Kevin Egan and Telstra Corporation Limited

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[2014] AATA 472

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/3890

Re

Kevin Egan

APPLICANT

And

Telstra Corporation Limited

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

Date 14 July 2014
Place Brisbane

The Tribunal affirms the decision under review.

...............................Sgd.....................................

Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

CATCHWORDS

WORKERS’ COMPENSATION – Claim for permanent impairment – Liability accepted for 1993 injury of lower back strain L5/S1 – Further injury to spine in 2011 an aggravation of underlying degenerative disease – Condition unrelated to compensable condition – Application of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)(“the Guide”) – Whole person impairment rating under Table 9.17 of the Guide – Threshold requirement of 10% for payment of compensation for permanent impairment not satisfied – Decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 24, 27, 28

CASES

Bryant v Military Rehabilitation and Compensation (2008) 104 ALD 39

Jordan v Australian Postal Corporation (2007) 99 ALD 303

SECONDARY MATERIALS

Guide to Assessment of Permanent Impairment (Edition 2.1)

REASONS FOR DECISION

Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

14 July 2014

BACKGROUND

  1. In accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), Telstra Corporation Limited (“the respondent”) accepted liability for


    Kevin Egan’s (“the applicant”) “lower back strain L5/S1” as being related to an injury he suffered in October 1993 while he was working for the respondent. On 12 June 2012, the applicant lodged a claim for permanent impairment and non-economic loss under


    ss 24 and 27, respectively, of the Act. In a determination on 15 May 2013, the respondent rejected that claim and this was affirmed in a reviewable decision on 16 July 2013.

    LEGISLATION AND ISSUES

  2. The provisions of the Act relevant in this matter read:

    24  Compensation for injuries resulting in permanent impairment

    (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.

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

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

    (5)  Comcare 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…

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Details
Case
[2014] AATA 472
Decision Date

CaseChat Overview and Summary

In the case of Kevin Egan and Telstra Corporation Limited, the applicant, Mr. Egan, sought compensation for a permanent impairment arising from a compensable injury sustained during his employment with the respondent, Telstra Corporation Limited. The dispute centered on whether the applicant's current impairment was an aggravation of his pre-existing degenerative condition of the lumbar spine or a result of the compensable injury. The matter was heard and decided by the relevant tribunal.

The legal issues before the tribunal included determining the source of the applicant's current impairment and whether this impairment was related to the compensable injury. Additionally, the tribunal had to assess the level of impairment under the appropriate guidelines to ascertain whether it met the threshold for compensation under the relevant legislation.

The tribunal found that the applicant's current impairment was an aggravation of his underlying degenerative disease of the lumbar spine and not directly related to the compensable injury of "low back strain L5/S1". It was established that the applicant had underlying degeneration of the spine which was asymptomatic before the 1993 injury. The tribunal accepted the opinion of Dr. Stuart, who concluded that the applicant's whole person impairment (WPI) was 0% based on the absence of significant radiculopathy and other factors outlined in the relevant guidelines. Consequently, the tribunal affirmed the decision under review, holding that the applicant did not meet the requirements for compensation under section 24 of the relevant Act.

The tribunal's decision was based on the medical evidence presented, particularly the assessments by Dr. Stuart and Dr. Campbell. The tribunal found that the applicant's current symptoms were more consistent with an aggravation of the pre-existing degenerative condition rather than a direct result of the compensable injury. As the level of impairment did not meet the threshold for compensation, the tribunal upheld the respondent's decision not to pay compensation to the applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Effects and symptoms from his back condition were described by him as including sleeping difficulties, limitations on sitting, standing and walking as well as difficulties climbing stairs and driving. He has limitations in his ability to do housework and gardening and he needs assistance from his wife when dressing, in particular with his footwear and underclothing. Medical evidenceGP practice In this practice, the applicant has been treated by Dr Johnson and Dr Gregory Hales. Their clinical notes were tendered in evidence for the period from December 2000 until April 2012. Therein, pain in the applicant’s lower back is noted on 1 October 2007, 7 November 2007, 27 March 2008, 5 February 2010, 28 February 2011, 4 April 2011, 14 May 2011, 12 August 2011, 22 August 2011, 26 August 2011, 12 September 2011,5 December 2011, 24 January 2012 and 29 February 2012. The entry on 28 February 2011 by Dr Johnson reads: “Arose from chair on Sat & got sudden pain lower back, no radiation. o/e spasm +”. On 14 May 2011, Dr Hales wrote: “hurt back 16 years ago lifting cable drum recent disc protrusion- referred by Dr Watson - had cortisone, has pain in L buttock, Dr Watson says it is bursitis”. On 3 August 2011, Dr Johnson described “a lot of pain in post L thigh”. On 12 August 2011, he felt that this pain was referred from the applicant’s back. On 22 August 2011, the note reads: “hurt back in Feb – pain in L buttock down leg… had back pain 16 yr ago – got better.” Dr Johnson reported on 21 September 2011 that the applicant presented on 28 February 2011 following sudden pain after rising from a chair at his work with no radiation of pain. Dr Johnson’s opinion was that this was an exacerbation of his 1993 injury. Dr Gregory Hales also reported on 21 September 2011. He diagnosed a left L5/S1 disc protrusion with left S1 nerve root compression. On 9 October 2012, Dr Hales reported that the applicant had a lumbar disc injury with ongoing sciatica. Dr Watson (musculoskeletal specialist) In evidence were reports and progress notes of Dr Watson. His progress notes include the following:4 January 1995: 4 days ago developed (LBP) - both legs felt heavy;14 September 1995: low back had become more sore and now “both legs dead”;9 May 1996: LBP and difficulty flexing L leg pain Area of pain in in lower L fascia;10 July 1996: LBP… spasms 2, 3 per week;23 September 1998: “dead” heavy legs no tingling or weakness;8 April 1999: stiff / spasm in back no leg pain/ weakness;4 October 1999: back ached last week but on Friday got to get up from train seat when developed acute L spine pain à both butt R > L;19 July 2004: LBP then butt;7 April 2011: 4-5 weeks ago got off a chair pain lower lumbar à butt;19 January 2012: LBP butt, thigh, leg and foot pain burning. Dr Watson reported on 8 April 2011 that, four weeks earlier, the applicant twisted his lower back getting off a chair. Dr Watson noted marked tenderness in the posterior medial iliac crest and the interspinous ligament of L4/5 but that remaining examination of the lumbar spine and hips was normal.

Decision

Reasons for decision

We are satisfied that the applicant’s current impairment is an aggravation of his underlying degenerative disease of the lumbar spine and is not related to his compensable condition of “low back strain L5/S1”. We are also satisfied that an assessment of the level of his current impairment is less than WPI 10% under Table 9.17 of the Guide. This means that the applicant does not meet the requirements of s 24 of the Act.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

In relation to impairment, Mr Clark submitted that Dr Stuart’s greater understanding and appropriate application of the Tables in the Guide when compared with that of Dr Campbell was demonstrated during the hearing. In the event that we accepted that the 1993 injury was responsible for the applicant’s current symptoms, the appropriate rating, he submitted, was that adopted by Dr Stuart of 8% under Table 9.17 of the Guide. It followed that the applicant did not satisfy the terms of s 24 of the Act and the decision under review ought be affirmed. CONSIDERATION Under s 24(1) of the Act, the respondent is liable to pay compensation to an employee where a compensable injury results in a permanent impairment. The medical evidence as to whether the applicant’s current impairment results from the injury for which the respondent has accepted liability is that of Dr Stuart and Dr Campbell. Each of them accepted that the applicant had underlying degeneration of the spine which was asymptomatic prior to the injury in 1993. Each of them referred to the initial trauma in 1993, the subsequent “flare-ups” and the periods in between when symptoms settled. Dr Stuart’s opinion was that each of those flare-ups was a temporary aggravation of the underlying degenerative disease of the lumbosacral spine and that the effects of the initial and each subsequent aggravation had ceased prior to 2011. He noted the more significant episode of trauma to the spine in February 2011 which gave rise to a disc herniation and which had not been present following the injury in 1993. He said that all disc herniations are degenerative in nature, that this was the natural progression of degenerative disease of the lumbosacral spine and that the L5/S1 joint was the most common site of degeneration. He noted the various references by the applicant to “dead legs”, “numb legs” and pain in the testes. His opinion was that this was a very subjective description by the applicant, that there was no organic basis for those symptoms and that it was not specific to a dermatome. Dr Stuart’s opinion was that the applicant’s WPI impairment on the basis of a relationship to his employment with the respondent was 0%. He concluded that the criteria for a rating of 10-13% in Table 9.17 of the Guide were not met by the applicant. This was because there were no signs of significant radiculopathy. Indeed, he described this as non-verifiable radiculopathy. In that regard, he said that it was relevant that his examination of the applicant revealed no absence of ankle jerk, no muscle wasting, no measurable wasting of his calves, some sensory disturbance but not anaesthesia and an ability to stand on his toes. Based on his understanding of the criteria in Table 9.17 of the Guide and the definition of the term radiculopathy in the Guide,[3] those factors meant that radiculopathy was not present in the applicant to a significant level and that the highest rating under that Table, if there were a work relationship to his impairment, was 8%. [3] See page 151 of the Guide.