Stagg and Telstra - [2001] AATA 804

DECISION AND REASONS FOR DECISION [2001] AATA 804

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/895 &

GENERAL ADMINISTRATIVE DIVISION       )          V2000/1123
           Re      DAVE STAGG
  Applicant
           And    TELSTRA
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date6 September 2001
PlaceMelbourne

Decision      The decisions under review are set aside and in substitution it is decided that the effects of injury have not ceased and are continuing. The application is otherwise remitted to the respondent for calculation of compensation in accordance with these reasons. The applicant is entitled to have his legal costs paid by the respondent.
  ...........Sgd. Mr J. Handley...........
  Senior Member
CATCHWORDS
Compensation - Neck & shoulder injuries - multiple events at work - whether employment contributed - whether effects of injuries have ceased - whether any permanent impairment - decisions set aside.

REASONS FOR DECISION

6 September 2001 Mr J. Handley, Senior Member

The applicant applies to review two decisions made by the respondent.
In application V2000/895 the applicant applied to review a reviewable decision made on 10 July 2000 which affirmed a decision made by the respondent of 14 April 2000 to deny liability to pay an impairment lump sum pursuant to s.24 of the Safety, Rehabilitation & Compensation Act 1988. The impairment lump sum was sought with respect to injuries suffered by the applicant to his neck, right shoulder, right arm and back.
In application V2000/1123 the applicant applied to review a decision made by the respondent on 1 September 2000 which affirmed a determination of 19 July 2000 to cease liability for compensation from 19 July 2000 with respect to "soft tissue injury to neck".
The hearing of these applications commenced in Ballarat on 14 June and concluded in Melbourne on 14 & 15 August. Mr Horner appeared on behalf of the applicant and Mr Croyle appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons. A number of witnesses were called to give evidence, which will also be referred to in these reasons.
David Stagg
Mr Stagg is presently 40 years of age. He commenced employment with Telstra in 1985 and said that he was then in good physical health. He acknowledged that he had previously suffered an episode of low back strain when he was employed as a forklift driver at Bridgewater Flour Mills some years earlier. Mr Stagg also said that he successfully completed a medical examination prior to employment with Telstra. At about the time he commenced employment with the respondent Mr Stagg played football with the Inglewood Football Club and between 1988 and 1993 he was a member of the Army Reserve. Between 1991 and 1992 he was a casual ambulance driver with the Victorian Rural Ambulance Service in Inglewood. Mr Stagg also engaged in the recreation of golf and was the C grade champion at Inglewood in 1995. Mr Stagg also engaged in gold prospecting as a hobby.
On 10 May 1990 Mr Stagg said he suffered neck injury. He had initially been employed by the respondent as a "navvy" where he had walked behind a ditchwitch carrying a shovel and pick and was engaged in heavy manual work. From time to time he also used a jackhammer. He later became trained as a ditchwitch driver and was driving the ditchwitch on 10 May 1990. Prior to injury Mr Stagg said that he had walked over and surveyed the ground in which he was to dig a trench. He checked for obstructions - including gas and water pipes - but could find none. He then commenced to drive a ditchwitch, which was moving in a forward direction but he was seated in a position where he was looking backwards over his right shoulder with his neck in an extended twisted position. As the vehicle was moving forward and as he was looking over his right shoulder at the digging operation the ditchwitch struck a submerged tree stump and he suffered immediate pain and an electric type shock in his neck which he associated with the sudden jolting of the vehicle.
Mr Stagg said that to the best of his memory the incident occurred on a Friday but he was unable to attend his local general practitioner Doctor Higgs until the following Monday. He was then certified for three weeks of incapacity and upon return to work he was not permitted to drive a ditchwitch for three months. Mr Stagg attended for physiotherapy, a claim was made upon the respondent and it was accepted. Mr Stagg eventually returned to work and enrolled in a course with the respondent as a cable joiner. The course was undertaken in Ballarat.
On 19 April 1991 Mr Stagg said he suffered a further exacerbation or recurrence of neck pain when he was driving a work vehicle. He said so far as he could recall he sneezed and pain extended into the right side of his neck. He said a claim was made and physiotherapy commenced. Doctor Higgs was consulted and so far as Mr Stagg could recall, liability was accepted by the respondent but there was no incapacity.
Some time after this incident Mr Stagg was engaged in another course with the respondent where he became proficient in operating a vibrating plough. This machine was said to be bigger and more powerful than a ditchwitch. It was said to be easier to manoeuvre and operate than a ditchwitch because it had a swivel seat and permitted the applicant to turn his body rather than extend and strain his neck over his shoulder. Nonetheless the applicant said the machine produced excessive vibration which troubled him. He eventually was examined by Doctor King, a Commonwealth Medical Officer, who Mr Stagg said, recommended that the machine should not be operated if neck pain was experienced.
In July 1993 the applicant said that he had been working extensively in confined spaces in domestic and commercial rooves and under buildings and houses. He said this work was difficult, and was causing pain and discomfort. Physiotherapy was undertaken and he remained at work. Mr Stagg said he eventually approached his supervisor, Mr O'Connell to request a transfer. Later in 1993 the applicant was transferred to a job involving customer liaison, interpreting plans and directing other employees in physical work. The applicant said that this job unfortunately ceased in about 1994 and his crew was disbanded. He then returned to physical work. He also said that by this time he had ceased playing football.
In about 1994 the applicant also said that he commenced to suffer pain in his shoulder and in his back. On closer enquiry he said that the back pain was more confined to his right scapular which he also understood to be his shoulder blade.
In August 1996 the applicant was replacing or repairing some cables in Maryborough. Mr Stagg said he was leaning into a pit, which was at road level but was filled with water. He recalled that he was pulling cable from the pit and he felt pain in his neck of a similar nature and intensity as he had previously suffered. Doctor Higgs was consulted who provided anti-inflammatory medication and administered cortisone injections. Mr Stagg also recalled that he was referred elsewhere for some acupuncture. Thereafter the applicant said that there were many incidents at work where he suffered neck, shoulder and back pain but which were not always reported. He recalled that he would be in relative comfort at the commencement of each workday but during the day his symptoms would worsen. He specifically recalled an occasion where he was pushing 100 metre rods through mud to retrieve cable. Mechanical assistance, he said, was not then available. He found the work distressing and caused him to suffer intense pain. Other members of his gang also knew that he was suffering pain.
In June 1997 the applicant said that he was suffering severe pain and again consulted Dr Higgs. He said that he was then unable to continue work and had noticed that the little and ring fingers of his right hand were cramping and the base of his right middle finger was hot to touch. He recalled that he was experiencing sweating in the palm of his right hand so much so that there were occasions where he would be unable to grip the handset of a telephone by the combined effects of the cramping in the fingers and the sweating of his palm. At about this time he also recalled that he was working on a job under a house where he was given assistance by a member of the household because of the pain and discomfort he was suffering. That incident occurred on a Friday and he had been scheduled to attend for a CT scan on the following Monday. The applicant said that he was scheduled to play golf on the intervening Saturday but cancelled because of his discomfort. Mr Stagg said that he had become "fed up" with his work because of constant pain extending from his neck into his shoulder and into his right arm and hand. He said that he could not sleep and was hopeful that the CT scan would identify the injury. Mr Stagg said that Doctor Higgs eventually advised him that the CT scan did not show an abnormality and he was referred to Doctor McCulloch in Bendigo. Doctor McCulloch in turn referred the applicant to Mr Rosenfeld in Melbourne who arranged for the applicant to undertake an MRI. In turn Mr Rosenfeld referred the applicant to Doctor Kostos, who in turn referred the applicant to Doctor Vivien. Doctor Vivien in turn referred the applicant to Doctor McCarthy. Throughout these referrals the applicant was from time to time prescribed differing medication and given differing advice as to the nature of his problems. He had been certified as fit for light work only but according to Mr Stagg the employer refused to permit him to return to work unless he had an unrestricted certificate.
Approximately 11 months later the applicant eventually did return to work in about May of 1998. At that stage the applicant said that he had ceased all sporting activity and in the intervening 11 months he had been home "kicking stones around the back yard".
On return to work the applicant said that he was placed into a position where he had to operate a computer but had to teach himself how to use it because he had no prior experience. He found that he was becoming withdrawn from his friends and colleagues and was upset about the presence of continuing pain. Whilst he acknowledged that injections prescribed by Doctor McCarthy had provided some relief he was never totally pain free and day to day activities associated with work around his home or driving his motor car produced or precipitated intense pain.
Eventually a claim was made upon the employer for an impairment lump sum.
At the first day of hearing the applicant said that he had not then had treatment for approximately 12 months except for two injections in the preceding week. He thought that his condition was "getting worse" and noted that his shoulder was "crunching". Mr Stagg said that he had been told by his doctor that he was experiencing a calcium build up in his shoulder. He thought that his pain was "worse than ever" and painkillers had made him drowsy. There were occasions he said where he suffers pain to such intensity that it takes his breath away and there have been other occasions where he is crying because of pain. He said the extent of pain and discomfort had affected his marriage, he thought that he was unsuccessful in the eyes of his family and described himself as being like a "ball in a pinball machine".
In recent years the applicant has moved from Inglewood to Alfredton, a suburb of Ballarat where he is closer to his workplace. He now drives only 4 kilometres to work each day as opposed to 45 kilometres when he was living in Inglewood. The applicant said that fishing is his only recreation. He said he is able to trawl fish from a boat but is unable to cast with his right hand. He has attempted to cast with a rod using his left hand but unsuccessfully. He has given up prospecting and golf and has sold his guns. He has attempted to play golf with his son but said that there have been occasions when he feels like there is an electric shock running through his shoulder. He has recently taken out a bank loan to pay for denervation treatment with Doctor McCarthy because of the most recent decision of the respondent to cease liability.
In cross-examination the applicant said that his work in Ballarat was to interpret plans however that work was becoming insecure because a lot of Telstra work had been outsourced and whilst he was recording contractors codes into the computer, the job was different to when he first started it. He agreed that at all times away from work he had been paid at full salary and had been paid at a weekly rate greater than that prescribed under the Compensation Act. Mr Stagg did say however that there were claims outstanding for travel associated with treatment.
Mr Stagg said the last time that he had worked "in the field" was in about June 1997 when he commenced to experience pain and altered sensation in the fingers of his right hand and in his right shoulder and the right side of his neck. He noted at that time also that he was having difficulty gripping with his right hand.
Mr Stagg said that he ceased shooting as a recreation in June 1996. At that time he owned a shotgun which he said did have a small recoil but not to the extent as the rifles that he had used when he was a member of the Army Reserve. He said he could not recall any pain or discomfort in his shoulder or neck when he had been using a rifle.
Mr Stagg also said that he had played football for the Inglewood Football Club in the Loddon Valley League, but he had only played two or three reserve games each year and he thought that he last played in 1989 but he was not sure. He said that even when he did play he would finish the game early because he was a trainer for the Inglewood firsts team and would be required to rub-down players and tape their ankles before the game started.
Mr Stagg said that the ditchwitch episode in May 1990 was the first occasion where he had suffered neck pain and he described the pain then as "shocking". He said thereafter if he moved or turned his neck he would suffer pain. He acknowledged that at that time he did not have pain extending into his right arm. When it was drawn to his attention that Doctor Hooper in a report at page 17 of the T-Documents recorded that the applicant had ceased playing football in 1990 the applicant said that he could not now be sure that he last played in 1989 and noted that it was some 12 years earlier.
Mr Stagg said he ceased being a member of the Army Reserve in 1993. He had been a member of a transport unit and was not engaged in infantry. He would attend a range for manoeuvres once or twice per year and was issued with a 762 rifle, which he said did have a strong recoil. He had also been a casual ambulance driver because there was only one permanent driver based in Inglewood. He said that from time to time he did drive the ambulance but not in an emergency situation. With respect to his current treatment the applicant thought that his shoulder was "getting worse". Mr Stagg consumes panadol medication and other pain killing medication and sleeping tablets prescribed by Doctor Higgs. The applicant had recently been referred to Doctor Michael Ford a chronic pain specialist. The applicant says he continues to attend Doctor Higgs in Inglewood approximately every three months for a certificate.
The applicant was then cross-examined with respect to his gold prospecting activities. The applicant agreed that on 17 August 1995 he and a friend found a 286 ounce gold nugget. He said that attempts were made to sell it but were unsuccessful. Eventually Supreme Court proceedings were issued by the applicant against his friend with respect to the nugget. Those proceedings were eventually settled upon confidential terms at the Supreme Court in Bendigo on 13 September 1999. Mr Stagg acknowledged that he was concerned about those proceedings between 1997 when they were instituted and 1999 when they were resolved.
When the hearing resumed in Melbourne on 14 August the applicant was recalled by Mr Horner to give evidence. In the interim between sitting in Ballarat and the resumption in Melbourne there had been a number of Directions Hearings with respect to the production of documents sought by the respondent concerning the Supreme Court proceedings and press and television publicity with respect to the finding by the applicant and his partner of the gold nugget.
When the matter resumed on 14 August Mr Stagg said that the nugget was found during leave which he had commenced on 1 August 1995. Eventually the applicant applied for and was given permission to take his long service leave and he was then away from work for between two and three months.
The applicant said that he and his partner worked on the basis that one would operate the detector and the other would walk carrying a pick. The applicant said that he would detect for about two or three hours in the morning and about two hours in the afternoon. The particular detector being used at the time that the nugget was found was an SD 2000, which was then regarded as being state of the art. The applicant said that he had modified it by fitting a cover, he had changed the handle and was using a backpack different to that which was supplied with it. The detector was energised by a battery which the applicant estimated to weigh between 1.5 and 2 kilos and which was carried in the backpack.
The applicant said the detector was used predominantly by being carried in his right hand but its weight was suspended by a rubber bungee which was attached to the handle of the detector and to a clip on the backpack. The detector is used by a slow sweeping movement from side to side. The applicant said that he would walk slowly when detecting and then walk and detect in a grid pattern. He did not find that it caused him any discomfort in his neck or shoulder.
The nugget was found about 3 inches below the surface of the ground and it was dug out using the small pick that he or his partner would carry.
After the nugget was found on 17 August the applicant said that he did not go out prospecting again because of intense media interest in him and the Dunolly district where the nugget was found. He said there was one occasion where he did take his father prospecting but he reduced his activities for some time.
Mr Stagg said that he did purchase another detector in November 1998 after he had returned to work. He eventually sold his metal detectors after Mr Stagg moved to Ballarat.
In cross-examination Mr Stagg was taken to parts of the Statement of Claim issued in the Supreme Court proceedings. The claim in part referred to the contract between he and his partner Mr Sampson and specifically referred to the use by each or both of them of a metal detector. Mr Stagg said that at 1 August when leave was commenced he owned one ST 2000 metal detector. He had previously purchased it in the sum of $4,300. That detector was only used between the applicant and Mr Sampson up until 14th August. They therefore worked on the basis that one would use the detector and the other would survey the ground and use the pick. Another ST 2000 detector had been ordered and on 14 August Mr Stagg learnt that it became available and it was purchased. Therefore between 15 and 17 August (being the day that the nugget was found) both detectors were used. Mr Stagg therefore said that if the statement of claim was to be interpreted on the basis that at all times prior to 17 August two metal detectors were being used that an inference of that type was incorrect.
Mr Stagg said that in the weeks leading up to 17 August he and Mr Sampson had found about 8 to 9 ounces of gold including one find of a three ounce nugget. He said the area they were prospecting was "fertile" and they remained in that area until 17 August.

Mr Croyle produced a ST 2000 metal detector. Mr Stagg said that he had no difficulty using it if he "didn't go for too long". He said that when he got tired he would either rest or would use his left arm. On the occasions that the detector registered a "find" the detector would be put down and he and Mr Sampson would stop and use the pick.
When prospecting with the detector Mr Stagg said that he could stand and walk in an upright position with the detector being operated from his right hand and arm and would be moved in a sweeping position from side to side. He said the detecting coil at the end of the handle of the detector is protected by a skid plate, which protects it and permits the coil to largely remain on the ground. Therefore he said he is not taking the weight of the detector.
The detector and backpack produced by Mr Croyle contained a large battery. Mr Stagg said that he initially used the backpack and battery supplied by the manufacturer but later discarded the backpack because it and the battery caused his shoulders to become "tired". He provided a backpack of his own and discarded the larger battery and commenced to use a smaller battery. This he said, did not cause his shoulders to become tired.
A shovel pick was also produced by Mr Croyle. This was an implement having a timber handle of about 18 inches in length with a metal head comprising a pick type implement and a blade. It is carried from a hammer holster attached to a persons belt. Mr Stagg said that he would either carry the pick in the holster whilst surveying the ground or Mr Sampson would do that if he (Mr Stagg) was using the detector.
Geoffrey Strong
Mr Strong is the Sales and Administrative Manager of Minelab Electronics who manufacture the SD 2000 metal detector. He said that it was first produced in June 1995 and was then a state of the art item.
Mr Strong said that the detector itself weighs 2.7 kilograms and the backpack together with the supplied battery, headphones and leads weighs 2.9 kilos. The prospecting pick weighs 1.7 kilos. He said that carrying and using the detector was a physical activity that would cause fatigue however he found that using the spade pick was a more arduous activity.
Mr Strang said that Minelab did not produce a smaller battery until July 1998. He acknowledged that it was possible that a smaller battery not manufactured by Minelab could be used with its detector but said that it would void the warranty. He acknowledged that smaller batteries compatible with the ST 2000 were able to be obtained through other suppliers.
David George Vivian
Doctor Vivian has a number of post graduate qualifications and practices in pain management.
He examined Mr Stagg at the request of his solicitors in May 2001 but had previously treated upon referral from Doctor Kostos and Doctor Higgs. He had also supplied reports previously to Doctor Higgs and to Telecom, which were referred to in evidence.
As a result of his treatment since 20 January 1998 Doctor Vivian reached the conclusion that the applicant suffers from complex regional pain syndrome (previously known as reflex sympathetic dystrophy). Doctor Vivian described this syndrome as "something wrong with the nerve processing system". He said the syndrome can be either acquired by genetic predisposition or by nerve injury or by micronerve injury. He was of the opinion that trauma can precipitate the syndrome either by a single event or by multiple injuries over a period of time.
In his report to the applicant's solicitors of 21 May 2001 Doctor Vivian recorded at page 2-
"I still consider this man has a substantial injury to his cervical spine. I consider that the condition is work related and was initiated by the incident in 1990. He has had some exacerbations of pain since and I consider that in general nearly all his problem relates to the initial incident".
On examination in May this year Doctor Vivian noted that the applicant had sweaty palms which were also red in colour. He said these features were consistent with an abnormality of blood supply because of an abnormality in the sympathetic nerve system.
He was of the opinion that the applicant having returned to work and having previously engaged in shooting and gold prospecting was not inconsistent with chronic regional pain syndrome and thought that these activities might have aggravated the applicant's pain but would not have precipitated or aggravated the injuries.
It was his opinion that the applicant probably suffered a disc injury in the 1990 episode, which was subsequently been aggravated by a number of other episodes at the workplace.
In his opinion the injuries suffered by the applicant are permanent and he is unlikely to recover. He was also of the opinion that the applicant's employment continues to contribute to his current state.
With respect to the application for an impairment lump sum, Doctor Vivian reported a 20% impairment under Table 9.4 and a 10% impairment under Table 9.6.
In cross-examination Doctor Vivian confirmed that his diagnosis was that of complex regional pain syndrome with possible injury emanating from C8 and thoracic outlet syndrome. He acknowledged from a report that he wrote to Doctor Higgs that the latter condition is speculative.
In answer to questions from Mr Croyle, Doctor Vivian said that he relies on a patient's history and the symptoms when reaching a diagnosis. He was impressed by the applicant's complaint of pain from 1990 and was not aware of any activity other than work being responsible for his continuing pain and discomfort. He was aware that the applicant had been a gold prospector as a hobby. Having lifted the detector made available for these proceedings, he said that prospecting could affect the level of the applicant's pain but would not have exacerbated the precipitating work injury. In the event that the applicant had been prospecting for a number of years, Doctor Vivian was content with the history that he had received from the applicant namely responsibility for ongoing pain and discomfort arose from workplace incidents. He was not troubled by the applicant using a pick at ground level nor when kneeling but would be troubled if he had received a history of the applicant undertaking heavy work above shoulder height. He had no history of the applicant having suffered shoulder or neck injuries when playing football or when a member of the Army Reserve but he acknowledged that a rifle recoil might cause shoulder pain. With respect to the reports that he wrote to Doctor Higgs on 27 January 1998 and to Telstra on 29 January 1998, Doctor Vivian acknowledged that he initially recommended that the applicant should return to work despite the presence of pain, however it was intended that the applicant would only return to work on a trial basis as he reported to Telstra on 29 January 1998.
Hue Hadley
Mr Hadley is an orthopaedic surgeon who examined the applicant at the request of his solicitors and provided a report dated 4 September 2000. Mr Hadley was of the opinion that the applicant suffered cervical disc injury in the episode of May 1990 when the applicant struck a tree stump when driving a ditchwitch. In his report (page 2) Mr Hadley concluded that the applicant suffered "jarring" (to) his neck resulting in a chronic strain in the attachment of muscles to his cervical spine and from injury to his cervical discs". He was further of the opinion that the applicant suffered an aggravation of that injury on 20 June 1997 when working under a house and an MRI of the cervical spine of August 1997 showed degeneration at C2/3 to C6/7.
Mr Hadley acknowledged that a plain x-ray and a CT scan did not demonstrate a cervical disc injury, however he was of the opinion that the applicant's history of pain from his neck eventually radiating into his arms and his fingers were symptoms highly suggestive of disc injury with nerve root irritation. In his experience cervical discs vary in position from time to time and a prolapse or a bulge may not be apparent at the time of the CT or MRI or X-ray.
On examination Mr Hadley noted that the applicant was a relatively young man and in his experience it was also uncommon to have the degree of degeneration as suffered by the applicant in other persons of a similar age.
The witness said that it was unlikely that the applicant, having been engaged in shooting, golf and gold prospecting would have suffered further injury or aggravation of injury. He thought the applicant was more at risk of tripping or falling on uneven ground whilst prospecting rather than by the affect of carrying a gold prospecting implement. He said it was the applicant's work subsequent to the 1990 episode which caused him to be prone or vulnerable to further degeneration or aggravation of the neck injury which emanated from the 1990 episode. He said that the 1990 episode was significant because it involved operation of machinery with excessive vibration, which in his experience is known to cause degeneration and aggravation.
In cross-examination Mr Hadley maintained his opinion that the initiating cause of the applicant's neck injury was the episode of May 1990. He remained adamant that the applicant then suffered disc injury which he said was consistent with the extent of degeneration apparent on X-ray and by the extent of the applicant's symptoms subsequently. He dismissed the likelihood of disc injury in 1990 as being speculative. Whilst he acknowledged that not all of the applicant's symptoms subsequently have been caused by the 1990 episode, he said that that episode was the initiator and a number of other work episodes subsequently had aggravated the initial injury.
Mr Hadley said that it was unlikely that the prospecting tool would cause an aggravation of cervical injury but could cause him some discomfort and pain. He thought it was more likely that the use of the prospecting pick could cause pain or aggravation if it was used "for most of the day". He was also of the opinion that if the applicant had a weakness in his right hand or if there was a significant recoil when using rifles that the applicant might suffer an affect to his neck and shoulder. With respect to football the witness thought that the applicant could be affected if he "got a bad knock".
However Mr Hadley was quick to point out that the sporting or hobby pursuits of the applicant were "not as bad as using a vibrating machine which he did for many years".
Mr Hadley explained the presence of the applicant's neck, shoulder, arm and finger pain by reason of the irritation of cervical nerves because of degeneration in the cervical discs. That is to say it was his opinion that the cervical discs had "moved" and were pressing on a nerve in the spinal canal or nerve fibres within the cervical discs could have been irritated by degeneration of the discs. Either cause he said would be responsible for the referred shoulder and arm pain.
Max Higgs
Doctor Higgs is the applicant's treating general practitioner. He gave evidence by telephone from his rooms in Inglewood. When giving evidence he referred to his notes which had previously been made available to the parties.
On 14 May 1990 when Doctor Higgs attended Mr Stagg there was no history or record of injury outside employment. The notes then record a complaint of neck, shoulder and back pain.
On 19 April 1991 the notes record that the applicant suffered an exacerbation or an aggravation of pre-existing neck injury which Doctor Higgs then and now regarded as being a progression of the injury which occurred at May 1990.
Doctor Higgs has attended Mr Stagg on many occasions subsequently. He said on each occasion that there has been complaint with respect to his neck, shoulder and arm he had found tenderness and pain. He has recommended and referred the applicant for physiotherapy, massages and acupuncture and to specialists. He has also prescribed pain killing medication.
In support of his opinion that the employment with Telstra was responsible for the applicant's injuries Doctor Higgs, was taken to a letter that he wrote to the respondent on 30 May 1997 (T-49) where he sought permission to refer the applicant for a CT scan. He then recorded that the referral was "necessary because of continuing symptoms in the right side of his neck and right upper limb …..". Additionally he was taken to a letter he wrote to the respondent on 15 June 2000 (T-89). That letter was requested from the respondent with respect to continuing treatment. In that letter Doctor Higgs referred to the applicant's symptoms being due to his "previous duties" with Telstra. In evidence he said that he intended this expression to refer to his employment driving a ditchwitch, fixing faults and crawling under houses. He said he was aware of the applicant's employment and the nature of his duties. He said there was no other cause that was responsible for his ongoing complaints of pain and regarded the applicant as being truthful.
Doctor Higgs was aware that the applicant had engaged in shooting, golf and prospecting but said that in his opinion those activities were not responsible for his ongoing pain and discomfort.
In cross-examination Doctor Higgs agreed with Mr Croyle that a diagnosis of the applicant's injury remained unclear. He first treated the applicant on 14 May 1990 but Mr Stagg had been a client of his practice prior to that date. In fact on 27 March 1985 the applicant attended with a complaint of back pain, which was associated with driving a forklift.
On 14 May 1990 Doctor Higgs attended the applicant and he interpreted his notes when giving evidence. The notes record "3 day history pain - neck, shoulders, lower back. No particular precipitant. Has had a little in past. Relates symptoms to work on ditchwitch for Telstra". The notes thereafter refer to soft tissue tenderness however Doctor Higgs did not record the location and he could not recall when giving evidence where that tenderness did exist. He did record in his notes that the applicant had a good range of movement. A medical certificate issued on that day (T-4) records the injury as "back (soft tissue) injury".
On 18 May 1990 the applicant returned and again consulted Doctor Higgs. The notes record "therapeutic massage was helpful. Improvement with rest and Voltaren. Still some pain. 1. Cervical spine/occipant in rotation (illegible) of (illegible) 2. Left sacroiliac (illegible). On examination, lower back, sacroiliac and hips all normal".
On 25 May 1990 Mr Stagg again returned. Doctor Higgs recorded that he referred the applicant for physiotherapy. He also notes "initially more sore. To see physio again next week. Discussion - WC1/52 then aim for return to work".
On 1 June 1990 Doctor Higgs has recorded, apparently as a result of a consultation with Mr Stagg that the cervical spine had "resolved" and symptoms at the lumbo sacral spine had "very much improved". Doctor Higgs recorded that the applicant had returned to work but not driving a ditchwitch.
The next record of an attendance was on 29 December 1990. Doctor Higgs acknowledged that there was apparently no complaint to him of neck or back or shoulder pain between 1 June 1990 and 29 December 1990. On the later date the applicant attended only with respect to a productive cough. On 2 April 1991 the applicant attended in circumstances apparently unrelated to employment that there is a note of the applicant suffering anxiety. That was the only reference at that stage in the notes to the applicant suffering anxiety.
On 19 April 1991 Mr Stagg consulted Doctor Higgs who recorded "W/C - at work today - ricked neck. Physio today. Very much improved. Referral letter to patient to pass to Noel Dix" (Mr Dix is a local physiotherapist). A medical certificate issued by Doctor Higgs referable to the presentation on 19 April was completed on 14 May (T-23). It records the injury as "muscular injury to neck". Incapacity was certified for two days.
In a report dated 20 May 1991 addressed to the employer (T-24) Doctor Higgs referred to the episode of 19 April 1991. He then recorded that the applicant "acutely ricked his neck". Doctor Higgs concluded in his report that "as far as I know the condition has resolved promptly and I have not seen him subsequently and would not anticipate having to do so. I don't think there is any other relevant matter that may be important with regard to a possible ongoing problem with his cervical spine".
Mr Stagg consulted Doctor Higgs again on 28 May 1992, then for right knee injury. He then wrote a report to Telstra (T-36) which concluded, "I don't think that there should be any restriction at all imposed on the employees capacity for employment". When asked to comment upon this report by Mr Croyle, Doctor Higgs said that he intended those comments to refer only to the applicant's right knee and did not intend that those comments were referable to the applicant's back or neck injuries.
On 2 July 1993 Doctor Higgs saw Mr Stagg. His notes record that the applicant then had "pain in back of neck and headache - radiates to right frontal region. Unsure how long (illegible) on examination looks well. BP (illegible) slight pain in (illegible) cervical spine".
On 11 August 1993 Doctor Higgs has recorded "discussion of right cervical pain. Worse when driving - looking under houses. (illegible) on examination (illegible) cervical spine - good range of movement. Refer to physiotherapist". Doctor Higgs acknowledged that there was no record then made of any specific event or incident, which gave rise to that consultation and he could not recall when giving evidence of any specific incident.
Thereafter the applicant attended Doctor Higgs on a number of occasions for unrelated illnesses and conditions until 22 August 1996 where his notes record "recurrence of pain in cervical spine. Previous problems with - ditchwitch - crawling under houses - (illegible) to occipant right, right shoulder - tender point right scapular". Doctor Higgs acknowledged that he again had not recorded any specific event and agreed that the notes would suggest that the presentation was with respect to a recurrence of prior injury or pain. He acknowledged that the notes had no mention of any neck or back or shoulder or arm pain in the intervening period of 3 years however he said that he would not necessarily have always recorded in his notes any complaint of pain that may have been made to him by Mr Stagg. He said it would have been possible for Mr Stagg to refer to neck and back pain, which may have been discussed but not necessarily recorded.
On 20 September 1996 Doctor Higgs notes record "continuing problem with cervical spine, right scapular, right shoulder (illegible) worse at end of day".
On 3 January 1997 Doctor Higgs has recorded that he has requested a referral of the applicant to a physiotherapist for treatment of his shoulder and right scapular. The notes also record (for the first time) on 11 February 1997 that the applicant complained of altered sensation in his right upper limb and right arm. Doctor Higgs agreed that had these complaints been made earlier that they would have been recorded. Doctor Higgs referred Mr Stagg then for x-rays and on 12/2/97 Bendigo Radiology (Exhibit 13) reported that the right shoulder did not demonstrate any soft tissue calcification or other abnormality. The thoracic inlet did not demonstrate any abnormality and there was no cervical rib. However mild degenerative changes were noted at C6/7 level.
With respect to the complaint of altered sensation Doctor Higgs agreed that this would be subjective only and was a complaint made to him by the patient. He did not determine or detect the cause of that altered sensation and said in any event it could not have been identified by examination. He eventually referred Mr Higgs to Doctor Rosenfeld a neurosurgeon in Melbourne (Exhibit 12) who in a report of 4 September 1997 thought that the applicant's pain was soft tissue and there was no indication for surgery. He suggested that a rheumatologist's opinion may be useful however he concluded, "I believe that there is a significant psychosomatic element to his problem and the workcover issues may be influencing his recovery pattern, which is unduly slow. Is there some problem with the work environment that we don't know about?". Doctor Higgs said that he did not agree that there was a significant psychosomatic problem and he had no information to suggest this was a cause of the applicant's pain. He did note however that Doctor Rosenfeld did not locate any neurological cause for the applicant's pain.

Eventually Doctor Higgs referred Mr Stagg to Doctor Vivien and to Doctor McCarthy. Having received reports from those Doctors, Doctor Higgs reaffirmed that the diagnosis of the applicant's cervical and right shoulder injury was unclear.
Doctor Higgs again reaffirmed that he would not necessary record every complaint made to him by the applicant when asked to comment as to why there were no continuing references to a complaint of altered sensation. Doctor Higgs said that he could recall complaints of this type and referred in his notes to an expression (that he uses) of "much the same". He said this expression refers to prior complaints made by the applicant. He said he had specific recollection of the applicant complaining on a number of occasions of altered sensation.
Doctor Higgs was of the opinion that the applicant had remained "static" for the last three or four years. He was aware that the applicant had engaged in prospecting and had been a member of the Army Reserve. He said he had no specific knowledge of his hobbies or recreations.
In re-examination Doctor Higgs acknowledged that his earlier notes after the 1990 episode could be interpreted as the applicant complaining of injuries which were then self limiting and discrete, however he said in hindsight the injuries and episodes arising out of work have all contributed to the applicant's ongoing complaints of pain and discomfort. He said the applicant had been consistent in his complaints and he regarded the pain and discomfort as being limiting.
With respect to the comment by Doctor Rosenfeld that the applicant suffered a psychosomatic component to his complaints, Doctor Higgs said that such a component would exist in every patient however in the case of Mr Stagg he did not regard a psychosomatic element as being significant. He said that the applicant had been a patient for many years who impressed him as a person who wished to return to the workplace as soon as was possible and "get on with his life and function within the limitation of his symptoms".
It was his opinion that the employment with the respondent had materially contributed to his condition and there was nothing else to suggest that there was any other cause.
Elizabeth Lenaghan
Doctor Lenaghan is a consultant surgeon specialising in rheumatology. She examined the applicant at the request of the respondent and provided a report dated 29 November 2000.
When examined by Mr Croyle she affirmed the contents of her report and relied on her conclusions which in effect were that the applicant did not suffer from an organic physical injury or condition but rather he suffered from a chronic pain syndrome which was "an expression of psychological or social stressors". It was her opinion that he initially suffered a soft tissue injury, which would have resolved between three and six months after onset and that Mr Stagg did not have any ongoing incapacity for work. She thought he had no impairment with respect to his right upper limb but did have a 5% whole person impairment with respect to his cervical spine "due to age related degenerative changes".
In cross-examination Doctor Lenaghan said that she did not examine the applicant with the use of a ganiometer. Accordingly, she said that where she had recorded a measurement of movement and rotation she did not intend those recordings to be accurate.
With respect to her reference to age related degenerative changes (page 7) she said she intended it to mean in comparison to persons of similar ages. She disagreed with opinions expressed by Doctor Kostos and Mr Hadley that the degree of degeneration was not expected in a person of the applicant's' age and said that "you don't have to be 40 to see these things".
Doctor Lenaghan said that the absence of a prolapse or a protrusion of a cervical disc as evident by an x-ray or CT scan or MRI would not necessarily absent the possibility of injury but she said that the absence of such a prolapse or protrusion would amount to the absence of a significant injury. She thought there was no possibility at all of the applicant having suffered a prolapse or a protrusion and said that in her opinion he did not have any disc injury. She said she disagreed with the opinions of Mr Hadley and Doctor Vivien of the applicant having a cervical spine injury and disagreed also with opinions of Doctor McCarthy that the applicant had a facet joint syndrome. She thought that the applicant suffered from a chronic pain syndrome only.
In re-examination Doctor Lenaghan said that in her experience persons can have radiological changes without symptoms.
Edward Schutz
Mr Schutz provided a report at the request of the respondent on 28 March 2000 following an examination of the applicant. He is a consultant surgeon and has been in practice since 1972. Doctor Schutz relied on his reports and to the opinions then expressed.
In cross-examination Doctor Schutz said that he had no history of the applicant having suffered any acute injury to his shoulder. He was only provided with a history with respect to episodes in 1990 involving a ditchwitch and in 1993 when driving a motor vehicle. He said those episodes would not have caused his current complaints of pain. He said the applicant only ever reported symptoms and not injuries. He had no history or record of any incident in 1996 involving working from a manhole or any episode later of working under a house installing cables. In cross-examination Doctor Schutz said that there was no correlation between radiological findings and symptoms. He agreed with the opinion previously expressed by Dr Lenaghan that radiological changes alone would not be responsible for symptoms of pain. He said that having regard to the extent of the applicant's degeneration, he might suffer from stiffness and soreness but the extent of cervical degeneration would not account for the pain experienced in his neck, shoulder and arm. Additionally, he said he could find no neurological basis for the applicant's complaint of pain.
Harold Schaeffer
Doctor Schaeffer is a consultant neurosurgeon who examined the applicant at the request of the respondent on 15 November 2000. He provided a report dated 23 November 2000.
In his report Doctor Schaeffer said that he could not provide a diagnosis of any physical injury affecting the applicant's neck. He thought the applicant had suffered from a soft tissue injury that would have been temporary in nature and should have resolved "a long time ago". He said there was nothing to indicate that the applicant presently suffered from any aggravation of any pre-existing injury and was not satisfied that the employment of Telstra had contributed in a material degree to any condition that he may suffer from. Doctor Schaeffer was also of the opinion that the applicant had not suffered from any permanent impairment.
In response to questions from Mr Croyle Doctor Schaeffer was referred to page 6 of his report where he observed that the applicant was "guarded" during formal examination of his neck however he was observed, when relaxed, to not have any neck restriction. Doctor Schaeffer also noted that the applicant did not have any wasting of shoulder girdle muscles, which indicated to Doctor Schaeffer that the applicant was capable of normal movement of his right arm.
At page 5 Doctor Schaeffer recorded that the applicant had "markedly emphasised his medical condition and embellished his symptoms. He created an impression of being a man with an obsession". The witness said that these comments arose from his impression of the applicant but there was nothing specific that he could point to in support of these conclusions.
In cross-examination the witness said that he did not use a ganiometer to measure range of movement because he said it was not part of neurosurgical practice. He said his comments as to range of movement were by observation only.
With respect to his recording of the outcome of an MRI scan of 20 August 1997 Doctor Schaeffer said he could not recall whether he observed the films or whether he observed a report only. He acknowledged that he did not refer to any observation of plain x-rays but said that an MRI would be more detailed.
The witness said that he found no objective signs of injury and his conclusions as to the applicant embellishing and being obsessed were observations that he made which - when pressed by Mr Horner - he said were "difficult to describe or record".
Because the witness was unable to objectively find any injury it was his opinion that any pain suffered by the applicant was of doubtful significance.
Conclusion & Reasons For Decision
These applications were heard over three days and a number of witnesses were called to give evidence. On reflection of the evidence heard and again reading the documents filed in these proceedings, I have concluded that the most significant witnesses were the applicant and his treating general practitioner Doctor Higgs.
The applicant impressed me as a witness of truth. He was observed for four hours in evidence in Ballarat and another two hours giving evidence on the second day of hearing in Melbourne. His posture when giving evidence in Ballarat was to remain with his right hand and arm resting on his right thigh. This he said was consistent with right arm weakness yet despite the attack made on him by other medical witnesses as to his credibility I am not satisfied that the applicant did seek, nor has sought in the past to embellish his pain and discomfort. At one stage whilst giving evidence in Ballarat the applicant broke down and cried and left the hearing room after he recounted episodes of distress by reason of pain and his feelings of worthlessness. I am not satisfied that the applicant's reactions then were contrived but were an expression of genuine emotion.
The impression I have of the applicant, having observed him and having read the medical reports and read the T-documents and heard from Doctor Higgs, is that of a person who had been engaged for many years in hard physical work with the respondent, often involved in heavy activity and working in cramped confined conditions. Similarly the applicant is a person who has continued to seek work and actually work. I was impressed by his early work history of seeking an apprenticeship in Melbourne but being uncomfortable with city life, returned to Inglewood, thereafter obtained employment in an abattoir and at the Bridgewater Flour Mill. Apparently having injured his back at Bridgewater, he was off work for a relatively short period and then returned to work. He obtained a labouring type position with Telstra and thereafter sought a number of training programs and qualified for higher positions. This behaviour in my view is consistent with a person who is keen to advance himself, to earn income and to provide for his family. Similarly his community activity of membership of a local football club, playing games when needed, qualifying as a relief ambulance driver and voluntary membership of the Army Reserve are indicative of a person who is community spirited, generous in the time that he gives to others and apparently is well respected having regard to approximately 150 people attending a surprise birthday party recently arranged for him.
None of this behaviour is consistent in my view with a person who is obsessive or embellishes his symptoms as was reported by Doctor Schaeffer. I would at this stage indicate that I thought the report of Doctor Schaeffer was of minimal assistance. I thought his evidence was of equally poor value. It seems to me that Doctor Schaeffer was more content to annihilate the character of the applicant rather than to be of assistance in expressing a medical opinion based on sound medical reasoning. The conclusions reached by the witness as to the applicant's character were on his own admission a "general impression" and "nothing specific". Having concluded that the applicant had no significant neurological findings, it followed according to Dr Schaeffer, that the applicant therefore could not be suffering the pain as he expressed or had any ongoing symptomatology relating to his former employment.
Similarly I thought the evidence of Doctor Lenehan was of dubious weight. She was dismissive of the opinions of other Doctors, she thought that the extent of degeneration reported by others was not significant and the absence of any radiological evidence of cervical prolapse or protrusion was in her opinion an indicator of the applicant not having any significant injury.
There is no dispute that the applicant did suffer a number of episodes at work for which he did make specific claim and for which liability was eventually accepted. When the notes of Doctor Higgs were observed a conclusion could be drawn that in isolation each episode was discrete and involved a minimal period of incapacity. By reason of the applicant having in recent years been engaged in administrative and clerical work only it would be understandable for an outsider to conclude that the effects of the work related physical injuries had now resolved. I do not hold that view.
I am satisfied that the incidents which occurred within the Telstra employment cannot be taken in isolation and need to be looked at in combination. Additionally, the applicant continued to engage in heavy physical activity between each episode of specific complaint and claim. That the applicant first complained of referred right arm and shoulder pain in 1996 is in my view consistent with continuing assaults upon the applicant's neck by heavy employment, initiated by the 1990 episode when driving a ditchwitch and episodes subsequently. Those subsequent episodes in my view - consistent with the evidence particularly of Doctor Vivian and Mr Hadley - amounted to the early onset of cervical degeneration. I am satisfied that the applicant does suffer significant discomfort and pain in his neck, right arm and shoulder and to the extent that a number of doctors reported that the applicant had a moist right hand which was also red in appearance, I am satisfied - consistent with the explanation given by Doctor Vivian - that that is an indication of a complex regional pain syndrome having its origin in cervical nerve injury.
I was impressed with the evidence of Doctor Higgs. He interpreted his notes and gave an account of his treatment of the applicant over the last 11 years. In so doing he provided a rational explanation of his observations of the applicant over the yeas of treatment and was dismissive of suggestions made by others that the applicant's account of pain and discomfort had an emotional origin. He has been in a position of being able to assess the credibility of Mr Stagg and was not a witness engaged by either party. Whilst the majority of the medical witnesses consulted the applicant on one occasion only and often with an incomplete history, I am satisfied that their opinions are not to be preferred to the conclusions and opinion of Doctor Higgs.
This was an application also where considerable significance was placed upon the applicant's hobbies and social activities outside employment. The evidence of gold prospecting took a significance which when analysed and considered during the proceedings was probably not warranted. I understand that the respondent learnt of the applicant's prospecting activities and his prior litigation subsequent to the conciliation conference previously convened. Had these activities been known at that time, the issues associated with prospecting could have then been discussed and it may have been that the significance of those activities could have been dismissed. Clearly the applicant was involved in gold prospecting and did have the good fortune to make a significant find. The subsequent litigation in my view may have caused some anxiety but it would not have been responsible for the applicant's ongoing physical pain which, having regard to the previous findings I am satisfied does have an organic origin. Additionally, having observed the prospecting tool made available in these proceedings I am not satisfied that it did contribute to the injury suffered by the applicant but at best would have caused some discomfort or pain with prolonged use. There is nothing in my view to indicate that the use of the prospecting tool and/or the prospecting pick was responsible for any neck, shoulder or arm injury. There is nothing to indicate that the applicant's use of a rifle, whilst a member of the Army Reserve, or as a member of a local gun club, was responsible for any shoulder or neck injuries nor is there any evidence that the applicant suffered shoulder or neck injuries when playing football.
In all of the circumstances I am satisfied that the decision in application V2000/1123 should be set aside. In that decision it was decided by the respondent that its liability to pay compensation to the applicant beyond 19 July 2000 should cease. I am not satisfied that the effects of injury did then cease nor am I satisfied that the respondent's liability beyond that date should cease. I am satisfied that the applicant continues to suffer from the effects of injury to which there was a material contribution by the employment.
With respect to application V2000/895 I am also satisfied that the applicant has suffered a permanent impairment. The relevant tables are 9.4 and 9.6 of the guide to the assessment of the degree of permanent impairment.
With respect to the applicants cervical spine, I am satisfied that an appropriate description of the level of impairment under Table 9.4 is 'minor restriction of movement' attracting a 5% impairment. This is consistent with the opinions of Mr Hadley and Dr Lenehan. Although Dr Vivian was of the opinion that the impairment was 10%, the applicable criteria for this rating is 'loss of half normal range of movement' which I am not satisfied exists.
With respect to the applicant's shoulder, I am satisfied the appropriate description of impairment under Table 9.4 is the criteria found against an assessment of 20%. I am satisfied that a 20% impairment is appropriate under this Table because the applicant does have difficulties with 'grasping and holding' and this assessment is consistent with the opinions of Dr Vivian and Mr Hadley. The assessment by Dr Lenehan of 0% under this Table is inconsistent with the evidence.
Mr Horner took the applicant through his s.27 questionaire, a copy of which is found within the T-documents. On the basis of that document, the evidence heard and the reports received into evidence, I am satisfied that the appropriate assessments under Tables 1 and 2 of Part B of the Guide are as follows-
Pain  3
Suffering  3
Mobility  1
Social Relationships          1
Recreation & leisure           3
In all of the circumstances, the decisions under review are set aside and in substitution it is decided that the effects of injury have not ceased and are continuing. The application is otherwise remitted to the respondent for calculation of compensation in accordance with these reasons.
The applicant is also entitled to have his legal costs paid by the respondent.
I certify that the 119 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ......C. Irons ...................................................
  Secretary
Date/s of Hearing  14 June, 14 August &15 August 2001
Date of Decision  6 September 2001
Counsel for the Applicant        Mr N. Horner
Solicitor for the Applicant
Counsel for the Respondent    Mr Croyle
Solicitor for the Respondent