Davitt and Telstra Corporation Limited (Compensation)

[2018] AATA 10

Davitt and Telstra Corporation Limited (Compensation) [2018] AATA 10 (12 January 2018)

Division:GENERAL DIVISION

File Number:           2016/6001

Re:Thomas Davitt

APPLICANT

AndTelstra Corporation Limited

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:12 January 2018

Place:Brisbane

The Tribunal affirms the decision under review.

............................[SGD]............................................

Member D K Grigg

CATCHWORDS

COMPENSATION —employees - whether applicant entitled to compensation – whether permanent impairment - whether entitled to non-economic loss - decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Compensation (Commonwealth Government Employees) Act 1971

CASES

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87

REASONS FOR DECISION

Member D K Grigg

12 January 2018

INTRODUCTION & CLAIMS HISTORY

1. Mr Davitt is a former employee of Telstra and has an accepted workers compensation claim for a lumbar–sacral disc prolapse sustained on 27 January 1976 (“compensable condition”).[1]

   [1]Exhibit 1, T Documents, ST3, page 4, Determination: Accept liability lumbosacral disc prolapse on 27 January 1976.

2. On 20 April 2015 Mr Davitt applied for compensation for permanent impairment and non-economic loss for a spinal injury sustained in 1987 under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) (“Claim”).[2] Telstra is a licensee[3] under the Act and as such self-insures its workers compensation claims. The relevant provisions of the Act which refer to Comcare apply to Telstra as a licensee under the Act.

   [2]Exhibit 1, T Documents, T9, pages 38-51, Mr Davitt’s Claim for Permanent Impairment and Non-economic loss dated 20 April 2015.

   [3]Section 4 of the Act defines a “licensee” to mean “a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.”

3. In the Claim Dr Clive Bishop reported that:[4]

   (a)the condition that Mr Davitt is claiming as a permanent impairment is “central canal stenosis & multiple neural exit [and] foraminal stenosis lumbar spine”;

   (b)the changes in Mr Davitt’s spine were severe; and

   (c)Mr Davitt has pain after almost all activity.

   [4]Exhibit 1, T Documents, T9, pages 40-41, Mr Davitt’s Claim for Permanent Impairment and Non-economic loss dated 20 April 2015.

4. On 14 December 2015, following an investigation which involved Mr Davitt being reviewed by a spinal surgeon, Telstra’s Worker’s Compensation Liability Manager determined that Mr Davitt be denied compensation under the Act for permanent impairment and non-economic loss on the basis that:[5]

   (a)Mr Davitt’s impairment was assessed as permanent in 1987, which is prior to the commencement of the Act;

   (b)Section 124 of the Act provides that an impairment must be considered under the Compensation (Commonwealth Government Employees) Act 1971 (“1971 Act”) which was the Act that was applicable in 1987;

   (c)pursuant to section 39 of the 1971 Act, loss of the functional movement of the spine is not an impairment which is entitled to compensation.

   [5]           Exhibit 1, T Documents, T 12, pages 63 – 66, Determination by Liability Manager dated 14 December 2015.

5. On 16 September 2016 Mr Davitt requested a reconsideration of the Liability Manager’s decision.[6]

   [6]Exhibit 1, T Documents, T 13, pages 69 – 106, Mr Davitt’s Request for Reconsideration dated 16 September 2016.

6. By reviewable decision dated 14 October 2016 the determination of 14 December 2015 was affirmed, and the Telstra reconsideration officer found that Mr Davitt’s compensable condition was permanent in 1987 and that therefore the 1971 Act applied.[7]

   [7]           Exhibit 1, T Documents, T 14, pages 107 – 112, Reviewable decision dated 14 October 2016.

7. Mr Davitt then applied for a review of the Reviewable Decision by this Tribunal.[8]

   [8]           Exhibit 1, T Documents, T2, pages 3-20, Application for Review of Decision dated 4 November 2016.

   Compensation Claim History

8. This table sets out the various claims and determinations of compensation made by Telstra, and its predecessors, in relation to Mr Davitt:

Date	Event
08.03.76	Liability accepted under the 1971 Act for a condition described as 'back strain' suffered on 16 October 1975.[9]
12.03.76	Mr Davitt signed a new claim for compensation for a condition he described as 'strain- lower right back' suffered on 27 January 1976 while 'digging trench for new service'[10].
19.05.76	Telstra accepted Mr Davitt’s workers compensation claim for “lumbar–sacral disc prolapse” sustained on 27 January 1976 (“Compensable Condition”).[11]
16.09.86	Mr Davitt made a claim for compensation for “'acute lower back pain' suffered on 1 July 1986 when lifting a pit lid'.[12]
22.06.89	Mr Davitt made a claim for compensation for a 'lower back and left leg' condition said to have been suffered on 28 March 1989.[13]
07.06.90	Mr Davitt made a claim for compensation in respect of 'lower back' conditions suffered on 26 February 1990 and 1 March 1990.[14]
8.06.90	Liability was accepted under the SRC Act (then the Commonwealth Employee's Rehabilitation and Compensation Act 1988) in respect of a 'lumbar spinal degeneration secondary to a ruptured L4/5 intervertebral disc' for a period of incapacity between March and April 1990.[15]
28.02.91	An incident was recorded as having occurred on 11 February 1991 in which Mr Davitt was digging with a spade and felt pain in his lower back.[16]
28.02.91	Mr Davitt made a claim for compensation for 'lower back pain' suffered on 11 February 1991 while 'cable jointing while cleaning pit with spade Christine Ave'.[17]
14.03.91	Statutory declaration of Mr Davitt stating that since November 1990 he found his back more 'prone to pain at more regular intervals' and had suffered pain at home on rec leave and when picking up his daughter on 24 December [1989][18]
09.04.91	Liability accepted under the SRC Act for a condition described as 'recurrence of chronic lumbar backache' with a deemed date of injury of 11 February 1991.[19]
08.04.92	Mr Davitt lodged a claim for permanent impairment compensation.[20]
02.07.92	Telstra determined that Mr Davitt’s impairment became permanent prior to 1 December 1988 and accordingly he was not entitled to compensation (as his condition was 'not listed in the schedule' to the 1971 Act.[21]
26.11.93	Mr Davitt elected to institute proceedings against Telstra for damages for noneconomic loss as a result of the injury he sustained in the course of his employment on or about 11 February 1991.[22]
15.12.93	Mr Davitt served Telstra with court pleadings seeking damages of $20,000 for injuries suffered on 11 February 1991.[23]
05.03.97	Mr Davitt signed a discharge in respect of the 1991 injury and Telstra agreed to pay Mr Davitt $10,000 in full and final settlement.[24]
20.04.15	Mr Davitt applied for compensation for permanent impairment and non-economic loss for a spinal injury sustained in 1987 the Act (“Claim”).[25]
14.12.15	Telstra’s Worker’s Compensation Liability Manager determined that Mr Davitt be denied compensation under the Act for permanent impairment and noneconomic loss.[26]
16.09.16	Mr Davitt requested a reconsideration of the Liability Manager’s decision.[27]
14.10.16	Reviewable decision affirmed the determination of 14 December 2015 and found that Mr Davitt’s compensable condition was permanent in 1987 and that therefore the 1971 Act applied.[28]
04.11.16	Mr Davitt applied for a review of the Reviewable Decision by this Tribunal.[29]

[9]           Exhibit 1, T Documents, ST1, page 1, Determination: accept liability back strain on 16 October 1975.

[10] Exhibit 1, T Documents, ST2 pages 2-3, Claim for compensation dated 12 March 1976.

[11]Exhibit 1, T Documents, ST3, page 4, Determination: accept liability lumbosacral disc prolapse on 27 January 1976.

[12] Exhibit 1, T Documents, ST5, pages 6 – 12, Claim for compensation dated 16 September 1986.

[13] Exhibit 1, T Documents, ST17, pages 27 – 28, Claim for compensation dated 22 June 1989.

[14] Exhibit 1, T Documents, ST21, pages 35 – 37, Claim for compensation dated 7 June 1990.

[15]Exhibit 1, T Documents, ST21, pages 38 – 39, Determination: accept lumbar spinal degeneration secondary to a ruptured L4/5 intervertebral disc dated 18 June 1990.

[16]         Exhibit 1, T Documents, ST 31, pages 54, Incident details recording sheet dated 28 February 1991.

[17] Exhibit 1, T Documents, ST 32, pages 55 – 56, Claim for compensation lower back pain dated 28 February 1991.

[18]         Exhibit 1, T Documents, ST 35, page 60, Statutory declaration of Mr Davitt dated 14 March 1991.

[19]Exhibit 1, T Documents, ST 36, page 61, Determination: accent chronic lumbar backache deemed date of injury 11 February 1991 dated 9 April 1991.

[20]         Exhibit 1, T Documents, ST 37, pages 62 – 63, Compensation claim for permanent injury dated 8 April 1992.

[21]         Exhibit 1, T Documents, ST 40, page 67, Determination of permanent impairment claim dated 2 July 1992.

[22]         Exhibit 1, T Documents, ST 42, page 70, Election to institute action for damages dated 26 November 1993.

[23]Exhibit 1, T Documents, ST 43, pages 71 – 76, Plaint and summons – exacerbation of back condition on 11 February 1991 dated 15 December 1993; ST 44, pages 77 – 79, Statement of particulars of claim dated 21 February 1996.

[24]         Exhibit 1, T Documents, ST 45, page 80, Discharge dated 5 March 1997.

[25]Exhibit 1, T Documents, T9, pages 38-51, Mr Davitt’s Claim for Permanent Impairment and Non-economic loss dated 20 April 2015.

[26]         Exhibit 1, T Documents, T 12, pages 63 – 66, Determination by Liability Manager dated 14 December 2015.

[27]          Exhibit 1, T Documents, T 13, pages 69 – 106, Mr Davitt’s Request for Reconsideration dated      16 September 2016.

[28]Exhibit 1, T Documents, T 14, pages 107 – 112, Reviewable decision dated 14 October 2016

[29]         Exhibit 1, T Documents, T2, pages 3-20, Application for Review of Decision dated 4 November 2016.

LEGISLATIVE REQUIREMENTS

Compensation for a Permanent Impairment

1. The right to compensation for an employee for injuries resulting in permanent impairment under the Act is conferred by section 24 of the Act which relevantly provides:

   (1)  Where an injury to an employee results in a permanent impairment, [Telstra] is liable to pay compensation to the employee in respect of the injury.

   (2)  For the purpose of determining whether an impairment is permanent, [Telstra] 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.

   (3)  Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by [Telstra] under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

   (4)  The amount assessed by [Telstra] shall be an amount that is the same percentage of the maximum amount as the percentage determined by [Telstra] under subsection (5).

   (5)   [Telstra] shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

   (6)  The degree of permanent impairment shall be expressed as a percentage.

   (7)  Subject to section 25, if:

   (a)  the employee has a permanent impairment……; and

   (b)   [Telstra] determines that the degree of permanent impairment is less than 5%

   an amount of compensation is not payable to the employee under this section.

   (my emphasis)

2. “Injury” is defined in s 5A of the Act to mean, so far as this case is concerned:

   (1)…

   (b)  an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;

3. “Impairment” is defined in s 4(1) of the Act to mean:

   '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'.

4. “Permanent” is defined in s 4(1) of the Act to mean “likely to continue indefinitely”.

   Non-economic Loss

5. If Telstra is liable to pay compensation to an employee for a permanent impairment under section 24 of the Act, Telstra is also liable to pay additional compensation in accordance with section 27 to the employee in respect of that injury for any non-economic loss suffered by the employee because of that injury or impairment. Section 27(3) of the Act provides that section 27 does not apply however in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.

6. Section 45(1) of the SRC Act provides that where compensation is payable under sections 24, 25 and 27 in respect of an injury and the licensee would be liable for damages the employee may, prior to being paid under ss 24, 25 or 27, elect in writing to institute an action or proceeding for damages for that non-economic loss.

   1971 Act

7. Pursuant to section 124 of the Act:

   (a)where an injury was suffered before the Act commenced, a person is not entitled to compensation under this Act in respect of that injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage under the 1971 Act: s 124(2)(c);

   (b)where a permanent impairment occurred before the Act commenced, a person is not entitled to compensation under section 24 of the Act if compensation was not payable in respect of that permanent impairment under the 1971 Act: s 124(3)(b).

8. The Act commenced on 12 December 1988.

9. If Mr Davitt has an injury which became a permanent impairment before 12 December 1988, compensation is only payable under section 24 of the Act if it was payable under the 1971 Act.

10. Section 39 of the 1971 Act provides that, lump sum compensation is payable when an injury suffered by an employee resulted in a specified 'loss'. “Loss” is defined in section 39(15) a 'permanent loss'. Section 39(4) sets out a table reflecting the compensation payable for loss of various parts and functions of the body. Loss arising from a lumbar spine condition was not compensable under s.39 of the 1971 Act.

11. Therefore, if the 1971 Act applies, because Mr Davitt has an injury which became permanent before 12 December 1988, compensation is not payable to Mr Davitt.

    ISSUES FOR DETERMINATION

12. The issue for determination is whether Mr Davitt is entitled to compensation for a permanent impairment and non-economic loss under sections 24 and 27 of the Act.

13. Telstra contends that any condition presently suffered by Mr Davitt is due to the underlying, constitutional degenerative process in his spine and that the effects of any work-related conditions, including work related aggravations of the degenerative spine have 'long since ceased', and therefore, any impairment suffered by Mr Davitt is not a result of any accepted compensable condition and compensation under sections 24 and 27 of the SRC is not payable.[30]

    [30]         Telstra’s Submissions dated 16 October 2017, para 14.

14. Alternatively, if the Tribunal accepts that Mr Davitt suffers an impairment because of the L4/5 disc prolapse suffered in 1976 Telstra contends that:

    (a)the impairment became permanent at the time of the discectomy and laminectomy in 1987; and, therefore

    (b)the 1971 Act applies; and

    (c)loss arising from lumbar spine condition was not compensable under s 39 of the 1971 Act.

15. A consideration of whether Mr Davitt is entitled to compensation involves determining whether:

    (a)Mr Davitt suffered an injury or an aggravation of an injury that arose out of, or in the course of, his employment with Telstra; and, if yes

    (b)any condition presently suffered by Mr Davitt is due to the underlying, constitutional degenerative process in his spine;

    (c)the effects of any work-related conditions, including work related aggravations of the degenerative spine have 'long since ceased';

    (d)Mr Davitt suffers a permanent impairment;

    (e)Whether any permanent impairment arose out of the injury on 11 February 1991; or

    (f)If the impairment became permanent before 12 December 1988.

    DID MR DAVITT SUFFER AN INJURY ARISING OUT OF OR IN THE COURSE OF HIS EMPLOYMENT OR IS ANY CONDITION PRESENTLY SUFFERED BY MR DAVITT DUE TO THE UNDERLYING, CONSTITUTIONAL DEGENERATIVE PROCESS IN HIS SPINE?

16. It can be seen from the compensation claim history (see para 9 above) that between 1975 and 1991 Mr Davitt had numerous injuries at work concerning his lower back. As a result of those injuries Mr Davitt has various treatment including epidural injections, physiotherapy and two laminectomies were performed in 1987 and 1989.[31] Mr Davitt ultimately ceased working for Telstra in 1991. Mr Davitt continues to suffer from lower back pain.

    [31]Exhibit 1, T Documents, T5, page 23, Report of Dr Noel Langley dated 27 April 1993; ST6, page 13, Report of Dr Downes dated 15 October 1986.

17. The first hurdle that Mr Davitt must overcome to be entitled to compensation under sections 24 and 27 of the Act is to establish that he continues to suffer from an “injury”. As referred to earlier an “injury” is defined in the Act to mean an injury arising out of or in the course of a person’s employment. The relevant “injury” must have resulted in a “permanent impairment” in order to be compensable under section 24 of the Act.

18. Telstra contends that any condition presently suffered by Mr Davitt is due to an underlying constitutional degenerative process in his spine and that the effects of work related conditions and aggravations have long since ceased. As a result Telstra submits that Mr Davitt does not suffer, or no longer suffers, from a work related injury which has resulted in a permanent impairment for the purposes of the Act and compensation is not payable.

19. Mr Davitt has had 4 injuries compensated by Telstra between 1975 and 1990: -

    (a)Telstra accepted liability under the 1971 Act for a condition described as “back strain” suffered on 16 October 1975;[32]

    (b)Telstra accepted Mr Davitt’s workers compensation claim for “lumbo–sacral disc prolapse” sustained on 27 January 1976;[33]

    (c)Liability was accepted under the SRC Act (then the Commonwealth Employee's Rehabilitation and Compensation Act 1988) in respect of a “lumbar spinal degeneration secondary to a ruptured L4/5 intervertebral disc” for a period of incapacity between March and April 1990;[34] and

    (d)Liability was accepted under the SRC Act (then the Commonwealth Employee's Rehabilitation and Compensation Act 1988) in respect of a “chronic lumbar backache” for a period of incapacity between February and April 1991.[35]

    [32]         Exhibit 1, T Documents, ST1, page 1, Determination: accept liability back strain on 16 October 1975.

    [33]Exhibit 1, T Documents, ST3, page 4, Determination: accept liability lumbosacral disc prolapse on 27 January 1976.

    [34]Exhibit 1, T Documents, ST21, pages 38 – 39, Determination: accept lumbar spinal degeneration secondary to a ruptured L4/5 intervertebral disc dated 18 June 1990.

    [35]         Exhibit 1, T Documents, ST36, page 61, Determination: accept “chronic lumbar backache” dated 9 April 1991.

1. Even though Telstra has accepted liability before, the Tribunal is entitled to consider whether the “injury”/s previously determined and accepted by Telstra, still exist/s to determine whether any further compensation is payable.[36]

   [36]         Telstra Corporation Ltd v Hannaford[2006] FCAFC 87, at [57]-[58].

   Injury History and Medical Evidence

2. On 16 October 1975 Mr Davitt sustained a “back strain” injury at work for which he received compensation from the Respondent equivalent to one day’s sick pay (1^st Compensable Injury”).[37]

   [37]         Exhibit 1, T Documents, ST1, page 1, Determination: accept liability back strain on 16 October 1975.

3. On 27 January 1976 Mr Davitt sustained a “lumbo–sacral disc prolapse” injury at work while digging a trench. (2^nd Compensable Injury”) for which he received compensation from the Respondent for the period 28 January 1976 to 2 April 1976. [38]

   [38]Exhibit 1, T Documents, ST3, page 4, Determination: accept liability lumbosacral disc prolapse on 27 January 1976.

4. On 1 July 1986 Mr Davitt sustained an injury to his back whilst removing a manhole cover.[39]

   [39]         Exhibit 1, T Documents, ST 11, page 19, Letter from telecom Australia for Dr Will dated 26 November 1987.

5. On 16 September 1986 Mr Davitt made a claim for compensation for “acute lower back pain” arising from the 1 July 1986 incident.[40]

   [40] Exhibit 1, ST5, page 9, Claim for compensation dated 16 September 1986.

6. Dr Downes, Orthopaedic Surgeon, reviewed Mr Davitt in October 1986, and found that Mr Davitt had a calcified L4/5 disc protrusion and requested permission from the Respondent to provide Mr Davitt with epidural treatment.[41]

   [41]         Exhibit 1, T Documents, ST6, page 13, Letter from Dr Downes to the Respondent dated 15 October 1986.

7. A week later, on 22 October 1986, Dr Downes reported:[42]

   (a)“The underlying disc problem is a degenerative as they all are, but the two injuries have been aggravating factors that have precipitated the acute attack”;

   (b)Mr Davitt had had an “acute L4/5 disc protrusion”;

   (c)an epidural injection was the appropriate treatment;

   (d)surgery was not the answer; and

   (e)he expected Mr Davitt to return to work within a fortnight but that he should not engage in any heavy lifting.

   [42]         Exhibit 1, T Documents, ST7, page 14, Report of Dr Downes dated 22 October 1986.

8. In November 1986 an occupational therapist reported that Mr Davitt had improved markedly after having two months off work and that it was appropriate he return to work in the near future.[43]

   [43]         Exhibit 1, T Documents, ST8, page 16, Occupational therapy work assessment dated 14 November 1986.

9. On 19 November 1986 Dr Downes confirmed that following the epidural injection Mr Davitt had complete relief of his sciatica but noted that if the symptoms recur he may need a repeat epidural.[44]

   [44]Exhibit 1, T Documents, ST9, page 17, Report of Dr Downes dated 19 November 1986.

10. Mr Davitt returned to work on 2 December 1986.[45]

    [45]         Exhibit 1, T Documents, ST 11, page 19, Letter from telecom Australia for Dr Will dated 26 November 1987.

11. On 6 July 1987 Mr Davitt sustained another injury at work resulting in acute back pain.

12. Mr Davitt was reviewed by Dr Downes again in August 1987 and he reported to the Respondent that Mr Davitt had a “very large calcified extruded L4, five disc. He is very immobile and is suffering from the compensatory scoliosis of quite marked degree. I also feel he… would do extremely well with surgery… I would like permission to perform an L4, 5 disc laminectomy”.[46]

    [46]         Exhibit 1, T Documents, ST 10, page 18, Report of Dr Downes dated 3 August 1987.

13. Dr Downes performed the disc laminectomy on 13 August 1987.[47]

    [47]         Exhibit 1, T Documents, ST 11, page 19, Letter from telecom Australia for Dr Will dated 26 November 1987.

14. Mr Davitt returned to work on 24 November 1987.[48]

    [48]         Exhibit 1, T Documents, ST 11, page 19, Letter from telecom Australia for Dr Will dated 26 November 1987.

15. On 7 December 1987 Dr Peter Will, General Practitioner, reported that Mr Davitt’s back pain had recurred even though he had not engaged in any heavy lifting.[49]

    [49]         Exhibit 1, T Documents, ST 12, page 21, Report of Dr Will dated 7 December 1987.

16. Mr Davitt was reviewed by Dr Downes again in December 1987 and he reported that Mr Davitt was “going to have to have further surgery because CT scans show that he has had further disc protrusion at the same level since the time of the operation… He is not going to get better without the operation. I’m writing to ask permission to bring him into hospital… in January 1988.” [50]

    [50]         Exhibit 1, T Documents, ST 14, page 23, Report of Dr Downes dated 22 December 1987.

17. In February 1988 Dr Vidgen, General Practitioner, reported that Mr Davitt had been completely asymptomatic for 3 weeks.[51]

    [51]         Exhibit 1, T Documents, T 13, page 78, Report of Dr Vidgen dated 8 February 1988.

18. Mr Davitt claimed he had another back injury at work on 28 March 1989 when he was lifting a ladder.[52]

    [52] Exhibit 1, T Documents, ST 17, page 27, Claim for compensation dated 22 June 1989.

19. On 22 June 1989, Mr Davitt made a further claim for compensation for the injury sustained on 28 March 1989.[53]

    [53] Exhibit 1, T Documents, ST 17, page 27, Claim for compensation dated 22 June 1989.

20. Mr Davitt was reviewed in July 1989 by Dr Poulgrain, Neurosurgeon, reported that a CT scan indicated Mr Davitt had left sided L5 root compression which required a laminectomy.[54]

    [54]         Exhibit 1, T Documents, ST 18, page 29, Report of Dr Poulgrain dated 11 July 1989.

21. In February/March 1990 Mr Davitt claimed he injured his back at work digging.[55]

    [55] Exhibit 1, T Documents, ST 21, pages 35-37, Claim for compensation dated 7 June 1990.

22. In April 1990 Dr Poulgrain reported that:[56]

    (a)Mr Davitt had lumbar spinal degeneration secondary to a ruptured L4/5 intervertebral disc;

    (b)the ruptured disc had caused degeneration of the overlying zygapophyseal joint;

    (c)a satisfactory decompression of the nerve root was achieved from the laminectomy;

    (d)Mr Davitt’s present condition appears to be a “progression of the degenerative changes at this level of his lumbar spine. One may expect some degeneration following a ruptured disc in the subsequent surgery. In this man’s case the progression would appear to be a little faster than what one normally expects. In my view therefore this is the natural progression of his pre-existing disc rupture”;

    (e)Mr Davitt now does not have a ruptured disc, but he has degeneration of the spine caused by the rupture;

    (f)in the future he is liable to have episodic pain but that that acute exacerbation should settle within a period of a month on each occasion with bed rest heat and physiotherapy.

    [56]         Exhibit 1, T Documents, ST 20, pages 33 – 34, Report of Dr Poulgrain dated 17 April 1990.

23. On 7 June 1990 Mr Davitt claimed compensation for the back injury he sustained in February/March 1990.[57]

    [57] Exhibit 1, T Documents, ST 21, pages 35-37, Claim for compensation dated 7 June 1990.

24. On 18 June 1990 liability was accepted by the Respondent for a deemed date of injury of 15 March 1990 in respect of a “lumbar spinal degeneration secondary to a ruptured L4/5 intervertebral disc” for a period of incapacity between 12 March 1990 and 9 April 1990.[58] (“3^rd compensable injury)

    [58]Exhibit 1, T Documents, ST21, pages 38 – 39, Determination: accept lumbar spinal degeneration secondary to a ruptured L4/5 intervertebral disc dated 18 June 1990.

25. In July 1990 Dr Downes reported that:[59]

    (a)Mr Davitt is prone to recurrent troubles with his back;

    (b)he has a disc degenerative problem of the spine and is going to have recurrent attacks which has nothing to do with the work he does;

    (c)“the point I am making is that nobody has symptoms specifically related to work that degeneration is a progressive condition which predisposes the patient to recurrent attacks of pain and most recurrences will occur independently of whether a person is working and even if you put Mr Davitt off work permanently he will still have recurrent attacks of pain even if for the rest of his life he is a beachcomber.”;

    (d)Mr Davitt “suffers from generalised disc degeneration of his spine for which he has had surgery on two separate discs. He also has developed secondary degenerative changes in the apophyseal joint systems of his back”;

    (e)“There is no doubt that [Mr Davitt’s] condition is a progression of degenerative change and this is a natural progression of pre-existing degeneration. On the basis of probabilities therefore work factors are not contributing factors to aggravation or acceleration of the condition.”

    [59]         Exhibit 1, T Documents, ST 24, pages 43 – 45, Report of Dr Downes dated 16 July 1990.

26. In December 1990 Dr Downes provided a report to say that:[60]

    The truth is that the degeneration in Mr Davitt spine exists. It is just as impossible for me to say whether the degeneration has occurred because of a pre-existing disc lesion as to explain which comes first, the chicken or the egg... It’s never therefore possible to say that the degeneration has worsened by virtue of the disc having to be removed. The general feeling is that this may be the case simply because you now have removed what remaining disc structure exists and therefore there is more strain on the joint at its hypothetical.

    [60]         Exhibit 1, T Documents, T 13, page 87, Report of Dr Downes dated 3 December 1990.

27. On 11 February 1991 Mr Davitt had a further injury at work causing of back pain whilst he was cleaning out a pit with a spade.[61]

    [61]         Exhibit 1, T Documents, ST 32, page 55, Mr Davitt's claim for compensation dated 28 February 1991.

28. On 9 April 1991 liability was accepted by the Respondent in respect of a “chronic lumbar backache” sustained on 11 February 1991 for a period of incapacity between 11 February 1991 and 5 April 1991.[62] (4^th compensable injury)

    [62]         Exhibit 1, T Documents, ST36, page 61, Determination: accept “chronic lumbar backache” dated 9 April 1991.

29. Mr Davitt ceased working with the Respondent on 28 August 1991.[63]

    [63]         Exhibit 1, T Documents, ST43, page 76, Plaint and Summons dated 15 December 1993.

30. Mr Davitt was reviewed by Dr Poulgrain in April 1992 and he reported that:[64]

    [64]         Exhibit 1, T Documents, ST 38, pages 64 – 65, Report of Dr Paul grain dated 14 April 1992.  

    (a)following Mr Davitt’s surgery in 1987 he was off work for 3 months and then made a full recovery;

    (b)6 months after returning to work he had a recurrence of the back pain but in the lead up to further surgery his pain had recovered completely;

    (c)in 1989 Mr Davitt had a recurrence of the pain which lasted for 4 to 5 months and a further surgery was performed;

    (d)after the second surgery Mr Davitt was off work for 3 months;

    (e)Mr Davitt then told Dr Poulgrain that he had recovered fully;

    (f)Mr Davitt then worked without trouble for 6 months until he pulled a muscle in his back and was admitted to hospital for a further 5 days;

    (g)Mr Davitt told Mr Poulgrain that his severe pain had settled down and that it was only of nuisance value;

    (h)Mr Davitt then engaged in a rehabilitation program but was told that his rehabilitation was not working he was therefore instructed to return to normal duties;

    (i)Mr Davitt told Dr Poulgrain that the rehabilitation doctor did not approve this change in his work status;

    (j)after 3 to 4 weeks back at work he hurt himself again and as at April 1992 was undertaking duties at home;

    (k)the diagnosis is one of spinal degeneration, accelerated by the lower lumbar ruptured discs that he has had in the past;

    (l)Mr Davitt is not totally disabled but has been unable to carry on his previous role;

    (m)no further medical treatment is likely to improve his chances of full time employment and he is liable to recurrent low back pain.

31. In April 1993 Dr Langley reported that:[65]

    (a)Mr Davitt had had 2 operations performed on his back, but he was still having ongoing back problems and back pain. “This is not unusual in this type of case where the patient does have degenerative changes in their spine and it is very difficult to distinguish the difference between the pain that is caused from the degenerative changes and the pain caused from his injuries. However, it would be fair to say that injury does tend to potentiate the degenerative changes and make them worse or accelerate them so that their ongoing symptoms become of a chronic nature”;

    (b)Mr Davitt’s ongoing problems are as a result of not only the injuries but the operations.

    [65]         Exhibit 1, T Documents, T5, pages 23 – 25, Report of Dr Langley dated 27 April 1993.

32. Mr Davitt was reviewed by Dr Langley, Orthopaedic Surgeon, in 1993 who reported that:[66]

    (a)in his opinion “the most significant injury” was the injury experienced in January 1991;

    (b)Mr Davitt will still have an ongoing problem as far as his back is concerned with regard to degenerative changes.

    [66]         Exhibit 1, T Documents, ST 41, pages 68 – 69, Report of Dr Langley dated 23 July 1993.

33. In December 1993 Mr Davitt elected to institute proceedings against the Respondent for damages arising out of the injuries sustained on 11 February 1991.[67]

    [67]         Exhibit 1, T Documents, ST43, Plaint and Summons dated 15 December 1993.

34. On 5 March 1997 Mr Davitt signed a discharge in respect of the 11 February 1991 injury and the Respondent agreed to pay Mr Davitt $10,000 in full and final settlement.[68]

    [68]         Exhibit 1, T Documents, ST 45, page 80, Discharge dated 5 March 1997.

35. In February 2000 Dr Coetzee, General practitioner, reported that:[69]

    (a)the aggravation and chronicity of his back problem was caused by the type of work Mr Davitt had to perform most being employed by Telecom;

    (b)since 1994 he has been largely asymptomatic; and

    (c)Mr Davitt was considered totally and permanently incapacitated in 1990 from working in the telecom industry.

    [69]         Exhibit 1, T Documents, ST 47, page 83, Report of Dr Coetzee dated 24 February 2000.

36. In April 2000 Mr Davitt was reviewed by Dr John Watson, Orthopaedic Surgeon, who reported that in his opinion:[70]

    (a)Mr Davitt has lumbar degenerative spondylosis secondary to a rupture at the L4/5 disc and that there has been a progression of degenerative changes from 1991 to 2000;

    (b)Mr Davitt’s present condition is directly related to his degenerative lower lumbar spine and that there has been a progression of degenerative changes since the original surgeries in 1987 and 1989 which has appeared to have been faster normally expected;

    (c)it is reasonable to assume that Mr Davitt’s employment has contributed to the L4/5 disc pathology and that the nature of the incident of February 1991 has been an aggravation of his previous demonstrated degenerative disease;

    (d)it is highly unlikely that Mr Davitt would have developed his present degree of degenerative changes had the incident not taken place.

    [70]         Exhibit 1, T Documents, ST 49, pages 86 – 89, Report of Dr Watson dated 14 April 2000.

37. Dr Watson reviewed Mr Davitt again in November 2003 and reported that:[71]

    (a)Mr Davitt continues to experience symptoms in his lumbar spine which he directly attributes to a period in 1975;

    (b)at that time Mr Davitt had minor subjective symptoms in the lumbar spine and there was little evidence of ongoing organic pathology.

    [71]         Exhibit 1, T Documents, T7, pages 28 – 32, Report of Dr Watson dated 14 November 2003.

38. In April 2013 Mr Davitt was reviewed by Associate Professor McPhee, Spinal Surgeon, for the purpose of providing Telstra with an independent medical examination and report. Associate Professor McPhee interviewed and examined Mr Davitt in April 2013 and was provided with relevant medical reports. Associate Professor McPhee reported that:[72]

    (a)Mr Davitt suffers from “low back pain due to degenerative lumbar spondylosis” and has “extensive degenerative change in the lower 3 lumbar discs concordant with his history and clinical presentation”;

    (b)“the injury causing the L4/5 disc protrusion in 1975 was significant in contributing to degeneration of the L4/5 intervertebral disc but adjacent disc degeneration is constitutionally based”;

    (c)“the injury in 1975 is significant in the contribution to the claimant’s current status. I believe that his current status can be reasonably attributed to the effects of a compensable injury and subsequent surgical treatment”;

    (d)Mr Davitt continues to suffer the effects of his lumbar spondylosis secondary to an L4/5 disc protrusion with 2 operations which is permanent.

    [72]         Exhibit 1, T Documents, T8, pages 33 – 37, Report of associate Professor McPhee dated 11 April 2013.

39. On 20 April 2015 Mr Davitt claimed compensation for a permanent impairment and non-economic loss.[73]

    [73]Exhibit 1, T Documents, T9, pages 38 –51, Claim for Permanent Impairment and Non-economic loss dated 20 April 2015.

40. In November 2015 Associate Professor McPhee, provided a further report following his examination of Mr Davitt in November 2014. Associate Professor McPhee reported that:[74]

    (a)“Mr Davitt has significant pre-existing degenerative changes in the lumbar spine with canal stenosis and what is seen is the natural progression of the underlying condition”;

    (b)a CT scan of Mr Davitt’s lumbosacral spine conducted on 15 March 2013 shows “advanced generalised lumbar spondylosis”;

    (c)the changes to Mr Davitt spine were moderately advanced and greater than would be expected for someone of his age (65 years);

    (d)all of the changes “are of a constitutional nature and would have occurred irrespective of the injuries sustained and subsequent surgery”;

    (e)“it is probable that all injuries represent nothing more than incidents which have exacerbated the [underlying generation of the lumbar spine]. Had the incidents not occurred the Mr Davitt would have developed a lower back disorder with same signs and symptoms and possibly severe enough to warrant surgery had none of the incidents occurred at work”;

    (f)Mr Davitt’s underlying condition is highly significant.

    [74]         Exhibit 1, T Documents, T 11, pages 56 – 61, Report of associate Professor McPhee dated 25 November 2015.

41. Dr Simon Gatehouse, Consultant Orthopaedic Surgeon, was engaged by Telstra in February 2017 to examine Mr Davitt for the purposes of providing an independent expert opinion. For that purpose, Dr Gatehouse was provided with all the medical reports that were available concerning Mr Davitt’s spinal history between 1976 and 2013.[75]

    [75]         Exhibit 3, Letter from Spark Helmore Lawyers to Dr Gatehouse dated 1 February 2017.

42. Dr Gatehouse provided 3 reports and also gave evidence at the hearing.[76] At the hearing Dr Gatehouse corrected a reference in his reports of 13 September 2017 and 10 October 2017 where the reference:

    (a)in paragraph 1.1 of the 13 September 2017 report to “1998” should read “1988”;[77]  and

    (b)in the fourth paragraph of the 10 October 2017 report to “1998” should read “1988”.[78]

    [76]Exhibit 3, Report of Dr Gatehouse dated 6 March 2017; Exhibit 4, Report of Dr Gatehouse dated 13 September 2017; Exhibit 5, Report of Dr Gatehouse dated 10 October 2017.

    [77]         Exhibit 4, Report of Dr Gatehouse dated 13 September 2017.

    [78]         Exhibit 5, Report of Dr Gatehouse dated 10 October 2017.

43. In Dr Gatehouse’s opinion:

    (a)Mr Davitt’s disc prolapses which were present in the 1980s appear to have been treated appropriately and would have stabilised at twelve months’ following the treatment;

    (b)Mr Davitt’s “ongoing pain…is more related to the ongoing degenerative process in the lumbar spine…I would not consider that there is a direct relationship between the episode of his employment in 1976 and his present pain”;[79]

    (c)Mr Davitt’s impairment became permanent after 1988 because of the aggravations in 1990 which would not have stabilised for a year or two. After this time, when his condition was stable (meaning influencing aggravations would have ceased) in or around 1992 his condition would have become permanent at that time;[80]

    (d)After each surgical episode (in 1987 and 1989) Mr Davitt has been able to work indicating he had recovered. He then had further aggravations in 1989 and 1990 which were treated, and he ultimately ceased work in 1991. “Mr D’s work related injuries in terms of aggravations would have ceased by 1992”. That is, any “work related influence would…have become complete at that stage”.[81]

    (e)“I would not consider this ongoing permanent impairment related to the original condition”[82]

    (f)You cannot “relate ongoing issues with aggravation experiences from episodes in 1990”.

    [79]         Exhibit 3, Report of Dr Gatehouse dated 6 March 2017.

    [80]         Exhibit 4, Report of Dr Gatehouse dated 13 September 2017.

    [81]Exhibit 5, Report of Dr Gatehouse dated 10 October 2017; Exhibit 3, Report of Dr Gatehouse dated 6 March 2017, para 3.10.

    [82]         Exhibit 3, Report of Dr Gatehouse dated 6 March 2017

1. Ms Keating, Mr Davitt’s daughter and his advocate at the hearing, asked Dr Gatehouse at the hearing whether Mr Davitt would have same level of pain if he had not had the accidents? Dr Gatehouse responded that he did not “think those incidents in 1989 have influenced his spine, haven’t changed the natural history of the degenerative spine. There is no causative link.”

2. Ms Keating also told Dr Gatehouse that Mr Davitt had been sent back to work after his rehabilitation had ceased which was against advice and then had another accident. Dr Gatehouse said that even if Mr Davitt should not have gone back to work at that point he did not think it would have had a long-term influence on his spine.

   Consideration  

3. The primary underlying degenerative spine condition did not arise out of his employment with Telstra. However, it is accepted that his condition was, at times, aggravated by his employment, and that he developed some secondary degeneration as a result.

4. Dr Poulgrain (1990) was of the opinion in 1990 that the degeneration in Mr Davitt’s spine was caused by the ruptures L4/5 disc and that as a result he would have recurrent pain episodes.

5. Dr Downes (1990) agreed with Dr Poulgrain regarding the secondary degeneration, however he concluded that he could not say whether the laminectomies worsened the pre-existing degeneration and that the work injuries did not contribute to the degeneration.

6. Dr Langley (1993) opined that Mr Davitt’s problems were as a result of the injuries and operations.

7. In Dr Watson’s (2000) opinion, it was highly unlikely Mr Davitt would have developed the degree of degenerative changes if the incidents had not occurred.

8. Associate Professor McPhee concluded by 2015 that the changes to Mr Davitt’s spine, and the symptoms he experiences, would have occurred even if the incidents at work had not.

9. The evidence of Dr Gatehouse is that while Mr Davitt is suffering from a permanent impairment, his degenerative spine condition, any symptoms he currently experiences are from that condition and not from his workplace aggravations. That is, his current condition did not arise out of his employment with Telstra. Dr Gatehouse reviewed all the medical reports available from Mr Davitt’s treating medical practitioners over the years and also met with Mr Davitt. His evidence is clear that the symptoms Mr Davitt experienced from the aggravations he experienced up until 1990, would by now, 27 years later, have resolved themselves.

10. A summary of the medical evidence is as follows:

Dr Poulgrain (1990)	Dr Downes (1990)	Dr Langley (1993)	Dr Watson (2000)	Assoc. Prof. McPhee (2013)	Assoc. Prof. McPhee (2015)	Dr Gatehouse (2017)
Was the degeneration in Mr Davitt’s spine caused by the ruptures to the L4/5 disc	Yes	No	No	No
Was secondary degeneration in Mr Davitt’s spine caused by the laminectomies	Yes	Yes	Yes	Yes	Yes	Yes
Did Mr Davitt have pre-existing spinal degeneration	Yes	Yes	Yes	Yes	Yes
Did the injuries/surgeries accelerative/worsen the extent of the degeneration	Yes	Unable to say	Possibly	Yes	Yes	Yes
Would Mr Davitt have experienced the changes to his spine, and the symptoms he experiences, if incidents at work had not occurred.	Yes	No	No	Yes	Yes
Would Mr Davitt still be experiencing ongoing issues from episodes in the 1990s?	No

1. The Tribunal accepts the evidence of Dr Gatehouse and the opinion of Associate Professor McPhee. Dr Downes was unable to form a conclusive view although he seems to lean in favour of the view that Mr Davitt would have experienced the changes to his spine and the symptoms he experiences even if the work incidents had not occurred. The Tribunal considers that it cannot place as much weight on the reports of Dr’s Watson, Poulgrain, Langley and Downes as it does on the opinions of Dr Gatehouse and Associate Professor McPhee simply because they are over 17 years old, were prepared very close in time to the incidents as they were Mr Davitt’s treating doctors, and are therefore outdated when one is considering whether Mr Davitt is still suffering from some work injuries today. This is the reason Telstra engaged a more current independent medical opinion.

2. The evidence of Dr Gatehouse and the opinion of Associate Professor McPhee are most relevant in terms of timeliness. Mr Davitt did not present any additional medical evidence to contradict Dr Gatehouse or Associate Professor McPhee.

3. As a result, the Tribunal concludes that it cannot find that Mr Davitt is suffering from a permanent impairment resulting from an injury for which the Respondent had previously accepted liability, as required by section 24 of the Act.

4. Therefore, the Tribunal finds that no compensation is payable to Mr Davitt under sections 24 and 27 of the Act.

5. It is therefore unnecessary for the Tribunal to consider when any injury became permanent. However, the Tribunal also notes that:

   (a)if Mr Davitt had a permanent injury arising out of the 11 February 1991 incident, to which he told Dr Watson he attributed his ongoing symptoms,[83] no compensation would be payable because section 45(2) provides that by making such an election compensation is not payable under sections 24, 25 or 27 after the date of that election. Such an election is irrevocable: section 45(3). At the time of making the election Mr Davitt was legally represented and while the claim was for an amount less than he would have otherwise received under the SRC Act (he ultimately settled for just $10,000) that election is irrevocable. Pursuant to the discharge Mr Davitt is unable to make any further claims against Telstra in relation to damages sustained from the injury suffered on 11 February 1991 or for any other personal injury damages; and

   (b)if Mr Davitt had a permanent injury arising prior to December 1988 no compensation would be payable as result of the 1971 Act.

   [83]         Exhibit 1, T Documents,  ST 49, pages 86 – 89, Report of Dr Watson dated 14 April 2000.

   DECISION

6. The decision under review is affirmed.

I certify that the preceding 86 (eighty - six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

............................. [SGD]...........................................

Associate

Dated: 12 January 2018

Date of hearing

16 October 2017

Advocate for Applicant

Counsel for the Respondent

Solicitors for the Respondent

Ms Keating

Ms Kate Slack

Sparke Helmore Lawyers