Nikolovski and Telstra Corporation Ltd

[2003] AATA 746

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 746

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1017

GENERAL ADMINISTRATIVE DIVISION		)
Re		CANE NIKOLOVSKI

Applicant

And TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member
Dr M E C Thorpe, Member

Date4 August 2003

PlaceSydney

Decision The tribunal varies the decision under review by deciding that the applicant qualifies for no incapacity payments up to 22 November 2000 and by remitting for the respondent to decide the matter of whether the applicant merits any incapacity payments after 22 November 2000 on the basis of the operation of s 19(4)(e) of the Act. The applicant is not entitled to costs associated with this application.

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – Thoracic spine disc bulge – weekly compensation incapacity payments – whether employee qualified for weekly payments – whether employee incapacitated for work - ability to earn - whether employee received offer of suitable employment from employer – whether employee failed to undertake reasonable rehabilitation program – whether employee’s refusal reasonable in all circumstances

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“ailment”, “disease”, “injury”, “suitable employment”), (9), 14(1), 19(1), (2), (4)(a)-(g)

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Fisher and Comcare, Re (AAT 9551, 17 June 1994)

Oudyn, Australian Postal Corporation v [2003] FCA 318

Prica and Comcare, Re (1996) 44 ALD 46

REASONS FOR DECISION

4 August 2003 Mr M J Sassella, Senior Member
Dr M E C Thorpe, Member           

APPLICATION

1. This was an application by Cane Nikolovski (“the applicant”, “the employee”), born 23 March 1976 (AB1/024) that came to the Administrative Appeals Tribunal (“the tribunal”) as currently constituted remitted from the Federal Court of Australia. The application sought review of a reviewable decision by a delegate of Telstra Corporation Ltd (“the respondent”, “Telstra”) dated 19 December 2000 (AB1/364) which affirmed a prior determination dated 29 September 2000 (AB1/478). The decision was that, in accordance with s 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[1], Telstra was no longer liable to pay compensation to the applicant in the form of incapacity payments on and from 29 September 2000.

[1] The tribunal upheld the reviewable decision in a decision published on 25 October 2001 [2001] AATA 886. On 5 July 2002 the Federal Court set aside that part of the tribunal’s decision relating to the reviewable decision dated 19 December 2000 and remitted the matter to the tribunal for rehearing (Nikolovski v Telstra Corporation Ltd [2002] FCA 846). The current proceedings were that rehearing.

HEARING

3.      The tribunal convened a hearing in Sydney on 30 July 2003.  Mr Russell Sweet of counsel represented Mr Nikolovski.  Mr Nicholas Polin of counsel represented Telstra.  The tribunal heard oral evidence from the applicant.  The tribunal had access to the following documentary evidence which was marked as follows:

Exhibit AB1 – Appeal book for Federal Court matter number N1553 of 2001.

Exhibit A1 – Applicant’s amended statement of facts and contentions, undated.

Exhibit A2 – Report by Dr D Manohar, musculoskeletal medicine specialist, 14 July 2003.

Exhibit A3 – Report by Dr P Gill, general practitioner, 21 July 2003.

Exhibit A4 – Bone scan report, 8 January 2003.

Exhibit R1 – Respondent’s further amended statement of facts and contentions, 29 November 2002.

Exhibit R2 – Report by Dr L Hughes, orthopaedic surgeon, 15 April 2003.

Marked for Identification – Report on MRI of lumbar spine dated 3 September 2002.

4.      At the commencement of the hearing the applicant’s representative applied for an adjournment on the basis that there had been no report sought from Dr Maniam, an orthopaedic surgeon and treating doctor of the applicant.  This was rejected because the applicant’s representatives had certified that the matter was ready to proceed to hearing and because the applicant’s representatives had filed and served up to date medical reports by Drs Gill and Manohar.  In the tribunal’s view, Dr Gill, as treating general practitioner, who wrote a report on 21 July 2003 (a mere four days before the hearing) (ex A3) would be aware of Dr Maniam’s views and these would have been influential in his report.

LAW

5. An employee must have suffered an injury, as defined in s 4(1) of the Act, if he or she is to receive any compensation under the Act. An injury is defined in s4(1) as:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

6. Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

7. The definition of a disease refers to an ailment as a relevant concept. This is defined also in s 4(1):

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

8. If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

9. The applicant seeks restoration of his weekly compensation payments that are compensation for earnings lost as a result of the compensable condition. These payments are referred to as incapacity payments and are dealt with in s 19 of the Act:

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:

NEW – 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:

(a) where the employee is in employment (including self-employment)-the amount per week that the employee is earning in that employment;

(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition-the amount that the employee would be earning in that employment if he or she were engaged in that employment;

(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment-the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

(f) where paragraph (b), (c), (d) or (e) applies to the employee-whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and

(g) any other matter that Comcare considers relevant.

…

10. The Act deals with “suitable employment" 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);

11. The Act deals with “incapacity for work”, an element of s 19(1), in s 4(9):

A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

12.     On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413:

“In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression ‘onus of proof’ where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.

“It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:

‘Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:

"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."’

“Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant.”

13.     Casarotto (above) here means that there is a functional onus on Telstra to justify its decision to cease the payments it had been making to Mr Nikolovski. 

CHRONOLOGY

14.     This is drawn in the main from the judgment in the Federal Court case.  In 1995 the applicant was injured when a passenger in a motor vehicle accident.  This was a compensable occurrence.  Telstra accepted workers’ compensation liability.  The injuries settled and, after a period of work absence, the applicant resumed his normal duties.  Mr Nikolovski has had a number of jobs within Telstra.  However, he was, most relevantly, a CO1 and CO3, which required him to complete telephone installations and chase telephone faults.

15.     On 10 March 1998 the applicant injured his back when lifting a block of concrete during the course of employment.  He was compensated but was able to continue normal duties.  His back caused him discomfort, however.  On 26 October 1998 he had another work accident (AB1/025).  He was lifting a manhole cover when he suffered lower and upper back pain.  He claimed for a recurrence of thoracolumbar strain. 

16.     On 19 January 1999 Mr Nikolovski resumed work.  He was placed on light duties on doctor’s orders in Telstra’s Ashfield office as of February 1999.  He commenced working five hours a day and progressed to a full eight-hour day. 

17.     The applicant applied for a permanent position in the Ashfield office, however he was unsuccessful.  He also lost access to a Telstra van and mobile telephone as he was no longer engaged in fieldwork.  He became depressed and feared that he would lose his job.  By late in 1999 the applicant was unable to communicate and remained at home.  In January 2000 he was certified unfit for work for reasons of back pain and depression.  He seems to have last worked just prior to 25 January 2000 (AB1/272). 

18.     On 17 July 2000 Ms Carina Vitelli, a rehabilitation consultant employed by Telstra, contacted Dr Gill, the applicant’s general practitioner, concerning Mr Nikolovski’s ability to return to work to perform suitable duties with restrictions.  Dr Gill advised that the applicant was physically fit to return to work but that mentally he could not.  He said that the applicant did not want to return to Telstra because of poor treatment by managers and staff (AB1/supplementary/127).

19.     On 15 August 2000 a Telstra field service manager wrote to the applicant (AB1/supplementary/131) asking the applicant to meet with him and a return to work consultant to discuss the applicant’s situation so as to assess his capability to undertake a rehabilitation program and possibly develop a program.  A time was suggested and a number to call if that time did not suit was provided.  The applicant responded that he would not attend until speaking with his doctor and solicitor (AB1/supplementary/135). 

20.     The matter dragged on.  Dr Gill certified on or about 30 August 2000 (AB1/supplementary/138) that physically Mr Nikolovski was fit for full-time duties with restrictions but that mentally he was not.  The doctor said that the applicant felt that he would be discriminated against, that this would make his nerves worse and his depression worse. 

21.     On 4 October 2000 the applicant was asked to show cause why his employment should not be terminated on the basis of medical capacity (AB1/594).  It was noted that he had been unable to sustain various rehabilitation programs and had declined an offer of continued support and rehabilitation.  The applicant did not respond and on 23 October 2000 his employment was terminated with effect from 22 November 2000 (AB1/595).  It will be remembered that the decision to stop incapacity payments took effect on 29 September 2000.

APPLICANT’S EVIDENCE

22.     At the hearing on 30 July 2003 the applicant said that his back had not improved since 2001.  Reference was made to MRI and bone scan results (ex A4; AB1/169).  Essentially these investigations demonstrate that the applicant has a posterior bulging of disc material in the thoracic spine at T11-12. 

23.     The applicant derided the duties he was given on his return to work in February 1999.  He said he spent the day sitting on a chair staring at a brick wall.  He said he saw his bosses and sought better work.  He said he felt unwanted although he tried his best.  He said that he got nowhere.  He said the duties were not suitable for a person with his skills and experience.

24.     After a period in the Ashfield office on light duties he had been transferred to the Sutherland depot.  Again he said he was on light duties doing photocopying and looking at the wall.  He saw the situation as the same as at Ashfield.

25.     He said that he ceased working on 10 January 2000.  He said he was depressed.  He said he had put others’ lives in danger, apparently because of inattention when driving to work.

26.     He said that he applied for jobs within Telstra, using the Telstra vacancies bulletin.  He said he applied for three or five jobs.  These were data entry type jobs.  These applications failed, although he said he was good at such work.  Since finishing work at Telstra he has sought no work.  He said that he does not feel strong enough because of his back and his depression.  He receives Newstart Allowance from Centrelink.  He has no activity requirements to fulfil, apparently because he is regarded as incapacitated.  He said that he can drive but has to stretch periodically because his back “locks up”. 

27.     Mr Nikolovski told the tribunal that there is no job he could do. 

28.     In cross-examination the following emerged:

·     Although all medical experts consider the applicant fit for light duties work the applicant does not accept their opinions.  He said he knows best.  It was put to Mr Nikolovski that he had not done a day’s work in 3 ½ years.  He replied that he was too scared to do work.  He had said in 2001 that he was interested in doing an information technology course but had done nothing.  He said he was unmotivated.

·     The applicant said he was scared to go out of the house because of how he was treated at Telstra.  He said he was scared to return to work at Telstra because he would be forced to do things that would hurt his back.  He said that resentment of him at Telstra was part of the problem. 

·     The applicant’s evidence in July 2003 regarding the light duties work he did for Telstra was inconsistent with the evidence he gave the tribunal in 2001.  In the transcript from 24 September 2001 (AB1/506) he told the tribunal that he had to move files, do computer work and answer phones.  He said it was constant.  He said that the job was not a bad job and he could “probably” physically do it (AB1/507). 

·     The applicant said that he failed to attend the meeting at Telstra to discuss rehabilitation in August 2000 because he did not think that anything would come of the meeting (AB1/536). 

·     The applicant was adamant that he could not work for Telstra because of how Telstra had treated him.  He reiterated that there was no position for him in Telstra in any case.  It was put to him in response that Telstra had offered him work.

·     The applicant said that he had to find his life first before he could find work.  He said he wants a job that will take him through to retirement.

SUBMISSIONS

applicant

29.     Counsel for the applicant pressed that the applicant suffers from physical problems.  As noted earlier, he has a T11-12 disc bulge..  Counsel referred to Dr Manohar (ex A2) who said in his report on 14 July 2003 that the applicant remained unfit for activities involving bending, heavy lifting, carrying and truncal movements.  Dr Manohar found Mr Nikolovski’s condition largely unchanged from his assessment three years earlier.  However, counsel did not cite the other material in Dr Manohar’s report.  Dr Manohar tapped into a vocational assessment dated 24 September 1999 (AB1/supplementary/101) which he saw as still applicable.  Dr Manohar recommended that Telstra be made aware of that assessment so that a position might be found for Mr Nikolovski in the telecommunications industry. 

30.     Counsel was aware that the tribunal in the earlier proceedings had found Mr Nikolovski to have no psychiatric condition attributable in any sense to his Telstra employment, a finding affirmed by the Federal Court.  Counsel thus argued that Telstra’s treatment of the applicant may have produced in the applicant an incapacity period unconnected with a psychiatric condition.  The condition was evidenced by the applicant’s lack of motivation and was caused by the perceptions of his Telstra colleagues.  Counsel suggested that Telstra’s rehabilitation program had been inappropriate for the applicant.

31.     Counsel cited the tribunal’s decision in Re Fisher and Comcare (AAT 9551, 17 June 1994).  Counsel relied on a summary of that case that said that the tribunal considered it reasonable for an injured bus driver to refuse to carry out the task of emptying ticket boxes which was offered on a temporary basis.  That was indeed a part, a small part, of the tribunal’s reasoning in that case.  However, there are many points of distinction between that case and this.  First, the tribunal found that the employee was highly motivated to work and to be rehabilitated.  Second, the work suggested for the applicant in that case was found to be not suitable employment for one with Mr Fisher’s skills and experience. 

32. In making these submissions Mr Sweet was relying in s 19(4)(f) of the Act. That provision applies on its own terms where an employee has an ability to earn as a result of one of s 19(4)(b), (c), (d) or (e). Section 19(4)(f) posits that it may be reasonable in certain circumstances for an employee to fail to accept an offer of employment, or to engage or continue to engage in employment, or to undertake a rehabilitation program or to seek employment. In such a case the employee may nevertheless qualify for incapacity payments at a level ignoring the ability to earn that he or she would seem to have.

33.     Mr Sweet referred to Telstra’s own correspondence to Mr Nikolovski in October 2000 in which Telstra said it had found no position within the organisation for the applicant (AB1/594-595).  He referred to the vocational assessment Dr Manohar had found instructive (AB1/101 at 106).  This had suggested that the applicant would be best utilised in work as an electrical product assembler, sales assistant, electronic engineering technician (with training), cable assigner or customer services officer (with training).  Mr Sweet said that Telstra had failed to pick up on this.  Likewise, Dr Samuell, a psychiatrist, had said in a report dated 6 February 2000 (AB1/supplementary/113) that Mr Nikolovski’s prognosis was inherently excellent in view of there being an absence of any psychological disorder.  The doctor was quite certain that if the applicant was presented with some form of reasonably esteeming work he would be well motivated to return and to engage in this work as required.  He believed that the applicant had excellent potential for rehabilitation and this should occur principally through education or retraining.  In Mr Sweet’s view Telstra had not offered the applicant such work. 

34.     Mr Sweet said that Mr Nikolovski had suffered a loss of self-esteem rather than depression.

35.     Mr Sweet then invited the tribunal to consider varying the decision by ordering the payment of incapacity weekly compensation for a closed period after the payments ceased, say a period of 18 months.  He saw this as a reasonable compromise period.  He did say that Telstra had done nothing to attempt to retrain the applicant in such a period.

respondent

36.     Mr Polin emphasised the matters that came out in cross-examination.  His main point was that the applicant throughout 2000 had ignored or rebuffed Telstra’s attempts to involve him in a rehabilitation program.  By the time his employment was terminated in October 2000 it had been well established that the applicant had no intention of returning to work at Telstra. 

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

37. The tribunal finds that the applicant has a compensable injury under the Act. The respondent decided that this was so in a determination dated 6 April 1999 (AB1/71). In accordance with the decision of the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318, once liability has been accepted under s 14 of the Act the liability remains, save for a few exceptions not relevant here. However, an employee receives compensation only if other provisions in the Act apply to bring that about.

38. In the present case Mr Nikolovski qualifies for weekly incapacity payments in lieu of salary if the tribunal finds that s 19 of the Act (see paragraph 9 above) has been satisfied. The tribunal makes the following findings in that regard.

39. The tribunal finds that the applicant is incapacitated for work in accordance with s 19(1). In Re Prica and Comcare (1996) 44 ALD 46 the tribunal addressed the situation where the employer retains an injured employee on lighter work but at the same or a higher salary than he or she enjoyed immediately before the injury. The tribunal said in paragraphs 22 and 23 (at page 51):

“The phrase ‘at the same level’ in para (b) of the definition does not appear to have been the subject of consideration by a Court or this Tribunal. The reference to ‘level’ could be construed as a reference to a grade or salary level or could be a reference to the nature of the work in the sense of its characteristics, which will include its degree of difficulty. If the former construction were adopted it would produce the apparently anomalous result that a person with severe (or moderate) disabilities would be found to lack any incapacity for work as long as they continued to occupy the same grading or earn the same salary as at the date of the injury. The anomaly would not arise under the latter construction. A finding of an incapacity itself does not necessarily result in any entitlement to periodic or lump sum compensation under the Act. There are additional requirements in ss 19, 24 and 27 concerning those issues. Hence a construction of s 4(9)(b) which permits a finding of an incapacity for work in circumstances where the applicant subsequent to an injury is engaged in light duties at their former salary does not produce any anomaly within the Act and recognises that incapacity for work is a relative concept and a matter of degree.

“We are satisfied that in the period from the applicant’s return to work after the mid-1991 accident, to the point of his leaving his employment, the applicant was not engaged in work at the same level as that in which he was engaged prior to that accident.  The respondent adduced evidence designed to establish that from 6 November 1992 until the present the applicant has retained his capacity for the post mid-1991 lighter duties in the proof coin area.  This may or may not be established, but for present purposes we note that the respondent did not seek to show that the applicant could still perform his pre-mid 1991 duties in the circulation coin area.  We would thus find that from 6 November 1992 until the present that the applicant does have an incapacity for work.”

40.     In the present case the applicant is unable to perform the physical work he previously could do and this appears, on balance, to be a result of a work accident. 

41. However, the quantum of any incapacity payments will depend on the formula in s 19(2) of the Act (see paragraph 9 above). Mr Nikolovski is entitled to a quantum based on his former normal weekly earnings less his ability to earn at all times since his payments ceased. Assessing ability to earn takes us to s 19(4) of the Act. It is beyond question here that Telstra offered the applicant an opportunity of employment on condition that he complete a reasonable rehabilitation or vocational training program, as required by s 19(4)(d).

42.     It is clear from the extensive notes by Ms Vitelli in AB1/supplementary that Telstra was serious about rehabilitating the applicant.  Although one rehabilitation program ceased, Telstra took steps to introduce another.  To that end Telstra commissioned a vocational assessment report (AB1/supplementary/101).  Telstra commissioned a psychiatric report from Dr Samuell when it appeared that psychiatric issues stood alone in preventing a return to work.  Telstra attempted to bring the applicant to the table to discuss rehabilitation through 2000. 

43. The tribunal finds that Telstra’s offer involved an offer of “suitable employment” in accordance with the definition in s 4(1) of the Act (see paragraph 10 above). As the applicant’s Telstra employment had not terminated when the relevant primary decisions were made, paragraph (a) of the definition applies. The tribunal finds as follows in respect of that paragraph:

·     Telstra appeared committed to utilising the applicant’s services having due regard to his age, experience, training, language and other skills.  Telstra had done this in 1999 and there was nothing to suggest that it would do otherwise with cooperation from the applicant in 2000.

·     Telstra was acting consistently with giving consideration to the applicant’s suitability for rehabilitation or vocational retraining.

·     There was nothing to suggest that Telstra would require the applicant to change his place of residence.

·     There were no “other relevant matters”. 

44. After the termination of the applicant’s employment with Telstra a broadly similar analysis applies. Under s 19(4)(e), if he has not been seeking suitable employment, which he told the tribunal he has not, he is taken to be receiving such earnings as he would receive if engaged in suitable employment. Suitable employment for the applicant, on the evidence available, would be that non-physical work detailed above in paragraph 33. There is no evidence before the tribunal regarding any consideration by Telstra as to whether the earnings Mr Nikolovski could derive from such work were and are at least as high as the applicant’s normal weekly earnings at Telstra. While it would seem to the tribunal that those jobs would attract earnings commensurate with the applicant’s work for Telstra, the tribunal would appreciate a decision by Telstra that follows consideration of these matters. Telstra did not pursue this inquiry because in both the primary decision and reviewable decision it was decided that Mr Nikolovski suffered from no incapacity for work. For reasons above in paragraphs 39 and 40 the tribunal has preferred a different analysis.

45. The applicant as much as conceded these points by relying on s 19(4)(f) in his submissions. The upshot of these findings is that the applicant’s ability to earn, subject to s 19(4)(f) or (g), is and was what Telstra would have paid him had he returned to work.

46. The tribunal rejects the applicant’s submissions based on s 19(4)(f) of the Act. The tribunal states as follows in relation to those arguments. First, the tribunal does not accept that Telstra’s rehabilitation program was inappropriate for the applicant. The earlier program had been administered in a way consistent with what was known about the applicant’s medical condition and his skills. The applicant’s evidence at the July 2003 hearing seeking to discredit that program was wholly unconvincing in view of his inconsistent evidence on that point in 2001. So far as the rehabilitation proposed in 2000 was concerned, that appeared to be offered in good faith by Telstra.

47.     Second, the Fisher decision (above) is not helpful in this case because the attitudes of the employee and employer in that case were totally different from the attitudes in the present case.  In that case the applicant was highly motivated and the employer offered unsuitable employment.  In the present case the applicant is uncooperative and the employer has been acting bona fide in trying to rehabilitate the applicant.

48.     Third, by the time Telstra wrote to the applicant to say it had no position for him in the organisation Telstra had little option but to reach that conclusion as the applicant had intimated that he had no intention of returning to work at Telstra.  The tribunal finds that Telstra’s conduct to that point was consistent with an intention on Telstra’s part to provide rehabilitation to the applicant with a view to reabsorbing him into the organisation in suitable employment.

49.     Fourth, the tribunal finds that there is no evidence to support the applicant’s assumption that Telstra was going to ignore the recommendations of Dr Samuell and the vocational assessors in framing a rehabilitation program for Mr Nikolovski.  The matter would probably have been different if Mr Nikolovski had cooperated in entering a program and that material was ignored. 

50.     The tribunal rejects the argument that the applicant had suffered a loss of self-esteem rather than depression and that this should justify his refusal to return to work and engage in rehabilitation.  The tribunal is at a loss to understand the applicant’s assertion that he was “scared” of Telstra or that Telstra had treated him badly.  The tribunal in the earlier proceedings had found the applicant not to be a credible witness.  Unfortunately this tribunal must find the same.  Mr Polin made a valid point in cross examination when he put to the applicant that it is not unusual for a Telstra employee to suffer an injury and be accorded light duties.  The picture painted by the applicant was one of snide remarks and unsympathetic management.  The documentary materials do not support such an assessment in any way.

51. The tribunal therefore finds that the applicant’s failure to undertake rehabilitation and return to work was not reasonable in all the circumstances, as required by s 19(4)(f). The tribunal also finds that there are no other relevant matters known to it that should be taken into account under s 19(4)(g) of the Act.

CONCLUSION

52.     The tribunal has found that the applicant does not qualify for incapacity payments at any time in the period from 29 September 2000 to 22 November 2000.  The tribunal doubts that the applicant qualifies for incapacity payments from 23 November to the present, although he may qualify for some payment if the amount per week that he could reasonably be expected to earn in suitable employment after 22 November 2000 is less than his normal weekly earnings at Telstra.  The tribunal will ask Telstra to make a decision on this point.  At this stage there has been no decision favourable to the applicant so he is not entitled to costs.

DECISION

53. The tribunal varies the decision under review by deciding that the applicant qualifies for no incapacity payments up to 22 November 2000 and by remitting for the respondent to decide the matter of whether the applicant merits any incapacity payments after 22 November 2000 on the basis of the operation of s 19(4)(e) of the Act. The applicant is not entitled to costs associated with this application.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M E C Thorpe, Member

Signed:         .......................................................................................
  Associate

Date of hearing  30 July 2003
Date of decision  4 August 2003
Counsel for the applicant          Mr Russell Sweet
Solicitor for the applicant          Turner Freeman Solicitors
Counsel for the respondent      Mr Nicholas Polin
Solicitor for the respondent      Henry Davis York Lawyers