Rodney and Telstra Corporation Ltd
[2002] AATA 363
•17 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 363
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q2000/862
GENERAL ADMINISTRATIVE DIVISION ) Q2000/1196
Re PETER JOHN RODNEY
Applicant
And TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr D W Muller, Senior Member
Date17 May 2002
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
..............................................
D W MULLER
SENIOR MEMBER
CATCHWORDS
COMPENSATION - no objective evidence of certain orthopaedic injuries - less than 10% permanent impairment– no current psychiatric illness – failure to gain promotion
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 24(7), 62(5)
REASONS FOR DECISION
17 May 2002 Mr D W Muller, Senior Member
The Applicant, Peter John Rodney, seeks review of two decisions which have rejected his claims for compensation.
Q2000/862: On 7 September 2000, a Senior Claims Officer made the following "reviewable decisions" in accordance with the provisions of section 62(5) of the Safety, Rehabilitation and Compensation Act 1988 (the Act):
1. The determination of 25 May 2000 is affirmed; that is liability is no longer considered to exist in respect of an aggravation to a pre-existing neck and shoulder strain, sustained on 6 January 1999, and a right knee condition sustained on 19 February 1994.
2. The determination of 22 August 2000 is affirmed; that is liability is not considered to exist in respect of a lump sum permanent impairment for the thoracic and lumbar spine and a right knee condition, claimed on 25 May 2000.
Q2000/1196: On 14 December 2000, the same Senior Claims Officer made a "reviewble decision" in accordance with section 62(5) of the Act in the following terms:
"I refer to Mr Rodney's claim for compensation under the above Act in respect of adjustment disorder/mood disorder and the request for a reconsideration of a determination 24 July 2000.
The matter has been considered in accordance with the Safety, Rehabilitation and Compensation Act 1988. Taking into account all available medical and other evidence, I have affirmed the decision, pursuant to Section 62(5) of the Act, finding that Telstra Corporation Limited is not liable to pay compensation, in respect of this condition."
Background:
(i)Peter John Rodney was born on 8 December 1946.
(ii)Mr Rodney joined the PMG as a linesman in 1974. He later became a cable joiner.
(iii)In early 1975, Mr Rodney and his wife bought a house at Wooloowin. The house was described as an "old Queenslander". The house needed extensive renovations which Mr Rodney worked at over the following five years.
(iv)On 4 August 1975, Mr Rodney suffered from a "disc prolapse" whilst working for the PMG. He was using a heavy jackhammner in a trench. He was seen by a Dr Skinner on 5 August 1975 and again on 16 September 1975. Mr Rodney initially took no time off work but he then took a fortnight off in October 1975, which eventually extended to six months off work until March 1976. Mr Rodney denied in cross-examination that he did any renovations on his house during the six months he was off work.
(v)Mr Rodney's compensation claim in relation to the jackhammer incident of 4 August 1975, was accepted by the PMG.
(vi)On 25 October 1979, Mr Rodney strained the muscles in his back and neck when he was lowering an extension ladder down from the top of a pole. He had approximately six weeks off work. His claim for compensation for this injury was accepted by Telecom.
(vii)In subsequent years, Mr Rodney experienced various strains to his shoulders, neck and back muscles due to the nature of his work with Telecom. He had to lift manhole and pit lids, repair cables in cramped positions, replace pits, use a crowbar and shovel and drive long distances.
(viii)Mr Rodney had two days off work in September 1984 with "left shoulder pain". He was seen by an orthopaedic surgeon, Dr Ryan, who reported:
"Mr Rodney was seen by me on one occasion on 14th September 1984. He said that he had had three years of shoulder troubles. He said this problem was intermittent and started when he caught a ladder and hyperflexed his shoulder.
When I saw him, the pain was in the left shoulder posteriorly with radiation into the neck and the low back. He said he had pins and needles in the little and ring fingers.
Examination at that time revealed a full range of shoulder movement with no tenderness. There was a full range of cervical spine movement with no tenderness and no muscle spasm. There was slight tenderness in the upper border of the left scapular. I could detect no neurological deficit in the upper limbs.
I thought his symptoms were due to soft tissue strain and reassured him concerning this, and recommended maximum activity and exercises.
I do think the symptoms are related to the injury in 1979."
(ix)In 1985, Mr Rodney moved to Bundaberg.
(x)In October 1989, Mr Rodney strained the muscles of his upper back and neck while removing a manhole lid. He was treated at the Bundaberg Physiotherapy Centre.
(xi)On 9 February 1990, Mr Rodney complained to his supervisor that after two days of working with a shovel and crowbar, he was suffering pain in his upper and lower back. He was diagnosed as having "musculo lig strain upper back + cervical nerve root irritation" and given three weeks off work. A contemporaneous report by Dr Donley reported:
"Examination revealed a tender cervical spine in the region of C7 and T4 with associated muscle spasm of the para vertebral area. There was good range of movement of the neck. There were no neurological signs, although he did claim later some weakness and paraesthesiae in the left arm.
X'rays of cervical and thoracic spine revealed no abnormality apart from minimal spondylosis."
Mr Rodney's claim for compensation was accepted by Telecom.
(xii)On 5 May 1991, Mr Rodney complained of pain in his back after he had been lifting cylinders and manhole lids. He was seen by Dr Donley on 8 May 1991, who diagnosed "soft tissue inflammation of paravertebral area of upper thoracic + cervical areas". Mr Rodney had three weeks off work during which he had physiotherapy treatment. His claim for compensation was accepted by Telecom.
(xiii)On 11 September 1993, Mr Rodney experienced pain in his back after carrying air cylinders up a steep incline at Childers. He saw Dr Donley who diagnosed "soft tissue inflammation of paravertebral areas of cervical and upper thoracic spine". Mr Rodney had two weeks off work. His claim for compensation was accepted by Telecom.
(xiv)Between 1990 and 1994, Mr Rodney was required to drive a van for up to 250 kilometres per day, to drive a troupe carrier for about nine months, to carry air cylinders weighing 21 kilograms and 49 kilograms in and out of the van and do other heavy lifting. He claims that as a result of those activities he suffered back pain.
(xv)On 19 February 1994, Mr Rodney injured his right knee when he was bending down to feed a cable through a pit. He had surgery to repair a medial meniscus tear. He was off work until 27 April 1994. His orthopaedic surgeon, Dr Neil Robinson, reported:
"This man has made a satisfactory though incomplete recovery of his right knee injury. He should be capable of all aspects of his work, but should avoid repeated squatting and climbing."
Mr Rodney's claim for compensation was accepted by Telstra.
(xvi)On 2 September 1996, Mr Rodney suffered a "sprained back and L shoulder" when he was lifting and arranging cable. He was off work for about two weeks and received physiotherapy treatment for five weeks. His claim for compensation was accepted by Telstra.
(xvii)From 11 May 1998 until late June 1998, Mr Rodney was off work with "a painful right knee and back". Mr Rodney was examined by Dr Neil Robinson on 24 August 1998, who reported (among other things):
"When reviewed in June 1998 the anterior knee pain had persisted despite him modifying his activities to minimise strain to the patello-femoral joint. In addition he had aching around the medial joint line and within the medial compartment which was related and proportional to physical activity.
Examination at that stage showed him to have reasonable axial alignment and only slight reduction in his right quadriceps muscles. There was no free fluid. Collateral and cruciate ligaments appeared stable. The range of motion was normal but with some patello-femoral crepitus, aggravated when he squatted. Patello-femoral compression was uncomfortable but maximal discomfort was found with firm pressure along the medial joint line and over the medial condyle.
It would appear that this man has two problems affecting his right knee, namely (1) post meniscectomy overload of the medial compartment progressing to overt degeneration. Most will ultimately grumble on to osteoarthritis in the fullness of time, and (2) patello-femoral symptoms. These usually are caused or aggravated by repeated squatting and climbing stairs or ladders. Sitting with the legs flexed also increases symptoms. He had been compliant with the exercise/rehabilitation regime but despite this was having continuing and increasing symptoms."
(xviii)In mid 1998, Mr Rodney became somewhat disenchanted with his job at Telstra. There had been restructuring which meant that large jobs were being contracted out, and Telstra employees were left to do all the small jobs. This also meant that Mr Rodney had to spend lengthy periods away from home. He applied for a redundancy package. He did not have any specific plans for work outside of Telstra but he was confident that he would find something. At any event his application for redundancy was refused. He was very disappointed because the packages were being granted to other people with whom he worked. He believed that he was being "discriminated against".
(xix)On 22 September 1998, Mr Rodney was examined by Dr Khursandi, orthopaedic surgeon. He reported as follows:
"CLINICAL EXAMINATION
The spine showed no deformity.
Cervical Spine: He has a full range of movements and is able to touch his chest with his chin on flexion. There is no spasm or tenderness in the paravertebral muscles.Thoracic Spine He has no deformity with slight tenderness of the left paravertebral muscles, level with the mid-thoracic vertebrae. He has minimal restriction of movements in the thoracic spine.
Lumbo-Sacral Spine: He can flex his spine and reach his toes. Extension, lateral flexion and rotation of the lumbo-sacral segment are almost of a full range and free of pain. He has no spasm or tenderness in the soft tissues.
Upper and Lower Limbs: He has no muscle wasting, a full range of movements in all joints, and no sensory deficits. The tendon reflexes are present and equal in all four limbs.
Right Knee: He has no effusion and no deformity with a full range of movements. There is no ligamentous laxity and no soft tissue or bony tenderness. The quadriceps and hamstring functions and bulk are within normal limits. He has healed arthroscopy portal scars on the anterior aspect of the knee.
INVESTIGATIONS
19.2.90 X-rays Cervical and Thoracic Spines. Showed no radiological abnormality.
13.10.94 Showed minor degenerative changes in the facet joints between the fifth, sixth and seventh cervical vertebrae. In the thoracic spine he had no radiological abnormality.
DIAGNOSIS AND OPINION In my opinion, Mr Rodney's recurrent episodes of interscapular and low back aches are due to transient musculo-ligamentous strain, temporarily aggravating pre-existing degeneration in the thoracic and lumbar spine. It would be advisable for him to refrain from activities which involve bending, lifting and maintaining the spine in certain postures for long periods of time. I am also of the view that this degeneration is part of the process of ageing and not necessarily associated with any significant injury at work.
According to his history, he sustained an internal derangement of his right knee four years ago for which he underwent arthroscopic meniscectomy. The symptoms in the knee have now resolved and he has no residual disability from it."
(xx)As a result of Dr Khursandi's report, a determination was made to cease liability for ongoing compensation in relation to Mr Rodney's right knee and back.
(xxi)On 6 January 1999, Mr Rodney reported that he was suffering from neck and shoulder pain after stretching to reach behind a frame to thread wire through rings. He claimed to have heard a click between his shoulders. He had one week off work. He claimed compensation. Compensation was granted.
(xxii)In early January 1999, Mr Rodney had made up his mind to try for promotion to the position of field supervisor.
(xxiii)He returned to work on 14 January 1999, and was given light duties. He drove a van around in the Gayndah district, "inspecting jobs".
(xxiv)On 21 January 1999, Mr Rodney rang a superior officer by the name of Jim Pitura, to talk about the possibility of his getting the promotion to field supervisor. Mr Pitura told him that he was wasting his time because he was not physically fit enough. Mr Rodney was devastated by Mr Pitura's response. He started crying and became depressed. Mr Pitura suggested that Mr Rodney retire on the grounds that he was totally and permanently incapacitated and that he would then be able to access his superannuation entitlements.
(xxv)In February 1999, Mr Rodney began doing light duties at the depot. He continued in that work till April 1999, when he ceased work of his own accord, and has not worked since. Although he was being paid the same wage at the depot as he was getting in the field, he did not want to continue in the job. He found depot work boring; he did not like it; it was too mundane; there was no self-esteem attached to it; he had lost face.
(xxvi)Mr Rodney told the Tribunal in the course of his evidence, that if he had been given the supervisor's job he would have been happy to keep working.
Mr Rodney claims that he has suffered injuries, which have resulted in permanent impairment to his thoracic and lumber spine and his right knee.
Mr Rodney also claims that the injuries and permanent impairment to his neck, back and knee have caused pain, frustration and depression, which have led to the development of a psychiatric disorder.
There is no doubt that Mr Rodney had a physically demanding job when he worked for Telstra. The Tribunal accepts that he would have suffered from muscular and ligamentous strains from time to time and that he would have regularly felt stiff and sore at the end of a hard day's work. However, the fact of the matter is that there is almost nothing wrong with him from an orthopaedic point of view.
Dr Khursandi examined Mr Rodney on 22 October 1998 and found virtually nothing wrong with him (see part of the report set out in paragraph 5 (xix) above). Mr Rodney explained to the Tribunal during the course of his cross-examination, that he had put in a "special effort" when he was examined by Dr Khursandi, because he wanted to keep his job at the time.
Mr Rodney was also examined by Dr Michael Delaney, orthopaedic surgeon, in February 2000. Dr Delaney provided a report and he gave evidence at the Tribunal hearing. Among other things he said that:
(i)Mr Rodney's lumbar spine looks normal.
(ii)Mr Rodney's degenerative changes in his thoracic spine are the same as for a man of his age.
(iii)Radiographically, Mr Rodney's spine is within the normal range. The degree of degeneration is not excessive for a man of his age.
(iv)There is no evidence of a previous disc prolapse on CT scan.
(v)If a person suffered a major spinal injury, they would be off work immediately, not 9 weeks later.
Mr Rodney was also seen by Dr Ian Dickinson, orthopaedic surgeon, on 6 April 2000. Dr Dickinson provided a report and gave evidence to the Tribunal. He said (among many things):
(i)There is no evidence that Mr Rodney has ever suffered a disc protrusion of a significant degree.
(ii)He does not accept that a patient can have symptoms with no radiological evidence.
(iii)He would expect to see some signs if a person had a minor disc protrusion 25 years ago.
Dr Dickinson's report of 27 April 2000 contains the following:
"Examination
On examination, he is a fit looking man of average height and weight.
There is no tenderness of the spine. There is no muscular spasm. The cervical spine moves through a full comfortable range of movement readily and without distress at any stage. There are no upper limb neurological signs.
The lumbar spine moves through a full range of movement. He can touch his fingers on the floor, extension, lateral flexion and rotation are all normal. There is no restriction of straight leg raising which is 90 degrees and there are no neurological signs.
Both shoulders are clinically normal. There is no particular problem with the left scapula.
With respect to the right knee, there is no quadriceps wasting, there is no effusion, and there is no joint instability. McMurray's tests are negative, and there is no patellofemoral crepitus.
Radiographs
Xrays of the cervical and thoracic spine taken on 19.2.90 are normal.
Xrays of the chest of 13.8.92 are normal.
Xrays of the thoracic spine of 28.1.99 are normal.
Xrays of the cervical spine taken on 13.10.94 are normal.
Xrays of the lumbar spine taken 28.1.99 are normal.
CT scan of the lumbar spine taken on 20.1.99 is normal.
Xrays of the left shoulder taken on 13.4.2000 are normal.
Xrays of the right knee taken on the same date show mild early degenerative change, particularly in the medial joint.Opinion
Mr Rodney has suffered from a number of injuries in his work at Telstra. Each of these injuries has been of minor degree, but despite that, he has persisted in having discomfort in the areas in which have been damaged – the left shoulder, upper thoracic region, lumbar spine, and right knee.
The latest injury did in fact cause him to require arthroscopic menisectomy, and since then, he has had symptoms more of chondromalacia patellae – i.e. anterior knee pain rather than meniscal symptoms. However, his knee is clinically normal.
In terms of the rest of his symptoms, they have all continued to be in ares where he has suffered either a major sprain (such as the back) or a minor sprain such as the shoulder. The persistence of the symptoms is not explainable in orthopaedic terms in that there is no evidence of any pathology whatsoever. It is certainly true that patients who have had injuries can perceive that any further problem with that particular area can be related to what they consider to be the initiating injury. However, in manual labour, it is much more common for a person to have a stress or a strain, and then for the patient's symptoms to resolve without any further sequelae. Any new pain can be considered simply to be a further strain of the same area rather than a strain of something which has been irreparably damaged by an initiating insult.
The above component of somatic symptoms in the absence of somatic pathology is a common problem, and Mr Rodney expresses it.
He was quite distressed about his impression that when Telstra was having significant redundancy payments, he was not eligible for one because he was so valuable to the organisation that they did not want to lay him off and said that he ought to go off medically unfit.
I can find no evidence that he has any particular pathology related to his neck, shoulder, upper spine or lumbar spine. He has had a medial meniscal tear, and on the basis of that, he is impaired by 5% in his right lower limb.
From the point of view of his persistent symptoms, it must be stated that there is no evidence as to any reason why he should have persistent symptoms. He is of course older than he was when he first developed some of these symptoms, but even now he is still relatively speaking a man in the prime of his life while he could reasonably have some degenerative symptoms, there is no suggestion that these would be related to his employment.
There is no physical treatment that would help Mr Rodney. This has been confirmed by the fact that he continues to attend physiotherapy without any resolution of his problem. There is no question that Mr Rodney would be fully fit for work other than for the fact that he has a perception that he has some work related conditions which are permanent. He has had work-related stresses and strains, but these fully resolved not long after he had them."
The Tribunal finds that Mr Rodney has no compensable injury to his neck, shoulder, upper spine or lumbar spine.
The Tribunal accepts that Mr Rodney has some residual work-related permanent impairment in his right knee. Dr Delaney gave an assessment of whole person impairment related to Mr Rodney's right lower limb of 10% but he combined the effects of the right knee with the naturally occurring degeneration in the lumbar spine. On the other hand Dr Dickinson assessed the effects of Mr Rodney's right lower limb on his whole person impairment based on the knee alone. His opinion was that the knee was responsible for 5%. The Tribunal accepts Dr Dickinson's assessment of 5%.
The Tribunal finds that Mr Rodney has some work-related permanent impairment to his right knee but it is not of sufficient severity (not at least 10%) to allow for compensation, nor is it anywhere near bad enough to prevent him from working. See subsection 24(7) of the Act.
Mr Rodney has also claimed that he suffers from a compensable psychiatric disorder. The claim is based on the proposition that Mr Rodney's claimed orthopaedic problems have led to his claimed psychiatric condition. The Tribunal notes that Mr Rodney had no psychiatric disorder until January 1999, when he was told that he would not be considered for promotion to field supervisor. He reacted very badly to that situation. He has not done any meaningful work since. He has had ongoing psychological and psychiatric assistance since 10 February 1999.
Mr Rodney was seen by Dr Alcorn, psychiatrist, on 7 June 2000. Dr Alcorn took into account Mr Rodney's perceptions of his problems and also the orthopaedic evidence available to him. He came to the conclusion that Mr Rodney had suffered an Adjustment Disorder in 1999 but was in remission by June 2000. He said (among other things):
"There is evidence that perceptions of pain have produced some accompanying psychiatric symptoms which are disproportionate to the level of physical disability described in relation to the temporary exacerbations with musculoligamentous injury.
Using the Diagnostic and Statistical Manual, Fourth Edition, Multiaxial Classificatory System of the American Psychiatric Association, I would accord the following diagnoses:
Axis I Adjustment Disorder (in remission) Differential Diagnosis: Mood Disorder due to Alcohol Abuse (possible provisional differential diagnosis)
Axis II No personality disorder diagnosis
Axis III Musculoligamentous strains, as diagnosed by other doctors
Axis IV Chromic stressors related to perceptions of annoyance with Telstra
Axis V The subject described a mild impairment of function due to psychiatric symptoms in recent times, although this had apparently been more severe in the last twelve months.
Causation
There is no evidence of any antecedent psychiatric illness. Similarly, there is no evidence in his family history of a biological predisposition toward the development of a mood disorder. However, there is evidence that his father had a "drinking problem", according to the subject. This would in turn enhance his own risk for alcohol abuse. It is of note that the subject acknowledged self-medicating for his perceptions of pain at times.
It is clear that the subject dislikes the structural changes in Telstra. Dr Dickinson's report appears to indicate that the subject was disappointed that he did not obtain a voluntary redundancy. The tenor of the subject's remarks at this evaluation again suggested annoyance with these changes, and an annoyance at a failure in anticipated promotion to a supervisor level. In my view these factors have been every bit as important as his perception of musculoskeletal pain in the consequent mood problems that he had developed.
His symptoms have been successfully treated by psychologist Mr Fraser, as noted in her report. Excess alcohol use would be likely to enhance mood lability and impulsivity.
Likely Course of Disorder
The subject has engaged in a claim for compensation against Telstra. He appears to still be unhappy in relation to some work-related events. However, it does appear that as he has been unable to distance himself form work-related events, his psychological function has gradually improved with the assistance of Psychologist Ms Fraser.
In the ordinary course of events, the Adjustment Disorder would now cease upon termination of his relationship with his employer, and on settling of his back pain. It may be that at time of enhanced back pain, he does experience some Adjustment Disorder symptoms. However, it should be noted that in the absence of organic evidence of ongoing back pain (as opposed to temporary aggravations due to musculoligamentous strains), no ongoing work-related psychiatric diagnosis would apply.
There is now no psychiatric impediment to him returning to work. Of course, a heightened perception of back pain upon work-like activities may produce a relapse of Adjustment Disorder symptoms, as noted above."
Mr Rodney was seen by Dr Larder, psychiatrist, on 7 November 2000. Dr Larder found the following:
"Mr Rodney is a 53 year old man who appeared his stated years. His self care was normal. He appeared to give an honest account of his history and situation . There was no evidence that he was evasive or failing to disclose any material.
His attention and concentration were normal. His affect was normal. His mood was normal. Psychomotor speed was normal.
He was not psychotic in that he was not out of touch with reality The form, possession and stream of his thoughts were normal. There was no evidence of perceptual abnormalities. The thought content examination revealed no formal thought disorder.
Cognitive testing revealed no gross abnormalities of frontal lobe, parietal or temporal lobe functioning. He appeared to have developed some understanding of the nature of his difficulties and of the factors that had contributed to their causation. His intelligence was in the average range as assessed clinically."
From what he had been told and from what he had read about Mr Rodney's case, Dr Larder thought that Mr Rodney probably had a "major depressive episode" in 1999.
The fact of the matter is that neither Dr Alcorn nor Dr Larder found that there was anything wrong with Mr Rodney from a psychiatric point of view when they examined him in 2000. Dr Alcorn thought that he was in remission from an Adjustment Disorder. Dr Larder thought that he had recovered from a major depressive episode.
The Tribunal rejects any notion that Mr Rodney suffered a diagnosable psychiatric illness because of any orthopaedic problems. If he did suffer from a diagnosable psychiatric illness in 1999, it was directly attributable to his failure to gain promotion. That was the event which set off his emotional, and possibly psychiatric, problems.
The Tribunal finds that currently Mr Rodney does not have a diagnosable psychiatric illness. If he did have one in 1999 it would not have been compensable because it would have been caused by his "devastation" at not being considered for promotion (see definition of "injury" section 4(1) of the Act).
The Tribunal affirms the decisions under review.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D W Muller, Senior Member.
Signed: .................................................................................
AssociateDate/s of Hearing 22-24 August 2001 and 31 August 2001
Date of Decision 17 May 2002
Counsel for the Applicant Mr Keim
Solicitor for the Applicant Maurice Blackburn Cashman
Counsel for the Respondent Miss Ford
Solicitor for the Respondent Sparke Helmore
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