Hilbert and Linfox Australia Pty Ltd (Compensation)
[2024] AATA 3608
•10 October 2024
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 384Trewin 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 the incident Mr Hilbert’s had been seconded to work on Linfox’s Grand Prix contract, working at Lakeside Drive, Albert Park putting up concrete barriers and fences around the racetrack for about four months. Mr Hilbert’s substantive role at Linfox was as a full-time supervisor with Linfox, having commenced work with them in about 2016 originally as a driver and then in an office based administrative role. Mr Hilbert resigned from Linfox to pursue other employment and his final day with them was 29 April 2023.
An undated “myosh” safety report was completed by Mr David Stuchbury which recorded the following details in respect of the incident of 9 March 2022:
Worker was working on the fencing crew at the AGP. He was standing on a platform ladder waiting for the MHE to position itself to pick up the fence. While waiting Matthew has leant on the right-hand side handrails at the top of the platform when it has tipped and fallen to the ground.
He has fallen approximately 1.5 metres and landed on his back. The crew immediately rendered assistance and notified Linfox Management. First aid officers attended to Matthew and an ambulance was called. Paramedics arrived on the scene and treated Matthew.
He did not lose consciousness and was talking to the paramedics. He was taken to the Alfred hospital for further tests.
R&l East Management arrived at the scene to manage the situation. The workers wife was advised of the incident and offered any support that she required.
The worker underwent a CT scan and several xrays that cleared him of significant injuries. He was released from hospital at about 20:30. He will undergo a follow up examination at the
Doctors to assess a return to work.
Immediate Actions/Temporary Controls
Procedure reviewed with new control of securing the ladder to the stillage.
Actual Incident Category
On 10 March 2023, Mr Hilbert submitted a claim for compensation under the SRC Act, as he had injured his back whilst working at his usual workplace.
On 5 April 2023, Linfox rejected Mr Hilbert's claim for compensation under section 14 of the SRC Act for a back condition. Linfox determined:
Having regard to the available medical evidence, particularly the specialist evidence provided by Dr Steadman, I am satisfied that you suffer from a back injury, being a "fracture of L1 past”.
However, I note that in order to constitute an “injury” within the meaning of section 5A of the SRC Act, I must also be satisfied, on the balance of probabilities as opposed to possibilities, that your claimed back injury has arisen out of, or in the course of, your employment with Linfox.
Having regard to the available evidence, I am of the view that the weight of the medical evidence fails to establish that your claimed back injury has arisen out of, or in the course of, your employment with Linfox. I appreciate the views expressed by Dr Wong, Dr Abidi and Dr Pawar appear supportive of your claim. However, I have ultimately preferred the evidence of Dr Steadman who did not find that your current back injury arose out of the workplace events alleged to have occurred on 9 March 2022, based on the evidence available from that time.
Specifically, there is no contemporaneous evidence available to me to support your contention that you actually suffered a lower back injury during the incident on 9 March 2022. When you attended at hospital, there is no evidence that you complained of any issue involving your lower back. Indeed, you only complained of an issue involving your head, neck and right flank. You were treated for these complaints and discharged. The hospital records do not disclose any treatment of a lower back condition in circumstances where an injury resulting in a fracture would almost certainly have resulted in a complaint to the treating doctors at the hospital. Accordingly, I find the available medical and factual evidence does not support a finding of the requisite causal relationship between your claimed mechanism of injury, being the workplace events of 9 March 2022, and your current back condition so as to support an acceptance of liability. I am persuaded by the evidence of Dr Steadman and find this evidence to be compelling, mindful of his specialist qualifications and comprehensive review of the available medical and other evidence in the preparation of his report.
LEGISLATIVE FRAMEWORK
As a licensee, Linfox’s liability for compensation for work-related conditions arises under section 14 of the SRC Act, should an employee suffer an injury which results in death, incapacity for work, or impairment.
Injury is defined in section 5A as:
(1) …
(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;
……
Disease is defined in section 5B as:
(1) …
(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.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
…
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
Compensation under the SRC Act can be provided for medical expenses, being treatment that was reasonable for the employee to obtain in the circumstances (section 16), and for incapacity for work (section 19). Compensation can also be provided for injuries resulting in permanent impairment (section 24) and for non-economic loss (section 27).
ISSUES
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 TRIBUNAL
Medical
Alfred Health Records
Medications
Admin Date/Time: 09/03/2022 14:34 AEDT
Medication Name: oxycodone (Endone (oxycodone))
Ingredients: oxyc005tab 5 mg
Admin Details: (Auth) Oral
Sedation Score: 0 = Awake/Alert
Admin Date/Time: 09/03/2022 14:31 AEDT
Medication Name: paracetamol
Ingredients: para500tab 1000 mg 2 EA
Admin Details: (Auth) Oral
Admin Date/Time: 09/03/2022 14:31 AEDT
Medication Name: ibuprofen (ibuprofen 200 mg oral tablet)
Ingredients: ibup200tab 400 mg 2 tab(s)
Admin Details: (Auth) Oral
Admin Date/Time: 09/03/2022 13:36 AEDT
Medication Name: iohexol
Ingredients: iohe350-100inj 140 mL 140 mL
Admin Details: (Auth) IV, Peripheral intravenous cannula
Discharge Summary
fall from 2 meters
Principal Diagnosis
(after study, the condition chiefly responsible for
occasioning the admission)
fall from scafolding from 2 meters onto back with
headstrike.
full recall of event.
in workplace setting up F1 seating / staging when
the area toppeled and he fell back.
clo thingling on the soles of his feet when with AV
but improved on arrival
no other pmhx
Imp:
Mild traumatic brain injury
Discharge Plan
Home with rest for 48 hrs, OT follow up for
concussion - referral made, patient information
given for mild head injury. Certificate of capacity
given to patient. GP follow up to determine safety
to 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 Record
Service Date/Time: 09/03/2022 19:44 AEDT
Results and Outcome
Reassessment ad Further Management
RV of pt
Primary survey
A: Maintaining own
B: Nil increased wob. Nil obvious flail chest or unequal chest rise. speaking in full sentences
C: Not tachycardic
D: GCS 15
Tertiary survey
Head/Face: Nil scalp haematoma or facial bruising
Chest/Thorax: Nil obvious rib cage tenderness
Abdomen: SNT
Upper arm:
Clavicle - nil bony tenderness bilaterally
Shoulder - nil bony tenderness bilaterally
Upper arm - nil bony tenderness bilaterally
Elbow - nil bony tenderness bilaterally
Forearm - nil bony tenderness bilaterally
Wris/Hands - nil bony tenderness bilaterally
Lower limbs:
Pelvis - nil bony tenderness bilaterally
Upper thigh - nil bony tenderness bilaterally
Knee - nil bony tenderness bilaterally
Lower limbs - nil bony tenderness bilaterally
Ankle - nil bony tenderness bilaterally
Feet - nil bony tenderness bilaterally
Nil midline spinal tenderness
Mild right flank pain
C-spine cleared, spine cleared
DW Trauma reg Pouya - advised for urine fwt and if +ve dw them again
Urine FWT NAD
Westmead - passed
Pt feels well
home
Document Name: Emergency Medical Record
Service Date/Time: 09/03/2022 14:33 AEDT
fall 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 pmhx
Physical Exam
Observation & Measurements
T: 36.2 °C (Temporal Artery) HR: 70(Peripheral) RR: 18 BP: 120/76(Cuff)
SpO2: 98%
pink, well perfused
haedoynamically stable
HS dual, nil added
chest, clear good AE
large BMI
logg roll - painful thorasic region.
no bruising or grazes
FAST negative with good views
GCS 15 moving all 4 limbs.
Document Name: Emergency Medical Record
Service Date/Time: 09/03/2022 12:50 AEDT
Physical Exam
Observation & Measurements
T: 36.2 °C (Temporal Artery) HR: 70(Peripheral) RR: 18 BP: 120/76(Cuff)
SpO2: 98%
pink, well perfused
haedoynamically stable
HS dual, nil added
chest, clear good AE
large BMI
logg roll - painful thorasic region.
no bruising or grazes
FAST negative with good views
GCS 15 moving all 4 limbs.
Summary
Mechanism:
53yM fall laterally off 2m high platform
- HS to occiput
-No LOC
- Immediate severe mid-thoracic pain
Injuries/issues:
?L Spine
COVID-19: No risk factors, recent travel, pending swabs.
PMHx: T2DM, cholecystectomy, knee arthroscopes
Home medications: metformin, allopurinol, zoloft
Allergies: NKDA
SHx: home with wife and son, normally does office work for linfox but working to setup Grand Prix for this injury
Primary Survey
A: Own, patent
B:RR: 22 Sp0O2: 97%RA
Warm, well perfused. BP: 160/100 HR: 66 SR
D: GCS 15, PEARL
©FAST (ED): negative
ECG: NAD per reg review
Secondary survey
Head/Face: Nil facial - nil wound to occiput
Neck/C-spine: in soft collar
Chest: Air entry equal, HSDNM
Abdomen: SNT
Pelvis: non tender
UL: Nil evidence of trauma. 5/5, 2/2 throughout
RLL: L2/3 power 4/5 secondary to pain. L2 sensation 1/2. Otherwise NAD on right
L LL: power 5/5, sensation 2/2 throughout
Logroll: Localized L2/L3 tenderness. Otherwise non-tender. Sensation intact, glute squeeze intact
Investigations
Bloods:
pending
Trauma series:
CXR, PXR NAD
CT B/C - spine
Pending
CT Chest/Abdo/Pelvis/T-L spine
pending
Injuries/issues
NECK/SPINE L2/L3 possible injury F1
Plan
- 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 noted
Result Radiology
CT Chest/Abdo/Pelv/Thor-Lumb Spine
CT contrast was administered
CT 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 Spine
No 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.
On 21 March 2023, Dr Vince Mercuri, Radiologist, reported on an MRI of Mr Hilbert’s Lumbar Spine and recorded:
Findings: There is loss of the lumbar lordosis, with a shallow thoracolumbar kyphosis demonstrated. A compression fracture of the L1 vertebra is demonstrated, with reduction of vertebral body height of approximately 45% shown. No paravertebral haematoma or oedema is demonstrated to suggest that this is acute in origin. Desiccation of the intervertebral discs at the thoracolumbar junction and upper lumbar region has been demonstrated.
The T12-L1 disc is of normal posterior contour. The T12 nerves emerged bilaterally without impingement.
The L1-2 disc demonstrates a broad based posterior disc protrusion effacing the anterior aspect of the thecal sac, producing a mild degree of central canal and bilateral lateral recess stenosis (the cross sectional area of the thecal sac at this level is reduced to less than 86mn2, the lower limit of normal is 108mm2). There is no impingement on the L1 nerves on either side.
The 2-3 disc demonstrates a concentric disc protrusion, with an extruded right paracentral disc fragment demonstrating cranial migration posteriorly to the inferior endplate of the L2 vertebra producing severe central canal and in particular right lateral recess stenosis (the cross sectional area of thecal sac at this level is reduced to approximately 45mm2), with probable impingement on the right L3 nerve as it prepares to emerge from the thecal sac at the L2-3 intervertebral disc. There is mild subarticular compartment narrowing at this level but no impingement on the L2 nerves is demonstrated on either side.
The L3-4 disc demonstrates a broad based disc bulge effacing the anterior aspect of the thecal sac and producing a mild degree of central canal and bilateral lateral recess stenosis (the cross sectional area of the thecal sac at this level is reduced to approximately 95mm2). There is mild facet joint degenerative change with subarticular compartment narrowing bilaterally, but no impingement on the L3 nerves is demonstrated in the neural exit foramina on either side.
The L4-5 disc demonstrates a broad based bulge mildly effacing the anterior aspect of the thecal sac but not producing central canal or lateral recess stenosis. There is mild facet joint spondylosis bilaterally, with mild subarticular compartment narrowing bilaterally but no impingement on the L3 nerves is shown on either side.
The L5-S1 disc is of normal posterior contour. There is mild facet joint spondylosis bilaterally with subarticular compartment narrowing more prominently on the left, with contact on the undersurface of the left L5 nerve in its neural exit foramen. The right LS nerve emerges without impingement.
The low thoracic cord and conus are of normal morphology and signal intensity and the conus is normally located.
The sacroiliac joints are of normal appearance bilaterally.
Conclusion: Old compression fracture of the L1 vertebra. Multilevel intervertebral disc degeneration most prominently at the L2-3 level, where there is severe central canal and in particularly right lateral recess stenosis, with probable impingement on the right L3 nerve as it prepares to emerge from the thecal sac at this level. Less severe canal stenosis at other levels, with possible nerve root impingement as described.
On 1 April 2023, Dr Lisa Sorger, Radiologist, reported on an X-Ray of Mr Hilbert’s Thoracia & Lumbar Spine and recorded:
Clinical History:
Fracture L1 45 percent collapse on MRI? Other fractures.
Findings:
X-ray of the thoracic spine:
Vertebral height and alignment are maintained. No acute bony injury identified.
X-ray of the lumbar spine:
Approximately 45 percent loss of anterior vertebral body height of L1. No retropulsion.
Otherwise, vertebral height and alignment are maintained.
Background mild degenerative changes.
On 5 April 2023, Dr Steadman opined in a medico-legal report for Linfox:
He reports that he suffers from back pain. He said that he does not have any leg symptoms and the pain is below the level of his shoulder blades. He said he does not have any arm or leg symptoms associated with it and there has been no change. He describes the pain as being a constant pain between 3-6/10. He said that it is normally at about 3 but with any activity can go up to 6. He describes that when he is halfway through washing the dishes at home, that it becomes too painful.
…
Reportedly he had X-rays and no fracture was identified. In fact, he recalls this was a CT scan because we discussed the fact that he had the iodine contrast that made his groin warm. He said that he was let out of hospital about 8.30 pm that night. He said he had three weeks at home before going back to work and going to both the Linfox GP and his own GP and started physiotherapy. He said that he was on light duties for a while and then left on 14 April. He said he has been walking regularly to improve his overall strength and doing exercises but he feels that his back is weak.
…
Medical Records
Medical records provided included discharge summary from the Alfred Hospital. There is no indication in this record that he sustained an injury of his low back. He is diagnosed as having a mild traumatic brain injury. There is no indication of the thoracolumbar spine fracture identified as the most likely cause of his lower thoracic pain identified radiologically at this IME.
SUMMARY
Mr Hilbert had a fall from a set of steps at the Grand Prix fence set up. Reportedly he was taken to The Alfred Hospital but no fractures were diagnosed and the discharge summary makes no mention of the spinal condition which is a significant injury to miss clinically if it is supposed to have occurred at the time of the fall, lowering the probability of the causal relationship. Subsequently, he reports that he has had ongoing thoracolumbar back pain which is consistent with vertebral collapse changes noted in L1. He suffers from diabetes and is overweight, but the main finding of the MRI and x-rays is that he has a 45% collapse of the L1 vertebrae which is consistent with his complaint.
…
I am therefore of the opinion based upon the history that he suffers from fractured L1 in the past but was not a consequence of a fall on 09.03.2022, as there is no medical record of the injury to confirm a relationship.
…
He will continue to suffer the spine effects of the past L1 fracture.
On 27 September 2023, Dr Raf Asaid, Orthopaedic Surgeon opined in a medico-legal report for Mr Hilbert:
Mr. Hilbert reports that he continues to experience lower back pain. The pain is described as a constant dull ache which predominantly affects the midline region of the lumbar spine. The pain does not radiate down his legs. He has difficulty sitting or standing for extended periods and he can only walk up to 40 minutes before needing to rest. In particular he has difficulty with any repetitive tasks or activities, especially those that involve bending, lifting, or twisting.
…
It is certainly more likely than not, that Mr. Hilbert’s work-related fall on 9 March 2022, was a material cause to his lower back injury. It is unusual that the fracture was not identified on his initial CT lumbar spine performed on 9 March 2022, however, in the absence of any further traumatic event and with the available information, I am unable to draw any other conclusion except that the fracture occurred at the time of the workplace incident. If an MRI of the lumbar spine were performed at the time of the incident, this very likely would have demonstrated the fracture, which has subsequently further collapsed over time as shown on his most recent imaging.
On 5 December 2023, Dr Steadman opined in a supplementary medico-legal report for Linfox:
The cause of Mr Hilbert's condition? Please detail.
The cause is not clear. It is not clear because he maintains that the fracture is as a consequence of the fall and yet at the biggest teaching hospital in Melbourne, where he has been assessed for his injuries, the fracture is not identified. I maintain from the information provided that the objective evidence does not support the fracture as a consequence of the fall. Beyond that it is difficult to reconcile any relationship to the work-related event.
Further to your answer to question 1(c) above, would the type of imaging conducted (i.e., an MRI scan) make a difference in terms of identifying a lumbar spine fracture? Please provide any medical literature to support your findings and include detailed clinical reasoning.
If this question relates to the type of imaging performed at the time of the injury, then it is known that MRI is a superior investigation than CT scan. That being said for a fracture of the severity and the subsequent collapse, CT scan is very sensitive at detecting fracture lines and collapse. MRI is not a contemporaneous trauma investigation but for example if there was a fracture present that time, it would clearly have shown the oedema of the bone. It should also be noted that MRI is not part of the normal trauma service offering due to the duration of the procedure.
Whether on the balance of probabilities, the fracture could have 'collapsed' after the imaging on 9 March 2022, being the date of the accident and still be related to the incident on 9 March 2022. Please provide any medical literature to support your findings and include detailed clinical reasoning.
This is a good question and, in many ways, goes to the heart of the question being asked regarding the probability that the fracture occurred as a consequence of the fall but was not detected.
This is really the question, is that the CT scan has not detected the fracture but the collapse and fracture has progressed since the fall to be the one known that was detected on the MRI which I requested. Any contemporaneous teaching hospital with high-quality radiology, in my opinion this would be the unlikely scenario, particularly considering the later degree of collapse identified. That is there would have been some collapse or there would have been fracture lines at the time of the initial CT scan, if it were present.
On 26 February 2024, Dr Anthony Kam, Consultant Radiologist, opined in a medico-legal report for Mr Hilbert:
The images of the lumbar spine obtained on 9 March 2022 shows subtle cortical lucency (fracture line) across the upper endplate of L1, as well as questionable deformity of the L1 anterior vertebral cortex. I believe the 9 March 2022 radiological findings, clinical symptoms of back pain at the time, examination finding of localised L2/3 spinal tenderness on secondary trauma survey, and subsequent Lake Imaging result of significant deformity at L1 make it likely that the plaintiff suffered a fracture at the L1 vertebral body as a result of the injuries he sustained on 9 March 2022.
Fractures that are non-displaced and fracture with minimal or no deformity may be difficult to detected on X-ray and/or CT alone. In clinical practice, it is not unusual for fracture to be occult on X-ray/CT and be detected only on further clinical assessment together with additional imaging with MRI, bone scan or repeat X-ray/CT.
I agree with Prof. Steadman’s opinion that had an L1 fracture occurred on 9 March 2022, there would have been some collapse or fracture lines seen on the CT scan of 9 March 2022.
On 21 March 2024, Dr Kam, opined in a supplementary medico-legal report for Mr Hilbert:
The additional images from 20 March 2023 and 31 March 2023 do not cause me to alter my opinion as expressed in my report dated 26 February 2024. I believe the claimant sustained a fracture at the Ll vertebral body as a result of the subject accident on 9 March 2022.
On 2 June 2024, Dr Thomas Lloyd, Consultant Radiologist, opined in a medico-legal report for Linfox:
With regard to the CT study of 9 March 2022 performed in the context of a fall, I am of the opinion that there is no clear fracture of any of the vertebrae of the spinal column demonstrated, specifically no fracture of the L1 vertebrae that can be diagnosed on the CT study.
No injuries of the lungs, solid abdominal organs or bones are evident on the CT study and notably there is no haemorrhage (bleeding) or oedema (swelting) present within the soft tissues adjacent to the thoracic or lumbar spinal column (the upper or lower portions of the spine). This is a relevant negative, because when enough force has been transmitted to the body, especially in the context of a fall, to break the bones of the spine, it is typical to see additional injuries in the nearby soft tissues. These are not present in this case. An unfused secondary ossification centre (developmental variant) is present at the Tl spinous process. This has some associated degenerative change, but is remote from the region of interest.
….
I am of the opinion that the subtle cortical line that is referred to in the report of Dr. Kam dated 26 Feb 2024 ls in fact a nutrient foramen rather than a fracture tine (a hole in the bone that allows the passage of a feeding blood vessel). Furthermore, I am of the opinion that the irregularity of the superior (upper) endplate of the L1 vertebral body is of a degenerate nature rather than due to acute trauma and notably is similar to the irregularity of the endplates of C7 lower, T8 lower, T9 upper, T10 lower, T11 lower, T12 Upper and L3 upper vertebral endplates. The changes are in my opinion, the result of long term degeneration (wear and tear) and not acute trauma.
There is a focal deficiency of the inferior end plate of the L1 vertebral body. Which shows a smooth and corticated margin, consistent with a Schmorl's node. These are focal herniations of disc through the vertebral endplate and are common Incidental findings. The peripheral cortication (mature bone around the edge of the lesion) of the margins of this bony deficiency is evidence that this lesion is longstanding. Further this is not the side of the L1 vertebrae that subsequently is shown to be fractured on the later MRI.
The MRI study of 20/03/2023 shows a loss of vertebral body height consistent with a fracture of the superior endplate of L1, with the total vertebral body height reduced from 2.2cm on the CT study to 1.6cm on the MRI study. There is no oedema signal on the fluid sensitive MRI sequences indicating that this abnormality is not acute, having occurred sometime prior to the MRI.
…
I agree with Dr. Kam that there is a subset of spinal injuries that are not visible on CT scanning and require MRI to depict. These are typically the injuries that do not produce a conical break in the bone but rather micro injuries that are commonly termed bone bruising. Despite these being occult on CT scanning, in the context of acute injury, these injuries are painful and if there are no symptoms of focal pain/ point tenderness (pain that is localised to the area of injury rather than generalised pain) at the time of the injury on physical examination, it is reasonable not to proceed to MRI for patients with a fall but no fracture on CT imaging.
In summary, I can find no evidence of fracture of the L1 vertebral body on the CT scan of 9 March 2022. A non-acute fracture is present on the later MRI seem of 20 March 2023. The changes on the MRI indicate that the compression fracture is not acute but do not allow determination as to when the fracture occurred only that it occurred sometime between the CT scan of 9 March 2022 and the MRI of 20 March 2023.
Potential causes for the vertebral body changes between the two studies include further injury vertebral body height loss due to reduced bone density, though neither of these two possibilities can be ruled in or out on the basis of the imaging provided.
On 4 July 2024, Dr Kam, opined in a supplementary medico-legal report for Mr Hilbert:
I have reviewed the report by Dr Loyd and noted his interpretation of the CT scan findings at L1. I disagree with his opinion that the cortical disruption at L1 is a nutrient foramen rather than the fracture line. I believe in the setting of back pain immediately following the 2 metre fall on 9 March 2022, clinical finding of back pain on log roll examination at The Alfred on 9 March 2022 and localised Lumbar spine tenderness at the time of secondary trauma survey at The Alfred (Page 45 of 62), the radiological appearance at the L1 upper endplate remains most suspicious of an acute L1 fracture as a result of the injuries sustained on 9 March 2022.
PROCEDURAL ISSUES
During the course of a short three-day hearing, on what at the outset appeared to be a very narrow issue, numerous procedural issues were raised with the Tribunal. Whilst the Tribunal is not obliged to give reasons for procedural determinations made in the course of a hearing, it felt duty bound to address concerns raised.
In coming to this bold pronouncement, the Tribunal relied on the Decision of Deputy President Forgie in the at matter of Sesalim where she quoted Mascon CJ in Australian Broadcasting Tribunal v Bond at length:
To interpret a ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.
The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable ‘decision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination. ...
If ‘decision’ were to embrace procedural determinations, then there would be little scope for review of ‘conduct’, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the ‘conduct’ of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of an adjournment in this way is more consistent with the concept of ‘conduct’ than with the notion of ‘decision under an enactment.’
New Contentions put at hearing
Counsel for the Respondent raised concerns with Mr Hilbert amending his case during his Counsel’s opening remarks to the Tribunal and submitted:
·The Tribunal has jurisdiction to consider a range of issues but does not err by considering the issues raised by the parties. No question of law arises in circumstances where the Tribunal does not resolve an issue which had not been the subject of any contention advanced before it for resolution: Comcare v Davies (2008) 173 IR 294; 48 AAR 291; [2008] FCA 393 at [21]; Glennan v Federal Commissioner of Taxation (Cth) (1999) 90 FCR 538; 41 ATR 413; [1999] FCA 297 at [82] per Hill, Sackville and Hely JJ.
·Parties raise issues according to the case management principles in force by way of the AAT’s General Practice Direction. The Tribunal may safely proceed on the basis of the issues joined between the parties.
·A contention has now been raised here about a different issue for the first time at hearing, which requires consideration of different provisions of the SRC Act (including s 5B), which was not previously an issue, and which requires a qualitatively different set of findings.
The Tribunal was not persuaded by the Respondent’s objection to the applicant’s opening remarks. Counsel for the Applicant was merely presenting what the Tribunal has come to expect as the standard discussion about whether the Tribunal has to determine if they are dealing with an injury or an aggravation of an injury. Given the level of seniority of Counsel before the Tribunal, it did not think this was an argument they would not be able to deal with during the proceedings.
The Tribunal did not consider Mr Hilbert was introducing a new injury for which he had not put in a claim, but rather his Counsel was putting forward a different consideration to how the incident of 9 March 2022 impacted his spine. The Tribunal was not persuaded that the SRC Act or the Administrative Appeals Tribunal Act1975 (Cth) (the AAT Act) prohibited an applicant raising such an issue in the hearing.
The Tribunal considered this issue was simply ‘Comcare 101’ and drew upon the often-quoted observations of the High Court in Canute v Comcare (2006) 226 CLR 535 at 540 about the concept of an "injury" to arrive at its determination:
…First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of 'the injury'. Secondly, the term 'injury' is not used in the Act in the sense of 'workplace accident'. The definition of 'injury' is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term 'injury' is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to 'disease' or 'physical or mental' injuries and, at least to that extent, it assumes that an employee may sustain more than one 'injury'. The use in s 24(1) of the indefinite article in the expression 'an injury' reinforces that conclusion.
The distinction between sections 5A(1)(a) and 5A(1)(b) of the SRC Act is an important one, given that the classification of a condition as either a disease or an injury (other than a disease) will determine the applicable test for determining the contribution of work to an injury.
Specifically, for there to be an injury (other than a disease) (often referred to as an “injury simpliciter”), the injury must arise out of, or in the course of employment (section 5A(1)(b) of the SRC Act).
An injury simpliciter (within the meaning of section 5A(1)(b) of the SRC Act) can be contrasted with a “disease” which, according to section 5B(1), must be contributed to, to a significant degree, by the employee’s employment. Thus, a “disease” requires a stronger causal connection between the employment and the ailment (Burch at 268) than that required for an injury simpliciter.
Questions from the Tribunal
Counsel for the Respondent took issue with a question from the Tribunal and submitted:
·the Tribunal’s duty in ensuring a fair hearing includes requiring that it not engage in excessive cross-examination. This is to ensure it is able to impartially perform the function of resolving the evidence adduced before it, with an appropriate degree of detachment, see Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 and Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577.
·An issue arose as to whether or not a question from the Tribunal to a witness may be the subject of objection by a party.
·The objection taken was because a question was asked by the Tribunal which the respondent said may elicit inadmissible evidence from the witness. As the ability to object was raised, the respondent sought to provide context here to assure the Tribunal that the respondent was able to make such an objection.
·As Kiefel J who became the Chief Justice of the High Court said in Rodriguez v Telstra (2002) 66 ALD 579: “The Tribunal is not bound by the rules of evidence…and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored….”. See also Tarrant and Australian Securities and Investments Commission (2013) 62 AAR 192; [2013] AATA 926 (President D Kerr and Senior Member J L Redfern) at [75]-[76].
The Tribunal was somewhat perplexed that Counsel suggested it had engaged in excessive cross examination on the basis of an objection to one question. Nevertheless, the Tribunal has no quibble with Counsel seeking to ensure they use their best endeavours to represent their client, but they should also be mindful that in accordance with Section 33(1AA) of the AAT Act, the person who made the decision must use their best endeavours to assist the Tribunal to make its decisions. Further, the AAT Act clearly identifies that proceedings before the Tribunal shall be conducted with as little formality and technicality; the Tribunal is not a court and is not assisted by the theatrics reserved for jury trials.
The Tribunal is guided at all times by section 33(c) of the AAT Act which clearly identifies that the Tribunal can inform itself on any matter in such a manner as it thinks appropriate. The Tribunal on this particular point, thought it was extremely relevant to ascertain the opinion of the expert witness to resolve in its mind an issue that had arisen in the proceedings. The Tribunal notes the Respondent’s expert witness, unprompted by the Tribunal, provided advice on the exact point raised by the Tribunal and the issue had also found its way into the Respondent’s closing submission.
The Tribunal is not convinced its question can be objected to, but it defers to great authority on this point. Nevertheless, the question raised by the Tribunal was germane to its investigation and needed to be put to the expert witnesses.
Application to Adjourn
Counsel for the Applicant sought an adjournment to the proceedings to afford procedural fairness to Mr Hilbert, in order to address additional reasons provided by the Respondent’s expert in his viva voce evidence and submitted:
·The principles of procedural fairness will be well known to the Tribunal. As early as 1911, Lord Loreburn LC recognised the principle when he said:
"... the Board of Education ... must ... fairly listen to both sides, for that is a duty lying upon every one who decides anything. ... They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."'
[emphasis added].
·The Federal Court had cause to address issues of procedural fairness as recently as October 2023. In DSLB v Comcare, Katzmann J stated:
"Natural justice — or procedural fairness as it is now commonly called — relevantly requires that a decision-maker provide a person whose rights or interests may be affected by the decision with a reasonable opportunity to be heard before the decision is made. In Kioa v West [19851 HCA 81; (1985) 159 CLR 550 at 628-629 Brennan J said:
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v. Government of Malaya; Ridge v. Baldwin per Lord Morris; De Verteuil v. Knaggs. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance ...
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made ..."
·The Applicant was not and could not have been on notice of the additional reasons. The additional reasons do not comprise matters of common sense, but rather are reasons based on highly specialised information in the field of radiology. The additional reasons were not referred to by Dr Lloyd in his report. In Dasreef Pty Limited v Hawchar, the High Court made clear that it was necessary for experts when providing expert opinion, to set out a "transparent process of reasoning", applying the knowledge to the facts to arrive at the opinion. The Applicant submits that Dr Lloyd's failure to adequately set out his path of reasoning in his report of 2 June 2024, and the subsequent provision by him in viva voce evidence of his path of reasoning, has resulted in the unfortunate situation of the Applicant now requiring to seek an adjournment so that he may have an opportunity to deal with the additional reasons provided by Dr Lloyd in his viva voce evidence.
·The Applicant submits that the principles of procedural fairness require that he be provided with an opportunity to deal with the additional reasons, as it is adverse information that could be considered by the Tribunal to be credible, is relevant and is significant to the decision to be made.
·In addition, whilst the rule in Browne v Dunn has no direct application in the Administrative Appeals Tribunal, in Sullivan v Civil Aviation Safety Authority, the Federal Court stated:
"...it must now be held that, while, in form, a tribunal such as the Administrative Appeals Tribunal is strictly inquisitorial, the "core function" of such a tribunal is one of review. In undertaking such a review and where there are interested parties to the review with conflicting positions, there can be circumstances where it would be procedurally unfair for the Administrative Appeals Tribunal to base its decision on the acceptance of a particular witness called by one party without affording another party due notice of a differing version....the inherently flexible content of a procedural fairness obligation can, where that obligation attends the exercise of administrative power, entail a requirement which resembles that which would flow in a judicial proceeding from observance of the rule in Browne v Dunn."
The Tribunal did not grant the adjournment on one simple premise, the application has been on foot for several years and needs to come to conclusion for all concerned.
The additional reasons provided by Dr Lloyd in his viva voce evidence had not been canvassed or address by any other witness, nor had it formed any part of the original determination, discussions, or contentions put in respect of the rejection of Mr Hilbert’s claimed condition.
The Tribunal considered the additional evidence put by Dr Lloyd was not of such gravity it would lead to an adverse outcome for the applicant, nor that it was fundamental to the Respondent’s case. The Tribunal did not consider it would be assisted by an adjournment for additional expert evidence to be provided on this one point.
Fundamentally, it was expressed by all expert witnesses that Mr Hilbert must have suffered some form of trauma (fall) for him to have sustained the fracture at L1. The mechanism of the fall had not been in contention prior to the oral evidence.
The Tribunal’s task is not to chase down every rabbit hole, but to weigh the evidence before it to be positively satisfied it can arrive at the correct and preferable decision.
CONTENTIONS
There is no dispute between the parties that Mr Hilbert is suffering from a fracture at the L1 vertebral level.
There is no dispute between the parties that Mr Hilbert was involved in a workplace incident on 9 March 2022 in the course of his employment with Linfox.
What is in dispute is whether Mr Hilbert’s L1 fracture has arisen out of, or in the course of, his employment with Linfox.
Mr Hilbert
Counsel contended that the decisions under review should be set aside as Mr Hilbert had suffered an injury, other than a disease, that arose out of or in the course of his employment or had suffered an ailment to which Mr Hilbert’s employment had contributed to a significant factor by reasons of the fall.
Counsel contended the Tribunal would fall into error if it did not consider both arms of the definition of injury as prescribed in the SRC Act.
Counsel contended as a result of his back injury Mr Hilbert suffers an ongoing incapacity for work and has an ongoing need for medical treatment.
Counsel contended there was overwhelming evidence Mr Hilbert suffered an L1 fracture as a result of the fall on 9 March 2022 relying on the following:
a. the records of Ambulance Victoria dated 9 March 2022 that noted that:
i. Mr Hilbert had landed straight on his back and “he immediately felt pain to his mid-back and numbness/pins and needles to the soles of his feet”;
ii. Mr Hilbert had pain to his midthoracic spine, worse on palpation;
iii. the final diagnosis was of “pain, back”;
b. the records of the Alfred Hospital, which noted that Mr Hilbert had severe mid-thoracic pain;
c. the records of the Alfred Hospital that notes “L2/L3 possible injury FI”;
d. the Alfred Health Emergency Medical Discharge Summary dated 9 March 2022 that noted that Mr Hilbert had fallen from scaffolding from two metres, onto his back, with head strike, and that he was complaining of tingling on the soles of his feet when Ambulance Victoria arrived, that had but improved on arrival at hospital;
e. the medical certificate of Dr Abidi dated 15 March 2022 which noted that Mr Hilbert had ongoing back pain, was still having difficulty weightbearing and had a painful range of movement;
f. the medical certificate of Dr Pawar dated 7 April 2022 diagnosing Mr Hilbert with a soft tissue injury - lower back pain;
g. the MRI of the lumbar spine dated 20 March 2023 that found an old compression fracture of the L1 vertebra and multi-level intervertebral disc degeneration most prominently at the L2/3 level, where there was severe central canal and particularly right lateral recess stenosis with probable impingement on the right L3 nerve, with less severe canal stenosis at other levels, with possible nerve root impingement as described;
h. the x-ray of the thoracic and lumbar spine dated 31 March 2023 that showed approximately 45% loss of anterior vertebral body height of L1 and a background of mild degenerative changes;
i. the opinion of Dr Asaid, set out in his report dated 27 September 2023 that:
i. Mr Hilbert suffered an L1 vertebral body fracture;
ii. it was more likely than not that Mr Hilbert ‘s work-related fall on 9 March 2022 was a material cause to his L1 vertebral body fracture;
iii. whilst it was unusual that the fracture was not identified on the initial CT lumbar spine performed on 9 March 2022, in the absence of any further traumatic event, the conclusion was that the fracture occurred at the time of the fall;
iv. if an MRI of the lumbar spine had been performed at the time of the fall, it very likely would have demonstrated the fracture, which had subsequently further collapsed over time as shown on most recent imaging;
v. Mr Hilbert had ongoing restrictions on his capacity to work.
j. the opinion of Dr Kam, as set out in his reports dated 26 February 2024 and 21 March 2024 that:
i. the images of the lumbar spine obtained on 9 March 2022 showed subtle cortical lucency (fracture line) across the upper endplate of L1, as well as questionable deformity of the L1 anterior vertebral cortex;
ii. the 9 March 2022 radiological findings, clinical symptoms of back pain at the time, examination finding of localised L2/3 spinal tenderness on secondary trauma survey, and subsequent Lake Imaging result of significant deformity at L1 make it likely that Mr Hilbert suffered a fracture at the L1 vertebral body as a result of the injuries he sustained on 9 March 2022;
iii. fractures that are non-displaced and fractures with minimal or no deformity may be difficult to be detected on x-ray and/or CT alone;
iv. in clinical practice, it is not unusual for fracture to be occult on x-ray/CT scan and be detected only on further clinical assessment together with additional imaging with MRI, bone scan or repeat x-ray/CT;
v. he agreed with Professor Steadman’s opinion that had an L1 fracture occurred on 9 March 2022, there would have been some collapse or fracture lines seen on the CT scan of 9 March 2022, and was of the opinion that such a fracture was visible on the 9 March 2022 CT scan;
k. the complete absence of any other activity or event in Mr Hulbert’s life that could explain the presence of the L1 fracture.
Counsel contended there was no basis to challenge Mr Hilbert’s reliability or credibility, and there was no material before the Tribunal which contradicts any evidence Mr Hilbert has given.
Counsel contended Mr Hilbert answered questions truthfully; did not hesitate to make concessions when material was put to him; had been forthright about his alcohol consumption; never embellished his answers and has never embellished his pain or restrictions as a result of his injuries.
Counsel contended the Respondent’s pursuit of another explanation for Mr Hilbert’s injury had not been borne out by the evidence.
Counsel contended that Mr Hilbert had been forthright about his alcohol consumption, he had not disputed he drank too much, but was adamant he did not drink to the point of becoming legless, had never fallen down whilst drunk and had never suffered a fall which he could not recall because he was intoxicated.
Counsel contended there was simply no evidence that Mr Hilbert had ever suffered a fall, outside the incident of 9 March 2022, to produce a fracture, the sort of fall Dr Lloyd had described as requiring abnormal force on a normal bone.
Counsel contended that Mr Hilbert had no hesitation in dismissing any remembered fall, let alone one so significant it would have resulted in a fracture at L1.
Counsel contended the question of secondary gain, had not arisen from the evidence before the Tribunal. That none of the medical experts had opined they considered Mr Hilbert was driven by notions of secondary gain. Counsel submitted that a suggestion from the bar table does not make it evidence.
Counsel contended that Mr Hilbert’s presentation and pursuit of his claim does not demonstrate secondary gain. Counsel submitted Mr Hilbert had moved on from the injury, continued to work, has not reported excessive pain levels, and tried treatment but ceased as it was not doing any good. Counsel submitted there was no evidence of secondary gain influencing Mr Hilbert’s perception of his pain or attribution of his pain to the fall.
Counsel contended none of Mr Hilbert’s treaters or the independent medical examiners who had reviewed Mr Hilbert made any assertions of his presentation that would give rise to a determination of secondary gain.
Counsel contended the Tribunal could feel quite safe in disarming any suggestion that secondary gain plays any role in the decision making in this case.
Counsel submitted there was no evidence before the Tribunal that Mr Hilbert’s back pain had been resolved. Counsel contended the gap in Mr Hilbert’s treatment did not demonstrate he was no longer suffering from the condition, or he was no longer experiencing pain/discomfort.
Counsel took the Tribunal to the record of Mr Hilbert’s visit to Back in Motion in May 2022, at the conclusion of his Linfox funded sessions, where the record indicated that the pain had settled well but did not record that the pain had resolved. Counsel contended this did not assist the Tribunal in determining that Mr Hilbert was no longer suffering from the impacts of his injury.
Counsel submitted Mr Hilbert’s evidence had been he had discontinued receiving treatment because it was putting him under financial distress, he was not deriving any great benefit from it, which was not surprising as his underlying condition of a fracture would not benefit from the treatment being provided.
Counsel submitted the Tribunal could not draw any inference from Mr Hilbert’s discontinuance of treatment, as there was simply insufficient evidence to demonstrate the injury in February 2022 had resolved by the middle of 2022. Counsel submitted Mr Hilbert’s failure to get treatment did not demonstrate resolution of his symptoms but was a failure of treatment to ameliorate or modify his pain.
Counsel submitted Mr Hilbert had provided a plausible explanation as to why he had taken 12 months to put in a Comcare claim. Mr Hilbert’s evidence had been that Linfox had given him a choice of seeking to put in a claim for workers compensation or be reimbursed under their inhouse first response system, to which he had been advised ‘first response’ was the same as a workers compensation claim. Counsel submitted clearly ‘first response’ was not the same as putting in a Comcare claim. However, under ‘first response’, Mr Hilbert wasn’t out of pocket for any treatment expenses during his employment period with Linfox. He wasn’t out of pocket for his time off work and in those circumstances, it should come as no surprise that he did not put in a claim for workers compensation.
Counsel submitted Mr Hilbert got on with his life, change jobs and whilst he had been in constant pain since the fall in February 2022, it had been tolerable until he started a more physical role for which the pain become more apparent, and he had then recommenced treatment whilst also submitting a claim for compensation. Counsel contended the timing of Mr Hilbert’s claim for compensation did not assist the Tribunal in determining causation, as there was a clear explanation as to why the claim was submitted when it was.
Counsel submitted based on Dr Kam’s evidence, the Tribunal cannot be satisfied that the Emergency Department radiologist reviewed the lumbar spine scans sufficiently or at all, because there was a real question of deficiency in the information provided to them.
Counsel submitted Dr Kam’s evidence was very significant. That Dr Kam had expressed great concern that clinical indication of lumbar spine issues found during the log roll had not been flagged to the radiologists. That in the absences of a signpost to the emergency department radiologist the Tribunal could not be satisfied, they had paid any attention to the L1 images. Additionally, Counsel submitted Dr Kam’s evidence was that the lucency was subtle.
Counsel submitted it did not come to the Tribunal to make any criticism of the emergency department radiologist, given they are working under time pressures and are dealing with enormous volumes of work in a stressful environment. Counsel contended that the radiologist missed Mr Hilbert’s fracture.
Counsel submitted the evidence from the Alfred Hospital could be described as somewhat loose. Counsel submitted there were two log rolls performed, one identified lumbar spine tenderness and the other identified thoracic spine tenderness. Counsel submitted when looking at the second log roll results of thoracic spine, it did not identify the level where the pain was felt. Given there are 12 levels in the thoracic spine, from the brief summary of the log roll, it would be impossible to determine at which level Mr Hilbert was experiencing pain in the thoracic spine. Especially, Counsel submitted, when the Tribunal considers that T12 of thoracic spine is adjustment to L1.
Counsel contended the Tribunal had no clear way of determining from the log roll record that the pain Mr Hilbert was experiencing, had been elicited at T12, as it could well have been a problem at L1.
Counsel submitted the other reason that the log rolls should be questioned is due to the impact of pain medication on Mr Hilbert’s complaints of pain and also the findings on examination. Counsel submitted that the evidence of both Dr Asiad and Professor Steadman had been that the pain medication would have impacted Mr Hilbert’s pain perception and clinical presentation.
Counsel submitted that all of the information from the Alfred Hospital needs to be taken with a grain of salt, and nothing in the log rolls ought to satisfy the Tribunal that Mr Hilbert’s lumbar spine pain was not present whilst he was in the Alfred emergency department.
Counsel submitted what the Alfred Hospital records do show is localised tenderness at L2/L3 and that there was a flagged possible injury at L1 which required further investigation. Counsel contended that sadly, further investigation did not occur, and the Tribunal should take this evidence into account when determining the circumstances of Mr Hilbert’s injury.
The Tribunal preferred the view of Dr Asaid who could not determine if a fracture was present on the CT scan but opined that there was no other plausible explanation of Mr Hilbert’s fracture.
The Tribunal observed the Respondent was attempting to provide the Tribunal with another plausible explanation for Mr Hilbert’s fracture while at the same time submitting that the Tribunal had no need to consider the MRI or determine the cause of Mr Hilbert’s fracture. The Tribunal was somewhat confused by this line of argument but was impressed by the lengths Respondent Counsel went to plant the seed of an alternative hypothesis to explain Mr Hilbert’s fracture.
The Respondent Counsel presented two scenarios to explain Mr Hilbert’s fracture. The first being that, fundamentally, he got drunk, fell over and fractured his back. Or alternatively, it had happened in his current job due to the physical nature of the work. The Respondent Counsel then threw secondary gain into the mix to demonstrate Mr Hilbert had conflated the pain or was playing the system for financial gain.
The Respondent during its examination of Mr Hilbert and the medical experts, planted the reasonable niggle of uncertainty to the Tribunal that the fall was not the only possible explanation for Mr Hilbert’s fracture. The Respondent, reminiscent of Rumpole of the Bailey or Perry Masson, documented Mr Hilbert’s issues with excess alcohol consumption as recorded in his general practitioners’ notes, produced research articles on the connection between alcohol consumption and falls. Additionally questioned the medical experts about their knowledge of presentations in emergency departments of people intoxicated who had no idea how they had sustained their injury. The Respondent submitted Mr Hilbert’s own evidence had been he repeatedly jumped in and out of his truck, as well as getting into the back of the truck to shovel out bread and carting wheat.
The Respondent submitted these hypothesised examples could explain Mr Hilbert’s fracture. However, there was no record of any kind produced to document that Mr Hilbert had sought medical treatment from his general practitioner or an emergency department because of suffering another traumatic event that would have resulted in a fracture of his spine.
The Respondent submitted the Tribunal required positive evidence to support a finding that Mr Hilbert’s fracture had arisen from his work, whilst flying kites of probabilities without any evidentiary basis to discount the fracture was work related.
As the Tribunal has already stated, it found Mr Hilbert to be a credible witness and relied on the following evidence given during the hearing:
(i)He described his immediate response to the fall on 9 March 2022 was panic, he knew he was in trouble, he had been winded, was in extreme pain (10 out of 10) and felt pins and needles in his feet. Recalled coming down onto his back and head. He was panicked but composed enough to advise his colleagues to leave him flat until someone who knew what they were doing arrived.
(ii)His clear and consistent evidence to the Tribunal had been that he felt pain to his mid back when he fell, and on examination at the hospital the top of his back was fine, but pain increased lower down his back.
(iii)He continues to feel a constant ache in his lower back, has described lower back pain to all the doctors he has consulted with and the osteopath he saw through the first response program, but to date treatment has not been effective, and relies on pain killers to assist with managing day-to-day activities.
(iv)Described himself as a simple truckie who does not lead the healthiest life, he works long hours, does not do regular exercise, eats poorly and probably drinks more than is good for him. He had been a keen rock and roll dancer before the fall, having a lesson at least one night a week and dancing on Saturday – he is no longer able to dance.
(v)Did not shy away from the fact he has not been observant of medical advice, that he had tried dieting but sadly does like a pie, drinking less and mild exercise but was never constant in his application.
(vi)Has been dissatisfied with his doctor’s attitude to his concerns about the constant pain and is looking for other avenues to assist with his ongoing pain.
Additionally, the Tribunal relied on Mr Hilbert’s statement having no evidence on which to reject it:
I had never fallen and broken my back before 9 March 2022, nor have I done so subsequently. Nor have I engaged in any recreational pursuits that could explain the back injury that I suffered as a result of the fall on 9 March 2022.
In arriving at its determination that Mr Hilbert had suffered an injury in the course of his employment, the Tribunal turned to the reasoning in Ross and Comcare [2020] AATA 4350, where Senior Member Dr Evans-Bonner identified the questions that the Tribunal must ask in order to identify whether there exists a disease or an injury simpliciter by citing from the decision of the plurality in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468:
First, does the evidence amount, relevantly, to something that can be described as an “ailment”, being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee’s employment by the Commonwealth?
If the answer to both those questions is “Yes”, there is a “disease” within para (a) of the definition of “injury”. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is “No”.
If there is not a “disease” within para (a) of the definition of “injury”, the tribunal of fact next inquires whether there is an “injury (other than a disease)” within para (b). The third question is – does the evidence demonstrate the existence of a physical or mental “injury” (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an “injury (other than a disease)”. The language of judgments should not “be applied literally to facts without further consideration of what is conveyed by the reasoning” in the cases from which it is derived, or without regard to the text and scheme of the Act.
If there be an “injury” in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee’s employment by the Commonwealth? If that question is answered “Yes”, there is an “injury (other than a disease)” within para (b) of the definition of “injury” in s 4(1) of the Act. In some circumstances, if the answer is “No”, it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal.
The Tribunal found the evidence demonstrated Mr Hilbert had suffered a dramatic physiological change and therefore found he had suffered an injury.
The Tribunal then considered the determination in Australian Postal Corporation v Burch (1998) 85 FCR 264 (Burch), to determine if Mr Hilbert’s injury had arisen out of the course of the employment:
The matter can be approached in this way. In lay terms, injury and disease are different concepts, notwithstanding that there may be some instances where the appropriate categorisation is problematic. But one would unhesitatingly speak of cancer or influenza as a disease and a broken leg or concussion as an injury.
Since both injury and disease are misfortunes which may have a relationship to employment, workers' compensation legislation has long provided for compensation in each case. But the necessary relationship to employment may be, generally speaking, less readily susceptible to proof of work connection for disease than injury.
The policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease. In the case of disease, there has to be a contribution in a material degree by the employment. In the case of injury, it is sufficient to show that the injury arose out of or in the course of the employment - there need not be a causal connection.
Thus an employee seeking compensation, like Mr Burch, will naturally enough try first to show that he or she has suffered an injury (in the ordinary sense) because it will only be necessary then to establish that the injury arose in the course of employment.
The Tribunal found the evidence clearly demonstrated Mr Hilbert had suffered a traumatic event in the course of his employment with Linfox.
The Tribunal, having found Mr Hilbert had suffered a frank injury, is not required to determine if Mr Hilbert had suffered an aggravation of an injury, again turning to the determination in Military Rehabilitation and Compensation Commission v May:
If there be an “injury” in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee’s employment by the Commonwealth? If that question is answered “Yes”, there is an “injury (other than a disease)” within para (b) of the definition of “injury” in s 4(1) of the Act. In some circumstances, if the answer is “No”, it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal.
However, for completeness, the Tribunal was not persuaded the evidence indicated Mr Hilbert had suffered an ailment or an aggravation that was contributed to in a material degree by his employment at Linfox. The Tribunal concurred with the Respondent that the evidence demonstrated Mr Hilbert, besides the fracture at L1 (which no one opined was the result of degeneration) suffered from any pre-existing ailment which could not be considered a normal age-related issue. The Tribunal relied upon the determination of Justices Gyles in Australian Postal Corporation v Bessey [2001] FCA 266:
5 Compensation for incapacity is only allowed under the Act if it "results" from an "injury" (s14(1) and s19(1)). An "injury" is defined in s 4(1) of the Act to include "(a) a disease suffered by an employee;.." The definition of disease in section 4(1) is:
"(a) any ailment suffered by an employee;
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation."
6 It has been well settled by a series of decisions starting from Jordan CJ's judgment in Salisbury v Australian Iron & Steel Ltd [1943] NSWStRp 50; (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533 and Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
7 In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.
8 This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury (including aggravation) but rather resulted from the underlying condition.
CONCLUSION
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.
I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Ms A Burke, Member
...................[sgd].....................
Associate
Dated: 10 October 2024
Date of hearing: 27-29 August 2024 Counsel for the Applicant: Ms Kim Brady Solicitors for the Respondent: Redlich’s Work Injury Lawyers Counsel for the Respondent: Ms Sarah Wright Solicitors for the Respondent: HWL Ebsworth Lawyers
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