Hamisi Mbwana and Comcare
[2013] AATA 899
[2013] AATA 899
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0613
Re
Hamisi Mbwana
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 17 December 2013 Place Sydney The Tribunal:
(a)sets aside the decision under review and substitutes a decision that as at 13 November 2012, Mr Mbwana continued to suffer the effects of his 1996 injury;
(b)remits the matter to the Respondent to assess Mr Mbwana’s capacity for suitable work and his entitlements under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act);
(c)orders that the Respondent pay the costs of these proceedings incurred by the Applicant pursuant to s 67(8) of the SRC Act.
.......................[sgd].................................................
Deputy President RP Handley
Catchwords
COMPENSATION - pre-existing degenerative back condition - whether continues to suffer from the effects of an injury - decision set aside and remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A, 14, 16(1), 19, 36, 37, 40, 67(8), 69
REASONS FOR DECISION
Mr Mbwana has applied for the review of a decision made by Comcare refusing his claim for workers compensation payments in respect of medical treatment and incapacity for work in relation to an accepted claim for a back injury sustained on 30 April 1996.
BACKGROUND
Mr Mbwana, who is now aged 56, was born and educated in Tanzania (formerly Tanganyika) and migrated to Australia in 1989. In approximately 1991, he obtained employment working for the Department of Defence as a gardener and handyman at Victoria Barracks in Sydney. On 30 April 1996, he injured his lower back in an accident at work while lifting a bag of topsoil in the course of topdressing a tennis court. He was certified unfit for work from 1 May 1996, and returned to work on light duties in about June 1996. Thereafter, he had periods off work before being transferred to the Department of Defence mail room on 9 September 1997 and then, on 31 October 1997, to the print room.
On 8 May 1996, Mr Mbwana made a ‘Claim for Rehabilitation and Compensation’ in respect of a lower back strain. Comcare initially accepted liability for incapacity payments and treatment expenses for a limited period only. There followed a number of further claims, determinations, requests for reconsideration and reconsideration decisions over an extended period.
When the Department of Defence’s printing business was privatised, Mr Mbwana accepted voluntary redundancy and his employment with the Department ceased on 20 April 2001. He has not worked since.
On 13 November 2012, a delegate of Comcare decided that Mr Mbwana was not entitled to compensation for medical treatment or incapacity because “you do not presently suffer from the effects of your compensable condition”. Mr Mbwana sought a review of this decision and, on 21 January 2013, another delegate of Comcare affirmed the decision. On 11 February 2013, Mr Mbwana lodged an application for a review of this decision by the Tribunal.
LEGISLATION AND ISSUES
The relevant legislation in respect of claims for workers’ compensation by Commonwealth employees is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Section 14 of the SRC Act provides that Comcare is liable to pay compensation under the Act for an ‘injury’ (as defined in s 5A) suffered by an employee which results in incapacity for work.
Section 16(1) of the SRC Act states:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 provides relevantly:
(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 …
On 29 May 1996, Comcare accepted liability for Mr Mbwana’s injury. The principal issue for the Tribunal to decide is whether Mr Mbwana continued to suffer the effects of the injury as at 13 November 2012 or whether his current condition is due to a pre-existing, degenerative condition.
MR MBWANA’S EVIDENCE
Mr Mbwana provided a statement signed on 5 December 2013 and gave evidence at the hearing. Prior to migrating to Australia in 1989, he worked as a sailor and deck hand in the merchant navy. He said this did not involve heavy work; heavy work was done by machines. After arriving in Australia, it was about two years before he found work as a gardener, for the Department of Defence, at Victoria Barracks in Sydney. This involved tasks such as mowing, planting flowers and looking after the tennis courts and cricket pitch. Some of this was heavy work, such as pushing a roller to roll the cricket pitch. Mr Mbwana denied having experienced back problems before 1996 although he acknowledged that in May 1996 he might have told Dr Pillemer that he previously had occasional pain in his back although not serious enough to require his consulting a doctor.
Mr Mbwana said that on 30 April 1996, he was lifting a bag of topsoil in the course of topdressing the tennis courts when he felt a click and a sharp pain in the middle of his lower back. This was on the last day of a three day job working with four or five other people. They filled bags with the topsoil, placed the bags on a trailer pulled by a tractor and then unloaded the bags onto a wheelbarrow before pouring the topsoil onto the tennis courts. Mr Mbwana described the dimensions of the bags as being about 40 cms by 80 cms and weighing about 30 kgs, although they did not have anything with which to weigh the bags when filling them. He told his supervisor of the incident and of what he experienced in his back. This was just before tea time. After tea, when he got up, he again felt pain and his supervisor told him to go home. He then went to see his general practitioner (GP), Dr Ryan.
In about June 1996, Mr Mbwana returned to work on light duties. However, on 11 December 1996, he suffered an aggravation of his lower back condition, with pain extending to his right buttock and thigh, while attempting to push a sweeper machine which was stuck in a gutter. Mr Mbwana said he also reported this incident.
On 2 June 1997, Mr Mbwana saw Dr Edmund Graham, Orthopaedic Surgeon. On 24 June 1997, Dr Graham performed a discogram on Mr Mbwana. In the course of his expert evidence (see below), Dr Bodel described this process as involving, first, the injection of a dye into a disc in the spine to confirm the position of the needle and, second, if the needle was correctly positioned, using the same needle to inject an enzyme into the disc to dissolve the collagen in the disc and thereby reduce the pressure in the disc and the pain suffered by the patient. Dr Bodel said this treatment was subsequently discredited because, while it achieved an improvement in symptoms for some patients although not resolving their pain, other patients experienced a worsening of symptoms from what was a very painful procedure. Mr Mbwana said that although the procedure was performed under a general anaesthetic, it was very painful. He felt “horrible” afterwards, experienced worse pain and there has never been an improvement in the pain since then. After the procedure, he had difficulty even sitting on the toilet. Mr Mbwana said before the procedure he experienced pain every day, but some days worse than others. After the procedure, he continued to experience pain in the same area of his back but also experienced a sound in his ear. The pain has never improved.
Mr Mbwana said it was after this procedure that he worked in the mail room and then the print room. He was able to do the work in the print room which involved putting paper in the printer and did not involve any bending or lifting. It was this work that he did until 2001 when he was made redundant. In the period to 2001, he had a graduated return to work, which involved a gradual increase in his hours to six hours a day on four days a week, then five days a week and then full-time hours. The symptoms in his back remained the same throughout this period. When he was made redundant in 2001, he was told he would be paid incapacity payments until he found another job. After being made redundant, his back symptoms did not change. He was also affected mentally because he wanted to work in order to support his family but could not do so.
Mr Mbwana saw Dr Geoffrey Rosenberg, Orthopaedic Surgeon, on 14 November 2002. He said Dr Rosenberg suggested surgery to insert a plastic disc in his back but Mr Mbwana was not comfortable with this because of the associated risks.
Mr Mbwana agreed that between 7 August 2001 and 7 August 2012 Comcare did not require that he attend for medical examination. He said there was no change in his back pain over this period, although he now feels pain in his right knee and numbness in the toes of his right foot. He acknowledged that he has not looked for work and explained that this was because he was afraid of his back pain becoming worse if he got another job, and because it would be difficult to find a suitable job with his being unfit for manual work, which was the only kind of work that he had undertaken since 1989. However, he said it was also because of the financial support he was receiving from Comcare. Mr Mbwana agreed that that he could have continued doing the light duty work he was performing when he was made redundant. He stated that Comcare have not approached him about undertaking rehabilitation, although equally, he agreed that neither he nor his GP, Dr Yohendran, have approached Comcare about this.
Mr Mbwana stated that his private life has also been affected by the injury. He said he met his wife many years ago in Tanzania. She came to Australia in 2008 to marry him and they now have twin daughters aged three. His wife does most of the work around the house and she has a 15 year old daughter from a previous relationship who also helps in the house. His wife or friends do maintenance jobs around the house and any lifting that is required. A friend does the mowing. Mr Mbwana said that before the injury he was a very active person and used to jog and play soccer. Since the injury he has not been able to do much. Mostly he stays at home. He watches television, “walks a little bit” and looks after the twins when they are not at childcare. The twins spend all day Monday at childcare and two hours at a Salvation Army childcare on Wednesday. Otherwise, he looks after them while his wife is at work. Since his incapacity payments were stopped, she has been doing two jobs in order to pay the bills. She helps with paying for his medication. He takes Panadeine Forte as required. He last had physiotherapy about five months ago, paid for by Medicare.
On the day before the hearing, Mr Mbwana’s solicitors lodged an unsigned statement from his wife, Nadhifa Mshindo, subsequently signed on 5 December 2013. The Tribunal took this document into evidence, noting the Respondent’s objection, but did not permit Ms Mshindo to give evidence and referred to the statement only for the purpose of confirming Mr Mbwana’s evidence about his daily activities.
MEDICAL EVIDENCE
The Applicant provided the Tribunal with reports from Dr James Bodel, Orthopaedic Surgeon, dated 11 March 2013, 11 April 2013, 3 July 2013 and 28 October 2013, and the Respondent provided reports from Associate Professor Neil McGill, Rheumatologist, dated 16 May 2013 and 1 June 2013. Dr Bodel and Professor McGill gave evidence concurrently at the hearing.
Dr Bodel
In his principal report dated 11 March 2013, Dr Bodel diagnosed Mr Mbwana’s condition as “mechanical backache associated with disc pathology in the lumbosacral junction”. Dr Bodel said Mr Mbwana’s injury on 30 April 1996 “does contribute to his ongoing incapacity for work” and he :
… is fit for light to moderate manual tasks and with improved physical fitness levels and better control of his back pain with the possible injection mentioned by Dr McGee-Collett, he may be able to return to at least part time permanently modified duties.
In his report dated 11 April 2013, Dr Bodel said Mr Mbwana’s 1996 injury:
… caused structural damage in the lower part of the back which has steadily deteriorated over time. He has been symptomatic all the time and in my view that event on 30 April 1996 is still a substantial contributing factor to his current disability.
He has recently been reviewed by a neurosurgeon who considers that a block injection is required for the ongoing management of his injury. I am satisfied therefore that ongoing complaints are due to the effects of the injury 17 years ago by way of probable disc injury that occurred at that time and also by way of aggravation of the underlying degenerative process which is seen throughout the MRI scan.
In his report dated 3 July 2013, Dr Bodel commented on a report by Professor McGill dated 16 May 2013 (see below). Dr Bodel said he was still satisfied that Mr Mbwana’s 1996 injury “is causally linked to his current status” although he said that to be absolutely certain one would need to see the actual X-ray films taken over the course of the period 1996 to October 2012.
In evidence at the hearing, Dr Bodel agreed that it appears from the report of Dr Tom Ruut of a CT scan performed on 7 May 1996 that, at the time of the injury, Mr Mbwana had longstanding degenerative disease in the lower back, greater than might normally be expected in a person of his age. Dr Bodel said the nature of the 1996 injury is not clear after 17 years but there was probably some structural damage – probably bulging of the annuli at L3/4 and L4/5 - and Mr Mbwana experienced increased back pain after the incident. However, Dr Bodel said the discogram performed by Dr Graham on 24 June 1997 also gave rise to its own problems and contributed to Mr Mbwana’s current condition, elevating the level of pain experienced by Mr Mbwana. Dr Bodel described the discogram performed by Dr Graham, of which he had knowledge having worked at one time as Dr Graham’s registrar. In Mr Mbwana’s case, the discogram involved the injection of contrast material at L3/4 and L4/5 which revealed posterior leaks of contrast material suggestive of ruptured annuli. Using the same needle, the enzyme chymopapain was then injected into the discs in order to dissolve collagen in the discs with the object of decreasing pressure in the discs and thereby reducing the pain suffered by the patient.
Dr Bodel said this procedure could be of some benefit in reducing symptoms but it was a very painful procedure and the condition of some patients deteriorated after treatment. It is no longer thought to be a good treatment. Dr Bodel said that, in his opinion, the enzyme injection, which changed the discs irreparably, contributed to Mr Mbwana’s current pathological condition.
Associate Professor McGill
In his report dated 16 May 2013, Professor McGill said:
I think he [Mr Mbwana] suffered an exacerbation of symptoms related to degenerative lumbar disc disease, predominantly at the L4/5 level, as a result of his work activities on 30 April 1996. …
He had advanced degenerative disease at L4/5 at the time of the initial work incident as confirmed by the CT scan of his lumbar spine performed within one week of that incident. The changes evident in his lumbar spine of 25 October 2012 were very similar to those which were reported immediately following the work accident. The relative lack of radiological evidence over 17 years argues strongly against the 30 April 1996 incident having any structural effect on his spine.
…
I think the genuine duration of symptoms related to the work incident is likely to have been weeks rather than months but I accept that it is impossible to provide an exact duration.
… I think there is no likelihood that the work incident continues to influence his symptoms.
Development of the degenerative changes in his low back was constitutional and well developed at the time the work incident occurred. Based on the radiological reports, there has only been slight further deterioration since then despite the 17 years which have passed.
…
Putting aside the cause of his back problem, he would be fit for activities not involving repetitive bending or heavy lifting.
Professor McGill was asked to comment on Dr Bodel’s report dated 11 March 2013, Professor McGill said that he and Dr Bodel agreed that Mr Mbwana’s symptoms are related to degenerative change in the low lumbar spine and that Mr Mbwana is fit for activities not involving repetitive bending or heavy lifting (more than 10 kg). However, Professor McGill noted his disagreement with Dr Bodel on the cause of the degenerative change.
In evidence at the hearing, Professor McGill said Mr Mbwana may have put up with minor back pain before the incident in April 1996. A report by Dr Roger Pillemer, Orthopaedic Surgeon, dated 13 May 1996, states:
The patient informs me that he has been getting occasional pain in his lower back over the past 2-3 years, but he has never sort [sic] medical treatment in this regard and has never taken any time off work.
Professor McGill noted that an episode of pain does not necessarily mean that there has been a change in pathology. Moreover, disc bulges are a common symptom of degenerative disease. It is likely that Mr Mbwana’s symptoms were related to degenerative disease and very unlikely that his current symptoms are related to that incident. He thought it unlikely that the discogram had any significant effect because Mr Mbwana’s discs at L3/4 and L4/5 were already severely degenerate.
Other Medical Evidence
The Tribunal has also been provided with reports dated 11 August 2012 and 18 December 2012 from Dr Joe Yohendran, Mr Mbwana’s GP, and Dr Yohendran’s clinical notes. In his earlier report, Dr Yohendran said that currently Mr Mbwana “suffers from lower backache with sciatic pain radiating down R buttock, R thigh and R knee”. He said it is unlikely that the incident on 30 April 1996 will ever cease to be a contributing factor to Mr Mbwana’s condition. With further education and training, a graduated rehabilitation program and restrictions on lifting, Dr Yohendran stated that Mr Mbwana would be able to return to normal working hours within two years.
The T Documents also contain medical reports from other specialists whom Mr Mbwana has consulted about his lower back in the period since April 1996 or who have reviewed Mr Mbwana on behalf of the Department of Defence or Comcare, together with the reports of a CT scan, five MRI scans, a discogram, a technetium bone scan and two x-rays. After accepting liability for permanent impairment on 28 September 2001, Comcare did not, apparently, seek a medical review of Mr Mbwana’s condition until he was examined by Dr John Walsh, Orthopaedic Surgeon, on 7 August 2012.
Dr Walsh’s report dated 13 August 2012 was relied upon by Comcare in making the determination dated 13 November 2012 and the reviewable decision dated 21 January 2013. Dr Walsh said Mr Mbwana has age-related degenerative changes at L3/4 and L4/5. He said: “I suspect when he lifted the heavy bags of sand he strained the facet joints and aggravated an underlying disc problem at the L4/5 level.” Dr Walsh also said: “The effects of that aggravation would have resolved long since.”
THE APPLICANT’S SUBMISSIONS
Mr Grey, for the Applicant, whilst acknowledging that there is no burden of proof in Tribunal proceedings, submitted that the Respondent should assume the responsibility of establishing to a reasonable degree of satisfaction that the effects of the injury have been overtaken by Mr Mbwana’s underlying degenerative condition to the extent that this condition was, as at 13 November 2012, responsible for any incapacity and need for medical treatment.
Mr Grey noted that the reviewable decision does not seek to set aside the decision made in May 1996 to accept liability for Mr Mbwana’s injury under s 14 of the SRC Act.
Mr Grey said in the period before Mr Mbwana stopped work in 2001, there was a consistent body of medical opinion connecting his condition with the effect of the 1996 injury. Between the time that Comcare agreed to pay compensation to Mr Mbwana for a 10% whole person impairment on 28 September 2001 and 2012, neither Comcare nor Mr Mbwana’s former employer, the Department of Defence, suggested that the effects of Mr Mbwana’s 1996 injury had resolved. Moreover, no steps were taken either to assist Mr Mbwana with rehabilitation (ss 36 and 37 of the SRC Act), noting that Mr Mbwana was undertaking full-time light duties at the time he was made redundant, or to assist him in finding other suitable employment (s 40 SRC Act).
Mr Grey said the radiology does not indicate a significant underlying degeneration during this period and there has been no significant change in Mr Mbwana’s symptoms. The concurrent evidence of Dr Bodel and Professor McGill demonstrated that, many years after the event, it is difficult to know with medical certainty what are the factors affecting the pathology in Mr Mbwana’s back. However, it would be unfair to Mr Mbwana to accept an argument that the effects of the injury had resolved at least 12 years ago, as suggested by Dr Walsh’s and Professor McGill’s evidence, when it is no longer possible for Mr Mbwana to present more contemporaneous evidence. The Respondent’s long term acceptance of the status quo should be taken into account by the Tribunal.
Mr Grey noted that discogram performed by Dr Graham in June 1997 involving the injection of contrast material at L3/4 and L4/5 suggested ruptured annuli at these levels. Dr Graham subsequently injected both discs with enzyme.
Mr Grey submitted that the evidence establishes that Mr Mbwana has an ongoing incapacity for work as a result of the injury and needs medical treatment. Mr Mbwana continues to take pain killers (Panadeine Forte) and to undergo intermittent physiotherapy. This treatment regime has been in place for many years and there is no suggestion that it is unreasonable. Mr Grey acknowledged that the level of Mr Mbwana’s incapacity – whether he is partially or totally incapacitated for work – has yet to be determined, but submitted that consideration must be given to whether rehabilitation would be effective before the level of incapacity can be determined. These issues should be dealt with on a remittal to the Respondent.
THE RESPONDENT’S SUBMISSIONS
Mr Dube, for Comcare, acknowledged that the reviewable decision is whether, as at 13 November 2012, Mr Mbwana was not presently entitled to compensation under ss 16 and 19 of the SRC Act. He noted that it is not necessary to establish when Mr Mbwana’s work–related aggravation ceased. Comcare relies on the reports of Dr Walsh and Professor McGill to the effect that the aggravation has ceased. Both Professor McGill and Dr Bodel accepted that the 1996 CT scan indicates that at that time Mr Mbwana had longstanding degenerative changes in his lumbar spine. In a report dated 10 August 2001, Dr Peter Stevenson, Physician, who assessed Mr Mbwana’s condition for Comcare, stated: “It is probable that with the passage of time the underlying degenerative affects [sic] will become progressively more and more important and the occupational injury less.”
With regard to the enzyme injections at L3/4 and L4/5 performed by Dr Graham in June 1997, Mr Dube noted that Dr Bodel acknowledged that the enzyme would only have changed Mr Mbwana’s condition a little.
Mr Dube submitted that there is sufficient evidence that as at 13 November 2012 the effect of the work-related injury had ceased. However, if the Tribunal is against the Respondent on this, he asked that the matter be remitted with a finding that Mr Mbwana is physically capable of performing full-time light duties.
DISCUSSION
As stated above, the principal issue for the Tribunal to determine is whether, as at 13 November 2012 - the date of the original decision in this matter - Mr Mbwana continued to suffer the effects of his 1996 injury or whether his current condition is due to a pre-existing, degenerative condition.
A major difficulty in this case is the significant lapse of time since the injury occurred on 30 April 1996. A further difficulty is the lack of specialist reports between that of Dr G Rosenberg, Orthopaedic Surgeon, dated 24 January 2003 and that of Dr J Walsh, Orthopaedic Surgeon, dated 13 August 2012. Comcare appears to have taken no steps to review Mr Mbwana’s condition for a period of almost 11 years between the time of the reviewable decision on 28 September 2001 (substituting a decision that Mr Mbwana suffers from a 10% whole person impairment) and when Mr Mbwana’s GP was asked for a report on 24 July 2012, prior to Mr Mbwana being referred to Dr Walsh for assessment on 1 August 2012.
Associated with this lack of review was a failure to engage Mr Mbwana in any attempt at rehabilitation from the time he was made redundant on 20 April 2001 and while he continued to receive incapacity payments. At that time in 2001, he was working in full-time light duties at the Department of Defence, after, it appears, a gradual increase in his hours over several years. He continued to take leave, which was the subject of medical certificates, from time to time, and claimed treatment expenses, for example, for physiotherapy. The responsibility for rehabilitation lies with the ‘rehabilitation authority’ – here the Department of Defence – although as Mr Grey pointed out, Comcare, as the regulator of the scheme underlying the SRC Act, whose functions include under s 69(da) promoting the adoption of effective strategies and procedures for the rehabilitation of injured workers, would be thought to have a particular interest in this.
The medical evidence establishes that Mr Mbwana had a pre-existing degenerative condition of the lower back at time of his 1996 injury. This is clear from the report of a CT scan dated 7 May 1996. The evidence also establishes that Mr Mbwana suffered an aggravation of that condition in the incident on 30 April 1996 and, possibly, in a second incident on 11 December 1996 when he was pushing a mechanical sweeper that was stuck in a gutter. That aggravation may, according to Dr Bodel, have caused the bulging of annuli at the L3/4 and L4/5 levels of Mr Mbwana’s back.
The treatment undergone by Mr Mbwana following these incidents included a discogram by Dr Graham on 2 June 1997. This treatment included the injection of an enzyme into the discs at those two levels with a view to alleviating the pressure caused by the discs and therefore the pain suffered by Mr Mbwana. Dr Bodel’s opinion is that this treatment contributed to Mr Mbwana’s present pathological condition. Dr Bodel, who at one time worked as Dr Graham’s registrar, told me that the treatment was subsequently abandoned because it was very painful and sometimes resulted in a worsening of the patient’s symptoms. While Professor McGill was sceptical of Dr Bodel’s opinion, after such a long period of time since the treatment was performed and in the absence of any more definitive evidence, I am inclined to accept Dr Bodel’s opinion, especially in view of his first-hand experience working with Dr Graham, who is now deceased.
With regard to Mr Mbwana’s current condition, the medical evidence – the radiological evidence and the specialist opinion- as well as Mr Mbwana’s evidence, indicates that any change in his condition has been relatively minor. For example, Professor McGill states in his report dated 16 May 2013 that: “Based on the radiological reports, there has only been slight further deterioration since then [the time of the work accident] despite the 17 years which have passed.” Mr Mbwana told me that his condition has remained much the same since he was made redundant in 2001. I am satisfied from the above evidence that, as at 13 November 2012, Mr Mbwana continued, and currently continues, to suffer the effects of his 1996 injury.
There is still, however, a question as to the level of Mr Mbwana’s incapacity. Mr Mbwana’s evidence that his condition has remained much the same since he last worked, at which time he was working full-time in light duties, and the evidence both from Mr Mbwana and as recorded by the specialists who took a history of his condition and assessed him, suggests that while he suffers from what Dr Bodel described as “mechanical backache”, has difficulty with prolonged sitting (Mr Mbwana), and with repetitive bending and heavy lifting (Dr Bodel and Professor McGill), he may have a capacity for light work subject to restrictions. This was also the opinion of Mr Mbwana’s GP, Dr Yohendran, in his report dated 11 August 2012. Dr Bodel, in his report dated 28 October 2013, stated: “It would be difficult to return him to the workforce but he should have the capability of returning to modified work activities on a part time basis.” Dr Bodel’s comment of it being difficult for Mr Mbwana to return to work reflects on Mr Mbwana’s time out of the workforce and the need to improve his physical fitness. Thus, it would appear that an assessment needs to be made of Mr Mbwana’s capability of undertaking a rehabilitation program.
In my view, therefore, the appropriate outcome is to set aside the decision under review and substitute a decision that as at 13 November 2012, Mr Mbwana continued to suffer the effects of his 1996 injury. In light of the evidence of it being likely that Mr Mbwana is capable of performing light duty work, whether full-time or part-time, albeit that he may require the assistance of a rehabilitation program before doing so, it is appropriate to remit the matter to the Respondent for assessment of Mr Mbwana’s capacity to undertake suitable work.
DECISION
The Tribunal:
(a)sets aside the decision under review and substitutes a decision that as at 13 November 2012, Mr Mbwana continued to suffer the effects of his 1996 injury;
(b)remits the matter to the Respondent to assess Mr Mbwana’s capacity for suitable work and his entitlements under s 16 and s 19 of the SRC Act;
(c)orders that the Respondent pay the costs of these proceedings incurred by the Applicant pursuant to s 67(8) of the SRC Act.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of
DP Handley.................[sgd]........................................................
Associate
Dated 17 December 2013
Date(s) of hearing 5-6 December 2013 Date final submissions received 6 December 2013 Counsel for the Applicant L Grey Solicitors for the Applicant Carroll & O'Dea Lawyers Counsel for the Respondent B Dube Solicitors for the Respondent Sparke Helmore Lawyers
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