AHMED YOUSSOUF and TELSTRA CORPORATION LIMITED

[2012] AATA 251

[2012] AATA 251

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/0941
Re	AHMED YOUSSOUF
APPLICANT
And	TELSTRA CORPORATION LIMITED
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop Dr J Chaney, Member
Date	30 April 2012
Place	Perth

The Tribunal sets aside the decision under review and, in substitution therefor, decides that, pursuant to s 14(1) and Part VIII of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), the respondent has continued to be liable to pay compensation to the applicant in respect of an injury, namely, “Facet Joint Inflammation over L3, L4 and L5 with No Lumbar Nerve Root Impingement, sustained on 30 December 2008” (“the injury”), from 13 July 2010 to the present date, and is presently so liable, as follows:

· compensation for reasonable medical expenses incurred in respect of the injury, in accordance with s 16 of the SRC Act, the quantum of such compensation to be determined by the respondent;

· compensation for incapacity for work resulting from the injury, in accordance with s 19 of the SRC Act, the quantum of such compensation to be determined by the respondent on the following bases:

-for the period from 13 July 2010 to 26 January 2011, the quantum of compensation payable to the applicant is to be determined, in accordance with para (a) of s 19(4) of the SRC Act, having regard to the amount per week that the applicant earned in employment by the respondent in that period;

-for the period from 27 January 2011 to date, and as at the present date, the quantum of compensation payable to the applicant is to be determined, in accordance with paras (b) and (f) of s 19(4) of the SRC Act, having regard to the amount per week that the applicant would have earned, and would be earning, in full-time employment in the position of “OTD Scheduler” with the respondent if he had been engaged, and if he were presently engaged, in that employment.

Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to Workers’ Compensation Jurisdiction.

..........sgd S D Hotop..................

S D Hotop, Deputy President

CATCHWORDS

COMPENSATION -  employee of licensed corporation -  applicant sustained compensable injury in December 2008 -  respondent paid compensation to applicant until 12 July 2010 -  applicant continued to be employed by respondent until 26 January 2011 -  applicant resigned from employment by respondent -  applicant's injury continues to result in impairment and incapacity for work -  respondent continues to be liable to pay compensation to applicant for reasonable medical expenses -  respondent continues to be liable to pay compensation to applicant for incapacity for work -  respondent made offer of suitable employment to applicant -  applicant failed to accept offer -  applicant's failure to accept offer of employment not reasonable -  amount of compensation payable to applicant for incapacity for work to be determined having regard to those considerations -  decision under review set aside

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(9), s 14(1), s 16(1) and s 19(4)

REASONS FOR DECISION

Deputy President S D Hotop
Dr J Chaney, Member

30 April 2012

Introduction

1. Ahmed Youssouf (“the applicant”) was employed by Telstra Corporation Limited (“the respondent”) from 1999 to 26 January 2011.

2. On 10 March 2009 the applicant claimed compensation for an injury described as “acute right LBP facet joint SI/joint disfunction” (sic) which occurred on 30 December 2008 at 10.30 am.  The circumstances of that injury were described by the applicant in the claim form as follows:

   “ In the morning of that day I completed a job and went to Morley exchange in my driver seat I turned to passenger side and felt very sharp pain on my lower back”. (sic)

3. On 28 April 2009 a determination was made on behalf of the respondent that the respondent was liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to the applicant in respect of an injury described as “Facet Joint Inflammation over L3, L4 and L5 with No Lumbar Nerve Root Impingement, sustained on 30 December 2008”.

4. On 13 July 2010, on the basis of reports by Dr Philip Hardcastle, Consultant Orthopaedic Surgeon, dated 6 April 2010 and 12 May 2010, a determination was made under the SRC Act in relation to the applicant as follows:

   “ …

   You ceased to suffer from the effects of the compensable injury on 13 July 2010.

   Accordingly, I determine that there is no present liability to pay compensation for medical treatment or incapacity for work under Sections 16 and 19 of the SRC Act”.

5. On 18 January 2011 a “reviewable decision” was made under s 62 of the SRC Act affirming the determination of 13 July 2010.

6. On 15 March 2011 the applicant lodged with the Tribunal an application for review of the reviewable decision of 18 January 2011.

   The Evidence

7. The evidence before the Tribunal comprised:

   ·the documents (“T Documents”, T1─T118, pp 1─422) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

   ·Exhibits A1-A6 tendered by the applicant;

   ·Exhibits R1─R7 tendered by the respondent; and

   ·the oral evidence of the applicant and of the following witnesses:

   −Mr Barrie Slinger (who was called by the applicant); and

   −Dr Michael Bowles, Dr Philip Hardcastle and Richard Nystrom (who were called by the respondent).

   The Applicant’s Evidence

8. In his oral evidence-in-chief the applicant said that he was born in 1964 in Somalia and that his family moved to Djibouti in 1980/81.  He first arrived in Australia in 1989 and, within a week, had obtained employment with GMH in Melbourne, and he worked there assembling motors on an assembly line until 1993.

9. The applicant confirmed that he had signed a witness statement, dated 20 November 2011, for the purpose of this proceeding and that its contents are true.  That witness statement is as follows:

   “ …

   3.    I started working for Telstra in or about September 1999.

   4.I started at the beginning, the first year in 1999 as a band 3 installer/repairer.  That was only while I was learning, picking up all the new skills.  After the first year I believe I was promoted to the band 4 installer/repairer.

   5.I was then employed by Telstra as a band 4 installer/repairer.

   6.I got the job because I had many years in the electronic sector before joining Telstra.

   7.Telstra pretty much trained me for the work it employed me to do. 

   8.I also have an Advanced Diploma in electronics since 1984. I got that qualification in Lyon, which is in France.

   9.I have done mostly work in electronics before joining Telstra.

   10.My main duties with Telstra as a band 4 installer/repairer were to fix any sort of fault relating to telecommunication. This was mainly, most of the time repairing the copper lines. I also installed any sort of telecommunication in the copper line.

   11.Fixing a copper line means we diagnose the fault and locate the fault.  You know the fault could be anywhere in between a house to an exchange.  Sometimes there are a few kilometres involved in finding a fault so there can be a lot of driving to find the fault.

   12.An exchange is a building where telecommunication originates in a district that serves telecommunications for many suburbs.

   13.Inside the exchange are racks. Outside the exchange is where all the telephones lines go into houses.  There is also equipment and material in the exchange for maintenance purposes.

   14.There are many physical activities involved in being an installer/repairer. As a band 4 working in an exchange there is lot of ladders going up and down involved, connecting cables.

   15.From the exchange there are pillars which are grey boxes that you could see on the streets. If I am instructed to do some work on the pillars, you will have to kneel down and/or bend to do the work.

   16.I used to do maybe five to seven jobs a day with the pillars, at least in every single job you could be kneeling, bending and/or lifting maybe more than 10 times, just depending on the complexity of the job.

   17.There are also pits which is a manhole where there are telecommunication cables. 

   18.The manholes can weight (sic) somewhere above 10 kgs. I was required to lift the manholes to get access to the cables.

   19.The pits can be as deep as 2 metres sometimes going into a very confined space which means you have to twist and turn a lot.

   20.On the lucky days you might have to lift a heavy manhole once or twice.

   21.When you go up to an end house situation for example, installing the telephone line, pretty much you will be working in the roof space inside the house.  There is a lot of crawling and bending in those circumstances as well.

   22.Most of the work I am doing when I am in a confined space is jointing.

   23.Jointing is when you are putting a new joint, and getting rid of a faulty joint.

   24.Joints are cables, sometime in every 100 house or 50 house which share the same cable and in that same cable. To facilitate the share of the cables, we put a joint which facilitates the access to the cable.

   25.You need to terminate to old joint to put in a new joint to shrink the joint to the cable. 

   26.Whilst performing this task you pretty much work in the roof space or in the manhole for a couple hours at a time.  The length of time varies.

   27.On 30 of December 2008 I suffered an injury in the course of my employment with Telstra to my back.

   28.I didn’t take it very serious the first day but then when the pain did not go away on the second day I mentioned my injury to my manager.

   29.On the second day my manager and I went to Prime medical centre.  That’s when the doctor diagnosed my injury.  The doctor put me on light duties.

   30.I have not returned to my pre–accident duties since.

   31.The light duties I was given at first were based on projects. 

   32.Sometimes I had to go to an exchange just to clean up the floor, and sometime clean the rags from all jumper cables.

   33.I would clean the floor of the exchange with a broom. 

   34.Jumper lines are cable that is used to make a connection.

   35.As part of my light duties I had to check what we used to call CNI, which are jobs that need to be completed. 

   36.I used to go and check if those had been completed. 

   37.We have a data base and I used to go and check if those jobs were done. 

   38.It simply involves inspecting to see if the job has been done. You aren’t physically doing anything in this role.

   39.I did the inspecting with one other person.

   40.At one stage I was doing a bit of maintenance, to the pillars at the side of the street which had been vandalised by graffiti.  I was going to spray the pillar with paint to get rid of those graffiti. 

   41.In late 2009, I was eventually relocated to an office job in Stirling Street which was working with a team which dispatch jobs to technicians.  For three months I spent half days working there. 

   42.I had to answer telephone calls.

   43.I couldn’t keep working those duties because the time I spent sitting hurt my back even more.

   44.The doctor said to me that I had to change duties.

   45.He explained to Connect (sic), the rehabilitation provider, to put me back in the field doing other light duties. 

   46.I have tried twice since my injury to return to my pre–accident duties.

   47.The first time was in late 2009.

   48.I done a couple of jobs but at the end of the second week I experienced very bad pain.  When I mentioned to my manager Rick Nastrall (sic – Nystrom) he straightaway put me off work.

   49.I had very good communication with that manager and he used to tell me to tell him if I was sore. 

   50.I remember I called him after hours and explained to him I was in pain and he basically told me to go to my doctor to get a certificate and medical treatment.

   51.The second time I attempted to return to my pre–accident duties was around early 2010. I was sent to repair a joint, a 100 joint. 

   52.As a result of doing that work I had very, very bad pain. The next day I just had to go back to my doctor and my doctor gave me a couple of weeks off.

   53.I had otherwise being (sic) doing light field duties since February 2010.

   54.I attended an appointment on Dr Hardcastle in May 2010 at the request of the insurer.

   55.After my appointment with Dr Hardcastle he said to me that I could go back to my normal duties but to increase my hours slowly. 

   56.I wanted to go back to my pre–accident duties.

   57.I tried to increase the hours as much as I could.

   58.In 2010 I took some time off work. I took long service leave.  I just had that pressure at work that I could not sustain. 

   59.I had pressure from manager John Stropp (sic – Stopp). 

   60.I was being told by John Stropp (sic) that they wanted me to go back to my normal duties.

   61.I was trying my best, trying to do as much as possible to go back to my normal duty. 

   62.I took approximately 3 months off at the end of 2010.

   63.When I came back from leave in late December 2010 early January 2011, I had a meeting with John Stropp (sic) and Rick Nastrall (sic).

   64.I was told by John Stropp (sic) that I could either go back to my full pre–accident duties or if I was not capable of doing that, they would find office duties for me to do. 

   65.I explained to them that there are a lot of other technical jobs available within Telstra that I would be able to do but I couldn’t cope sitting on a chair for eight hours.

   66.I was told that was the only work that Telstra was going to offer me. 

   67.I was told that there was not any other option available.

   68.I did mention to John Stropp (sic) many times that I was not able to perform the office based work because I could not sit for a long time. 

   69.I was not specifically told to provide a letter of resignation but I was told that I was not going to be offered any alternative duties.

   70.The next day following the meeting, I told them because of my medical condition I was not able to, you know take that job and that I was resigning. 

   71.I then gave them my letter of resignation. 

   72.I continue to feel continuous pain in my lower back.

   73.It is continuous pain and I get numbness on the right leg.

   74.I try to avoid bending lifting and twisting motions because it hurts my back to do it.

   75.For my pain I just buy the Panadeine or Panadol over the counter.” (Exhibit A1)

10. The applicant was referred to para 63 of his witness statement regarding a meeting with Mr Stopp and Mr Nystrom.  He said that Mr Nystrom emailed to him information about a job in the Perth Deployment Centre.  He was shown Attachment 8 (comprising two pages) to Mr Nystrom’s witness statement dated 31 January 2012 (set out in paragraph 34 below) and he confirmed that that was the abovementioned document emailed to him by Mr Nystrom. 

11. The applicant was referred to the second page of that document in which the “desirable skills and expertise” of the position, namely, “OTD Scheduler”, are described as follows:

    “ Desirable skills and experience:

    ·Excellent computer skills

    ·Strong communication skills

    ·Problem solving skill set

    ·Ability to multi-task

    ·Experience in a call centre type environment

    ·Telstra experience valued but not essential”.

    He said that:

    ·his computer skills are “very basic”;

    ·he “can handle a bit of verbal communication”; he “could not speak a word of English” when he arrived in Australia and learnt English by speaking with people;

    ·he worked for two months in a Telstra call centre shortly after his injury but it was not successful because he could not communicate properly with other people and they could not understand what he was saying.

12. The applicant was next referred to the “essential attributes” of the position (“OTD Scheduler”) which are described in the document as follows:

    “ Essential Attributes

    ·     Customer Focus – Understands the customer and their environment

    ·     Drive for Results – Delivers results quicker and more efficiently

    ·Organisational Agility – Gets things done through relationships and networks

    ·     Building effective teams – Contributes to team success

    ·     Learning on the fly – Applies new learning’s to new situations”.(sic)

    He was asked, in sucession, whether he understood what was meant by “learning on the fly” or “drive for results”, or whether he had demonstrated “organisational agility” or “built an effective team”, and he answered “No” to each such question.

13. He was then referred to the list of “scheduling” tasks on the first page of the abovementioned document, as follows:

    “ Scheduling:

    ·Receive and action calls from a large variety of internal groups in a timely manner with desired quality.

    ·Scheduling and dispatching tasks to the field workforce.

    ·Monitoring tasks to ensure they are actioned in time to meet customer commitments and appointments.

    ·Taking appropriate corrective action when tasks are in danger of being missed.

    ·Proactively identifying tasks that cannot be resourced, and ensuring that the customer is notified in a timely manner.

    ·Responding to requests from the field that will influence the scheduling of tasks.

    ·Responding to requests from the other workgroups that will influence the scheduling of tasks.

    ·Ensuring that the Field Workforce is fully utilised.

    ·Manage on the day drop in work, escalation and high priority work in a timely and efficient manner.

    ·Update resource details to ensure resource availability and details are accurately reflected in a timely manner.

    ·Manage risks, Fast track requests, failed to complete items and manage end of end/shift items of work.  Link tasks as required.

    ·Ensure records and reporting is appropriately maintained and updated and/or referred to other parties where alternative action is required.

    ·Conduct routine activities such as filter checks in line with the appropriate designated process.

    ·Develop understanding and awareness of how the team’s performance impacts on broader business.

    ·Drive the team performance to meet set targets and measurements.”(sic)

    He was asked whether he had ever performed any of those tasks in his employment with the respondent, and he answered “No”.

14. He confirmed that the abovementioned position was the job that the respondent was offering him and he added that he had told Mr Nystrom and Mr Stopp that he was not capable of doing that job.  He said that they told him that that was the only work that they were going to offer him, and he subsequently told Mr Nystrom that he was going to resign.

15. He said that, since his resignation, he has not worked.  He added that he had seen telecommunications positions advertised on the “Seek” website and had made telephone enquiries about such positions but that, when he explained his “history” to them, they have told him that they “do not have anything” for him.

1. In cross-examination the applicant gave evidence to the following effect:

   ·at the time of his resignation, he was certified by his general practitioner, Dr Hoffman, as fit to work full-time hours in restricted duties;

   ·on some days he was able to perform those duties, on other days he was unable to do so ;

   ·three or four times per month he complained to Mr Nystrom that he was unable to perform those duties, but Mr Nystrom still required him to perform those duties;

   ·in December 2010 he signed a form which he understood to be a further offer of light duties for the period from early December 2010 to at least the end of January 2011 (in accordance with Dr Hoffman’s current medical certificate) and he was then prepared to continue with those duties until at least the end of January 2011;

   ·when he signed that form he did not inform Mr Nystrom that he was not able to do the duties for the hours specified in the form.

2. In re-examination the applicant explained that he resigned earlier in January 2011 because he had been told in early January that he had to go and start “the office job”.  He said that, had he not been required to do that office job and had he been allowed to stay “in the field”, he would have continued to do the duties specified in the abovementioned form which he signed in December 2010 and would not have resigned.

   The Evidence of the Medical Witnesses

   Mr Barrie Slinger

3. Mr Slinger, Orthopaedic Surgeon, confirmed that he had reviewed the applicant, at the request of the applicant’s solicitors, on 28 June 2011 and that he had subsequently prepared a report dated 29 June 2011.

4. Mr Slinger’s report of 29 June 2011 states as follows:

   “ …

   HISTORY OF INJURY:

   The injury occurred on the 30^th December 2008, when he was performing his normal activities, repairing a fault in a street, on completion of which he drove to the Morley Exchange, and whilst sitting in the driver’s seat he turned to the left, to the passenger’s side, and experienced sharp pain in the low back.

   Despite those symptoms, he completed his day’s activities to 5.00 pm, however, that night his pain increased, and he subsequently attended for advice from a practitioner at Prime Health.

   TREATMENT:

   Initial treatment was with Panadeine Forte and Tramal, physiotherapy was commenced, which produced short-lived improvement, continuing this for several months, including acupuncture, and then he changed to hydrotherapy, although that was associated with aggravation, particularly in the neck, and therefore, was ceased.

   In addition, he was referred to a gymnasium programme in October 2009, with Guardian Rehabilitation, but that was associated with further aggravation of symptoms, so the programme was confined to hydrotherapy.

   In April 2010 Alliance (sic)/Telstra indicated they would not pay for any other treatment, including medication, and as he does not have the available funds, he has not continued any additional treatment.

   Present medication is confined to Panadeine Forte, four to six tablets a day.  Previous medication he was utilising for long-standing ulcerative colitis has been ceased, because he is symptoms free, under the care of a gastroenterologist at Sir Charles Gairdner Hospital.

   PRESENT:

   Pain persists in the low back, to the right of the mid line, in the area of the buttocks, and is constant in nature, shooting on occasions.

   Pain in the right lower limb is more severe, intermittent, radiating distally along the posterior aspect of the thigh to the calf and foot, burning and vibrating in nature, numbness affecting the lateral three toes, sometimes all the toes of the right foot, and he also experiences pins and needles below knee, both on the anterior and posterior aspect.

   Lifting is avoided, with a tolerance of 5 kgs, sitting is an aggravation, limited to 30 minutes, and he is most comfortable in his recliner chair.  Standing tolerance is also 30 minutes, he avoids bending, preferring to sit to dress, walking, whereas previously he was walking for exercise, two to three times a day, he is now confined to 100 metres.

   Sleep is regularly interrupted, commonly attaining only two hours, and then he may be able to return to sleep, or alternatively, he remains awake and watches television.

   ACTIVITIES:

   At home he lives with his wife and six children, from 5 years to 19 years, he is able to assist his wife with a little cooking, avoids the gardening, which is performed by his children, including mowing the lawn, and whereas previously he was active with handyman activities and repairs, climbing to the roof, cleaning up the years (sic), this has ceased, and he has not been able to play social soccer with friends or his children.

   Domestic activities, including vacuuming, sweeping and mopping are avoided, and although he accompanies his wife shopping, he does not undertake carrying any of the shopping or otherwise assist.

   SOCIAL:

   I confirmed he does not smoke or drink alcohol.

   EMPLOYMENT:

   Following the accident he was placed on light duties, and then in February 2009 he attended full duties, which was associated with aggravation, and after two weeks he was not able to continue and was away from work for four weeks.

   Thereafter, he resumed work with light duties, part-time in nature, which he subsequently increased to full-time duties in mid 2010, continuing with exchange work, sorting cables, he did attempt jointing cables, but that was associated with increased symptoms, and was then avoided.

   In the latter part of 2010 he found his increasing symptoms were providing additional problems and he was placed on administrative duties, which involved sitting for eight hours, and despite his request to be redeployed in the organisation, using his technical skills, this was refused, as a consequence of which he resigned in January.

   I have read the report from Ms Katie Lee, in respect to his pre-injury duties, which were said to involve accessing cabinets, manholes and pits, advanced services, four lid and six lid manholes, catching cables, climbing and working on the top of ladders, removing ladders from vehicles, attaching ladders to vehicles, exchange jumpers, rodding and cable hauling, as well as working in confined roof spaces.

   PAST:

   In the past there is no history of surgical procedures, and no health problems, other than ulcerative colitis, which as mentioned in the preceding, he is now symptoms free and has ceased medication.

   EXAMINATION:

   To examination he was a pleasant fellow of 182 cms in height and weighing 93 kgs, who provided a clear history.

   In the thoracolumbar spine tenderness was noted in the lower lumbar segments and to the right, of a diffuse nature, with movements, forward bending fingers reaching to the proximal third of the thighs, extension to 0°, lateral flexion 20°, rotation was unrestricted.

   Straight leg raising on the right was to 10°, on the left 30°, and when sitting on the side of the couch there was no such restriction.

   There was global weakness of the right foot, absence of the ankle jerk on the right, and sensory impairment over the lateral aspect of the calf and foot.  Standing on heels and toes was accomplished, albeit with pain in the right lower limb, axial compression was unremarkable and gait was normal.

   …

   TO ANSWER YOUR QUESTIONS:

   1.History given by my client.

   The history given by your client is detailed.

   2.Current symptoms and restrictions complained of by my client arising from work related injury on or about 30 December 2008.

   Current symptoms and restrictions are described and the restriction they place upon his activities, confirming those symptoms and restrictions have occurred as a result of the injury which occurred in December 2008.

   3.Please detail your findings on clinical examination.

   The findings on clinical examination are described.

   4.What is your diagnosis?

   The diagnosis is that of soft tissue injury to the lumbar spine, occasioned by the accident of December 2008.

   5.What treatment do you consider may be necessary in the future?

   Treatment required in the future is to general principles of back pain care.  In particular, to avoid provocation, in avoiding those activities which aggravate or initiate symptoms, based upon his experience, emphasising there is no reason to suppose any one activity will produce any damage as such or adversely affect his long-term future, and the ability to continue that activity should be governed by his perception of the pain, if any, so produced.

   In addition, to a regular stretching and strengthening programme, directed to core, trunk and abdominal muscle strength, ideally, initially supervised by an exercise physiologist or physiotherapist, following which he would then be able to supervise his own programme, preferably in a gymnasium with a heated pool facility, or alternatively, with a home programme.

   Local measures such as heat, massage, mobilisation and physiotherapy, useful at times of symptomatic exacerbation, but need not be maintained on a regular basis and to continue with his present medication, as determined by his family doctor.

   6.Your prognosis of my client’s condition.

   The prognosis of your client’s condition is that it is now some 2½ years since the accident, and whilst I could not exclude the possibility of some modest improvement, it is most likely his present condition will continue.

   7.Based on the history provided by my client, are you of the view that his injury was caused by the incident at work on 30 December 2008?

   It is my opinion that his present condition and injury relates specifically to the accident at work of 30 December 2008.

   8.If you are of the view that my client may be suffering from a pre-existing condition, are you of the view that the recurrence, aggravation or acceleration of any per-existing disability was a contributing factor to that recurrence, aggravation or acceleration and contributed to a significant degree?

   Prior to the accident at work, he did have degenerative changes in the lumbar spine of a minor nature, which were asymptomatic, and which, in the absence of the injury, may well have continued asymptomatic indefinitely.

   9.Are you of the view that my client can return to his pre-accident duties at this time?  If you are not of the view that my client can return to his pre-accident duties, are you of the view that my client can return to any form of employment at this time, and if so what type of work do you consider my client could engage in?

   I am of the view that your client is fit to return to the light duties he was performing prior to his resignation, and it is somewhat disappointing that neither Telstra or their rehabilitation provider Konekt, could not (sic) provide him with alternative employment, within the organisation, which he feels he is technically competent to perform, rather than place him in an administrative position, where sitting for long periods was clearly an aggravation.

   10.You will note that Dr Hardcastle has suggested that the worker is suffering from subject (sic) symptoms of pain which is preventing him from returning to work but that he is otherwise fit to return to full time work.  Would you please comment on Dr Hardcastle’s opinion and whether or not you agree with Dr Hardcastle’s report dated 6 April 2010?

   It would be improper for me to comment on a colleague’s report, unless you wish specifically to ask me a question as to any particular aspect of that report, clearly, my opinion is that he is fit to return to work of a light nature, in a full-time capacity, avoiding any heavy lifting or repetitive bending and ideally in a situation which would allow him to sit or stand at discretion.

   11.Are you of the view that my client’s current condition is related to his work related injury?

   I repeat my opinion that your client’s current condition is related to his work injury.

   …” (Exhibit A3)

5. Mr Slinger also provided a short supplementary report, dated 3 January 2012 (Exhibit A4), in which he confirmed that he had read Dr Hardcastle’s report of 15 June 2011 and an MRI report dated 26 October 2011 but that those reports had not caused him to alter any of the opinions expressed his report of 29 June 2011.

6. In cross-examination Mr Slinger said that the applicant did not like administrative duties and wanted to do “hands on” work, but that doing “hands on” work had aggravated his symptoms.

7. Mr Slinger accepted that the applicant’s symptoms did not prevent him from performing the light duties for full-time hours that he was doing from mid-2010 to January 2011.

8. It was put to Mr Slinger that, in January 2011, the respondent had made to the applicant an offer of employment which involved office-type work where he could stretch and move about at will and which involved allocating work to technicians.  Mr Slinger said that he was unaware of such an offer but that it “sound(ed) as if it would be suitable” for the applicant.

   Dr Michael Bowles

9. Dr Bowles, Occupational Physician, confirmed that he had prepared two reports, dated 19 October 2009 and 27 May 2011, regarding the applicant.

10. In his report of 19 October 2009 (T63) Dr Bowles set out the “History of Presenting Complaint” and the “Current Complaints” as follows:

    “ History of Presenting Complaint

    Mr Youssouf described that he had not had any problems with his back prior to late December 2008.

    He indicated that he was a Technician who worked in the field.  He was sitting in his van after the first job on an exchange.  He said he was required to wear a safety vest.  He said this was on his passenger seat and he reached across to get the vest when he had a sudden onset of right lower back pain.  Mr Yousssouf said he got the vest and went to step down from his van noting pain into the right leg.

    Mr Youssouf was able to keep working that day.  He spoke to his manager the next day and an appointment was arranged with Prime Health in Osborne Park.

    Mr Yousssouf said he initially was referred for physiotherapy which gave him short-term symptomatic relief.  Electrotherapy were (sic) attempted.  Mr Youssouf said he was then changed to hydrotherapy and on the 2^nd day had a lot of pain radiating to his neck.  Hydrotherapy was ceased at that stage.

    Mr Youssouf said he had increased pain in February or March.  There didn’t appear to be any issue around that time in terms of further accidents or events.  He said he had been on light duties.  His pain was worsening and he had trouble sleeping.  He was sent to Mr Bell.”

    Current Complaints

    Mr Youssouf indicated ongoing right lower back problems.  He said this was just above the buttock.  He said the complaint would tend to come and go and would occur twice a day, often worse at night.

    Mr Yousssouf noted sitting or driving for more than 20 minutes would bring on discomfort.  He said it was sometimes a crushing but most of the time a burning inflammation type discomfort.  He indicated that he felt ok at the beginning of the day but then this would worsen.  He said overall the back was improving and he was trying to manage his problem better.

    Mr Youssouf said his worst problem was pain down the right leg.  He said this would come and go but was present most of the day radiating down the back of the leg to the knee and then at times into the foot.  He said he got numbness in the lateral 4 toes and sitting or driving in the same position would bring on the leg complaint.

    Mr Youssouf noted sitting and driving tolerances for 20 minutes to ½ hour and then he would need to change posture.  He said he was avoiding bending and lifting.  Mr Youssouf said his back was stiff in the morning.  He said overall he was slowly improving.”

11. In that report Dr Bowles opined that the diagnosis of the applicant’s condition was “ongoing mechanical back pain with referred right leg symptoms”.  He also opined that the applicant’s current complaint was “directly related to the onset of back pain whilst in the course of employment with Telstra”.

12. Dr Bowles’ report of 27 May 2011, which was prepared following a review of the applicant on that date at the request of the respondent’s solicitors, states as follows:

    “ …

    Progress

    Since last review, Mr Youssouf felt he had got worse.  He said on most days he felt worse that he was when I saw him approximately 18 months ago.

    Mr Youssouf noted since that time he undertook exercise without much improvement.  He indicated he has not had any injections.  He has not had surgery. 

    Mr Youssouf indicated that he attended gym and hydrotherapy but with the associated movements, felt his complaints got worse.

    …

    Current Complaints

    Mr Youssouf’s current complaints encompassed the lower neck, left shoulder, down the left arm to the forearm but no complaint in the left hand.  He said he still got more so (sic) right leg discomfort.

    In relation to the neck, Mr Youssouf was describing burning and stabbing, later pointing around the base of the neck into the left trapezial region. Neck complaints tended to come and go but were worse in the morning and were present on some days.

    Mr Youssouf found he avoided movement as this would tend to make his neck worse.  He said neck movements were reduced from time to time.

    Mr Youssouf noted approximately 2 or 3 months of left shoulder complaint which has come on for no specific reason.  He indicated this to be a burning present most of the time, intense on some days.  He said his shoulder movements were reduced and he couldn’t sleep on the left shoulder and it would wake him up when he turned on it.

    …

    Mr Youssouf noted his complaints to be in his right buttock with examination not showing any complaint in the lumbosacral spine itself.  He indicated that he got an intense vibration buzzing under the buttock and into the right thigh, particularly when sitting on a hard chair.  He said complaints were more so in the leg then the back.  He said any pressure on the right leg would give him pain and he avoided walking and would walk with a limp.

    He said he could walk sometimes but not very much.  He found sitting and standing worse.  He rated his leg pain at its worst at a 9/10.

    Buttock complaint was always present but of variable intensity and Mr Youssouf said he avoided everything.  He said sitting in a hard chair was limited to 15-20 minutes and he found himself feeling better in a soft recliner chair and if he lay down he had less pain.

    …

    Examination

    On examination, Mr Youssouf again presented as a pleasant man.  He showed no sign of restriction or impairment to informal examination.  He noted neck complaint around the C7 spinous process radiating to the left trapezial region.

    To request little movement was undertaken in the neck.  Shoulder complaints were noted around the back of the shoulder down the triceps region into the forearm but not into the hand.

    Shoulder movements in the left were limited to the horizontal with mildly restricted internal and external rotation, good rotator cuff strength and negative impingement.  Right arm examination was normal.

    There was no neurological compromise in the upper limbs.  Tone, power and reflexes were equal and symmetrical.  There was no sensory loss to light touch.

    Examination of the back showed no complaint in the lumbosacral spine itself.

    When asked about complaint in the back, Mr Youssouf said he had no complaint in the thoracic, lumbar or lumbosacral region.  He said his complaint was in the right buttock.  Range of movement in the lumbosacral spine showed limited movement in all directions.  There was no response to simulated rotation or axial compression.  Straight leg raising was 10° on the right whilst supine and 30° the left though Mr Youssouf sat up with the legs out at 90° on the couch without apparent problem.

    Mr Youssouf said generally the big and 2^nd and 3^rd toes were numb but often would have numbness throughout the right leg.

    …

    Specific Questions

    …

    4.Your diagnosis as to any current condition with respect to Mr Youssouf’s lower back, including whether you remain of the opinion that Mr Youssouf has ongoing mechanical back pain with referred right leg symptoms.

    Back complaints have resolved.  Examination today didn’t show Mr Youssouf complaining of back pain in the lumbosacral region.  He felt pain was centred around his right buttock, referring into the right leg.

    He did, earlier in the history, indicate having low back pain, but when specifically palpated over the lumbosacral region, he noted no complaint.

    5.Your opinion as to the factors that are likely to be contributing to any low back condition that Mr Youssouf currently suffers from including:

    Factors contributing to Mr Youssouf’s condition are multifactorial.

    a)   whether the incident on 30 December 2008 is likely to be currently contributing to a significant degree or

    In my opinion, there is no contribution for the incident of 30 December 2008 from a medical perspective.  There may have been a minor sprain/strain of a non-specific nature but this would have long since resolved.

    b)   whether it is likely that the incident on 30 December 2008 has ceased to be a factor contributing to a significant degree.

    In my opinion, that event has ceased to be a factor to a significant degree.  One needs to explore other issues including ongoing use of rest and down time, other musculoskeletal complaints have now occurred including in the neck and the shoulder and there is an inherent requirement to continue to have to prove one’s disability as a result of the system Mr Youssouf’s claim lies within.

    …

    7.Your opinion as to whether Mr Youssouf is able to undertake his pre-injury duties as a Communications Technician currently, and if not now, in the future.  Please provide reasons for your response (there is a list of pre-injury duties and the physical demands of each duty listed at ‘T56’ in the folder of documents provided).

    I can find no physical basis Mr Youssouf could not undertake his pre-injury duties of Communication Technician.  He is quite deconditioned presently and this was made note of in the FCE referenced above when performed in October 2009 and I suspect that deconditioning has gotten even worse since that timeframe.

    However, this is redeemable.  There is no pathology in the back that would preclude Mr Youssouf from pursuing whatever he wished to, however, he would need to apply himself diligently to exercise and activity programme and weight loss.

    Therefore, I would view that he is physically capable of returning back to Communications Technician but this would require physical rehabilitation akin to a footballer returning back to football after a knee reconstruction.

    8.Your opinion as to Mr Youssouf’s current capacity for work, detailing any restrictions you would apply in terms of hours and duties.

    Current capacity for work is restricted due to physical deconditioning.

    Mr Youssouf, in my opinion, could return back to duties performed prior to resignation in terms of light and occasional moderate manual work, driving, cleaning, and assisting other Technicians.

    9.  Your opinion regarding treatment including the following:

    a)Whether you consider that Mr Youssouf’s current treatment regime is appropriate.

    There is no current treatment which I would view as appropriate in regards to medical management.  However, exercise and activity should be prescribed.  Prolonged use of rest leads to further physical deconditioning, activity intolerance and, in fact, can contribute to back complaints in its own right.

    b)   Whether you consider that Mr Youssouf requires any other medical treatment and, if so, the nature, frequency, duration and anticipated benefits of that treatment

    Medical treatment as such is not required.  Activity and exercise needs to be undertaken, however, when incentives are pulling in the opposite direction, little forward progress can be expected.

    …” (Exhibit R4)

1. In his oral evidence Dr Bowles said that, whereas in his report of 19 October 2009 he had diagnosed “ongoing mechanical back pain with referred right leg symptoms”, his examination of the applicant on 27 May 2011 indicated that the applicant’s prior back pain had since resolved.  He said, however, that the applicant continued to experience pain in the right buttock extending into the right leg.

   Dr Philip Hardcastle

2. Dr Hardcastle, Consultant Orthopaedic Surgeon, confirmed that he had examined the applicant on 30 March 2010 and on 13 June 2011 and had prepared various reports regarding those examinations.

3. In his first report, dated 6 April 2010, which is addressed to the respondent’s insurer, Dr Hardcastle described the circumstances of the applicant’s injury as follows:

   “ He reports that on 30 December 2008, while sitting in the driver’s seat of a vehicle, he was reaching into the passenger seat to get a safety vest.  He felt some low back pain on the right but continued working, getting out of the van with some increased pain that radiated into the right leg.  He then went inside the exchange to check some items and then came outside and checked the cable and finished work.  He normally does about five or six jobs per day.  He said that symptoms increased and he reported the low back and right leg pain.  He was referred to Prime Medical where he was assessed.  He was placed on light duties and began physiotherapy, as well as taking Voltaren and using local gel.”

   He described the applicant’s condition as “mechanical [back] pain with symptoms extending down the right leg associated with some non-specific neurological features”.  He also opined as follows:

   “ … At this stage, based on the fact that he still has right leg pain that he reports this as starting after the episode and that his clinical findings still remain similar, there still would be some relationship between the work activities and his present condition.  However, I would have expected that any soft tissue aggravation from the type of event reported would have resolved by this stage.

   …” (T94)

4. In his report of 15 June 2011, which is addressed to the respondent’s solicitors, Dr Hardcastle described the applicant’s present status as follows:

   “ The predominant problem is a constant pain in the right buttock of a shooting nature and it extends down the posterior right thigh to the knee, which is the worst of the pain, and it is aggravated in the leg when the buttock pain is more significant.  He said that on a good day he has about one of these episodes, but on average two to three per day and they last up to about 30 minutes and can radiate to the toes.  He said that sometimes he loses control of the leg and he experiences intermittent numbness in the medial three toes of his right foot.  This is again related to increased back pain.

   Generally the symptoms are better in the morning and he tends to wake at night and uses pillows between his legs.  Aggravating factors include twisting, bending and sneezing.  Walking, which has now reduced from his previous review to about 500 metres, is another aggravating factor.

   He reports being unable to lift anything from the ground and about 2-4 kg from waist height.

   Neck pain, which he reported as starting in around September 2010 without any specific injury, radiates across to the left shoulder and extends down the arm.  He said that it can be stiff in the morning and pain is generally constant in the arm, particularly between the shoulder and elbow, with walking being an aggravating factor.

   He experiences low back and leg symptoms when lying on his right side and he now also has pain in the shoulder region on the left and has to use a recliner chair.  He reports some pins and needles in the left upper limb, generally once or twice a day, but there is no associated numbness.

   …”

   He opined as follows:

   “ Opinion

   Mr Youssouf continues to complain of low back and right leg pain.  Since his previous review in March 2010, he undertook a work trial but subsequently resigned and has been off work since.  His clinical findings now demonstrate a significant number of non-organic findings consistent with evidence of chronic illness behaviour in relation to his lower limb symptoms.  However, because of the limitations of clinical examination and findings, he does need an MRI scan to determine if there has been any specific change since his previous MRI of 2009.

   He has also developed some neck and left shoulder symptoms, which are consistent with mechanical neck pain and subacromial bursitis on the left.  This would not be considered related to his work …”

   He responded to questions asked of him as follows:

   “…

   3.4Whether you are of the opinion that Mr Youssouf currently suffers from a low back condition.  If so, your diagnosis as to any current condition with respect to Mr Youssouf’s lower back, including whether you remain of the opinion that Mr Youssouf has mechanical low back pain without objective neurological compression.

   He does have evidence of some mild mechanical low back pain.  I could not detect any objective evidence of neurologic compression because of the non-organic findings making his difficult, and for this reason an MRI has been arranged to determine if there is any evidence of nerve root compression.

   3.5If you are of the opinion that Mr Youssouf currently suffers from a low back condition, please provide your opinion as to the factors that are likely to be contributing to this condition, including:

   (a)Whether the incident on 30 December 2008 is likely to be currently contributing to a significant degree;

   I would have expected the injury from the incident as reported, which is not a significant injury, to have resolved by this stage.

   (b)Whether it is likely that the incident on 30 December 2008 has ceased to be a factor contributing to a significant degree.

   It would be my opinion that with the specific incident as reported of 30 December 2008 where he was just reaching into the passenger seat to get a relatively light item, taking into account the relatively normal MRI and bone scan shortly after, the injury would have resolved.

   3.6Your opinion as to whether Mr Youssouf is able to undertake his pre-injury duties as a communications technician currently and, if not now, in the future (a list of pre-injury duties and the physical demands of each duty listed is included in the documents enclosed).

   I have reviewed the pre-injury list and physical demands and he probably now does not have the capacity to work as a Communications Technician on the basis that he has now developed some left shoulder symptoms, which are unrelated to his previous injury, and his continuing complaints of low back pain.

   3.7If your opinion is that Mr Youssouf would not be able to engage in his pre-injury duties currently, whether he retains a capacity to work in the restricted full-time duties he was undertaking before he apparently resigned from his employment with Telstra (ie pre-injury hours but with restrictions on the duties).

   In my opinion he does retain the capacity to work full-time in restricted duties and should be encouraged to do so.  It is my opinion that his low level of activity is contributing to a significant extent to his current symptoms.

   …” (Exhibit R5)

5. In his report of 1 November 2011, regarding the results of an MRI scan of the applicant’s lumbar spine performed on 24 October 2011, Dr Hardcastle stated:

   “ Further to my report I have now got the MRI of the lumbar spine which shows multilevel degeneration disease and no evidence of any neural compression.

   There is certainly no evidence to alter the diagnosis of mechanical back pain and no evidence of neural compression is seen on these.

   There is no evidence on the MRI of any specific injury-related condition and the features are predominantly degenerative.

   It is not my opinion that his low back problem should have any specific effect on his work capacity.

   …” (Exhibit R6)

6. In his oral evidence Dr Hardcastle said that he “could accept” that the applicant’s degenerative lumbar spine condition became symptomatic in the December 2008 work accident and that such symptoms have since continued.

   The Evidence of Richard Nystrom

7. Mr Nystrom confirmed that he had signed a witness statement, dated 31 January 2012, for the purpose of this proceeding and that its contents (including the contents of the attached diary notes) are true and correct.  Mr Nystrom’s statement is as follows:

   “ 1.I have been employed with Telstra for 32 years.  I am currently the Team Leader, Bassendean, Western Region. 

   2.I became Mr Youssouf’s (referred to as Ahmed) team manager in October 2009. In this role I was aware that Ahmed had a workers compensation claim for a back condition and that he had for some time been working on restricted duties for limited hours each week. I was also aware that the rehabilitation providers (Konekt) were concerned at the lack of progress being achieved towards Ahmed increasing his hours on restricted duties. I was aware that independent medical specialists had expressed the view that Ahmed could increase his work hours, however, the treating general practitioner, Dr Hoffman, seemed more reluctant to support Ahmed increasing his hours. 

   3.Over time there was an increase in Ahmed’s work hours. In the Return to Work Plan 7 that commenced on 16 November 2009, his hours increased to 5 and then 6 per day. In March 2010 Ahmed’s hours increased to 7 hours a day, and in May 2010 they increased to full time (8.1 hours a day with a 9 day fortnight). Ahmed reported that he was coping with normal hours but did not believe he could undertake his normal pre-injury duties.

   4.I believe that I had a good rapport with Ahmed and I met with him on a fairly regular basis.  I kept a look out for jobs that may be suitable for him noting the restrictions applicable. Some roles that I thought may be suitable for Ahmed became available in mid-2010 and in this context I forwarded an email to him on 15 July 2010 and enclosed an employee briefing pack for ‘Service Delivery Project Lighthouse’ (marked as Attachment 1). The pack contained details of new work roles for Ahmed to look at and consider. I invited him to contact me or Shane Kinnear if he was interested as I believed that Ahmed had the skills set relevant to a number of the available positions. Ahmed did not apply for any of these jobs.

   5.Ahmed was on leave from 20 September 2010 to 2 December 2010. Ahmed’s leave consisted of annual leave from 20 September 2010 to 1 November 2010, long service leave from 2 November 2010 to 1 December 2010, and annual leave on 2 December 2010.  He went overseas to Djibouti, his home country.  This trip involved a flight to Dubai and then a local flight to Djibouti. Ahmed was delayed returning to Australia from this leave and I helped in these circumstances by approving long service leave to cover the period of the delay.

   6.I contacted Ahmed on 6 December 2010. According to my diary note dated 6 December 2010 (marked Attachment 2), I explained that I was on an audit, and told him to return to normal work as per the medical certificate (full hours on restricted duties).

   7.I met with Ahmed on 8 December 2010 at the Applecross Exchange and discussed how he was going. According to my diary note dated 8 December 2010, Ahmed said that since being back he had some issues with driving but was OK. He said that he felt frustrated after two years with no improvement and only wanted to get back to his pre-injury condition as it was. I explained to him that without any progress in the time he had been away on leave, and given the fact that the medical certificate continued to be the same (meaning to specify the same restrictions), I was not sure that I could keep him in a communications technician role, and alternative work may be the end result.  Ahmed did not seem perturbed by this (a copy of my diary note is marked Attachment 3).

   8.On 15 December 2010 Ahmed was given a new return to work plan (a copy of this plan is marked Attachment 4). According to my diary note we reviewed all parts, and I ensured that Ahmed understood all items.  Ahmed was made aware that this didn’t have anything to do with his compensation claim, but was to ensure that that (sic) we were compliant with his medical certificate for the period 6 December 2010 to 6 February 2011 (a copy of the medical certificate is marked Attachment 5). At this time we revisited the lack of progress (meaning the continuation of the work restrictions), and that without any progress, it will be difficult to keep Ahmed in the field and may mean a change in the work type he does, that is, a change from field work to office work. Ahmed said he would try and return the signed plan tomorrow (a copy of my diary note is marked Attachment 6).

   9.At this stage Ahmed was to continue working in an exchange cleaning up distribution frames. This involved bending and stretching but avoided lifting. The duties had value but were very limited in their range. I tried to keep Ahmed working in the field. I was hoping that he would increase his range of duties and I encouraged this, for example, I tried to introduce jointing work to his duties which would have made it easier to keep him in the field and which was work I thought he would physically be able to manage within the confines of his limitations as stated on the doctor’s progress certificates.  Ahmed’s doctor in fact approved this work in early 2010 and I found some joints suitable for him and told him to take his time doing these, have breaks as required and not to rush.  This work however, didn’t last as Ahmed reported that he experienced pain doing it and I immediately removed him from these duties. With time and the continuation of medical restrictions, it became harder to keep Ahmed in the field when he couldn’t undertake a reasonable range of duties.  He didn’t need to be able to undertake full field duties but he needed to be able to progress towards his normal duties, however, this was difficult due to the ongoing restrictions as indicated by Ahmed’s doctor.

   10.On 5 January 2011 I discussed with Ahmed a job in the Perth Deployment Centre. Before speaking with Ahmed, I had spoken with my manager John Stopp advising him that in order to undertake this job successfully Ahmed would have to be able to get up and move around.  This need was to be accommodated. I told Ahmed that I thought the availability of this job for him was a good result as it would take the pressure off him as far as returning to the field. I said this in the context of knowing that Ahmed had been unable to increase the range of duties he could do in the field despite a long rehabilitation process.  I spoke with him about the sitting involved and advised that he would be able to get up and move around as required and as per his doctor’s recommendation. I told Ahmed that he would have to return his Telstra car, and advised him to put in for any leave prior to moving jobs. Ahmed said that he wanted more information about the office job. A copy of my diary note of 5 January 2010 (sic) is marked Attachment 7, and a copy of the position statement for the job in the Perth Deployment Centre is marked Attachment 8.

   11.The job in the Perth Deployment Centre was to start on 13 January 2011. It was a position that ideally needed someone who had field experience and knowledge. Ahmed’s field experience and in particular his knowledge of what jobs in the field involve in terms of time and skill and of what issues may arise would be very valuable in this role which involves scheduling and dispatching work to communication technicians in the field and monitoring this work.  This job also met Ahmed’s medical restrictions, notably the need to avoid lifting.  It was a position that it was considered Ahmed could fully undertake.

   12.Ahmed was aware that should his condition change and he was capable of returning to his full time duties in the field this would have been accommodated had he requested this.

   13.On 6 January 2011 Ahmed applied for long service leave for the period from 31 January to 8 April 2011, a Telstra day’s leave on 11 April 2011 and annual leave from 12 April to 21 April 2011.  When I spoke to Ahmed on this date he said that he wanted time to assess his options as office work was not his ideal choice for work (a copy of my diary note of this is marked Attachment 9).  

   14.On 11 January 2011 Ahmed completed his checks regarding his car and assets. I also discussed Ahmed’s future in the deployment centre and he said that he would consider his future over his period of leave. Ahmed was due to start work at the Deployment Centre on 13 January 2011 (a copy of my diary note of this is marked Attachment 10).

   15.On 12 January 2011 Ahmed came into Gnangara and handed in his resignation. I asked him if he was sure about this decision and he said he had given it a lot of thought and had discussed it with his family (a copy of my diary note of this is marked Attachment 11). 

   16.The effective date of Ahmed’s resignation was 27 January 2011. Ahmed remained in the field until then, doing restricted exchange duties on full hours.

   17.When I first took over the management of Ahmed in October 2009, the return to work plan duties that involved Ahmed re-spraying pillars defaced by graffiti, was a program that had been funded for 3 to 4 months. No-one is now doing this work. Ahmed did not complain about these duties, he only complained when we tried to increase his duties or hours. He said that he was frightened of aggravating his injury.

   18.Maintenance of the telephone exchanges included driving to and from the exchanges. The amount of driving he was doing varied, for example 20 minutes to three quarters of an hour.  It was mainly 5 to 10 km, and he could pull over when he wanted to. 

   19.Ahmed worked independently and had the discretion to take regular postural breaks, that is, standing and walking for 5 minutes every 30 minutes. I ensured that Ahmed was not reaching and pulling runners (ladders fixed to runners), and I kept him out of high level work (that is, working at height).” (Exhibit R1)

8. It is unnecessary to refer in detail to Mr Nystrom’s oral evidence in these reasons.

   The Issue

9. The issue for the Tribunal’s determination is whether the respondent has continued to be liable to pay compensation to the applicant for reasonable medical expenses, and for incapacity for work, pursuant to ss 16 and 19 (respectively) of the SRC Act, for the period from 13 July 2010 to date.

   The Relevant Legislation

10. Pursuant to s 14(1) and Part VIII of the SRC Act, the respondent:

    “ … 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.”

    Section 4(9) provides:

    “ A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

    (a)     an incapacity to engage in any work; or

    (b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”

11. Pursuant to s 16(1) of the SRC Act, compensation is payable to an employee, who has suffered an “injury”, “in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances) …”

12. Compensation for injuries resulting in incapacity for work is payable in accordance with s 19 of the SRC Act, subss (2) and (3) of which prescribe formulae for calculating the amount of compensation payable per week. A component of these formulae is:

    “ the amount per week (if any) that the employee is able to earn in suitable employment”.

    The phrase “suitable employment” is defined in s 4(1) of the SRC Act as follows:

    “ suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

    (a)in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed – employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

    (i)the employee’s age, experience, training, language and other skills;

    (ii)the employee’s suitability for rehabilitation or vocational retraining;

    (iii)where employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or her place of residence; and

    (iv)any other relevant matter; and

    (b)in any other case – any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).”

1. Section 19(4) of the SRC Act prescribes the matters to which regard must be had in determining, for the purposes of subss (2) and (3), “the amount per week that an employee is able to earn in suitable employment”, namely:

   “(a)     where the employee is in employment (including self-employment) – the amount per week that the employee is earning in that employment;

   (b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

   (c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

   (d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;

   (e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

   (f)where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in [the respondent’s] opinion, reasonable in all the circumstances; and

   (g)any other matter that [the respondent] considers relevant.”

   Analysis

   Has the respondent continued to be liable to pay compensation to the applicant for reasonable medical expenses, pursuant to s 16 of the SRC Act, from 13 July 2010 to date?

2. On the basis of the applicant’s evidence and the medical evidence before it, the Tribunal is satisfied that the applicant, in the period from 13 July 2010 to date, has continued to suffer lower back pain symptoms which radiate into his right buttock and right leg, as a result of the accepted work-related lower back injury which he sustained on 30 December 2008.

3. As regards the medical evidence:

   ·Mr Slinger was unequivocally of the opinion that the applicant’s ongoing lower back, buttock and right leg pain are related to the work-related injury to his lumbar spine sustained on 30 December 2008;

   ·although Dr Bowles, on examination of the applicant on 19 October 2009, found that he suffered “ongoing mechanical back pain with referred right leg symptoms” as a result of the work incident of 30 December 2008, he found, on examination on 27 May 2011, that the “back complaints” had resolved but that the applicant continued to experience right buttock pain, “referring into the right leg”;

   ·Dr Hardcastle, on examination of the applicant on 30 March 2010, found that he suffered “mechanical [back] pain with symptoms extending down the right leg” and, on examination on 13 June 2011, he found that there was “evidence of some mild mechanical low back pain” but that the applicant’s current predominant problem was right buttock pain extending down the right leg.

   Although Dr Hardcastle commented, in his report of 15 June 2011, that he “would have expected” the work-related lower back injury, sustained by the applicant on 30 December 2008, “to have resolved by this stage”, he nevertheless stated, in his oral evidence, that he “could accept” that the applicant’s degenerative lumbar spine condition became symptomatic in the work-related accident of 30 December 2008 and that such symptoms have since continued.

4. The Tribunal accepts the evidence of Mr Slinger and finds that, on and from 13 July 2010 to the present date, the applicant has continued to suffer ongoing lower back, right buttock and right leg pain symptoms as a result of the accepted compensable lower back injury sustained by him on 30 December 2008.

5. Accordingly, the respondent has continued to be liable to pay compensation to the applicant for reasonable medical expenses incurred in respect of that injury, in accordance with s 16 of the SRC Act, from 13 July 2010 to the present date, and is presently so liable. The Tribunal is unable, on the basis of the evidence before it, to determine the quantum of such compensation, and that matter is, accordingly, remitted to the respondent for determination.

   Has the respondent continued to be liable to pay compensation to the applicant for incapacity for work, pursuant to s 19 of the SRC Act, from 13 July 2010 to date?

6. The Tribunal also accepts Mr Slinger’s evidence regarding the applicant’s capacity for work, namely, that the applicant has the capacity to perform suitable light or restricted duties for full-time hours but that he does not have the capacity to perform the full duties of a Communications Technician which he was performing up to the time of his work-related lower back injury on 30 December 2008.

7. Accordingly, the Tribunal finds that, from 13 July 2010 to date, the applicant had, and that he continues to have, an “incapacity for work” within the meaning of para (b) of s 4(9) of the SRC Act. The Tribunal also finds that that ongoing incapacity for work results from the compensable lower back injury which the applicant sustained on 30 December 2008.

8. It follows that the respondent has continued to be liable to pay compensation to the applicant for incapacity for work, in accordance with s 19 of the SRC Act, from 13 July 2010 to the present date, and is presently so liable.

9. The quantum of compensation payable to the applicant for incapacity for work, in accordance with s 19 of the SRC Act, falls to be determined having regard to which of the circumstances referred to in s 19(4) of the SRC Act are satisfied in this case.

10. As regards the period from 13 July 2010 to 26 January 2011 (prior to the applicant’s resignation taking effect on 27 January 2011), the applicant continued to be employed by the respondent.  Accordingly, the quantum of compensation payable to the applicant for incapacity for work in that period, pursuant to s 19 of the SRC Act, is to be determined having regard to the amount per week that the applicant earned in that employment (see para (a) of s 19(4) of the SRC Act).

11. As regards the period from 27 January 2011 to date, the question arises as to which of the other circumstances referred to in s 19(4) of the SRC Act are satisfied in this case.

12. In the Tribunal’s opinion the circumstances referred to in para (b) of s 19(4) of the SRC Act are satisfied in this case. More specifically, the Tribunal is satisfied that:

    ·the applicant “received an offer of suitable employment”, namely, the position of “OTD Scheduler” (as described in the “Position Statement” comprising Attachment 8 to Mr Nystrom’s witness statement (Exhibit R1), referred to in paragraphs 10-13, 34 above) which was scheduled to commence on 13 January 2011;

    ·the applicant “failed to accept that offer”, having handed a letter of resignation to Mr Nystrom on 12 January 2011 and thereafter continued to perform his existing duties until he ceased employment with the respondent on 26 January 2011.

13. As regards the abovementioned position of “OTD Scheduler”, the Tribunal accepts the evidence of Mr Nystrom, in paras 10 and 11 of his witness statement (set out in paragraph 34 above), regarding his discussion with the applicant in relation to the availability of that position to him and the general nature of that position.  The Tribunal also accepts Mr Nystrom’s evidence regarding the value of the applicant’s “field experience” in performing the scheduling and dispatching duties of that position.  As regards the “desirable skills and experience” specified in the abovementioned Position Statement, the Tribunal is satisfied that, had the applicant undertaken that position on 13 January 2011, he would have quickly developed such of those skills as he did not already possess.  Having observed the applicant give evidence for a period of approximately one hour at the hearing, it appeared to the Tribunal that he is an intelligent and articulate person with good English-speaking skills.  The Tribunal has no good reason to doubt that, as at 13 January 2011, the applicant possessed strong communication skills, problem-solving skills and the ability to multi-task, as well as the capacity (given his substantial technical skills and experience) to upgrade his computer skills.  The Tribunal notes, in any event, that the specified skills are described in the Position Statement as “desirable” rather than “essential’.  The Tribunal also notes that the applicant had over 10 years’ “Telstra experience”, including some “call centre” experience.  The Tribunal, furthermore, is satisfied that the duties of the position of “OTD Scheduler”, as set out in the abovementioned Position Statement, were compatible with the work restrictions specified in the current medical certificate issued by Dr Hoffman (Attachment 5 to Mr Nystrom’s witness statement). In short, the Tribunal is satisfied that the applicant had the intellectual and physical capacity successfully to undertake, on a full-time basis, the position of “OTD Scheduler” on 13 January 2011.

14. Accordingly, the Tribunal finds that employment by the respondent, on a full-time basis, in the position of “OTD Scheduler”, commencing on 13 January 2011, was “suitable employment” (within the meaning of para (b) of s 19(4) of the SRC Act) for the applicant.

15. Although it appears that no formal, written offer of the position of “OTD Scheduler” was made to the applicant, the Tribunal is satisfied, on the basis of Mr Nystrom’s evidence and the applicant’s own evidence, that the applicant was informed by Mr Nystrom (with Mr Stopp’s authority) on 5 January 2011 that that position was available to him and that he was subsequently informed by Mr Nystrom on 11 January 2011 that he was to start in that position on 13 January 2011. The Tribunal is also satisfied that the applicant understood that that position was being made available to him, commencing on 13 January 2011. On the basis of the abovementioned evidence, the Tribunal finds that, in the period 5–11 January 2011, the applicant “received an offer” (within the meaning of para (b) of s 19(4) of the SRC Act) of “suitable employment”, namely, employment in the position of “OTD Scheduler” with the respondent, commencing on 13 January 2011.

16. It is common ground that the applicant tendered his resignation from employment by the respondent on 12 January 2011, and continued to perform his existing restricted duties in field work until 26 January 2011, his resignation taking effect on 27 January 2011. Accordingly, the Tribunal finds that the applicant “failed to accept” (within the meaning of para (b) of s 19(4) of the SRC Act) the abovementioned offer of suitable employment, namely, employment in the position of “OTD Scheduler” with the respondent.

17. Because the Tribunal has determined that para (b) of s 19(4) of the SRC Act applies in this case, the Tribunal is also required to consider whether, in its opinion, the applicant’s failure to accept the abovementioned offer of suitable employment was “reasonable in all the circumstances” (see para (f) of s 19(4) of the SRC Act).

18. The applicant’s evidence was that he was unable to perform “office based work” because he “couldn’t cope sitting on a chair for eight hours” and that, on the day after his meeting with Mr Nystrom and Mr Stopp in early January 2011, he told them that he was “not able to … take that job” – namely, the “OTD Scheduler” position – “because of [his] medical condition” (see paras 63–70 of the applicant’s witness statement set out in paragraph 9 above).  The applicant also said, in his oral evidence, that he was not capable of doing that job because of his “background”, including language and communication difficulties, and that he had informed Mr Nystrom of this at that time.

19. The Tribunal accepts Mr Nystrom’s evidence that the applicant’s need “to be able to get up and move around” was to be accommodated in the “OTD Scheduler” position and that he informed the applicant that he “would be able to get up and move around as required” in accordance with his doctor’s recommendation in the current medical certificate (see para 10 of Mr Nystrom’s witness statement set out in paragraph 34 above).  The Tribunal, furthermore, has previously expressed its satisfaction that the duties of the “OTD Scheduler” position were compatible with the work restrictions specified in
    Dr Hoffman’s current medical certificate (including “avoid prolonged standing/walking/sitting”) and that the applicant had the intellectual and physical capacity to perform the duties of that position on a full-time basis (see paragraph 52 above). It may be that the applicant genuinely believed that he was incapable of undertaking the position of “OTD Scheduler”, although the Tribunal is inclined to the view that the applicant regarded that position as undesirable rather than beyond his capacity. The question, for the purposes of para (f) of s 19(4) of the SRC Act, however, is not whether the applicant subjectively believed that the “OTD Scheduler” position was not suitable employment for him and that it was accordingly reasonable for him not to accept the offer of that employment but, rather, whether his failure to accept that position was objectively reasonable in all the circumstances.  In the Tribunal’s opinion, having regard to the abovementioned circumstances of this case, the applicant’s failure to accept the offer of employment in the position of “OTD Scheduler” was not reasonable.

20. Accordingly, the quantum of compensation payable to the applicant for incapacity for work in the period from 27 January 2011 to date, pursuant to s 19 of the SRC Act, is to be determined having regard to the amount per week that the applicant would have earned, and would be earning, in full-time employment in the position of “OTD Scheduler” with the respondent if he had been engaged, and if he were presently engaged, in that employment.

    Decision

21. For the above reasons, the Tribunal sets aside the decision under review and, in substitution therefor, decides that, pursuant to s 14(1) and Part VIII of the SRC Act, the respondent has continued to be liable to pay compensation to the applicant in respect of an injury, namely “Facet Joint Inflammation over L3, L4 and L5 with No Lumbar Nerve Root Impingement, sustained on 30 December 2008” (“the injury”), from 13 July 2010 to the present date, and is presently so liable, as follows:

    · compensation for reasonable medical expenses incurred in respect of the injury, in accordance with s 16 of the SRC Act, the quantum of such compensation to be determined by the respondent;

    · compensation for incapacity for work resulting from the injury, in accordance with s 19 of the SRC Act, the quantum of such compensation to be determined by the respondent on the following bases:

    -for the period from 13 July 2010 to 26 January 2011, the quantum of compensation payable to the applicant is to be determined, in accordance with para (a) of s 19(4) of the SRC Act, having regard to the amount per week that the applicant earned in employment by the respondent in that period;

    -for the period from 27 January 2011 to date, and as at the present date, the quantum of compensation payable to the applicant is to be determined, in accordance with paras (b) and (f) of s 19(4) of the SRC Act, having regard to the amount per week that the applicant would have earned, and would be earning, in full-time employment in the position of “OTD Scheduler” with the respondent if he had been engaged, and if he were presently engaged, in that employment.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and
Dr J Chaney, Member.

.......sgd E Jordan..........

Administrative Assistant

Dated 30 April 2012

Dates of hearing	27-29 February, 1 March 2012
Representative of the Applicant	Mr C Prast
Solicitors for the Applicant	Slater & Gordon
Counsel for the Respondent	Mr J Wallace
Solicitors for the Respondent	Sparke Helmore