Antonelli and Telstra Corporation Ltd
[2006] AATA 278
•27 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 278
ADMINISTRATIVE APPEALS TRIBUNAL ) N2002/969
)N2003/809
GENERAL ADMINISTRATIVE DIVISION ) N2004/1142
Re MAX ANTONELLI Applicant
And
TELSTRA CORPORATION LTD
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr P Lynch, MemberDate27 March 2006
PlaceSydney
Decision In Matter N2002/969 the Tribunal varies the decision of the Respondent and finds that Telstra Corporation Ltd is no longer liable to pay compensation to Mr M Antonelli for “bruising to back (back condition) and right rib injury “ as at 21 November 2001.
In Matter N2003/809 the Tribunal varies the decision of the Respondent and finds that Telstra Corporation Ltd is no longer liable to pay compensation to Mr M Antonelli for “head injury and muscular injuries” as at 1 November 2002.
The decision in Matter N2004/1142 is affirmed.
The Tribunal may not award costs in these matters pursuant to the Safety Rehabilitation Compensation Act 1988. However the Tribunal is mindful that the Respondent agrees that it pay the Applicant’s reasonable costs incurred by the Applicant in preparation for the vacated hearing days 8 and 9 June 2005.
[Sgd] Ms G Ettinger
Senior Member
CATCHWORDS
Compensation – injury at work September 2001 - liability accepted – payment of compensation later ceased - MVA September 2002 on journey to work – liability accepted - payment of compensation later ceased - Applicant alleges depression and anxiety arising out of MVA – allegations of harassment by Applicant – no compensation payable.
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Liu v Comcare (2004) 79 ALD 119
Casarotto v Australian Postal Commission (1989/90) 17 ALD 321
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316REASONS FOR DECISION
27 March 2006
Ms G Ettinger, Senior Member
Dr P Lynch MemberBACKGROUND
1. Mr Max Antonelli whose date of birth is 9 August 1963, arrived in Australia at the age of 14, and completed his schooling here. He first worked with the State Rail Authority, and then commenced employment with Telstra Corporation Ltd (“Telstra”) on 22 May 1989. He worked at first as an assistant technician, and then became a technical officer. Mr Antonelli told us that he was a business technician with duties which included indoor installing, repairing, and maintaining telecommunications facilities, faxes and PABXs. He said that he was not working outdoors, because he was not a linesman.
2. Mr Antonelli claims that he experienced some problems with management in the mid 1990s because he was a witness for another staff member who claimed to have been harassed. He was subsequently seen by Dr Greenwood and Dr Law, a psychiatrist, for depression.
3. Mr Antonelli told us that in January 2001, he was transferred to the Quick Response Team where his duties involved working with cables, sitting at a street side pillar joining wires, and hauling cables.
4. On 18 September 2001, Mr Antonelli fell and suffered an accident while getting equipment out of a van. Liability was accepted for bruising to his back and right rib injuries until payments of compensation were ceased as at 21 November 2001.
5. On 12 September 2002, the Applicant had a motor vehicle accident on the way to work. Liability was accepted for head and muscular injuries with payments of compensation ceasing on 1 November 2002. Mr Antonelli was made redundant on 23 September 2003. He told us that his back “sometimes feels okay” but that suddenly, without warning, it worsens. He describes that as the development of an electric shock-like feeling which radiates from the back down to midway of the back of the right leg. He said he gets a numb feeling, and also tingling. Mr Antonelli said that his right knee continues to give him trouble, sometimes swelling, sometimes locking. Mr Antonelli claims that his knee injury occurred on 18 September 2001. However the Respondent did not accept that, and the contemporaneous medical reports do not mention a knee injury.
6. Mr Antonelli also lodged a claim for depression, anxiety and adjustment disorder arising out of the motor vehicle accident over a year after the accident, for which liability was not accepted.
7. Mr Antonelli has had some conflict with his superiors at work, and was subject to various performance assessments during his time at Telstra.
8. The present hearings dealt with appeals against all three decisions. Unfortunately we found quite some inconsistencies in the evidence Mr Antonelli gave, and were mindful that various doctors opined he was exaggerating his symptoms.
ISSUES BEFORE THE TRIBUNAL
9. In relation to Matter N2002/969, the fall on 18 September 2001, the Reconsiderations Officer of the Respondent affirmed on 21 May 2002 (Exhibit R2, T42), that “Telstra Corporation is no longer liable to pay compensation to the said Max Antonelli for ‘bruising to back (back condition) and right rib injury’ on and from 21 November 2001”. Mr Antonelli had claimed “bruising to back (back injury) right rib injury” (Exhibit R2,T3).
10. In relation to Matter N2003/809, the Senior Case Manager of GIO Australia affirmed on 8 May 2003, (Exhibit R3, T41), the determination dated 11 December 2002, that the Respondent was not liable to pay compensation in respect of head injury and muscular injuries arising out of a motor vehicle accident of 12 September 2002 on and from 1 November 2002. Mr Antonelli had claimed compensation for “head/knee & muscular” (Exhibit R3, T3).
11. The above mentioned determinations purported to cease liability in respect of the injuries received in the fall of 18 September 2001, and the motor vehicle accident of 12 September 2002, and are unacceptable (Australian Postal Corporation v Oudyn (2003) 73 ALD 659 and Liu v Comcare (2004) 79 ALD 119. We noted however that what was intended were findings that liability to pay compensation to the Applicant for the abovementioned injuries ceased as at 21 November 2001 and 1 November 2002 respectively.
12. In relation to Matter N2004/1142, the Reconsiderations Officer of GIO Australia affirmed, on 2 September 2004, (Exhibit R4,T24), the determination that liability was not accepted by the Respondent in respect of “depression/adjustment disorder with depression and anxiety”. Mr Antonelli had claimed “As a result of the motor vehicle accident in 2002 I am suffering from cronic (sic) pain and am suffering from depression because of the pain” (Exhibit R4, T11).
13. The issues for the Tribunal were to decide:
· Whether the Applicant continues to suffer a low back condition as a result of the accident of 18 September 2001 and whether he should be paid compensation after 21 November 2001 for a back condition arising out of that injury;
· Whether the Applicant suffers a compensable right knee condition which he claims arose as a result of the accident of 18 September 2001 or the motor vehicle accident of 12 September 2002;
· Whether the Applicant continued to suffer a right knee, neck and jaw condition and muscular injuries as a result of the motor vehicle accident on 12 September 2002 as at 1 November 2002;
· Whether the Applicant suffers from depression/adjustment disorder with depression arising out of the motor vehicle accident of 12 September 2002.
RELEVANT LEGISLATION
14. The injuries occurred during the currency of the Safety Rehabilitation and Compensation Act 1988, (“the 1988 Act”), with liability pursuant to section 14 and section 16 particularly relevant.
15. For the Applicant to be eligible for compensation, he had to satisfy the definition of injury, which includes aggravation of a physical or mental injury pursuant to section 4 of the Act, and the injuries must be found to have resulted in incapacity for work (section 14 of the Act). What flowed from that of course was also the provision of reasonable medical expenses pursuant to section 16 of the Act, and possible payments calculated pursuant to section 19 of the Act.
16. Section 4 of the Act defines “disease” and “injury” as follows:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
...”
17. Sections 14(1) and 16 of the Act provide that:
“14 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.
…
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, 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), compensation of such amount as Comcare determines is appropriate to that medical treatment.
….”
18. Section 19 of the Act is concerned with financial compensation for injuries compensable under the Act which have resulted in incapacity for work.
19. There is of course well established authority both State and Federal, which deals with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases, such as the cases which follow. Casarotto v Australian Postal Commission (1989/90) 17 ALD 321 deals with aggravation and acceleration. In Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, it was held that a de minimus contribution of the workplace suffices, and it is irrelevant that other non-work related factors may have also contributed to the injury or disease.
20. We moved then to consider the issues for determination.
WHETHER THE APPLICANT CONTINUES TO SUFFER A LOW BACK CONDITION AS A RESULT OF THE ACCIDENT ON 18 SEPTEMBER 2001, AND WHETHER HE SHOULD BE PAID COMPENSATION AFTER 21 NOVEMBER 2001 FOR A BACK CONDITION ARISING OUT OF THAT INJURY
21. In deciding whether Mr Antonelli continues to suffer a low back condition as a result of the accident of 18 September 2001, and whether he should be paid compensation after 21 November 2001, we have noted that Mr Antonelli was working as a member of the Quick Response Team in September 2001. He described the work as wiring telephone lines working around outdoor pillars, and the technicians obtaining equipment from each other’s vans. He said that it was hard work.
22. Mr Antonelli claimed that he had bruised his back and right rib in the accident on 18 September 2001, and wrote in his claim form dated 24 September 2001 (Exhibit R2, T3): “I was getting equipment from the van to proceed with my work. I was holding the guards with my left hand & tool boxes with my right when the front of the guard I was holding came in contact with the ground lodging in causing me to fall & twist landing on the toolbox.”
23. The Reconsiderations Officer of the Respondent affirmed on 21 May 2002 (Exhibit R2, T42), that Telstra Corporation was no longer liable to pay compensation to the said Max Antonelli for “bruising to back (back condition) and right rib injury” (“on and from”) i.e. after, or as at 21 November 2001. There was no mention of Mr Antonelli’s right or left knee either in the claim by him, or in the determination. That determination purported to cease liability in respect of the injuries received in the fall of 18 September 2001, and was unacceptable. (Australian Postal Corporation v Oudyn (2003) 73 ALD 659 and Liu v Comcare (2004) 79 ALD 119). A finding that could be made in the circumstances was that Mr Antonelli was not eligible for payment of compensation as at 21 November 2001.
24. The accounts of the accident given by Mr Antonelli, (Exhibit R2, PT13/43), by his supervisor, Mr Bob Delaney, and by the investigator, (Exhibit R2, T13), were substantially different. We noted that Mr Delaney, who was present at the accident scene, did not see him fall, but saw the Applicant a few minutes after the incident.
25. Mr Antonelli told us that on the morning of 18 September 2001, he had an argument with his supervisor. He said that his supervisor had “hassled” him when he arrived at work, and that the supervisor wanted him to sign a redundancy form. Mr Antonelli said at the hearing that Mr Delaney had been “getting in my way, yapping, yapping …”, and that was when he (Mr Antonelli) tripped. When it was put to him that the investigator had not recorded anything about there being an argument before the incident of 18 September 2001 occurred, and that there was nothing in his statement at, page 43 of Exhibit R2 about a disagreement with Mr Delaney, Mr Antonelli said that it was because he did not want to get into an argument with Mr Delaney.
26. Mr Antonelli complained that on the day of the accident, his colleagues were unpleasant to him. He said that he was in a lot of pain, he had to ask them to take the guard which had fallen on him off, after the fall, they would not get him any water, and he vomited twice along the way. Mr Antonelli said that after he was injured, Mr Delaney accompanied him to see Dr S Hanna, general practitioner, and that Mr Delaney, rather than expressing concern for him, was intent on showing the doctor a schedule of alternative duties he could perform so that the doctor could approve those. He said that he was made to walk back from Dr Hanna’s surgery which was on one version of events, five minutes away, or half a kilometre according to Mr Antonelli. He said that he was made to stand to fill out the incident report after he got back to the depot.
27. Mr Delaney made a declaration accompanying the claim form, in which he stated that it was relevant to make known that the Applicant had been on a three month Performance Improvement Plan commencing in March 2001. In the attachment to the incident report relating to the fall, he had written: “… His lack of motivation is apparent to all he has worked with. … If Max’s skills and behaviour do not improve, his employment with Telstra may be terminated…” (Exhibit R2. PT3/12). Mr Antonelli denied having seen the Plan, and denied that he had been warned his employment could be terminated if he did not pass certain courses. Mr Antonelli was also shown a copy of a “Written Warning” signalling the possibility of termination of employment arising out of a customer complaint and breach of certain procedures, 24 March 1999 (Exhibit R7). We noted he had signed the acknowledgment of receipt of that document. Document Exhibit R8, headed “Written Performance Improvement Plan” was dated 30 May 1999, and acknowledged by Mr Antonelli’s signature. It gave details of certain unsatisfactory performance.
28. Mr Antonelli gave evidence that he had not received any further such warnings in the two and a half years between May 1999 and September 2001. He pointed to Exhibit A5 which was a “Statement of Attainment” for “Certificate III in Telecommunications (CAN) ICT20399” dated 14 December 1999. “CAN” stands for customer access network. Mr Antonelli said that he had achieved that certificate, and alleged management had refused to provide him with the results. He pointed to a further certificate he had received, being “Telstra Director”, dated 24 – 26 March 1998 (Exhibit A6). Unfortunately it appears that Mr Antonelli only completed some minor professional development as noted above, and was unable to pass certain other tests.
29. Mr Delaney also gave oral evidence before the Tribunal. His diary regarding Mr Antonelli, a printout of the Applicant’s sick leave, and various other records were Exhibit R22 before the Tribunal. In his oral evidence Mr Delaney gave his opinion of Mr Antonelli as a worker during the time of his supervision, as follows: “He wasn’t a very, he wasn’t very enthusiastic in getting things done. He stood back. He was more of a hindrance to the men, so they told me.” Mr Delaney also referred to Exhibit R11, a “Warning & Written Performance Improvement Plan” dated 25 May 2001 which appeared to indicate that Mr Antonelli had failed a “basic cable course”. The document was signed by Mr Delaney, and annotated with “Max declined to sign”. Mr Antonelli’s evidence was that he could not obtain a copy of the results which Mr Delaney said he found strange as he himself had been encouraged to retain copies of results for use in job applications.
30. Mr Delaney was also asked about an investigator’s report made in relation to the accident of 18 September 2001, (Exhibit R2, T13). We noted that there was also a Record of Interview between Mr Delaney and Mr Antonelli dated 18 September 2001 as Exhibit R12 before the Tribunal. There was no disagreement that Mr Delaney was present on site when Mr Antonelli had the accident. However he said that he was on the telephone and did not actually see what occurred, but saw Mr Antonelli sitting on the ground near the vehicle, conscious, two to three minutes afterwards. Mr Delaney said that Mr Antonelli complained of pain in his lower back on the right hand side, but did not complain about his knee.
· Mr Delaney recalled that some two to three minutes after he heard a noise (the rattle of the guards which Mr Antonelli had been getting out of the van), he finished his telephone call, and saw that Mr Antonelli was sitting by the wheel arch of his vehicle with his back to the wheel.
· Mr Delaney recalled that Mr Antonelli was conscious, and complaining of pain in his lower back around the right hand side, but that he did not vomit. Mr Antonelli claimed that he had been unconscious, and that he had vomited.
· Mr Antonelli gave evidence that Mr Delaney had to be “sworn at” to remove the guard from his leg, whereas the latter said he removed it. There was other similar evidence in which the pair contradicted each other e.g. regarding whether Mr Antonelli was given water.
· Mr Delaney said that there was no complaint as to Mr Antonelli’s knee.
· Mr Delaney’s evidence was that he went into Dr Hanna’s surgery with Mr Antonelli because he understood that as the supervisor, he was required to do that. We noted that Mr Delaney had an alternative duties plan which he was showing to the doctor and to Mr Antonelli. Mr Antonelli claimed Mr Delaney interfered during the consultation with the doctor.
31. We were mindful from the evidence at the Tribunal that he relationship between Mr Antonelli and his management had been troubled for some time.
32. Mr Antonelli later came under the care of Dr Steffen, liability for the injury was accepted, and compensation was paid until 21 November 2001. Payments of compensation were ceased based on the examination and report of Dr D Maxwell, orthopaedic and spinal surgeon, dated 14 November 2001 (Exhibit R2, T17). Dr Maxwell opined that the Applicant’s injuries had resolved and that he was fit to return to work without restrictions. He commented that the X-rays of the lumbar spine and right ribs and CT scan taken on 5 October 2001 were within normal limits.
33. Mr Antonelli said that after the accident he had nose bleeds, headaches, and over a period of a few days, his right leg started hurting, particularly the knee, which was swollen on and off, and throbbing. When the hearing resumed on 31 October 2005 (transcript page 6), Mr Antonelli was referred to the evidence he gave regarding nose bleeds on 15 February 2005 (transcript page 20). He denied having had nosebleeds, just one of the many inconsistencies in his evidence about which we were concerned. We also noted that he had not mentioned his knee in the claim form dated 24 September 2001.
34. The Tribunal heard from Dr Maxwell who gave his evidence by telephone link. Mr Kelly put to Dr Maxwell the various measurements of Mr Antonelli’s right thigh which the Applicant submitted was wasted. A summary of the medical evidence in that regard is at page 159 of the transcript of 1 November 2005. Measurements were taken by Drs Smith, McGill, Searle, Endrey-Walder and Maxwell, some doctors measuring at different heights on the leg. We were satisfied with how Dr Maxwell summed the situation up:
“… the standard measurement is 10 cm above the top of the patella. … I often measure at other levels just to see if it is consistent or not. … Going on the measurement of 10 cm above the patella I found no muscle wasting. Muscle wasting can vary from individual to individual and the AMA guides say that it should be greater than 2 cms in the thigh to be clinically relevant because of the margin of accuracy of measurement and the fact that you really need to give that amount of wasting before you can really overcome the experimental error for it to be significant. So I would consider that he probably hadn’t got any significant wasting in his right thigh at the time I examined him. …”
35. Dr N McGill who is a rheumatologist also gave evidence before the Tribunal. We considered that Dr McGill’s replies on the question of measurements to ascertain wasting, which we accepted, did not require further discussion except to note he commented that a one centimetre difference between the limbs was not significant, and that if there was a little bit of wasting in Mr Antonelli’s right thigh, then that would fit in with his right knee problem. Dr McGill also stated that if there was a significant problem you would expect to find progressive wasting. Dr McGill did however comment in referring to the Applicant, on the “false behaviour” during the examination, opining that it was therefore difficult to assess the actual situation. He described the muscle spasm in the lumbar region as reported by Dr Endrey-Walder arising out of “falsification and embellishment” by the Applicant.
36. Dr Maxwell was also asked about the diagnosis of sacrospinalis enthesopathy as diagnosed by Cabramatta Nuclear Medicine based on the bone scan of January 2002 (Exhibit R2, T24). Dr Maxwell said that he was not aware of such condition in relation to the spine, but agreed it could exist in relation to the elbow, a comment with which Dr McGill agreed.
37. Dr Maxwell also opined that the CT scan of the Applicant dated 5 October 2001 did not indicate that Mr Antonelli had a disc he would call pathological. Dr Maxwell was also referred to an MRI scan of the Applicant dated February 2002. When asked whether on the basis of the results, he would consider that given Mr Antonelli’s complaints of consistent pain since September 2001, the Applicant had suffered an aggravation of his degenerative spine, Dr Maxwell opined that the changes he saw were basically a normal variance.
38. Dr McGill confirmed that he did not consider the fall in September 2001 had impacted on Mr Antonelli’s right knee, and that what was seen on the bone scan of January 2002, was likely to have been mild pre-existing changes possibly related to the Applicant’s prior soccer activities. He also considered that the bone scan of the back should be considered normal, noting that the results were bilateral and symmetrical even though the complaint was on the right side. Dr McGill said that in any case, he had taken the history given by Mr Antonelli that his low back symptoms had resolved completely by May 2002, and that when he saw the Applicant in November 2002, he told him he was not having any treatment.
39. When asked about Mr Antonelli’s back as shown on various CT and MRI scans after the incident of 18 September 2001, Dr McGill agreed that Mr Antonelli had mild degenerative changes in his spine. In considering whether there was a change in the pathology sufficient to cause ongoing symptoms, Dr McGill referred to Dr Manohar’s reports that the Applicant had suffered a musculo-ligamentous injury.
40. As to Mr Antonelli; he said that after the fall his lower back was very sore, his right knee was very sore and he was limping. In early 2002 he came under the care of Dr Manohar, and underwent a bone scan in January 2002. We noted that Dr Manohar appeared to concentrate on the back, rather than any knee problem, and referred the Applicant for an MRI scan of the back.
41. Mr Antonelli said that he returned on restricted hours in April or May of 2002, to do photocopying and indoor work. He said that he had a further MRI of the back in mid 2002, and said that by then, his back was “a lot better”, and his knee “that was getting better too …”
42. We were mindful of inconsistencies in Mr Antonelli’s recollection of events, and in particular as given to Dr McGill who examined him at the request of the Respondent. Dr McGill recorded in his report of 20 November 2002 (Exhibit 1), that Mr Antonelli had told him his injuries received in the September 2001 accident had completely resolved by May 2002. Mr Antonelli denied that was what he had told Dr McGill.
43. Dr Endrey-Walder recorded that there had been a fight. Mr Antonelli explained to the Tribunal that his supervisor had been sitting in his van around the corner from where Mr Antonelli had commenced work on 18 September 2001, and that he was putting pressure on the Applicant to accept a redundancy.
44. We were satisfied that Mr Antonelli had been offered certain assistance with rehabilitation but that the outcome of that had not been satisfactory from either the provider, the employer or Mr Antonelli’s point of view.
45. We accepted the evidence of Dr Maxwell that contusion and soft tissue injury suffered by Mr Antonelli on 18 September 2001 had resolved by the time he saw the Applicant on 14 November 2001. He also commented upon the addiction to Panadeine Forte, and its unsuitability for chronic pain. We also accepted Dr Manohar’s opinion that Mr Antonelli had suffered an injury that was musculo-ligamentous in aetiology, and that any changes seen on the investigations in 2002 were degenerative. We also relied on Dr McGill’s opinions.
46. Mr Kelly put to Mr Antonelli that he was fit to return to his full pre-injury duties by 21 November 2001. Mr Antonelli disagreed.
47. We were concerned about issues of credit surrounding Mr Antonelli’s evidence because there was so much conflict of evidence regarding whether he lost consciousness as a result of the fall, and whether he vomited afterwards, so we have specifically considered those points.
whether mr antonelli lost consciousness as a result of the fall on 18 september 2001
48. Dr Hanna, who saw Mr Antonelli on 18 September 2001, shortly after the incident, recorded that the Applicant had hit his right side ribs on a toolbox and hit his head, but noted that he did not lose consciousness (Exhibit R2, T15). Mr Antonelli said that he could not remember what he told Dr Hanna because of the unrest the presence of Mr Delaney in the doctor’s surgery had caused.
49. Mr Antonelli was also referred to Dr Maxwell’s report of 14 November 2001 in which Dr Maxwell had recorded that Mr Antonelli had reported that he thought he had lost consciousness as a result of the fall of 18 September 2001 (Exhibit R2, T17). Mr Antonelli agreed he had probably told both Dr Maxwell and Dr McGill when he saw him in November 2002, that he had been unconscious. When asked about whether he had told Dr Manohar about being unconscious for 45 minutes, Mr Antonelli replied: “… I can’t remember – see I go to too many appointments, I don’t remember. If that’s what’s in his report then maybe I did say that, yes.” He later agreed that he told Dr Manohar in January 2002 that he passed out for 45 minutes, and told Dr Smith that he had been unconscious for 40 minutes, and also told Dr Endrey-Walder that he had been unconscious for quite a period of time.
50. Mr Delaney did not see him fall, but saw Mr Antonelli a few minutes afterwards, and said that as far as he could tell, there was nothing to indicate Mr Antonelli had been unconscious. We noted from the evidence however that Mr Antonelli remained sitting on the ground for approximately 40 – 45 minutes before going to see Dr Hanna.
51. We were mindful of the evidence about Mr Antonelli’s fall, and were satisfied that when Mr Delaney saw him a few minutes afterwards, he was conscious. His claims for bruising to his back and right ribs were accepted, and did not depend on whether he had lost consciousness on falling. The main reason the circumstances surrounding the fall were raised were in connection with the consistency of Mr Antonelli’s evidence and his accounts given to the various doctors. We were not satisfied that he was entirely candid either with the doctors or at the Tribunal, and accepted from the medical evidence (Drs Maxwell, McGill, Smith and Searle), that he had been exaggerating his symptoms. We were satisfied that Dr Hanna’s contemporaneous notes which did not record any loss of consciousness were more accurate than Mr Antonelli’s version of events, and were satisfied that he did not lose consciousness in the fall of 18 September 2001.
whether mr antonelli vomited after the incident of 18 september 2001
52. Because we have been concerned with Mr Antonelli’s credit, we also considered his evidence that he vomited twice after the accident. We noted that Mr Antonelli consulted Dr Hanna immediately after the accident, and that Dr Hanna’s notes do not record that he told the doctor about any vomiting. When asked by Mr Kelly about that apparent anomaly, Mr Antonelli answered: “I can’t recall too much about the interview because Robert Delaney was doing most of the talking.”
53. We noted also that Mr Delaney told the investigator he did not recall Mr Antonelli vomiting.
54. As to why he did not tell Dr Maxwell about any vomiting, Mr Antonelli replied: “No, I answer questions that I’m given, I don’t take over the interview.”
55. Mr Antonelli’s claims for bruising to his back and right ribs as a result of the accident of 18 September 2001 were accepted, and did not depend on whether he vomited after the accident. We were satisfied from the evidence that as Dr Hanna’s notes do not record Mr Antonelli reporting any vomiting to him, it is more likely than not that he did not vomit after the accident, and that he is, and was, embellishing his evidence.
re sick leave
56. Mr Antonelli’s sick leave record was quite remarkable. In 2001, he had taken sick leave on:
· 13 of the 23 working days in May;
· 11 of the 20 working days in June;
· 12 of the 22 working days in July;
· 8 of the 23 working days in August; and
· 8 of the 11 working days prior to the accident of 18 September 2001.
57. Mr Antonelli said that he had had problems with the management in the time leading up to the September 2001 incident, and indeed since the 1995 sexual harassment case at work. He denied the allegation that he was habitually late, saying he had not been “papered” for it, (colloquial term at Telstra for written warnings). He also denied that he had failed the training course for linemen, as alleged by Mr Madden (Exhibit R2, PT13/39).
58. When asked by Mr Kelly: “Were you subject to performance appraisal?” Mr Antonelli replied: “Well sir, what is performance appraisal? I mean, what does he mean by that, I don’t know.” (transcript page 58, 15.2.05). We were not satisfied that Mr Antonelli did not understand the terminology, but when it was explained further by Mr Kelly, Mr Antonelli replied that he did not know whether management was monitoring the standard of his work. We have not reproduced the rest of that cross-examination but found it beyond belief that Mr Antonelli would feign a lack of understanding of the phrase in 2005 when he had been subject to various performance assessments for at least six years previously.
59. We were satisfied from the above attendance record and the evidence before the Tribunal, that Mr Antonelli’s relationship with his employer was troubled.
whether mr antonelli’s right knee was injured in fall of 18 september 2001
60. Mr Antonelli claimed before the Tribunal that he injured his right knee in the fall on 18 September 2001, but he did not include that in his claim in regard to the accident. There was accordingly no mention of the knee in the Respondent’s decision to accept liability and pay compensation in regard to bruising to Mr Antonelli’s back and right rib injury.
61. We noted that Dr Hanna’s medical notes on the day of the accident, 18 September 2001, did not record any mention of a knee injury. In regard to that, the Applicant told us that he was more concerned about the bruise on his side, and dizziness, and that he did not get a chance to talk properly because Mr Delaney was in the doctor’s surgery with him.
62. We noted further that in his claim form regarding the accident of 18 September 2001, Mr Antonelli did not mention the right knee, and he did not say anything about a knee injury to the investigator.
63. When Mr Antonelli saw Dr Maxwell in November 2001, Dr Maxwell recorded that the Applicant told him he was generally better, but had back pain, pain in the right leg and a numb feeling in the right leg, but did not mention the right knee. Mr Antonelli denied when he gave his evidence not having told Dr Maxwell about his right knee problem.
64. We noted further that Mr Antonelli did not tell Dr McGill about any injury to his right knee, although when questioned about his knee by Dr McGill in 2002, Dr McGill recorded “he mentioned that while playing soccer he would have injured his knee but could not recall any major episode related to sport.” (Exhibit R1). At the hearing, Mr Antonelli said he told Dr McGill that he had played soccer at school, but denied he had mentioned any knee injury. We noted also that Dr McGill recorded that Mr Antonelli’s “pain had completely resolved by about May 2002 and that he felt back to normal at that stage.” Mr Antonelli said at the hearing that he did not recall saying that to Dr McGill. Where Mr Antonelli either could not recall or denied he had said certain things to doctors, we preferred the contemporaneous medical notes of the doctors involved. We were satisfied that the effects of the injury on 18 September 2001 had resolved by the time payment of compensation was stopped, and were mindful that Mr Antonelli himself told Dr McGill by May 2002 that it had completely resolved.
65. Curiously, as he had not mentioned it anywhere before, in re-examination, Mr Antonelli disclosed in connection with his knee, that he had had a motor vehicle accident in 1992. He said however that in the period 1992 to 2001 he had no problems with his right knee.
66. We noted that sick leave records indicated that Mr Antonelli had 21 May 1992 off work in respect of a right knee injury for which he did not claim compensation, and that it was therefore likely not to have been a work related injury. Mr Antonelli’s explanation for the knee injury was that he used to crawl all around as part of his work when he did installation work, so that he was always injuring himself, but that he took sick leave and did not claim workers compensation on that occasion.
67. Dr McGill was asked in his oral evidence to comment upon the reports of Dr Manohar. He referred to Dr Manohar’s report of 8 November 2002 (Exhibit A1), where Dr Manohar had reported in regard to the bone scan that “there were significant changes suggestive of osteoarthritis in the right knee joint.” Dr McGill stated that the September 2001 incident could not have produced osteoarthritis by January 2002, the date of the bone scan, and that it was more likely related to pre-existing mild degenerative change, possibly related to the Applicant’s soccer activities. In any case he noted that the report of the bone scan referred to mildly increased tracer uptake but in a symmetrical fashion, cautioning therefore against drawing conclusions about abnormality. He commented also that Dr Manohar did not consider that the September 2001 incident was responsible for the Applicant’s knee problems.
68. Mr Antonelli’s consultations with Dr Steffen were raised in cross- examination. He said “Dr Steffen examined my knees many many many times”. However, we have noted that the first mention of Mr Antonelli’s right knee in Dr Steffen’s notes was an entry on 23 November 2001 where Dr Steffen recorded that Mr Antonelli had right knee swelling for the past weeks (Exhibit R19). Mr Antonelli claimed that he told Sue Archibald that he had hurt his knee in the fall the day afterwards; however any relevant records were missing and Ms Archibald was not called to give evidence. Dr Steffen’s notes also recorded that the Applicant had fallen during a blackout, although Mr Antonelli could, in relation to that, only recall that where he lived they had frequent blackouts, and that he may sometimes have tripped or fallen. We noted also that Dr Steffen recorded on 7 December 2001 that Mr Antonelli reported he had had knee pain since the fall on 18 September 2001, highlighting further inconsistencies in Mr Antonelli’s account of his injuries.
69. Dr Searle’s report dated 15 July 2003 (Exhibit R4, T21), recorded that Mr Antonelli hurt his right leg in a fall into a pit at work in September 2001, and specifically noted that he had not hurt his right knee in the fall, noting also that this had “recovered completely in a few months”. Dr Searle recorded that the motor vehicle accident of September 2002 caused among other things, traumatic chondromalacia of the right patello-femoral joint, and aggravation of the Applicant’s pre-existing patello-femoral and knee joint arthritis. He opined that the symptoms Mr Antonelli suffered when he examined him were persistent and could become permanent, but that it was too soon to make that assessment. He opined that there was psychological trauma present, and that some degree of psychological overlay was apparent. We noted that Mr Antonelli denied he had given that history to Dr Searle.
70. Dr R Smith to whom Mr Antonelli was referred, produced a report dated 1 November 2002 (Exhibit R3, T25). Dr Smith did not have available to him any radiological investigations, and was unable to say from his examination whether the condition/aggravation of 12 September 2002 would or might cease. We noted that Dr Smith found a tendency to inconsistency on physical examination of the Applicant, and stated that he was uncertain as to whether there was genuine incapacity.
71. Mr Antonelli was also seen by Dr J Dave, an orthopaedic surgeon who produced a report dated 19 February 2003 (Exhibit R4, T7). His short report referred to X-rays of Mr Antonelli’s knee which showed mild degenerative changes. He diagnosed a medial meniscal tear and arranged for an MRI.
72. When Dr Endrey-Walder gave evidence before the Tribunal, Mr Kelly asked him a series of questions regarding Mr Antonelli’s alleged knee injury in the September 2001 accident. He concluded by asking:
“Doctor, given the Applicant does not recall hitting his right knee in the fall, gave no history of twisting his right knee joint in that particular incident, the first mention in his GP notes comes some two months after the fall, would you agree that it is in fact unlikely that he injured the right knee in that fall?”
Dr Endrey-Walder: “It is probably unlikely that he suffered a severe injury to the knee, yes.”
73. We were mindful also that Mr Antonelli did not tell Dr Endrey-Walder about his 1992 knee injury.
74. When Dr Maxwell was asked about the bone scan of the Applicant dated January 2002, he agreed that it showed some potential pathology within the right knee.
75. We noted from Mr Dodd’s submissions:
“… my learned friend points out quite properly that as far as the right knee problems after September of 2001, there’s a lack of complaint, there’s a lack of – when he sees Dr Manohar in January of 2002 there’s some radiated problems to the right leg but it doesn’t look like there ‘s right knee symptoms and the like, but the applicant’s claim regarding firstly the incident of September of 2001, by far and away the primary problem is with his back, far and away and that’s what’s reflected in the course of treatment …”
76. We were satisfied to conclude from the evidence before us as detailed above, in particular from the reports recorded by doctors who examined Mr Antonelli, including Drs Hanna, Steffen, McGill and Searle, that Mr Antonelli did not injure his right knee in the fall on 18 September 2001. We noted the Applicant may have had a soccer injury to his right knee, and were satisfied that he had suffered at least one previous injury to his knee for which he had time off work on 21 May 1992. He did not claim compensation for that, and it is likely therefore not to have been work related.
CONCLUSIONS REGARDING WHETHER THE APPLICANT CONTINUED TO SUFFER A LOW BACK CONDITION AS A RESULT OF THE ACCIDENT ON 18 SEPTEMBER 2001, AND WHETHER HE SHOULD BE PAID COMPENSATION AFTER 21 NOVEMBER 2001
77. We noted that liability was accepted for the accident of 18 September 2001, and that payments of compensation made for bruising to the Applicant’s back and right ribs were ceased as at 21 November 2001. We also noted Mr Antonelli had problems with management in the workplace.
78. We have been into detail regarding the accident of 18 September 2001, which we concluded was not as serious as the Applicant claims, and have noted the opinions of Drs Maxwell, Smith, Searle and McGill that Mr Antonelli exaggerated his symptoms to them when they examined him. We did not accept the Applicant’s evidence that he vomited after the accident, or that he had lost consciousness, or that he injured his right knee in that accident. We were not satisfied that he was a witness of truth.
79. As to the right knee, we noted Dr McGill’s evidence that the bone scan of January 2002 showed some mild pre-existing changes which could not have arisen since the September 2001 accident, but may have been attributable to earlier soccer accidents.
80. We were satisfied that Mr Antonelli did not make any claim for a neck injury, and that no reviewable decision was before us in relation to the neck. None of the medical practitioners whom Mr Antonelli consulted whose reports were before us dealt with the neck except Dr Endrey-Walder who conceded when giving evidence that he had extrapolated that from medical reports he received, but that the Applicant had not specifically recounted a neck injury to him.
81. We were mindful of Dr Hanna’s examination on the day of the incident, and Dr Maxwell’s record of the Applicant’s reports of pain in his back when he saw him in November 2001. We noted further that Dr Maxwell diagnosed contusion and soft tissue injury (Exhibit R2, PT17), and found Mr Antonelli fit for his normal duties at that time. Dr Manohar, Mr Antonelli’s treating specialist referred him for a bone scan and MRI in early 2002, and concluded that his symptoms were largely musculo-ligamentous in aetiology. That indicated to us that his injuries should have resolved within weeks. However Dr Maxwell pointed out other life factors affecting Mr Antonelli at that time, and Dr McGill also commented on people reporting symptoms for a variety of reasons. We were mindful also of Mr Antonelli’s personal problems, problems with his performance at work, and with his management at work, all of which may have impacted on his reports of pain.
82. In cross-examination, Mr Kelly took Dr Endrey-Walder to his report where the doctor had recorded injuries to the Applicant’s neck, back and right knee in the September 2001 accident. Dr Endrey-Walder conceded that the information about the right knee had not come from the Applicant, but from a report of Dr Manohar. Dr Endrey-Walder said that although Mr Antonelli had not mentioned any neck injury to him, he had assumed because the Applicant hurt his head in the fall, he expected that would also have caused neck problems. After hearing the history as recounted by Mr Kelly which included the fact Mr Antonelli did not mention his neck on his claim form, made no mention of his neck when describing his symptoms on 1 November 2001, made no mention of the neck to Dr Maxwell on 14 November 2001, made no mention of the neck to Dr Manohar in February 2002, and made no mention of the neck to Dr Steffen, Dr Endrey-Walder stated in regard to neck injury: “That was my opinion at the time when I saw this man and on the basis of his testimony recounting the mechanism of the injury, if it was not recorded elsewhere, and he did not record it elsewhere, well probably I’m wrong.” Dr Endrey-Walder’s opinions were therefore of limited value to the us in our deliberations.
83. We were satisfied that Dr McGill’s record of Mr Antonelli reporting to him that his condition had resolved by May 2002 was accurate, notwithstanding the Applicant’s later objection to the statement in 2004.
84. Notwithstanding Mr Antonelli did not return to full duties and was employed on light duties, we were not satisfied that he continued to suffer pain and the effects of the incident of 18 September 2001 as at 21 November 2001. We were mindful that the various radiological examinations conducted after the incident of 18 September 2001 showed mild degenerative changes in the Applicant’s spine, which if aggravated in the fall on that day, would have resolved within a matter of weeks afterwards.
85. We were satisfied from the medical evidence that the effects of the fall of 18 September 2001 would have resolved as at 21 November 2001 when payments of compensation to Mr Antonelli were ceased.
86. We then moved to consider the compensation claim in relation to the motor vehicle accident of 12 September 2002.
WHETHER MR ANTONELLI CONTINUED TO SUFFER NECK, JAW AND A RIGHT KNEE CONDITION AS A RESULT OF THE MOTOR VEHICLE ACCIDENT OF 12 SEPTEMBER 2002 AS AT I NOVEMBER 2002 ARISING OUT OF THAT ACCIDENT
87. Mr Antonelli sustained a motor vehicle accident on 12 September 2002, in which he claimed that he hurt his head, and right knee, and sustained muscular injuries. He had been doing a desk job at that time, and told us that he could not have done his previous job at that time. He wrote in his claim form dated 13 September 2002 (Exhibit R3, T3): “I was driving to Penrith doing no more than 80 KMH when I came around a bend and whilst negotiating the bend, the car would not respond to the curve like it should and it veered of (sic) the road and I could not control it.” Compensation was paid until 1 November 2002.
88. We noted by way of background Mr Antonelli claimed that approximately three months after his 2001 injury his van was broken into, tools and other equipment was removed, and the windows were smashed. The evidence regarding the extent of damage and in what condition the van was returned to the Applicant was not consistent, the employer versions predictably putting the damage at a lower level than the Applicant. Mr Antonelli claimed that he had reported the steering on his vehicle as being faulty before the date of the September 2002 accident. In that regard we noted a photocopy of a handwritten letter by Mr Antonelli (Exhibit A10), dated 25 July 2002 to his Line Manager in which he stated: “The mechanic that did my rego check only did a visual inspection. He did not start the van at all and would not even look at the noises I pointed out to him. …Please fix the van as the noises are louder the more I drive it.” At Exhibit A11 there was also a further letter from Mr Antonelli to his supervisors dated 4 September 2002 expressing concern about the safety of the van. Mr Glen Pickham, Mr Antonelli’s team leader when he returned to work in April 2002 after the September 2001 incident, gave evidence, including dates regarding the vehicle’s maintenance. There was some discussion regarding the vehicle at the Tribunal, and an allegation that the accident may have been staged by the Applicant. However liability was accepted for the accident, and we have no further comment to make on that issue.
89. Mr Antonelli gave evidence that as a result of the accident his right leg was stuck against the dashboard of the vehicle, underneath the steering column. He said that he was “knocked out at the time, I was in a daze, I couldn’t even see…” Mr Antonelli was taken by ambulance to the Nepean Hospital. He said that as a result of the accident he was dizzy for a long time, and had pains, particularly so in the right side of his head. He said that his neck, jaw and right leg hurt. Mr Antonelli also gave evidence that several of his teeth were broken in the accident, whereas the Nepean Hospital had no record of any tooth injury. Dr McGill recorded a conversation Mr Antonelli had with him about his teeth in his report of August 2004, although the Applicant said that he could not recall such conversation. We were mindful that the issue was brought up at the hearing, and the claim for tooth damage was withdrawn on the basis Mr Antonelli had been having dental work done independently of the accident. We were satisfied that Mr Antonelli’s tooth problems were not related to the compensable accidents. A dentist’s account dated 6 November 2003 was MFI-1 but not tendered. We had no further evidence regarding a jaw injury and have not dealt with it further.
90. Dr McGill recorded on 20 November 2002 that Mr Antonelli told him he had to be cut out of the van. Dr Maxwell had recorded the accident scene similarly. The Applicant said that he would not have told that to Dr McGill because he had been unconscious. He said that he could not recall giving Dr Maxwell such information as he could not recall the scene of the accident. We preferred the contemporaneous reports of the doctors to the Applicant’s evidence on the circumstances of Mr Antonelli and his accident, and noted that the accident report did not refer to any cutting to free Mr Antonelli from the van.
91. When Mr Kelly put to Mr Antonelli that his initial complaints at the Nepean Hospital had been with regard to headache, right groin, right knee and left shoulder pain, Mr Antonelli was unable to give a satisfactory reply. We noted that there was a record of neck tenderness made on admission at the Nepean Hospital, but that X-rays showed spondylitic changes which could not have resulted from the accident. The medical opinions of Drs Maxwell, McGill were that Mr Antonelli had suffered no significant injury to the neck in the motor vehicle accident. Drs Endrey-Walder and Smith commented on exaggeration by the Applicant in relation to neck pain, and Dr Manohar did not have a record of it. We were able to conclude that Mr Antonelli may have suffered a musculo-ligamentous injury to the neck which caused little incapacity, and would have resolved within a matter of weeks.
92. Mr Antonelli said that he suffered constant headaches and some nose bleeds, and had back pain six weeks after the accident when he saw Dr Smith. Mr Kelly raised with Mr Antonelli what he had told Dr McGill on 20 November 2002, putting to him that he had told Dr McGill his low back felt fine, and reminded Mr Antonelli that Dr McGill had recorded Mr Antonelli telling him that in May 2002 his back pain (which occurred as a result of the 2001 incident), had completely resolved. Mr Antonelli disagreed that he had so said.
93. Mr Kelly also put to Mr Antonelli that both Drs Smith and McGill had recorded in November 2002, and Dr Searle had recorded in July 2003, that the Applicant had demonstrated restricted neck and knee movements which did not represent his actual range of movement. Mr Kelly also put to Mr Antonelli that when he saw Dr Maxwell in August 2003, he walked into the surgery with an affected limp, and that Dr Maxwell recorded that the Applicant was restricting his neck movements. We considered Mr Antonelli’s comments and answers to questions about whether he had exaggerated his restrictions unsatisfactory in that he obfuscated, and/or simply said on many occasions that he could not recall.
94. We also considered the records of Dr Salmon and Dr Michael who treated Mr Antonelli shortly after the motor vehicle accident. Dr Salmon reported Mr Antonelli had suffered abrasions and concussion, while Dr Michael diagnosed whiplash injury, both of which were considered to be short term injuries, and for which he was paid compensation. On referral to Dr Smith, a report dated 1 November 2002 (Exhibit R3, T25) was prepared. Dr Smith did not have available to him any radiological investigations, and was unable to say from his examination whether the condition/aggravation of 12 September 2002 would or might cease. We noted that Dr Smith found a tendency to inconsistency on physical examination of the Applicant, and stated that he was uncertain as to whether there was genuine incapacity.
95. The Applicant told us that he has had no change in the condition of his knee and back since 2002, and that his back has been sore ever since that time. He was unable to say whether he had complained about his back to the ambulance officers who transported him to the Nepean Hospital because he said that he had been unconscious at the time.
96. Dr Endrey-Walder, produced a report dated 22 April 2004 in which he noted that Mr Antonelli had knee pathology and that his right thigh was a centimetre smaller in circumference than the right, although the calves were of equal size. He said in his oral evidence that this was secondary to Mr Antonelli’s knee pathology.
97. We were satisfied on the basis of the medical notes of Dr McGill, and preferred his contemporaneous records of what Mr Antonelli reported to him regarding his back, as discussed in the preceding paragraphs, to the recollections of the Applicant in the Tribunal, which we found to be unreliable. Accordingly we were satisfied that Mr Antonelli reported to Dr McGill in May 2002 that his back pain had resolved completely, that being pain which arose as a result of the 2001 accident. We noted also that there was no record of back pain made after the motor vehicle accident of September 2002, and that the Applicant informed Dr McGill in November 2002 that his low back felt fine.
98. Mr Antonelli has not returned to work since the motor vehicle accident, and was made redundant on 23 September 2003. He told us that his back “sometimes feels okay” but that suddenly, without warning it worsens. Part of that, he says, is the development of an electric shock-like feeling which radiates from the back down to midway of the back of the right leg. He said he gets a numb feeling, and also tingling. Mr Antonelli said that his right knee continues to give him trouble, sometimes swelling, sometimes locking. Mr Antonelli said that he cannot lift or bend. He said that he takes a large amount of medication (Mersyndol, Valium and Panadeine Forte), and that since the redundancy he has been a different person and suffers from a lack of confidence.
99. Mr Kelly put to Mr Antonelli that he was fit to return to his full pre-injury duties from 1 November 2002. Mr Antonelli disagreed. We were unable to accept that Mr Antonelli was not exaggerating his symptoms to the doctors who examined him, and to the Tribunal.
100. We noted that Mr Dodd referred Dr Maxwell to X-rays of Mr Antonelli’s knee taken after the accident, which Dr Maxwell described as early degenerative changes. We were satisfied with Dr Maxwell’s evidence that the effects of the injury of September 2002 which he described as soft tissue contusions would have resolved approximately four weeks after the event. We were also satisfied from the medical evidence of Dr Manohar that the musculo ligamentous injuries incurred in the motor vehicle accident of 12 September 2002 were resolved by the time payments of compensation ceased as at 1 November 2002, and that Mr Antonelli did not suffer incapacity for work, and was able to work in the clerical position he held at the time of the accident.
101. We accepted that Mr Antonelli’s has degenerative changes in his back, and that aggravations will occur from time to time, but that they will not necessarily be compensable.
WHETHER THE APPLICANT SUFFERS FROM DEPRESSION/ADJUSTMENT DISORDER WITH DEPRESSION ARISING OUT OF THE MOTOR VEHICLE ACCIDENT OF 12 SEPTEMBER 2002
102. In January 2004, over a year after the accident of September 2002, Mr Antonelli made a claim for chronic pain and depression resulting from the pain incurred in the motor vehicle accident. Liability was not accepted by the Respondent.
103. The Applicant agreed he did not accept the provision of counselling from his employers after the accident of 12 September 2002. He said that he had counsellors within his church, and on 31 October 2005, at the time of the resumed hearing, he said that he had been seeing Elizabeth Clark, a counsellor for approximately four months. There were no documents regarding the latter before the Tribunal. Mr Antonelli also told us that he has been assigned a psychiatrist through the Commonwealth, and that he had an appointment for two months after the hearing (at the end of 2005). We had no documentary or further evidence regarding these appointments.
104. No mention of psychiatric difficulties was recorded in Exhibit R17 which comprised the notes of the Queen Medical Centre which Mr Antonelli attended until approximately one year after the accident. Neither did he mention psychiatric difficulties arising from the motor vehicle accident to specialists Drs Smith, Endrey-Walder, McGill, Maxwell or Searle.
105. Mr Antonelli was seen by Dr McMurdo who is a psychiatrist, in November 2003 (Exhibit R4, T10) in relation to the claim. He told Dr McMurdo about memories or recurring dreams since the motor vehicle accident on 12 September 2002.
106. When Dr McMurdo gave evidence before the Tribunal, he was referred to his examination of Mr Antonelli, and his finding of adjustment disorder with depression and anxiety as defined in DSM-IV. Dr McMurdo opined that the longevity of Mr Antonelli’s inability to work, a year after the motor vehicle accident in September 2002, rendered his psychiatric condition chronic. He opined that Mr Antonelli’s feelings of depression and despondency as well as his fear of driving (mentioned also to Dr Lewin), when he examined the Applicant in November 2003 would have interfered with his capacity to work as a linesman for the Respondent. Dr McMurdo disagreed with Dr Lewin who found that Mr Antonelli had some symptoms, but did not make the full diagnosis of adjustment disorder with anxiety and depression. We noted that Mr Antonelli described certain problems to Dr Lewin, including problems with sleep, but that Dr Lewin described the complaints as “broad and diffuse complaints”. Dr Lewin also said that preoccupation with certain things is part of the normal human experience and not a psychiatric illness. We noted that Dr McMurdo conceded that by the time Dr Lewin saw Mr Antonelli in 2004, his condition may have improved.
107. When Mr Kelly put to Dr McMurdo that Dr Lewin, who had examined the Applicant in July 2004, recorded that Mr Antonelli told him his main problem was the prolonged history of conflict with his employer, Dr McMurdo agreed that he had been given a different history, and from our point of view, that of course altered the weight of his evidence.
108. Dr McMurdo also said that from his examination and Mr Antonelli’s history, he could conclude that any emotional problems Mr Antonelli suffered as a result of the events of the mid-1990s would no longer have been present by 2001.
109. Dr McMurdo was also referred to the concern expressed by Dr Lewin regarding the large quantities of opiates, codeine and sleeping and sedative tablets Mr Antonelli was taking. Dr McMurdo emphasised that Dr Lewin’s examination was some eight months after his, and agreed the amounts reported to Dr Lewin by Mr Antonelli were greater than the amounts reported to him. He said that taking large amounts of such drugs could both depress one, make one anxious, and be generally debilitating. Dr Lewin said in his oral evidence that:
“… he was given a prescription for a certain amount of medication. He told me he was taking in excess of his doctor’s prescription from time to time and that there were occasions when he lost count of how much medication he was taking. He was given the medication initially as an analgesic …. but he told me that this medication gave him no relief of pain or insufficient relief of pain. … it appeared to me he was no longer taking it for the purpose of pain-killing. It appeared to me that he was taking it for inappropriate purposes …”
110. Dr Lewin also added that “… codeine may result in irritability, sedation, impaired concentration, impaired judgment …”
111. Dr McMurdo opined that Mr Antonelli’s psychiatric state was the result of a cumulative effect of various events, commencing from the harassment in the 1990s, and culminating in the ongoing pain and disability after the 2002 motor vehicle accident.
112. Dr Lewin gave oral evidence before the Tribunal telling us that Mr Antonelli focused in particular on a series of complaints about how he had been treated in the workplace, and also told him about the motor vehicle accident of September 2002. Dr Lewin told us that Mr Antonelli felt anger and mistrust of his employer, and related deliberate neglect of the care of his motor vehicle to the accident of September 2002. Dr Lewin described that from the perception of Mr Antonelli, the neglect of the motor vehicle was a small part of the “gross misbehaviour” of the Respondent.
113. We were mindful that the claim for depression arising out of the Applicant’s pain was not lodged until January 2004, over a year after the accident of September 2002. We were also mindful that a large part of the distress Mr Antonelli reported related to personal and workplace issues, matters other than depression arising out of the motor vehicle accident. We had no documentation or evidence other than a passing reference by Mr Antonelli that he was seeing a counsellor. We noted Dr McMurdo’s opinion when he examined Mr Antonelli in November 2003 that his psychiatric condition would have interfered with the Applicant’s ability to work as a linesman. Given the non-reporting of any psychiatric difficulties even to his GP practice until over a year after the accident, we were not satisfied that Mr Antonelli suffered depression or adjustment disorder arising out of the motor vehicle accident. We were mindful also that Mr Antonelli was working at clerical duties and not being a linesman as understood by Dr McMurdo, and we were satisfied he did not have any incapacity to carry out clerical duties. Accordingly his claim for depression/adjustment disorder with depression arising out of the motor vehicle accident of 12 September 2002 has to fail, and the decision of the Respondent be affirmed.
DECISION
114. In Matter N2002/969 the Tribunal varies the decision of the Respondent and finds that Telstra Corporation Ltd is no longer liable to pay compensation to Mr M Antonelli for “bruising to back (back condition) and right rib injury “ as at 21 November 2001.
115. In Matter N2003/809 the Tribunal varies the decision of the Respondent and finds that Telstra Corporation Ltd is no longer liable to pay compensation to Mr M Antonelli for “head injury and muscular injuries” as at 1 November 2002.
116. The decision in Matter N2004/1142 is affirmed.
117. The Tribunal may not award costs in these matters pursuant to the Safety Rehabilitation Compensation Act 1988. However the Tribunal is mindful that the Respondent agrees that it pay the Applicant’s reasonable costs incurred by the Applicant in preparation for the vacated hearing days 8 and 9 June 2005.
I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr P Lynch, Member
Signed: .....................................................................................
AssociateDates of Hearing 15 Feb 2005; 8 June 2005; 31 October 2005; 1 & 2 November 2005; 16 December 2005
Date of Decision 27 March 2006
Counsel for the Applicant Mr J Dodd
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Sparke Helmore Solicitors
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