Lagos and Telstra Corporation Limited
[2002] AATA 924
•10 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 924
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1896
) No N2001/863
) No N2001/1314
GENERAL ADMINISTRATIVE DIVISION )
Re ARTHUR LAGOS
Applicant
And TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member
Date10 October 2002
PlaceSydney
Decision The tribunal affirms the decisions under review.
[SGD] M J SASSELLA
Senior Member
CATCHWORDS
WORKERS' COMPENSATION – lumbar back strain – tendonitis of shoulder – whether employer liable to make incapacity payments – whether employee failed to continue to engage in suitable employment - employee deemed able to earn where employee has failed to continue suitable employment – whether employment in clerical duties and other tasks suitable employment – decision affirmed – whether employee suffered disease of reactive depression – decision affirmed
WORKERS' COMPENSATION – error in form of primary decision – whether permissible to have regard to substance of decision
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("suitable employment"), (9), 14, 16, 19(1), (2), (4)(c)
REASONS FOR DECISION
10 October 2002 Mr M J Sassella, Senior Member
THE APPLICATIONS
Application N2000/1896 is an application to the Administrative Appeals Tribunal ("the tribunal") by Arthur Lagos ("the applicant", born 12 July 1942 (ex TD1/T64), for review of a decision dated 29 November 2000 (ex TD1/T208) which affirmed a primary decision dated 17 October 2000 (ex TD1/T197). The decision was literally that Telstra was no longer liable under ss 14 or 16 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") to pay compensation in respect of the condition of "degenerative lumbar disc lesion and degenerative changes, Grade 1 spondylitis at L5/S1 causing chronic back pain and leg pain". The decision was intended to be that the applicant did not qualify for incapacity payments after 21 July 1999 in respect of his back injury.
Application N2001/863 is an application to the tribunal by the applicant for review of a decision dated 25 May 2001 (ex TD3/T11) affirming a primary decision dated 5 October 1999 (ex TD1/T174) rejecting a claim for reactive depression.
Application N2001/1314 is an application to the tribunal by the applicant for review of a decision dated 10 August 2001 (ex TD4/T30) affirming a primary decision dated 25 May 2001 (ex TD4/T23). The decision was that the respondent was not liable to make incapacity payments in respect of the applicant's tendonitis of the right shoulder.
THE HEARINGThe tribunal convened a hearing in these applications in Taree on 27 June 2002 and in Sydney on 28 June 2002. Mr Mark Vincent of counsel represented Mr Laos. Mr Brendan Kelly of counsel represented Telstra. The tribunal heard oral evidence from Mr Lagos, Mr A W Dollin and Dr Lewis-Enright. The tribunal took into evidence the following documents:
· Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T211) in application N2000/1896, provided by the respondent.
· Exhibit TD2 – Supplementary documents (exhibits T1 – T22) in application N2000/1896, provided by the respondent.
· Exhibit TD3 – Section 37 Statement and associated documents (exhibits T1 – T15) in application N2001/863, provided by the respondent.
· Exhibit TD4 – Section 37 Statement and associated documents (exhibits T1 – T34) in application N2001/1314, provided by the respondent.
· Exhibit A1 – Applicant's statement of facts and contentions, 18 February 2002.
· Exhibit A2 – Six-page report by Dr D P Lewis-Enright, occupational physician, 29 May 2002.
· Exhibit A3 – Two-page report by Dr D P Lewis-Enright, occupational physician, 29 May 2002.
· Exhibit A4 – Two reports by Dr D O'Keefe, orthopaedic surgeon, 26 September 2001.
· Exhibit A5 – Report by psychologist Mr D Spencer, 28 May 2001.
· Exhibit A6 – Report by Dr C J C Begg, general practitioner, 12 February 2001.
· Exhibit A7 – Right shoulder x-ray and ultrasound report, 1 March 2001.
· Exhibit A8 – Report by Dr B White, orthopaedic surgeon, 22 June 1998.
· Exhibit A9 – Report by Dr M Pollack, rehabilitation medicine specialist, 24 June 1991.
· Exhibit A10 – Lumbar spine CT scan report, 14 March 1991.
· Exhibit A11 – Right shoulder x-ray report, 6 April 1998.
· Exhibit A12 – Statement by applicant, 19 April 2001.
· Exhibit A13 – Statement by Mr A W Dollin, 29 August 2001.
· Exhibit A14 – Statement by Mr B Adelsback, 29 May 2002.
· Exhibit A15 – Telstra internal telephone numbers.
Exhibit R1 – Respondent's amended statement of facts and contentions, 27 March 2002.
Exhibit R2 – Report by Dr R D Lewin, psychiatrist, 24 October 2001.
Exhibit R3 – Report by Dr A Hodgkinson, orthopaedic surgeon, 11 May 2001.
Exhibit R4 – Report by Dr J B Stephenson, orthopaedic surgeon, 3 December 2001.
Exhibit R5 – Report by Dr B White, 26 March 2001.
Exhibit R6 – Dr Begg's clinical notes.
Exhibit R7 – Report by psychologist Mr I McCombie, undated.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
In order to succeed in the various applications Mr Lagos must be found to have suffered an injury with ongoing effects arising out of or in the course of his employment with Telstra or one of its predecessor entities (the Postmaster General's Department ("the PMG") or Telecom Australia) or to have a disease to which his employment has made a material contribution. This much is clear from the definitions of "injury" and "disease" in s 4(1) of the Act and from s 14(1) of the Act. To succeed Mr Lagos must also be incapacitated for work as a result of a compensable injury and entitled to weekly compensation payments under s 19 of the Act.
Mr Lagos emigrated from Greece to Australia in 1865 and commenced work with the PMG soon after. From ex R1 it is clear that Mr Lagos has a long workers' compensation history with the PMG, Telecom and Telstra. There have been 12 claims over the years.
1967 – Strained back muscles from lifting a water pump from a truck to the ground.
1971 – Lower back strain from use of sledgehammer.
1974 – Pain in back of chest from use of crowbar.
1976 – Low back pain from loading ditcher covers onto truck.
1977 – Low back pain from lifting a cable.
1982 – Lumbosacral back pain from shovelling.
1984 – Strained lower back.
1988 – Lumbar disc lesion at L5/S1 from shifting cable drums.
1994 – Tendonitis right shoulder from lifting pit cover.
1999 – Permanent impairment claim for degenerative lumbar disc lesion and degenerative changes, Grade 1 spondylitis at L5/S1 > chronic back pain and leg pain.
1999 – Reactive depression.
2000 – Claim for weekly compensation payments from 22 July 1999.In these reasons attention is given in turn to each of the three categories of injury or disease before the tribunal. Findings are then made in respect of each.
low backThe incident generating the lower back claim and compensation occurred on 8 January 1988. Mr Lagos was shifting empty cable drums when he felt a sharp pain in the lower back. He lodged an incident report on 12 January 1988 (ex TD1/T17). He lodged a compensation claim on 28 January 1988 (ex TD1/T19) citing the recurrence of a previous injury. The claim was accepted on 19 August 1988 and described as lumbar back musculo-ligamentous strain (ex TD1/T22). All went well until Mr Lagos accepted voluntary redundancy with effect from 21 July 1999 (ex TD1/T148). Telstra paid Mr Lagos incapacity payments only up to 21 July 1999, as authorised on 27 July 1999 (ex TD1/T159). Telstra continued to cover medical expenses associated with Mr Lagos's back condition (eg pharmacy costs on 13 April 2000 – ex TD1/T191) but no further determinations to pay weekly compensation were issued.
On 8 April 2000 Mr Lagos, through his solicitors, indicated to Telstra an intention to pursue a "claim for incapacity", claiming compensation in the amount of $1,179.35 a week from 22 July 1999 to the date of that letter, and continuing. On 17 October 2000 the respondent issued several documents referring to the decision it had taken. The delegate wrote to Mr Lagos's Telstra manager (ex TD1/T196) telling him that liability to pay compensation incapacity payments past 21 July 1999 was denied. The delegate wrote to Mr Lagos (ex TD1/T197) stating that he had decided that Telstra was not liable to pay compensation incapacity payments in relation to back injuries for reasons cited in the statement of reasons. The "reasons for determination dated 17 October 2000 (ex TD1/T197/380) conclude with the delegate stating, "Accordingly, I am not satisfied that the Claimant is entitled to compensation for incapacity in respect of a back injury". This followed four paragraphs of argumentation addressing why incapacity payments were not payable under s 19(4)(c) of the Act. The delegate made an error, however, in the form of the actual determination (ex TD1/T197/379) which stated that the applicant was "not entitled to compensation pursuant to Section 14 or Section 16 of the … Act in respect of [the back condition] arising out of or in the course of his employment with Telstra …". The error was extremely careless but quite obvious in that there were no reasons advanced to explain why the effects of the injury had ceased entirely. This would have been necessary to support a decision that there was no liability under s 14(1) of the Act. Mr Kelly (for the respondent) suggested that this meant that the primary and reviewable decisions were not competent to affect incapacity payments. The tribunal would prefer to take a different approach. It is clear from the reasons accompanying the primary and reviewable decisions and from the notice letters (ex TD1/T196, T197) that the decision applied only to incapacity payments and full reasons were given by the decision-makers for Mr Lagos's ineligibility, as they saw it, for such payments. The tribunal considers that the better approach is to have regard to the substance rather than the form of the respondent's decision. In the tribunal's view the genuine meaning and intended effect of the decision was clear within context. The tribunal interprets the decision according to its true meaning and effect in the remainder of these reasons.
The respondent resisted making incapacity payments on the basis of s 19(4)(c) of the Act. Section 19 of the Act regulates the amount of compensation payable to an employee on a weekly basis in respect of his or her incapacity for work. The provisions relevant to Mr Lagos were:
Compensation for injuries resulting in incapacity
19. (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.…
(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;
…
and
(g) any other matter that Comcare considers relevant.In brief the respondent's position was that Mr Lagos had been assigned suitable employment in the form of light, largely clerical, duties from 12 October 1998 until the redundancy operated. He had elected to take redundancy, thereby failing to continue to engage in the suitable employment. Mr Lagos was therefore deemed to be earning the amount each week that he would be earning in that suitable employment. He had been maintained on his full salary despite being on light duties (ex TD1/T159).
The applicant's position was that he had been effectively forced to accept redundancy and that the employment on light duties had not amounted to "suitable employment" in any event.
In oral evidence Mr Lagos spoke of his light duties. He had been at home off work for about three weeks and had become bored. He saw his doctor for a clearance to return to work. He returned to work on light duties from October 1998 to July 1999 and never returned to his normal work as a Communication Officer Grade 4, a heavy job. He told the tribunal that the light duties involved answering telephones. It was not an established position. It was at a Telstra depot where only the supervisor usually worked. No clerical work was actually done there. Previously Mr Lagos went there only for meetings and to pick up materials. He then said that he also made cups of tea and did some customer contact work while on light duties. Mr Lagos had minimal computer skills. He said that he felt uncomfortable at the depot. He had little to do and he could not do clerical work. He said that he compiled the weekly overtime list. This took 30 to 60 minutes a week.
Mr Lagos told the tribunal that he was scared of being made redundant. There was talk of "resource rebalancing". He suggested that he was reminded by superiors of "resource rebalancing", this being a code for his job being at risk. Mr Lagos said that he felt pressured because of remarks made to him by supervisors and others.
Mr Lagos said that there was never any discussion of him being given more meaningful duties. He did not himself raise the matter because he felt under-educated. He had been educated in Greece for only six years, leaving school at age 12. Mr Lagos told the tribunal that a Mr Steve Adlard, a Telstra return to work consultant (ex A15), had told Mr Lagos that it would be best for him to take redundancy.
At some stage a Mr Paul Riley, Telstra District Manager, had spoken to Mr Lagos. This was after a general computer message had been distributed stating that redundancies were being offered.
Mr Kelly cross-examined Mr Lagos on these matters. Mr Lagos's light duties were listed in a return to work program agreed on 13 October 1998 (ex TD1/T79). They were clerical duties, driving duties and assisting other employees within restrictions. Restrictions were no bending, no lifting weights greater than 10 kg, a requirement to change position or posture regularly and a requirement to stretch or walk around every half-hour. Mr Lagos agreed that he was given clerical duties and he did drive a truck. He also assisted others doing physical work, although his own efforts were very light. He agreed that he had been consulted about this return to work program. He agreed that his doctor, Dr Begg, had certified him as fit for these restricted duties until he separated from Telstra. He agreed that he had had no time off during the period of these duties. He agreed that Telstra had maintained his salary. He agreed that he was still fit to perform these duties when he separated from Telstra in July 1999 but he did query how meaningful the duties were. He agreed he could still do these duties in 2002.
Mr Lagos agreed that he had made the first move in relation to the redundancy but he said that was "in a general sense". He insisted that this followed pressure. The tribunal has surveyed the material in the documents on the redundancy and has found the following.
(a)On 8 October 1998, even before commencing the return to work program, Mr Lagos saw his doctor about the possibility of invalidity retirement (ex TD1/T77). Even at that time Mr Lagos was looking to separate from Telstra.
(b)On 21 December 1998 Ms O'Grady, Mr Lagos's rehabilitation case manager, noted that Mr Lagos had expressed interest in redundancy. She recorded that Mr Lagos could not sleep, "he is really 'frightened' about the future and his finances" (ex TD1/T96).
(c)On 24 December 1998 Ms O'Grady noted that Mr Lagos was worried about his back and about his future (ex TD1/T98). She had called Steve Adlard to discuss. She noted that Mr Adlard would call Mr Lagos to discuss with Mr Lagos his options. The tribunal notes that the idea of redundancy had occurred to Mr Lagos before Mr Adlard entered the picture.
(d)On 14 January 1999 Ms O'Grady wrote to Dr Begg to see whether Mr Lagos might be able to resume duty as a Communication Officer Grade 4 because of Mr Lagos's concerns (ex TD1/T106). She told Dr Begg that Mr Lagos was feeling very anxious and had had trouble sleeping because he was very frightened about his future with regard to finances and his ability to work. She said she had referred Mr Lagos to the Employee Assistance Program ("EAP") which provided five free consultations with a clinical psychologist. She wanted Mr Lagos to learn of stress management strategies. On the same date, in a rehabilitation report, Ms O'Grady noted, "He reports that he is keen to take a redundancy package. He is concerned that ongoing attendance at work may further aggravate his back condition and ultimately have further adverse effects on his quality of life. I have referred him to the EAP for counselling regarding pain management and the current stressors in his life".
(e)At some point, said Mr Lagos (ex TD2/T13/29), Mr Riley spoke to Mr Lagos about his future with Telstra and asked Mr Lagos whether he would like to express an interest in redundancy. "He covered topics such as [Mr Lagos's] physical condition and the possibility that [he] could further injure [his] back if [he] returned to field work". Mr Lagos had said that "[a]fter weighing up the options" he responded with a "yes" to the question of whether he wished to express interest in a redundancy.
(f)Shortly after that, on 27 April 1999 Telstra made an offer of retrenchment to Mr Lagos (ex TD1/T134). Mr Riley signed it. It included the following messages. First, a review of Telstra's current work requirements had unfortunately concluded that the job Mr Lagos performed had been identified as excess to Telstra's work requirements. Second, the union had been notified of the review. Third, Mr Riley had undertaken an assessment of Mr Lagos's skills, knowledge and experience against redeployment opportunities within the work area and had been unable to match them against available openings. He was offering Mr Lagos retrenchment as an alternative job could not be found. Mr Lagos was invited to return a response form within a week. This was described as a "cooling off" period within the "AOTC Redundancy Agreement" and provided Mr Lagos with access to Telstra's Career Transition Service. He told Dr A White, the psychiatrist, on 17 September 1999 (ex TD1/T172/303), that he had been offered redundancy about which he talked to financial advisers who suggested that he "hold on" for longer because it was not enough money to be comfortable.
(g)Mr Lagos considered his options, including speaking to his union (ex TD2/T13/30). He said that in the back of his mind he felt "somewhat backed into a corner". There was talk of resource rebalancing and talk of a serious reduction in redundancy benefits. He wrote, "Because of my back, and medical evidence relative to same, and after considering all possibilities, I elected to accept redundancy". On 14 May 1999 Mr Lagos responded (ex TD1/T141). He accepted the offer of retrenchment. He agreed that he understood that Telstra's needs did not match current job openings. In relation to support services, he elected not to avail himself of the "career transition service". He did not check the box applicable if he wished to be redeployed.
(h)On 16 June 1999 Mr M Rocca, Managing Director of Telstra, wrote to Mr Lagos acknowledging Mr Lagos's acceptance of the retrenchment offer (ex TD1/T148). He informed Mr Lagos that his employment with Telstra would cease at close of business on 21 July 1999. He noted that "a range of support services [had] been made available to [Mr Lagos]".
(i)Mr Lagos said in about September 1999 (ex TD2/T13/30) that the decision to accept redundancy caused him much consternation and distress. He said he was an emotional wreck. As the date of separation approached he felt it was "his own D-Day". He called his former rehabilitation case manager and told her of his predicament. She arranged for him to see a counsellor/social worker, Ms Fay Keegan, in Taree. He saw Ms Keegan.
(j)Mr Lagos finished work on 21 July 1999. He said that his emotional troubles reached their peak only in the last few days prior to his departure from Telstra. "By that stage, the moneys were virtually in my bank account, and it would have been inappropriate for me to cause a fuss by saying I had changed my mind and did not want to go. … I did consider doing this because of the emotional traumas I was suffering" (ex TD2/T13/31).
In addition, there is material from others relating to Mr Lagos's redundancy. Mr John Vaughan who was Mr Lagos's supervisor for his final 2 ½ years in Telstra, including when Mr Lagos was on light duties, spoke in about September 1999 (ex TD2/T13/32-33). Mr Lagos's clerical position was created on a temporary basis and there was no need for such a position under normal circumstances. He said that Mr Lagos's duties involved answering the telephone, transporting small items of equipment to field staff and assisting with other basic tasks. Mr Vaughan tried to teach Mr Lagos computer skills but Mr Lagos failed to grasp the basics. Mr Lagos had mentioned before leaving Telstra that he was worried about his upcoming redundancy. Mr Vaughan said that it was he who had suggested Mr Lagos contact Ms O'Grady for assistance. Mr Vaughan, "despite Mr Lagos's professed concerns about taking redundancy", had "no doubt that Mr Lagos knew his redundancy was entirely voluntary". Mr Vaughan said that, to his knowledge, "Mr Lagos never complained that he was being 'pushed' from the organisation." Mr Vaughan suspected that Mr Lagos was aware that he could have declined the redundancy. Mr Vaughan said that he had not seen any Telstra personnel "pushed out the door" by means of redundancy.
Mr Riley made a statement in September 1999 (ex TD2/T13/33-34). He said that he had handled most of the negotiations with Mr Lagos in relation to the redundancy. He said that he had known Mr Lagos for a number of years and regarded him as a "wonderful man and wonderful worker". He confirmed that all normal processes and procedures were followed in Mr Lagos's redundancy. No pressure had been exerted. He said he believed that Mr Lagos accepted redundancy on a purely voluntary basis, knowing the ramifications. He had never heard Mr Lagos express any reservations about redundancy prior to departure.
Mr Keith Sumpner had been Mr Lagos's supervisor before Mr Vaughan. He spoke in September 1999 (ex TD2/T13/34). He had discussed Mr Lagos's redundancy decision with Mr Lagos on a number of occasions prior to the cessation date. He told Mr Lagos that he did not have to go and that he could not be forced out of the organisation. Mr Lagos "usually responded along the lines of, 'I've signed the papers, so I've got to go.'" Mr Sumpner suspected that Mr Lagos was happy to take redundancy because he wanted the money. In cross-examination Mr Lagos said that he could not recall Mr Sumpner saying that Mr Lagos could not be forced out.
Mr Lagos discussed the redundancy with psychiatrist Dr R D Lewin (ex R2). Dr Lewin wrote (ex R2/3) that Mr Lagos said he accepted a voluntary redundancy package but he felt that it was not entirely his own choice. However, he said, "I was given a bit of a push but I had a choice and I decided to take the VR". He described the push as the employer mentioning "resource rebalancing". Mr Lagos saw this as a possible threat of forced redundancy. Dr Lewin recorded that Mr Lagos made the decision over an extended period of time, perhaps up to 12 months. Mr Lagos said, "I went into it and I decided to take it." Mr Lagos emphasised that the employer kept pressing him to make up his mind. Mr Lagos told Dr Lewin that he did the sums, took advice from a financial adviser and weighed his options.
Mr Kelly put much of the above material to Mr Lagos. In his responses Mr Lagos said that Mr Adlard had discussed more with him than just the options. He had said that redundancy was Mr Lagos's best option because he was injured. Mr Kelly put to Mr Lagos the other options, medical retirement and redeployment within Telstra. Mr Lagos denied that these were options for him. He had been told he had "no chance" of medical retirement. There were no jobs in Telstra into which he could be redeployed.
Mr Lagos agreed with Mr Kelly that he had received advice from his union and from a financial adviser before he accepted redundancy. Mr Lagos agreed with Mr Kelly that no one in Telstra management had approached him with any threat about his future. He had made assumptions. Mr Kelly put to Mr Lagos that he had given long and careful thought to redundancy before accepting the offer. He had decided to go in February 1999 but left in July 1999. This is borne out in Ms O'Grady's file note of 26 February 1999 (ex TD1/T117).
Mr Kelly put to Mr Lagos that he had a choice as to his redundancy. Mr Lagos responded that he did not think he had a choice but now thinks he chose wrongly.
Mr Lagos agreed with Mr Kelly that he never complained while within Telstra about the light duties assigned to him. The tribunal notes that the return to work program was reviewed on 3 November 1998 (ex TD1/T90) and 20 January 1999 (ex TD1/T108) and it was continued without amendment. These were opportunities for Mr Lagos to signify his concerns and he said nothing. Mr Kelly referred Mr Lagos to Ms O'Grady's letter to him written on 26 February 1999 when she was closing the rehabilitation program (ex TD1/T120). She noted in the letter that medical opinion was that rehabilitation would not assist Mr Lagos to resume his pre-injury duties and that she understood Mr Lagos was taking redundancy in July 1999. She told Mr Lagos that his rehabilitatory light duties would continue until he left Telstra. She invited him to contact her if he wished to discuss any matter relating to his rehabilitation. Mr Lagos agreed with Mr Kelly that he had not complained to Ms O'Grady about the light duties work despite this invitation.
Mr Kelly addressed some matters relating to the nature of Mr Lagos's light duties. Mr Kelly noted that Mr Lagos had performed overtime on at least two occasions (ex TD1/T88, T91). Mr Lagos agreed that he conveyed some equipment to staff working in the field.
A former colleague of Mr Lagos, still a Telstra employee, Mr A W Dollin gave evidence at the hearing in Taree. Mr Dollin is a Communication Officer. Mr Lagos was doing administrative duties at the depot when Mr Dollin worked from there. He saw Mr Lagos at least weekly for a couple of hours. He saw Mr Lagos at work. In his view Mr Lagos was not doing much. It was fairly menial work. He was answering the telephone, holding the call pending Mr Vaughan's availability, and doing minor errands.
When Mr Lagos finished working at the depot another person came in and did the same work plus some other duties, ie computer input and certifying tools. He was a Mr Geoff Proctor. Mr Proctor had a leg injury and did the job for 12 months or so before being medically retired. The additional jobs he did were done otherwise by "blow-ins" from the field. More recently team leaders and their assistants had taken over Mr Proctor's work.
Mr Lagos had discussed his future plans with Mr Dollin.
In cross-examination Mr Kelly suggested that Mr Dollin's observations of Mr Lagos's work were perhaps unrepresentative, amounting to only a few hours in a full week. He ascertained that Mr Dollin was unaware of Mr Lagos's medical restrictions. Mr Dollin also conceded that Mr Proctor was not of a non-English speaking background. Mr Dollin had advised Mr Lagos against taking a redundancy. In ex A13 Mr Dollin wrote that he was very surprised when Mr Lagos took redundancy.
In relation to the suitability of the work given to Mr Lagos, the applicant called as a witness Dr D P Lewis-Enright, an occupational physician. He was critical of Telstra, and especially Ms O'Grady, for the selection of duties assigned to Mr Lagos. In ex A3 he had listed possible work appropriate for Mr Lagos. The doctor said that Mr Lagos could have undertaken work in the stores department with physical limitations on the loads he could carry and restrictions on ladder work and bending or stooping. With some training Mr Lagos could have undertaken basic checking of returned faulty equipment such as handsets and return and scrapping of smaller items of equipment, including stripping of components if required. He could have undertaken basic component replacement repairs entailing the replacement of a modular component but no soldering, wire tracing, etc. He could have undertaken packing duties involving smaller items for use by installers or in other depots. In oral evidence the doctor added that Mr Lagos could have offered practical demonstration to others in the digging of pits. At the depot Mr Lagos could have handed shovels to workers doing manual work and he could have fetched and carried. In short, his view was that better use could have been made of Mr Lagos. The tribunal would observe that much of this latter list of duties was not unlike the list that was actually adopted for Mr Lagos's program.
Dr Lewis-Enright wrote:
"I have not had made available to me evidence of an active and positive management role in Mr. Lagos' rehabilitation. Rather the converse would appear to have occurred given Mr. Lagos statement regarding the nature of the work he was given upon his last return to work and also his statement that he was regularly approached to take redundancy and similarly pressured to consider his financial status if workplace restructuring were undertaken. These latter two practises [sic] would strongly suggest that there was management indifference to achieving a successful placement of Mr. Lagos back into the workforce."
At the tribunal hearing Dr Lewis-Enright said that he had been given the medical reports from the T documents but nothing on Ms O'Grady's rehabilitation program after September 1998. In view of this it was somewhat odd that Dr Lewis-Enright was able to write so dogmatically about the alleged shortcomings of Mr Lagos's rehabilitation program. In oral evidence Mr Vincent, the applicant's counsel, took Dr Lewis Enright to the documents that reflected the rehabilitation program. Dr Lewis-Enright made a number of criticisms:
When the return to work program was devised it appeared that not all parties were physically present (ex TD1/T79). The tribunal is not convinced that this was so, especially as Mr Lagos, Ms O'Grady and Mr Vaughan all signed the program on the same date. Mr Lagos did say, however, at the hearing that his discussions with Ms O'Grady were on the telephone and took 10, 20 or 30 minutes at a time.
It was surmised that Ms O'Grady had not visited the site of the depot where Mr Lagos performed his light duties. This premise was not firmly established, although it is true that Ms O'Grady's documentation did not refer to such a visit. Dr Lewis-Enright thought it odd that a rehabilitation case manager would not visit the site. He suggested that she had not done her job properly. He thought she could have arranged for Dr Begg to visit the site. He thought an undue burden was placed on management if a rehabilitation expert is not present to assess what may be possible.
Ms O'Grady wrote to Dr Begg (see paragraph 18(d) above) on 14 January 1999 seeking his opinion on Mr Lagos's potential for rehabilitation back into physical work (ex TD1/T106). Dr Lewis-Enright criticised this approach as "the wrong model". Ms O'Grady had not told Dr Begg what jobs were available in Telstra. She had not asked Dr Begg to properly address future possibilities. The letter did not suggest that Telstra was prepared to retrain Mr Lagos. It seemed that Dr Begg was not told what Mr Lagos had been doing. The tribunal sees this as a somewhat jaundiced assessment. Mr Lagos had expressed a desire to return to his pre-injury duties and Ms O'Grady required an opinion on whether this was realistic. This was not her first recourse to Dr Begg for advice on rehabilitative options. That had occurred on 6 October 1998 (ex TD1/T74) and, on that occasion, Ms O'Grady had apprised Dr Begg of work available within Telstra. Dr Begg was aware of the duties Mr Lagos had been performing and he had approved them (ex TD1/T92).
Dr Lewis-Enright noted that the aim of the rehabilitation appeared to be to return Mr Lagos to his pre-injury duties. The tribunal would agree with this. However, the tribunal notes also that that was what Mr Lagos hoped he could achieve (ex TD1/T106).
Dr Lewis-Enright addressed the rehabilitation case closure form dated 4 March 1999 (ex TD1/T123). This concluded that Mr Lagos's medical restrictions precluded a return to pre-injury duties and he should remain on his then current alternative duties. Dr Lewis-Enright said this showed that redundancy was clearly intended and that the creation of a new job or proper rehabilitation was not addressed. With due respect to Dr Lewis-Enright, the tribunal does not see how this form presaged a redundancy and, in any event, by that date Mr Lagos himself had decided on redundancy (ex TD1/T117).
In cross-examination Dr Lewis-Enright admitted that he had not visited a Telstra work site. However, he said he had been to sites where manual labour is performed. He thought that adequate. He said that he would visit a work site if he were a rehabilitation officer. Dr Lewis-Enright conceded that he was unaware of Ms O'Grady's degree of familiarity with Telstra work sites.
In cross-examination Dr Lewis Enright agreed to a series of propositions put by Mr Kelly. He agreed that it was reasonable to give Mr Lagos light duties but that the particular duties were unduly light. He agreed that Mr Lagos was capable of doing work, although he queried whether he would obtain work on an open market. He agreed that Mr Lagos could physically do the work the doctor had identified as suitable above in paragraph 32. He agreed that employers other than Telstra perform such work and that it exists in the open market.
The central issue in applying s 19(4)(c) of the Act is whether the employment offered to the employee was "suitable employment". "Suitable employment is defined in s 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, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment-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) where employment is available in a place that would require the employee to change his or her place of residence-whether it is reasonable to expect the employee to change his or her place of residence; 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);When he was engaged in the rehabilitation program Mr Lagos was still employed by Telstra. Paragraph (a) therefore applied. Of the subparagraphs, subparagraph (iii) has no relevance as it was never suggested that Mr Lagos should move residence. The tribunal finds that Mr Lagos had a limited residual capacity for physical work. Dr Begg saw him as a total and permanent invalid (ex TD1/T168, 13 September 1999). Dr Hopcroft saw him as fit for light duties (ex TD1/T184, 28 January 2000). Dr Lewis-Enright, as seen above, saw Mr Lagos as fit for low exertion physical work. The employment offered to Mr Lagos was within his training and capabilities. While it was suggested that he could have done more physically, a file note (ex TD1/T86, 25 October 1998) showed that he was "mainly doing clerical work + some assisting work. BUT posture hurt ie on knees – when stood up his back hurt". Thus, it was easy for Mr Lagos to overdo the physical tasks. The tribunal finds that the management of Mr Lagos's rehabilitation was reasonable in that it involved giving Mr Lagos work within his capacities as regards his age, experience, training, language and other skills. His supervisor attempted to train Mr Lagos in computer skills but he had no aptitude for that.
Further, the tribunal finds that the preponderance of the evidence set out above (in paragraphs 18-25 and 31) leads to the conclusion on the balance of probabilities that Mr Lagos was not forced or pressured into accepting a redundancy. The tribunal finds that there is no evidence that, had Mr Lagos refused a redundancy, his light duties would not have continued. Indeed, to the contrary, management representatives clarified that Telstra was not engaging in forced redundancies. The tribunal therefore finds that there is no evidence that Mr Lagos was given a non-genuine job of work to do in an effort to bring about his redundancy. Reference was made to the contents of the formal letter from Mr Riley described above in paragraph 18(f). In that letter Mr Riley recited that Telstra had no job for Mr Lagos. Mr Kelly submitted that such content was a formal requirement for such letters relating to redundancies in certain industries. The tribunal accepts this. It is notorious that in the public sector in particular, and Telstra retains much of its public sector tradition in certain respects, it is necessary that an employee be declared excess to requirements or unable to adapt to technological change if he or she is to be declared redundant. In any event, the tribunal's view is that such a letter as this would be insufficient to neutralise the effect of the other evidence tending to suggest that Mr Lagos understood what was involved in redundancy and had decided that he wanted to accept redundancy.
The tribunal finds that Ms O'Grady and Mr Lagos's managers considered Mr Lagos's suitability for rehabilitation and retraining, as required in subparagraph (ii) of the definition of "suitable employment". The tribunal finds that the rehabilitation provided for Mr Lagos was considered and appropriate.
The tribunal finds, in accordance with s 19(4)(c) of the Act that, the preconditions have been met. Mr Lagos was incapacitated for work in accordance with s 4(9) of the Act in that, because of an injury, he was no longer able to engage in work at the same level for Telstra as immediately before the injury. The tribunal finds that Telstra offered Mr Lagos suitable employment on 13 October 1998. The tribunal finds that Mr Lagos accepted that offer on that date. The tribunal finds that, after accepting that offer, Mr Lagos failed to continue to engage in that employment at the close of business on 21 July 1999. The tribunal therefore finds that Mr Lagos has an ability to earn equal to the amount per week that he would be earning in his suitable employment (which was 100% of normal weekly earnings) if he were still engaged in that employment.
These findings mean that Mr Lagos has failed in his attempt to have incapacity payments continued past 21 July 1999. Application N2000/1896 therefore fails. As far as the tribunal's analysis is concerned, there has been no decision that the effects of Mr Lagos's back injury have ceased. He still has potential to claim compensation for medical and similar expenses associated with the condition if he can do so in accordance with the Act.
tendonitis of right shoulderOn 22 November 1994 Mr Lagos attempted to remove a jammed pit lid and this caused pain in his right shoulder. He reported the incident on 16 January 1995 (ex TD4/T4). He lodged a compensation claim on 16 January 1995 (ex TD4/T6). That claim was accepted on 31 January 1995 (ex TD1/T35). It was accepted as tendonitis of the right shoulder. There were no incapacity payments as no time was lost from work (ex TD2/T3/12) but he received reimbursement of medical expenses (ex TD4/T9). On 25 May 2001 a delegate decided that Telstra was no longer liable to pay compensation in the form of incapacity payments in respect of tendonitis of the right shoulder (ex TD4/T24). The argumentation was mixed. The delegate relied on s 19(4)(c), as was the case in relation to the low back. The delegate relied also on the merits, suggesting that the shoulder injury did not generate an incapacity for work. In a reviewable decision dated 10 August 2001 the delegate adopted a similar approach.
The tribunal finds that incapacity payments are not payable to Mr Lagos because of the application of s 19(4)(c). The tribunal has already provided its reasoning in relation to application N2000/1896.
There has been no decision to cease liability under s 14(1) of the Act so Mr Lagos could possibly succeed in claims for medical expenses associated with this injury.
reactive depressionThe onset of any reactive depression in Mr Lagos would seem to have occurred on 21 July 1999, or perhaps shortly before that date. That was Dr Begg's assessment in a report dated 13 September 1999 (ex TD1/T168). There was no incident report or claim included in the T documents. However in ex TD1/T174/330 there was reference to a claim having been made on 16 August 1999. On 5 October 1999 the claim was rejected (ex TD1/T174). The delegate relied on a report by Dr A White, a psychiatrist, who had reported on 17 September 1999 (ex TD1/T172) that Mr Lagos was suffering from no mental illness. This was affirmed in a reviewable decision dated 25 May 2001 (ex TD3/T11) on essentially the same basis.
The gist of Dr White's report was that when he saw Mr Lagos the applicant did not fulfil the symptomatic, cognitive, behavioural or psychosocial criteria for mental illness. There were no extraordinary work-related stressors and the back pain itself would not precipitate a mental illness. He told Dr White that he was less depressed than he had been (ex TD1/T172/309). Dr White found no evidence of impaired concentration or of intermittent memory difficulties which characterise severe mood disorders. Dr White found that Mr Lagos described spontaneously only a few psychological symptoms which were vague and which were described without any of the appropriate emotional distress which genuine sufferers of psychic pain exhibit when describing their symptoms. More particularly, he did not exhibit slowed laboured cognition typical of severe depression, the distracted impaired concentration typical of severe anxiety, or the disorder of form of thought which characterises psychosis. The form and process of thought was normal.
Mr D Spencer, a psychologist (ex TD3/T13) accepted a history of Telstra pressuring Mr Lagos to take redundancy. This is, of course, contrary to the evidence as presented to the tribunal. He found the affect and presentation not indicative of major depression, although he regarded Mr Lagos as under some stress. Mr Spencer diagnosed a chronic adjustment disorder with depressed mood.
On 13 September 1999 Dr Begg had diagnosed a reactive depressive illness brought on by forced acceptance of a redundancy package due to having become a total and permanent invalid (ex TD1/T168/293).
Dr R D Lewin, a psychiatrist, reported on Mr Lagos on 24 October 2001 (ex R2). Mr Lagos's most pressing complaint was a feeling of anger against Telstra. He believed he had not been treated fairly. "I worked all these years. At the back of my mind was the expectation that they would look after me. They have treated me like a number and wiped their hands of me … I have been cheated by the Telstra Corporation". Dr Lewin noted that Mr Lagos enjoyed several pleasant pastimes. He enjoys seeing his grandchildren and participating in family occasions. He had a wide range of interests. These included fishing off the beach, albeit with some difficulty casting. He enjoys camping and he and Mrs Lagos own a caravan. He goes with his wife to the bowling club once a week and socialises with friends. He enjoys swimming with his wife. He has a shed and likes to fix things. At the hearing Mr Lagos denied that he continues to fish, go camping, use the caravan, travel or play golf. He saw his back as his only serious physical problem. Dr Lewin found no evidence of any continuing depressive condition. Dr Lewin noted Mr Lagos's wide range of current activities, his focus on other aspects of his life and the absence of any clearly defined morbid depressive symptoms. Dr Lewin thought it likely that Mr Lagos experienced a period of distress in the context of the decision to retire. This, he said, is a common experience. Mr Lagos possibly experienced a reactive depressive condition for a number of weeks or months within the context of that life change. Dr Lewin found no evidence of any continuing psychiatric disturbance as at October 2001. Dr Lewin did not diagnose any current psychiatric illness arising because of his work with Telstra Corporation. There was no psychiatric condition that would prevent Mr Lagos from working.
The tribunal finds, on the basis of the psychiatric evidence, that Mr Lagos does not suffer from a diagnosable psychiatric illness and certainly no psychiatric disease to which his employment made a material contribution. The tribunal was most heavily influenced by the psychiatric views of Drs White and Lewin. Dr Lewin's opinion allows that Dr Begg's early diagnosis of reactive depression may have been appropriate in 1999 but was no longer so by 2001. Mr Spencer's diagnosis of chronic adjustment disorder with depressed mood was not endorsed by either psychiatrist. Where there is a divergence of views between a psychiatrist and a psychologist regarding psychiatric diagnosis the tribunal would normally prefer the opinion of the medically qualified psychiatrist to that of a psychologist. This is the preference of the tribunal in the present case. The preference is even stronger given the level of explanation for their views provided by Drs Lewin and White, and given the concurrence of their assessments. Mr Vincent pressed that Dr Begg had retained Mr Lagos on Zoloft, the anti-depressant medication he prescribed when Mr Lagos first had problems with what Dr Begg saw as depression. However, both Drs White and Lewin considered that Zoloft was not indicated. Dr Lewin favoured a phased withdrawal of the medication.
The tribunal finds that Mr Lagos has no diagnosable mental illness to which his employment with Telstra has made any material contribution. This means that application N2001/1314 fails.
CONCLUSIONThe tribunal has found that the decision under review in each of the three applications was the correct or preferable decision. This has the effect that Mr Lagos does not qualify for any incapacity payments. However, liability still exists such that he can qualify for compensation in relation to medical and other expenses associated with his accepted injuries as and when he can make proper claims for such compensation in accordance with the provisions of the Act.
DECISIONThe tribunal affirms the decisions under review.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed: .....................................................................................
AssociateDates of hearing 27 and 28 June 2002
Date of decision 10 October 2002
Counsel for the applicant Mr M Vincent
Solicitor for the applicant Stacks the Law Firm
Counsel for the respondent Mr B Kelly
Solicitor for the respondent Sparke Helmore Solicitors
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