Kovac and TNT Australia Pty Ltd (Compensation)

[2017] AATA 426

Kovac and TNT Australia Pty Ltd (Compensation) [2017] AATA 426 (6 April 2017)

Division:GENERAL DIVISION

File Number:           2016/3206

Re:Radomir Kovac

APPLICANT

AndTNT Australia Pty Ltd

RESPONDENT

DECISION

Tribunal:William Stefaniak AM RFD, Senior Member
Dr M Couch, Member

Date:6 April 2017

Place:Sydney

The Tribunal sets aside the determination dated 23 May 2016 and, in substitution, the Tribunal decides that the determinations dated 2 February 2011, 28 July 2011, 2 August 2011, 11 August 2011, 30 August 2011, 8 September 2011, 15 September 2011, 19 September 2011, 30 September 2011, 14 December 2011, 10 February 2012, 8 March 2012, 12 July 2012, 18 July 2012, 25 July 2012, 1 August 2012, 7 August 2012, 14 August 2012, 19 June 2015 and 7 August 2015 are varied only to the extent that they are inconsistent with the accepted condition description of “ lower back injury”  sustained on 16 December 2010

..............................[sgd]......................................

William Stefaniak AM RFD, Senior Member

CATCHWORDS

Workers compensation – description of injury – whether injury should be described as lower back strain – whether injury should be described as lower back injury with left leg pain -  whether previous determinations should be changed to reflect description – decision set aside and substituted

CASES

Kovac and TNT Australia Pty Ltd (Compensation) [2017] AATA 234

REASONS FOR DECISION

William Stefaniak AM RFD, Senior Member
Dr M Couch, Member

6 April 2017

BACKGROUND

1. The Tribunal has already published its reasons in the two substantive matters before it in Kovac and TNT Australia Pty Ltd (Compensation) [2017] AATA 234, namely for applications 2015/4257 and 2016/4947 (‘the substantive decision”).

2. This matter is a technical matter that was barely touched on during the substantive hearing, which went over several days in November 2016. It relates to a reconsideration  of own motion by the Respondent’s insurance company, QBE, dated 23 May 2016 (‘the reconsideration’) to vary 19 determinations made between 28 July 2011 and 7 August 2015 inclusive.

3. These 19 determinations had incorrectly described the injury as a “lumber spine strain” and did not follow the original determination of 2 February 2011 which had described it as a “lower back strain”. The new determination of 23 May 2016 rectified this and changed the description in the 19 previous determinations to “lower back strain” thus ensuring consistency with the original determination.

   DISCUSSION AND DECISION

4. The Respondent argued, in submissions filed 3 March 2017, that nothing substantive turned on this determination, as it was merely fixing up a technical error and in no way affected the Tribunal’s findings in the two substantive matters where the Tribunal found in favour of the Applicant (i.e. the “frank injury”  and the “nature and conditions claim”).

5. The Respondent argued that it simply regularised the position in relation to the description of the accepted condition and urged the Tribunal to affirm it.

6. The Applicant, in submissions filed on 3 March 2017, argued that the critical findings of the reviewable decision of 23 May 2016 were contrary to the findings of fact made by the Tribunal. Specifically, the Applicant quoted from the Tribunal’s findings in relation to the two substantive matters.

7. The Applicant noted that, at paragraph 463 of the substantive decision, the Tribunal found, in relation to the fall on 16 December 2010, that “whilst the slip, fall and jolt were not major, it certainly did something to his [the Applicant’s] disc, led to disc damage and also to the left leg pain and those injuries have never really settled.”

8. Further, at paragraph 467 of the substantive decision, the Tribunal said in relation to the evidence of Professor Papantoniou and Dr Pillemer that “Both the above doctors stressed that this was not a simple muscle strain, It was disc damage caused by the nature of the Applicant’s work with the Respondent.”

9. After noting that the Tribunal stated that it preferred the evidence of the above two doctors to the other medical evidence, the Applicant concluded by quoting paragraph 517 of the substantive decision where the Tribunal concluded “Accordingly, the Tribunal finds that the Applicant continues to suffer the effects of his lower back injury sustained on 16 December 2010 in the course of his employment with the Respondent.”

10. The Applicant urged this Tribunal to find that the accepted condition should more properly be described as “lower back injury with left leg pain.”

11. The Tribunal believes the 19 determinations did need correcting and if the Applicant is correct, the original determination of 2 February 2011 also would need correcting. The Respondent was correct initiating a reconsideration of own motion to ensure the T’s were crossed and the I’s dotted.

12. The Tribunal also feels that at the end of the day it probably does not matter a great deal if it accepts either suggestion made by the parties.

13. However, the Tribunal is of the view that the often used term “lower back strain” could be misinterpreted to mean just a muscular strain. The evidence clearly showed this was not the case in this matter, as muscle strains tend to heal in a matter of weeks, not months or years. The better term is to describe the injury as a ”lower back injury” which more correctly describes it.

14. The Tribunal does not agree with the additional wording suggested by the Applicant of “...with left leg pain.” The various medical certificates considered in the AAT decision refer to “lumber spine pain with left leg radicular symptoms” (medical certificate by Dr E Lim dated 1 February 2011), and later other medical certificates add to this: “aggravation of discogenic disc disease, exacerbation of symptoms” (medical certificate completed by Dr Lim dated 9 May 2011) and in another certificate, which referred to an “L3/4 disc protrusion with L4/5 oedema” (medical certificate completed by Dr Lim dated 23 May 2013).

15. The Tribunal believes the term “lower back injury” is a generic cover-all description and encompasses all of the above, which are basically problems associated with the lower back injury and arise from it in the first place. However, it can be seen that, due to those problems manifesting themselves, “lower back injury’ as opposed to  ‘lower back strain “  is a  better descriptor, especially when one looks at problems such as disc protrusion which tend to sit more comfortably with “injury’ rather than ‘ strain’

16. As a result, the 20 determinations (19 determinations and the original decision of 2 February 2011) will be changed to read “lower back injury”.

17. The Tribunal’s decision, whilst similar to what the Applicant was urging, is not quite the same. For this reason and, more importantly, because the substantive issues were all argued in the other two matters where costs followed the event and there was very little discussion on this point until the tribunal asked the parties to address it specifically and make submissions on it, the tribunal believes that this is a matter where both parties should bear their own costs and accordingly, no costs order will be made.

    ORDERS

18. The determination dated 23 May 2016 is set aside.

19. The determinations dated 2 February 2011, 28 July 2011, 2 August 2011, 11 August 2011, 30 August 2011, 8 September 2011, 15 September 2011, 19 September 2011, 30 September 2011, 14 December 2011, 10 February 2012, 8 March 2012, 12 July 2012, 18 July 2012, 25 July 2012, 1 August 2012, 7 August 2012, 14 August 2012, 19 June 2015 and 7 August 2015 are varied only to the extent that they are inconsistent with the accepted condition description  of “ lower back injury”  sustained on 16 December 2010.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of William Stefaniak AM RFD, Senior Member and Dr M Couch, Member.

...............................[sgd].........................................

Associate

Dated: 6 April 2017

Dates of hearing:	31 October 2016; 1-3 November 2016
Date final submissions received:	3 March 2017
Counsel for the Applicant:	Mr J Mrsic
Solicitors for the Applicant:	Carrol & O'Dea Lawyers
Counsel for the Respondent:	Mr S Whybrow
Advocate for the Respondent:	HBA Legal