JOHN DIAMANTE and TELSTRA CORPORATION LIMITED
[2009] AATA 878
•13 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 878
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1412, 2008/1547
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN DIAMANTE Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Professor R Creyke, Senior Member
Dr M Miller AO, Member
Date13 November 2009
PlaceCanberra
Decision Application 2008/1412 – The decision under review is affirmed.
Application 2008/1547 – As at 17 January 2008 Mr Diamante is found to be totally incapacitated for work under s 19 of the Safety, Rehabilitation and Compensation Act 1988. The matter is remitted to Telstra to decide the amount of compensation payable to Mr Diamante.
.....................[sgd].........................
Professor R Creyke, Senior Member
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – incapacity to work – accepted injury – failure to seek suitable employment – continuing incapacity – decision remitted – accepted injury – payments for ongoing medical treatment – decision affirmed
Safety, Rehabilitation and Compensation Act 1988(Cth) – ss 4, 14, 16, 19
ReTan and Department of Defence [1998] AATA 132
Re West and Comcare [1994] AATA 33
Re Shanahan and Australian Postal Corporation (1995) 36 ALD 613
Comcare v Rawling (1993) 31 ALD 501
Woodbridge v Comcare (1994) 20 AAR 196
Re O'Shea and Comcare (1993) 18 AAR 430
Martin v Australian Postal Corporation (2000) 32 AAR 199
Re Fuller and Comcare [1996] AATA 882
Woodbridge v Comcare (1994) 20 AAR 196
Re Prica and Comcare (1996) 44 ALD 46
ReWilliams and Australian & Overseas Telecommunications Corporation (1993) 17 AAR 308
Comcare v Watson (1997) 46 ALD 481
ReWatson and Comcare (1996) 40 ALD 655
REASONS FOR DECISION
13 November 2009
Professor R Creyke, Senior Member
Dr M Miller AO, Member
BACKGROUND
1. Mr John Diamante, a communications technician employed by Telstra Corporation Limited (Telstra), suffered an injury at work on 8 February 2006 for which Telstra accepted liability. Compensation was paid for incapacity and for medical treatment. The claims in relation to both matters are dealt with in this decision.
2. Mr Diamante returned to work on a graduated return basis. A medical certificate dated 2 July 2007 said he could work 8 hours a day five days a week from 2 July 2007.[1]
[1] Exhibit R4, p1.
3. In the meantime, Telstra decided to retrench staff by way of redundancy. Staff were notified of this decision in a meeting on 4 June 2007. In a document dated 1 June 2007 Mr Diamante took a redundancy and on 6 July 2007 left Telstra.[2]
[2] Exhibit A4.
HISTORY OF CLAIMS
4. The application involves review of two decisions:
·A decision of 17 January 2008 affirming a determination of 11 October 2007 that Telstra is no longer liable, under section 19 of the Safety, Rehabilitation Act 1988 (the Act) to pay incapacity payments to Mr Diamante (Application 2008/1547);[3] and
·A decision of 25 March 2008 affirming a determination of 15 February 2008 that Telstra is not liable, under section 16 of the Act to pay Mr Diamante’s claim for a gym membership (Application 2008/1412).[4]
[3] T143.
[4] T150.
Injury claim (section 19)
5. Mr Diamante lodged a claim for compensation dated 20 February 2006 for ‘right shoulder injury’.[5] The injury was attributed to a fall which occurred on 8 February 2006 when Mr Diamante was rolling up a ‘drop wire’.[6] At the time Mr Diamante was employed by Telstra as a full-time communications engineer.
[5] T4, folios 5-15.
[6] T3; T5.
6. On 24 February 2006 Telstra accepted liability for Mr Diamante’s ‘STI to Right Shoulder, sustained on 8 February 2006’.[7]
[7] T5.
7. On 29 May 2006, the accepted injury was reclassified as ‘Aggravation of Pre-existing Spondylosis resulting in Temp Right Sided C6/7 Nerve Root Impingement sustained on 8 February 2006’.[8]
[8] T33.
8. In a letter dated 11 October 2007, Mr Diamante was advised that his claim for compensation for ‘Aggravation of a Pre-existing Spondylosis resulting in Temporary Right Sided C6/7 Nerve Root Impingement’ was to cease because he was certified fit for full time work, and that from 23 July 2007 his compensable injury no longer resulted in incapacity for work. That decision was affirmed on 17 January 2008. Mr Diamante sought further review by the Tribunal.
Medical treatment claim (section 16)
9. By decisions dated 12 January 2007, 1 February 2007, 13 March 2007, 20 June 2007 and 10 October 2007, Telstra agreed to fund movement therapy and gym membership for Mr Diamante under section 16 of the Act.
10. On 15 February 2008, Telstra determined that Mr Diamante’s request for payment of an ongoing gym membership would be denied. That decision was reconsidered and affirmed on 25 March 2008. Mr Diamante sought further review by the Tribunal.
LEGISLATION
Claim for Incapacity
11. Liability for compensation for incapacity due to injuries at work arises under section 14 of the Act. Calculation of the level of compensation for incapacity for work is provided in section 19 of the Act.
12. Section 19 deals with the calculation of the amount that an employer is required to pay as compensation to an employee who is incapacitated for work as a result of an injury. The calculation of the amount payable is reduced if the employee refuses to accept an offer of 'suitable employment'.
‘Incapacity for work’ is defined in section 4(9) of the Act as follows:
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
'Suitable employment' is defined in section 4(1) of the Act:
'suitable employment', in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed – employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee's age, experience, training, language and other skills;
(ii)the employee's suitability for rehabilitation or vocational retraining;
(iii)…; and
(iv) any other relevant matter; and
(b) in any other case – any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
Section 14 states, as relevant:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
The relevant provisions of section 19 of the Act state:
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to: …
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
Claim for medical treatment
13. Compensation in respect of medical expenses is provided for in section 16 of the Act. Section 16, as relevant provides:
(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.
ISSUES
14.The issues are divided according to the separate claims:
·Compensation for incapacity from injury; and
·Medical treatment.
(1) Did Telstra have a continuing liability to pay compensation to Mr Diamante for incapacity to work?
Sub-issues:
15.Offer of suitable employment:
• Did Mr Diamante receive an offer of suitable employment after he became incapacitated? (section 19(4)(c))
• By taking a redundancy did Mr Diamante fail to engage in suitable employment? (section 19(4)(c))
• Was Mr Diamante's failure to continue to engage in suitable employment reasonable in all the circumstances? (section 19(4)(f))
• Were there any other relevant circumstances? (section 19(4)(g))
• What amount would Mr Diamante be earning in his employment with Telstra as at July 2007 if he were engaged in that employment? (section 19(4)(c))
16.Employment since taking redundancy:
• Is there 'suitable employment' for Mr Diamante outside Telstra?
• Since taking a redundancy, has Mr Diamante failed to seek suitable alternative employment? (section 19(4)(e))
• Was Mr Diamante's failure to seek ‘suitable employment’ reasonable in all the circumstances? (section 19(4)(f))
• Are there any other relevant circumstances? (section 19(4)(g))
• What is Telstra’s obligation to pay compensation (if any) for Mr Diamante’s work-caused injury as at 17 January 2008? (section 19(4)(e)).
(2) Is it reasonable to provide for continuing gym membership for Mr Diamante?
EVIDENCE
17. Mr Diamante is a 50 year old man who was employed by Telstra as a communications technician until 6 July 2007.
18. On 8 February 2006, Mr Diamante was in the backyard of a private residence and while rolling up some 'drop wire', he stepped on a loose garden paver which gave way beneath him. He fell, injuring his left knee, neck and right shoulder. He reported the incident but returned to work.[9]
[9] Exhibit A1, p3.
19. The pain in his shoulder continued, so on 17 February 2006 Mr Diamante consulted his general practitioner, Dr K R Gow, who diagnosed a 'shoulder injury', caused by a 'fall at work', and certified him 'fit to continue pre-injury duties'. Dr Gow also sent Mr Diamante to have an ultrasound and x-ray.[10]
[10] T3.
20. On 20 February 2006, Mr Diamante submitted a workers’ compensation claim for a 'right shoulder injury' due to a fall at work on 8 February 2006. On 24 February 2006, Telstra accepted liability for his claim for compensation for 'STI to Right Shoulder'.[11]
[11] T5.
21. Following an x-ray and ultrasound of Mr Diamante’s right shoulder on 24 February 2006, a diagnosis of 'Subacromial/deltoid bursitis. No cuff tear detected' was made.
22. On 27 February 2006 Dr Gow certified Mr Diamante should be placed on 'modified duties' for the period 27 February 2006 to 13 March 2006. The certificate noted 'light duties, no lifting >10kg’ and ‘no heavy manual labour'. A further certificate by Dr Gow on 13 March 2006 repeated these restrictions.[12]
[12] T7 and T8 respectively.
23. On 16 March 2006, a further x-ray was taken of Mr Diamante's cervical spine and 'a scoliosis convex to the left. Spinal alignment otherwise appears normal' was noted.
24. Mr Diamante was again assessed by Dr Gow on 28 March 2006 and he was certified as unfit for work from 28 March to 11 April 2006. Dr Gow recommended 'physiotherapy, rest, medication'. Mr Diamante did not return to work until January 2007.
25. In the meantime, Allianz Australia Insurance Limited, on behalf of Telstra, wrote to Dr Gow on 29 March 2006 noting a 'provisional diagnosis of C6/7 nerve root lesion which is having a significant impact on John Diamante's recovery'. Dr Gow then referred Mr Diamante for an MRI scan of the cervical spine.[13]
[13] T13.
26. Following the MRI scan on 13 April 2006, Mr Diamante was diagnosed with 'multilevel mild cervical spondylosis'.
27. A return to work plan was developed for Mr Diamante and was due to commence on 1 May 2006 but this did not occur in the face of continuing medical certificates stating he was not fit for work.
28. The diagnosis of 13 April 2006 was confirmed by Dr R V Jackson, an orthopaedic surgeon, in a report dated 24 May 2006 he stated Mr Diamante was suffering 'multi-level cervical spondylosis with specific reference to a right C7 nerve root lesion as a result of an impingement of the nerve in the right C6/7 exit foramen'. Dr Jackson noted that Mr Diamante had been unable to do any heavy housekeeping duties, yard maintenance and had had difficulty shaving. However, he was able to drive a motor vehicle and attend to light housekeeping duties. Dr Jackson said that in his view the condition 'is a direct result of the incident he described as occurring on 08 February 2006 when he jarred his neck in a fall'. Dr Jackson expected the condition would fully resolve with time but that a referral to a neurosurgeon would be appropriate. His report confirmed that Mr Diamante was unfit for his pre-injury duties, but would be able to cope with very light office based duties. However, he noted that 'travelling to and from work for 30 minutes does make this rather impractical in the circumstances'.[14]
[14] T32.
29. On 29 May 2006, the accepted injury was reclassified as ‘Aggravation of Pre-existing Spondylosis resulting in Temp Right Sided C6/7 Nerve Root Impingement sustained on 8 February 2006’.[15]
[15] T33.
30. A report by a neurosurgeon, Dr J H T Pik, dated 11 August 2006 confirmed the diagnosis of disc prolapse with 'right C7 nerve root compromise' and warned Mr Diamante of a '5% risk of recurrence of the arm pain' and encouraged him to continue physiotherapy.[16]
[16] T49.
31. Following a recommendation from Mr D Bloom, Mr Diamante's physiotherapist, Dr Gow on 14 August 2006 recommended Mr Diamante undertake a course of Pilates or exercise treatment with Mr B Chapple.
32. Mr Diamante saw Dr Jackson again on 12 October 2006. In his report of 18 October 2006 Dr Jackson noted that the patient remained symptomatic 'with continuing pain and stiffness in his neck and some paresthesia affecting his right arm'. Dr Jackson noted with approval that the Pilates program would assist Mr Diamante in regaining his core body strength, and that he should undergo a 'progressive gym program'. Dr Jackson also recommended a home exercise program. He confirmed that he anticipated a full resolution of Mr Diamante's condition in time.[17] In a further report of 4 December 2006, Dr Jackson, approved the return to work program for Mr Diamante which had been prepared by a rehabilitation consultant. The proposed program was due to commence on Monday, 11 December 2006.[18]
[17] T65.
[18] T74.
33. On 12 January 2007, Dr Gow certified Mr Diamante fit for modified duties and outlined that he would be able to return to work, four hours a day, two days a week, with the hours and duties to be progressively increased.
34. Mr Diamante returned to work in accordance with the plan on 15 January 2007. The suitable duties included 'office base duties' such as 'computer based work, phone liaison and filing’ as well as 'mentoring/ride on duties such as instructing, standing, sitting, observing, walking and travelling in a car'. Restrictions in the plan included 'no lifting, driving, installation or ladder work'.
35. On 30 March 2007 Dr Gow recommended Mr Diamante work four hours a day, four days a week with restrictions of 'no ladder work, no jointing, no overhead work, no lifting >5kgs, no heavy manual labour, no work in confined spaces, no computer work. No prolonged drives, i.e. drives around Canberra'. He also certified continued physiotherapy, Pilates and gym membership.[19]
[19] T104.
36. On 24 May 2007 Dr Jackson reassessed Mr Diamante, and noted in his report dated 3 June 2007 that physiotherapy for Mr Diamante had finished, but Pilates was continuing with some exercises being done at home and that Mr Diamante had said that the Pilates was of the greatest assistance. Dr Jackson reported that Mr Diamante had noted that his use of the gym had been erratic but said this was due to periods of pain, suffering from the flu for three weeks and family commitments. Dr Jackson also reported that when he asked Mr Diamante whether the gym program was any assistance, Mr Diamante has said 'not really'.[20] At the hearing, however, Mr Diamante explained that response had reflected the fact that his attendance at the gym during that three month period had been insufficient to experience the benefits.
[20] T115.
37. Dr Jackson reported 'there is only minimal pain in the cervical spine. However, he stated he still has a degree of irritability such that with certain movements of his neck such as looking downwards, looking upwards or rotating his neck to the right he is still aware of right arm pain. That right arm pain can be very transient and it can be very severe. However, there have been times when the pain has been much more disabling by being of a greater degree and more persistent, lasting at times over days or even weeks. He describes persisting weakness and paresthesia in his right arm. For all of this he stated that he considers he is probably 70% better now than he was initially'.[21]
[21] T115, folio 270.
38. Dr Jackson concluded 'I continue to expect a full resolution of Mr Diamante's condition with appropriate treatment. However, I am unable to state when that will occur. It will be noted Mr Diamante estimates himself to be now 70% improved from the initial phase. All of this is encouraging. I believe there is potential for further improvement and indeed resolution of symptoms. The Claimant's progress has followed the expected pattern of recovery that is usual for a condition of this type. Recovery period following a significant disc lesion of this type is exceptionally variable but can be up to two years'.[22]
[22] T115, folio 272.
39. In relation to ongoing medical or other treatment, Dr Jackson wrote: 'In general terms, prolonged treatment of any type, whether it is remedial massage, physiotherapy, chiropractic or Pilates is to be discouraged. However, in the current instance Mr Diamante is adamant that his greatest degree of improvement occurred with Pilates. ... It will be noted that he did not consider that physiotherapy assisted him and he did not consider the gym membership assisted him. In the circumstances, I believe it is appropriate that consent be given for further Pilates sessions with Mr Bud Chapple. May I recommend twice weekly for 45 minute sessions and over a three month period with full review and, in my opinion, consideration for a new MRI scan of his neck at that stage. I would not generally recommend this type of treatment but in this instance I am prepared to make an exception. ... Ongoing gym and physiotherapy treatment is not reasonable, but for the reasons I have stated, I would recommend consideration be given to further Pilates. This must however have an end point and that end point should be in three months’.[23]
[23] T115 folios 273-274.
40. In relation to Mr Diamante's employment capacity, Dr Jackson stated he was ‘not capable of doing full-time work in his previous normal (pre-injury) duties as a communications technician and was also not capable of doing full-time work in alternative duties at Telstra. He was however, fit for a wide variety of duties such as he is now performing on a part-time basis'.[24]
[24] T115, folio 274.
41. The Pilates program has continued with twice weekly sessions with Mr Chapple. In conjunction with Mr Chapple, the gym developed a strengthening program for Mr Diamante. He continued to attend for a period of twelve months until the decision was made in 2008 to cease funding of his gym membership.
42. By the first week of July 2007 Mr Diamante had progressed to being at work for 5 days a week for 8 hours a day. However, he remained on modified duties. That work involved mentoring, supervising and accompanying other technicians to work sites.[25]
[25] Exhibit A11.
43. At a meeting on 4 June 2007 with the Canberra North CFW 4 team of whom Mr Diamante was a member, he was advised of a retrenchment proposal by Telstra where three members of his sixteen member team would need to be retrenched. He was provided with a bundle of documents about the proposal.[26]
[26] Exhibit A4.
44. The documents included a letter dated 1 June 2007, addressed to him inviting him to apply for a voluntary redundancy. The letter noted that Telstra retained the discretion to not accept all or any applications. Mr Diamante signed the letter on 4 June 2007.[27]
[27] Exhibit A4.
45. On receipt of the bundle, Mr Diamante asked his ‘one up’ manager, Mr Drummond whether the redundancy was voluntary or involuntary and was assured by Mr Drummond, that it was 'involuntary'.[28] Mr Drummond, on 15 June 2007 signed a document headed 'Workers Compensation/Employee Separation Business Case Template' recommending that Mr Diamante be made redundant.[29]
[28] Exhibit A2, pp2-3; Exhibit A6.
[29] Exhibit R4, Annexure D.
46. The recommendation was effected in a document headed 'Employee Placement Decision', dated 15 June 2007, signed by Mr Drummond and endorsed by Mr D Minney, Mr Diamante's 'two up' manager, and approved by the Human Resource Advisor.[30]
[30] Exhibit R4, Annexure E.
47. On 6 July 2007 Mr Diamante ceased work with Telstra. On 17 July 2007, Mr Drummond completed a document headed 'Employee Separation' in which the nature of Mr Diamante's separation was described as 'involuntary redundancy'.
48. On 24 September 2007 Telstra wrote to Mr Diamante advising he was no longer entitled to compensation for incapacity.[31]
[31] T127.
49. On 28 September 2007 Dr Gow certified Mr Diamante as fit for modified duties from 2 September 2007 to 15 December 2007 and recommended continuing Pilates and his gym membership. By a decision of 10 October 2007, Telstra agreed to fund a further three months of gym membership and a further 12 weeks at two sessions a week of movement therapy.
50. On 22 October 2007, 14 December 2007 and 15 January 2008, Dr Gow certified that Mr Diamante was fit for modified duties but recommended continuing treatment by way of Pilates and gym membership.
51. In a report of 11 June 2008, Mr Chapple confirmed that Mr Diamante continued to attend Pilates twice a week but that Mr Diamante's condition remains in an 'aggravated state'.[32]
[32] Exhibit A9, p2.
52. In a report of 27 June 2008, Associate Professor Dr O B White, a neurologist, diagnosed a ‘right-sided lateral disc prolapse at C5/6 and C6/7’ as a result of the compensable injury. He recommended further investigation with a view to surgery because conservative management of the condition had not worked. He certified Mr Diamante was ‘not fit for work’ and said improvement was likely to be limited and slow and he would be likely only to be fit for light duties.[33]
[33] Exhibit A8, pp2-4.
53. In a report of 8 September 2008, Dr Jackson said there had been no progress since his report in May 2007 and the condition had deteriorated in the last three to four months. He noted minimal pain in Mr Diamante's cervical spine, but variable pain, weakness and paresthesia in the right arm, with disabling symptoms at times lasting for days or even weeks. He certified Mr Diamante was fit for full-time work with restrictions: ‘no lifting above 5kg, no ladder work, no crawling underneath houses or roofs and no lifting of manholes’. He recommended an update MRI scan and a referral to Dr Pik, neurosurgeon, to review him for different treatment and possible surgery, given the lack or progress from more conservative treatments.[34]
[34] Exhibit R2, pp4-5.
LAW
54. There are two decisions which are being reviewed by the Tribunal:
·the decision of 17 January 2008 to cease compensation payments for incapacity; and
·the decision of 25 March 2008 to cease payments for gym membership.
55. There is no issue that Mr Diamante at the relevant time was an 'employee'. Mr Diamante was employed by Telstra at the time of his injury. The definition of 'employee' in section 5 of the Act provides that an 'employee' means:
(b) a person who is employed by a licensed corporation...
Telstra is a licensed corporation.
56. Although Mr Diamante has ceased to be an employee of Telstra, he remains an 'employee' for the purposes of the Act since 'employee' is defined to include a person who has 'ceased to be an employee' provided there is no contrary statutory intention. No contrary intention is discerned that Telstra should not continue to pay compensation to a former employee.[35]
[35] Safety Rehabilitation and Compensation Act 1988 s 5(9).
57. Nor is there any doubt that Mr Diamante was incapacitated for work because he suffered an 'injury', namely, ‘aggravation of a pre-existing spondylosis resulting in temporary right sided C6/7 nerve root impingement’.[36] 'Injury,' in subsection 5A(1) is defined to include:
(c) an aggravation of a physical ... injury ... suffered by an employee... that arose out of, or in the course of that employment.
[36] Safety Rehabilitation and Compensation Act 1988 ss 4(1), 5A.
58. Despite the pre-existing condition, the medical evidence, for example, of Dr Jackson[37] was that the injury was the result of the incident on 8 February 2006 at Mr Diamante's work and the Tribunal so finds.
[37] T32.
59. At the time he took a redundancy Mr Diamante remained partially incapacitated for work due to the work injury. Although in the week preceding his separation from Telstra he was working 5 days a week for 8 hours a day that work involved restrictions which prevented him fully undertaking tasks as a communications technician. In other words he still had an 'incapacity for work'. Mr Diamante did not possess a 'capacity to work at the same level at which he ... was engaged by [Telstra]... immediately before the injury happened'.[38] At the time of his redundancy he was being paid at 90 to 95 per cent of his former normal weekly earnings.
Claim for incapacity
[38] Safety Rehabilitation and Compensation Act 1988 s 4(9)(b).
60. The relevant provisions relating to the first reviewable decision are found in sections 4, 5, 5A, 14, 19(4), and 40 of the Act. The principal provisions, aside from the definition sections, are section 14 which concerns liability to provide compensation for injuries at work; section 19 which determines how liability is to be quantified; and section 40, which provides for claims involving a rehabilitation program. Section 19 does not impact on liability[39] although its terms may result in the amount of compensation being reduced to nil.
[39] ReTan and Department of Defence (1998) AATA 132.
61. No evidence was provided as to whether Mr Diamante had accepted a lump sum benefit under a superannuation scheme following his redundancy.[40] The case was argued on the basis that section 19 was the relevant provision.
[40] Safety Rehabilitation and Compensation Act 1988 s 21.
62. The decision to cease payment of compensation for incapacity was to operate from 23 July 2007. However, Mr Diamante's decision to take a redundancy as from 6 July 2007 impacts on the extent of the liability of Telstra at that time. The reviewable decision is dated 17 January 2008. The Tribunal, therefore, is also required to consider the liability of Telstra as at 17 January 2008.
A. Offer of suitable employment
Did Mr Diamante receive an offer of suitable employment after he became incapacitated?
63. If Mr Diamante is to come within the terms of section 19(4)(c), it must first be established whether Mr Diamante received an offer of suitable employment after he became incapacitated. Mr Diamante was certified unfit for work from 28 March 2006.[41] He was first assessed by Telstra as suitable for a rehabilitation program on 4 May 2006. That decision included an offer of a graduated return to work program, in other words, he was offered continuing employment involving a rehabilitation program.[42]
[41] T11.
[42] T93; T113.
64. Due to continuing incapacity, Mr Diamante did not begin his return to work program until 15 January 2007. Mr Diamante gave evidence that the work involved accompanying other communication technicians when they were out on a job, and undertaking mentoring and advice work as required. Mr Diamante described this work as 'dummy work'. In other words he was suggesting that the employment was not 'suitable'.
65. What work is 'suitable employment' is a question of fact but must take account of 'the employee's age, experience, training, language and other skills', as well as 'suitability for rehabilitation or vocational training' and 'any other relevant matter'.[43] At this time, the criteria for 'suitable employment' are those contained in paragraph (a) of the definition of 'suitable employment', namely, Mr Diamante's employment with Telstra.
[43] Safety Rehabilitation and Compensation Act 1988 s 4(1).
66. Mr Diamante was employed by Telstra in July 2007 as a communications technician. Mr Diamante was on a graduated return to work rehabilitation program devised by Telstra. That rehabilitation program commenced on 15 January 2007,[44] and was continuing at the time he became redundant. By 6 July 2007 when Mr Diamante ceased working with Telstra, he was working 8 hours a day, five days a week but with significant restrictions on the kinds of work he could undertake.
[44] T87.
67. The restrictions were based on reports of Dr Gow, Mr Diamante's treating medical practitioner. Dr Gow stated in a medical certificate on 2 May 2008 that Mr Diamante should not undertake work involving ‘heavy manual labour or work in confined spaces, no prolonged periods of neck extension’. In a medical certificate dated 30 March 2007 Dr Gow certified the following restrictions ‘no ladder work, no jointing, no overhead work, no lifting >5kgs, no heavy manual labour, no awkward postures, no work in confined spaces, no computer work, no prolonged driving, i.e. drive around Canberra'. That is, he was fit only for 'modified duties'.[45]
[45] Exhibit A11.
68. These restrictions were echoed in the ‘Return to Work Plan & Suitable Duties Summary Plan’ dated 30 May 2007. The Plan provided that Mr Diamante was not to perform 'repetitive work', 'confined space work', ladder work', his lifting was restricted to 5 kg, and 'heavy manual labour' was also restricted. The Plan noted, ‘This limits a high number of field based work' and 'office based work cannot be performed due to the repetitive nature of computer work'.[46]
[46] T113.
69. These restrictions were echoed in Dr Jackson's report of 3 June 2007 where he identified that Mr Diamante 'should have a lifting limit at this stage of 5 kgs ... should not lift in confined spaces and ... should not even be in confined spaces'. His report also indicated Mr Diamante 'should not be doing overhead work or lifting above shoulder height. He should not be doing repetitive type activities in poor ergonomic conditions, but he can do repetitive activities providing he is working in good ergonomic conditions'.[47]
[47] T115, folio 275.
70. In July 2007, Mr Diamante was a 48 year old man who had a School Certificate having left school in Year 11. His educational standard was assessed in the vocational assessment report of Associate Professor Dr J Athanasou of 2 March 2009 as 'more than adequate for a range of semiskilled to skilled occupations'. His work experience prior to joining Telstra had been principally manual or semi skilled work. The report of Dr Athanasou noted that since school he had obtained the following licences: ‘Telstra plant operator, bobcat, Atlas truck crane, optical fibre winch, front end loader, vehicle loading crane, forklift and MR truck’. He also had a ‘Cabler Registration Certificate’, and had completed a small business course at a college of TAFE and a bar course.[48] It was not clear from the report whether the small business course and the bar course were undertaken prior to, or since July 2007.
[48] Exhibit R3, p4.
71. Given the restrictions on Mr Diamante undertaking the tasks of a communications technician, the work he had been offered by Telstra on his return to work program took account of his 'suitability for rehabilitation'. The work of mentoring and advising at least used his 'experience, training ... and other skills'. Although that work may have been regarded by Mr Diamante as 'dummy work', the work was in the same field as his area of expertise, and was tailored to his then limited abilities. In these circumstances, the work was not 'nominal' or a ‘substantial underemployment'.[49]
[49] Re West and Comcare (1994) AATA 33.
72. On that basis the Tribunal finds that Mr Diamante as at 6 July 2007 had received an offer of 'suitable employment', namely, the graduated return to work program and he was then engaged in that 'suitable employment'.[50]
By taking a redundancy did Mr Diamante fail to engage in suitable employment?
[50] Safety Rehabilitation and Compensation Act 1988 s 19(4)(c).
73. The next issue is whether by taking a redundancy, Mr Diamante failed to continue to engage in suitable employment. In turn this raises the issue of whether the redundancy was voluntary or involuntary, a question which is relevant to the calculation of the amount of compensation for which Telstra is liable. Extensive evidence was provided at the hearing on these issues.
74. It is clear that by taking a redundancy, Mr Diamante was no longer working with Telstra and on a literal reading of section 19(4)(c) he was clearly not continuing to engage in the 'suitable employment' provided for him by Telstra. The issue is whether, at law, he 'failed' to continue that employment. A key element of the answer on that issue is whether his redundancy was voluntary or involuntary.
75. The ‘Telstra Redundancy Agreement 2002’ does not use the expression 'involuntary redundancy' but does refer to 'voluntary retrenchment'. The Agreement appears, however, to make a distinction between voluntary and involuntary redundancy. Part 6 'Reduction of Staff Numbers in a Group' appears to cover both forms of retrenchment.[51]
[51] Exhibit A10, Cl 6.0-6.13; Exhibit R4, Annexure B.
76. However, the construction of Part 6 indicates that by implication, clauses 6.1 - 6.9 relate to involuntary retrenchments, since clauses 6.10 - 6.13 are headed ‘Voluntary Retrenchment Option'. The distinction is supported by the absence from the voluntary retrenchment process of the 'cooling off' provisions in clauses 6.6 - 6.9.[52] In other words, a less beneficial process is employed for a voluntary process than for an involuntary process.
[52] Exhibit A10, Cl 6.13.
77. There is conflicting documentary evidence on whether Mr Diamante's redundancy was voluntary or involuntary. On the 'Employee Separation' document relating to Mr Diamante, dated 17 July 2007, in the column headed 'Nature of the Separation', 'Voluntary Redundancy' and 'Resignation/Medical Retirement' are crossed out leaving only 'Involuntary Redundancy'.[53] This suggests that Telstra management considered the redundancy to be involuntary.
[53] Exhibit A10.
78. However, the letter to Mr Diamante dated 1 June 2006, headed 'Reduction of Staff Numbers in a Group' has a short section clearly headed in bold 'Application for Voluntary Retrenchment'. It was this section which Mr Diamante signed on 4 June 2007. Paragraphs 2 and 3 of the letter also refer to 'voluntary retrenchment'.[54]
[54] Exhibit A4.
79. That letter was handed to Mr Diamante on 4 June 2007 at a meeting by management to discuss the forthcoming retrenchments. Mr Diamante said in his statement that prior to signing the letter he had specifically asked his 'one up' manager, Mr Drummond, whether the document referred to a voluntary or an involuntary retrenchment and was told that it was ‘involuntary’.[55] Mr Drummond also noted in his statement that because Mr Diamante had asked that question he had specifically checked with the senior human resources adviser who said if someone signed the document, ‘It is not a voluntary redundancy because the numbers will come out of the work group regardless'.[56]
[55] Exhibit A2, p2.
[56] Exhibit A6, p2.
80. The response by the human resource manager is equivocal. The reference to 'the numbers will come out... regardless' reflects the fact that Telstra had a discretion whether to accept offers of voluntary redundancy. To that extent the response is correct and is reflected in the terms of the letter which point out that Telstra has that discretion. The first part of the response, 'It is not a voluntary redundancy' is ambiguous. It could be read as meaning the process involved involuntary redundancies. Alternatively, it could simply reflect that signing the letter was not itself any kind of redundancy, since the offer in the letter still had to be accepted by Telstra to take effect.
81. In his evidence to the Tribunal Mr Diamante affirmed that it was his understanding that by signing the document he was merely agreeing to be part of the process. That understanding was correct to the extent that he was simply offering to be part of the process of choosing who was to be retrenched. However, the next question is 'What process is being referred to?' The answer to that question determines whether the process in which Mr Diamante participated was a process of a voluntary or an involuntary redundancy.
82. The evidence indicates a degree of confusion on the part of more senior Telstra officers about the impact of signing the letter dated 1 June 2007 and of the nature of Mr Diamante's separation from Telstra. As a consequence he was wrongly advised on 4 June 2007 by Mr Drummond about the effect of signing the letter, and the type of separation of Mr Diamante is later wrongly recorded in the 'Employee Separation' document.
83. Nonetheless, on 4 June 2007, when Mr Diamante signed the letter he only had Mr Drummond's answer that it was an involuntary retrenchment and the letter stating it was an offer of a voluntary redundancy to guide him. Mr Drummond had been employed by Telstra for twelve years and was clearly aware that there was a distinction between a voluntary and an involuntary retrenchment. He would not otherwise have asked the question of Mr Drummond. The evidence of Mr Minney, Mr Diamante's 'two-up' manager, confirmed 'it is the usual practice in Telstra where there is to be a reduction of staff numbers in a Group to invite the staff in that Group to apply for voluntary retrenchment'.[57]
[57] Exhibit R4, p2.
84. The letter which Mr Diamante signed makes it quite clear that it contained an application for voluntary retrenchment. Although Mr Diamante says that he thought by signing the letter he was only participating in the process, the obvious references in the letter to voluntary retrenchment, and the usual practice at Telstra relating to reduction in staff numbers indicates he should have been aware that the oral advice of Mr Drummond may have been incorrect.
85. In the face of the inconsistent information, Mr Diamante should have sought further advice. He was asked at the hearing whether anyone suggested he get independent advice and he said, 'No'. Nonetheless, it would have been common sense to do so. He was given time to enquire as the letter did not need to be returned until 8 June 2007.
86. By signing the letter on the 4 June 2007, which clearly stated it was an application for a 'Voluntary Retrenchment' and by doing so on the day of the meeting, without getting that further advice, Mr Diamante is taken to have known that he was applying for a voluntary redundancy that would be successful if Telstra accepted his application.
87. The consequence is, and the Tribunal finds, that Mr Diamante's retrenchment was voluntary and that by taking a voluntary redundancy, he 'failed to engage, or to continue to engage, in suitable employment’.[58]
Was Mr Diamante's failure to continue to engage in suitable employment reasonable in all the circumstances?
[58] Safety Rehabilitation and Compensation Act 1988 s 19(4)(c).
88. The finding that Mr Diamante failed to continue to engage in suitable employment is not the end of the matter. It must also be established whether Mr Diamante's separation from Telstra was 'reasonable in all the circumstances'. The test for what is reasonable is objective.[59]
[59] Re Shanaghan and Australian Postal Corporation (1995) 36 ALD 613.
89. It would, for example, be reasonable for Mr Diamante to have separated from Telstra on 6 July 2007 if he was clearly incapable of working at all for Telstra at that time,[60] or if Telstra had not offered him suitable employment.[61] It would also be reasonable for him to have taken a voluntary redundancy if employment opportunities within Telstra at that time were limited, or if it was likely that he would then have been involuntarily retrenched by Telstra.[62]
[60] Comcare v Rawling (1993) 31 ALD 501.
[61] Woodbridge v Comcare (1994) 20 AAR 196 at 206 per Hill J (a view not disapproved on appeal in Woodbridge v Comcare (1995) 21 AAR 201).
[62] Re O'Shea and Comcare (1993) 18 AAR 430.
90. On the evidence, Mr Diamante was capable of working for Telstra, his employment was suitable and there was only limited indication that Telstra was not prepared to continue with his rehabilitation program and employment.
91. That implication arises from the 'Business Case Template' completed by Mr Drummond on 15 June 2007 that if Mr Diamante had not volunteered to be retrenched, he might have been retrenched involuntarily. Mr Drummond said at Question 8 of the Business Case form: ‘John would have been retrenched in 2006 if he had not been injured. The reasons for this are that John has only got fault skills. No install or ADSL and looking forward would require a lot of up-skilling to get him up to a base CFW4 Fit and Fix CT standard’.[63] However, this was a case being made after Mr Diamante had volunteered to be made redundant. There is no indication that there was management pressure on him to leave for these reasons at the time he signed the letter.
[63] Exhibit R4, Annexure D.
92. Mr Diamante understood from the meeting of 4 June 2007 that the Canberra North CFW 4 team of 16, of which Mr Diamante was a member, were to be reduced to 13. He would also have understood that if there were insufficient offers from the group to take voluntary redundancy, Telstra would involuntarily have reduced the number to meet the target.
93. Mr Diamante's physical capacities at that time were improving. Indeed Mr Diamante said in evidence he always hoped he would make a full recovery. The report of Dr Jackson of 3 June 2007 said Mr Diamante had stated 'he considers he is probably 70% better now than he was initially'.[64] The graduated return to work program had seen him increase his hours of work from 4 hours a day for 2 days a week to 8 hours a day for 5 days a week in the space of some six months.[65]
[64] T115, folio 270.
[65] T93; T113.
94. In his report of 3 June 2007, Dr Jackson said he expected 'a full resolution of Mr Diamante's condition with appropriate treatment', although 'I am unable to state when that will occur'. As the report noted: 'Recovery period following a significant disc lesion of this type is exceptionally variable but can be up to two years', but 'there is potential for the claimant to make a full recovery'.[66]
[66] T115, folio 272.
95. The report of Mr Drummond contained in the 'Employee Separation Business Case' noted that the specialist and independent medical officer estimates at that time were of a 95 to 100 per cent recovery for Mr Diamante, timing depending on the rehabilitation program.[67]
[67] Exhibit R4, Annexure D.
96. At the time of his separation Mr Diamante was being paid at the rate of 90 per cent and 95 per cent of his normal weekly earnings. The available evidence indicated his prospects for a full recovery were reasonable.
97. In addition, Dr Jackson's report noted that Mr Diamante had 'stated he enjoys the work and generally he feels he copes well'. In evidence, although Mr Diamante said the work was 'dummy work' he also acknowledged that he generally enjoyed the work because he had to provide 'little input’ and was able to 'do things at his own pace'. As Mr Diamante also said in evidence, 'things were moving along slowly but surely' and he 'was being well looked after'.
98. Whether these developments made it reasonable for Mr Diamante to choose a voluntary redundancy is the next question. If he remained at Telstra or if he tried to get employment elsewhere, he would need retraining. In evidence Mr Diamante admitted that he had been told he would need retraining for work outside Telstra. The evidence of Mr Drummond in the 'Employee Separation' document suggested he would also need retraining to remain in Telstra.[68]
[68] Exhibit R4, Annexure D.
99. Staying in Telstra had the advantage of a known workplace where he was being permitted gradually to return to full working hours, although the work was not equivalent to his pre-injury employment. However, it was a workplace in which the restrictions he experienced were understood and accepted. Outside Telstra, it is likely he would have faced greater difficulties. The evidence of Dr Athanasou and Ms A Halpin both referred to the need for a sympathetic employer if he was to be employed.[69] Mr Diamante denied in evidence that he knew he would have difficulties outside Telstra in obtaining employment. However, he conceded that this was because he always thought he would fully recover.
[69] Exhibit R3 and A7 respectively.
100. In July 2007, Mr Diamante still had an 'incapacity for work'. Despite having recently returned to full working hours, he remained unable to work 'at the same level at which he was engaged' by Telstra.[70] Nonetheless, his progress was positive and the estimates at the time were that he would be able to undertake all the duties of a communications technician in the future.
[70] Safety, Rehabilitation and Compensation Act 1988 s 4(9).
101. Telstra had offered him employment tailored to his circumstances, and a rehabilitation program designed to return him to full capability. On the evidence it would have been considerably harder for him to obtain these concessions from a new employer. On balance, therefore, the Tribunal finds that it was not reasonable for Mr Diamante to have taken a voluntary redundancy at that time.
Were there any other relevant circumstances?
102. There does not appear to have been any pressure on Mr Diamante to take steps to be retrenched. There was at the time no evidence that he would not be able to return to his position as a communications technician. He was then at the stage where he had just managed to return to full-time working hours. Although he may have needed some retraining to meet the current requirements for a communications technician, there was no indication that he was incapable of undertaking that training.
103. The evidence from Dr Athanasou in his report of 2 March 2009 was that Mr Diamante 'does have some capacity for short courses or practical training on the job'.[71] Ms Halpin, in her report of 30 April 2009, also stated that Mr Diamante 'may have the cognitive capacity to complete' the Certificate IV in Occupational Health and Safety. Her opinion was that although he had a lack of previous educational qualifications, and would need to complete a variety of training courses; it was his minimal skills, his physical limitations and the competitive job market which were greater barriers to his achieving retraining.[72]
[71] Exhibit R3, p4.
[72] Exhibit A7, p3.
104. This evidence indicates and the Tribunal so finds that Mr Diamante was capable of being retrained to the standard required for a communications technician, had he chosen to remain at Telstra. The Tribunal does not consider there were any other circumstances at that time which were relevant to the assessment of the amount of compensation which should be payable under section 19.
What amount would Mr Diamante be earning in his employment with Telstra as at July 2007 if he were engaged in that employment?
105. Under section 19(4)(c) of the Act, Mr Diamante's compensation for incapacity must be reduced by the amount per week that he would have earned had he not failed to continue to engage in his employment with Telstra. In effect that means his incapacity payments must be reduced to nil.
B. Employment since taking redundancy
106. The reconsideration date of 17 January 2008 stated that the decision to cease Mr Diamante's compensation payment as from 23 July 2007 was taken because 'there is substantial evidence to confirm that [Mr Diamante is] still able to work ... pre-injury hours at the time of [his] redundancy from Telstra and currently'. The correctness of this decision requires examination of section 19(4)(e), (f), and (g).
107. As from 13 April 2007, the definition of 'suitable employment' in section 4 of the Act was amended to provide that, when calculating the amount payable as compensation, 'suitable employment' can include work other than with the Commonwealth or a licensed corporation.[73] In Mr Diamante's case this invites an examination of whether there was 'suitable employment' for him outside Telstra.
Is there 'suitable employment' for Mr Diamante outside Telstra?
[73] Safety, Rehabilitation and Compensation Act 1988 s 4(b).
108. The Tribunal must decide whether suitable work is available to Mr Diamante outside Telstra.[74] If such work is available, at any time during the period commencing on 23 July 2007 the income from that type of work is the amount he would able to earn in suitable employment.[75]
[74] Martin v Australian Postal Corporation (2000) 32 AAR 199 at [341].
[75] Ibid.
109. Evidence of the employment which Mr Diamante would be capable of undertaking in the open market is provided in the reports of Ms Halpin and Dr Athanasou.[76] Ms Halpin’s report refers to possible work as a sales assistant, retail supervisor, occupational health and safety adviser, security officer, inspector and regulatory officer, and car park attendant;[77] and Dr Athanasou's report refers to possible work as an inspector and regulatory officer, sales assistant (general), earthmoving plant operator, forklift driver, commercial cleaner, or caretaker.[78] The Tribunal finds on this evidence that there is suitable employment for someone with Mr Diamante's skills and experience outside Telstra.
Since taking a redundancy, has Mr Diamante failed to seek suitable alternative employment?
[76] Exhibit A7 and Exhibit R3 respectively.
[77] Exhibit A7, pp4-9.
[78] Exhibit R3, p11.
110. In evidence Mr Diamante said he applied for a couple of jobs in March 2008: as a trainee operator for heavy equipment with Thiess in Mudgee; and with the Australian Security Intelligence Organisation (ASIO) in Canberra. He was not asked for an interview for the first position; but he reached the second stage for the ASIO job. However, he was not offered the position.
111. Subsequently he said he kept an eye on the papers, looked for jobs on the internet and spoke generally to people but he had no evidence of these efforts to seek employment. At the hearing, he said that in general, people's response was that whilst he has physical restrictions, they would not be interested.
112. In September 2009, Mr Diamante had evidence that he applied for about 4 positions, for none of which he was successful. He admitted at the hearing that he did not consider any of the positions would have been suitable work.[79]
[79] Exhibit A5.
113. The Tribunal finds that Mr Diamante has not been assiduous in seeking employment, nor sufficiently selective in his choice of positions for his efforts to be realistic. Given Mr Diamante's awareness that he would need retraining, there is also no evidence that he has actively tried to acquire skills or undergo retraining in areas of employment in which he has said he is interested. Given this evidence, the Tribunal finds that he has 'failed to seek suitable employment' since leaving Telstra.
Was Mr Diamante's failure to seek 'suitable employment' reasonable in all the circumstances?
114. Evidence was provided of Mr Diamante's physical limitations when seeking employment and of the barriers he faced in the open labour market. Although the Tribunal has accepted there is suitable employment for Mr Diamante, and that he has not been assiduous in seeking such employment, other considerations impinge on whether his failure to seek such employment is reasonable.
115. The reports of Ms Halpin and Dr Athanasou indicate that some of the jobs they identified are currently not available in the Canberra job market.[80] The evidence of Ms Halpin was also that although there are areas of possible work for Mr Diamante, all would require re-training. Her report also indicated that Mr Diamante would face competition from other applicants in the current labour market due to Mr Diamante's 'age, no formal qualifications, length of current unemployment, and current physical limitations'. As a consequence, she indicated that in addition to retraining, he 'would require special placement as well as a referral to a sympathetic employer if he was to re-enter the labour market'.[81]
[80] Exhibit A7 and Exhibit R3 respectively.
[81] Exhibit A7.
116. Dr Athanasou concluded that although there are occupations available, Mr Diamante's 'employment prospects would be limited by his prolonged absence from the labour market, a relative lack of transferable skills, limitations in the labour market and any negative employer perceptions of his ability.' To re-enter the workforce the report noted Mr Diamante 'could expect a substantial period of readjustment from the quasi-public sector environment and working conditions of Telstra to the currently available private sector employment conditions. He may require special placement support, the assistance of a wage subsidy and referral to a sympathetic employer'.[82]
[82] Exhibit R3.
117. In summary, these reports indicate that few of Mr Diamante's specific skills are transferable in today's working environment. In addition, his prolonged absence from the labour market, his age, his physical limitations following his injury, his need for retraining, and a competitive job market, indicate he would need a sympathetic employer to be re-employed. These factors suggest that it was reasonable for Mr Diamante not to seek 'suitable employment' as at 17 January 2008, since by then there is considerable doubt about whether Mr Diamante would be capable of obtaining such employment.
118. In addition, Mr Diamante faces physical restrictions and medical conditions which affect his employability. In July 2007, Mr Diamante appeared to be on the way to full recovery and to be doing so relatively rapidly. Subsequently, however, his physical condition has deteriorated.
119. Mr Diamante's evidence was that he continues to experience cervical pain, often without warning. The pain in his right arm region fluctuates in intensity but when aggravated can be severe and last for several hours and 'sometimes beyond a day or two'. His only way to alleviate the pain is to rest and take analgesics. The pain often interrupts his sleep. Driving can aggravate the pain. The Tribunal accepts this evidence. The Tribunal found Mr Diamante to be truthful and concurs with the reports of Dr W Coyle, Consultant Orthopaedic Surgeon, and Dr Jackson that he did not seek to exaggerate the effects of his incapacity.[83]
[83] Exhibit A12 and Exhibit R2 respectively.
120. In his medical report of 15 July 2009 Dr Coyle also noted that 'the prognosis for any recovery of Mr Diamante's condition, at least without more specific treatment, is poor'. He also indicated conservative treatment other than analgesics and regular exercise based treatment was not likely to be helpful and his condition should be reviewed by a spinal surgeon.[84]
[84] Exhibit A12, p5.
121. The report of rheumatologist, Dr White, dated 27 June 2008, concluded 'in the absence of any treatment, I believe that [Mr Diamante's] disability would be permanent. There is the potential for slow amelioration in his pain such that he would be able to return to very light duties in the future but this may take several years. I do not believe he would be able to return to the sort of work he was doing previously. ... Certainly at this stage he is not fit for work'.[85]
[85] Exhibit A8, p4.
122. Dr Jackson in his report of 8 September 2008 said that 'There does not appear to have been any progress in the applicant's condition since I last examined him. ... If anything, there has been deterioration in the last three or four months'. As a consequence, in his opinion, Mr Diamante remained incapacitated for work although he noted he could return to the restricted regimen of duties he was undertaking at the time of the redundancy. He also recommended an updated MRI scan and his condition be reviewed by a neurosurgeon.[86]
[86] Exhibit R2.
123. Dr Gow, in his report of 14 December 2008 confirmed that Mr Diamante remained fit only for 'modified work' subject to similar restrictions he had listed in earlier certificates.[87]
[87] Exhibit R1.
124. The common theme of these reports is that Mr Diamante's incapacity has continued. There also appears to be little potential for Mr Diamante to continue to improve without radical treatment. The opinion of his treating doctor and of Dr Jackson is that Mr Diamante would be fit to return to work with the restrictions imposed as at 6 July 2007. However, the evidence of Dr Coyle and of Dr White is that Mr Diamante's current prognosis is poor, that his condition has deteriorated rather than improved, and that it is unlikely that he would be able to return to his pre-injury work either at all or at least for some indeterminate time without more invasive treatment.
125. On the basis of this evidence, the Tribunal finds that as at 17 January 2008 and as at the date of the hearing, Mr Diamante's condition resulting from his compensable injury has not resolved and is not likely to do so in the short term. The Tribunal accepts that Mr Diamante continues to suffer pain, often without warning, and that his only way to alleviate the pain is to rest and take analgesics, and the pain often interrupts his sleep, can vary in intensity and at times can last in excess of a day.
126. In addition, the vocational assessment and labour market reports indicate that Mr Diamante's age (50), his limited educational qualifications and need for retraining if he is to re-enter the workforce, a work history in mainly manual jobs, the medical restrictions on work involving heavy manual labour including heavy lifting, prolonged neck extensions, working in confined spaces, prolonged driving, or repetitive computer work provide significant limitations on Mr Diamante's capacity for employment. As the labour market assessment reports of Ms Halpin and Dr Athanasou indicate, his medical conditions appear to be deteriorating and the listed restrictions mean it is unlikely an employer would be prepared to offer Mr Diamante a job.
127. In these circumstances, the Tribunal finds that Mr Diamante's failure to seek suitable employment was reasonable in the circumstances. [88]
Are there any other relevant circumstances?
[88] Re Fuller and Comcare [1996] AATA 882.
128. The Tribunal finds that in view of the finding that Mr Diamante's failure to seek suitable alternative employment was reasonable there is no need to consider this provision. In case it is wrong in that conclusion, the Tribunal will consider 'other relevant circumstances'.
129. As Hill J pointed out in Woodbridge v Comcare[89] under section 19(4)(g) other relevant factual circumstances must also be taken into account in deciding the amount of compensation payable, including where 'subsequent circumstances intervene which could be relevant in determining the ability of an employee to earn a weekly amount in suitable employment'.[90] His Honour referred to the possibility that section 19(4)(g) could operate where an employee's 'medical condition' had deteriorated 'to a point where the employee was not able to work at all'.[91] This comment by Hill J was referred to by the Tribunal in Re Prica and Comcare[92] which added, '[W]e consider that this provision is relevant where the deterioration can be said to be the consequence of a natural progression of the injury, or, to put it more generally, is related to the injury'.[93]
[89] (1994) 20 AAR 196.
[90] Woodbridge v Comcare (1994) 20 AAR 196 at 206.
[91] Ibid.
[92] Re Prica and Comcare (1996) 44 ALD 46.
[93] Ibid at [59].
130. These authorities indicate that it is appropriate to rely on section 19(4)(g) in cases where an injury has deteriorated to the point where an employee is not able to work. The Tribunal has found that this is the situation in relation to Mr Diamante. As a direct result of his injury Mr Diamante is now unable to perform his pre-retirement employment. Dr Jackson in his report of 3 June 2007 confirms that Mr Diamante's 'current physical condition would not have occurred regardless of his employment of the incident of the 8 February 2006'.[94] This was not a matter of dispute before the Tribunal. In other words it is the work-caused injury which is the cause of his incapacity. The Tribunal finds, therefore, that the continuing incapacity to work of Mr Diamante is due to his work injury. There was no evidence about the precise time between 6 July 2007 and 17 January 2008 when this occurred. Nonetheless, on the available evidence. The Tribunal finds that, at least as at 17 January 2008 Mr Diamante no longer had any capacity to work.[95]
[94] T115.
[95] Safety, Rehabilitation and Compensation Act 1988 s 4(9)(a).
131. In these circumstances, even if the finding that Mr Diamante's failure to seek suitable alternative employment was reasonable is not correct, section 19(4)(g) can be relied on to reach a similar point, namely, that Mr Diamante's failure to seek alternative employment since his redundancy from Telstra is excusable.
What is Telstra's obligation to pay compensation (if any) for Mr Diamante's work-caused injury as at 17 January 2008?
132. As at 17 January 2008, the Tribunal has found that Mr Diamante falls within section 4(9)(a), namely, he has 'an incapacity to engage in any work' and that incapacity is a 'result of the injury'. The consequence of that finding is Mr Diamante is now no longer 'able to earn' in suitable employment.[96]
[96] Safety, Rehabilitation and Compensation Act 1988 s 19(2).
133. In order to estimate the amount of Telstra's consequential liability an 'adjustment percentage' under the relevant formulae in section 19 would need to be calculated. In these circumstances, and given the finding that Mr Diamante is now totally incapacitated, the Tribunal finds that the matter should be remitted to Telstra to decide the amount compensation payable to Mr Diamante.
(2) Is it reasonable to provide for continuing gym membership for Mr Diamante?
134. The answer to this question depends on whether gym membership is 'medical treatment'. On 15 February 2008, Telstra declined to continue to pay Mr Diamante's gym membership fees. That decision was affirmed on 25 March 2008 on reconsideration of the original decision. The reasons for the reconsideration included that the 'evidence indicates that the most beneficial medical treatment available to you at present is only the Pilates sessions', and that in accordance with the report of Dr Jackson, 'any prolonger treatment is to be discouraged' because as Dr Jackson expressed it, there 'is generally an expectation that patients are able to self manage after a period of time'.[97]
'Medical treatment' is defined in section 4(1), and as relevant, as:
(a) medical... treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner.
‘Therapeutic treatment' is defined in section 4(1) to include:
treatment given for the purpose of alleviating, an injury.
[97] T150.
'Medical treatment'
135. It is necessary if a gym membership is to fall within the definition, for it to be 'under the supervision of a legally qualified medical practitioner'. An examination of the authorities reveals that if a qualified medical practitioner recommends treatment, including attendance at a gym, this could be regarded as treatment 'under the medical practitioner's supervision'.[98]
[98] ReWilliams and Australian and Overseas Telecommunications Corporation (1993) 17 AAR 308.
136. In the case of Mr Diamante, his attendance at the gym was earlier confirmed by Dr Jackson. However, by the time of his report on 8 September 2008, he said in his opinion the gym program 'appears to have been simply providing temporary relief’ and that ‘prolonged treatment of any type is to be activity discouraged' on the basis that '[i]t can and often is counter-productive'.[99]
[99] Exhibit R2.
137. The certificate of Dr Gow, of 14 November 2008, in specifying the type of treatment, referred specifically to 'Pilates treatment' but not gym work. This is in contrast to his medical certificate of 14 December 2007 in which both Pilates and gym membership are specifically recommended. The report of Dr Coyle notes that 'regular exercise based treatment may temporarily help ... symptoms', but does not positively endorse or recommend such treatment.[100]
[100] Exhibit A12.
138. In light of the absence of support for continued gym membership in the most recent reports of the medical specialists and medical practitioners, the Tribunal finds that gym membership does not fall within the first limb of the definition of 'medical treatment'.
'Therapeutic treatment'
139. In Comcare v Watson[101] Finn J concluded that 'A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is ... properly to be regarded as therapeutic treatment’. The course of treatment involved in that case was also gym work. The Tribunal in that case had found that 'gym work does reduce pain and affects beneficially the extent' of reliance on drugs,[102] a view endorsed on appeal to the Federal Court.
[101] (1997) 73 FCR 273.
[102] ReWatson and Comcare (1996) 40 ALD 658.
140. Mr Diamante said in evidence that before Telstra ceased payment for his gym membership he was attending the gym three to four times a week and the work was helpful in building up his strength. The Tribunal notes, however, the absence of support for such treatment in the most recent medical reports. The reports suggest that the medical practitioners no longer saw membership of the gym as having beneficial effects in terms of alleviation of Mr Diamante's continuing pain.
141. In light of the medical reports, the Tribunal upholds the decision under review and affirms Telstra's decision not to continue to pay for gym membership.
I certify that the 141 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member and Dr M Miller, Member.
Signed: ..................[sgd].......................................
J. Lakin, AssociateDate of Hearing 7 and 8 October 2009
Date of Decision 13 November 2009Counsel for the Applicant Mr W. Sharwood
Solicitor for the Applicant Slater & Gordon LawyersCounsel for the Respondent Mr C. Clark
Solicitor for the Respondent DLA Phillips Fox
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