Bergan and Telstra Corporation Ltd

[2005] AATA 76

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 76

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q03/321, 491, 704

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL BERGAN

Applicant

And  TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal  Ms M J Carstairs, Member

Date24 January 2005

Place Brisbane

Decision  The Tribunal affirms the decisions under review.

.................[Sgd]........................

M J Carstairs
  Member          

CATCHWORDS

COMPENSATION – Injury – Incapacity – Whether applicant’s payments for compensation should have ceased – Whether applicant should be compensated for permanent impairment – Decision under review affirmed

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 27

REASONS FOR DECISION

24 January 2005 Ms M J Carstairs, Member

1.      This is an application by Paul Bergan (the applicant) for review of three decisions, each related to a collision which occurred when his van was parked by the roadside, the collision occurring in the course of his employment with Telstra Corporation (the respondent).

2.      The applicant was represented by Mr E Johnston of counsel instructed by Stone and Partners, Solicitors.  The respondent was represented by Mr C Clark of counsel instructed by Sparke Helmore, Solicitors.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A2 for the applicant and R1 – R8 for the respondent.

HISTORY

4.        The applicant is aged forty-two.  He worked for the respondent as a telecommunications service technician from about 1982.  On 21 February 2002 his Telstra van was parked by the roadside as he checked customer records, the van was struck by a passing 4WD vehicle.  The applicant was taken to Mullumbimby Hospital, and x-rays were taken.  He was allowed home after these investigations, and did not require admission to hospital.

5.      On 23 April 2002 (T20: Q2003/321), the respondent accepted liability for whiplash injury to the neck arising from the accident.  On 10 December 2002 (T92: Q2003/321) the respondent determined that liability for the injury should cease from 10 December 2002, a decision affirmed on review on 29 January 2003 (T102: Q2003/321).  The reviewable decision was varied in part, but not in substance, by a further determination dated 15 September 2004 (exhibit R3). 

6.      On 5 May 2003 the applicant claimed permanent impairment arising from his neck, back, and shoulder condition.   On 29 May 2003 a delegate affirmed a decision that the applicant had no entitlement to lump sum compensation for permanent impairment (T9: Q2003/491). 

7.      The third matter (Q2003/704) appears to be limited to a request for review of the initial determination dated 23 April 2002 to accept the claim for whiplash injury to the neck.   A delegate on 25 June 2003 (T10: Q2003/704), affirmed the decision that the applicant suffered only whiplash injury to the neck arising from the accident and denied liability for back condition and injury to arms and shoulders.  

8.      The applicant returned to work after a period of recuperation following the collision.  After some three weeks back at work he required further leave as he was not coping with work.  He ceased employment with Telstra on 2 June 2003 and has not worked since.

9.      The central issues for the Tribunal in this matter are whether the payments of compensation for the injury should have ceased, and whether the applicant should be paid compensation for permanent impairment.

EVIDENCE

10.     In a written statement dated 13 October 2003 (exhibit A1) the applicant stated that in the days after the accident his neck, back, shoulders and arms became progressively more stiff and painful.  He stated that he suffered from headaches, a burning sensation around his eyes, hot and cold flushes, and dizziness.  In his oral evidence the applicant said that four days after the accident his pain had worsened, his neck was stiff, and he had a constant headache. He attended his general practitioner Dr A Roxburgh on 25 February, 4 March and 5 April 2002 (exhibit R4).

11.     The applicant said that he was on leave for four months after the injury, and that his attempted return to work lasted three weeks.  This was followed by a further two months of leave.  The applicant stated that he aggravated his injury on 19 March 2003 when undertaking rehabilitation exercises and then experienced pain, stiffness, and headaches.  The applicant described suffering constant pain now, and disturbed sleep.  He said that any physical activity results in increased pain, fatigue, muscle spasms, headaches, and tension.  He said he is able to do little around the home or in caring for his uncle with whom he resides.

12.     In oral evidence the applicant said that in the collision he was thrown about in the van and hit the back of the driver’s seat.   He described feeling unwell after the accident.  He said that he was unable to drive the van because it had a flat tyre.  A work colleague drove him to Mullumbimby Hospital where x-rays were taken.  The x-ray results showed no apparent disability, though physical examination revealed tenderness (exhibit R5).

13.     The history of the collision that the applicant reported at the hospital (exhibit R5) was that his van was stationary on the side of the road when hit by the 4WD on the driver’s side door.   This was consistent with the police record (exhibit R6) that the applicant told police:

It hit the driver’s side door of the van and scraped all up the side.

14.     Prior to the injury the applicant said he had enjoyed gardening, farming, and a range of active sports, including body-surfing, swimming, and tennis.   He said that he is unable to partake of these now, and has difficulty carrying out household tasks and is unable to do more active tasks such as mowing or cleaning gutters.  He said he suffers continuously from headaches, fatigues easily and has been advised by rehabilitation specialists to cease activity when fatigue occurs.  He is having no treatment at present, and commented that he ceased taking panadeine forte because it upset his stomach. 

15.     In a report dated 29 May 2002 (T36), Dr A White, consultant psychiatrist, noted that the applicant presented with numerous incapacitating symptoms which Dr White regarded as exaggerated.  He noted that there was a discrepancy between the alleged severity of the applicant’s symptoms and the medical evidence, but he concluded that the applicant had no psychiatric disorder. 

16.     In a report dated 13 February 2003 (T104) Dr J Davis, occupational physician, noted that the applicant had sustained an injury when struck on the offside rear by another vehicle which then side-swiped his car.  Dr Davis noted that x-ray investigations of the applicant’s right shoulder and cervical spine were normal and that a CT scan of his lumbar spine showed no evidence of disc herniation.  He noted that magnetic resonance imaging (MRI) showed minimal degenerative changes at C5/6 of the cervical spine, but a right para-central disc protrusion at T3/4, mildly indenting the anterior aspect of the spinal cord.  He stated that the prognosis was for ongoing pain, and that the applicant would be permanently prevented from heavy lifting, bending and would face restrictions when working above shoulder height.   He concluded that the applicant had a 10% impairment of each of the left and right shoulders, the cervical and lumbar spine, totalling a whole person impairment of 39% using the Comcare Guide to the Assessment of the Degree of Permanent Impairment (the Guide).

17.     In a report dated 2 December 2003 (exhibit A2) Dr T Sheehan said that the applicant told him that he suffered from constant neck pain and stiffness which interfered with his sleep, and he had low back pain.  Dr Sheehan noted that x-rays of the applicant’s right shoulder were normal and a lumbar CT scan showed minor narrowing at C3/4 and C5/6 without disc herniation, a result essentially confirmed in an MRI dated 4 June 2002.   Dr Sheehan diagnosed the applicant as having musculo-ligamentous strains involving his neck and his back.

18.Dr Sheehan stated that:

When one considers the trauma to which the subject was subjected when he had his accident, it is not surprising that he remains symptomatic a few months short of two years later.

19.     In oral evidence Dr Sheehan noted that the applicant has suffered a serious and significant injury, of which, he said, he had seen many in his practice as an accredited assessor for WorkCover.  He said that the applicant had been subjected to enormous forces in the motor vehicle accident which had resulted in severe musculo-ligamentous injury. 

20.     Medical reports in the documents included a report by Dr R Parkington dated 15 April 2002 (T16) in which Dr Parkington concluded that the applicant suffered a flexion and extension injury to the cervical spine and a soft tissue injury to the lumbar spine in the accident, and full recovery could be expected.  He noted that the applicant’s main complaint was his cervical spine.  In oral evidence Dr Parkington said that the recovery time would be six to eight weeks at most.  In a report dated 1 August 2002 (T56) Dr Parkington noted that there had been some improvement reported by the applicant, but Dr Parkington considered that there was evidence of abnormal illness behaviour and he was not satisfied that the applicant was as physically disabled as he presented.   He concluded that the majority of the effects of work-related injury had ceased.

21.     Dr Parkington said that when writing the 1 August 2002 report he was prepared to give the applicant the benefit of the doubt about his continuing pain, even though Dr Parkington could find no physical basis for it.  He said that the applicant told him that he was anxious and stressed at the time and Dr Parkington said that in his experience this can increase a person’s perception of pain.

22.     In oral evidence Dr Parkington noted that Dr Davis assigned a 39% rating for permanent impairment despite the applicant being clinically and radiologically normal.  Dr Parkington considered the comment by Dr Sheehan (exhibit A2) that the applicant experienced severe trauma in the collision ‘surprising’, when the history taken at Mullumbimby Hospital did not reflect this and he was allowed to go home after x-rays were taken.  

23.     In a report dated 13 October 2003 (exhibit R1) Dr J Cameron, consultant neurologist, noted that during the medical examination the applicant held his neck and back in a rigid fashion, with his shoulders slightly elevated and he had demonstrated almost no voluntary neck movement or lower back movement.   In oral evidence he said that the applicant had neck movements not seen in any field of medicine and that there was no physiological reason for him to hold his neck in the way that he does.

24.      Dr Cameron noted that the applicant had normal muscle bulk, tone, co-ordination, fine movements, sensation and reflexes in upper and lower limbs.  He noted also that an MRI of the cervical spine on 4 June 2002 suggested minimal degenerative changes consistent with normal aging and, apart from a mild disc bulge, the radiological and other studies were normal for his age.  He said that the applicant’s grossly restricted neck and back movements could not be explained by any organic disturbance and he concluded that he was demonstrating abnormal illness behaviour, which he said meant an abnormal presentation in the absence of clinical disturbance.

25.     Dr Cameron stated that any strain injuries sustained in the accident were minor and should have settled within two months at the most.  He said there was no evidence of an acute injury to cervical or lumbar spine.  He said that there was no ongoing disturbance that could be related to the accident.

CONSIDERATION OF THE ISSUES

26.     The issue for determination in this matter is whether the applicant continues to suffer from an injury suffered in the course of his employment with the respondent.

27.     The terms injury, disease and ailment are defined in s4 of the Safety Rehabilitation and Compensation Act 1988 (the Act).  Section 14 of the Act provides that compensation is payable in respect of an injury suffered, if this results in incapacity for work or impairment.

28.     In submissions Mr Johnston pointed to the applicant’s twenty year history of employment with Telstra; his determination not to rely on Centrelink payments; and his honest acknowledgement in evidence that his symptoms have improved.  He submitted that the applicant could be relied upon as accurately reporting his ongoing symptoms and that the Tribunal should accept the reports of Dr Sheehan and Dr Davis concerning his present and ongoing impairment.

29.     Mr Johnston submitted that the respondent now sought to minimise the severity of the initial injury by raising doubts about the damage sustained by the van.  He submitted that the Tribunal should not draw inferences about the severity of the collision based upon photographs that were taken after the event, and where there were no records from panel beaters.

30.     Mr Clark submitted that the pivotal issue related to the determination that the effects of the applicant’s injury had ceased.  Mr Clark submitted that opinions that the applicant remained permanently impaired were based upon his acceptance of a flawed history that the applicant’s van had been hit from behind in a more severe crash than had occurred.  He submitted that the photographic evidence did not show damage to the rear of the van, and from what the applicant said to police and at Mullumbimby Hospital on the day of the accident the van was scraped down the driver’s side rather than heavily impacted from the rear.

31.     The Tribunal agreed with Mr Johnson that it was difficult to ascertain what had occurred in the accident in the absence of panel beating records.  However it can be inferred from the lack of substantial damage evident in the photographs, as well as from descriptions of the collision given by the applicant to police and hospital staff, that the accident was minor in nature.   Nevertheless, there is no question that the applicant sustained injury and the respondent accepted the injury as occurring in work-related circumstances and paid compensation.   

32.     There is substantial agreement between medical practitioners about the nature of the injury sustained in the accident being a whiplash type injury to the neck, and there is recognition in a number of reports that the applicant sustained a soft tissue injury to his lumbar spine.  Dr Davis refers to “whiplash associated disorders in the cervical and lumbar regions”; Dr Parkington states that the applicant suffered a flexion and extension injury to the cervical spine and soft tissue injury to the lumbar spine; Dr Sheehan refers to musculo-ligamentous strain; in a report dated 12 July 2002 (exhibit R8) Dr Poulgrain, neurologist, refers to a soft tissue injury to the neck and stated that the applicant had some back pain after the accident but was not complaining of back pain at the time of the report; and Dr Cameron diagnosed a likely strain injury to his cervical spine and lumbar spine.  

33.     In application Q2003/704 the applicant seeks review of the initial determination limiting the claim to whiplash injury to the neck.  Taking into account the views of medical practitioners who had the opportunity to examine the applicant close to the time of the collision, particularly Dr Poulgrain and Dr Parkington, who concluded that the applicant suffered a lumbar strain, the diagnosis of the injury should be amended to read ‘whiplash injury to the neck and lumbar strain’.  This affects, but does not alter the substance of, the reviewable decision in matter number Q2003/704, which in all other respects is affirmed.

34.     The critical issue for the matter under review is whether the applicant recovered from the effects of the injury so that it can be said that the work-related effects of injury have ceased and he is no longer entitled to compensation under the provisions of the Act.   The medical reports vary widely on the state of the applicant’s health now.  The Tribunal had the opportunity to observe the applicant in giving his evidence and noted the stiff manner in which he holds his head and neck, as commented upon by Dr White, Dr Cameron and Dr Parkington. 

35.     The Tribunal preferred the evidence of Dr Parkington that the nature of the applicant’s injuries was such that he would recover within a short period of time.   The Tribunal did not accept the conclusions reached by Dr Sheehan, who considered that the applicant was likely to continue to suffer neck and back pain.  The Tribunal takes into account that Dr Sheehan is an experienced assessor in work injury claims, however his conclusions were based upon his assumption that the applicant was subjected to severe trauma in the course of the collision.  Dr Sheehan did not refer to contemporaneous records such as those from the Mullumbimby Hospital, when concluding that the applicant sustained such severe injury that he was symptomatic two years after the collision and was permanently and substantially impaired.  Both Dr Davis and Dr Sheehan assigned impairment ratings under the Guide that could not be explained in terms of the objective findings from x-rays, reports of MRI investigation and CT scans.

36.     The Tribunal preferred the evidence of the specialists, Dr Cameron and Dr Parkington to that of Dr Sheehan and Dr Davis.  The Tribunal accepts Dr Cameron’s evidence that the rigid manner in which the applicant holds his head and neck has no orthopaedic explanation, based on the objective studies carried out which show little more than degenerative changes, normal for his age.  The Tribunal also accepts Dr Cameron’s and Dr Parkington’s evidence that the applicant’s soft tissue injuries were such that he would recover quite quickly, certainly within a matter of months.  The Tribunal finds therefore that the applicant’s whiplash injury and lumbar spine strain were soft tissue injuries from which the applicant has recovered.   

37.     Section 24 of the Act allows for the payment of compensation for any permanent impairment suffered by a person as a result of injury.   Section 24(2) provides that: 

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.

38.     In reliance on the evidence of Dr Parkington and Dr Cameron the Tribunal was satisfied on the balance of probabilities that, while the applicant sustained injury to his cervical spine and lumbar spine, these injuries were temporary.  Any employment-related component had ceased by 10 December 2002.  For the reasons given, the Tribunal was satisfied that the applicant suffered no permanent impairment within the meaning of s24(2) of the Act as a result of the collision because he has fully recovered from any effects that could be attributed to that event.

39.           This means that the applicant’s claims under sections 16, 19, 24 and 27 are unsuccessful.

DECISION

40.The Tribunal affirms the decisions under review.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member  

Signed:         Camille Banks

Associate

Date/s of Hearing  21 and 23 September 2004 (Lismore)
Date of Decision  24 January 2005 (Brisbane)
Counsel for the Applicant         Mr E Johnston

Solicitor for the Applicant          Stone and Partners
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent      Sparke Helmore