Dowey and Telstra Corporation Limited
[2011] AATA 282
•2 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 282
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3243
GENERAL ADMINISTRATIVE DIVISION ) Re GRAEME DOWEY Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Miss E A Shanahan, Member Date2 May 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
.................[signed].....................
Member
WORKERS' COMPENSATION ‑ Soft tissue back injury in 1985 – liability accepted – voluntary redundancy in 1990 – further back injury 1994 – unemployed since 2005 – claim for compensation and medical expenses from 2005 and ongoing – permanent impairment claimed but no application ever lodged – evidence symptomotology due to an unrelated hip disease – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 16, 19, 24
REASONS FOR DECISION
2 May 2011 Miss E A Shanahan, Member 1. Mr Dowey injured his back at work on 27 March 1985. The injury was described as pain and muscle spasm in lumbar region. Telecom (as Telstra was then called) accepted liability on 15 November 1985. As a result of the injury, Mr Dowey lost four days of work.
2. On 11 May 1990 Mr Dowey accepted a voluntary redundancy package from Telecom of $132,000.
3. On 17 July 1995 Mr Dowey lodged a permanent impairment claim for his back injury with the Respondent. However, he did not pursue this claim, as the relevant (1972) act did not provide for claims for permanent impairment for spinal injuries.
4. On 27 July 2009 Mr Dowey contacted the Respondent’s insurer, Allianz, to request that his claim be re-opened and reassessed.
5. On 4 March 2010 Allianz rejected the claim. On 31 May 2010 Allianz reconsidered and affirmed its decision (the reviewable decision). On 3 August 2010 Mr Dowey made an application to the Administrative Appeals Tribunal (the AAT) for review of this decision.
6. Mr Dowey is claiming compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) from the beginning of 2005 until the date of this decision. He is also claiming medical expenses, which have not been costed but according to Mr Dowey are approximately $4,000.
7. Mr Dowey was self-represented and Ms A McMahon of counsel appeared for the Respondent. Mr Dowey and Mr Anthony Buzzard gave evidence in person. Dr Graham Cato, the treating general practitioner, gave evidence by telephone.
8. The parties lodged the following exhibits:
EXHIBIT APPLICANT A1 Letter to the Administrative Appeals Tribunal dated 28 January 2011 A2 Letter from the Applicant to Telecom Australia dated 28 January 2011 A3 Letter from the Applicant to Julia Frederico dated 13 July 2010 A4 Treating doctor's report for Centrelink purposes completed by Dr Graham Cato dated 29 December 2010 A5 Employment Pathway Plan A6 Report headed Overview of Report 11-10-2001 corrected to 11-10-2010 written by the Applicant A7 Document entitled Knowles Group Event written by the Applicant dated 28 July 2010 A8 Document entitled PMG to Telecom 1966 to May 1990 written by the Applicant A9 Applicant’s explanation of his scoliosis dated 10 March 2010
EXHIBIT RESPONDENT R1 The T-Documents (documents lodged pursuant to s 37 of the Administrative Appeals Act 1997) R2 Dr Graham Cato's Medical Records R3 MRI dated 15 February 2011 R4 Medical report by Dr Graham Cato dated 22 September 1995 R5 Medical report by Mr James Stoney dated 11 May 2010 R6 Medical report by Mr Bruce Love dated 17 June 2010 R7 Medical report by Mr Paul Smith dated 13 January 2011 R8 Medical report by Mr Paul Smith dated 11 February 2011 R9 Referral Letter to Mr Paul Smith from Dr Michael Makdissi dated 12 January 2011
BACKGROUND TO THE APPLICATION
9. Mr Dowey commenced work with Telstra's predecessor, the Post Master General's Department, on 26 September 1966. He continued working as an installation technician with Telecom and then Telstra.
10. On 1 May 1990 Mr Dowey accepted a voluntary redundancy package of $132,000. He used that money to pay off the mortgage on his house and his car loan and to purchase several horses. He accepted the redundancy because he considered the salary he was earning at Telstra to be inadequate for his needs.
11. After accepting the redundancy, Mr Dowey worked as an installation technician, builders' labourer, farm hand and gardener for short periods. For many years he has provided services trimming the feet of horses. He owned, trained and rode horses for many years and during this period won 21 professional races. He has not ridden a horse since 2010. Between 2003 and 2005 Mr Dowey received a Centrelink carer's payment for caring for his daughter. He has also received Newstart Allowance (NSA) since 2008.
12. In 1995 Mr Dowey sought compensation for permanent impairment. However, he did not pursue this claim once his solicitors advised him that such compensation did not exist for spinal injuries under the 1972 Act. He has not lodged an application for permanent impairment under the current Act, despite his claim that he is permanently impaired. He dates his permanent impairment from some time in 1990 and attributes it to the injury he suffered at Telecom.
MEDICAL BACKGROUND
13. Mr Dowey first experienced an episode of back pain and spasm in March 1981. This was precipitated by shaking a carpet. He consulted Dr Cato on 8 March 1981 and Dr Cato performed a back manipulation. There are no further reports of back pain in Dr Cato's clinical notes until 1 April 1985. Dr Cato recorded Pt [patient] has hurt back. Dr Cato performed another manipulation and prescribed the non-steroidal anti-inflammatory drug Brufen. Mr Dowey underwent a spinal x-ray but there is no report of the findings available to the Tribunal.
14. Mr Dowey's evidence was that on several days in late March 1985, during an installation, on numerous occasions he was required to jump from the crossbar of a cyclone wire gate to the ground, a height of approximately one metre. In his opinion, this repeated activity his back pain. Mr Dowey lodged a workers' compensation claim and the Respondent accepted liability for pain and muscle spasm in the lumbar spine on 15 November 1985.
15. It appears that Mr Dowey's absence from work on 17 and 18 April 1985 was due to abdominal symptoms, which Dr Cato thought were due to gallstones. Mr Dowey believes they were related to his back pain. There are no further entries in Dr Cato's notes reporting back pain until April 1987, when Mr Dowey hurt his back shoeing horses and later that month when he stepped in a hole. Dr Cato recorded that Mr Dowey was tender over the lumbar fourth and fifth vertebrae. Dr Cato performed manipulation. In May 1988 Mr Dowey again reported back pain and once more Dr Cato performed manipulation.
16. In January 1990 a horse kicked Mr Dowey in the right leg. He sustained bruising to the right knee and shin. At that time, he informed Dr Cato that his right calf had never been 100 per cent since the 1985 accident. A few days later he developed pain in the right sacroiliac joint and was again treated with manipulation. Dr Cato performed further manipulation of Mr Dowey’s lumbar spine in August 1992 and June 1993 but there is no description of any symptoms on either occasion. Dr Cato conducted still further manipulation of the spine on 28 October 1994 and 7 November 1994.
17. On 22 November 1994 Mr Dowey presented to Dr Cato saying he had pinched his lumbar spine two days earlier at work. Once again, the treatment was manipulation. Mr Dowey has provided details of this event. At that time, he was working for the Knowles Group in the construction of retirement villages. He was working as a builders' labourer in confined spaces, lining sewer lines with sand. While he was using a jackhammer, he suddenly developed acute back pain. He considered lodging a workers' compensation claim. He was persuaded by his employer not to do so because of the impact it would have on the employer's workers' compensation premiums.
18. Two weeks later Mr Dowey notified Dr Cato that he had ceased work because of the severity of his back pain. On 9 December 1994, Mr Dowey had an x-ray of his spine. The radiologist concluded there were moderate degenerative changes at the L4-5 disc with early changes at the L3-4 disc. The facet and sacroiliac joints were described as normal.
19. In June 1995 Dr Cato noted for the first time that Mr Dowey had frequent muscle spasm in his back producing a functional scoliosis. When the pain was severe Mr Dowey restricted or ceased his horse riding and use of ladders. Dr Cato performed back manipulation intermittently.
20. Despite his back pain, Mr Dowey ran in two Melbourne marathons, in 1993 and in 1995. He also participated in the Great Train Race (against the Puffing Billy steam engine) in 1993. He worked intermittently in lighter occupations such as gardening during this period.
21. In his report dated 22 September 1995, Dr Cato stated that the December 1994 x-ray showed a small degree of retrolisthesis of L4 on L5, secondary to disc degeneration at L4-5. This is the exact wording of part of the x-ray report dated 9 December 1994. Dr Cato favoured a diagnosis of soft tissue injury rather than a major disc problem.
22. On 8 February 1999 Mr Dowey again injured his lower back while using a shovel but this exacerbation of his back pain was short-lived. Over the next three years, Dr Cato treated Mr Dowey with manipulation once or twice a year. However, Mr Dowey claims he was also attending a chiropractor on a regular basis throughout this period.
23. In approximately 2000 Mr Dowey developed pain in his left hip and this has progressed over the past 10 years. Plain x-rays of the left hip have revealed severe osteoarthritis with cystic change in both the femoral head and the acetabulum. Mr Dowey is currently on the waiting list of a public hospital for a total hip replacement. He has been recorded as having one and a half centimetres of shortening in the left leg due to the changes in the neck of his left femur. He now walks with a limp and this shortening of the left leg accentuates his functional scoliosis.
24. Mr Dowey admitted that in the past five years his lumbar back pain and muscle spasm have improved.
25. In June 2005 Mr Dowey underwent CT scanning of his lumbar spine. The CT scan showed protrusion of the L4-5 disc with degenerative intradiscal gas and narrowing of his disc space. There was slight retrolisthesis of L4 on L5. At the L5-S1 level central disc, protrusion was noted along with marked right sided facet joint degenerative changes and narrowing of the right L5-S1 nerve root exit foramen.
26. An MRI of the spine was conducted on 10 February 2011. It shows spondylosis, that is, diffuse degenerative change affecting the L2-3 and L3-4 discs with a moderate disc bulge at L3-L4, L4-5 facet joint degeneration and moderate disc space narrowing with a broad-based disc protrusion that is greater to the right than the left. There was mild compression of the left L5 nerve root and moderate compression of that same nerve root on the right. A minor change was seen in the L5-S1 disc and there was severe facet joint degeneration at this level.
27. Mr Dowey provided a handwritten list of chiropractic visits between 1985 and 2009. While it is headed chiropractic visits, it also includes visits to a physiotherapist and to Dr Cato. From what the Tribunal can discern, in a 10-year period between 1998 and 2008 there were approximately 23 visits to a chiropractor.
MEDICAL EVIDENCE
28. The Tribunal heard expert medical opinion from three orthopaedic surgeons, a neurosurgeon and a general surgeon. Mr Anthony Buzzard (general surgeon) was of the opinion that any relationship between Mr Dowey's 1985 back injury and his current symptomotology would be minimal. Mr Dowey could not work because of his left hip pathology, which was unrelated to his past work with Telstra. He thought that Mr Dowey's radiological changes and degenerative disease in the lumbar spine were part of the ageing process and not trauma-related. Mr Buzzard postulated that following the left hip replacement Mr Dowey would be fit to resume a sedentary form of work. He assessed any permanent impairment at 0%, in accordance with the Comcare Guide to the Assessment of the Degree of Permanent Assessment.
29. Mr James Stony, Mr Bruce Love and Mr Peter Hamilton (orthopaedic surgeons) were of similar opinion, in that they believed Mr Dowey's left hip osteoarthritis was the major problem and that total hip replacement would result in a marked improvement in any back symptoms. They also believed the changes in his back were degenerative, that is, part of the ageing process.
30. Mr Paul Smith (neurosurgeon) identified Mr Dowey's major medical condition as osteoarthrosis of the left hip and while there were degenerative changes present in the lumbar spine on MRI. He noted that Mr Dowey's back symptoms and muscle spasm had decreased considerably since 2005. Given Mr Dowey's level of activity, particularly in the early 1990s, and in the absence of significant scoliosis, Mr Smith could not see any relationship between Mr Dowey's degenerative spinal disease and his left hip osteoarthritis.
EVIDENCE BEFORE THE TRIBUNAL
31. Mr Dowey's evidence has been summarised under background to the application and medical background. He did provide a considerable amount of evidence regarding the pressures in his life, in particular his daughter's illness, which has been a source of much stress and distress.
32. Mr Buzzard affirmed the content of his report and his opinion was unchanged.
33. In his evidence, Dr Cato confirmed that there were lengthy periods when Mr Dowey had no back symptoms, particularly between 1985 and 1987 as well as in the early 1990s. Dr Cato had documented several other relatively minor episodes of acute back pain as a result of non-work related injuries. Dr Cato attributed the change in 1990 of the site of Mr Dowey's back pain to the right sacroiliac joint as being the sequelae of a horse kick in that year.
34. Dr Cato considered his note taking and recording during the 1980s and 1990s to have been inadequate but this had improved with the passage of time. It was Dr Cato’s recollection that Mr Dowey had suffered from low back pain periodically in the 1980s and early 1990s but that his 1994 work injury, while he was employed by the Knowles Group, had worsened his symptoms. He agreed with Mr Love that Mr Dowey required a left total hip placement and that following such a procedure his back pain would settle. In his opinion, it was the hip pathology which affected Mr Dowey's capacity for work. Dr Cato confirmed that Mr Dowey's back spasm and pain had diminished since 2005. Dr Cato no longer performed back manipulations except for a few patients. He has not manipulated Mr Dowey's back for many years.
RELEVANT LEGISLATION
35. Section 5A of the Act defines an injury as follows:
5A Definition of injury
(1)In this Act:
injury means:
(a) a disease suffered by an employee; or
(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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
. . .
36. Section 16 of the Act provides compensation in respect of medical expenses and like costs and provides as follows:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
. . .
37. Section 19 of the Act concerns compensation for injuries resulting in incapacity and provides as follows:
19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
. . .
This section provides the means by which such compensation is to be calculated.
SUBMISSIONS
38. Ms McMahon relied entirely on the facts and evidence before the Tribunal. She noted that, in the opinion of all of the medical experts, Mr Dowey's incapacity was due to his severe left hip osteoarthritis; and that correction of that disease by left total hip replacement would alleviate any back pain that Mr Dowey now suffers. Ms McMahon contended that any back problems that Mr Dowey now suffers from arise from the more severe back injury of 1994 and not the injury of 1985 for which Telecom accepted liability. Any pain experienced in the region of the right sacroiliac joint related, on Dr Cato's evidence, to Mr Dowey being kicked by a horse.
39. Ms McMahon submitted that in light of Mr Dowey never having lodged an application for permanent impairment, the Tribunal had no jurisdiction in such a claim. Even if such a claim was within the Tribunal’s jurisdiction, none of the expert medical opinion considered any permanent impairment to be greater than 10%.
40. Mr Dowey submitted that the 1985 injury to his back had set the framework of his condition and thereafter his pain flared on various occasions when he suffered further injuries. He dated his permanent impairment from 1990.
TRIBUNAL'S DELIBERATIONS
41. Mr Dowey's compensable injury of 1985 meets the requirements of the definition of an injury in s 5A of the Act. Liability for that injury was accepted in 1985. Dr Cato regarded the treatment that he administered to Mr Dowey in that year as rendering him asymptomatic. Apart from two days in 1985, Dr Cato had never put Mr Dowey off work or recorded in his clinical notes that Mr Dowey was unfit for work. Mr Dowey suffered several minor, non work-related back injuries during 1987. Once more, Mr Dowey responded to manipulation performed by Dr Cato. In 1993 Mr Dowey ran in a Melbourne marathon and the raced against the Puffing Billy.
42. Mr Dowey's acceptance of a voluntary redundancy package in 1990 was for reasons other than any health considerations. In 1995 he did contemplate seeking a lump sum payment for permanent impairment but his legal advisers dissuaded him from pursuing this course, given that such payments were not available under the 1972 Act.
43. In 1994 Mr Dowey suffered what seems to be a more serious work injury, while employed in the Knowles Group and performing heavy manual work including operating a jackhammer. This injury resulted in Mr Dowey resigning from his employment with the Knowles Group in December 1994.
44. While Mr Dowey frequently complained about back pain and muscle spasm to Dr Cato, manipulation has been therapeutic. Dr Cato first recorded the observation of a functional scoliosis due to muscle spasm in 1995. At no time was Mr Dowey referred for an orthopaedic or neurosurgical specialist opinion regarding his lumbar spine condition. X-rays between 1994 and 2011 have revealed degenerative changes in the lumbar spine of a progressive nature consistent with Mr Dowey's age. Since 2005 the lumbar spinal symptomotology has improved.
45. Expert specialist medical opinion, obtained in 2010 and 2011, is unanimous that the cause of any incapacity for work that Mr Dowey now has is due to his severe osteoarthritis of the left hip; and that this condition impacts on any lumbar spinal pain and spasm of paravertebral muscles that he presently suffers. None of the medical specialists has assessed Mr Dowey as having an impairment of 10%. They agree that once Mr Dowey undergoes a left total hip replacement he would have the capacity for work.
46. The Tribunal accepts the submission of the Respondent, that it has no jurisdiction to consider Mr Dowey’s claim for permanent impairment, as he has never lodged an application for permanent impairment under s 24 of the Act.
TRIBUNAL’S DECISION
47. In light of the medical evidence and opinion, the Tribunal affirms the decision under review.
I certify that the forty-seven [47] preceding paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, MemberSigned: ............................[signed].............................................
Associate Grace HorzitskiDates of Hearing 1 and 2 March 2011
Date of Decision 2 May 2011
Advocate for the Applicant Self-represented
Counsel for the Respondent Ms A McMahon
Solicitor for the Respondent DLA Phillips Fox
0
0
1