Rutter and Linfox Australia Pty Ltd (Compensation)

[2016] AATA 938

Rutter and Linfox Australia Pty Ltd (Compensation) [2016] AATA 938 (25 November 2016)

Division

GENERAL DIVISION

File Number(s)

2015/2747

2015/3641

Re

Anthony Rutter

APPLICANT

And

Linfox Australia Pty Ltd

RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	25 November 2016
Place	Sydney

1. In respect of matter 2015/2747 the decision of Linfox Australia Pty Ltd made on 7 April 2015 is affirmed.

2. In respect of matter 2015/3641 the decision of Linfox Australia Pty Ltd made on 26 June 2015 is set aside and remitted with the direction that Mr Rutter is entitled to receive compensation for permanent impairment for his lower back condition assessed at 13% WPI and that in regards to non-economic loss Mr Rutter has a score of 2 for pain, a score of 3 for recreation and leisure activities and a score of 1 for other loss.

   ......................[sgd].................................................

   Senior Member A Poljak

   CATCHWORDS

   COMPENSATION – workers compensation – claim for lower back injury – whether Applicant entitled to medical treatment expenses and incapacity benefits – treatment including physical therapy, hydrotherapy and Pilates – decision affirmed – whether injury resulted in permanent impairment – whole person impairment rating – non-economic loss scores – decision set aside and remitted

   LEGISLATION

   Administrative Appeals Tribunal Act 1975, s 25 (1)

   Safety, Rehabilitation and Compensation Act 1988, s 16(1), s 24, s 27

   CASES

   Australian Postal Corporation v Oudyn (2003) 73 ALD 659

   Lees v Comcare [1999] FCA 753; 56 ALD 84

   Rosillo v Telstra Corporation Limited [2003] FCA 1628

   SECONDARY MATERIALS

   Guide to the Assessment of Degree of Permanent Impairment, Edition 2.1, Part 1 Div 2, Table 9.17, Table B1, Table B3.3, Table B4

   REASONS FOR DECISION

   Senior Member A Poljak

   25 November 2016

3. Mr Rutter has applied to the Tribunal to review two decisions made by his employer, Linfox Australia Pty Ltd, the Respondent in these proceedings. Both decisions relate to a lower back injury suffered by Mr Rutter after he slipped on the first step of the truck during the course of his employment with the Respondent on 15 February 2010 (“date of injury”).

   Application 2015/2747

4. On 23 February 2010, the Respondent accepted liability to compensate Mr Rutter under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of an injury, being “non-specific lower back pain, possible disc protrusion” he suffered at the date of injury.

5. Following the acceptance of liability, the Respondent paid Mr Rutter compensation in the form of medical treatment expenses and incapacity benefits in accordance with section 16 and 19 of the SRC Act.

6. On 7 April 2015 the Respondent affirmed an earlier decision of 14 January 2015 which found Mr Rutter to have no present entitlement to payment of compensation for medical treatment expenses in accordance with section 16 of the SRC Act.

7. Mr Rutter seeks review of the decision of 7 April 2015 (“the Reviewable Decision”).

8. For the reasons which follow the reviewable decision is affirmed.

   Application 2015/3641

9. On 2 April 2015, the Respondent determined that Mr Rutter had a present entitlement to payment of lump sum permanent impairment compensation and non-economic loss compensation under section 24 and 27 of the SRC Act. This was on the basis that he suffered a 10% whole person impairment (“WPI”) having regard to Table 9.17 of the Guide to the Assessment of Degree of Permanent Impairment, Edition 2.1 (“the Comcare Guide”) on account of his accepted lower back condition.

10. On 26 June 2015, the respondent affirmed the determination of 2 April 2015 (“the Reviewable Decision”). Mr Rutter seeks review of this decision.

11. For the reasons which follow the reviewable decision will be set aside and remitted with the direction that Mr Rutter is entitled to receive compensation under sections 24 and 27 of the SRC Act for permanent impairment for his lower back condition assessed at 13% WPI. In regards to non-economic loss, a score of 2 for pain, a score of 3 for recreation and leisure activities and a score of 1 for other loss is appropriate under Part 1, Division 2 of the Comcare Guide.

    APPLICATION 2015/2747

12. Subsection 16 (1) of the SRC Act provides:

    (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

13. The usual course, in regards to an acceptance or denial of costs claimed under section 16 of the SRC Act to a particular claim for treatment (whether before or after the cost is incurred), is to have regard to two criteria namely, whether the treatment was reasonable in the circumstances and whether the amount claimed is appropriate to that medical treatment.

14. The Respondent submits that the specialist medical evidence, particularly evidence from orthopaedic surgeon Dr Drummond, supports a finding that Mr Rutter’s accepted lower back condition (particularly radiculopathy) was successfully treated by virtue of surgery performed by Dr New on 8 March 2013.

15. Further, the Respondent contends that the weight of the medical evidence supports a finding that Mr Rutter does not presently require any medical treatment with respect to his accepted lower back condition. The Respondent concedes that Mr Rutter has not submitted any documentation in respect of medical treatment expenses incurred post-14 January 2015 and acknowledges that Dr New recommends medical treatment such as dietary weight loss, occasional physical therapy, hydrotherapy and Pilates as well as mild analgesia. The Respondent submits that Mr Rutter would not be precluded from submitting any future documentation reflecting treatment expenses incurred for determination under section 16 of the SRC Act. I agree for the following reasons.

16. The evidence of Mr Rutter, at hearing and in his statement dated 22 August 2016, is that prior to 14 January 2015 he was attending Pilates sessions through Spectrum which were been paid for by the Respondent. He says that he had undertaken somewhere in the range of 5 to 8 Pilates sessions and approximately one hydrotherapy session. He says he found the sessions were a benefit because they help to increase his strength and range of movement.

17. Dr Drummond in his report dated 2 September 2014, was of the opinion that Mr Rutter did not currently require treatment.

18. As already stated, Dr New says in his report dated 25 September 2015, that Mr Rutter “needs to continue with his dietary weight loss and will need occasional physical therapy, hydrotherapy and Pilates as well as minor analgesia.” I find that this evidence may be supportive of Mr Rutter having an entitlement to payment of compensation under section 16 of the SRC Act in the future, should he indeed require any occasional treatment. It does not support a finding that Mr Rutter presently needs ongoing physical therapy, hydrotherapy and Pilates.

19. Counsel for Mr Rutter contends that the primary decision purports to make the general determination about his entitlement under section 16 of the SRC Act, not responding to a particular claim, but applying to any future claims. He says that this does not comply with the requirements of the Act and purports to end any liability under section 16 of the SRC Act without even dealing with a specific claim for the cost of any treatment.

20. Although there are clear deficiencies in the primary decision as identified by Counsel for Mr Rutter, the scope of the Tribunal’s jurisdiction is the reviewable decision that is the subject of the application for review referred to in the application made to the Tribunal. Section 64 of the SRC Act provides that the decision on reconsideration is a reviewable decision that may be reviewed by the Tribunal. The Tribunal does not have an inherent jurisdiction or inherent powers that may be exercised at large; its jurisdiction is conferred by enactment; section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

21. In Lees v Comcare [1999] FCA 753; 56 ALD 84, it was held that in matters under the SRC Act, the jurisdiction of the Tribunal arises only after there has been a primary decision, and a decision on reconsideration has been made under section 62.

22. It follows that the decision to be reviewed in these proceedings is the reviewable decision of 7 April 2015. The reviewable decision stands alone and wholly replaces the primary decision. I do not accept, as contended by Counsel for Mr Rutter, that the reasons contained in the primary decision somehow infect the reviewable decision; nor do I accept that the reviewable decision affirms a nullity due to errors in the primary decision.

23. Counsel for Mr Rutter relies on Rosillo v Telstra Corporation Limited [2003] FCA 1628 at [18] to [20] in support of his contention that it was not open to the review delegate and is not open to this Tribunal to affirm a ‘nullity’. I do not agree. Rosillo is distinguishable from these proceedings as it concerned the issue of whether once the employer found that liability had ceased in respect of a condition previously accepted under s 14 of the SRC Act, the employee had no further entitlement to claim compensation under any section of the Act. The question of affirming a nullity arose because the determination on reconsideration was that there was at no time liability under section 14 of the SRC Act to pay compensation for the particular injury. This issue does not arise here. These proceedings concern the payment of medical expenses under section 16, in consequence of the determination having been made under section 14.

24. In Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at [667-668], Cooper J said:

    Where [a determining authority] is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant.  It is a determination under that section.  It operates in respect of the claim then in existence for the payment of compensation under that section.  It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act. (Emphasis added)

25. The reviewable decision plainly affirms the primary decision, insofar as, Mr Rutter has no present entitlement to payment of compensation pursuant to section 16 of the Act rising from the accepted lower back condition. Any misgivings that Mr Rutter may have about the primary decision, has in my mind been clarified in the reviewable decision. It clearly states that the determination relates to Mr Rutter’s present entitlement and I am not convinced that there is anything in the reviewable decision precluding Mr Rutter from submitting any future documentation reflecting treatment expenses incurred for determination under section 16 of the SRC Act.

26. Accordingly, the reviewable decision is affirmed.

    APPLICATION 2015/3641

27. In regards to Mr Rutter’s entitlement to payment of compensation under section 24 and 27 of the SRC Act, the Respondent accepts that the medical evidence supports a finding that Mr Rutter has suffered an ‘impairment’ that is ‘permanent’ by virtue of his accepted lower back condition. The issue for determination in this matter is the appropriate assessment of Mr Rutter’s whole person impairment.

28. It is the Respondent’s position that the medical evidence fails to establish that Mr Rutter suffers from a WPI greater than 10% so as to establish entitlement to payment of an additional lump sum permanent impairment compensation and non-economic loss compensation. The Respondent relies on the evidence of orthopaedic surgeon, Dr Drummond, who opined in his report dated 30 September 2014, that Mr Rutter’s accepted lower back condition, particularly radiculopathy, was successfully treated by surgery performed by Dr New on 8 March 2013 and that a finding of 10% WPI was appropriate.

29. Dr New, and orthopaedic and spinal surgeon, in his report dated 3 December 2013, found that Mr Rutter suffered a 15% WPI.  At hearing, Dr New advised that his last clinical review of Mr Rutter was in August 2015 and advised that he was confident that 13% WPI was appropriate having regard to Table 9.17 of the Comcare Guide. He said that the surgery he performed on Mr Rutter in 2013 was technically difficult but was completed without complication. However he said that the nerves were in poor condition and that even though the pressure was taken off the nerve as a result of the surgery, the nerve would not go back to normal and would progressively worsen. He said he could not make the nerves normal again and that they had imperfect functioning. Accordingly, Dr New said that Mr Rutter still suffered from residual symptoms down his right leg and suffered from ongoing back pain. He said the surgery had removed a significant portion of Mr Rutter’s pain but that it was never going to go away completely. Dr New said Mr Rutter was a good patient and was doing everything he could to mitigate his loss and was compliant with treatment.

30. Table 9.17 of the Comcare guide, entitled Lumbar spine – diagnosis-related estimates, provides the following criteria for an impairment of 10-13% WPI:

    Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, alteration of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location (may be verified by electrodiagnostic findings)

    or

    History of a herniated disc at the level and on the side consistent with objective clinical findings, associated with radiculopathy, or employees who have had surgery for radiculopathy but are now asymptomatic

    or

    Fractures:

    > Compression fracture of one vertebral body of 25% to 50%—healed without alteration of structural integrity

    > Posterior element fracture with displacement disrupting the spinal canal —healed without alteration of structural integrity.

31. Of particular contention between Dr New and Dr Drummond is whether Mr Rutter suffers from radiculopathy.

32. The Comcare Guide defines radiculopathy as follows:

    Radiculopathy is significant alteration in the function of a nerve root or nerve roots, and is usually caused by pressure on one or several nerve roots. The diagnosis requires a dermatomal distribution of pain, numbness, and/or paraesthesia. A root tension sign is usually positive.

33. It’s Mr Rutter’s evidence that he presently still has pain in his lower back, numbness in his leg and has tingling while sitting for too long. In his statement dated 22 August 2016, Mr Rutter says that he experiences symptoms, such as pins and needles, in his right leg probably 3 to 4 days per week and that the symptoms can last for up to a few hours.

34. Dr Drummond in his report dated 2 September 2014, said that Mr Rutter “had clinically significant radiculopathy and had the surgery and the radiculopathy is now asymptomatic.” He found that radiculopathy was no longer present at the assessment on 2 September 2014. As part of his impairment assessment, Dr Drummond found:

    There is no loss or asymmetry of reflexes. There is no muscle weakness. There is no reproducible impairment of sensation in nerve root distribution. Negative nerve root tension signs, no muscle wasting.

    MRI imaging equivocal.

35. At hearing Dr Drummond said that given Mr Rutter’s history of a herniated disc and loss of radiculopathy after surgery, 10% WPI was appropriate having regard to the criteria set out in Table 9.17. He said that objective clinical signs were determinative and that no weight should be given to subjective signs such as pain or self-reporting.

36. Dr New is of the opinion that Mr Rutter has radiculopathy. He said at hearing that the basis for this opinion can be found in his numerous medical reports. Specifically, in his report dated 25 September 2015, Dr New states that Mr Rutter has “ongoing leg pain and although he has stated that a lot of his pain has settled down he still has some residual dysaesthesia [sensory loss] and dermatomal pain.” He said all of which are symptoms of radiculopathy. In regards to no loss of reflexes, as identified by Dr Drummond, Dr New says that although loss of reflex is a feature of radiculopathy, it is not a determinative factor. In any event, he advised at hearing that although it wasn’t mentioned in his report, Mr Rutter’s ankle reflex was absent.

37. I prefer the evidence of Dr New over that of Dr Drummond. Dr New is Mr Rutter’s specialist who performed the surgery in 2013 and has treated Mr Rutter regularly. I am satisfied that he knows Mr Rutter’s history and condition intimately. Although Dr Drummond is a very experienced orthopaedic surgeon, spinal surgery is not his main area of practice and he has only examined Mr Rutter on one occasion namely on 2 September 2014.

38. Based on the evidence of Dr New, I am satisfied that Mr Rutter has significant signs of radiculopathy. Having regard to the requirements of Table 9.17 of the Comcare Guide and Mr Rutter’s accepted history of herniated disc, I find that he has an impairment which is permanent and which is 13% WPI and is entitled to payment of additional lump sum impairment compensation and non-economic loss compensation under sections 24 and 27 of the SRC Act.

    Non-economic Loss Compensation

39. With respect to Mr Rutter’s entitlement to non-economic loss compensation in accordance with section 27 of the SRC Act I am asked to consider the appropriate non-economic loss scores. The degree of non-economic loss is to be assessed in accordance with Part 1, Division 2 of the Comcare Guide. The only issues in contention are the scores related to pain, recreation and leisure and other loss. The scores of 2 for suffering, 2 for mobility, 2 for social relationships and a score of 0 for life expectancy are not in dispute.

40. In regards to pain, it is Dr New’s evidence that Mr Rutter has intermittent ongoing lower back pain. Dr Drummond in his report dated 2 September 2014 reported that Mr Rutter’s current symptoms included lumbar pain and back stiffness. Dr Tang, in his report dated 29 May 2014 within the Compensation Claim Form for Permanent Impairment and Non-Economic Loss, said that Mr Rutter “suffers constant pain however he has learned to cope with the pains and discomfort and usually takes Panadol 2 tablets orally pro re nata or Panadeine 2 tablets orally as needed to assuage his pains and discomfort.”

41. Mr Rutter, in his statement dated 22 August 2016, describes the pain in his back as a constant ache across his lower back which is “stronger in winter.” At hearing he said that at its worst, the pain was 7-8 out of 10 and at its best, the pain was a 4 out of 10. Mr Rutter details in his statement, that on average he uses 4 to 5 tablets per week of analgesia and in general terms, he would “use these painkillers one or two days per week.” He says he would often use a painkiller during colder weather to help reduce his symptoms and allow him to sleep better because his back would tend to stiffen and cramp.  

42. Having regard to the medical evidence on the evidence of Mr Rutter, I am satisfied that the best description of Mr Rutter’s pain is that he suffers “intermittent attacks of pain. Not easily tolerated, but short lived. The pain responds fairly readily to treatment such as analgesics and anti-inflammatory medications” warranting a score of 2 for pain under Table B1 of the Comcare Guide.

43. In regards to recreation and leisure activities, Mr Rutter says in his written statement that he is a lot less social than he used to be. He says that he used to go to dinner, parties and have drinks, although rarely. He says that for a while he was quite withdrawn socially and that he still was to some extent and that the only activities he does now are family activities. At hearing Mr Rutter said that his back pain has stopped him meeting his friends because he could no longer play football and cricket. An activity his friends like to do. He says that he hasn’t caught up with his friends in a long time. At hearing Mr Rutter gave evidence that he very rarely went to the cinema with his wife to watch a movie because of his pain and discomfort. He says he instead watches movies at home so he can get up and move around if his back is causing him discomfort. In his statement he says that he used to enjoy going to Penrith Panthers rugby league games with his friend to have a few drinks and cheer on his local team but found that sitting for extended periods of time and being in the cold air increased his symptoms. Mr Rutter said at hearing that he now watches football at home on the television in case he has to get up and move around due to his back discomfort.

1. In Dr Tang’s report of 29 May 2014, it is reported that Mr Rutter used to “frequent the local gym six days a week and as a result of his injuries he has not attended the gym at all. He’s only able to have sex with his wife monthly, if possible, compared with five times weekly prior to the surgery” and that he used to watch movies with his wife fortnightly, however he is not able to go to the cinema since his injury.

2. Having regard to the medical evidence on the evidence of Mr Rutter, I am satisfied that the best description of the effect of Mr Rutter’s condition on his usual participation in recreational and leisure activities is that he is “unable to continue with pre-injury level of activity. Alternative, less rewarding activity possible” warranting a score of 3 under Table B3.3 of the Comcare Guide.

3. Finally, in regards to other loss, I find Mr Rutter has a moderate disadvantage as a result of the detrimental effects he suffers from climatic features such as temperature. This moderate disadvantage warrants a score of 1 under Table B4 of the Comcare Guide.

   DECISION

4. For the above reasons, the decision under review in application 2015/2747, is affirmed.

5. In application 2015/3641, the reviewable decision is set aside with the direction that the applicant is entitled to receive compensation under sections 24 and 27 of the SRC Act for permanent impairment for his lower back condition assessed at 13% WPI.

6. In regards to non-economic loss, a score of 2 for pain, a score of 3 for recreation and leisure activities and a score of 1 for other loss is appropriate under Part 1, Division 2 of the Comcare Guide.

7. The matter is remitted for determination of Mr Rutter’s amount of lump-sum permanent impairment and non-economic loss compensation.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of

.......................[sgd].................................................

Associate

Dated  25 November 2016

Date(s) of hearing	12 and 13 September 2016
Counsel for the Applicant	Mr L Grey
Solicitors for the Applicant	Carroll & O'Dea Lawyers
Counsel for the Respondent	Mr A Harding
Solicitors for the Respondent	Moray & Agnew Lawyers