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

Kovac and TNT Australia Pty Ltd (Compensation) [2017] AATA 234 (28 February 2017)
Division:General Division
File Numbers: 2015/4257
2016/4947

Re:Radomir Kovac
APPLICANT

AndTNT Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:William Stefaniak AM RFD, Senior Member
Dr M Couch, Member
Date:28 February 2017
Place:Sydney

Application number2015/4257 – the frank injury
1.The Tribunal sets aside the decision under review and substitutes the following decision:
(a)the Respondent continues to be liable to pay compensation to the Applicant under section 16 and section 19 of the Act for the lower back pain injury he sustained on 16 December 2010; and
(b)the Respondent is to pay the Applicant's cost of this application as agreed or taxed.

Application number 2016/4947 – nature and conditions claim
2.The Tribunal sets aside the decision under review and substitutes the following decision:
(a)the Respondent is liable to pay compensation to the Applicant under Section 14 of the Act for the lower back injury he sustained due to the nature and conditions of his employment; and
(b)the Respondent is to pay the Applicant's costs of this application as agreed or taxed.

...................[sgd].....................................................
William Stefaniak AM RFD, Senior Member
CATCHWORDS
Workers compensation – entitlement to compensation for medical expenses – entitlement to incapacity payments – back injury – whether nature and conditions of the Applicant’s work contributed to a significant degree to ongoing back condition – whether Applicant presently suffers from the effect of the injury – where conflicting medical evidence – decisions set aside and substituted
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 14, 16, 19
CASES
Abraham and Comcare (2006) FCA 1829
Greaves and Comcare [2015] AATA 117
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Sandford and Linfox Australia Pty Ltd [2014] AATA 375
Stanton and Comcare (2015) AATA 397
Winsall and Comcare [2002] AATA 51
REASONS FOR DECISION
William Stefaniak AM RFD, Senior Member
Dr M Couch, Member
28 February 2017
BACKGROUND

The Applicant Radomir Kovac (or Ray as he is known) is 37 years of age.
He left school after completing year 10 and worked as an auto electrician and tree lopper for approximately 3 years before he was employed as a delivery driver with the Respondent in 2000. He had also had other jobs in his late teens to early 20s such as driving a truck and loading furniture.
Prior to leaving school the only other piece of history of any relevance is that the Applicant played junior soccer and junior rugby league as a centre until the under 13s. He did not suffer any injuries playing either of those two football codes.
In 2000 he commenced working with TNT, initially as a pickup and delivery driver on a casual basis and from 2003 on a permanent basis.
He operated out of the Erina depot from 2000 until 2007 and from 2007 to 2010 out of the Berkley Vale depot.
At the Erina depot he would start his shift by unloading semitrailers usually with another…

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 234
Decision Date: 28 February 2017

CaseChat Overview and Summary

This matter concerned an appeal by Radomir Kovac (the Applicant) against a decision by TNT Australia Pty Ltd (the Respondent) regarding his entitlement to workers' compensation for medical expenses and incapacity payments. The dispute centred on whether the nature and conditions of the Applicant's work contributed to a significant degree to his ongoing back condition, and whether he presently suffered from the effects of this injury.

The primary legal issue before the Tribunal was to determine if the Applicant's employment with TNT Australia Pty Ltd had significantly contributed to his ongoing back problems, and if he was currently experiencing the effects of such an injury. This required the Tribunal to weigh conflicting medical evidence and assess the Applicant's own account of his work conditions and symptoms.

The Tribunal preferred the evidence of Professor Papantoniou and Dr Pillemer over that of Professor McGill and Dr Potter. It found Professor Papantoniou, as the Applicant's treating surgeon with extensive experience, to be in the best position to offer an opinion. The Tribunal was influenced by the absence of a family history of back problems, no prior indication of back pain before December 2010, and subsequent work incidents that aggravated his condition. Furthermore, the Tribunal noted that Professor Papantoniou and Dr Pillemer's diagnosis was inconsistent with a purely constitutional degenerative spinal condition, as it was localised to the lower back. The Tribunal concluded that the nature of the Applicant's employment was the primary reason for his back problems, finding no other logical explanation. The Tribunal set aside the previous decision and substituted its own finding that the Applicant was entitled to compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal accepts the submission that this means it needs to be satisfied that the Applicant’s work contributed to a significant degree to his ongoing back problems. THE EVIDENCERadomir Kovac- Applicant The Applicant gave evidence by way of a statement made on 18 November 2015, an undated statement tended as exhibit A2 in relation to matter number 2016/4947 and a supplementary statement dated 27 October 2016 in reply to Sue Moffitt’s statement of 21 September 2016. He also gave oral evidence. In addition to the accepted facts that have been outlined above, the Applicant stated the following about working at the Erina depot: ·Unloading semitrailers would be done manually and usually by two people.·The boxes would be placed on a conveyor belt and these boxes could weigh up to 50 kg. ·He did not know how heavy they were until he and his colleague attempted to pick them up. ·From 2005 onwards the boxes began to be labelled with their weight.·The delivery truck would usually be loaded by using a forklift, however he would sometimes load it by hand. He would then do his deliveries and pick-ups and in the afternoon reload the trailer. He stated in his statement of 18 November 2015 that he continues to take regular pain medication and perform back stretches and that the pain is constant but manageable. In his undated statement, the Applicant added some further information. The Applicant stated that when he was standing inside the semitrailer unloading the boxes from the semitrailer onto the conveyor belt he would have to twist, bend, pull and push to fetch the boxes. If the conveyor belt broke down, he and his colleague had to physically push the items down the belt. On average the conveyor belt would break down about three times per month. The boxes varied in weight. They would include items such as lawnmowers and treadmills. Some of the items were not in boxes. Some items weighed less than a kilo other boxes were extremely heavy- in excess of 70kgs. If he could not move an item he would ask for assistance. The weight of an item was recorded on the consignment note, however it was often scribbled and hard to read. He added that he usually drove an 8 tonne truck which had side access and which was suited to pallet work. He preferred to use a forklift and a pallet jack to load and unload the truck. Six photographs of one of the trucks he drove were tendered in evidence (exhibit R1 and R3). These photographs show the steps leading into the cabin which he slipped on in 2008 and 2010. They show the handle welded into the side of the cabin which he grabbed to arrest his fall in 2010 and they show the open gate whereby pallets were forklifted on and off the truck. They also show the pallet jack used to move boxes and the tailgate which boxes could be pushed along. They also show an example of items placed on a pallet and items placed in the truck whereby a pallet jack would be needed to move them. He stated in his supplementary statement that he would make between 10 and 15 deliveries on an average day as well is 5 to 10 pick-ups. He indicated that often the customer's premises did not have a forklift so he was required to manually unload the truck. He would then, sometimes with the help of a pallet jack, take the items to wherever the customer wanted them placed.

Decision

Reasons for decision

Similarly, the diagnosis by Professor McGill was very similar to the diagnosis in this case. In both cases his evidence indicated that in his view, the main problem with both Applicants was a constitutional degenerative spinal condition. CONCLUSION AND DECISION The Tribunal prefers the evidence of Professor Papantoniou and Dr Pillemer. Professor Papantoniou is a very experienced surgeon and the treating surgeon to the Applicant. He has seen him on at least 10 occasions and has been involved with him for the last four years. He is an expert in his field and in the Tribunal's view is in a better position than any other doctor involved in this case to express an opinion. His opinion given to the Tribunal was one where he had been in possession of all the facts as opposed to, for example Dr Potter and Professor McGill, who had not been told until the hearing exactly how the incident occurred. This is not intended as criticism of those two doctors but it was simply how it panned out in terms of when the various experts were appraised of all the facts. Had the Applicant given a more detailed version of what occurred on 16 December 2010 to the various doctors he saw, perhaps the situation in terms of the evidence given in this case may have been different. The Tribunal was particularly influenced in its assessment of the various opinions expressed by the various doctors by the following fact situation. There was no family history of back problems, no indication prior to 16 December 2010 that the Applicant ever suffered from back pain, no indication of any incident prior to 16 December 2010 that would have caused any back pain save except for the knee injury incident in 2008. The fact that after December 2010 and despite some valiant efforts to return to full-time work, there were continuing problems (incidents at work in March 2011, and January 2012) that appear to have set off a further aggravation and which may possibly explain the difference between the first two and the third MRIs. The fact that after a nine-month period back at work on full-time duties between August 2012 of May 2013 the back problems flared up again in late April 2013 and continue to this day in one form or another. The fact that Professor Papantoniou and Dr Pillemer stated that if this was a case of constitutional predisposition, one would expect to see spurs all the way up the spine and disc problems all along the spine rather than just in the lower back. It would also seem logical to the Tribunal if the Applicant suffered a pre-existing degenerative condition that it would have manifested itself far earlier than when it did. Whilst not using the term “common sense”, it nevertheless appears logical to the Tribunal from all the evidence, that the nature of the Applicant's employment was such that it was the main reason that he suffered from back problems. There is no other really logical explanation. Professor McGill and Dr Potter also cannot point to exactly when and how the Applicant’s spine degenerated.

Ratio Decidendi

Legal Principle Established

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