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

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.
......................[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
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,…

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: [2016] AATA 938
Decision Date: 25 November 2016

CaseChat Overview and Summary

Mr Rutter sought review of a decision by Linfox Australia Pty Ltd (the Respondent) that affirmed a previous determination regarding his claim for workers' compensation. The dispute concerned Mr Rutter's entitlement to compensation for medical treatment expenses and incapacity benefits arising from a lower back injury. The matter was heard by A Poljak SM.

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 26 June 2015, the respondent affirmed the determination of 2 April 2015 (“the Reviewable Decision”). Mr Rutter seeks review of this decision. 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 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. 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. 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. 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. 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. Dr Drummond in his report dated 2 September 2014, was of the opinion that Mr Rutter did not currently require treatment. 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL DIVISION
File Number(s)	2015/2747 2015/3641
Re	Anthony Rutter
APPLICANT
And	Linfox Australia Pty Ltd
RESPONDENT

Tribunal	Senior Member A Poljak
Date	25 November 2016
Place	Sydney