Jovanovski and Telstra Corporation Ltd
[2007] AATA 1236
•16 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1236
ADMINISTRATIVE APPEALS TRIBUNAL )
)N2005/1628 N2006/835
GENERAL ADMINISTRATIVE DIVISION ) Re GEORGE JOVANOVSKI Applicant
And
TELSTRA CORPORATION LTD
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member
Date16 April 2007
PlaceSydney
Decision
The Tribunal affirms the decision in Matter N2005/1628.
In Matter N2006/835, the Tribunal varies the decision of the Respondent:
(a) We are satisfied that Mr Jovanovski’s different episodes of back pain between 1979 and 1992 were contributed to by the nature and conditions of his work as a labourer with Telstra, and that the effects of the aggravations have resolved, so that Mr Jovanovski has no present entitlement since 1 September 2005 and at the date of this decision, to compensation for work related injury pursuant to sections 19, 20 or 21 of the Act, and is not presently after 1 September 2005 and at the date of this decision eligible for section 16 medical expenses. Any subsequent and present complaints are due to the degenerative condition of his lumbar spine.
(b) We find that Mr Jovanovski has no present entitlement since 1 September 2005 and at the date of this decision, to compensation for work related injury pursuant to sections 19, 20 or 21 of the Act, and is not presently after 1 September 2005 eligible for section 16 medical expenses.
(c) The Respondent stated that he did not accept liability for the March 2003 injury. We are satisfied to accept the agreement of the parties that liability was accepted for the March 2003 injury and is not disputed.
Either party may make an application and submissions in writing in relation to the costs of the proceedings within 14 days of the date of this decision.
...................................
Ms G Ettinger Senior Member
CATCHWORDS
Compensation – liability accepted for back injury at work – Respondent held in N2005/1628 that based on the medical evidence there was no present liability at 1 September 2005 and the date of the decision under review to pay incapacity pursuant to section 19, 20, 21 and section 16 expenses – decision under review in matter N2005/1628 affirmed – decision N2006/835 varied to find that there is liability for injury or aggravation due to the nature and conditions of the Applicant’s work, but that there is no present liability at 1 September 2005, and at the date of the decision to pay incapacity and section 19 ,20, 21 and section 16 expenses.
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 20, 21
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Esam v ASP Ship Management (1998) 87 FCR 82.
REASONS FOR DECISION
16 April 2007 Ms G Ettinger, Senior Member
Dr M E C Thorpe, MemberBACKGROUND
2. Mr George Jovanovski, is 51 years old, and came to Australia from Macedonia in 1971. He worked briefly in manufacturing before joining the then PMG. The Applicant was employed by Telstra Corporation Ltd, (and its predecessors), from 1975 to the time he was made redundant in June 2005. Mr Jovanovski worked as a linesman for approximately 18 years from 1975, doing heavy physical work with jackhammers, ditch digging, and working with a pick and shovel. He sustained an injury/aggravation to his back lifting a heavy jackhammer on 26 September 1979. A decision accepting liability for “strained back” for 28 September 1979, and for the period 15 October 1979 to 26 October 1979 was made on 14 May 1980.
3. We were mindful it is undisputed that Mr Jovanovski has a degenerative condition of his spine, and has, over the years, suffered a number of aggravations for which liability has been accepted.
4. He applied to this Tribunal for a finding of permanent impairment which was refused by the Tribunal in 1996 (Exhibit R1, T153). However on 23 November 2004 , the Respondent awarded Mr Jovanovski a 10% whole person permanent impairment related to the right lower limb (Exhibit R1, T276).
5. There are two decisions of the Respondent against which Mr Jovanovski has appealed to this Tribunal, and which we must decide. They are the decision of the Respondent dated 15 November 2005 which affirmed the decision of the Delegate dated 20 October 2005 (Matter N2005/1628), and held that:
“Since 1 September 2005 and as at the present date, the condition that occurred on 4 December 1990 for which liability has been accepted for “lumbar disc lesion-exacerbation of previous injury (‘1990 injury”) has no longer resulted in incapacity for work or the need for medical treatment.
Accordingly, since 1 September 2005 and as at the present date, Telstra is not liable to pay compensation under section 16 and Part II Division 3 of the SRC Act in respect of the 1990 injury.”
6. The second decision (N2006/835) was dated 29 June 2006, and affirmed the decision of the Delegate of 6 June 2006, which held as follows:
“In accordance with the provisions of the Safety Rehabilitation and Compensation Act 1988, I have determined that:
(a)The Claimant suffered injury on 26 September 1979 in the form of “strained back”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 27 October 1979.
(b)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 27 October 1979.
(c)The claimant suffered injury on 1 October 1981 in the form of “sprained back”. The effects of the injury resulting in any incapacity for work pursuant or the need for medical treatment ceased as at 10 October 1981.
(d)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 10 October 1981.
(e)The claimant suffered injury on 25 May 1982 in the form of “right sacroiliac and lumbar strain”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 31 May 1982.
(f)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 31 May 1982.
(g)The claimant suffered injury on 23 July 1985 in the form of “sore back”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 5 August 1985.
(h)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 5 August 1985.
(i)The claimant suffered injury on 29 May 1991 in the form of “low grade form of lumbosacral strain”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 14 November 1991.
(j)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 14 November 1991.
(k)The claimant suffered injury on 10 August 1992 in the form of “aggravation of previously abnormal L5/S1 disc”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 31 March 1993.
(l)Telstra Corporation Ltd has no liability to pay compensation pursuant to section 19, 20, 21 and/or 16 of the SRC Act as at 6 June 2006 and has not been liable since 31 March 1993.
(m)The claimant suffered injury on 26 July 1994 in the form of “aggravation of degenerative condition”. The effects of the injury resulting in any incapacity for work or the need for medical treatment ceased as at 8 August 1994.
(n)Telstra Corporation Ltd has no present liability to pay compensation pursuant to section 19, 20, 21 and or 16 of the SRC Act as at 6 June 2006 and has not been liable since 8 August 1994.
(o)The claimant did not suffer injury in March 2003 and accordingly Telstra Corporation Ltd is not liable to pay compensation pursuant to section 14 of the SRC Act.
(p)The claimant did not suffer injury in respect of the nature and conditions of his employment and accordingly Telstra Corporation Ltd is not liable to pay compensation pursuant to section 14 of the SRC Act.”
7. The Respondent did not disagree that liability had been accepted for an injury in 1979, and for a number of aggravations of Mr Jovanovski’s back over the years. He submitted however that payment for incapacity, for medical treatment, and any other liability pursuant to sections 19, 20, 21, of the Act was not presently due to the Applicant since 1 September 2005, and as at the date of the decision 20 October 2005 (Matter N2005/1628). In Matter N2006/835, Telstra Corporation Ltd held that at the date of its decision on 6 June 2006 it has no liability to pay compensation to Mr Jovanovski pursuant to sections 19, 20, 21 and/or 16 of the SRC Act since 8 August 1994.
8. The Respondent also held that the Applicant did not suffer a compensable injury in March 2003. Further, Telstra Corporation Ltd held that Mr Jovanovski did not suffer injury in respect of the “nature and conditions of his employment”, and that accordingly Telstra was not liable to pay compensation for that claim pursuant to section 14 of the Act.
9. We have, on the basis of the evidence, affirmed Matter N2005/1628, finding that Mr Jovanovski does not continue to suffer from the effects of a work related injury to his back, and is not presently entitled at the date of our decision, after 1 September 2005, to compensation payments pursuant to sections 16, 19, 20 & 21 pursuant to the Safety Rehabilitation and Compensation Act 1988 (“the Act”).
10. In reviewing Matter N2006/835, we are satisfied that Mr Jovanovski’s different episodes of back pain between 1979 and 1992 were contributed to by the nature and conditions of his work as a labourer with Telstra, and that the effects of the aggravations have resolved, so that at the date of our decision, after 1 September 2005, Mr Jovanovski does not suffer incapacity as a result of the nature and conditions of his employment, and that Telstra is therefore not liable to pay compensation to him pursuant to sections 16, 19, 20 & 21 of the Act. We have found that any subsequent and present complaints are due to the degenerative condition of his lumbar spine. Our reasons follow.
ISSUES BEFORE THE TRIBUNAL
11. Because the Respondent had made a statement in his decision holding that “The claimant did not suffer injury in March 2003 and accordingly Telstra Corporation Ltd is not liable to pay compensation pursuant to section 14 of the SRC Act”, the issue of whether Mr Jovanovski suffered a compensable, or indeed any injury in March 2003, was raised by Mr Grey on behalf of the Applicant.
12. Mr Polin who represented the Respondent told the Tribunal that this was not at issue in these proceedings.
13. Accordingly we have decided the matters without taking into account any further evidence regarding whether there was a compensable injury or aggravation in March 2003, and noting that liability was previously accepted for an incident at that time.
14. Accordingly, the issues we have to decide are:
·Whether Mr Jovanovski continues to suffer from the effects of a work related injury to his back, and whether he is presently entitled, after 1 September 2005, to work related incapacity and compensation payments pursuant to sections 16, 19, 20 & 21 pursuant to the Safety Rehabilitation and Compensation Act 1988 (“the Act”);
·Whether Mr Jovanovski has an incapacity for work arising from a compensable condition;
·In doing so, we must also consider whether Mr Jovanovski suffered injury (in terms of the legislation) as a result of the nature and conditions of his employment, and whether Telstra is therefore liable to pay compensation pursuant to section 14 of the Act.
LEGISLATIVE FRAMEWORK
15. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (the Act”), in particular sections 4, 14, 16 and 19.
16. Section 4 of the Act defines “disease” and “injury” as follows:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
...”
17. Sections 14(1) provides for liability for compensation for injured workers, and 16 of the Act provides for reasonable medical expenses to be paid in that regard.
“14 Compensation for injuries
14(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.
…
16 Compensation in respect of medical expenses etc.
(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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
…”
18. Section 19 deals with financial compensation for employees who are incapacitated for work utilising a formula which includes the normal weekly earnings of that person, and follows as relevant.
“Compensation for injuries resulting in incapacity
(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:
…”
19. After the conclusion of the hearing, Mr Grey also drew to our attention section 7(1) of the Act of which we are aware.
20. There is of course well established authority both State and Federal, which deals with injury and disease, with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases. Casarotto v Australian Postal Commission (1989) 17 ALD 321 deals with aggravation and acceleration. In Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, it was held that a de minimis contribution of the workplace suffices, and it is irrelevant that other non-work related factors may have also contributed to the injury or disease.
21. We moved then to consider the issues in dispute in this matter.
WHETHER MR JOVANOVSKI IS PRESENTLY ENTITLED TO COMPENSATION FOR WORK RELATED INJURY AFTER 1 SEPTEMBER 2005 PURSUANT TO THE SAFETY REHABILITATION AND COMPENSATION ACT 1988, NOTING THE CLAIM ALSO IN REGARD TO THE NATURE AND CONDITIONS OF HIS EMPLOYMENT
22. In coming to a decision we noted that Mr Jovanovski made two claims for compensation to this Tribunal.
23. We took into account all the evidence before us, including that of Mr Jovanovski, his wife, Mr David Hajje, and the medical evidence, as well as relevant case law and the legislation.
Mr and Mrs Jovanovski
24. Mr Jovanovski whose statement of 6 March 2007 was Exhibit A3, told us that he worked as a labourer for some 18 years from 1975, in what was then the PMG Department, (now Telstra). He explained that this entailed jackhammer work, digging holes, working with a crow bar in heavy clay, and other heavy work, not like “lifting a glass of wine”. After various work related accidents to his back, for which liability was accepted by his employer, commencing in 1979, Mr Jovanovski was put on light duties in 1992. Mr Jovanovski had no actual recall of the dates of the various incidents which are detailed in the T-documents, and listed in the determinations made by the Respondent. We noted that many of the doctors who examined Mr Jovanovski also found that he had poor recall of the various incidents regarding his back (Drs Dalton, Potter).
25. Mr Jovanovski told us that he did not know what was wrong with his back in the mid 1980s, and when he felt pain after work, he would go home, put a pillow on the couch, and try to relax and obtain relief that way. The Applicant recalled some, but not all of the consultations with doctors.
26. Mr Jovanovski said that in 1991 he still enjoyed fishing, going out to the movies, and meeting friends. He said that he led an active life, which however, is no longer the case. In replies to questions asked in cross-examination, Mr Jovanovski disclosed that the real reason why he no longer goes fishing is that he does not like using frozen prawns as bait. He admitted he could in fact continue with that hobby if he decided to fish in the George’s River which is not far from his home, and which would not entail a long drive, something he could do.
27. He said that after an injury in 1991 he worked on restricted duties, but said that this was still manual work, such as carrying buckets of water for the staff so that they could wash. He remembered being in hospital with his torso in plaster in 1992.
28. When Mr Jovanovski returned from the sojourn in hospital in 1992, he was put on light clerical duties and moved around various Telstra offices. He said that he was inputting time sheets, that is sick leave, holiday leave and other figures on the computer. He says he can read, but cannot write English well. He said that he used to use the email, but said that he generally rang people to reply, rather than write. Mr Jovanovski said that his back was bad, and he needed to get up from his chair and move around from time to time. He was also finally moved to an office closer to his home so that he only needed to drive 10 minutes at a time.
29. Mr Jovanovski said that his back has given trouble all the time, but could not remember when his right leg pain commenced, saying that it was perhaps five or six years ago. He told us that he takes analgesics, and that when his pain is severe, his wife has to assist him by putting on his socks and shoes. The Applicant had been taking Norflex and Dolobid, but told us that since the Respondent ceased paying for his medication, he can only afford Panadeine Forte which his doctor prescribes. We noted from Exhibit A4, that due to the retirement of Dr Borton, his general practitioner, Mr Jovanovski now consults Dr Lim.
30. Due to the fact Mr Jovanovski demonstrated very poor recall in regard to his incidents, attendances upon doctors, and even recall regarding the commencement of his sciatic leg pain, we preferred the documentary evidence to Mr Jovanovski’s recall. In that regard we noted that Exhibit A7 consists of a series of medical certificates of Dr Lim for WorkCover dated 2006 and 2007, which all list analgesics, non-steroidal anti-inflammatories and hydrotherapy as part of Mr Jovanovski’s management plan. We were satisfied that Mr Jovanovski was still taking Norflex and Dolobid in mid-2006 (Dr Dalton).
31. The Applicant told us that he does not limp but walks sideways holding his hip. We were mindful that Drs Matheson, Dalton and Maxwell, recorded that the Applicant exhibited abnormal pain behaviour when he came to see them. Dr Dalton recorded that the Applicant limped when he came to see him. We have commented on that in the paragraphs below, particularly as the covert video evidence we saw which was taken over five days in June 2006, did not show Mr Jovanovski limping, but perhaps favouring one leg slightly on one of the five days.
32. In the period before he was given a voluntary redundancy in June 2005, which Mr Jovanovski says was not voluntary at all, he had been working two days a week, (or three according to the documentary evidence), on light duties. Mr Jovanovski said that he would very much like to have that job back, and would be able to do it. Mr Jovanovski says that since leaving Telstra, he has registered with Centrelink, who have only sent him to one interview. He did not obtain that position, and he has not sought other employment. Mr Jovanovski told us that he sits around at home, stuck within his four walls, has pain in his back and right leg, and is “very very disappointed with everything” because he can’t go anywhere or drive for any length of time.
33. Mrs Jovanovski whose written statement dated 21 November 1996 was Exhibit A2, also gave oral evidence. Neither she nor the Applicant mentioned Mr Jovanovski’s regular outings to the TAB in their statements, and Mr Jovanovski did not mention it in his oral evidence.
34. The Respondent had contracted for covert video evidence of the Applicant to be taken (Exhibit R6). Footage was taken over five days in June 2006, and provided evidence to the Tribunal that Mr Jovanovski spent up to one and a half hours at a time at the TAB during that period. Mr Jovanovski said that he had not attended the TAB since September 2006, and his wife said that he had ceased going in mid 2006 due to a shortage of money.
35. We were satisfied from the video footage that the Applicant is depicted walking quite normally, and without any limp except on one occasion where he appears to be favouring one leg slightly. Mr Jovanovski was also seen walking without any hand on his hip at all, although both he and his wife insisted he holds his hip to assist with the pain when walking.
36. We noted that in paragraph 16 of Mrs Jovanovski’s statement, the paragraph read: “… There was more complaining, more getting out of bed and walking around when he had the pain, he would walk around with what I call a lumpy gait” (our emphasis). At the commencement of her oral evidence, with Mr Grey’s assistance, Mrs Jovanovski amended that statement to say “grumpy gait”, but unfortunately we discerned that she did not understand the meaning of the word “gait” which had been used on her behalf. Mr Grey told us that he had assisted Mrs Jovanovski with the preparation of the statement. Given the issue of the use of the word “gait”, and the fact that Mrs Jovanovski raised her husband’s attendance at the TAB in oral evidence even though it had not been in her statement or his evidence, we found Mrs Jovanovski’s evidence of assistance. We have given it little weight in coming to our decision.
Mr David Hajje
37. A former colleague of the Applicant, Mr David Hajje gave oral evidence. They had worked in the same office from 1996 to 2002, he said. Mr Hajje also made a statement dated 21 November 2006 which was Exhibit A6.
38. In paragraph 10 of his statement he described the duties Mr Jovanovski performed when he left his heavy work.
“I had a good opportunity to observe him in the workplace his duties included completing the daily timesheets, ordering office stationary, (sic), field materials, staff uniforms, organising services for vehicles and mechanical aids. He also organised the bookings for large projects, which could take up to two days for one job. His work also included doing costing and making sure all the paperwork was in the project packs, this included amending plans and doing any additions. I regarded it as a valuable role that he was carrying out.”
39. When asked whether he could employ Mr Jovanovski in any position with his present employer, Mr Hajje said that it would be difficult because the Applicant was not proficient in written English, noting also that computer technology was more advanced by now. We accepted that technology has no doubt moved on, but we were interested to find from Mr Hajje’s statement that Mr Jovanovski performed far more clerical and computer work than Mr Grey would have us accept he did.
40. We turned then to consider the medical evidence, noting that there is no dispute Mr Jovanovski has an underlying degenerative spinal condition.
MEDICAL EVIDENCE
41. We had documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T-Documents”). When we reviewed them, we noted that they consisted of 605 pages in matter N2005/1628, and 52 pages in N2006/835. What these documents recorded were Mr Jovanovski’s incidents at work, his claims for compensation, and subsequent determinations by the Respondent. There were also doctors’ certificates of Dr Borton, Mr Jovanovski’s general practitioner who issued certificates dating back to the early 1980s, and continued to do so until her recent retirement. There was radiological evidence to which we shall turn, and medical reports, for example the 2004 reports of Dr S Potter, a rheumatologist (T256), Dr E Schutz, a consultant surgeon, (T273), 1991, 1992 and 1993 reports of Dr G Weisz, orthopaedic surgeon, and 2003 reports of Dr J Stephenson, a consultant orthopaedic surgeon, (T166 & T205). Even though we have not mentioned each one individually, we have taken all the medical reports into account in coming to our decision.
THE RADIOLOGICAL EVIDENCE
42. We noted that the T-documents contain, amongst others, reports of the following radiological examinations:
·An X-ray of the lumbar spine dated 27 May 1982 where the report stated: “Vertebral alignment is satisfactory. The L.5/S.1 disc space is slightly narrower than usual but there are no reactive changes associated with it and the narrowing is not likely to be significant. ..I can see no indication of significant bone or joint abnormality in relation to the lumbo-sacral spine and the paravertebral soft tissues appear normal.” (T19)
·A CT of the lumbar spine dated 12 December 1990 indicated that “The appearances may be consistent with minor disc protrusion at L4-5 and L5-S1.” (T76)
·A CT of the lumbar spine dated 20 August 1992 concluded: “Central bulging of the L4/5 disc”. (T115)
·An MRI of the lumbar spine dated 9 October 1992 concluded: “There is a small L4/5 and slightly larger L5/S1 disc herniation- unchanged since 1990.” (T125)
·An MRI of the lumbar spine dated 21 July 2003 concluded: “Right paracentral disc protrusion at L4/5, with potential for compression of the right L5 nerve root. Central disc protrusion at L5/S1 with no associated neural compression.” (T174)
·There is a further MRI of Mr Jovanovski’s lumbar spine dated 17 January 2005 which indicated that the disc protrusion at the L4/5 levels appears to be more extended towards the right side indenting the thecal sac, similarly the L5/S1 with displacement of the S1 nerve root on the right also.
43. We noted that Drs Matheson and Schutz commented on the improvement at levels L5/S1 to Mr Jovanovski’s lumbar spine. In that regard Dr Schutz opined that the moderate disc prolapse at L5/S1 appeared to have improved at the time of the later investigations in the mid 1990s.
44. Dr Matheson stated that the investigations indicated the discogenic disease at L5/S1 had actually improved, although the L4/5 has remained with some symptoms. He said that Mr Jovanovski has a back problem, but “it is not nearly as bad as he is trying to make out.” He added that the degree of disability Mr Jovanovski had at the time of his examination in March 2006 was not great, and would not stop him continuing light work if it was available.
CONCLUSIONS
The Tribunal
45. Several days after the conclusion of the hearing when the matter was reserved for decision, Mr Grey wrote to the Tribunal not seeking to reopen the hearing, but expressing a desire to add a submission. He said in his communication that he had neglected to refer in his submissions to section 7(1) of the Act, and to emphasise that the exposure to vibration involved in using jackhammers had provided for a work connection to the Applicant’s spinal degenerative disease. Not surprisingly the Respondent objected, Mr Polin submitting that not only had the hearing been concluded, but that there had been no evidence led as to exposure to vibration. Mr Grey sent a second letter in which he further emphasised his duty to draw all relevant material to the Tribunal’s attention.
46. We have responded by letting the parties know that we are mindful of the statutory provisions involved in compensation matters, including section 7 of the Act. There was no evidence led as to vibration in the evidence before us, and we cannot take that into account in coming to a decision. The records indicate that Mr Jovanovski was compensated for injuries and aggravations as indicated below.
47. In coming to a conclusion, we accept from the evidence, which is undisputed by the parties, that Mr Jovanovski has a degenerative condition of the spine which causes him problems. We also accept that he did heavy manual work, including jack hammering, ditch digging, and working with a pick and shovel for some 18 years at Telstra, followed by a period of approximately 13 years of clerical duties commencing in 1992/3. As previously stated, liability was accepted by the Respondent for periods of incapacity for injury or aggravations dating back to 1979. Liability was accepted for
·“strained back” in 1979
·sprained back” in 1981
·“right sacroiliac and lumbar strain” in 1982
·“sore back” in 1985
·“low grade form or lumbosacral strain” in 1991
·“aggravation of previously abnormal L5/S1 disc” in 1992
·“aggravation of degenerative condition” in 1994, and
·other injury in 2003.
48. The earliest radiological report before us was dated 27 May 1982, and indicated “Vertebral alignment is satisfactory. The L.5/S.1 disc space is slightly narrower than usual but there are no reactive changes associated with it and the narrowing is not likely to be significant. ..I can see no indication of significant bone or joint abnormality in relation to the lumbo-sacral spine and the paravertebral soft tissues appear normal.” (T19) This was approximately two and a half years after the initial incident for which liability was accepted by the Respondent, after Mr Jovanovski suffered an injury lifting a jackhammer on 28 September 1979. The 1979 injury was accordingly not a serious injury, as borne out by the opinion of Dr Dalton who opined:
“I can find no reference to a back injury likely to have been of sufficient severity to result in internal disc derangement. In essence, this man has evidence of degenerative disc disease which is likely to be constitutional in origin but which has been symptomatic from time to time.
…
It is my opinion, therefore, that this man has suffered a number of work-related aggravations but the effects of those aggravations have ceased and his current complaints are attributable to a degenerative condition affecting his lumbar spine…”
49. A CT of the lumbar spine dated 12 December 1990 indicated that “The appearances may be consistent with minor disc protrusion at L4-5 and L5-S1” (T76), and an MRI of the lumbar spine dated 9 October 1992 concluded: “There is a small L4/5 and slightly larger L5/S1 disc herniation- unchanged since 1990.” (T125)
50. Later radiological investigations indicated an improvement. We noted that Dr Matheson (writing in 2006), reviewed reports of other doctors concluding:
“In essence these reports have documented the progression of some discogenic disease at the two lower most levels. The lower most one at the lumbosacral level has actually got better but the L4/5 one has remained with some symptoms. This is a degenerative condition but the nature and conditions of his work may have made him worse over the years. His degree of disability is not great at this stage and would not stop him continuing light work if it was available to him.
…
I am unable to contradict the notion that work may have played a part in developing this condition or worsening it but it is essentially constitutional.”
51. We noted that the radiological evidence indicates Mr Jovanovski suffers some discogenic disease at the two lower levels, L5/S1 and L4/5. The X-ray in 1982 which follows the first compensable incident of 1979, incurred after lifting a heavy jackhammer, shows minor degenerative changes to the spine. The CT scan of 1990 indicates minor disc protrusion at L4/5 and L5/S1, while the MRI of the lumbar spine in late 1992, concludes that there is a small L4/5 and slightly larger L5/S1 disc herniation – unchanged since 1990. The radiological investigations made in the mid-1990s showed improvement in the L5/S1 area.
52. The radiological evidence which indicates that Mr Jovanovski suffers degenerative disc disease which is likely to be constitutional in origin at the two lower levels, satisfies us that there was no incident at work likely to have been of sufficient severity to cause internal disc derangement. We were satisfied from the medical reports to which we have referred that Mr Jovanovski suffered a series of aggravations to his degenerative spine which settled after a short time on each occasion as indicated in the reviewable decision (N2006/835).
53. The Applicant also claims that the nature and conditions of his work since he joined the Respondent in 1975 caused his injuries and aggravations, and that he has remained incapacitated since. There is no doubt that the Applicant did heavy manual work for 18 years, that he has a degenerative condition of the spine, and that he suffered a series of incidents for which liability was accepted by the Respondent. From 1992/3 to the time of his redundancy in June 2005, Mr Jovanovski did clerical work which he said he did not want to leave, and to which he would readily return. The radiological evidence indicates that in the latter 13 or so years with Telstra, Mr Jovanovski’s L5/S1 area improved which may just indicate that the degenerative condition of his back was taking its course and varying its pace.
54. But of course radiological investigations are only a part of the total picture. Mr Jovanovski told us that he suffers pain, and has continued to do so even after leaving Telstra. Both he and his wife told us that he walks sideways, holding his hip to assist with the pain. However, we saw him on covert video evidence taken on six occasions in June 2006, and saw him walking quite normally with the exception of one occasion where he was seen to be slightly favouring one leg. The video evidence also indicated that Mr Jovanovski stands around for various periods while attending the TAB, and that the duration was one and a half hours, at least on one occasion. He did not mention that activity in his oral evidence or written statement. His wife did not mention the TAB in her written statement, but did mention it in her oral evidence which was given after her husband’s evidence, and after the video had been shown to the Tribunal. We have already said in the paragraphs above that we did not find Mrs Jovanovski’s evidence of assistance. The abovementioned evidence with regard to walking also indicates to us that Mr Jovanovski’s credit as a witness of truth is in question.
55. Mr Jovanovski also told us that since the Respondent has ceased paying for his medication, he takes only Panadeine Forte because he cannot afford his other medications. We noted however from Dr Dalton’s report written in mid-2006, that Mr Jovanovski was then taking Norflex and Dolobid as before. We also noted from Dr Lim’s medical certificates in 2006 and 2007 that the Applicant was taking analgesics and non-steroidal anti-inflammatories. This too impacts upon the Applicant’s credit as it indicates he did not disclose correctly to the Tribunal what medication he takes.
56. We noted also that Drs Dalton, Matheson, and Maxwell, as well as Dr Slezak (back in 1989), considered that Mr Jovanovski exhibited some form of functional overlay, and that he was overstating the disability his back causes him. We were mindful that Dr Searle disagreed. We noted Mr Grey’s submission that it would not be unusual for someone with a bad back to be fixated on it. We were mindful of the comparison between Mr Jovanovski’s evidence about his incapacity, and what we saw in the video evidence taken on five different days in June 2006 where he was depicted walking quite normally without any form of limp, (with the exception of one occasion when he seemed to be favouring one leg slightly). We were mindful that Mr Jovanovski walked with a limp when he attended upon some of the doctors (Dr Dalton). We were satisfied from the medical evidence as noted above, that there is some degree of exaggeration or functional overlay in Mr Jovanovski’s presentation.
Nature and Conditions Argument
57. We then considered the evidence, including that of the doctors before us with regard to the nature and conditions argument.
58. Dr Searle’s view, expressed both in his written report and his oral evidence was that the nature and conditions of Mr Jovanovski’s work caused repetitive stresses on the low lumbar spine leading to degenerative changes and disc protrusions at the lower two levels. Dr Searle said that degenerative changes can occur without heavy work in young individuals, but in Mr Jovanovski’s case he related the rate of onset to the heavy manual work the Applicant had performed, adding that it was hard to discern which particular activity was responsible. We noted that Dr Searle did not have the correct history, and had thought that the heavy physical labour Mr Jovanovski did was over a period of 29 years, and when told that it was 18, did not consider that made a difference, saying that even 10 years could cause damage.
59. Dr Dalton acknowledged the type of heavy work Mr Jovanovski had been doing may have caused aggravations to his degenerative spine, but said that the pace of the degenerative processes was hard to determine, and may have been faster during the 15 (13) or so years when he was doing sedentary work. Dr Dalton emphasised that Mr Jovanovski’s condition may now be worse because he is deconditioned.
60. When asked about Dr Searle’s opinion that heavy labouring, which was what Mr Jovanovski’s employment consisted of for 18 years, was the cause of his back problems, Dr Dalton opined that that was not necessarily so, and that the circumstances of each individual were different.
61. Dr Dalton wrote in his report:
“The extent to which there has been a cumulative deterioration in his lumbar spine condition as a result of those work-related injuries, as opposed to the natural progression of degenerative lumbar disc disease is unclear. … to date he has not undertaken a sufficiently specific or thorough exercise programme to address these issues….
I can find no reference to a back injury likely to have been of sufficient severity to result in internal disc derangement. In essence, this man has evidence of degenerative disc disease which is likely to be constitutional in origin but which has been symptomatic from time to time.
On the balance of probabilities I do not consider that this man’s ongoing back pain has been caused by his previous employment …
It is my opinion, therefore, that this man has suffered a number of work-related aggravations but the effects of those aggravations have ceased and his current complaints are attributable to a degenerative condition affecting his lumbar spine…”
62. Dr Dalton said that he was not satisfied that Mr Jovanovski suffered a back injury likely to have been of sufficient severity to result in internal disc derangement. If he had, opined Dr Dalton, the rate of deterioration would have been greater. In essence, he said, Mr Jovanovski has evidence of degenerative disc disease which is likely to be constitutional in origin, and which has been rendered symptomatic by aggravations from time to time. Dr Dalton also commented that the origin of the disc protrusion seen on the 1992 MRI was not necessarily as a result of trauma. Dr Dalton told us that he treats patients who have never done heavy work, and have backs worse than Mr Jovanovski’s. Referring to the 2003 scans, Dr Dalton said that they showed some improvement.
63. We have also noted that Dr Wright, a surgeon who examined Mr Jovanovski in 1991, concluded that the Applicant had suffered a number of back strains, that he had a tendency to soft tissue back strains, and that there was no structural injury. He opined that the soft tissue strains would have been expected to recover within at most three months (T103).
64. Dr Stephenson opined that: “The employment would have been the contributing factor to the contraction of the condition, the contributing factor being the heavy work.” He also said that the natural progression of some degenerative changes could have occurred over the years.
65. Dr Matheson opined:
“In essence these reports have documented the progression of some discogenic disease at the two lower most levels. The lower most one at the lumbosacral level has actually got better but the L4/5 one has remained with some symptoms. This is a degenerative condition but the nature and conditions of his work may have made him worse over the years. His degree of disability is not great at this stage and would not stop him continuing light work if it was available to him.
…
I am unable to contradict the notion that work may have played a part in developing this condition or worsening it but it is essentially constitutional.
66. Dr Maxwell opined that “the gradual onset of his right leg pain would not suggest that this was a sudden acute traumatic protrusion.” Dr Maxwell also referred to “abnormal pain behaviour and fabrication of physical signs, particularly the straight leg raising sign.” Dr Maxwell considered that the Applicant needed to lose weight, and to start an exercise program to build up the power in his trunk muscles.
67. Dr Maxwell also opined as follows:
“I consider Mr Jovanovski would have suffered his low back symptoms requiring conservative treatment as a normal progression of his pre-existing low back pain condition. He sustained intermittent sprains of his back doing physical work. There is no evidence that he sustained a significant disc protrusion. He did not have any radicular signs nor symptoms while doing physical work. He started doing sedentary duties in about 1992 and the pain in his back and leg recurred in 1993 and 2003 without any injury. He was doing his normal work. Therefore the argument cannot be sustained that he was injured in the course of his work.
I consider the effects of the pre-existing degenerative low back condition have overtaken the effects of any work related contribution.
68. Dr Potter opined as follows:
“We are therefore left with the common problem of a regional back pain associated with degenerative disc disease and historical evidence of workplace injuries.
…
Obviously there is long standing degenerative disc disease at those two levels (L4/5 and L5/S1).
… worsening over time.
It is also the natural progression of the pathology since he in fact has worsened in the last five years he says not doing physical work but rather because of the nature of the pathology intrinsic and constitutional.
…
It is reasonable to argue that different episodes over time … would indicate that the nature as a labourer and in the task given did make a contribution to the incapacity.
69. Having considered the evidence of the Applicant and the medical evidence, we are satisfied that Mr Jovanovski suffered injury to his degenerative back during the course of his employment with the Respondent, commencing with the incident in 1979, and followed by others to which we have referred in the paragraphs above. The Respondent accepted liability for those injuries or aggravations sustained while Mr Jovanovski did heavy physical work at Telstra for 18 years.
70. As can be seen from the evidence of the doctors cited above, Dr Searle’s view was that the nature and conditions of Mr Jovanovski’s work have caused repetitive stresses on the low lumbar spine leading to degenerative changes and disc protrusions at the lower two levels. We have noted from the radiological evidence that the disc protrusions at both levels are minor, and that Dr Searle has ignored the fact Mr Jovanovski did clerical work for his final 13 years at Telstra, and further that he has a degenerative condition of his spine.
71. Dr Dalton acknowledged the type of heavy work Mr Jovanovski had been doing may have caused aggravations to his degenerative spine, but said that the pace of the degenerative processes was hard to determine, and may indeed have been faster during the 13 or so years when he was doing sedentary work. Dr Dalton also wrote in his report:
On the balance of probabilities I do not consider that this man’s ongoing back pain has been caused by his previous employment …
It is my opinion, therefore, that this man has suffered a number of work-related aggravations but the effects of those aggravations have ceased and his current complaints are attributable to a degenerative condition affecting his lumbar spine…”
72. Dr Stephenson opined that: “The employment would have been the contributing factor to the contraction of the condition, the contributing factor being the heavy work.” He also said that the natural progression of some degenerative changes could have occurred over the years.
73. Dr Matheson opined:
This is a degenerative condition but the nature and conditions of his work may have made him worse over the years. …
I am unable to contradict the notion that work may have played a part in developing this condition or worsening it but it is essentially constitutional.
74. Dr Maxwell opined as follows:
“He did not have any radicular signs nor symptoms while doing physical work. He started doing sedentary duties in about 1992 and the pain in his back and leg recurred in 1993 and 2003 without any injury. He was doing his normal work. Therefore the argument cannot be sustained that he was injured in the course of his work.
75. Dr Potter opined as follows:
It is reasonable to argue that different episodes overtime … would indicate that the nature as a labourer and in the task given did make a contribution to the incapacity.
76. There was no disagreement, and we accept the incidents consisted of a number of aggravations to Mr Jovanovski’s degenerative back for which he was compensated, and from which he recovered within a short time to continue with his usual work. We have accepted the opinions of Drs Searle, Dalton, Stephenson, Matheson, Weisz and Potter who opined that Mr Jovanovski’s different episodes of back pain between 1979 and 1992 were contributed to by the nature and conditions of his work as a labourer. We noted that Dr Maxwell explained it away by saying that the Applicant did not have any radicular signs nor symptoms while doing physical work (1975 – 1992), and that after the commencement of sedentary duties in approximately 1992, the pain in his back and leg recurred in 1993 and 2003 without any injury while he was doing his normal work. Dr Maxwell considered therefore the argument that he was injured in the course of his work was not able to be sustained.
77. We accepted the opinion of the abovenamed doctors (with the exception of Dr Maxwell), that Mr Jovanovski’s different episodes of back pain between 1979 and 1992 were contributed to by the nature of his work as a labourer. We have also accepted that Mr Jovanovski did not suffer a back injury likely to have been of sufficient severity to result in internal disc derangement (Drs Dalton & Maxwell). We have accepted the opinions of Drs Dalton, Maxwell, Matheson and Potter who opined that the effects of the aggravations had ceased, when they examined Mr Jovanovski in 2005/6, and that the Applicant’s subsequent and present complaints are due to the degenerative condition affecting his lumbar spine.
78. We also accept that the natural progression of the pathology, due to constitutional factors, continued for the 13 or so years after Mr Jovanovski ceased doing heavy work in 1992, and continued to mid 2005 when he separated from Telstra. The natural progression of the pathology is likely to have continued since, and if, as Mr Jovanovski says, his back condition is worse now, we are satisfied that is because the condition is constitutional, and he is now deconditioned due to a lack of exercise and activity for which the employer cannot be held responsible. We were mindful that Drs Maxwell, Dalton and Stephenson mentioned in particular that Mr Jovanovski is deconditioned, that he would benefit from some weight loss, and that a home exercise program would be of benefit to him.
79. We noted that the X-ray in 1982 which follows the first compensable incident of 1979, incurred after lifting a heavy jackhammer, shows minor degenerative changes to the spine. The CT scan of 1990 indicates minor disc protrusion at L4/5 and L5/S1, while the MRI of the lumbar spine in late 1992, concludes that there is a small L4/5 and slightly larger L5/S1 disc herniation – unchanged since 1990. The radiological investigations made in the mid-1990s showed improvement in the L5/S1 area. The radiological evidence which indicates that Mr Jovanovski suffers degenerative disc disease which is likely to be constitutional in origin at the two lower levels, satisfies us that there was no incident at work likely to have been of sufficient severity to cause internal disc derangement (Drs Dalton & Maxwell).
80. In conclusion, we accept that the nature of Mr Jovanovski’s heavy duty work impacted on his degenerative back, noting that the aggravations were temporary aggravations, and that he returned to his normal work after the first injury in 1979 and each other time, until he moved to clerical duties in 1992/3. We are satisfied from the evidence that the progression of the constitutional degenerative back may have continued during the subsequent 13 years while Mr Jovanovski did clerical work rather than heavy physical work. However he did not require treatment or make further claims for work related aggravations after 1995 until the claim in 2003. As stated above, although liability was accepted, there was doubt whether the 2003 incident was actually work related. We accept that any effects of the aggravations were temporary, and that any pain Mr Jovanovski has suffered since 1 September 2005 is due to the normal progression of his constitutional degenerative back. We are satisfied Mr Jovanovski has no present entitlement since 1 September 2005 and at the date of our decision, to compensation for work related injury as a result of the nature and conditions of his work pursuant to sections 19, 20, 21 of the Act or to section 16 medical expenses.
WHETHER MR JOVANOVSKI HAS A PRESENT ENTITLEMENT TO COMPENSATION AFTER 1 SEPTEMBER 2005
81. We were satisfied that Mr Jovanovski suffers pain from time to time due to the degenerative condition of his spine which is a constitutional condition. In coming to a decision regarding his present entitlement to compensation, we considered all the evidence including the medical evidence.
82. Mr Jovanovski told us that he has continuing pain, and that he takes Panadeine Forte. We would expect him to have some pain in his back and in his leg as a result of the constitutional condition of his spine, but not necessarily due to any work related compensable condition. He also said that he stays at home because of pain whereas the evidence indicated he attended the TAB regularly at least in June in 2006, and we were satisfied from the evidence that he could fish if he wanted to use frozen prawns.
83. There was the issue of the abnormal pain behaviour. Dr Searle did not agree with Drs Maxwell, Dalton and Matheson that Mr Jovanovski exhibited abnormal pain behaviour. Dr Searle opined that the Applicant, having been damaged by his work, and having the wear and tear take its toll on his back, was now, as the degenerative changes progressed, gradually, constantly, deteriorating as he had observed in the period between his examination in 2004 and that in 2006.
84. Dr Dalton opined that Mr Jovanovski had suffered a number of work related aggravations of his degenerative spine, but that the effects of those aggravations had ceased, and that his current complaints were attributable to the degenerative condition affecting his lumbar spine.
“The extent to which there has been a cumulative deterioration in his lumbar spine condition as a result of those work-related injuries, as opposed to the natural progression of degenerative lumbar disc disease is unclear. … to date he has not undertaken a sufficiently specific or thorough exercise programme to address these issues….
I can find no reference to a back injury likely to have been of sufficient severity to result in internal disc derangement. In essence, this man has evidence of degenerative disc disease which is likely to be constitutional in origin but which has been symptomatic from time to time.
…
It is my opinion, therefore, that this man has suffered a number of work-related aggravations but the effects of those aggravations have ceased and his current complaints are attributable to a degenerative condition affecting his lumbar spine…”
85. Dr Dalton, in reply to questioning by Dr Thorpe of the Tribunal, emphasised that the back pain Mr Jovanovski reports is due to facet joint arthritis which is due to the degenerative condition of his spine, a condition many in his age group suffer. He said that he was satisfied from the radiological changes that any injury Mr Jovanovski suffered was not severe, and that many people in the community demonstrate some degeneration as shown on the Applicant’s radiological studies. Dr Dalton emphasised that if the Applicant had suffered a back injury likely to have been of sufficient severity to result in internal disc derangement, his rate of deterioration would have been greater.
86. Dr Matheson was not impressed with Mr Jovanovski’s cooperation in examination, nor as a historian. He concluded that Mr Jovanovski:
“He has a back problem. It is not a severe one and not much different from most people of his age. However, he does have a bit of prolapse out on the right at the L4/5 level and could have some right L5 irritation. Thus he does carry a back problem but it is not nearly as bad as he is trying to make out.
87. Dr Maxwell opined as follows:
“I consider Mr Jovanovski would have suffered his low back symptoms requiring conservative treatment as a normal progression of his pre-existing low back pain condition. He sustained intermittent sprains of his back doing physical work. There is no evidence that he sustained a significant disc protrusion. He did not have any radicular signs nor symptoms while doing physical work. He started doing sedentary duties in about 1992 and the pain in his back and leg recurred in 1993 and 2003 without any injury. He was doing his normal work. Therefore the argument cannot be sustained that he was injured in the course of his work.
I consider the effects of the pre-existing degenerative low back condition have overtaken the effects of any work related contribution.
88. Dr Potter opined:
Aggravation is likely to have ceased or eased when the man’s nature of work was changed in approximately 1992, meaning he was given clerical duties and not physical at all and therefore in the last decade the progression of pathology almost certainly represents the natural history of his underlying disease.”
89. When asked in a questionnaire relating to permanent impairment whether any aggravations to Mr Jovanovski’s back had resolved or would reasonably be expected to resolve, Dr Schutz wrote as follows:
“There is a continuing problem due to the accumulative effects of persistent disc prolapses and, now, degeneration. There is no likely resolution to this long term chronic problem.
90. Dr Stephenson referred to various work related injuries and stated that: “The employment would have been the contributing factor to the contraction of the condition, the contributing factor being the heavy work.” He also said that the natural progression of some degenerative changes could have occurred over the years. Dr Stephenson noted that there was lumbar disc degenerative change, and said that the condition was likely to continue, and that Mr Jovanovski may experience some back pain.
91. In conclusion, we were satisfied from the medical and radiological evidence that Mr Jovanovski did not suffer a significant disc protrusion. He did not have any radicular signs nor symptoms while doing physical work between 1975 and 1992. He may suffer pain from time to time, but the overwhelming medical evidence was that the effects of the pre-existing degenerative low back condition have overtaken the effects of any work related contribution. Mr Jovanovski has not had treatment for his back since 1995 apart from taking analgesics and anti-inflammatories to deal with the degenerative condition of his back.
92. We were satisfied that Mr Jovanovski is not presently after 1 September 2005 and as at the date of this decision, entitled to compensation for work related injury.
MR JOVANOVSKI - EMPLOYMENT
93. We were mindful of Mr Jovanovski’s evidence that the redundancy in June 2005 was not what he wanted, and that he would like to return to that work if given the opportunity. Notwithstanding that he expressed that wish, and although he registered with Centrelink to find work, he has only been to one job interview since separating from Telstra, and has apparently made no further efforts to seek employment.
94. We have noted Mr Grey’s argument that the fact that Telstra terminated Mr Jovanovski in 2005 was a “powerful indicator that he is not employable”. The evidence before us was that Mr Jovanovski was carrying out his clerical and related duties quite adequately before he was terminated on what was termed a voluntary redundancy. The Applicant’s evidence was that it was not voluntary, and that he would like to have continued with is job, and would be happy to return if the position were offered. Accordingly, we do not have evidence before us to satisfy us that the termination by Telstra was an indicator at all that the Applicant was not employable then, or indeed presently.
95. We were mindful of Mr Grey’s further submissions regarding Mr Jovanovski’s capacity for work. He submitted that the Applicant who is 51 years old, has spent his entire working experience with Telstra and its predecessors, has minimal English writing skills, rudimentary computer skills now overtaken by technology, and cannot sit for lengthy periods. Mr Grey accepted that Mr Jovanovski has some “theoretical residual capacity to do simple clerical work” but submitted, relying on Dr Searle, that the Applicant is unemployable. He referred to the relevance of the state of the labour market and the case of Esam v ASP Ship Management (1998) 87 FCR 82. Mr Grey submitted that we should find that the Respondent has been liable to pay compensation pursuant to section 19 since 23 June 2003 and that the amount the Applicant could earn in suitable employment since that date is nil.
96. We were mindful it was undisputed amongst the doctors that Mr Jovanovski cannot return to his pre 1992 heavy work due to the condition of his constitutional back. Dr Searle opined that Mr Jovanovski is unemployable because there are multiple factors involved. However several of the doctors were of the opinion he could do light work of the type he was doing before he left Telstra in 2005.
97. Dr Matheson stated:
“However, he does have a bit of prolapse out on the right at the L4/5 level and could have some right L5 irritation. Thus he does carry a back problem but it is not nearly as bad as he is trying to make out. He is obviously fit to continue his clerical duties that he was doing before he took redundancy but heavy labouring work would not be an option for him.”
98. Dr Maxwell considered that Mr Jovanovski is currently capable of doing full time work in his normal duties as a Payroll officer.
99. Dr Stephenson opined that Mr Jovanovski was not totally incapacitated for work, and was fit for clerical duties which he had, by the time of the examination in May 2003, been doing for some years. He noted that the Applicant had some degenerative changes in his lumbar discs, and said that the condition was likely to continue, and that Mr Jovanovski may experience some back pain. He suggested vocational rehabilitation management.
100. We were satisfied from the evidence that Mr Jovanovski was performing adequately in his clerical duties when he was made redundant in 2005. Although there was some evidence that he may be deconditioned due to weight and lack of exercise (Drs Maxwell, Dalton & Stephenson), there was no evidence before us to indicate his condition has deteriorated in relation to the capacity to do clerical work since that time. Indeed the radiological evidence indicates that the L5/S1 area of his back improved somewhat during the 1990s. We preferred the opinions of Drs Matheson, Maxwell and Stephenson who recognised that Mr Jovanovski cannot do heavy work, but that he can do clerical duties. We are mindful of the labour market argument, (Esam v ASP Ship Management), but emphasise in that regard that Mr Jovanovski has made little effort to explore what is available, and has only been to one interview since he left Telstra in 2005.
101. We are satisfied that Mr Jovanovski can do clerical duties and light duties as he was doing for some 13 years before separating from Telstra, and that accordingly no compensation is payable.
CONCLUSIONS
102. In conclusion we accept that:
· Mr Jovanovski has a degenerative spine, constitutional in origin, and are satisfied that he will suffer pain and aggravations to it from time to time as agreed by the doctors whose reports we have considered.
· Mr Jovanovski suffered injury or aggravation at work, and liability for injury or aggravation to Mr Jovanovski’s degenerative back was accepted by the Respondent several times between 1979 and 2003. Each time Mr Jovanovski was able to return to work after a short time when the aggravation had settled. In Matter N2005/1628, which we have affirmed, the decision maker held that at 1 September 2005 the condition that occurred as a result of the 1990 lumbar disc lesion exacerbation no longer resulted in incapacity for work or the need for medical treatment. We have accepted from the evidence and Matter N2006/835, that the first incident of aggravation to Mr Jovanovski’s lumbar spine was in 1979. We are satisfied that at 1 September 2005 and at the time of our decision, Mr Jovanovski does not suffer incapacity for work or the need for medical treatment, and has no present entitlement to compensation for work related injury pursuant to section 19, 20, 21 of the Act or section 16 medical expenses.
· Mr Jovanovski did not suffer a back injury likely to have been of sufficient severity to result in internal disc derangement; Mr Jovanovski did not sustain a significant disc protrusion. He did not have any radicular signs nor symptoms while doing physical work (Drs Dalton & Maxwell);
· In regard to Matter N2006/835, we noted that the decision maker concluded that at 6 June 2006:
(a)The Respondent had no present liability to pay compensation to the Applicant pursuant to sections 19, 20, 21 or section 16 of the Act after 8 August 1994. Having regard to the findings in N2005/1628, and the fact that the legislation is beneficial legislation, we have found that at 1 September 2005 (rather than at 8 August 1994), at the time of our decision, Telstra has no present liability for Mr Jovanovski pursuant to sections 19, 20, 21 or section 16 of the Act.
(b)The Respondent stated that he did not accept liability for the March 2003 injury. We are satisfied to accept the agreement of the parties that liability was accepted for the March 2003 injury and is not disputed.
(c)The Respondent stated that he did not accept liability for injury in respect of the nature and conditions of Mr Jovanovski’s employment pursuant to section 14 of the Act. We were satisfied from the opinions of Drs Searle, Dalton, Stephenson, Matheson, Weisz and Potter who opined that Mr Jovanovski’s different episodes of back pain between 1979 and 1992 were contributed to by the nature and conditions of his work as a labourer with Telstra, and that the effects of the aggravations had resolved when they examined Mr Jovanovski in 2005/6. We accept their opinions, and decide accordingly, that at 1 September 2005 and at the time of our decision, Telstra has no present liability for Mr Jovanovski pursuant to sections 19, 20, 21 or section 16 of the Act.
(d)Mr Jovanovski’s subsequent and present complaints are not work related, and are due to the degenerative condition of his lumbar spine.
· The effects of the pre-existing degenerative low back condition have overtaken the effects of any work related contribution; (Drs Dalton, Maxwell, Potter)
· Mr Jovanovski has no present entitlement since 1 September 2005 to compensation for work related injury pursuant to sections 19, 20 or 21 of the Act, and is not presently after 1 September 2005 eligible for section 16 medical expenses. We are satisfied that any medication he needs or exercise program he has been recommended to take is in connection with his constitutional degenerative back, and not as a result of work related injury or aggravations.
· Mr Jovanovski is fit for clerical duties which he had been doing for some 13 years before 2005.
DECISION
103. The Tribunal affirms the decision in Matter N2005/1628.
104. In Matter N2006/835, the Tribunal varies the decision of the Respondent:
(a)We are satisfied that Mr Jovanovski’s different episodes of back pain between 1979 and 1992 were contributed to by the nature and conditions of his work as a labourer with Telstra, and that the effects of the aggravations have resolved so that Mr Jovanovski has no present entitlement since 1 September 2005 and at the date of this decision to compensation for work related injury pursuant to sections 19, 20 or 21 of the Act, and is not presently after 1 September 2005 eligible for section 16 medical expenses. Any subsequent and present complaints are due to the degenerative condition of his lumbar spine.
(b)We find that Mr Jovanovski has no present entitlement since 1 September 2005 to compensation for work related injury pursuant to sections 19, 20 or 21 of the Act, and is not presently after 1 September 2005 and at the date of this decision, eligible for section 16 medical expenses.
(c)The Respondent stated that he did not accept liability for the March 2003 injury. We are satisfied to accept the agreement of the parties that liability was accepted for the March 2003 injury and is not disputed.
105. Either party may make an application and submissions in writing in relation to the costs of the proceedings within 14 days of the date of this decision.
I certify that the preceding 105 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe, Member.
Signed:
Associate
Dates of Hearing 5,6,7 March 2007
Date ofDecision 16 April 2007
Solicitor for the Applicant Gerard Malouf & Partners
Counsel for the Applicant Mr L Grey
Solicitor for the Respondent Henry Davis York
Counsel for the Respondent Mr N Polin
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