[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
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
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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- Case
- [2014] AATA 472
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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.