Short and Linfox Transport Pty Ltd (Compensation) - [2019] AATA 613

Short and Linfox Transport Pty Ltd (Compensation) [2019] AATA 613 (2 April 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )   No: 2016/4343
GENERAL DIVISION  )         2016/6017
  2017/0344
  2017/5781
Re: John Short
Applicant

And: Linfox Australia Pty Ltd
Respondent
DIRECTION
TRIBUNAL:  Deputy President J W Constance
DATE OF CORRIGENDUM:            18 April 2019
PLACE:            Sydney

IT IS DIRECTED, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application be altered as follows:
1)the name of the Respondent on page 1 be changed from “Linfox Transport Pty Ltd” to “Linfox Australia Pty Ltd”;
2)the reference to “Linfox Transport Pty Ltd” in paragraph 1 of the decision in application 2017/0344 be changed to “Linfox Australia Pty Ltd”;
3)the reference to “Linfox Transport Pty Ltd” in paragraph 2 of the decision in application 2017/0344 be changed to “Linfox Australia Pty Ltd”;
4)the reference to “Linfox Transport Pty Ltd” in paragraph 1 of the decision in application 2016/4343 be changed to “Linfox Australia Pty Ltd”;
5)the reference to “Linfox Transport Pty Ltd” in paragraph 2 of the decision in application 2016/4343 be changed to “Linfox Australia Pty Ltd”;
6)the reference to “Linfox Transport Pty Ltd” in paragraph 1 of the decision in application 2016/6017 be changed to “Linfox Australia Pty Ltd”;
7)the reference to “Linfox Transport Pty Ltd” in paragraph 2 of the decision in application 2016/6017 be changed to “Linfox Australia Pty Ltd”;
8)the reference to “Linfox Transport Pty Ltd” in paragraph 1 of the decision in application 2017/5781 be changed to “Linfox Australia Pty Ltd”;
9)the reference to “Linfox Transport Pty Ltd” in paragraph 2 of the decision in application 2017/5781 be changed to “Linfox Australia Pty Ltd”;
10)the reference to “Linfox Transport Pty Ltd” in the decision as to costs in applications 2016/4343, 2017/0344, 2016/6017 and 2017/5781 be changed to “Linfox Australia Pty Ltd”;
11)the reference to “Linfox Transport Pty Ltd” in paragraph 102 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
12)the reference to “Linfox Transport Pty Ltd” in paragraph 103 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
13)the reference to “Linfox Transport Pty Ltd” in paragraph 104 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
14)the reference to “Linfox Transport Pty Ltd” in paragraph 105 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
15)the reference to “Linfox Transport Pty Ltd” in paragraph 106 of the reasons for decision be changed to “Linfox Australia Pty Ltd”;
16)the reference to “Linfox Transport Pty Ltd” in paragraph 107 of the reasons for…

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.

Keep reading for free

Create a free CaseChat account to read Short and Linfox Transport Pty Ltd (Compensation) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] AATA 613
Decision Date: 2 April 2019

CaseChat Overview and Summary

This matter concerned appeals by Mr Short against decisions made by Linfox Transport Pty Ltd regarding workers' compensation claims. The dispute centred on whether Mr Short had suffered an "injury" arising out of, or in the course of, his employment, and whether that injury resulted in permanent impairment. The proceedings were heard by Deputy J W Constance P.

The court was required to determine whether a C6/7 right posterior lateral disc protrusion constituted an "injury" for the purposes of the relevant Act. Further, it needed to ascertain whether any such injury, or an aggravation of a pre-existing condition, arose out of, or in the course of, Mr Short's employment with Linfox. Finally, the court had to consider whether the identified injury resulted in a permanent impairment.

The Deputy President's reasoning was informed by the medical evidence presented, particularly reports from Dr Sherif, a radiologist, and Professor Owler, a neurosurgeon. Dr Sherif's reports indicated a significant increase in the size of the disc protrusion between 2013 and 2016, suggesting a traumatic event rather than solely degenerative changes. Professor Owler diagnosed a severe right C7 radiculopathy due to a large right C6/7 disc protrusion, which he considered a work-related injury, likely caused by Mr Short's activities in March 2016. The Deputy President accepted that the diagnosis of a muscle strain was incorrect and that Mr Short had suffered a C6/7 right posterior lateral disc protrusion.

Consequently, the Deputy President set aside Linfox Transport Pty Ltd's previous decisions. It was determined that Linfox was liable to pay compensation to Mr Short in respect of a C6/7 right posterior lateral disc protrusion that occurred on 15 March 2013, an aggravation of this condition on 5 July 2013, and an increased protrusion on 15 March 2016. The permanent impairment claim was remitted to Linfox for reconsideration, with a direction that Mr Short had suffered an injury resulting in permanent impairment. Linfox Transport Pty Ltd was ordered to pay Mr Short's costs unless an application for directions regarding costs was made within 14 days.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Alternatively, it is argued that, based on the evidence of Professor McGill, I should find that Mr Short’s employment by Linfox caused aggravations of his pre-existing degenerative condition in 2013 and 2016. Further, I should be satisfied that the 2013 aggravation ceased to have effect within three months, and the 2016 aggravation ceased to have effect within six months, after the surgery performed by Professor Owler in August 2016.F. EVIDENCE OF HEALTH PROFESSIONALS Dr Sherif, Radiologist Dr Sherif reported on the MRI scans taken of Mr Short’s cervical spine on 1 April 2016 and 30 July 2013. The reports were prepared, at the request of Professor Steadman, on 5 September 2017[15] and 24 October 2017[16]. Dr Sherif reviewed the report and original films in each case.[15] Exhibit A2.[16] Exhibit A3. On 5 September 2017, Dr Sherif reported that the disc protrusion in 2013 measured 8x5x13mm and the protrusion in 2016 measured 23x15x6mm. He expressed the opinion that:This compressive disc is more likely to have occurred from a sudden jolt/twisting injury accompanied by acute pain and neurology usually peaking 6 hours post event. Given there was a smaller disc protrusion 3 years earlier, albeit much smaller, the previous discopathy is likely to have functionally healed, although healing never regains the original strength of the annular fibres, thus this would have been the “weak” point for re-injury. In his report of 24 October 2017, Dr Sherif recorded one of the questions to which he was to respond:Are any identified differences in imaging consistent with the progression of degenerative disease of the cervical spine or more likely indicative of the occurrence of a specific event and/or trauma to the survival spine? Please provide reasons for your answer.Dr Sherif responded:There is minor endplate osteophyte lipping at C6/C7 indicative of early evidence of degeneration, which is far from being compressive at this stage. Disc protrusion is usually multifactorial, however in a young person, degenerative changes are less contributory and traumatic events are the usual main contributing factor. Professor Owler, Neurosurgeon Mr Short was referred to Professor Owler by his general practitioner, Dr Kumar. Professor Owler provided reports dated 9 August 2016[17] and 22 August 2016[18]. He also gave evidence at the hearing.[17] Exhibit A10.[18] Exhibit A11. On 9 August 2016, Professor Owler reported, in part, as follows:In 2013 he did suffer an injury where he developed pain over the right side of his neck and shoulder. He was treated with conservative management. It was treated as a compensable work related injury. He went through a process with a group called Body Active and was being reviewed by a physiotherapist on site at work. This also involved strapping of his shoulder at that time. The diagnosis that was made at that time was a trapezius strain.There is an MRI scan of the cervical spine from the 30th July [2013] … which does demonstrate a focal C5/6 disc and a more significant C6/7 right posterolateral disc protrusion. There is narrowing of the neural exit foramen which would affect the C7 nerve and this was likely the cause of his problem at that stage.Since that time his problem has never completely resolved. He has continued to work on full duties. Unfortunately in March 2016 was doing a delivery and pulled some kegs across the truck. He felt a pop in his neck with some intense pain in his neck and shooting pain down his arms with paraesthesia. He was then placed on light duties. This coincided with some time off work and subsequently he was stood down. He was again diagnosed as having a trapezius strain but clearly what he has is a severe right C7 radiculopathy.…His pain has improved although he still had quite significant pain up until about three weeks ago when he started on Lyrica. He is currently taking 150mgs hd.On examination there is loss of muscle bulk of the right shoulder and particularly the triceps muscle…I reviewed his current MRI scan which shows the previous small C5/6 disc but now a very large right C6/7 protrusion. It is markedly increased compared to the scan of 2013.It is very clear that this gentleman does not have a muscle strain and in fact I doubt he had a muscle strain in 2013. His diagnosis is that of a severe right C7 radiculopathy due to a large right C6/7 disc protrusion. This is clearly a work related injury. An acute disc recurrence with a large extrusion was almost certainly caused by his activities at work in March 2016.…I have discussed with him the options for treatment including conservative management, cortisone injections and surgery. I think his best chance is with a C6/7 anterior cervical discectomy and fusion…

Decision

Reasons for decision

I note that the claim for compensation referred to the injury as a muscle strain suffered on 15 March 2016. On the basis of the evidence to which I have referred, I am satisfied that this injury was properly diagnosed as a C6/7 right posterior lateral disc protrusion.H. CONCLUSIONApplication 2017/0344 (injury 15 March 2013) The decision under review, being the decision made by Linfox Transport Pty Ltd on 12 January 2017, will be set aside. In substitution it will be decided that Linfox Transport Pty Ltd is liable to pay compensation to Mr Short in accordance with these reasons in respect of an injury, being a C6/7 right posterior lateral disc protrusion, which occurred on 15 March 2013.Application 2016/4343 (injury week ending 5 July 2013) The decision under review, being the decision made by Linfox Transport Pty Ltd on 12 January 2017, will be set aside. In substitution it will be decided that Linfox Transport Pty Ltd is liable to pay compensation to Mr Short in accordance with these reasons in respect of an injury, being an aggravation of a C6/7 right posterior lateral disc protrusion, which aggravation occurred on 5 July 2013.Application 2016/6017 (injury 15 March 2016) The decision under review, being the decision made by Linfox Transport Pty Ltd on 23 June 2016, will be set aside. In substitution it will be decided that Linfox Transport Pty Ltd is liable to pay compensation to Mr Short in accordance with these reasons in respect of an injury being an increased C6/7 right posterior lateral disc protrusion, which occurred on 15 March 2016.Application 2017/5781 (permanent impairment claim) The decision under review, being the decision made by Linfox Transport Pty Ltd on 18 September 2017, will be set aside. The matter will be remitted to Linfox Transport Pty Ltd for reconsideration in accordance with these reasons, with the direction that Mr Short has suffered an injury, namely a C6/7 right posterior lateral disc protrusion, which has resulted in a permanent impairment.Applications 2016/4343, 2016/6017, 2017/0344 and 2017/5781 Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, Linfox Transport Pty Ltd shall pay the costs incurred by Mr Short in these proceedings.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.