Glibanovic v Freedom Fuels
[2017] VMC 3
•1 MARCH 2017
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.F12473040
| ADNAN GLIBANOVIC | Plaintiff |
| v | |
| FREEDOM FUELS AUSTRALIA PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 30, 31 JANUARY & 1 February 2017 Defendant Submissions filed 8 February 2017 |
DATE OF DECISION: | 1 MARCH 2017 |
CASE MAY BE CITED AS: | GLIBANOVIC v FREEDOM FUELS |
MEDIUM NEUTRAL CITATION: | [2017] VMC003 |
REASONS FOR DECISION
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Catchwords: 130 week termination of weekly payments – compensability of left hip condition – Capacity to undertake suggested suitable employment: ongoing symptoms and physical restrictions as a consequence of back injury – worker sustained prior significant amputation injuries to right hand – psychiatric condition - generic description of tasks involved in suggested suitable employments – specific and inherent requirements of each job not specified.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Galpin | Patrick Robinson & Co |
| For the Defendant | Ms Tsikaris | Lander & Rogers |
HIS HONOUR:
1 Mr Glibanovic is 44 years of age and was employed from late 2000 by Horizon Petroleum which then became Freedom Fuels as a Console Operator/Retail Assistant. He lodged WorkCover claim forms on 26 February 2009 alleging that he had sustained injuries to his “right knee, right hip, right leg, groin, back, left hip, left carpal tunnel, left wrist” as a consequence of “repetitive, rapid and heavy work including constant lifting of boxes and constant kneeling – repetitive lifting over 100 boxes of drinks” whilst performing stock control and stacking the drinks fridge on 5 February 2009. As at the date he ceased work he was employed on a permanent casual basis working approximately 25 hours per week.
2 Cambridge Integrated Services accepted liability for his claim and he received weekly payments of compensation in accordance with the provisions of the Accident Compensation Act 1985. On 18 May 2011, Xchanging gave Mr Glibanovic notice of its intention to terminate his weekly payments of compensation as from 3 September 2011 on the grounds that he had a capacity to undertake suitable employment. He did not challenge this decision at that time. On 31 March 2015, Xchanging gave him notice of its intention to terminate his entitlement to payment of medical treatment expenses as from 30 April 2015 on the grounds that ongoing treatment was not essential to ensuring that his health and ability to undertake activities of daily living would not significantly deteriorate and that his treatment was only maintaining symptomatic relief and not improving his condition.
3 Mr Glibanovic seeks to challenge both decisions and asserts that he has no current work capacity which is likely to last indefinitely and that he requires ongoing medical treatment for his compensable injuries. The defendant asserts that Mr Glibanovic has a capacity for suitable employment and despite originally admitting liability for his claimed left hip injury and paying for the medical treatment relating to it, including a total left hip replacement which he underwent on 30 January 2014, it now disputes the compensability of it. The suggested ‘suitable employment’ focussed on during the hearing was that of a Purchasing and Supply Logistics Clerk, a General/Inquiry Clerk and a Community Support Worker.
4 Mr Glibanovic gave evidence that he attended Yallourn Technical School but only managed to pass two Year 12 subjects before completing an apprenticeship as a panel beater. He then worked as a panel beater for a period of 4 years and then commenced work with Rocklea Spinning Mills as an operator/store person for a period of 4 years. Unfortunately, he sustained serious amputation injuries to his right thumb, index and middle fingers on 23 January 1997 when operating a machine in the course of that employment. Mr Glibanovic told the court that he required reconstructive surgery which involved skin grafting from his left groin and bone grafting from his left hip together with subsequent cosmetic surgery. He said that he was incapacitated for a prolonged period as a consequence of these injuries but did manage to return to work on alternate duties for a short period until he ultimately ceased work in April 2000.
5 The evidence revealed that Mr Glibanovic successfully pursued a common law negligence action against Rocklea which was settled in May 2000 for an amount of $700,000. The evidence also revealed that on 1 June 2015, Worksafe issued a Certificate pursuant to S134AB of the Act indicating that it was satisfied that the ‘injury’ sustained by Mr Glibanovic on 5 February 2009 is a ‘serious injury’ and consenting to him bringing proceedings for the recovery of pain and suffering damages. The particulars of ‘injury’ referred to in the proposed common law Statement of Claim were; aggravation of injury to lumbar spine including L4/5 and L5/S1 disc bulging, injury to right knee including medial meniscus tear and aggravation of previously asymptomatic osteoarthritis of the right knee, aggravation of osteoarthritis and soft tissue injury to right hip and shock, nervousness, anxiety and depression.
6 Mr Glibanovic said that after his common law settlement he managed to find employment as a permanent casual console operator/retail assistant with Horizon Petroleum/Freedom Fuels in November 2000 which required him to work at various petrol stations performing console duties, general customer service, cleaning, stocktake, invoicing, ordering and re-stocking of shelves. He told the court that he initially worked 16 hours per week which increased over time to 26-28 hours per week and in 2006 he became a fulltime employee in the role of an Assistant Manager at the Churchill station. Mr Glibanovic told the court that when Freedom Fuels took over Horizon Petroleum he was no longer given the role of an Assistant Manager and returned to his part time casual position as a console operator/retail assistant.
7 The evidence revealed that prior to the incident on 5 February 2009, Mr Glibanovic had experienced episodes of back pain in the course of his employment with Horizon/Freedom Fuels. It appears that he was incapacitated for work for a period of 2 weeks in July 2003, had further time off as a result of back and left hip pain in April 2005 and complained of back pain to his general practitioner, Dr Kee in October 2008. In relation to the incident on 5 February 2009, Mr Glibanovic gave evidence that because of the outbreak of fires in the area the service station was extremely busy with numerous police, DSE and SES workers, CFA volunteers and other agencies attending the station. He told the court that the defendant donated food and drinks to them resulted in large orders being made to replenish the stock. He said that part of his duties required him to stack the new stock over a 7 hour period and whilst doing so he experienced further back pain. He told the court that the following day he also experienced pain in his right knee and right hip.
8 As mentioned, Mr Glibanovic lodged WorkCover claim forms on 26 February 2009 for the injuries referred to above for which liability was accepted. He told the court that he included ‘left hip pain’ in his claim form as he had been experiencing pain in his left hip over a period due to favouring his left side following his previous right hip problem. He said that from that date he had returned to work on a number of occasions on restricted duties until he eventually ceased work in August 2010. He gave evidence that his employer made an offer of suitable employment to him dated 15 February 2010, initially working 25 hours per week increasing to 27.5 hours per week by week 5 requiring him to perform customer service duties and small amounts of cleaning and stacking shelves. The job offer indicated that he could alternate between sitting and standing, take rest breaks as required and could cease any activity which increases his symptoms. He told the court whilst performing modified duties he would regularly take rest breaks and regularly cease work because of increasing back pain.
9
Mr Glibanovic told the court that he currently experiences pain in his right hip and low back which fluctuates to the left side and down to his groin area and right leg. He said he experiences pain every day and the level of pain fluctuates. He also said that he takes various medication including; Lyrica, Topamax, Panadeine Forte and Panadeine Osteo, Endep and
Endone. He told the court that because of his fluctuating pain level on his good days he is able to walk for 10-15 minutes and drive for short periods. He said that he was depressed following the injury he sustained to his hand which worsened following the injuries sustained on 5 February 2009. He told the court that in the last 2 years he has seen Mr Winfield, Psychologist and more recently a Psychiatrist, on 2 occasions in 2016. He said that the psychological treatment and his ‘faith’ keeps him under control
10 The evidence indicated that Mr Glibanovic has been treated by general practitioners, Dr Kee and since 2016, Dr Al-Mayahe, Mr Love, orthopaedic surgeon who performed a right knee arthroscopy on 5 August 2009, Mr Carey, orthopaedic surgeon in relation to his back condition, Dr Clayton Thomas, pain specialist, physiotherapy and hydrotherapy treatment, psychological treatment and more recently he has seen a psychiatrist on two occasions.
11 During examination in chief, Mr Glibanovic told the court that he lives on a farm comprising 27 acres and he has 28 sheep on it. He said that he takes care of them in relation to feed and water and tends to his vegetable patch. He told the court that when tending to his vegetable patch he tries to stand whilst digging but if his back and right hip pain increases he sits on a stool but is only able to do this activity for between 15 and 30 minutes. He says that a normal day consists of him doing these activities or spending time on the phone or on his recliner chair. He gave evidence that his wife works and that he has 4 children aged 15 years, 11 years 10 years and 7 years of age. He told the court that he is the designated carer of his 10-year-old son who has low-level autism. He said that he was also the designated carer of his mother who passed away on 27 January 2017. He told the court that he used to prepare her medication and take her to her medical appointments when necessary. He told the court that his mother lived with his brother in the house next to his. Mr Glibanovic told the court that he is a member of the local Muslim community and he attends the Mosque which is situated in a house next to his on his property which was donated to the local Muslim community by his late father who died in 2009. He gave evidence that his role in the Mosque is to collect donations, pay bills and to ‘call people for prayer’. He also told the court that prior to the injury on 5 February 2009 and after he sustained his right hand injury in January 1997 he was able to play competitive tennis, act as a goal umpire in the local football league and was able to socialise in the community.
12 Mr Glibanovic also revealed that after his common law settlement he purchased a commercial property in Moe, comprising two shops which he personally managed and a rental house in Morwell which was managed by an Agent for a period of 4 years. He told the court he sold all properties in September 2016 for financial reasons.
13 In cross examination, Mr Glibanovic told the court that his current medical problems mainly involve his back and psychological issues and disputed that he would be able to return to his pre-injury employment notwithstanding that whilst performing console duties he would be able to sit or stand at will. When questioned about his complaint of right hip pain he told the court that no investigations have been undertaken and the pain he experiences in his right hip originates from the right side of his low back. He agreed that he was able to return to work on light duties after he underwent the right knee arthroscopic in August 2009 and that the reason he ceased work was because his employer was no longer prepared to offer modified duties. However, he told the court that he was still experiencing fluctuating levels of pain at that time. Mr Glibanovic agreed that when he was employed in the managerial position with Horizon his tasks included customer service, ordering stock, training staff, arranging for casual staff to work, preparing reports for management and using a computer for stock reconciliation.
14 During cross examination, Mr Glibanovic confirmed that since 2008 he has acted in the role of both President and Secretary of the Islamic Association of Gippsland. He agreed that over this period his roles have required him to; collect donations; make payments on behalf of the Association; make ‘the call for prayers’ on Friday of each week and during the month of Ramadan; assist refugees to find accommodation and life’s necessities; participate in events conducted by the Association; and, attend meetings. He told the court that during prayer he normally sits on a chair but may occasionally sit cross legged on the floor.
15 Mr Glibanovic told the court that he is able to do household tasks including; clothes washing, hanging the clothes on the line and gardening. He said that he is also able to participate in family activities which includes picnics and taking his children fishing. He agreed that he travelled to Vietnam in 2011 and Bosnia in 2012 as well as travelling interstate for his children’s sporting and recreational activities.
16 Mr Glibanovic was questioned at length about whether he satisfied the criteria to receive a carer’s pension for his son and mother which he has been receiving since 2013/2014. He was adamant that he satisfied the eligibility criteria.
17 He agreed that he had previously received treatment for back problems and psychological problems prior to him sustaining injury on 5 February 2009 and was continuing to receive treatment and medication for his right hand injury at that time. He agreed that since undergoing the left hip replacement operation he has not been referred to any other specialists for his back, right hip or right knee complaints although said it had been suggested to him that he should seek a referral to see Dr Clayton Thomas again for pain management. He told the court that he cannot afford to see doctors because WorkCover ceased paying for his treatment expenses in April 2015.
18 Mr Glibanovic said that he is able to speak Bosnian, Serbian and Croatian and is currently learning Vietnamese and Arabic. He told the court that he is able to operate a computer, a smart phone, browse the Internet, play games on the computer and has experience with data entry. He agreed with the suggestion that the role of a Purchasing and Supply Logistics Clerk as identified in the report from nabenet dated 28 May 2010 was not dissimilar to the duties he performed as an Assistant Manager with Horizon petroleum but said it included a few extra tasks and he would struggle to work in that role on a regular basis. He also agreed that the tasks required of an Inquiry Clerk as set out in that report were the same types of duties he performed as an Assistant Manager but said he would also struggle to perform those tasks on a regular basis. Mr Glibanovic agreed that he has experience in the tasks required of a Community Support Worker as set out in the nabenet report but did not believe he would be able to perform all those tasks on his own.
19 Mr Glibanovic confirmed that in 2010 he had applied for work as a Rates Officer with the Latrobe City Council and as a Service Delivery Officer with the Department of Human Services. He also confirmed that with the help of nabenet he applied for the position of a Customer Service Officer with Vic Roads in Moe for which he attended an interview and received positive feedback but was unsuccessful in obtaining the job. He told the court that he subsequently discovered that part of the role of a Customer Service Officer would have required him to perform roadworthy checks which involved getting under cars which he would not have been able to perform. He said that he was not aware of this requirement when he applied for that position or when he attended the interview.
Medical Evidence
20 Dr Kee gave evidence and numerous medical reports prepared by him were tendered. Dr Kee told the court that he first saw Mr Glibanovic in 1988. In his first report dated 2 May 2009, he noted that subsequent to the serious injuries sustained to his right hand on 23 January 1997 Mr Glibanovic developed a major depressive illness for which he received extensive counselling and continued to suffer from a severe and persistent left hip pain and dysfunction. He noted that this occurred as a result of extensive scarring at the site of the graft donor site. Dr Kee reported that as a result of the persistent left hip problems Mr Glibanovic was walking with a compensated gate to relieve the pain in his left hip and in doing so he experienced a sore back which he diagnosed as a chronic lumbar sacral back strain injury. Dr Kee reported that Mr Glibanovic had gained 42 kg in weight since sustaining the injury to his right hand in 1997.
21 Dr Kee reported that after Mr Glibanovic return to work with Horizon he suffered repeated bouts of aggravation to his injuries and also suffered left sided carpal tunnel syndrome due to overuse of his left hand as a consequence of the loss of function to his right hand. He noted that he underwent surgery by Mr Leung for this condition on 16 September 2002 which was paid for by his former employers WorkCover agent.
22 In his report dated 19 April 2010, Dr Kee obtained a history from Mr Glibanovic on 26 February that he had developed increasing pain in his right hip, knee and leg as a consequence of lifting over 100 boxes of drinks at work on 5 February 2009. Dr Kee reported that Mr Glibanovic had a period off work but was able to return to work on restricted duties on 30 March 2009 and was receiving physiotherapy, hydrotherapy and was prescribed medication. He reported in April 2010 that Mr Glibanovic was permanently incapable of returning to his preinjury duties but would be fit for light duties with significant restrictions to avoid aggravating his injuries. In August 2011, Dr Kee reported that Mr Glibanovic’s condition had deteriorated during 2010 which required an increase in his pain management and medication and referrals to Mr Carey, Orthopaedic Surgeon and Dr Clayton Thomas, Pain Management Specialist. He noted that he ceased work on 18 May 2010 and that his attempt to return to work on 20 August 2010 ‘failed miserably’. Dr Kee opined that his prognosis for a return to work was poor and that he had no work capacity.
23 On 25 May 2015, Dr Kee reported that despite undertaking an intensive pain management course in 2012 under the care of Dr Clayton Thomas, Mr Glibanovic continued to experience significant pain in his back and left hip and he referred him to Mr Patten, Orthopaedic Surgeon for a review of his left hip pain and dysfunction. Dr Kee opined that as his pain had features of a neuropathic component, they would be arising from his lumbar sacral spine. He noted that Mr Glibanovic underwent arthroscopic surgery of his left hip by Mr Patten on 14 August 2013 and a total left hip replacement operation on 30 January 2014. As a consequence of continuing complaints of pain, Dr Kee reported that he sought to refer Mr Glibanovic back to Dr Clayton Thomas for pain management but his request was denied by WorkCover.
24 Dr Kee reported that Mr Glibanovic has continued to experience increased lumbosacral back pain and left hip pain and he requires high doses of medication, massage and hydrotherapy treatment. He noted that WorkCover ceased paying for all medical treatment in April 2015. Dr Kee reported that Mr Glibanovic’s quality of life was poor although he still managed activities of daily living but would require ongoing treatment.
25 Dr Kee gave evidence that he last saw Mr Glibanovic on two occasions in 2016. He confirmed that he provided a certificate dated 29 April 2015 indicating that Mr Glibanovic was unfit for all work due to his; right hand injury, left hip injury, post-traumatic stress disorder, left wrist carpal tunnel syndrome surgery and his obesity secondary to inactivity. Dr Kee noted that he provided a subsequent certificate dated 27 May 2015 certifying that Mr Glibanovic was unfit for all work as a result of his; right hip, right knee, right groin, back and left hip injuries. During cross examination, Dr Kee confirmed that Mr Glibanovic had complained of back symptoms and depression prior to 5 February 2009. He also confirmed that when he saw Mr Glibanovic on 14 January 2009, 3 weeks prior to the injuries sustained on 5 February 2009, Mr Glibanovic was complaining of right wrist pain and indicated that he was going to stop work in the next 2 weeks. He agreed that Mr Glibanovic was complaining of back and left hip pain and symptoms of depression prior to 5 February 2009 and those complaints continued thereafter although he did not complain of left hip pain when he first saw him after the incident on 5 February 2009 on 11 or 26 February 2009. Dr Kee explained that although there may be no mention of left hip pain in his attendance notes on those dates, Mr Glibanovic may have complained about pain in the left hip but he may have been selective in what he recorded. Dr Kee said that Mr Glibanovic’s left hip condition is chronic and pre-dates 5 February 2009. Dr Kee agreed that the medical report he provided on behalf of Mr Glibanovic in support of his application for the disability support pension in October 2011 related his conditions as having existed since 2002.
26 A medical report from Dr Al Mayahe dated 13 September 2016 noted that Mr Glibanovic is suffering from pain in his right knee, both hips and lower back and that his current treatment regime includes rest and analgesia to help alleviate his symptoms. Dr Al Mayahe reported that Mr Glibanovic is unfit for work due to associated and other medical conditions including; acromegaly which was diagnosed in 2013 and his right hand injury.
27 Mr Glibanovic tendered medico-legal reports prepared by Mr Brearley, Professor Myers, Professor Bittar, Mr Moran, Mr Carey, Dr Nathar and Vocational Assessment reports from Ms Leitch and Ms Webster. The defendant tendered medico-legal reports from Dr Francis, Mr Hooper, Professor Marshall, Mr Dooley, Associate Professor Love, Mr Jones, Dr Yong, numerous reports prepared by nabenet and other miscellaneous documents.
Vocational Evidence
28 The reports from nabenet were prepared by Ms Allemand, Rehabilitation Consultant. In her initial report dated 28 May 2010, she identified suitable employment options as being; Store person, Purchasing and Supply Logistics Clerk, General clerk, Inquiry Clerk and Community Support Worker. As at May 2010, she reported that Dr Kee was certifying Mr Glibanovic as fit for modified duties 5.5 hours per day 5 days per week as per the return to work plan dated 15 February 2010. Ms Allemand reported that Mr Glibanovic had numerous transferable skills which would allow him to undertake employment.
29 Ms Allemand listed the required tasks for each identified job option by reference to an ASCO Code. In relation to the suggested ‘suitable employment’ as a Store Person, she noted that Mr Glibanovic had performed a similar role in the past and that his experience with stock control, data entry and machine operation in addition to his sound communication skills and qualification in stock control would make him a potentially attractive candidate. She suggested that he would be able to perform the role from a physical perspective as he would be able to alter his posture as needed providing he was able to avoid heavier, manual duties such as lifting. She reported that Mr Glibanovic’s employment prospects in this field were ‘good’ and she identified 3 jobs of this type advertised in the Latrobe Valley region.
30 Ms Allemand also suggested that Mr Glibanovic would be able to be employed as a Purchasing and Supply Logistics Clerk based on his previous experience and noted that roles of this nature typically involved working from a seated position with the ability to alter posture as required. She stated that this occupation would also be physically suitable for him. Ms Allemand reported that Mr Glibanovic’s employment prospects in this field were average and identified four jobs of this type advertised in the Latrobe Valley region.
31 Ms Allemand considered the role as a General Clerk would be appropriate having regards to his sound communication skills and experience within his community performing voluntary support roles. She stated these duties would be physically suitable for Mr Glibanovic as it would allow working from a seated position with opportunities to alter posture as required when performing clerical and communicative duties. She considered his employment prospects were good and reported that four jobs of this type were advertised in the Latrobe Valley region.
32 Ms Allemand stated that Mr Glibanovic would be suited to a job as an Inquiry Clerk based on his voluntary experience, his sound communication skills and computer skills. She also stated that he may be suited to a role within the public sector or within a community organisation or group and that from a physical perspective roles of this nature typically involve performing clerical and administrative duties from either a seated or standing position. She reported that his employment prospects were good and identified two jobs of this type advertised in the Latrobe Valley region.
33 Ms Allemand noted that Mr Glibanovic would be suited for a role as a Community Support Worker as he was already undertaking a voluntary community support role and given his experience and language skills and the fact that such a role would be physically suitable as it would allow him to alter his posture as necessary and should not involve heavy manual duties. She considered his employment prospects in this type of job to be good and reported that two jobs of this type were advertised in the Latrobe Valley Region.
34 Ms Allemand stated that in her opinion, based on Mr Glibanovic’s experience, skills and qualifications, he should be able to secure employment in the listed occupations and he did not require further training. She suggested that he commence a 26 week New Employer Services Program which would provide him with guidance and assistance in; preparing a professional resume; matching his skills, experience and physical restrictions to suitable vacancies; preparation of employment applications and cover letters; interview techniques and tips and marketing his skills and experience. In her report dated 24 September 2010, Ms Allemand noted that during the first 8 weeks of the program Mr Glibanovic was keen to secure new employment and indicated a particular interest in securing a customer service or administration role within a community, not for profit or government organisation. She noted that he attends job seeking appointments with copies of newspapers in which he sourced suitable vacancies and demonstrated that he was independently pursuing suitable employment opportunities.
35 In her report dated 18 November 2010, Ms Allemand noted that Mr Glibanovic had submitted applications including roles as an External Relationships Officer with ASIC, a Marketer/Sales position with Workways Limited,, Sales Representative for Telstra and Care Worker with Berry Street. In her report dated 16 February 2011, she noted that Mr Glibanovic had applied for a position as a Rates Officer with the Latrobe City Council, a Service Delivery Officer with the Department of Human Services and a Customer Service Officer with Vic Roads for which he attended an interview but was unsuccessful.
36 In her final report dated 16 June 2011, Ms Allemand noted that although Mr Glibanovic had been very keen to secure employment throughout the period of his involvement with NES and had taken steps to obtain employment, Dr Kee had recently certified him as unfit for all duties due to the onset of increased pain. She opined that Mr Glibanovic had the necessary skills, knowledge and resources to successfully continue the job seeking process independently and his file with nabenet was to be closed.
37 A vocational assessment report of Ms Leitch, Occupational Therapist from Evidex dated 28 February 2012, was tendered by Mr Glibanovic. Ms Leitch opined that Mr Glibanovic’s limited literacy and poor aptitude for routine clerical tasks would restrict his opportunities to meet the requirements of alternative employment. She stated that she was unable to find any alternative occupations where he had the necessary transferable skills and where the inherent job requirements were within his capacity when considering his lower back injury. She doubted whether occupational rehabilitation and/or retraining was likely to lead to a suitable occupation in the open labour market. She also commented that his place of residence would significantly reduce his chance of gaining access to any occupation that may otherwise be considered suitable.
38 Ms Leitch reported that based on a formal reading test that graded Mr Glibanovic as reading English at the level of a 13-year-old, his literacy skills would be adequate for occupations and study requiring basic level skills only, and he would therefore be restricted when considering employment or training where higher level literacy is required. She also stated that his poor aptitude for basic clerical tasks would preclude him from meeting the pre-requisites for clerical occupations such as Office Administration Assistant and General Clerk. Furthermore, she noted that he has never been employed in a purely administrative occupation and only has very basic computer skills which would preclude him from office administration and General Clerk tasks.
39 When considering the suggested suitable employment option as a Logistics Clerk she made the following comments – Mr Glibanovic has poor aptitude for basic clerical tasks and limited reading skills; the physical requirements of the occupation include lifting and carrying moderate to heavy goods, to examine the content of containers, to record quantities and to check that incoming stock matches invoices; lifting and carrying moderate to heavy stock to check inventories; and, frequent bending to access stock situated below mid-thigh height and prolonged standing and walking when managing input and output stock. Ms Leitch reported that Mr Glibanovic’s limited literacy and poor aptitude for routine clerical tasks restrict his opportunities and when combined with his limited functional capacity she was unable to find a suitable alternative occupation after reportedly examining 120 ANZSCO occupations.
40 Mr Glibanovic tendered reports of Ms Webster from Flexi Personnel dated 4 September 2013 and 16 April 2015. Ms Webster’s biography indicates that she has vast experience in employment recruitment over 25 years. The admissible content of her report is therefore confined to this area of expertise. She reported that Mr Glibanovic’s skills and work experience has been predominantly in manual/physical roles within a panel beater or store environment which has included customer service, stock control and supervisory duties. Ms Webster noted that Mr Glibanovic has limited transferrable skills and that based on his presentation at interview she would not refer him for job vacancies as she would be '‘concerned he could injure himself further which may also lead to absenteeism and loss of production’.
41 In her report dated 16 April 2015, she noted that Mr Glibanovic told her that he could sit and stand for 15-20 minutes before having to alter his posture because of pain, that he could walk for a reasonable distance at a slow pace on flat terrain providing he could take a rest break and that he is restricted in bending, twisting and lifting activities. He also told her that he could drive for up to one hour before resting and is restricted in his daily living activities. Ms Webster stated that as a recruiter she would recommend that Mr Glibanovic would need to be retrained to be considered a commercially viable candidate for office work or an alternative vocation.
Expert Medical Opinion
42 Mr Brearley assessed Mr Glibanovic on behalf of his lawyers on 8 September 2011, 6 September 2013 and 15 April 2015. In his initial report, Mr Brearley obtained a history from Mr Glibanovic that he did not experience any symptoms whilst performing the tasks on 5 February 2009 but the following day experienced pain in the lower back, right hip and right knee. Mr Brearley noted that Mr Glibanovic underwent an arthroscopic meniscectomy on his right knee which was performed by Mr Love on 5 August 2009 and that he was subsequently referred to Mr Carey in June 2010 who arranged for an MRI to be performed which showed multilevel degenerative changes in his thoraco-lumbar spine. Mr Brearley diagnosed that as a result of the work activities on 5 February 2009, Mr Glibanovic aggravated a pre-existing degenerative disc disease in his spine, suffered a tear of the medial meniscus in his right knee and that the pain he experienced in his right hip was referred pain from his lower back injury.
43 In his report dated 6 September 2013, Mr Brearley noted that on 14 August 2013 Mr Glibanovic underwent arthroscopic debridement of the left hip performed by Mr Patten. Mr Brearley reported that the operation note indicated that there was considerable degenerative change of the acetabular surface and there was a loose body which was removed together with articular changes over the femoral head and a small cam lesion which was resected. Mr Brearley also noted that in February 2013 Mr Glibanovic had a pituitary tumour removed by Prof Kaye and had been diagnosed with acro megaly secondary to a macro adenoma associated with hypopituitarism. Mr Glibanovic also told Mr Brearley that his weight increased from 120 kg to 180 kg due to the acromegaly.
44 In his final report dated 15 April 2015, Mr Brearley noted that Mr Glibanovic underwent a left total hip replacement by Mr Patten in February 2014 and Mr Glibanovic reported that he was experiencing more pain on the right hip due to putting more strain on it as a consequence of the surgery. Mr Glibanovic also told him that he was continuing to experience serious low back pain although there was some improvement in his right knee condition. He also told Mr Brearley that he felt he could do some very light work, probably clerical but that he would be totally unreliable because he experienced episodic pain and was unable to predict when it would occur. Mr Glibanovic told Mr Brearley that he was prescribed OxyContin 20 mg twice daily, Lyrica 150 mg twice daily, Mobic 7.5 mg, 2 Panadol Osteo twice daily, and Topiramate 25mg twice daily, which is prescribed for neuropathic pain.
45 On examination, Mr Brearley reported that Mr Glibanovic’s movements in relation to his left hip joint were close to normal, there was a slight restriction of movement in all directions in relation to his right hip joint and back and that he had a full range of movement in relation to the right knee joint. Mr Brearley confirmed his previous diagnosis concerning Mr Glibanovic’s back injury and recommended that he have ongoing conservative treatment with medication and physiotherapy.
46 Mr Brearley opined that in relation to the back injury he could possibly do some very light work but considered that there was no realistic possibility of him obtaining suitable employment. He did not consider that Mr Glibanovic required further treatment for his right knee injury and noted that Mr Glibanovic complained of increasing pain in the right hip with x-rays indicating osteoarthritis which may lead to a total hip joint replacement. Whilst opining that Mr Glibanovic did not sustain a specific injury to his left hip on 5 February 2009, he stated that it was probable that because of his right hip symptoms he did put more strain on the left hip and his increased weight would have put further strain on his left hip.
47 Professor Bittar, Consultant Neurosurgeon assessed Mr Glibanovic for his lawyers on 28 March 2012 in relation to the back injuries sustained on 5 February 2009. He obtained a history from Mr Glibanovic that the morning after 5 February he experienced pain in his right groin and hip radiating into his right leg with his back pain commencing shortly thereafter and deteriorating over the following week. He diagnosed him as suffering from an aggravation of lumbar spondylosis.
48 Associate Professor Myers examined Mr Glibanovic for his lawyers on 28 August 2013 and 2 March 2015. He also obtained a history of pain commencing the day after 5 February 2009 in the form of right knee and then back and right hip pain. Mr Glibanovic told Associate Professor Myers that his left hip was disintegrating which he attributed to a flare up of his previous injury due to putting extra pressure on the left hip to protect his right hip. After reviewing the medical reports provided to him, Associate Professor Myers diagnosed that Mr Glibanovic aggravated a previously pre-existing asymptomatic degenerative intervertebral disc disease and spondylitis in his lumbar spine as a consequence of the work performed on 5 February 2009, damaged the medial meniscus and aggravated pre-existing previously asymptomatic osteoarthritis of his right knee and aggravated pre-existing osteoarthritis of his right hip.
49 In his report dated 10 March 2015, Associate Professor Myers noted that Mr Glibanovic had undergone a left hip joint replacement and subsequent operations to clean up superficial infections. He also noted that he was prescribed Mobic, Topiramate, Lyrica, Targin, Panadol osteo, Endep, Hydro cortisone daily and medication for hypertension resulting from his acromegaly. Mr Glibanovic told Associate Professor Myers he continues to suffer from persistent pain in his back that goes “to and fro from one side to the other”. He also said that the result of his left hip joint replacement was “fantastic though it is still troublesome with some pain but much better than it was and now manageable”. In relation to his right hip he said that “it is giving me issues if I take weight on it”. In relation to his lumbar spine, right knee, right hip injuries and left hip condition, Associate Professor Myers expressed the opinion that they restrict his everyday activities, enjoyment of life and capacity to perform any work quite apart from any psychiatric or psychological consequence. He also expressed the opinion that the work duties performed by Mr Glibanovic on 5 February 2009 aggravated a pre-existing, previously asymptomatic degenerative osteoarthritis condition of his left hip which would also prevent him from returning to any full-time or part-time work.
50 Mr Moran, Orthopaedic Surgeon assessed Mr Glibanovic on behalf of his lawyers on 4 November 2016. Mr Glibanovic told Mr Moran that his back pain was present most of the time and that his back movements are restricted, that he has right hip pain which is present most of the time and his hip movements are restricted but he only has a little bit of right knee pain with normal movements. He also told Mr Moran that he has intermittent left hip pain and his left hip movements were good. Mr Moran obtained a history of current medication intake and noted on examination that Mr Glibanovic is 185 cm tall and weighs 150 kg.
51 Mr Moran diagnosed that he aggravated an osteoarthritic condition of his right hip, sustained a tear of the medial meniscus of his right knee and damaged the articular cartilage of the medial femoral condyle of his right knee and aggravated a degenerative disease condition of his lumbar sacral spine as a consequence of the work duties performed on 5 February 2009 Mr Moran anticipates that Mr Glibanovic will require right hip surgery in the future and is likely to develop osteoarthritis of his right knee which may require surgery. In his opinion, Mr Glibanovic is unfit for any form of employment.
52 Dr Nathar, Consultant Psychiatrist assessed Mr Glibanovic on behalf of his lawyers on 8 November 2011, 13 August 2013, 14 May 2015 and 8 November 2016. Dr Nathar noted that Mr Glibanovic developed Major Depression and a Post-Traumatic Stress Disorder following the injury to his right hand in 1997 for which he received psychiatric treatment and was prescribed antidepressant medication. Dr Nathar stated that in his opinion the injuries sustained on 5 February 2009 aggravated his underlying major depressive illness.
53 In August 2013, Mr Glibanovic told Dr Nathar that emotionally he was under severe financial stress and would have to sell (his rental properties) as he failed the assets test (to obtain the disability support pension). He told Dr Nathar that he was the Manager of the local Mosque and he would use prayer to calm himself and was not receiving psychological or psychiatric treatment. Dr Nathar expressed the opinion that Mr Glibanovic’s prognosis was poor, he had become demoralised, he had been unsuccessful in finding an alternative vocation and was facing severe financial difficulty. He considered Mr Glibanovic to be totally and permanently incapacitated for all employment as a consequence of his pain syndrome and associated psychological problems.
54 On 14 May 2015, Mr Glibanovic told Dr Nathar that he was able to tend to his animals on the farm, could walk without difficulty, perform some domestic chores and provide help at the Mosque. He also told Dr Nathar that he was receiving rent from his 2 shops and was also receiving a Carer’s benefit from Centrelink in relation to the care of his mother and autistic son. He told Dr Nathar that “daily life is a struggle”. Dr Nathar opined that Mr Glibanovic continued to suffer from a chronic adjustment disorder with anxiety and depressed mood as well as a chronic pain syndrome where psychological factors were amplifying his physical problems. Dr Nathar noted that Mr Glibanovic had memory and concentration difficulties, tired easily, had a negative attitude and was demoralised with all of his problems.
55 In his latest report dated 10 November 2016, Dr Nathar noted that Mr Glibanovic continued to complain of pain in his low back, right leg and right hip and said that his left hip was better and his right knee condition had improved. He also complained of experiencing sleep difficulties and became depressed and angry. Dr Nathar recorded his current medication regime as consisting of; 150 mg of Lyrica (pain modulator), 7.5 mg of Mobic (anti-inflammatory), 25 mg of Topiramate (analgesic), 20 mg of Hysone (steroid replacement due to acromegaly), 10 mg Endep (hypnotic, mild antidepressant and pain modulator), 80 mg Telmisatan (hypotensive), 40 mg Nexium (for reflux), iron tablets (iron deficiency), 30 mg Duloxetine (antidepressant medication) and Panadeine (analgesic).
56 Dr Nathar remained of the opinion that Mr Glibanovic suffers from a chronic adjustment disorder with anxious and depressed mood (or a major depressive disorder) and a chronic pain syndrome of moderate severity. Dr Nathar noted that Mr Glibanovic had recently been referred for psychiatric treatment and commenced taking antidepressant medication. He doubted that there would be any improvement in the future due to the chronicity of his physical problems.
57 The defendant tendered medical reports from Mr Hooper dated 15 March 2009, Mr Kendall Francis dated 27 May 2009 and Professor Marshall dated 16 December 2010. Their opinions do not assist in determining the issues based on the date of their assessments.
58 The defendant tendered medical reports from Mr Dooley who assessed Mr Glibanovic on 17 October 2013, 17 April 2015, and 9 March 2016. In his first report, Mr Dooley noted that Mr Glibanovic was of a large build and moderately overweight. He also noted that when he was reviewed by Mr Carey in June 2010 it was reported that he had large feet and a left large hand and in combination with his facial appearance, a diagnosis of acromegaly was suggested. Mr Dooley opined that with the aid of hindsight, it was evident that Mr Glibanovic had acromegaly which was long-standing. He stated that patients with acromegaly are predisposed to osteoarthritis of their lower limb joints.
59 Mr Dooley opined that as a result of the work performed by Mr Glibanovic on 5 February 2009, he either sustained tearing within a degenerative medial meniscus or aggravated tearing that had already occurred within a degenerating medial meniscus. He was also of the opinion that Mr Glibanovic aggravated an underlying naturally occurring degenerative disc disease of the lumbar spine which would account for intermittent low back pain and pain referred into the buttock and groin regions. He noted that Mr Glibanovic may have developing osteoarthritis of both hip joints which was naturally occurring and probably a consequence of his acromegaly.
60 Mr Dooley was of the opinion that Mr Glibanovic did not injure his right hip joint and that the subsequent surgery performed on his left hip does not directly or indirectly relate to the work activities performed on 5 February 2009. In his opinion, Mr Glibanovic had the physical capacity to carry out light physical work and clerical duties.
61 In his second report dated 20 May 2015, Mr Dooley noted that Mr Glibanovic had undergone a total left hip replacement operation in January 2014 which was complicated by post-operative infection. He obtained a history from Mr Glibanovic that he was still experiencing pain in the upper hamstring, buttock, right knee and back and was prescribed various medications including Targin, Lyrica, Topiramate, Panadol Osteo, Endep and Mobic.
62 Mr Dooley remained of the view that Mr Glibanovic sustained a soft tissue injury to his right knee and lumbar spine and aggravated degenerative tearing of the medial meniscus of his right knee. He stated that the soft tissue injury to his lumbar spine involves some aggravation of naturally occurring degenerative disc disease of the low lumbar spine which accounts for the intermittent low back pain and some pain in the buttocks and thighs.
63 Mr Dooley remained of the view that the left hip surgery was carried out on the basis of naturally occurring osteoarthritis. He further noted that acromegaly exists where there is an excess of growth hormone which is usually due to a benign adenoma of the pituitary gland which most commonly presents in people between the ages of their mid-20s and early 40s. He stated that the excess of growth hormone results in an increase in the size of bones that grow by membranous ossification, e.g. facial and skull bones. He noted that patients with this condition can develop thickening of the digits in the hands and feet and the condition can lead to development of cardiac failure and diabetes. Mr Dooley reported that patients with this condition are at risk of developing osteoarthritis of the lower limb joints as a consequence of thickening of the articular cartilage that occurs within the excess of growth hormone.
64 In his final report dated 15 March 2016, Mr Dooley noted that Mr Glibanovic had slowly deteriorated and continued to complain of constant and ongoing low back pain and pain in his groins and both thighs. Mr Glibanovic told him that he experiences pain with activity that involves him leaning forward slightly, notices pain in his right knee both of which make it difficult for him to engage in household chores and experiences difficulty with his left hand secondary to carpal tunnel syndrome. Mr Glibanovic told Mr Dooley that as WorkCover ceased paying for his medication he had reduced his medication intake.
65 Mr Dooley remained of the opinion that Mr Glibanovic sustained soft tissue injuries to his lumbar spine and aggravated an underlying degenerative tearing of the medial meniscus of his right knee. He opined that the injury to the lumbar spine involved some aggravation of underlying naturally occurring degenerative disc disease which accounts for his ongoing intermittent low back pain and pain that he experiences in the groins and thighs. He noted that on clinical examination, there was no evidence of objective neurological deficit affecting the lower limbs and previous MRI scanning did not show evidence of a major disc prolapse or nerve root entrapment. He recommends that Mr Glibanovic remain active, undertake low impact exercise and modify his activities in relation to lifting, bending and manoeuvring. Mr Dooley remained of the opinion that Mr Glibanovic’s left hip condition is due to osteoarthritis of the left hip joint and is either naturally occurring or has occurred as a result of his acromegaly. He does not believe that it was caused by the work episode on 5 February 2009 or by his work in general.
66 In relation to the suggested suitable employments, Mr Dooley opined that from an orthopaedic viewpoint Mr Glibanovic would have a physical capacity to work as a Clerk or Community Support Worker in relation to his back, right knee and hip conditions but would not be able to work as a storeman. He noted that given his overall presentation he would struggle to be gainfully employed.
67 Associate Professor Love assessed Mr Glibanovic on behalf of Xchanging on 25 February 2015. He had previously treated Mr Glibanovic and operated on his right knee in 2009. Mr Glibanovic told Associate Professor Love that he was suffering from intense low back pain but his right knee and left hip were not troubling him greatly. Associate Professor Love considered Mr Glibanovic to be a chronic invalid and that in order for him to regain some functional capacity he would need to lose weight and suggested that he undergo a gastric reduction procedure. He diagnosed him as suffering degenerative disc disease and early degeneration in his right knee and could not see him returning to any work in the foreseeable future.
68 Mr Jones, Orthopaedic Surgeon assessed Mr Glibanovic on behalf of the defendant’s lawyers on 5 May 2015. Mr Jones noted that Mr Glibanovic underwent lap band surgery in 2011 which resulted in him losing 20 kg in weight to his current level of 150 kg. Mr Glibanovic told Mr Jones that his right knee was “not bad” but that he experiences constant and varying low back pain which extends to his left and right groins and thigh regions which restricts walking and standing to between 10 and 20 minutes and sitting for about one hour. After conducting an examination and referring to the various medical reports and radiological reports provided, Mr Jones opined that Mr Glibanovic has seemingly recovered from what appears to have been a minor aggravation to a likely mildly degenerative condition affecting his lumbar spine and has substantially recovered from the effects of his right knee injury.
69 The defendant attended a report from Dr Yong, Specialist Occupational Physician dated 9 January 2017. Dr Yong was provided with all medical reports referred to including the nabenet reports. Mr Glibanovic told Dr Yong that his predominant symptoms are pain in his low back with occasional shooting pain down his legs. He also said that he suffers occasional urinary and faecal incontinence and still experiences discomfort in his left hip and right hip but his right knee is “generally better now”.
70 Mr Glibanovic told Dr Yong that his current medication intake included; 150 mg Lyrica twice a day, 4 to 8 Panadeine tablets per day, 2 Endep tablets at night, 50 mg of Topamax twice a day, 7.5 mg of Mobic and 10 mg of Cortisone twice a day. He also told Dr Yong that he can; drive his children to school, drive to the chemist, make lunch, tend to his vegetable patch, fish from a jetty, make coffee, shop with his children and operate the washing machine. He said that he varies his posture every 30 minutes between sitting and standing, avoids prolonged walking and can drive to Melbourne if he has rest breaks.
71 Dr Yong reported that Mr Glibanovic is morbidly obese as he weighs 145 kg with a body mass index of 42. Dr Yong reported that Mr Glibanovic has an aggravation of a degenerative lumbar spine, a treated right knee meniscal tear, a left hip degenerative condition which required a total hip replacement with some left hip dysfunction and a right hip degenerative condition. Mr Glibanovic denied undertaking any voluntary work and in relation to his carers duties, he told Dr Yong that he supervises his 10-year-old autistic son to ensure that he does not wander and that prior to the very recent death of his mother he was overseeing her medication intake and providing general supervision of her.
72 Dr Yong considered that Mr Glibanovic’s physical tolerances to be; sitting 30 minutes, avoid prolonged walking, avoid kneeling tasks, driving up to 45 minutes and avoid lifting more than 4 kg on a repetitive basis. In relation to his back condition, Dr Yong suggests that Mr Glibanovic participate in an activity based recovery program on a graduated basis which should include a range of active physical therapy modalities which include an exercise program, swimming sessions and walking programs.
73 Dr Yong considered Mr Glibanovic to be unfit for his pre-injury duties but has a capacity for work with the following restrictions;
• avoid repetitive bending and twisting of the back;
avoid repetitive firm pushing or pulling;
vary posture regularly between sitting, standing and walking;
avoid lifting more than 4 kg on a repetitive basis;
an initial reduction in working hours.
74 In relation to the suggested suitable employments, Dr Yong opined that Mr Glibanovic would not have the capacity to work as a Store person but would have the capacity to work as a Purchasing and Supply Logistics Clerk, General Clerk, Inquiry Clerk and possibly a Community Support Worker. He made the following analysis of each suggested suitable employment:
Purchasing and Supply Logistics Clerk: this describes performing tasks in an office based environment attached to a warehouse. This would involve a range of administrative tasks, including computer-based tasks. This role complies with the recommended restrictions, and thus would be considered suitable to perform.
General Clerk: this describes recording, preparing, sorting, classifying and filing information, sorting, opening and sending mail, photocopying and faxing documents, issuing of equipment to staff, receiving letters and telephone messages, doing computer-based duties, to provide customers information about various services and may require reception duties. Dr Jong considers that this role complies with the recommended restrictions and would be considered suitable for Mr Glibanovic to perform.
Inquiry Clerk: this has similar physical requirements of an administration officer. In his opinion, this role complies with the recommended restrictions, and would be suitable for Mr Glibanovic to perform.
Community Support Worker: this requires assessing clients’ needs and planning and developing and implementing education, training support programs. It involves interviewing clients and assessing the nature and extent of difficulties, monitoring and reporting the progress of clients, referring clients to agencies that can provide initial help, assessing community needs and resources for health, welfare, housing, employment, training and other facilities and services, liaising with community groups, supporting families and providing education and care for children and disabled persons in units, group housing and government institutions and may involve doing a range of office administration -type tasks. There may be a requirement to provide hands-on care for children and disabled persons and assisting with personal care tasks. Dr Jong noted that these duties may exceed the current restrictions and therefore the role would require individual assessment.
Conclusion
75 The defendant does not dispute that Mr Glibanovic continues to experience symptoms and disability resulting from the injury sustained to his back and right knee on 5 February 2009. The defendant asserts that these injuries do not result in him having ‘no current work capacity which is likely to last indefinitely’. The defendant submitted that Mr Glibanovic has the capacity to return to work in the suggested suitable employments as a Purchasing and Supply Logistics Clerk, Inquiry/General Clerk or as a Community Support Worker. Should the court make such a finding, the defendant submits that S 99(14) applies and Mr Glibanovic has no ongoing entitlement to payment of reasonable medical and like expenses. The defendant also contends that the claimed ongoing condition of the left hip is no longer contributed to by the injury sustained on 5 February 2009.
76 In general, I found Mr Glibanovic to be an honest and credible witness notwithstanding that I considered him to downplay the extent of his role in the Mosque and his failure to inform all doctors that despite his symptoms and physical restrictions he has been able to travel overseas and interstate in recent years.
77 I accept his evidence as being truthful that he continues to experience fluctuating levels of pain in his low back which extend to his left and right groins and legs and occasional discomfort in his right knee. I find that as a consequence he is restricted in performing physical tasks. His discomfort was noticeable during the hearing because when he gave evidence over a period of 3.5 hours he had to regularly change his posture regularly and alternate between sitting and standing.
78 Mr Glibanovic is an intelligent man who is articulate and literate as demonstrated by his role as Secretary of the Islamic Society of Gippsland and the interviews he gave on ABC radio and to the Latrobe Valley Express newspaper. The evidence also revealed he had previously stood for a seat in State Parliament in the 2006 election and was able to manage a not insignificant investment portfolio which he acquired following the common law settlement for the right hand injuries sustained by him in 1997.
79 Mr Glibanovic suffers from a multitude of medical problems, some of which do not relate to his employment with the defendant. These include his pre-existing right hand amputation injuries, hypertension, acromegaly and the removal of a pituitary tumour in 2013. The significance of his right hand injury and the limitations it imposes cannot be disregarded when considering his capacity for employment. The law is quite clear that an employer must take a worker as it finds him or her not only in relation to his or her physical condition, but also in relation to the various factors set out in the definition of ‘suitable employment’ contained in S 5 of the Act.[1] These include; the nature of his pre-injury employment; his age, education, skills, work experience and his place of residence.
[1] See Dumancic v GIO & JWL Constructions Supreme Court Unreported 4 March 1998, McPeake v D&F Bell [2006] VCC 318 Bowman J.
80 The general consensus of the medical experts is to the effect that Mr Glibanovic aggravated an underlying degenerative condition of his lumbar spine as a consequence of the work performed by him in the course of his employment with the defendant on 5 February 2009. There is also consensus that he tore the medial meniscus of his right knee as a consequence of the work performed by him on that date. Associate Prof Myers and Associate Prof Love are also of the opinion that he aggravated an underlying osteoarthritic condition of his right knee as a consequence of the work performed by him on 5 February 2009. Mr Moran is of the opinion that he may develop osteoarthritis of the right knee which may require surgery. Dr Nathar, being the only psychiatric opinion placed before the court, considers Mr Glibanovic to be totally and permanently incapacitated as a consequence of his psychiatric state. The court would have been assisted by hearing evidence from Dr Winfield, his treating psychologist. The decision not to call him or tender a report from him is somewhat curious. Nevertheless, the reports of Dr Nathar were tendered by consent and he was not required for cross examination by the defendant. Accordingly, I accept his opinion as being valid having noted that he assessed Mr Glibanovic on 4 occasions over a 5 year period.
81 The issue of causation in relation to his left hip is more contentious. Mr Brearley is of the opinion that Mr Glibanovic probably put more strain on his left hip because of his right hip condition and his significant weight increase. Associate Prof Myers and Dr Yong considered that Mr Glibanovic aggravated the pre-existing underlying osteoarthritic condition of the left hip as a consequence of the work duties. Mr Dooley, however is of the opinion that the underlying osteoarthritic condition of both hips is due to Mr Glibanovic’s long-standing condition of acromegaly and is not work-related. Although he initially expressed his opinion in a report to the defendant’s solicitors dated 15 January 2014, Xchanging previously accepted liability for arthroscopic surgery to the left hip and then a left hip replacement operation which occurred on 14 January 2014.
82 After considering the medical evidence, I find that it is more likely than not that Mr Glibanovic suffered an aggravation of the underlying osteoarthritic condition of his hips as a consequence of the work performed by him on 5 February 2009, which was temporary in nature and which has been compounded by him favouring his left side due to right sided pain and the massive increase in his weight over the years due to inactivity.
83 I also find that Mr Glibanovic continues to suffer from varying levels of low back pain and occasional right knee pain which requires daily medication. I accept that he does have good and bad days depending on the level of pain and restriction. I also find that his condition has deteriorated since his access to ongoing medical treatment was terminated on 30 April 2015.
84 Mr Glibanovic was able to return to modified duties after sustaining injury on 5 February 2009. These duties were restricted to console duties where he was able to sit or stand at will and take rest breaks when needed but ultimately his condition caused him to stop work altogether in August 2010. He also demonstrated his willingness to return to work in suitable employment by engaging with nabenet and unsuccessfully applying for suitable employment positions in 2010 and 2011.
85 The defendant suggests that Mr Glibanovic has a capacity to return to work as a Purchasing and Logistics Clerk. General/Inquiry Clerk or Community Support Worker. In support of its submission, it relies on the medical opinions of Mr Dooley and Dr Yong and the opinions expressed in the nabenet reports. It also relies on the evidence of Mr Glibanovic that he had previously considered himself fit for suitable work and had in fact applied for a number of jobs. It is not disputed by the defendant that it carries an evidentiary onus to demonstrate that suitable employment exists.
86 In determining this issue, I have had regard to the medical and vocational evidence tendered including what is alleged to be the tasks that are required to be undertaken in each of the suggested suitable employments and the factors referred to in the definition of ‘suitable employment’ as contained in S 5(1) of the Act.
87 It is of some importance that the suggested suitable employments were identified in 2010 some 15 months after Mr Glibanovic sustained injury, at a time when Dr Kee certified him as fit for suitable duties and a time when he was endeavouring to return to work with the defendant on a return to work plan. The suggested suitable employments and the tasks required as described by Ms Allemand and more recently Dr Yong are generic in nature and in my opinion, do not provide any practical and realistic content to the positions described. As I stated in Manthopoulos v Spencwill Nominees Pty Ltd on 26 April 2012[2], “the suggested jobs do not, in any great detail, describe the precise physical activities required, the inherent requirements of the job, the duration of each duty, the number of hours required to be worked, the skills required or training involved and the flexibility allowed to cater for individual needs. There is no “degree of realism“ in the suggested ‘suitable employment’ alternatives”. More recently, the Court of Appeal in the matter of Richter v Driscoll & Ors[3] noted that the duties upon which a Medical Panel based its opinion were a generic description of activities which were required by different jobs falling within the job title ‘light process/production worker’.
[2] [2012] VMC 15 para 52.
[3] [2016] VSCA 457.
88 In relation to the definition of ‘no current work capacity’ the court held that the definition required consideration of a worker’s capacity to return to work in employment in a ‘meaningful way’, as a settled member of the workforce.[4] The court held that if the Panel was to conclude that Ms Richter ‘had an ability to engage in employment which required one or more of the duties described’ it ‘was required to give some practical content to the job involved, in order that its conclusion was capable of being examined’. In other words, the duties were described in generic terms and to simply ‘accept and act upon the characterisation that the physical demands of those duties were light to medium was a lesson in obscurity’. Additionally, without an exposition of duties involved in some job that fell within the broad job title, it was also not possible to determine whether a job fitting the description was available when regard was had to Ms Richter’s place of residence.
[4] Paras 74-75.
89 Similarly, the descriptions of the suggested ‘suitable employments’ given by both Ms Allemand in her report dated 28 May 2010 and Dr Jong in his report dated 9 January 2017, do not address the issues raised in both cases and therefore lack evidentiary value.
90 I find that the opinions of Mr Dooley and Dr Jong on the issue of Mr Glibanovic’s capacity to be unsound as the specific tasks of the suggested ‘suitable employments’ which they have based their opinions have not been properly and fully analysed. The description of each of the suggested ‘suitable employments’ do not specify the inherent requirements of the job, including; the hours of work; whether any of the tasks require repetitive bending or lifting, If so, the weights involved, whether the objects are required to be lifted from waist height, knee height or from the ground, which tasks can be performed from a seated or standing position and whether Mr Glibanovic is permitted to take regular rest breaks as needed. Furthermore, the nabenet reports did not identify an actual job which was said to be suitable, but rather a generic description of jobs and what was asserted to be the general tasks involved in those jobs.
91 It is also of importance that the opinions of both Mr Dooley and Dr Jong are based on the physical capacity of Mr Glibanovic to perform the generic tasks of the suggested suitable employments without regard to his psychiatric condition and capacity. Mr Dooley did note that Mr Glibanovic’s psychological condition is influencing his symptoms and that on presentation he considers that Mr Glibanovic would struggle to be gainfully employed.
92 Furthermore, the nabenet report is outdated, having been written nearly 7 years ago, 15 months after Mr Glibanovic sustained injury and at a time when he was certified fit for suitable duties. His condition has deteriorated since then, his medication increased, he has been certified as unfit for all work and has been diagnosed as suffering from a chronic adjustment disorder with anxious and depressed mood (or a major depressive disorder) and a chronic pain syndrome of moderate severity. He has also more recently been referred for psychiatric treatment and is taking antidepressant medication. I do not consider that he could reliably present for employment based on his current physical symptoms, his depressive condition and his current medication intake. His medication regime includes a number of medications with well recognised side effects including; drowsiness, shortness of breath, nausea, tiredness and insomnia.
93 After considering these factors and the matters referred to in the definition of ‘suitable employment’ contained in S 5, namely; the nature of his pre-injury employment, his age, work experience and place of residence (Yallourn Nth), Mr Glibanovic does not have the physical or psychiatric capacity to return to work in his pre-injury employment or suitable employment.
94 For the above reasons, I am satisfied that Mr Glibanovic has ‘no current work capacity’ which is likely to last indefinitely. I am satisfied that he requires ongoing medical treatment in the form of medication, massage and physiotherapy to relieve his symptoms together with ongoing psychological/psychiatric counselling.
95 Accordingly, Mr Glibanovic is entitled to weekly payments of compensation from 3 September 2011 and reasonable medical and the like expenses from 30 April 2015 in accordance with the provisions of the Act.
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