Lyons and Telstra Corporation Ltd - [2001] AATA 897

DECISION AND REASONS FOR DECISION [2001] AATA 897

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/377

GENERAL ADMINISTRATIVE DIVISION       )
           Re      STEPHEN ANDREW LYONS
  Applicant
           And    TELSTRA CORPORATION LIMITED
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member & Dr D Weerasooriya, Member

Date29 October 2001
PlacePerth

Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being the respondent's determination of 30 June 1999 (at T document, p. 103), is set aside and substitutes therefor that: (a) The respondent is liable, pursuant to s19 of Safety, Rehabilitation and Compensation Act 1988, to pay weekly incapacity payments to the applicant on the basis that subparagraph (a) of the s.4(1) definition of "suitable employment" in that Act applies and that the matter be remitted to the respondent to determine: the applicant's entitlement to weekly compensation from the date of his dismissal, 5 December 1999, to the date he commenced work with Visionstream; the applicant's entitlement to weekly compensation for the period he worked for Visionstream (or Bensons) till May 1999; and the applicant's entitlement to weekly compensation (if any) since, having regard to any subsequent medical assessments of the applicant's fitness for work. (b) That the spinal fusion operation was reasonable medical treatment. (c) The Tribunal orders, pursuant to s.67(8)(b) of the Safety, Rehabilitation and Compensation Act 1988, that the respondent pay the applicant's costs of this proceeding, such costs, in the absence of agreement, to be taxed by the Registrar or a Deputy Registrar of the Tribunal in accordance with the Tribunal's General Practice Direction dated 18 May 1988.

...........(sgd R D Fayle)..........
Senior Member
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 - injury at work – unsatisfactory performance – termination of employment – whether constructive resignation – whether subparagraph s4(1)(a) or (b) of definition of "suitable employment" applies - reasonable medical expenses.
Safety, Rehabilitation and Compensation Act 1988 – ss4(1) definitions, "medical treatment" & "suitable employment", 16, 19 & 40.
Acts Interpretation Act 1901 – s15AA
Pulitano v Telstra Corporation Limited (1988) 50 ALD 1015
Comcare v Chenhall (1996) 69 FCR 201
Burns and Comcare, November 1998, AAT 13448
Bagic and Comcare, November 1993, AAT 8891

REASONS FOR DECISION

29 October 2001 Mr R D Fayle, Senior Member & Dr D Weerasooriya, Member

Mr Stephen Lyons ("the applicant") has applied to this Tribunal to review a determination by Telstra Corporation Limited ("the respondent"), pursuant to the Safety, Rehabilitation & Compensation Act 1988 ("the Act"), to cease liability for weekly compensation payments from 4 December 1998 and deny liability for fusion surgery undertaken in May 1999.
At the hearing Mr Mark Herron of counsel, assisted by Mr Ray Leclezio, solicitor, represented the applicant. The respondent was represented by Dr Geoffrey Flick of counsel, assisted by Mr Callum Fraser, solicitor. Documents filed with the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal. Oral evidence was given by the applicant and, for the respondent, by Ms Purcell,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lyons and Telstra Corporation Ltd

Details

AGLC: Lyons and Telstra Corporation Ltd [2001] AATA 897
Case: [2001] AATA 897
Decision Date: 29 October 2001

CaseChat Overview and Summary

In the case of Lyons v Telstra Corporation Ltd, the applicant, who had previously been employed by Telstra Corporation as a linesman, sought compensation for an injury sustained during his employment. The dispute centred on whether the applicant was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988, specifically concerning the definition of "suitable employment" and the reasonableness of medical expenses incurred. The matter was heard and determined by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant's post-injury employment with Visionstream constituted "suitable employment" as defined under section 4(1) of the Act. The Tribunal also had to determine if the spinal fusion surgery the applicant underwent was reasonable medical treatment, and whether the applicant's termination of employment with Telstra was due to unsatisfactory performance or a constructive resignation.

The Tribunal found that the applicant's post-accident employment with Visionstream was significantly different from his previous role with Telstra, involving lighter duties and less physical strain. The Tribunal further concluded that the spinal fusion surgery was reasonable medical treatment for the applicant's injury, based on evidence from two orthopaedic surgeons and a medical report by Dr Hopkins. The Tribunal accepted that the applicant's termination of employment with Telstra was not due to unsatisfactory performance or a constructive resignation.

The Tribunal set aside the decision of Telstra Corporation that the applicant was not entitled to compensation and ordered that Telstra pay weekly incapacity payments to the applicant, finding that subparagraph (a) of the definition of "suitable employment" applied. The matter was remitted to Telstra to determine the specifics of the compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the Tribunal's opinion there is ample evidence from two specialist orthopaedic surgeons that the spinal fusion operation was, at the time and in the circumstances, reasonable medical treatment for the applicant to obtain. That opinion also finds support in the medical report of Dr Hopkins referred to above (Ex. A7).Decision For the above reasons and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being the respondent's determination of 30 June 1999 (at T document, p. 103), is set aside and substitutes therefor that:(a) The respondent is liable, pursuant to s19 of Safety, Rehabilitation and Compensation Act 1988, to pay weekly incapacity payments to the applicant on the basis that subparagraph (a) of the s.4(1) definition of "suitable employment" in that Act applies and that the matter be remitted to the respondent to determine:

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied that what the applicant did with Visionstream was in significant ways, different to his pre-accident (pre-8 January 1998) job with the respondent. The job at Visionstream involved relatively light duties compared to that with the respondent. At Visionstream the applicant was a cable jointer. This involved jointing cables in one of two locations. The first were located in manholes (a metre or so below ground). The job required the applicant to climb down into the manhole to carry out the cable jointing. The other type of jointing was done on new housing estates. It involved sitting on a stool beside a pit, probably about 600 ml deep, having pulled each end of the cable from the pit in preparation for jointing. In regard to the latter, the applicant lifted an ergonomically designed pit cover, weighing about 4 or 5 kilos, off the pit, reached down and dragged out the cable weighing less than a kilo. The cable's diameter varied according to whether it was a 10 pair, 20 pair, 30 pair or 100 pair, a pair being two wires to joint. There was relatively no strain in getting the cables out of the pit because they had been laid leaving 2 or 3 metres of cable to enable jointing. Jointing was done sitting on a stool beside the pit. The applicant carried a small gas bottle from pit to pit. It provided the gas for the jointing operation. The applicant would do about 5 or so cable jointings in an average day. The pit jointing was done on new residential development sights where the cables had already been laid and the manholes, pillars and pits had already been wired and it was necessary to join the cables running into the pit with those running from the pit to the house block. The former work, involving access to manholes, required joining cables, which had been previously replaced as a matter of routine maintenance. In either case the applicant was not required to do any heavy lifting, digging, carrying or pulling. The applicant said that he remained in this job until about 20 May 1999, prior to the back surgery.The Spinal Fusion Operation Mr Soni Narula, Neurosurgeon, operated on the applicant on 27 May 1999 performing an L5/S1 internal fixation using interbody lumbar cages. The applicant was seen by Dr Jeremy Hopkins, Consulting Orthopaedic Surgeon, on 21 August 2000, at the behest of the respondent, for the purpose of making a fresh medical assessment. Dr Hopkins' report (Ex. A7) conveniently summarises the relevant history, supported by the applicant's own evidence. Dr Hopkins was not called to give evidence. Despite a last minute attempt to call Mr Narula, he was not available to give evidence either in person or by telephone. Essentially, prior to the hearing the respondent had indicated to the applicant's solicitor that Mr Narula would not be needed for cross-examination. Dr Hopkins' report states, inter alia:"… Having reviewed the available records, interviewed and examined the patient (the applicant), I now submit a detailed medical report in answer to your request.The following details of interview are those obtained from [the applicant] (unless otherwise specified).HISTORY:Occupation/Work Duties:At the time of the injury, [the applicant] was employed as a linesman for [the respondent] and had been working for them for three years.Initially he worked digging ditches, putting cabling in rooves and in new houses. Also subsequent to that he spent time installing new lines in existing houses and climbing in rooves and the like. He worked full-time.Prior to joining [the respondent], he was in the Royal Australian Navy from 1988 to 1994, entering the Navy at the age of 17 years. His work in the navy was as a clearance diver.Since ceasing work with [the respondent], he has not undertaken any other employment.Mechanism of Injury/Sequence of Events:[The applicant] states that initially in 1997 he was in a roof and experienced low back pain and pain down his left leg as far as the foot, which came on over a day. He consulted his general practitioner that night and was put off work for approximately two weeks and was prescribed medication. His symptoms improved to the point that he was able to return to work on light duties and ultimately to full duties.From that point on he said his back would play up at times, particularly if he was standing or bending for long periods of time.He states that on 8 January 1998, he was moving a slab of bricks and picked up four bricks at a time, bending down to do so, when he experienced severe pain in his low back, causing him to stop working and attend his general practitioner again.Initial/Early Treatment Received:[The applicant] was told he had a muscle strain and was advised to rest at home. Physiotherapy was initiated which continued for approximately three weeks. The physiotherapy aggravated his symptoms and he therefore consulted his general practitioner again, who referred him to another general practitioner, who arranged for an MRI and CT scan.Subsequent Progress/Specialist Management:[The applicant] was subsequently referred to a pain specialist, Dr Finch.Dr Finch undertook three day case procedures, initially trying a local anaesthetic injection to the nerve root, the to the disc and ultimately a discogram was undertaken. This demonstrated a rupture of the L5/S1 disc, which had been suggested on the MRI scan. Injection of this disc reproduced his pain severely. There was a minor degree of disc pathology at L4/5.He was then referred to Dr Narula, Neurosurgeon who, quite clearly from your enclosures, was not keen on operative intervention initially and considered that [the applicant] should continue with conservative management for some time, particularly in view of the fact that he appeared to have unrealistic expectations of what could be achieved following surgery.This state of affairs continued for some time and [the applicant] was not keen to persist with conservative management. He was therefore referred to Dr Bannan, Neurosurgeon, for a further opinion. There was some discussion as to whether or not he should undergo a two level fusion at L4/5 and L5/S1, but Dr Bannan advised that it was reasonable to consider a fusion at this point, seeing his symptoms had not resolved, but it should be confined to one level at L5/S1.As a consequence of this he subsequently underwent surgery on 27 May 1999, undergoing an L5/S1 fusion with cages and bone graft inserted posteriorly.Initially there was little change in the first six to eight months post-operatively. He continued to experience leg pain but his condition began to improve and the pain almost resolved. He found that he was able to walk and be active in the pool without great difficulty, but if he overdid things, he would become uncomfortable.However, his pain increased again, for reasons which he is unclear. He thinks he last saw Dr Narula earlier this year and no new instructions were given. He is unsure if he is due to be seen again. He has been advised that it takes at least 12 to 18 months or more for such fusion procedures to reach their end point.…SUMMARY AND ASSESSMENT:[The applicant] clearly sustained an injury to his L5/S1 disc, presumably initially in 1997, which gave rise to some damage to the disc which was then further injured in January 1998.His injury has not produced any overt major disc extrusion or protrusion sufficient to cause pressure on nerve roots that can be elucidated. It is likely therefore that the pain in his leg may well be referred pain.His current presentation of the non-anatomical sensation alteration is pain behaviour and due to some degree of overlay and is not due to nerve root compression.…His discogram also appears to have demonstrated quite easily the disc lesion at L5/S1.…At the present time no further surgical intervention is required.With regard to the specific questions set out in your letter of 11 August 2000, I would advise that:…3. Whether you believe that [the applicant's] condition is related to his employment with [the respondent]His current condition, in my opinion, is related to his employment with [the respondent], as it was in that employment that he sustained his injury in 1997/1998. That injury as described is the cause of his current status and the necessity for surgery.4. Whether in your opinion, the surgery undertaken by [the applicant] (sic) was reasonable.With regard to whether or not the surgery was indicated, one can argue either way.To wait for a reasonably prolonged period of time to ensure that patient really understands and is keen to go ahead with a one-level fusion and then undertake the fusion is appropriate and is orthodox treatment. On the other hand, adopting a more conservative approach, such as Dr Edibam suggested, is also within orthodoxy of current treatment.Either way, the end point of recovery is prolonged and will take at least two to three years, in my opinion.If surgery had not been undertaken, I consider he would have made a gradual but slow improvement over time. As to whether or not this would occur any quicker or slower than surgical intervention is impossible to say. Nevertheless, in the context of modern orthopaedic practice, the ultimate decision to offer him a one-level fusion was reasonable within modern treatment protocols.…"