Arumugam and TNT Australia Pty Ltd (Compensation)

Arumugam and TNT Australia Pty Ltd (Compensation) [2017] AATA 2660 (14 December 2017)
Division:GENERAL DIVISION
File Numbers: 2014/5954, 2016/0865 & 2016/0866
Re:Ilanthirayan Arumugam
APPLICANT

AndTNT Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President I R Molloy
Date:14 December 2017
Place:Brisbane

The reviewable decision dated 30 October 2014 and the two reviewable decisions dated 18 December 2015 are set aside and substituted with the following findings:
1. As at 4 September 2014 and presently, the Applicant continues to suffer the effects of the low back injury on 11 April 2013.
2. The Applicant is entitled to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act1988 in respect of the lower back injury on
11 April 2013 from 4 September 2014 to the present time and presently.
3. The Applicant is entitled to compensation under s 19(3) of the Safety, Rehabilitation and Compensation Act 1988 at 75% of his normal weekly earnings without deduction for AE from 4 September 2014 to the present time, and presently, in respect of his low back injury.
4. The Respondent is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the Applicant’s low back condition, which was significantly contributed to by the nature and condition of his employment with the Respondent.
5. The Respondent is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the Applicant’s psychological condition, which was significantly contributed to by his employment with the Respondent.
6. The matter is remitted to the Respondent for calculation of the Applicant’s entitlements as above under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.
7. The Respondent shall pay the Applicant’s legal costs and disbursements in respect of these proceedings under s 67 of the Safety, Rehabilitation and Compensation Act1988.
...................................[Sgd]....................................
Deputy President I R Molloy
CATCHWORDS
COMPENSATION – Compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – claims for lower back injuries - whether the effects of the accepted lumbar injury ceased by 4 September 2014 – where accepted injury was on-going – decision under review set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act1988 ss 4, 5B, 14, 16, 19, 67
CASES
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
REASONS FOR DECISION
Deputy President I R Molloy
14 December 2017
Introduction

The applicant, Mr Arumugam, worked for the respondent, TNT Australia Pty Ltd (“TNT”), from 2007 until September 2014, for most of that time as a dock-hand.
During his time with TNT he reported and lodged claims for workers’ compensation in respect of four injuries all to his lower back. The fourth injury was on 11 April 2013.
On 30 April 2013, a determination was made accepting liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act1988 (“SRC Act”) in respect of the injury sustained on 11 April 2013, described as left lumbar apophysitis.
In September 2014 Mr Arumugam’s workers’ compensation benefits were terminated, on the basis that on-going symptoms or incapacity were related to a pre-existing degenerative condition and not to his work injury in April 2013.
At the same time, the light duties Mr Arumugam was then performing for TNT ceased, and he was laid off. He has not resumed work with TNT in any capacity or found work with any other employer.
There are three decisions the subject of separate applications for review.
Application 2014/5954
By this application (“the 2014 Application”) Mr Arumugam seeks to review the decision, made on 30 October 2014[1], affirming a determination dated 4 September 2014, that he no longer suffers from the effects of the accepted lumbar injury and that liability to pay compensation under ss 16 and 19 of the SRC Act has ceased.
[1] Exhibit 1, T138.
Application 2016/0865
By this application Mr Arumugam seeks to review a decision dated 18 December 2015[2] which affirmed a determination that TNT was not liable to pay compensation pursuant to

s 14 of the SRC Act in respect of Mr Arumugam for an adjustment disorder (the “adjustment disorder claim”).
[2] Exhibit 2, ST20.
Application 2016/0866
By this application Mr Arumugam seeks to review a decision, also dated 18 December 2015[3], affirming a determination dated 10 November 2015, that TNT is not liable pursuant to s 14 of the SRC Act in respect of a lower back ailment or aggravation allegedly sustained due to the general nature and conditions of Mr Arumugam’s employment (the “nature and conditions claim”).
[3] Exhibit 2, ST19.
Issues
In respect of the 2014 Application, the main issue is whether the effects of the accepted lumbar injury of 11 April 2013 ceased by 4 September 2014. This depends substantially on competing medical evidence.
If it is found that the accepted injury was on-going, then there are further questions as to whether or to what extent there is a liability under ss 16 and 19 of the SRC Act having regard, in particular, to Mr Arumugam’s capacity to work and whether he has taken reasonable steps to find work that he is capable of performing.
In the respect of the second application it is accepted that Mr Arumugam does suffer from an adjustment disorder. It is further accepted that TNT’s liability under s 14 of the SRC Act in respect of this claim turns on whether there is liability in respect of the 2014 Application.
The nature and conditions claim depends several matters as well as on the competing medical evidence.
Summary of findings
I have found that Mr Arumugam has not ceased to suffer from the effects of the accepted lumbar injury sustained on 11 April 2013. Consequently the reviewable decision dated

30 October 2014 should be set aside.
I have further found that Mr Arumugam does not have an earning capacity and has not unreasonably failed to seek employment. In consequence the matter should be remitted for determination of TNT’s liability under ss 16 and 19 of the SRC Act.
Consequent upon the finding in respect of the on-going nature of his previously accepted lower back injury, and the concessions at the hearing, the adjustment disorder claim also succeeds and the relevant reviewable decision should be set aside.
I have also found that the reviewable decision in respect of the nature and conditions claim should be set aside.
Facts
Mr Arumugam was born in Sri Lanka in 1972, and is of Indian descent. He completed school in Sri Lanka to approximately Australian grade 12 level.
He completed a diploma course in accounting at a technical college, and then undertook three years of a Bachelor of Accountancy degree at Eastern University in Sri Lanka.
He did not complete the Bachelor’s degree, he says, because of the war in Sri Lanka. In 1997 he came to Australia as a refugee.
From 1998 to 2007 he was primarily employed by a number of supermarket companies, mainly as a produce assistant or produce manager.
In about May 1997 Mr Arumugam commenced employment as a dock-hand with the TNT. His employment was initially on a casual basis through a labour hire company.
On about 4 December 2007 he commenced permanent casual employment directly with TNT working as a dock-hand at the company’s Salisbury and Acacia Ridge depots. Ordinarily he would work 50 to 60 hours per week.
In all, as mentioned, he worked for TNT from May 2007 to September 2014. The four lower back injuries for which he lodged workers’ compensation claims were sustained in November 2009, March 2011, November 2012, and April 2013.
The first three of these injuries generally required a short time off work, and then resumption of work, perhaps on light duties.
In respect of the fourth injury, sustained on 11 April 2013, TNT accepted liability for left lumbar apophysitis under s 14 of the SRC Act, and Mr Arumugam was paid benefits from April 2013 until September 2014.
During that time Mr Arumugam underwent various medical treatment, and returned to work on various light duties, including ultimately office duties.
Mr Arumugam provided a written statement and also gave oral evidence. He described the incident on 11 April 2013. He said he was in the repack area where damaged or broken freight was repacked to a condition fit for transportation.
Mr Arumugam said he was shrink-wrapping a pallet when he experienced pain in his lower back. He continued to work despite the pain and finished his shift.[4]
[4] Exhibit 5, paragraph 21.
The pain progressed during the night and when he woke in the morning the pain in his back was severe.[5] He reported the incident to his manager, Jason Pecko, and saw a general practitioner, Dr Mor, referred by TNT. He was certified as unfit for work to 17 April 2013, and thereafter fit for suitable duties.[6]
[5] Exhibit 5, paragraph 22.
[6] Exhibit 5, paragraphs 23 & 24.
Mr Arumugam was cross-examined on the circumstances of his injury in April 2013. Jason Pecko, his former manager, also gave evidence and was cross-examined.
Mr Pecko said that work in the repack area was not physically demanding. It usually involved attaching one end of a roll of cling wrap to a pallet and walking round the pallet until the wrapping was complete.
He said there was some but not a lot of bending involved. He agreed there was some lifting involved in stacking or arranging items on the pallet.
It was submitted on behalf of TNT that Mr Pecko’s evidence demonstrated that Mr Arumugam’s duties, particularly on 11 April 2013, were not as vigorous or as physically demanding as he asserted.
I think that both Mr Arumugam and Mr Pecko honestly described the work Mr Arumugam was performing, or required to perform, as they perceived it. I do not think Mr Arumugam’s description of what he was doing differed significantly from what Mr Pecko had to say.
I do not think either witness attempted to overstate or minimise the physical nature of the work. My impression was the differences in what they had to say were largely matters of emphasis.
I should say at this stage that I found Mr Arumugam to be an honest witness overall. There were some language difficulties. There were times when he became frustrated with the questioning and obstinate in his answers.
But I do not think Mr Arumugam deliberately attempted to deflect questions or avoid answering them. I should also say I do not think he exaggerated, whether in his evidence or by demeanour, the pain and discomfort he experienced.
In submissions that Mr Arumugam did not present as a credible witness, it was pointed out that Mr Arumugam asserted in his evidence in chief that his lower back pain never went away completely after 2009; that in effect he never had “zero pain”.
This, it was submitted, was at odds with his history as recorded, in particular, in medical reports and clinical notes, where Mr Arumugam is described as experiencing, for example, “intermittent” pain, or pain “regularly”, but not “constant” pain.
Similarly, it was contended that Mr Arumugam’s claim that he experienced constant and persistent lower back pain since the incident in April 2013 was at odds with what he has told medical practitioners.
Dr Mor reported following the April 2013 incident, for example, that Mr Arumugam’s lumbar pain was “getting better”, and a week later that his lower back pain had “resolved”.
Reports of this nature have to be read in context, for example, having regard to Mr Arumugam receiving pain-killers. “Episodes” or “bouts” of pain, have to considered against descriptions indicating constant “discomfort” or “tightness”.
I also note Dr Wallace’s evidence that he is “doubtful that the injury [in April 2013] did resolve despite the GP’s notes”.[7]
[7] Transcript, page 152.45. See also page 154.26.
Having seen and heard Mr Arumugam cross-examined on these and other matters, and taking into account the other evidence, including what I have mentioned above, I am satisfied, as I have said, that he was a credible witness.
I accept his evidence that he did experience on-going lower back pain from 2009, to varying degrees, ranging from tightness or discomfort to much more severe pain requiring him to take time off work.
Mr Arumugam resumed work with TNT after 17 April 2013, working approximately 45 hours per week, with a 10 kg lifting limit. He was told to try to limit the amount of twisting in the course of his duties.
He worked on Apple freight, which involved light scanning and moving of computers and iPhones. There was some bending and twisting and he continued to experience back pain.
Mr Arumugam attended a back-rehabilitation program commencing on 30 September 2013. He says on discharge the psychologist reported he had symptoms of anxiety and moderate depression. He received a total of seven LA injections administered by general practitioners.
In about April 2014 Mr Arumugam commenced office-based work as part of his suitable duties. He says that during this time he was experiencing severe pain. Sitting, standing, and moving around caused him more pain. He said he used to lie on the floor for short periods of time in an attempt to ease the pain.
On 4 September 2014 TNT determined that Mr Arumugam had ceased to suffer from the effects of the injury in April 2013. The decision was made in reliance on a report from Dr Hugh English, orthopaedic surgeon, in July 2014.
Dr English considered Mr Arumugam’s symptomatology by that time was attributable to a pre-existing degenerative low back condition, and not to the injury sustained in April 2013.
On 10 September 2014 TNT informed Mr Arumugam that, as his compensation claim had ceased, TNT was withdrawing his suitable duties and, until he was able to perform his pre-injury duties, he was unable to return to work.
On 30 October 2014, the decision dated 4 September 2014 was affirmed. As I have said, Mr Arumugam has not returned to work for TNT in any capacity or found other employment.
Medical evidence
The respondent relied primarily on the evidence of Dr English. The applicant relied primarily on the evidence of another orthopaedic surgeon, Dr Malcolm Wallace, and to a lesser extent, on reports of a general practitioner, Dr David Copeland. The specialists, as well as providing written reports, gave oral evidence, concurrently, by telephone.
In his initial report, dated 31 July 2014, Dr English said Mr Arumugam had described onset of lower back pain in approximately 2009, which he associated with his duties at work, and since 2013 a gradual increase in symptoms.[8] Dr English considered that by June 2014 the aggravation caused by the injury in April 2013 had ceased, and Mr Arumugam was fit for non-manual or light work.[9] Dr English considered it was reasonable for Mr Arumugam to continue to take analgesics.[10]
[8]           Exhibit 2, page 230-1.
[9]          Exhibit 2, page 237.
[10]         Exhibit 2, page 238.
In questioning Dr English maintained his assessment that Mr Arumugam had temporarily aggravated pre-existing underlying degenerative changes affecting his lower spine, and that the effects of the injury in April 2013 had ceased by mid-2014.
TNT, in support of Dr English’s view, also relied on other reports and findings. These included a CT scan of Mr Arumugam’s lower back on 23 April 2013 suggestive, it was said, of a long-standing condition, and no disc protrusion or spinal stenosis.[11]
[11] Exhibit 1, page 24.
TNT relied on a report of Dr William Ryan, orthopaedic surgeon, dated 18 July 2013, which described Mr Arumugam as experiencing a number of episodes of back pain since 2009, usually brought about by bending and twisting, after which he had returned to work in two to six weeks.[12]
[12] Exhibit 2, page 318.
Reliance was also placed on a report, dated 3 September 2013, of Dr JR Ashwell, orthopaedic surgeon. Dr Ashwell reported that Mr Arumugam had gradual onset of lower back pain and discomfort from 2009, and had a number of episodes of low back pain in the left lumber spine. Dr Ashwell considered Mr Arumugam had a soft tissue ligamentous injury to the thoracic spine area.[13]
[13] Exhibit 2, page 278.
These reports and others, together with Mr Arumugam’s own descriptions from time to time of his condition or symptoms, were referred to in support of Dr English’s view that Mr Arumugam had a history of exacerbating a pre-existing back condition which resolved in time, and that the injury in April 2013 had similarly resolved by mid-2014.
Dr Wallace examined Mr Arumugam in July 2015. He noted Mr Arumugam’s reports of a long history of intermittent lower back pain. Mr Arumugam told Dr Wallace he suffered lower back pain which was worse with bending, lifting and twisting, and radiated to his left lower limb in a non-sciatic radiation. The pain was said to be worse with sitting and standing.
Dr Wallace re-examined Mr Arumugam and reported on 16 August 2016 that the incident on 11 April 2013 was the significant contributing factor to Mr Arumugam’s current state by way of aggravation of a pre-existing condition. Dr Wallace considered that but for the incident in April 2013, Mr Arumugam would still be able to continue to work in at least sedentary or supervisory work or work which involved light manual duties.
Dr Copeland, the general practitioner, provided an undated report in about June 2016. He has been Mr Arumugam’s general practitioner since 2008. He considered Mr Arumugam’s regular lifting and repetitive bending at work would have been a significant contributing factor to his back injuries. He considered the injury in April 2013 continued to cause Mr Arumugam pain, and that he was unfit for work of a physical nature.
2014 Application
Dr English and Dr Wallace each agree that Mr Arumugam had a pre-existing lower back condition.[14] They also agree that Mr Arumugam was asymptomatic prior to 2009.[15]
[14] Transcript, page 138.15-25.
[15] Transcript, pages 122.10; 136.9.
Mr Arumugam’s case is he suffers from an aggravation of his pre-existing degenerative condition affecting his lumbar spine. The word aggravation under the SCR Act includes an acceleration or recurrence: s 4(1).
TNT contends that the 2104 Application, and each application, principally turns on whether Mr Arumugam suffered, or continues to suffer, an “injury” for the purposes of s 5A of the SRC Act.
The enquiry, it was submitted, is to be conducted by reference to s 5B of the SRC Act and, in particular, the definition of disease in sub-section (1), which states:
(1)In this Act:
1“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
Sub-section 5B(2) sets out some of the matters which may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by the employee’s employment.
Sub-section 5B(3) of the SRC Act provides:
(2)In this Act:
“significant degree” means a degree that is substantially more than material.
TNT points out that aggravation means that an existing disease has been made worse, not that it simply has become worse: Ogden Industries Pty Ltd v Lucas.[16] An acceleration connotes the hastening of an underlying disease which, if not invariably, will usually be a progressive one: Casarotto v Australian Postal Commission.[17]
[16] (1967) 116 CLR 537, at 593.
[17] (1989) 86 ALR 399, at 405.
This application turns substantially on the opposing medical evidence of the two orthopaedic specialists. I prefer the medical evidence of Dr Wallace that Mr Arumugam suffered an aggravation of his pre-existing condition on 11 April 2013, falling within the SRC Act, and that aggravation and its effects were continuing on 4 September 2014.

I have had regard to all of the contrary medical evidence. Dr English’s view, as I have said, is that the effects of the aggravation on 11 April 2013 – “any” aggravation or exacerbation occurring on or around that time, as he preferred to describe it - would have ceased by 4 September 2014.
In my view Dr English was too much influenced by what he thought would have happened – and perhaps by what I thought should have happened – rather than focusing on

Mr Arumugam in particular. I thought the evidence of Dr Wallace, and of Mr Arumugam’s long-term general practitioner, Dr Copeland, more directly addressed Mr Arumugam situation.
I accept Dr Wallace’s evidence that that aggravation is ongoing and has prevented Mr Arumugam returning to the type of work he was performing for TNT prior to the April 2013 incident. I also accept that the aggravation which occurred in April 2013 results in, and is the reason for, Mr Arumugam’s continuing need for medication.
Liability was previously accepted in respect of the April 2013 incident. I find that Mr Arumugam did not cease to suffer from its effects after 4 September 2014, and is entitled receive compensation in respect of that injury beyond that date under ss 16 and 19 of the SRC Act.
Adjustment disorder claim
In respect of this application it is conceded that if Mr Arumugam is entitled to continue to receive compensation under the Act in respect of his lower back injury sustained in April 2013, beyond 4 September 2014, then the claim in respect of a secondary psychological condition, namely, adjustment disorder with depressed mood, should succeed.
The concession is rightly made having regard to the medical reports of Dr Duke and

Dr Baruah. I accept the submission on behalf of Mr Arumugam that the date of that injury is 12 June 2014 being the date Mr Arumugam saw Dr Baruah.[18]
[18] Exhibit 1, page 137.
The result is that his application should be remitted for determination of the benefits payable under ss 16 and 19 of the Act.
Nature and conditions claim
This application is to review a decision rejecting a claim that Mr Arumugam’s lower back condition has been aggravated due to the nature and conditions of his employment with TNT.
For Mr Arumugam it was submitted that the nature and conditions of his employment caused is pre-existing condition to become symptomatic constituting an aggravation as referred to in the SRC Act. The claim is that it is not only the injury on 11 April 2013 which causes Mr Arumugam ongoing lower back problems, but the constant and repetitive twisting, bending, and lifting whilst working with TNT.
As I have said it was common ground between Drs English and Wallace that

Mr Arumugam had a pre-existing lower back condition and that he was asymptomatic prior to 2009. In 2009 he had been working with TNT for two years.
The 2009, 2011 and 2012 injuries were all sustained while Mr Arumugam was undertaking his normal duties as a dock-hand. After November 2012, Mr Arumugam was on light or restricted duties.
Under s 5B(1) of the SRC Act an ailment, or an aggravation of such an ailment, suffered by an employee is compensable if it was contributed to, to a significant degree, by the employee’s relevant employment. Section 5B(3) of the Act defines a significant contribution to mean a degree that is substantially more than material.
Section 5B(2)(b) list matters which may be taken into account in determining whether an ailment or an aggravation of an ailment was contributed to, to a significant degree, by an employee’s employment.
TNT submits that Mr Arumugam’s employment was merely the setting in which he experienced symptoms of a progressive and pre-existing underlying degenerative condition affecting his lumbar spine. TNT further submits that Mr Arumugam’s employment did not contribute, to a significant degree, to an aggravation of his underlying degenerative condition.
Again, having heard each of Dr Wallace and Dr English, I prefer Dr Wallace’s evidence, supported to an extent by Dr Copeland, that Mr Arumugam’s employment to a significant degree contributed to rendering symptomatic his pre-existing condition. I do not accept Dr English’s view that Mr Arumugam’s history is “more in keeping with a gradual degenerative process”.
Whilst I do not intend to discuss all of the opposing medical evidence, I should say that I did not think the journal articles or studies relied on by Dr English were particularly helpful. They provided some support in a theoretical sense for Dr English’s opinion of what would have happened. But they did not directly relate to Mr Arumugam’s situation.
For example, one study included leisure time activities, which seemed to me quite different from the long hours of physical work Mr Arumugam was performing. Cross-examination of Dr English exposed this and the other limited usefulness of these publications.
In coming to a decision on this application I have had regard to the matters referred to in
s 5B(2)(b) of the Act.
Mr Arumugam’s employment with TNT was of lengthy duration, starting in 2007. He often worked long hours, often involved in heavy, repetitive physical labour. This weighs in favour of Mr Arumugam’s employment contributing, to a significant degree, to the aggravation suffered.
There is no suggestion of any contributory activities unrelated to Mr Arumugam’s employment.
I take into account Mr Arumugam had a pre-existing lower back condition, which could be said to constitute a predisposition to the aggravation.
I do not accept, however, that the back condition from which he now suffers is purely constitutional, or that his incapacity for work arises only by reason of his pre-existing condition, or that his employment was merely the setting in which he experienced symptoms of that condition.
In all the circumstances I am satisfied that Mr Arumugam’s employment with TNT did contribute, to a significant degree, to an aggravation of his lower back condition, and the date was on or about 11 April 2013.
SRC Act, ss 19 and 16
Mr Arumugam’s claim is to compensation for his incapacity under s 19 of the SRC Act, and to medical expenses under section 16 of the Act. Section 4(9) of the Act contains the meaning of incapacity as follows:
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
Section 19 of the Act contains the method for calculation of compensation benefits. TNT contends that Mr Arumugam has ability to earn income in suitable employment thus reducing the benefits to which he is entitled.
Section 19(4) of the SRC Act deals with the method of determining the amount per week that an employee is able to earn in suitable employment. Relevantly, s 19(4)(f) focuses on whether the employee’s failure to engage, or continue to engage, in employment, or to seek employment, was reasonable in all the circumstances.
Mr Arumugam has not engaged in or personally sought employment since he was stood down by TNT. The medical evidence, including from Dr Wallace, is that notwithstanding his incapacity he has a qualified ability to earn in certain sedentary occupations. Notwithstanding this capacity to work, I am not satisfied that Mr Arumugam’s failure to engage in employment, and in particular to seek employment, has been unreasonable.
TNT employed Mr Arumugam in various roles. Having initially worked as a dock hand, he was moved to lighter manual duties. He was eventually employed by TNT in an office job. I infer that TNT tried to accommodate him but ultimately was not satisfied that he was fit and suitable for any position available.
A Labour Analysis Report was prepared by a consultant, Lisa Rylands, for Konekt Australia Pty Ltd.[19] Ms Rylands noted that Dr Wallace, in his report of 22 July 2015, indicated Mr Arumugam would be suited for supervisory or sedentary work, provided he was able to take regular breaks, and get up, stretch and move around as required.
[19] Exhibit 4.
Ms Rylands considered four job options were suitable for Mr Arumugam, taking account of his experience, skills and experience. They were office administrator, call and contact centre operator, payroll officer, and purchasing and supply logistics clerk.
Mr Arumugam was quizzed on these. It was clear he had language difficulties. On behalf of TNT he was criticised as being unresponsive as a witness. My impression was that he did not follow what was being asked despite the best efforts to keep the questions simple.
It was pointed out that most of job options identified by Ms Rylands required at least reasonable communication skills, something I think Mr Arumugam is lacking. He said he did not write English very well. His evidence was he also lacked relevant computer skills.
Work such as call centre operator does not seem to lend itself to the types of breaks Mr Arumugam requires. It is suggestive of long hours sitting at a work station. He was asked about a sit stand desk. His responses exemplified his language difficulties. Mr Arumugam has no experience as a payroll officer.
I am not satisfied that any of the options referred to in Ms Rylands’s report is appropriate or reasonably available to Mr Arumugam. I have taken into account all the evidence and the submissions concerning employment reasonably available. I have also taken into account other evidence, such as video surveillance, which shows amongst other things that Mr Arumugam is capable of driving a motor vehicle a short distance.
The evidence is that Mr Arumugam is registered with CIM. This was said to be engaged by or related to Centrelink to find people employment. Nothing has been found for Mr Arumugam.
I am satisfied that Mr Arumugam was a hard worker. He returned to work when he could, in whatever capacity he could, following several injuries. He now genuinely despairs of not being able to return to work in any capacity. It concerns him how this has affected his family and, in particular, how his daughters see him.
I am not satisfied, as I have said, that there is or was suitable employment available to Mr Arumugam which he has unreasonably failed to seek.
As to medical expenses, I find that the medication Mr Arumugam described, Lyrica, Panadeine Forte, and some analgesics, are reasonable in terms of his on-going work-related condition. Some physiotherapy and acupuncture is also reasonable.
Conclusion
The reviewable decision dated 30 October 2014 and the two reviewable decisions dated 18 December 2015 are set aside and in substitution I find that:
1.As at 4 September 2014 and presently, the Applicant continues to suffer the effects of the low back injury on 11 April 2013.
2.The Applicant is entitled to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act1988 in respect of the lower back injury on
11 April 2013 from 4 September 2014 to the present time and presently.
3.The Applicant is entitled to compensation under s 19(3) of the Safety, Rehabilitation and Compensation Act 1988 at 75% of his normal weekly earnings without deduction for AE from 4 September 2014 to the present time, and presently, in respect of his low back injury.
4.The Respondent is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the Applicant’s low back condition, which was significantly contributed to by the nature and condition of his employment with the Respondent.
5.The Respondent is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the Applicant’s psychological condition, which was significantly contributed to by his employment with the Respondent.
6.The matter is remitted to the Respondent for calculation of the Applicant’s entitlements as above under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.
7.The Respondent shall pay the Applicant’s legal costs and disbursements in respect of these proceedings under s 67 of the Safety, Rehabilitation and Compensation Act1988.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

................................[Sgd]........................................
Associate
Dated: 14 December 2017

Date of hearing: 16 May 2017

Counsel for the Applicant:

Counsel for the Respondent:

Solicitors for the Applicant:

Mr Ray Ternes

Mr Peter Woulfe

Ms Kelly Morrow
Maurice Blackburn Lawyers

Solicitors for the Respondent: Ms Rachael Sutter
Moray & Agnew Lawyers

[2017] AATA 2660

14 December 2017

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Duty of Care

Negligence

Remedies

Statutory Construction