Proctor and Telstra Corporation - [2002] AATA 441

DECISION AND REASONS FOR DECISION [2002] AATA 441

ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/948
)

) No N2000/996
)

GENERAL ADMINISTRATIVE DIVISION       )          No N2000/663
           Re      ALAN JOHN PROCTOR
  Applicant
           And    TELSTRA CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date11 June 2002
PlaceSydney

Decision      In relation to applications N2000/663 and N2000/996 the tribunal sets aside the decisions under review and decides that the respondent was liable to pay appropriate compensation to the applicant at all times from 16 January 1997 to the present and continuing. In relation to application N1999/948 the tribunal sets aside the decision under review and decides that the applicant qualifies for a 10% whole person permanent impairment payment in accordance with table 9.5 of the Comcare guide. The matters are remitted for the respondent to assess any compensation owing in respect of the applicant's medical expenses, incapacity payments and permanent impairment payment. The respondent is liable to pay the applicant's costs in all three applications.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – aggravation of disease as injury – lumbar spondylolisthesis – ligamentous injury to lumbar spine - qualification for weekly incapacity payments – qualification for medical expenses – whole person permanent impairment lumbar spine and lower limb

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)("ailment", "disease", "impairment", "injury", "permanent"), (9), 14(1), 16(1), 19(1), (2), (4)(c), 24(1), (2), (3), (4), (5), (6), (7), 27(1), 28(1), (3), (4), (5), (7), (9), (10), 37(1), (5).

Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Comcare v Amorebieta (1996) 66 FCR 83
Re Gibson and Commonwealth (1985) 7 ALD 558
Re Prica and Comcare (1996) 44 ALD 46
Pulitano v Telstra Corporation (1998) 50 ALD 1015
Tippett v Australian Postal Corporation (1997) 27 AAR 40
Re West and Comcare (AAT 9320, 23 February 1994)

REASONS FOR DECISION

11 June 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

HISTORY OF APPLICATIONS
n2000/663 – incapacity payments and medical expenses

On 30 January 1997 Alan John Proctor ("the applicant") filed an incident report with Telstra Corporation ("the respondent") (ex TD1/T3). He said that on 16 January 1997 at 1.50 pm he was trying to pull a cable through a duct when he felt a sharp pain in his lower back. He said he had "back strain". Mr N Beard was named as a witness.
On 22 January 1997 Mr Proctor had filed a workers compensation claim with Telstra (ex TD1/T4). This covered similar territory to the incident report but noted that he had treatment on 17 January 1997. He had been sent for x-rays. He had had no similar previous injury. He had not returned to work.
On 30 January 1997 a compensation delegate within Telstra determined (ex TD1/T8) that Telstra was liable to compensate Mr Proctor for "lower back strain" and incapacity payments were awarded for 17 to 24 January 1997. Subsequent decisions authorising incapacity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Proctor and Telstra Corporation

Details

AGLC: Proctor and Telstra Corporation [2002] AATA 441
Case: [2002] AATA 441
Decision Date: 11 June 2002

CaseChat Overview and Summary

The case of Proctor v Telstra Corporation involved the applicant, Mr. Proctor, who sought compensation for injuries sustained during his employment as a linesperson. Mr. Proctor alleged that he had aggravated a pre-existing lumbar condition and sustained a ligamentous injury to his lumbar spine due to work-related activities. He sought regular incapacity payments, compensation for medical expenses, and a lump sum for permanent impairment. The dispute was adjudicated by the Administrative Appeals Tribunal (AAT). The primary legal issues the court had to address were whether Mr. Proctor's lumbar condition qualified as an 'injury' under the Safety, Rehabilitation and Compensation Act 1988 and whether this injury continued to affect him, thus warranting compensation. Specifically, the court had to determine if the aggravation of a pre-existing condition and the alleged ligamentous injury constituted compensable events.

The AAT examined the medical evidence and testimonies to ascertain whether Mr. Proctor's condition met the statutory definitions of 'injury' and 'impairment'. Dr. Blair's reports and imaging studies suggested a pre-existing spondylolisthesis and minor degenerative changes, while Dr. Chan opined that the January 1997 injuries had healed and that any ongoing symptoms were due to a degenerative disorder. The tribunal considered the statutory definitions and previous case law to decide if the aggravation of a pre-existing condition and the alleged ligamentous injury constituted a compensable event. Ultimately, the AAT found that Mr. Proctor's condition did not qualify as a continuing injury under the Act. The tribunal held that any ongoing effects were due to a degenerative disorder rather than a work-related injury, and thus, Mr. Proctor was not entitled to the compensation he sought. The tribunal's decision was grounded in the statutory definitions and the medical evidence presented, which did not support a finding of a compensable injury that continued to affect Mr. Proctor.

In conclusion, the tribunal dismissed Mr. Proctor's application for compensation. The AAT found that the aggravation of the pre-existing condition and the alleged ligamentous injury did not meet the criteria for ongoing compensable injury under the Act. Consequently, Mr. Proctor was not entitled to regular incapacity payments, compensation for medical expenses, or a lump sum for permanent impairment. The decision underscores the importance of clear medical evidence and statutory interpretation in determining the eligibility for workers' compensation in cases involving pre-existing conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant is seeking a range of compensation. He wishes to be paid regular incapacity payments, compensation for his relevant medical expenses and a lump sum in respect of a permanent impairment of the lumbar spine. If the applicant is to succeed in these claims the tribunal must be satisfied that the applicant sustained an injury as defined in the Act and that it continues to affect him.medical evidenceGeneral practitioners Dr Blair, the applicant's general practitioner, provided numerous medical certificates and several full reports. The thrust of the certificates was: The CT of the lumbosacral spine dated 17 February 1997 (ex TD1/T12) found a minor L5 on S1 spondylolisthesis with a right pars defect. There was a slight L5-S1 disc bulge and a posterior lateral disc bulge at L4-5. An x-ray of the lumbosacral spine on 27 August 1998 (ex TD1/T109) found a bilateral pars defect with minimal spondylolisthesis and a minimal L5/S1 disc bulge. There had been no evidence of significant change or deterioration since the last examination. An x-ray of the lumbar spine dated 11 March 2000 (ex A4) found sclerosis at the pars interarticularis regions of L5 in keeping with the known defect. Osteoarthritis changes at L4-5 and L5-S1 facets were suspected. A MRI of the lumbar spine was carried out. The report found disc degeneration and small focal disc protrusions/annular tears at the L4-5 and L5-S1 levels. There were bilateral L5 pars interarticularis defects with marked sclerosis at the left side. "This in combination with disc changes cause[d] some minor effacement of the left L5 nerve root in the exit foramen although some fat still surrounding the nerve root [was] present. No other evidence of neural compression [was] identified".Dr A Chan (reporting for the respondent) On 16 March 1998 (ex TD1/T74) Dr Chan, an orthopaedic surgeon, diagnosed spondylolisthesis due to a pars defect on the right side with slight bulging in two lower lumbar discs. Mr Proctor was not fit to return to work as a linesperson. Lifting and bending were to be restricted to prevent further deterioration. Full-time office duties and supervision work were approved. He had to avoid lifting over 10 kg and working in a bending position for long periods. On 23 November 1998 he diagnosed degenerative osteoarthritis in Mr Proctor's back (ex TD1/T115). The January 1997 accident had temporarily aggravated the pre-existing condition. The aggravation had ceased when he returned to full duty work in 1997. He said there had been no real accident on 3 December 1997 (despite liability having been accepted for such). "The patient said [this]. The symptoms he felt were manifestations of an underlying degenerative disorder, namely, the ligaments in that area have been stretched after years and years of having to maintain an upright posture" (page 221). There was no permanent impairment caused by the 1997 accident. The January 1997 injuries had healed. He had a 10% impairment under table 9.6 of the Comcare guide (Guide to the Assessment of the Degree of Permanent Impairment ( but it was not attributable to work.

Decision

Reasons for decision

On 4 December 1997 the applicant sought reconsideration of the decision to cease liability (ex TD1/T58). He wrote that after his return to work on full duties problems arose from 25 September 1997 and his symptoms had recurred.Reviewable Decision On 26 February 1998 a respondent's delegate issued a reviewable decision (ex TD1/T69, T70) affirming the primary decision in paragraph 5 above. In the reasons for the reviewable decision the delegate said in paragraphs 5 to 8:"The subject of this review is to determine whether Telstra Corporation continues to be liable to pay compensation to the claimant in respect of the injuries sustained in accordance with the provisions of the SRC Act."I have noted the comments of the rehabilitation case manager indicating that the claimant had been assessed fit to return to pre-injury duties from 8 September 1997 by his treating doctor, Dr Blair, which has been discussed in the reasons accompanying the determination in dispute."I also note the claimant was afforded the opportunity to provide further specialist medical evidence to support any claim for ongoing effects associated with this claim, however no such medical evidence was provided to the primary delegate nor has the claimant provided any further medical evidence in support of this request for reconsideration."I have carefully considered all the material facts of this case and have particularly noted the claimant's lengthy submission. I am satisfied, on balance that the claimant no longer suffered effects of the injury sustained on 16 January 1997 and was found to be fit to return to his normal duties from 8 September 1997. I note that the claimant indicates in his submission that around 3 December 1997 he had aggravated his condition. I consider this to indicate that there may have been a new injury sustained around that time, for which the claimant has now submitted a further claim for compensation. I do not intend to discuss the claim further in this review." On 2 May 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision in paragraph 7 above. This application was submitted after the period of 60 days allowed for applications to the tribunal under s 65(4) of the Act. On 14 June 2000 the tribunal decided to extend the time for the lodging of the application for review to 2 May 2000.n1999/948 – permanent impairment On 14 January 1998 the applicant filed an incident report (ex TD1/T63) stating that there had been an aggravation of the original compensable injury that occurred on 16 January 1997 (see paragraph 1 above). The continual lifting of a ladder on and off the applicant's work truck, together with his having to do some work in a crawl position had brought on constant pain. He had sought medical help on 3 December 1997. In the claim (ex TD1/T64) filed on the same day he described constant pain in his lower back and buttocks because of the continual lifting of ladders and his crawling in ceilings and under houses. He wrote that he had had a similar injury previously. Formally he claimed for "disc lesion, spondylolisthesis".

Ratio Decidendi

Legal Principle Established

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