Compo win against Australia Post- NWE, loss of overtime, impairment and physiotherapy treatment

Angela Sdrinis Legal recently successfully ran a case against Australia Post with the worker winning all 6 Applications before the Tribunal. (http://www.austlii.edu.au/au/cases/cth/AATA/2015/461.html).

Whilst this decision was based on the facts of the case, there are some interesting aspects:

Impairment Claims

The Tribunal found that the Applicant was entitled to lump sum impairment with respect to left and right shoulder injuries. In determining the NEL scores which were to be applied, the Tribunal referred to the “duality of the injuries” but in the end was satisfied that the Applicant was entitled to rely on separate NEL scores for each injury even though arguably there may have been some cross over in effect. Senior Member Handley said at para 112 after determining that the same score for suffering should be applied with respect to each claim:

“On balance I am satisfied that a score of 2 should be applied in respect of the applicant’s right shoulder because his symptoms were distinct, were in the nature of mental distress, were episodic in nature and his activities were reduced. I think a similar finding should be made in respect of the left shoulder, because it is that injury which must also be assessed, as opposed to an assessment of the contribution to the suffering by that injury upon the applicant with an equivalent injury in his other limb. To follow that path runs the risk of assessing the suffering upon the applicant as a whole person when, section 27 entitles compensation for non-economic loss in respect to an injury. I do not know of any authority on these issues and none was submitted. The exercise of making a finding of the suffering experienced by the applicant as a result of his left shoulder injury, in his circumstances, is very difficult but in an attempt to exclude the presence of the right shoulder injury I find that an equivalent score of 2 should be also be applied in respect of the applicant’s left shoulder.”

Indeed Senior Member Handley found that identical scores under all the NEL components should be applied across the board.  Notably Senior Member Handley also found that a sore of 1 should be applied for each injury under “Other Loss” in respect of which he stated:

“I am satisfied that the level of effect upon the applicant by his injuries is greater than minimal and less than marked (but only by regard to the tenor of the criteria against a score of 2). I am satisfied the Other loss(es) suffered by the applicant are best described as moderate disadvantages. The examples given attracting a score of 1 should be understood as examples only to which the applicant is not confined. I am satisfied that each injury, which has caused the applicant to need assistance with dressing, tying shoelaces and his impediment with bathing attracts a score of 1 for each shoulder. The limitations on his dexterity must be numerous as obvious by the two examples recorded above observed during the hearing. The inability of an adult to dress, on occasions, unassisted and be unable to bathe unrestrained is more than a minimal disadvantage.”

Physiotherapy Treatment

Senior Member Handley also found in favour of the Applicant with respect to ongoing liability for physiotherapy treatment. Admittedly, the focus of the decision was on self-management with a home based exercise program to be monitored by a physiotherapist with personal consultations every 3 to 4 weeks as determined by the physiotherapist.

This decision is in contrast to Senior Member Handley’s decision in Bayani v Australia Post (http://www.austlii.edu.au/au/cases/cth/AATA/2015/342.html) which was decided a few weeks earlier. In Bayani, Senior Member Handley found affirmed the decision denying liability for ongoing physiotherapy treatment. Senior Member Handley said:

“The applicant has engaged in physiotherapy treatment for many years but without any alleviation of her injuries. At best, those consultations have done no more than provide her with temporary reduction in her levels of pain and minimal but temporary increases in mobility and independence. It is very unfortunate that there has not been recognition by her practitioners that the applicant has become dependent upon them rather than them directing her focus towards appropriate and competent instruction of appropriate self-management strategies.”

In coming to his decision Snr Member Handley referred to the decision of Comcare v Watson [1997] FCA 149; (1997) 46 ALD 481 at 484, where Finn J considered the definition of therapeutic treatment as appearing within the definition of medical treatment  and said “A summary of Finn J’s  findings include:

• (a) a course of treatment designed or aimed at alleviating pain caused by injury or disease, is therapeutic treatment;

• (b) subparagraph (b) of the definition of medical treatment in s 4 of the Act has multiple requirements – it must be therapeutic, have its purpose as the treatment of an injury and the treatment must be obtained at the direction of or prescribed by a doctor;

• (c) treatment which is therapeutic does not have the objective of curing a disease or an injury. A beneficial interpretation of the word therapeutic permits treatment of that type to have the purpose of alleviating an injury;

• (d) therapeutic treatment as defined has a purposive activity;

• (e) an indicator of purposive treatment of an activity prescribed by a doctor will emerge from a level of monitoring it to determine whether the purpose has been realised;

• (f) some forms of treatment may require close checking;

• (g) some forms of treatment may be self-monitored, once prescribed.

The decision in Maalouf is of interest because the Tribunla determined essentially that the worker was entitled to separate and identical NEL scores for each upper limb injury whereas Comcare and licensees generally will argue that this would normally be tantamount to “double dipping”. The application of a score of 1 under “other loss” is also relevant as claimants are often met with the argument that there should be no score for “Other Loss” in straightforward musculo-skeletal injuries.

Both cases referred to above are helpful in the analysis of when a claim for ongoing physiotherapy treatment should be pursued before the Tribunal.”