Pettge v Linfox Australia Pty Ltd
[2012] FCA 687
•28 June 2012
FEDERAL COURT OF AUSTRALIA
Pettge v Linfox Australia Pty Ltd [2012] FCA 687
Citation: Pettge v Linfox Australia Pty Ltd [2012] FCA 687 Appeal from: [2011] AATA 621 Parties: STEFAN PETTGE v LINFOX AUSTRALIA PTY LTD File number: NSD 1710 of 2011 Judge: EDMONDS J Date of judgment: 28 June 2012 Catchwords: WORKERS’ COMPENSATION – application by way of appeal from decision of Administrative Appeals Tribunal – whether Tribunal erred on various grounds – denial of natural justice – posing wrong question – failing to address material submissions – failing to provide adequate reasons – whether decision so unreasonable no reasonable person could adopt it
Held: Appeal dismissed; no ground made out
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decision (Judicial Review) Act 1977 (Cth) s 5
Judiciary Act 1902 (Cth) s 39B
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19Date of hearing: 10 April 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 53 Counsel for the Applicant: Mr A Anforth Solicitor for the Applicant: Capital Lawyers Counsel for the Respondent: Mr D Richards Solicitor for the Respondent: HBA Legal
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1710 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: STEFAN PETTGE
ApplicantAND: LINFOX AUSTRALIA PTY LTD
Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
28 JUNE 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondent’s costs.
Note:Entry of orders is dealt with in Order 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1710 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: STEFAN PETTGE
ApplicantAND: LINFOX AUSTRALIA PTY LTD
Respondent
JUDGE:
EDMONDS J
DATE:
28 JUNE 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), s 5 of the Administrative Decision (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1902 (Cth) from a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 2 September 2011 that affirmed two reviewable decisions of the respondent (“Linfox”). The first, determining that the applicant had ceased to suffer the effects of a compensable injury sustained on 17 July 2008 and was therefore not presently entitled to compensation for medical treatment under s 16 and incapacity under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), for “sprain to lower back” (“the first reviewable decision”); and the second denying liability to pay compensation in respect of a “disc prolapse lower back, arm, neck and depression” in accordance with s 14 of the SRC Act (“the second reviewable decision”).
Before this Court, the applicant submitted (at para 3 in reply) that:
“[He] lodged the second claim for disc prolapse out of abundant caution to avoid the usual jurisdictional dispute that commonly arise[s] in the Tribunal concerning the nature of the injury claimed. The second claim did not purport to allege a new injury. It was a claim that posed a second causal mechanism or diagnosis arising from the same injury in July 2008. It asserted a franc disc injury in the alternative to an aggravation of an existing degenerative condition of the spine (spondylosis).” (Emphasis added.)
The obvious difficulty with this submission is that immediately before (at para 1 in reply) the applicant conceded that the original claim was for “lower back pain” (Part C2, Tab 18, p 9), not for aggravation of an existing degenerative condition of the spine (spondylosis). It was submitted on behalf of the applicant that he was only required to claim for an “injury” and was not restricted to claiming for any particular diagnosis. Whether that be right or wrong, and it certainly does not accord with the explanatory material at this part of the claim form which reads:
“10. What injury or illness are you claiming Lower back pain
workers’ compensation for?
You need to quote the precise diagnosis
as stated in a medical certificate.For example: diagnosed conditions
are: disc prolapse…
and they are not: back pain…”, (emphasis added)as will become apparent later in these reasons, here lies the source of the principal difficulty for the applicant on this appeal.
BACKGROUND
By way of background, the applicant is 44 years old and suffers from an underlying lumbar degenerative condition known as “spondylosis”. At all material times, the applicant was employed by Linfox as a truck driver.
In the course of his employment, the applicant was required to transport and unload rollcages (mostly comprising supermarket goods on pallets) from his truck.
On 17 July 2008 the applicant sustained an injury to his back whilst trying to move “heavy cages with stock jammed down between them” (Part C Tab 18 p 11).
2008 claim for “lower back pain”
The applicant made a claim for compensation for “lower back pain” on 18 August 2008, indicating that his right leg and lower back were most affected by his injury (Part C Tab 18 p 9).
On 11 August 2008 the applicant consulted Dr Makarious who deemed the applicant fit for suitable workplace duties on and from 11 August 2008 to 1 September 2008 and recommended him for modified duties.
By a determination made on 27 August 2008, it was determined that Linfox was liable to pay the applicant compensation in accordance with s 14 of the SRC Act for “sprain to lower back” sustained on 17 July 2008, from that time up to and including 29 August 2008 (Part C Tab 20 p 1). In particular, physiotherapy and medical treatment at the direction of a legally qualified medical practitioner were approved in accordance with s 16 of the SRC Act (Part C Tab 20 p 3). The determination noted:
“Should you wish to claim compensation beyond 29 August 2008 you will be required to provide further medical evidence to support your claim.”
Linfox paid compensation to the applicant between 27 August 2008 and 27 August 2009.
On 27 August 2009 Linfox determined that the applicant had ceased to suffer the effects of the compensable injury sustained on 17 July 2008 and was no longer presently entitled to compensation for medical treatment under s 16 or incapacity under s 19 of the SRC Act (Part C Tab 22).
The applicant wrote to Linfox on 1 November 2009 requesting a reconsideration of the 27 August 2009 determination.
On 4 December 2009 Linfox made the first reviewable decision by affirming the 27 August 2009 determination. It was noted in the decision that the 27 August 2009 determination accepted liability to pay compensation with respect to “sprain injury of the lower back” and that, based on the available medical evidence, it was “apparent that [the applicant] has now recovered from the effect of the sprain to the lower back sustained on 17/07/2008, and is not presently incapacitated for work or requiring any medical treatment relevant to the injury sustained on 17/07/2008” (Part A Tab 1 p 6).
The applicant filed an application for review of the first reviewable decision with the Tribunal on 13 January 2010.
2010 claim for “disc prolapse lower back, arm and neck and depression”
The applicant made a further claim for compensation on 1 November 2010 for “disc prolapse lower back, arm and neck and depression” (Part C Tab 25 p 4).
On 29 December 2010 Linfox determined that it was not liable to pay compensation for those conditions in accordance with s 14 of the SRC Act (Part C Tab 26 p 1). In the statement of reasons, reference was made to the 27 August 2009 determination that was now before the Tribunal. Indicating a preference not to “disturb” that process, Linfox limited itself to considering the further symptoms now claimed in respect of the applicant’s cervical spine and depression (Part C Tab 26 p 4). In short, Linfox found there to be no evidence that the applicant sustained an injury to his cervical spine on 17 July 2008 and that no nexus existed between any depression symptoms experienced by the applicant and his employment with Linfox.
The applicant sought a reconsideration of the 29 December 2010 determination by letter dated 19 January 2011.
On 8 February 2011, Linfox made the second reviewable decision by affirming the 29 December 2010 determination. The reasons for decision set out the following, inter alia (Part A Tab 2 p 3):
“30. The evidence provided by the medical experts is that the claimant suffered an injury to his lumbar spine at work on 17/07/2008… The medical evidence does not support that the claimant suffered a disc prolapse in his lower back during the incident on 17/07/2008. Further, there is no evidence that the incident on 1707/2008 caused the claimant to suffer an injury to his arm or neck.
31. In relation to the claimant’s claim that he suffered depression as a result of the incident on 17/07/2008, Ms Evacek [psychologist] provided evidence that the claimant had normal levels of stress, depression and anxiety. I therefore find that the claimant is not suffering from a psychological condition.
32. I have considered the medical evidence and legislative provisions and, having completed that review, I am not satisfied, on the balance of probabilities, that the claimant suffered the condition of “disc prolapse lower back, arm, neck and depression”. Furthermore, if the claimant did suffer from the claimed condition, I am not satisfied that the condition arose out of or in the course of his employment with Linfox.”
The applicant filed an application for review of the second reviewable decision with the Tribunal on 16 February 2011.
The Tribunal
The Tribunal conducted a hearing by way of review of both the first and second reviewable decisions.
At [9] of its reasons, the Tribunal articulated three questions for it to address:
(1)Did the back symptoms suffered by the applicant from August 2009 arise out of the incident in July 2008 or from his underlying degenerative back condition?
(2)Did the applicant’s neck and arm symptoms arise out of the July 2008 incident, physiotherapy treatment or some other cause or contribution?
(3)If the applicant’s physical conditions and symptoms in August 2009 were caused by or contributed to by his employment, was his depression caused by or contributed to by his physical conditions and symptoms?
In affirming both reviewable decisions, the Tribunal answered the first question at [22] as follows:
“We are persuaded by the opinions of Drs McGill and Maxwell that Mr Pettge suffered a temporary disturbance of his lumbar spine in the July 2008 incident and that underlying age related changes are responsible for his current pathology. We are not persuaded by Dr Bentivoglio’s opinion that an annular tear can only come about from trauma and prefer the opinions of Drs McGill and Maxwell in this regard. We also note the opinion of Dr Sheridan that Mr Pettge has developed additional symptoms now associated with a disc disturbance at L4-5, a disturbance not evident in the MRIs of 2008 and 2009. We consider this suggests advancing degeneration and that this is responsible for his present lumbar symptoms. We consider it likely that from August 2009 Mr Pettge had ceased to suffer the effects on his lumbar spine of the July 2008 incident.” (Emphasis added.)
In answer to the second question, the Tribunal at [27] concluded:
“We consider that the length of time between the incident at work and the onset of neck pain and arm symptoms suggests that there is no direct causal link between the two. We also note the presence of osteophytes which indicate degeneration. We accept the opinion of Dr McGill that any effect of the physiotherapy exercise would have been transitory and would not have produced the pathology evident in the MRIs nor the symptoms Mr Pettge now experiences.”
Finally, in answer to the third question, the Tribunal at [28] concluded:
“Mr Pettge’s depression was first reported in January 2010 in his general practitioner’s clinical notes and claimed for in November 2010. We have concluded that the effects of Mr Pettge’s injury had ceased by August 2009 and that the pain he experienced after that time is due to his underlying degenerative disease. It follows that if there is a causal nexus between Mr Pettge’s physical conditions and symptoms then our conclusion that the effects of his injuries had ceased by August 2009 means that his depression was not contributed to by his employment.”
The applicant appeals to this Court from the whole of the Tribunal’s decision.
GROUNDS OF APPEAL
The applicant’s amended notice of appeal raised five grounds of appeal:
(1)Denial of natural justice – the Tribunal breached the rules of natural justice in departing from an agreed fact without notice to the applicant that it intended to do so.
(2)The Tribunal posed for itself the wrong question as set out in [21(1)] above, because it led to the Tribunal’s failure to address the alternative “aggravation” basis on which the applicant put his case.
(3)The Tribunal failed to address a material submission seriously put by the applicant namely, the “aggravation” basis of the claim.
(4)The Tribunal failed to provide adequate reasons for how it reconciled the “inconsistent” opinions of Dr McGill and Dr Maxwell and why they are to be preferred over the evidence of the treating doctors.
(5)The Tribunal’s reasoning process, in particular its implicit adoption of the “unfortunate co-incidence” theory of workers’ compensation, was so unreasonable that no reasonable person could adopt it.
Grounds (2) and (3) are two sides of the same coin, while grounds (4) and (5) are related in the sense that they both assail the Tribunal’s findings in relation to Dr Maxwell’s evidence and the Tribunal’s process of reasoning, or alleged lack of it, in arriving at these findings.
Ground (1)
This ground, or rather the facts upon which it is predicated, lies at the heart of the applicant’s case. It does so because the predicated facts are also fundamental to the making out of grounds (2) and (3). Because I am of the view that the facts upon which ground (1) is predicated have no foundation, not only ground (1), but also grounds (2) and (3), cannot be made out.
Ground (1) is predicated on the basis that there was no dispute between the parties that –
(a)the applicant suffered lumbar degeneration (or spondylosis);
(b)he suffered an injury to his lumbar spine at work on 17 July 2008;
(c)prior to the injury the lumbar spondylosis was asymptomatic; and
(d)after the injury it became symptomatic and remained symptomatic.
Paraphrasing the applicant’s argument that the Tribunal denied him natural justice, predicated as it was on these “undisputed” factual premises, the argument went like this:
(1)The issue before the Tribunal as understood by the applicant was whether the symptomatic lumber spondylosis after August 2009 was still attributable in material part to the work injury in July 2008.
(2)The accepted facts and the issue as defined above were fundamental to the manner in which the applicant put its case.
(3)The Tribunal did not:
(a)alert the applicant that it was considering departing from the above accepted facts adopted by the parties;
(b)provide the applicant with an opportunity to address that departure by the Tribunal.
There is a fundamental difficulty with this ground of appeal. The alleged “undisputed” facts said to be common ground, those set out in [29] above, are not accepted by Linfox as a common basis upon which the parties put their respective cases to the Tribunal. Moreover, Linfox’s position seems to be borne out by reference to objective indicia.
First, as to the allegation that there was no dispute between the parties that the applicant suffered lumbar degeneration (or spondylosis) (para (a)), so much is at odds with the Tribunal transcript. At T 17 (25/07/11) in response to a question from the Tribunal (at T 17, 9–11):
“[I]s it being contested that there was a pre-existing condition that’s unrelated to work that’s giving rise to the applicant’s symptoms?”
Counsel for Linfox responded (at T 17, 24–26):
“I didn’t think that was necessarily a contention that the applicant was suffering some sort of degenerative condition.”
Counsel for the applicant responded (at T 17, 44–46):
“If there was anything pre-existing, it was asymptomatic, which was then brought into existence on 17 July 2008, and the treatment following. The man was good to go, Senior Member, until the incident on the 17th.”
At T 18, 1–11 the transcript reads:
“MS BELL: Do you – are you pressing a position that there was no pre-existing condition, or is that something you can live with?
MR McKEOWN: It’s not something that’s going to – I’m living with it if it comes up. I’m not concerned either way, and I don’t want to lift a flag in one camp or the other.
MS BELL: All right.
MR McKEOWN: It’s still going to be compensable, in my respectful submission, if, in fact, the injury did what it did.”
No doubt counsel for the applicant was mindful that the applicant had only made his original claim for an injury described as “lower back pain” (see [3] above), and not for “aggravation of an existing degenerative condition of the spine (spondylosis)” and therefore hesitated to lift a flag in any camp. Whether that be correct or not, clearly it was not common ground (as between the parties) before the Tribunal that the applicant suffered lumbar degeneration (spondylosis).
Second, as to the allegation that there was no dispute between the parties that the applicant suffered an injury to his lumbar spine on 17 July 2008 (para (b)), even the applicant’s original claim only described the injury as “lower back pain” and liability was only accepted by Linfox on the basis of “sprain to lower back”. There was no common ground (as between the parties) before the Tribunal that the applicant suffered an injury to his lumbar spine on 17 July 2008.
Third, as to the allegation that there was no dispute that prior to the incident the applicant’s lumbar spondylosis was asymptomatic (para (c)), if the first allegation (para (a)) is not made out, then this allegation cannot be made out. That aside, it is clear from the evidence before the Tribunal that the applicant had back pain from time to time prior to the incident on 17 July 2008; in the face of this, there could be no common ground (between the parties) before the Tribunal that prior to the injury the lumbar spondylosis was asymptomatic.
Fourth, as to the allegation that there was no dispute that, after the injury, the spondylosis became symptomatic and remained symptomatic (para (d)), that cannot be made good in the face of the inability to make good the first allegation (para (a)) namely, that there was no dispute between the parties before the Tribunal that the applicant suffered lumbar degeneration (spondylosis). That aside, it is clear from the evidence that the applicant’s back symptoms fluctuated after the incident and by the time the applicant saw Dr Maxwell on 12 February 2009 any symptoms resulting from the injury on 17 July 2008 had resolved. In its submissions, Linfox relied on the report of Dr Maxwell dated 12 February 2009 that the applicant “experienced some discomfort in the middle of his neck and in his lumbar spine”, but over all he “feels he is 99% improved”. In its submissions, Linfox also relied on and referred to the clinical notes of Dr Makarious in support of the proposition that by February 2009 the injury suffered by the applicant on 17 July 2008 had resolved.
The evidence of Dr Maxwell, and that of Dr McGill, was relied on by the Tribunal at [19]–[22] of its reasons for coming to the conclusion it did at [22] namely:
“We consider it likely that from August 2009 Mr Pettge had ceased to suffer the effects on his lumbar spine of the July 2008 incident.”
For present purposes however, there is no basis for the applicant to contend, as he does on this appeal, that there was no dispute between the parties before the Tribunal that after the injury the lumbar spondylosis became symptomatic and remained symptomatic.
Thus, in my view, each of the four factual premises which the applicant contended formed the common ground upon which the parties put their respective cases to the Tribunal has no foundation. That being so, the applicant’s argument that the Tribunal denied the applicant natural justice by departing from such facts and the issue as defined in [30(1)] above, without affording the applicant an opportunity to address that departure, completely breaks down.
For completeness in response to this ground, I would make two further observations:
(1)At para (2A) of the applicant’s amended notice of appeal the applicant suggested that Linfox accepted liability from 17 July 2008 to August 2009 for lumbar spondylosis. That is incorrect. As indicated at [34] above, on 27 August 2008 Linfox accepted liability under s 14 of the SRC Act for “sprain to lower back” consistent with the applicant’s original claim for “lower back pain”. Compensation payments were made to the applicant in relation to a back sprain, not for lumbar spondylosis.
(2)At para (3A) of the applicant’s amended notice of appeal the applicant asserts that Linfox affirmed its position that the cause of the applicant’s pain after July 2008 was spondylosis. That is incorrect. At the hearing Linfox conceded that the applicant had a pre-existing degenerative back condition (T 17, 13–15), unrelated to his employment, which was giving rise to his current symptoms, that is, post August 2009.
For the foregoing reasons, the first ground of appeal – denial of natural justice – cannot be sustained.
Ground (2)
The applicant submitted that by posing for itself the question formulated in [21(1)] above namely, did the back symptoms suffered by the applicant from August 2009 arise out of the incident in July 2008 or from his underlying degenerative back condition, the Tribunal posed the wrong question because it led to the Tribunal’s failure to address the alternative “aggravation” basis on which the applicant put his case.
There is a simple answer to this claim. The applicant did not contend before the Tribunal that he suffered an aggravation of his spondylosis. As noted earlier in [2] and [3] above, the applicant’s original claim was not for aggravation of his spondylosis even though he submitted that his second claim for disc prolapse – a franc disc injury – was made out of an abundance of caution as an alternative to the aggravation of his spondylosis claim. There was no aggravation claim of this kind made by the applicant and it is not surprising, therefore, that it was not contended for before the Tribunal.
None of the applicant’s medical evidence – Dr Bentivoglio and Professor Sheridan – opined that the incident on 17 July 2008 aggravated the applicant’s degenerative condition. The applicant did not raise as an issue before the Tribunal a further finding of liability under s 14 of the SRC Act in relation to the applicant’s back; only for arm, neck and a depressive condition. In short, the Tribunal was not required to consider an aggravation claim in relation to the applicant’s back.
Before the Tribunal, the applicant sought review only as to whether he was entitled to compensation for medical expenses and incapacity after 27 August 2009. This was in fact how the applicant ran his case, and was how the Tribunal determined the review. The applicant cannot complain of error on the part of the Tribunal of the kind here alleged – failing to consider an issue because the Tribunal posed for itself the wrong question – if the Tribunal was never required to consider the issue.
Ground (3)
For the same reason, this ground – that the Tribunal failed to address a material submission seriously put by the applicant namely, the “aggravation” basis of the claim – cannot be sustained.
Ground (4)
There are two limbs to this ground. First, that the Tribunal failed to provide adequate reason as to how it reconciled the “inconsistent” opinions of Dr McGill and Dr Maxwell. Second, as to why the opinions of Dr McGill and Dr Maxwell are to be preferred over the evidence of the treating doctors.
As to the first limb, the Tribunal did not purport to, nor did it in fact, reconcile the “inconsistent” opinions of Dr McGill and Dr Maxwell. Rather, the Tribunal was persuaded, and said as much at [22] of its reasons, by the common opinion of Drs McGill and Maxwell that the applicant suffered a temporary disturbance of his lumbar spine in the July 2008 incident and that underlying age-related changes were responsible for his current pathology, that is, post 27 August 2009.
As to the second limb, it was sufficient that the Tribunal stated that it preferred the opinions of Drs McGill and Maxwell over those of Dr Bentivoglio without going into the reasons for that preference, although the Tribunal did indicate at [22] that it found comfort for that preference in the opinion of Dr Sheridan.
This ground cannot sustain the appeal.
Ground (5)
This ground alleged that the Tribunal’s reasoning process was unreasonable in the “Wednesbury” sense, in other words, that no reasonable person could have come to the conclusion that the Tribunal did in adopting Dr Maxwell’s evidence over that of the treating doctors without explanation. In substance, the ground is no more than a repeat of ground (4).
The ground is amplified by reference to the allegation that the Tribunal had implicitly adopted the “unfortunate co-incidence” theory of workers’ compensation. Having regard to my reasons for rejecting the earlier grounds, in particular grounds (1), (2) and (3), this ground has no substance.
The appeal must be dismissed with costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 28 June 2012
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