Cakmak and Austalian Postal Corporation - [2001] AATA 393

DECISION AND REASONS FOR DECISION [2001] AATA 393

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/525

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ERBAY CAKMAK
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr B.G. Gibbs, AM, Senior Member Mr I.L.G. Campbell, MC, Member Mr D.L. Elsum, AM, Member

Date10 May 2001
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
COMPENSATION – bruised lower back – whether incapacitated for work – liability limited to reasonable medical expenses – cease effects determination – decision affirmed.
Words and Phrases
Safety, Rehabilitation and Compensation Act 1988, ss. 4(1); 6(1); 14(1); 16(1); 16(2)

REASONS FOR DECISION

10 May 2001 Mr B.G. Gibbs, AM, Senior Member Mr I.L.G. Campbell, MC, Member Mr D.L. Elsum, AM, Member
Introduction

This is an application by Mr Erbay Cakmak, for review of a reviewable decision of the respondent dated 22 March 2000, being a decision to affirm an earlier decision of the respondent dated 13 December 1999.
The decision of the respondent dated 13 December 1999 stated as follows:
"On the basis of the evidence available and under Section 14(1) of the SRC Act, liability has been accepted for "BRUISED LOWER BACK" and the date of injury has been determined as 22 November 1999.
Any reasonable medical expenses for your accepted work related condition will be considered for payment.
Please note that under Section 16, liability on this claim has been accepted for reasonable medical expenses only, and not any incapacity for work, as Dr Brott has indicated that you were fit for work with restrictions. Therefore, the time off work you have taken will be treated as sick leave."

Representation

At the hearing Mr Cakmak was represented by Mr Moyle, of Counsel, and Mr A. Moulds, of Counsel, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to some of which it shall be necessary to refer, was also received in evidence.
Witnesses
Evidence was given by:

Mr Cakmak, the applicant
Dr S.R. Wulfsohn
Mrs Sevil Cakmak, the wife of the applicant
Dr D.M. Billett
Dr T.J. Brott
Mr D.N. Staniforth, an employee of the respondent
Mr S. Mihalas, an employee of the respondent

Background

Mr Cakmak was born on 28 January 1966.
On 25 November 1999, he lodged a claim for compensation form (T5/11-13) claiming that on 22 November 1999, whilst employed by the respondent, he suffered "left back bruises" in the course of that employment.
On the claim form Mr Cakmak described the cause of his condition as follows:
"I am on my break. I was going get some coffee … but I fell steep steps in my back."
On 22 November 1999, Dr T. Brott diagnosed Mr Cakmak as suffering a bruised low back, and certified him as fit to continue working with some restrictions until 24 November 1999. Those restrictions included no lifting of more than five kilograms; no repetitive bending or lifting and no forceful pushing or pulling. A rehabilitation plan was formulated to implement these restrictions on 25 November 1999 (T8/19-20).
Mr Cakmak also attended his general practitioner, Dr S.R. Wulfsohn, on 22 November 1999, who certified him unfit for any work from 22 November 1999 until 24 November 1999, due to "soft tissue injury to lower back" (T19/45).
On 13 December 1999 the respondent accepted liability for bruised lower back sustained on 22 November 1999. Liability was accepted for reasonable medical expenses only and not for any incapacity for work, as Dr Brott indicated that Mr Cakmak was fit for work with restrictions. The time that Mr Cakmak was absent from work was treated by the respondent as sick leave.
On 10 January 2000, Mr Cakmak requested a reconsideration of the decision dated 13 December 1999.
As indicated, on 22 March 2000 the decision dated 13 December 1999 was affirmed (T15/32-33).
On 26 May 2000 the respondent determined as follows:
"1.Pursuant to the provisions of Section 16 of the abovenamed Act it has been deemed unreasonable to accept the costs related to a CT examination conducted on 4 May 2000. Liability in respect of costs for the CT scan on 4 May 2000 is denied.
2.Furthermore, I find that Australia Post is no longer liable to pay compensation to the said Erbay Cakmak for the above condition on and from 26 May 2000 as Independent Specialist medical opinion has stated that the aggravation has now ceased. Liability has therefore ceased." (Exhibit R1)

It is understood Mr Cakmak has not appealed against this determination. Therefore, there is presently in force a cease effects determination, on and from 26 May 2000. That being so, the question of incapacity, if any, is from the date of injury, 22 November 1999, to 26 May 2000.

It is noted that the respondent gave the following reasons for the decision to affirm the determination dated 13 December 1999:
(a)It was noted that on 22 November 1999, whilst the applicant was on a tea break, he may have slipped on stairs and then reported that he had suffered left back pain.
(b)On the same day the applicant was examined by Dr Brott who diagnosed his condition as bruised back and certified him fit to return to full time duties with restrictions.
(c)Again on 22 November 1999, the applicant was seen by Dr Wulfsohn who diagnosed his condition as soft tissue injury to lower back and certified him fit to return to work on 24 November 1999.
(d)Upon reviewing the applicant on 29 November 1999 Dr Brott confirmed his diagnosis of the applicant's condition as bruised lower back and again certified him fit to return to work on full hours with restrictions.
(e)It is also noted that the applicant had been absent from work for other medical reasons, which were not work related.
(f)Considering that Dr Brott was well informed about alternative duties available to the applicant at his facility, the reviewing officer preferred to rely on his certification for the applicant's capabilities to work.
Therefore, considering that Dr Brott had certified the applicant as capable of returning to full time work on alternative duties, the reviewing officer was satisfied that the applicant was capable of returning to work to perform alternative duties. Therefore the decision to accept his claim for compensation for payment of medical treatment only is correct."
It is further noted that the respondent gave the following reasons for the "cease effects" decision dated 26 May 2000:
"A report dated 20 April 2000 was provided by Independent specialist, Dr Derrick Billett, an Orthopaedic Surgeon following an examination on 20 April 2000 in which he indicates that he considers that you have fully recovered from any soft tissue injury to your lower back. A copy of the report was enclosed in previous correspondence, dated 2 May 2000.
In summary Mr Billett stated the following:
"… Mr. Cakmak probably sustained a soft tissue injury to his lower lumbar region, but there are minimal deficits at this stage. There is no evidence of an intervertebral disc prolapse or nerve root irritation".
When asked about the employment contribution to your condition Mr. Billett states:
"I would not consider that his employment is still materially contributing to his condition as the examination was almost within the normal range, with very minimal deficits.
It is possible that, noting his age, Mr. Cakmak has pre-existing degeneration within the discs themselves and, in addition to the soft tissue injury sustained in November 1999, he could have aggravated these changes. However, the examination produced minimal deficits. If Mr. Cakmak had aggravated underlying degenerative changes, I consider that the effects of the aggravation have now ceased.
I consider that the condition was temporary and I consider that Mr. Cakmak has almost completely recovered from the soft tissue injury sustained, noting the almost normal examination findings.
Mr. Cakmak has been having physiotherapy treatment for over four months, but I would have to query the benefit of this treatment. The only treatment I would suggest would be that he continues with his normal routine of exercising in a heated pool …
… I consider that Mr. Cakmak is capable of undertaking his normal employment duties and his normal hours.
I consider that Mr. Cakmak is now fit to resume his normal employment duties without restrictions".
To be eligible for ongoing compensation benefits pursuant to the provisions of Section 14 of the SRC Act 1988 it must be demonstrated that you continue to suffer from an injury as defined in Section 6 of the SRC Act 1988. After taking into consideration the independent specialist opinion of Mr Derrick Billett, I find your employment with Australia Post no longer materially contributes to the reported back condition that you may suffer and therefore liability for this condition has ceased on and from 26 May 2000.
I am also in receipt of a medical account from the Melbourne Diagnostic Imaging Group indicating that a CT was taken of your spine on the 4 May 2000. Given that Mr Billett indicated in his report of the 20 April 2000 that any work contribution had ceased, it has been deemed unreasonable to accept the costs related to this examination. Payment for this examination has been denied. The account is returned to you for your action and settlement."

Relevant Legislation

Section 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), provides that Comcare is liable to pay compensation in accordance with the Act, in respect of an injury suffered by an employee, if the injury results in death, incapacity for work, or impairment.
Section 4 of the Act states that:
" '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."
Section 6 of the Act sets out a number of circumstances in which an injury to an employee, shall be treated as having arisen out of, or in the course of his or her employment.
Section 16 of the Act provides that, 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. The liability on the part of Comcare applies whether or not the injury results in death, incapacity for work, or impairment.
It is convenient at this point to record that the statement made by the respondent in its reasons for the "cease effects" determination dated 26 May 2000, concerning the operation of sections 6 and 14 of the Act, is found by the Tribunal to be correct.
The 22 November 1999 Incident
The respondent does not seek to deny that on 22 November 1999 Mr Cakmak, while in the employ of the respondent, suffered an injury when he slipped on some stairs at his workplace.
Nor does the respondent submit that Mr Cakmak has never been incapacitated for work. What the respondent does submit, however, is that at all times Mr Cakmak has been fit to perform full hours of work, albeit on restricted duties.
As we have already recorded, the respondent accepted limited liability in the form of reasonable medical expenses only (T11/27), however, as we have also recorded, the respondent later determined (Exhibit R1) that Mr Cakmak's employment with the respondent no longer materially contributed to his reported back condition and that, as a consequence, liability for that condition ceased on and from 26 May 2000.
Evidence – Mr Cakmak
When he experienced the fall at work on 22 November 1999, Mr Cakmak landed on his buttocks. His evidence was that he lay where he fell for some time until assisted by two fellow employees.
Later that day arrangements were made by the respondent for Mr Cakmak to see a "facility nominated doctor", Dr Brott.
Dr Brott indicated to Mr Cakmak that he could return to work on restricted duties.
However, on the same day Mr Cakmak consulted his own GP, Dr Wulfsohn, who gave him a medical certificate for two days off work. Mr Cakmak stated that after seeing Dr Brott he also attended a physiotherapist, whose name he could not recall, but who told him he needed a "couple of weeks" to get well.
It was Mr Cakmak's assertion that he has since had many days off work because of his back condition.
As we have indicated, it is common ground that Mr Cakmak's reasonable medical expenses have been accepted for payment up to and including 25 May 2000, but that from the time of his injury to 25 May 2000 he has not been paid any compensation for time off work.
At the time of his fall on 22 November 1999 Mr Cakmak's normal hours of work were 1.30 am to 8.00 am.
It was Mr Cakmak's evidence that before his fall on 22 November 1999, he played a lot of sport, including weightlifting, soccer, swimming, some jogging. Before the fall he could swim about 300 metres. He was also in the habit of running every day. However, since the fall he can manage to swim only maybe 20 metres and has had to give up running completely. All of this, he asserted, is because such activity causes pain in his back. He has also given up soccer and weightlifting, for the same reason.
Mr Cakmak stated that his duties at work are essentially those of a mail sorter, and if he sits down for too long while working he gets back pain. The same problem occurs if he has to remain standing for a few hours.
Mr Cakmak said that whenever he has taken days off work, he has always had a certificate from Dr Wulfsohn, and that he has always given the certificates to his supervisor.
Mr Cakmak, who was born on 28 January 1966, is married with two children, aged seven months and two years. In recent times the major financial support for the family has come from Mr Cakmak's wife. Mr Cakmak also contributed to the family income.
Apart from asthma, which he first experienced in 1991 or 1992, he has no other medical conditions. Sometimes he has to have time off work because of the asthma.
Mr Cakmak stated that the level of pain in his back varies. Sometimes "it gets worse, sometimes all right – depends what I am doing".
Mr Cakmak agreed that there is plenty of work that he could do at Australia Post, which allowed for the restrictions recommended by Dr Brott, for example no lifting above 5 kilograms; no repetitive bending or lifting; that he could sit or stand as required; no forceful pushing or pulling.
On 24 November 1999 Mr Cakmak again attended Dr Brott, who reiterated his opinion that he was fit for work on the same restrictions previously recommended.
On 25 November 1999 a rehabilitation plan was drawn up. The plan, which was signed by Mr Cakmak, incorporated the restrictions recommended by Dr Brott (T8/19-20).
Mr Cakmak asserted, however, that the rehabilitation plan was not successful, because his supervisors "started pushing me", meaning that although he was on restricted duties he was not permitted, for example, to remain seated. It was his view that a number of supervisors took no notice of the plan. He further stated that it was because of this he went back to Dr Wulfsohn, telling him that the people at his workplace were not complying with the plan.
Mr Cakmak said that when he went back to see him, Dr Wulfsohn examined his back and then certified him to be unfit for any work duties from 26 November 1999 to 28 November 1999 (T18/47). Dr Brott further certified that he expected Mr Cakmak to be fit for normal duties from 28 November 1999.
Mr Cakmak again saw Dr Wulfsohn on 30 November 1999, telling him that he still had "a sore back". The doctor gave Mr Cakmak a further certificate, for time off work completely from 28 November 1999 to 2 December 1999.
It is understood that Mr Cakmak did not return to work on 3 December 1999, but instead took sick leave until 15 December 1999.
Mr Cakmak said that he commenced employment with the respondent on 27 January 1999. It is noted that his employment records show him as having worked for only 10 days in October 1999. In November 1999, prior to his accident, he took six days sick leave and worked for only eight days.
In February 1999 Mr Cakmak worked 19 days and took two days sick leave. In March 1999 he worked 22 days and took one day's sick leave. In April 1999 he worked 20 days and had two days sick leave.
In May 1999 Mr Cakmak took three days sick leave plus one day of special leave. In June 1999 he took four days sick leave and worked a total of 16 days.
In July 1999 Mr Cakmak took six days sick leave and worked a total of 16 days. In August he took three days sick leave and worked 19 days.
In September 1999 Mr Cakmak took five days sick leave plus one day's leave without pay. During the month he worked 16 days. In October he took five days sick leave and worked a total of 10 days.
It was Mr Cakmak's assertion that on the days he took sick leave, either he or his wife or children were ill.
Mr Cakmak's wife Sevil is also employed by the respondent, her duties being those of a Process Line Manager Training Officer.
As indicated earlier, Mr Cakmak and his wife have two children.
As indicated earlier, Mr Cakmak's hours of work during the whole of his employment with the respondent have been from 1.30 am to 8.00 am.
Up to the time her daughter was born, Mrs Cakmak worked from 6.00 pm to 3.00 am. Since the birth of her daughter in November 1998 she has worked from 6.00 pm to 2.00 am.
In December 1999 Mr Cakmak took six days sick leave; nine days off because of his back, and worked a total of seven days. In January 2000 he had 11 days sick leave (not counting time off work because of his back), and worked a total of two days.
In February 2000 Mr Cakmak took eight days sick and two days special leave. He also had some other time off because of his back, and worked one day only. In March 2000 he took 12 days sick leave which was not related to his back, and worked a total of five days.
In April 2000 Mr Cakmak took six days sick leave and worked a total of six days. In May he took eight days sick leave and worked a total of 14 days. In June Mr Cakmak took 17 days sick leave, working a total of five days. In July 2000 he worked three days only, the remainder of the month being either sick leave or leave without pay.
In August 2000 Mr Cakmak worked six days and had 12 days leave without pay. Also five days were certified by his doctor in respect of his back, and he worked a total of nine days. In October 2000, Mr Cakmak worked for one day only, the remainder of the month was taken off as sick leave, or leave without pay. In November 2000 Mr Cakmak did not work at all.
It is understood that the physiotherapist whom Mr Cakmak attended after he saw Dr Wulfsohn on 22 November 1999, was Ms Yeung. Mr Cakmak saw her on 17 December 1999, some three weeks after his fall at work. In her report to Dr Wulfsohn, Ms Yeung recorded that Mr Cakmak had gained good relief with physiotherapy and prescribed exercises. She further reported that Mr Cakmak no longer had pains at work and that he has a full range of movement.

Mr Cakmak saw Dr Wulfsohn on 5 June 1999, who gave him one or two days off work. Apparently this was related to the fact that Mr Cakmak's daughter had been admitted to hospital with asthma, an event which disturbed Mr Cakmak.
Two days later, on 7 June 1999, Mr Cakmak saw Dr Uluca complaining of a sore throat and cough for three days. The doctor examined him, recording that his chest was clear and gave him a certificate for that particular day. Mr Cakmak went back to see Dr Uluca, who recorded that he was still unwell and that he had issued a medical certificate.
On 12 June 1999, Mr Cakmak attended Dr Monk, who gave him a medical certificate for a sore throat.
On 14 June 1999 Mr Cakmak saw Dr Wulfsohn. While it is not clear from the doctor's records what Mr Cakmak complained of, nevertheless it is clear the doctor gave him a medical certificate backdated from 13 June, to 16 June 1999.
When it was put to him that he would often go from one GP to another, getting further sick leave without telling them that he had just had sick leave from a previous GP, Mr Cakmak replied from this was "not very often".
Mr Cakmak also confirmed that because of their respective work hours, he and his wife experienced problems managing their household and that this sometimes gave rise to the need for either him or his wife to take sick leave to enable them to look after the children.
Mr Cakmak further confirmed that sometimes he had "manipulated" the sick leave system, either with or without pay, in order to look after the children.
Mr Cakmak said that he was presently on medication for his back. This, he said, was in the form of tablets (Naprosyn) prescribed by Dr Wulfsohn a couple of months ago. He takes one tablet per day as required for back pain. When asked how many tablets he would have taken during 1999, he said "I didn't even finish the box".
As indicated earlier, Mr Cakmak said that amongst other physical activities he did weightlifting. He stated that he did this at a gymnasium and that he had been able to press 50 to 60 kilos both in a bench press and snatch. He had done this regularly, about three or four times, twice a week. He asserted that he had never been told that weightlifting could result in long-term damage to his back.
Evidence – Dr Wulfsohn
Dr Wulfsohn is Mr Cakmak's GP and has treated the family for a period of some ten years.
The doctor stated that as a result of his fall Mr Cakmak's back was quite sore, but that by February 2000 he had improved "quite a lot". Since then, however, he has had exacerbations after sitting or standing for long periods of time.
In late January 2000 Dr Wulfsohn referred Mr Cakmak to a psychologist for pain management.
A CT scan of Mr Cakmak's lumbar spine was carried out on 4 May 2000. The scan showed (Exhibit A2) a minor focal left postero-lateral L5-S1 disc bulge with minor involvement of the left S1 nerve root.
It was Dr Wulfsohn's opinion that the CT scan finding is probably consistent with the fall which Mr Cakmak suffered on 22 November 1999.
Dr Wulfsohn said that when he saw him on 22 November 1999 following his fall, Mr Cakmak had a full range of movement of his lumbar spine with pain and that he was tender over the lumbar vertebra. There was no sign of nerve root irritation and no signs of any referred pain.
It was Dr Wulfsohn's evidence that clinically he has found nothing to suggest that Mr Cakmak has a disc injury.
When his attention was invited to the physiotherapy report of Ms Yeung (see paragraph 59 above), Dr Wulfsohn stated that this was what he would have expected.
In addressing the reasons for the numerous medical certificates that he issued for Mr Cakmak, Dr Wulfsohn agreed that it could be seen as strange, on the many occasions when the certification period was running out, that Mr Cakmak would return again, with some other complaint.
Evidence - Mrs Cakmak
As indicated earlier, Mrs Sevil Cakmak, the wife of Mr Cakmak, is a Process Line Manager Training Officer employed by the respondent.
Mrs Cakmak stated that from September 1999 to January 2000 her mother-in-law lived with her and her husband and helped with the two children and the housework. In January 2000 her mother-in-law returned to Cyprus, returning to Australia in July 2000. It is understood that in December 2000 she again returned to Cyprus.
Mrs Cakmak said that prior to his fall in November 1999, her husband and their son played soccer and went swimming together. Now, however, her husband comes home 10 or 15 minutes later, complaining of pain. On one occasion she thought he had suffered a stroke. He is also tired when he comes home from work. He is also affected by asthma. He carries a ventolin "puffer" with him and occasionally he requires the use of a Nebuliser, both at home and at work.
Evidence – Dr Billett
Dr Billett is an Orthopaedic Surgeon who examined Mr Cakmak for the purposes of these proceedings on 20 April 2000.
In a report dated 28 September 2000 (Exhibit R8) to the respondent Dr Billett stated as follows:
"I acknowledge receipt of your letter of 6 September 2000 and the photocopy of a CT scan study of his lumbar spine dated 4 May 2000, received Tuesday 26th September 2000.
The X-ray report states that at the L5/S1 level there is a small left focal disc bulge, with minor involvement of the left S1 nerve root, but no other abnormalities were noted.
It should be noted that during my assessment of Mr Cakmak on 20 April 2000, the clinical examination did not produce any evidence of an intervertebral disc prolapse or nerve root irritation and, in fact, the examination was almost within the normal range, except for his complaint of discomfort while executing active spinal movements, as well as his complaint of mild tenderness during palpation at the L5/S1 level.
It should be noted that the CT scan report should be read in conjunction with the clinical findings. The bulge noted on the CT scan would probably be a degenerative bulge, noting that Mr Cakmak is 34 years of age. As stated in the World literature, degenerative changes occur within the discs in the early twenties."

When asked in evidence whether the report referred to above is consistent with the physiotherapy report of Ms Yeung (see paragraph 59 above), Dr Billett confirmed that this was so. He further confirmed that the physiotherapy report was consistent with a soft tissue injury not involving the disc having occurred. In doing so he stated:

"Well, you see with the fall, three things can happen, four things can happen. First of all you can fracture or dislocate the spine which hasn't happened to him; secondly, you could have a soft tissue injury which would be like sore ligaments from which he can recover; thirdly, you can have a disc prolapsing, hitting the nerve, and then you will have pain down the leg with pins and needles, numbness and you will find clinical signs of pressure on the nerves and that has not happened to him. Then, fourthly, we all get older and get old not at 40 or 50, we get old in fact round about 18, 19 or 21, that's when a disc actually alters its character. Now this has been shown well in the world literature, that the water content of a disc will be less at that stage, which you will see on the MRI, then on the person. So if you have a fall you can actually – a fall, you can make those signs painful and that's probably what happened to him. He had a soft tissue injury from which he recovered, at the same time he probably aggravated some degeneration within the disc itself."

Dr Billett gave it as his view that the bulge shown on the CT scan suggested a degenerative buldge.
Evidence – Dr Brott
Dr Brott practices in the field of occupational health. As recorded earlier, he first saw Mr Cakmak on 22 November 1999, the day Mr Cakmak had his fall.
The doctor again saw Mr Cakmak on 24, 26 and 29 November 1999. Upon examination on 22 November 1999 Dr Brott recorded that there was slight tenderness only on the lower lumbar region. He also recorded some pain on forward flexion at about 80 per cent of normal range. There was also slight pain on extension. Lateral movement was fine. The diagnosis made by Dr Brott on 22 November 1999 was some bruising, although there was no visible bruising present. He assessed Mr Cakmak as fit for full duties with restrictions. The doctor recorded that when he saw him on 24, 26 and 29 November 1999 Mr Cakmak said he was still experiencing pain; that he had tried taking Panadol but with no effect, and that he felt tired. Dr Brott stated that when he saw him on 29 November 1999, he told Mr Cakmak that he could not support him not attempting to work. As a result of this the doctor said Mr Cakmak told him he would consult his local doctor. Dr Brott did not see Mr Cakmak after 29 November 1999.
Evidence – Mr Staniforth
Mr Staniforth is presently the Night Manager at the Melbourne GPO Box Room. He held that position in an acting capacity, on 22 November 1999.
Mr Staniforth stated that the duties identified in the rehabilitation plan prepared for Mr Cakmak were consistent with the medical guidelines set out in that document. Mr Staniforth was emphatic that at no time was Mr Cakmak asked to perform duties that were not in accordance with the medical guidelines. He could not recall Mr Cakmak ever complaining that he was being asked to perform duties that were inconsistent with the plan.
Findings
Having considered the material before it the Tribunal makes the following findings:

That on 22 November 1999 Mr Cakmak suffered an injury within the meaning of the Act;
That on 22 November 1999 Dr Brott diagnosed Mr Cakmak's condition as "bruised back" and certified him fit to return to full-time work but with restrictions;
That on 22 November 1999 Dr Wulfsohn diagnosed Mr Cakmak's condition as "soft tissue injury to lower back" and certified him fit to return to work as of 24 November 1999;
That on 29 November 1999 Dr Brott confirmed his diagnoses of Mr Cakmak and again certified him fit to return to full-time work, but with restrictions;
That on 25 November 1999 a rehabilitation plan was signed by Mr Cakmak. The plan incorporated the restrictions recommended by Dr Brott;
That a CT scan carried out on 4 May 2000 showed a minor focal left postero-lateral L5-S1 disc bulge with minor involvement of the left S1 nerve root;
That since November 1999 Mr Cakmak has been off work for a considerable number of days.
That on 13 December 1999 the respondent accepted liability for bruised lower back sustained on 22 November 1999, such liability being limited to reasonable medical expenses only and not for any incapacity for work;
That on 26 May 2000 the respondent determined that Mr Cakmak's employment no longer materially contributes to his back condition and therefore ceased liability for that condition on and from 26 May 2000.

It is our view that at no time since 22 November 1999 has Mr Cakmak been incapacitated for full-time work and that the reasons for him taking so many days off work since that date are not related to his employment by the respondent.
We also record that we have preferred the opinion of Dr Billett that the bulge noted on the CT scan of Mr Cakmak's lumbar spine dated 4 May 2000, was probably a degenerative bulge. We further record that while the CT scan reports minor involvement of the left S1 nerve root, the clinical examination conducted by Dr Billett (whose evidence we prefer), did not produce any evidence of nerve root irritation. There is no evidence to support Mr Cakmak's assertion that certain supervisors took no notice of his rehabilitation plan, involving as it did restrictions recommended by Dr Brott.
Decision
The decision of the Tribunal will be that the decision under review is affirmed.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr B.G. Gibbs, AM, Senior Member
Mr I.L.G. Campbell, MC, Member
Mr D.L. Elsum, AM, Member
Signed:.....................................................................................
  Personal Assistant
Date/s of Hearing  1/12/00 & 22/3/01
Date of Decision  10/5/01
Counsel for the Applicant        Mr Moyle
Solicitor for the Applicant         Agriola, Wunderlich & Associates
Counsel for the Respondent    Mr A. Moulds
Solicitor for the Respondent    Australian Government Solicitor