Titterington and Telstra Corporation Ltd - [2002] AATA 1014

DECISION AND REASONS FOR DECISION [2002] AATA 1014

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/1140

GENERAL ADMINISTRATIVE DIVISION          )
           Re      RODNEY TITTERINGTON
  Applicant
           And    TELSTRA CORPORATION LTD
  Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date25 October 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) K L Beddoe
Senior Member
CATCHWORDS
WORKERS COMPENSATION – liability – back injury - whether applicant suffering from a compensable injury – whether injury is of a degenerative nature
Safety Rehabilitation and Compensation Act 1988
Health Insurance Commission v Van Reesch (1996) 45 ALD 302

REASONS FOR DECISION

25 October 2002 Mr K L Beddoe, Senior Member

This application relates to a decision of the respondent's insurer, dated 4 August 2000, which determined that Telstra was not liable to pay compensation to the applicant in respect of a cervical spine condition. That decision was affirmed on 29 September 2000, following an internal reconsideration. The applicant sought a review of that decision by this Tribunal.
This matter was heard in Brisbane on 18 and 19 July 2002. In addition to the "T"-documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, the Tribunal had before it the following exhibits:

Exhibit A: A bundle of documents including a letter from Dr Splatt dated 24 June 1988; an application for leave completed by the applicant; and details of incapacity payments received and medical expenses incurred by the applicant;
Exhibit B: Clinical notes of Dr Todman;
Exhibit C: Report of Dr Tomlinson dated 29 January 2001;
Exhibit 1: Clinical notes from Stafford Medical Centre;
Exhibit 2: Letter from Dr Todman dated 24 November 2000;
Exhibit 3: Report relating to CT Scan by Dr Thorn dated 17 January 2000;
Exhibit 4: MRI Report dated Dr Anderson dated 18 May 2000;
Exhibit 5: Report of Dr Martin dated 27 April 2001.

Mr Smith of counsel appeared at the hearing for the applicant, and Ms Ford of counsel for the respondent. The Tribunal heard evidence from the applicant and a number of medical witnesses.
Factual Background
I make the following findings of fact:
(a) On 21 March 1979, the applicant was sitting on a draftsman's chair at work when the back of the chair broke free. The applicant fell to the ground, landing heavily on a concrete floor. The applicant sought compensation for a "soft tissue trauma back" (T9, folio 22), for which liability was accepted for a closed period (to 18 July 1979) (T20, folio 33). As a result of this injury, the applicant was absent from work for various periods between 21 March and 17 July 1979.
(b) On 28 April 1980, whilst removing equipment from the side of a work van, the applicant hit his elbow on the sliding door of the vehicle. The applicant claimed to have suffered an injury to his elbow and an aggravation of his former back and neck injuries. The applicant sought compensation in respect of his "left arm and neck" (T26, folio 43).…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] AATA 1014
Decision Date: 25 October 2002

CaseChat Overview and Summary

In the case of Titterington and Telstra Corporation Ltd, the primary issue before the court was whether the applicant was suffering from a compensable injury under the Safety Rehabilitation and Compensation Act 1988. The applicant, Mr Titterington, claimed that his current symptoms of pain and incapacity were caused by a fall from a draftsman's chair in 1979. The respondent, Telstra Corporation Ltd, argued that the applicant's current condition was due to a degenerative condition rather than the fall. The court was required to determine the cause of the applicant's ongoing symptoms and whether they were a result of the 1979 accident or a pre-existing degenerative condition. The medical evidence presented by both parties was pivotal in resolving this dispute.

The court meticulously examined the medical evidence provided by the various experts. The doctors who testified agreed that the applicant was suffering from nerve root irritation, but they differed on its cause. Doctors Watson and Martin held the view that the nerve root irritation was due to degenerative changes in the applicant's cervical spine at level C6/7, not the 1979 fall. They argued that the fall was minor and could not have caused a frank injury to the nerve root. Dr Martin further suggested that the degenerative condition was advanced and predated the 1979 accident. In contrast, the applicant's experts suggested that the fall could have caused a disc injury leading to ongoing pain. They contended that the current symptoms were causally related to the fall. The court had to weigh these conflicting opinions to determine the true cause of the applicant's condition.

In its decision, the court found that the applicant's current symptoms of nerve root irritation were indeed caused by a degenerative condition rather than the fall from the chair in 1979. The court was persuaded by the evidence that the degenerative changes in the applicant's cervical spine were both pre-existing and significant. The medical evidence, particularly from Doctors Watson and Martin, provided a compelling argument that the degenerative condition was the primary cause of the applicant's ongoing pain and incapacity. Consequently, the court ruled that the applicant was not entitled to compensation under the Act for his current symptoms, as they were not a result of the 1979 accident.

The court's decision was based on the preponderance of medical evidence that the applicant's condition was due to a degenerative process, not the 1979 fall. The findings of fact and the analysis of the medical evidence supported the conclusion that the applicant's current pain and incapacity were not compensable under the Act. This ruling underscores the importance of establishing a clear causal link between the injury and the accident for a compensation claim to be successful.

Orders

Orders of the court

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Background

Background to the litigation

Mr Smith of counsel appeared at the hearing for the applicant, and Ms Ford of counsel for the respondent. The Tribunal heard evidence from the applicant and a number of medical witnesses.Factual Background I make the following findings of fact:(a) On 21 March 1979, the applicant was sitting on a draftsman's chair at work when the back of the chair broke free. The applicant fell to the ground, landing heavily on a concrete floor. The applicant sought compensation for a "soft tissue trauma back" (T9, folio 22), for which liability was accepted for a closed period (to 18 July 1979) (T20, folio 33). As a result of this injury, the applicant was absent from work for various periods between 21 March and 17 July 1979.(b) On 28 April 1980, whilst removing equipment from the side of a work van, the applicant hit his elbow on the sliding door of the vehicle. The applicant claimed to have suffered an injury to his elbow and an aggravation of his former back and neck injuries. The applicant sought compensation in respect of his "left arm and neck" (T26, folio 43). Liability was accepted for this injury for a closed period (to 23 May 1980) on 19 December 1980 (T36, folio 56).(c) In July 1980, the applicant claimed to have suffered a re-occurrence of the injury to his neck whilst off duty. On 30 July 1980, the applicant was referred to Dr Blue for an assessment of his fitness for duty, and to assist the respondent in determining this further claim for compensation. Dr Blue reported to the respondent on 6 August 1980. He opined:"EXAMINATIONThere is no cervical deformity and a full range of cervical movement. Neurological examination of his upper limbs is normal. There is no wasting of his left hand's interossei and Froment's test is negative. X-rays of his cervical spine are normal. There is a full range of movement of his left elbow and wrist and no tenderness over his ulnar nerve.OPINIONThe incidents of March 1979 and April 1980 have not produced any permanent disability or loss of function nor predisposition towards same. There are no work restrictions and no treatment is indicated. His recent work absence is not related to either of the aforementioned incidents." The Tribunal heard oral evidence from the applicant, Dr Francis Tomlinson, Dr John Watson and Dr Bruce Martin.the applicant's evidence The applicant gave evidence. He stated that he had worked for the respondent and its predecessors since 1961, and had approximately fifteen years service. The applicant took a redundancy payment in 2000. Mr Titterington recounted the events surrounding his accident in 1979. He stated that he had been supervising a class of trainees, who were practicing telephone installations. He saw a chair in the corner of the training area and went and sat on it. He stated that when he leant back on the backrest of the chair it collapsed and sent him tumbling to the floor. As a result he suffered grazing on his elbow, and pain in his shoulder, back and neck. He stated that he did not injure his lower back in the accident, nor had he ever suffered lower back pain.

Evidence

Evidence Before The Court

The Tribunal heard oral evidence from the applicant, Dr Francis Tomlinson, Dr John Watson and Dr Bruce Martin.the applicant's evidence The applicant gave evidence. He stated that he had worked for the respondent and its predecessors since 1961, and had approximately fifteen years service. The applicant took a redundancy payment in 2000. Mr Titterington recounted the events surrounding his accident in 1979. He stated that he had been supervising a class of trainees, who were practicing telephone installations. He saw a chair in the corner of the training area and went and sat on it. He stated that when he leant back on the backrest of the chair it collapsed and sent him tumbling to the floor. As a result he suffered grazing on his elbow, and pain in his shoulder, back and neck. He stated that he did not injure his lower back in the accident, nor had he ever suffered lower back pain. The applicant completed an accident notification form immediately after the incident (T5, folio 16). He then went to Dr Michaux's rooms for treatment. Dr Michaux prescribed Voltaren for the pain and gave the applicant an injection of cortisone in his left shoulder area. Mr Titterington underwent physiotherapy every day after the accident, for a period of five days. He continued to see the physiotherapist, Mrs Judith Thurgood, over the following months, and years, as needed. He was also referred to Dr Toft, an orthopaedic surgeon. The applicant gave evidence regarding the circumstances surrounding his second accident, which occurred in April 1980. He stated that he had been working in the field as a cable joiner. He was taking testing equipment out of his work vehicle when he swung his arm around and knocked his left elbow on the vehicle. He stated that the incident had caused damage and pain to his elbow, and had re-triggered the pain in his neck and shoulder area. Following the accident, the applicant saw Dr Pincus, who treated him with manipulation. Dr Pincus recommended that the applicant be fitted with a specially made cervical collar. The applicant stated that he wore the collar for a "considerable period", and that he still wears the collar now, when he suffers particularly bad pain in his neck. The applicant stated that he could not recall what had happened to cause the flare up of his injury in 1988. He stated that he had sought treatment from Dr Pincus in relation to the problem, and had received manipulation. Mr Titterington was questioned about his appointment with Dr Blue, which led to the doctor's report dated 6 August 1980. He said that he had only seen Dr Blue for a short period of time ("Probably 5 to 7 minutes or 10 minutes, I'm not quite sure, but it wasn't a long period") and that his examination had consisted of a brief test of the applicant's grip. The applicant also stated that he did not recall Dr Martin ever asking him whether he had struck his head when he fell from the chair in 1979, and stated that it would have been a lie if he had said that.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Dr Martin accepted that it is possible that there could be some residual disc material causing irritation to the applicant's nerve root that could not be identified on the CT and MRI scans. However he did not considered that such a proposition fitted with the clinical presentation or the sequence of events in this case. He opined that if a piece of cervical spine had been displaced by the fall it would only have occurred due to the presence of pre-existing weakness in the applicant's cervical spine due to degenerative changes. However, the doctor would not agree that the applicant's fall from the chair in 1979 could have aggravated his pre-existing cervical spondylosis. Consideration Section 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides that the Commonwealth is liable to pay compensation for an injury suffered by an employee which results in death, incapacity for work, or impairment. The respondent argues that the applicant is not entitled to compensation under the Act as his current pain and incapacity is caused by a degenerative condition and not as a result of his fall from a draftsman's chair in 1979. The applicant submits that the current symptomatology suffered by the applicant is causally related to his fall in 1979. The applicant contends that he suffered a disc injury in the fall, which has resulted in ongoing pain caused by irritation to the nerve root either due to a disc prolapse or from a fragment of material dislodged in the fall. Alternatively, it has been suggested that the applicant's fall exacerbated his degenerative condition causing ongoing pain. Either way, the applicant contends that the current symptoms suffered by the applicant were caused by his fall in 1979. The doctors who gave evidence in this matter all agreed on one issue – that the applicant is suffering from nerve root irritation, however they believed that there is a different cause for this condition. Doctors Watson and Martin considered that the applicant's fall from the draftsman's chair would not have caused a frank injury to the applicant's nerve root. They opined that if such an injury had occurred, the applicant would have complained of neck injury immediately, although Dr Martin did concede that it was possible for a person to suffer referred pain in the back from a neck injury. Both considered the fall to have been relatively minor and incapable of causing a frank injury to the nerve root. Doctors Watson and Martin both believed the applicant's nerve root irritation to be caused by degenerative changes in his cervical spine at level C6/7 and not by his fall in 1979. Dr Martin considered the applicant to be suffering from an advanced degenerative condition, which he stated is evidenced by the CT and MRI scans, as well as the applicant's history of neck complaints prior to the accident in 1979. Dr Martin considered that the pain the applicant was suffering down his arm could have been caused by the degenerative changes in his cervical spine.