Sula and K&S Freighters Pty Ltd (Compensation) - [2021] AATA 3058

Sula and K&S Freighters Pty Ltd (Compensation) [2021] AATA 3058 (27 August 2021)
Division:GENERAL DIVISION
File Number: 2020/1495
Re:Nevzat Sula
APPLICANT

AndK&S Freighters Pty Ltd
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:27 August 2021
Place:Melbourne

The Tribunal decides to set aside the decision under review dated 18 February 2020, and remits the matter for reconsideration in accordance with the directions that:

the Respondent is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of the Applicant’s left common extensor injury suffered on 7 November 2019;
2.the Respondent make a determination in relation to any benefits arising under ss 16 and 19 of the Act; and
3.the Respondent is liable for the Applicant’s costs pursuant to s 67 of the Act.

...[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – decision not to accept liability for left elbow condition – nature of condition – nature of incident – credibility of Applicant – condition is an aggravation of a disease and so an injury – whether claim excluded for wilful and false representation – decision set aside and remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Griffiths v Australian Postal Corporation [2018] FCA 520
National Australia Bank v Georgoulas [2013] FCA 1412
Neat Holdings Pty Ltd v Karajan Holdings Pty Limited [1992] HCA 66
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
27 August 2021
BACKGROUND

Mr Sula applied on 10 March 2020 for review of a decision of the Respondent dated 18 February 2020 which affirmed an earlier determination denying liability for a left elbow condition.
At the time of the incident said to cause his condition, Mr Sula was on a return to work program following an earlier shoulder injury during his employment as a truck driver. At the end of a day shift on 7 November 2019, Mr Sula claims to have suffered pain in his elbow when attempting to uncouple a trailer from its prime mover. He since returned to work on other duties, but only briefly, and is currently not working. Mr Sula is left-hand dominant.
Mr Sula lodged a Statement of Facts, Issues and Contentions (SFIC). The following further material was admitted:
(a)Statement of the Applicant, dated 14 May 2021 (Exhibit A1);
(b)Report of Dr Ash Chehata, orthopaedic surgeon, dated 17 September 2020 (Exhibit A2);
(c)Bundle of reports of Dr Peter Braun, sports and exercise medicine physician, dated 17 July 2020, 3 March 2021, and 1 May 2021 (Exhibit A3); and
(d)Report of Dr Vu Dang, general practitioner, dated 14 September 2020 (Exhibit A4).
The Respondent lodged T documents, supplementary T Documents and a SFIC. The following further material was admitted:
(a)Practice records of Dr Dang (Exhibit R1);
(b)Photographs of prime mover (Exhibit R2);
(c)Video of prime mover (Exhibit R3);
(d)Report of Prof Peter Steadman, orthopaedic surgeon, dated 1 June 2021 (Exhibit…

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 Sula and K&S Freighters 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: [2021] AATA 3058
Decision Date: 27 August 2021

CaseChat Overview and Summary

This matter concerned an application for compensation by Mr Sula against K&S Freighters Pty Ltd. The dispute centred on the respondent's decision not to accept liability for a left elbow condition allegedly suffered by Mr Sula. The decision was made by Dr Stewart Fenwick, Senior Member.

The legal issues before the court were whether Mr Sula's left elbow condition constituted an injury for the purposes of the relevant Act, and whether his claim was excluded due to wilful and false representation. Specifically, the court had to determine the nature of Mr Sula's condition and the incident, and assess the credibility of the applicant in light of conflicting medical evidence.

The Senior Member found that while there were apparently contradictory elements in the medical records, including non-specific early findings and difficulties in physical examination, the weight of expert evidence demonstrated that Mr Sula had an underlying age-related left elbow condition that became symptomatic as a result of the incident. The court concluded that this constituted an aggravation of an underlying disease, which is an injury under the Act. The Senior Member noted that the evidence of orthopaedic specialists Dr Chehata and Dr Steadman was particularly important, and that while there was no finding of a traumatic tear, radiology supported the conclusion that Mr Sula developed left lateral epicondylitis. The court also considered that Mr Sula's presentation involved more than just physical aspects, a factor acknowledged by the medical experts.

The Senior Member set aside the respondent's decision not to accept liability and remitted the matter for reconsideration.

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

Full text does not contain this section.

Decision

Reasons for decision

Dr Braun stated that he also observed jerky movements, similar to those found by Dr Steadman. In his opinion, a sense of apprehension was expressed in disordered movement. Summary and conclusion It was submitted on Mr Sula’s behalf that not a great deal turns on the distinction between medial or lateral pain, given Dr Chehata’s evidence as to the effect of a gripping action. Moreover, Dr Steadman did not rule out the possibility that an underlying condition could have been rendered symptomatic, and had also faced difficulties in his physical examination. On the Respondent’s behalf, it was submitted that Dr Braun initially did not record left lateral pain, and that Dr Chehata did not examine Mr Sula until some ten months after the incident. The latter time difference meant that it was difficult to attribute lateral pain to the specific incident. Submissions stressed that Dr Steadman had not been able to correlate his observations with the complained of injury. Given Dr Steadman’s inability to identify an organic basis for the complaint, there could be no injury. I consider that the medical record clearly contains apparently contradictory elements. Critically, in the case of Dr Braun, his early findings were non-specific, if not benign, and Dr Steadman was unable to make a relevant diagnosis. Other clinical observations contemporary to the incident appear on their face to identify a different site of injury, being of the medial aspect of the upper arm. Indeed, this site is noted in a medical report that predates the incident. Radiology, however, was relied upon specifically by at least two of the specialist medical witnesses (Dr Chehata and Dr Braun) to support their conclusions that Mr Sula indeed developed left lateral epicondylitis. Their evidence as to correlation between history, observations and radiology was largely unequivocal. Both witnesses openly acknowledged that Mr Sula’s presentation involved more than physical aspects. This concern about a possible non-organic element plays a role in Dr Steadman’s diagnosis. He also had a somewhat different insight into the radiology, but appears to have conceded that there was an indication of underlying pathology, that could have been made symptomatic under certain conditions. I note that I exclude from consideration the later ultrasound (T36) which was considered by the witnesses to be an anomaly. I consider the evidence at the hearing of both orthopaedic specialists (Dr Chehata and Dr Steadman) to be particularly important. Leaving aside the details of the mechanism, which I will address in more detail shortly, my understanding of the oral evidence is that there was no finding of a traumatic tear in the left common extensor origin. However, the weight of the expert evidence demonstrates to my satisfaction that Mr Sula had an underlying age-related left common extensor condition which has become symptomatic as a result of the incident. Accordingly, in terms of the Act, I find that Mr Sula experienced the aggravation of an underlying disease, being an ailment in the form of chronic left elbow tendonitis. I will address the factors identified in s 5B(2) of the Act in the following section.INCIDENT

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.