O'Driscoll and Telstra Corporation Limited
[2003] AATA 534
•6 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 534
ADMINISTRATIVE APPEALS TRIBUNAL ) N2001/443; N2001/1011;
) N2001/1012; N2002/1813
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL O'DRISCOLL Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J Campbell, MemberDate6 June 2003
PlaceSydney
Decision The Tribunal:
1. AFFIRMS the decision of 27 March 2001 refusing the claim for payment of the cost of therapeutic appliances.
2. AFFIRMS the decision of 2 July 2001 refusing the claim for payment of compensation for permanent impairment.
3. SETS ASIDE the decision of 18 November 2002 in accordance with the Tribunal's reasons for decision.
4. SETS ASIDE the decision of 2 July 2001 regarding compensation for the conditions of right lateral epicondylitis, prolapsed C5/C6, dislocated T3/T4, T8/T9, fibromyalgia (spine), stress and depression, and the Tribunal substitutes in lieu thereof its decision, namely that the Respondent is liable to pay to the Applicant pursuant to the Safety, Rehabilitation and Compensation Act 1988 his reasonable medical expenses for the condition of lateral epicondylitis of the right elbow. The Respondent is not liable to pay compensation pursuant to the said Act in respect of any other injury or disease claimed by the Applicant to be attributable to his employment with the Respondent.
(Sgd) M D ALLEN ..........................................
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION - Applicant first injured neck in 1975 with subsequent injuries in 1981 and injured neck and thoracic spine in 1985 - whether Applicant still incapacitated - ability to work or to enter into a Return to Work program - whether impairment permanent before 1 December 1988 - were various therapeutic aids reasonably required by the Applicant.
Safety, Rehabilitation and Compensation Act 1988 – s14, 16, 19, 24, 39, 124
Compensation (Commonwealth Government Employees) 1971 – ss39(4)
Midland Metals Overseas Ltd v Comptroller General of Customs 30 FCR 87
Comcare v Grimes 50 FCR 60
Woodbridge v Comcare 20 AAR 196
Australian Postal Corporation v Oudyn [2003] FCA 318
Bashar v Comcare 35 AAR 230
REASONS FOR DECISION
Senior Member M D Allen
Dr J Campbell, Member1. The hearing in this matter concerned four applications to the Tribunal by the Applicant seeking review of four "reviewable decisions" made by the Respondent which decisions determined inter alia:
(i) on 27 March 2001 that the Applicant was not entitled to payment for the cost of appliances being an inversion unit, vibrating massage unit, exercise bicycle and rowing machine; (N2001/443)
(ii) on 2 July 2001 that the Respondent was not liable to pay compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) to the Applicant for the conditions described as "right lateral epicondylitis, prolapsed C5/C6, dislocated T3/T4, T8/T9, fibromyalgia (spine), stress and depression" ; (N2001/1011)
(iii) on 2 July 2001 that the Respondent was not liable to pay to the Applicant, pursuant to the SRC Act, compensation for permanent impairment to the neck, thoracic and lumbar spine, and right upper limb; (N2001/1012)
(iv) On 18 November 2002 that the Respondent was not liable to the Applicant pursuant to the SRC Act post 13 October 2000 in respect of injuries described as "acute neck strain, alleged to have occurred on 29 May 1975, acute back strain alleged to have occurred on 27 March 1981, a neck injury alleged to have occurred on 16 September 1981 and various conditions alleged to be the result of a myelogram on or about 7 May 1985". (N2002/1813)
2. The Applicant has had two previous matters before this Tribunal. On 18 November 1986 the Tribunal set aside the decision then under review and remitted the matter to the Respondent (then termed the Australian Telecommunications Commission) with the finding that the Applicant was still suffering effects of an injury occasioned when turning his head at work in May 1975, but that rehabilitation should be possible.
3. On 18 May 1998 a differently constituted Tribunal determined that the Applicant was partially incapacitated for work but that he had been able to earn in suitable employment an amount per week that was not less than his average weekly earnings. That Tribunal also determined that the Applicant was entitled to ongoing medical expenses in respect of his cervical spine and right elbow.
4. The above mentioned decisions of the Tribunal are of historical interest only in that estoppel, whether issue estoppel or cause of action estoppel, does not apply in the Administrative Appeals Tribunal see Midland Metals Overseas Ltd v Controller-General of Customs 30 FCR 87 and Comcare v Grimes 50 FCR 60. That is not to say, however, that evidence adduced in those proceedings is not relevant in the current proceedings.
5. In addition, as was pointed out by Hill J in Woodbridge v Comcare 20 AAR 196 an employee's condition may deteriorate so that whilst originally disentitled to any payment for loss of earnings pursuant to s19 of the SRC Act at a later time he may become so entitled.
6. In Australian Postal Corporation v Oudyn [2003] FCA 318 Cooper J said at paragraphs 34 and 35:
"34. APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment for compensation for an injury under a particular section of the Act: Plum v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s14 of the act has properly arisen and a determination made to accept the claim made in accordance with s54 of the Act.
35. The determination of APC made on 18 May 2000 involved two elements. The first was that the effects of the injury sustained 2 August 1999 had resolved. That is, that the injury no longer resulted in an incapacity for work or an impairment. The second element was a consequence of the first. It was to terminate, as and from the date of the determination, the payment of compensation then being made to Mr Oudyn under one or more sections of the Act. To the extend that APC attempted to exonerate itself from future liability and to foreclose any future claims by Mr Oudyn by the determination, APC was in error as to its power to do so by the determination."
7. In other words whereas the Respondent by its reconsideration decision of 18 November 2002 determined that it was no longer liable to the Applicant, this decision can no longer stand but each claim by the Applicant must be considered on its merits, having reference to the particular section of the SRC Act pursuant to which the claim is made.
8. In essence the Applicant's claims before this Tribunal were that he was still disabled by his work caused injuries and that this then led to:
I. an ongoing requirement for medical treatment pursuant to s16 SRC Act
II. an inability to earn in any employment pursuant to s19 SRC Act
III. a claim for permanent impairment pursuant to s24 and s27 SRC Act
IV. a claim for repayment in respect of aids and appliances purchased by him, s39 SRC Act.
9. In his evidence to the Tribunal the Applicant said his first injury occurred at work in the year 1975 when he turned his neck in order to speak to a co-worker. The neck became stiff and painful and the next day he consulted his general practitioner who referred him to physiotherapy. The neck continued to be painful "on and off" particularly after sleep. In the period 1975 to 1981 he also consulted a chiropractor for treatment to his neck, that chiropractor told him he had "displaced vertebrae".
10. The Applicant again injured his neck in 1981 when a State Transit bus braked suddenly and threw him off balance. He injured his back and aggravated his previous neck injury.
11. Apart from claiming compensation from the Respondent, as this incident happened on a journey to his home from work the Applicant took proceedings in the District Court of NSW against the State Transit Authority. Those proceedings were settled.
12. As a result of the bus accident the Applicant stated that he had pain in his upper thoracic spine radiating to his right shoulder. His general practitioner ordered X-rays and prescribed analgesics. Eventually his general practitioner manipulated his back which fixed the problem, and he was able to return to work, although he was still getting pain in his neck.
13. In September 1981 the Applicant again injured his neck at work when he turned to use a Visual Display Unit. He consulted a Chiropractor, a Dr Flint, and also made a claim against the Respondent for Workers Compensation which claim was accepted.
14. The Applicant's general practitioner referred him to Dr Stevens, Orthopaedic Surgeon, who carried out a manipulation of the Applicant's cervical spine which, according to the Applicant, made his condition worse. Late in 1981 he had further chiropractic treatment from Dr Flint which enabled him to continue working.
15. The Applicant's neck continued to get worse so that in 1985 he consulted Dr Bleasel, Neurosurgeon. On 8 May 1985 Dr Bleasel carried out a myelogam. Unfortunately the Applicant during this procedure suffered a grand mal epileptic fit which resulted in crush fractures to his vertebrae at T8, T9 and T10, and a right lateral epicondylitis. The Applicant claims he also suffered a "twisted pelvis".
16. Following these events the Applicant remained absent from work. In late 1985 he was directed to return to work but only resumed work for several hours before leaving. He then obtained further certificates from his medical practitioners regarding his unfitness for work.
17. On the 14 January 1986 the Respondent wrote to the Applicant's general practitioner regarding a Return to Work Program. Suffice it to say the Applicant decided not to return to work and his employment with the Respondent was terminated.
18. The Applicant was cross-examined about his return to work. Prior to his injury in 1985 he had been employed in the Respondent's Freedom of Information Section. It was envisaged that he return to that work, initially working two hours a day with freedom to move as he required. He would be given an ergonomic chair and a dictaphone. He stated to this Tribunal that he was not capable of undertaking that work and it was a waste of time to attempt it. He stated that as the hours of work would have been increased his pain would have become greater.
19. Currently the Applicant is in receipt of a Disability Support Pension and occupies most of his day in sedentary activities.
20. Notwithstanding his statement that he is incapable of working even two hours a day the Applicant, commencing in 1989, has undertaken full time study at Macquarie University and obtained Bachelors Degrees in Arts and Economics.
21. As part of his case the Applicant called Dr Lovett-Iskandar of Health Services Australia who on 31 August 1999 examined the Applicant for the purposes of ascertaining if he was still entitled to the Disability Support Pension. She stated that the Applicant's entitlement to Disability Support Pension was because of incapacity from the non-compensable condition of systemic lupus erythematous which was diagnosed in 1992 as well as his orthopaedic injuries. If regard was had to his back, neck and elbow injuries alone the Applicant would not qualify for DSP.
22. In her report of her examination of the Applicant (see Exhibit A8), Dr Lovett-Iskandar assessed the range of movement in the Applicant's cervical spine as being reduced by 25 per cent and in the thoraco lumbar spine as being reduced by 25 per cent. She also noted that there was no muscle wasting in the upper limbs.
23. Dr Griffith, Consultant Surgeon, on 14 March 2000 rendered a report to the Respondent (T89) regarding the Applicant. The Applicant called Dr Griffith as his witness in these proceedings. In evidence to the Tribunal Dr Griffith stated that the Applicant does not have "out of alignment vertebrae" and he would not have told him this. Whereas the Applicant does have some pathology it is also possible that he has developed a "pain syndrome".. This hypothesis found some support in the evidence of Dr Potter.
24. Cross-examined Dr Griffith stated that the first incident in 1975 was simply a musculo-ligamentous strain and should have resolved in three to four months. Similarly, crush fractures of the thoracic vertebrae as suffered by the Applicant heal within three months and are then stable and the injury should have resolved.
25. More importantly Dr Griffith was of the opinion that the Applicant was capable of undertaking a Return to Work Program and that the program which had been outlined to the Applicant in 1985 was reasonable in light of the demonstrated pathology in his back.
26. In his report of 14 March 2000, Dr Griffith stated that the Applicant suffered degenerative disease of the cervical spine and his current symptoms were entirely consistent with the natural progression of that disease. The prior injury to the cervical spine should have resolved within weeks. The compression fractures to the vertebrae have long since united, and are themselves no longer of any significance whereas the claimed pain emanating from the thoracic spine is.
27. Document T89 in matter N2001/443 is a further report by Dr Griffith regarding therapeutic aids sought by the Applicant. That report reads inter alia:
"In regard to the purchase of the traction apparatus, exercise cycle, massage vibrator and hydraulic rowing machine, all would contribute to his general fitness. The Olympic inverter gym (inversion traction machine) may be considered of assistance in applying traction to his spine, though it will not produce reduction of the in my opinion erroneously chiropractically diagnosed subluxations. In addition, I should suspect that a hanging period of 4 minutes will not produce sufficient traction to actually reduce any disc lesion. There may well be a significant functional overlay responsible for his improvement."
28. Dr Millons, Surgeon, examined the Applicant on behalf of the Respondent on 26 November 2001. After taking a history from the Applicant examining him and reviewing the radiology available which dated from 23 September 1981 to 8 October 2001 together with a series of medical reports, Dr Millons opined:
"Mr O'Driscoll has some constitutionally based attritional change at C5/6 which may have been temporarily aggravated by incidents at work in 1975, March 1981 and September 1981. Such problems as he has in his neck now would be more a reflection of the normal activities of daily living playing on those attritional changes rather than those specific incidents. Neck symptoms could have been aggravated in the grand mal episode that he had after his myelogram in May 1985.
Mr O'Driscoll has evidence of a lateral epicondylitis at the right elbow which seems to have come about as a result of the grand mal seizure that he had.
Mr O'Driscoll has some pain in his lower back which is probably the result of the normal activities of daily living playing on some minimal constitutionally based attritional change there. I doubt whether the incident on the bus in March 1981 is of any consequence. He could have aggravated his lower back problems in the grand mal episode in May 1985."
Dr Millons then went on to say:
"He could work in a clerical capacity, performing his pre-injury duties were the opportunity there to him."
Dr Millons stated in regard to the inversion unit, vibrating massage, etcetera:
"Such items of equipment may help his general fitness but that, to my mind, has nothing to do with anything that emanated out of the three incidents described by him."
29. Cross-examined by the Applicant Dr Millons stated that he had seen the MRI scan of the Applicant's right elbow dated 8 October 2001 and that it showed a chronic epicondylitis. So far as the Applicant's cervical spine was concerned there was nothing to suggest a ruptured disc as opposed to an annular tear which is a degenerative change and not a protrusion.
30. Whereas Dr Millons accepted that the Applicant had changes in his cervical spine that may give ongoing pain, his opinion was that the radiological findings were minor and not so great as to prevent someone working in a clerical capacity. As for analgesia the Brufen taken by the Applicant was one of the lesser analgesics and better (for the stomach) then Panadol. The taking of Brufen was not incompatible with work.
31. As to permanent impairment Dr Millons assessed the Applicant as having a five per cent whole person impairment of the right elbow, a five per cent impairment in relation to his neck and five per cent as a result of minor restriction of movement of the back. He added:
"Those figures reflect the underlying constitutionally based attritional change and are not the result of the three incidents described by him."
32. Rheumatologist Dr Stephen Potter has examined the Applicant and prepared six reports for the Respondent. Those reports are found as documents T7, 8 and 9 in matter N2002/1813 and Exhibits R2 to R4 inclusive in these proceedings.
33. In his report of 7 May 2003 (Exhibit R4) Dr Potter states:
"What is consistent is Chronic Widespread Pain.
Please find attached my commentary in that regard.
However on the date seen although I am sympathetic to the man's subjective distresses I was unable to define ongoing musculo skeletal pathology as a consequence of any injury.
Further within my specialty objectively this man is fit to work as a clerk. There may be some other constitutional factors there may be some other behavioural issues, but in this context the man is fit to work as a clerk."
34. Cross-examined by the Applicant Dr Potter stated that he had never doubted that the Applicant had a disorder in his right elbow but that it was highly unlikely a scoliosis in the thoracic spine would contribute to a lumbar spondylosis. In his opinion the use of a computer would not aggravate the Applicant's epicondylitis. Previously in evidence in chief Dr Potter had stated that the only objective data was that the Applicant had spondylitic change in the cervical spine consistent with age.
35. Asked to assess the degree of impairment present in the Applicant, Dr Potter assessed (as per the Comcare Tables) Nil in the right arm and five per cent in the cervical spine. In particular he added regarding the cervical spine:
"The criteria does not equate to 10 per cent because there has been no precise fracture or injury, and his range of movement is certainly more than half the normal range on the date seen by me.”
36. In his report of 6 September 2001 (T8 in N2002/1813) Dr Potter says of the various devises purchased by the Applicant:
"The man may have a list of requests and wishes, but I have no justification for an inversion unit, vibrating massage unit, an exercise bicycle, rowing machine as being relevant or necessary."
Dr Matheson is a consultant neurosurgeon. He examined the Applicant on behalf of the Respondent and his report is dated 26 November 2001 (Exhibit R5). In that report Dr Matheson stated:
"Mr O'Driscoll carries a minor cervical problem with a disc lesion there and he also carries a bit of Scheuermann's disease at T9, with possibly an old crush fracture. He is on anti-depressants and anti-inflammatory drugs. He does carry a problem in his spine but there is obviously a huge functional overlay present here and considerable exaggeration.
To look at the mechanism of injury, simply turning his head to speak to somebody could not produce this lesion and thus there is clear evidence that this is a constitutional disc lesion in his neck...
The question of whether he got a T9 crush fracture after his epileptic fit following the myelogram remains an unknown. If he did have, these crush fractures hurt for approximately nine months and then resolve and cause no further symptoms. If he has some pain down there it is probably just due to some Scheuermann's disease, it would not be due to a crush fracture at this stage."
Dr Matheson concluded in his report as stated:
"I will now go through some of your specific questions. The diagnosis is a C5/6 disc lesion and some thoracic Scheuermann's disease. There is nothing in his work with Telstra which has contributed to this situation. He has a minor incapacity in relation to thoracic and cervical function. It is degenerative in origin and is constitutional. He is fit for employment without restriction although very heavy physical work would be inappropriate for him. I would consider his problems would probably continue in a minor way into the future. I would not recommend any treatment. He just needs to exercise from time to time but does not need any special machinery to do that. Prognosis is for some minor ongoing neck pain."
37. In a separate report of the same day which became Exhibit R6, Dr Matheson stated:
"As he has no neurological disability in the limbs I make no rating of disability in relation to limb function. In relation to Table 9.6, he has a 5% total body impairment in relation to the cervical spine. He has a 5% total body impairment in relation to the thoracolumbar spine."
38. Cross-examination of Dr Matheson by the Applicant did not alter Dr Matheson's opinions or detract from the substance of his reports.
39. The final witness in this matter was Dr Dixon, Orthopaedic Surgeon, who was called by the Applicant. In a report dated 17 November 1997 Dr Dixon had stated the history as:
"He had a history of C5/6 disc prolapse in 1992 following a work injury. He had developed pain in his lower back as well as thoracic injury."
40. As this history is incorrect on the evidence adduced before us it immediately causes reservations to be held regarding Dr Dixon's final opinions.
41. In addition, Dr Dixon in his report does not mention the Applicant's epileptic seizure whilst undergoing a myelogram in 1985 but implicates the 1981 bus accident as the cause of his epicondylitis and fracture of the thoracic vertebrae.
42. Dr Dixon told the Tribunal that he had again examined the Applicant on 17 February 2003. In his opinion it was reasonable to assume that if the Applicant had injured his neck in 1975 and the symptoms were unchanged, then part of the Applicant's current symptoms were due to that injury and part due to the aging process.
43. We note however that the symptoms have not persisted since 1975, as the Applicant in other reports was reported as playing competition squash until his bus injury in 1981. Evidence adduced to the Tribunal in 1986 was that in 1978 the Applicant purchased a 65-foot sloop which he sailed from time to time until 1986. These activities are not consistent with ongoing neck pain.
44. Cross-examined Dr Dixon stated that Brufen is a “gentle” analgesic although not that strong and that with the aid of Brufen the Applicant could work in a part time capacity. When the nature of the Return to Work Program was put to him he stated: "I think it would have been reasonable to do a work trial of that nature". In re-examination he was asked again regarding the proposed Return to Work Program offered to the Applicant and stated unequivocally "a part time work trial would have been to your benefit".
45. Dr Dixon was cross-examined regarding the Applicant's tertiary studies and stated that he was not aware that he had undertaken University studies. He further stated that if this was so then the Applicant was fit to undertake work of a clerical nature.
46. Dr Dixon rejected the hypothesis put to him by the Applicant that a thoracic spine scoliosis contributed to his lumbar spondylosis.
47. Solicitors then acting for the Applicant obtained a report from Dr Wolfenden, Consultant Neurologist. That report dated 21 February 2002 is at document T13 in matter N2002/1813. After taking a history of the work incidents in 1975 and 1981 and the bus accident in 1981 together with the grand mal epileptic seizure in 1985, Dr Wolfenden opined:
"On the basis of the history given his symptoms would seem to have been brought on by the incidents described above and therefore attributable to his employment and I would consider that his condition became permanent in about May, 1985."
48. Dr Wolfenden assessed the Applicant's impairment to be 10 per cent for the right upper limb, 10 per cent to the neck and five per cent in regard to the thoraco- lumbar spine.
49. By report dated 19 October 1992 (Exhibit R9) Dr Vonau, Consultant Neurosurgeon, reported to solicitors for the State Transit Authority regarding the Applicant's injury. Interestingly the history she obtained was that the Applicant's problems began in 1979 or 1981 when he was taking a bus home from work. In other words there was no history given to Dr Vonau of the 1975 injury when the Applicant said he turned his neck at work and felt pain.
50. After detailing the history of the myelogram in 1985 and its results Dr Vonau noted:
"There was a thoracic CT Scan dated 16 June, 1987 which showed healed compression fractures of T8, 9 and 10. There was no compromise of the spinal canal. There was a cervical CT Scan dated 16 June, 1987 from C1 to T1. Again there were noted to be degenerative changes at C5-6. There was no compromise of the spinal canal."
Dr Vonau then noted that there was full extension of the Applicant's neck. She then opined:
"Examination revealed some restriction of movement of the cervical spine in right lateral flexion and right rotation due to pain. There was no clinical evidence of nerve root compression. Radiological investigations have shown a degenerative C5-6 disc. The onset of these changes was uncertain.
As far as the thoracic spine was concerned, although there were claims of pain in the thoracic region with minor activity, there was no restriction of movement and radiology showed healed minimal changes at the involved levels...
I find it hard to believe that all Mr O'Driscoll's problems stem from the incident on the bus and I do not believe he is as incapacitated as he makes out. For someone who is unable to perform the tasks he alleges he has very well toned and developed muscles.
I see no reason why Mr O'Driscoll would not be able to perform his clerical duties."
51. Dr Thomson who had previously examined the Applicant on behalf of the Respondent in 1988 again examined him at the request of solicitors for the State Transit Authority on 30 October 1992. His report of that day is Exhibit R8. In that report Dr Thomson states inter alia:
"The patient was then not working, said he has not worked since he saw me last, there has been no accident/injury to any of the parts and he has had no X-rays. He has had treatment with physiotherapy, tablets and traction to the neck and when asked how he was compared to when I saw him last, he replied 'about the same' except in respect of disability claimed previously at the right elbow which he now said had been largely relieved. He said after a Physiotherapist had managed to 'crack it and free it' that the previous significant symptoms claimed thereat have abated and there is said currently only to be occasional discomfort thereat."
After a physical examination of the Applicant Dr Thomson went on to report:
"Physical examination of the neck revealed a full range of movement available of the part, there was quite good muscular relaxation associated therewith, there was said to be discomfort in the movements but the observed involuntary conduct of the head and neck generally appeared unimpeded today where there was noted to be quite a free and fluid range of movement available of the head and neck in all directions without any suggestive visible impediment....
Clinical physical examination of the thoracic back today was non-contributory, there being no undue kyphosis of the part, no tenderness to palption and no abnormality of movement."
52. After referring his earlier report of 12 April 1988 Dr Thomson opined:
"I don't believe this incident or the previous incident alleged on 29 May 1975 when working for Telecom could have induced a legitimate cervical spinal column disc injury, but that if he does have anything of the like, then it would have been related to his multitudinous strenuous sporting and other physical activities mentioned in my previous report.
It is noted that serious inconsistencies appeared to emerge at the physical examination today and similar aspects of the same when last seen including a full range of movement of the neck today with good muscular relaxation of the part whereas when previously seen, it was noted 'that it was purportedly frozen'.
...given all of the above considerations, I think the claims by this patient are suspect, unreliable and that he either has much less physical disability than claimed or quite possibly none at all."
53. A further report obtained on behalf of the State Transit Authority was that of Dr Scarf, Surgeon, dated 12 November 1992 (Exhibit R10). In that report Dr Scarf opined:
"Examination of the thoraco-lumbar spine did not demonstrate any abnormal curvature...
It is clear from the X-rays that this man had pre-existing degenerative changes, almost certainly as far back as 1975 when he suffered the discomfort in his neck turning his head...
In 1984 he claims turning his head exacerbated and worsened his symptoms. It is difficult to see how this likely to be a pathological probability. However at this time he had a myelogram which resulted in him suffering a grand mal seizure.
In such an unanticipated grand mal seizure he could have suffered muscular contracture about his right elbow and possibly torn some of the extensor muscles from their attachment to the lateral epicondyle. Furthermore minor crush fractures as described could have occurred...
It would not be unreasonable for him to have some discomfort in his neck from time to time with the head in certain positions, but this is associated with the degenerative changes. It is not likely that he suffered acceleration of the degenerative changes in his neck as a result of the incident of 1981. The changes would proceed inexorably and after 11 years no doubt that deterioration would account for his current symptomatology. There is little in the way of physical finding.
It is to be noted that in 1989 though regrettably Dr Bleasel does not go into any detail of his examination, he states "there is very little to find on examination". I would concur with this.
His numerous symptoms relating to the thoracic spine are in my opinion not organically based and there is no evidence of any abnormality in relation to the lower thoracic spine. His symptoms described extending across the low thoracic spine are not in relation to the vertebrae which were injured.
It is doubtful whether he does suffer migraine headaches and the symptoms he describes may be coming from his degenerate neck."
54. Dr Bleasel who had been the Applicant's treating surgeon was called to give evidence in the 1986 proceedings in the Administrative Appeals Tribunal. The transcript of Dr Bleasel's evidence is at document T20 in N2001/443. A perusal of that transcript makes it clear that Dr Bleasel considered that the Return to Work Program offered to the Applicant was appropriate and that "the nature of the injury should allow him to do some work, particularly in a form that had regard to the fact he had neck symptoms".
55. At the outset it can be accepted having regard to the evidence of Dr Millons and the MRI report dated 8 October 2001 (Exhibit A3) that the Applicant continues to suffer a right lateral epicondylitis. As pointed out by Dr Wolfenden that condition most likely became permanent in 1985.
56. The medical reports also make it clear that in 1985 as a result of the myelogram performed by Dr Bleasel the Applicant suffered crush fractures to his thoracic vertebrae. The balance of medical opinion is that they should have resolved some months afterwards.
57. With the exception of Dr Wolfenden the medical reports and evidence are to the effect that the changes to the Applicant's cervical spine are consistent with age degeneration and that any experience of pain from 1975 to 1981 was a temporary aggravation only. See the evidence and reports of Dr Griffith, Matheson, Vonau, Dixon, Potter, Scarf and Millons. We also note that until 1985 the Applicant was playing competition squash and sailing.
58. The Applicant did, as a result of his grand mal seizure, suffer crush fractures to his thoracic vertebrae, but these would have resolved within months. See the evidence of Drs Griffith, Potter and Matheson. Dr Scarf considered that the Applicant's thoracic spine symptoms were not organically based.
59. Dr Griffith in his evidence suggested that the Applicant may be suffering from a pain syndrome. Dr Potter also considered that the Applicant had a pain syndrome and stated with regard to the Applicant:
"We are not dealing with an accident or trauma or physical work induced pathology, we are dealing with a disturbed person with wide spread pain." (Exhibit R2)
60. At document T8 in matter N2002/1813, also a report of 6 September 2001, Dr Potter had said:
"The only objective pathology present is cervical spondylitic change which is constitutional and that could not have been significantly deteriorated or aggravated by the episodes given. The factors that occurred at that timeframe whilst working for Telstra have in themselves not interfered with his capacity to work.
This man may in fact have had in the past understandable compassionate consideration for compensation for some hours or days for neck discomfort, none such would be relevant now, and that is because the man is describing more than just cervical spondylitic change, but rather widespread pain from psychosocial and psychosomatic factors."
61. Dr Lewin, Psychiatrist examined the Applicant on 27 February 2003 on behalf of the Respondent. His report of 4 March 2003 became Exhibit A15 having been tendered by the Applicant. In that report Dr Lewin states:
"I found no sign of any depressive or anxiety disorder. There was no sign of any other psychiatric condition either...
I did not diagnose any psychiatric condition at the present time. I found no evidence of any psychiatric condition over the last decade. There was no evidence of any continuing psychiatric disturbance related to his work with Telstra."
62. Given Dr Lewin's report and the material annexed to Dr Potter's report we are not satisfied that the Applicant suffers from a true chronic pain syndrome or that if present it has any relationship with his employment with the Respondent which employment ceased some 17 years ago.
63. Dr Wolfenden estimated the Applicant's permanent impairment at 10 per cent and above whereas Drs Millons, Potter, Matheson all rated the Applicant's incapacity at below 10 per cent for the cervical spine and thoraco-lumbar spine and right upper limb. In any event the evidence is that these incapacities would have become permanent in 1985 and pursuant to s124(2) SRC Act one must look to the Compensation (Commonwealth Government Employees) Act 1971 to ascertain if any compensation for permanent impairment is payable. When regard is had to the Table prescribed at ss39(4) of that 1971 Act the Applicant does not qualify for payment for permanent impairment.
64. In any event having regard to the reports of all doctors except for that of Dr Wolfenden it is clear that on the Comcare Tables the Applicant does not qualify for any payment arising out of a permanent impairment. Even if we are wrong on this point when one looks at the figures provided by the Respondent's doctors, which evidence we prefer, and even allowing for the fact that the right lateral epicondylitis and thoracic spinal injury occurred as a result of the one incident, namely the grand mal epileptic fit, the impairment still does not on the combined Tables equate to 10 per cent.
65. So far as an entitlement for loss of earnings is concerned the evidence is again clear in that all of the medical practitioners who have given reports, with the exception again of Dr Wolfenden who does not address the question, consider that the Applicant is fit to undertake a graduated Return to Work Program of the kind the Respondent was attempting to undertake when the Applicant ceased his attendance at his place of employment.
66. The most favourable decision that can be made for the Applicant is that on the available medicine he would require a graduated return to work and there is abundant evidence in the medical reports that he is capable of at the very least part time clerical work.
67. Since the time the Applicant left his employment he has successfully completed tertiary studies and on the material before us we are satisfied that there is nothing to stop the Applicant again entering into a graduated Return to Work Program.
68. So far as the therapeutic aids are concerned the medical evidence amounts to the fact that such aids would assist the Applicant's physical state but would have no real effect upon his underlying pathology.
69. Subsection 39(1) SRC Act states:
(1) Where:
(a) an employee suffers an injury resulting in an impairment;
(b)... the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:
(c)...
(d)...
(e) any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;
being ... aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.
70. As pointed out by Madgwick J in Bashar v Comcare 35 AAR 230 at 233 discussing the analogous case of therapeutic treatment (which included treatment merely to relieve pain) the question for the Tribunal is whether the treatment can be said to be “reasonable” and if the treatments have no discernible effect then that would be relevant in considering whether they were reasonable or not.
71. In this matter Dr Potter stated that the various devices purchased by the Applicant were not necessary. Dr Millons merely stated that they would improve his fitness. Given this evidence we cannot be satisfied that the provisions of these items are reasonable notwithstanding that the Applicant may consider he derives benefit from their use.
72. The decision of the Tribunal will be therefore:
1. That the decision of 27 March 2001 refusing the claim for payment of the cost of appliances being an inversion unit, vibrating massage unit, exercise bicycle and rowing machine is AFFIRMED;
2. That the decision of 2 July 2001 refusing the Applicant's claim for payment of compensation for permanent impairment pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 is AFFIRMED;
3. That the decision of 18 November 2002 is SET ASIDE. This decision merely reflects the effect of Australian Postal Commission v Ouyden supra and no further decision or direction is necessary.
4. That the decision of 2 July 2001 regarding compensation for the conditions of right lateral epicondylitis, prolapsed C5/C6, dislocated T3/T4, T8/T9, fibromyalgia (spine), stress and depression is SET ASIDE and the Tribunal substitutes in lieu thereof its decision namely that the Respondent is liable to pay to the Applicant his reasonable medical expenses for the condition of lateral epicondylitis right elbow. The Respondent is not liable to pay compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 for the other conditions set out above.
73. Given that the only issue upon which the Applicant was successful was with regard to epicondylitis of his right elbow, the Tribunal does not make any order regarding his costs.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Dr J Campbell, Member
Signed: Nathaniel Wills .......................................................................................
AssociateDates of Hearing 12 - 14 May 2003
Date of Decision 6 June 2003
Solicitor for the Applicant Applicant was self-represented
Counsel for the Respondent Mr N Polin
Solicitor for the Respondent Sparke Helmore
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