Lynch and Telstra Corporation Limited

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 889

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos  2010/2915 & 2010/4700

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID LYNCH

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date14 December 2011

PlaceAdelaide

Decision

1.        In matter number 2010/2915, the tribunal sets aside the decision under review, and in place of that decision decides that:

(a) the respondent is liable for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the injury sustained by the applicant on 23 September 2008;

           (b)     the applicant has remained partially incapacitated for work as a result of that injury from and after 16 March 2010 and up to the date of this decision;

(c) the applicant is entitled to compensation under ss 16 and 19 of the SRC Act in respect of that injury.

2.        In matter number 2010/4700, the tribunal sets aside the decision under review, and in place of that decision decides that:

(a) the respondent is liable for compensation under ss 14, 16 and 19 of the SRC Act for the aggravation of the applicant’s pre-existing degenerative condition of the lumbar spine that occurred at work on 17 June 2010;

           (b)     the applicant was no longer incapacitated as a result of that aggravation by the date when the applicant returned to his work as a linesman; and

           (c)     the applicant is not incapacitated as a result of that aggravation as at the date of this decision.

3.        The tribunal remits both matters to the respondent to calculate the compensation payable to the applicant in consequence of the above decisions.

4.        The tribunal reserves liberty to apply on or before 16 January 2012 in relation to the costs of the proceedings, and orders that in the absence of any such application, the respondent is to pay the costs of the proceedings.

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Deputy President

Background Facts

6.      The following background facts are based on the evidence of Mr Lynch and documentary material before me, and are not in contention.  I found Mr Lynch to be an honest, forthright and matter-of-fact witness.  I accept his evidence.  There was no suggestion from any of the doctors who have examined him that his symptoms were affected by non-organic or psycho-social factors, or that he has exaggerated his symptoms.  I formed the impression that if anything, he understated his symptoms and their effect.

7.      Mr Lynch is 55 years of age.  He has been employed by Telstra for over 30 years, and for about the last 10 years has worked as a linesman.  This involved detecting faults, effecting repairs and installing telephone equipment.  Prior to the event of 23 September 2008, his work involved going into manholes and pits, and lifting concrete and metal manhole covers, some of which, he estimated, weighed up to 50 kilograms.  He also had to handle ladders which were about 6.5 metres long, and on occasions had to crawl…