Nikolovski and Telstra Corporation Ltd - [2001] AATA 886

DECISION AND REASONS FOR DECISION [2001] AATA 886

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos N2000/1097

GENERAL ADMINISTRATIVE DIVISION          )          N2000/1701 N2000/1702 N2000/1929 N2001/80
           Re      Cane Nikolovski
  Applicant
           And    Telstra Corporation Limited
  Respondent

DECISION

Tribunal Senior Member M D Allen Dr J D Campbell, Member

Date25 October 2001
PlaceSydney

Decision The decisions under review are affirmed.

(Sgd) M.D. ALLEN
............................
Presiding Member
CATCHWORDS
WORKERS' COMPENSATION - Claim for Permanent Impairment due to back condition and psychiatric illness. Tribunal satisfied a permanent impairment to the thoracic spine existed but not satisfied 10% on Comcare Tables. No evidence of existing psychiatric illness. Claim for massage rejected as passive therapy will not improve condition.
Safety Rehabilitation and Compensation Act 1988 - s16, s24
Comcare v Amorebieta 66 FCR 83

REASONS FOR DECISION

25 October 2001 Senior Member M D Allen
Dr J D Campbell, Member

This matter concerned five applications to the Tribunal by the Applicant. They were:

Matter N2000/1097 which sought review of a "reviewable decision" dated 3 July 2000 which affirmed a prior decision dated 28 March 2000 that the Applicant was not entitled to any award for permanent impairment caused by the condition described as "recurrence of thoraco lumbar strain".
Matter N2000/1701 which sought review of a "reviewable decision" dated 24 October 2000 which decision affirmed a prior determination dated 1 June 2000 that the Applicant was not entitled to treatment being remedial massage which treatment was sought for the Applicant's thoracic and lumbar spinal pain.
Matter N2000/1702 seeking review of a "reviewable decision" dated 24 October 2000 affirming a prior determination dated 4 July 2000 that rejected the Applicant's claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 for the condition described as "depression as a consequence of thoracic and lumbar spinal pain".
Matter N2000/1929 seeking review of "reviewable decision" dated 19 December 2000 that affirmed a prior determination dated 29 September 2000 ceasing liability to pay compensation for the condition described as "thoracic and lumbar spine pain".
Matter N2001/80 seeking review of a "reviewable decision" dated 11 January 2001 which decision affirmed a prior determination of 29 December 2000 that rejected a claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 for permanent impairment resulting from "back, left leg and depression".

The said application for review came on for hearing before this Tribunal on the 24 and 25 September 2001. At that hearing in addition to the various documents provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the following documents were taken in as exhibits and marked as follows:
A1      Applicant's Statement of Facts and Contentions
A2      Report of Dr Christopher Browne dated 3 May 2001
A3      Letter to Applicant from Field Service Manager dated 4 October 2001
A4      Letter to Applicant from Executive Manager dated 23 October 2001
A5      Statement of Mirjana Taleska dated 21 September 2001
A6      Copy clinical notes of Dr P. Gill
R1      Respondent's Statement of Facts and Contentions
R2      Report of Dr Neil Thomson dated 6 November 2000
R3      Report of Dr Neil Thomson dated 19 March 2001
R4      Report of Dr Robert D. Lewin dated 12 April 2001
R5Copy letter Field Service Manager South to Applicant dated 6 April 2000
R6      Clinical notes of Dr P Whetton
R7Copy letter to Applicant from Field Service Manager dated 16 August 2000.
There is no dispute between the parties as to the Applicant suffering injuries during the course of his employment with the Respondent. The first time the Applicant claimed in respect of a work caused injury was in June 1995 following his involvement in a motor vehicle accident in the course of his employment.
As a result of that claim liability was accepted for "soft tissue injury to left shoulder, neck, back and left leg". Following a short period of absence from work and some treatment no further claim was made by the Applicant regarding this event. In a report dated 1 May 2000 to the Applicant's solicitors, Dr Berry, Specialist General Surgeon took a history from the Applicant that following a six-week period off work after the motor vehicle accident, the Applicant's pain had settled and he was able to resume normal work.
Notwithstanding the report of Dr Dowda of 24 May 1999 which implicates the motor vehicle accident in the Applicant's current disabilities there is little evidence to suggest that the motor vehicle accident in 1995 plays any role in the Applicant's current symptoms. The Applicant's evidence to the Tribunal was that upon his return to work in 1995 he went back to full duties with no problems.
On 10 March 1998 the Applicant injured his thoracic spine while lifting a block of concrete. That night he experienced pain in his back and although he attended work the next day he was still in pain.
The Applicant attended his General Practitioner Dr Gill and obtained treatment. He returned to work on normal duties but continued to experience discomfort. In October 1998 the Applicant again injured his back at work. The Applicant then attended his General Practitioner who prescribed physiotherapy and acupuncture.
During December 1998 the Applicant commenced five weeks annual leave. He used this time to rest his back but on his return to work on 19 January 1999 he was still suffering from back pain and could not perform the full range of his duties. In February 1999 he was placed on light duties following a recommendation from his General Practitioner.
As a result of the restrictions placed upon him following his injuries, the Applicant was, in early 1999 reallocated from field work to office duties at the Respondent's Ashfield Office. A return to work program was also instituted which involved the Applicant undertaking five hours work a day in April rising to eight hours per day in June 1999.
Not long after, the Applicant transferred to the Ashfield Office a dispute arose between the Applicant and Management regarding the Company vehicle which had been allocated to him for work purposes. As the Applicant was no longer engaged in field work he no longer had entitlement to a company vehicle. The Applicant objected when he had to surrender his vehicle and stated that he would be better off staying home (see T58 in N2000/1929). The Applicant also complained that using his own car to get to work cost him money (see T55 N2000/1929).
Initially the Applicant was referred to Dr Jones, Orthopaedic Surgeon for investigation and report. Dr Jones considered that the Applicant may have had an inflammatory spondylitis. This opinion has been proved incorrect by later investigations and we do not place any weight on Dr Jones' opinions.
Dr Dowda, Consultant Occupational Physician examined the Applicant on 24 May 1999. He implicated the 1995 motor vehicle accident and the lifting incident in March 1998 as the cause of the Applicant's back problems. He considered that the Applicant suffered a musculo-ligamentous strain in 1998 which would have settled over a few months. He considered that the Applicant would benefit from a focused exercise program.
Dr Dowda did not have the benefit of a later MRI scan which showed that the Applicant did have a small posterior annulus tear at T11 - T12 with some posterior bulging of disc material. We therefore prefer the opinions of those medical practitioners who have had the benefit of the MRI Scan and report to those such as Dr Dowda who gave opinions prior to that imaging.
The Applicant originally saw Dr Carr, Rheumatologist on 26 July 1999. In his report of that date (T73 N2000/1097) Dr Carr states that a CT Scan of 31 March 1999 evidenced that the Applicant had mild Scheuermann's disease from T7 – T12 and presciently stated, "it is possible for patients with Scheuermann's disease to have disc prolapse at the levels connected by the Scheuermann's disease".
As to causation Dr Carr opined:
"Cane really has no evidence of inflammatory spondyloarthritis from my examination today. His problem does appear to be in part due to his underlying low thoracic Scheuermann's disorder and in part due to aggravation by both his motor vehicle accident three years ago, as well as by his recurrent bending and lifting activities superimposed upon his underlying Scheuermann's disorder".
On 17 March 2000 Dr Carr again examined the Applicant and in his report of that day to the Respondent (T133 N2000/1097) stated inter alia:
"…I reviewed his MRI Scan films of 27 July 1999 and note that he does have low thoracic Scheuermann's disease with degenerate discs at T7/8, T11/12 with a small posterior annular tear and minor bulging of the T11/12 disc. I note an incidental haemangioma at L2…"
and opined,
"According to Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment, Mr Cane Nikolovski has a five percent level of whole person impairment (minor restriction of movement in thoraco-lumbar spine). He has no neurological disturbance.
I believe that his impairment has stabilised at this level indefinitely and is unlikely to improve or deteriorate.
I don't believe that any active treatment including hands on physiotherapy, massage, hydrotherapy or acupuncture will make any difference to this man's ultimate prognosis as he does have an underlying intrinsic disturbance of his spine. Treatment should cease.
This man is now depressed. I am very puzzled by his pain being irrespective of sitting, standing or lying and am not at all certain of his genuineness."

Dr Gill, the Applicant's General Practitioner referred the Applicant to Dr Manohar, a Specialist in musculo-skeletal and rehabilitation medicine on 5 July 1999. Dr Manohar reported to Dr Gill that the Applicant complained of "pain in the cervico-thoracic junction extending right into the lumbosacral region". Dr Manohar also reported the Applicant complaining of neck ache extending into the occiput and across to the left shoulder and left leg ache. On 16 August 1999 after viewing the MRI Scan of 27 July 1999 Dr Manohar noted a small annular tear at T11/T12 and stated, "A large proportion of his pain is musculo-ligamentus in aetiology. I have advised him to undertake pain management".
Dr Manohar again examined the Applicant on 6 September 1999 and concluded, "I think the combination of neck and back would read up to 10% of the total impairment under the Comcare Guidelines". No mention was made by Dr Manohar of leg pain, and the Applicant has no present entitlement to compensation for neck pain. In a report to the Applicant's Solicitors dated 1 May 2000 Dr Berry, Specialist General Surgeon stated:
"This patient has a history of first sustaining a back injury in 1995, however it would appear that this settled completely. The patient then developed back pain in March 1998 after heavy lifting and this has never gone away. The pain is in the lower thoracic region. I think this is unlikely to be due to his old Scheuermann's disease and his MRI Scan in fact shows that there has been a rupture of the T11 T12 disc with extrusion of disc material and this is much more likely to be the cause of his continuing complaints. I would therefore consider that his present condition is directly work related. I would further consider that he has had the appropriate rehabilitative treatment and I will consider that his condition is permanent."
and concluded,
"Using the Guide to the Assessment of the Degree of Permanent Impairment, using Table 9.6 for the thoraco-lumbar spine, loss of half normal range of movement equates with a 15% whole person impairment and using table 9.5 for lower limb function can rise to standing position and walk but has difficulty with grades and steps equates to a 10% whole person impairment".
Although Dr Berry referred to an impairment of lower limb function, his report does not state how any lower limb disability can be attributed to any work accident.
The Applicant was also seen by Dr Browne, Surgeon, on 9 April 2001 at the request of his Solicitors. Dr Browne noted that while the Applicant continued to experience lower thoracic and upper lumbar pain he has no referred leg symptoms. He also took a past history of depression. In the opinion of Dr Browne the Applicant has chronic mechanical thoracic spine pain syndrome associated with Scheuermann's disease and T11/12 disc lesion, and implicated the lifting injury at work as the cause. He considered that the Applicant had a 10% whole person impairment.
Two reports from Dr Thomson, Orthopaedic Surgeon were tended by the Respondent (Exhibits R2 and R3). Dr Thomson was of the opinion that the Applicant's thoracic spine pain was caused by his work injury sustained in lifting a concrete slab. He considered that the Applicant had a 5% impairment due to spinal injury, but at present the impairment was not permanent.
In particular Dr Thomson said of the Applicant's symptoms:
"…
(b)I believe that with further rehabilitation therapy and attention to a spinal exercise programme (sic) there can be a decrease in the patient's symptomatology
(c)It would appear that he should be given a rehabilitation programme (sic) at a spinal rehabilitation institute."
Massage therapy was discussed by Dr Thomson in his second report. He stated:
"One becomes dependent on long term massage therapy and this is not truly therapeutic, it is only used for pain relief which could be as well obtained by local massage at home by another person or a hot shower combined with mild analgesia.
I do not consider that the massage should be continued for longer than five (5) to six (6) months as the patient will become dependent on this form of treatment."

This opinion by Dr Thomson is supported by Dr Carr who in his report of 19 June 2000 said:

"Remedial massage will help soothe this man's pain but will not influence the natural history of the condition. I would not consider it justified to consider remedial massage on an indefinite basis, as would be the case for his problem that is likely to continue indefinitely". (T13 N2000/1701)

Dr Dowda in 1999 stated that although the Applicant would benefit from a focused exercise program the continuation of passive therapies was unlikely to be of benefit to him.

It would appear that although the Applicant was placed on light duties at the Respondent's Ashfield Office he became dissatisfied. In particular he complained that although he had to show prospective job applicants the work that was entailed in the particular position which he was filling, when he applied for the position on a permanent basis, he was unsuccessful. It would seem however that the Applicant was informed by his manager that this was because he did not present well at an interview. Whatever the reason the Applicant became discontented and felt as if he was being "left out".
At a later time the Applicant made an appointment with his Regional General Manager to discuss his future with the Respondent but said in evidence that that person said to him, "What do you want me to do about it?". The result of these events was that he became depressed and scared of losing his job.
The Applicant's evidence to the Tribunal was that by the end of 1999 he was depressed, unable to communicate and confined to his home. He resorted to alcohol to alleviate his condition. In January 2000 Dr Gill certified him unfit for work.
Document T124 in matter N2000/1097 is a certificate by Dr Gill stating that the Applicant is unfit for work because of back pain and depression.
Ms Vitelli, the Applicant's Rehabilitation Case Manager referred the Applicant to Dr Samuel, Psychiatrist. In her letter of referral dated 25 January 2000 she stated, "If, after a 'reasonable' timeframe a person is unable to gain re-deployment into another position, then medical retirement is often the next step. To date, Cane has been unsuccessful in his applications for other positions and he states he is starting to feel anxious and depressed regarding his future employment. He claims he has not been helped by Management however his personal file suggests otherwise."
Dr Samuel's consultation with the Applicant was on 28 January 2000 and his report of 6 February 2000 is document T127 in matter N2000/1097. After taking a detailed history from the Applicant Dr Samuel opined:
"Mr Nikolovski has become quite distressed and aggrieved that he has not yet found suitable alternative work within Telstra. He has developed a suspicion that his managers have been unco-operative and even obstructive to him being redeployed. He has an expectation that he will be assisted into other positions within the organisation and has a degree of resentment at the notion of competitively applying for other positions."
and in answers to specific questions stated,
"Mr Nikolovski is not presently suffering from a psychiatric illness. He is presently off work as a matter of grievance and indignation at the perception of being ill-treated and marginalised as a result of his back injury. He has lost motivation to return to work and does not really believe that anyone wishes him to return. Therefore, whilst it is understandable that he is presently away from work, it is not based on any medical conditions.
Mr Nikolovski's prognosis is inherently excellent in view of an absence of psychological disorder…Mr Nikolovski is fit to return to work to perform suitable duties without any restriction."
but did make the statement,
"Mr Nikolovski is quite aggrieved at the way he perceives he has been treated."
Although the Applicant's General Practitioner was treating the Applicant for "depression" as early as November 1999 when he prescribed the anti-depressant Aropax it was at the instigation of the Applicant's mother that he referred him in May 2000 to Psychiatrist Dr Whetton. In his report to Dr Gill of 11 May 2000 Dr Whetton states "he has decided he won't return to Telstra".
Dr Whetton does recommend that the Applicant continue his Aropax. He does not make any diagnosis of a psychiatric illness.
In a later report dated 10 August 2000, Dr Whetton stated:
"Today I rang CRS and have tried to get something happening between them and Cane. Unfortunately he has a very negative attitude and has a lot of resentment to his employers. He is fairly unrealistic, I think, in his stance that he is calling the shots about refusing to go back to work and yet remain on insurance. The reality of all this will be brought home to him in time, I suppose, but in the meantime I am continuing to encourage him to get active".
Cross-examined, the Applicant conceded that he had ceased contact with Dr Whetton in August 2000. He alleged that he ceased contact with Dr Whetton because Dr Whetton had spoken to his mother and had told his mother to "kick him out of the house". Unfortunately Dr Whetton was not called but it is apparent from the cross-examination of the Applicant that he resented Dr Whetton's attempts to motivate him into a return to some form of employment.
The above conclusion is corroborated by the Applicant's attitude towards attempts by the Respondent to have him return to work. On 6 April 2000 the Applicant's Manager Mr Ivanovski wrote to the Applicant stating inter alia that he wished to discuss the possibility of the Applicant's return to work and could the Applicant call him to discuss options. The Applicant did call Mr Ivanovski but Mr Ivanovski was busy and said that he would ring back. Unfortunately Mr Ivanovski did not do so and the Applicant did not himself initiate any further contact.
Cross-examined the Applicant stated that he had made the decision that he did not want to go back to Telstra. The Applicant was again written to by Mr Ivanovski on 16 August 2000. In that letter Mr Ivanovski referred to the development of a return to work program and asked the Applicant to meet with him and Ms Vitelli, the Rehabilitation Consultant. The Applicant telephoned Ms Vitelli and stated he would not attend any meeting until he had discussed the matter with his Solicitor.

Prior to the letter of 16 August 2000 Ms Vitelli had contacted the Applicant's General Practitioner. In a report to Ms Vitelli dated 25 July 2000 Dr Gill had stated that the Applicant was able to return to work to perform suitable duties with restrictions of no lifting of weights more than 7 kilograms. He added however, "Cane doesn't want to go back to Telstra because of poor treatment by managers and staff."
To our mind it is indicative of the Applicant's approach to rehabilitation and re-entry into the workforce that in August 2000 he not only rejected Dr Whetton's attempts to obtain assistance for him from the Commonwealth Rehabilitation Service but he also failed to take any advantage of the offers of Rehabilitation held out to him by the Respondent. As cross-examination made clear at this time, the Applicant had determined he would not return to work at Telstra. On or about 30 August 2000 Dr Gill in a report to Ms Vitelli stated that although the Applicant was physically fit to return to full time suitable duties, mentally he was not fit. He added:
"Cane feels that he will be discriminated by staff at work which would make his nerves worse and his depression worse. This happened while he was on light duties before."
Prior to the invitation to the Applicant to discuss a return to work program in August 2000 the Applicant had consulted Dr White, Psychiatrist on 7 June 2000 at the request of the Respondent. In a series of lengthy reports Dr White did state that he was unable to determine any plausible evidence of a mental condition.
An important comment in Dr White's report is, "there was no pain behaviour during the interview and I was unable to relate his presentation to being in any pain let alone '9/10'". Likewise the Tribunal finds that it cannot accept the Applicant's evidence that he is in continuos pain from his minor back injury on a scale of 8 where one is the least severe and 10 the most severe pain he could experience yet he takes no analgesia for the said pain.
At the request of his Solicitors the Applicant consulted Dr Gertler, Psychiatrist on 5 October 2000. Dr Gertler's report of 6 October 2000 is document T9 in matter N2000/1929. In that report Dr Gertler took a history that:
"In February 1999 he was ruled unfit for outdoor work and was given a desk job. Although the duties were light Mr Nikolovski found that he was frequently bored with little to do. He was told by his manager to find himself work within Telstra, and towards the end of 1999 was told to apply for computer job within the company.
As Mr Nikolovski was already performing the work required for this job, he was asked to show other prospective employees how to perform it. He did this, but was upset when the people he had showed the work, ultimately got the job and he did not. This was 'very depressing' for Mr Nikolovski and his emotional state deteriorated gradually from the end of 1999."

Dr Gertler diagnosed the Applicant as suffering from an adjustment disorder with a depressed mood.

An inconsistency in Dr Gertler's report is that whereas he assesses the Applicant as having an impairment of 10% on the Comcare Tables which impairment is likely to continue indefinitely. Dr Gertler goes on to state "Mr Nikolovski has received treatment but this appears to have been of limited benefit only. I would suggest that he receive further treatment, and that he be reviewed by psychiatrist who could supervise such treatment. His prognosis remains guarded whilst his adjustment disorder with depressed mood continues, and remains inadequately treated."
The evidence before the Tribunal is that the Applicant of his own volition terminated his treatment with Dr Whetton and if he was, as considered by Dr Gertler, inadequately treated then although the prognosis was guarded it cannot be said the impairment was permanent as improvement could well be obtained by adequate treatment and supervision by a psychiatrist as recommended by Dr Gertler.
Subsequently on 6 April 2001 the Applicant was seen by Dr Lewin, Psychiatrist on behalf of the Respondent. After obtaining a history from the Applicant which included the Applicant referring to his distress and unhappiness associated with his employment at the Ashfield Office. Dr Lewin stated:
"Mr Cane Nikolovski presented as a stocky young man who complained of mistreatment and a lack of sympathy in the workplace. He appeared to be pre-occupied with the theme of 'what they did to me at work, how they treated me, people saying things about me at Telstra'."
Dr Lewin continued:
"Mr Nikolovski told me that he had realised that 'not everybody is my friend'."
And opined that:
"Currently he complains of enduring pain symptoms. These symptoms are widely distributed and do not follow the usual anatomical pathways. A fairly circumscribed and mild condition was described in the various reports which I read. The condition described would not explain the ongoing pattern of symptoms or the profusion of symptoms described by Mr Nikolovski. This pattern of symptoms is probably best explained in terms of abnormal illness behaviour. He spoke of feeling frightened and worried about injuring his back further. Mr Nikolovski has evidently allowed pain to be his guide. A marked pattern of conditioning and avoidance of ordinary exercise was noted.
Mr Nikolovski appears to be very angry with his former employer. He spoke of the failings of the employer and of perceived mistreatment and threats.
And concluded after noting that the Applicant complained of depressive symptoms:
"I found no clear sign of a depressive illness at present. He feels somewhat dispirited, discouraged and angry…I do not diagnose any depressive condition at the present time."
Dr Lewin concluded his report by stating:
"I think it is likely that Mr Nikolovski had experienced an Adjustment Disorder at an earlier stage.
I did not diagnose any current psychiatric illness in regard to Mr Nikolovski's case. He has many complaints but these are not explained on the basis of a depressive illness or any other psychiatric conditions.
I found no psychiatric conditions which would prevent him from working either in his previous employment or in some new job…"
The Applicant's sister, Mirjana Takesja, gave evidence. In her statement (Exhibit A5) she referred to the Applicant's motor vehicle accident in 1995 and stated that she believed he made a "good recovery" after that event. She went on to state that in her opinion the Applicant's personality had changed following the lifting injury and transfer to the Ashfield Office.
The Applicant's employment with the Respondent was terminated on 22 November 2000. This followed a letter to the Applicant dated 4 October 2000 advising him that the Respondent had no suitable work for which he was medically or vocationally capable of performing. In the letter of 4 October 2000 it was pointed out to the Applicant that he had declined an offer of continued support and rehabilitation. The Applicant was invited to show cause why his employment should not be terminated on the basis of medical capacity and his employment was so terminated upon his failure to show cause (see Exhibit A4).
As the letter above makes clear the termination of the Applicant's employment with the Respondent was brought about by his own actions in declining an offer of a return to work program.
Having regard to the material which was before us we are satisfied that the Applicant did injure his back in two workplace accidents in 1998. Although he was involved in the motor vehicle accident in 1995 on his own evidence and from the history taken by Drs Berry, Thomson and Carr there were no continuing problems as a result of this accident.
Whereas Dr Carr has opined that part of the Applicant's back pain results from pre-existing Scheuermann's disease suffice to say that condition was asymptomatic before the lifting incidents at work. As pointed out in Comcare v Amorebieta 66 FCR 83 at 96 whatever may have been the degree of impairment prior to any aggravation caused by a work injury, the total percentage of impairment now is compensable.
As to the degree of impairment we are satisfied that no physical condition other than pain to the thoracic spine is compensible. There is evidence referred to above that the Applicant recovered from any disabilities occasioned by the motor vehicle accident and his leg condition has not been attributed to any work injury. In any event any incapacity caused by the Applicant's left leg is intermittent. Dr Browne notes that there is no assessable impairment that can apply to his lower limbs. The Applicant has complained of various neck and shoulder pain but there is no evidence that sufficiently links this with any work injuries.
Dr Browne considers the Applicant has a 10% impairment of the spine. Dr Carr does consider the condition permanent but does not state a degree of impairment. Dr Manohar opined that the Applicant suffered a 10% impairment being a combination of the neck and the back. As stated the Applicant has no entitlement to compensation for any neck condition. Dr Berry regards the Applicant as having a loss of half normal range of movement and thus a 15% impairment of the back and attributes a 10% impairment to the left leg. Dr Thomson does not consider the Applicant's impairment to be permanent. We find that the Applicant has a tendency to exaggerate his symptoms. Dr Dowda in May 1999 noted the Applicant's range of movement was good. Flexion allowed his fingertips to reach just below his knees, extension, tilting and rotating were all normal.
Dr Dowda referred to the Applicant having avoidance behaviour leading to deconditioning. Dr Manohar also refers to the Applicant's need to undertake management. Doing the best we can from the material before us we conclude that the Applicant does have a permanent impairment but we are not satisfied that the degree of permanent impairment is 10% on the Comcare Tables.
We are also satisfied that the Applicant does not have a psychiatric disease. He does have feelings of anger and resentment towards Telstra but again we believe he has exaggerated his symptoms. His evidence reveals that he does have a social life and certainly spends a considerable amount per month on mobile telephone calls. We do not believe that all those calls are to let his mother know where he is.
Dr Whetton saw the Applicant for the purposes of treatment and we therefore give some weight to his opinions. What we found particularly relevant was that the Applicant rebuffed Dr Whetton when that doctor tried to encourage him to undertake rehabilitation. This was at the same time that the Applicant was rejecting overtures from the Respondent to return to work.
As Dr Whetton said in his report to the Applicant's General Practitioner and was confirmed by the Applicant, he had made up his mind not to return to Telstra. Dr Lewin in our opinion correctly summarised the Applicant when he said whilst the Applicant may have experienced an adjustment disorder at an earlier stage when he examined him he could not diagnose any current psychiatric illness. Compare Dr Samuel who also referred to the Applicant not suffering from any psychiatric illness but being off work as a matter of grievance and indignation at the perception of being "ill treated". This perception has manifested itself, as pointed out by Dr Whetton in his report of 10 August 2000, to an unrealistic stance by the Applicant.
We find that Dr Whetton's report supports the conclusions of Drs Lewin and Samuel and are satisfied that the Applicant does not have a psychiatric illness caused by or contributed to by the circumstances of his employment.
We are also satisfied that passive relief such as massage is not advantageous to the Applicant (see reports of Drs Carr and Thomson). As pointed out by Dr Dowda a focused exercise program, or a pain management program as suggested by Dr Manohar, would be of advantage to the Applicant.
We are not satisfied that the Applicant has permanent impairment to his back of 10% or more and we are satisfied that the Applicant does not have a psychiatric illness or any other physiological impairment except a disc lesion at T11/12 and that massage will not assist the resolution of his current back pain.
The decisions under review are affirmed.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Dr J D Campbell, Member
Signed:         (Kwai-Ling Wong)               .....................................................................................
  Associate
Date/s of Hearing  24 and 25 September 2001
Date of Decision  25 October 2001
Counsel for the Applicant        Mr L Gray
Solicitor for the Applicant         Carroll & O'Dea Solicitors
Counsel for the Respondent    Mr N Polin
Solicitor for the Respondent    Henry Davis York