensation for Mr Hilbert’s injuries, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal remits the matter to Linfox for reconsideration in accordance with this decision.
.................................[sgd]..................................
Ms A E Burke, Member
Catchwords
WORKER’S COMPENSATION – supervisor – accident occurred at work - liability denied – whether injury identified on MRI was work related – conflicting radiological/medical evidence – whether pre-existing condition – whether degeneration – whether another event resulted in the injury – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australian Postal Corporation v Bessey [2001] FCA 266
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Canute v Comcare (2006) 226 CLR 535
Comcare v Drinkwater (2018) 260 FCR 150
Comcare v Martin (2016) 258 CLR 467
Comcare v Stewart [2019] FCA 365
DSLB v Comcare [2023] FCA 1222
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
O'Callaghan and Comcare (Compensation) [2019] AATA 4378
Ross and Comcare [2020] AATA 4350
Sesalim and Secretary, Department of Social Services (Social services second review) [2018] AATA 384
Trewin v Comcare [1998] FCA 713
Secondary Materials
Jaison, Dr Ashish, ‘Interventions to Improve Patient Safety in the Emergency Department’ (2021) Literature review for the Harm Prevention in the Emergency Department project
REASONS FOR DECISION
Ms A E Burke, Member
10 October 2024

BACKGROUND

Mr Matthew Hilbert applied for a review of a decision by the Claims Manager of Linfox Australia Pty Ltd (Linfox) dated 16 May 2023 which denied liability for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for Mr Hilbert’s claimed back condition alleged to have been sustained on 9 March 2022. The decision relied on the evidence of Dr Peter Steadman, orthopaedic surgeon, who formed the opinion that the "fracture of L1 past" was not a consequence of the workplace incident on 9 March 2022, and that the weight of the medical evidence failed to establish that Mr Hilbert’s back injury arose out of, or in the course of, his employment with Linfox.
On 22 May 2023, Mr Hilbert sought review of that decision by the General Division of the Administrative Appeals Tribunal (the Tribunal), stating “I wish to dispute the determination to deny liability in respect of my claimed back injury under section 14 of the SRC Act”.
On 9 March 2022 Mr Hilbert was involved in a workplace incident at the Grand Prix site which resulted in him being transported by ambulance to the Alfred Hospital.
At the time of…

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: [2024] AATA 3608
Decision Date: 10 October 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mr Hilbert against a decision by Linfox Australia Pty Ltd to deny him workers' compensation. Mr Hilbert alleged he sustained an injury to his back when he fell from a height of two meters at his workplace on 9 March 2022. Linfox denied liability, disputing whether the injury identified on an MRI was work-related and suggesting a pre-existing degenerative condition or another event may have caused the injury. The case was heard by Ms A E Burke, Member, of the Tribunal.

The Tribunal was required to determine whether Mr Hilbert had suffered an injury, and if so, whether his employment with Linfox contributed to that condition or its aggravation to a significant degree. Alternatively, the Tribunal had to consider if Mr Hilbert suffered an injury other than a disease, and if that injury arose out of, or in the course of, his employment. If either of these questions were answered affirmatively, the Tribunal then had to decide if Linfox was liable to pay compensation.

The Tribunal found that Mr Hilbert had suffered an injury at work which resulted in his back condition, and that he continued to require medical treatment for this injury. The Tribunal noted that the inability to identify a fracture on the initial CT scan did not conclusively prove that Mr Hilbert had not sustained an injury from the fall. Regardless of the radiological findings, Mr Hilbert experienced and continued to suffer pain in his lower back. The Tribunal considered that both the CT scan and a subsequent MRI showed a radiological finding at the same location, and concluded that there was no other plausible explanation for Mr Hilbert’s back injury than the fall on 9 March 2022. Consequently, the Tribunal found Linfox liable to pay Mr Hilbert compensation for the injuries suffered in the course of his duties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The key issues for determination are:(a)Has Mr Hilbert suffered an injury (disease) and, if so, has his employment at Linfox contributed to that condition(s) or the aggravation of that condition(s) to a significant degree?(b)Has Mr Hilbert suffered an injury (other than a disease) and, if so, did it arise out of, or in the course of, his employment with Linfox?(c)If the answer is yes to either of the above, is Linfox liable to pay compensation?EVIDENCE BEFORE THE TRIBUNALMedical Alfred Health RecordsMedicationsAdmin Date/Time: 09/03/2022 14:34 AEDTMedication Name: oxycodone (Endone (oxycodone))Ingredients: oxyc005tab 5 mgAdmin Details: (Auth) OralSedation Score: 0 = Awake/AlertAdmin Date/Time: 09/03/2022 14:31 AEDTMedication Name: paracetamolIngredients: para500tab 1000 mg 2 EAAdmin Details: (Auth) OralAdmin Date/Time: 09/03/2022 14:31 AEDTMedication Name: ibuprofen (ibuprofen 200 mg oral tablet)Ingredients: ibup200tab 400 mg 2 tab(s)Admin Details: (Auth) OralAdmin Date/Time: 09/03/2022 13:36 AEDTMedication Name: iohexolIngredients: iohe350-100inj 140 mL 140 mLAdmin Details: (Auth) IV, Peripheral intravenous cannulaDischarge Summary fall from 2 metersPrincipal Diagnosis(after study, the condition chiefly responsible foroccasioning the admission)fall from scafolding from 2 meters onto back withheadstrike.full recall of event.in workplace setting up F1 seating / staging whenthe area toppeled and he fell back.clo thingling on the soles of his feet when with AVbut improved on arrivalno other pmhxImp:Mild traumatic brain injuryDischarge PlanHome with rest for 48 hrs, OT follow up forconcussion - referral made, patient informationgiven for mild head injury. Certificate of capacitygiven to patient. GP follow up to determine safetyto return to work(0970372022 13:42 AEDT CT Brain/Cerv Spine)Comment:No injury seen.(09/03/2022 13:42 AEDT CT Chest/Abdo/Pelv/Thor-Lumb Spine)Conclusion:No acute traumatic injury identified.Document Name: Emergency Medical RecordService Date/Time: 09/03/2022 19:44 AEDTResults and Outcome Reassessment ad Further ManagementRV of ptPrimary surveyA: Maintaining ownB: Nil increased wob. Nil obvious flail chest or unequal chest rise. speaking in full sentencesC: Not tachycardicD: GCS 15Tertiary surveyHead/Face: Nil scalp haematoma or facial bruisingChest/Thorax: Nil obvious rib cage tendernessAbdomen: SNTUpper arm:Clavicle - nil bony tenderness bilaterallyShoulder - nil bony tenderness bilaterallyUpper arm - nil bony tenderness bilaterallyElbow - nil bony tenderness bilaterallyForearm - nil bony tenderness bilaterallyWris/Hands - nil bony tenderness bilaterallyLower limbs:Pelvis - nil bony tenderness bilaterallyUpper thigh - nil bony tenderness bilaterallyKnee - nil bony tenderness bilaterallyLower limbs - nil bony tenderness bilaterallyAnkle - nil bony tenderness bilaterallyFeet - nil bony tenderness bilaterallyNil midline spinal tendernessMild right flank painC-spine cleared, spine clearedDW Trauma reg Pouya - advised for urine fwt and if +ve dw them againUrine FWT NADWestmead - passedPt feels wellhomeDocument Name: Emergency Medical RecordService Date/Time: 09/03/2022 14:33 AEDTfall from scafolding from 2 meters onto back with headstrike. full recall of event. (with or after food)in workplace setting up F1 seating / staging when the area toppeled and he fell back. c/o thingling on the soles of his feet when with AV but improved on arrival.no other pmhxPhysical ExamObservation & MeasurementsT: 36.2 °C (Temporal Artery) HR: 70(Peripheral) RR: 18 BP: 120/76(Cuff)SpO2: 98%pink, well perfusedhaedoynamically stableHS dual, nil addedchest, clear good AElarge BMIlogg roll - painful thorasic region.no bruising or grazesFAST negative with good viewsGCS 15 moving all 4 limbs.Document Name: Emergency Medical RecordService Date/Time: 09/03/2022 12:50 AEDTPhysical ExamObservation & MeasurementsT: 36.2 °C (Temporal Artery) HR: 70(Peripheral) RR: 18 BP: 120/76(Cuff)SpO2: 98%pink, well perfusedhaedoynamically stableHS dual, nil addedchest, clear good AElarge BMIlogg roll - painful thorasic region.no bruising or grazesFAST negative with good viewsGCS 15 moving all 4 limbs.SummaryMechanism:53yM fall laterally off 2m high platform- HS to occiput-No LOC- Immediate severe mid-thoracic painInjuries/issues:?L SpineCOVID-19: No risk factors, recent travel, pending swabs.PMHx: T2DM, cholecystectomy, knee arthroscopesHome medications: metformin, allopurinol, zoloftAllergies: NKDASHx: home with wife and son, normally does office work for linfox but working to setup Grand Prix for this injuryPrimary SurveyA: Own, patentB:RR: 22 Sp0O2: 97%RAWarm, well perfused. BP: 160/100 HR: 66 SRD: GCS 15, PEARL©FAST (ED): negativeECG: NAD per reg reviewSecondary surveyHead/Face: Nil facial - nil wound to occiputNeck/C-spine: in soft collarChest: Air entry equal, HSDNMAbdomen: SNTPelvis: non tenderUL: Nil evidence of trauma. 5/5, 2/2 throughoutRLL: L2/3 power 4/5 secondary to pain. L2 sensation 1/2. Otherwise NAD on rightL LL: power 5/5, sensation 2/2 throughoutLogroll: Localized L2/L3 tenderness. Otherwise non-tender. Sensation intact, glute squeeze intactInvestigationsBloods:pendingTrauma series:CXR, PXR NADCT B/C - spinePendingCT Chest/Abdo/Pelvis/T-L spinependingInjuries/issuesNECK/SPINE L2/L3 possible injury F1Plan- Await imaging to guide admission- Disposition Suitable for ward- Referrals TBA- DVT prophylaxis Clexane 40mg nocte if PANSCAN NAD - SCDS in interim-GOCA- C-spine precautions- T/L spine precautions- Fast please until PANSCAN findings notedResult RadiologyCT Chest/Abdo/Pelv/Thor-Lumb SpineCT contrast was administeredCT Chest Abdomen Pelvis Thoracic and Lumbar Spine performed on 09-MAR-2022 at 01:24 PM:Clinical indication:Fall from 2m platform, struck head, back, severe mid thoracic pain.Technique:Intravenous contrast enhanced CT chest, abdomen and pelvis with thoracolumbar spine reformats was prior performed. No images available for comparison.Findings:Chest:No evidence of acute traumatic injury to the mediastinal soft tissue or vascular structures.No abnormal pericardial or pleural fiuid.No pneumothorax. Mild dependent atelectasis. The lungs are otherwise clear.No displaced rib, sternal, scapular or clavicle fracture.Abdomen and pelvis:No evidence of acute traumatic injury to the intra-abdominal hollow or solid viscera.No intra-abdominal free fluid or gas.Normal opacification of the abdominal aorta and its major paired and unpaired branches.The bony pelvis is intact. The hip joints are congruent.Hepatic steatosis. Prior cholecystectomy. Incidental splenunculus.Small fat containing umbilical hernia and superior paraumbilical hernia. No evidence of strangulation.Thoracolumbar spine:No acute fracture or traumatic malalignment.CT Chest/Abdo/Pelv/Thor-Lumb SpineNo paravertebral soft tissue thickening.Conclusion:No acute traumatic injury identified.CT Brain and Cervical Spine performed on 09-MAR-2022 at 01:24 PM:Brain:Ventricular and suical pattern is appropriate for the patient's age.No intra or extra axial haemorrhage.Grey white matter differentiation is preserved.No calvarial or evidence of skull base fracture.Cervical spine:No prevertebral swelling.Alignment is anatomical.No fracture.No apical pneumothorax.Comment:No injury seen.

Decision

Reasons for decision

The Tribunal found on the evidence Mr Hilbert had suffered an injury at work, which resulted in his back condition. The Tribunal found Mr Hilbert has and continues to require medical treatment for his injury. The Tribunal did not consider the inability to find the fracture on the original CT scan conclusively demonstrated Mr Hilbert had not sustained an injury as a result of the fall. Regardless of the radiological findings, Mr Hilbert has and continues to suffer pain in his lower back. The Tribunal found the evidence indicated on both the CT scan and MRI at the exact same location some form of radiological finding. The Tribunal considered there was no other plausible explanation for Mr Hilbert’s back injury than it arose as a result of the fall on 9 March 2022.DECISION The Tribunal finds that Linfox, in accordance with section 14 of the SRC Act, is liable to pay Mr Hilbert compensation in respect of the injuries suffered by him in the course of his duties.

Ratio Decidendi

Legal Principle Established

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