Toop and Telstra Corporation Limited - [2011] AATA 712

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 712
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0901

GENERAL ADMINISTRATIVE DIVISION )

Re ALAN TOOP

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date14 October 2011
PlaceBrisbane (heard in Rockhampton)

Decision
The decision under review is affirmed.

.............Signed....................
Deputy President

CATCHWORDS
COMPENSATION – injury - aggravation of pre-existing condition – back pain – facet joint injury - no causal link to employment - decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 6, 108A
REASONS FOR DECISION

14 October 2011 Deputy President P E Hack SC

Introduction

The applicant, Mr Alan Toop, was employed by the respondent, Telstra Corporation Limited, in August 2010 when he experienced considerable pain in his back. It was, he thought, similar to pain that he had experienced when he stretched at home in March 2008.
On 26 August 2010 Mr Toop made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for a condition he described as “back pain – lumbo - sacral”. His claim was rejected. On 13 January 2011 that decision was affirmed on reconsideration by Telstra.
Mr Toop now seeks a review of the decision not to accept liability to pay compensation for his claimed injury. He says that he suffered an injury as that word is used in the SRC Act. Telstra, for its part, says that there is no medical evidence that Mr Toop has any identifiable injury and thus there is no “injury” as that term is used in the SRC Act.
The legislation
By virtue of s 108A of the SRC Act Telstra is liable to pay compensation, in accordance with the SRC Act, in respect of an injury suffered by an employee, if the injury results in death, incapacity or impairment. Mr Toop was an employee. So far as is presently relevant the term “injury” is defined in s 5A of the SRC Act in this way:
“(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
…”[1]
Thus in the case of an injury, as distinct from a disease, the injury, or an aggravation of it, must be one arising out of, or in the course of, the employee’s employment. Section 6 of the SRC Act sets out, in a non-exhaustive way, circumstances that may be treated as having arisen out of, or in the course of, employment. It will suffice to notice s 6(1)(b) which refers to an injury sustained “while the employee was at the employee’s place of work…for the purposes of that employment.”
[1] There are exclusionary provisions but they are not relevant here.
Factual background
Mr Toop has a somewhat complex medical history. In 2002 he underwent a surgical procedure for the repair of a hiatus hernia. He recovered well from the operation. He does not suggest, nor does the medical evidence suggest, that there is any connection between that matter and the complaints he now has.
On 30 March 2008 Mr Toop was at home. He stretched and, he says, “something went in my back”. He was in considerable pain. Subsequently he went to see his general practitioner, Dr Satya Bontula whose notes record him as complaining of upper abdominal discomfort[2]. Because he was complaining of pain in the vicinity of the hernia surgery, Mr Toop was referred to Dr Andrew Russell, the surgeon who had earlier treated his hernia. He complained of “left upper quadrant pain and left lower chest pain”. Dr Russell considered that the problem might be a chest or abdominal wall problem; it certainly bore no relationship with the earlier surgery. Mr Toop says that by about October or November 2008 this pain had disappeared altogether. Despite that, he continued with investigations by specialist practitioners.
[2] Exhibit 1, page 84.
In February 2009 he saw Dr David Gotley, an upper gastrointestinal surgeon, who considered that the pains were “more of a musculo-skeletal origin”. Dr Gotley undertook an endoscopy on 6 May 2009 which was unremarkable. Then on 12 May 2009 Dr Nicole Andrews, a general surgeon and endoscopist, surgically explored the site of the earlier hernia operation. Dr Andrews repaired a tear in the deep fascia, the layer of tissue beneath the subcutaneous fat overlaying the muscles.
The incident of which Mr Toop now complains occurred mid-morning on 18 August 2010. He was kneeling over a pit, simultaneously pulling a cable with one hand and pushing with the other. He started to notice pain in his back, at the bottom of the left side of his rib cage, which went through to the other side of his chest. It was, he said, exactly the same sort of pain he had experienced in 2008. He continued at work that day but was unable to stay at work the following day. He saw Dr Bontula on 20 August 2010. Dr Bontula’s notes record that Mr Toop was complaining of “low back pain since few days +” and that there was no history of any recent injury. Mr Toop had, apparently, been complaining of recurring and relapsing low back pain for some time. It is important to note that Dr Bontula’s notes are inconsistent with an incident of the type that Mr Toop complains of having occurred two days earlier.
Mr Toop lodged his claim for compensation on 26 August 2010, describing his injury as “back pain – lumbo sacral”. The claim was refused on 15 October 2010 and that determination was affirmed on reconsideration on 13 January 2011.
The medical evidence
In early 2010 a CT scan of Mr Toop’s spine showed only mild disc bulges at L3/4, L4/5 and L5/S1 levels. An MRI undertaken on 20 September 2010 found no abnormality.
Mr Toop was seen by Dr Peter Steadman, an orthopaedic surgeon, for the purposes of this claim. Dr Steadman’s report of 12 October 2010 noted complaints of pain around the thoracolumbar junction area however Dr Steadman was unable to provide any diagnosis to account for Mr Toop’s complaints. He noted some slight pre-existing wedging at the T11 facet joint.
The solicitors then acting for Mr Toop arranged for him to be seen by Dr Scott Sommerville, an orthopaedic surgeon, on 1 June 2011. He noted “considerable inconsistencies” in his examination of Mr Toop. He said,
“When certain manoeuvres were repeated the pain was considerably different to the same manoeuvre previously performed. He did seem to have some tenderness to the left of the lower thoracic spine and quite considerable upper abdominal tenderness and chest wall tenderness. These were the only positive findings on examination of his trunk. There was considerable inconsistency in location of this tenderness however. I noted he had no tenderness about his lumbar spine. He was able to forward flex and his hands reached his mid-shins and he had no extension of his lumbar spine, as he simply said he could not extend because of pain. His lateral flexion was 20° bilaterally, which is somewhat reduced. Any twisting manoeuvre even keeping his trunk straight i.e. twisting of the hips, caused pain. At one point I gave him his x-rays but he had difficulty even carrying them. I am not quite sure how he brought them to the consultation however.”
More recently Mr Toop was treated by Dr Agar-Wilson, a specialist in pain medicine and palliative care, who has since retired. Even though Dr Agar-Wilson was not called, I am prepared to infer, on the basis of his reports that are available and from the evidence of Dr Bontula, that Dr Agar-Wilson diagnosed that Mr Toop was suffering from a facet joint injury at the T10/11 level.
Consideration
Mr Clark, counsel for Telstra, accepted that it is open to the Tribunal to conclude that there had been an injury (in the sense that the word is used in the SRC Act) even when it was not possible to make a diagnosis but, as it seems to me, Mr Toop’s case does present a diagnosis; the difficulty for Mr Toop is that there is no apparent relationship between the diagnosis, one of T10/11 facet joint injury, and any occurrence in the course of Mr Toop’s employment.
Mr Toop attended his general practitioner on 20 August 2010, two days after an incident in which he says that, in the course of his employment, he injured himself. The history recorded by Dr Bontula, which I accept is accurate, is quite inconsistent with the event of which Mr Toop now complains. That inconsistency, together with the inconsistencies noted by Dr Sommerville, leads me to conclude that I am not satisfied by Mr Toop’s evidence that any event of the nature that he complains of occurred in the course of his employment. Whilst I am satisfied that Mr Toop has an injury i.e. a facet joint injury, I am not satisfied that Mr Toop has an injury as that term is used in the SRC Act. There is no satisfactory evidence of any connection whatsoever between that injury and Mr Toop’s employment
I would affirm the decision under review.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         ............Signed............................................................
  Associate
Date of Hearing  5 October 2011
Date of Decision  14 October 2011
Applicant  Unrepresented
Counsel for the Respondent     Mr CJ Clark
Solicitors for the Respondent    Sparke Helmore