Batich and Telstra Corporation Ltd
[2008] AATA 52
•17 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 52
ADMINISTRATIVE APPEALS TRIBUNAL ) No V200401357
) No V200600709
GENERAL ADMINISTRATIVE DIVISION
)
Re RODNEY BATICH Applicant
And
TELSTRA CORPORATION LTD
Respondent
DECISION
TribunalRegina Perton, Member
Date17 January 2008
PlaceMelbourne
Decision The Tribunal sets aside the decisions under review and makes the following decisions:
· In relation to application V200401357, the Tribunal determines that from 30 May 2004 to the present date and at the present date Mr Batich continued to suffer incapacity and impairment as a result of injury arising out of or in the course of employment;
· In relation to application V200600709, the Tribunal determines that Mr Batich suffers permanent impairment as a result of an injury arising out of or in the course of employment.
· The Tribunal remits both matters to the respondent for calculations of Mr Batich’s entitlements.
The Tribunal orders that Mr Batich’s costs be paid in accordance with s 67 of the Safety, Rehabilitation and Compensation Act 1988.
(sgd) Regina Perton
Member
COMPENSATION – workplace injury – aggravation of pre-existing degenerative condition – whether temporary aggravation – decisions set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 16, 19, 24, 67
Comcare v Amorebieta (1996) 66 FCR 83
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Comcare v Sahu-Khan (2007) 156 FCR 536
REASONS FOR DECISION
17 January 2008 Regina Perton, Member 1. Rodney Batich has been employed by Telstra Corporation Ltd since 16 February 1989. On 2 February 2004, Mr Batich felt a significant pain in his back while carrying a ladder across his shoulder. He lodged a claim for workers compensation the next day, describing the injury as muscle strain in the lower back. On medical advice, Mr Batich returned to work on 5 February 2004 on alternative duties, with a graduated return to regular hours. By 26 April 2004, Mr Batich had returned to full time work; but he remained on restricted duties which included a limit on the weight he could lift, as well as no bending, prolonged sitting, standing or walking.
2. On 10 March 2004, Telstra accepted that Mr Batich’s injury of an acute muscular strain low back was work-related. On 31 May 2004, Telstra determined that it was no longer liable to pay compensation in respect of Mr Batich’s incapacity or medical expenses from that day. On 6 October 2004, Mr Batich sought reconsideration of the decision to stop payments of compensation. On 10 November 2004, the decision was affirmed, albeit with a slightly different wording. On 10 December 2004, Mr Batich lodged an application for review with the Tribunal (V200401357).
3. Mr Batich continued to experience back pain and saw a number of medical specialists. On 21 December 2005, he lodged a compensation claim for permanent impairment due to his low back and left and right legs. On 13 July 2006, the claim was refused. On 27 July 2006, Mr Batich sought reconsideration of that decision but the decision was affirmed on 4 August 2006. On 10 August 2006, Mr Batich lodged an application for review of the decision with the Tribunal (V200600709).
4. Telstra argues that the effect of the injury sustained on 2 February 2004 was a temporary aggravation of a pre-existing degenerative condition. In examining the extensive medical evidence and Mr Batich’s history and lifestyle, the Tribunal is required to decide whether the impact of the injury on 2 February 2004 had ceased by 31 May 2004. The Tribunal must also decide whether Mr Batich’s work with Telstra has resulted in a permanent impairment to his back.
Medical evidence
5. On 2 February 2004, Dr R Chan, who has been Mr Batich’s general practitioner for many years, issued a Certificate of Capacity stating that his patient had suffered an acute lig-muscular strain low back. He indicated that Mr Batich was not fit for normal duties but was fit for alternative duties for the following week with restrictions including no lifting, bending, prolonged sitting, standing or walking. On 4 February 2004, Dr Chan issued another certificate with the same restrictions but stating that Mr Batich could work for 3 hours a day. On 9 February 2004, a further certificate was issued with the same restrictions for another week. Telstra accepted Mr Batich’s compensation claim with Mr Batich being paid compensation for loss of earnings and chiropractic and pharmaceutical costs. A return to work plan was devised involving Dr Chan who undertook regular reviews of the hours that Mr Batich could work.
6. Dr Stanley O’Loughlin, consultant orthopaedic surgeon, prepared a report dated 6 April 2004 at the request of Telstra’s insurers. He had examined Mr Batich that day. Dr O’Loughlin reported that Mr Batich had told him that there had been some improvement in his symptoms mostly through physiotherapy since the injury. He stated that Mr Batich had described having a set-back when he had an episode of flu which worsened his backache but it was now improving again. In his summary and assessment, Dr O’Loughlin stated:
Mr Rodney Batich in my opinion presents with underlying degenerative disc disease affecting mainly the L4/5 and L5/S1 discs in the lumbar spine and to a lesser extent the L3/4 disc. There is evidence of spinal stenosis as well.
….
Mr Batich does appear to have aggravated the degenerative disc disease and I consider that his recent symptoms of pain are most likely due to this.
In his work Mr Batich is required to undertake ladder lifting, bending, kneeling, squatting, jointing cables etc and to drive for lengthy periods. All of these activities can potentially aggravate his back condition and until he is totally symptom-free, he should not return to such duties on a full-time basis.
…
On the balance of probabilities, it is my opinion that the injury was due to the incident of 2 February 2004. However, it is most likely that the incident aggravated pre-existing degenerative disc disease as well.
…
It is my opinion that the work related contribution was of a temporary nature and it is most likely that the work related effects have now ceased. I am unable to state exactly when.
Mr Batich’s condition is improving and he is able to work approximately six hours per day currently.
…
With degenerative disc disease and some underlying spinal stenosis, I consider he should not perform too much in the way of bending or lifting. He also should not be in a position whereby he is required to walk significant distances.
If his condition continues to improve he should be able to return to normal work duties, although he will need to treat his back with due care in future, particularly with regard to lifting and any prolonged walking or driving, where there is a distinct possibility that his condition will flare up again.
7. Dr O’Loughlin examined Mr Batich again in September 2005 and prepared a report dated 13 September 2005 for Telstra’s solicitors. He stated that since his earlier examination there had been no significant overall change in Mr Batich’s condition. He stated that Mr Batich continued to complain of low-level backache fluctuating in intensity, with occasional periods when the back pain was severe and he needed to take a day or two off work. Dr O’Loughlin reported that Mr Batich told him that occasionally pain refers into one or other leg, the last such occasion being prior to Christmas 2004. He stated that Mr Batich had stopped physiotherapy in May 2005. He indicated that Mr Batich undertakes a comprehensive exercise program on his own and goes swimming. Mr Batich told Dr O’Loughlin that the first episode of severe back pain that he experienced was in late 2001. This settled completely towards mid to late 2003 and he was symptom free until the incident in February 2004. Mr Batich told Dr O’Loughlin that he had experienced back discomfort in the early 1980s for which he attended his medical practitioner. Mr Batich believed that they were muscle strains which only lasted a few days. Dr O’Loughlin summarised Mr Batich’s situation as follows:
Mr Batich has degenerate disc disease affecting his lumbar spine as well as spinal stenosis. Spinal stenosis is a congenital constitutional problem of an anatomically narrow spinal canal, but when combined with disc injuries and disc degeneration, the spinal canal is rendered even narrower and this can produce symptoms of discomfort in the legs.
This does not appear to be particularly relevant at present and Mr Batich’s main discomfort is low back pain which is due to degenerate disc disease and aggravations thereof.
The incident of February 2004 appears to be “the straw that broke the camels back”. Prior to this Mr Batich had a couple of episodes of back pain whilst working with Telstra and these were associated with lifting and hauling cable. These settled, but since February 2004 he has had ongoing symptoms. I consider that the episode of February 2004 was an aggravation of underlying degenerate disc disease.
I consider that the degenerate disc disease however has been produced by heavy work over the years, mainly with Telstra. Whilst Mr Batich may have had back discomfort prior to starting work with Telstra, these episodes were only of minor significance and did not keep him out of work for more than a couple of day and were most probably strain. Unless X-ray evidence can be produced showing that he had obvious degenerate disc disease prior to commencing employment with Telstra, I would assume that his degenerate disc disease has mostly been produced and aggravated by his work at Telstra.
8. In response to a question asking if the effects of Telstra-related causation or aggravation (if any) were permanent or temporary and if temporary, when the effects were likely to cease, Dr O’Loughlin stated:
Unfortunately the aggravations have been progressive over the years and now Mr Batich has a permanent problem due to degenerate disc disease which has been aggravated. I consider therefore that the effects of the Telstra related causation are continuing and are of a permanent nature.
9. Mr Jonathan Rush, orthopaedic surgeon, provided a report to Mr Batich’s solicitors dated 11 February 2005. He examined Mr Batich on 7 February 2005. Mr Rush stated that:
…
Prior to the back problem and in particular the incident on 2 February 2004 the patient had no serious illnesses or operations and was fit and well. He had had some operations for ingrown toenails but was otherwise well.
More recently in October 2004 the patient had an episode of cellulitis in the right leg requiring hospitalisation. He has a long history of swelling of both legs and it has subsequently been decided that he has lymphoedema of long-standing.
…
The patient has a long history of low back problems and states that he first injured his back in about 1988/1989. He was hauling a cable at the time and had quite severe back pain which was regarded as a muscular back strain and was off work for a few days. The pain settled over a period of one month.
Mr Batich had a further episode in 1990 and at that time saw a chiropractor, Mr R Charlton, for the first time.
Over the ensuing years Mr Batich has continued to have significant episodes of low back pain. He had a period of time off work in 1996 and further episodes in 1998, 1999, 2001 and 2002. The patient stated that in general he was off work for up to a week each year because of issues with back pain.
Between November 2001 and May 2002 his back “went out” about four times and over this period he had plain x-rays of the lumbar spine and a CT scan. He had not had any investigations prior to this. At about this time he tried to lodge a claim at work but was told it was not possible to do so as there was no specific incident.
Twelve months ago on 2 February 2004 the patient was working “faults” which is quire heavy work. On this particular occasion he was carrying a ladder from the truck to the pole and went to put it down when his “back went”. He had severe pain in the low lumbar region and the ladder fell. He had to stop work. He saw his general practitioner, Mr R Chan, in Dallas with severe low back pain and bilateral leg pain. He then saw the chiropractor but his symptoms didn’t settle and on the advice of Dr Chan he attended the physiotherapist in Dallas but again this treatment didn’t help to any great extend and in fact after a series of treatments it seemed to be making the symptoms worse…
Over the past 12 months the patient has had ongoing problems with the back and it has never really settled. The patient states that every day he does have some pain, although it varies from hour to hour and day to day. Generally it has not improved to any great extent…
…
OPINION:
a) The patient has a long history of recurrent low back pain but with a persistent problem over the past 12 months. The patient’s symptoms are due to generalised lumbar spondylosis involving L3/4, L4/5 and L5/S1 and associated with lumbar canal stenosis which is congenitally based but also associated with the development of bulging discs at the three low lumbar levels. Although the problem of the back is congenital and constitutionally based, there is no doubt that his work over the years has aggravated the situation and I would regard the nature of his work as well as the specific incident on 2 February 2004 as being a significant contributing factor. The patient is currently fit for light work not involving a lot of bending or heavy lifting or remaining in one position for long periods. I anticipate that this situation will now persist indefinitely and I do not believe that the patient will be able to return to his previous work.
b) With regards to prognosis, I anticipate the present situation will now persist indefinitely. There may be some gradual improvement in his back pain but the patient will continue to have at least recurrent attacks of pain and may well develop significant sciatica, although this is not an issue at the moment.
…
d) On the balance of probabilities, I believe that the patient’s employment with Telstra has represented a material contributing factor to the onset and aggravation of his condition.
…
10. In oral evidence given on 3 August 2007, Mr Rush said that a delayed onset of leg pain is consistent with a degenerative spinal condition. He said that there could be fluctuating leg pain arising from various causes that come and go. Mr Rush said that work such as that undertaken by Mr Batich could aggravate degenerate disc disease.
11. Under cross-examination, Mr Rush concurred that the degeneration of Mr Batich’s back was not caused by his work activities and that his constitutional condition made him susceptible to experiencing symptoms when his lumbar spine was exposed to stresses. He maintained the view that the February 2004 incident and Mr Batich’s work with Telstra in general had aggravated Mr Batich’s back condition. Mr Rush conceded that Mr Batich’s leg pain could have some nerve root involvement, or be due to his leg swelling or the back condition. Mr Rush said that someone with a degenerative back condition which had been aggravated by physical activity would never completely recover from it. He said that Mr Batich will always be susceptible to recurrences of aggravations in the form of pain. Mr Rush said that the condition can become asymptomatic for days, weeks or months until something happens again, perhaps from something as minor as taking a glass out of a cupboard. …
12. Mr Edward M Schutz, consultant surgeon, prepared a report on 13 April 2006 addressed to Telstra’s insurers. Mr Schutz noted that Mr Batich did not bring his x‑rays to the examination. Mr Schutz provided the following opinion:
Mr Rodney Batich is a 46 year old who has a long history of low back symptoms dating from 1981. Symptoms have continued over his period with Telstra from 1988 or 1989. Investigations have simply shown degeneration. In that context it is noted that the abnormalities and minor disc prolapses at L3-4 and L4-5; stenosis at L4-5; and a bulge at L5-S1 shown on the 20.05.2002 CT scan are unremarkable for his age group in a spine where there is degeneration.
There is no evidence of any acute injury and it is also noted that he has not needed to take any substantial time off work with any of the above injuries.
The incident on 2.2.2004 appears to have been similar to previous episodes. The only difference is that since that episode he returned to work in lighter duties and has only recently and gradually resumed more normal activities to the present.
As above the radiological findings for the back are consistent with degeneration only. The clinical findings are of a marked reduction in movements which, however, are symmetrical. There are no current indication of any more than minor discomfort and there was certainly no sign of lumbar radiculopathy.
The clinical evidence is that tingling in the feet is due to mild tarsal tunnel syndrome which is likely to be constitutional or a complication of chronic leg oedema which has been present for more than 20 years. There is no likely work contribution to either oedema or tarsal tunnel syndrome. There was no clinical or radiological evidence or lumbar radiculopathy.
13. In response to questions asked by the insurer, Mr Schutz stated that the accident on 2 February 2004 was a transient aggravation in a region of pre-existing degeneration. He then stated:
I acknowledge that opinions in enclosed medical reports consider there was an aggravation. However the evidence is that degeneration is consistent with his age and not an injury. Thus it is most likely that current symptoms are due to degeneration and not to any persisting effects of the 2004 incident. Any possible aggravation, in the absence of injury, would resolve gradually over a period of 3-6 months at most.
14. In terms of Mr Batich’s level of permanent impairment, with his range of movement being 156 degrees (of a maximum of 270 degrees) of back movement, Mr Schutz expressed the view that taking into account Table 9.6 of the Guide, he has 10 per cent WPI loss of less than half normal range of movement. Mr Schutz did not expect the back impairment to change from the assessment made according to Table 9.6.
15. In oral evidence, Mr Schutz maintained the view that Mr Batich’s work with Telstra was not to blame for his back condition. He said that Mr Batich’s symptoms would be found in about 20 to 30 per cent of person’s his age at some time. He said that the episodes of pain become more severe and last longer as people age.
16. Under cross-examination, Mr Schutz said that he did not specifically ask Mr Batich about the nature of his work. He said that he has seen many people who worked for Telstra who had been involved in cable laying and hauling so he is aware of the nature of the work. He agreed that the work performed by Mr Batich over many years was heavy and repetitive manual work. Mr Schutz said that he agreed it was possible that the work aggravated Mr Batich’s degenerate disc disease but that a person using best practice manual handling technique is able to avoid excessive strain to the back in the most part. He said that Mr Batich had experienced acute episodes over the years with Telstra from which he recovered within a few days and was then able to work without restriction. He also accepted that since February 2004 Mr Batich has only been able to work with restrictions and that they are likely to be permanent. Mr Schutz considered that the February 2004 incident caused a temporary aggravation and reiterated that Mr Batich should have gradually recovered over a period of three to six months at the most.
17. Mr David Brownbill, consultant neurosurgeon, prepared a report for Mr Batich’s solicitor on 15 August 2006 after examining Mr Batich on 10 August 2006. Dr Brownbill provided the following medical history:
MEDICAL. He has ingrown toenails and has suffered leg cellulitis. There has been lymphoedema of both legs for many years and he has suffered many attacks of low back pain requiring time off work from a day to a week at a time. He had one x-ray performed many years ago but no other radiological investigations. To direct questioning he stated “I have always made a complete recovery after each bout of pain” and added “there was no ongoing back or leg pain between attacks and there were no activity restrictions”. He stated he was able to carry out his full normal job with associated physical activities without restrictions. He underwent lumbar scan investigation in 2002 after repetitive bouts of back pain over four months but he then subsequently made a full recovery.
18. Dr Brownbill described the circumstances in which the injury occurred reporting that Mr Batich had said that the sudden severe low back pain was in the same position and of the same type as had occurred in 2002 “but much more intense”. In relation to Mr Batich’s progress, Mr Brownbill stated:
He returned to work the following day and commenced two hours a day of lighter duties, building these up slowly to full time over five months but with continuation of lighter office duties.
He has not attended a specialist.
He has suffered two occurrences of low back pain (in October 2005 and in February 2006) when working in the filed. “The pain was severe but not as severe as in February 2004”. To direct questioning, he stated that on each occasion, the pain reduced back to the level it was before the recurrence, over a couple of weeks.
To direct questioning, he stated that in about January 2006, he noted pain going down the back of both legs. This was before the flare up of back pain in February 2006. There had not been any previous leg pain at any stage.
He is now working full time “strictly in the office”.
There is ongoing fluctuating low back pain “which has been constantly present since the February 2004 injury”.
He has not been able to continue with woodwork since the February 2004 injury.
He has not suffered any further accident or injury.
19. Mr Brownbill reported that Mr Batich sees his local doctor each month, swims three times a week and performs home exercises but does not attend physiotherapy as it made it worse. Mr Batich takes Mobic and indigestion medication. Mr Brownbill reported that on examination on 10 August 2004, his specific symptoms were:
1/. Low back pain.
This is present all the time, fluctuates in severity and is worse with prolonged sitting or driving or with physical activity. He avoids bending or lifting.
2/. Pain in the back of both thighs.
Intermittently.
To direct questioning, he stated “the right leg feels weaker”. There have not been any pins and needles or numbness.
On examination on the 10th August 2006, he was alert and cooperative without embellishment. He walked and turned well. Heel walking and toe walking were performed. On measurement, thoraco lumbar spinal movements were reduced in all directions (with the overall reduction being a little less than half of full)….There was lymphoedema in each lower leg. Power was full and equal in all muscle groups. Reflexes were present and symmetrical. Sensation was slightly decreased over the outside of the right thigh and calf.
20. Mr Brownbill stated that he had reviewed the reports of Mr O’Loughlin, Mr Schutz, Mr Rush and others who had examined Mr Batich. He also reviewed a CT lumbar spine scan taken on 1 May 2006 noting multiple level disc and facet joint degeneration and canal stenosis throughout the lumbar spine. In response to questions posed to him by the Mr Batich’s solicitor, he stated:
A/. On the information provided, and as discussed above, I consider that this man has suffered aggravation of longstanding lumbar spine degenerative changes with resulting ongoing fluctuating back pain and by referral thigh pain but without evidence of radiculopathy.
B/. I consider that this man’s work with Telstra and in particular the incident of the 2nd February 2004, have materially contributed to the aggravation and probable acceleration of the radiologically demonstrated multiple level lumbar spine degenerative changes.
C/. I consider the injuries of aggravation of degenerative changes of the lumbar spine, are consistent with the described work activities in general and in particular the work incident of the 2nd February 2006.
D/. He should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. Those restrictions will continue indefinitely. He will not be able to return to his former employment, but I consider he is able to continue with light duties avoiding the activities outlined above (as he is currently doing full time) and that on probability he will be able to continue with such lighter work indefinitely.
E/. It is appropriate for him to use analgesics and anti inflammatory medication during periods of pain exacerbation. It is also appropriate for him to perform daily back exercises with swimming.
F/. His impairment in accordance with the Comcare Guides (First Edition) Table 9.6 (noting his measured thoraco lumbar spine movements which overall were slightly less than half of full) is 10 percent of the whole person.
21. In oral evidence, Mr Brownbill explained the basis for his opinion that Mr Batich’s work had been a significant contributing factor to the degenerative changes. Mr Brownbill said that Mr Batich had degenerative changes relating to his body structure. The work activities that involved heavy lifting, twisting, bending and the like with the symptoms of pain coming and going indicate that the work activity contributed to the change. He said that he was not suggesting that the degenerative changes were caused only by Mr Batich’s work but rather his clinical experience showed that such heavy work activities over many years can contribute. Mr Brownbill said that the change, in that the symptoms were ongoing rather than resolving as they had in previous years, indicated that the February 2004 injury had probably aggravated the degenerative changes. Mr Brownbill said that leg pain arising from the back condition was sometimes delayed using the analogy of a car tyre that has minor damage taking quite a while before it ruptures. Mr Brownbill was unable to assess whether Mr Batich might require surgery in the future. In relation to the 10 per cent impairment in his report, Mr Brownbill said that he would not say that the work activity was fully to blame for the impairment. He said that without an established medical measurement assessment, assumptions needed to be made on what it was like beforehand. Despite not having a medical measurement assessment, Mr Brownbill said that he was still satisfied that work-related aggravation significantly contributed to the assessment. Asked if he would be able to given an opinion, on the balance of probabilities, when Mr Batich’s underlying condition might have become symptomatic, Mr Brownbill responded:
I’d have to say that over my years working with spines, I’ve never been able to accept the proposition, as I said, with respect to others who hold other view. But I have never been able to accept that proposition that necessarily, at some stage, the aggravation will cease, and the basic condition will, so called, “overtake”, on two grounds. Firstly, we know of people who – many people who have got advanced degenerative changes, who may go through a whole working life without any significant problem. We would find them on incidental x-rays done for other medical reasons, and we see the changes. So, we know that those changes, of themselves, do not necessarily dictate what’s going to happen. And, the other things is, coming back to that black box phenomenon. A person, at a given date, has no symptoms. An incident occurs, and they develop symptoms, symptoms that continue, albeit with fluctuations, but they continue. I have not been able to, on a logical or a physiological basis, been able to support the concept that at some magical period, that aggravation has gone, and out of the blue, has become a constitutional factor, that wasn’t apparent before that aggravation.
22. Under cross-examination, Mr Brownbill agreed that there is not necessarily a correlation between the existence or severity of degenerative changes and the presence, let alone the persistence or severity of symptoms. He said that it was not a linear relationship. Mr Brownbill was presented with Telstra’s summary (in table form) of Mr Batich’s medical and sick leave history from 1980 onwards. Mr Ferwerda highlighted some entries including an x-ray taken in August 1990 which indicated that Mr Batich had L4/5 disc degeneration dating back to his pre-Telstra days; chiropractic reports of medical attendances in the early 1980s; a May 1990 report of a worsening of lower back pain that caused pain to radiate into the legs with pain in the lower back that was sharp and cramp-like at times; acute lower back pain in August 2000 and a May 2002 entry indicating pain now down the right leg with numbness in the right foot which comes and goes; and other entries. Mr Brownbill said that most of the leg problems would probably be related to Mr Batich’s lumbar spine condition. He noted that the entries appeared to be in clusters. He said the clinical pattern he saw is not someone coming back for treatment regularly but rather someone with isolated periods of pain. He said that in his 35 years of clinical experience he had noted that patients are pleased to have recovered; and when they have pain again, they become a little despondent; but when they become pain free again, they are hopeful that it won’t recur again. He said that he often had patients who had regular periods or remission. Mr Brownbill said that his records did not indicate that Mr Batich had symptoms of leg pain prior to January 2006.
23. The Tribunal was provided with clinical notes from chiropractors attended by Mr Batich, from a physiotherapy clinic and from his general practitioner. Australia Post’s records concerning sick leave taken by Mr Batich were also tendered.
Mr Batich’s evidence
24. Mr Batich described his work history with Telstra. He spent a few weeks in a digging gang which involved heavy lifting, sweeping, digging, laying pipes and the like. He then moved to haulage for about a year which required extensive lifting and bending, with tasks such as inserting rods into conduits and pulling the rods through, usually for connections on new estates. He then became a jointer, a role he continued for many years. He said the work involved a lot of leaning forward to bring cables out and join them up. He needed to lift the concrete lids to the pits in which the cables were jointed, with the weight of the lids varying according to the size of the pit from an estimated 10 to 30 kilograms. Mr Batich said that this put a lot of pressure on the back.
25. Mr Batich said that his work in more recent years required him to deal with telephone faults. He usually worked by himself. He said that he was given an address where the fault had been reported. After driving to the location, the first task was to assess the location and nature of the fault. If it appeared to be a problem at a telephone pole, he had to carry one of two ladders on his vehicle to access the pole. Mr Batich said that the shorter ladder was around 4.2 metres long and weighed around 25 kilos and the longer about 6.3 metres and around 35 kilos. He said that he carried the ladder on his shoulder, before propping the ladder against the pole and then climbed up to check. If the problem was not at the selected pole, he would sometimes have to go to the next pole or two, carrying the ladder between the poles. He sometimes also had to go into the pit to provide a temporary service to a customer. Mr Batich said that he also worked in roof cavities or under the house where the space was very confined and he had to crawl. He said that the procedures were now changing as surface cabling replaced poles. Mr Batich said that his work had been physically demanding. He said that he is now employed as a design operative for Telstra, which does not involve the physical work he was previously undertaking.
26. Mr Batich said that he had suffered pain at work prior to the injury in February 2004. He said that there had been a number of minor incidents. He said that the general nature of the work put pressure on the workers’ bodies and he often ended up stiff and sore at the end of the day. But by the next day, he would recover and be able to work.
27. Mr Batich’s employment, prior to Telstra, included seven and a half years with Australia Post as a mail sorter and two and a half years with K-Mart as a footwear manager. He said that he had lodged a workers’ compensation claim while working for Australia Post when he hurt his back after lifting mail bags. Mr Batich said that his back came good and he had no issue with his back after that. He said that he recalled having some time off with the treatment being rest and the use of Heat Rub. He said that he could not recall any other injuries at Australia Post.
28. On being presented with a summary document, that comprised part of the respondent’s Statement of Facts and Contentions in which was listed the medical treatment and days he had away from work from 1989 to 2004, Mr Batich said that …I was quite shocked to see that I’d had so many issues. He could recall an x‑ray of his spine in 1990 and treatment for his back at the Glenroy Chiropractic Clinic between September 1990 and November 1990. Mr Batich said that when he experienced back pain due to his work, he attended his chiropractor and the pain would subside. He said that he continued to work whilst undertaking the treatment. After the pain had abated, he attended the chiropractor for further maintenance treatment for a month or so. On being referred to records that he attended the Oak Park Chiropractic Centre in June 1991 and October 1991, he said that he could not recall why he attended but it would have been for further maintenance treatment for his back due to the heavy nature of his work. His recollection was that he had worked without restriction during 1990 and 1991 due to the relief he obtained through chiropractic treatment.
29. He was unable to recall taking specific sick leave days for his back or attending a chiropractor on specific dates for treatment for his lower back symptoms between 1993 and November 2001. He said that he had no reason to doubt that he had attended the appointments and reiterated his belief that they would have been for maintenance of his back given the heavy nature of the work
30. Mr Batich could recall his attendances at the chiropractor on several occasions during 2002 for treatment to his back. He said that during 2002, he had become aware of regular occurrences of back pain, about once a month. He became concerned but each time the pain occurred it would dissipate after a period of time. Mr Batich said that he continued to work in his usual position without restricted duties. He recalled lodging an incident report on 15 July 2002 indicating that he had sustained an injury which he attributed to his work over the previous 15 years. He said he was told that he could not lodge a claim as he did not have a specific date on which the injury occurred. He asked to be moved from full-time work on faults to another area for a time, to give his back a rest and his supervisor moved him to another area within the same group. After around a year on project work, he returned to the fault work in late 2003 with duties similar to those he did prior to mid 2002, including lifting ladders, opening heavy pits and the like. He continued with those duties until the injury in February 2004.
31. Mr Batich described the events leading to the claim. He said that it was a wet, cold day. He parked his vehicle near the relevant address and picked up the ladder and was carrying it on his shoulder. He said he felt severe pain in his back which was so intense that he thought he had broken his back. He dropped the ladder, went back to his vehicle and tried stretching, to no avail. He said that he wanted to repair the customer’s fault so he drove back to the pillar where the ladder had landed, repaired the fault and then contacted his supervisor to tell him about his injury and the pain. At his supervisor’s direction, he went back to the depot, filled in the paper work and then went to his doctor and took the rest of the afternoon off. Mr Batich said that his supervisor asked him if he could come back to work the next day on restricted duties rather than take the day off and he agreed to do so. Mr Batich said that his doctor had provided a certificate stating he should do no lifting, bending or stretching and that he should not walk or sit for lengthy periods. He said that initially his hours were to be two or three per day eventually going back to full hours five or six weeks later. Mr Batich said that his treatment during that period had consisted of attending a physiotherapist twice a week and taking anti‑inflammatory medication. He said he still takes the anti-inflammatory but he is trying to reduce his usage as he is now having reflux problems as a result and taking medication to minimize that problem.
32. Asked about the current condition of his back, Mr Batich said it sometimes worsens but then eases off to the usual state of constant pain. He said that sometimes he gets shooting pains down his legs and his feet feel numb. At times he feels as if he will drop to the ground. Mr Batich said that he did not think that he had taken any time off due to his back condition since resuming full-time work a few weeks after the injury.
33. Mr Batich said that he had lodged two further claims since February 2004. He said that in October 2004, he hurt his back working in the exchange, threading wires through a frame to hook up telephone services and going up and down ladders to do so. He said that he had lodged a claim but that it mysteriously got lost and has not been processed. He said that he had hurt his back again in April 2006, when he was training a person as a jointer who did not have a work ethic and he therefore did some of the work himself with unfortunate consequences.
34. Mr Batich said that when he was on reduced hours during February‑March 2006, he was paid his normal wages with a small allowance for the overtime he would otherwise have been working. He said that before the injury in February 2004, he worked as much overtime as he could. He worked some Saturdays and at least twice a week for three hours a night. He said the overtime was required due to a backlog of work for customers seeking to have faults repaired. He said Telstra would be fined for not meeting deadlines if his section did not keep up with the fault backlog.
35. Mr Batich said that he now works in a design position, preparing designs for networks and the like. He is now working at one classification higher than his previous position. He still has the lifting and related restrictions but they do not affect his current work. Despite the higher classification, he believes he would have been earning several thousand dollars more per annum if he was still working overtime in his previous job.
36. Mr Batich said that he stood by the comments he had made in a non‑economic loss questionnaire in December 2005. Mr Batich stated in the questionnaire that his symptoms varied as did his activities and ability to cope between episodes. He said that when he is feeling down he thinks about how long it will be before he ends up in a wheelchair. He said (transcript, page 20, line 17):
…And when I end up in a wheelchair, my life’s over as far as I’m concerned because if I lose my legs, I don’t want to live, so – there’s no easier way to put it. I’d rather be dead than be in a wheelchair. And I know sooner or later this will happen to me. It’s just a matter of time before the pressure on my back gets to the point where it goes permanent damage. I won’t be able to walk….
37. Mr Batich said that he was unable to drive more than an hour at a time before stopping because of the pain. He then stretches and walks around for a few minutes before resuming. Mr Batich said that he no longer participates in social dancing which he used to do at least weekly before the injury. He said that he has lost friends as he does not go out and mingle. His relationship with his wife has suffered as she would like to go out dancing and she also now does more of the housework and house maintenance than she did previously. Mr Batich said that he has also given up his hobby of woodworking on which he used to spend a lot of time. He said that he got his ticket for scuba diving not long before the February 2004 injury. It is an activity that he is passionate about. He still manages to do a limited amount of diving provided the weather is right and his back is at its better level. He said that he built a trolley with a box that keeps his weights so that he does not have to bear any weight until he hops off the boat which takes about 30 seconds. He said that he also has a special vest that puts the weight from the tank on his hips rather than his back. He said that he enjoys the weightlessness of diving.
38. Under cross-examination, Mr Batich confirmed that he believes he will end up in a wheelchair. He said that neither his doctor nor his chiropractor had told him that he would end up in that condition nor had he raised the question with them. Mr Batich said it was his own opinion that it might happen. Mr Batich confirmed that he had not seen a specialist to discuss what was happening to his back or if an operation might help. He said that he would see a specialist if he ended up in a wheelchair. He did not agree that he might well have taken about the equivalent of a week’s leave in total each year since his back problems began. However, he did agree that he might have done so since 2002 onwards. Mr Batich said that since the February 2004 incident, his back has not returned to normal; as it had previously after it became painful. He said that he did not know if that was due to degeneration stemming from the incident.
39. Mr Batich confirmed that he had probably told Mr Rush in February 2005 that he first injured his back in around 1988 or 1989 when hauling a cable. He said that this was probably because of the wording of the question. He indicated that he had forgotten about a back injury at Australia Post as it was around 20 years earlier. He said that he did not think about such things and did not recall it when he saw Mr Rush. He said he remembered some of his minor injuries only when shown the documentation collated before the hearings. He said he was shocked to see how many times he had visited the doctor over the years for minor strains and things. He said he recalled the 1990 x-ray of his back and his doctor saying that it did not show any significant damage only after a reminder. He could not recall his doctor saying that there was disc degeneration. He could not recall exactly what he told Mr Rush but said that he may well have told him that between November 2001 and May 2002, his back went out about four times. Mr Batich said that it would be incorrect to suggest that prior to 2002 that it would sometimes take months to get over his back problems. Mr Batich reiterated that he does not remember every minor problem that he experienced over the years. He puts them out of his mind.
40. Mr Batich was referred to Australia Post records of his sick leave. They included a painful back in September 1980 which resulted in a week off; a painful lower back in March 1982 with a day off; pain in his back and shoulders in May 1983 with a day off; muscle pain in his right back in October 1985 with 3 days off; and pain in the back in February 1986 with a day off. Mr Batich said that the records were probably accurate. He was also referred to the medical records of his general practitioner, Dr Chan, which recorded back pain in July 1981 and October 1985 when Mr Batich was working as a mail sorter. He agreed that the records were probably accurate. Mr Batich explained a history he had given to the Glenroy Chiropractic Centre of a low back problem of two to three months in 1990 as being the result of the hard work he was doing. He said he was often sore and tired at the end of the day but felt fine again the next morning. He said the pain was on and off over a three month period and that was what he would have been describing in the history recorded by the chiropractor.
41. Mr Batich could initially not recall having any problems with pain radiating into his legs until 2004. When Mr Ferwerda, counsel for Telstra, alerted him to comments he made in 1990 to his doctor and chiropractor about his legs, Mr Batich said that he was doing heavy work at that time. Mr Batich confirmed that he had made a claim in relation to his back in 1990 which had been rejected. He agreed that he had not challenged the denial of liability but said that was because he was told that he didn’t have a case and he was young and naïve. Mr Batich eventually agreed that he had some issues with his back during 1990, albeit not continuously. He said that there were several incidents in 1990 but that he recovered between each of them. He also said that in 1993 when he attended the chiropractor several time and had nine days of sick leave, his back was feeling good between consultations. Mr Batich could not remember any particular events in February and March 1999 when he attended his doctor and chiropractor. He said that in November 2001, he was working on faults full time and he noticed that his back was doing something unusual. His back would heal and then go back out and the same pattern would recur. He said he thought that something had to be wrong. He could not remember any particular incident at that time, rather he believed it resulted from carrying ladders, opening pit lids, bending over and the like. He thought he had recovered from his late 2001 back problems by late 2002 and had made a complete recovery. He would not concede that his back had not been one hundred per cent for a long time prior to the 2004 incident.
42. Mr Batich acknowledged that his woodwork hobby involved bending and twisting, as had his work. He said that he started that hobby in the mid 1990s. He said that he was not doing regular social dancing in the 1990s. Mr Batich acknowledged that he had been diagnosed with cellulitis in 2005 becoming infected in the tropics following a cut. He spent 13 days in hospital and about a month off work because he could not walk because of his swollen ankles and leg. His cellulitis had caused the lymphoedema in his ankles to worsen.
43. Mr Batich could not recall precisely what he had said to the various medical specialists he had been referred to in relation to the claim. He could also not recall having leg problems in around 1990. He indicated that he did not have a good memory.
RELEVANT LEGISLATION
44. Section 14(1) of the Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
45. Section 4 of the Act, as it was at the relevant dates, provides:
(1) In this Act, unless the contrary intention appears:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...
disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
...
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
...
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
Section 16 of the Act provides for the payment of compensation in respect of reasonable medical expenses incurred in relation to an injury, and s 19 of that Act provides for the payment of compensation for incapacity for work resulting from an injury.
Section 24 of the Act provides for the payment of compensation for injuries resulting in permanent impairment:
24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
…
The words permanent and impairment are defined in s 4(1) of the Act as follows:
permanent means likely to continue indefinitely.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
CONSIDERATION OF THE ISSUES
46. All of the medical witnesses before the Tribunal agree that Mr Batich suffers from a degenerative disc disease and spinal stenosis. They all agree that the condition is permanent. They all agree that Mr Batich is unlikely to be able to undertake work of the nature he was undertaking at Telstra prior to 2 February 2004. They all agree that his back condition has not been caused by his work at Telstra. However, there is disagreement about whether Mr Batich’s degenerative condition was aggravated by his work at Telstra on and before 2 February 2004.
47. Mr Batich has given evidence that he has been in constant pain since the injury on 2 February 2004. The pain waxes and wanes in intensity. His descriptions of the level of pain and the times he has experienced particular symptoms over the years has varied, depending on which medical specialist he saw and when. To some, he has recounted experiencing previous back strains while working at Australia Post; to others he has only mentioned pain since joining Telstra. Mr Batich has had differing recollections as to when he first experienced leg pain. He could not recall taking as much time off or seeing the chiropractor on as many occasions over the years as the records indicated he had. At some examinations he described the pain experienced as twinges, perhaps leading the practitioner to a view that it was not serious. On some occasions he had been feeling better when seeing a particular practitioner and appeared to have dismissed previous episodes of pain from his memory.
48. Notwithstanding some inconsistencies in the medical histories Mr Batich has provided at various times, the Tribunal accepts Mr Batich’s evidence that he has experienced pain and continues to be in pain, brought on by his work at Telstra. The Tribunal also accepts that over the years the pain disappeared between episodes. Unfortunately, that is no longer the case. Mr Batich’s pain no longer disappears completely as it had after flare-ups prior to February 2004.
49. Mr Batich acknowledges that he is a less than perfect historian. However, having a poor memory about previous incidents of pain does not mean that he has been deliberately failing to disclose them. The Tribunal notes the comments made by Mr Brownbill, that it is not unusual for patients with back conditions to forget about painful episodes when they are feeling a little better and to feel optimistic when the pain abates for a period. The Tribunal does not draw negative inferences from Mr Batich’s failure to remember some of the previous incidents of pain and treatment until prompted.
50. When Dr O’Loughlin first assessed Mr Batich on 6 April 2004, Dr O’Loughlin believed the pain Mr Batich was experiencing was only a temporary aggravation of his pre-existing degenerative condition, brought on by the incident on 2 February 2004. He has since changed his opinion after seeing Mr Batich again some 17 months later. Dr O’Loughlin, Mr Rush and Mr Brownbill are all of the opinion that, on the balance of probabilities, the incident on 2 February 2004 and the nature of his work with Telstra since 1989 have aggravated his spinal condition. Mr Schutz disagrees. The Tribunal is satisfied that the three who do agree are experts in the field, as indeed Mr Schutz is. The Tribunal notes that in his oral evidence, Mr Schutz agreed that Mr Batich is unable to perform the work that he did for many years. However, he does not agree about the impact on the pre-existing condition of his work.
51. In Commonwealth of Australia v Beattie (1981) 35 ALR 369 Evatt and Sheppard JJ said at 378:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre‑existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.
52. In relation to permanent impairment, Jenkinson J stated in Comcare v Amorebieta (1996) 66 FCR 83 at 96:
The measure of that compensation is the degree of permanent impairment which has resulted from the aggravation of the disease, and in contemplation of law the degree of impairment to which the aggravation brings the respondent's spine is caused by - 'results from' - that aggravation, whatever the lesser degree of impairment was which preceded the aggravation and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment.
53. In Tippett v Australian Postal Corporation (1998) 27 AAR 40 Finkelstein J stated that if pain arising from an underlying condition is worsened or increased by reason of matters involving employment, then the person will have suffered a compensable injury.
54. In Comcare v Sahu-Khan (2007) 156 FCR 536 Finn J referred to an evaluative threshold, below which a causal connection with an ailment may be disregarded. He held that this requires an evaluation of all relevant contributing factors in deciding whether the employment contributed to the necessary threshold level in relation to the ailment. He stated at 542:
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) …
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree.
55. Dr O’Loughlin, Mr Rush and Mr Brownbill are of the present opinion that the injury on 2 February 2004 and the general nature of the work undertaken by Mr Batich have aggravated his underlying spinal condition. The Tribunal accepts their opinions and finds accordingly. They have now all stated that the condition is permanent (as has Mr Schutz.) Telstra initially accepted responsibility for the injury of 2 February 2004. Given the medical evidence now available, the decision that its effects were temporary and ceased on 30 May 2004 was not correct. The Tribunal finds that the aggravation of the underlying spinal condition as a result of the injury on 2 February 2004 injury was not temporary and therefore did not cease on 30 May 2004.
56. The evidence as to why Mr Batich felt pain in his legs was not clear. Various explanations were suggested by Mr Schutz. The other doctors said that the pain might be the result of his spinal condition but could also be caused by other factors. The evidence as to when this pain first appeared, its likely cause and whether it was related to Mr Batich’s lymphoedema or to nerve root difficulties, has not been clear or definitive. In their evidence and submissions, the parties concentrated more on the degenerative spinal condition. The Tribunal is not satisfied on the evidence before it that Mr Batich’s leg pain has arisen from the aggravation of his spinal condition.
32. On all the material before it the Tribunal finds that on 2 February 2004, there was an aggravation of an existing condition. That aggravation arose out of, or in the course of, Mr Batich’s employment, which constitutes an injury as defined in the Act. That situation continued after 30 May 2004 and is ongoing.
57. As stated above, all of the medical evidence indicated that Mr Batich is now permanently impaired with his underlying spinal condition having been aggravated by his work. The amount of compensation which is payable in accordance with s 24 of the Act is calculated by reference to the degree of permanent impairment which, under s 24(5), is to be determined in accordance with the provisions of the approved Guide, namely, the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) prepared by Comcare in accordance with s 28 of the SRC Act. The assessment of the degree of impairment by Mr Brownbill and Mr Schutz was 10 per cent under Table 9.6.
58. The parties requested that the Tribunal remit the matter to the respondent for appropriate calculations if it found in favour of Mr Batich. The Tribunal believes it appropriate to do so in this matter.
DECISION
59. The Tribunal sets aside the decisions under review and makes the following decisions:
·In relation to application V200401357, the Tribunal determines that from 30 May 2004 to the present date and at the present date Mr Batich continued to suffer incapacity and impairment as a result of injury arising out of or in the course of employment;
·In relation to application V200600709, the Tribunal determines that Mr Batich suffers permanent impairment as a result of an injury arising out of or in the course of employment.
·The Tribunal remits both matters to the respondent for calculations of Mr Batich’s entitlements.
The Tribunal orders that Mr Batich’s costs be paid in accordance with s 67 of the Safety, Rehabilitation and Compensation Act 1988.
I certify that the fifty-nine [59] preceding paragraphs are a true copy of the reasons for the decision of Regina Perton, Member
(sgd) Dianne Eva
Clerk
Date of hearing: 15 May 2007 & 3 August 2007
Date of decision: 17 January 2008
Counsel for the applicant: Ms J Bornstein
Solicitor for the applicant: Maurice Blackburn CashmanCounsel for the respondent: Mr J Ferwerda
Solicitor for the respondent: Frenkel Partners
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