Magrathea and Comcare

[2004] AATA 618

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 618

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Q2003/992,993

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TONY MAGRATHEA

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President Don Muller

Date18 June 2004  

PlaceBrisbane

Decision

The Tribunal affirms the decisions under review that:

1.  Tony Magrathea has no incapacity for work as a result of a back injury he suffered on 2 August 1982 and he is not entitled to compensation for incapacity payments;  and

2.  Tony Magrathea is not entitled to payment of compensation in relation to a claim for permanent impairment of his back as a result of an injury he suffered on 2 August 1982.

................SIGNED..............................

D.W. MULLER
  DEPUTY PRESIDENT

CATCHWORDS

WORKERS’ COMPENSATION – no incapacity for work – no permanent impairment – minor back stiffness of constitutional origin – decisions affirmed

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Deputy President Don Muller        

1.      Tony Magrathea, the Applicant, made claims in mid 2002 that he was incapacitated for work and that he has a permanent impairment to his back as a result of a lumbar spine injury he suffered on 2 August 1982, whilst working for the Australian Taxation Office.  He claims workers’ compensation pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act 1988).

2.      Mr. Magrathea’s claims have been rejected on the following bases:

(a)He is not incapacitated for work as a result of the injury of 2 August 1982.

(b)There has been no claim on the Respondent for medical treatment for the back injury of 2 August 1982, from 1985 to 2002.  Consequently, Mr. Magrathea has failed to show that there has been any continuity of effect from the back injury of 1982 through to 2002.

(c)Any effects from the 1982 injury would have ceased by 1985 at the latest.

(d)He has a nil employment-related whole person impairment.

(e)Even if he did suffer a permanent impairment to his back in 1982, he is not entitled to compensation for it under the SRC Act 1988.

3.      The material placed before the Tribunal leads me to make the following findings of fact:

(a)Tony Magrathea was born on 28 March 1957.  He was previously known as Anthony Terence Savage.

(b)He played rugby as a young man and injured his back whilst doing so.

(c)In 1978 he worked in a bakery.  He injured his back whilst lifting a heavy crate of bread at the bakery.  He was off work for eight months as a result of this injury.

(d)He joined the Australian Public Service in 1979 and his position became permanent on 29 March 1982.

(e)On 2 August 1982, he was working for the Australian Taxation Office when he experienced pain in the lumbar region of his back whilst lifting some papers.

(f)He had back pain on and off for about 12 months after the August 1982 incident.  His doctor recorded on 12 November 1982 that he was then suffering only minimal pain and had full painless range of movement.

(g)By early 1983 he was assessed as being 100% fit.

(h)He had another episode of back pain which resolved by mid-1983.  He was then able to play cricket, run and swim.

(i)He again injured his back in a motor vehicle collision in 1984.  A claim for compensation was rejected on the ground that this was not a work-related incident and no compensation was payable.

(j)He was examined by a Dr. Nelson in September 1985.  Dr. Nelson reported as follows:

“X-rays that he showed me, taken in August 1982, showed little of assistance.  There were signs of his having had Schuermans Disease in his adolescence, and there was sacralisation of L5/S1.  Neither of these conditions are particularly helpful in ascertaining the cause of pain.

I believe that in 1978 the pain had come on after he lifted a crate of bread at his then work.

The probable etyology of his pain was a recurrence of a soft-tissue i.e. ligaments tendon and/or muscle injury, to his lower back, or an intervertebral disc lesion.”

(k)He joined the Australian Bureau of Statistics (ABS) on 26 October 1989 and worked with that organisation until 23 January 1995 when he accepted a voluntary retirement package.

(l)He had two days off work in 1990 on account of “back pain”.

(m)In 1995/96 he ran his own business.  He delivered newspapers from a car and taught computing skills.

(n)He played lawn bowls to a high level, representing his state in interstate competitions, during the 1990s.

(o)In 1996 he travelled to Great Britain and obtained work with British Telecom.  He worked for BT for about 18 months in Inverness.

(p)In 1998, he returned to Australia.

(q)In November 1998 he was sentenced to imprisonment for three years. He remained in prison until November 2001.

(r)Whilst in prison he filled in a health questionnaire on 19 May 1999.  Among a lot of answers to questions he said that he did not see a doctor on a regular basis and that he had no injuries, no major health problems, no physical disabilities and no medical condition which could affect behaviour or work placement.  The questionnaire asked about back pain but the question was not answered.  He did, however, answer the question “other illness (specify)” by writing “knee and shoulder problems”.

(s)On 11 October 1999, he requested that he be allowed to remain in his cell.  The prison note reads as follows:

“Presented requesting SIC for old rugby injury  IR back injury with spasms.  Prefers to do exercise rather than medication to relieve the latter given SIC”.

The notation “SIC” means “sick in cell”.

4.      Mr. Magrathea claims that his back has troubled him since 1982.  He further claims that in 2002 his back condition “flared up” and now prevents him from working.

5.      Mr. Magrathea was examined by two specialists in 2003.  By Dr. Maxwell, orthopaedic surgeon, on 28 July 2003, and by Dr. Carr, rheumatologist, on 22 July 2003.

Dr. Maxwell’s report contains the following:

“X-rays of his lumbar spine taken on 7/8/02 show no significant abnormality.

CT scan of his lumbar spine taken on 5/6/03 reveals excellent disc space preservation and is described as showing a slight bulging of the L5/S1 disc.  This looks more to me like some calcification of the posterior longitudinal ligament.  There is no evidence of neural compromise on the scan.

Mr Magrathea has complained of recurrent low back pain which appears to have commenced in 1978 after a work-related injury.  He was off work apparently for eight months following this alleged injury.  It appears that between his acute attacks of back pain he essentially returns to normal.  There has never been any obvious cause for these attacks of low back pain.  His investigations have been normal and there has never been any question of radiculopathy.

At the present time he is overweight and on examination has some restricted movements of his lumbar spine.  The most likely cause of his recurrent low back pain is some minor facet joint irritation which is incapacitating at the time.  The fact that he is free from pain during these attacks indicates that the condition is probably constitutional and not related to any specific work-related injury.  There is no evidence that he sustained a significant structural injury to his back in 1982 at the time of the alleged injury while working for the Taxation Department.

I do not consider he has any incapacity for his employment due to any compensation condition.

I do not consider at the present time he is incapacitated for work.  I consider he is fit for any work without restrictions.

I consider the effects of any compensable condition while working for the Taxation Department have ceased.

I do not consider he has any permanent impairment of his lumbar spine arising from an injury which occurred on 2/8/82.  He does have some stiffness of his lumbar spine at the present time but this is due to the recent episode of facet joint irritation which is a constitutional condition and not related to his alleged work injury.  Therefore any permanent impairment is as a result of non-employment factors.  I consider that any minimal impairment he has at the present time could certainly be reduced by losing some weight and undergoing an intensive flexion exercise program to build up the power of his trunk muscles.”

Dr. Carr’s report contains the following:

“I would have thought that he was fit to return to Public Service employment, despite his allegations of backache presently.  There are no objective physical signs to confirm any signs of radiculopathy in the lower limbs, or significant restriction of back movement.

I would have thought he was fit for a normal trial of pre-injury duties.

With respect to the 1982 injury, I would have thought that the compensable effects of this injury should have ceased by 1985.”

6.      The opinion of the specialist medical witnesses that Mr. Magrathea’s back problems arising from the 1982 incident would have resolved by 1985, is corroborated by the fact that from 1985 onwards, Mr. Magrathea has led an active working and sporting life, and he did not mention having a back problem when he filled in the prison questionnaire in May 1999.

7.      I accept the evidence of the medical specialists that any effects of the 1982 incident would have resolved by about 1985 and that any back problems from which Mr. Magrathea currently suffers are constitutional in nature, fairly minor and would not incapacitate him for work.  I also accept that Mr. Magrathea has no permanent impairment of his lumbar spine arising from the incident on 2 August 1982.

8.      Consequently, I find that Mr. Magrathea is not entitled to be paid compensation for any incapacity he might be suffering, nor compensation for permanent impairment.

9.      The decisions to reject Mr. Magrathea’s claims for compensation are affirmed.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           Catherine O’Donovan, Associate

Date/s of Hearing   1 April 2004
Date of Decision   18 June 2004
Counsel for the Applicant          Mr. Magrathea, himself 
Counsel for the Respondent     Mr. E. Ford
Solicitor for the Respondent      Sparke Helmore