MacFarlane and TNT Australia Pty Ltd (Compensation) - [2021] AATA 2239

MacFarlane and TNT Australia Pty Ltd (Compensation) [2021] AATA 2239 (12 July 2021)
Division:GENERAL DIVISION
File Number: 2015/6532
Re:Malcolm MacFarlane
APPLICANT

AndTNT Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:12 July 2021
Place:Brisbane

I affirm the reviewable decision of the respondent dated 2 November 2015.
...........................[SGD].........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for medical treatment under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion surgery – aggravation of pre‑existing degeneration within lumbar spine – whether medical treatment obtained in relation to injury – whether treatment reasonable is reasonable in the circumstances – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
CASES
Capital Territory Health Commission v Cavanagh [1978] FCA 5
Comcare Australia v Rope (2004) 135 FCR 443; [2004] FCA 540
Jorgensen and Commonwealth, Re (1990) 23 ALD 321
Lock and Comcare (Compensation), Re (2018) 163 ALD 361
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 July 2021
INTRODUCTION

This is an application for review of a decision of the respondent dated 2 November 2015.
On 14 January 2009, Mr Malcolm MacFarlane (“the applicant”) suffered an injury to his back when he was lifting a 40-kilogram carton into the back of a truck (“the 2009 back injury”).
The applicant suffered the 2009 back injury in the course of his employment as a delivery driver with TNT Australia Pty Ltd (“the respondent”). The injury was an aggravation of a “lower back strain” suffered by the applicant in the course of his employment with the respondent on 11 July 2008. On 3 April 2009, the respondent quite properly accepted liability to pay compensation for the 2009 back injury under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).
The applicant seeks surgical treatment for the 2009 back injury, namely a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion surgery (“the proposed surgery”). I have to decide whether the respondent is liable to pay for the cost of such surgical treatment pursuant to section 16 of the Act. I must determine whether the surgical treatment that the applicant is seeking is (a) to be obtained in relation to the injury, and (b) reasonable for him to obtain in the circumstances. Further, if I determine that the respondent has such a liability, I must consider whether the amount of compensation for the surgical treatment is appropriate to that treatment.
CLAIM HISTORY
On 27 January 2009, the applicant lodged a claim for workers’ compensation for a “BACK INJURY (LOWER)”, being the 2009 back injury.[1] On 15 April 2011, the applicant also lodged a claim for compensation in respect of a psychiatric condition as a sequela of the 2009 back injury.[2]
[1] Exhibit A,…

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: [2021] AATA 2239
Decision Date: 12 July 2021

CaseChat Overview and Summary

This matter concerned a claim for medical treatment under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The applicant, MacFarlane, sought compensation for proposed surgery, specifically an L4/5 total disc replacement and an L5/S1 anterior lumbar interbody fusion. The respondent, TNT Australia Pty Ltd, had denied liability for this surgery. The decision under review affirmed the respondent's denial of liability.

The primary legal issues before the court were whether the proposed surgery constituted medical treatment obtained in relation to the applicant's 2009 back injury, and whether such treatment was reasonable in the circumstances. The court was required to consider the medical opinions provided, particularly those concerning the nature and extent of the aggravation of the applicant's pre-existing degenerative spinal condition caused by the injury.

The court's reasoning focused on the opinion of Dr Peter Boys, an orthopaedic surgeon. Dr Boys had initially opined that the applicant's lifting activity in 2009 caused a temporary aggravation of a pre-existing degenerative condition. However, he also noted that persistent symptoms might indicate a specific impairment related to the injury. Crucially, in a supplementary report concerning the proposed surgery, Dr Boys stated that the surgery was not reasonably required in relation to the 2009 injury, did not constitute acceptable treatment for the condition, and would likely result in ongoing total incapacity for employment. The court also considered procedural fairness, noting that the respondent had not been provided with an up-to-date estimate of the surgery's cost, which was necessary for a determination under section 16(1) of the Act.

The court affirmed the decision under review, meaning the respondent's denial of liability for the proposed surgery was upheld.

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

I also consider that Ms Slack has quite properly raised issues of procedural fairness because the respondent has not been provided with an up-to-date estimate of the cost of the surgery. The respondent has not been given a fair opportunity of verifying the cost of proposed medical treatment. In my opinion it is not possible for an order to be made under section 16(1) of the Act unless the cost of medical expenses is known. This is because a determination that is issued under section 16(1) of the Act requires the specification of “compensation of such amount as Comcare determines is appropriate for the medical treatment”. Legislation such as this Act is “remedial”[52] and it would not be necessary for an exact cost of the treatment to be provided, but in this case no up-to-date estimate has been provided.[52] Capital Territory Health Commission v Cavanagh [1978] FCA 5 per Nimmo J.DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The respondent issued its reconsideration decision on 5 November 2020 (“the reconsideration decision”) in which it affirmed the reviewable decision dated 2 November 2015, denying liability for the proposed surgery. Given the respondent affirmed the reviewable decision, the proceeding is resumed pursuant to section 42D(8) of the AAT Act. MEDICAL HISTORY In my reasons for decision dated 21 September 2020, I described in detail the applicant’s treatment history and the medical opinions of the treating doctors. It is necessary to restate those facts which concern the 2009 back injury and the proposed surgery. After seeking treatment from Dr George Bertsos, General Practitioner, on 19 January 2009, the applicant was referred by the respondent to Dr Peter Boys, Orthopaedic Surgeon, for an independent medical examination. That independent medical examination took place on 4 March 2009 and Dr Boys gave his report on that same day. Dr Boys opined that the applicant’s lifting activity at the time of the 2009 back injury had caused an aggravation of an existing degenerative condition being, “narrowing of the L5/S1 disc space and associated facet joint arthrosis” and “degeneration at the L4/5 level within the lumbar spine”.[4] Dr Boys expected the aggravation to resolve over a period of “some 3 to 4 months” and was “likely to be temporary”. Dr Boys did, however, qualify this, remarking, “The persistence of symptoms thereafter however may indicate the presence of specific impairment related to described injury.”[4] Exhibit A, T-Documents for 2015/6532, T7, p. 35. On 20 May 2009, Dr George Ioannou treated the applicant for the 2009 back injury by administering facet block injections in the applicant’s spine.[5][5] Exhibit A, T-Documents for 2015/6532, T10.Dr Cleaver’s proposal for surgery On 2 July 2009, Dr Neil Cleaver, Orthopaedic Surgeon (spine), reported that the facet block injections “did nothing to relieve [the applicant’s] symptoms.” Dr Cleaver requested that the respondent approve the applicant to undergo surgery in the form of an “InMotion disc replacement at L4-5 and an anterior lumbar interbody fusion at L5-S1”.[6] On 14 September 2009 Dr Cleaver provided further information[7] to the respondent upon its request.[8] On 7 October 2009, the respondent engaged Dr Boys for a supplementary report addressing the proposed surgery.[6] Exhibit A, T-Documents for 2015/6532, T11.[7] Exhibit A, T-Documents for 2015/6532, T13.[8] Exhibit A, T-Documents for 2015/6532, T12. On 9 October 2009, Dr Boys provided a supplementary report[9] in which he gave the following opinions: the proposed surgery is not reasonably required in relation to the 2009 back injury; L4-5 lumbar disc replacement surgery and associated anterior lumbar interbody fusion at L5-S1 does not constitute acceptable treatment for the condition; and “Ongoing total incapacity for employment would be the most probable outcome following the types of procedures advised.”[9] Exhibit A, T-Documents for 2015/6532, T15.Reports of Dr Cleaver