MICHAEL ROBERT GILES and TELSTRA CORPORATION
[2009] AATA 216
•2 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 216
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos. S 200600282, S 200600283,
) S 200600284, S 200600404,
GENERAL ADMINISTRATIVE DIVISION ) 2007/5784, 2008/0186,
2008/0187, 2008/0188 and
2008/0647Re MICHAEL ROBERT GILES Applicant
And
TELSTRA CORPORATION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Dr E Eriksen, Member Date2 April 2009
PlaceAdelaide
Decision 1. The tribunal makes the following decisions in relation to the four applications for review of the reviewable decisions in respect of Mr Giles’s claims for low back injuries.
(a) In matter number S 200600284 in relation to the jumper wire event, the tribunal affirms the decision under review.
(b) In matter number S 200600404 in relation to the laptop event at Move Physiotherapy, the tribunal affirms the decision under review.
(c) In matter number 2008/0188 in relation to the measuring wheel event, the tribunal sets aside the decision under review, and in place of that decision:
· decides that the respondent is liable for compensation in respect of the aggravation to the pre-existing degenerative condition of the applicant’s low back arising from that event, but that the effects of that aggravation were temporary and had ceased by not later than three months after that event; and
· remits the matter to the respondent for reconsideration in accordance with these reasons.
(d) In matter number 2007/5784 in relation to the U-turn event, the tribunal affirms the decision under review.
2. The tribunal makes the following decisions in relation to the three applications for review of the reviewable decisions in respect of Mr Giles’s claims for hip/groin injuries.
(a) In matter number S 200600283 in respect of the asserted injury on 10 January 2006, the tribunal affirms the decision under review.
(b) In matter number 2008/0187 in respect of the injury sustained on 29 November 2006, the tribunal sets aside the decision under review, and in place of that decision:
· decides that the respondent is liable for compensation for the aggravation arising from that event, but that that aggravation was only temporary, and the applicant ceased to suffer from the effects of that aggravation by no later than seven days after that event; and
· remits the matter to the respondent for reconsideration in accordance with these reasons, pursuant.
(c) In matter number 2008/0186, the tribunal affirms the decision under review
3. In matter numbered S 200600282 the tribunal affirms the decision under review.
4. In matter numbered 2008/0647, relating to the claim for tinnitus of the left ear, the Tribunal sets aside the decision under review, and remits the matter to the respondent for reconsideration in accordance with these reasons.
(Signed)
D G Jarvis
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – Telstra technician sustained injuries to lower back, groin/hip, neck and hearing – pre-existing degenerative conditions – conflict of medical evidence – whether seven injuries were contributed to by employment in a material degree – whether two injuries were contributed to by employment to a significant degree – meaning of “injury”, “disease” and “aggravation” – three decisions re claims for low back pain affirmed and fourth decision set aside – two decisions re hip/groin claims affirmed, and third decision set aside – decision re claim for neck injury affirmed – decision re claim for tinnitus set aside and remitted to respondent for reconsideration.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4 and 14
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Comcare v Sahu-Kahn (2007) 156 FCR 536
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
2 April 2009 Deputy President D G Jarvis and
Dr E Eriksen, Member1. The applicant, Michael Robert Giles, is an employee of Telstra Corporation Limited. He has made various claims against Telstra for compensation which have been finalised. The present proceedings relate to further claims for compensation, which have either been rejected by Telstra or where Telstra, after admitting liability, has determined that Mr Giles has recovered from the effects of injuries that were the subject of his claims. Mr Giles has applied to this tribunal for review of nine decisions in relation to such further claims.
2. There are four applications before us for review of decisions in relation to claims for injuries to the lower back, three applications for review of decisions in relation to claims for injuries to the left groin/hip, one application to review a decision in relation to a claim for a neck injury, and one application to review a decision in relation to a claim for a hearing injury.
3. Issues have arisen as to the nature of the injuries for which Mr Giles is claiming compensation, and whether those injuries are employment related so as to be compensable.
Background
4. Mr Giles is aged 53. He prepared a very comprehensive history of his working life and employment, being ST1 in exhibit R10. From this it appears that in 1973, at the age of 17, he commenced work as an apprentice telecommunications tradesman with the PMG, the predecessor of Telstra. He duly completed his training, and later had a variety of positions in Port Pirie, Darwin and Jabiru. While he was based at Jabiru he was elected and served on the local council and was a JP for the Northern Territory. He returned to Adelaide in 1990 as his first two children were getting older and needed a higher standard of education.
5. During the early part of the period during which the events that are the subject of the present applications occurred, Mr Giles was employed as a communications technician. As we understand it, this work involved maintaining and repairing exchange networks, and also working on the main distribution frame within different exchanges. This latter work often involved working from a ladder. His duties also entailed driving a motor vehicle between telephone exchanges in order to carry out the tasks assigned to him.
6. After the occurrence of various events that were the subject of claims for compensation, Mr Giles was transferred to office duties, and in October 2006, to duties called “DA Walking”. This involved walking the streets where a cable distribution area was located, and using a measuring wheel to check the distances between telephone pit lids. Later again, Mr Giles was transferred to office work.
7. In accordance with instructions he received from Telstra, Mr Giles maintained a detailed diary, and made daily entries relating not only to his work activities, but also to events that are the subject of his claims for compensation, and other matters relevant to those events and claims. He subsequently transcribed his diary entries for the years 2004, 2005 and 2006, and included some further notations in his transcription. He tendered that document, and also some 15 volumes of notes and documents relevant to his claims and to his activities. Whilst much of this material was either irrelevant or of marginal relevance to the issues before us, some of it comprised contemporaneous notes and records which were of some assistance in determining the applications before us.
8. We found Mr Giles to be a frank witness, who did his best to give an accurate account of matters relevant to his claims. We accept his evidence except where we expressly indicate otherwise in these reasons.
Legislative Scheme
9. Section 14(1) of the SRC Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, and provides as follows:
“14(1) Subject to this Part, Telstra 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.”
10. Seven of the nine applications before us relate to injuries claimed to have been suffered prior to 13 April 2007, being the date when amendments to the SRC Act came into force. Under the Act as in force prior to those amendments, the requisite connection between the injury and employment is provided for indirectly, via the definitions of “injury” and “disease” in s 4(1) of the SRC Act. This provided relevantly as follows:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or …”
11. The word “disease” was defined as follows:
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
12. The word “ailment”, which is used in paragraph (a) of the definition of “disease”, was defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The word “aggravation” is defined to include “acceleration or recurrence”.
13. The definition of “disease” under the Act was amended with effect from 13 April 2007. The remaining two applications before us, relating to the claims for a low back injury and a hip/groin injury asserted to have been sustained on 9 and 12 May 2007 respectively, must be determined by reference to s 5B of the Act as currently in force, where “disease” is defined as follows:
“disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.”
Section 5B(3) provides that “significant degree means a degree that is substantially more than material”, thus making this a stricter test than previously applied.
14. The factors which can be taken into account by a decision-maker when determining whether employment has contributed to an employee’s ailment or aggravation to a significant degree are set out in s 5B(2) and include:
“(2) …
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.”
Claims for low back injury – matter nos. S 200600284, S 200600404, 2008/0188 and 2007/574
15. The claims for a low back injury that are the subject of the applications before us are as follows:
(a) a claim for “non specific lower back pain” (exhibit R3, T22, page 65) as a result of an incident claimed to have occurred on 25 August 2004 when Mr Giles was pulling an old wire out of a main distribution frame. Telstra accepted liability, but subsequently decided that the effects of the event had resolved as at 10 April 2006. Mr Giles’s application to review a subsequent reviewable decision affirming that decision is the subject of proceedings number S 200600284;
(b) a claim for “annular tear L4/5 aggravation of” (exhibit R4, T17, page 89) arising from an event claimed to have occurred on 28 April 2006 when after carrying a lap top up some stairs at the front of Move Physiotherapy, Mr Giles experienced a sharp pain in his lower back as he entered the premises. Telstra decided to reject this claim. Mr Giles’s application to review a subsequent reviewable decision affirming that decision is the subject of matter number S 200600404;
(c) a claim for “annular tear L4/5 disc. Recent aggrivation bending over to adjust distance measuring wheel” (sic) (exhibit R8, T7, page 34) arising from an event claimed to have occurred on 13 October 2006 when Mr Giles leant forward to re-set the trip meter on a measuring wheel. Telstra decided to reject this claim. Mr Giles’s application to review a subsequent reviewable decision affirming that decision is the subject of matter number 2008/0188; and
(d) a claim for “aggravation. Lumbar back pain (annular tear L4/5)” (exhibit R5, T5, page 40) arising from an incident claimed to have occurred on 9 May 2007 when while driving, Mr Giles did a U-turn. Telstra decided to reject this claim. Mr Giles’s application to review a subsequent decision affirming that decision is the subject of matter number 2007/5784.
16. Mr Giles also asserts that he suffered three back injuries that are not the subject of any application to this tribunal but which he referred to in evidence. These are as follows.
17. Event on 19 December 2001 – putting equipment into bag Mr Giles maintains that the injuries to his lower back were the result of an event that occurred on 19 December 2001, when he was placing certain test equipment into a bag in the basement of the Waymouth Exchange. He said that that was the start of his lower back problems. He claimed compensation for a “muscle strain frector spinal, lat dorsi” (exhibit R3, T8, page 25) as a result of that incident. Telstra accepted liability for the claim, but subsequently decided that it was under no current liability for that injury from 28 February 2002. Mr Giles did not request review of that decision, but denied receiving the letter advising of Telstra’s cessation of liability decision. We gave both parties an opportunity to investigate and comment on this denial after the completion of their oral submissions, but in view of our conclusions as to the equipment bag event, we find it unnecessary to analyse the further information that the parties provided, or to make any findings as to this aspect.
18. Mr Giles gave evidence that on the date of this event, he parked his vehicle in the car park adjoining the Waymouth Exchange in Adelaide, and then made two or three trips to carry certain equipment from his car to the basement of the Exchange. One piece of equipment weighed approximately 18 kilograms, and he had to put it in its bag. He was lowering it into the bag, holding it with two hands, when the strap of the bag became caught in the equipment. He then used his left hand to move the strap out of the way, holding the equipment with his right hand, and completed lowering the equipment into the bag. He then experienced low back pain. His back became sorer and he reported the matter to his team leader.
19. Later that day he saw a general practitioner, Dr Bridget Sawyer, at the Morphett Vale Sportsmed Centre. He thought that he had strained a muscle and that it would clear up. He said the pain subsided, and after 24 to 48 hours he was left with a niggling pain which he described as a “nuisance” pain. He said he went to the gym and did gentle exercises, but did not take any time off work. He was left with an ache in the lower back on the left-hand side.
20. However, the pain persisted. In February 2002 he sought prolotherapy treatment from a Dr Margaret Taylor for a sore arm. He told her about his low back pain, and she tried three or four treatments of prolotherapy on his back. However, whilst that treatment had helped his arm, it did not improve his back.
21. On 20 June 2002 he returned to Sportsmed and saw Dr Lee. He referred Mr Giles for a CT scan, which was reported as normal. Dr Lee also recorded that Mr Giles complained of longstanding lower back pain, often dependent on the type of car he was driving, and that he had had a “recent episode” involving lifting with straight legs bending forwards in December 2001, and that he was worse driving certain cars at work.
22. Event on 1 May 2001 – the gym event - Mr Giles had also been involved in an accident approximately seven months earlier than the above event. On 1 May 2001, he slipped on a wet floor when he was walking into the men’s toilet in a gym. His feet went from under him. He landed on his buttocks and shoulders. His back was sore at the base of his spine. He saw a general practitioner and was referred for x-rays that were taken on 26 June 2001. He said that his back continued to be sore for about three weeks, but by June it was clearing up. The location of the soreness in his back was different from the location of his present pain. He said that he also had pain in his shoulders, but his neck was not sore.
23. The report of the x-rays stated that there was no abnormality of the pelvis. As to the cervical spine, no fracture or dislocation was seen, but there was spondylosis at the C5/6 level with some bilateral foraminal encroachment, and mild spondylosis at the C4/5 and C6/7 level without foraminal encroachment.
24. Mr Giles provided an accident report form dated 21 May 2001 to the gym (exhibit R10, ST36, page 377). In that form he reported that following the fall he continued on to join his gym class, to find that his left knee, lower back and shoulders were painful as a result of the fall. He was not capable of continuing. He further recorded as at the date of the form that his lower back and shoulders were still sore. In a report of 24 May 2001, a Ms Fisher from the gym reported that prior to the fall on 1 May 2001, Mr Giles had displayed no symptoms of “harbouring any injuries”, [but] said that up to that date, “since the fall he has not participated in all activities and is visibly still protecting the lower back.” (exhibit R10, ST36, page 378).
25. Event on 19 February 2004 – the kitchen table lap top event - Mr Giles made a claim for compensation in respect of an event that occurred on 19 February 2004. That claim was accepted by Telstra and is not the subject of any proceedings in this tribunal. The claim form says that he suffered “low back pain – most likely facet joint inflammation”, and the incident is described as “picking up a Toshiba laptop to place it on the kitchen table and commence log on procedure, I felt a sharp pain in the lower back” (exhibit R3, T12, pages 35 – 36). In a determination dated 2 July 2004, Telstra decided to cease liability for medical treatment, as there was no current liability to pay compensation for that condition. Mr Giles did not request review of that decision.
26. Mr Giles gave evidence that he saw Dr Lee of Sportsmed that afternoon, and was referred to a physiotherapist. He said he had pain at the L4/5 level of his spine, and the level of his pain was worse than it had been following the event on 19 December 2001. He said his pain got worse as the week progressed, and he had muscle aches that were more prevalent and occurred more often after that event.
Event on 25 August 2004 - the jumper wire event
27. This event resulted in the claim for compensation referred to in paragraph 15(a) above, being the claim that gave rise to the first application before us in respect of his claims for a low back injury. Mr Giles said that as a result of this event he experienced pain at the same point in his back as he had experienced following the event on 19 December 2001 and 19 February 2004. He was directed by Telstra to see Sportsmed after the event. The doctor whom he saw referred him for physiotherapy, which he continued until mid-November 2004. He said in cross-examination that he disagreed with an assessment by Dr Donald Jones, an orthopaedic surgeon, who provided a medico-legal assessment (referred to in exhibit R1, T7, page 21) to Telstra that he had recovered from this event by 9 February 2006.
Event on 28 April 2006 – laptop event at Move Physiotherapy
28. This event resulted in the claim for compensation referred to in paragraph 15(b) above, being the claim that gave rise to the second application before us in respect of his claims for a low back injury. Mr Giles said that he had carried his laptop up some steps, and turned and bent down to open the door of the premises. He then experienced a pain in his back the like of which he had never felt before. This pain then subsided to a severe lower backache. He later took an anti-inflammatory tablet and went home, but was able to work later that day. He rested at home the next day, which was a Saturday, and on the Sunday he took dexamphetamine and anti-inflammatory medication. It was unusual for him to take that medication on a Sunday. He felt better, but then when he picked up a hose at his home he had further pain, and he then consulted his general practitioner. The doctor certified him to be unfit for work for a week. Mr Giles was due to commence his leave that week, and his leave was extended. He returned to work on 6 June 2006, having seen a doctor again on 8 May 2006. However, he said that although he was able to return to his normal duties, he had not recovered from the event on 28 April 2006. He had previously arranged a family skiing holiday in July, and went ahead with this holiday rather than ruin the holiday.
Event on 13 October 2006 – the measuring wheel event
29. This event resulted in the claim for compensation referred to in paragraph 15(c) above, being the claim that gave rise to the third application before us in respect of his claims for a low back injury. Mr Giles said that after he had walked three to five hundred metres using a measuring wheel he developed soreness in the back. He then experienced a sharp pain in his lower back when he was bending over to re-set the measuring wheel. He returned to his car and rested, and then drove back to the Henley Beach Exchange and lay down there. He was directed to see his general practitioner that afternoon, and returned to work on the following Tuesday.
Event on 9 May 2007 – the U-turn event
30. This event resulted in the claim for compensation referred to in paragraph 15(d) above, being the claim that gave rise to the fourth application before us in respect of his claims for a low back injury. Mr Giles said that on this occasion, he was driving to the Hampstead Exchange, and was in the course of doing a U-turn when he experienced a severe pain in his lower back. As a result he momentarily lost control of the car and it went up onto the kerb before he was able to correct it. He reported this event to his team leader and was directed to see a doctor from Sportsmed later that day. He returned to work on 15 May 2007.
31. Mr Giles gave evidence that after each of the events since the event of 19 December 2001, his low back pain has never recovered to the level that applied prior to each event. On the contrary, he said that after his back pain had settled down following each event, his pain had gone up a “notch”, in that the level of pain he experienced had increased, and he was affected by pain earlier in his working day than before. He said he is relatively better early in the week, but is increasingly affected as each working week progresses, and needs to rest over weekends to recover. He also rests at work at lunch time.
32. He said that he has been taking dexamphetamine since 1995 for an unrelated condition of adult attention deficit disorder, and finds that this assists in relieving his symptoms of low back pain. He also takes anti-inflammatory medication, and Panadeine Forte early in the morning, and again at lunch time, in order to assist him to get through his day’s work. He also uses Norspan patches, and generally increases the number of patches from two to four later in the week. Apart from medication, he has been referred at different times for physiotherapy and has undertaken Pilates exercises, but had to give these up because they aggravated his hip problem. He was described as being on a “significant dose of a very potent analgesic medication” (see exhibit R11, page 13).
Medical evidence as to low back claims
33. A number of medical certificates and medical reports were tendered, and in addition, evidence was given by Dr Nagi Guirguis, an orthopaedic consultant, and three doctors who provided medico-legal assessments at the request of Telstra, namely Dr Robin Jackson, Associate Professor Robert Bauze, and Dr Donald Jones.
34. The claim forms which Mr Giles completed included provision for disclosure of earlier injuries relevant to the injury for which compensation was claimed. Mr Giles disclosed various earlier injuries, and also referred to these in the history of his working life and employment, to which we referred in paragraph 4 above, and in a letter of 1 October 2007 to Telstra’s insurers (exhibit R5, pages 66 – 69). Earlier events potentially relevant to his claim for low back pain included an accident on 11 October 1973, when he was thrown off the motor cycle he was riding as a result of a collision with a car, and sustained injury to both legs and his back and his left hip, and pain he had experienced in his low back when driving a van in the course of his employment in 1999 or 2000, which however ceased when he was allocated a different vehicle.
35. There is a conflict of opinion between the doctors as to the relevance of the equipment bag event on 19 December 2001 to the low back symptoms. In view of the attention that was given to this conflict of evidence at the hearing, we will refer to the competing opinions.
36. Evidence of Dr Jackson : In a report dated 1 July 2008 (exhibit R11), Dr Jackson referred to the history he had obtained from Mr Giles, and to various radiological investigations dating back to 1997. The investigations relevant to the low back claims to which he referred were an x-ray of the lumbar spine dated 1 July 2002 and an MRI of the lumbar spine dated 24 April 2003. He did not refer to the x-ray of 26 June 2001, to which we referred in paragraph 21 above. In his above report, Dr Jackson noted that the plain x-rays of 1 July 2002 showed no abnormality, but the MRI scan of 2003 indicated an L4/5 discogenic degenerative condition. He said that conditions of this type are very common in the population in Mr Giles’s age group and are more likely to be aged-related conditions rather than to be due to any specific trauma.
37. Dr Jackson considered that Mr Giles’s condition was best described as “non-specific back pain, that is, pain for which the cause is uncertain”. He thought it probable that he suffered a soft tissue injury in the motor cycle accident in 1973, and also in an incident that he refers to as “from 1974” (exhibit R11, page 20), but which we take it was intended to be a reference to an incident to which he referred on page 6 of his report, namely an incident in 1976 when Mr Giles fell off a chair and hurt his back. Dr Jackson goes on to say that in his opinion, Mr Giles sustained a temporary incapacity as a result of the various incidents due to soft tissue injury from which he recovered relatively rapidly, that being the natural history of soft tissue injuries. He also reported that it was probable that Mr Giles would have developed his current condition as a natural progression of age-related degenerative change, irrespective of his employment, and that his age-related degenerative change has overtaken the effects of any condition due to any of his claimed work-related injuries. He thought that Mr Giles had no effects at the time of his examination from any of the claimed injuries.
38. In his oral evidence, Dr Jackson confirmed the opinions expressed in his report. He also discounted the possibility that Mr Giles may have suffered a tear of the annulus at the time of the event on 19 December 2001. He noted that as a result of that event, Mr Giles consulted Dr Bridget Sawyer, a general practitioner, who had made comprehensive notes of what (he said) appeared to have been a very thorough examination. Dr Sawyer provided a certificate that Mr Giles was suffering from “muscle strain frector spinae & lat dorsi”, and that he was fit to return to modified duties from 20 to 21 December 2001 (exhibit R10, page 387). Following a follow-up examination on 21 December 2001, Dr Sawyer repeated the diagnosis in the earlier certificate, and certified that he was fit to return to pre-injury workplace duties that day. Her notes of her examination that day recorded that Mr Giles had improved, that he had returned to gym without issue, and that the injury had been of nuisance value only for one to two days, and there were no work concerns (see exhibit R10, PST15, pages 201 – 203).
39. Dr Jackson also referred in his oral evidence to the event of 1 May 2001 when Mr Giles slipped at the gym. From records relating to that event, Mr Jackson thought that the event was reasonably significant, in that the fall was traumatic, and he noted from the gym accident report form that there were still after-effects some three weeks later, as at 21 May 2001. Further, on the basis of Dr Sawyer’s finding, he thought that the equipment bag event on 19 December 2001 was not likely to be the operative cause of the back symptoms, although he also said that annular tears can occur without the patient being aware at the time of any, or any significant, back pain.
40. Evidence of Associate Professor Bauze : Associate Professor Bauze concluded, in a report dated 5 March 2007 (exhibit R12), that Mr Giles may have suffered a temporary aggravation of pre-existing degeneration of his lumbar spine but that those aggravations at the time of each of the claimed low back injuries had resolved and there was no continuing incapacity. He considered further that the degeneration and aggravations were much more likely to be related to activities outside work than his comparatively light work at Telstra. The non-work related activities to which he referred were activities undertaken by Mr Giles on a 10 acre block which he had purchased a number of years before the equipment bag event. Dr Bauze obtained a history that Mr Giles had engaged in using a bulldozer and a backhoe to excavate and compact landfill, that he had built his own house, and had ridden a motorbike around his block. He also thought that Mr Giles’s complaints of symptoms were inconsistent with his having engaged in snow skiing.
41. Dr Bauze further considered that the annular tear at L4/5 was such that it would ordinarily have been caused either by degeneration or by a major trauma. He considered that if it had been caused by trauma, it would have been accompanied by an acute and immediate episode of disabling pain, with significant difficulty in walking, and would have necessitated rest in bed. He thought that significant pain relief would have been required for one to two weeks, and symptoms would have included sciatica. Because the history he obtained from Mr Giles and the notes prepared by Dr Sawyer did not suggest severe symptoms of this kind, Dr Bauze considered that the episode of 19 December 2001 was not the cause of the annular tear.
42. Evidence of Dr Guirguis : Mr Giles called Dr Guirguis, who had provided a report dated 14 November 2006 in relation to the claims for a low back injury. In this report, Dr Guirguis referred to the equipment bag event of 19 December 2001, and made a diagnosis of an intra-discal disruption and posterior annular tear of the L4/5 causing recurrent discogenic and mechanical pain of the lumbar spine (exhibit R10, ST218, page 632). However, it emerged from Dr Guirguis’s cross-examination that when he provided his opinion as to the cause of the low back symptoms, he had not been aware of Dr Sawyer’s notes of her examination on 19 December 2001, and also had either not been aware of, or had not taken into account, the fall at the gym in May 2001. When the circumstances of that fall and its after-effects were put to him, Dr Guirguis concluded that that event was more likely to have caused the annular tear than the incident at work on 19 December 2001, because (according to the gym records) the after-effects of the gym event were more significant, having regard to Dr Sawyer’s notes, than the equipment bag event; and he thought that Mr Giles would almost certainly have twisted when he slipped at the gym, in order to try to save himself. We note, however, that this latter point is supposition on the part of Dr Guirguis, and contrary to Mr Giles’s account of the circumstances of his fall.
43. Evidence of Dr Jones : In a medical report to Telstra’s insurers of 9 February 2006 (exhibit R1, T7, page 21), Dr Jones referred both to the event at the gym in May 2001, and to the equipment bag event in December 2001. He concluded that the annular tear was likely to have been caused by the equipment bag event, because it occurred when Mr Giles was lowering a heavy piece of equipment into a bag, in a bent position, and further, when he took one hand off the equipment to clear the strap, it was likely that he twisted. Dr Jones was provided with Dr Sawyer’s notes after he had provided his report and prior to giving evidence. The further information in those notes did not alter his opinion. He said that Mr Giles’s subsequent history of persisting low back pain and ongoing medical consultations following episodes of increased symptoms supported his opinion.
44. In the course of his evidence, Mr Giles disputed that he had suffered low back pain prior to the equipment bag event on 19 December 2001. He said that the back pain he had experienced before that event was higher in his back, and he indicated a point in the low thoracic area of his back. As against this, notes made by a general practitioner at a consultation on 20 June 2002 record that Mr Giles had longstanding left lower back pain that often depended on the type of car he was driving, and went on to refer to the equipment bag event as a “recent episode” (exhibit R10, PST15, page 205). Mr Giles also suggested in evidence that at the time of his two appointments with Dr Sawyer following the equipment bag event, his symptoms of low back pain might have been masked by the effects of the dexamphetamine medication he was taking, which he had found had an analgesic effect. Dr Sawyer was not called, and therefore did not have an opportunity to comment on this suggestion, or on whether she would have varied her opinion as expressed in the medical certificates she issued if Mr Giles had continued to suffer from ongoing low back pain after she last saw him.
45. Conclusion re equipment bag event on 19 December 2001 : We accept that Mr Giles was suffering from a degenerative condition of L4/5, including an annular tear at that level, prior to each of the four injuries to which the applications before us relate. However, we find it unnecessary to decide whether the degenerative condition was caused by the event of 19 December 2001 or some other event such as the fall in the gym or any earlier back injury that Mr Giles may have sustained for the following reasons.
(a) The claim in relation to the jumper wire event was accepted by Telstra, and the issue before us as to that event is whether that event continued to give rise to low back symptoms after 10 April 2006. We accept the opinions expressed by Doctors Jones, Bauze and Jackson that that event would have caused an aggravation of Mr Giles’s low back degenerative condition, but that that aggravation would have been of a temporary nature.
(b) The circumstances in which the aggravation of an underlying condition is compensable were explained in Australian Postal Corporation v Bessey (2001) 32 AAR 508, where Gyles J said at [6] (omitting citations):
“It has been well settled by a series of decisions starting from … that if an underlying condition is aggravated, in the sense of being made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.”
The concept of “aggravation” was further explained in Tippett v Australian Postal Corporation (1998) 27 AAR 40.
(c) We find on the basis of the evidence of Doctors Jackson and Bauze as to the likely course of periodic flare ups of low back symptoms, that the effects of the jumper wire event would have ceased by no later than 10 April 2006. That is the date when Telstra decided that recovery had occurred (exhibit R3, T39, page 113). We are further satisfied from the evidence of Doctors Jackson and Bauze that after the effects of the jumper wire event had resolved, that is by 10 April 2006, Mr Giles’s low back condition was no worse than it had been before that event, and any increased level of pain or incapacity from his low back condition occurring after that date was caused by the natural progression of his degenerative lower back spine, and not by any continuing effects of the jumper wire event. We accordingly consider that Mr Giles is not presently entitled to compensation in respect of that event.
(d) The remaining three claims for low back injury were for aggravations of the pre-existing back condition. The determination of those claims does not require us to determine the cause of the pre-existing low back condition.
46. Conclusion re laptop event at Move Physiotherapy : We referred to the circumstances in which this event occurred in paragraph 28 above. We are satisfied from Mr Giles’s evidence that this event caused an aggravation of the degenerative condition of his low back. However, we have concluded for the following reasons that this aggravation was not “contributed to in a material degree” by his employment by Telstra within the meaning of the definition of “disease” in s 4(1) of the SRC Act.
47. In Comcare v Sahu-Kahn (2007) 156 FCR 536, Finn J referred to the change in terminology between the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and the SRC Act in relation to the requisite causative connection between an employee’s employment and the suffering or aggravation of an ailment in order for the employee to be entitled to compensation under the SRC Act. His Honour pointed out that by virtue of the definition of “disease”, the employee’s employment is now required to contribute “in a material degree” to the suffering or aggravation of an ailment. His Honour concluded at [16] that the definition of “disease”:
“(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)“in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii)whether this will be so in a given case will be a matter of fact and degree.”
Of course, it does not matter that other factors not related to employment contribute to the claimed disease, but what is required by the definition of “disease” in the SRC Act is that the relevant ailment or aggravation must be contributed to by employment “in a material” or “to a significant” degree (depending on whether the asserted ailment or aggravation was suffered before, or on or after, the 2007 amendments to the SRC Act).
48. Telstra did not dispute that Mr Giles’s attendance at Move Physiotherapy formed part of his employment, since, as we understand it, he was directed to have physiotherapy as part of a rehabilitation program to assist him to overcome his low back problem. However, the onset of low back symptoms arose incidentally, apparently because of the way that Mr Giles turned and bent in order to open a door handle that was apparently located at a somewhat lower level than usual. We take into account that he was carrying his Telstra laptop, because he did not want to leave it in the car, but we do not think that this alters the incidental nature of the event. The injury did not arise from an activity that he was instructed to do as part of his work, or that was an inherent part of his employment duties. We find that his employment did not materially contribute to the aggravation. Indeed, having regard to the circumstances in which the aggravation occurred, we doubt whether employment could be said to have “contributed” to the aggravation within the meaning of the less restrictive test of causation in the 1971 Act: see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641, where Windeyer J said:
“I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions to which it was performed.” (emphasis added)
49. Conclusions re the measuring wheel event : Counsel for Telstra, Mr Cole, challenged Mr Giles’s account of this event, because it differed somewhat from a record made by Mr Giles’s manager of a telephone report that Mr Giles had made to him. That record merely referred to pain from walking. However, other records suggested that there was an issue with bending, namely further Telstra notes relating to the event (exhibit R8, PT8, page 42), Mr Giles’s diary notes for 13 October 2006 (exhibit A1, page 17), and the medical certificate issued by his general practitioner (exhibit A10, Book 6, page 268). A fellow Telstra employee, Mr Saldaris, gave evidence which differed in some respects from Mr Giles’s account of this event, but we do not regard the difference as material. We think it is likely, and find, that the aggravation was caused by a combination of Mr Giles’s action of bending over to adjust the measuring wheel, walking for some distance and performing earlier similar bending movements when using the wheel on the morning in question.
50. We accordingly find that the aggravation from this event was materially contributed to by Mr Giles’s employment. We further find from the evidence of Doctors Jones, Jackson and Bauze that the aggravation was of a temporary nature, and that it ceased to have any effect on Mr Giles’s underlying condition by not later than three months after the date of the event.
51. Whilst Mr Giles maintains that his symptoms went up a notch after this (and other events), we find from the evidence of the same three doctors that any such increased symptoms arose as a result of the natural progression of his degenerative condition, and were not caused by the aggravation arising from the measuring wheel event.
52. Conclusions as to the U-turn event : This event occurred after the amendments in 2007 to the SRC Act. As was the case with the Move Physiotherapy event, it was not an event that arose from a particular employment activity or characteristic of Mr Giles’s work with Telstra. It was merely an incident that happened in the course of his employment. We find that his employment did not contribute to the aggravation of low back symptoms “to a significant degree” within the meaning of the amended definition of “disease” in s 5B of the SRC Act. Telstra is accordingly not liable for any injury resulting from this event.
Decisions in respect of claims for low back injury
53. We make the following decisions in relation to the four applications for review of the reviewable decisions in respect of Mr Giles’s claims for low back injuries.
(a) In matter number S 200600284 in relation to the jumper wire event, the tribunal affirms the decision under review.
(b) In matter number S 200600404 in relation to the laptop event at Move Physiotherapy, the tribunal affirms the decision under review.
(c) In matter number 2008/0188 in relation to the measuring wheel event, the tribunal sets aside the decision under review, and in place of that decision:
·decides that the respondent is liable for compensation in respect of the aggravation to the pre-existing degenerative condition of the applicant’s low back arising from that event, but that the effects of that aggravation were temporary and had ceased by not later than three months after that event; and
·remits the matter to the respondent for reconsideration in accordance with these reasons.
(d) In matter number 2007/5784 in relation to the U-turn event, the tribunal affirms the decision under review.
Claims for groin/hip injuries – matters nos. S 200600283, 2008/0186 and 2008/0187
54. The claims for a groin/hip injury that are the subject of the applications before us are as follows:
(a) a claim for “left hip pain – pre existing left hip labral tear – aggravation of” (exhibit R2, T11, page 36) in respect of an event on 10 January 2006 when Mr Giles twisted when walking around the rear driver’s side of the vehicle he had been driving. Mr Giles claimed compensation, and Telstra accepted liability for “Temporary Aggravation of Pre-Existing Left Hip Labral Tear” (exhibit R2, T12, page 41). In the same determination Telstra also decided that Mr Giles had ceased to suffer from the effects of the injury on 2 March 2006. Mr Giles’s application to review a subsequent reviewable decision affirming that decision is the subject of matter number S 200600283;
(b) a claim for “strained left groin muscle” (exhibit R6, T5, page 35) arising from an event on 12 July 2007, when Mr Giles was walking and turning right around a building support pillar in the office where he was working. Telstra decided to deny liability. Mr Giles’s application to review a subsequent reviewable decision affirming that decision is the subject of matter number 2008/0186; and
(c) a claim for “aggravation of left groin/hip injury” (exhibit R7, T5, page 9) in respect of an event on 29 November 2006, when Mr Giles twisted in the driver’s seat of his vehicle to focus on reading a service label on the windscreen. Telstra decided that it was not liable. Mr Giles’s application to review a subsequent reviewable decision affirming that decision is the subject of matter number 2008/0187.
55. Mr Giles said that he first developed a pinching and aching in his left hip following his motor cycle accident in 1973. His hip was x-rayed following the accident, but no abnormality was found. After a time the aching and pinching in his hip subsided. However, his hip started aching again after running activities in 1975 and also when he played basketball in the mid-1980s at Jabiru. He described his symptoms at those times as aching, not pinching. He identified two areas of his left groin or hip where he currently experiences pain, and said that one of these points is the same as the location where he experienced pinching after his motor cycle accident.
56. He said that the pinching in his groin returned again in 2001, as a result of an event on 7 August 2001. He was getting out of a van in a narrow parking space and could not open the door very far. He twisted and put his left leg down. He experienced a paralysing pinch in his left leg and his leg collapsed. He subsequently developed two lumps in his groin. He reported the incident to Telstra on 5 October 2001. He subsequently had an ultrasound, and this confirmed a diagnosis of bilateral direct inguinal herniae. He was referred to a general surgeon, Mr William McLeay, who provided a report to Telstra’s insurers dated 7 May 2002 (exhibit R2, T7, page 19). Mr McLeay reported he repaired the herniae on 4 February 2002, and that the left inguinal hernia was consistent with the injury at work. He reported further that the hernia was not related to the motor cycle accident in 1973, and that there was no pre-existing disability that contributed to his then current symptoms, and no pre-existing condition that caused the hernia.
57. Mr Giles said that what he described as his “hip ache” did not clear up following his surgery. An MRI arthrographic study of his left hip was undertaken, and showed findings that were suggestive of a small tear in posterior labrum of the left hip. He also continued to experience intermittent episodes of pinching in the left groin, and an ultrasound scan of the left groin was undertaken on 19 July 2006. This was reported as showing a probable tear of the anterior lateral acetabular labrum on the left, corresponding exactly to a tender point which Mr Giles had identified.
58. Mr Giles claimed compensation for an injury to his groin or hip arising out of the three events referred to in paragraph 54 above. In each case, the pain which Mr Giles complained of was the result of a twisting motion. He said that at the time of the event on 10 January 2006, he felt a sharp pinch, and later this turned into an ache in his hip, and this forced him to give up his Pilates exercises in June 2006. He also said that the events on 29 November 2006 and 12 July 2007 resulted in a pinching pain in the groin, followed by a residual ache. Following each event, he saw a doctor, but he was able to keep working.
59. Evidence of Associate Professor Bauze : In his report of 5 March 2007, Dr Bauze concluded that the labral tear evident on the ultrasound and on the MRI arthrogram were not clinically relevant, because there was no pain on full range of movement of the left hip or on a stressed range of movement, or grinding in rotation, either flexed or extended. Once again, as was his opinion in relation to the low back symptoms, Dr Bauze thought that Mr Giles’ complaints regarding his hip pain were more likely to be related to his non work-related activities than to any event that occurred at work.
60. In the same report, Dr Bauze acknowledged that the groin pain was a complicated condition, and said:
“There are odd conditions, which I do not understand, of the ilioinguinal pudendal and obturator nerves which have been suggested as implicated.” (exhibit R12, page 18)
However, he said that he was not aware of any relationship of such a condition to the incidents that Mr Giles referred to in his claims in respect of his groin. Dr Bauze also said that he was unable to explain the groin pain, but also noted that he was unable to comment on the inguinal herniae as that was outside his area of expertise (see exhibit R12, page 14).
61. Evidence of Dr Jackson : Dr Jackson considered that the incident on 7 August 2001 would have been an aggravation of a soft tissue injury in the left groin, and that that injury in turn was a result of the motor cycle accident in 1973. He also considered that the labral tear was a result of that accident. He also said that soft tissue injuries in the groin can become chronic in many instances, and that this had led to aggravations which had, however, settled. Like Dr Bauze, he did not consider that the labral tear was relevant to Mr Giles’s symptoms, and noted that the labral tears reported in the MRI and in the ultrasound scan were reported to be in different anatomical situations in the labrum.
62. In the course of his evidence, Dr Jackson acknowledged that the use of mesh in the operation to repair the hernia may well have tightened up the muscles in the groin, and that this could result in aggravations of the soft tissue injury that Mr Giles had sustained in the motor cycle accident in 1973.
63. Evidence of Dr Guirguis : In a report dated 20 November 2006 (exhibit R10, ST 219, page 637), Dr Guirguis recorded that the only physical sign elicited on examination was that of a very well localised tenderness in the groin. He also recorded that movement of the hip joints were full and free of pain. His report refers to the hernia and its repair, the clinical presentation suggesting chronic soft tissue strain, and the labral tear. He does not, however, express any clear opinion as to the cause of Mr Giles’s asserted injuries, and we find his opinion unhelpful as to this aspect.
64. Conclusion re hip/groin claims : Having regard to Mr Giles’s evidence as to his condition prior to the event of 7 August 2001, which ultimately led to the operation to repair the herniae, and his evidence as to his symptoms since that operation and the evidence of Dr Jackson, we think it likely, and find, that the repair of the left inguinal hernia has led to a tightening of the muscles in Mr Giles’s groin, and that from time to time this is likely to aggravate the soft tissue problems in the groin that were originally caused by his 1973 accident. We find that the injuries for which Mr Giles has claimed compensation comprised aggravations to the pre-existing soft tissue condition, and that those aggravations were caused by the effect on the muscles of the repair of the left-sided hernia.
65. The claims for groin/hip injuries in relation to the events on 10 January 2006 and 12 July 2007 arise from events which, once again, were not activities that were characteristic of the work that Mr Giles was required to do or characteristic of his work with Telstra; rather, they were events that happened incidentally in the course of his employment. We find that his employment did not materially contribute to the aggravation arising from the former event, or significantly contribute to the aggravation arising from the latter event.
66. We think that the event on 29 November 2006 arising from difficulty in reading the service label is in a different category. Mr Giles received a telephone call requesting information from the label, and the aggravation occurred as a result of his efforts to read the label and pass on the information on it. In the course of doing this, he aggravated a pre-existing condition of his groin. We find that Mr Giles’s employment contributed to that aggravation in a material degree. We accordingly conclude that Telstra is liable for compensation for that injury.
Decisions as to claims for hip/groin injuries
67. For the above reasons, we make the following decisions in relation to the three applications for review of the reviewable decisions in respect of Mr Giles’s claims for hip/groin injuries.
(a) In matter number S 200600283 in respect of the asserted injury on 10 January 2006, the tribunal affirms the decision under review.
(b) In matter number 2008/0187 in respect of the injury sustained on 29 November 2006, the tribunal sets aside the decision under review, and in place of that decision:
·decides that the respondent is liable for compensation for the aggravation arising from that event, but that that aggravation was only temporary, and the applicant ceased to suffer from the effects of that aggravation by no later than seven days after that event; and
·remits the matter to the respondent for reconsideration in accordance with these reasons.
(c) In matter number 2008/0186, the tribunal affirms the decision under review.
Claim for injury to cervical spine – matter no. S 200600282
68. Mr Giles also claimed compensation for a “sprain” of the cervical spine (exhibit R1, T4, page 7) as a result of two events on 18 October 2004. This claim was accepted by Telstra, but Telstra later decided that Mr Giles had ceased to suffer from the injury on 9 February 2006. Mr Giles’s application for review of a subsequent reviewable decision affirming that decision is the subject of matter number S 200600282.
69. The first event resulting in the asserted neck injury occurred when Mr Giles was leaning into the driver’s door of a motor vehicle to collect a new refill for a biro, when the peak of his safety helmet struck the top of the door opening causing his head to jerk sharply backwards. The second event occurred later that day, when he was working on a mainframe. He had climbed the ladder, but then decided that he needed to climb up one more step to reach what he was doing. He struck the top of his head on the ladder rail, resulting in a force being applied vertically down his neck and spine. Both incidents caused pain in his neck. He lodged incident reports with Telstra and continued working. However, his neck became sorer, and he saw Dr Kerr-Grant at Sportsmed late that afternoon. Dr Kerr-Grant provided a certificate that Mr Giles was suffering from a sprain of the cervical spine, and certified that he was fit to return to or continue modified duties from 18 to 26 October 2004.
70. At about this time Mr Giles was receiving physiotherapy for his low back pain. The physiotherapist started some treatment for his neck on 26 October, but this made it worse. He returned to Dr Kerr-Grant on 27 April 2005 and complained that he was still having ongoing neck pain on a daily basis. He was sent for a plain x-ray of the cervical spine. He saw Dr Kerr-Grant again about his neck pain on 21 September 2005.
71. Mr Giles said that ever since these two events, a point near the top of his spine starts to ache and he finds he cannot concentrate. He said that he tries to avoid putting his neck in a strange position, and tries to lose himself in his work, in order to hide the pain in his neck. He said, however, that while he can overcome his low back pain, the neck defeats him.
72. Mr Giles had previously had an x-ray of the cervical spine on 26 June 2001. He said that this was because he had suffered from painful shoulders as a result of his fall in the gym on 1 May 2001. That x-ray showed advanced spondylosis of the C5/6 with bilateral foraminal encroachment at that level, with less significant spondylosis at C4/5 and C6/7. A cervical spine x-ray of 12 May 2005 following Dr Kerr-Grant’s referral again showed degenerative narrowing of the C5 space with prominent anterior and posterior end plate oesteophyte, with a small degree of progression at the neurocentral joints since the previous study. Dr Bauze described the x-ray of 26 June 2001 as showing severe degeneration at C5/6 (exhibit R12, page 11).
73. Dr Guirguis provided a report dated 29 November 2006 (exhibit R10, ST221, page 642), in which he recorded the history provided by Mr Giles as to the events of 18 October 2004, and Mr Giles’s description of his continuing neck discomfort and neck stiffness ever since those events. He said that in his opinion, the advanced spondylosis in the neck was aggravated by the incident, and failed to resolve. He appears to refer to both events as one incident, which he described as “an incident in October 2004 at work when he suffered a hyper-extension injury to his neck, followed by axial compression less than an hour later” (exhibit R10, ST221, page 644). Dr Guirguis obtained a history of neck symptoms that were significantly more severe than that obtained by the other three doctors who provided medico-legal assessments, and more severe than Mr Giles described in his evidence. Dr Guirguis’s opinion was clearly influenced by this history, and we prefer the opinions of the other three specialists as to the duration of the effect of the events of 18 October 2004.
74. Dr Jackson reported that in his opinion, Mr Giles had sustained a soft tissue injury to his cervical spine and “possibly” aggravated pre-existing degenerative changes in the event on 18 October 2004, and may have sustained further aggravations from work activities. He reported that there would have been a temporary partial incapacity following injuries to his neck at work, but that had ceased with a change in his work functions. However, in the course of his evidence Dr Jackson agreed that the description given by Mr Giles of the second event involving stepping up the ladder would be significant, in that it would have resulted in axial compression force being applied to the neck. He also said that whilst the x-ray examination of June 2001 indicated that Mr Giles had significant degeneration of his cervical spine, that condition might not necessarily have been symptomatic, but it was such that it would not take a great deal of trauma to render the neck symptomatic. He said that either or both of the events on 18 October 2004 could have produced a symptomatic change in his cervical spine. He said further that whilst in his opinion the nature of the condition of his neck was such that his cervical spine would have become symptomatic sooner or later without any trauma, it was impossible to say when that position would have been reached.
75. Dr Bauze thought that the events of 18 October 2004 had merely caused a minor irritation of pre-existing severe degeneration of the cervical spine, and that Mr Giles had recovered from the irritation. Dr Bauze did not think that Mr Giles’s neck had been rendered symptomatic by the trauma of the events at work because he assumed that Mr Giles had had prior neck symptoms, because he had had a cervical x-ray in June 2001.
76. Mr Giles gave evidence that he had not had symptoms in his neck prior to the events of 18 October 2004, and that he has had symptoms of pain in his neck since then. He maintained that he had had shoulder pain, but not neck pain, following the fall in the gym in May 2001. Whilst a record of a consultation with a Dr Paton on 26 May 2001 refers to a complaint of a sore shoulder following that fall, we do not accept that Mr Giles did not have neck symptoms after that fall. He saw Dr Ryan, a general practitioner, on 23 June 2001. The notes of that consultation record that Mr Giles was having pain over the left sacroiliac joint and the cervical spine, and he was referred for x-rays of the low back and of the cervical spine (exhibit R10, PST 20, page 309). A subsequent note prepared by Dr Ruehlemann from the same practice records that on 17 July 2001, Mr Giles had had cervical spine pain since the fall on 1 May 2001, and that he was tender at C6/7.
77. We find that Mr Giles had been suffering from a significant degenerative condition of the cervical spine prior to the fall in the gym on 1 May 2001, and that he had symptoms of pain as a result of that event. We further find that he aggravated his pre-existing condition as a result of one or both of the events on 18 October 2004, but that having regard to the evidence of Doctors Jones, Jackson and Bauze, which we accept, the effects of that aggravation had ceased by 9 February 2006 (being the date referred to in Telstra’s reviewable decision). We further find that any ongoing neck pain that Mr Giles suffered after that date was due to the effects of his pre-existing condition, and not due to the events on 18 October 2004. We accordingly find that Telstra is not liable for the claim in respect of the injury to the cervical spine.
Decision as to claim for injury to cervical claim
78. In matter number S 200600282, the tribunal affirms the decision under review.
Claim for injury affecting hearing – matter no. 2008/0647
79. Mr Giles gave evidence of problems with his hearing. He related those problems to an event which occurred on 26 September 2002. He said that when he was working on the 6th floor equipment room of the Waymouth Exchange at about 3.45 am he was talking on a mobile phone held to his right ear, and his hearing went faint; the background fan noise level dropped and he could not hear anything, and then his hearing returned. After that both his ears were sore, the left more than the right. He said that he has tinnitus all the time, and this is worse in the left ear than in the right. He also experiences a feeling of having a “thick” ear, and this causes discomfort when driving through the hills, requiring him to “pop” his ears. He did not lose any time from work as a result of this incident, but saw Dr Newberry on 17 October 2002.
80. He gave evidence that the day before the event on 26 September 2002 he had found an air-conditioning duct inspection cover lying on the floor of the 6th floor of the Waymouth Exchange. He also referred to other documents that indicated that at various dates two fans which regulate the air-conditioning in the building were operating together, instead of one at a time. He thought that there had been a change in the pressure in the 6th floor at the time of the event of 26 September, and that this change of pressure had caused the problem with his hearing. Whilst he reported this event, and requested Telstra to provide copies of documents relevant to the operation of the equipment, he did not make a claim for compensation for any injury arising from that event.
81. However, Mr Giles did claim compensation for “noise insult to left ear, tinnitus left ear” (exhibit R9, T21, page 40) arising from an event on 18 November 2004, and claimed that a burst of noise from a mobile phone hurt his ear. Telstra decided to reject this claim. His application for review of a subsequent decision affirming that decision is the subject of matter number 2008/0647.
82. Mr Giles gave the following account of this event. He said that he made a call holding his mobile phone tightly to his left ear because there was high background noise. The ring tone stopped and he received a busy tone. The level of the first “burst” of busy tone hurt his ear. He then experienced tinnitus louder than he had ever experienced it before. He went to the Emergency Department of the Flinders Medical Centre on 19 November 2004, and the doctor whom he saw issued a medical certificate that he was unfit for work from 18 to 21 November 2004.
83. He was subsequently seen by an audiologist at the Flinders Medical Centre, and then referred to Dr Simon Carney, an otolaryngologist. Dr Carney provided a report dated 10 December 2004 to Mr Giles’s general practitioner. This report recounts the history of the recent mobile phone incident, and states that Mr Giles obviously had very sensitive ears and had had eustachian tube dysfunction over the years. Dr Carney also referred to an audiogram obtained on 29 November 2004, and advised the use of a spray and salt-water nasal douches (see exhibit R10, ST151, page 551).
84. Dr Carney reviewed Mr Giles again on 4 March 2005. His diagnosis then was left sided noise induced hearing loss and eustachian tube dysfunction. He reported that the left side of tinnitus was becoming less problematic as Mr Giles was getting used to it. He reported further that his eustachian tube dysfunction was not really a problem (see exhibit R10, ST160, page 561). In his evidence Mr Giles confirmed that whilst his tinnitus had been worse ever since the incident of 18 November 2004, and had continued at an increased level, he had become used to the increased level by the time of the follow-up appointment on 4 March 2005, as reported by Dr Carney.
85. A number of reports had been obtained following the earlier incident on 26 September 2002. These reports confirm that Mr Giles was complaining of tinnitus and, at times, of ear aches. An MRI scan of the head was carried out and this was normal. Another otolaryngologist, Dr Paul Clark, provided three reports. In his first report of 18 December 2002 (exhibit R10, ST80, page 440) he reported his suspicion that Mr Giles’s symptoms were “cochlear in origin,” and “doubt(ed) that they were related to an air conditioning pressure change”. In his second report of 24 January 2003 (exhibit R10, ST86, page 451), he said that he could not be “convinced that his problems (were) related to a pressure change induced by the air conditioning at work”. In his last report, dated 19 October 2006, he concluded:
“It is my opinion that this gentleman’s left sided tinnitus and hearing loss were not due to a pressure disturbance at his workplace in 2002 and that his ongoing symptoms do not have an obvious physical basis and I do not think that there is anything that I can offer that is going to help resolve his symptoms.” (exhibit R10, ST214, page 627)
Dr Clark did not refer to the later event on 18 November 2004, and his report does not appear to be relevant to that event and its aftermath.
86. Dr Newberry referred Mr Giles to Dr John Ling to provide a second opinion. Dr Ling reported on 21 February 2003 that the eustachian tube orifice itself looked normal. He said that it was very hard to say whether the “work environment in the air-conditioning workroom” could aggravate the condition of his eustachian tube. He said that this was normally associated with rapid decompression as normally seen in an aircraft, and he had “never heard of the condition occurring while being in a room itself” (exhibit R10, ST98, page 468).
87. There is also a report dated 24 August 2006 from Simon Close of Statewide Hearing Services. He confirms that there is a mild high frequency sensory neural hearing loss in the left side, but makes no reference to any possible cause of that loss.
88. Mr Giles called a psychiatrist, Dr Heint. He confirmed that Mr Giles had regularly complained of tinnitus ever since 2002, and that this appeared to have been a significant disability ever since then and had been quite distressing.
89. As we read them, none of the reports have gone so far as to say that it is impossible that the event of 26 September 2002 caused the hearing problems that Mr Giles has experienced. None of the doctors who provided the reports was called. It seems to us that any claim in respect of that event would fall into the category of cases referred by Herron CJ in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 at 242, where his Honour said:
“Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me, that no medical witness states with certainty the very issue which the judge himself has to try.”
However, as no claim for compensation was made in respect of an injury arising from that event, it is not necessary for us to decide whether it resulted in a compensable injury.
90. As to the event of 18 November 2004, Dr Carney appears in his report to accept that Mr Giles’s tinnitus was exacerbated by that event. For our part, we also accept Mr Giles’s evidence to that effect. We accordingly find that Telstra is liable for the increased level of tinnitus that occurred following the event of 18 November 2004, and for any loss of earnings or medical or other expenses that Mr Giles incurred as a result of that event. We did not receive evidence of the quantum of losses as a result of that event, and think it appropriate that the matter should be remitted to Telstra to reconsider the claim in the light of these reasons.
91. As mentioned above, there is evidence that Mr Giles suffered a hearing loss in the left ear. He has not made a claim for permanent impairment, or for hearing loss. If he were to make such a claim now, he would be out of time, but in view of the investigation that has taken place in relation to the two incidents in question, it seems unlikely that Telstra would be prejudiced if Mr Giles were now to make a claim for hearing loss. However, no such claim is before us, and it is inappropriate for us to comment on the merits or otherwise of any such claim.
Decision as to claim for hearing injury
92. In matter number 2008/0647 relating to the claim for tinnitus of the left ear, the tribunal sets aside the decision under review, and remits the matter to the respondent for reconsideration in accordance with these reasons.
I certify that the 92 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G Jarvis and Dr E EriksenSigned: .....................................................................................
Ms L Staker AssociateDate/s of Hearing 2, 3, 4 5 and 6 February 2009 and
5 and 6 March 2009Date of receipt of
final submissions 16 March 2009Date of Decision 2 April 2009
Applicant In Person
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Sparke Helmore Lawyers
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