Watson and Telstra Corporation Limited
[2008] AATA 76
•29 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 76
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N200600871
GENERAL ADMINISTRATIVE DIVISION ) No 2007/0778 Re PAUL WATSON Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Dr I Alexander, Member Date29 January 2008
PlaceSydney
Decision (1) The reviewable decisions of the Respondent, dated 16 May 2006 and 15 January 2007, determining that Mr Watson had ceased to suffer the effects of his injuries on 23 June 1999 and on 29 May 1995 and that there was no present liability to pay compensation are set aside.
(2) In substitution for the decisions set aside, it is decided that on 29 May 1995, in the course of his work Mr Watson suffered an injury and that the injury was an acute protrusion of the L4/5 intervertebral disc. As a result of this injury Mr Watson is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988.
(3) On 23 June 1999, in the course of his work Mr Watson suffered an injury that was an exacerbation of the injury suffered in 1995.
(4) The injury to the L4/5 intervertebral disc that Mr Watson suffered in 1995 was a structural injury that is still present and has not resolved and the Respondent continues to be liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988.
(5) The decision on the matter of costs has been reserved. The parties have 14 days from the date of this decision to advise the Tribunal if they wish to put further argument. If they do not, the Tribunal will make an order pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, that the Respondent pay Mr Watson’s costs.
...................[sgd].....................
Dr I Alexander, Member
CATCHWORDS
COMPENSATION - Safety, Rehabilitation and Compensation Act 1988 – nature of the injury – decision to cancel compensation – whether the effects of the injury had ceased – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth) – sections 14, 67(8)
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Re Commonwealth of Australia and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees v Catherine Borg [1991] FCA 551
REASONS FOR DECISION
29 January 2008 Dr I Alexander, Member Introduction
1. Mr Watson is a 38 year old man who has been employed by Telstra since 1988. He is currently employed as a cable joiner.
2. On 29 May 1995 Mr Watson suffered an injury to his lower back while at work. The Respondent, then known as Telecom Australia, accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’).
3. In a decision dated 9 March 2000 the Respondent determined that the effect of Mr Watson’s injury in 1995 had ceased and that the Respondent was no longer liable to pay compensation in respect of the 1995 claim.
4. On 19 December 2006 Mr Watson requested reconsideration of the March 2000 decision by the Respondent.
5. In a decision dated 15 January 2007, the Respondent, after reconsideration of the evidence, determined that the effects of Mr Watson’s injury in 1995 had ceased and that there was no present liability to pay compensation. This decision is the subject of review by the Administrative Appeals Tribunal (‘the AAT’). (N 2007/0778)
6. On 23 June 1999 Mr Watson again suffered an injury to his lower back while at work. The Respondent accepted liability under the Act.
7. In a decision dated 28 March 2006, the Respondent determined that Mr Watson had ceased to suffer from the effects of the compensable injury sustained in June 1999 and that there was no present liability to pay compensation.
8. On 10 May 2006, Mr Watson requested a reconsideration of the decision.
9. In a decision dated 16 May 2006 the Respondent, after reconsideration, affirmed the decision of 28 March 2006. This decision is the subject of review by the AAT. (N 2006/0871)
ISSUES
(i) What is the nature of the injury that Mr Watson suffered?
10. In his oral evidence Mr Watson claimed that on the 29 May 1995, while digging a trench, he experienced a severe pain in his lower back and had to stop working. He was 26 years of age at the time and had no prior history of lower back symptoms.
11. Mr Watson was treated by Dr Schumacher, his General Practitioner (‘GP’) with pain medication and was referred for treatment with physiotherapy.
12. Mr Watson returned to work after about one week on lighter duties but continued to be treated with physiotherapy.
13. I note that in a brief letter to Dr Schumacher dated 12 July 1995, Mr McMullan, physiotherapist, noted that Mr Watson had presented for treatment with a problem suggestive of L4/5 disc protrusion.
14. On 30 August 1996 Mr Watson again experienced lower back pain while a work. His GP referred him for physiotherapy and arranged a lumbo-sacral spine X-ray.
15. A lumbo-sacral spine X-ray done on 30 August 1996 was reported to show “an old united fracture involving the antero-superior corner of the body of L3” and no other abnormalities. Subsequent specialist medical opinion confirmed that this apparent fracture was in fact a developmental anomaly and of no clinical significance.
16. On 8 July 1997 Mr Watson again complained of increased back pain and another lumbo-sacral spine X-ray was performed. This X-ray had not changed since the prior X-ray in 1996.
17. On the 23 June 1999 Mr Watson claimed that while sitting on a stool, cable joining, he twisted to pick up some pliers and experienced severe pain in his lower back. He was unable to continue working and although he was able to stand he had difficulty with walking and driving his manual car.
18. Mr Watson was declared unfit for work and again treated by his GP with pain medication and referred for treatment with physiotherapy.
19. On 25 June 1999 a CT scan was reported as showing “broad based posterior central disc protrusion” at the L4/5 level.
20. On July 1 1999 Mr Watson returned to work on restricted duties.
21. In August 1999 Mr Watson was referred by his GP to Dr Matheson, consultant neurosurgeon, who arranged an MRI scan.
22. On 9 August 1999 the MRI scan was reported as showing, at the L4/5 level, “a broad based disc protrusion posteriorly with evidence of annular tear”.
23. In a report dated 9 August 1999, Dr Matheson noted that Mr Watson had “one level disc disease at L4/5” with a small prolapse. Dr Matheson also noted that Mr Watson’s symptoms had “settled” and that as there was no evidence of neurological loss an operation was not necessary.
24. Mr Watson continued on restricted duties, including a return to work rehabilitation program, until November 1999 when the Respondent referred him to Dr Stephenson, consultant orthopaedic surgeon, for an independent medical opinion.
25. Dr Stephenson noted that Mr Watson complained of back pain that had generally not worried him, apart from some intermittent episodes, since the first injury in 1996 but that since the second injury in June 1999, Mr Watson claimed he often needed medication and had trouble sleeping.
26. Dr Stephenson diagnosed a lower lumbar disc lesion at the L4/5 level and opined that the injury could be due to a combination of the two described incidents.
27. Mr Watson continued on restricted duties until March 2000 when the Respondent referred him to Dr Mills, occupational physician.
28. In a report dated 10 March 2000, Dr Mills diagnosed chronic pain syndrome and musculo-skeletal deconditioning and recommended continuation of restricted duties.
29. In his report Dr Mills assumed, incorrectly, that at the time of the first episode of pain in 1995 Mr Watson had suffered a crush fracture of the L3 vertebra, briefly noted a recent L4/5 disc protrusion, and then went on to focus on issues of rehabilitation.
30. In my view Dr Mills’ report did not adequately address the nature of MrWatson’s injury and therefore on this issue I have placed less weight on his opinion.
31. In a letter dated 7 September 2000, a rehabilitation case consultant informed Mr Watson that there was “no need for further occupational rehabilitation” on the grounds he had been continuing to perform restricted field duties and that the current medical advice from his treating practitioner indicated a requirement for long term restrictions.
32. In response to a request from the Respondent, Dr Girgis, Mr Watson’s new GP provided a report, dated 18 September 2002, in which he noted that Mr Watson continued to complain of lumbar pain sometimes radiating to the left gluteal region that often interfered with sleeping and was generally worse with physical activity.
33. Dr Girgis opined that Mr Watson was fit for restricted duties only and prescribed Tramal, an opioid analgesic, at night only for the pain and sleep.
34. In October 2002 the Respondent referred Mr Watson to Dr Isbister, orthopaedic surgeon, for further assessment.
35. Dr Isbister, opined that Mr Watson suffered “from damage to the L4/5 intervertebral disc” with spondylosis at that level, and that on balance the “condition originated as a disc disruption in 1996”. He went on to say that further aggravation occurred in June 1999 “causing further permanent damage and changes in the disc with further stresses on the posterior facet joints of that level”.
36. In June 2005, Mr Watson had problems with his right knee and required an arthroscopy. During the recovery he had difficulty walking because of an uneven gait and this led to an increase in his back pain. However the back pain improved as his walking improved.
37. In January 2006, Mr Watson again suffered an exacerbation of his lower back pain. In his oral evidence Mr Watson claimed that this occurred at work, however, I note that an entry in Dr Girgis’ clinical notes, dated 19 January 2006, states: “exacerbation of mechanical lower back pain while on holiday”.
38. A CT scan report dated 8 February 2006 noted at the L4/5 level “a moderate sized broad based posterior disc protrusion more extensive towards the right with impingement on the thecal sac”. In comparison with the previous CT and MRI studies of 1999, the current study was reported to show that the disc protrusion at the L4/5 level appeared slightly more prominent and more eccentric to the right.
39. In February 2006 the Respondent referred Mr Watson to Dr Smith, consultant surgeon. In a report dated 17 February 2006, Dr Smith noted that Mr Watson was a vague historian and this perhaps explains the fact that the history obtained by Dr Smith was not consistent with the evidence before the Tribunal.
40. Dr Smith made no reference to the 1999 episode but did comment that Mr Watson was referred to Dr Matheson, giving the impression that this had occurred after the injury in 1995.
41. Dr Smith stated that Dr Matheson “evidently wished to operate on the claimant but surgery was refused by the claimant”. This was not consistent with Dr Matheson’s evidence.
42. Furthermore, Dr Smith made no reference to the CT scan that had been performed on the 8 February 2006.
43. The deficiencies in Dr Smith’s report are such that I am unable to place any weight on his opinion.
44. In a report dated 23 May 2006, Dr Wallace, orthopaedic surgeon, opined that Mr Watson suffered several injuries to his lumbar spine between 1995 and 1999 and that at the time of his initial injury in May 1995 he sustained a musculoligamentous injury and a central disc protrusion at the L4/5 level.
45. Dr Wallace also opined that the injury in June 1999 had caused a permanent aggravation of the 1995 spinal injury.
46. In a report dated 29 September 2006, Dr Maxwell, orthopaedic surgeon, opined that Mr Watson has “a small disc protrusion at the L4/5 level which has been present since the first scan” in 1999 and that it was probable that the protrusion had occurred “in the 1995 episode”.
47. Dr Maxell went on to say that he considered the 1999 episode an aggravation of the disc protrusion that had occurred earlier and noted that the most recent CT scan in 2006 confirmed that the protrusion was still present and that it appeared to have increased particularly to the right.
48. In a report dated 1 November 2006 Dr Dalton, rehabilitation specialist, commented that it was difficult to determine when Mr Watson suffered the lumbar disc protrusion but that the mechanism of injury and the acute onset of symptoms following the May 1995 incident was consistent with an acute lumbar disc injury superimposed upon pre-existing degenerative disc disease at the time.
49. Dr Dalton diagnosed mild chronic low back pain with current symptoms “consistent with mechanical lumbar pain related to facet joint arthropathy and degenerative disc disease”.
50. Dr Dalton speculated that in 1995, because Mr Watson had made a fairly rapid recovery, it was unlikely that he had sustained an acute lumbar disc protrusion at that time and that it was more likely that Mr Watson had suffered a number of work related aggravations of an underlying degenerative disc disease.
51. I note that Dr Dalton did not refer to the fact that Mr Watson was only 26 years old in 1995 and did not point to any evidence that Mr Watson did have degenerative disc disease at that time. In fact, apart from the isolated L4/5 disc abnormality, Dr Dalton did not point to any evidence supporting his opinion that Mr Watson suffered from pre-existing degenerative disc disease.
52. Dr Dalton stated that there was “no convincing clinical evidence to support the view that Mr Watson has at any stage suffered an acute lumbar disc protrusion as a direct result of his work duties”. Perhaps the exact time at which the protrusion occurred is arguable but the evidence, in the form of several scans, clearly indicated that Mr Watson did have a protrusion at L4/5.
53. On the question of Mr Watson’s injury, I found Dr Dalton’s report somewhat confusing and internally inconsistent and have placed less weight on his opinion.
54. Dr Matheson, consultant neurosurgeon, reviewed Mr Watson on 1 August 2007 and in his report opined that Mr Watson had suffered a prolapsed disc in 1995 and that he was still suffering from the effects of that injury.
55. Dr Matheson considered that the 1999 episode amounted to an exacerbation and pointed to the fact that the CT scan in 2006 demonstrated that the disc lesion was still present and had remained essentially unchanged.
56. In oral evidence, Dr Matheson affirmed his opinion that the disc prolapse had occurred in 1995 notwithstanding the fact that the radiological evidence to support that conclusion was not available until the scans were done in 1999. In support of his conclusion Dr Matheson pointed to his clinical experience as well as the fact that the circumstance of the original injury, namely, the physical activity associated with digging a trench with a shovel, was consistent with an acute disc prolapse.
57. Relevantly Dr Matheson also commented that disc prolapse is common and that about 85% improve and over time may shrink spontaneously but that about 15% will not improve and either remained unchanged or got worse.
58. Dr Matheson went on to say that the symptoms in patients, where the radiological appearance of the disc lesion remained unchanged, are likely to fluctuate and that as a result of the abnormal disc and consequent facet joint malalignment facet joint osteoarthritis was a likely complication.
Conclusion
59. It is clear that in May 1995 and June 1999 Mr Watson suffered an injury to his lower back while at work. What is not so clear is the specific nature of the injury that was sustained on those occasions.
60. Following the injury in 1999 a CT scan and an MRI scan confirmed that Mr Watson had suffered a protrusion of the L4/5 intervertebral disc.
61. Notwithstanding the fact that no scans had been done prior to 1999 and some discrepancies about dates, the weight of the medical opinion points to a conclusion that while digging a trench, in the course of his work in May 1995, Mr Watson suffered an acute injury to his lower back that took the form of an acute protrusion of the L4/5 intervertebral disc. Also that in 1999 Mr Watson suffered an aggravation of the injury to his L4/5 disc.
62. The only relevant dispute with this conclusion was found in the report of Dr Dalton. For reasons I have already sighted above, I have preferred the concordant opinions of the four orthopaedic surgeons and the opinion of the neurosurgeon, Dr Matheson. I found Matheson’s analysis of Mr Watson’s situation helpful and his evidence particularly persuasive
63. Furthermore it is clear that the CT scan done in February 2006 confirmed that the protrusion of the L4/5 vertebral disc had not resolved.
64. For the above reasons, I find that in February 1995, Mr Watson suffered an acute structural injury to his lower back in the form of a protrusion of the L4/5 intervertebral disc and that this lesion was aggravated in 1999 and has persisted relatively unchanged.
(ii) Had Mr Watson ceased to suffer the effects of his injury?
65. It is clear from the evidence that Mr Watson recovered from the original injury in 1995 and the exacerbation of that injury in 1999 sufficiently to return to work albeit with specific medically recommended restrictions to his duties.
66. In his oral evidence, Mr Watson claimed that since 1995 and particularly following the aggravation of his injury in 1999 he had suffered continuing but intermittent niggling pains in his lower back with episodes where his symptoms would become more severe. Sitting for long periods and walking often caused pain and sometimes he would experience pain radiating down his legs and numbness in his feet.
67. Mr Watson indicated that he was able to continue to work albeit with restrictions, he was able to drive a car with a lumbar support but was unable to perform some domestic duties such as mowing the lawn.
68. Mr Watson also indicated that he frequently took pain medication and intermittently took anti-inflammatory medication.
69. As already noted above, in 2005 Mr Watson suffered an increase in his lower back pain following an operation to his right knee that had caused him to have an uneven gait. As his knee improved and his gait returned to normal and his lower back pain decreased.
70. In January 2006, Mr Watson claimed that he suffered a significant increase in pain. At the time his GP noted that the pain was associated with severe spasm of his lower back muscles this improved with physiotherapy.
71. It would be fair say that Mr Watson’s oral evidence, regarding his symptoms, was at times rather vague, nevertheless, Dr Girgis’ practice notes and his report of 18 September 2002 tend to corroborate Mr Watson’s account of his problems with his back.
72. Also the intermittent pattern of Mr Watson’s symptoms is generally consistent with the medical evidence.
73. Dr Matheson concluded that Mr Watson would continue to have “flare-ups” of symptoms from time to time in the future.
74. Dr Stephenson stated that Mr Watson condition was permanent and that his incapacity for anything but lighter duties was likely to continue.
75. Dr Wallace opined that Mr Watson’s lumbar spinal symptoms would persist despite conservative treatment and recommended that restrictions on specified activities should continue.
76. Notwithstanding Dr Dalton’s contrary view as to the nature of Mr Watson’s injury he did acknowledge that he had suffered temporary aggravations of his lumbar spinal condition and that these episodes may require additional treatment.
77. Although Dr Maxwell agreed that Mr Watson had probably suffered a disc protrusion at L4/5 in 1995 he stated that it had “settled down”.
78. I can only presume that Dr Maxwell had meant that the acute symptoms had settled down because he went on to say that the 1999 episode was an aggravation of the disc protrusion and that the CT scan of the lumbar had confirmed the protrusion to be pathological.
79. Dr Maxwell went on to state that the more recent scan in February 2006 confirmed that the protrusion was still present and perhaps a little worse particularly on the right.
80. Dr Maxwell then went on to conclude that the effects of the aggravation that occurred in 1999 had ceased.
81. Again I can only presume that Dr Maxwell was referring to the acute symptoms associated with exacerbation of the injury, otherwise his opinion would not be consistent with his observation that the disc protrusion was still present.
82. The report of Dr Mills did not add anything.
Conclusion
83. The evidence before me clearly points to a conclusion that at the time of the original injury in 1995 and the exacerbation of the injury in 1999 Mr Watson suffered from acute symptoms that led to incapacity for work and required medical treatment.
84. It is also clear that Mr Watson recovered sufficiently to return to work albeit with restricted duties.
85. Notwithstanding Mr Watson’s claim that he has not been symptom free since 1995 the evidence supports a conclusion that there have been significant periods during which Mr Watson had been able function relatively normally both domestically and at work without the requirement for significant medical support albeit with some relevant restrictions on his activities.
86. However, the evidence also supports a conclusion that Mr Watson periodically suffered acute recurrence of more severe lower back symptoms, particularly pain, attributable to the continuing presence of the disc protrusion at L4/5.
87. The recurrence of the more severe symptoms was usually associated with increased incapacity and a requirement for additional medical treatment.
88. I have already concluded above that the disc protrusion at L4/5 that is currently still present represented an unresolved structural injury that occurred in 1995 in course of Mr Watson’s work.
89. For the above reasons I find that the evidence supports a conclusion that from time to time Mr Watson is likely to suffer the effects of the compensable injury he suffered in 1995 and may be entitled to compensation.
90. Whether Mr Watson is in fact entitled to compensation will obviously depend on whether his claimed incapacity and/or medical expense are attributable to his compensable injury.
CONSIDERATION
91. In deciding this matter I am mindful of the Full Federal Court Decision in Re Commonwealth of Australia and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees v Catherine Borg [1991] FCA 551 in which Jenkinson J said at [16], that a decision to cancel compensation should not be made unless the decision-maker “was persuaded that one of the entitling circumstances had or before [the date of the decision] ceased to exist”.
92. In this matter the evidence showed that in 1995, while at work, Mr Watson suffered an acute structural injury to the L4/5 intervertebral disc and that that injury was still present at the time the two reviewable decisions were made.
93. Furthermore in the Federal Court decision of Australian Postal Corporation v Oudyn (2003) 73 ALD 659 Cooper J said:
30 The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury…
31 The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act…
…
33 Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future…
34 APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act…
94. In this matter, for the reasons above, I have already found that in 1995, while at work, Mr Watson suffered an acute structural injury to his L4/5 intervertebral disc and there can be no dispute that the Respondent was liable to pay compensation pursuant to section 14 of the Act.
95. I have also found that the structural injury had not resolved and that from time to time symptoms attributable to this unresolved injury are likely to lead to work incapacity and medical expenses.
96. Therefore, the effect of the reviewable decisions on 16 May 2006 and 15 January 2007 would be to allow the Respondent to exonerate itself from future liability and prevent any future claims for a compensable injury that had not resolved and was likely to have intermittent but continuing effects on Mr Watson.
97. This result is clearly not permissible upon the application of the Federal Court decision in Oudyn.
98. It follows that the Respondent continues to be liable to pay compensation, in accordance with the Act, for the injury that Mr Watson suffered in 1995 in the course of his work.
DECISION
99. For the above reasons:
(1)The reviewable decisions of the Respondent, dated 16 May 2006 and 15 January 2007, determining that Mr Watson had ceased to suffer the effects of his injuries on 23 June 1999 and on 29 May 1995 and that there was no present liability to pay compensation are set aside.
(2)In substitution for the decisions set aside, it is decided that on 29 May 1995, in the course of his work Mr Watson suffered an injury and that the injury was an acute protrusion of the L4/5 intervertebral disc. As a result of this injury Mr Watson is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988.
(3)On 23 June 1999, in the course of his work Mr Watson suffered an injury that was an exacerbation of the injury suffered in 1995.
(4)The injury to the L4/5 intervertebral disc that Mr Watson suffered in 1995 was a structural injury that is still present and has not resolved and the Respondent continues to be liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988.
(5)The decision on the matter of costs has been reserved. The parties have 14 days from the date of this decision to advise the Tribunal if they wish to put further argument. If they do not, the Tribunal will make an order pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, that the Respondent pay Mr Watson’s costs.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
Signed: ...........................[sgd]...............................................
K. Thomson, AssociateDate of Hearing 18 December 2007
Date of Decision 29 January 2008
Counsel for the Applicant A Cooley
Solicitor for the Applicant M Johnston
Counsel for the Respondent B Kelly
Solicitor for the Respondent N Fisher
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