Lincoln Zomer and Telstra Corporation Limited
[2012] AATA 601
[2012] AATA 601
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/0799
Re
Lincoln Zomer
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Deputy President D G Jarvis
Professor P Reilly AO, MemberDate 7 September 2012 Place Adelaide 1. The Tribunal sets aside the decision under review, and in place of that decision decides that:
(a) the respondent is liable for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the injury sustained by the applicant on 27 July 2010;
(b) the applicant has remained incapacitated for work within the meaning of the SRC Act as a result of that injury from and after 20 December 2010 and up to the date of this decision; and
(c) the applicant is entitled to compensation under ss 16 and 19 of the SRC Act in respect of that injury.
2. The Tribunal remits the matter to the respondent to calculate the compensation payable to the applicant in accordance with the above decision and the Tribunal's reasons for decision.
3. The Tribunal reserves liberty to apply on or before 21 September 2012 in relation to the costs of the proceedings, and orders that in the absence of any such application, the respondent is to pay the costs of the proceedings.
........[Sgnd]........
Deputy President D G Jarvis
CATCHWORDS
COMPENSATION - Liability admitted for bruising to left leg and knee - disputed diagnosis of complex regional pain syndrome – continuing partial incapacity - reviewable decision that applicant no longer entitled to compensation - decision under review set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5B, 14, 16, 19
CASES
Canute v Comcare (2006) 226 CLR 535
Australian Postal Corporation v Burch (1998) 26 AAR 312
Australian Postal Corporation v Burch (1998) 85 FCR 265
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Comcare v Sahu-Kahn (2007) 156 FCR 536Dibbins v Dibbins (1978) 80 LSJS 165
SECONDARY MATERIALS
Harden, Dr R Norman and Bruehl, Dr Stephen P "CRPS: Current Diagnosis and Therapy" IASP Press Seattle (2005)
American Medical Association’s Guidelines for the Evaluation of Permanent Impairment, 5th Edition
American Medical Association’s Guidelines for the Evaluation of Permanent Impairment, 6th Edition
Jarvis, D.G. The practice of the Administrative Appeals Tribunal in relation to medical evidence (2012) 86 ALJ 34
The Macquarie Dictionary (5th Edition, 2009)REASONS FOR DECISION
Deputy President D G Jarvis
Professor P Reilly AO, Member7 September 2012
The applicant, Lincoln Zomer, is employed by the respondent, Telstra Corporation Limited. On 27 July 2010, he sustained an injury to his left leg and knee when the lift in which he was travelling dropped unexpectedly from the 14th to the 13th floor of the Telstra Tower in Pirie Street, where he was working. He claimed compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Telstra admitted liability for “bruising of left leg and knee”, and made payments of compensation pursuant to ss 16 and 19 of the SRC Act.
Later, by a primary determination made on 23 December 2010, Telstra denied any then present entitlement to medical expenses or incapacity pursuant to ss 16 or 19 of the SRC Act in respect of the accepted injury. This decision was affirmed in a reviewable decision made on 31 January 2011. Mr Zomer has applied to this tribunal to review Telstra’s decision.
ISSUES BEFORE THE TRIBUNAL
Mr Zomer claims that the injury sustained by the lift dropping led to his suffering complex regional pain syndrome (CRPS), that he remains partially incapacitated for work as a result of that condition, and that his partial incapacity should be treated as total incapacity. Telstra disputes these claims.
The issues before the tribunal are as follows:
(a)whether Mr Zomer suffered CRPS;
(b)if so, whether CRPS is an “injury” or a “disease” within the meaning of the SRC Act; and
(c)if he suffered CRPS and that constitutes a disease within the meaning of the SRC Act:
(i)was his CRPS contributed to, to a significant degree, by the lift incident;
(ii)if so, was he suffering from that condition as at 20 December 2010, and did that condition cause incapacity for work; and
(iii)if any such incapacity for work is partial, should it be treated as total?
BACKGROUND FACTS
The following background facts are not in contention, and are based partly on the evidence of Mr Zomer and partly on documentary material before us.
Mr Zomer is 31 years of age. He left school at the age of 14, when he reached Year 10. He had spent much of Years 8 and 9 doing home schooling by correspondence, because he suffered from severe asthma, and had to stay at home a lot of the time. He was also hospitalised periodically when his asthma became very bad. His symptoms of asthma have substantially abated, and since his adolescence his asthma only causes him difficulties if he gets the flu and has problems breathing.
When he left school he did some handy work on a casual basis, then worked at Hungry Jacks doing maintenance work and work in the kitchen. Other work before he was employed by Telstra included working as a door-to-door salesman, and working as a croupier at the Adelaide Casino, where he worked for approximately three years.
At the date of the incident in the lift he had been employed by Telstra as a sales consultant for about two years and four months. His work involves working in a call centre and assisting customers by providing information about Telstra products or investigating concerns about high bills. He sits at a work station, using a headset, and needs to use a computer screen when taking calls from customers.
Mr Zomer saw his general practitioner, Dr Facundo, on 28 July 2010, the day after the lift incident, and was certified unfit for work from 28 to 30 July 2010 as a result of a sore left leg/knee, which Dr Facundo considered was due to bruising of the left leg and knee[1]. Dr Facundo issued a further certificate on 3 August 2010 to the effect that Mr Zomer was fit to return to modified duties after that, but on 26 August 2010, certified that he was unfit for work from 25 August 2010. Mr Zomer had taken some days off in August but ceased work early in September 2010, and he did not return to work until 16 April 2012. He lodged a compensation claim form dated 10 August 2010, and described his injury as “left knee, pain, swelling, circulation issue”[2]. In a letter dated 13 August 2010, Allianz Australia Insurance Limited, on behalf of Telstra, advised Mr Zomer that it had accepted liability for compensation for “bruising of the left leg and knee” suffered on 27 July 2010[3].
[1] Exhibit R1, T7, page 27.
[2] Exhibit R1, T12, at page 34.
[3] Exhibit R1, T15, page 47.
Telstra made arrangements through its solicitors for Mr Zomer to be assessed by Associate Professor Robert Bauze. He provided Telstra with a report dated 20 December 2010 after examining Mr Zomer on 15 December 2010. On the basis of that report, Allianz on behalf of Telstra advised Mr Zomer in a letter dated 23 December 2010 that it was satisfied that the effects of his compensable injury had by then ceased and that any ongoing symptoms experienced were not the result of the injury alleged to have occurred on 27 July 2010, so that from 20 December 2010 he was not entitled to compensation pursuant to ss 16 and 19 of the SRC Act[4]. Since his return to work at Telstra on 16 April 2012, Mr Zomer had not worked, on average, for two days each week up to the date of the hearing, and claims that this has been because of pain from his left knee.
[4] Exhibit R1, T43, page 147.
FURTHER EVIDENCE RELATING TO THE APPLICANT’S MEDICAL HISTORY AND CONDITION
Mr Zomer gave evidence that he had been involved in two motor vehicle accidents, in 2000 and 2001. However, medical reports in evidence show that the accidents were on 18 December 2002 and 21 August 2003. He said that in the first accident he had a muscular injury affecting the whole of his back, and in the second accident he hurt his left knee, left hip and left shoulder and had two or maybe three months off from his work at the Casino, but then returned to full-time work.
Mr Zomer acknowledged that he had taken pain killing medication in the period after the motor vehicle accidents and prior to the lift incident. He said that apart from having shoulder pain from time to time following the second motor vehicle accident, for which he took over-the-counter pain medication, he also suffered from migraine headaches and problems from grinding his teeth and a tooth abscess, and periodically had asthma. He admitted that over the first few months of his time at Telstra he had quite a lot of time off. He said that this was due to serious concerns about the health of his grandmother, and he also referred to concern about the health of his brother who had also been hospitalised for a time. It appears from a report dated 10 February 2010 from Dr Robin Chase, an occupational physician, that in the 12 months preceding his report Mr Zomer had been absent from work for 69 days, equivalent to approximately three months out of his scheduled shifts[5]. Dr Chase recorded Mr Zomer’s explanation that this had been due to concerns about his grandmother and brother, and could find no medical reason for his absence from work. However, we were not provided with the letter requesting Dr Chase to provide the report, and we are unaware of whether relevant information from doctors who had treated Mr Zomer was taken into account in arriving at his opinion.
[5] Exhibit R1, T5, page 18.
Mr Zomer’s account of the effects of the lift incident was as follows. Immediately after the lift dropped from level 14 to level 13 of the Telstra Tower, he experienced a sharp pain in his left knee. He had been standing leaning against the wall of the lift but with his weight on his left leg. He could not move his leg properly immediately after the incident, and had pain in the knee joint. He only had about an hour’s work left, and completed his day’s work. He saw his GP the next day, and after that he continued to work for as many days as he could for about a month or a month and a half, but then found that he basically could not continue to work. He had swelling in the knee, and it was discoloured, sometimes light pink, a deeper red or it would start to go purple. If he sat down for a long period it was hard to get movement back in his leg. His pain would depend on what movements he did, but he had never experienced that kind of pain before.
He described his later experience as follows. He had tried to push through the “pain barrier” to get movement in his leg, and the more he did the better he became. His knee is a lot better than it was, but sitting down for long periods is still a problem. He built a fence at home in about mid 2011, is able to do a bit of gardening, can walk his dog again and can play 8-ball. The discolouration is always over his knee, but it “widens” if he sits down for a long period. The colour varies from time to time, from light red to darkish red to purple. By May 2011 he wanted to return to work and spoke to Dr Wright about that, but was told by Telstra that he could not return to work except in a full-time position. He believed that he would make a full recovery, and that he had already come a long way.
He said that he still has niggly pains in the left shoulder from his second motor vehicle accident, but it is much better than it used to be. As to his left knee, he said that he could not remember having any problems with it after about six months from the accident, and he was able to engage in swing dancing for about three years, which helped him to recover, but he has not been able to engage in swing dancing since the lift incident.
We found Mr Zomer’s evidence to be unreliable insofar as it related to the duration of the effects on his left knee of the second motor vehicle accident. There are references to his having pain in his left knee on various dates that are recorded in medical records and reports. For example, on 16 September 2005 a general practitioner, Dr Crompton, made the following notes of a consultation with Mr Zomer:
“(L)ong session re chronic pain left shoulder, lumbar area and left knee for which variously takes PF/Nurofen Plus depending how feels on any one day relates to several motor vehicle accidents several years ago has seen specialist and has investigations suggest to Lincoln that his GP is best placed to refer him to Pain Clinic assessment, acupuncture/physio./massage as long history which his GP is familiar ...”[6]
[6] Exhibit R1, ST5, page 998.
Medical reports from two other doctors in connection with the second motor vehicle accident in 2003 also record that Mr Zomer had ongoing pain in his left knee. In a report dated 11 July 2006, Dr Robert Hall, a neurologist, reported a history that Mr Zomer had strained his left shoulder, hip and knee, was hospitalised because of left shoulder pain, and since the accident he had also had “left shoulder aches, low back aches and aches in the left knee”[7]. In a report dated 28 September 2006, about two months later, Dr John Bastian, a consultant in rehabilitation medicine, recorded a history that in the second accident, in addition to experiencing an escalation of his neck pain, upper back pain and headaches, he was experiencing low back pain, pain in his left shoulder and left hip and left knee[8].
[7] Exhibit R2, ST9, at page 1341.
[8] Exhibit R2, ST3, at page 241.
The last specific reference in the material before us that includes pain in the left knee is contained in a report dated 20 August 2007 from Mr Zomer’s then general practitioner, Dr Athinodorou, in connection with a compensation claim. In response to a request for “details of the precise nature and extent of all injuries which directly and necessarily (arose) out of this accident claim, as distinct from any other pre-existing or subsequent problems”, Dr Athinodorou said:
“I must state from the outset that it is a little bit difficult to give precise diagnoses. I believe that the specialists that he has seen have explained things in far better detail than I would have and they are far more qualified than I am. All I can say is that I believe that Lincoln has ongoing soft tissue type pains throughout his body. This pain is mainly in his neck, upper and lower back, he also complained of pain in his left arm, has ongoing headaches and he still has on/off loss of feeling in the left arm and the left hand. He also complains of pain in his left and right knees and left and right legs. He still has a degree of stress and anxiousness from the motor vehicle accident in question.”[9]
We note that Dr Athinodorou refers to pain in both knees and both legs. Earlier references by Dr Athinodorou to pain in the knees and/or legs include his notes of consultations on 28 May 2007[10], 26 July 2007[11] and 17 August 2007[12].
[9] Exhibit R2, ST9, page 1296.
[10] Exhibit R2, ST9, page 1223 (“chronic pain – is finding that his pain are getting worsde [sic], including headaches. ... Pain in in [sic] shoulder and back and legs and neck is using mersyndol all the time”).
[11] Exhibit R2, ST9, page 1231 (“still getting headaches needs referral knees are clicking”).
[12] Exhibit R2, ST9, page 1222 (“ongoing issuues [sic] – pain, headaches, neck pain, upper and loweer back pain, pain in left arm’ loss of feelign in left arm’ and left hand, pain in left and right knees and legs – still streesed and anxious all the time ... all this seconsdary to MVA’s.” (sic)).
It is apparent from the documents referred to above that Mr Zomer periodically reported pain in his left knee until August 2007, being some four years after his second motor vehicle accident. Dr Athinodorou also recorded that a lot of the consultations with him had been for chronic pain. On some occasions he did not particularise where the pain was being experienced, and on other occasions he referred to a history of headaches, pain in the shoulders, upper back and hips and getting headaches, but made no reference to pain in the knees or legs[13]. We also note from the record of a consultation on 11 September 2007 that Mr Zomer needed a referral letter to Dr G Wright for his chronic aches and pains[14].
[13] See for example Exhibit R2, ST9, at page 1224 (consultations on 23 September 2005, 12 October 2005, and 22 February 2007), page 1221 (consultation on 11 September 2007) and page 1220 (consultation on 31 October 2007); Exhibit R2, ST15, at page 1629 (report from Dr Athinodorou, dated 7 November 2005); Exhibit R2, ST15, at page 1661 (report from Dr Jack White, dated 21 July 2006); and Exhibit R2, ST7, at page 1033 (notes of consultations with Dr Facundo dated 25 November 2009 and 21 January 2010).
[14] Exhibit R2, ST9, page 1221.
Our finding in the preceding paragraph as to the duration of the period in which Mr Zomer reported pain in his knee is reinforced by documents produced under summons by the Fountain Valley Medical Centre, which record further consultations with general practitioners from that medical centre from June 2007 onwards. These records included consultations up until the date of the lift incident for pain arising from a tooth abscess and extraction, back pain and migraine headaches, as well as for asthma, pharyngitis and laryngitis, and discussion about the use of pain killing drugs[15]. A number of the consultations took place at regular intervals over the period from January to June 2010, prior to the lift incident in July 2010[16]. These records also include a list of all the prescriptions issued and the dates of those prescriptions during the period from 22 June 2007 to the date of the lift incident[17]. Significant quantities of medications for pain relief were prescribed, and included endep, lyrica and mersyndol forte, but it appears that these were used to relieve various symptoms, and we are not satisfied that they were prescribed to treat pain in his left knee, as was submitted on behalf of Telstra.
[15] Exhibit R2, ST7, pages 1020-1038.
[16] Exhibit R2, ST7, pages 1033-1038.
[17] Exhibit R2, ST7, pages 1011-1015.
It appears from our review of the material before us that Mr Zomer has had a long history of chronic pain, and although he continued to complain of pain in his left knee for much longer than six months after the second motor vehicle accident in June 2003 as he said in evidence, pain in his left knee has not been a particular focus on his symptoms for some years. We find that his left knee was not causing symptoms of any significance for a period of about three years prior to the lift incident.
It appears that Mr Zomer exhibited unusual symptoms following the motor vehicle accidents. For example, in reports prepared just before the second motor vehicle accident, Mr Donald Jones, an orthopaedic surgeon, referred to Mr Zomer’s pain disablement having become “atypical over a relatively short period of time”, and that he was then disabled with pain rather than structural injury[18], and Dr David Callum, an occupational physician, referred to significant pain management difficulties and his injuries having been compounded by personality variables[19]. In another report just before the second motor vehicle accident, Anne Williams, a psychologist, referred to Mr Zomer’s presentation as somewhat eccentric or unusual, and said that she was “yet to unravel the interactions of excessive medication, some possible ‘game playing’ and personality factors”[20]. In a report shortly after the second motor vehicle accident, Dr Szolt Lukacs, a psychiatrist, considered that Mr Zomer was suffering from a pain disorder associated with non-specific functional elements involving what he described as “general grief/grievances related to his motor vehicle accidents and subsequent treatment issues”[21]. He thought that Mr Zomer’s emotional symptoms might best be classified as involving symptoms of an adjustment disorder. In a report dated 21 July 2006, Dr Jack White, a psychologist, considered that Mr Zomer satisfied the diagnostic criteria for four conditions, namely pain disorder associated with general medical condition, post-traumatic stress disorder, adjustment disorder with mixed anxiety and depressed mood, and a borderline personality disorder[22].
[18] Exhibit R2, ST15, at page 1643.
[19] Exhibit R2, ST15, at pages 1632 and 1633.
[20] Exhibit R2, ST16, at page 1719.
[21] Exhibit R2, ST15, at page 1614.
[22] Exhibit R2, ST15, at page 1665.
MEDICAL EVIDENCE RELIED UPON BY APPLICANT RE EFFECTS OF LIFT INCIDENT
Dr Facundo - Dr Facundo continued to refer to his diagnosis of bruising of the left leg and knee in a number of medical certificates until 8 November 2010, when he referred to a diagnosis of “Complex regional pain syndrome – knee”[23]. He continued to refer to CRPS in medical certificates issued after that date. His records as the treating doctor were summoned and tendered, but only up until 27 June 2011. At our request, after the completion of the remainder of the evidence in this matter, a copy of the further records was provided[24]. Dr Facundo was then called, and confirmed that after initially diagnosing muscular strain of the left knee, he subsequently diagnosed CRPS. He said that on occasions he had observed discolouration of the knee, sweating around the knee and swelling, although that was not so prominent. We found his evidence somewhat unsatisfactory, in that his notes of consultations did not adequately record his asserted recollection of his clinical observations and findings. However, he confirmed that he saw Mr Zomer periodically as the treating general practitioner, and he also confirmed his opinion as to Mr Zomer’s capacity for work since the lift incident, as evidenced by various medical certificates which he issued and a report of 11 June 2012, to which we refer below. His opinion as to Mr Zomer’s incapacity for work was consistent with that of Dr Wright, to which we refer below.
[23] Exhibit R1, ST7, page 1123.
[24] The records covering the period to 6 April 2011 are included in exhibit R2, ST7, at pages 1020-1051. The records covering the period 9 April 2011 to 27 June 2012 are contained in exhibit A12.
Dr Campbell – Dr David Campbell, an orthopaedic surgeon, examined Mr Zomer prior to Dr Facundo making the above change in his diagnosis. In a report to Dr Facundo dated 11 October 2010, Dr Campbell had said that on his examination there was venous discolouration in the left leg, possibly some increased sweating, and there was diffuse tenderness throughout the whole knee with a profoundly antalgic gait. He considered that Mr Zomer had a “disproportionately stiff and painful knee and (he was) concerned about the more distal skin changes consistent with a complex regional pain syndrome.”[25] He referred Mr Zomer for an MRI scan, which was conducted on 12 October 2010. Dr Campbell subsequently reported that the MRI scan showed “essentially normal for age findings”, and that “in the absence of any mechanical pathology, it is most likely that he is suffering from complex regional pain syndrome”[26]. In a further report dated 29 October 2010 to Dr Facundo, Dr Campbell said that the MRI scan results were consistent with the clinical observation of a diagnosis of CRPS. Dr Campbell referred Mr Zomer to Dr Wright, an occupational physician and pain physician.
[25] Exhibit R2, ST12, page 1584.
[26] Report dated 19 October 2010, Exhibit R1, at page 68. The MRI report is at Exhibit R1, T25, page 71.
Dr Wright - Dr Wright examined Mr Zomer on 29 November 2010 and diagnosed CRPS of the left knee. In a report to Dr Facundo dated 29 November 2010, he commented “Presentation exceeds IASP ‘Research Criteria’”[27], and in a further report to Dr Facundo two days later, said:
“On examination, he has mild obesity. He walks with a stiff left leg. There is discolouration around the knee. Range of movement is 5̊ to 35̊, and there is allodynia within the range of movement. The knee is cool to palpate compared to the opposite side. There is brush allodynia medially and hyperalgesia to scratch. He is unable to active [sic] the quads due to pain.”[28]
He also said that Mr Zomer had reported hyperalgesia, vasomotor disturbance, sweating and weakness.
[27] Exhibit R2, ST7, page 1159.
[28] Report dated 1 December 2010, Exhibit R2, ST7, page 1161.
Dr Wright gave evidence that he proceeded to treat Mr Zomer for CRPS. He said that he has seen Mr Zomer on approximately 10 or 12 occasions, and he provided a number of reports over that period to Dr Facundo, Mr Zomer’s solicitors and Telstra. He arranged for physiotherapy treatment and graded motor imagery. In reports of examinations on 16 December 2010 and 2 February 2011, Dr Wright confirmed that on examination Mr Zomer was exhibiting objective signs of CRPS, which included discolouration and (on the first occasion) the knee being cool, and (on the second occasion) the knee being swollen.[29] He also prescribed medication to assist with pain from the knee.
[29] Exhibit R1, T44, page 159 and Exhibit R2, ST7, page 1187.
Dr Wright also said in his evidence that Mr Zomer does not now meet the diagnosis of CRPS, and that there had been improvement in his condition as early as in January 2011. He said that there was a further substantial improvement by March 2011, and he was looking to get Mr Zomer back to work in September 2011, although Mr Zomer was not then fully fit and was unable to return to full-time duties, and there would be a problem with sitting or standing for long periods. In a letter dated 30 November 2011 to Dr Wright, Telstra advised that in order for Mr Zomer to be successfully integrated back into the workplace, he would need to undergo induction training which would comprise full-time training five days a week for a period of six to seven consecutive weeks, with 15 minute breaks during the morning and afternoon and a 30 minute lunch break, and sitting for a period of up to two to three hours, and sitting with colleagues listening to live phone calls with customers[30]. Telstra sought Dr Wright’s advice as to whether Mr Zomer would be capable of participating in that induction program. In response, Dr Wright said that in his opinion it was so strongly in Mr Zomer’s interest to return to work that he should attempt to meet Telstra’s requirements. He said:
“It is not ideal for him to try to make a one step return to work, rather than a graded return to work, but that is the situation he is faced with, and I think he would be better served by attempting to make the return to work under the employer’s required conditions rather than delay the opportunity of return to work.”[31]
He added that it would be more appropriate for there to be two or three steps in the return to work, for example half-time and then full-time, or three hours, six hours and then full-time, but if this were not possible, he would urge an attempt to return to work on Telstra’s requirements.
[30] Exhibit A7.
[31] Exhibit A3, page 2.
As mentioned above, Mr Zomer returned to work on 16 April 2012, but experienced pain in his knee, and found he had to take time off work as a result. Dr Wright saw him again on 16 May 2012, and said that he was not then fit for full-time unrestricted duties, because he had needed time off in each of the weeks since his return to work in April 2012. However, he also said that if Telstra provided a work station which could be raised and lowered, to enable work to be alternated between a standing and a sitting position, then he did not know if Mr Zomer could work full time, but he would be better than he is now. Dr Wright then said that he would not disagree with Mr Zomer’s own assessment that with such a system, he would be able to work on a full-time basis[32]. Dr Wright also said the he had seen such work stations at the Police Department, and understood that they are available.
[32] Transcript, 30.05.12, page 137, lines 21-46.
In diagnosing CRPS, Dr Wright had relied upon diagnostic criteria referred to in a publication entitled CRPS: Current Diagnosis and Therapy, published by the International Association for the Study of Pain (IASP) Press, Seattle, in 2005, written by Drs R Norman Harden and Stephen P Bruehl[33]. These diagnostic criteria have now been incorporated into the relevant Tables in the 6th edition of the American Medical Association’s Guide to the Assessment of the Degree of Permanent Impairment[34] (AMA 6). This Guide recounts that the diagnoses of CRPS Type I and CRPS Type II were created by the IASP, with CRPS I applicable when clinically appropriate signs and symptoms are present in the limb without nerve injury, and CRPS II applicable when appropriate signs and symptoms are present in the clinical setting of an unambiguous injury to a specific peripheral nerve[35]. The diagnostic criteria for CRPS are listed in Tables 16-13 and 16-14, and Table 16-13 replicates the criteria referred to in the above 2005 publication written by Drs Harden and Bruehl.
[33] Exhibit A8.
[34] Exhibit R6 contains the relevant extracts from the AMA Guide.
[35] Exhibit R6, page 451, column 1.
Dr Marshall - Two medical reports from Dr David Marshall, a consultant orthopaedic surgeon, who assessed Mr Zomer on referral from his solicitors, were tendered. On 10 June 2011, Dr Marshall noted a wasting of the left calf and diagnosed a chronic pain syndrome, but saw no specific features of CRPS. He concluded that the chronic pain syndrome emanated from the lift injury, and recommended a psychological assessment and ongoing pain management[36]. He considered that Mr Zomer was totally incapacitated for work as a result of his pain disorder, but added that a return to intermittent employment would be advantageous. In his second report dated 19 March 2012, Dr Marshall considered further information regarding Mr Zomer’s medical history and a psychiatric report from Dr M Ewer, who had assessed Mr Zomer at the request of Telstra[37]. Dr Marshall reported that on examination on 15 March 2012, he again found evidence of wasting of the left leg compared with the right, and reported that there had been an improvement in the condition. He considered that Mr Zomer had an “alternate psychiatric problem, i.e., a chronic pain disorder”.[38] He again recommended that he be encouraged to return to normal activities. He repeated his diagnosis of a chronic pain disorder. He also obtained a history that Mr Zomer was still experiencing shoulder pain from his motor vehicle accident, but that his overall condition was improving, he was regaining movement in his knee, it felt stronger and his pain had been reduced[39].
[36] Exhibit A9.
[37] Exhibit A10(a).
[38] Exhibit A10(a), page 3.
[39] Exhibit A10(a), page 4.
MEDICAL EVIDENCE CALLED BY RESPONDENT REGARDING EFFECTS OF LIFT INCIDENT
Associate Professor Bauze -Telstra arranged for Mr Zomer to be examined by Associate Professor Robert Bauze, an orthopaedic surgeon. In a report dated 20 December 2010, Dr Bauze concluded that “there is no evidence on clinical examination or investigations that any injury or condition was sustained as a result of the incident on 27 July 2010”.[40]
[40] Exhibit R1, T42, at page 141.
He added that there were no signs of CRPS, but there were positive signs of what he considered to be a rather serious psychiatric condition, and thought that the current situation was an hysterical conversion reaction and that the past history was suggestive of one or more of a psychosomatic disorder, hypochondriasis, anxiety and stress. In evidence he said that if Mr Zomer was not suffering from a psychiatric disorder, then he was probably malingering. He said that he had understood that the initiating cause of CRPS was usually a minor injury, that the pathological cause of CRPS is unknown, and that the condition would often occur within about six weeks of the initiating event. Associate Professor Bauze agreed that Mr Zomer was describing some of the objective signs in the diagnostic criteria for CRPS Type I, but he saw no evidence of those objective signs.
Dr Champion - Telstra also arranged for Mr Zomer to be assessed by Dr Gary Champion, a consultant physician and rheumatologist. He examined Mr Zomer on 22 August 2011, and by reference to the American Medical Association’s Guidelines for the Evaluation of Permanent Impairment, 5th Edition (AMA 5), concluded that Mr Zomer did not have any signs of CRPS Type I. He also considered that there was no injury to the left knee as a result of the work incident in July 2010, he did not agree with Dr Wright’s diagnosis, and he did not consider that there was any incapacity for work[41]. In his evidence he referred to the rarity of the condition of CRPS, and said that whilst AMA 5 is used in South Australia by WorkCover, and as far as he was aware also in New South Wales, he was not aware that AMA 6 was used in Australia. He drew our attention to the introductory paragraphs in the extracts from AMA 6, commencing at page 450 of Exhibit R6, including references to the rarity of the condition and the need to rule out differential diagnoses and for the diagnosis to be supported by objective findings. He also drew our attention to the proposition that there is no “gold standard diagnostic feature” which reliably distinguishes the diagnosis of CRPS, and that the criteria lack specificity and may identify some patients as having CRPS when they do not. In cross-examination, Dr Champion agreed that he arrived at his opinion because he did not see any objective signs of CRPS, and thought that because there was no gold standard there was a differential diagnosis, which could include faking the impairment. He also said that the objective signs of CRPS do not vary from day to day, but that statement is inherently inconsistent with Dr Wright’s opinion and observations of varying objective signs over the period when he was treating Mr Zomer.
[41] Exhibit R5(b).
Dr Ewer - Telstra also arranged for Mr Zomer to be reviewed by Dr Marty Ewer, a psychiatrist. He examined Mr Zomer on 8 August 2011, and provided a report dated 9 August 2011[42]. Dr Ewer reviewed a considerable volume of material relating to Mr Zomer’s past medical history, as well as reports and records following the lift incident. He concluded that Mr Zomer did not suffer from a psychiatric condition due to the lift incident or any other work related factor. He also reported that it is probable that Mr Zomer has significant personality psychopathology, and has a limited repertoire of healthy/adaptive coping mechanisms. He noted a past history of pain and a tendency to focus on physical problems, and considered that personality factors were probably causing this focus. He further advised that personality “variables” probably would not interfere with his working[43], and from a psychiatric perspective he could work full time. Dr Ewer confirmed in his evidence the opinions he had expressed in his above report, and we accept his evidence.
[42] Exhibit R4(a).
[43] Exhibit R4(a), page 23, para 26.4.1.1.
LEGISLATIVE SCHEME
Section 14(1) of the SRC Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, and provides as follows:
“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.”
Telstra is the holder of a licence under Part VIII of the SRC Act, which authorises it to accept liability for and manage claims under the SRC Act, and by virtue of s 4(10A), a reference in the Act to Comcare is, unless the contrary intention appears, a reference to a licensed corporation.
The requisite connection between a medical condition in respect of which an employee claims compensation and his or her employment is provided for indirectly, via the definitions of “injury” and “disease” in ss 5A and 5B of the SRC Act. Section 5A provides as follows:
“(1) In this Act:
“injury” means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, the employee’s employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
“Disease” is defined relevantly in s 5B as follows.
“(1) In this Act:
“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.”
The word “ailment”, which is used in paragraph (a) of the definition of “disease”, is defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The word “aggravation” is defined to include “acceleration or recurrence”.
Section 16 of the SRC Act provides in effect that where an employee suffers an injury, Comcare (or Telstra in this case) is liable to pay the cost of reasonable medical treatment obtained in relation to the injury.
Section 19 provides in effect that Comcare (or Telstra in this case) is liable to make incapacity payments where an employee is incapacitated for work as a result of an injury, and provides for how such incapacity payments are calculated.
CONSIDERATION
As the High Court of Australia pointed out in Canute v Comcare,[44] the concept of an “injury” is a term of pivotal importance in the structure of the SRC Act, and the term “injury” is not used in the sense of “workplace accident”, but is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body.
[44] (2006) 226 CLR 535 at [8] and [10].
Was the applicant suffering from CRPS as at 20 December 2010?
It is first necessary to determine whether (as he contends) Mr Zomer was suffering an injury, namely CRPS, as at 20 December 2010, when Telstra decided that he was no longer entitled to compensation. On this issue, we prefer the evidence of Dr Wright to that of Associate Professor Bauze and Dr Champion. As to Dr Champion, he did not examine Mr Zomer until August 2011, and on the basis of the evidence of Mr Zomer and Dr Wright, we find that by then Mr Zomer had substantially improved, and was not exhibiting the objective signs which would meet the diagnostic criteria CRPS Type I. We further consider that as a pain specialist making a clinical diagnosis, Dr Wright was entitled to use the diagnostic criteria on which he relied, which included the criteria approved by the IASP and the criteria in AMA 6, notwithstanding that AMA 6 has not been adopted for use in Australia. AMA 5, which was referred to by Drs Champion and Marshall, is used primarily as a guide to the assessment of the degree of permanent impairment, and not as a diagnostic tool. In any event, the objective criteria for diagnosis of CRPS in AMA 5 are virtually identical to those in AMA 6. We also observe that for the present purposes, the legal standard of proof is applicable, and not a “gold” or scientific standard, as Dr Champion seemed to think was necessary[45]. We accept the evidence of Associate Professor Bauze that Mr Zomer was not exhibiting any objective signs of CRPS on the occasion when he examined him, but note that Dr Wright saw Mr Zomer on many occasions, both before and after the examination by Associate Professor Bauze, and reported the presence of objective signs on a number of those occasions. In addition, Dr Campbell also observed discolouration, being an objective sign of CRPS in October 2010, and he arrived at a tentative diagnosis of CRPS. Further, the exclusion by the MRI scan of any physical injury to the knee and the absence of any diagnosable psychiatric condition are consistent with that diagnosis.
[45] See the authorities discussed in The practice of the Administrative Appeals Tribunal in relation to medical evidence, D.G. Jarvis, (2012) 86 ALJ 34 at 45 as to the difference between the approach adopted by courts and tribunals, and the more exacting proof demanded in matters of medical science.
Counsel for Telstra, Mr Wallace, was critical of certain aspects of Mr Zomer’s evidence, including his evidence as to the effects of the second motor vehicle accident on his knee (which we discussed in paragraphs 16 - 21 above), his reference to his foot and not his knee when he filled in a questionnaire before seeing Dr Wright, and his restrictive account of his activities to Drs Marshall and Champion. However, the investigations by Drs Facundo, Campbell and Wright were focussed on the left knee, so they must have understood at that time that that was the source of his ongoing pain, and Mr Zomer provided detailed information as to his recovery and activities when he saw Dr Marshall on the second occasion. We think it likely that Mr Zomer did not cope with his pain as well as others might have done, due to the personality characteristics referred to by Dr Ewer, but we accept his account of the essential aspects of his description of the development and progress of his symptoms, and think that this is also consistent with the development of, and subsequent gradual recovery from, CRPS.
The liability of an employer for compensation for an “injury” or a “disease” also depends on the relationship between the employee’s condition and his or her employment.
As mentioned above, the word “injury” in the SRC Act is defined to include a “disease”. The definition of “disease” is couched in broad terms, having regard to the width of the definition of its first component, namely “ailment”. The definition of “ailment” includes any disorder. The word “disorder” is not defined, but according to the Macquarie Dictionary (5th Edition, 2009) the relevant meaning of that word is “a derangement of physical or mental health or functions”. The definition of “ailment” in the SRC Act also includes the word “ailment” itself, and so the word “ailment” in the Act must be given its ordinary English meaning. According to the same dictionary, the meaning of “ailment” includes “a morbid affection of the body or mind; indisposition;” “morbid” is defined to include “affected by, proceeding from, or characteristic of disease”; and “indisposition” is defined to include “the state of being indisposed; a slight illness.”
In Australian Postal Corporation v Burch, Northrop J discussed the concepts of “disease” and “injury”.[46] His Honour referred to cases dealing with the rupture of an arterial wall, where it was decided that the rupture amounted to a physical injury, which was distinct from the defect, disorder or morbid condition (or disease) which enabled it to occur. Similarly, in Kennedy Cleaning Services Pty Ltd v Petkoska,[47] Gleeson CJ and Kirby J, after referring to earlier authorities including Burch (supra) said, at [39]:
“All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment … If the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.”
[46] (1998) 26 AAR 312. An appeal against Northrop J’s decision was dismissed: Australian Postal Corporation v Burch (1998) 85 FCR 264.
[47] (2000) 200 CLR 286.
It is clear that Mr Zomer’s initial injury was an injury within the ordinary meaning of that word, and not a disease, because the lift incident produced bruising to the left leg and knee, as diagnosed by Dr Facundo at the time of the consultation on the day after the incident. Counsel for Mr Zomer, Ms Molloy, contended that the condition of CRPS was a sequelae of that injury, and so the condition of the left knee should be regarded as an “injury” simpliciter, and not a “disease”. The difficulty with this contention is that the aetiology of CRPS is, on the evidence before us, unknown. According to Dr Wright and Associate Professor Bauze, there must be an initiating event, but that can be a trivial or more serious physical injury, or the result of the immobilisation of a limb for a period of time. We further understand that CRPS is a condition of gradual onset, and that the diagnosis is appropriate when there is no organic explanation for the presence of CRPS. In the present matter, CRPS was diagnosed as a separate condition at a time after the initial bruising from the lift incident would have been expected to have resolved. It was a delayed consequence of an initial injury, which developed over a period of time. We find that it constituted a “disease” and not an “injury” simpliciter.
The effect of s 14(1) of the SRC Act, in conjunction with the definitions of “injury” and “disease”, means that liability for compensation for the condition of CRPS as we have analysed it in this case will arise only if that condition was contributed to “to a significant degree” by the employee’s employment.
In Comcare v Sahu-Kahn[48], Finn J referred to the requirement under the SRC Act as it existed prior to the 2007 amendments that employment should contribute “in a material degree” to the suffering or aggravation of an ailment. He said that this concept required an evaluation of all relevant contributing factors, and whether employment in a particular case had contributed in a material degree would be a matter of fact and degree. The current definition of “disease” requires a stronger connection with employment for the disease to be compensable, since by virtue of s 5B(3) of the SRC Act, “significant degree” is defined to mean “a degree that is substantially more than material”.
[48] (2007) 156 FCR 536.
Mr Wallace submitted that if it is not known what “initiates” the pathological cause of CRPS, then a minor injury cannot on the balance of probabilities be a cause of CRPS as a matter of medical science or as a matter of law, and so the statutory test of causation cannot be satisfied. We consider that this submission confuses the proposition that medical science cannot explain the cause of CRPS with the legal test of causation, that is whether some employment-related event contributed (and in the case of a disease under the SRC, contributed to a significant degree) to the onset of CRPS. We accept the evidence of Dr Wright that the minor injury sustained in the lift incident caused the onset of CRPS.
If we are wrong in the above conclusion, then in the alternative, having regard to Mr Zomer’s history, this case might be an appropriate case for the application of the approach adopted by Sir Charles Bright in Dibbins v Dibbins[49], where he said:
This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff. True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement. They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms. They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause. But ultimately we must come back to the symptoms. Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognize this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Very often there is no reliable independent corroboration of the patient’s account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient.
[49] (1978) 80 LSJS 165, at 165.
It remains necessary to apply s 5B of the SRC Act. This contains a non-exhaustive list of matters that may be taken into account in determining whether an aggravation was contributed to to a significant degree by employment. These matters include “any predisposition of the employee to the ailment or aggravation”[50]. Taken by itself, it is not clear whether that paragraph requires that any such predisposition should be used in effect to discount the impact that work-related events would have on an employee with such predisposition, or whether the paragraph was intended to have the opposite effect, that is, that any such predisposition would leave the employee vulnerable to the relevant work-related event, so that that event would then be more likely to contribute to the aggravation to a significant degree (this being the traditional approach to the relevance of pre-existing vulnerability in compensation cases). We think that having regard to the purpose of the 2007 amendments, the former interpretation is correct. The Explanatory Memorandum relating to those amendments, which included the enactment of s 5B, incorporated the following statement (which perhaps under-stated the effect of the proposed amendment):
“[T]he courts have read down the expression ‘in a material degree’ to emphasise the causal connection between the employment and the condition complained of rather than the extent of the contribution. The purpose of the proposed amendment is to assist in reinstating the intended policy behind the Commonwealth workers’ compensation scheme by limiting access to compensation claims for diseases to which work has only made a very minor contribution.”
Similarly, in the Second Reading Speech relating to the proposed amendments, it was said that the changes were being made to “strengthen the connection between the employee’s employment and the employee’s eligibility for workers compensation under the scheme”.
[50] s 5B(2)(c).
We referred above to the reports of Mr Zomer’s reaction to the motor vehicle accidents in 2002 and 2003, and to Dr Ewer’s assessment to the effect that there is significant personality psychopathology, and that Mr Zomer has a limited repertoire of healthy/adaptive coping mechanisms. We find that he had a predisposition to develop chronic pain, but there was no evidence that he had a predisposition to CRPS, and Mr Wallace made no submission to that effect. In any event, as we have said above, on the evidence before us there must be an initiating event for CRPS to develop, and we are satisfied that the lift incident constituted that precipitating event and that it was more than a mere condition precedent to the development of CRPS. We find that the lift incident made a significant contribution to the condition, and so the condition fulfils the requirements of the definition of “disease” in the SRC Act. We are satisfied that the condition of CRPS resulted in incapacity for work, which subsisted as at 20 December 2010, and accordingly, Telstra continued to be liable for compensation under the SRC Act as at that date.
Duration and extent of applicant’s incapacity
It is apparent that Mr Zomer’s condition improved during 2011. Dr Wright said that he noticed improvement as early as his consultation on 19 January 2011. He also gave evidence that he wanted to get Mr Zomer back to work at the time of the examination on 7 September 2011, but felt that he was not fully fit to return to work at that time because he would have had problems sitting or standing for long periods. In his report of that date[51], Dr Wright reported to Dr Facundo that he understood that Mr Zomer had a certificate to return to work from Dr Facundo, and that he rang an official at Telstra but was told that they had sought medical opinion from Drs Ewer and Champion as to Mr Zomer’s fitness to return to work. The medical certificate from Dr Facundo to which Dr Wright referred was dated 17 August 2011, and certified that Mr Zomer could go back to modified duties for four hours from Monday to Tuesday and then Thursday to Friday, standing and moving around (as needed) and not just sitting stationary, and with an appropriate footstool to elevate his legs[52].
[51] Exhibit A2
[52] Exhibit R2, ST35, page 1886.
It is common ground that Telstra did not develop any return-to-work program involving modified duties of the kind indicated by Dr Facundo. As mentioned above, nothing eventuated from Dr Wright contacting Telstra in an attempt to arrange a return to work. It appears from exhibit R9 that nothing further eventuated regarding a possible return to work until 7 November 2011, when Telstra sent a letter to Mr Zomer referring to the medical certificate of 17 August 2011, and asking for confirmation that he still wished to return to work. That resulted in an email dated 21 November 2011 from Mr Zomer to Ms Bosco at Telstra confirming that (while he was confused about Telstra’s position), he still wished to return to work[53]. Telstra then sought further medical opinions from Drs Wright and Marshall. We also referred above to Dr Wright’s response to the letter from Telstra dated 30 November 2011 (which sought his opinion as to a full-time return to work for induction training for a period of six to seven consecutive weeks). Dr Wright responded in effect that this proposal was not ideal, but it was so strongly in Mr Zomer’s interests to return to work that he should attempt the induction training under Telstra’s required conditions, rather than delay the opportunity to return to work[54].
[53] Exhibit R10.
[54] See paragraph 26 above.
Telstra then sent a letter dated 9 January 2012 to Dr Facundo referring to his earlier medical certificate of 17 August 2011, re-iterating the proposal they had communicated to Dr Wright involving full-time induction training for a period of six weeks, and enclosing a copy of Dr Wright’s response[55]. In a letter dated 13 February 2012, Dr Facundo said that he agreed with Dr Wright that Mr Zomer was capable of participating in the induction training on a full-time basis, for a period of six consecutive weeks, but he needed to stand and move around (as needed) with an appropriate footstool to elevate his legs. Dr Facundo explained in evidence that Mr Zomer had been optimistic that he would be able to go back to full-time work, and he (Dr Facundo) had understood that Telstra had made an “all or none” proposal, that is that Telstra would only allow Mr Zomer to return to work on the basis that he would engage in a full-time induction program.
[55] Exhibit R9.
We referred above to Mr Zomer’s evidence as to his attempt to return to full-time work after 16 April 2012, and to Dr Wright’s opinion that his time off since then indicated that Mr Zomer was not at that time fit for a resumption of his ordinary work. We also note that in response to a question from Professor Reilly, Dr Wright said that whilst there was no literature on what can be expected as a residual effect once CRPS can no longer be diagnosed, the ongoing symptoms of intermittent pain from activity related to movement of the knee and a degree of weakness in the knee and of limping were consistent with the residual pain of the condition of CRPS after that condition was no longer diagnosable[56].
[56] Transcript, 30 May 2012, page 129, lines 16-29.
We were informed by counsel that in the event, the induction training program that had been proposed was not made available to Mr Zomer, but he returned to his former full-time work. He has subsequently seen Dr Facundo on several occasions since returning to work, and Dr Facundo has issued certificates of unfitness for work for various days since then. In a report dated 11 June 2012, Dr Facundo advised that in his opinion, Mr Zomer was unable to work on a full-time basis, and recommended that he work on Mondays and Tuesdays, have Wednesdays off, and then return to work on Thursdays and Fridays. In addition, he advised that Mr Zomer would need to move around and stand every two hours for five to 10 minutes[57]. He confirmed his opinion in evidence, and said that his restrictions on his capacity for work were due to pain in his left knee.
[57] Exhibit A11.
We referred in paragraph 27 above to the difficulties which Mr Zomer is experiencing with his existing work station, and to Dr Wright’s opinion that Mr Zomer would be assisted if he were provided with a work station that could be raised or lowered to enable him to work either in a sitting or standing position. We note from an office-based ergonomic assessment provided by Konekt to Telstra dated 17 April 2012 that certain recommendations were made to Mr Zomer regarding his sitting position and other matters including the height of his chair, desk and monitors[58]. The report contemplated a subsequent review, but we have not been provided with any further document reviewing that assessment. We were told by counsel that the system recommended by Dr Wright which would enable the work station to be raised or lowered to a sitting or standing position has not been provided.
[58] Exhibit R9.
It is apparent from Dr Wright’s evidence that Mr Zomer’s CRPS has been gradually resolving for some time, and that his return to work and increased level of activity is likely to further assist his recovery. We also note that Dr Facundo considers that modified duties will only be required for a specified period of between two and six months[59]. No doubt Telstra will monitor the situation, including the potential benefits of a moveable work station, with a view to Mr Zomer returning to full-time duties as appropriate. We also note Dr Wright’s advice that the level of pain killing medication should be reduced.
[59] See Exhibit R13, being letter dated 13 February 2012 from Dr Facundo to Mr Lovatt of Telstra.
The medical records of Dr Facundo indicate that Mr Zomer has been affected by a number of other medical conditions since he commenced work at Telstra. We were provided with a schedule which sets out the dates of absence from work cross-referenced to certificates of sickness[60]. The periods of absence were caused by such matters as migraines, back pain, gastro, asthma, pneumonia and upper respiratory tract infections.
[60] Exhibit R15.
In view of the evidence given by Mr Zomer as to his experience since returning to work, and on the basis of the evidence of Drs Wright and Facundo, we find that Mr Zomer remains incapacitated for work within the meaning of s 4(9) of the SRC Act, in that he is unable to engage in work at the same level at which he was engaged prior to the lift incident. We further find that Telstra has not provided or offered duties which would enable him to return to work on a full-time basis, and there is no evidence that would be relevant for the purposes of computing his entitlement to compensation pursuant to s 19 of the SRC Act that he is able to receive earnings from other suitable employment. We find for the above reasons that Telstra remains liable for compensation, and that the matter should be remitted to Telstra to calculate the compensation payable to Mr Zomer in accordance with these reasons for decision.
DECISION
The tribunal sets aside the decision under review, and in place of that decision decides that:
(a)the respondent is liable for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the injury sustained by the applicant on 27 July 2010;
(b)the applicant has remained incapacitated for work within the meaning of the SRC Actas a result of that injury from and after 20 December 2010 and up to the date of this decision; and
(c)the applicant is entitled to compensation under ss 16 and 19 of the SRC Act in respect of that injury.
The tribunal remits the matter to the respondent to calculate the compensation payable to the applicant in accordance with the above decision and the tribunal’s reasons for decision.
The tribunal reserves liberty to apply on or before 21 September 2012 in relation to the costs of the proceedings, and orders that in the absence of any such application, the respondent is to pay the costs of the proceedings.
I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarivs, Professor P Reilly AO, Member .....[Sgnd].....
Associate
Dated August 2012
Date(s) of hearing 29 - 31 May, 1 June and 6 August 2012 Counsel for the Applicant Ms K Molloy Advocate for the Applicant Ms K Stouppos Solicitors for the Applicant Slater & Gordon Lawyers Counsel for the Respondent Mr J Wallace Advocate for the Respondent Mr M Dwyer Solicitors for the Respondent Sparke Holmore
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