Geyman and Telstra Corporation Limited (Compensation) - [2016] AATA 977

Geyman and Telstra Corporation Limited (Compensation) [2016] AATA 977 (1 December 2016)

Division

GENERAL DIVISION

File Number(s)

2014/5241

2016/3424

Re

Michael Geyman

APPLICANT

And

Telstra Corporation Limited

RESPONDENT

DECISION

Tribunal
Dr Damien Cremean, Senior Member

Date 1 December 2016

Place Melbourne
The Tribunal affirms the decisions under review.
..................................[sgd]......................................
Dr Damien Cremean, Senior Member
COMPENSATION — claim for medical treatment and incapacity — claim for permanent impairment —complaint of back pain — whether injury which arose out of or in the course of work — inconsistency in Applicant’s evidence – need for corroboration of Applicant’s evidence to establish injury — no corroboration — no injury established – decisions affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 4(9), 5A, 5B, 14.
Cases
Telstra Corporation Ltd v Bowden (2012) 229 ALR 61
Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
1 December 2016
Introduction

The Applicant seeks review of two decisions of the Respondent. The first reviewable decision, made on 2 October 2014, affirmed a determination made on 21 August 2014 that the Respondent was not liable to pay the Applicant compensation under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for medical treatment and incapacity in respect of acute low back strain sustained on 5 February 2013.
The second reviewable decision, made on 29 July 2016, affirmed a subsequent determination by the Respondent that it was not liable to pay compensation for permanent incapacity arising from the same injury under section 24 of the Act in respect of the same injury.
The Applicant has been employed by the Respondent in various roles since about 1990 (stated by the Applicant in evidence), or 1982 (according to the claim form completed by Telstra). He claims that he suffered lower back strain while lifting a computer cable in the course of his work on 5 February 2013. The Applicant’s claim in respect of such claimed injury was lodged on 14 March 2013.
The matter was heard by the Tribunal between 27 July 2016 and 29 July 2016. The Applicant was represented by Mr Simon Weir of Counsel, instructed by Angela Sdrinis Legal. The Respondent was represented by Mr John Wallace of Counsel, instructed by Clarke Legal.
At the hearing affirmed evidence was given by the Applicant and by Dr Boris Mezhov, the Applicant’s General Practitioner. The Respondent called Mr Ronald Haig, consultant Orthopaedic Surgeon, who gave affirmed evidence.
In what follows, an outline of the evidence of the Applicant and these two witnesses is given.
Outline of evidence
Applicant
The Applicant is aged 61 and was born on 31 March 1955. He is married with adult children. He has worked for the Respondent in various roles, including as a Field Technician and a Constructer Repairer since about 1990. Before that he worked as a storeman for Coles Myer. The Applicant is still working for the Respondent, but on light duties four days a week.
The Applicant confirmed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 977
Decision Date: 1 December 2016

CaseChat Overview and Summary

This matter concerned a claim for compensation brought by the Applicant, a 61-year-old employee of Telstra Corporation Limited (the Respondent), against the Respondent. The Applicant alleged that he sustained an injury on 5 February 2013 while working alone at the Rialto Towers in Melbourne. He claimed that while bending to pick up a computer cable, he experienced a sharp pain in his lower back, which intensified throughout the afternoon and prevented him from walking. The Applicant sought to establish that this incident caused his current back and leg pain, despite having previously worked for the Respondent in physically demanding roles and having signed a claim form that contained unanswered questions regarding prior similar symptoms, medical treatment, or compensation claims.

The central legal issue before the Senior Member was whether the Applicant's current condition was attributable to the incident on 5 February 2013, as alleged, or if pre-existing degenerative changes or prior injuries were the primary cause. Specifically, the Senior Member was required to determine the truthfulness and accuracy of the Applicant's account of the incident and its consequences, and to assess whether the unanswered questions on the claim form regarding previous similar injuries or treatments were relevant to the determination of liability.

The Senior Member considered the Applicant's evidence, which detailed the incident and the immediate onset of severe pain. However, the Senior Member also noted the Applicant's admission that he could not recall completing the claim form and that the answers to questions concerning prior similar symptoms, medical treatment, or compensation claims were left blank. The Senior Member acknowledged that the Respondent had initially accepted liability for acute low back strain. The Senior Member's reasoning would likely involve an assessment of the credibility of the Applicant's testimony in light of the unanswered questions on the claim form and the potential for pre-existing conditions to be the true cause of the Applicant's ongoing symptoms.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In what follows, an outline of the evidence of the Applicant and these two witnesses is given.Outline of evidenceApplicant The Applicant is aged 61 and was born on 31 March 1955. He is married with adult children. He has worked for the Respondent in various roles, including as a Field Technician and a Constructer Repairer since about 1990. Before that he worked as a storeman for Coles Myer. The Applicant is still working for the Respondent, but on light duties four days a week. The Applicant confirmed in evidence that the contents of his witness Statement dated 16 April 2015 were true and correct. By that Statement and in oral evidence the Applicant maintains that he suffered an injury on 5 February 2013 when working on a job on his own at the Rialto Towers, 525 Collins Street, Melbourne. The Applicant’s Statement says he was bending down to pick up a small computer cable when he felt a sharp pain in his lower back. He says the pain continued throughout the afternoon, increasing in intensity as he completed his work. He says he notified his superior (Mr Farrell) by telephone about the incident. He told him I am in trouble. According to the Applicant’s statement, the following day he attended his General Practitioner, Dr Boris Mezhov, who sent him for x-rays. These x-rays revealed multilevel degenerative change. On 2 April 2013 the Respondent accepted liability for the condition of acute low back strain. In his oral evidence the Applicant indicated he would take with him on his jobs a tool bag which could be full of equipment and was his mobile office. On jobs he would also carry with him cables and ladders. Prior to the incident on 5 February 2013 he said he regarded himself as invincible and suffered no pain in any area of [his] body. On 5 February 2013, the Applicant had been called out to the Rialto Towers to attend to a faulty cable. When he bent down to pick up the cable, which was 1 metre or so in length, he suffered a very sharp pain in his back. He thought at the time that the pain would go away but it did not do so. He went across the road to a pharmacy and took some over the counter medication, but still the pain did not go away. He went on to another job he said. The pain increased dramatically and he found he couldn’t walk. By the time he saw Dr Mezhov the following day he says he was in an awful lot of pain. He said the pain was in his lower back, more to the right, and in his left lower leg. Dr Mezhov prescribed strong painkillers, including Feldine. The Applicant had signed a claim form which was on file, but left undated. Although he can remember signing the form, he cannot remember completing it. He thought that Mr Farrell may have come to his residence to do so. Exactly why it was up to Mr Farrell to do this was left unclear. The Applicant said that he thought the No answers to Questions 16, 17 and 18 on the undated claim form were correct at the time it was filled out. These questions had asked:16. Have you ever had a previous similar symptom, injury or illness; work-related or otherwise?17. Have you ever received medical treatment for a similar injury or illness?18. Have you ever claimed compensation for a similar injury or illness?

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number(s)	2014/5241 2016/3424
Re	Michael Geyman
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

Tribunal	Dr Damien Cremean, Senior Member
Date	1 December 2016
Place	Melbourne