Stephenson and Telstra Corporation Limited
[2001] AATA 343
•27 April 2001
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.
· The Tribunal remits the matter to the Respondent for calculation of the Applicant's entitlements. This may include reasonable medical expenses pursuant to section 16 of the Act as appropriate.
Costs are awarded in both matters pursuant to section 67(8) of the Act and the Tribunal's Practice Direction dated 18 May 1998.
…..............................................
Ms G Ettinger – Senior Member
CATCHWORDS
Compensation - Injury – permanent impairment - redundancy - suitable work - Applicant not offered suitable work – decision set aside and varied – Applicant has compensable injury but can earn in suitable employment -
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 19, 24 and 27
Comcare Guide to the Assessment of the Degree of Permanent Impairment Tables 9.5 and 9.6
CASE LAW
Comcare v Amorebieta (1996) 66 FCR 83
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Re West and Comcare (AAT 9320, 23 February 1994)
REASONS FOR DECISION
27 April 2001 Ms G Ettinger Senior Member
The decisions under review before the Administrative Appeals Tribunal ("the Tribunal") concerning the Applicant, Mr Geoffrey Stephenson, were as follows:
Matter N1999/1594: The decision of the Senior Claims Officer of GIO General Limited on behalf of the Respondent, Telstra Corporation Limited, 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 pursuant to section 19 of the SRC Act on and from 24 June 1999.
The decision of the Respondent dated 3 August 1999 had provided that Mr Stephenson was entitled to weekly payments of compensation of $83.23 from 29 July 1999. The amount of $83.23 was calculated using the formula set out in section 21 of the Safety Rehabilitation and Compensation Act 1998 and involved the following:
"1/ The claimant's Normal Weekly Earnings as at 23 June 1999 is $755.09.
2/ 90% of Normal Weekly Earnings as at 23 June 1999 is $679.58.
3/ The claimant is deemed able to earn $468.03 in suitable employment.4/The superannuation amount is $48,782.15 and this amount divided by 520 is $93.81.
5/The superannuation contribution amount as at 23 June 1999 is $34.51.
6/The claimant is entitled to the weekly payment of compensation of $83.23 per week from 29 July 1999."
Matter N1999/1727: The decision of GIO General Limited 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:
"1.That based on the available evidence, Geoffrey Stephenson is deemed to suffer no whole person impairment of the lower back and both legs in accordance with Section 24 of the SRC Act.
2.Geoffrey Stephenson is therefore not entitled to payment under section 24 or Section 27 of the SRC Act."
The Tribunal noted that the Respondent initially accepted liability in respect of the Applicant's claim for compensation for "low back strain" on 20 May 1997 (T7) and from this date until 14 September 1999, a number of subsequent determinations were made approving the continuation of weekly compensation payments and reimbursement of medical expenses pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1998 ("the Act").
The Applicant, Mr Geoffrey Stephenson, was represented by Mr A Porthouse of counsel, who was instructed by Daly Bussoletti & Co. The Respondent, Telstra Corporation Limited, was represented by Mr J Wallace of counsel, who was instructed by Sparke Helmore.
ISSUES BEFORE THE TRIBUNALThe issues for consideration by the Tribunal were:
· Whether the Applicant continued to suffer from a compensable injury within the terms of section 4 of 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 that 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 and right legs pursuant to sections 24 and 27 of the Act.
BACKGROUND
By way of background, I noted that the Applicant was born on 21 August 1971, and commenced employment with Telecom Australia as a labourer on 13 April 1989 and at the time of the injury on 5 May 1997, was employed as a Communications Officer Grade 3. I am mindful that Telecom Australia became Telstra Corporation Limited in 1995, and have for purposes of this decision referred to the Respondent as "Telstra".
I noted that Mr Stephenson suffered a number of injuries to his back whilst in the employment of the Respondent, which included:
In 1991, the Applicant suffered an injury to his back when a trench collapsed while cable was being relocated.
Approximately four weeks later, the Applicant sustained an aggravation of his back injury when he was cleaning up a job site and "shovelling a bit of sand off the concrete".
On 12 July 1996, the Applicant injured his back while lifting pit lids.
On 5 May 1997, Mr Stephenson suffered an injury to his back while removing an elevated joint from a hole in the ground.
LEGISLATION
The relevant legislation in this matter was the Safety Rehabilitation and Compensation Act 1988, in particular sections 4, 14, 19, 24 and 27.
Section 4 of the Act defines "disease" and "injury" and follows as relevant:
"4. (1) In this Act, unless the contrary intention appears:
...
"disease" means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
...
"injury" means:(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
..."
Section 14(1) of the Act provides that:
"14 Compensation for injuries
14(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."
Section 19 of the Act deals with injuries resulting in incapacity:
"19 Compensation for injuries resulting in incapacity
19(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.
…
19(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment – the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake,
(g) 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; and
(h)any other matter that Comcare considers relevant."
Sections 24 and 27 of the Act deal with permanent impairment and follow as relevant:
"24 Compensation for injuries resulting in permanent impairment
24(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
24(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
24(3)Subject to this section, the amount of compensation payable to the employee is such an amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
24(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
24(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
24(6)The degree of permanent impairment shall be expressed as a percentage.
24(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
….
27 Compensation for non-economic loss
27(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…"
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents") and the following other exhibits:
ITEM DATE NAME
Pay Envelopes for the Applicant as an apprentice barber 4 February 2000 – 11 March 2000 Exhibit A1
Wage Records from Wyer Clarke Partnership 6 April 2000 – 20 September 2000 Exhibit A2
Workplace Agreement between the Applicant and Alpen's (Griffith) Pty Limited Exhibit A3
Pay Details for Work with Alpen's (Griffith) Pty Limited 22 September 2000 - 12 October 2000 Exhibit A4
Report of Dr I Wilden-Constantin 17 October 2000 Exhibit A5
Report of Dr I Wilden-Constantin 6 April 2000 Exhibit A6
Report of Dr K Bleasel 9 October 1998 Exhibit A7
Report of Dr K Bleasel 17 February 1999 Exhibit A8
Report of Dr K Bleasel 22 February 2000 Exhibit A9
Report of Dr K Bleasel 29 February 2000 Exhibit A10
Report of Dr K Bleasel 14 June 2000 Exhibit A11
Report of Dr W Wolfenden 17 February 2000 Exhibit A12
Report of Dr W Wolfenden 14 March 2000 Exhibit A13
Original and Transcribed Copy of Report of Robin Doolan 22 May 2000 Exhibit A14
T-Documents Exhibit R1
Report of Dr A Gonski (3 pages) 9 February 2000 Exhibit R2
Report of Dr A Gonski (1 page) 9 February 2000 Exhibit R3
Report of Dr A Gonski 17 March 2000 Exhibit R4
Report of Dr L Hughes 21 February 2000 Exhibit R5
Report of Dr L Hughes (1 page) 21 February 2000 Exhibit R6
Clinical Notes of the Argyle Medical Centre Exhibit R7
Notes of Rehabilitation Case Consultant – Ms P Davidson Exhibit R8
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 STEPHENSONMr 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)
When questioned about the sensation he felt in his back at that time, Mr Stephenson said:
"It was like someone was repeatedly shoving the blunt end of a baseball bat in my back and that was just like a thousand degrees, and just kept, sort of, shoved in and out; and every time I moved I'd have the same spasm, so I tried not to move, and then I had to try and move to get over to the next vertical to, sort of, grab hold of something. It was – I had a job to walk. It was like my legs wouldn't work, or – and every time I moved, it was, just, pain." (Transcript 14.11.00 p.11-12)
Mr Stephenson said that the incident that occurred on 5 May 1997 was much more severe than the injury he sustained on 12 July 1996, and he had never experienced anything like it previously:
"It was – a great deal of pain. I couldn't straighten up. I was bent over. All I could do was pretty much lay down on the lounge at home; go from bed to the lounge, and, that was pretty much about it …
It was right at the lower part of my back, and it brought across the back of my back, and at the time, into the back of my legs, and was excruciating in the back of my knees." (Transcript 14.11.00 p.13)He said that he attended at his General Practitioner, Dr Wilden-Constantin, on 5 May 1997 and was prescribed painkillers, anti-inflammatories, and physiotherapy at the McNamara Physiotherapy Clinic. He was certified unfit for work until 27 May 1997.
Mr Stephenson said that he returned to work on light duties on 27 May 1997 but was only able to manage the work for one and a half days before he experienced the same feeling of pain in his back as when he pulled the elevator joint out of the ground. The Applicant said that he could not continue working on the afternoon of his second day and that he consulted Dr Wilden-Constantin who certified him as unfit until 15 August 1997.
Mr Stephenson described the condition of his back during the period from late May until 15 August 1997, as follows:
"It was spasms, yes. The spasms weren't as intense as when – of the first injury; but anything I did – if I moved too quick one way, whatever, I'd get the spasm of the feeling of the hot baseball bat in the back, or the sciatica – I'm suppose it's sciatica – the burning of the legs up through the back of the legs, and that sort of thing. My symptoms were – with the bad back, I thought – I felt like my feet were going to drop off my legs; it felt like they were going to burst." (Transcript 14.11.00 p.15)
Mr Stephenson said that he returned to work on 15 August 1997 and was restricted to light clerical duties which involved mainly photocopying or updating plans for updated cable routes. He later returned to his pre-injury work, but said that restrictions were imposed, including a five kilogram lifting limit, no shovelling or getting under the floor or into ceilings; he was required to call a second man to complete those jobs.
Mr Stephenson said that during the period 27 October to 12 December 1997 his back became progressively worse until he was back to where he started. He said that squatting, bending, twisting, walking and everyday movements on a constant basis aggravated his back.
Mr Stephenson said that he was off work again until 2 February 1998, when he returned to work for three weeks doing clerical duties, which involved photocopying or going out as a second man with another technician for safety reasons. He said that he was unable to cope with the work and was certified unfit for a further period from 27 February 1998 through to 2 June 1998. Mr Stephenson said that during this time he asked Telstra "constantly" about the availability of other work that he felt he could do, including vehicle safety checks, preparing quotes for work and quality assurance, but was advised that there were no positions of that type available.
Mr Stephenson said that he returned to work and had to attend at the Work Management Centre ("the Centre") in Canberra on 2 June 1998. He said that:
"I was sent a directive that if I didn't go over there that I would lose my compensation." (Transcript 14.11.00 p.19)
Mr Stephenson said that the work he was required to do at the Centre was manual dispatch, where he would advise certain field workers of their up-and-coming jobs.
Mr Stephenson said further that the journey by car to Canberra was approximately 55 minutes each way from home, and that he travelled to and from the Centre in either a car pool or in a Telstra vehicle allocated to a colleague. Mr Stephenson said that the driving affected his back in that:
"I went from doing nothing to 10-hour days, starting with the hour – well 55 minutes travelling up there, and the days that I travelled up there with the other blokes who own cars was like a small … car which I had to sit in the back which was extremely uncomfortable because you can't move, and the other car was a Subaru station wagon which has got about 6 inches of room in the back seat for your legs, and I found that because – by the time I got to work, I was extremely stiff from travelling and then had to continue eight hours sitting down and then get ready for the extra 55 minute trip home again …
After about the third week – yes, about the third week, with the constant travelling and the sitting down, and especially not being computer literate, I found that I was hunched over the terminal, and I tried several chairs while there, but the pain just kept getting worse." (Transcript 14.11.00 p.21)Mr Stephenson said that he was not able to continue with the work at the Centre and went off work on 22 July 1998. Between 22 July 1998 and when he returned to work on light duties on 20 April 1999, Mr Stephenson said that he continued to ask his supervisor and rehabilitation provider for further work. He said:
"I asked again about the jobs that I said prior because the fact that another person had hurt his back and was doing those type of jobs that I suggested for myself, and I was knocked back again. I asked for work at the Telstra Shop- the same sort of scenario. They were more or less putting people off; there were no positions there." (Transcript 14.11.00 p.22)
Mr Stephenson said that he commenced a twelve-week course in real estate in February 1999 at the Moss Vale TAFE, but did not compete the course due to an injury on the day of the final exam. He also said that he found the course difficult to understand.
As to the issue of redundancy, Mr Stephenson said he was required to go on "effective employment" as he was not working at the time. Mr Stephenson said that he asked advice regarding redundancy from a number of people including Steve Adlard, Pamela Davidson, Dino Andrietta and Michael Palmer, his manager at the time, who advised him that his compensation would not be affected if he took a redundancy. I noted that when questioned about the sequence of events leading up to his acceptance of the redundancy, Mr Stephenson said in evidence that:
Mr Stephenson: "Then my supervisor was in contact with me and he said, "There is a redundancy there if you want it. Do you want it?" and I said, "Well, just let me make a few phone calls first." So I rang half a dozen people to see whether my compensation would, in fact change.
Mr Porthouse: Who did you call?
Mr Stephenson: I spoke to Steve Adlard again. I spoke to - - -
Mr Porthouse: Well, just deal with one at a time. You spoke with Steve Adlard?
Mr Stephenson: Yes.Mr Porthouse: What conversation did you have with Steve Adlard?
Mr Stephenson: I said, "Will this affect my compensation anyway?" and he said, "No, not in any way at all".Mr Porthouse: You said you called some other people. Do you remember who they were?
Mr Stephenson: Yes. He was our manager at the time … What's his name? I rang – well, to get back to you, I rang Pamela Davidson, my rehabilitation officer, which I think she may have been off on maternity leave at the time, but I spoke to her because she, anyway, I spoke to her and she said, "No, there would be no change to your compensation if you took a redundancy." I rang the union and they said, "No as far as we know there would be no change to your compensation." Michael Palmer was the manager I rang at the time. Who else did I ring? I think that I rang Dino Andrietta. He was a rehabilitation man at the depot before, - ages ago, but every answer I got that it wouldn't affect my compensation in any way, and that's why I took it, otherwise I would never have taken it." (Transcript 14.11.00 p.24)Mr Stephenson said that he was advised by Steve Adlard that before the redundancy could be made effective, he would have to return to work for five hours a day for four weeks for "legal reasons" before he would be "… put in the garden". Mr Stephenson said:
"I had never heard that before. I said, "What do you mean the garden?" He said, "Oh, you just go home for the remainder of the time before you finish just so you don't hurt yourself while at work. Just more or less go home and wrap yourself in cotton wool." (Transcript 14.11.00 p.25)
Mr Stephenson said that he returned to work on 20 April 1999 and attended five hours per day for four weeks until 12 May 1999 at the Telstra Goulburn Depot. He said he was given three directives during that time, photocopying and two safety jobs which occupied approximately one and half hours over the four weeks.
When questioned about what he did for the rest of the time, Mr Stephenson said that:
"Talked to the storeman or talked to the actual penman, just talked. If they were going to drop something off down the street or pick something up, I 'd occasionally go for a bit of a – drive them downtown to break the monotony of hanging around the depot." (Transcript 14.11.00 p.25)
Mr Stephenson said that for the next five weeks he was not required to go into the Depot; he remained at home until his redundancy was made effective on 24 June 1999.
Mr Stephenson said after his redundancy from Telstra, he tried a number of different jobs including driving trucks, apprentice barber work and doorman/bar work at the Goulburn Soldiers Club.
Mr Stephenson said that he commenced employment with 'Macintyres' as a truck driver on 27 September 1999. He said that he was required to drive loads of bricks between Sydney, Bringelly, Goulburn and Canberra. Mr Stephenson said that he finished up that employment because:
"I couldn't handle the work. I was having up to five and six, sometimes seven Panadeine Fortes a day. Driving along, trying to stand up behind the wheel in the seat to have a stretch, because, - like, that's in – that's like at lights in the city; have to go out the road and pull up, stretch and carry on. I just couldn't handle it." (Transcript 14.11.00 p.26-7)
Mr Stephenson said that he then commenced work with 'Smalls' as a truck driver on 11 October 1999, which he said was light courier type work. However, Mr Stephenson said by the second week of the job, he was in terrible pain. He said:
"But just with being so repetitive, and probably starting too quick after the other job as well. I just couldn't handle it. It was just too much pain just from the repetitiveness of the job." (Transcript 14.11.00 p.27)
When describing the position as an apprentice barber, Mr Stephenson said that his duties included sweeping the floor, cleaning the windows and mirrors, and cutting hair. He said that his back was all right initially but:
"… with the constant standing and the posture that you have to stand in to get some positions of the head was – same again. After the time of doing it, slowly getting worse to a time when it's just back to having spasms again and just - anything repetitive like that and I get pain and I just – I physically can't do it." (Transcript 14.11.00 p.27/28)
Mr Stephenson said he again sought employment with the Wyer Clarke Partnership ("Wyer Clarke") as a truck driver on 16 April 2000, and remained in its employ until 7 October 2000 doing "… seasonal type work" which involved a lot of standing around waiting for the truck to be loaded. Mr Stephenson said that he used to only drive one, to one and a half hours out of an eight hour day.
Mr Stephenson said that he finished up working with Wyer Clarke due to the seasonal nature of the work and because he had a young family to provide for. He said that he then sought employment with Alpen's (Griffith) Pty Limited ("Alpen's"). Mr Stephenson said that the reason for choosing that job was because it was fulltime work, and not seasonal. He said:
"… all these truck driving jobs, there's no application form to fill in, so they don't know anything about your medical ; it's just hearsay: you can drive a truck, you can have a job. And I tried that to try and go forward with my family, but I was back to the same then – six, seven Panadeine Fortes a day just to try and drive, which is bloody silly." (Transcript 14.11.00 p.29)
Mr Stephenson said that he finished up working with Alpen's after a couple of weeks due to the pain, and that at the time of the Hearing he had been offered some bar/doorman type work at the Goulburn Soldiers Club.
When questioned, Mr Stephenson said that as a result of his injuries he was unable to perform general household duties such as washing up, grocery shopping, vacuuming, mowing the lawn and bathing his daughter.
As to his current complaints, Mr Stephenson described the pain he suffers down his legs as being like:
"… extreme gravel rash; it burns, it's a constant burning feeling that you can't sort of, makes you not concentrate. I'm numb from the knees down … It's pretty much constant. It depends, if I do a fair bit of walking or a fair bit of standing it becomes that bad that it felt – to the lower part of my legs especially me feet, they felt like they were going to bust." (Transcript 14.11.00 p.31)
Regarding the pain in his back, Mr Stephenson said his pain varied between a dull ache and a hot burn and extended from his spine across his buttock and down into his groin, which he said could be aggravated by any activity. Mr Stephenson said he also suffered from back spasms, which could:
"… range from any one poking you in the back with their finger, that's 1000 degrees to something as round as the end of a baseball bat being shoved in your back …" (Transcript 14.11.00 p.32)
Mr Stephenson said he also suffered from considerable stiffness in the back and found it difficult to walk for longer than half an hour. He said further that his back had restricted everything he did, including sports. Mr Stephenson said that he no longer played touch football, football or indoor cricket, though he said that he could ride his motorcycle up to forty minutes at a time after taking pain killers.
When questioned about the emotional effect his injuries have had, Mr Stephenson said that he took anti-depressants and no longer associated with his sporting friends. Specifically, Mr Stephenson said:
"Well, I don't feel like a husband because I was a pretty outgoing bloke and always been brought up to be the breadwinner of the house and I can't feel that I can be that way but I'd give anything to go back to the way I was. Anything, to go back, I wouldn't care what it took to go back to the way it was but I'd love to and I just feel like – I don't feel like a man much anymore. Other than that, I just hate myself …
My intimacy with my wife is nowhere near the same as it was, that's limited to a few things …" (Transcript 14.11.00 p.34-5)
EVIDENCE OF THE APPLICANT'S WIFE - MRS KARINNE STEPHENSON
Mrs Stephenson, whose date of birth was 28 April 1971, gave oral evidence before the Tribunal. Mrs Stephenson said that her husband called in to see her at work in May 1997 because he had hurt his back while at work and was waiting to see the doctor.
Mrs Stephenson said of her husband at that time:
"He was in a great deal of pain. He was very stiff. Had trouble walking. Yes, he couldn't move very freely at all." (Transcript 15.11.00 p.16)
Mrs Stephenson said that he was in considerable pain while he was off work and filled in his days lying down or sleeping restlessly. Mrs Stephenson said that although her husband returned to work, his back condition did not really improve: "He's still, he just sort of kept going along the same track." (Transcript 15.11.00 p.17)
Mrs Stephenson said that when her husband returned to work in Canberra, he had a reason to get up each day and it gave him a sense of self-respect. In respect of his physical condition, Mrs Stephenson said that the Applicant was able to handle the travel between Goulbourn and Canberra initially, but that his pain and stiffness got worse over time. Specifically, Mrs Stephenson said:
"He enjoyed the work and because he could, he understood the work and could relate to the job itself. I do believe it was the sitting down to and from each day and sitting at the desk plus, I do believe he was using a computer as well and for somebody who's not computer literate it's like when you are learning to drive, you're very tense until you learn the job you can relax. Yes, so he was a bit tense using the keyboards and what not, but as for the job, the job itself, I do believe he did enjoy it." (Transcript 15.11.00 p.26)
In respect of the period of time between his employment in Canberra and his return to work to accept redundancy, Mrs Stephenson said that he was:
"Very depressed. He had no – he just felt useless because he's always been the sort of person to be out doing something. He, yes, he just in and out of depression a lot of the time. I mean, he had and his social life dropped off a lot he just wasn't happy with himself at all." (Transcript 15.11.00 p.18)
Mrs Stephenson compared her husband as he was prior to the injury in May 1997 to the present, and said that prior to May 1997, he was:
"Very easy going sort of fellow. He had a lot of friends. He is a likeable person, very sporting. He had a lot of social sports. He – a lot of different interests. Nothing much terribly worried him. He always had good income, good security for himself and yes, he was very very easy to get along with." (Transcript 15.11.00 p.19)
Mrs Stephenson said prior to his injury her husband participated actively in household chores and did not rely on her to maintain the house, but was subsequently no longer able to do any household activity that required constant, repetitive movements.
Mrs Stephenson said that her husband's condition had in recent years, as a result of the injury, worsened considerably. She said that his:
"His physical condition had deteriorated. His arms, legs dwindled away to nothing. He – his muscle tone, he has lost most of, even for simple things like walking. I mean we can walk short distances and that sort of thing, we don't go on long walks or anything. We did swim." (Transcript 15.11.00 p.19)
When questioned about his employment as a truck driver, Mrs Stephenson said her husband's emotional state was much better when he was working because he felt he was contributing to the family, and was occupied. She said that physically, whilst he was able to cope with the work initially or during short trips, the longer trips were difficult and he required a lot of painkillers to perform them.
Mrs Stephenson said also that her husband enjoyed the social nature of his apprenticeship as a barber but that the "… standing up all day was no good for his back and yes, the longer he did it the worse he got." (Transcript 15.11.00 p.21)
When cross-examined about her husband's purchase of a Harley Davidson motorcycle in August 1997, Mrs Stephenson said that at the time:
"We really didn't know the extent - well, I didn't know the extent of the injury at the time. I don't know whether it was at that stage or not but I thought he was going to get better. We didn't realise that he was going to be like this." (Transcript 15.11.00 p.22)
Mrs Stephenson said that at the time he rode the motorcycle possibly once a week, and that he took her for a ride on it. Mrs Stephenson also said that following his redundancy with Telstra, her husband purchased another (Harley Davidson) motorcycle which was larger in size and had a larger engine capacity. She said that her husband had joined a motor bike club, which organised regular rides of half an hour to an hour duration, although they had always had breaks.
When asked whether she would move to Canberra with her husband, if there was a permanent job available for him, Mrs Stephenson said that she would move:
"… if it was a secure and stable job. I don't – I'm not prepared to uplift everything and move if it's not a suitable job." (Transcript 15.11.00 p.25)
EVIDENCE OF MS PAMELA DAVIDSON - REHABILITATION CASE CONSULTANT
Ms Davidson, who took over Mr Stephenson's case from another rehabilitation counsellor in late 1997, gave oral evidence before the Tribunal. Her reports and notes encompassed four large folders, of which a large bundle of notes was before the Tribunal as Exhibit R8.
Ms Davidson was questioned about whether she had advised Mr Stephenson regarding his continuing rights to compensation in the light of his redundancy on 23 June 1999. I noted that Ms Davidson's file note of 20 January 1999 (Exhibit R8), recorded as follows:
"… Geoff advised that he was told about redundancy and has been advised to contact Michael Palmer – Geoff enquired as to what the sudden interest in his redundancy was & how this effects (sic) his compensation.
Advised Geoff – redundancy has no impact on his compensation…"Ms Davidson agreed she had written the file note quoted above, but said that she had ceased providing rehabilitation support on 5 March 1999 and had not been involved with the redundancy or the Applicant's work after that date.
Her closure report was before the Tribunal as T141, and included (in bolded lettering), on page 295, the words:
"Please note that while the Rehabilitation Program is now finalised, your rights under the SRC Act 1988 will remain until the liability is ceased."
When questioned about the Applicant's capacity for indoor work, she replied that he had the physical capacity for office work, but that she knew he was not happy doing work indoors. Ms Davidson agreed she had been involved in a number of work trials in relation to Mr Stephenson. She agreed she had relied on the functional vocational assessment of the Applicant and agreed that if he were unfit to travel, then a position in Canberra to which he had to travel from his home in Goulburn, was not the right one for him.
I noted an e-mail of Ms Davidson to Michael Palmer and Geoffrey Bland of Telstra dated 12 October 1998, with the following notations:
"… Geoff Stephenson is unable to return to his pre-injury duties as a Communications Officer … Geoff's GP has indicated that he should be medically retired and he will never work again….
However the CMO reported that Geoff is not a candidate for medical retirement and he would be ".. best suited for light manual/clerical work, possibly on a part-time basis, where he could frequently change his posture from standing to sitting or moving around … he should not be required to travel out of the town he lives in for work purposes … in my opinion a graduated return to work … building up very gradually … to half normal hours would be the appropriate course..
My recommendations are as follows:
1. Geoff returns to modified duties … Once he gets up to 4 hours per day 5 days per week (which is his maximum capacity) rehab then closes, Geoff is offered a redundancy (if available) and he is then able to be re-trained through GIO … and he is also paid compensation throughout his re-training incapacity time.
2. Otherwise Geoff will be required to be re-trained – Geoff offered a redundancy (if available), and then leaves via Effective Employment?? (ie Retraining, identified, course co-ordinated and paid for, rehab closes, Geoff exists (sic) Telstra via EE, covered by ongoing full NEW by compensation).When asked in cross-examination:
Mr Porthouse: "Now, after you got the report from Dr Lark [Occupational Physician – Health Services Australia] do you recall what steps you took to find Mr Stephenson some work within Telstra?"
Ms Davidson: "Not specifics but I think at the time we were looking at what options were available in the local area and possibly retraining."
Mr Porthouse: "Would you accept that there was no work that the applicant could do for Telstra at that time?"
Ms Davidson: "As far as I recall there was no meaningful and productive duties available, particularly in the line depot." (Transcript 8.3.2001 p.15)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 CONCLUSIONSHaving 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.
WHETHER THE APPLICANT CONTINUED TO SUFFER FROM A COMPENSABLE INJURY WITHIN THE TERMS OF SECTION 4 OF THE SAFETY REHABILITATION AND COMPENSATION ACT 1988 ON AND FROM 24 JUNE 1999
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:
in 1991 (whilst relocating cable);
an aggravation to that injury some four weeks later while cleaning up a job site and shovelling sand off concrete;
a further injury on 12 July 1996 while lifting pit lids;
an injury on 5 May 1997 while doing maintenance and upgrade on cable.
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.
In that connection I have noted that there were many attempts by the Respondent at rehabilitating Mr Stephenson. There was concern expressed and much correspondence regarding Mr Stephenson. He had several rehabilitation consultants, with Ms Davidson as his last Rehabilitation Case Consultant for Telstra, until the closure of his file on 5 March 1999. Four folders comprising of a large bundle of notes indicating her extensive involvement with Mr Stephenson's case were at the hearing and Exhibit R8 comprises some of her notes. There was also a Functional Assessment Report (T35) dated 8 October 1997 before the Tribunal. I was mindful that the closing lines of the report of Ms D Hayward B.App.Sc.(O.T), who prepared the Functional Assessment Report at T35/63, were as follows: "Mr Stephenson is a highly motivated young man and may make a good success with his rehabilitation program, given his positive mental attitude."
A Vocational Assessment Report dated 21 October 1997 (T37 and T39), suggested Mr Stephenson could do the following with some restrictions and a graduated return to work: communications officer, truck driver, machinery operator and forklift driver. The report also suggested retraining as a real estate sales person or taxi driver or security officer.
However, it all culminated with a voluntary redundancy which took effect on 23 June 1999. Liability for compensation was then ceased by the Respondent on 24 June 1999 (T190).
Mr Stephenson's evidence before the Tribunal was that he had inquired of his rehabilitation case consultant, Ms Davidson, Mr Steve Adlard, Mr Dino Andrietta and Mr Michael Palmer, his manager at the time, about how accepting a voluntary redundancy would impact on his compensation entitlements. I noted that Ms Davidson had a record of the advice she had given Mr Stephenson in her file note of 20 January 1999 (Exhibit R8) which read as follows:
"… Geoff advised that he was told about redundancy & has been advised to contact Michael Palmer – Geoff enquired as to what the sudden interest in his redundancy was & how this effects (sic) his compensation.
Advised Geoff – redundancy has no impact on his compensation…"
There was a further notation from Ms Davidson in the same terms at T141/295.
Mr Porthouse made submissions which I accepted, that the evidence regarding Mr Stephenson's inquiries as to whether his compensation rights would be affected by accepting a voluntary redundancy, were unrebutted. He was entitled to rely on the authoritative advice he received that his compensation rights would not be affected.
I turned then to consider whether Mr Stephenson was incapacitated for work on and from 24 June 1999 in terms of the legislation. I noted that the Applicant described in his evidence how his back and legs felt after the incident of May 1997, and was mindful that in the period before his retrenchment in June 1999, he returned to work on light duties on 20 April 1999. I accepted Mr Stephenson's evidence that he had suggested to his employers while he was still with Telstra in the first half of 1998 that he could do work such as vehicle safety checks, quality assurance and prepare quotes for work. He said in evidence that he knew of another person with a back injury who had been offered that type of work, but that he had not.
Mr Stephenson's evidence was that his back has continued up to the present to cause him pain of varying intensity, and that he has had difficulties with home duties and cannot, amongst other things, do grocery shopping, mow the lawn or bath his daughter.
Mr Wallace submitted that Mr Stephenson's credit was at issue because he had admitted to a "white lie" during cross-examination, when explaining that he had told Dr Wilden-Constantin (as evidenced by the medical report of 7 July 1997), that his condition had improved. I noted that the reason given for misrepresenting his condition, the Applicant said, was that he was keen to return to work. I did not discount all his other evidence because of his indiscretion which apparently arose out of a desire to return to work.
Mr Wallace also submitted that just when Mr Stephenson was impressing upon his employers that he could not sit in a vehicle to travel 55 minutes to work in Canberra, he purchased a 150 to 200 kilogram motor cycle. I accepted Mr Stephenson's explanation that everything in his life had changed; "… with all my sport and that gone now, if I didn't have my motor bike I may as well be dead …." (Transcript 14.11.00 p.53).
I then moved to consider Mr Stephenson's attempts at finding work after leaving Telstra. His evidence was that although he could drive for short distances and times, he could not sustain his attempts at driving trucks, but thought he could do certain other work. At the time of the hearing he was waiting to commence as a doorman at the Goulburn Soldiers Club, where his wife worked. He said that his attempts at being a trainee barber had failed because he could not stand for long hours, or bend over as required by that position. Mr Stephenson's evidence was also that he had attempted a real estate course, which I noted was sponsored by the Respondent. He had found it difficult, and had not undertaken the examination he said, because he had had a medical problem on the given day.
I was mindful that Mr Stephenson was employed for a short time as a truck driver in four different positions. He told the Tribunal that he left each driving job because he could not sit still and drive for a long period, and that he had suffered pain in his back while driving, and had had to take heavy doses of analgesics to continue driving.
Mr Wallace submitted that Mr Stephenson left Wyer Clarke because he wanted to have a more secure and higher income from driving of, say, $500. per week. Mr Stephenson did not deny that and I accepted that the issue of income was a factor in the Applicant's choice to leave the job, but accepted his further evidence that it was the pain from his back condition which ultimately led him to resign.
Having noted the above, I then turned to consider the medical reports in relation to the Applicant's claimed incapacity, including all the medical reports both in the T-documents and those tendered at the Hearing. I have here referred only to the main medical evidence before the Tribunal, which included reports of Dr I Wilden-Constantin, Mr Stephenson's General Practitioner; Dr K Bleasel, Neurosurgeon; Dr N Dan, Neurosurgeon; Dr L Hughes, Orthopaedic Surgeon; Dr Lark, Occupational Physician; Dr W Wolfenden, Consultant Neurologist; Dr A Gonski, Consultant Neurosurgeon; Professor R Oakeshott, Consultant Physician, and others.
dr i wilden-constantin - general practitionerThere were numerous reports and medical certificates of the Applicant's General Practitioner, Dr Wilden-Constantin, before the Tribunal. The earliest report before the Tribunal was dated 18 September 1997 (T33). He stated, that:
"X-rays of his lower back revealed the presence of disc narrowing at the L4-L5-
S1 levels and a little anterior wedging of D12 and L1 vertebral bodies were noted….
CT scan of his lumbar spine revealed the presence of a mid-line posterior protrusion of disc material indenting the theca and a mid-line disc lesion projecting posteriorly was found at the L5-S1 level…
He presented again on 18th July, 1997 with an exacerbation of back pain which required him to have only one day off work…
On 25th August, 1997 I saw Mr. Stephenson and discussed with him the various avenues of rehabilitation and we discussed with his Rehabilitation Provider the possibility of alternative duties at Telstra.
Mr Stephenson was unable to work on 25th, 28th and 29th August, 1997 due to a slight exacerbation of back pain…
I am of the opinion that he needs to be redeployed in a clerical or supervisory type of employment."On 10 February 1998 (T58), Dr Wilden-Constantin wrote that:
"I feel that Mr. Stephenson should not return to pre-injury duties as he has tried this and has failed. Unfortunately we have tried all the avenues of conservative management for Mr. Stephenson and he should now be re-deployed permanently performing light duties with no recurrent or repetitive bending, lifting or twisting. His weight limitation should be restricted to about 10 kg.
I would also recommend that he has psychotherapy to help him with the transition from being a field worker to being a clerical type worker."Dr Wilden-Constantin also had reports dated 17 October 2000 and 6 April 2000, which were before the Tribunal at Exhibit A5 and A6 respectively. These reports were written after the redundancy took effect on 23 June 1999 and related to consultations with Dr Wilden-Constantin during the year 2000. In these reports, Dr Wilden-Constantin commented on Mr Stephenson's attempts at work as a truck driver and trainee barber. He opined in his report dated 17 October 2000 that:
"It appears that Mr. Geoffrey Stephenson's working potential may, in the future, be interrupted due to re-exacerbations of neck and back pain and therefore long term prognosis of this gentleman is very much guarded pending resolution of multiple soft tissue injuries."
dr k bleasel - neurosurgeon
Dr Bleasel examined the Applicant on a number of occasions. His reports were before the Tribunal as follows: 9 October 1998 at T113 and Exhibit A7; 17 February 1999 at T137 and Exhibit A8; 22 February 2000 at Exhibit A9; 29 February 2000 at Exhibit A10; and 14 June 2000 at Exhibit A11.
Dr Bleasel reported that he examined the Applicant on 29 September 1998 (T113) and noted that Mr Stephenson attended at a counsellor in December 1997 due to depression "mainly due to the fact that Telstra management were not helping him at all to find suitable work or to rehabilitate himself."
dr lloyd hughes consultant orthopaedic surgeonDr Hughes, whose report of 21 February 2000 was before the Tribunal as Exhibit R5, opined as follows:
"Any pain this man is experiencing in his lower back is, in my opinion, due to degenerative disc disease in his lumbar spine which has been identified on his investigations. There have apparently been several incidents at work which have resulted in him experiencing low back pain but these incidents would have only temporarily aggravated an underlying degenerative condition and would not be responsible for continuing symptoms now…
I do not consider that he is at present suffering from any condition which has been caused or materially contributed to by his employment."
dr n dan - neurosurgeon
The medical reports of Dr Dan dated 6 August 1997, 25 August 1997, 21 July 1998, 28 July 1998 and 21 September 1998 were before the Tribunal at T24, T30, T91, T95 and T105 respectively.
The report at T24 documented an examination by Dr Dan who ordered an EMG assessment be carried out. I noted that Dr Dan commented on x-rays and CT scans had been carried out previously. He wrote to Dr Wilden-Constantin on 25 August 1997 saying that the nerve conduction studies were normal and stating that: "I felt this therefore did not give support for a compressive dysfunction in the nerves."
Dr Dan wrote again to Dr Wilden-Constantin on 21 July 1998 (T91) after again reviewing Mr Stephenson, opining in respect the results of his examination as follows: "The pattern was not clearly diagnostic but I felt we had no option but to arrange for a new CT and will review him with results."
Dr Dan wrote a further report to Dr Wilden-Constantin on 28 July 1998 about Mr Stephenson (T95):
"On the 22nd July 1998 the CT was to hand and whilst it does show minor changes, including the small lumbosacral central disc protrusion and even smaller change at L4/5, I thought that the latter had reduced in size compared with May 1997 ... He himself is worried about his long term employment future but unfortunately I don't think surgery will resolve that issue for him…"
On 21 September 1998 Dr Dan provided another report, this time to Ms P Davidson in her capacity as case consultant for Telstra and the Applicant. He stated:
"I think Mr. Stephenson has a myofascial back injury with modest discal changes which significance to the diagnosis is questionable. He has had symptoms now for over a year and is therefore likely to continue to have back problems long term and probably permanently. On the progress to date, I think there is little likelihood that he will ever be able to work as a linesman again. At best he might be able to undertake light sedentary activities which allowed him to move around from time to time and did not involve maintenance of a fixed posture or anything involving lifting or bending or working (sic) confined circumstances … Physical rehabilitation programmes and pain management measures are the treatment options for Mr. Stephenson on his current status."
dr a lark - occupational physician
A report of Dr Lark dated 25 September 1998 was before the Tribunal at T108. Dr Lark, who stated that he was in general agreement with Professor Oakeshott, opined that:
"Mr Stephenson is not in my opinion totally and permanently incapacitated for work according to the strict Comsuper criteria.
Mr Stephenson could possibly benefit from participation in a full time back rehabilitation program … Fieldwork and office work by itself should not be considered; fieldwork because of the manual handling and postural requirements; office work because of the postural requirements, and possibly aptitude."
dr w wolfenden - consultant neurologist
Dr Wolfenden, in his report dated 17 February 2000 at Exhibit A12, opined as follows:
"Mr. Stephenson has a fairly typical history of lumbar disc disease. The lifting and pulling strains as well as a fall have resulted in disc protrusions with quite severe back pain which is now constant and sciatic nerve root irritation with pain radiating to both legs. His symptoms are clearly attributable to the nature and conditions of his work …
It is quite common that back conditions of this nature are aggravated by prolonged sitting and certainly by driving vehicles particularly over rough ground. It is quite reasonable that Mr. Stephenson should wish to avoid this. I also note that he was required to go to Canberra every day by car to attend a Work Management Centre and such travelling of course is just the sort of thing that a person with a bad back should not be required to do.Dr Wolfenden, in his further report of 14 March 2000 at Exhibit A13, disagreed with the opinion of Dr Gonski regarding the role of degenerative changes in Mr Stephenson's spine and opined as follows:
"Dr. Gonski appears to consider that the whole of the problem is attributable to degenerative changes in the lumbar spine and not to any trauma which may have occurred… it would be most unusual for a young man of 29 to have significant degenerative changes in his lumbar spine as the sole cause of such symptoms without the occurrence of some precipitating injury."
dr a gonski - consultant neurosurgeon
Dr Gonski, whose report of 9 February 2000 was before the Tribunal as Exhibit R2, opined:
"Mr Stephenson suffers from a degenerative condition of his lumbar spine. He has recurring bouts of low back pain which take a couple of weeks at a time to clear up… The CT scans describing minor degenerative changes in the two lower discs are again due to the degenerative spondylosis and in my opinion have no relationship with any specific effort that he might have made on 05.05.97 or at other times when backache occurred…
I had the impression that Mr Stephenson is making the most of the symptoms that he has and it is unlikely that he would ever return to his original work. I would not agree that he should return to his original work because of his degenerative state and suitable employment should be feasible for him even though some training might be necessary…
The diagnosis is degenerative spondylosis of the lumbar spine."
professor r oakeshott consultant physician
The Tribunal had before it a number of reports of Professor Oakeshott including those dated 14 January 1998 at T52, 1 April 1998 at T68 and 21 June 1999 at T168.
In his report at T52, Dr Oakeshott opined as follows:
"There is clinical and radiological evidence of multi-level disc protrusions (at L4/5 and L5/S1 level). There is no clinical evidence of any lumbar or sacral nerve root compromise …
I consider that on the balance of probabilities that the cause of his present condition is related to both the injuries which occurred at work in 1996 and 1997…"Professor Oakeshott examined the Applicant on 1 April 1998 and prepared a report which was before the Tribunal at T68. A summary of the findings follows:
"There was no evidence of any lumbar or sacral nerve root compromise at today's clinical examination …
He should not spend prolonged periods of time at a desk or at a computer terminal.
As stated in my previous report, he should be able to sit and stand at will. He should avoid any heavy lifting or constant or repetitive bending or pushing or pulling heavy objects … He should avoid prolonged walking, particularly up or down stairs and on uneven ground …
I consider that he is able to drive a car for short distances of up to one hour ... He should not drive for prolonged periods …
He has considerable concern about the attitude of his employer at present to his situation. This needs to be resolved. [noting that this final sentence occurred in a section headed Medical Retirement]Professor Oakeshott also reported on 21 June 1999 (T168) regarding a further examination of the Applicant. The salient points are identified as:
"I consider that he does have multi-level disc pathology. This is confirmed on x-ray and is sufficient to account for ongoing back pain ...
There is no clinical or radiological evidence of any nerve root compromise ("sciatica") …
I … consider that the significant event was in May 1997.
I could not identify any pre-existing condition, apart from the above, or any other non-work related factor that could explain his present back symptoms ..."I noted the submissions of both Counsel and have dealt with the submissions of Mr Porthouse below. I noted that Mr Wallace submitted the Respondent relied on the reports of Dr Dan who opined that Mr Stephenson had a myofascial injury and that "… the modest discal changes which significance to the diagnosis is questionable" .
Mr Wallace also submitted as follows:
"Now we accept that Professor Dan concludes that he has got a permanent injury. He thought it was a muscle injury. He also clearly doesn't think that the radiology is of any significance in terms of the symptoms that Mr Stephenson complains of. In truth, the radiological findings in terms of the degree and nature of symptoms complained of bear no relationship to each other. These are minimal modest discal changes. We don't have any explanation for a cause for the bizarre symptoms complained of by Mr Stephenson in terms of how it affects his gait or in terms of sensory loss and change. There is no nerve root entrapment here. There is nothing to account for his leg symptoms as Professor Oakeshott has quietly pointed out." (Transcript 8.2.01 p.40)
Mr Wallace further submitted that based on the opinion of Dr Hughes, Mr Stephenson was in 1992, showing early development of degenerative pre-existing changes. He submitted that Dr Gonski also supported this view. Mr Wallace added: "Whether they are causative of course is another issue. But to suggest that there is nothing around to suggest that there was likely to have been some pre-existing propensity, then Mr Stephenson is just clearly wrong on that evidence." (Transcript 8.2.01 p.40). Mr Wallace indicated that Professor Oakeshott had considered the incident in 1991 as minor. He indicated that the Respondent considered the degenerative condition was present before the later incidents that occurred to Mr Stephenson, and that any restriction he now suffered was as a consequence of those degenerative changes.
Mr Wallace also submitted that the medical reports indicated Mr Stephenson's prognosis as given by Dr Lark seemed favourable, and that Professor Oakeshott had found he had improved between the 1998 consultation and that conducted some 14 months later in 1999.
In coming to a conclusion as to whether Mr Stephenson has been incapacitated for work since 24 June 1999, I noted the submissions of both Counsel, and firstly accepted the opinion of Dr Wilden-Constantin who, as the treating General Practitioner, has had the longest involvement with Mr Stephenson, and who was of the opinion that Mr Stephenson should not return to pre-injury duties. He wrote on 10 February 1998 (T58), that the Applicant should be re-deployed permanently performing light duties with no recurrent or repetitive bending, lifting or twisting with a weight limitation restricted to about 10 kgs. None of the other doctors have indicated any disagreement with this course. Dr Wilden-Constantin also recommended that Mr Stephenson have psychotherapy to help him with the transition from being a field worker to being a clerical type worker.
I accepted Dr Dan's opinion who referred to the May 1997 injury as a myofascial injury and recommended pain management. He also opined that Mr Stephenson had (as at 21 September 1998) had his symptoms for over a year and was therefore likely to have back problems long term and probably permanently.
I was mindful that Dr Hughes considered that Mr Stephenson had an aggravation of his degenerative back condition which he opined had not been caused or contributed to materially by the employment. I noted that Dr Gonski agreed, and considered that the diagnosis was degenerative spondylosis of the lumbar spine, and that Mr Stephenson was making the most of the symptoms. He too, considered that it was unlikely that Mr Stephenson would ever return to his original work.
I accepted Dr Wolfenden's opinion as set out in his report of 17 February 2000 at Exhibit A12, that Mr Stephenson had a fairly typical history of lumbar disc disease. He opined that the lifting and pulling strains as well as a fall resulted in disc protrusions with quite severe and constant back pain and sciatic nerve root irritation with pain radiating to both legs. The Applicant's symptoms, according to Dr Wolfenden, were clearly attributable to the nature and conditions of his work.
I further noted that Dr Lark who said that he agreed with Professor Oakeshott, was of the opinion that Mr Stephenson could possibly benefit from participation in a fulltime back rehabilitation program. He said that fieldwork and office work by itself should not be considered, fieldwork because of the manual handling and postural requirements and office work because of the postural requirements, and possibly aptitude.
I was mindful of Mr Porthouse's submissions regarding Mr Stephenson's condition, and of his age when he sustained injuries to his back at work. In my deliberations, I have considered all the evidence carefully, mindful that Dr Wilden-Constantin had been the treating General Practitioner and that he was also the first medical practitioner who saw Mr Stephenson, shortly after the injury of 5 May 1997. In coming to a decision whether Mr Stephenson suffered incapacity after 24 June 1999, I preferred the evidence of Dr Wilden-Constantin who opined that the CT scan of Mr Stephenson's lumbar spine revealed the presence of a mid-line posterior protrusion of disc material and a mid-line disc lesion projecting posteriorly at the L5-S1 level, causing the Applicant pain. I noted Dr Bleasel's statement on 9 October 1998 (T113) that Mr Stephenson attended a counsellor in December 1997 because Telstra management were not helping him to find suitable work or rehabilitate himself. I was mindful that Dr Bleasel opined (T113/220) it was probably the earlier work related incidents which caused the disc damage and that the major factor which caused Mr Stephenson to be unable to work was the injury of May 1997.
I was also mindful that Dr Dan wrote on 21 September 1998 (T105) that Mr Stephenson had a myofascial back injury with modest discal changes but that he had had the symptoms for over a year by then and that the problems would therefore probably be long term and permanent.
I noted that Dr Lark, who said he agreed with Professor Oakeshott, opined that Mr Stephenson was not permanently incapacitated for work. Professor Oakeshott also opined that there was clinical and radiological evidence of multi-level disc protrusions at the L4/5 and L5/S1 levels. He opined that there was no clinical evidence of lumbar or sacral nerve root compromise. Professor Oakeshott, however, considered that the significant event was that of May 1997.
I considered the evidence of the Applicant and his history of continuing pain, particularly after the injury of May 1997, which Mr Stephenson said was more significant than the previous injuries. I accepted that in spite of the fact that Dr Dan said that the CT scans did not show nerve root impingement, and that the symptoms complained of were not necessarily commensurate with the injuries, that the Applicant suffered pain as described. I accepted that he could not return to his former duties at work. I have considered the opinions of the other doctors who examined and treated Mr Stephenson, and agreed that the restrictions under which he would have to work, including limited lifting, twisting and bending confirmed that he could not return to his pre-injury duties as a linesman.
I accepted the submissions of Mr Porthouse and gave considerable weight to the opinion of Dr Wolfenden who, in his report of 14 March 2000 (Exhibit A13), opined that it would be most unusual for a young man of 29 to have significant degenerative changes in his lumbar spine as the sole cause of such symptoms without the occurrence of some precipitating injury.
I therefore preferred the medical evidence supporting the Applicant to that of Drs Hughes and Gonski. I make the finding that the Applicant continued to be incapacitated for his usual work as a line serviceman as a result of injuries sustained at work on 5 May 1997, and accepted on the basis of his evidence and that of the medical practitioners who supported him before the Tribunal, that he could not return to his work as a linesman.
Much was made by the Respondent of the fact Mr Stephenson bought a motorcycle during August 1997 when he was complaining of injury and pain to his lumbar spine and legs, and that he later replaced it with a bigger Harley Davidson. I did not see this as fatal to his claim, and took into account the fact that the Applicant was a young man who because of his pain could no longer have a satisfactory sex life, or do sport as he had previously. Mr Stephenson's unrebutted evidence and that of his wife that he rode his motorcycle for short periods seemed to me a substitute for all the other activities the Applicant could no longer enjoy.
Mr Wallace submitted that Mr Stephenson's credit was in question as he had admitted telling a "white lie" regarding the improvement to his condition in a consultation with Dr Wilden-Constantin in July 1997. I noted the reservations of the Respondent regarding Mr Stephenson's credit but accepted Mr Stephenson's evidence that it had been at a time when he had been keen to appear improved, and obtain a clearance to return to work.
I preferred the final closing submission of Mr Porthouse with regard to Mr Stephenson. He submitted:
"It's so crystal clear that in this case that from the first date of injury to now, this applicant has tried to do numerous jobs and he's done them for short periods of time … Even if he's in employment now, this is an applicant who's never going to get over this particular back problem.
Again, it's one thing to refer to medical reports and say, well there's no medical explanation, but no one says that this applicant is malingering or that his pain is not genuine … No one's doubted his credit, and even Dr Dan … says the symptoms haven't cleared up and he has a permanent problem with his back and he'll never go back to his pre -injury work … You can't just look at one assessment on one day when you're making findings about permanent impairment because people have good days and bad days…" (Transcript 8.2.01 p.46).In summary, I was satisfied to the requisite standard that the Applicant's injuries at work, in particular that of 5 May 1997, rendered him incapacitated in terms of the Act for the work he had previously done as a line serviceman. I acknowledge that serious attempts were made by the Respondent to rehabilitate Mr Stephenson, and that ultimately he took a voluntary redundancy secure in the advice he received from Ms Davidson and others that this would not affect his rights to compensation. History shows that the redundancy took effect on 23 June 1999, one day before liability for compensation was ceased by the employer on 24 June 1999.
I found, however, from the medical evidence and that of Mr Stephenson, that with retraining, he could be redeployed doing other work where heavy lifting and repetitive bending or driving for long periods was not required. Such positions might include doorman at a club, vehicle safety checks, quality assurance or preparing quotes for work. A vocational assessment report prepared on behalf of Telstra also suggested retraining as a real estate sales person, taxi driver or security officer. I was also satisfied from the assessments made that Mr Stephenson could be a security guard. In saying this, I was mindful that Mr Stephenson's education was limited, and that he may require quite intensive retraining for any but the doorman position.
In coming to a conclusion that Mr Stephenson suffered a compensable injury at work on 5 May 1997 which has incapacitated him within the terms of the legislation, I was mindful that both Drs Gonski and Hughes considered that he had a degenerative condition of the lumbar spine. If Mr Stephenson indeed has a degenerative condition of the lumbar spine, then I find on the basis of the incident of 5 May 1997 that there was an aggravation of that condition, and I accept from his and the medical evidence that this is continuing. I was mindful that Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 enunciated the proposition that a "contribution" to a person's condition or injury by their employment was sufficient for the person to succeed in a claim, provided the causal connection had been properly established.
"...the causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small…
The contributing factor is not required to be the real or approximate cause of the lower back injury... All that is required and which has been satisfied in this case is that the relevant aspects of the applicant's employment with the respondent have added their measure to the creation of the condition ... or aggravation of the applicant's lower back injury/lumbar spondylosis ...
Any contribution, however small, by the circumstances of his employment, entitles the applicant to succeed."
I find that this applies in Mr Stephenson's case.
WHETHER THE APPLICANT FAILED TO SEEK SUITABLE EMPLOYMENT OR REFUSED AN OFFER OF SUITABLE EMPLOYMENT PURSUANT TO SECTION 19(4) OF THE SAFETY REHABILITATION AND COMPENSATION ACT 1988 AND WHETHER IT WAS REASONABLE IN ALL THE CIRCUMSTANCES
The question of what amount Mr Stephenson was able to earn in suitable employment, whether he failed to seek suitable employment, or refused an offer of suitable employment within the terms of the legislation must be considered in the light of section 19 of the Act which follows as relevant:
19(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment – the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake,
(g) 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; and
(h)any other matter that Comcare considers relevant."
I was satisfied that Mr Stephenson could not and did not demonstrate the same degree of restriction each time he was examined and that persons in his position do have good and bad days.
Mr Wallace submitted that the medical evidence did not support a permanent impairment claim for Mr Stephenson, either for his back or legs. He referred in particular, to the reports of Professor Oakeshott and Doctors Hughes and Gonski, the latter who opined that Mr Stephenson suffered from a degenerative back problem. Mr Wallace also referred to the evidence of Dr Wolfenden who referred to pain management, with Mr Wallace submitting that if the pain was causing the impairment and treatment could relieve that pain, then clearly the impairment was not permanent having regard to the criteria set out in the Guide.
I considered both Mr Stephenson's evidence regarding restrictions of movement and the medical evidence regarding the rating of any permanent impairment. Mr Stephenson's evidence was that he had difficulty sitting or standing for long periods and that he found it hard to do household chores or bath his daughter. He did not give any evidence as to difficulties with grades or steps pursuant to assessment under Table 9.5. although he did talk about pain radiating to his limbs. In fact however, the majority of the medical evidence and that of the Applicant himself centred around his lower back pain.
dr k bleasel - neurosurgeonDr Bleasel opined at T113 that Mr Stephenson has a permanent impairment of his back, the result of work related injury, in particular the injury of May 1997, and that this impairment amounted to 35%. I noted that Dr Bleasel did not mention in relation to which tables he had made this assessment. He said further that Mr Stephenson had a permanent loss of efficient use of each lower limb at and above the knee and taking into account below the knee, the right 25% and the left 15%. He added: "I do not think there was any pre-existing disease or condition which contributed to his present disability."
At T137 (also Exhibit A8) dated 17 February 1999, in reply to Mr Stephenson's solicitors, Dr Bleasel amplified his report of 9 October 1998 (T113 and Exhibit A7) and related the rating for Mr Stephenson's permanent impairment to the Comcare Guide. He opined:
"In his case there was little spinal movement, the lower spine was quite stiff and for this reason I believe he has lost more than half of the normal range of movement, which for the thoracic lumbar spine gives him a 20% whole person impairment.
With regard to the legs, Table 9.5:-
He can rise to a standing position and walk with difficulty and is limited to level surfaces and limited by numbness which develops if he walks any distance, so for this reason, I believe he has a whole person impairment of 30%."On 22 February 2000 (Exhibit A9), Dr Bleasel wrote again to the Applicant's solicitors after Mr Stephenson had consulted him on that day. He opined:
"This report is very similar to that of 29th May, 1997.
As it is necessary to adhere to the whole person impairments from the tables you supplied, these whole person levels are as follows:·Cervical spine, minor restriction of movement, therefore 5%.
·Thoraco lumbar spine, loss of more than half normal range of movement, therefore 20% whole person.
He will never return to his pre-injury work because he has suffered disc damage and has a permanent impairment of his back and legs."
It is not clear whether Dr Bleasel intended the whole person impairment to be 20% or 30% because on 29 February 2000 at Exhibit A10, he wrote again in reply to the Applicant's solicitors, opining that the level of impairment of the lower limbs "is unchanged from the level I gave on the 17th February 1999, namely the whole person impairment of 30%."
The last report of Dr Bleasel before the Tribunal was dated 14 June 2000 (Exhibit A11). In that he wrote of Mr Stephenson's permanent impairment and referring to Table 9.5:
"*Right Leg: Can rise to standing position and walk but has difficulty with grades steps and distances.
This amounts to 20% Whole Person Impairment.
*Left leg: Can rise to standing position and walk but has difficulty with grades, steps and distances.
This amounts to 20% Whole Person Impairment.
These disabilities are the result of the injury of 5th May 1997."
dr w wolfenden - consultant neurologist
I noted that Dr Wolfenden, in his report dated 17 February 2000 at Exhibit A12, opined as follows:
"He walked and sat normally though got on and off the couch with care. He could bend to get his fingertips to mid shin level and straight leg raising was restricted to 60 deg. on both sides …
Mr. Stephenson has a fairly typical history of lumbar disc disease. The lifting and pulling strains as well as a fall have resulted in disc protrusions with quite severe back pain which is now constant and sciatic nerve root irritation with pain radiating to both legs. His symptoms are clearly attributable to the nature and conditions of his work …
It is quite common that back conditions of this nature are aggravated by prolonged sitting and certainly by driving vehicles particularly over rough ground. It is quite reasonable that Mr. Stephenson should wish to avoid this. I also note that he was required to go to Canberra every day by car to attend a Work Management Centre and such travelling of course is just the sort of thing that a person with a bad back should not be required to do.
With regard to his lumbar spine I consider that he has a 15% whole person impairment.
I consider that he has a 10% whole person impairment with regard to each of his lower limbs."Dr Wolfenden, in his report dated 14 March 2000 (A13), disagreed with the opinion of Dr Gonski regarding the role of degenerative changes in Mr Stephenson's spine as follows:
"Dr. Gonski appears to consider that the whole of the problem is attributable to degenerative changes in the lumbar spine and not to any trauma which may have occurred … it would be most unusual for a young man of 29 to have significant degenerative changes in his lumbar spine as the sole cause of such symptoms without the occurrence of some precipitating injury."
dr a gonski - consultant neurosurgeon
Dr Gonski, whose report of 9 February 2000 was before the Tribunal as Exhibit R2, opined:
"Mr Stephenson suffers from a degenerative condition of his lumbar spine. He has recurring bouts of low back pain which take a couple of weeks at a time to clear up … The CT scans describing minor degenerative changes in the two lower discs are again due to the degenerative spondylosis and in my opinion have no relationship with any specific effort that he might have made on 05.05.97 or at other times when backache occurred.
I had the impression that Mr Stephenson is making the most of the symptoms that he has and it is unlikely that he would ever return to his original work. I would not agree that he should return to his original work because of his degenerative state and suitable employment should be feasible for him even though some training might be necessary …
The diagnosis is degenerative spondylosis of the lumbar spine."As to the lumbar spine, Dr Gonski opined at Exhibit R2:
"Mobility is very good, he bent down to 10cm. He tilted and extended well and straight leg raising test was negative bilaterally. He could sit up painlessly when either leg was fully raised …
In his assessment of the lower limbs also at Exhibit R2, Dr Gonski stated: "He suggested that he could not feel the sharp examining pin on either of his legs below the knee in a garter-like outline – this is not organic".
In a further report of 9 February 2000, Exhibit R3, Dr Gonski opined after a clinical examination of Mr Stephenson on that day:
"…. the applicant suffers from degenerative spondylosis of the lumbar spine and this I think is permanent, probably deteriorating at a slow rate. I do not think that this impairment arose out of the course of his employment …
I assess his permanent disability of the function of his lumbar spine as being 15% of the most extreme case …
I find no organic disability as far as function of either of the legs is concerned and permanent diminution of function is 0%."Solicitors for the Respondent wrote again to Dr Gonski who produced another report dated 17 March 2000 (Exhibit R4) in which he related his assessment for permanent impairment in relation to the Applicant to the Comcare Guide. He opined that:
"…there is permanent disability of function of the lumbar spine of 5% in terms of the whole person.
I assess the permanent disability of function of either leg as 0 % in terms of function of the whole person."
dr l hughes - consultant orthopaedic surgeon
Dr Hughes, in his report of 21 February 2000 (Exhibit R6), opined as follows:
"I do not consider that he is suffering from any permanent impairment of his spine or lower limbs related to his previous employment or injury. On the basis that he is suffering from a symptomatic degenerative condition of his lumbar spine there is a 10% impairment of his back."
dr a lark - occupational physician health services australia
Dr Lark, whose report dated 25 September 1998 (T108), stated that he was in general agreement with Professor Oakeshott that:
" Mr Stephenson is not in my opinion totally and permanently incapacitated for work according to the strict Comsuper criteria.
Mr Stephenson could possibly benefit from participation in a full time back rehabilitation program … Fieldwork and office work by itself should not be considered; fieldwork because of the manual handling and postural requirements; office work because of the postural requirements, and possibly aptitude. He should not be required to travel out of the town he lives in for work purposes …
Straight leg raising was possible to 60 degrees left and right and the knees could be fully extended when sitting on the side of the couch …
Rotation and lateral flexion of the thoracolumbar (TL) spine to the left was about 1/3 of the expected range.
Rotation and lateral flexion of the TL spine to the right was about ½ the expected range.
Extension of the TL spine was about 2/3 of he expected range.
Flexion of the TL spine left the fingertips 20-40 cm from the floor …"
professor r oakeshott consultant physician
In his report of 14 January 1998 at T52, Professor Oakeshott opined as follows:
"There is clinical and radiological evidence of multi-level disc protrusions (at L4/5 and L5/S1 level). There is no clinical evidence of any lumbar or sacral nerve root compromise ...
I consider that on the balance of probabilities that the cause of his present condition is related to both the injuries which occurred at work in 1996 and 1997 …"In a further report dated 1 April 1998 (T68) Professor Oakeshott summarised his findings as follows:
"There was no evidence of any lumbar or sacral nerve root compromise at today's clinical examination…
He should not spend prolonged periods of time at a desk or at a computer terminal.
As stated in my previous report, he should be able to sit and stand at will. He should avoid any heavy lifting or constant or repetitive bending or pushing or pulling heavy objects … He should avoid prolonged walking, particularly up or down stairs and on uneven ground …
I consider that he is able to drive a car for short distances of up to one hour … He should not drive for prolonged periods …
He has considerable concern about the attitude of his employer at present to his situation. This needs to be resolved." [noting that this final sentence occurred in a section headed Medical Retirement]Professor Oakeshott also reported on 21 June 1999 (T168) regarding a further examination of the Applicant and said:
"I consider that he does have multi-level disc pathology. This is confirmed on x-ray and is sufficient to account for ongoing back pain …
There is no clinical or radiological evidence of any nerve root compromise("sciatica") …
I … consider that the significant event was in May 1997.
I could not identify any pre-existing condition, apart from the above, or any other non-work related factor that could explain his present back symptoms ...
I consider that his alleged impairment has stabilised.
It is to be noted that his impairment relates to his description of his symptoms. There is no objective clinical evidence of any significant loss of back function…
I have referred to Tables 9.5 and 9.6 of the "Guide to the Assessment of Degree of Permanent Impairment."
Using these tables, I consider that he does not have any percentage impairment of his legs or back …
I consider that his back condition has no effect on his lower limb condition."I noted that Professor Oakeshott found Mr Stephenson's restrictions on movement varied between the times he examined the Applicant. That was to be expected as he had seen him over a period of time.
Having considered the medical evidence as stated above, I was mindful that:
Dr Bleasel, who appeared to calculate Mr Stephenson's permanent impairment as either 20% or 30% whole person Impairment, came down to 20% in his report of 14 June 2000 (Exhibit A11). He opined that the disabilities were the result of the injury of 5 May 1997.
Dr Wolfenden considered that Mr Stephenson had a 15% whole person impairment with regard to his lumbar spine, and a 10% whole person impairment with regard to each of his lower limbs.
Dr Wolfenden, who did not agree with Drs Gonski and Hughes that Mr Stephenson's lower back problems were of a degenerative nature, opined in his further report of 14 March 2000, that it would be most unusual for a young man of 29 to have significant degenerative changes in his lumbar spine as the sole cause of such symptoms without the occurrence of some precipitating injury. I gave considerable weight to the above statement, but noted that he did not address permanent impairment as such.
Dr Gonski opined that there was permanent disability of function of the lumbar spine of 5% in terms of the whole person and assessed no organic disability of function of either of the legs with permanent diminution of function as 0%.
Dr Hughes did not consider that the Applicant was suffering from any permanent impairment of his spine or lower limbs related to his previous employment or injury. He opined that on the basis that he was suffering from a symptomatic degenerative condition of his lumbar spine there was a 10% impairment of his back.
Dr Lark opined that Mr Stephenson was not in his opinion totally and permanently incapacitated for work according to the strict Comsuper criteria.
Professor Oakeshott stated that using the Tables, he considered that Mr Stephenson did not have any percentage impairment of his legs or back.
In summary therefore, not all of the medical practitioners whose reports were before the Tribunal used the applicable Tables to assess permanent impairment. Of those who did, Doctors Bleasel, Hughes and Wolfenden considered that Mr Stephenson had suffered permanent impairment to at least the 10% threshold required to qualify for compensation pursuant to section 24 of the Act. That means in terms of Table 9.6 that Mr Stephenson had loss of less than half the normal range of movement in his thoraco-lumbar spine. Doctors Gonski and Hughes opined that any disability was not due to the injury of 5 May 1997, but rather to degenerative changes that Mr Stephenson suffered. I was mindful and gave weight to the opinion of Dr Wolfenden who opined that it would be most unusual for a 29 year old to have such degenerative changes in his spine. Dr Wilden-Constantin, the treating General Practitioner had many reports before the Tribunal and considered that Mr Stephenson was permanently impaired to the extent he could not return to his pre-injury duties. It was he who initially recommended retirement on medical grounds.
I preferred the opinions of the medical practitioners who found that Mr Stephenson was permanently impaired as a result of his compensable injury of 5 May 1997. I find applying the results of the doctors' examinations and Table 9.6 of the Guide which applies to the lumbar spine, that Mr Stephenson reached the 10% threshold required for compensation pursuant to section 24 of the Act.
I was mindful that Doctors Bleasel and Wolfenden attributed values for permanent impairment of Mr Stephenson's legs. Dr Gonski found negative results bilaterally when testing Mr Stephenson's legs. Most of the other doctors did not assign particular values to the leg problems as asserted. Whilst I accept that Mr Stephenson may sometimes suffer pain in one or both of his legs from time to time, I did not find from the medical evidence or his own evidence that he was permanently impaired within the terms of section 24 of the Act with regard to either the left or right leg.
I remit the matter to the Respondent for calculation of monetary entitlements pursuant to my decision that Mr Stephenson is permanently impaired to the extent of 10% pursuant to Table 9.6, and for calculation of his section 27 entitlement.
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 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 activities 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. The Tribunal remits the matter to the Respondent for calculation of the Applicant's entitlements. This may include reasonable medical expenses pursuant to section 16 of the Act as appropriate. Costs are awarded in both matters pursuant to section 67(8) of the Act and the Tribunal's Practice Direction dated 18 May 1998.I certify that the 188 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 14-15 November 2000, 8 February 2001
Date of Decision 27 April 2001
Counsel for the Applicant Mr A Porthouse
Solicitor for the Applicant Mr P Daly
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Ms L Bishkov/Mr S Taylor
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