Stephens and Australian Postal Corporation
[2011] AATA 824
•21 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 824
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/1492
GENERAL ADMINISTRATIVE DIVISION ) No: 2011/1670 Re LARRY STEPHENS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr I S Alexander, MemberDate21 November 2011
PlaceSydney
Decision The Tribunal affirms the decisions under review. ....................[sgd]........................
Ms N Isenberg
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – injury – aggravation of pre-existing injury – whether injury or aggravation was temporary – decisions under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 27, 28(4)
REASONS FOR DECISION
21 November 2011 Ms N Isenberg, Senior Member
Dr I S Alexander, Member
BACKGROUND
1. From May 2009 until January 2010, Mr Stephens was employed by Australia Post as a Driver/Sorter at its Gosford hub in Lisarow. Prior to his employment he had undertaken a pre-employment medical examination in April 2009. On the face of the pre-employment assessment there was no record of Mr Stephens having reported previously suffering a prior back injury while working for Telstra in December 1998. On 3 December 2009 Mr Stephens sustained an injury during the course of his employment at Australia Post.
2. Mr Stephens made a claim for worker's compensation on 9 December 2009 in respect of 'lumbar-hip strain', liability for which was accepted by Australia Post on 13 January 2010. Australia Post made determinations under section 19 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) in respect of periods of incapacity from 7 to 11 December 2009 and 17 and 24 December 2009.
3. Mr Stephens’ employment was terminated on 7 January 2010. He has disputed the termination on the basis of a breach of the Fair Work Act 2009. After Australia Post terminated his employment, Mr Stephens claims to have applied, without success, for various positions.
ISSUES FOR DETERMINATION
4.Application 2010/1492 (the first matter):
·Whether, as at 8 January 2010, Mr Stephens was entitled to compensation under section 19 of the SRC Act in respect of the injury;
·Whether, having regard to section 4(9) of the SRC Act, as at 8 January 2010, the injury gave rise to an incapacity of Mr Stephens to engage in any work, or to engage in work at the same level at which he was engaged by Australia Post immediately before the injury of 3 December 2009;
·If Mr Stephens had an incapacity for work for the purposes of section 4(9) of the SRC Act whether, as at 8 January 2010, there was entitlement to compensation under section 19 of the SRC Act in respect of the injury.
5.Application 2011/1670 (the second matter):
·Whether Mr Stephens sustained a 'musculo ligamentous injury to the lumbar spine' on 3 December 2009 and, if so, whether the injury was only a temporary one and came to an end no later than 8 January 2010;
·Whether from 8 January 2010, and as at the current date, the injury has resulted in incapacity for work, or impairment or the need for medical treatment, and if so, whether Mr Stephens is entitled to compensation under sections 16 and 19 of the SRC Act in relation to the injury;
·Whether Australia Post is liable to pay compensation to Mr Stephens under section 14 of the SRC Act for a degenerative condition of the lumbar spine or for any aggravation of any degenerative condition of the lumbar spine sustained on 3 December 2009;
·Whether section 7(7) of the SRC Act applies to disallow Mr Stephens’ claim for back injury, being a disease, arising out of his employment with Australia Post and whether section 7(7) applies to disallow Mr Stephens compensation for a degenerative condition of the lumbar spine or for any aggravation of any degenerative condition of the lumbar spine sustained on 3 December 2009.
6. It was agreed that the issues for determination in the first matter were subsumed by those in the second.
LEGISLATIVE FRAMEWORK
7. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular:
8. Section 4(9):
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
9. Section 7(7):
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
10. Section 14:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
11. Section 16:
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment…
…
12. Section 19:
Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings. NWE – AE
…
EVIDENCE OF THE APPLICANT
13. Mr Stephens provided four statements and gave sworn evidence and was cross-examined on behalf of Australia Post.
14. Mr Stephens gave evidence that he had injured his back lifting a pit lid while at Telstra in 1998 and his right leg was ‘paralysed’. He received mixed medical advice but ultimately Professor Gabriel performed a lumbar discectomy in 2002. The operation produced a scar of about two and a half to three inches long. He understood that as a result of the operation the pain would subside and he would be able to return to normal duties. His recovery took longer than Professor Gabriel anticipated and he was confined to bed for about six months. A variety of home aids were required such as handrails, a long-handled brush for showering and an automatic roller door. He agreed that his GP’s medical records show that through 2003 he continued to complain of persisting lower back pain and numbness in both thighs.
15. Mr Stephens said he had made a full recovery by, at the latest, 2004 – ‘it took years’.
16. He was ultimately medically retired by Telstra in July 2000, without having resumed full-time work. After he left Telstra he bought a truck and did contract truck driving, working an average of 12 hours a day. The work was very erratic so he went to work for Corrective Services for about 12 months transporting inmates. In January 2007 he hit his head while entering a truck, damaging his cervical spine. When he returned to work he was fit for suitable duties but with the lifting restriction of 20 kilograms. He left Corrective Services in October 2008 and did some security work.
17. He applied for a job at Australia Post and he was sent for a pre-engagement medical at the Bateau Bay Medical Clinic on 9 April 2009. He was handed a form to sign but he said he did not have a chance to read it because ‘within a minute’ he was called into the doctor's surgery. He just flipped through it. He said at the beginning he was trying to do it carefully. He wrote that he had had a severed tendon, which dated back to 1980, because he thought the numbness in his hand might affect the job. When he got to questions about other injuries he thought they had resolved. He said that he no longer had back pain as that had resolved 11 years previously so he quickly wrote ‘no’ and thought he would talk to the doctor about it. As to the neck injury, he said Corrective Services had already admitted liability and he did not think it was going to affect the job by ticking no because Australia Post ‘would not be up for any liability’.
18. He was cross-examined at length about his entries on the form.
19. At Part A Q6 on the form, relating to his occupational history, he was asked and answered:
Have you ever had an injury or disease at work?
(No)
20. He said he had never had a disease and his injury had resolved. He said he was confused, but thought it was about a disease, and it ‘doesn’t say “in the past”’. It was a two part question.
21. At Part B Q4, relating to his medical history, he was asked and answered:
Do you have difficulty sitting or standing (or being “on your feet”) for between 5 to 8 hours per day?
(No)
22. He said that at that time he had no difficulty.
23. In his statement dated 21 March 2011 he wrote that he had not experienced any back pain since the discectomy 11 years previously.
24. At Part B Q8 he was asked and answered:
Have you had any operations? If YES, please specify type of operation and approximate date.
Type: Right Arm Tendon Severed. Year (Approx.): 1980.
25. He said that he did not recall what the operation was called so left it blank. He knew that if he wrote of his severed tendon it might affect his job.
26. At Part B Q19 he was asked and answered:
Do you or have you ever had the following?
Item No. 19: Back pain, disc problem?
(No)
27. He said he just answered the questions quickly. He denied he was trying to conceal his prior back injury
28. At Part B Q20 he was asked and answered:
Do you or have you ever had the following?
Item No. 20: Sciatica or leg pain?
(No)
29. He said he answered the question in haste and was about to see the doctor. He would have to strip off and the doctor would see the scar.
30. At Part B Q24 he was asked and answered:
Do you or have you ever had the following?
Item No. 24, Treatment on back or neck?
(No)
31. He said that Australia Post did not give him time to read the form. He said he just went down the page answering ‘no’.
32. At Part B Q41 he was asked and answered:
Do you or have you ever had the following?
Item No. 41, Haemorrhoids?
(Yes)
33. He said he could never forget that, and also the fact that he ‘is deaf’.
34. He said that he told the doctor about his past back operation. He had stripped off his shirt so the doctor would have seen the scar. He added that he showed him the scar and asked him the name of the procedure. He said he also told the doctor about his neck problems.
35. He agreed in cross-examination that he had prior experience of not getting jobs because he had revealed injury. He denied that he had tried to conceal his earlier injury, because he knew the doctor would see the scar. Anyway, by the time of the examination his back problem had been resolved ‘for years’.
36. He was referred in cross-examination to an entry in the records of Dr Shah, his present GP, dated 1 May 2009, which was 22 days after the pre-employment medical (reproduced verbatim):
Surgery consultation recorded by Dr Pravesh Shah on 01/05/2009
Friday May 1 2009 10:43:31
Dr Pravesh Shah
History:
Pain in the rt lower back .Has had it for a few weeks .
Previous lumbar discectomy.
Examination:
Lumbar spine:
Tenderness along rt side of lowar lumbar spine .
Movements painful
A) ? Disc pathology
P) CT and review.
Actions:
Diagnostic Imaging requested: CT – Spine – Lumbosacral spine
37. He said he attended Dr Shah in connection with the Corrective Services claim, and to ascertain if he was capable of performing the job that Australia Post was offering. He said he complained to Dr Shah that when he had been examined by Dr Rastomjee he had aggravated his back and he was stiff and sore. He said it was a different pain to his Telstra injury. He agreed he had not made any complaint to Dr Rastomjee in the course of the examination. He denied that he had had the pain in the lower back for a few weeks, as Dr Shah’s note records. The note of movements being painful, he said, related to his neck. That Dr Shah sent him for a CT scan of his lumbar sacral spine was, he thought, probably as a precaution. The doctor could have made a mistake. It was also brought to his attention that he had consulted Dr Shah on 17 April 2009, that is, eight days after the visit to Dr Rastomjee and that there nothing is recorded in respect of back pain. He said he was not sure he did not tell Dr Shah then too, although he wanted to separate ‘“Medicare” issues from “comp” issues’, and that just because it was not written down did not mean he did not experience difficulty getting up and down from the doctor’s bed.
38. Mr Stephens commenced work at Australia Post in May 2009. On 3 December 2009, at the end of his shift, while attempting to alight from his delivery van his foot became caught between the van and the curb and he twisted as he fell and landed heavily. He thought he had broken his hip because that was the site of the pain. The pain became worse overnight notwithstanding using Dencorub and taking Panadeine Forte. He was ‘bedridden’ over the weekend. Because the accident occurred on a Friday he was unable to see a doctor until the following Monday, by which time he was ‘unable to put his foot to the ground’. He said he told Dr Shah he had hurt his hip and denied that he had said he had ‘developed sudden low back pain’ as the doctor records in his notes. He thought he also told Dr Shah that the pain went down his legs. Dr Shah gave him five days off work, prescribed Endone and referred him to Erina Diagnostics where he had a CT guided injection, which he said provided some relief. He then returned to work. He had another two days off – on 17 and 24 December – for further injections. He had four injections and said he improved after each.
39. Since 7 January 2010 he has had three further CT guided injections. He said he continues to suffer pain.
MEDICAL EVIDENCE
Dr Shah
40. Dr Shah has been Mr Stephens' treating doctor since September 2008. He became aware of his patient’s previous back injury from his work at Telstra a few months after he was first consulted by Mr Stephens.
41. Dr Shah was referred in cross-examination to his clinical notes to the effect that Mr Stephens had consulted him about his back on 1 May and 8 May 2009, that is, prior to the incident giving rise to the claim. Mr Stephens had complained to Dr Shah that he had pain in his right lower back, and he told Dr Shah that he had had it for a few weeks, and Dr Shah made a reference to the prior lumbar discectomy. Dr Shah’s notes of examination record ‘tenderness along the right side of the lower lumbar spine, movements painful’, and Dr Shah requested on 1 May 2009, that he undergo CT imaging of his lumbar spine. On 8 May 2009 the doctor prescribed Voltaren and ceased a prescription of Brufen, and, in his evidence, said that that prescription of Voltaren was in relation to the complaint of back pain.
42. On 7 December 2009, when Dr Shah was first consulted after the incident on 3 December 2009, he provided a Workcover certificate in which he diagnosed ‘lumbar strain injury’. He considered Mr Stephens unfit to work from 7 December 2009 to 11 December 2009. When next he saw Mr Stephens, on 11 December 2009, he described the condition as 'lumbar spine injury' and considered Mr Stephens ‘fit for suitable duties from 14 December 2009 to 18 December 2009 ... [with] capabilities for 8 hrs/day 5 days/week - lifting up to 10 kgs/walking up to 50m/sitting up to 30 min/standing up to 30 min’.
43. Dr Shah sent Mr Stephens for a CT scan in which it was noted that Mr Stephens had twisted his hip and that he had chronic radiating pain since a previous discectomy 10 years earlier.
44. Mr Stephens’ condition had improved with the injections that had been ordered. On 21 December 2009 he was still experiencing ‘a twinge now and again’ but ‘movement [was] improving’. He was found to be fit for suitable duties from 21 December 2009 to 23 December 2009 with the same restrictions. On 24 December Mr Stephens attended for a guided injection and was therefore unfit for work that day.
45. On 29 December 2009 Dr Kudumula, Mr Stephens' treating doctor during Dr Shah's absence, diagnosed 'lumbar spine sprain’ and considered Mr Stephens fit for suitable duties from 29 December 2009 to 12 January 2010, with no restrictions other than lifting less than 20 kilograms. He was reported as feeling back to normal and experienced no pain.
46. In respect of the period 12 January 2010 to 12 February 2010, Dr Shah was of the same view as previously, but added restrictions as to sitting and standing up to 20 minutes.
47. Dr Shah said in cross-examination that since 7 January 2010 Mr Stephens' back condition has waxed and waned and that this is a natural history of a degenerative back condition. He agreed that it was possible that what had occurred to Mr Stephens on 3 December 2009 had temporarily made him worse for a few weeks but then subsided, leaving the underlying condition. He believed there were many things which contributed to Mr Stephens' present condition; there are some underlying back problems which were aggravated by the injury of 3 December 2009. He believed that injury was ‘some sort of soft tissue injury’. He confirmed that the ‘disc protrusion’ referred to in the diagnostic imaging report is a soft tissue injury and, in his view, most disc protrusions would resolve without too much intervention. He said that the disc bulges were more likely than not due to his underlying condition.
48. Later, on 12 February 2010, Dr Shah considered Mr Stephens fit for suitable duties from 12 February 2010 to 12 May 2010 but only for four hours per day four days per week, with restrictions against lifting more than 10 kilograms and sitting and standing limited to 20 minutes.
49. A report dated 24 August 2011 was tendered at the hearing to the effect that Dr Shah had ordered the CT scan to be performed on 9 December 2009 because Mr Stephens had had a prior back injury. He considered the changes described in the radiological report were consistent with the symptoms Mr Stephens presented with. As to the recent radiological report dated 3 August 2011 he confirmed it was consistent with his earlier diagnosis of lumbar strain/lumbar disc protrusions. He wrote that Mr Stephens has been suffering from lower back pain since and that the injuries sustained in the accident of 3 December 2009 are a significant contributing factor to his lower back symptoms.
Dr Powell, orthopaedic surgeon
50. Australia Post referred Mr Stephens to Dr Powell. In his report dated 16 July 2010, Dr Powell diagnosed Mr Stephens as having sustained a muscular ligamentous injury and aggravation of pre-existing multi-level degenerative lumbar disc disease on 3 December 2009, and that Mr Stephens continued to suffer symptoms relating to the workplace incident. Dr Powell expressed the opinion that Mr Stephens' current symptoms represent an aggravation of his pre-existing pathology, and that the aggravation is ongoing and he remained symptomatic. He considered Mr Stephens to have followed a fairly predictable path following a recurrent lower back injury. He did not believe that Mr Stephens' current symptoms may have developed as a result of progression of his pre-existing condition and that the reported workplace incident was sufficient to have resulted in the aggravation alleged. He considered Mr Stephens to remain partially incapacitated as a result of injuries sustained in the workplace incident. Mr Stephens reported constant lower back and radiating lower limb pain which impacts in a significant fashion on his activities of daily living and his ability to work. Dr Powell did not believe that Mr Stephens was fit to return to his full pre-injury duties, and recommended that he be placed on suitable duties with restrictions that include not lifting in excess of 10 kilograms, and avoiding repetitive bending and twisting manoeuvres. Further, he recommended he should alternate his tasks where possible and have regular rest breaks; he commence on reduced hours, for example four to five hours per day on four to five days per week. His hours could be increased and restrictions lifted in a graduated fashion under the supervision of his treating doctor. He considered Mr Stephens to be fit to perform supervisory duties, office work or light process work.
51. Dr Powell’s report was not relied upon by the Respondent but was tendered by the Applicant. The Respondent made Dr Powell available for the Applicant to call him to give evidence. He in fact added little in his evidence in chief although he expressed the view that further treatment may lead to improvement in Mr Stephens’ level of symptoms.
52. In cross-examination by counsel for the Respondent, however, Dr Powell said that it was his understanding, from what he had been told, that Mr Stephens’ symptoms following the Telstra injury had completely resolved, and he had been able to resume his pre-injury duties with Telstra. Mr Stephens did not report to him that he had experienced any back pain between the time he ceased work at Telstra and when he started work at Australia Post. Further, Mr Stephens had said nothing about injuring his neck while working at Corrective Services as a result of which he had a lifting restriction. He was unaware of Mr Stephens’ complaints to his GP in relation to his back in May 2009.
53. Dr Powell said that it was in the nature of that longstanding degenerative change to his back that occasionally there would be symptoms, and possibly his lower limbs, producing sciatica. He was of the view that it was more likely than not that the events of 3 December 2009 produced only a temporary effect upon Mr Stephens and he would be left with the underlying condition. As to how quickly the condition could be expected to resolve he was reliant upon the veracity of the patient, especially as to the mechanism of the injury. He considered any musculo-ligamentous injury he sustained could have resolved within weeks and that any worsening of the underlying spinal disease would have been temporary and that also could have resolved within a few weeks.
54. As to the weight restrictions, he said that in circumstances where the underlying condition as late as May 2009 had not resolved, those restrictions would be advisable for the underlying condition.
Professor Beran
55. Professor Beran examined the Applicant at the request of the Respondent and provided a report dated 10 June 2011. He considered the Applicant to have suffered a soft tissue injury on 9 December 2009, which, he explained, was more like a strain or sprain than having fractured bones or hard tissues. He included intervertebral discs as soft tissue, and said the majority of disc injuries settle without surgical intervention.
56. In his report and in his evidence he said that three to four weeks later he would have expected Mr Stephens’ back to have settled and this was consistent with Dr Shah’s [surgery] note of 29 December 2009. In his report he wrote that the recovery would have been expected ‘within a month or 2’.
57. In relation to Dr Shah’s notes of back complaints in May 2009, he said that Mr Stephens obviously had a propensity to back problems which pre-dated his employment with Australia Post, that is, a constitutional predisposition to back problems. He considered Mr Stephens morbid obesity to be putting an unreasonable strain on his back, and that this was itself contributing to his symptoms. He considered Mr Stephens’ degenerative back disease would continue to deteriorate.
58. As to the radiological reports of 16 December 2009 and 3 August 2011 he considered these to be consistent with someone with ongoing constitutional problems.
59. In cross-examination he said that he did not personally favour the use of CT guided injections. He has seen them used on very trivial problems.
Dr Rastomjee
60. Dr Rastomjee had conducted the pre-employment assessment of Mr Stephens on 9 April 2009. In a letter dated 24 January 2011 he wrote that he could not recall the consultation but was clear that if Mr Stephens had mentioned that he had had a previous discectomy he would have noted that on the pre-placement medical form, as he had for the tendon repair of his wrist. He would have also suggested that Mr Stephens add this information to the section of the form that he had already completed. Dr Rastomjee considered a previous discectomy to be relevant to working for the postal service as he presumed there was lifting of postal sacks and bags. On examination he found Mr Stephens’ thoraco-lumbar spine to be normal as there was no bony tenderness, no overt deformity, and he had a full range of pain-free movement. He wrote that he did not see a scar, nor did he attribute a scar to a discectomy. If a scar had been noted, and Mr Stephens had informed him that it was due to a discectomy, he would have noted on the examination form.
61. In his evidence Dr Rastomjee said the only thing he remembers Mr Stephens telling him was about his tendon transfer operation. This was his first pre-employment medical examination and he has since done about 10 in total. He said that if Mr Stephens had indicated to him in any way at the medical examination that he had had an operation on his back, then his practice would have been to ask the patient to amend his form and he also would have made a note of it. If he had been told that the person had previously had back pain, or sciatica, or had previously had any investigations or any radiology performed in relation to his lower back, his practice would have been to ask him to amend the form and ‘would have taken it from there’. If he had observed a scar he would have asked where it came from. If he had seen the scar that looked like back surgery he would ask the patient about it. He once did a pre–employment assessment where he saw a scar that looked like back surgery and asked the patient about it, was told that it was a benign skin lesion that had been removed and therefore he took the patient's word and dismissed that as a non-significant scar. He could recall no other occasion when, on examination, he had observed a scar that had not been revealed in the documentation that the patient filled out before coming in.
62. In cross-examination he agreed that he was new to practice in Australia and agreed that he had not done many pre-employment medicals before coming to Australia. He said that if he were brought a form that requires filling in he tended to go through it all and then just go through the examination by ticking boxes so he does not miss anything. The only information for the position was that it said on the front sheet of the medical ‘part-time Australia Post driver/sorter’.
63. If Mr Stephens had revealed to him in the examination that he had back pain or sciatica or any procedure performed on his back he probably would have asked for some more information from his previous doctor and then taken it from there. In the absence of information from his previous doctor he would probably have asked for a specialist opinion, but he had never had an occasion where he had done that. He said that he did not believe that the scar was revealed to him in the examination or that there had been past back pain or sciatica or any procedure to his back.
64. Dr Rastomjee agreed that Mr Stephens had taken off his clothes so that he could assess his skin, observe scars, listen to his heart and lungs, examine his abdomen, look at his spine, and check spinal movements. He could not recall seeing the scar, photographs of which was shown to him at the hearing. He agreed that if Mr Stephens took his clothes off and he was examining his back, he would have seen the scar. He said if he had seen the scar he would have asked the patient about it. He said that he did in fact see a scar but did not note it down in his records. His only explanation was that he had not noted it in his records because he may have been told something like, for example, that it was a benign skin condition and therefore nothing of relevance. He denied that he did not report it because he observed no bony tenderness, no overt deformity, and a full range of pain-free movement. He said that if it had been attributed to a time before his back surgery it would have been quite relevant to the position.
65. Dr Rastomjee said he would have checked Mr Stephens’ hips and his upper and lower limbs, had him squat, walk on his heels and toes, and do straight leg raising. Mr Stephens was able to perform all those activities without any pain.
CONSIDERATION AND FINDINGS
66. Counsel for the Applicant brought to our attention that Mr Stephens had been reinstated by order of a Federal Magistrate. The Federal Magistrate, however, was not exercising jurisdiction under the SRC Act and, as there is no estoppel flowing from that decision, we have disregarded that decision in coming to the correct or preferable findings on the material, on the evidence before us in the present matter.
67. Counsel for the Respondent referred us in some detail to Mr Stephens’ medical history gleaned from the summonsed material in relation to his claim against Telstra. In our view much of that material is irrelevant to the matters at hand. Suffice to say that from the time of the injury in December 2009 Mr Stephens had numerous investigations and treatment, including surgery, for L4/L5 vertebral disc dysfunction dating back to 1998.
What injury did Mr Stephens suffer on 3 December 2009?
68. Dr Powell diagnosed Mr Stephens as having sustained a muscular ligamentous injury (and aggravation of pre-existing multi-level degenerative lumbar disc disease). Dr Shah, the treating doctor, diagnosed ‘lumbar strain injury’. Professor Beran also considered Mr Stephens to have suffered a soft tissue injury.
69. We consider the medical evidence to be clear: that Mr Stephens suffered a soft tissue injury.
Was there also an aggravation of an underlying degenerative disease?
70. Although Professor Beran considered the Applicant to have only suffered a soft tissue injury on 9 December 2009, on the basis of Dr Shah’s notes of back complaints in May 2009, he said that Mr Stephens had constitutional predisposition to back problems. He considered Mr Stephens to have degenerative back disease which would continue to deteriorate. Further, he considered the radiological evidence to be consistent with ongoing constitutional problems. Professor Beran was concerned about the effect of Mr Stephens’ morbid obesity.
71. Although he had been given an inaccurate history, Dr Powell did not believe that Mr Stephens' symptoms, when he examined him in July 2010, developed as a result of progression of his pre-existing condition. The reported workplace incident was sufficient to have resulted in aggravation of the underlying condition. When provided with an accurate history of Mr Stephens’ pre-injury to his back, Dr Powell still considered that it was more likely than not that the injury of 3 December 2009 produced an aggravation of his underlying back condition, albeit temporarily.
72. We prefer the evidence of Dr Powell in this regard. Professor Beran regarded disc injury as soft tissue, a view which is somewhat inconsistent with his acknowledgement of Mr Stephens having degenerative back disease which had previously required surgical intervention.
Was the aggravation temporary, and if so, when did it come to an end?
73. Dr Powell, once aware of Mr Stephens’ correct history, considered any worsening of Mr Stephens’ underlying back condition would have been temporary and that it would have resolved within a few weeks.
74. Professor Beran would have expected Mr Stephens’ back to have settled in three to four weeks, although in his report he wrote that the recovery would have been expected ‘within a month or 2’. Ultimately he was unshaken from his view that Mr Stephens had probably recovered by 29 December 2009, although it was possible that he was back to his pre-injury condition because of the CT-aided injections. Professor Beran did not consider such injections to be of assistance in an injury such as Mr Stephens had suffered.
75. We accept that the expert medical evidence is to the effect that any aggravation to Mr Stephens’ underlying degenerative condition had resolved within a few weeks of 3 December 2009. This is consistent with an end date of 8 January 2010. We observe that Dr Shah, although not a specialist, also accepted that it was possible that the effects had come to an end within a few weeks. Dr Shah, as Mr Stephens ‘treating doctor’, had the benefit of examining Mr Stephens at the relevant time.
76. Even if we had not come to that view, that the effects of the injury of 3 December 2009 did not last beyond 8 January 2010, we consider the evidence supports a finding there was no resultant incapacity because the restrictions that Mr Stephens had at that time were the restrictions that he would have because of the underlying condition, irrespective of any aggravation. From 29 December 2009 the only restriction was a 20 kilogram weight limit and, on the Applicant’s own evidence, that weight limit was as a result of the Corrective Services injury. Dr Powell recommended that Mr Stephens be placed on suitable duties with restrictions that include no lifting in excess of 10 kilograms, and avoiding repetitive bending and twisting movements. In his evidence he said that those would be advised anyway because of the underlying condition.
77. Having come to that view, it was not necessary for us to consider the effect of section 7(7) of the Act.
DECISION
78. After having considered all the evidence, and for reasons set out above, the decisions under review are affirmed.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr I S Alexander, Member.
Signed: ...[sgd]..........................................................................
C. Taylor, AssociateDate of Hearing 29, 30, 31 August and 1 September 2011
Date of Decision 21 November 2011
Counsel for Applicant Ms J Keys
Counsel for Respondent Mr G T Johnson
Solicitor for Respondent Ms K Miller, Sparke Helmore
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