Guinea and Telstra Corporation Ltd - [2001] AATA 488

DECISION AND REASONS FOR DECISION [2001] AATA 488

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/387,Q00/427

GENERAL ADMINISTRATIVE DIVISION       )
           Re      HUGH GUINEA
  Applicant
           And    TELSTRA CORPORATION LIMITED
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member Miss AM Brennan, Member Dr KP Kennedy, Member

Date5 June 2001
PlaceBrisbane

Decision The Tribunal sets aside the reviewable decisions dated 15 January 1999 and 5 February 2000 and in substitution therefor determines that the injury suffered by Mr Guinea on 22 December 1998 is work-related and so compensable under Section 14 of the Safety Rehabilitation and Compensation Act 1988. The Tribunal further determines that Mr Guinea does suffer a 10% permanent incapacity of his lumbar spine and that the respondent is liable to pay compensation to him under Section 24 of the said Act. The Tribunal further directs that the respondent pay the applicant's costs as agreed or, failing agreement, as taxed by the District Registrar of the Tribunal in accordance with the Tribunal's Practice Direction.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
COMPENSATION – whether incident resulted in an "exacerbation" or an "aggravation" of symptoms – whether injury arose out of or in the course of employment – whether applicant suffered a permanent impairment of 10%.
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 24,
Prica and Comcare (1996-7) 44 ALD 46 at 51
Comcare v Amorebieta (1996) 66 FCR 83 at 96

REASONS FOR DECISION

5 June 2001 Deputy President DP Breen, Presidential Member Miss AM Brennan, Member Dr KP Kennedy, Member

This was an appeal against two decisions of the respondent. The first decision, dated 15 January 1999 and affirmed on 10 February 1999, determined that an injury suffered by Mr Guinea on 22 December 1998 did not arise out of or in the course of the applicant's employment so periodic compensation was refused. The second decision, dated 5 May 2000, refused to pay lump sum payment with respect to the injury suffered by Mr Guinea on 22 December 1998.
The matter was heard by the Tribunal as constituted above on 21 and 22 May 2001 in Brisbane. Mr K Bolton of Counsel, instructed by Messrs Maurice Blackburn Cashman, Solicitors, represented Mr Guinea. Ms E Ford of Counsel, instructed by Messrs Phillips Fox, Solicitors, represented the respondent.
Oral evidence was received from the applicant, and from Dr Gregory Knight, Specialist in Occupational Medicine, Dr David White, Orthopaedic Surgeon, Dr Bruce Martin, Orthopaedic Surgeon and Dr Francis Tomlinson, Neurosurgeon.
The following documents were taken into evidence.

Exhibit 1A "T" Documents – Q99/387
Exhibit 1B "T" Documents – Q00/427
Exhibit 2 Report of Dr Francis H Tomlinson dated 9.11.00
Exhibit 3 Report of Dr Francis H Tomlinson dated 4.12.00
Exhibit 4 Report of Dr David Rowlands dated 26.5.99
Exhibit 5 Report of Dr David Rowlands dated 18.10.00
Exhibit 6 Report of Dr A. David N. White dated 7.9.00
Exhibit 7 Report of Dr Gregory Knight dated 22.1.99
Exhibit 8 Letter from Telstra to Dr Knight, Health Services Australia
Exhibit 9 Report of Dr G Ioannou dated 11.8.97
Exhibit 10 Statement of Hugh Guinea dated 21.5.01
Exhibit 11 Report of Dr Bruce Martin dated 27.10.00
Exhibit 12 Report of Dr Bruce Martin dated 14.12.00
Exhibit 13 Letter from Telstra to Hugh Guinea dated 23.9.97
Exhibit 14 Letter from GIO Australia to Hugh Guinea dated 5.12.97
Exhibit 15 Note by Hugh Guinea re work at Logan Power Poles
Exhibit 16 Clinical notes of Dr David Rowlands

The issues before the Tribunal were as follows:

(a)whether the injury suffered by Mr Guinea on 22 December 1998 arose out of or in the course of his employment;
(b)whether as a result of that injury the applicant suffered an incapacity or impairment for work; and
(c)whether as a result of that injury the applicant suffers a permanent incapacity of his lumbar spine of 10% or more.

The following findings of fact have been made by the Tribunal based on the evidence before it.
Mr Guinea was employed by Telstra in 1986 as a pipe and pit person. He had previously worked with SEQEB for 21 years as a linesman.
On 5 August 1997 Mr Guinea suffered lower back pain while engaged in pick and shovel work for Telstra. He reported his injury to his supervisor at the end of the shift and attended his doctor the following day. He was told it was probably a muscle strain or a pinched nerve. He was prescribed Naprosyn and Panadeine Forte and told to rest. He took a short time off work and returned on light duties. This included sweeping the road around the worksite as that was the lightest job available.
On 28 August 1997 Mr Guinea was certified fit by Dr Rowlands, his General Practitioner, to return to full duties. Between that date and 22 December 1998 there was no mention in Dr Rowlands' notes of complaints for back pain or prescriptions for Naprosan or Panadeine Forte. The Tribunal accepts, however, the applicant's evidence that the pain in his back never went away entirely but he had expected that "when you injured your back you would always have some pain from then on".
Mr Guinea said that he had a supply of Naprosyn and Panadeine Forte from other conditions he had suffered and that he used these when his back hurt a lot after a hard day at work. He said he also purchased Panadeine over the counter, which he preferred, as it had less side-effects than the other two medications.
Mr Guinea said he had "twinges" in his back between August 1997 and December 1998. He said that after a heavy days work he would experience discomfort and at times sciatica pain particularly down his right leg. He said that if the pain was severe he would take pain killers but the pain was not sufficient to prevent him from working. The Tribunal's impression of Mr Guinea, through his demeanour in the witness box, was that he is not prone to exaggerate his symptoms and is, in fact, more likely to down-play them. The Tribunal is satisfied that he suffered at least moderate, continuous pain in his back from the time of the first incident.
On 21 December 1998 the applicant was working for Telstra outside the Labrador Football Club. He was digging up bitumen with a pick and experienced some pain in his back. He finished his shift and the next morning he noticed his back still hurt. He went to work despite the pain and when he went to get up after smoko that morning he could hardly stand up as his back was in so much pain. He managed to finish his work for the day and complained to his supervisor at the end of the day. He went to his normal doctor's surgery and saw a Dr Pacey. He received a certificate of unfitness for work for 23 and 24 December. However, Mr Guinea said that as he had holidays over Christmas until 30 December, the doctor said to stay off work until then and rest his back.
Mr Guinea's supervisor required him to come in before New Year and told him that he would not get compensation for this complaint and he should get back to work. Mr Guinea was sent out in the rain to complete heavy manual work. Due to the rain, the gang only worked half a day but his back was in excruciating pain as a result.
When he returned to work in early January, he was put on light duties which simply meant that he did not have to do any shovelling. He was made redundant on 25 May 1999. He was being prescribed pain killers again until May 1999. Mr Guinea's evidence was that the pain in his back was continual and more severe than it had been previously. Mr Guinea was able to obtain some work with Logan Power Poles replacing worn power poles. Mr Guinea would use a cherry picker to unhook the cabling from the power poles, the work crew would put in the new pole and Mr Guinea would re-attach the cabling. He said that on occasions he would have to climb a ladder to change the wires as a cherry picker was either unavailable or not able to be used. This caused him some pain in his back.
In May 2000 Mr Guinea was required to change the cabling on a pole in the middle of a river. He had to pull very heavy cable across to the pole and as a result he began to experience severe pain in his back. He ceased his employment with Logan Power Poles from that time. Mr Guinea now uses Celebrex to manage the back pain he suffers.
Mr Guinea has attempted to gain work through a number of agencies but none of those agencies were able to find him work. Mr Guinea said he currently receives the mature age pension. Mr Guinea was quite clear, and the Tribunal accepts his evidence, that he did not suffer any pain prior to August 1997.
Medical evidence
After the 1997 incident at work, Mr Guinea had an x-ray taken of his spine. This showed degenerative changes.
Dr Gregory Knight, Specialist in Occupational Medicine, examined the applicant in January 1999 and produced a report dated 22 January 1999. He reported that it was probable that the December 1998 episode was an aggravation of the original injury. He expected the duration of the symptoms to be for two to four weeks. In oral evidence, Dr Knight was still of the view that while there may have been some recovery from the August 1997 incident, the underlying injury remained and was made worse by the second incident in August 1998. While he said the second incident could possibly have been just the result of degeneration, it was his view that it was work-related.
Dr David White, Orthopaedic Surgeon, examined Mr Guinea on 15 July 1999 and 4 September 2000. He prepared reports dated 20 July 1999 and 7 September 2000.
In his first report, Dr White said that he thought Mr Guinea had suffered from a musculo/ligamentous strain with possible intradiscal disruption. He was of the view that there had been an aggravation of pre-existing degenerative change. He thought that there was a 10% permanent impairment of the lumbar spine but that only 5% related to work and the other 5% related to degenerative changes. In that report, Dr White stated that Mr Guinea was permanently unfit for work involving heavy physical labour, prolonged standing, prolonged sitting, lifting or repetitive bending, but may be fit for light semi-sedentary duties.
Dr White, in his report of 7 September 2000, stated that the applicant's condition had not altered since he last reviewed him. He reiterated his opinion that the December 1998 injury, together with others during Mr Guinea's employment, would no doubt have caused aggravation of the underlying injury. He held to this opinion during his evidence at the hearing.
Dr Rowlands is Mr Guinea's treating General Practitioner. He provided two reports dated 26 May 1999 and 18 October 2000. In his first report, Dr Rowlands said that the applicant suffered from lumbar spondylosis as a consequence of wear and tear. He was of the view that the 1997 incident aggravated this condition so that it became symptomatic and that the 1998 incident caused further aggravation. He said that Mr Guinea could not do any manual work.
In October 2000 Dr Rowlands reported that Mr Guinea's back had improved as a result of rest but that when the applicant had worked at Logan Power Poles his symptoms had worsened again.
Dr Bruce Martin, Orthopaedic Surgeon, examined the applicant on 26 October 2000 and provided two reports dated 27 October and 14 December 2000. Dr Martin thought that the back pain associated with the incidents in August 1997 and December 1998 were merely an exacerbation of symptoms from underlying degenerative disc disease. He did not believe that the applicant had not experienced back pain prior to the 1997 incident.
Dr Francis Tomlinson, Neurosurgeon, examined Mr Guinea on 16 October 2000 and provided reports dated 9 November and 4 December 2000. Dr Tomlinson was of the view that the applicant suffered a 10% whole body permanent disability solely as a result of his work from Telstra. He did not think that the applicant could carry out heavy manual work but might be able to do sedentary work depending on his education level.
The law
The applicable legislation in this case is the Safety Rehabilitation and Compensation Act 1988. Section 14 covers claims for periodic compensation payments and provides:
"(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."
Section 24 of the said Act covers claims for compensation for injuries resulting in permanent impairment. It provides:
"(1)     Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)       For the purpose of determining whether an impairment is permanent, Comcare 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.
…….
(7)       Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section."
Section 4 defines "impairment" as:
"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."

and "injury" as:

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

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

while subsection 4(9) provides that a reference in this Act to an incapacity for work is:

(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened."

All of the doctors who gave evidence were at pains to explain to the Tribunal the distinction between an "aggravation" and an "exacerbation" of a condition. The Tribunal accepts that an "exacerbation" occurs where there is only a temporary worsening of symptoms which resolves, while an "aggravation" is a permanent worsening of symptoms.
The Tribunal accepts the applicant's evidence that he did not suffer any back pain prior to 1997 and that the degeneration of his spine was asymptomatic. The Tribunal also accepts that after being injured at work in August 1997, the applicant suffered back pain which persisted at a moderate level, which he managed with pain killers. The Tribunal finds that the digging-up of bitumen with a pick in the course of his employment in December 1998 brought on greater back pain. The Tribunal accepts that the pain has persisted at a higher level than previously.
On the basis of the medical evidence as a whole, the 1997 incident "aggravated" the asymptomatic degenerative condition, as it became symptomatic. Further, the 1998 incident "aggravated" the condition, as the symptoms have increased in severity since that time. Therefore, the Tribunal rejects the opinion of Dr Martin and instead favours the evidence of Drs White, Knight, Rowlands and Tomlinson on this point.
As these work-related incidents aggravated an underlying injury, the applicant has suffered a compensable injury.
The final question is whether the applicant is incapacitated for work or impaired. It is important to note that the applicant is now 61 years of age. He did not complete his basic schooling and has engaged in heavy labouring work all of his working life. In today's highly competitive employment market it is unreasonable to expect such a person to be able to re-train for clerical or retail work or to be able to enter a new vocation, such as a car park attendant or a gardener. The fact that he cannot sit or stand for long periods of time make him virtually unemployable in any of those professions.
That a person could theoretically gain employment in another field is not the test to be applied. Where a person cannot engage in work at the same level as they were engaged in immediately before the injury occurred, they will be classed as incapacitated.
The Tribunal made the following observations in the case of Re Prica and Comcare (1996-7) 44 ALD 46 at 51:
"Hence a construction of s4(9)(b) which permits a finding of an incapacity for work in circumstances where the applicant, subsequent to an injury, is engaged in light duties at their former salary does not produce any anomaly within the Act and recognises that incapacity for work is a relative concept and a matter of degree."

Where a person would suffer pain from engaging in work, it is the Tribunal's view that they do not have the capacity for such work.
Mr Guinea did not have the capacity to engage in heavy manual work such as shovelling and digging trenches after the incident in December 1998. While he carried on in his employment until May 1999, Mr Guinea was in severe pain as a result of the work and did not really have the capacity to engage in the level of work he had previously performed.
The Tribunal is also satisfied that the work Mr Guinea did at Logan Power Poles was not of the same level as he was engaged in at Telstra before the December 1998 incident. Riding up and down in a cherry picker and removing and attaching cables does not require the same level of capacity as digging trenches by hand. The fact that he suffered pain when he tried to climb ladders and gave the job away because the pain was too much casts doubt as to the applicant's real capacity to undertake the full duties involved in the job, despite his determination to be useful and employed.
This incapacity to work at the same level as he had prior to the injury is ongoing. Further, it is clear to the Tribunal that the applicant suffers an impairment. His lumbar spine has been further damaged as a result of the incident in December 1998. As a result of this damage, he could not continue to dig ditches or carry out a lot of his other former duties without pain. As such, Mr Guinea suffered an injury which arose out of the course of his employment and resulted in an incapacity for work and an impairment. Thus he has satisfied Section 14 of the Safety Rehabilitation and Compensation Act.
With respect to the question of permanent impairment, the Tribunal relies on the view of Dr White expressed in his report dated 20 July 1999. This opinion was given after both Telstra incidents and before the incident at Logan Power Poles in May 2000. He assessed a 10% whole body permanent impairment with 5% relating to work accordingly to Table 9.6. The Tribunal prefers Dr White's evidence to that of Dr Knight on this point. Dr Knight saw Mr Guinea less than a month after the injury was sustained and was hopeful that symptomatology would resolve within two to four weeks. Dr White saw Mr Guinea some six months after that and found that the condition had not resolved as hoped. The Tribunal does not rely on Dr Tomlinson's evidence in this respect as he only reviewed Mr Guinea after the incident at Logan Power Poles.

Justice Jenkinson held in the case of Comcare v Amorebieta (1996) 66 FCR 83 at 96:
"The measure of that compensation (per s 24) is the degree of permanent impairment which has resulted from the aggravation of the disease, and in contemplation of law the degree of impairment to which the aggravation brings the respondent's spine is caused by – 'results from' – that aggravation, whatever the lesser degree of impairment was which preceded that aggravation, and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment."
This is basically an extension of the "eggshell skull" principle. An employer takes their employees as they find them. So, if an employer requires a person with a symptomatic degenerative spine to dig trenches and this results in them becoming permanently impaired to 10%, the employer is liable for the full 10% impairment.
As stated above, the Tribunal is quite satisfied that the applicant does suffer an impairment and that as a result of it he has lost his ability to engage in heavy manual work without pain. The Tribunal believes that the impairment is permanent. Therefore, Mr Guinea also satisfies Section 24 of the Safety Rehabilitation and Compensation Act.
The Tribunal sets aside the reviewable decisions under review dated 15 January 1999 and 5 February 2000 and in substitution therefor determines that the injury suffered by Mr Guinea on 22 December 1998 is work-related and so compensable under Section 14 of the Safety Rehabilitation and Compensation Act 1988. The Tribunal further determines that Mr Guinea does suffer a 10% permanent incapacity of his lumbar spine and that the respondent is liable to pay compensation to him under Section 24 of the Safety Rehabilitation and Compensation Act 1988. The Tribunal further directs that the respondent pay the applicant's costs as agreed or, failing agreement, as taxed by the District Registrar of the Tribunal in accordance with the Tribunal's Practice Direction.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member, Miss AM Brennan, Member and Dr KP Kennedy, Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  21.5.01, 22.5.01
Date of Decision  5.6.01
Counsel for the Applicant        Mr K Bolton
Solicitor for the Applicant         Messrs Maurice Blackburn Cashman
Counsel for the Respondent    Ms E Ford
Solicitor for the Respondent    Messrs Phillips Fox