French and Military Rehabilitation and Compensation Commission
[2005] AATA 1155
•22 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1155
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1223
Nº V2004/1303GENERAL ADMINISTRATIVE DIVISION Nº V2005/570
Re: MICHAEL GERRARD FRENCH
Applicant
And: MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 22 November 2005
Place: Melbourne
Decision:1. In application numbers V2004/1303 and V2005/570 the Tribunal sets aside the reviewable decisions and remits the matters to the Military Rehabilitation and Compensation Commission to enable the compensation payable to the applicant, as a consequence of his incapacity, to be calculated in accordance with s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the "SRC Act").
2.In application number V2003/1223 the Tribunal affirms the reviewable decision.
3.In application numbers V2004/1303 and V2005/570, under s 67(9) of the SRC Act, the Tribunal orders the respondent to pay the applicant the costs of the proceedings in accordance with the Tribunal’s General Practice Direction, unless the parties otherwise agree.
(sgd) Egon Fice
Member
COMPENSATION – lower back injury – compensation for injury resulting in incapacity for work – proof of incapacity – amount employee is able to earn in suitable employment
Safety, Rehabilitation and Compensation Act 1988 s 19(3)
Sleep apnoSafety, Rehabilitation and Compensation Act 1988 s 19 (3)
Compensation (Commonwealth Government Employees) Act 1971
REASONS FOR DECISION
22 November 2005 Mr E. Fice, Member
1. All three applications before the Tribunal arise out of a claim by Mr French for incapacity payments for a back injury, following a decision of the Tribunal made on 26 February 2003 in Re French and Department of Defence [2003] AATA 187 (“French”). After that decision, Mr French claimed that his incapacity for work since his discharge from the Army in 1984 must be accepted without further evidence of incapacity to work. By a reviewable decision made on 18 September 2003, a review officer with the Military Compensation and Rehabilitation Service (“MCRS”) declined to accept that the findings of the Tribunal in French, without more, entitled Mr French to incapacity payments.
2. After Mr French had obtained some medical certificates and reports from his treating general practitioner and a consultant orthopaedic surgeon and occupational physician, a delegate of MCRS affirmed the decision to pay Mr French incapacity payments pursuant to s 19 (3) of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) of $51.02 per week between 18 May 2004 and 30 June 2004; and $52.91 between 1 July 2004 and 4 July 2004.
3. Mr French made a further claim for incapacity payments for the period between 1988 and 6 May 2004 on the basis of partial incapacity; and from 7 May 2004 to the date of his application and continuing, based on total incapacity for work.
4. A delegate of MCRS affirmed the decision that Mr French was not incapacitated for employment due to the effects of his compensable condition between 1 January 1988 and 31 January 2000 and accepted Mr French’s partial incapacity for employment from 1 February 2000 to 28 December 2004.
5. Mr French seeks review of all three decisions.
6. Mr M Carey of Counsel appeared on behalf of Mr French and Mr I Gourlay of Counsel appeared on behalf of the Military Rehabilitation and Compensation Commission (“MRCC”). The Tribunal had before it documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and exhibits tendered by the applicant (A1 to A4) and the respondent (R1 to R5).
BACKGROUND
7. Mr French first brought an application to the Tribunal in 2001 in respect of a lower back injury arising out of military service. The Department of Defence denied that it was liable to pay compensation to Mr French from 26 August 1997 as a result of his injury. The Tribunal set aside the decision under review and in substitution decided that under the Compensation (Commonwealth Government Employees) Act 1971, the Department of Defence was liable to pay compensation to Mr French in respect of an injury to his lower back sustained on 23 July 1983 and that the liability continued.
8. Armed with the decision the Tribunal made on 26 February 2003, Mr French’s solicitors wrote to MCRS on 26 August 2003 stating that the Tribunal found that Mr French had a high degree of incapacity for work. The solicitors said that because Mr French’s incapacity for work since discharge from the Army had been established; his claim must be accepted by MCRS without further evidence of incapacity. In affirming the decision made by a delegate of MCRS on 4 September 2003, the review officer, in a letter dated 18 September 2003, rejected Mr French’s solicitors claim. He said that the Tribunal did not make any findings of fact with respect to past, present and future incapacity for employment. The review officer stated that although the Tribunal accepted expert medical evidence that Mr French had a high degree of incapacity for work, this did not constitute a finding of an ongoing entitlement to incapacity payments. The review officer stated that the Tribunal’s decision could not be implemented in the absence of certificates of incapacity from a legally qualified medical practitioner. He also pointed out that Mr French had, since his accident, undertaken remunerative employment and that there could be no entitlement to incapacity payments for periods where there was no incapacity for employment.
9. Mr French’s solicitors provided MCRS with a medical certificate evidencing Mr French’s incapacity for work between 7 May 2004 and 4 July 2004. They also provided two reports from Dr Robert Robinson, Mr French’s treating general practitioner. Dr Robinson stated that Mr French ceased work as a disc jockey (DJ) on about 1 May 2004 as he could no longer manage the long drives to Shepparton, where he was then employed, and that he could not stand for long periods as required by his work. Dr Robinson also treated Mr French after he had a “flare up” of low back pain on 13 July 2004 which resulted in him being hospitalised for a week. Dr Robinson did not advise Mr French to cease his employment. Dr Robert Hart, a consultant orthopaedic surgeon and occupational physician, also examined Mr French on 24 June 2004. He reported that Mr French was capable of part-time sedentary work but that he was unfit for his pre-injury duties. After discharge from the Army, Mr French was employed as a plumbing/hardware storeman until his back injury no longer permitted that work. In late 1987 he obtained part-time work at hotels and night clubs working as a DJ. He continued with that work until May 2004 when he said that he could no longer work as a DJ due to his back injury.
10. A delegate of MCRS formed the opinion that Mr French was not totally incapacitated for work and that he was able to work two nights per week as a DJ, earning $500.00 per week. The delegate also said that there was no evidence that Mr French was unfit for any duties when he voluntarily withdrew his services as a DJ at the Sherbourne Terrace Hotel Night Club (Station One) at Shepparton where he was then working two nights per week. The delegate of MCRS also had the benefit of a further report from an orthopaedic surgeon, Mr Terence Hillier, who examined Mr French on 17 August 2004.
11. After examining Mr French’s claim for the period 1 January 1988 to 31 January 2000, a delegate of MCRS refused all incapacity claims during that period. The main reasons for this decision were that Mr French did not make any claim for income support benefits from Centrelink prior to 26 June 1999; that his tax records appeared to be incomplete and did not take into account total income for each of the financial years in question; and that he was employed as a DJ at various night clubs between June 1996 to 31 January 2000. Furthermore, the delegate had no medical evidence which indicated that Mr French was incapacitated for employment during that period.
12. The MCRS delegate accepted liability for partial incapacity for employment for the period between 1 February 2000 and 28 December 2004. The MCRS delegate determined that Mr French’s actual earnings during that period ranged between $500.00 and $900.00 per week. From 17 May 2004, when Mr French ceased his employment at the Sherbourne Terrace Hotel Night Club, to 28 December 2004, the MCRS delegate noted that Mr French had not established total incapacity for employment and in particular, employment as a DJ.
CONSIDERATIONS
13. Mr French enlisted in the Australian Army on 25 June 1980. On 9 September 1980, he qualified in the trade Field Engineer Gd 1. This followed three months of training. His role included bridge building, laying minefields, purifying water and demolition work. After receiving a back injury on 26 July 1983, Mr French was retrained as a Storeman Technical General, qualifying on 4 November 1983. After being injured, his Army records indicate that he was not to engage in any heavy lifting or prolonged running. He found the storeman duties difficult to undertake and he was then transferred to what he described as “pool duties”. Those duties involved doing virtually nothing, although he had to do some cleaning occasionally. This evidence was confirmed by the details of Mr French’s application for discharge in which the Officer Commanding noted that, although Mr French completes those jobs he is physically capable of doing efficiently and with minimum supervision… his medical restrictions limit his employment to menial tasks and this situation is not likely to improve. The Officer Commanding also noted that Mr French’s general conduct and attitude were good.
14. Although many of Mr French’s documents state that he was medically discharged from the Army, his evidence was that he in fact sought a discharge because of the severe restrictions placed on his employment. He said that he was frustrated by not being able to pursue the career for which he joined the Army; and, on pool duties he was not required to wear a uniform and he did not parade as a normal soldier would. He said he could not parade along with the other soldiers for the reason that his back pain was too severe and he was restricted to walking very short distances.
15. The issue of liability to pay compensation to Mr French has already been decided by the Tribunal. However, it is necessary to point out that s 14 of the SRC Act provides that Comcare is liable to pay compensation “in accordance with this Act” in respect of an injury suffered by an employee if the injury results, amongst other things, in incapacity for work. Therefore, although the Tribunal found in favour of Mr French on the question of liability, any compensation to which he may be entitled because of incapacity for work must be in accordance with the provisions of s 19 of the SRC Act. In so far as it is relevant, s 19 provides:
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.
(2A)For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a)it is a week during which the employee's incapacity prevents the employee working the employee's normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b)the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee's normal weekly hours.
(2B) . . .
(2C). . .
(2D). . .
(3). . .
(3A) . . .
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.
16. There is no dispute about Mr French’s normal weekly earnings (or NWE), which are his earnings before he suffered the injury (see s 8 of the SRC Act). Mr French’s normal weekly earnings have been calculated using the pay scale for a Private Soldier Gd 2. That appears to be correct.
17. The AE part of the formula in s 19 (2) of the SRC Act is the greater of (a) the amount per week that he is able to earn in suitable employment and (b) the amount per week (if any) that he earns from any employment (including self-employment) that he undertakes during that week. Suitable employment is defined by s 4 (1) the SRC Act, although s 4 (1) (a) does not apply to Mr French because he terminated his employment with the Australian Army. Section 4 (1) (b) provides that suitable employment means any employment (including self-employment) having regard to the matters specified in s 4 (a) (i) – (iv). Section 4 (1) (a) (i) – (iv) provides that in determining suitable employment, one must have regard to the employee’s age, experience, training, language and other skills; the employee’s suitability for rehabilitation or vocational training; whether it is reasonable to expect the employee to change his or her place of residence; and any other relevant matter.
18. Mr French was employed on a full time and part time basis after resigning from the Australian Army. Upon leaving the Army, he worked with Reece Plumbing for a little under four years, leaving in about 1987, after he could no longer conduct the required duties due to his back problems. He was unemployed for about six to eight months. He then commenced work as a DJ on a part time basis which continued until May 2004. He has not worked since then.
19. In order to determine Mr French’s ability to earn an income in suitable employment, it is necessary to examine, in some detail, the history of his medical condition and the effect that it has had on his ability to engage in any form of employment.
20. Mr French was discharged from the Australian Army on 17 May 1984 at his request. This was due to medical restrictions which limited the nature of his employment. After joining as a Field Engineer, Mr French was retrained as Storeman Technical in order to cater for the restrictions due to his back injury. He qualified as a Storeman Technical on 4 November 1983. In a report dated 19 March 1984, the Officer Commanding, 21 Construction Squadron, Puckapunyal said the following about Mr French:
Sapper French completes those jobs he is physically capable of doing efficiently and with a minimum of supervision. However, his medical restrictions limit his employment to menial tasks and this situation is not likely to improve.
21. A medical assessment prior to his discharge noted that he was not to engage in heavy lifting or in prolonged running. That report also indicated he should be reviewed in 12 months and it queried his retention in the Army. I have no doubt that Mr French sought discharge for the reason stated in his evidence, i.e., that he could no longer perform the duties for which he joined the Army. Upon discharge, his rank was Sapper – Storeman Technical General and he received pay level three. That is the current equivalent of pay group two.
22. Mr French obtained employment at Reece Plumbing after leaving the Army and he spent the first two and a half years at the Richmond store in Melbourne. He said that he was able to cope with the work at that store as it essentially involved handing out items of equipment. He then obtained a transfer to Albury where Reece was setting up a new store. His duties then changed and they involved work which required him to lift reasonably heavy items. That, according to Mr French, “tipped him over the edge”. He did try his hand at office work at Reece but he did not cope because he had no training and some of the office work was complex. He had limited knowledge of computers.
23. Mr French was unemployed for a short period of time after leaving Reece, but he sought and obtained employment as a DJ working for George Fielder’s Mobile Disco around the Albury Wodonga area. He did not have his own equipment and therefore he relied on his employer to provide him with equipment. According to Mr French, the work as a DJ was part-time, being only one or two days per week, usually on Friday and Saturday nights. On some occasions he worked three nights if one of the nights during the week was a public holiday and the venue provided a disco. He denied ever working four nights a week, although the history taken by Dr Hart, in his report dated 2 July 2004, suggests that he told Dr Hart that he occasionally worked four nights a week. He worked on the Gold Coast, at Albury, Shepparton and in Melbourne.
24. Mr French said that the average DJ shift was up to eight hours, although sometimes he worked for shorter periods, being five and a half to six hours.
25. Between 1989 and 1999, Mr French did not visit a general practitioner at all but he did visit a chiropractor regularly, up to twice a week. He said that he paid for it himself and did not claim medical benefits. He also used “off the shelf” analgesics for pain relief. He did not use any prescribed medication.
26. Although Mr French agreed that due to a worsening of his condition in 1999, he went to see a general practitioner, the report of a CT scan dated 20 June 1997 indicates that his problems were beginning to escalate a little earlier than he stated in evidence. In that report, it is noted that facet joint degenerative change was noted at the left L5/S1 facet. Also, at S1, there appeared to be long standing left pars defect and on the right side the pars was sclerotic, suggesting a previous healed pars defect. Mr French also made a claim under the Veterans’ Entitlements Act 1986 (“the VE Act”) in 1996 and his disability level was accepted at 30 per cent. He subsequently applied for increases and his current level of disability under the VE Act is at 70 per cent. He holds a Gold Repatriation Health Card which entitles him to payment for all his medical treatments.
27. On 1 February 2000 Mr French first visited Mr T M Hillier, an orthopaedic surgeon. He told Mr Hillier that he had taken up DJ work after his discharge from the Army but that this work was now limited by his reduced capacity to stand for any significant period due to his back problem. He was taking anti-inflammatory medication at the time that he was first examined by Mr Hillier. After reviewing his X-rays, Mr Hillier noted that Mr French had an L5 pars interartieularis defect and there was quite a degree of sclerotic reaction around the right sided L5 pars stress fracture. Mr Hillier referred Mr French for facet joint injections which dulled the pain; although Mr French was still troubled with the forward flexion position after prolonged driving of his car. He returned to Mr Hillier on 9 May 2000 for a review and he indicated that he was still troubled with lumbar pain. Mr Hillier referred him for an MRI which showed there was internal disc wearing at the L4/L5 and L5/S1 disc levels. Mr Hillier did not consider that surgical treatment would benefit Mr French at that time and he referred him to Dr B Todhunter, an anaesthetist, for long term pain management. Mr Hillier noted that Mr French’s discomfort and stiffness in the spine would limit his working capacity and that he would need to work in a sedentary area. He did not expect Mr French’s condition to improve with time. As far as total and permanent incapacity was concerned, Mr Hillier said that Mr French was significantly disabled and, given that he was unlikely to seek any definitive management, he believed that Mr French remained totally and permanently incapacitated and should be retired on medical grounds.
28. On 23 October 2000 Mr Hillier again examined Mr French and he confirmed that Mr French did have significant lumbar pain which rendered him unable to perform any useful employment at that time. Mr Hillier also said that, although in his previous report he had stated that Mr French had the potential to work in a sedentary occupation, Mr French would need retraining to prepare him for a situation in which he would have limited capacity to cope and he would need modification of his work environment. He also confirmed that Mr French remained totally unable to be usefully employed at that time. The report also noted that Mr French had received two facet joint injections at that time.
29. Mr Hillier saw Mr French again on 28 March 2001. He noted that Mr French “continues to struggle”. He also said that he had previously reported Mr French as totally and permanently disabled for employment, and in the six months that had elapsed since that comment was made, there were indications that his condition had continued to deteriorate. He said that he was unable to see Mr French working even eight hours per week in a sedentary position; and for that reason described him as totally and permanently incapacitated.
30. Mr French was referred to Mr K Brearley, an orthopaedic surgeon, who examined him on 14 December 2001. According to Mr Brearley, Mr French was suffering from discogenic disease of the lumbo-sacral spine. In addition, he noted that there were minor developmental abnormalities of the lumbar spine including a neutral arch defect on the left side at L5 and a spina bifida occulta. Mr Brearley said that Mr French was not fit to do any heavy work at all. Nor was he fit to do any job where he was required to sit for long periods. He stated in his report that Mr French could work only for short periods, in situations where he could stand and sit as he wished. He could not do clerical work as he could not sit down for a long time. In his opinion, Mr French needed operative treatment in the way of a lumbar fusion, as was previously suggested by Mr Hillier. Otherwise, he would require ongoing physiotherapy or chiropractic treatment. His prognosis was that there was no likelihood of improvement and that Mr French had a serious disability whereby his capacity for employment was extremely limited. Mr Brearley said that Mr French was fit for part-time work, such as DJ work which he was doing at that time, where he could sit or stand as he wished. In a letter dated 23 April 2002, Mr Brearley reviewed his notes at the request of Mr French’s solicitors, and he said that there had been no significant change in the status of Mr French’s back since the time of the accident, apart from a slow progression of the degenerative condition.
31. At the request of Mr French’s solicitors, Mr Hillier noted in a letter dated 28 May 2003 that he had not reviewed Mr French since April 2001 and therefore was not able to comment accurately on his current capacity for work. He nevertheless said the prognosis was poor for him to return to unrestricted activity. He also said that, because Mr French had elected to avoid surgical treatment, he would be permanently incapacitated in regard to his pre-injury employment. He said that sedentary work would appear to be the most suitable environment for him to work in.
32. Mr French had five lots of facet joint injections prior to July 2004. Although initially those injections gave him significant relief from his back pain, they began to be less effective. In 2004 Mr French was employed at the Station One Night Club. At that time he was living in Wodonga and he said it took him some two and a quarter hours to drive to Shepparton because he had to stop a number of times in order to rest and stretch his back. The Station One Night Club opened at 10.30 pm and he was required to be present from 10.00 pm to 5.00 am when the night club closed. He was not required to lift equipment and the night club had provided him with a chair and table which enabled him to face the crowd thereby giving him some relief by allowing him to stand and stretch during the course of his work. Nevertheless, by 2004, Mr French was having difficulty continuing with that work. After completing his shift on the Friday evening, Mr French said that he would lie flat on his back for the whole of the day before commencing the shift on Saturday evening. He relied on the facet joint injections as well as other medications such as Panadeine Forte, Stilnox and Valium in order to get him through the next shift. On occasions, Mr French said that he could not continue after about 2.00 pm and he had a DJ from the “downstairs bar” take over his role so that he could take medication and sleep. Mr M Harrington, who was the DJ who stood in for Mr French on occasions when he could not continue, confirmed that this was the case.
33. Mr Harrington said that on some occasions, either Mr French or the manager of the night club would call him and ask him to work for the entire night or weekend at the Station One Night Club because Mr French was unable to drive down to Shepparton due to back pain. He also observed Mr French at the end of a shift and noted that he had difficulty walking, that he would hold his back and that he would lie on a bar table in order to get relief from his pain. Mr Harrington said that he noted that from 2001 onwards, there was a noticeable change in Mr French’s back condition for the worse.
34. This evidence was confirmed by Mrs French who said she did most of the work around the house because if Mr French tried to do too much, he would suffer pain and there would be some friction between them as a consequence. Mrs French also confirmed that Mr French suffered a number of “flare ups” and that those “flare ups” gradually settled depending on how hard Mr French pushed himself. She confirmed that the facet joint injections had become less effective over time. When it was suggested to Mrs French in cross-examination that his condition settled after a flare up and that he returned to his former capacity, she disagreed and said that he had been getting worse, particularly just prior to him ceasing work in May 2004
35. Mr N Zurcas, who was the manager of the Station One Night Club from November 2002 to January 2005, confirmed that the equipment at the night club was specifically designed to allow Mr French to sit and stand as and when he needed to do so. Also, Mr Zurcas was aware of the difficulty Mr French was having driving to Shepparton and therefore he was offered two nights accommodation at the hotel to save him from driving back and forth in between shifts. He was initially charged $20.00 per night for accommodation but that fee was later waived. Mr Zurcas also observed that Mr French’s back condition became worse over the years that he worked at the Station One Night Club. He had a number of discussions with Mr French about how to deal with the problem. He also confirmed that there were times when Mr French could not work at all and another DJ, Mr J Demay, was required to fill in for Mr French when he could not work, particularly on Saturday nights. Following a discussion in April 2004, after it became clear to Mr Zurcas that Mr French could not continue to work as a DJ for the required shifts, it was agreed that Mr Demay would take over from Mr French as the permanent DJ. Mr Zurcas confirmed that Mr French was good at the work that he did and he was disappointed that he could not continue.
36. Mr Demay also gave evidence that Mr French had taught him how to do the work required by a DJ. He had known Mr French since they were both 16 years old and they socialised together. He had noted that Mr French cannot now sit still and that he is required to stand and stretch frequently. He also observed Mr French’s need to lie down for two or three hours when he got to the Sherbourne Terrace Hotel. He said that the only improvement that he noted in Mr French’s condition was after he had had a facet joint injection. Mr Demay also said that he noted a progressive deterioration in Mr French’s condition until the time that he ceased working at the Station One Night Club.
37. In July 2004, when Mr French travelled with his wife to Melbourne in order to attend a conciliation conference, he suffered severe back pain upon arrival in Melbourne and he had to lie down in the foyer of the barrister’s chambers in order to get relief. On the way out, Mr French collapsed in the street unable to get up. Police assisted Mrs French to get Mr French into the car and he lay down in the back seat for the trip back to Albury. On arrival at Albury he was admitted to hospital and his back was so severely locked up that he was unable to get out of the car to walk to the hospital but had to be put onto a bed in the car park before being taken in and admitted. He settled gradually after an initial period of pelvic traction followed by facet joint injections.
38. Mr French attended IMEAD Regional Imaging Border for an MRI and CT scan of the lumbar spine. The MRI report noted that at L4/5 level there was a minor posterior disc bulge with a more prominent annular tear when compared with the previous examination. The CT scan reported that at the L4/L5 level a disc bulge was present; and at L5/S1 there was a paracentral extension of the disc towards the right which was intimately related to the S1 earth root. An annular bulge was also present.
39. Mr French was examined by Dr Hart on 24 June 2004 at the request of solicitors for the MRCC. In his report, Dr Hart noted that Mr French considered that his back pain was worsening and that he currently experienced constant severe low back pain. The back pain radiated to the anterior thighs and his posterior right thigh to below his knee. He also noted that Mr French’s sitting tolerance was restricted to 13 minutes and that his standing tolerance was even worse. Mr French obtained relief by lying on his back. Dr Hart noted that on examination, all lumbar spinal movements by Mr French were restricted by 50 per cent and straight leg raising was restricted significantly bilaterally. According to Dr Hart, Mr French suffers from spondylosis and a small grade one spondylolithesis of L5 on S1. There was evidence of degenerative disc disease at the lower two lumbar discs and sclerosis at the level of the pars defect, indicating a degenerative process in the facet joints which had responded to repetitive facet joint injections. He also noted that there was an underlying congenital abnormality of the lower lumbar spine with fusion of the transverse processes of the lower vertebrae with the ala of the sacrum and spina bifida occulta.
40. In his report Dr Hart noted that Mr French was only capable of part-time sedentary work where he would have the opportunity of frequent change of position. In his view, Mr French was capable of part-time sedentary employment, noting that Mr French had worked as a part-time DJ two nights per week for 17 years until May 2004. His prognosis was that, in the absence of a surgical fusion, Mr French’s restricted activities and disabilities could be expected to persist. His prognosis of Mr French’s work related condition was poor.
41. Mr French was referred to Dr Hart for reassessment on 4 March 2005. Mr French told Dr Hart that since he was last assessed by him he had experienced an episode of severe spasm affecting his back with pain radiating down both legs. He told Dr Hart about his collapse in July 2004 and that he was admitted to Wodonga Private Hospital on his return. He also told Dr Hart that he was now not responding to facet joint injections which previously gave him some relief. He had previously reported weight loss to Dr Hart and, when weighed again on this occasion, Dr Hart noted that he had lost a further three kilograms making his total weight loss some 17 kilograms since he was last in hospital. In assessing Mr French’s capacity to work, Dr Hart noted Mr French was suited only to perform sedentary duties and said that he was capable of performing his previous duties as a part-time DJ which did not require prolonged driving to venues no more than three to four hours work.
42. Dr Hart also considered that Mr French was capable of performing part-time, sedentary, clerical work but he did not take into account Mr French’s education and training. It should be remembered that Mr French attempted to confine himself purely to clerical duties as a storeman with Reece Plumbing, but he could not manage the tasks involved. As for Mr French’s prognosis, Dr Hart said:
Mr French is disabled from performing his prior occupation as a disc jockey and is restricted on domestic and recreational activities at home. He experiences constant low back pain with acute exacerbations. He experiences some relief from resting supine though his symptoms are chronic and likely to persist.
43. I must say I do not understand how Dr Hart came to this conclusion after forming the opinion that Mr French was capable of performing his previous duties as a part-time DJ. Be that as it may, taking account of all of the evidence, Dr Hart’s prognosis more accurately describes Mr French’s disabilities.
44. In his oral evidence, given by telephone, Dr Hart confirmed that in his view, work was within Mr French’s capacity. However, Dr Hart also acknowledged that Mr French’s condition would result in acute back pain, which would increase over the passage of time when facet joint injections became less effective. Dr Hart also said, in cross-examination, that the facet joint injections were not a cure and that he expected over time that Mr French would show further degeneration.
45. When it was put to Dr Hart that the evidence given by Messrs Harrington, Zurcas, and Demay was consistent with a condition which was deteriorating, Dr Hart agreed. He nevertheless maintained that sedentary part-time work as a DJ was possible as long as it did not involve prolonged driving and that each session did not exceed three to four hours. Mr French needed to sit and stand and therefore required modified duties.
46. Mr French was assessed for his capability to undertake a rehabilitation program. That assessment took place on 3 November 2004 and on 2 December 2004. The MCRS concluded that Mr French was not suitable to undertake a rehabilitation program because he was medically unfit for work.
47. Dr Farrell, Mr French’s current general practitioner, provided certificates of incapacity for work for Mr French covering the period 7 May 2004 to 28 October 2005. CRS Australia wrote to Mr French on 14 January 2005 indicating that his rehabilitation program with CRS Australia was closed and that he was currently certified unfit to work by his treating doctor; and that this situation was expected to remain in the long term. The closure report also noted that Mr French’s situation was likely to continue until he had a spinal fusion as advised by Mr Hillier. Mr French indicated a reluctance to undergo a spinal fusion, although that matter is still being considered by him, as are a number of other options dealing with pain management.
48. In my opinion, the balance of the medical evidence clearly points towards Mr French suffering from a serious disability from the time of his accident in 1983. Although he has been able to undertake some work since the accident, his injury has necessarily limited his activities to those of a sedentary nature. However, the problem that Mr French faced from the outset was that he was not trained or qualified to undertake sedentary employment which involved mainly clerical work. Furthermore, with the passage of time, it is obvious that Mr French’s disability has increased and his condition continues to degenerate. It is not the case of Mr French having acute attacks of pain which settle allowing him to return to the same physical level prior to an acute onset. The evidence clearly points to continuing degeneration, to the point where, in May 2004, despite wishing to continue to work as a DJ, and despite his employer wishing him to continue in that work, Mr French was no longer able to do that work.
49. I am satisfied that Mr French’s capacity to work since leaving the Army until May 2004 has been severely limited due to his back injury. Although the MCRS suggested that something should be made of the fact that, immediately upon discharge from the Army, he was fit for full time duty, the report on discharge indicates that he was only capable of menial tasks. That was of course due entirely to the injury that Mr French sustained to his back. The MCRS also made the point that Mr French, particularly after having facet joint injections, could cope with work and had an acceptable radius of discomfort. However, it is obvious from the evidence that Mr French’s ability to put up with his pain continued to reduce with the passage of time. Even though Mr French was diagnosed as being significantly disabled in 2000 and he continued to work for another four years, he only did so at a reduced level as time passed. It was also suggested that his condition, although it would flare up from time to time, settled and that would result in Mr French not seeking further medical intervention for some periods of time. However, Mr French’s evidence was that he continued to have problems, particularly in carrying out his employment as a DJ. I believe the evidence is clearly in Mr French’s favour in this regard.
50. Mrs French also gave evidence of the fact that her husband attempted to find alternative employment after ceasing work as a DJ. Although the work he attempted to perform was not what one could classify as sedentary, it nevertheless required only limited physical capacity. Regardless, Mr French was not able to perform those tasks for any length of time. I also have difficulty with the suggestion that Mr French could be employed in clerical duties where he could be allowed to sit and stand at regular intervals. Mr French was not capable of doing clerical work at Reece Plumbing and, without substantial retraining, it is unrealistic to expect that he would find such employment given his age and medical history.
51. For the reasons I have set out above, I am of the view that Mr French’s capacity for work was severely reduced from the time that he left the Army until May 2004, when he became totally incapacitated for work. That remains the position at this time.
52. Given my findings on Mr French’s incapacity, it remains only for me to determine the AE portion of the formula set out under s 19 (2) of the SRC Act. In order to do so, it is appropriate to break up the time since Mr French resigned from the Army into four discrete periods. For the period between leaving the Army and about 1990 he was not able to provide any evidence that the AE component of the formula was not equal to or greater that his normal weekly earnings. For that reason, Mr Carey conceded that Mr French would not pursue any compensation for the period between1984 and 1990.
53. The second relevant period is between 1990 and 2001. Mr French has not produced any evidence of his actual earnings during that period of time and therefore, as submitted by Mr Carey, it is appropriate to determine the amount that Mr French was able to earn in suitable employment during that period. In arriving at a figure for the AE component of the formula, the factors set out under s 19 (4) (a) – (g) must be taken into consideration. Given Mr French’s background, employment history, education and capacity for rehabilitation through vocational retraining, I conclude that his ability to earn should be measured by his ability to work as a DJ for two nights per week. Letters from the Licensee of the Ritz Tavern and from Mr Nathan Zurcas of the Sherbourne Terrace Hotel seem to confirm that between 1990 and 2000, a DJ received about $160.00 per night. Accordingly, Mr French’s ability to earn during that period of time, in my opinion, amounts to $320.00 per week. Although Mr French provided copies of his tax assessments for the years ended 1991 to 2000, those assessments only indicate what his taxable income was during that period. In any event, it appears that the greater amount will be the amount he was able to earn in suitable employment rather than the amount he in fact earned.
54. Between 2001 and May 2004, according to Mr Nathan Zurcas, a DJ earned between $200.00 and $250.00 per night. Mr French’s evidence, which was supported by the evidence of Mr Zurcas, was that he was paid $200.00 per night and $50.00 for travel expenses. He was charged $20.00 per night accommodation initially. However, on a later unspecified date, that fee was waived. I therefore conclude that Mr French was able to earn $500.00 per week between January 2001 and the end of April 2004. There was no evidence that he in fact earned a sum greater than that amount. Therefore, the appropriate figure for the AE component formula during this period is $500.00.
55. From May 2004 to date, Mr French’s ability to earn from suitable employment was nil. The evidence indicates that he has not been in any form of employment since May 2004 other than some very brief attempts at serving behind the bar and washing dishes at a bar where his wife worked. The evidence was that he only worked for two nights and therefore I see no reason to take account of anything that was earned on those two occasions.
CONCLUSIONS
56. For the reasons I have set out above the reviewable decisions in matter numbers V2004/1303 and V2005/570 should be set aside and the matters remitted to the MRCC to enable the compensation payable to Mr French as a consequence of his incapacity to be calculated in accordance with s 19 of the SRC Act and the findings I have made above. I would affirm the reviewable decision in matter number V2003/1223. Clearly an applicant must demonstrate by credible evidence that he or she is incapacitated for work before any compensation can be paid.
57. Mr French also seeks an Order for costs. Under s 67 (9) of the SRC Act, where the Tribunal makes a decision setting aside a reviewable decision and it remits the case for re-determination by the determining authority, the Tribunal must, subject to that section, order that the costs of proceedings before it incurred by the claimant be paid by the responsible authority. In accordance with that provision, the Tribunal orders that Comcare pay Mr French’s costs of the proceedings in matter numbers V2004/1303 and V2005/570 in accordance with the Tribunal’s General Practice Direction, unless the parties otherwise agree.
I certify that the fifty‑seven [57] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E. Fice, Member
(sgd) Elite Aloni
Clerk
Dates of Hearing: 17 and 19 October 2005
Date of Decision: 22 November 2005
Counsel for the applicant: Mr M Carey
Solicitors for the applicant: Nevin Lenne & Gross
Counsel for the respondent: Mr I GourlaySolicitors for the respondent: Phillips Fox
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