Brian Butler and Telstra Corporation Limited
[2012] AATA 380
•25 June 2012
[2012] AATA 380
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/1578
Re
Brian Butler
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 25 June 2012 Place Sydney The decision under review is set aside. I note that this will return matters to their original position before the decision was made and Mr Butler will continue to receive compensation for medical treatment and household assistance in the form of lawn mowing.
..........[sgd]..............................................................
Ms N Bell, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – lumbar spine condition – whether facet joint condition pre-existing – whether degenerative back condition – aggravation or underlying condition – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Ms N Bell, Senior Member
25 June 2012
Brian Butler was employed by Telstra as Manager of the NSW Workers’ Compensation Group. He had three incidents concerning his lower back while at or in the course of his work: first, in September 1991 when lifting a large container of water; second, in 1994 when bending to lift a briefcase off the floor; and third, in a car accident in 1995. Telstra accepted liability for Mr Butler’s injury when he claimed compensation following the second incident. Over the years he has taken little time off for his back and has mainly sought compensation for pain medication, physiotherapy and home assistance in the form of lawn mowing. In January 2011, Telstra decided that from November 2010 and “presently” it had no further liability to pay medical expenses or household services for Mr Butler.
Telstra contended that Mr Butler’s lower back condition had never arisen out of or in the course of his work. Rather, Telstra maintained, he had a pre-existing facet joint condition and that was the cause of the symptoms that commenced in 1991. In the alternative, Telstra submitted that even if Mr Butler’s condition was caused by his work, then current medical opinion is that it is preferable for sufferers of low back pain to move through the pain and Mr Butler would benefit from mowing his own lawn.
Mr Butler contended that the incidents in the course of his work caused a disruption of the discs in his back and that any facet joint condition has been directly related to that disc disruption. Mr Butler also contended that, even if he did have a pre-existing facet joint condition, it was made symptomatic by the incidents and is therefore compensable. He maintained he still needs medical treatment and assistance with mowing the lawn.
ISSUES
The issue for me to consider is whether Mr Butler’s symptoms were caused solely by a pre-existing facet joint condition.
If the answer to that question is in the affirmative, then Mr Butler’s current symptoms do not arise out of his employment and I must affirm the decision under review.
If the answer is no, then I must consider whether he still requires medical treatment and assistance with lawn mowing.
ARE MR BUTLER’S SYMPTOMS CAUSED SOLELY BY A PRE-EXISTING FACET JOINT CONDITION?
In September 1991, when lifting a large water container, Mr Butler felt sharp pain in his back at belt level. He continued working, expecting the pain, which included sciatic pain, to resolve. He consulted his general practitioner on about eight occasions and was given injections. The pain subsided after about six months. Mr Butler said he made no claim for compensation in respect of this incident because he had a good manager who allowed him to use his car to visit the doctor and he had no time docked. He said he took only non-prescription medication for the pain and had nothing to claim for.
In May 1994, while staying in Melbourne on business, Mr Butler bent to pick up a briefcase and experienced excruciating pain in his lower back. He said he could not move and was forced to lie on the floor for five hours. He said his pain was so bad that when he finally reached a vehicle it took him five minutes to get into it. He said he had to call his wife in Sydney to come and get him and he had to fly back to Sydney with an upgrade to business class that he paid for himself.
Once back in Sydney he saw his general practitioner Dr Oey, who referred him to a physiotherapist and prescribed anti-inflammatory medication. He said he saw the physiotherapist for approximately nine months, took a few weeks off work and when at work did the exercises recommended to him two or three times per day for ten minutes each time. He was also referred to Dr Kirsh, orthopaedic surgeon, who recommended surgery which Mr Butler declined, having observed many surgeries with poor outcomes. Mr Butler made a claim for compensation in respect of this incident and liability was accepted by Telstra after he was examined by a further specialist. Because of his position in the Workers Compensation group, Mr Butler ensured that his file was administered by another state office so there could be no suggestion of favouritism.
In June 1995, Mr Butler, while travelling to work, had a car accident following which he experienced lower back pain. He described it as a reasonably low impact collision. He took two weeks off work and was prescribed anti-inflammatory medication. He said his pain lasted only one month, but he continues to have back spasms.
Mr Butler said he gave up sport after the 1994 incident because he “got to know (his) back”. He said he found that light tennis and golf aggravated his back.
Mr Butler described his spasms as lasting seven to nine days and making it difficult to move, although he continues to go to work as his current employer (Optus) allows him to work from home when he needs to, using his computer. He said he does the exercises that physiotherapists have taught him – hamstring stretches and abdominal strengthening exercises – for 30 minutes, morning and night. He said he visits physiotherapists when he has a spasm but usually only attends for two of the recommended eight sessions.
He described his back pain as generally a mild ache, not always severe. He also described infrequent pain down his right leg.
Reporting at the request of Telstra (then Telecom) on 26 May 1994, Dr G Kirsh, orthopaedic surgeon, said Mr Butler suffered from a recurrent disc injury and referred him for an MRI scan. Also reporting to Telstra, Dr K Fuller, orthopaedic surgeon, said on 2 June 1994 that the MRI showed a postero-central bulge at L4/L5 level. He also found, on the basis of examination, some left L3/L4 facet joint dysfunction. His opinion was that Mr Butler’s complaints were attributable to his injury in 1994 “although it would appear that [the] earlier injury in 1991 is responsible to a significant degree to recent back pain”.
In August 1994, Dr Kirsh referred Mr Butler for a bone scan to investigate whether his aposhyseal joints were inflamed. In the meantime Dr Grant, neurosurgeon, reported to Telstra on 15 August 1994 that Mr Butler’s ongoing symptoms were indicative of disc prolapse and associated apophyseal joint condition should be investigated and the bone scan would identify this.
The bone scan of 19 August 1994, was reported by Dr Monaghan as showing “no definite scan evidence of active lumbar facet joint arthritis”. Dr Korber, in his report of 10 October 1994, said “specifically the apophyseal joints do not demonstrate increased uptake”.
I note that Dr Korber, provided a comprehensive analysis of all investigations into Mr Butler’s back in that report and also noted that a lumbar spine CT scan on 3 October 1991 showed a minimal disc bulge at L4/5 as well as early osteoarthritis of the right apophyseal joint at L4/5. He also noted the possibility of a disc protrusion and lamented the thickness of the slices in the scan which were, he thought, too thick to adequately examine the discs. In addition, he noted that a lumbar spine CT scan in October 1994 showed posterior osteophyte formation at the right L4/5 apophyseal joint consistent with early osteoarthritis. He also reported that a MRI scan on 23 May 1994 showed dessication of the L4/5 and L5/S1 discs consistent with degeneration together with a posterior disc protrusion at L5/S1, more prominent on the right side. He considered it possible that the disc lesion was present in 1991 and not imaged. He also considered:
As to whether a negative bone scan excludes the possibility of osteoarthritis, this is not the case. There are also multiple soft tissue and ligamentous structures surrounding any joint. These could be symptomatic without a bone scan being positive. An osteoarthritis that is stable and not altering would be normal on a bone scan.
Dr K Chrichton, sports medicine practitioner, in October 1994, after reviewing Dr Korber’s report of the investigations to date, said he “… would interpret his problems as being related to his discs … It is difficult to define whether his degenerative facet joints are contributing to his pain but given the negative bone scan in the area and quite definite disc pathology on MRI, I would suggest that facet joint arthropathy is more secondary than the primary cause of pain.”
Dr M Besser, neurosurgeon, said in October 2002 that he suspected Mr Butler’s degenerative spondylitic changes affecting the facet joints at L4/L5 and L5/S1 account for a lot of his symptomatology.
Dr G Rosenberg, orthopaedic surgeon reported in September 2003 that:
An MRI scan from 1994 shows a right sided protrusion of the lumbosacral disc with a large annular tear. The most recent test is an MRI scan from 1999. This shows a left sided bulge at the L4/L5 disc. There is a central protrusion at the lumbosacral disc. Both are dessicated and there is some adjacent facet joint disease.
The balance of expert opinion, from 1994 to 2003, is that disc disturbance arising from all or some of the incidents is responsible for Mr Butler’s symptoms in his previously asymptomatic lower back. Some of the experts refer to the role that may be played by the facet joints, and Dr Besser focused on those entirely, but the majority focus on the disturbance to the discs as the primary cause of Mr Butler’s pain.
In November 2010 Telstra obtained a report from Dr R Reid, general practitioner. Dr Reid considered that Mr Butler’s ongoing low back pain, the existence of which he seemed to doubt, was explained by apophyseal joint arthritis. (I enquired of each expert witness whether apophyseal joints are the same as facet joints; Drs Reid and Maxwell said the terms are interchangeable, while Dr Wallace said they are different structures with the facet joints situated at the back of the spine while the apophyseal joints are further forward and closer to spinous process). He considered that intervertebral disc degeneration, bulging and protrusion are “very usual” and less likely to have caused Mr Butler’s symptoms. He considered an annular tear in 1994 was responsible for Mr Butler’s acute pain and thought that it would have resolved in a matter of days. He saw the three incidents as unrelated to Mr Butler’s work.
In oral evidence, Dr Reid was critical of many of the specialists who had provided their opinions. He said he found deficiencies in the reports by Drs Fuller, Wallace, Crichton, Grant and Korber. When it was put to him that he takes the view that causes of back pain are matters of “absolute medical certainty”, he answered “mostly”. He said he considered the 1991 CT scan to be conclusive evidence of pre-existing facet joint degeneration. He was adamant that discs do not of themselves cause pain, although he did allow that a disc disturbance can create instability in a facet joint and contribute to degeneration.
When asked whether a negative bone scan means there is no inflammation, he answered “yes”. When asked whether the absence of inflammation means there is no symptomatic osteoarthritis, he answered “no” and said osteoarthritis can be symptomatic without inflammation.
Dr R Wallace’s report of 12 August 2011 was somewhat short and uninformative, except to provide his opinion that his lumbar spine condition was caused by the incidents at work. Dr Wallace is an orthopaedic surgeon. His oral evidence was much more informative.
Dr Wallace considered that facet joints damage and damage to the discs are intimately connected and that a disc injury and subsequent degeneration can accelerate the degeneration of the facet joint. He referred to reduced disc height caused by disc damage and degeneration and the consequent alteration of the mechanics of the back that place the facet joints out of alignment. He said that, in any event, it is very difficult to differentiate definitively between discogenic pain and facet joint pain because they have a very similar pain profile.
Dr Wallace said he based his conclusion that Mr Butler’s lumbar spine condition had been caused by the incidents at work on the following:
·a history of no previous injury to or symptoms in Mr Butler’s lumbar spine;
·the significance of the first incident and injury in that an office worker, as opposed to a manual worker lifted a 20 kilogram bottle of water;
·a history of examination, pain profile and investigations consistent with an injury to the lower two lumbar discs.
Dr Wallace remained firm in his view that investigations alone do not form a reliable basis for diagnosis. He maintained that a combination of pain profile, history, examination and the mechanism of injury together with the results of scans and imaging are the basis of a sound opinion.
While Dr Wallace accepted that the 1991 CT scan showed a narrowing of the right apophyseal joints, he was firm that the 1994 bone scan means that there was no increased blood flow to the facet joint and therefore no significant facet joint pathology. He said bone scans are very sensitive and a much better investigation for detecting facet joint arthropothy than are X-rays or CT scans.
Dr D Maxwell, orthopaedic surgeon, reported on 17 March 2011 that Mr Butler is “predisposed to develop facet joint inflammation at the L5/S1 facet joint on the right because of the lack of muscular support from his back and other constitutional factors”. He considered Mr Butler suffers from “some mild inflammation of the L5/S1 facet joint on the right” having suffered “recurrent facet joint sprains”. He set much store by Mr Butler’s level of activity and his view that he is overprotective of his back. He maintained that the disc is a relatively painless structure that causes no chronic pain in the absence of a significant disc protrusion with nerve impingement. However, he allowed for the possibility that Mr Butler had suffered referred pain in his right leg.
In oral evidence, Dr Maxwell said that he prefers the view, based on his clinical experience, that the facet joints are the more likely site of back pain, but he agreed that there is no consensus about what causes back pain. He said, “[t]here’s certainly not a lot of evidence that any one particular area is responsible for pain. My experience is that the facet joints are more responsible, but other people don’t agree with me …”. Dr Maxwell said he based his view on the experience of injecting people with local anaesthetic and cortisone into the facet joint and that “they often get off the couch and they’re cured. Now they get better anyway but it just seems to speed up the resolution of that pain and my reason for implicating the facet joints in chronic back pain is because I have an awful lot of people who I just get doing exercises to unload the facet joints and strengthen the supporting muscles and after six weeks of these exercises their pain has gone and they’ve often had pain for years.” Dr Maxwell emphasised the importance of exercises to strengthen the stomach muscles. Dr Maxwell had earlier agreed that Mr Butler’s exercise regime includes abdominal strengthening exercises.
Against a background of multiple expert opinions up to 2003 that balances in favour of disc disturbance as the cause of Mr Butler’s symptoms, the opinions of Dr Reid and Dr Maxwell strand almost alone in favour of the facet joints as the sole cause of Mr Butler’s pain. I note the agreement of Dr Maxwell that opinions differ as to the site of back pain and that it is still very much a moot point. He volunteered that many do not agree with his view that the facet joints are paramount as the source of back pain. Dr Reid, by contrast, was adamant that the causes of back pain are a matter of “mostly” absolute certainty. I found this to be a rigid and unreflective approach to the question.
I preferred the view of Dr Wallace who admitted to the difficulty of differentiating definitively between discogenic pain and facet joint pain given their similar pain profile. His acceptance of the history given to him by Mr Butler, whom I found to be a credible and understated witness, and his consideration of a wide range of factors including the significance of the relevant incidents, the particular pain profile, the investigations and the examination, was persuasive. He allowed for the possibility that in Mr Butler there was, by way of disturbed alignment from narrowing of disc spaces, some interplay between the disc damage and the narrowed facet joint detected in 1991. I found this to be a thoughtful and measured approach. I also found his interpretation of the results of the 1994 bone scan to be more convincing. If the culprit was the facet joints, then it would be expected that a bone scan would indicate something of significance in relation to them. Even if an absence of inflammation does not rule out the existence of arthritis, it is surprising that a sensitive bone scan of the site of the cause of acutely severe pain would show a normal result.
I am also mindful that prior to the incidents Mr Butler was asymptomatic. I consider it likely that, even if the sole source of Mr Butler’s pain is his facet joints, any pre-existing condition was rendered symptomatic either by the disc disturbance suffered in the incidents by way of the process described by Dr Wallace or by direct effect on the facet joints. I note Dr Reid’s agreement with the proposition that such a direct effect was probable.
I am satisfied that Mr Butler’s symptoms were not caused solely by a pre-existing facet joint condition.
DOES MR BUTLER STILL REQUIRE MEDICAL TREATMENT AND ASSISTANCE WITH LAWN MOWING?
Mr Butler’s evidence and the histories he has given various examining specialists was that over the years he has learned about what aggravates his back condition. He said he has followed a rigorous program of abdominal strengthening exercises, performed twice every day. His exercises had initially been under the advice of a physiotherapist. He said he still has need of physiotherapy when his pain flares up, but that he generally does not complete the eight weeks of therapy recommended by the physiotherapist because he finds he has relief after two sessions. Mr Butler said he also has occasional need of anti-inflammatory and pain relief medication. On this basis he is able to continue employment uninterrupted by incapacity from his lower back condition.
No challenge was raised by Telstra to Mr Butler’s need for medical treatment, apart from the basic contention that his condition was not caused by his employment. No challenge was made to Mr Butler’s evidence of his symptoms. It was not put to him that he is exaggerating his symptoms as Dr Reid suggested. My central inquiry in relation to this issue then is whether Mr Butler needs assistance with his lawn mowing.
Drs Reid and Maxwell considered Mr Butler was unduly fearful of a recurrence of back pain and traced this back to the very severe pain he experienced in the 1994 incident. Dr Reid, in particular, was very critical of Mr Butler’s approach to his injury and considered he had exaggerated his symptoms. Dr Reid considered that Mr Butler could mow his lawn but that he was “terrified” of a recurrence of severe symptoms. His view was that even with severe pain where there is a will people can do all things. He acknowledged that he considered that people should sometimes place themselves in situations where they experience an exacerbation of their condition. Given the doubts that Dr Reid expressed about the history given by Mr Butler and his statement that he considered him to have been exaggerating his symptoms, and given that I accept Mr Butler as a truthful and understated witness, I cannot give weight to Dr Reid’s opinion as to the activities that should be engaged in by Mr Butler.
Dr Maxwell considered that Mr Butler should be encouraged to mow his lawn and “not let his back tell him what to do”. Dr Maxwell cast Mr Butler as “anxious” and overprotective of his back. I have already mentioned Dr Maxwell’s concentration on the importance of abdominal strengthening exercises and Mr Butler’s strict adherence to such a regime of exercise. I note Dr Rosenberg’s comment in September 2003 that Mr Butler’s “symptoms are manageable as he is very diligent, performing a self-exercise program”.
I also note Dr Hudson’s advice to Mr Butler in September 1999 to avoid activity that may strain his lower back and, in particular, to avoid mowing lawns. Despite the opinions of Drs Reid and Maxwell, there is no evidence of Mr Butler having been given any other advice by treating doctors in respect of activities such as lawn mowing nor of him having been given any assistance in moving towards this activity himself. Drs Reid and Maxwell stand alone in their assessments of Mr Butler as “anxious” or “terrified” about strenuous physical activity and their firmly held views that he should be mowing his lawns. I am not persuaded by their views. In the absence of any more persuasive opinion I do not find that Mr Butler no longer needs assistance with his lawns.
DECISION
The decision under review is set aside. I note that this will return matters to their original position before the decision was made and Mr Butler will continue to receive compensation for medical treatment and household assistance in the form of lawn mowing.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.
........[sgd]................................................................
Associate
Dated 25 June 2012
Dates of hearing 30 January and 16 April 2012 Counsel for the Applicant Ms R Henderson
Solicitor for the Applicant Graham Jones Lawyers Counsel for the Respondent Mr A Berger Solicitor for the Respondent Australian Government Solicitor
0
0
0