Darryl Finch and Telstra Corporation Ltd
[2012] AATA 875
•12 December 2012
[2012] AATA 875
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/4585
Re
Darryl Finch
APPLICANT
And
Telstra Corporation Ltd
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 12 December 2012 Place Brisbane The reviewable decision is set aside and in substitution it is decided the applicant's lumbar pain is attributable to his workplace injury.
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Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Workplace injury – Liability – Whether condition has since resolved – Age related degeneration – Referred pain – Psycho-social factors – Decision set aside and substituted.
REASONS FOR DECISION
Senior Member Bernard J McCabe
12 December 2012
Mr Darryl Finch suffers from back pain that he attributes to his work. His employer, Telstra, accepted liability in 2002 for a condition that everyone now accepts was mis-described. Whatever the description, Telstra determined in 2010 that the condition should have resolved, and that it was no longer liable. Mr Finch has asked the Tribunal to reconsider the matter, as he still experiences back pain.
After reviewing the medical evidence, I am satisfied the reviewable decision dated 25 August 2010 should be set aside. I explain my reasons below.
BACKGROUND TO THE CURRENT PROCEEDINGS
Mr Finch worked as a linesman at Telstra. He was injured on 30 January 1991 when he jumped from a collapsing telegraph pole. He fell several metres and landed on his feet, and then on his right buttock. He fractured his left ankle, but that injury has long since resolved. He also suffered a compression fracture of the T12 vertebra in his back. The T12 vertebra is located in the lower part of the thoracic spine just above the lumbar spine.
The medical evidence suggests the T12 fracture has healed satisfactorily, although it is still evident in radiological images. Mr Finch no longer complains of routine pain at the fracture site. His current complaint relates to pain in the lumbar spine (the lower back). He says he has experienced severe pain in that region of his back since the date of the accident. He says it remains debilitating.
Telstra accepted liability for the lower back pain in 2002. The determination referred to a “lumbar IV disc lesion”. The determination also referred to the T12 vertebra and the left ankle. The medical experts appeared to agree (and the applicant accepts) that the reference to a “lumbar IV disc lesion” does not make much sense although Mr King-Scott, for the applicant, says the precise label does not really matter so long as there is evidence of a problem. In any event, Telstra determined in 2010 that the consequences of the 1991 injury should have ceased, and says any ongoing pain in the lumbar spine must be attributable to some other factor – most obviously age-related degeneration that has become symptomatic for no apparent reason.
Mr Finch takes a different view. Mr King-Scott agreed I should approach the problem by asking this question: if the applicant continues to suffer from pain in his lumbar spine, is the most likely explanation either:
·Referred pain from the fracture at the T12 vertebra; or
·Pain generated by some other mechanical problem in the lumbar spine that was caused by the disruption to the spine at the T12 fracture?
Mr King-Scott says the applicant should succeed if the answer to either question is yes.
For the sake of completeness, I should note the hearing was adjourned shortly after it began on 4 April when it became apparent Mr Finch was being supported in the hearing room by his identical twin brother. There is nothing wrong with that, of course, but no one had mentioned the existence of an identical twin to the medical experts. (I am told the applicant’s solicitors were unaware of the existence of an identical twin, which is not altogether surprising.) We discussed whether it would be useful for the medical experts to examine Mr Gary Finch (the twin) given Telstra argued the applicant’s lumbar spine condition was probably genetic. As it turned out, Dr McPhee, the respondent’s orthopaedic expert, and Dr Campbell, the applicant’s neurosurgeon, were not able to derive much assistance from Mr Gary Finch’s examination. It is therefore unnecessary to discuss this aspect of the evidence any further.
THE MEDICAL OPINIONS
The outcome of this case mostly turns on the medical evidence. There are a variety of opinions expressed by well-credentialed experts who appeared to undertake careful examinations. Some of the reports are older. At least one of the medical experts who provided a report was unavailable to give evidence at the hearing.
Mr Clark, for the respondent, contended the records did not establish the applicant has consistently complained of back pain. Mr Clark referred in particular to notes from the physiotherapist (exhibit 9) which he said recorded complaints of pain but did not refer to the lumbar spine. Mr Clark also noted the applicant did not speak of constant pain in the lumbar region when he was examined by Dr Parkington in 2002. Mr King-Scott did not accept the notes in exhibit 9 should be interpreted to say there was no complaint of back pain. The notes are confusing, as these things can sometimes be. While the notes do not expressly refer to lumbar pain, the diagram in the notes does appear to suggest problems in the lumbar region. I also note there are references to lower back pain in the reports of Dr Walters in 1991 (which is not surprising, given the proximity to the date of the injury) and in 1995 (exhibit 3).
I am satisfied the evidence, including the applicant’s testimony, suggests a history of pain in the lumbar region of the spine since the time of the accident in 1991.
The medical evidence as a whole suggests three alternative explanations for the applicant’s back pain. (It is possible that the pain might be explained by more than one factor, but – as Dr McPhee explained – it is very difficult to distinguish between sources of pain.) The competing explanations are:
·Normal age-related degeneration that has become symptomatic independently of anything that happened in the workplace. Dr McPhee’s written reports were the principal evidence offered by Telstra in support of this view, although it also finds support in the evidence of Drs Khursandi, Turner, Parkington and Walters. None of the other experts appeared to dispute there was age-related degeneration, although there was little evidence to suggest there was anything unusual about its extent.
·Referred pain from the crush fracture at T12, or perhaps from some other disruption to the spine that is a consequence of the fracture. Dr Campbell is the principal expert cited by the applicant, although his view also drew some support from Dr McPhee’s oral evidence at the hearing when he agreed an obvious explanation for the applicant’s pain was the “red-flag” of a crush facture at T12. (Dr McPhee candidly admitted in his oral evidence that our inability to image pain means its quality, intensity and source can be something of a mystery.) I note Dr Burke, an occupational physician, and Drs Khursandi and Parkington doubted pain would continue to radiate from the fracture site to the lower back more than two years after the original fracture had healed.
·Psycho-social factors. Drs Burke and Khursandi noted the presence of Waddell’s signs upon examination. Waddell’s signs are indications that a patient may not have a physical explanation for the pain of which he or she is complaining. The patient may be malingering, but the pain may also be the product of psycho-social factors or even a psychiatric condition that causes the patient to believe they are in pain. I note Dr McPhee offered some support for this view as well when he suggested in evidence that he thought the pain was like a somatic referred pain, although he cautioned it was difficult to distinguish between sources of pain.
The reference to the possible contribution of psycho-social factors was tantalizing. Dr Burke was a particularly impressive witness who was obviously familiar with all of the relevant literature. As an occupational physician, he also had the opportunity to make a more holistic view of the applicant’s complaints. But he was unable to say what those psycho-social factors might be. I do not criticise him for that: he was merely flagging these matters for further enquiry, most obviously by a psychiatrist. Unfortunately, neither side sought an opinion from a psychiatrist, so the possibility of psycho-social factors remains a matter of speculation.
I considered adjourning the matter and asking the parties to seek a psychiatric opinion, but I have decided that is unnecessary in light of the oral evidence from Dr McPhee. While Dr McPhee offered a number of alternative explanations for the applicant’s reported symptoms in the lumbar spine, he conceded an obvious explanation was the work-related fracture at T12. He is an eminent expert in the field of spinal surgery, so his view must count for a good deal. Dr Campbell is a neurosurgeon; he prepared a medico-legal report but he also saw the applicant as a patient. He is in a good position to talk about the applicant’s problems. While I acknowledge the contrary opinions of a number of the other experts on the possibility of referred pain more than two years after the initial fracture, I am particularly persuaded by Dr Campbell’s view on this question in light of Dr McPhee’s evidence, given Dr McPhee’s objectivity and credentials.
CONCLUSION
I am satisfied the best explanation for the applicant’s reported symptoms in the lumbar spine is the crush fracture at T12 that he sustained in a work-related incident in 1991. I would therefore set aside the decision under review and decide in substitution that the applicant’s lumbar pain is attributable to his workplace injury.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 12 December 2012
Dates of hearing 4 April 2012 and 29 - 30 November 2012
Counsel for the Applicant Mr R King-Scott Solicitors for the Applicant Dale & Fallu Solicitors Counsel for the Respondent Mr C Clark Solicitors for the Respondent DLA Piper Australia
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