RUSSELL FOSTER and TELSTRA CORPORATION LIMITED

[2012] AATA 702

[2012] AATA 702  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2572
Re	RUSSELL FOSTER
APPLICANT
And	TELSTRA CORPORATION LIMITED
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Date	11 October 2012
Place	Brisbane

The Tribunal affirms the decision under review.

....................[Sgd]................................................

Mr R G Kenny, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Acceptance of liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for medical treatment and compensation for an aggravation of a pre-existing and constitutional right wrist ganglion – Cessation of liability for incapacity for work or impairment or the need for medical treatment by 31 December 2007 – Development of new ganglion unrelated to previous condition or employment – Decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 14, 16, 19

CASES

Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20

Foster and Telstra Corporation Limited [2010] AATA 89

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Re Rana and Military Rehabilitation and Compensation Corporation (2008) 104 ALD 595

REASONS FOR DECISION

Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

11 October 2012

BACKGROUND

The Tribunal decision of 8 February 2010

1. On 8 February 2010, the Tribunal affirmed the respondent’s decision of 2 February 2009 that it was liable with respect to Mr Foster’s ganglion of the right wrist but concluded that Mr Foster ceased to suffer the effects of that condition by 31 December 2007.[1] The Tribunal determined that the ganglion was aggravated but that this was not caused by his work with Telstra Corporation Limited (“Telstra”). Mr Foster did not request a review of that decision, the effect of which was that, from 1 January 2008, Mr Foster had no entitlement to compensation under ss 16 or 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). The Tribunal also determined that Mr Foster did not suffer from tendonitis and that any pain experienced by him since 31 December 2007 was due to a further ganglion which had developed due to constitutional factors after he ceased his employment with Telstra in November 2007.

   [1] Foster and Telstra Corporation Limited [2010] AATA 89.

   The present claim

2. In a letter dated 30 October 2010, Mr Foster claimed ongoing incapacity from his original injury after 31 December 2007 and sought reimbursement of medical costs associated with a surgical procedure to remove a ganglion from his right wrist on 12 March 2010. On 25 March 2011, the respondent determined that there was no present entitlement under ss 16 or 19 of the Act in relation to a ganglion of the right wrist. In a reviewable decision, dated 11 May 2011, it varied that decision and decided:

   ·on 14 February 2007, Mr Foster sustained an aggravation of a pre-existing and constitutional right wrist ganglion which was materially contributed to by his employment with Telstra; and

   ·by 31 December 2007, the right wrist aggravation ceased to result in incapacity for work or impairment or the need for medical treatment, and, accordingly, from 1 January 2008 to the present, Mr Foster was not entitled to compensation under ss 16 and 19 of the Act in respect of the right wrist aggravation.

   On 29 June 2011, Mr Foster lodged an application for the Tribunal to review the decision of 11 May 2011.

3. As we read Mr Foster’s present claim, it relates to his right wrist; in particular to the ganglion removed by Dr Couzens on 12 March 2010. This is significant because, in his evidence, Mr Foster referred to a problem with his forearm which he has called tendonitis. While that condition was identified by him in his initial claim in 2007, the respondent accepted liability for his ganglion and not tendonitis. As noted above, the Tribunal, on 8 February 2010, determined that Mr Foster did not suffer from tendonitis and that any pain experienced by him since 31 December 2007 was due to a further ganglion.

   The interlocutory hearing of 28 May 2012

4. This matter came before the Tribunal on 28 May 2012.[2] At that hearing, Ms Ford, for the respondent, referred to findings of fact by the Tribunal on 8 February 2010 and submitted that Mr Foster's application was an attempt to re-agitate the issues underlying those findings; that the Tribunal’s findings should be accepted as determinative of those issues; and that new evidence in relation to them should not be admitted.[3] She submitted that the symptoms of Mr Foster’s wrist condition at the time of the 8 February 2010 decision were the same as those experienced by Mr Foster since then and that the Tribunal had jurisdiction to consider Mr Foster’s circumstances only from 1 January 2008, the day after the Tribunal determined that liability ceased.[4]

   [2]  Foster v Telstra Corporation Limited [2012] AATA 399.

   [3] In reliance on Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20; Re Rana and Military Rehabilitation and Compensation Corporation (2008) 104 ALD 595; and Re Quinn and Australian Postal Corporation (1992) 15 AAR 519.

   [4] Relying on Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20.

5. Mr Foster said that he accepted as correct the decision of the Tribunal on 8 February 2010 on the basis of the evidence available at that time. However, he submitted that, since then, further medical evidence from Dr Gregory Couzens about the nature of his wrist condition established that the initial surgery to remove the ganglion had left a residue which had continued to develop; that there had not been a second ganglion but a continuation of the first ganglion; that the second surgical procedure was related to the original ganglion in his wrist; and that he should be compensated for the effects of the second ganglion from 1 January 2008. In a written submission which referred to a wide range of matters, including evidence given by Dr Couzens in other cases, Mr Foster also requested that tendonitis or muscle fatigue of the right forearm be accepted as being related to his employment.

6. In the reasons dated 28 June 2012, the Tribunal made no findings in relation to the ganglion excised in 2010 because there was a need for clarification of the nature of that ganglion. It accepted that there was discretion to take as definitive the findings of the Tribunal in 2010. However, it considered that Mr Foster should not be considered as merely re-agitating all of the issues that were before the Tribunal at that time and that, at a resumed hearing, consideration would need to be given to the medical evidence relating to the ganglion removed in 2010. This included the finality or otherwise of some aspects of the Tribunal’s findings including those in relation to the diagnosis of tendonitis and to Mr Foster’s first ganglion not being caused by his employment but being aggravated by it.

   Present matter

7. Hand and Wrist Surgeon, Dr Couzens, completed reports on 3 August 2007, 6 August 2008, 6 August 2009 and 4 June 2010. He also gave oral evidence. On 14 September 2007, he removed a ganglion from Mr Foster’s right wrist. On 12 March 2010, he completed a further surgical procedure on a ganglion on Mr Foster’s right wrist and in his final report he described this as most likely a recurrence of the ganglion, although he conceded that he may have missed some part of the original ganglion. In his oral evidence, he qualified this observation and stated that the likely position was that the ganglion he removed in 2010 was a new condition and that there was only a possibility that he had missed part of the earlier ganglion. Dr Couzens’ evidence was that tendonitis and tenosynovitis are different names for the same condition and that he had not found evidence of that condition and had not treated Mr Foster for anything apart from his ganglia, although he noted forearm muscle pain which did not constitute tendonitis.

8. Hand and Upper Limb Surgeon, Dr Stephen Coleman, completed reports on 22 April 2008 and 18 May 2009. In his first report, Dr Coleman considered that there was no evidence of recurrence of a ganglion and that it was unlikely to have been caused, initially, by Mr Foster’s work. He believed that Mr Foster’s source of pain was diffuse tendonitis of the forearm. In his second report, Dr Coleman reviewed x-rays and MRI scans of the right hand from April 2009 and identified arthritis in his joints as well as a possible small ganglion. His opinion was that none of these conditions was related to Mr Foster’s employment. In his evidence, Dr Coleman revised his diagnosis of tendonitis, stating that Mr Foster did not suffer from that condition but that he may have had muscle pain in the forearm due to postural changes after the ganglion surgery in 2007. He said that this would have resolved when he ceased working for Telstra.

9. Dr Kenneth Cutbush, orthopaedic surgeon, completed reports on 24 November 2011 and 21 February 2012. He also gave evidence. In his reports, he referred to evidence of the ganglion in 2007 and gave differing opinions on the nature of the ganglion removed in 2010, stating that it was either a residual ganglion not removed in 2007 or a recurrence in the same region. He described the MRI and ultrasound investigations as not supporting a formal diagnosis of tendonitis. Dr Cutbush said that he had been at some disadvantage in entering any diagnosis because Mr Foster’s symptoms had resolved when he saw him and this made it difficult to assess which condition he had suffered from. In his evidence, he said that the likely explanation was muscle strain. His opinion was that ganglia would not have been caused by Mr Foster’s work with Telstra but that it may have been aggravated by it. In any event, his evidence was that any work-related symptoms had ceased after his Telstra employment ended in November 2007. 

10. Dr John Cameron, neurologist, completed a report on 27 October 2008. He noted the presence of the ganglion and concluded that it was unlikely to have been caused by Mr Foster’s clerical duties. He also concluded that he had been unable to find evidence that Mr Foster suffered from obvious tendonitis.

    CONSIDERATION

11. There is no evidence that Mr Foster’s employment may have caused the 2007 ganglion but some evidence that the condition may have been aggravated by it. That has been conceded by Telstra in the decision under review. The medical evidence does not support Mr Foster’s contention that the ganglion removed by Dr Couzens in March 2010 was related to his earlier ganglion. The highest level at which Dr Couzens was prepared to accept such a relationship was in terms of “possibility” with the likelihood being that it was a new condition. While we have noted Mr Foster’s reference to evidence given by Dr Couzens in other cases, we are satisfied that reliance should be placed on the evidence he has given in relation to the specific circumstances of Mr Foster.

12. We are satisfied that the ganglion is a disease, as defined in s 5B of the Act, and that Telstra will be liable, under ss 14, 16 and 19 of the Act, to compensate Mr Foster in relation to the ganglion removed in 2010 if it was contributed to, to a significant degree, by his Telstra employment. We are satisfied that there is no evidence to support any degree of such contribution or of any relationship between it and the earlier ganglion removed in 2007. We note that Mr Foster’s employment with Telstra ceased in November 2007. Nor is there evidence of tendonitis in Mr Foster’s right arm with the preponderance of evidence describing a possible muscle strain, with any employment‑related contribution to that condition ceasing after he stopped working with Telstra in November 2007.

13. Mr Foster said that he accepted the decision of the Tribunal on 8 February 2010 that he no longer suffered the effects of the compensable injury constituted by the ganglion removed in 2007. His concern was with the ganglion removed in 2010. When the Tribunal decided Mr Foster’s application for review on 8 February 2010, it made findings that Mr Foster did not suffer from tendonitis; that Mr Foster suffered from a ganglion which was removed in 2007 and which, while not caused by his work with Telstra, was aggravated by that work; that pain associated with that ganglion was resolved by 31 December 2007; and that the ganglion removed in 2010 was unrelated to Mr Foster’s employment. We have had the benefit of hearing from Dr Couzens, Dr Coleman and Dr Cutbush and we are satisfied that their evidence supports the findings of the Tribunal on 8 February 2010 and its decision to affirm the respondent’s decision of 2 February 2009 that it was liable with respect to Mr Foster’s ganglion of the right wrist but that Mr Foster ceased to suffer the effects of that condition by 31 December 2007. On the material before us, we affirm the reviewable decision of 11 May 2011.

    DECISION

14. The Tribunal affirms the decision under review. 

15.       I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member.

16.        

...............[Sgd].........................................

Associate

Dated 11 October 2012

Dates of hearing	17, 18  September 2012
The Applicant was assisted by	Brenda Gordon
Counsel for the Respondent	Elenne Ford
Solictors for the Respondent	Sparke Helmore