Thomas and Telstra Corporation Ltd

[2005] AATA 1120

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1120

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/140

GENERAL ADMINISTRATIVE DIVISION		)
Re		TROY THOMAS

Applicant

And  TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal Dr M E C Thorpe, Member

Date10 November 2005

PlaceSydney

Decision The decision under review is affirmed

[Sgd] Dr M E C Thorpe, Member

CATCHWORDS

COMPENSATION – lower back strain sustained in the course of employment with Telstra – Telstra accepted liability for strain – does Applicant have ongoing entitlement to incapacity payments and medical treatment expenses – does Applicant continue to suffer effects of work related injury – if so do continuing effects of injury result in incapacity for employment – extensive medical evidence – inconsistent oral evidence from Applicant regarding his symptoms and ability – extensive video footage showing Applicant with normal movement and doing range of activity without apparent difficulty – Applicant no longer suffers continuing effects of injury – Applicant not entitled to ongoing entitlements – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 sections 4, 16, 19, 21

REASONS FOR DECISION

10 November 2005   Dr M E C Thorpe, Member

1.      Mr Thomas is a 37 year old man who was employed by a subsidiary of Telstra until 17 November 2000.  On 10 February 2000, Mr Thomas suffered lower back pain whilst lifting a cable drum in the course of his employment with Telstra.  Mr Thomas attended work for the next week and on 17 February 2000 he visited Dr Mikula who diagnosed him with “low back instability due to ligamentous strain” and certified him unfit for work. 

DECISION UNDER REVIEW

2.      The decision under review is the determination by GIO dated 4 February 2004 that Mr Thomas is no longer entitled to compensation pursuant to sections 4, 16, 19 and 21 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) in respect of “musculo ligamentous strain of the lumbar spine” sustained on 10 February 2000.

ISSUES

3.      The main issue in this matter is whether Mr Thomas has ongoing entitlements to incapacity payments and medical treatment expenses pursuant to section 16 and 19 of the Act.  In order to determine this, I must consider whether:

(a)Mr Thomas continues to suffer from the effects of the injury “musculo ligamentous strain of lumbar spine” arising out of the course of his employment with Telstra on 10 February 2000; and if so

(b)The continuing effects of the injury result in incapacity for employment.

BACKGROUND

4.      This matter has a complicated history which is outlined in the following paragraphs.

5.      On 10 February 2000 Mr Thomas suffered a “musculo ligamentous strain of the lumbar spine” in the course of his employment with Telstra.  Mr Thomas lodged a compensation claim for this injury.  On 21 March 2000, Dr Minogue, Consultant Occupational Physician, opined that, on the balance of probabilities, Mr Thomas’s condition was directly related to the February 2000 incident.  Dr Minogue noted that the effects were likely to be temporary and that Mr Thomas was fit to resume ‘suitable duties’.

6.      On 1 March 2000 a rehabilitation program was devised for Mr Thomas for the purpose of returning him to optimum work.  On 4 April 2000 Mr Thomas returned to work; performing clerical duties and on 1 May 2000 he returned to pre-injury duties.

7.      On 11 April 2000 the Respondent accepted liability in respect of “musculoligamentous strain of the lumbar spine”.

8.      On 3 November 2000, Dr Isaacs, Orthopaedic Surgeon, reported that Mr Thomas suffered lower back pain and diagnosed left sided sciatic nerve root irritation, damage to L3/L4 discs and soft tissue injury.

9.      On 17 November 2000 Mr Thomas ceased employment with Telstra after accepting a voluntary redundancy.

10.     On 15 May 2001, Dr Bodel diagnosed that Mr Thomas suffered disc injuries at L3/4 and L4/5 as a result of the incident in February 2000.  This was subsequent to an MRI of the Lumbar spine (T85) taken on 9 May 2001 which showed a left central / left paracentral disc protrusion and central L4 / L5 disc protrusion : “there is borderline canal stenosis at L4 / L5. In comparison to the previous scan the features at L3 / L4 are stable. The central protrusion at L4 / L5 is a little more marked than on the previous scan. No other change”.

11.     On 14 October 2002, Dr Ghabrial, Orthopaedic Surgeon, reported that since February 2000, Mr Thomas has suffered continuous back pain and left sciatica.  Dr Ghabrial noted that the MRI scan showed left L3/4 disc protrusions with indentation of thecal sac and slight caudal sequestration of disc material.  On 30 October 2002 Dr Ghabrial advised Mr Thomas to proceed with surgery.

12.     Dr Maxwell examined Mr Thomas on 31 October 2002.  Dr Maxwell considered that it was possible that Mr Thomas sprained his back in February 2000 but did not consider that his symptoms were typical of disc protrusion.  Dr Maxwell did not consider surgery warranted and considered that, after two and a half years, Mr Thomas no longer suffered the effects of any work related injury.  Dr Maxwell suggested an intensive exercise program.

13.     On 4 November 2003, Dr Matheson, Consultant Neurosurgeon, reported that Mr Thomas suffered an earlier injury to his back in 1991/1992 whilst working for Australia Post.  Dr Matheson diagnosed Scheuermann’s disease and reported that Mr Thomas was retreating into a sickness role and his symptoms were disproportionate to known pathology.

14.     On 9 September 2003 Professor Mitchell regarded both the 1991/1992 and February 2000 injuries suffered by Mr Thomas whilst employed by Australia Post and Telstra as strains rather than real disc prolapses and without serious consequences.  Professor Mitchell considered that Mr Thomas suffered from a constitutional weakness in his back aggravated by employment (although that aggravation had ceased).  In a further report dated 21 October 2003, Professor Mitchell stated that he did not consider that the February 2000 injury to be now preventing him from full time work not involving heavy lifting. In a later report dated 21 May 2004 Professor Mitchell stated that it was difficult to get a coherent history and that Mr Thomas was maximising his symptoms.  Professor Mitchell considered Mr Thomas unsuitable for employment and recommended a pain clinic. He considered that Mr Thomas has a constitutional weakness in his back.  

15.     On 10 November 2003, Dr Ghabrial provided a further report stating that Mr Thomas was unfit for pre-injury duties or any employment involving lifting over 10kg, excessive bending or twisting.  In Dr Ghabrial’s opinion, Dr Thomas’s injury to the L3/4 and L4/5 discs was related to the February 2000 injury.

16.     On 17 December 2003, the Respondent declined ongoing liability to pay weekly payments and/or medical treatment expenses on and from this date. The Respondent was persuaded by the opinions of Dr Matheson, Professor Mitchell and Dr Maxwell who all concluded that Mr Thomas no longer suffers from a condition related to his previous employment with Telstra which renders him totally unfit for work and/or necessitates specific medical treatment.

17.     On 24 December 2003, Mr Thomas requested a reconsideration of the 17 December 2004 decision.  The decision was reviewed and affirmed on 4 February 2004.

EVIDENCE

18.     In this matter, the Tribunal heard oral evidence from Mr Thomas and Mrs Thomas, the Applicant’s wife. Dr Matheson, Dr Bodel, Dr Maxwell and Professor Ghabrial provided written reports and oral evidence.  Reports from Dr Mikula, Dr Kuok, Dr Minogue, Professor Mitchell and Dr Isaacs were tendered as well as nine and half hours of video footage of Mr Thomas on behalf of the Respondent.

Mr Thomas’s evidence

19.     Mr Thomas was born on 25 February 1968 and is currently not working, and is in receipt of a disability support pension.  He injured his lower back in 1991 whilst working with Australia Post as a delivery officer.  He described the 1991 injury as tightness and onset of pain two thirds of the way down his back (about 8-10 centimetres above his belt).  As a result of the injury, he was taken off the bike for an extended period and was treated by an orthopaedic surgeon, Dr Wallace.  Mr Thomas also received physiotherapy and after about 12 weeks made a full recovery.

20.     After the 12 week recovery period, Mr Thomas returned to riding the bike and his normal duties. Mr Thomas said that he had no further trouble with this back injury after this 12 week period ended.  His evidence was that up until February 2000 he did not have any pain or discomfort or restrictions in the back; he was in the Army reserve; he used to hike and water ski and he coached his daughter's soccer team all without any back problems.

21.     In August 1995 Mr Thomas started work with Telstra, eventually working 38 and 3/4 hours a week installing equipment in exchanges.

22.     On 10 February 2000 he was attempting to move a cable drum weighing at least 55-60 kilos when he felt a mincing crushing and sudden pain in his lower back. He indicated the site of the pain as at the middle of the belt line; at a site different to the pain experienced in 1991. There was radiation of the pain down to the buttock/anus region. Mr Thomas was off work for six weeks, received treatment with analgesics, antiinflammatories, physiotherapy and hydrotherapy and placed on a back to work program. He also visited a chiropractor.

23.     Mr Thomas did some driving work for Woolworths in 2002 subsequent to Dr Mikula certifying him fit for suitable duties.  He had difficulty with this work. 

24.     During 2003 and 2004, Mr Thomas said he suffered back pain, and pains down his left leg, every day.

25.     Mr Thomas said that he is not working at the moment because he is not able to receive doctor’s clearance.  In addition, he said that he experiences back pain getting in and out of a chair, getting out of bed and getting on and off the toilet.  He also experiences difficulty bending; preferring to squat whilst holding onto something. He said he would not be able to squat and stay down working on something and if he did he would not last long and he would “be on his butt”. Regarding squatting Mr Thomas said that he was unable to squat all the way down. In addition he said that he was unable to bend repetitively. Similarly he said he would be unable to lift light weights of up to 10 kilos repetitively.

26.     Mr Thomas said he needs his wife to assist him with his activities of daily living and that he does virtually nothing around the house.  He said he occasionally works in the garden; he has washed his car once or twice in the past few years and he shops with his wife from time to time.  He agreed with his wife's report that he limps when he walks any distance over 10 metres.

27.     He said that he provided some assistance to his wife in 2002 when she had a take away food business. His wife now runs a business hiring and installing jumping castles. Mrs Thomas employs two or three men to erect the jumping houses when required. Mr Thomas said his only involvement in the business has been selling tickets, helping with the books and giving advice.

28.     Mr Thomas said his wife sells novelty things at the Maitland markets. He has on occasion sat with her at the markets during the day. Mr Thomas denied working at the Maitland markets at the end of last year.

29.     Under cross-examination Mr Polin put it to Mr Thomas that doctor’s notes reveal that he, in fact, did not have a back injury that only lasted 12 weeks in 1991.  Mr Polin also pointed to a physiotherapists report from 1993 suggesting that at that time Mr Thomas was in acute pain around the L4/5,L5/S1, down even possibly below the belt line and radiating into the buttock region.  Mr Thomas reply to this presentation of evidence was "I have no idea".

30.     Mr Polin also referred Mr Thomas to GP notes reporting lower back pain from 1990 all the way through to 1995.  Mr Thomas was unable to assist with the reason for a CT scan in 1995 and could not recall hurting his back in 1993.  Mr Polin also made reference to the Australia Post records of the 1990 injury as being two thirds of the way down the spine rather than 8-10 centimetres above the belt line, which Mr Thomas refuted.

31.     Further, Mr Polin pointed to Dr Kwok's reports of 1992, 1993, 1994 and 1995 which each note problems with Mr Thomas’s lower back.  Mr Thomas replied that he did not believe the lower back problem referred to by Dr Kwok to be the same problem as his current back problem.

32.     Mr Thomas's evidence was that he currently takes pain killing tablets and marijuana for the pain.

video evidence

33.     A very lengthy video was available to the Tribunal and to some of the doctors. Unfortunately it was not available to Professor Ghabrial because of the costs involved. The video records four separate occasions showing:

(a)Mr Thomas tattooing at the Maitland markets. (7 November 2004)

(b)Mr Thomas distributing pamphlets in a car park. (4 December 2004)

(c)Mr Thomas erecting a jumping castle. (5 and 6 March 2005)

(d)Mr Thomas carrying a case of stubbies (6 March 2004)

34.     This video ran for some hours and during the whole of the period, Mr Thomas appeared to have a normal range of physical activity.  The video shows Mr Thomas moving freely into and out of a van, carrying boxes; stooping, bending, crouching and rising without apparent discomfort or difficulty.

35.     The video also shows him walking around a car park without a limp and leaning forward without apparent discomfort.  On another occasion, the video shows Mr Thomas erecting a jumping castle unassisted; crouching on one and also both legs; driving steel spikes into the ground with his foot; using a sledge hammer and lifting the side of an inflated tent all with no apparent problem. 

medical evidence

36.     The history as given by Mr Thomas can be summarised as reported by Professor Mitchell "He is a very difficult man to get a history from”.  As is often the case, the medical evidence was at considerable variance, much depending on whether the doctor accepted Mr Thomas's account of the history and the symptoms described.  There is also variability in the physical signs elicited by different doctors; in particular relating to the sciatic nerve, including the interpretation of the stretch test and straight leg raising.

37.     In a report dated 17 August 2005 Dr Wallace stated that Mr Thomas experienced the onset of lumbar pain on May 1993.  Dr Wallace diagnosed the pain as “musculoligamentous strain of the lumbar spine” as a result of an injury with Australia Post on 30 May 1993. Dr Wallace reported that this pain recurred in January 1995 after Mr Thomas drove a truck with a faulty seat. Dr Wallace has not seen Mr Thomas since 1995.

38.     In March 2000 Dr Minogue, Occupational Physician, considered the effects of the 10 February 2000 injury to be of a temporary nature, but that a minor disc injury could not be excluded.  Dr Minogue reported that X-rays of the lumbosacral spine showed a slight scoliosis but were otherwise within normal limits.  MRI scans taken on 21 September 2000 and 9 May 2001 showed left central/ left paracentral L3/L4 disc protrusion; central L4/L5 disc protrusion: and borderline canal stenosisat L4/L5; facet joint degenerative change from L3 to S1 noted bilaterally.(T42; T85).

39.     Dr Isaacs examined Mr Thomas on 3 November 2000 and considered that it was likely that, as a result of the 10 February 2000 injury, Mr Thomas has most likely developed a left sided nerve root compression as a result of the damage to the L3/L4 disc and also some soft tissue injury ro the lumbar region.  

40.     On 21 May 2001, Dr Bodel considered Mr Thomas had suffered disc injuries at L3/4 and L4/5 as a result of the incident at work on 10 February 2000 and, based on clinical findings, reported that it was unlikely that he would be left with any long term structutal damage. This opinion contradicted his opinion of 14 April 2004 which reported continuing signs of radiculopathy and stated surgery as a possible option.

41.     On 14 October 2002 Dr Ghabrial reported that Mr Thomas had no previous history of back probems before the February 2000 incident.  Dr Ghabrial reported “left L3/4 disc protrusion with indentation of the thecal sac and slight caudal sequestration of the disc material” and recommended surgery. 

42.      Dr Maxwell examined Mr Thomas on 31 October 2002.  Dr Maxwell obtained a history of the 1990 incident detailing that Mr Thomas had eight weeks off work as a result of the injury. There is no mention of the 1993 and 1995 back problems. He considered that the signs and symptoms were not entirely typical of a disc protrusion and in particular that there was no evidence of nerve root irritation on examination. He would not consider surgery at that time. He considered that after two and 1/2 years Mr Thomas was no longer suffering from the work related strain. He considered it possible Mr Thomas was suffering back pain fron facet joint irriataion.

43.     On 17 May 2004, Dr Matheson reported that Mr Thomas suffered from Scheuermann’s disease and that radiologically Mr Thomas was worse at the thoracolumbar level.  Dr Matheson noted some changes at L3/4 and L4/5.  He noted that the 20 February 2000 incident was ‘just another back strain’.  Dr Matheson reported that it ‘would be difficult for him to continue to do heavy work because of his back disorder but nevertheless his disability is relative and there is no doubt that he has retreated into a sickness role…The effects of the strain at work have long since but he does have continuing disability in relation to his underlying Scheuermann’s disease’. Dr Matheson's reported that neurological examination of the lower limbs was negative with normal reflexes, full power and full sensation.

mrs thomas’s evidence

44.     Mrs Thomas provided a written statement and gave oral evidence. She said that her husband’s back was fine after he recovered from the 1990 incident and the only treatment he needed for his back, between 1990 and 2000, was “after the trouble with the bodgie seat when he was driving the truck in 1993”.  Mrs Thomas indicated that between 1995 and 2000 her husband was fully fit with no back problems, serving in the Army reserve and able to do a full range of normal physical activities. After the 2000 accident she noticed her husband to be in pain; he had good and bad days. She said that he had also developed a limp.

45.     Mrs Thomas said that her husband received physiotherapy treatment and saw a chiropractor for his neck and that he was taking pain killers and smoking marijuana to control the pain.

46.     Mrs Thomas attempted to offer the Tribunal some explanation as to her husband’s apparent physical range of movement in the video footage.  She said that he had good and bad days, he was able to squat but suffered subsequently and that he sometimes limped after walking more than 10 metres.  She explained that he smoked marijuana for pain relief and that she had noticed deterioration of his leg condition and the limp.

CONSIDERATION AND FINDINGS

Does Mr Thomas continue to suffer from the effects of the February 2000 injury?

47.     Mr Thomas has pathology in the back as evidenced by the MRI scans.  However, I find that this is evidence of a constitutional back problem unrelated to the events in 2000 as supported by the medical evidence from Dr Maxwell and Dr Matheson.  Both Dr Matheson and Dr Maxwell noted the MRI findings and did not attribute them to the 2000 incident.

48.     I find that Mr Thomas has an underlying condition in his spine and, as reported by Dr Matheson, may become symptomatic from time to time and has been present prior to and subsequent to his work with Telstra.  In support of this finding, radiology demonstrates there is pathology in the lumbar spine namely Scheuermann's disease.  In addition, Dr Wallace's report of some narrowing or stenosis in 1995 gives support to Dr Maxwell who in his report of 17 June 2005 said it would appear that he had a constitutional predisposition to developing low back pain.  Professor Mitchell also indicated that Mr Thomas suffered from a constitutional weakness in his back.

49.     The physical findings varied from doctor to doctor.  The medical opinions must rely considerably on the history obtained and co-operation by Mr Thomas and there are many inconsistencies.  In particular the failure of Mr Thomas to provide the details or full details of his back problems in 1993-1995. There was no evidence to collaborate the evidence of Mr Thomas and his wife that his back was symptom free during the period 1995 - 2000.  I place considerable reliance on Dr Matheson a neurosurgeon reporting a normal neurological exanimation in 2004, which is contrary to other medical opinions reporting the presence of a neuropathy.  

50.     I accept the opinion of Dr Maxwell who had the benefit of viewing two days of the video footage (he did not view the Maitland markets) and the reports of the Treating Doctors during the 1990's.  Dr Maxwell opined that Mr Thomas has no impairment and no disability as a result of his work at Telstra. Dr Maxwell agreed that any opinion on Mr Thomas was largely dependent upon whether you accept what he says in terms of symptoms and restriction as being truthful.

51.     I do not accept Mr Thomas’s evidence in terms of his symptoms and restrictions as being truthful based on the blatant inconsistencies between his oral evidence and the four days of video footage.

52.     I place considerable importance on the video evidence and the apparent contradiction of evidence given by Mr Thomas.  The video was taken on at least four different days over a period of some months and as recently as March 2005. The video was for a period of nine and one half hours.  My principal concerns arising from the video include;

(a)      Mr Thomas carrying out activities which both he and his wife said he was not capable;

(b)      His ability to squat repeatedly and for extended periods. The squatting Included on one and also both legs and they were full squats for extended periods and repeated on a number of occasions.

(c)       His ability to move freely into and out of a van at the markets at times carrying boxes without any apparent discomfort.  

(d)      Mr Thomas applying tattoos which involved stooping and squatting, a task he described as performed by other family members.

(e)      His ability to move freely around a car park, placing flyers under wind screens, requiring leaning forward, again with no apparent discomfort. He walked freely and there was no apparent limp (except on one occasion).

(f)       His ability to erect a jumping house, unaided, involving lifting a compressor, crouching on one or both legs, driving spikes into the ground and lifting the side of the jumping house.

53.     Mr Thomas is noted as having a mild left sided limp in the video as he walked across a grassed area.  However, I do not place any weight on this ‘limping’ footage as it is the only instance in the entire video footage that he is seen limping.  Mr Polin proposed that Mr Thomas started to limp on the video because he sighted the investigator.

54.     My view of the video was that Mr Thomas appeared to be a comparatively physically fit man (contrary to the comments of Professor Mitchell) capable of normal movement and activities. 

55.     I am aware that caution must always be exercised when viewing a video and I note Mr Grey's point that the video covers only a limited time period.  However, the video was extensive, taken over more than nine hours, on a number of separate days over an extended period.   I agree that although it may not show that Mr Thomas is capable of the activities for sustained periods, it severely contradicts his own evidence in terms of his physical capabilities.

56.     This is a difficult case with many contradictions, but taking into account the difficulties and inconsistencies with Mr Thomas’s evidence and the discrepancies between this evidence and what is seen on video, together with the differing medical opinions which are in large part related to the histories obtained, I am unable to be satisfied that Mr Thomas continues to suffer the effects of the injury attributable to the incident on 10 February 2000.  

57.     I am satisfied that Mr Thomas suffered a back strain on 10 February 2000 for which he received an entitlement and made a subsequent recovery and that he also has a constitutional condition in his back.  For the purposes of this determination I am not satisfied that Mr Thomas continues to suffer the effects of the work related injury that renders him incapacitated for employment or requires further medical treatment. He therefore does not satisfy sections 16 and 19 of the Safety and Rehabilitation Act 1988.

Do the continuing effects of the injury result in incapacity for employment?

58.     I do not need to make findings as to whether the continuing effects of the injury result in incapacity for employment because I have made findings above that Mr Thomas no longer suffers the effects of the 2000 work related injury.

DECISION

59.     The decision under review is affirmed.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M E C Thorpe, Member

A. Krilis

Signed:   Associate

Date/s of Hearing  15 March 2005, 26 July 2005, 1 September              2005
Date of Decision  10 November 2005
Counsel for the Applicant         Mr Leo Grey
Solicitor for the Applicant          Mr Gregory Smith
Counsel for the Respondent     Mr Nick Pollen
Solicitor for the Respondent     Ms Natalie Fisher