Arturo Fernandez and Telstra Corporation Limited
[2012] AATA 310
•22 May 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2010/4880; 2010/4881
General Administrative Division )
Re: Arturo Fernandez
Applicant
And: Telstra Corporation Limited
Respondent
TRIBUNAL: Senior Member A K Britton
DATE: 5 July 2012
PLACE: Sydney
CORRIGENDUM
1. The Tribunal released written reasons for decision in this matter, dated 22 May 2012.
2. It has come to the Tribunal’s attention that there was an error in the decision.
3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975 (the Act).
NOW THE TRIBUNAL THEREFORE DIRECTS that the Registrar, pursuant to section 43AA(1) of the Act, alter the text of the decision as follows:
(a)Replace the date “25 June 2010” in order 2 with the date “19 August 2010
(b)replace the date “25 June 2010” in paragraph [62] of the Reasons with the date “19 August 2010”
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Senior Member A K Britton
[2012] AATA 310
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/4880
2010/4881
Re
Arturo Fernandez
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
Decision
Tribunal Senior Member A K Britton
Dr I Alexander, MemberDate 22 May 2012 Place Sydney
The reviewable decision made on 25 June 2010 (proceedings no. 2010/4880) is affirmed.
The reviewable decision made on 25 June 2010 (proceedings no. 2010/4881) is remitted to Telstra for determination in accordance with these Reasons.
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Senior Member A K Britton
Catchwords
WORKERS COMPENSATION – incapacity – liability – applicant’s depressive symptoms not contributed to, to a “significant degree”, by employment as depressive symptoms a negative feature of applicant’s schizophrenia – applicant incapacitated for work “as a result of” back injuries – substantial contribution of later back injury not incompatible with finding that original back injuries materially contributed to incapacity – additional evidence required to determine suitable employment - remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) - ss 4, 5B, 14, 19, 54
Administrative Appeals Tribunal Act 1975 (Cth) – s 42D
Cases
Hart v Comcare (2005) 145 FCR 29; [2005] FCAFC 16
Re Prica and Comcare (1996) 44 ALD 46
Re Smith and Comcare [2002] AATA 249
Clement v Comcare [2012] FCA 166Clement and Comcare [2010] AATA 296
Secondary Materials
Diagnostic and Statistical Manual of Mental Disorders, 4th ed, 1994
Guide to the Assessment of the Degree of Permanent Impairment, 2nd ed. 2005
REASONS FOR DECISION
Senior Member A K Britton
Dr I Alexander, Member22 May 2012
Mr Arturo Fernandez seeks review of two decisions made by his former employer, Telstra Corporation Limited. The first involved the refusal of Mr Fernandez’s claim for compensation for incapacity resulting from injuries to his back sustained while he was working as a linesman in 1996, 1998 and 2001 (the subject injuries) for which Telstra has accepted liability. The second involved Telstra’s decision to refuse to accept liability for Mr Fernandez’s claimed psychological condition, namely depression.
Mr Fernandez worked for Telstra for 12 years. Since accepting an offer of redundancy in August 2007, apart from three months’ work as a security guard, he has been unemployed. He is currently in receipt of a disability support pension.
The key issues to be decided in this review are whether Mr Fernandez is incapacitated for work “as a result of” the subject injuries and whether, as claimed, he suffers from depression and, if so, whether, it was contributed to, to a “significant degree”, by his employment with Telstra.
Claim in respect of psychological injury
Mr Fernandez has made a claim for “depression” that he asserts is the result of his “multiple back injuries and the failure of Telstra to provide suitable employment”. He contends that his depression stems from chronic pain resulting from his work-related back injuries, together with his alleged mistreatment by Telstra and the bullying and harassment of colleagues. Telstra contends that Mr Fernandez does not suffer from depression and, in the alternative, it is unrelated to employment.
There is no argument that Mr Fernandez suffers from chronic schizophrenia, or as forensic psychologist Professor Stephen Woods believes to be the more appropriate diagnosis, “delusional disorder of the persecutory type”. Nor is it in issue that that disorder is constitutional and unrelated to work. The issues in dispute are whether Mr Fernandez suffers from depression, and, if so, whether his employment contributed to it to the requisite degree. For the purpose of his claim Mr Fernandez was assessed by Professor Woods and psychiatrists Drs Anne-Marie Rees and Yolande Lucire. Before us in these proceedings, in addition to the reports prepared by each of these experts, were the clinical notes and various reports of Mr Fernandez’s treating psychiatrist (since 2003), Dr D J Butler.
Dr Lucire is the only expert to hold the opinion that Mr Fernandez suffers from what she described as “secondary depression”. Perplexingly, she does not explain what condition she believes Mr Fernandez’s depression to be secondary to. Dr Lucire’s responses to questions put to her by Telstra’s solicitor, contained in her reports of 19 February 2010, make plain that at best she was unable to say whether there was any causal relationship between Mr Fernandez’s back pain and depression and/or his primary psychiatric disorder:
Q: Whether the back injury, pain or depression has aggravated the extent of any pre-existing schizophrenia?
A: Can’t say
Q: Is [Mr Fernandez] suffering from a primary psychiatric injury and not a secondary psychiatric injury under AMA 4?
A: He is suffering a mental condition not caused by work.
Neither Professor Wood nor Dr Rees believe that a diagnosis of a depressive illness under the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th ed, 1994 (‘DSM-IV’), is warranted, or that Mr Fernandez’s chronic schizophrenia/delusional disorder is work-related. Neither believe that he suffers from depression “independent” of, or secondary to, his mental illness.
Dr Rees saw Mr Fernandez in March 2010, and concluded that he did not suffer from “significant depression”. She noted that at the time, he reported to be taking 50mg of the anti-depressant Zoloft; in her opinion, “the lowest dose you can be on” and commonly given to people suffering from low grade depressive symptoms related to schizophrenia. She noted that when Dr Butler took over his care in 2003, Mr Fernandez had been taking very high doses of both antipsychotic and antidepressant medication, which Dr Butler took steps to reduce. She also noted that in October 2007, Dr Butler wrote that there was no evidence of any depressive symptoms. In addition, she pointed out that when admitted to the Northern Sydney Central Coast High Dependence Mental Health Unit in early 2009, no mention was made of Mr Fernandez having significant depression, despite it being noted that he was then prescribed anti-depressants.
According to Dr Rees, reports of depressive symptoms by a person suffering from schizophrenia could be explained by a diagnosis of:
(1) depression, independent of the schizophrenia; or
(2) a schizoaffective disorder which encompasses a schizophrenic illness and mood disorder, which could either be a depressive illness or bipolar disorder; or
(3) a diagnosis of schizophrenia which includes features of depression.
Describing the negative symptoms of schizophrenia as social isolation, withdrawal, low energy and lack of motivation, Dr Rees pointed out that those features might subjectively feel like depression to the sufferer. In her opinion Mr Fernandez’s report of depressive-like symptoms was likely to be attributable to the negative features of schizophrenia. In a supplementary report dated 18 March 2011, Dr Rees wrote that after reviewing the clinical records of Mr Fernandez’s treating psychiatrists, her opinion — that any depression was more likely to be secondary to his schizophrenia — had been strengthened.
Professor Woods was in broad agreement with Dr Rees. He concluded that there was no objective evidence to support the proposition that independent of mental illness, Mr Fernandez was suffering from depression and/or anxiety. Professor Woods though it possible that Mr Fernandez had, as claimed, been the victim of cruel jokes and harassment throughout the period of his employment with Telstra, and that would have had the potential to aggravate pre-existing or underlying psychotic symptoms, but whether this had in fact occurred was a matter of speculation.
In support of his claim, Mr Fernandez points to the comments made by Dr Butler in a letter of 25 October 2007: “A lot of [Mr Fernandez’s] psychotic symptoms were related to Telstra” and the opinion of surgeon, Dr Peter Conrad that “[Mr Fernandez’s] continuing back pain was a substantial contributing factor to the secondary depression” (report, 5 January 2010).
psychological injury: Conclusion
Telstra will be liable to pay compensation in respect of any “ailment”, or aggravation of an ailment suffered by Mr Fernandez, if it was contributed to, to “a significant degree” by his employment with Telstra (ss 5B and 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (the Act)).
The weight of medical evidence is that Mr Fernandez does not suffer from a depressive illness. For current purposes however, we will assume that the depressive-type symptoms he has reported at times, during and since his employment with Telstra, constitute an "ailment", or an aggravation of an ailment, within the meaning of the Act. Adopting that approach, we must decide whether that ailment was contributed to, to “a significant degree” — “a degree that is substantially more than material” — by Mr Fernandez’s employment (s 5B(3)). That question must be answered having regard to the factors listed in s 5B(2) of the Act.
Apart from the comment made by the treating doctor in his letter of 25 October 2007, there is no medical evidence to support Mr Fernandez’s belief that his employment with Telstra was a contributing factor to any depressive illness. The foundation for Dr Butler’s opinion is not disclosed and furthermore the opinion itself is expressed in such general terms, so as to be unhelpful. We give no weight to the opinion proffered by Dr Conrad, given that it plainly falls outside his area of expertise.
While as Dr Rees explained, a person suffering from schizophrenia could independently of that condition suffer from depression, the weight of medical evidence is that this did not occur in this case. We agree with Dr Rees’s view that the most likely explanation for Mr Fernandez’s report of depressive symptoms was that they were a negative feature of his schizophrenia. Even if accepted that Mr Fernandez has experienced chronic back pain and was mistreated throughout the course of his employment, we are unable to find that his depressive illness, however characterised, was contributed to, to a significant degree, by his employment with Telstra. For this reason, we must affirm the decision under review in respect of the claimed psychological condition.
Claim in respect of back injuries
Compensation will be payable to Mr Fernandez if he “is incapacitated for work” as a result of any or all of the subject injuries (s 19 of the Act). Section 4(9) of the Act defines “an incapacity for work” to mean 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.
The phrase, “work at the same level” has been held to mean the nature and quality of the work “in the sense of its characteristics”, including its degree of difficulty (Re Prica and Comcare (1996) 44 ALD 46; Re Smith and Comcare [2002] AATA 249). We adopt that approach. Mr Fernandez’s work as a linesman — the only position he held throughout his employment with Telstra — involved, among other things, heavy lifting, twisting, kneeling, climbing up and down ladders and working in cramped conditions. The consensus of medical opinion is that Mr Fernandez is now physically incapable of performing work of that nature. It follows that he will have an “incapacity for work” within the meaning of s 4(9)(b) of the Act if that incapacity is “a result of” one or more of the subject injuries.
As a result of injury
Mr Fernandez will be incapacitated for work “a result of” an injury if it is a material cause of the relevant incapacity (Hart v Comcare (2005) 145 FCR 29). In Clement v Comcare [2012] FCA 166 (at [8]), Jagot J found no error in the following statement of the law in relation to the meaning of the phrase “as a result of” by the Tribunal in Re Clement and Comcare [2010] AATA 296 (at [15]):
[The phrase “as a result of”] refers to an operative cause that is not confined to the immediate proximate cause of incapacity and imports a test of causal connection that requires a commonsense evaluation of the causal chain between the claimed incapacity and the injury. [footnotes omitted]
Telstra contends that any incapacity suffered by Mr Fernandez is the result of factors unrelated to the subject injuries. It contends that it is implausible that there is any link between the subject injuries and Mr Fernandez’s current incapacity, given that after each injury he continued to work without restriction, save for relatively short recovery periods. Mr Fernandez disagrees. To put the submissions made by the parties in context, it is necessary to sketch in the background to the injuries and the medical evidence.
History of injury
The first injury occurred on 30 October 1996, 18 months after Mr Fernandez commenced with Telstra. It involved Mr Fernandez twisting his lower back while shovelling cement. Mr Fernandez received physiotherapy and was certified unfit for work to 8 November 1996 and fit for restricted duties from 11 November 1996. While not altogether clear, it appears that after about three weeks, he returned to full duties.
The second injury occurred on 18 December 1998. Mr Fernandez described the incident in his initiating claim for compensation as follows:
I was pulling cable that was jammed in underground duct when I felt a sharp pain in lower back
Mr Fernandez was certified unfit for work for about a week and placed on restricted duties for a further week. On 8 January 1999 he returned to normal duties and for about three weeks worked at a location closer to his home, apparently to reduce the aggravation to his back caused by travel. In September 1999 Mr Fernandez made a report of back pain to his GP. Later that month he commenced a program of physiotherapy.
Mr Fernandez sustained a further injury in 2001 for which Telstra accepted liability. No records of that injury were produced in these proceedings. Mr Fernandez told Dr Conrad in January 2010 that that the injury occurred while lifting manhole lids. He recalls being off work for a few days and then returning to light duties for a few weeks.
According to Mr Fernandez, since the first injury, he has experienced ongoing problems with his back, which would flare up from time to time. He claims that his repeated requests for light duties were refused and he had little option but to solider on.
In July 2010, consent orders were entered by the Administrative Appeals Tribunal that Telstra pay Mr Fernandez compensation for permanent impairment and non-economic loss in respect of his “accepted lower back injury”. Compensation was payable in respect of 13 per cent whole person impairment under Comcare’s Guide to the Assessment of the Degree of Permanent Impairment, 2nd ed. 2005.
April 2007 incident
In April 2007, Mr Fernandez lodged a claim for injury alleging that he hurt his lower back at work while removing a manhole lid. After an investigation conducted by Telstra, he withdrew that claim; on his account because he was bullied into doing so by his supervisors. Telstra rejects that allegation. Mr Fernandez’s supervisor at the time, Mr Mark Higginson, stated that the decision to investigate the claim was triggered by conflicting reports about the injury. Mr Higginson claims that Mr Fernandez’s decision to withdraw the claim was only made after he had been notified of the consequences of making a fraudulent claim.
Much evidence was given in these proceedings about whether, as claimed, Mr Fernandez injured his back in 2007 and, if so, whether the incident occurred at home or work. In our opinion, this issue is something of a distraction because, even if accepted that Mr Fernandez injured his back at work, it would not assist his claim, because compensation is only payable where a claim for compensation has been made in accordance with the Act (s 54). Absent a valid claim, it is not open to us to find that Telstra is liable for the alleged 2007 incident.
Medical opinion about the cause of Mr Fernandez’s physical incapacity
Five medical practitioners have assessed Mr Fernandez’s back in the context of his claim for permanent impairment and/or incapacity — orthopaedic surgeons, Prof. Youseff Ghabrial, Drs James Bodel and David Bornstein, surgeon Dr Peter Conrad and rehabilitation specialist, Dr Seamus Dalton. All but Dr Dalton believe that the original 1996 injury caused a two level disc prolapse and that this was the genesis of Mr Fernandez’s current back problems.
While the consensus of expert opinion is that Mr Fernandez is currently unfit to work as a linesman (and/or suffers permanent impairment), there is disagreement about whether this was the result of the subject injuries. This question was explored in some detail by Drs Dalton and Bodel in oral evidence. Dr Bodel believes that the subject injuries, in particular the first, substantially contributed to Mr Fernandez’s incapacity; Dr Dalton on the other hand, believes that those injuries temporarily aggravated a pre-existing degenerative disc disease. Central to their respective opinions is the significance of the “definite disc pathology at L4/5 and L5/S1” evident on the CT scan taken of Mr Fernandez’s lumbar spine five days after the original injury. Dr Bodel thought the original injury to be the most likely cause for that pathology. In his opinion the prolapse was aggravated by the subsequent injuries and its effects have been ongoing. He stood by that opinion notwithstanding the evidence of Mr Fernandez’s back being relatively asymptomatic throughout the period 2000 to 2007, and thought this not to be uncommon. In his opinion, it was highly relevant that throughout this period Mr Fernandez’s “disc pathology” was established.
Dr Dalton was of the opinion that had Mr Fernandez’s disc pathology been caused by the original injury, it would “almost certainly”, have been accompanied by acute symptoms rendering Mr Fernandez unable to undertake any physical work for months, especially given that two lumbar discs were involved. He thought the most probable explanation for disc pathology evident on the first CT scan was that Mr Fernandez was suffering from (then) asymptomatic degenerative disc disease. He was not dissuaded from that opinion on the basis of Mr Fernandez’s relative youth at the time of injury — 27 years of age. He asserted that studies of people in their twenties with no back symptoms revealed that 50 per cent have at least one degenerative disc, and three or four is not uncommon. He asserted that it was a fallacy to assume that a disc protrusion necessarily results in symptoms.
Dr Bodel conceded that it was possible that Mr Fernandez’s disc pathology predated the first injury but thought this was “most unlikely” in the absence of any history of accident or back problems. In his opinion, it was “highly probable” that there was a causal link between the first injury and the pathology revealed on the CT scan. He thought that the heavy manual work undertaken by Mr Fernandez, together with the mechanism of injury — shovelling concrete — was capable of causing disc protrusions at two levels of his lumbar spine. He pointed out that the studies cited by Dr Dalton in support of his contention that there was a high incidence of disc disease amongst people in their mid‑twenties, were based on findings revealed on MRI scan. He pointed out that MRI is an entirely different and more sensitive investigative tool and will reveal relatively minor abnormalities that would not necessarily be detected by a CT scan. He asserted that a disc that appears abnormal on MRI is not necessarily diseased. In his opinion, the likelihood of a person in their mid-twenties suffering “significant degenerative disc disease” was “pretty low”, absent any history of injury.
Dr Bodel agreed that most people who sustained a trauma resulting in a two-level disc protrusion would be unable to return to work for a significant period. However, in his opinion, recovery times vary widely and Mr Fernandez’s relatively short recovery period would not be unknown for a person in their mid-twenties.
Medical Opinion: Findings and Conclusions
Of the expert opinions before us, Dr Dalton’s is the sole one to conclude that Mr Fernandez suffered from a degenerative disease prior to the original injury and that the subject injuries merely temporarily aggravated that condition. Drs Bodel and Dalton each acknowledge that in the absence of radiological evidence pre-dating the original injury, there is an element of speculation and conjecture, in their respective opinions. Diagnosis of the causation of an injury where there are competing hypotheses is frequently difficult. In the absence of a definitive finding proven by investigations and a patient’s history, the physician’s art as well as science must be called into play. While Dr Dalton has offered a reasoned and plausible explanation for his opinion, the combined weight of expert opinion is against him. Given Dr Dalton’s concession that there is an element of conjecture underlying his fundamental premise, and given that the weight of the expert medical opinion on balance supports Mr Fernandez, it would be irrational to accept Dr Dalton’s opinion in preference absent compelling reasons to do so.
The question of whether Mr Fernandez’s incapacity is a result of one or more of the subject injuries is complicated by the contribution, if any, made by the 2007 incident. While the parties disagree about the details of that incident, it is common ground that Mr Fernandez complained to his doctor of back symptoms, was certified unfit for work for a short period and fit for alternative duties for two weeks from 14 May 2007. A CT of his lumbar spine taken on 7 May 2007 revealed “a large central disc prolapse at the L5/S1 level and central bulging at L 4/5”.
In these proceedings, Dr Bodel was asked to assume that “something happened” involving Mr Fernandez’s back in or around May 2007. He thought that, if it had happened, “the something” was likely to have caused some “additional structural damage” and to be a substantial contributing factor to Mr Fernandez’s “level of pathology”.
Unravelling the extent, if any, to which the 2007 incident contributed to Mr Fernandez’s current incapacity is not an easy task. Even if, as Telstra urges us to find, it caused “additional structural damage”, it does not follow that Mr Fernandez’s current incapacity was not a “result of” the subject injuries. The weight of medical opinion is that the genesis of Mr Fernandez’s back problems was the original injury, which left him with a disc prolapse that was vulnerable to further damage. A finding that the 2007 incident substantially contributed to Mr Fernandez’s incapacity is not incompatible with a finding that the original and subsequent injuries materially contributed to that incapacity.
Mr Fernandez’s current physical incapacity for employment is undoubtedly a result of a number of factors, including his unhealthy weight and lack of fitness. Nonetheless, we are satisfied on balance that the subject injuries, in particular the first, materially contributed to his incapacity.
When did Mr Fernandez become incapacitated for work?
Mr Fernandez clarified in these proceedings that his claim for compensation was limited to the period commencing from the date he left Telstra. Accordingly, we need only consider whether he was incapacitated for work at that time, or became so, at some later date. Answering that question is made difficult by what can only be described as the unreliable evidence given by Mr Fernandez and the paucity of independent evidence.
Mr Fernandez testified in these proceedings that he left Telstra because he was unable to continue to work due to back pain and not so as to take advantage of the redundancy package then on offer. He also testified that since the original injury his back pain has caused him to collapse spontaneously on account of back pain almost on a daily basis. In addition, he claimed that since leaving Telstra he has been unable walk around the block; sit or stand for more than 30 minutes.
There is no mention in the notes of Mr Fernandez’s treating doctors produced in these proceedings, or in the histories taken by the experts whose reports are before us, of Mr Fernandez reporting spontaneous collapse. His work colleague of ten years, Mr Peter Clarke, could not recall any such incident — although he remembered Mr Fernandez often complaining of a sore back, “as we all do”. According to Dr Bodel, had Mr Fernandez suffered from such severe symptoms so as to cause him to fall spontaneously, it is likely that there would be “significant signs” of nerve root tension or radiculopathy — of which there are none.
Mr Fernandez’s account of falling spontaneously is unsupported, contradicted and implausible and not accepted by us. It raises the broader question of the reliability of his claim that his back condition remained largely unchanged since leaving Telstra and, more fundamentally, the reliability of the histories given to the experts and ultimately, their opinion about his functional capacity.
There is a marked discrepancy between the description of symptoms and functional capacity given by Mr Fernandez to the Tribunal and that given to the experts, with the former being significantly more serious in nature than the latter. We believe the histories given to the experts to be more reliable than those provided to the Tribunal. The history taken by each expert was broadly comparable. Similarly, we believe the findings on clinical examination made by the experts to be more reliable than the description Mr Fernandez gave to the Tribunal of his functional capacity. Apart from Dr Dalton, there were no material differences between the findings made by the experts on clinical examination. With the exception of Dr Dalton, none were of the opinion that Mr Fernandez had embellished his complaints or exaggerated his symptoms or restrictions of movement.
It is noteworthy that despite his belief that Mr Fernandez presented with “marked superimposed pain and abnormal pain behaviour” which hampered clinical assessment, Dr Dalton concluded that Mr Fernandez is now unfit to work because of among other things, his back — a “long-standing degenerative condition”.
It is not an easy task to pin-point when Mr Fernandez’s incapacity for work first arose. It may be, as he claims, that his functional capacity was largely unchanged since 2007, but absent some independent evidence we cannot accept that claim. The opinion of Drs Dalton and Bodel that Mr Fernandez was incapacitated for employment was made after their respective assessments of him in June 2011 (Dr Dalton) and April 2009 and March 2010, (Dr Bodel). Prof Ghabrial is the only practitioner whose report is before us to have examined Mr Fernandez before April 2009 and express an opinion about his capacity for employment. On assessment in September 2008, he found Mr Fernandez to be indefinitely unfit for activities involving lifting over 10 kilograms, excessive bending and excessive twisting. While not expressly stated, it can be inferred from this comment that he believed Mr Fernandez unfit to work as a linesman. While arguably Mr Fernandez was unfit to work by September 2008, adopting a cautious approach we find that his incapacity probably did not arise until April 2009. By that date Mr Fernandez had been assessed by two doctors who independently concluded he was unfit for work as a result of injury.
Compensation payable under section 19
The amount of compensation, if any, payable to Mr Fernandez must be determined by a formula set out in s 19 of the Act. In broad terms, it represents the difference between Mr Fernandez’s normal weekly earnings (as adjusted) and his ability to earn in “suitable employment” (ss 19(2), 19(3)).
Normal weekly earnings
There is no evidence before us which would allow us to calculate Mr Fernandez’s normal weekly earnings.
Ability to earn
After becoming incapacitated for work in April 2009, Mr Fernandez did not seek suitable employment. Accordingly, in determining the amount per week he is able to earn in suitable employment, s 19(4) instructs us to have regard to:
…
(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 Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
The notional amount per week Mr Fernandez could “reasonably be expected to earn” is tied to the concept of “suitable employment”. Section 4(1) of the Act defines “suitable employment’ as:
(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)
Mr Fernandez is no longer employed by Telstra therefore paragraph (b) of the definition applies. This requires us to have regard to “any employment” for which he is suited having regard to the matters listed in paragraph (a).
Telstra contends that the type of security work performed by Mr Fernandez in 2008, patrolling nursing homes and the like, is work for which he is suited. Mr Fernandez disagrees. He contends that he is now totally unfit for any work on account of his back.
Age, experience, training, language and other skills
After completing a course of study, Mr Fernandez was licenced to work in the security industry in 2008. He worked for three months apparently without incident. There is no evidence before us to suggest that he is unqualified to work in that sector or that his age is a barrier to re-entry.
Prior to joining Telstra, Mr Fernandez had worked as a mechanic.
Suitability for rehabilitation or vocational retraining
While the experts agree that Mr Fernandez’s back condition is permanent, there is general agreement that his return to work would be assisted by a general strengthening or work fitness program.
Any other relevant matter
Nature of incapacity:
While not listed as a matter to be taken into account, it is apparent that the nature of Mr Fernandez’s functional restrictions resulting from injury is relevant to identifying work for which he is suited.
In support of his claim that he is unfit for any work, Mr Fernandez points to the medical certificate issued by his treating doctor on 15 January 2010 stating that he is unfit for work indefinitely, as of that date. He claims that he was forced to leave the part-time position he held in the security industry in 2008 because of problems with his back. He did not resile from that claim when taken to evidence that that position came to an end after three months following his involuntary admission to a mental health facility under the Mental Health Act 2007 (NSW).
Drs Bodel and Dalton are of the opinion that that while Mr Fernandez is unfit for moderate or heavy work, he is fit for light work providing he avoids repetitive bending, twisting, lifting over 10 kilograms and strenuous manual handling. Both thought he would be fit to return to the security industry, noting that it involved relatively light work and provided Mr Fernandez the freedom to change his posture at will. Dr Dalton pointed out that rehabilitation providers commonly recommend work of this type for people with lumbar back problems. Dr Bodel thought Mr Fernandez would be able to work full-time after an initial period of “work hardening”. While Dr Bodel agreed that Mr Fernandez could work in the security industry, he thought he would be unfit to work in licenced premises.
Drs Bodel and Dalton have carefully assessed Mr Fernandez and the question of his capacity for work and provided reasons for their opinion. In contrast, Mr Fernandez’s GP has provided no explanation for his opinion that his patient is unfit for any work. Absent such explanation, we prefer the opinion of Drs Bodel and Dalton.
Impact of psychiatric condition
The definition of suitable employment directs the decision-maker to identify work for “which the employee is suited” having regard to those matters listed in paragraph (a). These include “any other relevant matter” (sub-paragraph (a)(iv)). The phrase “any other relevant matter” is wide in scope and in our view encompasses any matter relevant to the class of work for which the employee is suited, including any medical restrictions unrelated to the compensable condition.
There is no argument that Mr Fernandez suffers from a serious psychiatric condition. While apparently it did not impact on his work at Telstra, the evidence suggests that his condition has deteriorated since that time. The medical evidence is somewhat unclear on the extent to which it now affects Mr Fernandez’s capacity for employment. Dr Rees wrote in her report dated 18 March 2011 that Mr Fernandez was “totally incapacitated for work” as a result as his chronic paranoid schizophrenic illness. However in oral evidence, she was more equivocal and stated that while Mr Fernandez was unfit to return to work as a linesman, he might be able to work in an area that was “less risky”, providing he was appropriately medicated. She added that this was a difficult question, especially given that she had only seen Mr Fernandez for 90 minutes. Mr Fernandez’s employment capacity was not specifically addressed by Professor Woods or Dr Lucire.
Conclusion: Compensation payable under section 19
We find the class of work for which Mr Fernandez is suited, if his psychiatric condition is not taken into account, to be full-time work as a security officer of the type described above and unskilled light work that can be performed within the restrictions recommended by Drs Dalton and Bodel. In our opinion, it is not possible to make a final determination of what constitutes “suitable employment” without first obtaining further evidence, including the opinion of Mr Fernandez’s treating psychiatrist.
Given our conclusion that additional evidence is required to determine what constitutes suitable employment, and in the absence of any evidence which would allow us to determine the amount he could reasonably be expected to earn in such employment and his normal weekly earnings, we have decided that the most appropriate course is to remit the reviewable decision made on 25 June 2010 (proceedings no. 2010/4881) to Telstra for determination in accordance with these Reasons.
I certify that the 62 (sixty-two) preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr I Alexander, Member.
.............................[sgd]...........................................
Associate to Senior Member A K Britton
Dated 22 May 2012
Date(s) of hearing 27 and 28 February 2012 and 12 March 2012 Date final submissions received 21 March 2012 Solicitors for the Applicant Mr P Thorsby, Edwards Legal Service Counsel for the Respondent Mr M Snell Solicitors for the Respondent Mr J Pinder, DLA Piper Australia
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