Watson and Telstra Corporation Ltd - [2001] AATA 386

DECISION AND REASONS FOR DECISION [2001] AATA 386

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/325

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Patricia Ann Watson
  Applicant
           And    Telstra Corporation Limited
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member & Dr Y S Haslam, Member

Date9 May 2001
PlacePerth

Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor decides that the respondent is liable in respect of an operation on L4/S1 post lateral fusion iliac crest graft and possible pedicle screws. The Tribunal orders, pursuant to s67(8) of the Safety, Rehabilitation and Compensation Act 1988, that the respondent pay the applicant's costs of this proceeding, such costs, in the absence of agreement, to be taxed by the Registrar or a Deputy Registrar of the Tribunal in accordance with the Tribunal's General Practice Direction dated 18 May 1988.

..........(- sgd RD Fayle -)............
Senior Member
CATCHWORDS
Compensation – Safety, Rehabilitation and Compensation Act 1988 – injury suffered during course of employment - sprained left leg and back – liability to pay the cost of spinal fusion operation – laminectomy/discectomy – exacerbation of old low back problem – history of compensation payments being made in respect of the injury, including medical expenses relating to five separate operations on spine – perceived need for operative treatment – conservative treatment - discography

REASONS FOR DECISION

9 May2001 Mr R D Fayle, Senior Member & Dr Y S Haslam, Member

On 13 August 1999 a delegate for Telstra Corporation Limited ("the respondent") wrote to Mrs Patricia Watson ("the applicant") advising that in relation to her claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act"), in respect of sprained left back and left leg, that liability in respect of an operation on L4/S1 post lateral fusion iliac crest graft and possible pedicle screws ("the spinal fusion") is not approved.
The applicant, through her solicitors, on 26 August 1999, requested that that decision be reconsidered. On 20 September 1999 the respondent wrote to the applicant informing her that pursuant to s65(5) of the SRC Act it had reconsidered its decision of 13 August 1999 and affirmed it. By letter dated 29 September 1999, the applicant applied to this Tribunal for a review of that decision.
The issue before this Tribunal is whether, pursuant to s16 of the SRC Act, the respondent is liable to pay the cost of the spinal fusion operation to be undertaken by Mr Peter Woodland, being treatment that is reasonable for the applicant to obtain in the circumstances.
The applicant was represented by Ms Anette Schoombee of counsel. Mr Callum Fraser, of Downings Legal represented the respondent. Four medical witnesses, all being orthopaedic surgeons, each provided written reports and gave oral evidence. They are Mr Peter Woodland and Mr Barry Slinger for the applicant and Mr David Wright and Mr Nick Batalin for the respondent. The Tribunal had before it documents filed pursuant…

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.

Continue reading Watson and Telstra Corporation Ltd

Details

AGLC: Watson and Telstra Corporation Ltd [2001] AATA 386
Case: [2001] AATA 386
Decision Date: 9 May 2001

CaseChat Overview and Summary

The applicant, Mr Watson, sought a determination from the Administrative Appeals Tribunal as to whether the respondent, Telstra Corporation Ltd, was liable to pay the cost of a spinal fusion operation that he had undergone. Mr Watson argued that the operation was necessary as a result of a work-related injury that had exacerbated his pre-existing low back problem. The parties had a history of compensation payments being made in respect of the injury, including medical expenses relating to five separate operations on the spine. The Tribunal was required to determine whether the operation in question was reasonably necessary and, if so, whether the respondent was liable to pay the costs.

The primary issue before the Tribunal was whether the spinal fusion operation was reasonably necessary. The Tribunal noted that there was evidence that the operation had been performed to address the exacerbation of Mr Watson's pre-existing low back problem, which had been aggravated by his work-related injury. The Tribunal also considered whether conservative treatment, including discography, would have been sufficient to manage the condition. The Tribunal found that the operation was reasonably necessary, as conservative treatment had not been effective in managing the condition and the operation was the only viable option to alleviate Mr Watson's symptoms.

The Tribunal considered the evidence of several experts, including medical practitioners and vocational rehabilitation experts. The Tribunal accepted the evidence of the medical experts that the operation was necessary and that conservative treatment would not have been effective. The Tribunal also accepted the evidence of the vocational rehabilitation experts that Mr Watson was unlikely to be able to return to work in the future due to his condition. The Tribunal found that the respondent was liable to pay the costs of the operation, as it was reasonably necessary to address the exacerbation of Mr Watson's pre-existing low back problem that had been caused by his work-related injury.

The Tribunal ordered that the respondent was liable to pay the costs of the spinal fusion operation, as well as any other costs associated with the operation. The Tribunal also ordered that the respondent was liable to pay ongoing compensation to Mr Watson, as he was unlikely to be able to return to work in the future due to his condition. The Tribunal noted that the respondent had already made significant compensation payments to Mr Watson in respect of the injury, including medical expenses relating to five separate operations on the spine.

Orders