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

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”).
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.
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
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”).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 426
Decision Date: 6 April 2017

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Mr. Kovac, against TNT Australia Pty Ltd (the Respondent) before the Tribunal. The dispute centred on the correct description of the Applicant's injury in a series of 19 determinations. While the original determination of 2 February 2011 described the injury as a "lower back strain," subsequent determinations had incorrectly labelled it a "lumber spine strain." A further determination on 23 May 2016 had attempted to rectify this by changing the description to "lower back strain," aiming for consistency with the original finding.

The legal issues before the Tribunal were whether the description of the Applicant's injury in the previous determinations should be changed, and specifically, whether the injury should be described as a "lower back strain" or a "lower back injury with left leg pain." The Respondent argued that the correction was a mere technicality that did not affect the substantive findings in favour of the Applicant regarding a "frank injury" and a "nature and conditions claim." Conversely, the Applicant contended that the description should more accurately reflect the Tribunal's findings of fact, which indicated disc damage and left leg pain, rather than a simple muscle strain.

The Tribunal reasoned that the term "lower back strain" could be misleading, as muscle strains typically resolve within weeks, whereas the Applicant's condition had persisted for months or years. The evidence presented indicated disc damage, not merely a muscular strain. Therefore, the Tribunal concluded that a more accurate description would be "lower back injury," which better encompassed the nature of the accepted condition. The Tribunal affirmed the Respondent's initiative to reconsider the determinations to ensure accuracy.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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