Mahon and Telstra Corporation Limited
[2004] AATA 297
•23 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 297
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2002/1695
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER MAHON Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Senior Member M D Allen Date23 March 2004
PlaceSydney
Decision The decision under review is set aside and there is substituted in lieu thereof the Tribunal's decision that the Applicant is entitled to the payment of compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 for the injuries described as "injury to the right knee and ischaemic damage to the median nerve of both forearms".
The Respondent is to pay the Applicant's costs.
(Sgd) M D Allen
..............................................Senior Member
CATCHWORDS
WORKERS' COMPENSATION - Applicant injured right knee in a work accident in January 1997 - He had previously injured right knee twice - Full history not given to examining medical practitioners - False statements about ability to engage in sport after work accident - Whether Applicant also injured lower back or made an asymptomatic condition symptomatic - Injury to forearms - Did observed sequence of events support Applicant's case - Decision under review affirmed re back, set aside for right knee and both forearms.
Safety, Rehabilitation and Compensation Act 1988 - s14
Adelaide Stevedoring and Co Pty Ltd v. Forst (1940) 64 CLR 538
Treloar v. Australian Telecommunications Commission (1990) 26 FCR 316
De La Cruz v. Australian Postal Commission (1997) 73 FCR 204
Midland Metals Overseas Ltd v. Comptroller-General of Customs (1991) 30 FCR 87
Comcare v. Grimes (1994) 50 FCR 60
State Rail Authority of New South Wales v. Thorpe [1998] NSWSC 110
REASONS FOR DECISION
23 March 2004 Senior Member M D Allen 1. By application made the 24th May 2002, the Applicant sought review of a purported reviewable decision made the 23rd day of May 2002.
2. The decision of 23 May 2002 purported to review a reviewable decision dated 10 April 2002 and a determination dated 27 November 2001. As was made clear in De La Cruz v. Australian Postal Commission (1997) 73 FCR 204, there is no power under the Safety, Rehabilitation and Compensation Act 1988 enabling the Respondent to further review a “reviewable decision” made pursuant to s62 Safety, Rehabilitation and Compensation Act 1988. However, the Respondent did have power pursuant to ss62(1) Safety, Rehabilitation and Compensation Act 1988 to review on its own motion a prior determination made by it.
3. Any attempt therefore to purport to revoke the reviewable decision of 10 April 2002 is of no effect and the matter before me was the revocation of the determination of 27 November 2001 which determination had approved ongoing weekly incapacity benefits for the injury more particularly described as “multiple soft tissue injuries to right knee, both forearms and lower back”.
4. The Applicant’s Counsel sought to mount an argument based on the previous acceptance by the Respondent of liability for the Applicant’s injuries. Suffice it to say that estoppel, either issue estoppel or cause of action estoppel has no part to play in proceedings before the Administrative Appeals Tribunal: see Midland Metals Overseas Ltd v. Comptroller–General of Customs (1991) 30 FCR 87 and Comcare v. Grimes (1994) 50 FCR 60.
5. Likewise, as was pointed out in McDonald v. Director-General of Social Security (1984) 1 FCR 354, there is no onus of proof in matters before the Administrative Appeals Tribunal. However, as pointed out by Woodward J, in McDondald (supra) at p358, if the Tribunal, after considering the material before it finds itself in a state of uncertainty, then it will be necessary to analyse carefully the decision under review. If it is a decision to cancel a benefit, then if not persuaded otherwise, the status quo remains. This view is entirely consistent with the judgment of the New South Wales Court of Appeal in State Rail Authority of New South Wales v. Thorpe [1998] NSWSC 110, where in an appeal from the Compensation Court New South Wales, the Court of Appeal said, “there is a well known presumption of fact that existing conditions continue, and if His Honour was entitled to find the existence of a causal nexus in March 1996, it could not be said, in my view, that there was no evidence on which he could find such a causal nexus in October 1996 and later, or that he misdirected himself in law in coming to that conclusion.”
6. The specific event giving rise to the Applicant’s claim is quite straightforward. On 21 January 1997, whilst in the employ of the Respondent, he was installing a coaxial cable on the roof of a two-storey residence. He slipped and fell from the roof and his right leg became trapped between a TV antennae and the roof. He was left suspended by a safety harness to which he was holding onto with both hands, with his left leg on the roof and his right leg caught between the TV antennae and where it joined the roof.
7. Versions differ as to how long the Applicant remained suspended from the roof. In an incident notification form to the employer, it is stated that the Applicant held onto a safety rope for 20 minutes until police rescue arrived.
8. Dr Lewin, Psychiatrist, in a report dated 5 April 2001, took a history that the Applicant’s workmates called the fire brigade immediately he fell and the Applicant remained suspended from the roof for some 20 to 30 minutes before he asked his workmates to again telephone the fire brigade. They did so and the brigade arrived within a couple of minutes of the second call. Other medical practitioners have taken histories of longer periods, for example:
“Dr Kleinman - 1 ½ hours
Dr Hagen - 1 ¼ hours
Dr Glasse - 1 hour
Professor Mitchell - 45 minutes to 1 hour
Dr Dalton - 45 minutes
Dr Thomson - 1 ½ hours”.
9. My opinion of the Applicant, having heard and seen him give evidence and be cross-examined is that he is a poor historian, and that there are other discrepancies in the histories provided by him to medical practitioners and therefore I am satisfied that the initial report of incident is correct and that the Applicant was suspended from the roof for between 20 to 30 minutes.
10. In evidence, the Applicant stated that after being rescued he felt pain in his right lower leg and in his arms from holding onto the safety rope. He had two days off work. He continued to experience pain (“I was sore”) but thought he would get over it, but a couple of weeks later his body “shut down”.
11. Initially, the Applicant was referred by his general practitioner to Orthopaedic Surgeon, Dr Glasse, regarding his right knee and pain in both of his arms and to Dr Ghabrial regarding pain in his back. Since that time, the Applicant has been seen by numerous medical practitioners, including psychiatrists.
12. A major difficulty in considering the opinions of those medical practitioners who have examined the Applicant is that he has not given to any of them a full and complete history of injuries suffered by him.
13. The Applicant gave evidence that he had suffered an injury to his right knee when aged 18. Other material in evidence refers to the Applicant having undergone a partial medial meniscectomy at that time. He conceded in cross-examination that Dr Dalton is the only doctor to whom he had given a history of injuring his knee at age 18.
14. A further matter is a failure to disclose to medical practitioners who examined him after 20 June 1999 that he injured his right knee playing soccer on that date and was conveyed to hospital by ambulance. In a claim for permanent impairment dated 5 May 1998, the Applicant stated that following the incident on 21 January 1997, he could no longer play soccer. This claim was repeated in a non-economic loss questionnaire completed by the Applicant on 6 June 2000, ie after the date he had been injured playing soccer. I do not accept for one moment that a person who is injured in a sporting activity and conveyed to hospital by ambulance could forget that incident. I believe that in the history the Applicant has given to various medical practitioners and in other accounts of injury occasioned to him, the Applicant has deliberately set out to magnify the results of the events of 21 January 1997 and its effect upon him.
15. I am not convinced that the Applicant as he now claims injured his right knee at work in 1995. Originally he claimed that it was a soccer injury but now states that it occurred at work and he disguised this fact as he thought a compensation claim might affect his chances of being made permanent. I do not accept this evidence.
16. Another injury not disclosed to examining medical practitioners was a motor vehicle accident on 4 December 1997 when the Applicant was conveyed to Sutherland Hospital and placed on a spinal board with his neck immobilised. Although the Applicant stated he did not tell examining medical practitioners as “nothing came of it”, x-rays were taken of his lower thoracic and lumbar spine and notes state that he complained of mid-back pain.
17. In a report dated 7 June 2000, Psychiatrist Dr Lambeth recorded a history of no prior psychiatric disorder, yet again this history given by Applicant is quite false.
18. In a report to the Respondent dated 9 December 1997, the Applicant’s treating Orthopaedic Surgeon Dr Glasse stated:
“I first saw Chris Mahon on the 9th March 1997. He was a 33 year old man employed by Telstra who sustained an injury to his right knee and both forearms following an injury at work on the 21st January 1997. … He presented to me complaining of chronic pain in the right knee and aching pain in both forearms. He complained of paraesthesia in both hands. Recent nerve conduction studies apparently confirmed carpal tunnel syndrome. His past history was significant for an arthroscopy of the right knee three years previously.
Examination
On examination of the right knee there was no effusion. …
Diagnosis
Mr Mahon suffers from early medial compartment osteoarthritis in the right knee. This is subsequent to a previous medial meniscectomy. This is unrelated to his work injury. He currently also continues to complain of residual symptoms of median nerve inflammation.
He has early medial compartment osteoarthritis in the knee. This is unrelated to his work injury and is due to a previous injury and subsequent medial meniscectomy. In my opinion Mr Mahon is capable of performing the duties involved in ‘Disconnects’ …”
19. On 18 December 1997, Dr Kleinman, Orthopaedic Surgeon saw the Applicant at the request of his solicitors. After noting that the Applicant had been suspended from the roof for one and a quarter hours he took a history that stated, inter alia, that the Applicant “… is a golf player but has only had 2 games since January and has had to give up playing soccer.”
20. At page 3 of his report, Dr Kleinman states, inter alia:
“This gentleman appears to have sustained injuries to his right knee, to his back and to both arms as a result of his fall. The knee seems to be an aggravation of an underlying degenerative change in the knee related to his first work injury in 1995. …
Insofar as his low back is concerned, he has probably had this spondylolysthesis from late childhood or early adolescence but it was the fall which brought attention to it. Why there should be a latent period of a month between the fall and the onset of all his symptoms isn’t clear …”
21. After perusing Dr Glasse’s report, Dr Kleinman opined in a report dated 17 February 1998:
“… I note that at arthroscopy he was found to have Grade 3 changes in the articular cartilage of the tibial plateau of the medial side of the right knee consistent with him having had a previous menisectomy (sic) in 1995. The fact that the knee has got worse suggests that the fall has aggravated previous underlying degenerative changes by injuring soft tissues and also possibly damaging the joint surface further. …”
22. Dr Robert Heard, Consultant Neurologist, originally saw the Applicant upon referral from his general practitioner. In a report to the Respondent dated 2 June 1998, he opined:
“The injuries sustained are consistent with ischaemic damage to both median nerves in the forearms rather than mechanical entrapment at the wrists. Gradual spontaneous recovery has been occurring at a rate consistent with axonal regeneration. At this stage no further intervention or treatment is considered likely to be necessary. It is likely that full recovery will occur but it is impossible to state over what period this final recovery will occur. …”
23. Dr Hagan, Consultant Surgeon examined the Applicant at the request of the Respondent and on 17 August 1998, he diagnosed:
“Neurapraxia and/or anoxia of the right and left medial nerve of the wrist. Partly relieved by surgery. Twisting trauma to the right knee which had previously suffered a cartilage removal of the degenerative osteoarthritis following. Strain to the lumbar spine which was the site of a congenital abnormality of six lumbar vertebrae and spondylosis at L6. An annular tear at the L5/6 disc. Degeneration of the C4/5 disc.”
Attributality
Mr Mahon’s wrist condition is attributable to the injury of January 1997. The right knee condition is attributable to two work injuries the first in 1995 together with the fall in January 1997. The back condition is largely congenital and constitutional in origin and aggravated by the injury in January 1997.”
24. Further surgery upon the Applicant’s right knee was undertaken by Dr Glasse in April 2000. In the event, that surgical procedure seems to have been unsuccessful.
25. Dr Glasse furnished a further report to the Respondent on 24 April 2001. In that report he stated:
“The osteoarthritis in his right knee is largely a result I feel of the previous injury and medial meniscectomy that was performed 3 years prior to the work related injury. The work related injury resulted in an exacerbation of the underlying degenerative change. I feel that the bilateral carpal tunnel syndrome was the result of the work related injury. Despite surgery he still has some ongoing mild symptoms. … I would assess the permanent percentage impairment of his right lower limb at or above the knee due to the work-related injury at 10%.”
26. On 30 April 2001, Dr Laird, Orthopaedic Surgeon, noted a history of “approximately 3 arthroscopies and a subsequent proximal tibial osteotomy and fixation.” Subsequently on 4 June 2001, Dr Laird performed an arthroscopy and anterial cruciate ligament repair. Further procedures were carried out on 16 July 2001. On 11 December 2001, Dr Laird recommended that the Applicant have a total knee replacement.
27. As a result of the recommendation of Dr Laird for a total knee replacement, the Applicant was referred by the Respondent to Dr Thomson, Orthopaedic Surgeon. In his report of 6 February 2002, Dr Thomson noted a history of arthroscopy to the right knee in 1995 and opined:
“Mr Mahon has sustained injuries to his right knee, lumbar spine and his hands in a work related incident when he fell on (sic) a roof and was suspended on the roof for a considerable period of time.
He suffered an aggravation of a previous injury to his right knee and has developed instability of the right knee and ongoing pain and discomfort.”
28. Dr Thomson continued in his report to state:
“He does have evidence of a pre-existing spondylolysthesis in his lumbar spine and has a congenital abnormality in this area. There has been an aggravation of his lower lumbar spine resulting in ongoing pain and discomfort ….
He has required operations on both hands and he has made a good recovery of decompression of the carpal tunnels of both hands. He is left with some mild weakness and discomfort in his hands.”
29. Following evidence that was adduced in proceedings by the Applicant for psychiatric illness, the Respondent referred him to Dr Dalton, a consultant in rehabilitation medicine. Dr Dalton’s report of 22 July 2003 is exhibit R4 in these proceedings and Dr Dalton gave evidence and was extensively cross-examined.
30. Dr Dalton remained quite unshaken in cross-examination. He gave reasons as to why in his opinion the Applicant, as a result of the incident on 21 January 1997, suffered no more than an aggravation of the longstanding degenerative condition affecting his right knee.
31. Referring to the Applicant’s back, Dr Dalton stated:
“… if he had sustained a significant aggravation of the spondylolysthesis I consider it highly unlikely that he would have been able to continue working on normal duties for a month or so after the fall. Plus the mechanism of injury would be unlikely to cause significant or severe exacerbation on that pathology.
And later in cross-examination stated:
“If you fall on your buttocks and you have a bit of backache but you get back to normal function, it’s highly unlikely that you’ve suffered significant injury, …”
32. The opinion of Dr Dalton regarding the Applicant’s back must be contrasted to those of Dr Ghabrial, Orthopaedic Surgeon, to whom the Applicant was referred by his general practitioner. Although in his report of 11 March 2002, Dr Ghabrial does not directly implicate the fall on 21 January 1997 as the cause of the Applicant’s back problems, he clearly refers to an injury at that time with ongoing problems.
33. Professor Mitchell, in a report dated 20 May 2003, stated that the Applicant at the time of the incident on 21 January 1997 had longstanding arthritic changes in his right knee and these were aggravated by the twisting strain during the fall and that such aggravation would recover with time and non-steroidal inflammatories. He also opined that the incident led to the Applicant having a temporary ischaemia of the medial nerves of his arms which was helpeded but not completely relieved by carpal tunnel release.
34. In assessing the contribution, if any, the work accident on 21 January 1997 made towards the Applicant’s current injuries, the remarks of Rich ACJ in Adelaide Stevedoring & Co Ltd v. Forst (1940) 64 CLR 538 at 564 are apposite namely that that there is a presumption that flows from the natural sequence of events. Here, given the Applicant’s already damaged right knee, it is difficult, given the circumstances of the accident, not to accept that some additional damage was caused to that knee. For that reason, I prefer the opinions of those medical practitioners who state that the events of 21 January 1997 did contribute to the current degenerative state of the Applicant’s right knee. Dr Glasse, who had treated the Applicant and operated upon him, assessed the permanent percentage of impairment to the Applicant’s right knee due to the work accident at 10 per cent. In other words, the work accident made a not insignificant contribution to his current condition: see Treloar v. Australian Telecommunications Commission 26 FCR (1990) 316 at 323, after stating “All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must in truth, be part of the cause. If they are not, then they do not ‘contribute’.” The Court then went on to say, “the causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
35. I am also convinced that the only explanation for the injury to the Applicant’s wrists and forearms is a result of the events of 21 January 1997, in particular, his being required to hold onto a safety rope. Where opinions differ, I prefer the opinions of Dr Hagan and more particularly Neurologist Dr Heard, who in their reports to the Respondent clearly regarded the work accident as the cause of the Applicant’s injury.
36. On the other hand, given the explanation of the mechanism of injury by Dr Dalton, I accept his opinion that the actual fall experienced by the Applicant on 21 January 1997 was insufficient to explain his current symptoms. In particular, I note that the Applicant was able to return to work almost immediately afterwards and was still able to play soccer. Other reports, for example Dr Hagan, have referred to pre‑existing constitutional degeneration and the Applicant may have suffered some temporary flare-up of symptoms as opposed to aggravation of the underlying condition.
37. The decision under review is therefor set aside and there is substituted in lieu thereof the Tribunal’s decision that the Applicant is entitled to the payment of compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 for the injuries described as injury to the right knee and ischaemic damage to the median nerve of both forearms. The Respondent is to pay the Applicant’s costs.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: (K. Wong) .......................................................................................
AssociateDate/s of Hearing 11 & 12 February 2004
Date of Decision 23 March 2004
Counsel for the Applicant Mr T. R. Edwards
Solicitor for the Applicant Bale Boshev Solicitors
Counsel for the Respondent Mr B. Kelly
Solicitor for the Respondent Henry Davis York
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