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
In respect of matter 2015/2747 the decision of Linfox Australia Pty Ltd made on 7 April 2015 is affirmed.
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.
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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
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
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.
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.
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.
Mr Rutter seeks review of the decision of 7 April 2015 (“the Reviewable Decision”).
For the reasons which follow the reviewable decision is affirmed.
Application 2015/3641
On 2 April 2015,…
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- Case
- [2016] AATA 938
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Mr Rutter was entitled to compensation for medical treatment expenses under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), considering the reasonableness of the treatment and the appropriateness of the claimed amount. Additionally, the court needed to assess whether Mr Rutter's injury resulted in a permanent impairment and, if so, to what extent, including the appropriate whole person impairment (WPI) rating and scores for non-economic loss.
The court reasoned that while the Respondent conceded Mr Rutter had not submitted documentation for medical expenses incurred after 14 January 2015, and acknowledged a recommendation for ongoing occasional treatment such as physical therapy, hydrotherapy, and Pilates, this did not support a finding that Mr Rutter presently required ongoing treatment. The court found that the specialist medical evidence, particularly from Dr New, suggested that Mr Rutter would need occasional treatment in the future, which would be subject to determination under section 16 of the SRC Act. Consequently, the reviewable decision was set aside and remitted with a direction that Mr Rutter was entitled to compensation under sections 24 and 27 of the SRC Act for permanent impairment of his lower back condition, assessed at 13% WPI. For non-economic loss, the court determined that scores of 2 for pain, 3 for recreation and leisure activities, and 1 for other loss were appropriate under the Comcare Guide.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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