Wragg and Cleanaway Operations Pty Ltd (Compensation) - [2019] AATA 43

Wragg and Cleanaway Operations Pty Ltd (Compensation) [2019] AATA 43 (23 January 2019)
Division:GENERAL DIVISION
File Number(s): 2017/3155
2017/3156

Re:Travis Wragg
APPLICANT

AndCleanaway Operations Pty Ltd
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:23 January 2019
Place:Sydney

In application 2017/3156, the decision under review is set aside and in substitution for that decision, it is decided that the Respondent is liable under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the cost of the surgery as recommended by Dr Gupta;

In application 2017/3155, the decision under review is affirmed; and
3.Failing agreement between the parties, the parties have seven days in which to file short written submissions on the question of costs.

.......................[sgd].............................................
Senior Member A Poljak
CATCHWORDS
COMPENSATION – workers compensation – elbow injury – section 16 – claim for medical treatment – surgery – whether reasonable in the circumstances – prospect surgery will increase applicant’s range of motion and reduce pain – decision under review set aside and substituted – section 19 – incapacity for work – whether applicant fit to perform pre-injury duties – no corroborative evidence of incapacity – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
CASES
Sambastian and Australian Postal Corporation (Compensation) [2017] AATA 448
REASONS FOR DECISION
Senior Member A Poljak
23 January 2019

Mr Travis Wragg, the applicant, is employed by Cleanaway Operations Pty Ltd (“Cleanaway”) as a garbage truck driver. He has been employed by Cleanaway since 3 December 2007. On 10 August 2015, the applicant lodged a worker’s compensation claim in respect of “broken arm – left arm” claimed to have been sustained on 5 August 2015 as a result of “drinking drink and not watching where I was walking and fell down stairs onto both hands (sic)”. The applicant’s claim was accepted and Cleanaway was found to be liable to pay compensation to the applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of “fracture left radial head” sustained on 5 August 2015 (“the compensable injury”).
In these proceedings, the applicant seeks review of two reviewable decisions in respect of the compensable injury. They are as follows:
Application 2017/3155
By determination dated 22 March 2017, it was determined that the applicant had an ability to earn his full income and suitable employment at Cleanaway such that he had no entitlement to compensation for incapacity as at 22 March 2017 in respect of the compensable injury under section 19 of the SRC Act. By reviewable decision dated 10 May 2017, the determination dated 22 March 2017 was affirmed.
Application 2017/3156
By determination dated 3 August 2016, it was determined that under section 16 of the SRC Act Cleanaway was not liable to pay for proposed further surgery in respect of the compensable injury. By reviewable decision dated 12 September 2016, the determination dated…

Details

AGLC: Wragg and Cleanaway Operations Pty Ltd (Compensation) [2019] AATA 43
Case: [2019] AATA 43
Decision Date: 23 January 2019

CaseChat Overview and Summary

This matter concerned an application by Travis Wragg against Cleanaway Operations Pty Ltd regarding workers' compensation. The dispute centred on two key issues: the reasonableness of proposed surgery for an elbow injury under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and the applicant's alleged incapacity for work under section 19 of the same Act. The decision was made by A Poljak SM.

The court was required to determine whether the surgery recommended by Dr Gupta for the applicant's elbow injury was reasonable in the circumstances, considering conflicting medical opinions. Additionally, the court had to assess whether the applicant was unfit to perform his pre-injury duties, a determination influenced by various medical reports and the applicant's own evidence regarding his capacity and pain levels.

In relation to the proposed surgery, the court preferred the evidence of Dr Gupta, the applicant's treating orthopaedic surgeon, who specialised in upper-limb surgery and had been involved in the applicant's care since shortly after the injury. Dr Gupta's opinion that the surgery had reasonable prospects of improving the applicant's range of motion and reducing pain was supported by other orthopaedic surgeons, Dr Smith and Dr New. The court found the opinions of these specialists more persuasive than those of Dr Wallace, Dr Maxwell, and Dr Harvey, particularly noting that Dr Wallace was no longer a practicing orthopaedic surgeon and had not performed surgery for five years, with his sub-specialty being knee surgery. The court also noted that Dr Maxwell and Dr Harvey had not examined the applicant for a considerable period prior to the hearing. Regarding the applicant's capacity for work, the court found the evidence substantiating his claim of incapacity to be lacking. It preferred the medical evidence indicating the applicant was fit for his pre-injury duties, albeit with restrictions on lifting and pushing/pulling, and that he had in fact undertaken these duties during the relevant period.

Consequently, the court set aside the decision under review in application 2017/3156 and substituted a decision that Cleanaway Operations Pty Ltd was liable under section 16 for the cost of the surgery recommended by Dr Gupta. In application 2017/3155, the decision under review was affirmed. The parties were given seven days to file submissions on costs if no agreement was reached.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In cross-examination, Dr Gupta was again questioned about the need for nerve conduction studies before proceeding to surgery. He generally agreed with the proposition however reiterated that in the course of the main surgery proposed, which would be open debridement of the elbow joint, decompression of the ulnar nerve was part of that surgery anyway. He agreed that it would be better to prove, with some sort of objective evidence such as nerve conduction testing, that the applicant was suffering from ulnar nerve compression neuropathy, however he stated that in the context, “this surgery would by its nature decompress the ulnar nerve. So really, doing an objective test to prove it doesn’t change the nature of the main surgery anyway”. Relevant Evidence as to Incapacity Dr Maxwell opined in his report dated 27 October 2016, that the applicant was “fully capable of driving a side lift truck”. He stated that there was no need for the applicant to undertake suitable duties or to restrict the weight he lifted with his left arm. He advised that the applicant was “quite capable of immediately returning to his full-time duties”. As at 8 March 2017, the applicant was certified by his general practitioner, Dr Borland, fit for suitable duties eight to nine hours per day, five days per week. In regards to capacity, he advised the applicant had a lifting capacity of 5kgs for his left arm, pushing/pulling ability was minimal and his driving ability was “as tolerated”. Dr Borland also commented, “Drive truck for 1 load per day, occasional 2nd load”. Dr Borland provided the same certification again on 7 April 2017 for the period up to 7 May 2017. Dr Muratore advised in his report dated 24 April 2017, that the applicant’s pre-injury duties were “eminently suitable” and that he “could perform them in an unrestricted fashion”. At hearing, Dr Muratore elaborated on the basis for arriving at this conclusion. He said the basis was that the applicant was actually doing those duties for some time and had “actually been able to do those duties for 60 hours a week before I saw him, so I figured that they must be suitable, and he’s able to do it, even though he tells me he has pain”. However in cross examination, Dr Muratore accepted that if the applicant was experiencing an increase in pain, an increase in the symptoms of the numbness and the requirement to increase his pain medication then the continuation of the applicant’s duties needed to be reviewed, as the employer did. He agreed that in that instance, things needed to be changed. On 1 May 2017, the applicant sent an email to Julian Hodder, head of rehabilitation and worker’s compensation at Cleanaway, stating “my arm is killing me I don’t know how much longer I can keep this up for thanks Travis”. In response, the applicant was advised to consult with a medical practitioner in relation to the increased pain. The clinical notes of Dr Borland during the relevant period are scant. The notes show that the applicant attended on Dr Borland on three occasions during the period. Firstly on 7 April 2017. The clinical notes record “no change. Discussion. Cont same restrictions”. Secondly on 19 April 2017, when Dr Borland records “pain L elbow. Unfit for work. Been doing extra loads. Advised”. Significantly on 20 September 2017, Dr Borland records “has been coping with normal duties, but L arm is now too painful to continue” (emphasis added). On 22 September 2017, Dr Borland certified that the applicant was unfit for two days from 20 September 2017.

Decision

Reasons for decision

Given the paucity of evidence substantiating the applicant’s evidence, I prefer that of the available medical evidence, which demonstrates that the applicant was fit for pre-injury duties (with restrictions on lifting and pulling/pushing) and that he did undertake his pre-injury duties during the relevant period. Decision In application 2017/3156, the decision under review is set aside and in substitution for that decision, it is decided that the Respondent is liable under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the cost of the surgery as recommended by Dr Gupta; In application 2017/3155, the decision under review is affirmed; and Failing agreement between the parties, the parties have seven days in which to file short written submissions on the question of costs.

Ratio Decidendi

Legal Principle Established

At hearing the applicant gave evidence that during the relevant period he worked in his pre-injury role. Consistent with Dr Borland’s certification, the applicant was under a weight restriction of 5kgs and had restrictions on pushing and pulling. He said that he was “doing eight hours of truck driving a day” and 54 hours a week however, said that some weeks he worked less if he took days off. The applicant stated that he experienced an increase in pain in his left arm and would take sick days or use annual leave when it got too sore. He also advised that during the period, he experienced an increase in numbness and he increased his use of pain medication.ConsiderationMedical Treatment There is no dispute between the parties that the proposed surgery is medical treatment required in relation to the applicant’s accepted injury. The question for determination in these proceedings is whether the surgery as recommended by Dr Gupta, is reasonable in the circumstances. The medical evidence is divided on this question. Dr Gupta’s recommendation for surgery is supported by Dr Smith and Dr New. Dr Gupta is confident that the surgery has reasonable prospects of increasing the applicant’s range of motion and reducing the applicant’s pain whereas Dr Wallace, Dr Maxwell and Dr Harvey are of the view that the surgery is not recommended and it is unlikely to produce a better outcome for the applicant. I prefer the evidence of Dr Gupta, Dr Smith and Dr New. My reasons for this are as follows. Dr Gupta is the applicant’s treating orthopaedic surgeon and specialises in upper-limb surgery. He is an eminent doctor in his field. At hearing Dr Gupta confirmed that his practice was almost exclusively upper limb surgery, with a mix of roughly 75% shoulder and elbow surgery and roughly, 25% wrist and hand surgery. He advised that he currently spends two to three days a week operating and undertakes approximately seven or eight shoulder cases and two or three elbow cases a week. Most significantly, Dr Gupta has been involved in the applicant’s care and treatment since two days post injury to the present. He has advised on treatment and performed the arthroscopic release of scar tissue on the applicant in March 2016. He has examined the applicant on multiple occasions, most recently in early 2018. Dr Gupta is well placed and eminently qualified to hold an opinion about the status of the applicant’s current condition, future treatment and prognosis. Dr Gupta’s opinions are supported by both Dr Smith, a practicing orthopaedic surgeon who specialises in hand and upper limb surgery, and Dr New, a practicing orthopaedic surgeon. I note that Dr New has had the more recent consultation with the applicant. He examined the applicant on a number of occasions; but most recently on 26 April 2018. In comparison, Dr Wallace advised at hearing that he was no longer a practicing orthopaedic surgeon and that he had not performed surgery for the past five years. He advised that when he was performing surgery, his particular sub-specialty was knee surgery. Dr Wallace examined the applicant on four occasions; on 17 November 2015, 2 February 2016; 14 April 2016; and 7 July 2016. The last examination was only four months post-surgery and well over two years prior to the date of hearing in these proceedings. At hearing, Dr Wallace advised that he could not provide an informed opinion as to whether the proposed treatment was reasonable medical treatment because it had been over two years since he last examined the applicant. Likewise, Dr Harvey, a retired orthopaedic surgeon who specialised in hand and upper-limb surgery, examined the applicant on one occasion on 24 October 2017 for the purposes of providing a report in these proceedings. Dr Maxwell, a consultant orthopaedic surgeon, last examined the applicant on 27 October 2016. At hearing he accepted that had he had the opportunity to examine the applicant in 2018, he would be able to express a more informed opinion.