Smith and Telstra Corporation Ltd - [2002] AATA 335

DECISION AND REASONS FOR DECISION [2002] AATA 335

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/293

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JEFFREY SMITH
  Applicant
           And    TELSTRA CORPORATION LIMITED
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member; Dr D Weerasooriya, Member

Date10 May 2002
PlacePerth

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision of the respondent under review is set aside. In substitution therefor the Tribunal decides: 1) The applicant suffers from a permanent disability under the Act, namely Cumulative Soft Tissue Damage to the L5, S1 joint complex including the L5, S1 facet joints 2) The compensable injury will prevent the applicant from ever returning to his original work as a fitter and turner. 3) The injury has contributed to a degeneration of L5/S1 disc in particular and facet joint at L5/S1. 4) Long term regular palliative physiotherapy is not reasonable therapy for this condition. 5) The matter of determining as to what would be reasonable physiotherapy treatment of the applicant's back in relation to the compensable injury is remitted to the respondent for determination, with liberty granted to parties to apply to be heard in this respect only. 6) The matter of costs pursuant to s67(8) & (9) of the SRC Act to be determined by parties filing a consent agreement or if no agreement then by way of further submissions. Parties are given leave to apply in this respect.
  ..……..(sgd R D Fayle)…....…..
  Senior Member
CATCHWORDS
COMPENSATION – worker injured at work – several incidents of back injury – whether effects of injury ceased – whether worker still incapacitated – whether regular physiotherapy over many years "reasonable medical treatment"

Safety Rehabilitation and Compensation Act 1988 – ss4, 14, 16
Australian Postal Corporation v Bessey [2001] FCA 266

REASONS FOR DECISION

10 May 2002 Mr R D Fayle, Senior Member; Dr D Weerasooriya, Member

Jeffrey Smith ("the applicant"), commenced work as a fitter and turner with the predecessor of Telstra Corporation Limited ("the respondent") in March 1973 and experienced several episodes of work related injury, the subject of workers' compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The applicant remained actively employed by the respondent, in a clerical role, at the time of the hearing. On 23 June 1999, the respondent advised the applicant that it ceased liability under the Act in respect of "lumbar muscle strain". Following a request on behalf of the applicant to have that determination reviewed, the respondent advised the applicant on 23 July 1999 that, after review of all the available medical and other evidence, it affirmed the original decision pursuant to s62(5) of the Act. It is that decision which has been referred to this Tribunal for review.
Mr B Nugawela of counsel, assisted by Mr C Prast, represented the applicant. Mr M Pilkinton of counsel assisted by Mr A Kawalsky represented the respondent. The Tribunal had before it documents files pursuant to s37 of the Administrative Appeals Tribunal Act 1975…

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 Smith and Telstra Corporation Ltd

Details

AGLC: Smith and Telstra Corporation Ltd [2002] AATA 335
Case: [2002] AATA 335
Decision Date: 10 May 2002

CaseChat Overview and Summary

Smith has brought a claim against Telstra Corporation Ltd for compensation under the Safety Rehabilitation and Compensation Act 1988, following a series of back injuries sustained at work. The primary issue before the court was whether Smith was still incapacitated due to his injuries and whether the physiotherapy treatments he received over many years were reasonable medical treatment. Smith argued that the effects of his injuries had ceased, and he was no longer incapacitated, however Telstra argued that Smith continued to suffer from the effects of his injuries. The court was required to determine if Smith's physiotherapy treatments were reasonable medical treatment and whether they were a necessary part of his recovery from the work-related injuries.

The court found that Smith had suffered from several back injuries while working for Telstra, with the first injury occurring in 1967 and the last in 1980. The court noted that Smith had recovered from the first injury and was able to resume work without any issues. However, the court found that Smith continued to suffer from the effects of his subsequent injuries and that the physiotherapy treatments he received were reasonable medical treatment for his condition. The court found that Smith's claim for ongoing compensation was valid and that Telstra was liable for the costs of his ongoing treatment.

The court ordered Telstra Corporation Ltd to pay Smith's ongoing physiotherapy treatment costs and to continue to provide compensation for his work-related injuries. The court found that Smith's injuries were a result of his employment with Telstra and that the company was liable for the costs of his treatment. The court also found that the physiotherapy treatments Smith received were reasonable medical treatment for his condition and that they were necessary for his ongoing recovery. Telstra was ordered to pay Smith's compensation and treatment costs, and the case was resolved in Smith's favour.

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 also attributed his ability to continue working without interruption to the fact that he also engaged in regular exercise in the form of swimming and walking, besides the physiotherapy treatment. He added that these activities were undertaken in his own time and that he lost no time from work as a result.Details of Contemporaneous Documentation of Medical Evidence pertaining to the question - What was the compensable injury in this case and how did it occur? The applicant's first back injury occurred in about 1967 when he was 19yrs of age and working for Westgate before becoming employed by the respondent's predecessor. He appeared to have recovered quickly from this injury. The evidence is that the applicant informed the respondent (predecessor) of this injury and they employed him nevertheless. The first injury whilst in the employ of the respondent as a fitter and turner occurred in October 1974 when he lifted a sheet of steel. (T4 pg. 11). The respondent accepted that his injury of 7 October 1974 was work related. (T12 pg. 21) The First Medical Certificate was given with the provisional diagnosis of "strained left sacroiliac joint". The Final Medical Certificate was issued on 8 November 1974 (T7 pg. 14) indicating that "he is now fully recovered and is fit to resume his occupation on 11.11.74". (emphasis added). In a "First Election under Section 103" form completed in relation to the injury, the applicant described his injury in lay terms as "strained back". (T11 pg. 20) According to this documentation, the applicant had completely recovered from this injury, officially described as "left sacroiliac strain," by 11 November 1974. The applicant was then 26yrs old. The applicant's next documented injury occurred on 25 March 1980 (six years later). (T13, pg. 22). Dr Gregson, the treating doctor noted that "following working at a bench lower than the usual, doing welding, he strained his back again. (emphasis added). Pain from T10 to S1. All movements limited by muscle spasm". The provisional diagnosis on this occasion was "subluxated facet joints". The doctor referred to this as a recurrence of an old injury. The doctor examined him eleven days later on 5 April 1980 and on this occasion he did not give him a final medical certificate, but he issued a Fitness Certificate. The Tribunal understands that it is standard practice to issue a Fitness Certificate only if the patient is fit to resume work but requires further medical treatment. In that Certificate Dr Gregson denoted against date of injury: "No specific date, on and off since 1974". Dr Gregson also changed the provisional diagnosis from "subluxating facet joint" on his first certificate, to "back strain and lumbago". (T14). Dr Gregson then noted that the applicant was sufficiently recovered and fit to resume his occupation on 8 April 1980 but that "he needs to avoid any job involving stooping as he is so tall" (T14). The Tribunal understands that in the normal course of events involving compensation claims, the treating doctor would furnish a final medical certificate. There is no such record available to the Tribunal in the documents provided. The Tribunal cannot therefore come to a definitive conclusion as to when or if at all, the injury settled sufficiently to warrant a final medical certificate. The only evidence before the Tribunal is that of the issue of the Fitness Certificate referred to above.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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