Re Patrick O'Halloran and Telstra Corporation Ltd [1995] AATA 340 (21 November 1995)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: PATRICK O'HALLORAN
And: TELSTRA CORPORATION LTD
Nos. N94/1069 and N95/32
AAT No. 10542
Number of pages -12

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
P A MOORE (Senior Member), M E C THORPE (Member) AND M M McGOVERN (Member)

CATCHWORDS

Compensation - Claims - Injury - Medical expenses - Reconsideration and review of determinations

Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 14 and 16

HEARING

SYDNEY, 27 September 1995
21:11:1995

The Applicant was unrepresented

Counsel for the respondent : Stuart Diamond

Solicitor for the Respondent : Brendan Kelly

ORDER

The Tribunal:

(1) Sets aside the decisions under review and finds that the
applicant continued to suffer pain and discomfort to his neck
until February 1995 and that it was reasonable for him to travel
to Shepparton in order to seek relief from that pain and
discomfort.
(2) Remits the matter to the respondent with orders that it is
liable to pay compensation to the applicant for the costs of the
treatment undertaken at the Wilson Centre, Shepparton and for
the costs of travel and related expenses incurred by the
applicant in attending such treatment including recrediting of
sick leave up to 9 February 1995.
(3) The Tribunal also orders that the respondent pay the
applicant's costs in these proceedings.

DECISION

P A MOORE, M E C THORPE AND M M McGOVERN This is an application to review two decisions of the Respondent. Firstly (application number N94/1069) the decision by S. Peterson (delegate: reconsiderations of Telstra) of 28 September 1994 (T58), in accordance with the provisions of section 62(5) of the Safety, Rehabilitation and Compensation Act 1988) (Cth) (the Act) that affirmed the decision by Barbara McKinnel (delegate of Telstra) of 29 July 1994 (T51). Ms McKinnel determined in accordance with section 16(7) of the Act, in respect of a claim for Travelling Expenses for Treatment of Cervical Spondylosis, that:

"1. Whilst the Claimant's journey for medical treatment
covered more than 50 kms (including the return), the journey
from Wagga Wagga to Shepparton and overnight stay in Shepparton,
for the treatment concerned (Massage Therapy) is not considered
reasonable.
2. Therefore Telstra Corporation Limited is not liable to pay
compensation in respect of travelling expenses, accommodation or
incidentals in respect of the said injury".

The second reviewable decision (application number N95/32) was that by S Peterson of 13 December 1994 which, in accordance with section 62(5) of the Act affirmed the decision by Barbara McKinnel of 10 November 1994. Ms McKinnel stated (T60):

"On the evidence before me I hereby determine that in accordance
with Section 14 of (the act), the Telstra Corporation Limited is
no longer liable to pay you compensation in respect of a back
pain lower back and neck on and from 1 August 1994."

2. At the hearing the Applicant represented himself and the Respondent was represented by Mr Stuart Diamond, of Counsel. The Tribunal had before it the documents lodged in accordance with Section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the T documents") which were marked Exhibit X and included supplementary documents referrable to file N95/32 which were marked Exhibit Y.

3. Also admitted into evidence were the following:-

On behalf of the applicant:
Mileage logged by Mr O'Halloran from
7.10.94 to 31.8.95. Exhibit A1
Record of visits to Shepparton. Exhibit A2
On behalf of the respondent:
Letter from Ms Andree Roberts of The Wilson
Centre in answer to summons. Exhibit R1
Report of Dr Sturrock dated 21.2.95. Exhibit R2
Report of Dr Sturrock dated 24.4.95. Exhibit R3
Yellow pages 1995 for District between
Cootamundra and West Wyalong page 300. Exhibit R4
Report of Dr Leicester to Dr Sharrock
dated 19.5.95. Exhibit R5
Swimming pools and swimming clubs listed
in yellow pages covering relevant area. Exhibit R6

4. The Tribunal heard oral evidence from the applicant.

Legislation
5. The relevant sections of the Act are as follows:-

"Compensation for injuries
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.
(2) Compensation is not payable in respect of an injury that is
intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is
caused by the serious and willful misconduct of the employee but
is not intentionally self-inflicted, unless the injury results
in death, or serious and permanent impairment.
Compensation in respect of medical expenses etc.
16(7) Comcare is not liable to pay compensation under
subsection (6) unless:
(a) the reasonable length of such a journey as it was necessary
for the employee to make (including the return part of the
journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of
public transport or ambulance services - the employee's injury
reasonably required the use of such transport or services
regardless of the distance involved."

Issues before the Tribunal
6. The issues before the Tribunal can be summarised as follows:-
(i) whether the Applicant does, beyond August, 1994, continue to suffer any incapacity for work by reason of any injury arising out of the nature and conditions of his employment with the Respondent.
(ii) whether the Respondent is liable to make weekly payments of compensation to the Applicant beyond August, 1994.
(iii) whether the Applicant does, beyond August, 1994, continue to require any medical or therapeutic treatment as a result of aggravation of cervical spondylosis arising out of the nature and conditions of his employment with the Respondent.
(iv) whether it was reasonable for the Applicant to travel to Shepparton, Victoria (a distance of approximately 610 miles round trip from his place of residence in Wagga, New South Wales) to obtain such treatment and whether accordingly, the Respondent is liable to make any payment of compensation to the Applicant in respect of any such travelling expenses incurred by him.
(v) whether similar treatment was available to the Applicant at a place closer to his place of residence.
(vi) At the commencement of the hearing, it was indicated that there was also to be an issue as to whether the Respondent was liable to make compensation to the Applicant for any loss of earning from promotion and opportunity for promotion in the future, on account of any injury arising from his employment with the Respondent. This matter was not pressed.

Evidence before the Tribunal
7. The Applicant, Mr Patrick O'Halloran, stated that he is 59 years of age, resides in Wagga and is currently employed by Telstra as a Level 4/3 Technician. He enjoys bowls and other activities, including swimming, though he cannot swim during winter in Wagga because there are no heated pools. The Applicant stated that he had had some trouble with his neck for about eighteen months prior to an incident in July, 1993. He then awoke one morning (2nd July, 1993) with severe pain in his neck. He was unable to move his neck at all and needed his wife's assistance to move.

8. Mr O'Halloran went immediately to a Physiotherapist, Ms Sue Kerwan, in Wagga. She referred him on to the Commonwealth Medical Officer and he diagnosed tightening of the lordosis muscles and prescribed physiotherapy. The Applicant stated that he undertook this treatment for about six or seven months; it gave him some temporary relief of his symptoms of pain and stiffness. Mr O'Halloran was referred to Dr A Leicester, orthopaedic surgeon, who made a diagnosis of "cervical spondylosis with muscle spasm", and who noted that it was "more likely than not that the Applicant's method of sitting at his computer station had led to an aggravation of that condition and an onset of symptoms." He recommended that the Applicant be returned to field work.

9. He was then referred by his treating doctor, Dr Sharrock to hydrotherapy, at the Wagga hospital. This was ineffectual because it was not possible to obtain full immersion of his neck in the water. Early in 1994, Dr Sharrock referred him to Mr Murray Black, an osteopath in Wagga. The Applicant attended this treatment for about six weeks. He stated that it gave some relief for seven to ten days, but that the improvement was not maintained beyond that time.

10. Mr O'Halloran stated that he was then told by an acquaintance that there were two therapists who practised at The Wilson Centre in Shepparton, Victoria. He was told that they were very good in treating neck and shoulder problems. The two therapists were Ms Andree Roberts and Ms Rosemary Pease. Direct evidence about their individual professional disciplines was not available but from their letterhead (see Ex R1) it appears they held qualifications of B.Ed, a Diploma of Massage, and a Certificate of Massage between them. The Applicant stated that he went of his own accord to Shepparton, to talk to these therapists and "see what they could do". They assured him that they could relieve the pain and discomfort, but they were not over confident about returning the movement.

11. Mr O'Halloran attended these therapists for about twelve months, commencing in March 1994 and finishing in February, 1995. At first, he went weekly, later once every two weeks and then once a month and, in the latter stages, once every two months. Mr O'Halloran stated that this treatment has given him complete relief as far as pain and discomfort is concerned, but movement has not returned to his neck. He returned to the care of Mr. Murray Black, in Wagga in March 1995. Mr Black now treats him periodically in order to maintain the degree of comfort reached.

12. Mr O'Halloran stated that he had not sought the opinion of either his treating practitioner or specialist doctor before deciding to commence treatment with the therapists in Shepparton. Nor did he discuss his decision with the physiotherapist in Wagga who had been treating him. He did not ask the opinion of these persons regarding a more appropriate form of treatment which may be available in the Wagga district. Neither did he consult the Wagga phone book in order to locate such therapists. However, after he had commenced treatment he discussed the matter with Dr Sharrock who advised him to keep going if it was doing him any good.

13. The Applicant stated, with regard to his previous medical history. that he had received treatment from Paul Colenso, Physiotherapist in Wagga, for sciatic nerve pain in 1991 and that he had had surgery on his shoulder (R. Shoulder Acromioplasty) from Dr Nichols in 1991. Both he and Dr Nichols thought that he had made a good recovery from this operation. Mr O'Halloran had a fractured leg (L. tibia) in 1988. He is being treated for gout and takes Zyloprim and sometimes, Indocid. In May, 1995, Dr Leicester confirmed that he is now suffering from mild cervical spondylosis and that surgery is not indicated.

14. Mr O'Halloran stated that following his shoulder operation in 1991 his work had changed from 60-70% outside field work, to 100% inside computer work. Although he had commenced to do some work on computers in 1988 he was now required to do a great deal more. Immediately after the acute episode of pain with his neck (2nd July, 1993) he was moved back to field work.

15. Mr O'Halloran stated that the treatment that he received at the Shepparton clinic was very different from any other form of treatment he had received. The therapists there used heat from microwave lamps and their methods of massage and adjustment were very different.

16. The Applicant said that he commenced treatment in Shepparton on 9th March 1994. The return trip to Shepparton from Wagga is 610 kms. The routine he followed in the early months of treatment was to drive to Shepparton from Wagga on Wednesday, in the morning, have lunch, receive a treatment in the afternoon and another in the evening. He would then stay in Shepparton overnight and on the second day he received two treatments in the morning, had lunch and drove back to Wagga in the afternoon. This routine necessitated two days off work each week. However, every second week, Wednesday was his rostered day off, so in those weeks, only one day off was required.

17. The Applicant estimated the costs associated with this treatment as follows:-

Accommodation $60.00
Meals $60.00
Travel $180.00
Medical $60.00
Wages lost $262.44 (net) approximately

18. The Applicant stated Dr Sharrock gave him one Comcare form stating that he was undertaking travel for treatment in Shepparton, but the Applicant said, that there is no record of that form in the T documents. The Applicant made 23 visits to Shepparton between 9th March, 1994 and 9th February, 1995 and had kept a diary of all costs associated with travel and treatment. He had also kept diaries and receipts for all petrol associated with his work between October, 1994 and August, 1995. Over this period he had travelled 38,440 kms over 159 days. This indicated that he travelled on average, approximately 240 kms. per day for his work, though it varied greatly. He therefore, did not consider the journey to Shepparton to be excessive.

19. The Applicant stated that he drove to Shepparton on each Wednesday. He took one or two days sick leave, according to whether he had a day off that week or not. He received a Medical Certificate for Sick Leave from Dr Sharrock for one or two days accordingly. Dr Sharrock did not issue Workcover certificates with respect to these days.

20. The Applicant agreed that on 15th June, 1994, Dr Sharrock had stated to Mrs Pam Carrol - Rehabilitation Officer for Telstra for the Wagga area, that he was "non-committal regarding the effects of Mr O'Halloran's travel to Shepparton each week". Dr Sharrock also stated that he knew of "no other suitable physical therapist in Wagga or environs". Because Dr Sharrock had suggested to him that he should continue the travel "if he thought it was doing him any good", he, Mr O'Halloran believed that compensation would be fair.

Medical Evidence
21. The Tribunal heard that in Dr Sharrock's report (T53), 1st August 1994, he had stated that the Applicant "now has more improvement in his neck and less pain" and that he considered that he should continue his treatment for a further three months. Dr Sharrock also stated in his report that Mr O'Halloran obviously had a pre-existing condition of cervical spondylosis, which was aggravated by computer work. Dr Sharrock further indicated that the aggravation of that spondylosis had ceased when the Applicant was redeployed to outside work in July, 1993. Dr Doig, orthopaedic surgeon, was reported (T39, 14th April, 1994), as saying:

"I consider that if this is improving his symptoms . . . it is a
reasonable modality of treatment until he reaches a stage where
he considers treatment is of no further benefit."

22. Dr Doig was of the opinion that the effects of the aggravation caused by the Applicant at his employment had not ceased as at the time of his examination of him, i.e. April, 1994.

23. The Applicant agreed with Counsel for Telstra that both Dr Sharrock and Dr Doig had agreed that his pain is a subjective feeling -

"We must understand that both Dr Sturrock and Dr Doig who are
Telstra specialists stated that I am the only person that knows
I've got a problem. It is very difficult to see that . . . I am
uncomfortable or you know, have the pain in my neck. It's not a
thing that you can see and the fact that I feel that the - (any)
treatment I'm getting I seem to feel I know its doing me,
whether its improving my situation or not once the treatment
starts. The only reason I stayed in Shepparton was that I was
comfortable from the first treatment. I was comfortable and
kept improving until now where improvement has stopped". (Mr
O'Halloran transcript p.32).

24. The Applicant stated that he has not received weekly payment in respect of compensation as he has been fully employed and paid. He was paid sick leave for the days that he took off to attend his treatment. He did receive some payment for some medical expenses. He paid all accounts for therapy at the Wilson Centre, Shepparton, himself. It was stated that the Applicant is not "out of pocket" except that his sick leave allowance could be recredited with the used-up days if the Tribunal found in his favour.

25. In considering the question of what constitutes "reasonable medical treatment", the Tribunal canvassed the definitions of medical treatment and therapeutic treatment, under the Act. It noted that Medical Treatment is defined as "treatment under the direction of a medical practitioner". Therapeutic treatment is defined as "treatment given for the purpose of alleviating an injury . . . .". Counsel for the Respondent conceded that this definition would cover the treatment which came from the Wilson Centre. This introduces the issue as to whether the therapists at the Wilson Centre are State registered. Counsel for the Respondent said that they had no evidence as to this and the Applicant said the same thing.

Closing Submissions
26. The Applicant made the following submissions:
(i) Telecom did not train him in keyboard use or typing. He, therefore, sat with his head down, looking at the keyboard of the computer, not the screen. Had he been trained for this work, this injury would not have occurred.
(ii) Dr Sharrock, his General Practitioner, has no record of treatment for cervical spondylosis before 12th July, 1993 and he believes there is no proof cervical spondylosis existed before he started work on the computer.
(iii) Dr Sharrock stated that aggravation of cervical spondylosis ceased on 1st August 1994, but he, the Applicant, knows that the pain and discomfort did not cease until February, 1995.

27. Mr Diamond, Counsel for the Respondent, made the following submissions:
(i) Telstra does not deny that Mr O'Halloran suffered aggravation of a pre-existing condition. Telstra contends that Mr O'Halloran's treating doctor had recognised this condition and referred to the report of Dr Sharrock (T53, p2, 1st August, 1994) where he stated -

"Patrick obviously had a pre-existing condition of cervical
spondolitis and this was aggravated by computer work".

Telstra contends that this underlying condition gave rise to acute symptoms on one day in July, 1993.
(ii) That the aggravation to this injury ceased once the Applicant was redeployed and that Dr Sharrock notes this in the same report.

"Aggravation of cervical spondolitis ceased when (he was)
redeployed outside".

(iii) That the relief of symptoms that the Applicant reports as having followed his treatment in Shepparton is really attributable to this redeployment.
(iv) That the underlying disease then followed its normal course of degeneration.
With regard to the treatment in Shepparton, Mr Diamond said that there were two tests to be applied to the decision as to whether Comcare is liable to meet these costs. First, the treatment must be in relation to the injury and secondly, it must be reasonable for the employee to obtain in the area.
(v) That the treatment that Mr O'Halloran received in Shepparton was not in relation to the injury suffered to his neck when he worked at a computer over some time, but was in relation to this underlying degenerative condition of cervical spondolosis.
(vi) That the treatment which Mr O'Halloran undertook in Shepparton is not reasonable because -
. Mr O'Halloran had not sought advice of his medical practitioners or treating therapists before deciding to commence treatment in Shepparton.
. Neither had he attempted to find identical treatment in the Wagga area, by consulting the phone book.
(vii) While Mr O'Halloran's General Practitioner, Dr Sharrock had written medical certificates to ensure sick leave was available to him on the days when Mr O'Halloran went to Shepparton to get treatment, he had not written more than one Work Care form which would indicate that the treatment was related to a compensation condition or a compensible condition.
Mr Diamond argued that unless the above criteria were met, there was no case for Telstra to answer. However, if the question of reasonableness were to be considered, the question of distance of the treatment from the Applicant's home arises. Mr Diamond agreed that the amounts claimed for mileage, accommodation and meals were, of themselves, reasonable, if the journeys were reasonable in the first place. But he contended that they were not.

Findings
28. The Tribunal found that the Applicant had suffered an acute episode of pain and loss of movement in his neck in July, 1993. This was later diagnosed as tightening of the lordosis muscles.

29. He undertook three different lots of therapeutic treatment prescribed by his treating doctor (Dr K Sharrock) in Wagga between July and December, 1993. The Tribunal accepts his evidence that he did not obtain significant or lasting relief of his symptoms from any of these treatments.

30. The Applicant then sought relief from therapists in Shepparton, Victoria and while it is true that he did not make broad enquiries about the possibilities of similar treatment in the Wagga region, it is reasonable to assume that either his treating doctors or therapists would have known and referred him to them, if such were available. Furthermore, the Applicant believed that he had the tacit approval of Dr Sharrock and his choice was later verified by comments of Dr Doig that his was a "reasonable treatment modality".

31. The Tribunal found that the period of work (especially between 1991 to July 1993) which the Applicant spent at a computer terminal contributed significantly to the acute episode of pain and loss of movement in his neck which he suffered in July 1993.

32. Telstra had not trained him for this computer work nor had regard to suitable Occupation Health and Safety standards in this regard and so he, therefore, operated the computer terminal in such a way that it is reasonable to believe put severe strain on his neck muscles.

33. While these aggravating or causative circumstances were redressed immediately after the incident of pain, by again redeploying the Applicant to outdoors activities, the effects of that aggravation continued for some time and the Applicant continued to suffer pain and loss of movement for some time beyond August, 1994. This is indicated by his continuing to be referred by his doctor and continuing to seek and undergo various forms of medical and therapeutic treatment in order to gain relief from his symptoms. The Tribunal found his evidence in this regard to be credible.

34. While it is possible that the later diagnosed cervical spondylosis from which the Applicant suffers was already present prior to July, 1993, it had not been diagnosed by any physician before that time and Mr O'Halloran had not suffered any severe pain before that date.

35. The Tribunal found that because the symptoms had not stopped immediately after the aggravation had been removed, it is not possible to attribute his improvement to his redeployment. We, therefore, reject the Respondent's view that the treatment in Shepparton was not in relation to the injury suffered to his neck when he worked at the computer over some time, but was in relation to an underlying degenerative condition of cervical spondylosis. While it may be true that the two conditions existed simultaneously, one chronic and one acute, it is not possible to indicate that the therapeutic treatment addressed one and not the other, as the Respondent claims.

36. The Tribunal finds that it was reasonable for the Applicant to undertake therapeutic treatment in Shepparton for the following reasons -
. He had undertaken three forms of prescribed treatment in Wagga with no significant improvement in his symptoms. He was still experiencing pain and loss of movement.
. He showed initiative and willingness to undertake treatment at some inconvenience and cost in order to improve his physical condition.
. His initial experience at the Shepparton centre was positive; he felt some immediate relief and it was therefore reasonable that he keep going.

37. The consolidation of his treatment regime into two intensive consecutive days are reasonable and the amounts of expense incurred with regard to the Applicant's visits to Shepparton are reasonable, in themselves, as the Respondent admitted.

Conclusions
38. The Tribunal sets aside the decisions under review and finds that the Applicant continued to suffer pain and discomfort to his neck until February 1995 and that it was reasonable for him to travel to Shepparton in order to seek relief from that pain and discomfort.

39. The matter is remitted to the Respondent with orders that it is liable to pay compensation to the Applicant for the costs of the treatment undertaken at the Wilson Centre, Shepparton and for the costs of travel and related expenses incurred by the Applicant in attending such treatment, in accordance with these findings.

40. The Tribunal also orders that the Respondent pay the Applicant's costs in these proceedings.