KEVIN TEMPLETON and TELSTRA CORPORATION LIMITED
[2010] AATA 492
•2 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 492
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/6104
GENERAL ADMINISTRATIVE DIVISION ) Re KEVIN TEMPLETON Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member and
Dr G J Maynard, Brigadier (Rtd), MemberDate2 July 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means that the applicant is unsuccessful.
...................[Sgd]................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Liability for compensation with respect to accepted injury – Injury held to be attributed to pre-existing or constitutionally based degenerative condition – Decision under review affirmed.
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Evidence Act 1995 (Cth) ss 14C
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5, 5A, 14, 16, 60, 62, 64
Australian Postal Commission v Oudyn [2003] FCA 318
Ho v Powell (2001) 51 NSWLR 572
PMT Partner’s Pty Ltd (in liquidation) v Australian National Parks & Wildlife Service [1995] HCA 36; (1995) 184 CLR 301
Re Ferrini and Comcare [2010] AATA 276
Re Thiele and Commonwealth (1990) 22 ALD 635
Rosillo v Telstra Corporation Limited (2003) FCA 1628
State Government Insurance Commission (South Australia) v Laube (1984) 37 SASR 31
Bringinshaw v Bringinshaw (1938) 60 CLR 336
REASONS FOR DECISION
2 July 2010 Dr K S Levy RFD, Senior Member and
Dr G J Maynard, Brigadier (Rtd), MemberBACKGROUND
1. On 21 February 2002, Kevin Templeton, an employee of Telstra Corporation Limited, had a motor vehicle accident on his way to work while he was a passenger in a vehicle which ran into the back of a parked car. The vehicle was able to be driven away. The applicant claimed workers’ compensation benefits. He did not seek medical treatment for some days after the accident. However, the respondent initially accepted liability and Mr Templeton received compensation for medical treatment associated with injuries pertaining to his back. That compensation includes Mr Templeton attending hydrotherapy three times per week for the pain and symptoms he has experienced.
2. Mr Templeton claimed his lower back pain worsened in late 2008 or early 2009. On 21 July 2009, the applicant was advised of an intention to discontinue payment of medical expenses with respect to his claim. That decision was reviewed by Telstra’s delegate, ALLIANZ Australia Insurance Limited and the decision of 21 July 2009 was affirmed in the delegate’s decision dated 7 August 2009.
3. Mr Templeton now seeks review of that decision by this Tribunal.
ISSUE FOR DETERMINATION
4. Is Telstra liable for compensation to Mr Templeton under s 16 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) with respect to an accepted soft tissue injury to the lumbar spine and sacroiliacs as from 7 August 2009?
EVIDENCE
Kevin Templeton
5. The applicant provided a statement for the purpose of the Tribunal’s hearing which was undated but was received in the Tribunal on 9 March 2010. Mr Templeton described the incident which was the subject of the present claim. When travelling to work on 21 February 2002, he was a passenger in the front seat of a vehicle on his way to work when the vehicle hit a parked car on a street in Wilston. The statement indicates that the vehicle collided head on with the rear end of a parked car on the left side of the road. He was able to exit the vehicle by himself without assistance although he was aware of pain in his lower back on the left side. He was wearing a seat belt and the vehicle in which he was travelling had head support. He went to work but over the following two days the pain increased in severity. He passed out on at least one occasion owing to the pain. He then consulted his general practitioner who prescribed him with an anti-inflammatory drug.
6. He was also treated by a physiotherapist but said the treatment was too painful and he ceased that treatment after a few months. The statement declares that prior to the accident in February 2002; the applicant had no back pain or any restriction of movement affecting work or household activities. However, the statement shows that he had been involved in a previous car accident in May 1993 where he was the driver and he was again travelling to work. Following that accident, he experienced pain in his lower back which decreased over the following five months after treatment from his general practitioner. The statement shows he had no further pain in his back until the accident in February 2002.
7. The applicant’s statement also mentions an accident in January 2001 when he slipped on wet concrete whilst running for the train. On that occasion, he had a strained hip but the injury resolved itself without any further consequences after approximately one week.
8. While giving evidence on oath at the hearing, the applicant advised that he was previously active and had been involved in rollerblading and bicycle riding. However, since the motor vehicle accident in 2002, he experiences pain and the severity of that pain is dependent on what activities he undertakes. However, he stated that hydrotherapy seems to have been an effective form of treatment. This has been previously paid for by Telstra following the acceptance of liability.
9. In examination in chief, he also stated that he had slipped in 1996 but had experienced no long term pain as a result.
10. In cross-examination, he could not recall some detail about pain from previous injuries or whether he had informed doctors of some of the previous accidents mentioned in his statement. However, it was apparent that he had advised Dr Fogarty in 1993 of pain in his lower back (L4-5 region); that there was a previous motor vehicle accident in Victoria on the way to work in 1996; that his GP’s records showed that he had complained of ongoing lower back pain in April 1997; and, from summonsed documents from his general practitioner, Dr McDonald, there was evidence of his complaint of back pain in February 1999 which also referred to a motor vehicle accident which occurred in Victoria in 1996. Those records also reveal an entry on 2 January 2001 where he complained of lower back pain to his general practitioner and it appears that he also consulted his general practitioner on 15 January 2001 in connection with a similar complaint. Those complaints were prior to the motor vehicle accident in January 2001 and also prior to the accident in February 2002. It was also noted that there appears to be no record of complaint to Dr McDonald about back pain in 2004 and subsequent years until the more recent aggravation as claimed in 2008 and 2009.
Medical evidence
11. A number of specialists have examined Mr Templeton and provided medico-legal reports. Firstly, Dr Cooke gave sworn evidence. He had treated Mr Templeton since 2002 and was supportive of the applicant’s claims. In particular, he was not surprised that pain might not present until three or four days after the accident. He had stated that he had reviewed all of the radiological evidence and that his opinion differed from those of other specialists because doctors have different experiences. He concluded that injuries sustained as a result of an accident such as those that Mr Templeton was involved in can take many years to heal.
12. All of the other orthopaedic specialists had a contrary view to Dr Cooke and were relatively consistent in their assessments. Dr John Watson provided a report of 31 March 2004 and had examined Mr Templeton. He had not seen the medical imaging but had concluded that Mr Templeton had Scheuermann’s Disease. He had examined the applicant and found no sign of clinical evidence of any ongoing pathology at that time. Under cross-examination by Mr Greasley Dr Watson was asked why Mr Templeton’s pain could not be an aggravation of the injuries received in 2002. Dr Watson’s’ view was that even if it was aggravated by that accident, it would have ceased by the time he had been seen by Mr Templeton.
13. Dr Watson was questioned by Dr Maynard about the pattern of injury that would be expected, based on the impact of an accident described by the applicant where the car was travelling at 60 kilometres per hour. Dr Watson replied that the injury was not very significant as the applicant did not seek medical attention for some days; he was not hospitalised; and, the car could be driven away. He also said that there was nothing significant in the x-ray reports pointing to an injury from the accident. He qualified that by saying that he was not suggesting that a person could not be in extreme pain as a result of the accident but his conclusion in this case that the injury did not aggravate the existing condition, or if it did aggravate it, then it was ceased by the time that he examined Mr Templeton.
14. A report was also provided by Associate Professor William Parker dated 13 August 2002. Dr Parker did not give evidence at the hearing as it is understood he had died between the date of the report and the date of the hearing. However, his report was informative. He found there were no contributing illnesses relating to Mr Templeton’s condition and that he was in good physical condition for his age. In relation to Mr Templeton’s back, Dr Parker observed that:
he has a good range of movement, was able to touch his toes on flexion, which has improved to what it was on previous examination some six to eight weeks ago… I reviewed the x-rays that he brought with him, namely a plain x-ray taken on 25 February, 2002. The x-ray showed that between the discs of L1/L2 and L2/L3 there was quite definite disc narrowing and irregularity of the space which I would think reflects a condition known as Scheuerman’s Disease, which has probably been present all his life. The L2/3 vertebral cells are larger than normal, that is the type of pathology you see with Scheuerman’s Disease …
15. Two reports were also provided by Associate Professor Bruce McPhee, one on 9 July 2009 and one on 12 November 2009. In the report dated 9 July 2009, Professor McPhee stated that he examined Mr Templeton and also made a diagnosis which indicates an underlying condition of Scheuermann’s Disease. Of pertinence, Professor McPhee stated:
there was radiological evidence of degenerative changes in the L1/2 and L2/3 discs secondary to Scheuermann’s Disease. Scheuermann’s Disease is a developmental condition which occurs in adolescence. It results in premature degeneration of the discs. The degeneration in these discs predates the road traffic accident in February 2002. As a result of the accident, Mr Templeton has suffered a strain of the lower back with aggravation of pre-existing lumbar spondylosis.
16. Professor McPhee stated Mr Templeton’s prognosis as:
… Scheuermann’s Disease in the lumbar spine is a known radiological cause for low back pain.
It generally occurs in early adult life. This condition will pre-dispose to low back pain particularly following loading and injury. Had the claimant not been involved in the road traffic accident in 2002, it is probable that he would have experienced back pain as a result of the natural history of the underlying condition by mid-adult life.
17. Professor McPhee also recommended a continuation of hydrotherapy but mentioned that such treatment would not prevent deterioration expected with this condition due to the natural aging process. He also said that Mr Templeton was fortunate to be employed in a “sedentary capacity”. In answering specific questions put to him, Professor McPhee also stated that any residual effects of the road traffic accident in 2002 and its contribution to the present state of Mr Templeton’s condition was “minor”. (Question 8). He also opined that the effects of the road traffic accident “… would have stabilised within three to four months of the road traffic accident. Continuing symptoms are due to the underlying condition and to a much lesser extent the effect of aggravation resulting from the road traffic accident”. (Question 9).
SUBMISSIONS OF THE PARTIES
18. Mr Greasley for the applicant submitted that there was a wide variation of opinions about the development of symptoms three to four days after the accident. He noted that the doctors did not agree on the origin of the back pain or Scheuermann’s Disease. He submitted that immediately before the accident, there was no back pain, but mentioned that the applicant had definitely suffered back pain for over 20 years. He argued that the opinion of Dr Cooke should be accepted over that of the other specialist doctors who reached a different conclusion.
19. Mr Greasley also referred us to s 5A of the Act and argued that the aggravation of an injury is an injury for the purposes of the Act.
20. Mr Clark referred us to s 5 of the Act and to s 16 which is concerned with compensation for medical expenses consequent upon an injury. Mr Clark also referred us to paragraph 8 of Re Ferrini and Comcare [2010] AATA 276 which is where the key test for determining liability for Mr Templeton’s present condition is encapsulated. The Tribunal in that case said that the test in s 16 is concerned with a relational and not a causal connection. The connection, it was submitted, must look at “the nature and purpose of the provision in question and the context in which it appears” (see PMT Partners Pty Ltd (in liquidation) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 313). Ferrini’s case held that the test in determining the relationship or causation is assessed “as a matter of probability”.
CONSIDERATION
21. There was no issue raised by either party that Mr Templeton’s claim did not constitute an “injury” for the purposes of the Act.
The statutory law
22.The relevant provisions of the Act as follows:
SECT 14
Compensation for injuries
(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.
…
SECT 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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
SECT 60
Interpretation
(1) In this Part:
"claimant" means a person in respect of whom a determination is made.
"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975 .
"determination" means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
"determining authority" , in relation to a determination, means the person who made the determination.
"reviewable decision" means a decision made under subsection 38(4) or section 62.
(2)For the purposes of this Part, the parties to proceedings instituted under this Part are:
(a) the applicant; and
(b) if the applicant is not the claimant--the claimant; and
(c) the body responsible for the reviewable decision.
(3)For the purposes of subsection (2), the body responsible for the reviewable decision is:
(a) if Comcare made the reviewable decision--Comcare; and
(b)if the reviewable decision has been made by or on behalf of a licensee--the licensee.
(4) Subsection (2) has effect subject to Part VIII.
SECT 62
Reconsideration of determinations
…
(2)A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b)if the determination affects the Commonwealth--the Commonwealth; or
(c)if the determination affects a Commonwealth authority--that Commonwealth authority.
…
(4)On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
SECT 64
Applications to the Administrative Appeals Tribunal
(1)Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth--the Commonwealth; or
(c)if the decision affects a Commonwealth authority--the Commonwealth authority; or
(d)if the decision affects a corporation that holds a licence under Part VIII--the licensed corporation.
…
Jurisdiction to Review the Application
23.It is apparent that the Act provides for three levels of review:
· Level 1 – the initial determination of claims for compensation by a determining authority (see ss 14 and 16 above)
· Level 2 – a reconsideration or review of determinations by a determining authority, ie. “reviewable decisions” (s 62);
· Level 3 – a second or subsequent review of “reviewable decisions” by the Administrative Appeals Tribunal where application is made (s 64).
24. Also of relevance to the Level 3 review referred to above is s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides that the Tribunal when acting as a “determining authority” may exercise all of the powers and discretions conferred by any relevant enactment on the person who made the reviewable decision. The Tribunal is then required to make a decision in writing which either affirms, varies or sets aside the reviewable decision and either substitutes a decision or remits the matter back to the decision maker in accordance with directions or recommendations of the Tribunal. In Australian Postal Commission v Oudyn [2003] FCA 318, Cooper J when discussing the bounds of s 62 of the Act, held that as it is concerned with the claim under review for payment of compensation (in this case for medical expenses), the determination may be to cease payment of an entitlement previously accepted “because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant” [at 33]. A similar situation applied in Rosillo v Telstra Corporation Limited (2003) FCA 1628.
25. The law outlined above also provides the basis of the application to this Tribunal by Mr Templeton. We find that the decision under review is a “determination” defined in s 60 of the Act. We also find that the decision is reviewable pursuant to s 64(1). The Tribunal is therefore empowered to reconsider the matter and affirm, revoke or vary the reviewable decision (s 62(5)).
Review of the Merits of the case
26. The applicant appeals against the decision to deny him a continuation of medical treatment. Pursuant to s 16(1) of the Act, Mr Templeton must show that Comcare is liable because his medical treatment (particularly hydrotherapy) is “in relation to” his injury which was incurred on the way to work.
27. There is certainly authority that the provision of hydrotherapy is a reasonable treatment under this section (Thiele and The Commonwealth (1990) 22 ALD 635). But the central question here is whether the evidence reveals that Mr Templeton’s present back condition is the result of, or attributable to, the car accident on 21 February 2002.
28. The meaning of the words “in relation to” under s 16(1) is of some importance in determining the present appeal. As previously alluded to in Re Ferrini v Comcare [2010] AATA 276, the Tribunal in that case said the test of cause and relationship is a matter of probability.
29. Section 140(1) of the Evidence Act 1995(Cth) provides that in a civil case a party will succeed if the Tribunal “is satisfied that the case has been proved on the balance of probabilities”. Where there is evidence for more than one possible relationship with the applicant’s pain, reaching a decision on the balance of probabilities will shift to where the weight of evidence more closely approximates the correct or preferable decision. Courts have been reluctant to accept a probability in a statistical sense (eg. see State Government Insurance Commission (South Australia) v Laube (1984) 37 SASR 31). One of the landmark authorities in this area is the decision of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336 where Dixon J said the standard of proof requires that “… the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probability independently of any belief in its reality” (at 361 to 362).
30. We do not suggest that Mr Templeton is not a witness of truth. He gave evidence although his memory clearly failed him as to some facts. He was also clearly an anxious man and, apart from our observations during the hearing, this factor is emphasised succinctly at the answer to question 23 in Associate Professor Bruce McPhee’s report of 9 July 2009. He reported that the questionnaire completed by the claimant at the time of his examination “… shows a high level of psychological and social factors including fear, avoidance beliefs and anxiety, depression and inability to cope along with an overestimation of the significance of his condition. These factors are likely to reinforce the claimant’s perception of the severity and significance of his condition”.
31. Despite Mr Templeton’s credit not being in issue, we found his advocate, Mr Greasley, was not always helpful or apparently always objective. He clearly had experience in dealing with people with workplace conditions and he emphasised that he had been trained as an occupational therapist in the past. He had also advised Mr Templeton about his case when he worked with him at Telstra. That particular association did not disqualify him from such an advocacy role. However, from the commencement of the hearing, he was critical of the medical profession generally and submitted that evidence provided by the relevant specialists was not precise enough to be accepted in preference to that of the applicant. Regrettably, we have concluded to the contrary.
32. We accept the opinions of the orthopaedic specialists in particular, Associate Professor Parker and Associate Professor McPhee, as well as Dr Watson and Dr Morris, in preference to that of Dr Robert Cooke. The evidence of the degenerative nature of Scheuermann’s Disease and the history of ongoing difficulties as revealed by the medical records is ample evidence of the condition. Equally, the evidence of Dr Watson in particular who assessed the impact of the accident in perspective based on the degree of injury to the car and the extent of injury is corroborative of the degree of severity of injury. In addition, no corroborating evidence of the impact or damage to the vehicle was brought in evidence from the driver of the vehicle. An adverse inference against an applicant could justifiably be drawn as a consequence (Ho v Powell (2001) 51 NSWLR 572 at [14] to [16]. However, we have not drawn that inference in this case.
33. In terms of the weight of evidence, the medical evidence assessed independently by five orthopaedic specialists, four of whom since 2002 had determined that radiological and other evidence showed that Scheuermann’s Disease, a pre-existing degenerative condition existed in Mr Templeton, seems to us to be a logical and overwhelming explanation of the pain experienced by the applicant. On the balance of probabilities therefore, it is highly unlikely that the injury from the motor vehicle accident would not have resolved some months after the accident. As it is now more than 8 years after the accident, there must be some explanation other than the motor vehicle accident. That explanation must be Scheuermann’s Disease. As that degenerative condition would have commenced in adolescence, we cannot accept that the ongoing pain experienced by Mr Templeton is “in relation to” the motor vehicle accident of February 2002. Rather we consider it is “in relation to” the pre-existing or constitutionally based degenerative condition of Scheuermann’s Disease.
34. We affirm the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Signed: ......................[Sgd]....................................................
Kate Slack, Research AssociateDate/s of Hearing 4 and 5 May 2010
Date of Decision 2 July 2010
Solicitor for the Applicant Mr Keith Greasley, Advocate
Counsel for the Respondent Mr Charles Clark
Solicitor for the Respondent Mr Matthew Hawker, Sparke Helmore
0
8
0