Ralph Sinclair and Transpacific Industries Pty Ltd - [2012] AATA 405

[2012] AATA 405

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/3427

2011/3429

Re

Ralph Sinclair

APPLICANT

And

Transpacific Industries Pty Ltd

RESPONDENT

DECISION

Tribunal
Senior Member Bernard J McCabe

Date 29 June 2012

Place Brisbane (heard in Cairns)
Decision Summary
The decision to deny ongoing liability in respect of the applicant’s cervical spine condition is set aside. The Tribunal decides in substitution that the respondent remains liable under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The decision to deny ongoing liability in respect of the applicant’s lower back condition is affirmed.
..........................[Sgd].........................
Senior Member Bernard J McCabe
CATCHWORDS
WORKERS’ COMPENSATION – Claim for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – Incapacity for work – Liability in respect of cervical spine condition and secondary lower back condition – Previously asymptomatic underlying condition becomes symptomatic following workplace injury – Decision under review set aside for cervical spine condition – Decision under review affirmed for lower back condition.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Commonwealth v Smith (1989) 18 ALD 224
REASONS FOR DECISION
Senior Member Bernard J McCabe

This case arises out of an all too familiar story: an individual with an asymptomatic underlying condition becomes and remains symptomatic following a workplace injury even though doctors say the effects of the workplace injury should have resolved long ago.
The employer in this case initially accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for a workplace injury to his neck and left shoulder, and a subsequent injury to his lower back that occurred at home while he was being treated for his neck and shoulder conditions. In a reviewable decision dated 15 June 2011, the employer determined the effects of the neck and shoulder injury – and the employer’s continuing obligations under the Act – have now ceased. The application to review this decision is the subject of proceedings numbered 2011/3427. The employer made a similar “cease effects” determination with respect to the lower back condition in a reviewable decision made on the same date. The application to review that decision is the subject of proceedings numbered 2011/3429.
The employee, Mr Ralph Sinclair, says he has a present entitlement to compensation under the Act with respect to his neck and shoulder because the effects of his initial injury have not ceased. He does not deny he had a pre-existing degenerative condition; he merely claims the condition was aggravated by the workplace injury so as to make it symptomatic and – crucially – the aggravation has worsened or accelerated the underlying condition. If his initial injury gives rise to a continuing liability, he argues the secondary condition, which has not improved, must also be compensable.
I think the applicant is right in relation to the neck and shoulder condition, but he is wrong about liability for the back condition, I explain my reasons below.
THE INJURIES AND THEIR IMMEDIATE…

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: [2012] AATA 405
Decision Date: 29 June 2012

CaseChat Overview and Summary

The applicant, Ralph Sinclair, sought compensation for a cervical spine condition and a secondary lower back condition under the Safety, Rehabilitation and Compensation Act 1988 (Cth). His employer, Transpacific Industries Pty Ltd, opposed the claim. The dispute was reviewed by the court to determine the employer's liability for the conditions.

The primary legal issue was whether the employer was liable for the cervical spine condition, which had been substantially asymptomatic prior to the workplace injury, and the lower back condition, which was already becoming symptomatic before the injury. The court needed to ascertain whether the workplace incident caused a sudden and dramatic change in the course of the conditions, which would determine the employer's liability.

The court found that the cervical spine condition was substantially asymptomatic before the workplace incident, and the incident caused a sudden and dramatic change in the condition. Therefore, the decision to deny ongoing liability for the cervical spine condition was set aside, and the court ruled that the employer remained liable. For the lower back condition, the court determined that it was already becoming symptomatic before the incident, and while the incident caused a temporary aggravation, there was no sudden and dramatic change. Consequently, the decision to deny ongoing liability for the lower back condition was affirmed.

The court set aside the decision regarding the cervical spine condition and affirmed the decision regarding the lower back condition.

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

The position in relation to the applicant’s lumbar spine is different. While the applicant’s neck condition was substantially asymptomatic before the incident at work, and his shoulder problems were largely connected to a specific earlier injury that is irrelevant for present purposes, the physiotherapist’s notes and other aspects of the applicant’s medical history suggest the lower back condition was already becoming symptomatic by the time he experienced an episode of pain on the floor while doing exercises on 17 January 2011. I do not doubt that event caused a temporary aggravation of the back pain, but it is much less clear there was a sudden and dramatic change in the course of the lower back condition. That view of the evidence is consistent with the radiological evidence discussed by Dr Cook in his report which appeared to suggest the lumbo-sacral spine was in a more parlous state than the cervical spine.CONCLUSION The decision to deny ongoing liability in respect of the applicant’s cervical spine condition is set aside. I decide in substitution that the respondent remains liable under the Act. The decision to deny ongoing liability in respect of the applicant’s lower back condition is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/3427 2011/3429
Re	Ralph Sinclair
APPLICANT
And	Transpacific Industries Pty Ltd
RESPONDENT

Tribunal	Senior Member Bernard J McCabe
Date	29 June 2012
Place	Brisbane (heard in Cairns)