Nash and Telstra Corporation Limited

[2006] AATA 810

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 810

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q 2006/17

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEBORAH JOY NASH

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal  Deputy President P E Hack SC

Date 22 September 2006

Place Brisbane

Decision

 The Tribunal:

1.      Sets aside the decision under review.

2.      In substitution for that decision, decides that the respondent is liable to pay compensation to the applicant in accordance with the Safety, Rehabilitation and Compensation Act 1988 in respect of the condition of acute prolapsed lumbosacral disc.

3.      Orders the respondent to pay the applicant’s costs (if any) of and incidental to the proceedings.

................Signed................

Deputy President

CATCHWORDS

COMPENSATION – condition of acute prolapsed lumbosacral disc conceded – injury occurred travelling between place of work and place of residence – conflict as to date of journey – credibility of applicant put in issue – decision under review set aside – costs ordered

Safety, Rehabilitation and Compensation Act 1988 ss 4, 6(1)(b)(ii), 62

REASONS FOR DECISION

22 September 2006	Deputy President P E Hack SC
Introduction

1.The applicant, Ms Deborah Nash, was an employee of the respondent, Telstra Corporation Limited, in November 2004. There is no doubt that she has an injury to her back described as an acute prolapsed lumbosacral disc.[1] The contest before me is whether the injury was occasioned to the applicant in circumstances where the respondent is liable to pay the applicant compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

[1]        See the report of Associate Professor McPhee dated 5 May 2006.

2.Ms Nash says that the incident which occasioned the injury occurred in the course of her journey home after work on 2 November 2004. Telstra says that, while it would be liable to compensate Ms Nash were I to accept her evidence, I ought not do so. She is, so Telstra submits, neither truthful nor accurate.

Background

3.The general scheme of the Act is that Telstra, as an authority licensed under the Act, is liable to pay compensation to its employees in accordance with the Act in respect of an injury suffered by the employee. Injury, for these purposes, means a physical or mental injury arising out of, or in the course of, the employee’s employment.[2] By virtue of s 6(1)(b)(ii) of the Act an injury will be treated as having arisen in that way if the employee was travelling between the place of residence and place of work. None of this is controversial. The controversy is over the date that the applicant injured her back.

[2]        See the definition of injury in s 4 of the Act.

4.The applicant says that on the day in question she worked at her place of employment at 171 Roma Street, Brisbane. Her ordinary working day was from 7 am to 3.40 pm. Her position, in November 2004, was described as Acting Centre Operations Lead Role, a position that involved her in scheduling staff at the respondent’s call centre. Her immediate supervisor was Ms Lisa Gay. At the conclusion of her work on the day in question the applicant drove to Bray Park to collect her infant son from her sister, who cared for the child during the day, and then drove towards her residence at Eatons Hill. The child was seated in the centre rear of the car in a child seat. Whilst stationary at an intersection and waiting for the traffic lights to change the applicant says that she twisted to her left and turned back towards the rear seat to retrieve an object that the child had dropped and about which he was complaining loudly. As she did this her own seat squab collapsed underneath her to an approximately horizontal position. She sat up again and immediately felt a “sharp hot burning pain” in her lower back.

5.The applicant continued on home, albeit in some discomfort. She suffered moderate pain that evening and over the next few days. She says that when she was next at her work, which she says was on Tuesday 9 November 2004, she mentioned the incident to Ms Gay who enquired whether the applicant wanted to log an incident report. The applicant, thinking that the pain was minor and muscular, was not concerned to take that step.

6.The pain continued over the next several days. Eventually on 30 November 2004 the applicant consulted her local general practitioner. She was referred for physiotherapy and told to continue taking painkillers. Physiotherapy and pain management continued for the next three months or so. Up until, seemingly, mid-February 2005 the applicant had not been aware what it was that had precipitated the pain in her back. In the course of one of the physiotherapy sessions she suddenly recalled the incident with the car seat and concluded that it had been the cause of what ailed her back.

7.On 22 February 2005 the applicant underwent a CT scan of her spine. This procedure revealed a lower back disc protrusion at L5-S1. 

8.The continuing physiotherapy was not improving the applicant’s back condition, indeed in March and April 2005 it was sufficient to cause her to take significant periods of time off work. She made mention of the incident on the way home from work to her supervisors but, she says, she was discouraged from making a claim for compensation because of the delay in reporting the incident. Eventually she made a claim for compensation. It is undated but was received by the respondent on 26 July 2005.

9.The claim form says that the incident occurred at approximately 6.30 pm on 5 November 2004. The respondent’s insurer undertook investigations into the claim. It obtained a report from her local general practitioner. It obtained a report from an orthopaedic surgeon. It engaged an investigator to investigate the claim. That investigation extended to interviewing the applicant and taking from her a detailed statement of some 10 pages. The statement refers to the accident happening on Friday 5 November 2004 a little after 6.20 pm.

10.But the investigation also revealed that the applicant was not at work on that day – she was shown as having been on sick leave according to the respondent’s records. And, to put the matter beyond doubt, the respondent’s computer records of access to the building in which the applicant worked showed that the access card allocated to the applicant had not been used on 5 November 2004.

11.In light of this information a determination was made on 27 September 2005 that the respondent was not liable to compensate the applicant in respect of the claim. That determination was affirmed on 2 December 2005 in a reconsideration pursuant to s 62(1) of the Act. The applicant now seeks a review of the decision by this Tribunal.

The Evidence

12.The applicant gave evidence by way of a statement and was cross-examined by Mr Dubé, the solicitor for the respondent. The substance of the account given by her about the circumstances in which her back was injured accords with the account given to the respondent’s investigator. The difference between the two accounts lies in the date and time of the incident.

13.The applicant now says that the incident occurred on Tuesday 2 November 2004 and that her earlier account was, to the extent that it had the incident occurring on Friday 5 November 2004, was wrong. The applicant says now that she is able to particularly fix 2 November 2004 as being the date of the incident because she can recall the particular outfit and hat that she was wearing for a function at her work for the Melbourne Cup which was run on that day. In addition, the applicant’s new statement has her leaving work at “approximately 4 pm” rather than “about 5.25 pm or around there” as she had earlier said. But in her oral evidence before me she said that she had left work at “5, 5.30 ish”.

14.In addition the applicant’s new statement recites that after she finished work on 2 November 2004 she telephoned her sister’s mobile telephone using her own mobile telephone. Records produced by the respondent in answer to a summons, and accepted by the applicant as being correct, demonstrate that no such call was made. When confronted with this evidence the applicant considered that what must have happened was that her sister had rung her. She explained that she and her sister spoke frequently on the telephone, sometimes a number of times in a day.

15.As it happened, her sister, Ms Muller, gave evidence that she had made such a call at around 4.30 pm on that afternoon. She also said that she was able to recall the occasion, also by reference to the hat that the applicant had been wearing. She had spoken to the applicant on the telephone after the applicant had collected her son on that day and seemingly within a short time after the incident in which the applicant had injured her back and had been told by the applicant that the incident had occurred. Ms Muller also accepted part of the “blame” for the incorrect date being given originally. This occurred, at least in part, she explained, because when she had originally been called upon to recall the date of the incident she had recalled that it had occurred around the same time as her birthday. This fell on 6 November 2004 and led to the initial confusion about the date. It was only later realised that Ms Muller’s husband had worked on the weekend of 6/7 November and that, for that reason, her birthday had been celebrated on Wednesday 3 November 2004.

16.The applicant gave evidence as well that on 5 November 2004 she had been suffering from the flu and for that reason she had taken sick leave and had attended her local general practitioner. She did not, on that occasion, mention to the doctor what was to her “a pain in the bum muscle” as she did not believe that it would continue for long. When she eventually attended a doctor on 30 November 2004 complaining of continuing back pain she was unable to recall what might have caused that pain.

17.The respondent called Ms Bawden (nee Gay) the supervisor to whom the applicant said she had mentioned the incident. Ms Bawden was able to say, by reference to her work schedules, that she definitely did not speak to the applicant on 9 November 2004 which is the date that the applicant says the conversation happened. She was unable to recall any conversation in which the applicant told her of the incident but was unable to say categorically that such a conversation might not have taken place.

18.Also in evidence before me is a report from Associate Professor McPhee which concludes that the injury was consistent with the twisting and reaching motion described by the applicant. Dr McPhee cannot, of course, assist in fixing the date of the incident.

The Issue

19.The issue that I must decide is whether I am satisfied that the applicant’s evidence is both truthful and reliable. Mr Dubé was minded to agree in argument with a suggestion from me that the case was one where there is no room for the applicant to be regarded as being honest but mistaken. On reflection I consider that approach to be too narrow. It is feasible, I suppose, that the applicant could have been wrong about the circumstances of the incident and honestly, but erroneously, convinced herself that the incident occurred whilst she was on her way home from work.

20.Nonetheless the circumstances of this case and the changes in the applicant’s account are such that her credibility is very much in issue. Indeed the respondent went so far as to suggest to the applicant, and to submit, that she had suborned perjury and was giving perjured evidence and to suggest the same to her sister. But, as I understood the respondent’s submissions, it was accepted that if I found the applicant to be truthful and reliable then she was entitled to succeed.

The Applicant’s Credibility

21.It is, I think, understandable that the respondent would view with suspicion the claim that the applicant advances. An employer will often have difficulty in detecting a fraudulent or mistaken claim that an employee sustained an injury in the course of a journey, a fortiori where, as is the case here, no notice of the claim is given for many months. And where, as here, a date is put forward which can be demonstrated to be wrong there is even more reason for an employer to be sceptical. There will frequently be both motive and opportunity for an employee to fraudulently claim that an injury was occasioned to the employee in the course of a journey. In the circumstances of this case and against such a background I need to scrutinize the evidence of the applicant and Ms Muller very carefully.

22.The respondent relies upon a number of matters in support of its fundamental argument that I ought not accept the applicant’s evidence. The matters particularly relied upon are these:

·   the change in date;

·   the changes in time;

·   the change to the detail of the phone call between the applicant and her sister;

·   the absence of any complaint to the general practitioner on the occasion of the visit on 5 November 2004;

·   the failure to make reference to the event said to have caused the injury on the occasion of the visit to the general practitioner on 30 November 2004.

23.Whilst I accept that there is much force in these criticisms of the applicant I must say that the applicant struck me as a truthful witness. I was impressed with the way she dealt with cross-examination. I thought that she answered the questions put to her by Mr Dubé and by me in a forthright manner. I was left in no doubt that she was being truthful in giving evidence before me. I accept, of course, that one’s impressions of witnesses are often an uncertain guide but my impression of her was a favourable one.

24.The change in the date of the incident seems to me to be explicable on the basis that the applicant did not give sufficient thought to the correct date when first called upon to nominate the date of the accident. She associated the incident with two matters – her sister’s birthday and the fact that the day was one where her sister was involved in dance classes. The birthday was on Sunday and the classes occurred on Tuesdays and Fridays. It seems to me that the applicant, probably not realising the importance of the correct date, too readily assumed that the incident occurred on the Friday of the week adjacent to her sister’s birthday when it became necessary to nominate the date of the event. If, as the respondent submits, the applicant’s claim was wilfully false it seems to me that the applicant would have been at pains to ensure that she did nominate a date when she was at work.

25.The issue of time is also explicable, I consider, on the basis that the applicant gave insufficient thought to the question. The applicant impressed me as an employee who was prepared to contribute beyond the expected hours where that was necessary in order to complete the tasks that she had been assigned. She said, and I accept, that her hours of 7 am to 3.40 pm were nominal only and that she frequently worked well past 3.40 pm. Given that, I do not find it at all unusual that she was unable to say, with any degree of precision, when she finished work on the day in question and that, when forced to nominate times for departure from work and of the incident, she did little more than guess. I detected in the applicant a sense of grievance that she has been, in effect, accused of wrongdoing. That sense of grievance seems to me to have led her to try almost too hard to prove that she is right.

26.It is in relation to the issue of telephone conversations between the applicant and her sister that the respondent put the submission of perjury and suborning perjury. It will be recalled that in the applicant’s written statement she said that she had telephoned her sister using her own mobile telephone and that that was demonstrated in cross-examination not to be true. Ms Muller’s statement, which is dated 20 April 2006 and which had been filed in the Tribunal some months ago, made reference to her having received a telephone call from her sister. The statement said:

In November last year [sic] I was at the dance school that my daughters attend … when I received a call from Debbie in regards to the fact that she had an incident on the way home from work after she had collected [her son] from me. She would have only left me for a matter of two minutes when this had occurred.

27.After the applicant had given her evidence she proposed that her sister give evidence by telephone. I stood the matter down for a short time to enable the applicant to contact her sister and ensure that she had a copy of her statement in front of her when she was called.  When the matter resumed after a short time Ms Muller was called by telephone. When asked whether the matters contained in the statement were true Ms Muller said that, in fact, she had not received a call from the applicant, rather, she said, her mobile telephone records confirmed that she had made the call to her sister at around 4.30 pm on that day. Mr Dubé put to her, but she denied, that the applicant had telephoned her and had told her that the respondent had obtained access to the applicant’s mobile telephone records which showed that what Ms Muller had said in her statement about receiving a call from the applicant was wrong. Ms Muller denied this suggestion as did the applicant when she was recalled at my insistence to give her the opportunity to comment on what is a most serious allegation.

28.I reject completely the allegation. It is not clear to me on what basis it was put and I consider it unfortunate that it was advanced seriously but I am well satisfied that it is without foundation. Certainly the respondent called no evidence that would have provided any evidentiary foundation for the allegation.

29.At the time of the applicant’s visit to her general practitioner on 5 November 2004 she was afflicted by the flu. She was not then troubled by her back to the extent that she later became. It was, at that time, a minor irritation that she anticipated would resolve over a short space of time without medical intervention. As it happens that was an optimistic view. Eventually she had to seek treatment for it but did not bring to mind the earlier incident when asked about a likely cause. I see nothing unusual or sinister about that. Again, it seems to me to be a case of the matter not then having the importance that it later developed.

30.Whilst I accept that these matters entitle the respondent to regard the claim with some suspicion they do not detract from my view that the applicant’s evidence was both truthful and accurate.

31.It follows that I am satisfied that the applicant did suffer an injury as defined by the Act. It seems appropriate to adopt the description given to it by Dr McPhee rather than that adopted by the applicant in her claim form. I will set aside the decision under review and substitute a decision that the respondent is liable to pay compensation to the applicant in accordance with the Safety, Rehabilitation and Compensation Act 1988 in respect of the condition of acute prolapsed lumbosacral disc.

32.It seems unlikely that the applicant will have incurred any recoverable costs but I will make an order that the respondent pay the applicant’s costs (if any) of and incidental to the proceedings.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ....................Signed...................................................

  Leisa Pendle, Associate

Date of Hearing  13 September 2006
Date of Decision  22 September 2006
Applicant appeared in person
Solicitors for the Respondent    Sparke Helmore Lawyers