Hudson and TNT Australia Pty Ltd (Compensation)

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Hudson and TNT Australia Pty Ltd (Compensation) [2021] AATA 3526 (22 September 2021)

Division:GENERAL DIVISION

File Number(s):      2020/0408

Re:Aidan Hudson

APPLICANT

TNT Australia Pty Ltd And  

DECISION

Tribunal:L M Gallagher, Member

Date:22 September 2021

Place:Perth

The Reviewable Decision dated 12 December 2019, being that:

(a)The Applicant’s claim in respect of his “left elbow pain” injury did not arise out of or in the course of employment pursuant to s 6 of the Safety, Rehabilitation and Compensation Act 1958 (Cth) (SRC Act); or

(b)it was not liable under ss 5A, 14, 16 and 19 of the SRC Act to pay the Applicant compensation for his claimed “left elbow pain” injury,

is affirmed.

...............[Sgd].........................................................

L M Gallagher, Member

CATCHWORDS

COMPENSATION – Safety, Rehabilitation and Compensation Act 1958 – Workplace Injury – definition of injury (other than a disease) – whether Injury arose during course of employment – whether TNT had a present liability to pay compensation – whether injury resolved or ceased – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1958 (Cth) ss 5A, 6, 14, 16, 19

CASES

Comcare v Stefaniak [2020] FCA 560

D’Lima and Australian Postal Corporation [2016] AATA 495 [115].

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 138

Pearson and Prosegur Australia Pty Ltd (Compensation) [2021] AATA 312

Re Kirby and Collector of Customs (1989) 20 ALD 369

Re Williamson and Comcare [2019] AATA 4774

Sheppard and Comcare [2014] AATA 157 [95]

REASONS FOR DECISION

L M Gallagher, Member

22 September 2021

THE APPLICATION

  1. On 28 October 2019, the Respondent determined that:

    (a)The Applicant’s claim in respect of his “left elbow pain” injury did not arise out of or in the course of employment pursuant to s 6 of the Safety, Rehabilitation and Compensation Act 1958 (Cth) (the SRC Act); or

    (b)it was not liable under ss 5A, 14, 16 and 19 of the SRC Act to pay the Applicant compensation for his claimed “left elbow pain” injury,[1]  

    (the Original Decision).

    [1]R1, T27.

  2. On 12 December 2019, the Respondent affirmed the Original Decision (the Reviewable Decision).[2]

    [2]R1, T29.

  3. The Applicant seeks review of the Reviewable Decision.[3]

    [3]R1, T1.

    INTRODUCTION AND BACKGROUND FACTS

  4. The Applicant has been employed by the Respondent since 6 May 2019 and has held the position “Casual PUD driver/courier” since 7 June 2019.[4]

    [4]R1, T15, p32, T20, p41 and T21, p47.

  5. An incident report completed by the Applicant states that on 27 June 2019, at 2.45pm:[5]

    I pulled up at the STW loading dock to do a two consignment pick up for those items.  I got out of the vehicle scanned the items (tyres)* and started lifting them into the van.  I felt a minor click in my left elbow followed by a pinching pain.  It is still painful when fully extended or lifting heavy items.

    *large tyres 17km 40cm radius roughly

    iced and wrapped overnight

    loaded vehicle on…

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Details
Case
[2021] AATA 3526
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision regarding compensation for a workplace injury. The applicant, Mr Hudson, sought compensation from his employer, TNT Australia Pty Ltd, for an injury to his left elbow sustained on 27 June 2019 while lifting tyres. The dispute centred on whether the applicant had suffered an "injury (other than a disease)" as defined by the Safety, Rehabilitation and Compensation Act 1958 (SRC Act), and whether TNT Australia Pty Ltd had a present liability to pay compensation. The decision was made by L M Gallagher, Member.

The primary legal issue before the court was to determine the appropriate diagnosis of the applicant's condition and whether it constituted an "injury (other than a disease)" under section 5A(1) of the SRC Act. This involved assessing conflicting medical evidence regarding the applicant's left elbow pain, including diagnoses of tendinosis/strain and potential recurrent tendinopathy, against expert opinion that found no radiological evidence of a physiological change and questioned the existence of a definable medical condition such as tennis or golfer's elbow. The court also had to consider whether any injury had resolved or ceased, impacting the employer's present liability.

The court's reasoning focused on the definition of "injury" under the SRC Act and the weight of the medical evidence. While the applicant presented medical certificates from GPs and a physiotherapist suggesting conditions like "tennis elbow/golfer's elbow" or "CET tendinopathy," expert medical evidence indicated that imaging studies were normal and that there was no evidence of a definable medical condition. The court noted that even if tendinopathic changes could persist, the absence of objective findings on imaging, coupled with the expert opinion that such conditions would likely show changes if present, led to the conclusion that the applicant had not established an injury as defined by the Act. The court considered that the applicant's symptoms, while real, did not translate to a compensable injury under the relevant legislation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant seeks review of the Reviewable Decision.[3][3]R1, T1.INTRODUCTION AND BACKGROUND FACTS The Applicant has been employed by the Respondent since 6 May 2019 and has held the position “Casual PUD driver/courier” since 7 June 2019.[4][4]R1, T15, p32, T20, p41 and T21, p47. An incident report completed by the Applicant states that on 27 June 2019, at 2.45pm:[5]I pulled up at the STW loading dock to do a two consignment pick up for those items. I got out of the vehicle scanned the items (tyres)* and started lifting them into the van. I felt a minor click in my left elbow followed by a pinching pain. It is still painful when fully extended or lifting heavy items.*large tyres 17km 40cm radius roughlyiced and wrapped overnightloaded vehicle on 28/6/19[5]R1, T3, p13. A report completed on 27 June 2019 by the Applicant’s team leader indicates that the Applicant called his team leader around 3.15pm to notify him of a sore elbow.[6] The report states the team leader assessed the Applicant’s injury and decided it was safe to continue but advised the Applicant to see the doctor in the morning, if his elbow was still sore.[6]R1, T4, pp 16 and 17. On 28 June 2019, the Applicant consulted Dr Tan, General Practitioner (GP), who diagnosed him with ‘Left CET tendinosis/strain.’[7] Dr Tan certified the Applicant fit for modified duties from 28 June 2019 to 5 July 2019, advising no heavy lifting with the left harm in excess of 5 kilograms and to avoid excessive compensatory lifting with the right arm.[8] [7]R1, T5. Dr Ching Tan is a GP at Sonic HealthPlus, who provide general medical and occupational healthcare services.[8]R1, T5, p19. The Applicant’s return to work (RTW) plan for June and July 2019 included physiotherapy as part of his treatment regime.[9][9]R1, T7, p21 and T9, p24. On 5 July 2019, Dr Tan certified the Applicant was fit for modified duties from 5 July 2019 to 12 July 2019 and with the capacity to lift up to 10 kilograms with his left arm or 15 kilograms with both arms combined.[10][10]R1, T8, p23. On 12 July 2019, Dr Tan issued the Applicant a final certificate of capacity indicating that the Applicant had full capacity to work from that date.[11][11]R1, T10. A further medical certificate issued by Dr Tan on 17 September 2019 indicates that on 16 September 2019, the Applicant reported ‘left elbow pain whilst turning wheel clockwise’ that day.[12] On the certificate, Dr Tan reported his clinical findings and diagnosis as ‘? recurrent CET tendinopathy.’[13] Dr Tan referred the Applicant for imaging of the left elbow and NSAID.[14] Dr Tan certified the Applicant fit for modified duties from 17 September 2019 to 24 September 2019, with driving as tolerated and no lifting greater than 15 kilograms.[15][12]R1, T11, p 26[13]R1, T11, p 26.[14]R1, T11, p 27. NSAIDs are nonsteroidal anti-inflammatory drugs.[15]R1, T11, p 27. Again, the Applicant’s RTW plan indicated that physiotherapy was part of the Applicant’s treatment regime for September and October 2019.[16][16]R1, T12, p 28; T15, p 15; T17, p 35; T19, p 38, T25, p 53; T30; T31.

Evidence

Evidence Before The Court

Mr Hudson said that when he reported the pain associated with turning the steering wheel in September 2019, there was no particular incident involved.[58][58]Transcript, p 30 [30].Dr Bowles’ evidence At hearing, Dr Bowles stated that there is no radiological evidence of a physiological change in the Applicant’s left elbow, noting the MRI and CT scan that were performed were reported as normal.[59][59]Transcript, p 35 [20]. When asked by the Applicant’s representative as to what the most effective type of imaging is for the injury the Applicant suffered, Dr Bowles said:[60](a)He generally wouldn’t image this type of injury.(b)An MRI scan is the most sensitive and the “gold standard” for musculoskeletal injuries, particularly for soft tissue injuries.(c)CT scans are more effective for bony injuries because of the calcium in the bones.(d)An MRI is not your first test for someone who presents with a complaint. It’s a clinical judgement. Certainly if someone has experienced a major traumatic event, then of course you would, but there are indications for performing radiology. [60]Transcript, p 37 [30]-[45]; p 41 [35]. When asked by the Applicant’s representative the expected timeframe for an injury such as that suffered by the Applicant, Dr Bowles said:[61]Well, if we’re looking at tendon or tendinopathy, that will often stay there for months if not longer. And often the tendinopathic change will continue without symptoms. A minor muscle tear with a little bit of bleeding will resolve in a few weeks if it was identifiable on an initial MRI scan.[61]Transcript, p 37 [40]. As to why Dr Bowles had no medical diagnosis for the Applicant:[62] [E]ven for like back pain 85 per cent of the time you can’t make a specific diagnosis. For a complaint that came along you’d treat it on spec in terms of - you know, some analgise, movement, and give it some time, without going to radiology or other investigations.[62]See para [32] above; Transcript, p 38 [5]. Dr Bowles responded to the Applicant’s proposition that two GPs and a physiotherapist had described the Applicant’s injury as “golfer’s/tennis elbow” and “an RSI injury”[63] as follows:[64]DR BOWLES: …Tennis Elbow is your lateral epicondyle and Golfer’s is your medial, so they’re two separate entities. And I did note that initially there was complaint around the extensor, which is … the extensor is the Tennis Elbow, where the medial is the Golfer’s Elbow. So, I did note that all along and I’ve made reference to those that there was complain[t]s in different regions, particularly in the June/July 2019 presentations.MS SLACK:…What I’ve just got from that conversation there is basically you’re agreeing with the previous two doctors and physios, that there is an injury there of either Golfer’s or Tennis Elbow, an RSI type injury?DR BOWLES: No, they’re quite specific, with point tenderness over that area and then provocations testing, and it’s suggested if there had been those conditions, we’re quite likely to have seen MRI changes albeit several months later.[63]As to the source of the Applicant’s proposition, the Tribunal’s search of the evidence has located references to ‘golfer’s elbow’ in 1) the First Aid register of injuries dated 17/09/19, which indicates ‘golfer’s elbow’ (R9), 2) the Applicant’s impact statement (A2) and 3) a physiotherapy assessment dated 25/09/19 (referred to in Dr Bowles’ report, although this physiotherapy assessment was not presented to the Tribunal). The Tribunal also notes, however, that Dr Bowles’ report dated 14 May 2020 (R12) clearly states there is no evidence of a definable medical condition such as tennis/golfer’s elbow.[64]Transcript, p 38 [10]–[40].CONSIDERATION

Decision

Reasons for decision

On 12 December 2019, the Respondent affirmed the Original Decision (the Reviewable Decision).[2][2]R1, T29. The Applicant seeks review of the Reviewable Decision.[3][3]R1, T1.INTRODUCTION AND BACKGROUND FACTS The Applicant has been employed by the Respondent since 6 May 2019 and has held the position “Casual PUD driver/courier” since 7 June 2019.[4][4]R1, T15, p32, T20, p41 and T21, p47. An incident report completed by the Applicant states that on 27 June 2019, at 2.45pm:[5]I pulled up at the STW loading dock to do a two consignment pick up for those items. I got out of the vehicle scanned the items (tyres)* and started lifting them into the van. I felt a minor click in my left elbow followed by a pinching pain. It is still painful when fully extended or lifting heavy items.*large tyres 17km 40cm radius roughlyiced and wrapped overnightloaded vehicle on 28/6/19[5]R1, T3, p13. A report completed on 27 June 2019 by the Applicant’s team leader indicates that the Applicant called his team leader around 3.15pm to notify him of a sore elbow.[6] The report states the team leader assessed the Applicant’s injury and decided it was safe to continue but advised the Applicant to see the doctor in the morning, if his elbow was still sore.[6]R1, T4, pp 16 and 17. On 28 June 2019, the Applicant consulted Dr Tan, General Practitioner (GP), who diagnosed him with ‘Left CET tendinosis/strain.’[7] Dr Tan certified the Applicant fit for modified duties from 28 June 2019 to 5 July 2019, advising no heavy lifting with the left harm in excess of 5 kilograms and to avoid excessive compensatory lifting with the right arm.[8] [7]R1, T5. Dr Ching Tan is a GP at Sonic HealthPlus, who provide general medical and occupational healthcare services.[8]R1, T5, p19. The Applicant’s return to work (RTW) plan for June and July 2019 included physiotherapy as part of his treatment regime.[9][9]R1, T7, p21 and T9, p24. On 5 July 2019, Dr Tan certified the Applicant was fit for modified duties from 5 July 2019 to 12 July 2019 and with the capacity to lift up to 10 kilograms with his left arm or 15 kilograms with both arms combined.[10][10]R1, T8, p23. On 12 July 2019, Dr Tan issued the Applicant a final certificate of capacity indicating that the Applicant had full capacity to work from that date.[11][11]R1, T10. A further medical certificate issued by Dr Tan on 17 September 2019 indicates that on 16 September 2019, the Applicant reported ‘left elbow pain whilst turning wheel clockwise’ that day.[12] On the certificate, Dr Tan reported his clinical findings and diagnosis as ‘? recurrent CET tendinopathy.’[13] Dr Tan referred the Applicant for imaging of the left elbow and NSAID.[14] Dr Tan certified the Applicant fit for modified duties from 17 September 2019 to 24 September 2019, with driving as tolerated and no lifting greater than 15 kilograms.[15][12]R1, T11, p 26[13]R1, T11, p 26.[14]R1, T11, p 27. NSAIDs are nonsteroidal anti-inflammatory drugs.[15]R1, T11, p 27.

Ratio Decidendi

Legal Principle Established

Dr Bowles responded to the Applicant’s proposition that two GPs and a physiotherapist had described the Applicant’s injury as “golfer’s/tennis elbow” and “an RSI injury”[63] as follows:[64]DR BOWLES: …Tennis Elbow is your lateral epicondyle and Golfer’s is your medial, so they’re two separate entities. And I did note that initially there was complaint around the extensor, which is … the extensor is the Tennis Elbow, where the medial is the Golfer’s Elbow. So, I did note that all along and I’ve made reference to those that there was complain[t]s in different regions, particularly in the June/July 2019 presentations.MS SLACK:…What I’ve just got from that conversation there is basically you’re agreeing with the previous two doctors and physios, that there is an injury there of either Golfer’s or Tennis Elbow, an RSI type injury?DR BOWLES: No, they’re quite specific, with point tenderness over that area and then provocations testing, and it’s suggested if there had been those conditions, we’re quite likely to have seen MRI changes albeit several months later.[63]As to the source of the Applicant’s proposition, the Tribunal’s search of the evidence has located references to ‘golfer’s elbow’ in 1) the First Aid register of injuries dated 17/09/19, which indicates ‘golfer’s elbow’ (R9), 2) the Applicant’s impact statement (A2) and 3) a physiotherapy assessment dated 25/09/19 (referred to in Dr Bowles’ report, although this physiotherapy assessment was not presented to the Tribunal). The Tribunal also notes, however, that Dr Bowles’ report dated 14 May 2020 (R12) clearly states there is no evidence of a definable medical condition such as tennis/golfer’s elbow.[64]Transcript, p 38 [10]–[40].CONSIDERATION The Tribunal’s task in this matter is to determine whether the Applicant suffered an ‘injury (other than a disease)’ for the purposes of s 5A(1) of the SRC Act. This first begs the question of the appropriate diagnosis of the Applicant’s claimed condition.Applicant’s submissions The Applicant is of the view that on 27 June 2019 he suffered ‘tennis elbow/golfer’s elbow’ or ‘CET tendinopathy’, as determined by Dr Tan, Dr Singh, and the treating physiotherapist.[65] [65]Transcript, p 17 [30]–[35]; A1, p 4. The Applicant’s representative submitted that the Applicant formed this view on the following basis:[66] Well, you’ve got two GPs and a physiotherapist who were treating him; they were putting him on drugs. They gave him pain management; they were doing dry‑needling; some of them were doing therapy sessions. They all believed that in their opinion there was an injury there. They could see that he had no full range of movement, he was in extreme pain - these are all indicators that they have put forward as why they believe there’s an injury.[66]Transcript, p 26 [30]. While the Applicant concedes that the imaging conducted of the Applicant’s left elbow showed no abnormalities, he submitted that if the radiological studies had taken place sooner, “it would have shown something,”[67] although this proposition too remained a theory.[68] [67]Transcript, p 18 [30]. See also Transcript, p 22 [20].[68]Transcript, p 22 [30]–[40].Respondent’s submissions