Stephenson and Telstra Corporation Limited - [2001] AATA 343

DECISION AND REASONS FOR DECISION [2001] AATA 343

ADMINISTRATIVE APPEALS TRIBUNAL )

) N1999/1594

GENERAL ADMINISTRATIVE DIVISION    )        N1999/1727
          Re      GEOFFREY GRAHAM STEPHENSON
  Applicant
          And     TELSTRA CORPORATION LIMITED
  Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date27 April 2001
PlaceSydney
Decision· Matter N1999/1594: The Administrative Appeals Tribunal ("the Tribunal") sets
aside the decision of the Senior Claims Officer, GIO General Limited made on behalf of Telstra Corporation Limited the Respondent in these proceedings, dated 12 October 1999 (T190), which varied the decision of the Claims Officer dated 3 August 1999 (T182) to find that Telstra Corporation Limited is not liable to pay compensation to the said Geoffrey Graham Stephenson, the Applicant in these proceedings, for low back pain pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") on and from 24 June 1999.

· In substitution for the decision set aside, the Tribunal finds that the said Geoffrey Graham Stephenson continued to suffer a compensable injury within the terms of section 4 of the Act in respect of his low back pain on and from 24 June 1999, but is able, pursuant to section 19 of the Act, to earn in suitable employment within the range of his medical restrictions as listed in these reasons for decision. These restrictions include not being required to work in restricted spaces; not having to do repetitive lifting or bending; not

Stephenson and Telstra Corporation Limited
Decision

lifting weights of more than 10 kgs; being in a position where he can frequently change his posture from standing to sitting to moving around; and not being required to drive or be driven for long distances to and from work.
·     The matter is remitted to the Respondent for calculation of the Applicant's entitlements based on his ability to earn in suitable employment as a doorman at (a club for example), a security guard, doing quality assurance work, vehicle safety checks, quotation work or similar within the range of restrictions listed above.
·     Mr Stephenson's entitlements may include reasonable medical expenses pursuant to section 16 of the Act as appropriate.
·     Matter N1999/1727: The Tribunal varies the decision of GIO General Limited made on behalf of the Respondent Telstra Corporation Limited dated 2 July 1999 (T172) as affirmed by the Senior Claims Officer on 21 October 1999 (T193), which determined that based on the available evidence, Geoffrey Graham Stephenson is deemed to suffer no whole person impairment of the lower back and both legs in accordance with Section 24 of the Act, and that the said Geoffrey Graham Stephenson is therefore not entitled to payment under section 24 or section 27 of the Act.
·     The Tribunal varies the decision and finds that the Applicant is entitled to compensation for 10% permanent impairment of his lower back pursuant to sections 24 and 27 of the Act. The Tribunal does not find that the Applicant is permanently impaired as to either left or right leg.
·…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] AATA 343
Decision Date: 27 April 2001

CaseChat Overview and Summary

In the case of Stephenson and Telstra Corporation Limited, the applicant, Geoffrey Stephenson, sought a review of a decision that found he was not entitled to compensation for a permanent impairment injury to his lower back and legs. The matter was heard in the Administrative Appeals Tribunal. The primary issue for the Tribunal to determine was whether Mr. Stephenson continued to suffer from a compensable injury on or after 24 June 1999, and if he was able to earn in suitable employment. Additionally, the Tribunal had to decide if Mr. Stephenson was entitled to compensation for permanent impairment.

The Tribunal examined Mr. Stephenson's history of injuries sustained during his employment, which began in 1989 and included several significant incidents leading to the final injury on 5 May 1997. Mr. Stephenson testified that the 1997 injury was more severe than any previous injuries and resulted in constant pain. The Tribunal considered the evidence presented, including Mr. Stephenson's testimony and that of the Rehabilitation Case Consultant, Pamela Davidson. Ms. Davidson confirmed that up to 5 March 1999, there were no meaningful or productive duties available to Mr. Stephenson at the line depot in Goulburn.

After reviewing the evidence and submissions, the Tribunal found that Mr. Stephenson did continue to suffer from a compensable injury on or after 24 June 1999, arising from the incident on 5 May 1997. However, the Tribunal determined that Mr. Stephenson was able to earn in suitable employment. Consequently, the decision was set aside and varied, with Mr. Stephenson still recognised as having a compensable injury but deemed capable of earning in suitable employment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Oral evidence was given by the Applicant, Geoffrey Stephenson, his wife, Karinne Stephenson and Pamela Davidson, Rehabilitation Case Consultant. EVIDENCE OF THE APPLICANT – GEOFFREY GRAHAM STEPHENSON Mr Stephenson, whose date of birth is 21 August 1971, gave evidence before the Tribunal that he commenced employment with Telstra on 13 April 1989 as a labourer. He said that in 1996 he became a line serviceman responsible for fixing and connecting phones. Mr Stephenson informed the Tribunal of a number of injuries he sustained at work. He said in 1991 he suffered an injury to his back whilst relocating some cable: "We had some cable going through the creek so we had to run some more cable in and we had to wait there for the machine to backfill the trench, and while we were waiting there, the actual - the creek that they'd dug, the temporary one, collapsed in front of me, and I had to jump, try and jump back out of it and sustained a bit of an injury there…." (Transcript 14.11.00 p.9) He said that he took time off work following the incident but could not recall if it was one week or two. Mr Stephenson said that on his return to work, he resumed full duties. Mr Stephenson said that he sustained an aggravation of his back injury approximately four weeks later while cleaning up a job site, specifically, shovelling sand off the concrete. He said that he had another week or possibly two weeks off work before returning to full duties. Mr Stephenson said that he sustained a further injury on 12 July 1996 while lifting pit lids. Mr Stephenson said that he had at least one week off work but returned to full duties following his time off. Of the injury, Mr Stephenson said that:"It was just like someone shoved a hot baseball bat in my back and it just, like, bang, stunned me and I was, sort of, really painful, yes." (Transcript 14.11.00 p.10) Of the condition of his back between the injuries that occurred in 1991 and the injury he sustained on 12 July 1996, Mr Stephenson said:"I was able to perform full duties, yes. Occasionally have some back – some back pain or spasms or whatever but never put it down to anything, continued full work, yes." (Transcript 14.11.00 p.10) Mr Stephenson then said that on 5 May 1997, he injured his back when doing some maintenance and upgrade on some cable. He said:"You have to dig down to expose the cables so you don't cut the existing ones there because you can't cut off the customers so you have to expose all the cables, which direction they run, before you can actually put your new post in so you're not damaging – you don't damage anything … And it would have been 2 foot deep so 60 centimetres and the actual elevated joint which they normally stand straight up was laying on the side of the trench and the actual cable joint that was in it was like a bird's nest. It was a mess and it was a really big heap of cable and there is a … piece of angled iron that's actually welded onto it where the cable can't fall out and - and I had to take the EJ out so I got down, had one knee on top of the ground and one foot in the hole so when I went down to give it a check where it was hitting was – the piece the metal that was on the elevator joint was hitting on the – like the bird's nest of cable so I thought it must be just stopping there. So I gave it a good pull … to get out of there, and it came so far and just stopped, and it was automatic, nearly like paralysis. I couldn't move and …" (Transcript 14.11.00 p.11)

Decision

Reasons for decision

I noted from her answers to questions that Ms Davidson's 'closure' letter was dated 5 March 1999 (T141), and that she was not responsible for Mr Stephenson's case after that time. She agreed in cross-examination that up to and including 5 March 1999 there were "no meaningful or productive duties" available to the Applicant at the line depot in Goulburn. SUBMISSIONS AND CONCLUSIONS Having heard and read all the evidence, I had to take into account the legislation as well as the submissions of both parties to make the correct and preferable decision regarding: · Whether the Applicant continued to suffer from a compensable injury within the terms of section 4 of the Safety Rehabilitation and Compensation Act 1988 ("the Act"), on or after 24 June 1999 in respect of his lower back and right and left legs arising out of and in the course of his employment with the Respondent due to an incident on 5 May 1997;· Whether the Applicant is able to earn in suitable employment; ·If so, in determining the amount per week that the Applicant is able to earn in suitable employment pursuant to section 19(4) of the Act: ·Whether the Applicant's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances (section 19(4)(f) of the Act);·Whether pursuant to section 19(4)(g) of the Act there were any other matters which were relevant.·Whether the Applicant is entitled to compensation for permanent impairment of the lower back and the left leg and right leg pursuant to sections 24 and 27 of the Act. In determining whether the Applicant continued to suffer a compensable injury in terms of section 4 of the Act on and from 24 June 1999, I have noted the history of injuries suffered by the Applicant in his employment. He was approximately 20 years old at the time of the first injury in 1991(his date of birth being 21 August 1971), and 25 years old when he suffered the last injury of his employment with the Respondent on 5 May 1997. In summary, his injuries were as follows: Mr Stephenson's evidence was that he returned to work with the Respondent a week or two after the 1991 injury:"I was able to perform full duties, yes. Occasionally have some back – some back pain or spasms or whatever but never put it down to anything, continued full work, yes." (Transcript 14.11.00 p.10) After each of the injuries which followed and are mentioned above, until the injury that occurred on 5 May 1997, Mr Stephenson had time off which ranged from days to weeks, but said that he was able to perform his full duties as a line serviceman with some occasional back pain. The Applicant's evidence was that the injury of 5 May 1997 was much more severe than any others he had experienced, and that he has suffered constant pain of varying intensity since that time. His account of how matters progressed with regard to work from 5 May 1997 is in his evidence above, and also in the documents before the Tribunal. There was no dispute regarding the periods when compensation was paid, and what attempted returns to work were made.

Ratio Decidendi

Legal Principle Established

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