Cole and Comcare

[2005] AATA 211

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 211

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/721

GENERAL ADMINISTRATION  DIVISION		)
Re		GLENN COLE

Applicant

And COMCARE

Respondent

WRITTEN  REASONS FOR ORAL DECISION

Tribunal Senior Member Josephine KELLY

Date24 February 2005

PlaceNewcastle

Decision     The Determination dated 16 March 2001 is affirmed.

[sgd]  Senior Member Josephine KELLY  

CATCHWORDS

WORKER’S COMPENSATION – ongoing incapacity claim – injury to lower back – injury occurred at work – medical evidence establishes pre-existing degenerative lumbar disc disease – decision affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988, s 19

REASONS FOR DECISION

24 February 2005      Senior Member Josephine Kelly

Background

1.    Mr Glenn Cole, the Applicant, seeks review of a decision made on 16 March 2001, refusing his claim for ongoing incapacity benefits from 28 July 2000, the date of his redundancy from his employer, ADI.  Mr Cole had an accepted claim for aggravation of L5/S1 symptomatic degenerative lumbar disc disease, the date of injury being 9 February 1995.  He received payment of medical expenses.  He also has received a payment for 20 per cent permanent impairment in respect of his lower back.  He has been on a disability support pension since December 2000.

Issues

2.    Is there an ongoing claim for compensation for incapacity pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988?

Consideration

3.    Mr Cole worked for ADI Minehunter as a production facilitator.  The project Minehunter involved the manufacture of six ships.  Mr Cole worked in the production of fibre glass components.  He suffered the accepted injury to his lower back while in Italy in February 1995 shortly after he commenced employment with ADI.  The question in these proceedings was whether or not Mr Cole's redundancy was voluntary.  I find that it was.

4.     He filled out an expression of interest form on 26 May 2000.  The form included the paragraph:

”I also understand that I will not be released under this voluntary redundancy scheme where I am on restricted duty and have been accepted as having an ongoing workers compensation entitlement against ADI.”

5.    Mr Cole also acknowledged having a conversation about voluntary redundancy with Ms Sandra McMillan from Comcare.  He did not have a clear recollection of that conversation and I therefore accept that Ms McMillan's notes, T77, record it accurately.  The notes include the following:

“If voluntary package, Comcare would consider that he has removed himself and we would not pay him Comp.  However, if in the future he would need time off for operation we would, may, payments while in hospital and through the recovery period.” 

6.    Around this time Mr Cole was considering having surgery on his back. 

7.    Mr Benson, counsel appearing for Mr Cole, argued that his client was forced to take redundancy, because as I understand it, he could no longer cope with his job and he thought it was coming to an end in any case because the last ship had been constructed and he had almost finished the work for it.  That conflicts with Mr Cole's own evidence that he was training Mr McCamley to do his job.  I accept Ms Ruth Mitchell's evidence that there is an ongoing need for components of the Minehunter’s to be made.

8.    Mr Cole's job during at least the 12 months before he took voluntary redundancy was structured to meet his limitations.  He worked for 8 hours a day.  He had limits on work that involved bending and twisting, and lifting was restricted to 16 kilograms.  For some time he had been able to ask for assistance when he needed it and particularly in the last 12 months, Scott McCamley assisted him.  Mr Cole had a bench built for his height, a duck board to stand on and a chair provided by Comcare.  He was able to walk around the factory for a break and lie down when necessary, at first behind his bench where he said no one knew where he was,, and later on a superior at ADI told him to go the first aid room and lie down there.

9.    He said that during the last six months before he left he would often lie down, three to four times a week, sometimes for a couple of hours after lunch and on occasion he would sleep through and find everyone had gone home.  Mr Cole was investigated for difficulty with sleeping by Dr Wark in November and December 1999 and it was found:

”...very likely he has upper airway resistance syndrome.” 

10. Dr Wark specifically says:

”lower back pain …. has been causing him significant problems but does not seem to be keeping him awake at night.”

11. The doctor noted that Mr Cole fell asleep at inappropriate times.  That he could easily sleep for two or three hours in the afternoon.  I find on that evidence that Mr Cole’s need to lie down and sleep was not due principally to his back condition, but rather to a sleep disorder.

12. Mr Cole said in his evidence that he told a number of people at ADI that he could not cope with his work. They included Mr McHugh, his supervisor, Mr Reynolds and another man.  He said he had had enough.  However, his evidence was that he was coping.  He walked around the factory for breaks or lay down and slept up to three hours on occasion without interruption or rebuke.  It seems that he could do whatever he wished.  He also said he loved his job and he did not ask for other duties. There was no comment made to Mr Cole from any of his superiors in ADI suggesting that he should take voluntary redundancy.  To the contrary, on his own evidence some of his superiors asked him if he was doing the right thing.  This and the evidence of what his daily activities were suggest that his work was highly valued by his employer. 

13. Mr Cole has applied for one position since leaving ADI.  He was approached to apply for a supervisory position in Melbourne but disappointingly was unsuccessful.  However, he has made no other application for work and has not been actively looking for work.  He has done bits and pieces for a friend, Mr Smith, and spent about 20 days working for a Mr Jed Thompson.  He makes bits and pieces for his aquarium, and goes fishing for an hour or so in the afternoon when it is fine.  He said he thought he could work as a spare parts salesman.  He was also considering following up a possibility of a job with the mother of a friend he knows at Port Macquarie.  That job involves fibre glass work. 

14. It is clear from the evidence that Mr Cole had a pre-existing degenerative lumbar disc disease at the time of the accident and had suffered various back strains.   They included in 1983 while working at Tomago AMI Engineering and in the 1990s while working for BMCH Constructions at Rutherford.  In both cases the evidence is that the strain settles after about one week.  The records of his general practitioner, Dr Mitchell, reflect intermittent back strains including 7 February 1984 when he was welding.  The doctor noted:

”Naprosgesic, light duties/to exercise.”

15. On 1 April and 28 April 1992 the doctor noted:

”L5 strain.”

A medical certificate for several days was noted on each occasion

16. On 31 March 1993 the doctor noted:

”L5 strain radiating both legs.”

17. On 17 May 1994 the doctor noted:

”Pain in lower lumbar region.” 

18. A CT scan dated 31 May 1994 of the lumbar spine noted:

”.... at the L5-S1 level there is a small central disc bulge. This does not cause nerve root compression or thecal  sac distortion.”

19. It noted:

”..lower lumbar pain with some radiation into the left leg.”

20. The MRI reported 24 June 1995 by Hunter Health noted a history of intermittent back pain for 15 years:

“The L5/S1 disc is narrowed and is degenerate.”

21. The report was after the accepted injury and also reported:

“A mid sized central focal disc protrusion at that level but it does not appear to be causing nerve root or thecal sac compression.”

22. A CT report of 1 May 1995 by the same group reported a postero-lateral disc protrusion to the left at the same level of the spine but noted that there was no nerve displacement.

23. Mr Cole had a discogram and cortisone injection by Dr Graham in August 1998 which provided good relief for several months.  At that time the discogram noted:

” …contrast ..... at L5/S1 level consistent with ruptured  annulus.”

24. Mr Cole had caudal block injections performed by Dr Graham in December 1999 and May 2000.  Each gave less relief, the last giving minimal relief.  He also has a history of taking panadeine forte and digesics for pain and also anti-inflammatory tablets.  Surgery had been considered by several doctors, Dr McDonald, Dr Ghabrial and Dr Kuru.  It was not undertaken for various reasons at various times.  I also note that Dr O'Keefe, on 25 September 2001, recommended surgery.

25. In relation to that doctor's report his consideration was based on a history of no back pain or leg troubles prior to the 1995 injury which I find was incorrect.  For the same reason I do not find Dr Zicat's report of assistance.  In his report of 17 December 2004 Dr Kuru notes that he sought approval for surgery from Comcare after September 2003 but on review on 24 February 2004 he thought Mr Cole was bothered with pain in his neck, shoulder and arm. When reviewed again in April 2004 he was not confident that surgical intervention would help Mr Cole's back pain.

26. At that date Mr Cole “was adamant that the predominant amount of his trouble was pain in his back with his leg symptoms being non-specific and less of a problem”.  Dr Kuru's view was that Mr Cole's pain was a result of L5/S1 degenerative disease.  He said:

”Mr Cole's condition is degenerative in nature.  From his history, it was at least aggravated by his injury at work.”

27. Given that report, the history evident in Dr Mitchell's notes and supporting documents and the report and oral evidence of Professor Nade which includes reference to the reports of Dr Gregory Carr, I am persuaded that Mr Coles' condition is one of degenerative changes of the lumbar sacral intervertebral disc and synovial joints with no evidence of lumbar radiculopathy.  The exacerbation or aggravation caused to that condition by the February 1995 injury has ceased.

28. Professor Nade expresses the opinion that Mr Cole is fit for duties similar to his duties when he left ADI.  Mr Cole was able to carry out his duties when he accepted the voluntary redundancy in July 2000.  He was not incapacitated for work as a result of his injury at that time.  On his own evidence Mr Cole could carry out duties as a spare parts salesman or a supervisory position as of today.

29. I am not satisfied that Mr Cole was incapacitated for work as a result of his injury suffered in February 1995 as at the date of the reviewable decision or as of today.

30. For the above reason the reviewable decision is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of
Senior Member Josephine  KELLY

Signed: Sacha Keady
.....................................................................................
  Associate

Date/s of Hearing  23 February 2005
Date of Decision  24 February 2005
Counsel for the Applicant         D. Benson
Solicitor for the Applicant          Reid & Reid
Counsel for the Respondent     R. Henderson
Solicitor for the Respondent     Australian Government Solicitor