MacFarlane and TNT Australia Pty Ltd (Compensation)

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MacFarlane and TNT Australia Pty Ltd (Compensation) [2020] AATA 3721 (21 September 2020)

Division:GENERAL DIVISION

File Numbers:         2015/6532

2017/4565

2017/4566

2017/5519

Re:Malcolm MacFarlane  

APPLICANT

AndTNT Australia Pty Ltd

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:21 September 2020

Place:Brisbane

In application no. 6532 of 2015 I remit the decision under review to the respondent for reconsideration under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) having regard to these reasons, in particular at paragraph 307 above, within 60 days of receiving this decision. Costs cannot yet be determined in respect of this application.

In application no. 4565 of 2017 I set aside the decision under review and substitute a decision that the applicant’s lumbar spine condition continues to be contributed to, to a significant degree, by the applicant’s employment with the respondent and therefore, the respondent was, and continues to be, liable to pay compensation under section 16 and section 19 of the Act in relation to the 2009 back injury. Costs in respect of this application are to be agreed or taxed by the Registrar or an officer of the Tribunal.

In application no. 4566 of 2017 I set aside the decision under review and substitute a decision that the applicant suffers from a Major Depressive Disorder condition which continues to be contributed to, to a significant degree, by the applicant’s employment with the respondent and therefore, the respondent was, and continues to be, liable to pay compensation under section 16 and section 19 of the Act in relation to the Major Depressive Disorder condition. Costs in respect of this application are to be agreed or taxed by the Registrar or an officer of the Tribunal.

I affirm the decision under review in application no. 5519 of 2017, being a decision that the respondent was not liable to pay compensation to the applicant for permanent impairment under section 24 of the Act in respect of the applicant’s psychiatric condition. Costs are not payable by the respondent in respect of this application as the decision has been affirmed.

.........................................................................

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 reasonable treatment decision under review remitted under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) for reconsideration

COMPENSATION – determination to cease liability for compensation under section 16 and section 19 Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether applicant continues to suffer the effects of the compensable injury – aggravation – whether aggravation continues to be contributed to, to a significant degree, by employment with the respondent – whether compensable injury gives rise to the need for medical treatment or incapacity for work – decision under review set aside and substituted

COMPENSATION –…

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Details
Case
[2020] AATA 3721
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, MacFarlane, against determinations made by the respondent, TNT Australia Pty Ltd, concerning claims for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The applicant had lodged claims for a back injury sustained in 2009, and a subsequent psychiatric condition described as adjustment disorder with mixed anxiety and depressed mood. The respondent had previously determined that the applicant was not entitled to compensation for permanent impairment and non-economic loss in relation to the psychiatric condition, and later affirmed a determination that the applicant no longer suffered the effects of the 2009 back injury, thus ceasing liability for compensation under sections 16 and 19 of the Act.

The court was required to determine whether the applicant continued to suffer the effects of the 2009 compensable back injury, and whether any such effects were contributed to, to a significant degree, by his employment with the respondent. Additionally, the court needed to consider whether the applicant's psychiatric condition, an adjustment disorder/depression, was a sequela of the compensable injury and if it continued to be significantly contributed to by his employment. Finally, the court had to assess whether the applicant's injury resulted in a permanent impairment and, if so, the degree of whole person impairment.

The court reasoned that the 2009 back injury, which aggravated a pre-existing degenerative condition, had resulted in a permanent injury. This conclusion was supported by the considered assessments of medical experts, including Dr Shaw and Dr McEntee, who opined that the applicant continued to suffer the effects of the 2009 injury. The court found that the applicant's capacity to work had declined significantly since the 2009 injury, leading to an incapacity for work as defined by the Act, and therefore the respondent was liable to pay compensation under section 19. Regarding the psychiatric condition, the court linked it to the lumbar spine condition and determined that permanent impairment could not be assessed until the applicant had undergone all reasonable rehabilitative treatment for both conditions. Consequently, the psychiatric condition did not yet meet the criteria for permanence under section 24(2)(c) of the Act.

The court set aside the respondent's determination to cease liability for compensation under sections 16 and 19 in relation to the back injury, finding the applicant had an incapacity for work. The court affirmed the respondent's decision regarding the claim for permanent impairment and non-economic loss for the psychiatric condition, as it had not yet reached maximum medical improvement.

Orders

Orders of the court

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Background

Background to the litigation

On 7 September 2017, the respondent affirmed its earlier determination dated 4 August 2017 in which it determined that the applicant was not entitled to payment of compensation for permanent impairment and non-economic loss under section 24 and section 27 of the Act in regard to the applicant’s psychiatric condition.BACKGROUND On 27 January 2009, the applicant made a claim for workers’ compensation for “BACK INJURY (LOWER)”, the 2009 back injury, which the applicant claimed to have suffered on 15 January 2009.[1] In the claim form, the applicant stated that he first sought medical treatment for the 2009 back injury on 19 January 2009 with Dr George Bertsos, General Practitioner.[2] The applicant stated he was lifting a 40 kilogram carton onto the back of a truck at the time of the 2009 back injury.[1] Exhibit A, T-Documents for 2015/6532, T5. [2] Exhibit A, T-Documents for 2015/6532, T4. When the 27 January 2009 claim was made by the applicant, the respondent’s insurer for workers compensation was Allianz Australia Insurance Limited. By 2 November 2015, the insurance of the respondent had been taken over by QBE Insurance Group Limited. For ease of reference, the actions of these entities will be referred to as having been undertaken by the respondent for all intents and purposes. On 2 March 2009, the respondent referred the applicant for an independent medical examination by Dr Peter Boys, Orthopaedic Surgeon.[3] The applicant attended an appointment with Dr Boys on 4 March 2009. On 4 March 2009, Dr Boys gave his report.[4] Dr Boys had previously examined the applicant on 8 July 2008 in relation to a lower back injury sustained by the applicant on 8 July 2008 (“the 2008 injury”). [3] Exhibit A, T-Documents for 2015/6532, T6.[4] Exhibit A, T-Documents for 2015/6532, T7. Dr Boys relevantly opined that the lifting activity which was undertaken on 15 January 2009 by the applicant had caused an aggravation of an existing degenerative condition being: “narrowing of the L5/S1 disc space and associated fact joint arthrosis” and “degeneration at the L4/5 level within the lumbar spine”.[5] 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 qualify this, however, remarking: “The persistence of symptoms thereafter however may indicate the presence of specific impairment related to described injury.”[5] Exhibit A, T-Documents for 2015/6532, T7, p. 35. The applicant also provided to the respondent his statement dated 31 March 2009.[6] The applicant provided his detailed account of the 2008 back injury and the 2009 back injury. As to the 2008 back injury, the applicant provided the following history:[7]… on or about 8 July 2008 I woke up feeling quite stiff in the back, for no obvious reason. I can only assume my back felt that way from the nature of my duties, lifting items, as there was no specific incident. Anyway, over the next few days my back gradually worsened, and on or about 14 July 2008 this intensified after I helped a colleague]…] lift a 55 kg plasma TV from the dock floor. That happened on a Monday morning.After that I felt a bit stiff and sore so I told […] my supervisor. He told me to see the doctor but I said no it was OK. He again said I should see the doctor, so I did. I sought medical attention from General Practitioner, Dr Neil Bartels… on 14 July 2008. … On or about Wednesday, 23 July 2008 I suffered a setback and aggravated my condition when lifting a box at work while I was on light duties. A Leading Hand […] instructed me to load the belt. I told him I shouldn’t do it as I was on light duties and he told me to “just do the light stuff” which I did and then later completed a light delivery run.That afternoon [the Leading Hand] told me to do a load in a semitrailer and I told him I shouldn’t do that because of my back injury and being on light duties. I clearly remember that he said “There is nothing wrong with you, just do it”. I again objected and he said to “pick up only the light stuff”. I went ahead and did it and after about 20 minutes to an hour (I have no idea how long it was) I picked up a small package that was 30 by 15 by 20cm. I picked up this box off the belt and passed it up to the other person […] who was also working in that area. It was only small but heavy. While I was prone or stooped picking up that box I felt my back spasming in the spot where I felt the sharp pain in July 2008. The Pain was about 9/10. I notified [my supervisor] and then sat in his office for a while then I went home… (emphasis in original)[6] Exhibit A, T-Documents for 2015/6532, T8.[7] Exhibit A, T-Documents for 2015/6532, T8, pp. 40-41.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There are different assessments before the Tribunal as to the degree of permanent impairment (WPI). The assessment by Dr Shaikh was based upon the criteria in the Guide and the information based to him. The assessment by Dr Mathew contained conclusions which were not supported by objective evidence. If I was to prefer an assessment it would be the reasoned assessment of Dr Shaikh. However, as I consider that the psychiatric condition of the applicant Is linked to the lumbar spine condition it is not appropriate that an assessment of the degree of permanent impairment is undertaken unless and until the applicant has undertaken all reasonable rehabilitative treatment for both impairments.[204] I accept the evidence of Dr Shaikh that the applicant has not received maximum medical improvement in the sense that all treatment must have been attempted. Therefore, having regard to paragraph 24(2)(c) of the Act, the psychiatric condition of the applicant does not yet meet the criteria to be regarded as permanent.[204] Safety, Rehabilitation and Compensation Act 1988 (Cth) paragraph 24(2)(c).CONCLUSION The medical condition of the applicant is certainly complex. Dr Gatehouse recognises that the applicant is a person who is in genuine pain. While the aggravation injury of January 2009 might have been expected to resolve within a short term, Dr Boys who examined the applicant had in 2009 recognised that there may be the persistence of symptoms which relate to “specific impairment related to described injury”. During the hearing there was a comment by Dr Gatehouse that these qualifying remarks may relate to a psychological condition. However, Dr Boys being an orthopaedic surgeon would not in my opinion be making observations concerning a medical condition that was not his specialty, without at least qualifying his observations. On my review of the material, it was only in October 2009, several months after the report of Dr Boys, that there is an indication that the applicant had presented with depressive symptoms. I give some weight to the contemporaneous medical report of Dr Boys who recognised in 2009 that there could be an impairment related to the injury. It is clear that the decision of this Tribunal that was made on 9 July 2012 could only award compensation under section 24 of the Act in the case of a permanent injury, being an aggravation of an ailment which was substantially contributed to by the 2009 back injury. There was medical evidence at the time that the applicant had a permanent injury. I accept the considered assessment of both Dr Shaw and Dr McEntee that the applicant continues to suffer the effects of the 2009 back injury. As the 2009 back injury made a substantial contribution to the lumbar spine condition of the applicant, and it has resulted in a permanent injury of the applicant. Having regard to the considerable medical evidence before the Tribunal, I am satisfied that the applicant is unable to engage in work at the same level at which he was engaged by the respondent immediately before the injury happened. This finding is supported by the evidence of Dr Edwards, Dr McEntee and Dr Shaw. It is unfortunate that the capacity of the applicant to undertake work has declined sharply since the 2009 back injury and has not returned. There is evidence before the Tribunal that he can no longer drive a vehicle without special modifications and cannot stand for extended periods of time. The applicant certainly has limited capacity to lift objects. The continual pain and impaired mobility of the applicant caused by the 2009 back injury has resulted in an incapacity of the applicant to undertake work. Therefore, the applicant has an incapacity for the purposes of subsection 4(9) of the Act. Therefore, the respondent is liable to pay compensation to the applicant in accordance section 19 of the Act.

Ratio Decidendi

Legal Principle Established

On 11 June 2017, the applicant’s solicitors wrote to the respondent to request reconsideration of its determination dated 12 May 2017 pursuant to section 62 of the Act.[71] The applicant drew the respondent’s attention to the report of Dr McEntee dated 4 April 2017 and contended that the respondent had made its determination without placing sufficient emphasis on that report. The applicant contended in reliance upon the report of Dr McEntee dated 12 May 2017 that the applicant still suffered from the compensable work-related injury and that the opinion of Dr McEntee should be preferred given his reliance upon radiological reports and pathological findings and that he was the applicant’s treating orthopaedic surgeon.[71] Exhibit A, T-Documents for 2017/4565, T9.Reconsideration determination dated 12 July 2017 On 12 July 2017 the respondent affirmed its earlier determination dated 12 July 2017 that the applicant did not continue to suffer the effects of the 2009 back injury and was therefore not entitled to compensation under sections 16 and 19 of the Act.[72] This determination is the decision under review in application no. 4565 of 2017. The respondent was satisfied that the applicant had degenerative changes in his lumbar spine which pre-dated the 2008 and 2009 back injuries. The respondent considered that the 2008 and 2009 back injuries represented only in aggravations of the underlying degenerative condition. [72] Exhibit A, T-Documents for 2017/4565, T10. The respondent had regard to a report following an MRI undertaken of the applicant dated 11 September 2008 in which Dr Julie Bradford reported that the applicant presented with “Prominent posterior disc bulge with small right lateral… disc protrusion at L4/5 level”. The respondent drew attention to a further report following an MRI undertaken of the applicant in May 2010 in which Dr Kieran Frawley reported “minor degenerative changes are noted at the L4/5 disc and minor degenerative changes are noted in the lower lumbar facet joints”. The respondent placed emphasis on the report of Dr Boys dated 4 March 2009, along with the report of Dr Gatehouse dated 20 March 2017. The respondent had regard to the opinion of Dr Gatehouse Application no. 4566 of 2017: review of determination dated 17 July 2017 that the respondent was, as at that date and to the present date, not liable to pay compensation to the applicant under section 16 and section 19 of the Act in regard to applicant’s “adjustment disorder/depression” condition On 24 February 2011, The applicant made a claim (“the psychiatric claim”) for compensation from the respondent for a secondary injury, being: “Adjustment disorder with mixed anxiety and depressed mood” (“the psychiatric condition”).[73] In support of the psychiatric claim, the applicant provided a medical certificate from his General Practitioner, Dr Chui, and a report from a psychologist, Mr Robert Holmes. [73] Exhibit A, T Documents for 2017/4566, T4, T16.