Lynch and Telstra Corporation Limited [2011] AATA 889 (14 December 2011)

Last Updated: 15 December 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 889

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos 2010/2915 & 2010/4700

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DAVID LYNCH

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Deputy President D G Jarvis

Date 14 December 2011

Place Adelaide

Decision

In matter number 2010/2915, the tribunal sets aside the decision under review, and in place of that decision decides that: (a) the respondent is liable for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the injury sustained by the applicant on 23 September 2008; (b) the applicant has remained partially incapacitated for work as a result of that injury from and after 16 March 2010 and up to the date of this decision; (c) the applicant is entitled to compensation under ss 16 and 19 of the SRC Act in respect of that injury. In matter number 2010/4700, the tribunal sets aside the decision under review, and in place of that decision decides that: (a) the respondent is liable for compensation under ss 14, 16 and 19 of the SRC Act for the aggravation of the applicant’s pre-existing degenerative condition of the lumbar spine that occurred at work on 17 June 2010; (b) the applicant was no longer incapacitated as a result of that aggravation by the date when the applicant returned to his work as a linesman; and (c) the applicant is not incapacitated as a result of that aggravation as at the date of this decision. The tribunal remits both matters to the respondent to calculate the compensation payable to the applicant in consequence of the above decisions. The tribunal reserves liberty to apply on or before 16 January 2012 in relation to the costs of the proceedings, and orders that in the absence of any such application, the respondent is to pay the costs of the proceedings.

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Deputy President

CATCHWORDS

COMPENSATION – Lower back injury – liability admitted for soft tissue injury to lower back – degenerative condition of lumbar spine – cessation of entitlement to compensation – subsequent asserted aggravation at work – held that work-related event caused susceptibility to future aggravations of pre-existing disease, and accordingly employment made a significant contribution to such aggravations – no evidence of changed circumstances to support cessation of compensation – held that work-related events gave rise to compensable injuries – decisions under review set aside – meaning of “injury” and “disease”.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5B and 14

Australian Postal Corporation v Burch (1998) 26 AAR 312

Canute and Comcare [2006] HCA 47; (2006) 226 CLR 535

Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536

Commonwealth v Muratore [1978] HCA 47; (1978) 141 CLR 296

Dibbins v Dibbins (1978) 80 LSJS 165

Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354

Pham v Workers Rehabilitation and Compensation Corporation and Wingfield Heat Treaters (2005) 181 LSJS 241

Telstra Corporation Limited v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253

Tippet v Australian Postal Corporation (1998) 27 AAR 40

Victims Compensation Fund v Brown [2003] HCA 54; (2003) 201 ALR 260

Zickar v MGH Plastic Industries Pty Ltd (1995) 187 CLR 310

Macquarie Dictionary (5^th edition, 2009)

REASONS FOR DECISION

14 December 2011

Deputy President D G Jarvis

1. The applicant, David Lynch, is employed by the respondent, Telstra Corporation Limited. On 23 September 2008, he injured his back at work. Telstra admitted liability for a “soft tissue injury to lower back” and paid compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
2. In a reviewable decision made in June 2010, Telstra affirmed a primary determination that Mr Lynch had ceased to suffer from the effects of the accepted injury on 16 March 2010, and there was no present liability to pay compensation for medical treatment or incapacity for work under ss 16 and 19 of the SRC Act. Mr Lynch has applied to this tribunal, in matter number 2010/2915, to review this decision.
3. Mr Lynch made a further claim for compensation in respect of an asserted injury that occurred on 17 June 2010 at work. In a reviewable decision made in October 2010, Telstra affirmed a primary determination that there was no liability to pay compensation under s 14 of the SRC Act in respect of a “soft tissue injury” claimed to have been sustained on that date. Mr Lynch has applied to this tribunal, in matter number 2010/4700, to review this further decision.
4. Both applications were heard together, and I will treat all of the evidence adduced as evidence in both matters.

ISSUES BEFORE THE TRIBUNAL

5. The issues before the tribunal are as follows:

(a) what is the diagnosis of the condition(s) suffered by Mr Lynch as a result of the events on 23 September 2008 and 17 June 2010;

(b) should the condition(s) claimed to have been suffered be characterised as an “injury”, or an “aggravation” of an “ailment”, within the meaning of the SRC Act;

(c) if he suffered either an “injury” or an “aggravation” of an “ailment” within the meaning of the SRC Act on 23 September 2008, has that “injury” or “aggravation” resulted in incapacity for work or impairment since 16 March 2010;

(d) if he suffered an “aggravation” of an “ailment” within the meaning of the SRC Act on 17 June 2010, was that aggravation contributed to, to a significant degree, by Mr Lynch’s employment by Telstra; and

(e) if he suffered an “injury” or an “aggravation” of an “ailment” within the meaning of the SRC Act on 17 June 2010, has that “injury” or “aggravation” resulted in incapacity for work or impairment since 17 June 2010.

BACKGROUND FACTS

6. The following background facts are based on the evidence of Mr Lynch and documentary material before me, and are not in contention. I found Mr Lynch to be an honest, forthright and matter-of-fact witness. I accept his evidence. There was no suggestion from any of the doctors who have examined him that his symptoms were affected by non-organic or psycho-social factors, or that he has exaggerated his symptoms. I formed the impression that if anything, he understated his symptoms and their effect.
7. Mr Lynch is 55 years of age. He has been employed by Telstra for over 30 years, and for about the last 10 years has worked as a linesman. This involved detecting faults, effecting repairs and installing telephone equipment. Prior to the event of 23 September 2008, his work involved going into manholes and pits, and lifting concrete and metal manhole covers, some of which, he estimated, weighed up to 50 kilograms. He also had to handle ladders which were about 6.5 metres long, and on occasions had to crawl around in roofs.
8. On 23 September 2008, he was unloading a 6.5 metre ladder from the roof rack of a Telstra van. He said that unloading such ladders from vans is more difficult for persons who, like him, are short in stature. He explained that to unload the ladder, he had to stand on the step of the van, pull the ladder so far, then jump on to the ground and grab the ladder as it was coming off the van. On this occasion he took those measures, and once he got one end of the ladder on the ground he lifted it up and threw it on his right shoulder. As he swung around he stopped, but the ladder kept going “a bit” (transcript, 22.11.11, page 9), and he felt a sharp pain in the buttocks area, his lower back, and his left side down his left leg.
9. He had never experienced that sort of pain before in all the years he had been with Telstra, during which time he had been doing manual work. He could not continue to work, and rang his supervisor. He was taken to a doctor nominated by Telstra, a Dr Blanch, who gave him a certificate for three days off work, stating that he was suffering from a strained back muscle. Dr Blanch’s notes record that he told Mr Lynch that he had “strained the muscle/ligament here,” referring apparently to the site of his pain on the left side over the “PSIS”, which I assume is intended to be a reference to the posterior superior iliac spine (exhibit R2, PST7, page 387). Telstra had given Mr Lynch a form listing alternative duties for him to do, but the doctor did not think that these alternative duties were suitable.
10. Mr Lynch did not want to take time off work, and his supervisor agreed that he could see his own doctor, Dr John Sniatynskyi. He saw his doctor later that day and was given a medical certificate and referred for physiotherapy treatment. The medical certificate certified that he was suffering from “soft tissue injury lumbar spine” (exhibit R2, PST6, page 283). The physiotherapist gave him acupuncture and this took his severe pain away. He then felt well enough to take up alternative duties, and he returned to work the next day.
11. After that he continued to work, but continued to have a nagging, throbbing pain mainly in the lower back and left buttock. It varied according to what he was doing. Sitting in a vehicle for a long time made it worse, and “eventually” (transcript, 22.11.11, page 13) Telstra gave him an automatic vehicle which made it a lot better. Other activities such as mowing lawns and gardening, and also twisting movements, made his symptoms worse. He was able to continue to do his gardening, but that took a lot longer than it had previously. He bought a therapy chair, which he used at home, and that helped to relieve his pain. He also used an exercise bike.
12. He was taken off manual work and given light duties, which consisted mainly of going out and delivering equipment to workers in the field and doing safety checks, as well as some office work.
13. He had five or six physiotherapy sessions in late 2009, but Telstra’s insurers did not approve the continuation of that treatment.
14. Mr Lynch’s second claim for compensation relates to an event that occurred on 17 June 2010. He had been using a laptop computer at a work station and leaning over to read its small screen for about half an hour, when he moved his chair back and went to stand up. When he was about half way up a sharp pain hit him. He felt acute pain in his left buttock, left leg and lower back, and he could not even move his left leg. He sat on the chair for about two hours and then struggled home, where he sat in his therapeutic chair.
15. He saw Dr Sniatynskyi the next day. Dr Sniatynskyi issued a medical certificate certifying unfitness for work from 18 to 23 June 2010, and recording that after examining Mr Lynch, he considered that he was suffering from soft tissue injury that was consistent with the stated cause, namely “acute exacerbation of back pain originally stemming from lifting ladder from a van” (exhibit R3, T5, page 18). Mr Lynch was referred for an x-ray examination. He returned to work on light duties on 23 June 2010. Dr Sniatynskyi examined Mr Lynch again that day, and issued a further certificate that he was fit to return to modified duties from 24 June to 21 July 2010. He reiterated the opinion in his previous medical certificate as to the nature of the injury and its consistency with the stated caused.
16. Mr Lynch has returned to his work in the field as a linesman. He was unable to remember when this occurred, other than to say that it was prior to 4 May 2011, being the date when he signed an outline of evidence (exhibit A1). There is no evidence before me as to the date of his return to work. He has had trainees working with him most of the time since his return to work as a linesman, and they help him. He does not lift large ladders off vans and does not lift anything heavier than 10 kilograms. If such activities are needed and he is working by himself, he has to ask for assistance.
17. Mr Lynch gave evidence as to his symptoms as follows. He still gets pain in the lower back and left buttocks, and sometimes a sharp twinge down the left leg. The pain in his buttocks is a dull thump or throbbing pain all the time, and the pain in his lower back is a constant pain across both sides of the back, extending a hand-width either side of the spine. He notices the pain when he gets home at night, and it is affected by what he has been doing during the day. He has pain in the lower back when he first gets out of bed, and feels like an 80-year old. There have been times when the pain in the back has gone away but he continued to have pain in the left buttock, although it was not as bad. This was his situation when he was on holidays in late 2009, although the pain did not go completely. The pain in his lower back is worse when he is twisting or lifting. He could not specifically remember the day in March 2010 when he saw Doctors Jones and Hwang, but agreed that he could have told Dr Jones that he did not have pain in the back that day.

Medical evidence as to diagnosis of injury on 23 September 2008 and its after effects

18. Mr Lynch periodically consulted his general practitioner, Dr Sniatynskyi, regarding his pain. Telstra summoned Dr Sniatynskyi’s notes in August 2010, and these are included as ST6 in exhibit R2 at pages 230-384. His notes record that Mr Lynch consulted him periodically regarding back pain.
19. Telstra’s insurers referred Dr Lynch to three orthopaedic surgeons, namely Dr Robin Jackson, who saw him in April 2009; Dr Geoffrey Graham, who saw him in August 2009; and finally Dr Donald Jones, who saw him in March and August 2010, and February 2011. They also referred him to an occupational physician, Dr Tim Hwang, who saw him in March 2010 and January 2011.
20. In November 2010, Mr Lynch was referred by his solicitors to an orthopaedic surgeon, Dr David Marshall, and to an occupational physician, Dr Colin Mills.
21. Dr Sniatynskyi arranged an x-ray of the lumbar spine in October 2010 and CT scans of the lumbar spine in 2008 and June 2010. An MRI scan of the lumbar spine and hip was obtained in February 2011 at the instigation of Dr Hwang. These examinations revealed no structural damage to the spine, but indicated some early degenerative changes to the lumbar spine, including some diffuse facet joint degenerative change at L3/4 and L4/5 levels.
22. Dr Sniatynskyi - In a report dated 20 April 2010 to Telstra’s insurers, Dr Sniatynskyi made the following diagnosis:

“I made a diagnosis of soft tissue injury in the setting of early degenerative changes at L3/4 and L4/5, central canal stenosis L3/4 and 4/5 and a small posterior disc bulge at L5/S1. The precise nature of the soft tissue injury could not be determined from the investigations but was consistent with an injury such as muscular strain or tear.” (exhibit R2, PST13, page 429)

He also reported that Mr Lynch’s condition had improved, but not resolved, that he would benefit from further physiotherapy treatment, and that he did not have the capacity for his pre-injury employment, but could perform the modified duties he was then performing.

23. An entry dated 31 March 2010 in Dr Sniatynskyi’s notes is relevant to the issue of whether Mr Lynch had continuing incapacity for work as at that date. It reads “back pain continues – comes and goes – intensity fluctuates – occurs at unpredictable times in the work and domestic situation.” (exhibit R2, PST6, page 340).
24. Dr Jackson - After examining Mr Lynch in April 2009, Dr Jackson made a diagnosis of degenerative disc disease in Mr Lynch’s lower lumbar spine, and considered that he had sustained an acute aggravation of a pre-existing degenerative condition with a possibility, on his history, that he also sustained further discogenic damage (exhibit R1, T16, page 85). He also reported:

“I am unable to state when the effects of any work-related contribution/aggravation will cease. One would expect them to be temporary but it is not uncommon that once rendered symptomatic in this manner, the degenerative changes can remain symptomatic to a lesser or greater degree for a very extended time frame.” (exhibit R1, T16, page 86)

25. Dr Graham - In August 2009, Dr Graham considered that Mr Lynch had a problem relating to a left low lumbar facet joint which was initially irritated when Mr Lynch rotated with the ladder on his shoulder (exhibit R1, T20, page 107). He accepted that Mr Lynch’s then current condition resulted entirely from the ladder event. He anticipated a full resolution of symptoms with a short course of treatment by a physiotherapist skilled in spinal techniques.
26. Mr Simionato - In November 2009, Mr Simionato, a physiotherapist who was then treating Mr Lynch, reported that Mr Lynch presented with chronic left-sided sacroiliac/buttock pain, and that on examination, there was obvious restriction in the sacroiliac joint, causing a pelvic torsion, and an associated tightness of the left periformis muscle. He thought that the problem was related to the left hip joint, where there was restriction of movement, and he thought that some aspects of his daily work routine were maintaining pelvic torsion, and that these matters needed to be addressed if there was to be a full recovery. He also recommended losing weight and continued management by a physiotherapist (exhibit R2, PST6, pages 310 and 312).
27. Dr Jones - On 16 March 2010, Dr Jones reported that he was “not able to specifically identify the cause for the left buttock discomfort or its precise relationship to the injury on 23 September 2008” (exhibit R1, T30, page 158). After re-assessing Mr Lynch in February 2011, he concluded:

“By exclusion, one can only assume that [Mr Lynch] aggravated early degenerative change in the posterior facet joints at L4/5 which resulted in symptomatic low backache.” (exhibit R2, PST32, page 507)

28. In his report of 16 March 2010, Dr Jones also said that the injury from the ladder event appeared to have settled within “an orthodox period of time” (exhibit R1, T30, page 158), and in cross-examination, explained that this was a period of three months. He added that Mr Lynch remained vulnerable to further provocations because of his degenerative condition. He considered that the ongoing symptoms were the natural history of the degenerative change developing in his lumbar spine.
29. Dr Hwang - Dr Hwang examined Mr Lynch in March 2010, on the same day as the examination by Dr Jones. Dr Hwang obtained a history that the pain from the ladder event had always been in the left buttock region rather than the back itself, and that that was where Mr Lynch felt the pain when the ladder event occurred. Dr Hwang found that there was an area of tenderness which was only noticeable on very deep palpitation in the left gluteal region, but there was no tenderness in the lumbar spine whatsoever. He concluded that Mr Lynch suffered from a muscular strain in his hip which was a result of the event with the ladder (exhibit R1, T31, page 165).
30. It was Dr Hwang who arranged for the MRI scan in February 2011. With the benefit of this scan, he considered that the 2008 injury was a strain and possibly a tear of the gluteal musculature which continued to give some ongoing irritation (exhibit R2, PST33, page 514). He said in evidence that the absence of any evidence of such an injury on the MRI scan taken in February 2011 did not exclude a soft tissue injury to the hip or lower back, which would normally be regarded as a temporary condition, but did exclude any obvious major soft tissue injury in September 2008 or June 2010. Dr Hwang had re-assessed Mr Lynch in January 2011, and had reported:

“I suspect that Mr Lynch may have sustained a strain or perhaps a tear in the left gluteal musculature in his original injury”. (exhibit R2, PST28, page 492)

He also reported that Mr Lynch continued to suffer the effects of both the 2008 and 2010 events, and that it was not uncommon for people with pre-existing degeneration to remain asymptomatic into old age without specific injuries, and he did not think that the effects of a pre-existing or non-work-related condition had overtaken the effects of the injuries. Dr Hwang considered that Mr Lynch had some restriction on his capacity for full-time work, in that he should avoid frequent or prolonged awkward positions and heavy manual handling.

31. Dr Marshall - After examining Mr Lynch in November 2010, Dr Marshall thought that the more appropriate diagnosis was that of aggravation of pre-existing spinal degenerative disease in association with a possible ligamentous strain to the low back, and that his ongoing symptoms were related to intermittent aggravation and exacerbation of pre-existing degenerative disease. He further considered that the cause of the symptoms was that of a “twisting motion, created by carrying a six metre ladder on his right shoulder and his body twisting under the momentum of this ladder”, and that mechanism was quite consistent with the stated injury (exhibit R2, PST18, pages 452 and 453). Dr Marshall considered that there would continue to be intermittent low-back symptoms which might be aggravated from time to time by repetitive bending and lifting heavy weights. In evidence, he said that Mr Lynch’s ongoing symptoms were related to the injury he sustained from the ladder event. He said that once one has a degree of degeneration which has been aggravated, symptoms may occur from time to time, and he thought that Mr Lynch would probably continue to have minor or major intermittent symptoms; that is, the injury had made his disease become symptomatic, but was not the cause of the degeneration. He also considered that the ongoing symptoms might be due to permanent damage to ligamentous structures, and whilst an MRI scan was the best evidence of soft-tissue damage, there was no base-line MRI scan taken at the time of the injury which could be compared with the MRI scan taken in February 2011. He considered that Mr Lynch might be able to return to his pre-injury duties, but would have a long-term restriction of not being able to perform repetitive bending activities or lifting heavy weights.
32. Dr Mills - Dr Mills also examined Mr Lynch in November 2010, and made a diagnosis of mechanical low back pain (which he said might also be called diffuse low back pain or non-specific low back pain). He referred to various possible causes of such pain, but also said that in 20% of cases, it was not possible to diagnose the cause of mechanical low back pain. He thought that a facet joint cause was a possible diagnosis, but regarded that as speculative in the absence of a facet joint block (which would entail an injection into the facet joint). He referred to the twisting motion inherent in the injury in September 2008, and noted that the symptoms persisted after the original event and settled, but did not resolve (exhibit R2, PST19, pages 466 and 467). He thought that there was a partial incapacity from the injury. He also referred to other possible diagnoses, and said that in the absence of other invasive techniques for diagnosis, there could be no clear diagnosis one way or the other (exhibit R2, PST19, page 466). Dr Mills confirmed his opinion in evidence, and said that mechanical low back pain could exist in the absence of a fracture of a vertebra, and there was no association with degenerative change. He considered that the injury from the ladder event was the trigger for a kaleidoscope of symptoms which would vary over time, but had never gone away; that that was not unusual; and the longer the symptoms went on, the less likely they were to resolve.

Medical evidence as to injury on 17 June 2010 and its after effects

33. Dr Sniatynskyi - As mentioned above, Dr Sniatynskyi considered that the 2010 event was an acute exacerbation of back pain originally stemming from lifting the ladder from the van.
34. Dr Marshall - Dr Marshall considered that the event on 17 June 2010 was the result of a muscle spasm or cramp, and he regarded it as an isolated locking incident. He thought that it was part of his ongoing intermittent back symptoms, and that it related to the 2008 injury. He commented that once one has a degree of degeneration which has been aggravated, symptoms may occur from time to time and can be precipitated by major or minor events.
35. Dr Mills – Dr Mills regarded the 2010 event as a further recurrence or continuation of the 2008 injury.
36. Dr Jones - Dr Jones assessed Mr Lynch on 11 August 2010 regarding the event on 17 June 2010. The letter to him requesting his report made only a passing reference to the claim for “soft tissue injury to lower back” sustained on 23 September 2008. Dr Jones made no specific reference to that earlier event in his report, which is dated 11 August 2010, and merely said that Mr Lynch had experienced a number of episodes of mechanical back pain over the years. At the time of his examination, he obtained a history of recurring episodes of mechanical lumbar back pain which had been experienced for some time, and expressed the view that there had been a further episode of such pain on 17 June 2010. He thought the pain was arising from the facet joints at L4/5 which were showing degenerative change, but said he could not explain the condition as there was no clearly defined structural injury. He thought that his symptoms would slowly and progressively settle and would be back to his normal work duties within the succeeding month.
37. Dr Hwang – When he reassessed Mr Lynch on 13 January 2011, Dr Hwang obtained a history that Mr Lynch’s symptoms had gradually settled after the incident on 17 June 2010, but overall he felt they continued to be greater than prior to that incident. At that reassessment Dr Hwang also obtained a history that the left side of the lower back through to the buttock area was affected. Dr Hwang thought that Mr Lynch might have had an injury to his back for example, the facet joint area, and considered that he would not have developed the condition as a natural progression of the degenerative condition, irrespective of employment. When he examined him in January 2011, he considered that Mr Lynch was continuing to suffer the effects of the injury in 2008, and the aggravation of June 2010. He provided a further report after viewing the MRI scan taken in February 2011, and expressed the opinion that the incident of 17 June 2010 probably represented a temporary aggravation of the underlying degenerative disease.

Parties’ contentions

38. Counsel for the applicant, Ms Molloy, submitted by reference to the medical evidence and as a matter of common sense that Mr Lynch suffered permanent injury to his lower back in the injury in 2008 and that its effects are ongoing, and wax and wane depending on his work duties but have never resolved. She further submitted (presumably on the alternative assumption that the 2008 injury constituted an aggravation of a pre-existing disease) that that injury rendered an asymptomatic injury symptomatic, that employment significantly contributed to the “injury”, and that Mr Lynch has continued to suffered from its effects.
39. She further submitted that the injury in 2010 was a further aggravation of the 2008 injury, and that that aggravation was an injury and not a “disease”, because it was a sudden onset injury which resulted in the lower back locking up or going into a muscle spasm, and this was not the inevitable consequence of degenerative changes in the lower back.
40. Counsel for the respondent, Mr Dube, submitted that in the event of 2008, Mr Lynch sustained a temporary aggravation of the underlying degenerative disease of his lumbar spine, particularly at the L4 facet joint, and that the effect of the event, whilst giving rise to the symptomatic experiencing of pain through the lumbar spine, left buttock and left leg, did not alter, accelerate or permanently aggravate the underlying degenerative disease. He further submitted that at some point, at least by 16 March 2010, the September 2008 event had ceased to significantly contribute to the underlying degenerative condition.
41. He further submitted that the incident on 17 June 2010 merely involved the experiencing of symptoms in the lumbar spine, left buttock and left leg, but there was no evidence that the incident gave rise to a pathological change in the lumbar spine or facet joints. As a result, the event did not constitute an “injury” simpliciter, and the issue was whether there was a compensable aggravation of the underlying degenerative disease. He relied upon cases involving a rupture of a cerebral aneurism, where courts had referred to the need for there to be a sudden change in the normal physiological state for the condition to constitute an “injury” simpliciter, even where some external agency had not precipitated the rupture. The authorities to which he referred included Zickar v MGH Plastic Industries Pty Ltd (1995) 187 CLR 310 and Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286. He contended that at most the event on 17 June 2010 resulted in a temporary increase in symptoms in the lumbar spine or a temporary aggravation of the underlying degenerative disease, and that employment did not significantly contribute to the aggravation of the underlying degenerative disease. He submitted finally that having regard to Mr Lynch’s evidence, it was purely conjecture that he sustained a “torsion incident” in rising from his chair on the day in question.

LEGISLATIVE SCHEME

42. Section 14(1) of the SRC Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, and provides as follows:

“14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

43. The requisite connection between a medical condition in respect of which an employee claims compensation and his or her employment is provided for indirectly, via the definitions of “injury” and “disease” in ss 5A and 5B of the SRC Act. Section 5A provides as follows:

“(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;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.”

44. “Disease” is defined relevantly, in s 5B as follows.

“(1) In this Act:
“disease” means:

(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.”

45. The word “ailment”, which is used in paragraph (a) of the definition of “disease”, is defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The word “aggravation” is defined to include “acceleration or recurrence”.
46. Section 16 of the SRC Act provides in effect that where an employee suffers an injury, Comcare is liable to pay the cost of reasonable medical treatment obtained in relation to the injury.
47. Section 19 provides in effect that Comcare is liable to make incapacity payments where an employee is incapacitated for work as a result of an injury, and provides for how such incapacity payments are calculated.

CONSIDERATION

48. As the High Court of Australia pointed out in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 at [8] and [10], the concept of an “injury” is a term of pivotal importance in the structure of the SRC Act, and the term “injury” is not used in the sense of “workplace accident”, but is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body.
49. The liability of an employer for compensation for an “injury” or a “disease” also depends on the relationship between the employee’s condition and his or her employment. I will therefore first consider whether Mr Lynch suffered an “injury” or an “aggravation” of an “ailment” within the meaning of the SRC Act, in the context of the ladder event in September 2008.
50. As mentioned above, the word “injury” in the SRC Act is defined to include a “disease”. The definition of “disease” is couched in broad terms, having regard to the width of the definition of its first component, namely “ailment”. The definition of “ailment” includes any disorder. The word “disorder” is not defined, but according to the Macquarie Dictionary (5^th Edition, 2009) the relevant meaning of that word is “a derangement of physical or mental health or functions”. The definition of “ailment” in the SRC Act also includes the word “ailment” itself, and so the word “ailment” in the Act must be given its ordinary English meaning. According to the same dictionary, the meaning of “ailment” includes “a morbid affection of the body or mind; indisposition,” “morbid” is defined to include “affected by, proceeding from, or characteristic of disease”, and “indisposition” is defined to include “the state of being indisposed; a slight illness.”
51. In Australian Postal Corporation v Burch (1998) 26 AAR 312, Northrop J discussed the concepts of “disease” and “injury”. (An appeal against Northrop J’s decision was dismissed: Australian Postal Corporation v Burch (1998) 85 FCR 264). His Honour referred to cases dealing with the rupture of an arterial wall, where it was decided that the rupture amounted to a physical injury, which was distinct from the defect, disorder or morbid condition (or disease) which enabled it to occur. Similarly, in Petkoska (supra), Gleeson CJ and Kirby J, after referring to earlier authorities including Burch (supra) said, at [39]:

“All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment ... If the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met ... .”

Did the event on 17 September 2008 involve an “injury” simpliciter or the aggravation of a disease?

52. It is clear from the radiological evidence that there is no evidence of annular tear, disc prolapse or structural damage to the spine in consequence of the ladder event. However, Mr Lynch was subjected to an external force when the weight of the ladder caused a twisting of his lumbar spine and (according to Dr Hwang) the gluteal muscles on the left side, resulting in the immediate onset of acute pain. The effect of the event was assessed variously by the doctors who provided reports or gave evidence, and their diagnoses ranged from a soft tissue injury, a strain or tear of a muscle or ligament, an aggravation or acute aggravation of the degenerative condition of the lumbar spine or facet joints, a mechanical low back pain, or a strain and possible tear of the gluteal musculature. Whilst different diagnoses or explanations have been advanced, it is clear that there was a sudden external force which immediately produced the symptoms described by Mr Lynch, and it is not disputed that those symptoms then continued, at least for some appreciable period of time. Liability was accepted for a soft tissue injury.
53. As a matter of common sense, I think that Mr Lynch sustained an “injury” simpliciter. The facts of the present matter are distinguishable from the cases involving a rupture of an aneurism without any external agency precipitating it. However, if the analysis in such cases as Petkoska is applied, then in the present matter there was a dramatic physiological change or disturbance of the normal physiological state, which was evidenced by an immediate onset of pain and disability, followed by the admitted continuation of symptoms for a period of time. I accordingly conclude that Mr Lynch suffered an “injury” simpliciter which happened in the course of his employment, and resulted in incapacity for work, and so gave rise to liability for compensation under s 14 of the SRC Act.
54. On the evidence before me, there remains uncertainty as to the correct diagnosis of Mr Lynch’s original injury and his ongoing symptoms. It is clear from the scans that the original injury did not result in any structural damage to the spine. However, the MRI scan taken in February 2011, being more than two years after the original injury, did not exclude a soft tissue injury to the facet joints or hip (although it did exclude an obvious major soft tissue injury). The scans indicate that Mr Lynch had early degenerative changes in the lower back and facet joints at L3/4 and L4/5 levels. However, Mr Lynch did not, prior to the ladder event, suffer from any back pain or incapacity to work as a linesman. I think it likely that the original injury aggravated the degenerative changes of the facet joints, and also caused some soft tissue injury. I further find that by a date prior to 16 March 2010 the soft tissue injury is likely to have resolved, but that the degenerative condition had been rendered symptomatic by the 2008 injury, and that this has resulted in the continuation of episodes of pain in the low back and left buttock, which otherwise would not have occurred. It may be that Mr Lynch also suffered a strain and/or tear of the gluteal musculature which has continued to give some ongoing irritation, as diagnosed by Dr Hwang. The alternative explanation for the buttock pain is that there was continuing referred pain from the low back into the left buttock. The other doctors who provided reports did not comment on Dr Hwang’s diagnosis, other than in the case of Dr Jones, who said that pain would not have been referred from the buttock to the lower back. In view of the conclusions I have reached and the authorities referred to below, I do not think it necessary to make any more definitive findings on the issue of diagnosis.

Is the respondent liable for compensation in respect of the ladder event from and after 16 March 2010?

55. As mentioned above, Telstra determined that Mr Lynch ceased to suffer from the effects of the accepted injury of “soft tissue injury to lower back” on 16 March 2010, and that as at the date of the reviewable decision, there was no then present liability to pay compensation for medical treatment or incapacity for work under ss 16 and 19 of the SRC Act.
56. In Commonwealth v Muratore [1978] HCA 47; (1978) 141 CLR 296, a determination had been made that an employee was entitled to certain weekly payments of compensation representing the difference between what he would have been able to earn if he had not been injured, and his weekly pay following his injury. Subsequently, a determination was made that the employee was able to earn an amount not less than his weekly pay, and so he was not entitled to compensation at all. The High Court of Australia decided that the Commonwealth bore the onus of proof of matters that would enable the Commonwealth to vary the original determination.
57. In this tribunal, the concept of onus of proof does not apply, but it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 358. In that case, Woodward J pointed out that the legislation there under consideration, namely the Social Security Act 1947 (Cth), did not provide for any onus of proof, and continued, at 358:

“If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.”

58. It has not been suggested in the present case that Telstra should not have admitted liability for the accepted injury in the first place, and unlike the situation that arose in Telstra Corporation Limited v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253, I do not think it necessary to re-examine that issue.
59. I will now consider the issue of whether Telstra remained liable for the symptoms being experienced by Mr Lynch from and after 16 March 2010 by reference to each of the two possible alternative positions, namely that the continuing symptoms were the after-effects of an “injury” simpliciter sustained on 23 September 2008, or the aggravation of a pre-existing degenerative condition.

Liability if the ongoing effects were the result of an “injury” simpliciter

60. For the reasons referred to above, I have found that the event of 23 September 2008 constituted an “injury” simpliciter.
61. I do not accept the evidence of Dr Jones that Mr Lynch was no longer incapacitated from this injury. He was of the opinion that the injury had settled within what he described as an “orthodox period of three months”, or (according to his report of 15 February 2011, a 6-8 week period: exhibit R2, PST32, page 509). That opinion is contrary to the views expressed by Drs Graham and Jackson to the effect that the symptoms were still due to the ladder event when they examined Mr Lynch some 11 and 19 months respectively after the ladder event. Drs Marshall and Dr Mills examined him more than two years after the ladder event, and both expressed the opinion that the ongoing symptoms were due to that event. Dr Hwang was of the same view (although he considered that the injury was to the left gluteal region, and not to the lower back, and said he would need to reconsider his opinion in order to take into account evidence of an injury to the lower back). Further, those treating Mr Lynch, namely Dr Sniatynskyi and Mr Simionato, both considered that the effects of the 2008 injury were ongoing.
62. From my review of the medical evidence, I prefer the opinion of Drs Marshall, Mills and Sniatynskyi where their evidence is inconsistent with that of Dr Jones. Dr Jones does not appear to have obtained as much detail as other clinicians as to the circumstances in which the initial injury occurred, and in addition, he saw Mr Lynch at a time when he was apparently not being affected by lower back pain. Those matters may have influenced Dr Jones to view the effects of the event somewhat differently than the other doctors involved. He also reported on 16 March 2010 that Mr Lynch was fit to return to his pre-accident duties, but this opinion was out of step with the opinion of Dr Sniatynskyi, who had examined Mr Lynch at regular intervals, and with the opinions of Drs Marshall and Mills, who examined Mr Lynch in November 2010. Dr Jones’s opinion is also inconsistent with Mr Lynch’s evidence as to the ongoing pain and symptoms he was experiencing. Further, whilst Dr Hwang thought that Mr Lynch was fit for his normal duties in March 2010, he described some continuing incapacity for work in his report of 17 January 2011 (although his opinion is of limited assistance, because he based his assessment on an injury to the gluteal musculature, and did not take into account the low back symptomatology).
63. I referred above to the difficulty of diagnosis in the present case, and to my conclusion that the degenerative condition has been rendered symptomatic by the ladder event in 2008. To the extent that the medical evidence does not explain the reason for the continuation of symptoms, it does not follow that liability for compensation does not exist: see the approach in Pham v Workers’ Rehabilitation and Compensation Corporation and Wingfield Heat Treaters (2005) 181 LSJS 241 at 246-7, and Dibbins v Dibbins (1978) 80 LSJS 165. In these cases and other authorities referred to in Pham, in circumstances where there is no medical evidence that could explain the onset of the symptoms, but also no conclusive medical evidence denying that link, the courts refer to the need to have regard to all acceptable evidence, including in particular the evidence of the applicant or plaintiff and other lay evidence, and to determine as a matter of common sense whether on the balance of probabilities there was a causal link between an event and resulting symptoms.
64. I am satisfied that Mr Lynch has continued to suffer from intermittent pain in his lower back and left buttock ever since the ladder event in September 2008, and that his symptoms have resulted in incapacity for work. I am not satisfied that at any time since the date of that event there have been changed circumstances which would make it appropriate to cancel Mr Lynch’s ongoing entitlement to compensation.

Relevance of 2008 event if the ongoing symptoms constituted an aggravation of the pre-existing degenerative condition

65. For the sake of completeness, in case I am wrong in my above conclusions, I will now consider the matter on the basis that the ongoing symptoms were due to the aggravation of a pre-existing degenerative condition, and not those of an “injury” simpliciter, or the aggravation of such an injury. On that basis, liability for compensation would arise only if that aggravation was contributed to, to a significant degree, by employment.
66. By virtue of s 5B(1) of the SRC Act, in order for an injury to constitute a “disease” it must be an ailment suffered by an employee, or an aggravation of such an ailment, that was contributed to “to a significant degree”, by the employee’s employment. In Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536, Finn J referred to the requirement under the SRC Act as it existed prior to the 2007 amendments that employment should contribute “in a material degree” to the suffering or aggravation of an ailment. He said that this concept required an evaluation of all relevant contributing factors, and whether employment in a particular case had contributed in a material degree would be a matter of fact and degree. The current definition of “disease” requires a stronger connection with employment for the disease to be compensable, since by virtue of s 5B(3) of the SRC Act, “significant degree” is defined to mean “a degree that is substantially more than material”.
67. Section 5B(2) contains a non-exhaustive list of matters that may be taken into account in determining whether an aggravation was contributed to to a significant degree by employment. These matters include “any predisposition of the employee to the ailment or aggravation”: s 5B(2)(c). Taken by itself, it is not clear whether that paragraph requires that any such predisposition should be used in effect to discount the impact that work-related events would have on an employee with such predisposition, or whether the paragraph was intended to have the opposite effect, that is, that any such predisposition would leave the employee vulnerable to the relevant work-related event, so that that event would then be more likely to contribute to the aggravation to a significant degree (this being the traditional approach to the relevance of pre-existing vulnerability in compensation cases). Mr Dube submitted that the former interpretation was correct. He referred to the Explanatory Memorandum relating to the 2007 amendments that introduced s 5B into the SRC Act. This included the following statement (which perhaps under-stated the effect of the proposed amendment):

“[T]he courts have read down the expression ‘in a material degree’ to emphasise the causal connection between the employment and the condition complained of rather than the extent of the contribution. The purpose of the proposed amendment is to assist in reinstating the intended policy behind the Commonwealth workers’ compensation scheme by limiting access to compensation claims for diseases to which work has only made a very minor contribution.”

Mr Dube also referred to the Second Reading Speech relating to the proposed amendments, where it was said that the changes were being made to “strengthen the connection between the employee’s employment and the employee’s eligibility for workers compensation under the scheme”.

68. Mr Dube acknowledged that the SRC Act was beneficial legislation, but contended on the authority of Victims Compensation Fund v Brown [2003] HCA 54; (2003) 201 ALR 260 at [33] that it did not follow that all sections in the SRC Act should be interpreted beneficially. He submitted that having regard to the purpose of the amendments, any predisposition of the employee to aggravation could be taken into account as a factor indicating that employment did not contribute to an aggravation to a significant degree.
69. Neither party addressed any argument as to the circumstances in which it is appropriate to have regard to extraneous material in order to interpret legislation. On the assumption that this is permissible in the case of s 5B(2) of the SRC Act, I acknowledge the force of Mr Dube’s above argument in a case where an employee has a pre-existing predisposition to aggravations of the ailment in question, and that predisposition was not itself caused by the employee’s employment. However, the present matter is not such a case. The medical evidence indicates that Mr Lynch has a predisposition to injury and incapacity as a result of the work-related event in September 2008, in that he is now vulnerable to symptoms of pain in the lower back and buttock if he engages in certain activities, whether at work or otherwise, but I am not satisfied that he would have had any such predisposition if the 2008 work-related event had not occurred. On the contrary, there is evidence that persons like Mr Lynch who have degenerative changes to the spine can remain asymptomatic into old age in the absence of some injury that precipitates symptomatology. In the present case, I accept the evidence that Mr Lynch continued to suffer symptoms in the lower back and left buttock region and sometimes in the left thigh from and after the date of the ladder event, and as a result of that event, and that he had not suffered such symptoms before that event. Although his symptoms have fluctuated from time to time, they have never resolved. If (as I find is the position in the present case) an employee’s employment has produced a predisposition to future aggravations of a pre-existing disease that would not otherwise have occurred, that, in my view, is a matter which indicates that the aggravation of the pre-existing disease has been contributed to, to a significant degree, by employment, since it was the employee’s employment that produced the predisposition to such future aggravations.
70. I have also taken into account the matters referred to in s 5B(2)(b) and (d) of the SRC Act. It appears that Mr Lynch’s symptoms can become worse as a result of both some aspects of his continuing employment activities (including certain activities involved even when he was put on light duties) and ordinary day-to-day activities unrelated to his employment. He gave evidence that his symptoms tend to be worse at the end of his day’s work, and this was the case even during the period when he was on light duties. This evidence was confirmed by the history referred to in some of the reports before me, including in particular that of Mr Simionato dated 28 November 2009 (exhibit R2, PST6, page 312). To that extent, Mr Lynch’s employment has been a further factor contributing to his ongoing symptoms.
71. In all of the circumstances, I am satisfied that even if his periodic symptoms are properly characterised as an aggravation of his pre-existing degenerative condition, that aggravation was contributed to to a significant degree by his employment by Telstra.

Liability for the event on 17 June 2010

72. Dr Marshall considered, on Mr Lynch’s description of the event on 17 June 2010, that his lower back had gone into a muscle spasm. Ms Molloy accordingly contended that Mr Lynch suffered an “injury” simpliciter, in that the muscle spasm constituted a sudden physiological change or disturbance of the normal physiological state, and this was an injury that arose in the course of Mr Lynch’s employment, and his employer is liable for compensation.
73. Mr Dube contended that whilst the act of rising from the chair occurred at work, Mr Lynch’s employment did not cause the resulting symptoms, and his employment was merely the setting in which the asserted injury occurred. He also contended that there was no medical evidence to explain why the simple act of rising from a chair would have had the effect which Mr Lynch described.
74. However, Mr Lynch’s evidence as to the somewhat dramatic effect on his back was not challenged, and as mentioned above, it does not follow that liability does not arise because of an absence of a medical or scientific explanation for symptoms that occurred. In any event, in the present matter there is some medical explanation for the symptoms which Mr Lynch experienced. In his report dated 8 November 2010, Dr Mills referred to the original injury sustained in the ladder event as having been associated with a twisting motion, and considered that this was “aggravated while in a chair in April [sic] 2010 where there may have been a similar twisting” (exhibit R2, PST19, page 467). Similarly, Dr Jones said in his final report dated 15 February 2011 that “getting out of a chair may involve a slight torsional force to the low back which may have triggered an acute episode of pain in a facet joint showing signs of early degeneration” (exhibit R2, PST32, page 511). Drs Marshall and Mills regarded the event on 17 June 2010 as a further consequence of the ladder event, and Dr Sniatynskyi considered that it was an acute exacerbation of back pain originally stemming from lifting the ladder from the van.
75. It appears from Mr Lynch’s evidence that as a result of the event, he experienced a muscle spasm, intensified pain and incapacity for work, which persisted for a comparatively short period of time. I think it more appropriate to regard the event on 17 June 2010 as an aggravation of a pre-existing degenerative condition: cf Tippett v Australian Postal Corporate (1998) 27 AAR 40 at 43-44, and the cases there cited, as to the characteristics of an aggravation. I think that my remarks in paragraph 69 above as to the significance of the pre-existing degenerative condition in circumstances where the earlier work-related injury arising from the ladder event made that condition symptomatic are equally relevant to the 2010 event. I refer also to the evidence of Drs Marshall, Mills and Sniatynskyi to the effect that the symptoms were related to the ladder event in 2008. I find that Mr Lynch’s employment made a significant contribution to an aggravation of his pre-existing degenerative condition, and that the 2010 event resulted in liability for compensation for the aggravation and consequential reasonable medical expenses and incapacity for work.
76. After the event on 17 June 2010 Mr Lynch consulted Dr Sniatynskyi, who certified that he was unfit for work until 23 June. He then returned to work and continued on light duties for a time. However, he later resumed his employment as a linesman, with the additional assistance being available for certain of his duties to which I referred above.
77. The parties did not produce evidence from which the amount of compensation for further medical treatment or incapacity payments could be calculated. It is therefore appropriate for the matter to be remitted to Telstra to calculate the amount of compensation payable in consequence of my above conclusions.

DECISION

78. In matter number 2010/2915, the tribunal sets aside the decision under review, and in place of that decision decides that:

(a) the respondent is liable for compensation under s 14 of the SRC Act in respect of the injury sustained by the applicant on 23 September 2008;

(b) the applicant has remained partially incapacitated for work as a result of that injury from and after 16 March 2010 and up to the date of this decision; and

(c) the applicant is entitled to compensation under ss 16 and 19 of the SRC Act.

79. In matter number 2010/4700, the tribunal sets aside the decision under review, and in place of that decision decides that:

(a) the respondent is liable for compensation under ss 14, 16 and 19 of the SRC Act for the aggravation of the applicant’s pre-existing degenerative condition of the lumbar spine that occurred at work 17 June 2010;

(b) the applicant was no longer incapacitated as a result of that aggravation by the date when the applicant returned to his work as a linesman; and

(c) the applicant is not incapacitated as a result of that aggravation as at the date of this decision.

80. The tribunal remits both matters to the respondent to calculate the compensation payable to the applicant in consequence of the above decisions.
81. The tribunal reserves liberty to apply on or before 16 January 2012 in relation to the costs of the proceedings, and orders that in the absence of any such application, the respondent is to pay the costs of the proceedings.

I certify that the 81 preceding paragraphs are a

true copy of the reasons for the decision herein

of Deputy President D G Jarvis

Signed: .................................................................................

N. Milutinovic Associate

Date/s of Hearing 22, 23 and 24 November 2011

Date of Decision 14 December 2011

Counsel for the Applicant Ms K Molloy

Solicitors for the Applicant Slater and Gordon Lawyers

Counsel for the Respondent Mr B Dube

Solicitors for the Respondent Sparke Helmore