Obierzynski and Telstra Corporation Limited [2011] AATA 269 (21 April 2011)

Last Updated: 21 April 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 269

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/0551

GENERAL ADMINISTRATIVE DIVISION		)
	Re		John Obierzynski

Applicant

And

Telstra Corporation Limited

Respondent

DECISION

Tribunal

Senior Member A K Britton and Dr M E C Thorpe

Date 21 April 2011

Place Sydney

Decision

The decision under review is set aside and a decision substituted that the Respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the injury suffered by the Applicant on 10 July 2009.

......................[sgd].....................
Senior Member A K Britton

CATCHWORDS
WORKERS COMPENSATION – Employees of eligible corporations – disc legion and nerve root impingement – incident at work – whether injury arising out of, or in the course of, the employee’s employment – inconsistent accounts of onset – temporal connection between work incident and onset of symptoms – employee’s vulnerability to injury irrelevant to question of whether injury suffered in course of employment – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A(1), 6(1) 14

REASONS FOR DECISION

Senior Member A K Britton

1. Telstra employee, Mr John Obierzynski made a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an alleged “injury” namely “low back pain with a pinched nerve”. That claim was refused. Mr Obierzynski now seeks review of that decision by the Administrative Appeals Tribunal.
2. There is no issue that in 2009, Mr Obierzynski suffered a L4/5 disc lesion and subsequent nerve root impingement. By October 2009 the pain had become unbearable and Mr Obierzynski was forced to stop work. Despite conservative treatment Mr Obierzynski’s condition deteriorated and in December 2009 surgery was performed. The treating neurosurgeon, Dr Simon McKechnie, believes that Mr Obierzynski has made a good recovery and the reported symptoms have largely resolved. Mr Obierzynski is now back at work.
3. Mr Obierzynski claims that his back condition was caused by heavy lifting at work on 10 July 2009. Telstra contends that the Tribunal could not be satisfied to the requisite standard that the injury occurred on that day and in the manner alleged by Mr Obierzynski. In the alternative, Telstra argues that Mr Obierzynski’s condition was attributable to pre-existing spinal degeneration and that the necessary causal link between his condition and employment has not been established.
4. We must decide whether the incident occurred in the manner alleged and, if so, whether Mr Obierzynski suffered “an injury” within the meaning of the Act.

STATUTORY SCHEME

5. By virtue of s 14 of the Act, Telstra will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Mr Obierzynski if it “results in” impairment or incapacity for work.
6. It is contended for Mr Obierzynski that he sustained an injury within the meaning of s 5A(1) of the Act, that is:

(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

7. Section 6(1) of the Act, sets out a non-exhaustive list of circumstances in which an injury to an employee may be treated as having “arisen out of, or in the course of, an employee’s employment”, which includes:

(b) while the employee was at the employee's place of work, including during an ordinary recess, for the purposes of that employment; or ...

MEDICAL HISTORY

8. In 2002 Mr Obierzynski injured his lower back after lifting a bag of cement from the back of a truck. Around 2004 Mr Obierzynski again injured his back while lifting a laptop out of a vehicle. In both cases the symptoms resolved after three to four weeks. According to Mr Obierzynski, between 2004 and mid-2009 he did not receive or require any treatment for his back and took no time off work.
9. There is no issue that, as revealed by x-rays of the spine taken in 2002, that as at the date of the alleged injury Mr Obierzynski had long standing degeneration of the lumbar spine.
10. Throughout the first half of 2009, Mr Obierzynski experienced aches and pain throughout his body, which became progressively worse to the point where he considered stopping work. In June 2009, he was diagnosed as suffering from a “polymyalgia rheumatica type disorder”. He was prescribed Prednisone (an immunosuppressant drug used to treat certain inflammatory diseases) which brought almost immediate relief.
11. The symptoms of that condition have largely resolved. It is agreed that that condition is unrelated to work and to the lumbar disc lesion diagnosed in September 2009.

HISTORY OF THE ALLEGED INCIDENT

12. We have before us a number of differing accounts about the circumstances surrounding the alleged injury.
13. In these proceedings, Mr Obierzynski testified that on the morning of 10 July 2009, he and his team were called out to undertake work on a building in York Street, Sydney. He said that he carried a bag of equipment that weighed about 20 kilograms up a flight, or several flights, of stairs to the rooftop of the building. He said he could not recall the exact number of flights of stairs.
14. In evidence in chief, Mr Obierzynski said that around mid-morning he developed lower back pain and it “gradually got worse”. He identified the pain as being “in the lower back just above the tail bone and ... shooting down the back” of his right leg. He described the pain as like nothing he had ever experienced before. In cross-examination he conceded that he could not recollect the events that occurred on 10 July 2009. He said he was unsure when he first noticed the pain but thought it was early to mid morning, probably around 9am when he was on top of the York Street building. He said when he got home he did some stretches in an effort to gain some relief.
15. According to Mr Obierzynski, sometime after the incident he made a diary note of the incident. He said he was unsure when he made the note but thought it was about a week after the incident when he started to think that the condition was more serious than he had originally thought. He said he did not refer to the diary before giving evidence.
16. Mr Obierzynski said that he initially tried to resolve his symptoms with physiotherapy and chiropractic treatment and by taking time off work using a combination of sick and annual leave. However over the next few months, the pain gradually got “worse and worse” and by October he had to stop work.
17. Mr Obierzynski lodged a claim for compensation with Telstra on 6 November 2009 nominating 10 July as the date of injury. On his account he did not report the incident earlier as he remained hopeful up until that date that the pain would resolve. He said he had been reluctant to make a claim because of Telstra’s alleged mistreatment of employees on workers’ compensation.
18. Tendered in these proceedings were the clinical notes of Mr Obierzynski’s GP, Dr Gunning. They reveal that on 31 August 2009, Mr Obierzynski reported symptoms of back and leg pain (apparently incorrectly recorded as the left leg). Dr Gunning referred Mr Obierzynski for an x-ray and CT scan of the lumbar spine and subsequently to neurosurgeon, Dr Simon McKechnie.
19. Mr Obierzynski first saw Dr McKechnie on 15 October 2009. In a report to Dr Gunning made on the same day, Dr McKechnie wrote:

[Mr Obierzynski]...initially developed polymyalgia rheumatica six months ago and was reviewed by Dr. Harry Paterpanian from rheumatology. He is on a reducing dose of Prednisone. This was shortly followed by the onset of mild back pain with severe pain radiating through the right leg and into the foot associated with numbness in the lower leg and foot. The pain has continued despite anti-inflammatories, physiotherapy and chiropractic treatment. He denies any left sided pain. He believes that the pain may be due to his work as a linesman from Telstra.

20. In a note made on 19 October 2009, Dr Gunning recorded:

[Dr McKechnie] also apparently suggested that the problem was work-related. Thinks it is related to work. Remembers a time when had onset of pain on 10th July 2009. Getting gear out of truck felt pain low back. Slowly got worse with low back pain and pain left leg and presented here 31/08/2009.

21. In cross-examination Mr Obierzynski denied telling Dr McKechnie that the pain came on “shortly after” the development of polymyalgia rheumatica.
22. In a report dated 29 April 2010, prepared at the request of Mr Obierzynski’s solicitors, Dr McKechnie gave this history:

In July 2009 [Mr Obierzynski] developed the onset of back and severe right left pain in the course of his work although there was no specific incident.

23. Mr Obierzynski was also assessed by orthopaedic surgeon Dr Rhys Gray at the request of Telstra. In a report dated 26 November 2009, Dr Gray recorded:

Mr Obierzynski said he experienced the gradual onset of low back discomfort – ‘a muscle pain’ in the central low back and to the right side, in June 2009. The onset was not related to any particular activity. There was no specific injury. He said he initially observed this and thought it would settle. He undertook some exercises for his low back.
However, with time the symptoms became progressively worse with no obvious exacerbating incident. There was increasing pain localised to the low back plus the onset of a right sciatica. He described pain in the low back, right buttock, back of the right leg and calf and into the right ankle. This was associated with paraesthesia in the toes of the right foot. There was no left-sided pain.

24. According to Mr Obierzynski, when he saw Dr Gray he was “smashed” on strong pain medication. He said the insurance company had threatened that if he did not attend they would “throw the whole lot out the door”. In his report, Dr Gray recorded that Mr Obierzynski was in “considerable distress”. When questioned in these proceedings he said that Mr Obierzynski nonetheless appeared able to give a good history.
25. Mr Obierzynski was also assessed by consultant rheumatologist Dr Neil McGill. In a report dated 28 July 2010, Dr McGill recorded that Mr Obierzynski had told him that:

On 10 July 2009 he experienced pain in his low back. On that day he had carried a bag (weighing up to 20kg) either up or down several flights of stairs ... On 10 July 2009 he carried the bag but was not aware of any problem at that stage. That afternoon he and others went to Engadine. He climbed a tower (20 metre tower with lattice-like structure but no ladder or stairs). He completed those work duties. Over the course of that day he had some pain in his low back. He explained that when he left work he “didn’t think much of it”.

26. Dr McGill went on to record that in September 2009 Mr Obierzynski’s “back symptoms were getting worse” and he “developed pain radiating down the right lower limb from the thigh to the calf”.
27. A month later Mr Obierzynski was seen by orthopaedic surgeon, Professor Sydney Nade at the request of Telstra. In a report dated 24 August 2010, Professor Nade wrote that he read the history taken by Dr McGill to Mr Obierzynski and invited him to advise if he disagreed with any part of that history. There is nothing in Dr Nade’s report to indicate that Mr Obierzynski disagreed with the history taken.
28. In a report dated 18 October 2010, Professor Phillip Sambrook recorded:

On 10th July 2009, [Mr Obierzynski] attended a job in the city and it was his responsibility to carry the pin testing equipment (weighing about 20kg as described above) up several flights of stairs. Later that afternoon he went to a job at Engadine where he had to climb a 20 metre tower. Over the course of the day he had become aware of pain in the low back. He had a period of leave around this time and so he saw a chiropractor for these symptoms. However despite attending a physiotherapist and chiropractor, within a few weeks he also developed pain down the back of the right leg from the buttock to the calf. This was quite sharp pain which he described “like sciatica”. There may have been some occasional pins and needles at that stage also.

WHEN DID ONSET OF SYMPTOMS OCCUR?

29. As is apparent from the above, a number of different accounts have been recorded of the circumstances of Mr Obierzynski injuring his back:
    • The account Mr Obierzynski gave in these proceedings of simultaneous onset of lower back and radicular symptoms on the morning of 10 July 2009, “like pain never experienced before”
    • The record made by Dr Gunning on 19 October 2009 which recorded the onset of back symptoms “while getting gear out of truck” on 10 July 2009 and slowly getting worse with low back and left leg pain
    • The account recorded by Drs McGill, Nade and Sambrook of the onset of back symptoms on 10 July 2009 and radicular symptoms sometime later – within a few weeks (Professor Sambrook); in September 2009 (Drs McGill and Nade)
    • The account recorded by the treating neurosurgeon of the onset of back and radicular symptoms at work around July 2009 and Mr Obierzynski “not remembering any specific incident”.
    • The account recorded by Dr Gray of the onset of low back pain to the right side in June 2009 not related to any particular activity and later onset of radicular symptoms.
30. The major inconsistency between the account of the alleged back injury given by Mr Obierzynski in these proceedings, and the accounts provided to the medical practitioners, relates to the date of onset of lower back pain and radicular symptoms. Apart from Drs Gray and McKechnie, all doctors gave 10 July 2009 as the date of onset of back symptoms. Dr Gray recorded onset in June 2009. In it unclear from his first report whether Dr McKechnie understood onset to have occurred shortly after the development of polymyalgia “six months ago [March 2009]” or after the review by the rheumatologist in early June 2009. In his second report Dr McKechnie referred to onset “around July 2009”. He is the only practitioner to have recorded simultaneous onset of back and radicular symptoms.
31. It is entirely plausible that when assessed by Dr Gray, ten days before surgery, Mr Obierzynski was unable to give an accurate history. By that time he was in a great deal of pain, was walking with crutches and was heavily medicated. This might explain the inconsistency between that history and the account given in these proceedings, in particular, “onset ... not [being] related to any particular activity”. However that does not explain why Dr McKechnie also stated that there was no “specific incident”.
32. There are any number of explanations which might account for the varying histories given. Mr Obierzynski might be a person who has difficulty recalling matters of detail without the benefit of contemporaneous notes. It may be that his poor health throughout 2009, suffering first polymyalgia and later a disc lesion — both of which were accompanied by severe and disabling pain — might have affected his ability to accurately remember the events surrounding the onset of symptoms. It could also be as we understand Telstra to suggest that he invented the account of onset of symptoms at work to enhance the prospects of his claim being accepted.
33. The weight of evidence suggests that, rather than causing immediate radicular symptoms, there was a gradual onset of those symptoms after 10 July 2009. While not possible to say with confidence when Mr Obierzynski first noticed those symptoms, Dr Gunning’s records reveal that onset had occurred at least by late August. In our view, when he gave evidence at the hearing, Mr Obierzynski presented as a witness who was apparently attempting to give an honest history. Nevertheless, because of the variance between that account and the accounts given to doctors, we concluded that he was probably reconstructing his evidence. As he conceded, he had no independent recollection of the events that occurred on 10 July 2009. We think that the medical evidence (including the recorded histories given by Mr Obierzynski) is likely to be a more reliable basis for our ultimate findings (see below for analysis). While there is a variance between those histories there is a consistent thread of onset of back symptoms on 10 July 2009 and later onset of radicular symptoms. We think that one matter asserted by Mr Obierzynski on which we can place reliance is that on 10 July 2009 he noticed the onset of back symptoms.
34. In our opinion Mr Obierzynski has provided a plausible explanation for the delay in reporting the injury even if his concerns that his employment might be jeopardised, are baseless.
35. We are satisfied on balance that Mr Obierzynski noticed the onset of back symptoms on 10 July 2009 and radicular symptoms some time later, but before 31 August 2009.

MEDICAL EVIDENCE

36. Two of the five medical experts whose opinions are before us believe that Mr Obierzynski’s employment was a contributing factor to the development of the lumbar disc lesion and subsequent nerve impingement
37. The experts used various terms to describe the condition revealed on imaging in September 2009. The radiologists described it as a “disc bulge”, a description with which Dr McGill agreed, on the premise that the terms “protrusion” and “bulge” describe different points in a progression of degenerative change. Dr McKechnie described it as a “disc protrusion” and Professor Sambrook as a “disc prominence”. Professor Nade explained that these are differences without a distinction. Adopting that approach, we have described Mr Obierzynski’s condition as a disc lesion.
38. Dr McGill was of the opinion that Mr Obierzynski suffered chronic narrowing of the spinal canal which was entirely constitutional and had caused nerve root irritation. He explained that surgery was performed to stop further irritation by “freeing up” the area around the nerve root and would have involved the removal of bony and disc material. He believed it relevant that Mr Obierzynski had advanced degenerative change at L2/3 and L3/4, and not just at the level where surgery was performed (L4/5).
39. Dr McGill thought it unlikely that carrying a 20kg bag could have resulted in a disc prolapse especially given that Mr Obierzynski did not immediately experience pain on lifting. In oral evidence he said he did not obtain a description of the bag from Mr Obierzynski or the manner in which it was carried, because he thought those details to be irrelevant given Mr Obierzynski’s failure to report immediate symptoms. In Dr McGill’s opinion, a disc prolapse could be caused by either trauma or spinal degeneration and in the absence of any evidence of trauma he was confident that in Mr Obierzynski’s case it was the former.
40. Dr McGill cited three studies which in his opinion raised real doubts about the causal link between disc degeneration and occupational factors.
41. Like Dr McGill, Dr Gray thought it relevant that bulges were evident not only at L4/5 but throughout Mr Obierzynski’s spine. In his opinion they were largely constitutional. He thought it unlikely that the lumbar spinal stenosis and L5 nerve root entrapment were consequences of Mr Obierzynski’s employment and while his symptoms might have been exacerbated by work, work would not have “caused” the problem. He pointed out that in a compromised canal such as Mr Obierzynski’s, even a slight disc protrusion could result in nerve root compromise. He thought as a matter of first principle a person undertaking heavy manual work is more likely to develop disc protrusions especially if they have a degenerative spine.
42. Professor Nade said he was unable to identify any clear incident that caused an acute rupture of the intervertebral disc at L4/L5. He thought that Mr Obierzynski’s sciatica was constitutional in origin and unrelated to work. He conceded however that without Dr McKechnie’s report following surgery, it was impossible to say with certainty what caused the narrowing of his spinal canal. In his opinion, given the extent of degeneration in his spine, little was needed to bring on an acute episode. He agreed with the proposition that in Mr Obierzynski’s case, heavy lifting could have been the straw that broke the camel’s back.
43. In Professor Sambrook’s opinion, although some degree of canal stenosis was evident, the disc prolapse that occurred in July 2009 was most likely the “key event”. In his opinion a disc prolapse such as that experienced by Mr Obierzynski could be caused by a precipitating event such as an injury or trauma or, its onset might be “random”. While he agreed with Dr Gray that Mr Obierzynski would have been likely to suffer a degree of low back pain because of his pre-existing lumbar spine disease, he thought this was not inevitable and it was therefore necessary to consider whether the prolapse had been aggravated by work. In Mr Obierzynski’s case he thought the most likely cause was the carrying and lifting activities carried out on 10 July 2009. He thought that Mr Obierzynski was at about double the risk of prolapse because of duties of that type.
44. Professor Sambrook agreed that the studies cited by Dr McGill established a strong correlation between genetic factors, degenerative changes and back pain. However in his opinion those studies had to be approached with some caution. He pointed out that one of the studies upon which Dr McGill relied[1], showed that there is still a large part of the variance in phenotypes that remain unexplained, somewhere between 25 and 50 percent. He pointed to other studies which found a statistically significant relationship between lumbar disc herniation and exposure to lifting and carrying.
45. Professor Sambrook was of the opinion that the evolution of symptoms reported by Mr Obierzynski was consistent with his claim of hurting his back on 10 July 2009. He thought it relevant that Mr Obierzynski’s symptoms did not abate after the alleged incident and became acute within a short period. He attributed the time lag of the onset radicular symptoms to the disc protruding onto the nerve causing it to become inflamed and symptomatic. Professor Nade dismissed the possibility that the nerve could become inflamed in the manner as described by Professor Sambrook. In his opinion a disc lesion would ordinarily result in simultaneous onset of radicular symptoms. Dr Gray, like Professor Sambrook, thought that a delay in onset of radicular symptoms following such an injury is to be expected but he thought onset would usually occur after no more than a week.
46. The other expert to conclude that the disc prolapse was work-related, Dr McKechnie, took a history of there being “no specific incident” and simultaneous onset of back and leg symptoms. Unlike Professor Sambrook, he did not attribute the injury to any particular event but was of the opinion that it was the result of the heavy nature of Mr Obierzynski’s work over a 10-year period.

DID MR OBIERZYNSKI SUFFER AN INJURY IN THE COURSE OF HIS EMPLOYMENT?

47. The issue we must decide is whether Mr Obierzynski’s injury “arose in the course of employment”.
48. The experts agree that it was possible that the symptoms reported by Mr Obierzynski to Dr Gunning in August 2009 could have been caused by constitutional factors alone, by trauma, or both. In broad terms they also agreed that even a slight trauma could result in a disc lesion and nerve root compromise in a person with a degenerative lumbar spine. All experts thought Mr Obierzynski should avoid heavy lifting.
49. As noted we have accepted that on 10 July 2009, while at work, Mr Obierzynski noticed the onset of low back pain after carrying heavy bags up at least one flight of stairs. We also accept he had effectively been symptom-free for about five years prior to that date.
50. The one unswerving feature of each expert’s evidence is that Mr Obierzynski had a degenerative lumbar spine condition that was liable to result in a prolapsed or deformed disc.
51. Some doctors thought that the disc deformation was constitutional and, in effect, inevitable. That view, however, fails to satisfactorily explain the coincidence of the onset of symptoms and the carrying of a 20kg bag upstairs, despite the fact that Mr Obierzynski had been free of back pain for five years. Common sense suggests that there was a causal connection between the events, especially as Mr Obierzynski had not suffered back pain for a lengthy period.
52. Of the experts, we believe Professor Sambrook has provided the most cogent explanation for the development of Mr Obierzynski’s disc lesion. He had regard to the type of activities undertaken by Mr Obierzynski on the day of the alleged injury – carrying heavy weights up stairs – and concluded that that activity had contributed to the development of the disc lesion. While conceding that a person with a degenerative spine is at greater risk of developing a disc lesion he pointed out that it was not inevitable. Unlike Drs McGill and Gray he did not think it fatal that Mr Obierzynski could not recall a discrete event associated with the onset of symptoms. In his opinion a lesion was not necessarily associated with instantaneous onset of pain at the time of the activity and that it was sufficient that there be a proximate temporal connection between the activity and the pain.
53. For the purposes of the legislation, it matters not whether Mr Obierzynski had a degenerated spine or a normal spine. If, whilst carrying a heavy load upstairs for work purposes, Mr Obierzynski overloaded his spine to the point that a vulnerable disc (that had not given pain for the previous five years) caused nerve root irritation leading to a gradual development of radicular symptoms that disabled him from working for a period, then it can be concluded that he suffered an injury “in the course of employment”.
54. We are satisfied on balance that on 10 July 2009 Mr Obierzynski sustained an injury involving his lower back. It follows that the decision under review must be set aside.
    

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed: ...................[sgd].....................

Associate to Senior Member Britton

Dates of Hearing 14 and 15 March 2011

Date of Decision 21 April 2011

Counsel for the Applicant Mr D Shillington

Solicitor for the Applicant Ms K Stouppos, Slater and Gordon Lawyers

Counsel for the Respondent Ms R Henderson

Solicitor for the Respondent Mr J Pinder, DLA Phillips Fox

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[1] P.N Sambrook, A.J. MacGregor and T.D. Spector’, Genetic Influences on Cervical and Lumbar Disc Degeneration: A Magnetic Resonance Imaging Study in Twins’, Arthritis and Rheumatism, 1999 Feb; 42(2): 366-72.