Walker and Telstra Corporation Ltd [2002] AATA 859 (26 September 2002)

Last Updated: 1 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 859

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/169

GENERAL ADMINISTRATIVE DIVISION )

Re IAN ROBERT WALKER

Applicant

And TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 26 September 2002

Place Melbourne

Decision The decision under review is affirmed.

..........Sgd. Mr J. Handley..............

Senior Member

CATCHWORDS

Compensation - applicant suffered neck, shoulder and arm pain - whether work related - whether pre-existing degenerative disease - whether any aggravation by employment - whether aggravation was temporary - decision affirmed.

REASONS FOR DECISION

26 September 2002 Mr J. Handley, Senior Member

1. On 21 November 2000 the respondent issued a primary determination where it decided that it was liable to pay compensation to the applicant with respect to the condition of fibromyalgia affecting his neck and both shoulders, the date of injury deemed to be 7 May 1998. Additionally, it decided that it ceased to be liable to pay compensation with respect to that injury from 21 November 2000. That decision was affirmed upon reconsideration on 18 December 2000. The applicant applies to review that decision.

2. The hearing was convened in Melbourne on 19 September. Mr Walker appeared without representation. Mr Ferwerda of counsel appeared on behalf of the respondent. Neither party called witnesses and each relied on medical reports. The applicant only gave evidence.

Ian Walker

3. Mr Walker was born on 6 August 1958 and is presently 44 years of age. He said that he suffered pain in his neck, shoulders and arms by gradual onset when employed as a call centre operator with the respondent. He said this was from early 1998 when he commenced employment. Mr Walker said that he sat at a desk operating a keyboard, receiving telephone calls. He described the location as "the battery hen of Telstra".

4. In approximately April or May of 1998 Mr Walker noted that he was "having problems" and he called in an occupational therapist. He was also attending Doctors at or about that time. He said that the Doctors were attending to identify the cause of the pain. Eventually he was referred to Doctor Hall a specialist rheumatologist.

5. Later in 1998, Mr Walker was transferred to an administrative position which he said caused a relief from pain and a reduction in symptoms. He completed that work for approximately 9 months and then took up a position as a training officer conducting classes for Telstra staff in sales, systems, services and Telstra products.

6. At the present time Mr Walker said that he has restriction in his neck movement but does not have pain.

7. In cross-examination Mr Walker agreed that he had not ever had time away from work because of these injuries and he last had physiotherapy in September 2000. He agreed that he sought to have Telstra responsible for the injuries and was concerned that future employment would aggravate his condition.

8. Mr Walker agreed that in May 1998 (T-4, p.7) an occupational therapist made a number of recommendations to cause him to be more comfortable at the workplace, principally by lowering his desk top and having a 5 minute break every hour to perform stretching exercises. He agreed that some of the suggestions made by the occupational therapist did cause relief from symptoms. In November 1999 an ergonomist recommended that a differently constructed chair be made available for him, however he said that it was not provided by the employer. At or about that time he was transferred into an administrative position and his symptoms improved.

9. Mr Walker was asked to comment upon some records obtained by Telstra which indicated that he was involved in a motor car accident in May 1992 and in April 1993. He said he could not recall those incidents and could not recall making a compensation claim as a result of each incident, but assumed that the incidents must have been minor and any claim made would have been for incapacity on the day of the accidents only. Additionally he could not recall attending any doctor for low back pain in May 1993.

10. Mr Walker agreed that the notes of Doctor Rustomjee did not record any connection between the injuries and employment at consultation in May 1998, nor for other consultations in 1988. Additionally Mr Walker recalled that in 1993 and 1996 he had been referred by Doctor Keighley and Doctor Wayne a cardiologist. Mr Walker was not aware that Doctor Keighley had provided a certificate recording a "18 month history of upper chest and neck pressure". Mr Walker acknowledged that he had had "problems" with his chest for some time but was not aware - and could not recall - that he had any problems with his neck for a similar duration. Additionally, he could not recall attending a Doctor Davis in Clayton in August 2000, a Doctor Beebee in Oakleigh in September 2001 or a Doctor Young at the Monash Medical Centre in January 1999. He said these Doctors all worked from 24 hour bulk billing clinics and the cause of attendances could not be recalled.

Submissions

11. Mr Walker relied on the reports found within the T-documents of Doctor Rustomjee at page 31 who recorded "his condition could have been caused or aggravated by the work he does at Telstra Corporation Ltd. He never had a pre-existing problem. ..... I feel his condition is permanent and he has a permanent partial incapacity". Doctor Rustomjee also reported that in his opinion the applicant's "sedentary work at a computer with clerical duties" was responsible for the injury" (p. 31).

12. The applicant also relied on a report of Doctor Hall, found at page 35 who recorded "his work may possibly have aggravated his condition and I think it reasonable for him to submit a Workcover claim".

13. Mr Ferwerda on behalf of the respondent submitted that the proper diagnosis of the applicant's injury was aggravation of pre-existing degeneration affecting the cervical spine. This submission was made by reference to the reports of Doctor Hall and Doctor Kostos, a medico legal practitioner who examined on behalf of the respondent.

14. Without conceding that there was any association between employment and injury, Mr Ferwerda submitted that if the pre-existing degenerative changes were aggravated by employment, that the aggravation was temporary only. He noted that Doctor Rustomjee certified the applicant as fit to return to normal duties on 30 August 2000 (page 14) and that Doctor Hall had recorded that the aggravation of the pre-existing degeneration was "temporary" in nature. Doctor Kostos, in his report of 4 December 2000 found that the applicant did not suffer from fibromyalgia, but there was evidence of disc degeneration and osteoarthritis, and possibly Scheuermann's disease in the past and restriction of thoracic spine rotation. He was of the opinion that the condition was constitutional, was not caused or accelerated by work, yet being seated at a computer or any stationary position for long periods will "aggravate his symptoms because his neck would stiffen up". He thought the effects were temporary and symptoms had improved since the applicant ceased working with a computer.

15. In reply Mr Walker said that he understood that the neck, shoulder and arm symptoms were work related and he pursued his claim and the present application on the advice of Doctors who said that it was "reasonable" to make a claim. He said he was unable to "determine whether the injury was temporary" but he said that it does continue to exist, however acknowledging that he had not seen Doctors or had physiotherapy for some time and has not ever been incapacitated.

Conclusion & Reasons For Decision

16. The applicant impressed me as a witness of truth who did not seek to embellish or exaggerate his symptoms. I am satisfied that he instituted these proceedings because he understood that his Doctors had recommended that he do so. It followed that he believed that his Doctors drew an association between employment and injury.

17. Having heard the applicant today and having read the medical & x-ray reports, I am satisfied that the applicant had a pre-existing degenerative cervical spinal disease, which was aggravated by employment. I am satisfied that the nature of his employment as a call centre operator produced a temporary aggravation of the pre-existing cervical spinal disease. X-rays of the shoulders do not show any abnormality.

18. I am satisfied that the recommendations by the Doctors that a claim for compensation be made, is consistent with the opinions then expressed by his Doctors, that the symptoms were temporarily aggravated.

19. I prefer the opinions expressed by Doctor Kostos, a specialist rheumatologist who did not find fibromyalgia but did record the possibility of other conditions affecting his cervical and thoracic spine. The finding by Doctor Rustomjee of fibromyalgia is inconsistent with the opinions of Doctor Kostos and Doctor Hall and the finding that the condition was "permanent" is consistent with the evidence of the other medical specialists except only in so far as pre existing cervical spinal disease may be considered as 'permanent'.

20. I would be satisfied that the applicant does permanently suffer from degenerative disease affecting his cervical and thoracic spine, however I am of the opinion that the employment did no more than temporarily aggravate that pre-existing condition.

21. I note that the applicant has not ever suffered incapacity and he last had physiotherapy for it in September 2000. I am satisfied that the effects of the temporary aggravation of pre-existing spinal degeneration had well and truly settled and ceased at 21 November 2000. There is nothing in the medical reports to indicate that the effects of the temporary aggravation have extended beyond that date. Doctor Rustomjee certified the applicant has been fit for normal duties in August of that year and the applicant has not attended Doctors for treatment of these conditions since November 2000. The applicant's only present complaint is restriction of movement in his neck but without pain. He does have some discomfort when he uses a computer but that is more in the nature of his pre-existing disease and is relieved by rest. There is nothing to indicate that the employment produced any permanent injury.

22. In all of the circumstances I am satisfied that the decision under review should be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: Katherine Navarro............................

Associate

Date/s of Hearing 19 September 2002

Date of Decision 26 September 2002

Counsel for the Applicant Self represented

Solicitor for the Applicant Nil

Counsel for the Respondent Mr Ferwerda

Solicitor for the Respondent Frenkel Partners Lawyers