Pecipajkovski and Telstra Corporation Limited
[2004] AATA 790
•28 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 790
ADMINISTRATIVE APPEALS TRIBUNAL )
)No N2002/1831,
)N2003/1060,
)N2003/1763
GENERAL ADMINISTRATIVE DIVISION ) Re PAVLE PECIPAJKOVSKI Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr S. Webb, Member Date28 July 2004
PlaceSydney
Decision N2002/1831: The decision under review is set aside. Liability for the injury accepted by Telstra Corporation Limited was not extinguished on 25 February 1999 and is ongoing.
N2003/1060: The decision under review is affirmed.N2003/1763: The decision under review is affirmed.
[sgd] Mr S. Webb, Member
CATCHWORDS
COMPENSATION – injury – contusion of the lumbar region and aggravation of a degenerative process in the lumbar spine – liability accepted - determination to cease liability – lumbar spine and left leg symptomatology – decision to cease liability set aside
COMPENSATION – permanent impairment – lumbar spine and left leg - claim denied – previously existing degenerative condition – no evidence of pre-existing impairment – exaggeration of symptoms – minor restriction of range of movement in the lumbar spine – no objective testing of claimed difficulty with grades, steps and distances – decision affirmed
COMPENSATION – injury – back and left leg condition – nature and conditions of employment – determination to deny liability – pre-existing degenerative condition – insufficient evidence that nature and conditions of employment materially contributed to cause injury – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 7, 14, 24, 27
Lees v Comcare (1999) 56 ALD 84
Re Liu and Comcare [2004] AATA 617
Rosillo v Telstra Corporation Limited [2003] FCA 1628
Comcare v Amorebieta (1996) 66 FCR 83
Martin v Australian Postal Corporation (1999) 29 AAR 420
Re Williams and Australian Postal Corporation (1998) AATA 12995
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR(NSW) 157
REASONS FOR DECISION
28 July 2004 Mr S. Webb, Member 1. Mr Pecipajkovski injured his back in 1991 and in 1993 in the course of his employment by Telecom Australia, subsequently Telstra Corporation Limited (“Telstra”). He has applied for review by this Tribunal of three reviewable decisions of Telstra concerning his lumbar spine condition and alleged left leg sequela. By those decisions Telstra purportedly ceased liability on 25 February 1999 for the injury to his back, and denied his claims for payment of compensation for permanent impairment and for injury allegedly arising from the nature and conditions of his employment.
2. The matter came on for hearing in Sydney on 26 March 2004 and 8 June 2004. Mr Pecipajkovski gave oral evidence at the hearing and was represented by Mr Dixon of counsel. Mr B. Kelly, counsel, represented Telstra. At the hearing documents were tendered and marked as exhibits.
factual context
3. I find that the following material facts arise from the documents before me and the oral evidence given at the hearing in this matter.
4. Mr Pecipajkovski was born on 30 May 1941. He was employed by Telstra from 1973 until 17 August 1999.
5. Mr Pecipajkovski’s duties in his employment by Telstra included “4 or 5 years” truck driving and work as a linesman and “about 10 years” working as a cable jointer when he was promoted to the role of supervisor of a cable jointing team. During the course of this employment Mr Pecipajkovski was required to dig trenches, to work in confined spaces and to lift and pull heavy objects.
6. On 17 April 1991 Mr Pecipajkovski strained his back lifting a cable. He was attended by Dr Sheps, general practitioner, who diagnosed “acute lumbo musculo-skeletal back sprain”. Mr Pecipajkovski returned to full duties after a short period off work.
7. Mr Pecipajkovski claimed compensation and on 15 August 1991 Telstra accepted liability for that injury.
8. On 11 February 1993 Mr Pecipajkovski injured his back in an incident in which he fell into a manhole when a footrest gave way. He attended Dr Choy, general practitioner, who diagnosed “bruised back and left leg” and certified him unfit for work from 12 to 15 February 1993. Mr Pecipajkovski consulted Dr Hordoba who certified him unfit for work from 15 February to 2 March 1993 because of “lower back pain”.
9. Dr D. Sargeant conducted an X-ray of Mr Pecipajkovski’s lumbar spine on 15 February 1993 and reported “moderate spondylosis at the L2/3 level and mild spondylosis at the other lumbar levels. The L5/S1 disc space is moderately narrowed and the L2/3 disc space is slightly narrowed”.
10. Dr C. Franklin conducted a CT scan of Mr Pecipajkovski’s lumbar spine on 18 February 1993 and reported “L4/5 and L5/S1 disc prolapse. There are spondylitic changes involving the vertebral body margins and facet joints”.
11. Dr K Edwards, surgeon, examined Mr Pecipajkovski on 26 February 1993 and reported “[The radiological] findings are of constitutional origin, and I do not believe the disc prolapses described by the radiologist are the result of the fall on 11/2/93.”
12. Dr L Hughes, consultant orthopaedic surgeon, examined Mr Pecipajkovski on 25 February 1993 and reported:
“His CT scan films have been reported on as suggesting a disc protrusion but there is no clinical evidence of any disc protrusion and in my opinion the films show only degenerate bulging of the disc. He may have contused his back in the fall two weeks ago but I believe any back pain he is experiencing now is due to degenerative disc disease in the lumbar spine with intermittent symptoms for over one year.”
13. Mr Pecipajkovski claimed compensation and Telstra accepted liability for “contusion of the lumbar region and temporary aggravation of a degenerative process in the lumbar spine…” on 3 March 1993. However, also on that date, Telstra determined to cease liability for that injury “on and from 25 February 1993”. By request of Mr Pecipajkovski that determination was reconsidered and varied, to the extent that Telstra’s liability was purportedly ceased on and from 3 March 1993. Mr Pecipajkovski pursued the matter to this Tribunal in respect of “lower back strain” and consent orders were filed on 26 May 1994 with the effect that the reviewable decision dated 24 June 1993 was set aside and the matter was remitted to Telstra for reconsideration.
14. Telstra determined that Mr Pecipajkovski was entitled to compensation for incapacity for periods in 1994, 1995, 1996, 1997 and 1998 in which Dr L. Hodoba certified him to be unfit for work by reason of “low back pain”.
15. On 21 December 1998 Mr Pecipajkovski ‘s claim “underwent a routine review” and he was examined by Dr Lloyd Hughes. On 24 December 1998 Dr Hughes reported (T27 folio 39):
“Any back pain which [Mr Pecipajkovski] is experiencing is, in my opinion, due to degenerative disc disease in his lumbar spine and not any injury or his previous work. Accepting that he has symptomatic degenerative disc disease in his lumbar spine, he should avoid any heavy lifting or prolonged bending. In the context of these restrictions he is fit for work.
…
2…(b) Any aggravation due to the incident on 11 February 1993 was temporary and has resolved.”
16. On 25 February 1999 Telstra determined to deny liability to pay compensation in relation to Mr Pecipajkovski’s lower back injury claim. That determination was affirmed in a reviewable decision dated 28 May 1999. Mr Pecipajkovski applied to this Tribunal for review of that decision on 20 November 2002 (N2002/1831).
17. On 31 May 2002 Mr Pecipajkovski lodged a claim for permanent impairment compensation in relation to his back and left leg. That claim was not accepted on the basis that liability had ceased. Mr Pecipajkovski sought review of that decision by this Tribunal. The Tribunal dismissed the application due to lack of jurisdiction. Mr Pecipajkovski subsequently claimed compensation for permanent impairment and non-economic loss on 13 March 2003. That claim was denied by a determination dated 28 March 2003. The determination was subsequently affirmed in a reviewable decision dated 23 June 2003. Mr Pecipajkovski applied to this Tribunal for review of that decision on 30 June 2003 (N2003/1060).
18. On 3 July 2003 Mr Pecipajkovski claimed compensation for “permanent impairment of the back” and “permanent impairment of the left leg” arising from the nature and conditions of his employment by Telstra. That claim was denied “pursuant to sections 4, 7, 14, 16, 19, 24 and 27 of the SRC Act” on 22 August 2003. The determination was subsequently affirmed in a reviewable decision dated 31 October 2003. Mr Pecipajkovski applied to this Tribunal for review of that decision on 6 November 2003 (N2003/1763).
19. After the injury in 1991 Mr Pecipajkovski returned to work on full duties as the supervisor of a jointing team. After the injury in 1993 Mr Pecipajkovski was provided with a rehabilitation program and returned to work on light duties. Those duties included clerical work in Chatswood and in the planning department in Ashfield, and working as a storeman in St Leonards. In or about 1995 he worked as a cleaner in a store at Baulkham Hills and subsequently in or about 1996 as a cleaner/clerical officer in an office at Seven Hills. In or about 1997 he worked connecting cables and performing labelling duties at Villawood. On 17 August 1999 Mr Pecipajkovski’s employment by Telstra ceased. He has not worked since that date.
legal principles
20. Mr Pecipajkovski’s applications rise for consideration under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). In order to be entitled to compensation under the Act Mr Pecipajkovski must have suffered an injury as defined at s.4 of the Act, that is, relevantly, a physical or mental injury, or an aggravation of such an injury, arising out of or in the course of his employment by Telstra or a disease or aggravation of a disease (s.4 and s.7) that has been materially contributed to by that employment.
21. Under the Act liability to pay compensation arisies if an injury results in death, incapacity for work or impairment (s.14) or requires medical treatment (s.16). Compensation that is payable is to be calculated under the relevant head of compensation in the Act. Compensation that is payable in relation to a permanent impairment is to be calculated under s.24 and any related non-economic loss is to be calculated under s.27 of the Act.
22. For compensation to be payable in respect of a permanent impairment the claimant must have a whole person impairment of at least 10 percent in accordance with the approved Guide to the Assessment of the Degree of Permanent Impairment (“the Approved Guide”) (s.24).
23. With regard to a determination under s.14 concerning the liability of a Commonwealth authority in relation to an injury under the Act, the Full Federal Court said in Lees v Comcare (1999) 56 ALD 84 at paragraphs 34 and 35:
“34 …A determination under s 14 cannot amount to more than a determination that Comcare "is liable to pay compensation in accordance with this Act" in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
35 This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.”
24. Once liability in relation to an injury has been properly accepted by determination under s.14 of the Act, it cannot be extinguished by subsequent determination in the event that compensation is not payable under another section of the Act at that time. In effect, while liability to pay compensation under a particular head or heads of compensation under the Act may be exhausted from time to time, the underlying liability raised under s.14 persists in relation to a compensable injury. The Tribunal observed in the case of Re Liu and Comcare [2004] AATA 617 at paragraphs 2 and 3:
“2 …A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been determined to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation. Such periods may be long. The compensable injury may never give rise to any future entitlement to compensation. But this can not be known or determined in advance. No determination, whether by consent of the parties or not, can preclude the making of a future application for compensation with respect to a compensable injury determined to exist under s 14. This was made clear in Plumb v Comcare (1992) 39 FCR 236 at 240.
The only time that liability under s 14 can be reconsidered is under s 62. But that is a reconsideration of whether the original determination was correct on its merits and cannot address any issue of cessation of correctly determined liability. A changed determination upon such a reconsideration is a determination that there never was a compensable injury (see Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at 666-667).”
25. It follows that liability under s.14 of the Act in relation to a compensable injury does not cease even though applicable criteria for the payment of specific compensation may be satisfied at a specific point in time (see Rosillo v Telstra Corporation Limited [2003] FCA 1628). Liability may remain dormant in such circumstances and will continue in that state until it is enlivened again by a subsequent application for compensation in relation to the compensable injury.
issues
26. The issues in this matter are:
(a)Did Mr Pecipajkovski suffer a compensable injury in the course of his employment by Telstra on 17 April 1991, 11 February 1993 or as a result of the nature and conditions of that employment? And if so
(b)Did Telstra’s liability for that injury cease on 25 February 1999?
(c)Does Mr Pecipajkovski suffer from a permanent impairment in consequence of the compensable injury?
(d)Does that permanent impairment constitute a whole person impairment of 10 percent or more under the Guide to the Assessment of the Degree of Permanent Impairment (“the Comcare Guide”)?
summary findings
27. Mr Pecipajkovski suffers from long standing spondylitic changes and degenerative disc disease in his lumbar spine that were evident in radiological reports on 18 February 1993.
28. Mr Pecipajkovski suffered a musculo-skeletal lumbar sprain on 17 April 1991 and contusion of his lumbar spine and aggravation of degenerative disc disease in his lumbar spine on 11 February 1993 in the course of his employment by Telstra. Telstra accepted liability for those injuries which are compensable injuries under the Act.
29. Telstra’s liability in relation to Mr Pecipajkovski’s compensable injuries was not extinguished on 25 February 1999.
30. Mr Pecipajkovski has repeatedly exaggerated pain symptomatology and restrictions of movement on clinical examination. His exaggeration makes accurate assessment of the degree of permanent impairment difficult.
31. On the balance of probabilities Mr Pecipajkovski has a 5 percent impairment of his lumbar spine under Table 9.6 of the Approved Guide and a 0 percent impairment of his left lower limb. Those impairments were not materially contributed to by his compensable injuries or by his previous employment by Telstra.
32. Mr Pecipajkovski is not entitled to compensation for permanent impairment and non-economic loss. He does not suffer from a 10 percent whole person impairment in consequence of the injuries he suffered in the course of his employment by Telstra.
33. There is insufficient evidence to support Mr Pecipajkovski’s contention that he suffered a compensable injury as a result of the nature and conditions of his employment by Telstra over an extended period.
decision
34. Telstra’s liability in relation to Mr Pecipajkovski’s work injuries was not extinguished on 25 February 1999 and is ongoing. It follows that the reviewable decision in matter number N2002/1831 must be set aside.
35. Mr Pecipajkovski’s compensable injuries did not result in a whole person impairment of at least 10 percent under the Approved Guide. It follows that compensation for permanent impairment and non-economic loss is not payable and the reviewable decision in matter number N2003/1060 must be affirmed.
36. Mr Pecipajkovski does not suffer from a compensable injury that is the result of the nature and conditions of his employment by Telstra. It follows that the decision under review in matter number N2003/1763 is affirmed.
reasons for the decision
37. Making these decisions I have carefully considered all of the evidence before me, the submissions of the parties, the relevant caselaw and legislation.
credit
38. In Telstra’s submission Mr Pecipajkovski is an unreliable witness who has exaggerated his symptoms. There is abundant evidence in support of that submission, which I accept having had the benefit of observing Mr Pecipajkovski during the course of the hearing in this matter. I note reports of Mr Pecipajkovski feigning or exaggerating symptoms or restrictions of movement by Drs Edwards, Hughes, Crocker, Seaton, Terenty, Benanzio, Maxwell and Matheson. It follows that Mr Pecipajkovski’s uncorroborated evidence and medical reports that are based on his reports of symptoms and voluntary restrictions of movement must be treated with caution.
39. I do not accept Mr Pecipajkovski’s submission that his apparent exaggeration of symptoms is explained by a purported low threshold for pain.
injury and liability
40. Telstra accepted liability for Mr Pecipajkovski’s injuries on 17 April 1991 and 11 February 1993. There is nothing before me to indicate that the acceptance of liability in either case was in any way faulty in consideration of s.14 of the Act and the relevant factors discussed in Lees v Comcare (above). That being the case, following the authorities I have referred to above, Telstra’s liability in relation to those compensable injuries was not extinguished on 25 February 1999 and is ongoing. It follows that the reviewable decision in relation to the purported cessation of Telstra’s liability must be set aside.
41. Nonetheless, the existence of ongoing liability under s.14 of the Act should not be interpreted to mean that compensation was at that time or is currently payable under any other section of the Act. The question whether compensation was payable at the time of the purported decision to cease liability or is currently payable is a matter for determination on the merits in relation to a specific claim. In this matter there is a claim for payment of permanent impairment compensation. I will deal with that matter in due course. There is no claim for incapacity payments or medical treatment expenses before me.
42. I note in passing that on 23 February 1999 Telstra determined to pay Mr Pecipajkovski compensation for incapacity pursuant to s.19 of the Act for a closed period in 1998. The decision to “cease liability” did not, it appears, address any then current claim for payment of compensation under the Act.
43. A substantial proportion of the evidence before me goes to the question whether the effects of Mr Pecipajkovski’s injuries had ceased on or before 25 February 1999. Telstra determined that his compensable injuries had resolved at that time and purported to cease liability for those injuries “on and from” that date. In the circumstances the correct approach at that time was to pose the question: is the employee entitled to payment of compensation for incapacity, impairment or medical treatment expenses under the Act in relation to his compensable injuries? A negative answer would not extinguish liability in the employer for those compensable injuries but would mean that compensation in relation to those injuries was not payable at that time.
nature and conditions
44. I am satisfied on the balance of probabilities that Mr Pecipajkovski did not suffer a compensable injury as a result of the nature and conditions of his employment by Telstra over an extended period.
45. There is insufficient evidence before me to warrant a finding in support of Mr Pecipajkovski’s “nature and conditions” claim. The preponderance of the medical evidence is directed to his compensable injuries in 1991 and 1993, and allegedly related symptomatology or impairment. It is not sufficient to say because Mr Pecipajkovski’s employment involved heavy lifting and bending over an extended period his current lumbar spine condition is the result of that employment. For compensation to be payable under the Act there must be an injury. In his “nature and conditions” claim, Mr Pecipajkovski described his injury to be “permanent impairment of the back” and “permanent impairment of the left leg”. The primary determination, which was affirmed on reconsideration, was that Mr Pecipajkovski did not suffer an injury to his back and left leg pursuant to s.4, 7 and 14 of the Act and there is no liability for Telstra to pay compensation pursuant to s 16, 19, 24 or 27 of the Act.
46. I am satisfied that Mr Pecipajkovski did not suffer an injury to his back or left leg as a result of the nature and conditions of his employment. The evidence is that he suffers from degenerative disc disease in his lumbar spine and that he has exaggerated his symptomatology for reasons best known to himself. It is a fact that he has two compensable injuries for which Telstra is liable and it is in relation to those injuries that the preponderance of the medical evidence is directed.
47. Drs Sargent and Franklin, Radiologists, provided radiological reports dated 15 and 18 February 1993 respectively. Those reports indicate spinal pathology. Dr Franklin reported “L4/5 and L5/S1 disc prolapse. There are spondolytic changes involving the vertebral body margins and facet joints” with some encroachment on the dural sac and nerve roots at both levels. Dr Franklin reported that the L5/S1 disc prolapse was “perhaps maximal to the right” and noted “degenerative change at the facet joints, particularly on the left side”. On 13 October 1999 Dr Roberts reported on X-ray and MRI imaging of Mr Pecipajkovski’s lumbrosacral spine, noting:
“At L4/5 there is sclerosis in the end plates. There is a small posterolateral protrusion at this level. This is abutting the left L5 nerve root but not compressing it.
At L5/S1 there is a tiny posterior mid-line protrusion of the disc which is not producing nerve root entrapment. The lateral recesses are narrowed at L4/5 due mainly to hypertrophic facet joint changes and a little bulging of the disc.
There is a tiny posterior L2/3 disc protrusion.
No other disc protrusion or nerve root entrapment is seen.
There are also hypertrophic facet joint changes at L5/S1.”
48. Accepting that radiological evidence, I am satisfied that Mr Pecipajkovski’s spinal pathology is indicative of degenerative processes. As will appear, I am not persuaded that his spinal pathology is the result of the injuries he suffered on 17 April 1991 or 11 February 1993 or the result of the nature and conditions of his employment by Telstra. In submissions for Mr Pecipajkovski, it was contended that the incidents in 1991 and 1993 “caused the prolapse which caused the symptoms which have persisted”.
49. Dr Edwards, Surgeon, examined Mr Pecipajkovski on 26 February 1993 and considered the CT scan report of Dr Franklin. Dr Edwards reported:
“This man complains of low back pain. He has radiological evidence of longstanding degenerative changes in his lumbar spine, and a CT scan shows evidence of degenerative disc disease with bulging discs at L4/5 and L5/S1.
These findings are of constitutional origin, and I do not believe the disc prolapses described by the radiologist are the result of the fall on 11/2/93.
He may have sustained some soft tissue injury at that time, or perhaps a temporary aggravation of underlying degenerative changes.
The original injury seems to have been of a minor nature, and I think it is reasonable to assume any aggravation which may have been caused to the underlying degenerative changes has ceased.
However, his disability depends on his statements. There is evidence of exaggeration or fabrication, as indicated by:
a)the non-organic distribution of sensory loss affecting the left half of his body;
b)his ability to sit erect on the couch with his legs extended without complaining of pain despite the limitation of straight leg raising and forward flexion.”
Dr Hughes, Consultant Orthopaedic Surgeon, examined Mr Pecipajkovski on 1 March 1993 and also considered the CT scan report by Dr Franklin. Dr Hughes reported:
“His CT scan films have been reported on as suggesting a disc protrusion but there is no clinical evidence of any disc protrusion and in my opinion the films show only degenerate bulging of the disc. He may have contused his back in the fall two weeks ago but I believe any low back pain he is experiencing now is due to degenerative disc disease in the lumbar spine…”
50. Dr Teychenne, Neurologist, reported on 19 March 1993:
“The motor conduction velocities were normal but he did have a reduction in both the right and left posterior tibial nerve sensory action potentials. This could indicate some compression of the posterior nerve root ganglion as a result of the lumbar disc prolapse.”
Dr Teychenne examined Mr Pecipajkovski again on 15 June 1993 and reported restrictions on movement due to reported pain and “a subjective decrease to pain sensation within the L5/S1 nerve root distribution”. Dr Teychenne reported that his findings on examination “are consistent with a lower lumbar disc prolapse causing a bilateral lumbrosacral radiculopathy, most marked on the left side.” These findings on examination must be treated with caution to the extent that they are based on the subjective report of symptoms by Mr Pecipajkovski. I am not persuaded that Dr Teychenne’s observation of a reduction in nerve sensory action potentials in nerve conduction studies that were otherwise unexceptional is indicative of a lower lumbar disc prolapse causing bilateral radiculopathy. I note Dr Terenty’s observation at T43 folio 87:
“The absence of a tibial sensory nerve action potential is not considered evidence of proximal pathology in all conventional publications on this subject.”
51. Dr Benanzio, Surgeon, reported on 18 March 1993:
“[Mr Pecipajkovski’s] present complaints are supported by the radiological findings. It is a case of aggravation of a pre-existent degenerative pathology.
It is impossible to measure the amount of discomfort that patient experiences but, on account of the radiological evidence, I accept a possibly significant degree of complaints.
I agree that TELECOM must deny liability on certain opinions which I would not discuss at the present. It may be very distressing for this man.”
52. Dr Crocker, Consultant Occupational Physician, examined Mr Pecipajkovski on 23 March 1993 and reported:
“Mr Pecipajkovski appears to be suffering from ongoing symptoms referrable to the low back.
It is evident that his treating doctors are continuing to manage him in a conservative manner.
Some aspects of his presentation suggest that some emotional factors are present with these having some bearing on his clinical presentation.”
After a subsequent examination Dr Crocker reported on 12 May 1993:
“Mr Pecipajkovski continues to state that he is experiencing significant discomfort with respect to his back with radiation to his left lower limb. His general manner appears to be quite negative with apparent mildly hostile feelings to be held towards his employer. Physical examination appeared to be coloured by apparent exaggerated responses.
Despite these complex features, it was my overall impression that he was experiencing less discomfort, with improvement with function.”
On 23 August 1993 Dr Crocker reported:
“Mr Pecipajkovski continues to exhibit a pattern of abnormal pain behaviour. This is particularly evident with apparent exaggerated responses with simple testing. This picture is superimposed on a background of lumbar degenerative changes.
He has appeared to cooperate poorly with the work hardening programme as devised. Little enthusiasm has been shown with respect to the home exercise programme and advice concerning weight reduction.”
53. On 1 December 1993 Dr D Seaton, Orthopaedic Surgeon, reported:
“In my opinion this man has aggravated degenerative changes in his thoracic and lumbar spine due to the nature and extent of his duties over a long period of time as a Lineman at Telecom and these degenerative conditions were aggravated on two occasions (on the 17th of April 1991 and on the 11th of February 1993) due to accidents at work. He has…not recovered from the aggravation of his degenerative changes.”
54. Considering these contemporaneous reports I accept that the injuries in 1991 and 1993 caused a temporary aggravation of his pre-existing degenerative lumbar spine pathology. I also find that Mr Pecipajkovski exaggerated his symptoms in medical examinations from February 1993.
55. I do not accept Dr Seaton’s opinion that the nature and conditions of his employment aggravated the degenerative changes in his lumbar spine. Dr Seaton notes inconsistencies in the history he obtained from Mr Pecipajkovski with the history obtained by others. I note that Dr Seaton does not record detailed information about the nature and conditions of Mr Pecipajkovski’s employment by Telstra. It is not clear to me on what evidence Dr Seaton based his opinion. The preponderance of the contemporaneous evidence is that Mr Pecipajkovski suffered from degenerative changes in his lumbar spine and injured his lumbar spine in two incidents, the second of which, at least, caused some aggravation of the pre-existing degenerative condition. Dr Seaton was alone, at that time, in suggesting that those degenerative changes were aggravated by the nature and conditions of his employment. Even if Dr Seaton was right in his opinion he does not provide any explanation of the mechanism by which such aggravation could have occurred or the extent of any related symptomatology. On his evidence I am not persuaded to conclude the nature and conditions of Mr Pecipajkovski’s employment were the cause of any injury to his lumbar spine or left leg.
56. The preponderance of the medical evidence is that Mr Pecipajkovski’s lumbar spine and alleged left leg symptoms were the product of degenerative disease and the temporary aggravation of that disease by the accidents that occurred in 1991 and 1993. I so find. Dr Hughes reported on 24 December 1998 that “[a]ny aggravation of the pre-existing degenerative condition was temporary and it would be reasonable to consider that the effects had ceased within several weeks”. Dr Benanzio reported on 12 May 1999 “I am of the opinion that the patient’s present conditions are still related to the accident of 17 April 1991 and were aggravated by a further accident of 11 February 1993”. I note that Dr Benanzio also pointed out that “the pattern of impaired sensibility on the left side of the body does not correspond to anatomical dermatones and rather suggests a non-orthopaedic complication”.
57. I prefer the opinion of Dr Hughes and agree with his conclusion that “[a]ny back pain which [Mr Pecipajkovski] is experiencing is…due to degenerative disc disease in his lumbar spine and not any injury or his previous work”. On that basis, applying the civil standard of proof, I find that Mr Pecipajkovski’s symptoms in December 1998 were attributable to his pre-existing degenerative spinal pathology.
58. I do not accept Mr Pecipajkovski’s submission that prior to his injuries in 1991 and 1993 his lumbar spine was asymptomatic. The only material to support that contention is the oral evidence of Mr Pecipajkovski or medical reports that are based on histories he gave. I note that no evidence was adduced from doctors treating Mr Pecipajkovski prior to 1993 and that Dr Sheps, general practitioner, observed “I understand that the G.P. who was actually involved in treating his initial injury has withdrawn his services from the patient”. It is possible that Mr Pecipajkovski did not suffer any symptoms in his lumbar spine prior to 1991, but that appears unlikely on the basis of his own account of having experienced back pain in or about 1981 and at other times prior to 1991 but “could manage it”.
59. I am satisfied that it is more likely than not that Mr Pecipajkovski did experience symptoms of his degenerative disc disease in his lumbar spine prior to 1991. It is possible that his duties in employment, from time to time, caused minor variations in those symptoms, but not to the extent that Mr Pecipajkovski was prevented from continuing with his duties or that he was stimulated to seek any medical treatment. Under the disease provisions of the Act an injury constituting an aggravation of a disease is sustained only on the day when the employee seeks medical treatment for the aggravation or it results in incapacity or impairment, which ever occurs first.
60. The evidence is that it was not until 17 April 1991 that Mr Pecipajkovski sought medical treatment in relation to his lumbar spine following an incident on that day. The resultant injury was accepted as compensable and soon thereafter he returned to his full duties. Similarly on 11 February 1993 there was an incident that caused a compensable injury in relation to which Mr Pecipajkovski sought and obtained medical treatment. Those dates are the dates on which his compensable injuries occurred. Considering that history I am satisfied that that the nature and conditions of Mr Pecipajkovski’s employment was not productive of any injury. I note, but do not accept, Mr Pecipajkovski’s submissions concerning the light duties he was required to perform in his employment by Telstra following his injury in February 1993. I am not persuaded, on the balance of probabilities, that those duties were outside recommended medical restrictions or materially contributed to cause any injury of his lumbar spine or left leg or to aggravate his pre-existing degenerative lumbar spine condition.
61. I am compelled to conclude that there is insufficient evidence before me to support Mr Pecipajkovski’s claim that he suffered injury as a result of the nature and conditions of his employment by Telstra. It follows that the reviewable decision in relation to that claim must be affirmed.
62. Careful consideration of the recent reports by Drs Maxwell, Endrey-Walder and Matheson, does not lead me to conclude differently. Dr Maxwell, Orthopaedic Surgeon, confirms the existence of degenerative changes at the L5/S1 level but does “not consider there is any relevant pre-existing or non-related medical history” and concludes that Mr Pecipajkovski does not continue to suffer the effects of either compensable injury. Dr Endrey-Walder, Orthopaedic Surgeon, observed that Mr Pecipajkovski “had sustained a number of specific injuries to his back, and has no doubt been substantially affected by the nature and conditions of his daily work over a 25 year employment with Telstra”. In response to questions concerning the ongoing effects of Mr Pecipajkovski’s injuries on 25 February 1999 Dr Matheson concluded:
“I risk adding speculation to speculation in trying to answer this question and it becomes difficult to be certain as to what I am talking about. What is certain is that Mr Pecipajkovski has got chronic lumbar stenosis with some early stenosis at L4/5 and that there is also some exaggeration of his symptomatology. It was my view that this was a constitutional condition but that I felt there were some events which may have aggravated it; these events being on the 17th April 1991 and the 11th February 1993… By this I am implying that a small component of his continuing problems could be reasonably related to work. I express this as being half of his disability which is perhaps erring in Mr Pecipajkovski’s favour.
63. I am not persuaded by Dr Endrey-Walder’s absence of doubt when the preponderance of the medical evidence is imbued with doubt, or in Dr Matheson’s words “speculation”.
permanent impairment
64. I am satisfied on the balance of probabilities that Mr Pecipajkovski does not suffer from a whole person impairment of at least 10 percent under the Approved Guide in consequence of his compensable injuries.
65. Mr Pecipajkovski is claiming compensation for permanent impairments of his lumbar spine and left lower limb. There is general agreement that the relevant Tables under the Approved Guide are Table 9.6 concerning the lumbar spine and Table 9.5 concerning the lower limb. It is to those Tables I now turn.
66. I note in passing that assessment of whole person impairment is to be assessed under the Approved Guide. It appears that Drs Seaton and Terenty made an assessment of impairment without reference to the Approved Guide. Those assessments have little weight for present purposes. There are assessments by Dr Benanzio and Dr Endrey-Walder under the Approved Guide as well as earlier assessments that were not made by reference to the Approved Guide.
67. Considering the assessments of impairment in reports by Drs Benanzio, Matheson, Endrey-Walder and Dr Maxwell, I am satisfied on the balance of probabilities that Mr Pecipajkovski suffers from minor restrictions on movement in his lumbar spine, warranting a 5 percent rating under Table 9.6.
68. I find there is no compelling objective evidence to support the assessments of Dr Benanzio and Dr Endrey-Walder that Mr Pecipajkovski had a loss of more than half the normal range of movement in his lumbar spine thereby warranting a 20 percent rating under Table 9.6. Dr Endrey-Walder first reported a 25 percent impairment of the back on 22 May 2002 without reference to the Approved Guide. I note in passing that Table 9.6 does not provide a rating of 25%. Subsequently on 30 June 2003 Dr Endrey-Walder reported a 20 percent rating under Table 9.6 of the Approved Guide. However, it appears that that assessment was made without any further examination of Mr Pecipajkovski. Dr Benanzio’s assessment of 20 percent under Table 9.6 was made on 27 October 1993, eight months after the second compensable injury. While it is possible that any impairment arising from that injury or the injury in 1991 could have become permanent within that eight month period it is unlikely. At that time Mr Pecipajkovski was still undergoing treatments and rehabilitation in relation to his compensable injury and improvement was noted by Dr Crocker in May 1993.
69. Dr Maxwell concluded that Mr Pecipajkovski suffered a 0 percent rating under Table 9.6. I do not accept Dr Maxwell’s assessment. While accurate assessment of any true restriction of movement in Mr Pecipajkovski’s lumbar spine is made extremely difficult in consequence of his exaggerations, I accept that in all likelihood he does suffer some minor restriction of movement that is greater than “X-ray changes only” at the 0 percent threshold.
70. On 29 May 2003 Dr Matheson reported a 10 percent “whole body impairment in relation to his back condition” with only half of that “disability” being due to employment. In a subsequent report dated 1 July 2003 Dr Matheson reported “I express [the work contribution] as being half of his disability which is perhaps erring in Mr Pecipajkovski’s favour”. I have already noted Dr Matheson’s difficulty differentiating between true symptomatology and exaggeration. There is radiological evidence of pathology that could cause significant symptomatology. However that evidence must be considered in relation to the finding of Dr Jones, Commonwealth Medical Officer on 22 November 1994 of “almost normal lumbar-thoracic range of spinal motion on examination”. It is possible that Dr Matheson’s assessment of a 10 percent permanent impairment of Mr Pecipajkovski’s lumbar spine is correct on the basis of a loss of less than half the normal range of movement. It is clear, however, that Dr Matheson attributes half of that impairment, or less, to the injuries Mr Pecipajkovski suffered in the course of his employment. Dr Matheson’s attribution of at least half of Mr Pecipajkovski’s impairment of his lumbar spine to constitutional or degenerative factors is supported by the assessment of Dr Terenty, even though her assessment was made without reference to the Approved Guide.
71. What is required when assessing the loss of range of movement under the Approved Guide is an objective measure. Voluntary restriction of movement on examination is infected with subjectivity and must be treated with caution, especially in cases such as this when there are issues of credit at play. The meaning of “range of movement” as it is used in the Approved Guide is that of a medical term used by medical practitioners in relation to the operation of the musculo-skeletal system (see Comcare v Amorebieta (1996) 66 FCR 83 at paragraph 13). The medical assessments of range of movement must be considered against the background pattern of exaggeration in this case. Less weight is given to assessments that are based on Mr Pecipajkovski’s voluntary restrictions of movement and claims of pain symptomatology on examination.
72. Considering all of the evidence, it is possible Mr Pecipajkovski suffers less that half the normal range of movement in his lumbar spine (10 percent impairment under Table 9.6) but I am persuaded to conclude that it is more probable he suffers minor restrictions of movement in his lumbar spine and warrants a permanent impairment assessment of 5 percent under Table 9.6.
73. Turning to consider Mr Pecipajkovski’s claims in relation to his left lower limb pursuant to Table 9.5, I note that there does not appear to be any objective evidence of clinical testing of his impairments in relation to “difficulty with grades, steps and distances”. I am satisfied on the balance of probabilities that Mr Pecipajkovski does not suffer a permanent impairment of his left lower limb that warrants a rating of 10 percent or more under Table 9.5.
74. Dr Benanzio based his assessment of 20 percent under Table 9.5 on the basis that “the patient may experience difficulty with grades, steps and walking distances”. I cannot accept such an assessment on the basis of what a person “may” experience. Dr Endrey-Walder made an assessment of “12.5% permanent loss of the efficient use of the left leg at or above the knee”. That assessment was not made under the Approved Guide. In 1994 Dr Jones reported that Mr Pecipajkovski “walks 30 minutes daily and reports no problems with motor vehicle driving, or with negotiating steps”. Dr Seaton gave an assessment of 5 percent without reference to the Approved Guide. Dr Maxwell assessed a 0 percent impairment under Table 9.1 which concerns the upper extremity and does not refer to the lower limbs.
75. It follows, in effect, that Mr Pecipajkovski has a whole person impairment of 5 percent and I so find. That being the case, he is not entitled to payment of compensation for permanent impairment pursuant to s.24 of the Act or for non-economic loss pursuant to s.27 of the Act.
76. I pause to observe that had I found differently and concluded that Mr Pecipajkovski suffered a 10 percent whole person impairment, thereby satisfying the threshold set out at s.24(7) of the Act, it would then have been necessary for me to consider whether all or part of that impairment was the product of injury that was compensable under the Act.
77. Mr Pecipajkovski relied on the case of Martin v Australian Postal Corporation (1999) 29 AAR 420, contending that because Mr Pecipajkovski’s degenerative lumbar spine condition was asymptomatic prior to injury in 1991 and 1993 the totality of his current degree of impairment is compensable. In Telstra’s submission, if work related impairment is found then that would comprise only 50 percent of the total degree of impairment on the evidence of Dr Matheson (see Re Williams and Australian Postal Corporation (1998) AATA 12695).
78. There is no evidence before me that Mr Pecipajkovski suffered any amount of permanent impairment in his lumbar spine prior to the injuries he suffered in the course of his employment. Following Comcare v Amorebieta (above) and Martin v Comcare (above), what is required is evidence that the work related aggravation of the pre-existing disease materially contributed to cause permanent impairment. The case of Re Williams and Australian Postal Corporation (above) is distinguished by the existence in that case of evidence of impairment preceding injury. There is no such evidence in this case. The evidence in this case is of impairment subsequent to injury where opinions differ about the cause and degree of the impairment. There is no basis on which to differentiate the degree of impairment existing prior to his injury in 1991 or 1993, if any, from any assessment of the degree of impairment thereafter. It follows that if Mr Pecipajkovski’s compensable injuries are found to have made a material contribution to his degree of impairment then the full extent of that impairment is compensable.
79. However, I am not persuaded on the evidence before me, on the balance of probabilities, that the impairment Mr Pecipajkovski suffers in his lumbar spine was materially contributed to by his compensable injuries. I have found that it was more likely than not that Mr Pecipajkovski’s degenerative disc disease was symptomatic in some measure prior to the injuries he sustained at work in 1991 and 1993, but was not productive of incapacity or impairment at that time. I have found that his compensable injuries caused temporary aggravation of his underlying disease. Being mindful of the maxim that aggravation may be “the catalyst which precipitates disability in a medium of disease” (Salisbury v Australian Iron and Steel Ltd (1943) 44 SR(NSW) 157), it is necessary to carefully consider the medical evidence that is contemporaneous with the compensable injuries. I am satisfied that the preponderance of that evidence points to the temporary aggravation of pre-existing disease. It would follow that Mr Pecipajkovski would not be entitled to compensation for permanent impairment even if I had found he suffered a 10 percent impairment, simply because I am satisfied that his compensable injuries did not materially contribute to cause that impairment.
conclusion
80. In conclusion, Mr Pecipajkovski suffered compensable injuries on 17 April 1991 and 11 February 1993 at which time he was suffering from degenerative disc disease in his lumbar spine. It is more probable than not that the degenerative process in his lumbar spine was temporarily aggravated by his compensable injuries for a period of weeks or months and that that degenerative process continued according to its natural progression to cause increasing pathology with the passage of time.
81. Nonetheless, Telstra’s accepted liability for Mr Pecipajkovski’s injuries is not extinguished.
82. The temporary aggravations of Mr Pecipajkovski’s pre-existing degenerative condition were not materially productive of any permanent impairment of his lumbar spine or left leg. Any such impairment is the product of his degenerative condition. Considering all the evidence and applying the Approved Guide, I am persuaded to conclude that Mr Pecipajkovski suffers a 5 percent whole person impairment and is not, therefore, entitled to payment of compensation for permanent impairment. Even if I was wrong in the assessment of whole person impairment, Mr Pecipajkovski would still not be entitled to permanent impairment compensation because his impairment is not the product in any measure of his work-related injuries.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: Guy Moloney .....................................................................................
Associate
Date/s of Hearing 8 June 2004
Date of Decision 28 July 2004
Counsel for the Applicant Mr S Dixon
Solicitor for the Applicant Nicholas Karefylakis
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ms L Figurka
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