Rosillo and Telstra Corporation Ltd
[2003] AATA 582
•23 June 2003
|
DECISION AND REASONS FOR DECISION [2003] AATA 582
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/1742
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | ANTONIO ROSILLO | ||
Applicant
| And | TELSTRA CORPORATION LTD |
Respondent
DECISION
| Tribunal | Ms G Ettinger - Senior Member |
Date 23 June 2003
PlaceSydney
| Decision | The Administrative Appeals Tribunal affirms the decision of Telstra of 28 August 2001 which was affirmed by the decision of 26 October 2001 to deny liability for compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 in respect of “strain lower lumbar region” on and from 28 August 2001. Costs: No costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988. |
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation – whether injury further compensable - decision affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 14
CASE LAW
Lees v Comcare and Another: Comcare v Mathews and Others (1999) 56 ALD 84
Re Carson and Telstra Corporation (2001) 33 AAR 351
Australian Telecommunications Corporation v Davis (1991) 14 AAR 99
Australian Telecommunications Commission and Glennie (1982) 5 ALN N56B
Re Tiranti-Valenti and Comcare (1996/7) 45 ALD 478
Australian Postal Corporation v Oudyn [2003] FCA 318
Plumb v Comcare (1992) 39 FCR 236
REASONS FOR DECISION
| 23 June 2003 | Ms G Ettinger - Senior Member Dr M E C Thorpe - Member |
The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the decision of the Respondent, Telstra Corporation Ltd (“Telstra”), dated 26 October 2001, (T114) which affirmed the decision of Telstra of 28 August 2001 (T109) to find that compensation for Mr Antonio Rosillo in respect of “strain lower lumbar region” was ceased pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, on and from 28 August 2001.
The Applicant, Mr Rosillo, was represented by Mr L Grey of counsel instructed by Carrol & O’Dea Solicitors, and the Respondent, Telstra Corporation Ltd, by Mr N Chen of counsel, instructed by Henry Davis York.
ISSUE BEFORE THE TRIBUNAL
The Tribunal had to decide whether Mr Antonio Rosillo was entitled to compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”), for “strain lower lumbar region” sustained at work in 1991 and 1993, as claimed in T4, dated 11 July 1991, and T21 dated 6 April 1993
The Tribunal noted that the claims before it were not for medical expenses pursuant to section 16 of the Act, neither for loss of wages pursuant to section 19 of the Act.
The Tribunal noted further that Mr Rosillo’s claim for permanent impairment had been recognised, and assessed at 10%, in a consent decision dated 8 October 1999 (T99).
LEGISLATIVE FRAMEWORK
The legislation relevant to this matter is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4 and 14.
Section 4 of the Act defines “disease” and “injury” and follows as relevant:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
...”
Section 14(1) of the Act provides that:
“14 Compensation for injuries
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (‘the AAT Act”) as Exhibit R1, (“the T-Documents”), and the following other Exhibits.
| ITEM | DATE | EXHIBIT NUMBER |
| Report - Professor Philip Sambrook | 12 September 2002 | Exhibit A1 |
| Report - Dr John Grant | 13 March 2002 | Exhibit A2 |
| Report - Dr Robert Perrett | 2 August 2002 | Exhibit R2 |
| Report - Dr Ross Mellick | 8 April 2002 | Exhibit R3 |
| Applicant’s sick leave records | Exhibit R4 |
The Applicant, Mr Antonio Rosillo gave oral evidence before the Tribunal.
MR ANTONIO ROSILLO – THE APPLICANT
Mr Rosillo whose date of birth is 14 December 1963, gave evidence before the Tribunal. He said that he was a trainee line serviceman, having commenced with Telstra in 1986, and that when crouched over in a tunnel holding a cable on 10 July 1991, he sustained an injury. He described a burning sensation and said that he attended at his general practitioner, was referred to a physiotherapist, and to Dr Steele, an occupational health physician (T16, 1 October 1991).
Mr Rosillo told the Tribunal that he returned to work in November 1991 on what was termed light duties, but that he was in fact tunnelling under streets, cable jointing, so that he had returned to what was his normal work. He said however that on his return he would not necessarily have done overtime. When it was indicated to Mr Rosillo that his physiotherapy ceased on 31 August 1991, he appeared not to recall that, but said that it could have been correct.
Mr Rosillo said that between 1991 and 1993 his back condition recovered to a certain degree, but that he still had constant pain and discomfort, the level of which varied. Mr Rosillo was asked in cross-examination whether he had time off work because of his back between 1991 and the accident on 6 April 1993, and could not recall whether he had.
Mr Rosillo gave evidence that on 6 April 1993, he suffered a further injury involving a cable. He said that he had been working long hours in an extremely confined space, and after the incident, his back was extremely sore. The Applicant said that he lay down at home and woke up in excruciating pain. At the request of the Respondent, Dr Cusi examined Mr Rosillo after the 1993 injury. Dr Cusi’s report of 22 June 1993 (T40), was with regard to examinations conducted on 10 May 1993, 24 May 1993 and 31 May 1993. Dr Cusi recorded that Mr Rosillo had had 3.5 weeks of low back pain, and reported as follows:
“A C.T. myelogram on the 18th of June confirmed a large tear on the left lateral recess of the L5-S1 level, with compression of the left S1 root, down 1.5 cm from the disc level.
An urgent consultation was sought with Dr. J Grant, with a view to surgical removal of the offending tear. Following this consultation Mr. Rosillo was discharged from Mt. Wilga Hospital on 19/6/93.
…
I envisage that following his immediate postoperative hospitalisation Mr. Rosillo will require further inpatient rehabilitation and work assessment.”
Mr Rosillo also gave evidence that he was seen by Dr Harvey, physician, (T29), and Dr Grant, neurosurgeon. The Tribunal noted that there was a number of reports of Dr Grant in the T-documents, and at Exhibit A2, (13 March 2002). Mr Rosillo said that he underwent a laminectomy and discectomy. He said that he had excruciating pain for several months, but that after a few months he returned to work in an office job. He said that he also worked in the training section for some months after the surgery, teaching cable joining.
Mr Rosillo explained that in the period from 1993 to 2001, after the discectomy operation performed by Dr Grant, his condition improved and then plateaued. He said it had never returned to its pre 1991 state, as it was before the injury, and his back was not as flexible as previously. He said that he now suffered intermittent pain every couple of weeks for a day or two, and had a significant episode approximately twice a year. Mr Rosillo said that the treatment prescribed for him was rest and exercise, with medication for pain.
When asked whether it was correct that he had no physiotherapy and no further rehabilitation from 1993 to the present, Mr Rosillo said that he followed the McKenzie program he had been taught, and continued to follow that at home. He agreed when questioned that the physiotherapy provided did not assist either after the 1991 or the 1993 injuries.
Mr Rosillo explained that he took a redundancy in 2001 because the training section where he had been working was winding down, he had a young family and he wanted to pay off his house.
Mr Rosillo was asked about the job he took in June 2001 which was to run a golf course owned by Concord Council. He explained that his duties were of an administrative nature, with promotions and functions responsibilities, but that there was no stress on his back. He said that he had played eight games of golf in two years, adding that if he felt pain, he did not play.
Mr Rosillo told the Tribunal that further surgery for his back (fusion), had been suggested by Dr Grant at the most recent examination, and expressed surprise that Dr Grant had not included that discussion in his report (Exhibit A2). Mr Rosillo told the Tribunal that he would rely more on Dr Grant’s opinion than that of his general practitioner, and that he would defer having an operation as long as possible. The Tribunal noted also that in 1998 the Respondent asked Dr Grant for an opinion regarding Mr Rosillo’s level of permanent impairment in relation to his claim. There were several reports of Dr Grant in the documents before the Tribunal which are discussed below.
MEDICAL EVIDENCE
dr manuel cusi – general practitioner
A Medical Certificate of Dr Cusi dated 11 July 1991 (T6), the day of Mr Rosillo’s first injury was before the Tribunal. Many others at followed, including one at T27 where Dr Cusi noted a “recurrence of disc tear”.
At T40 (22 June 1993), Dr Cusi recommended post operative inpatient rehabilitation and work assessment. On 11 July 1996 (T63), Dr Cusi recommended weight loss, stretching and pool membership.
dr warwick steele – occupational health physician
Dr Steele’s report was at T13 (17 September 1991). He opined that the X-ray and CT scan indicated slight bulging posteriorly of the L4/5 intervertebral disc which appeared to be exerting slight pressure on the thecal sac at that level. He opined further that this was not likely to be attributable to the injury of 11 July 1991, but “probably the result of fair wear and tear in a tall person who has adopted a crouched position at work for the past 8 years.” He suggested there may also have been congenital factors.
In his further report of 1 October 1991 (T16), Dr Steele recommended that Mr Rosillo continue his light duties without being required to work in confined spaces for the time being. A further examination of Dr Steele was at T18 (15 October 1991), and therein he recommended that Mr Rosillo was still not fit for full duties.
dr leonard harvey –physician
Dr Harvey’s report dated 24 May 1993 was a report of an examination conducted after the second accident of 6 April 1993. Dr Harvey compared results of the CT scan of 17 July 1991 (bulging annulus at L4/5 level) with the CT scan conducted on 25 May 1993 (T30), which also showed pronounced disc herniation at the L5/S1 level. He opined that the most likely cause of the disc lesions were the incidents of 10 July 1991 and 6 April 1993, and made recommendations that Mr Rosillo not work in cramped spaces.
dr john grant – surgeon
The first report of Dr Grant was at T39 (21 June 1993). He recommended urgent laminectomy and discectomy. There were many other reports and medical certificates of Dr Grant, including those at T43, T44,T49, T50, T75, T98, and Exhibit A2.
The report of Dr Grant at T49 dated 20 September 1993 referred to the operation Dr Grant carried out on 2 July 1993, and in it he recommended that Mr Rosillo be deployed from his substantive work to office work.
A further report of Dr Grant dated 11 February 1998 was at T75. In it he referred to the possibility of further surgical intervention, and rated Mr Rosillo’s permanent impairment. In his report at T98, dated 28 June 1999, Dr Grant referred to Mr Rosillo’s accidents and stated:
“The degree of disability in his case would vary from time to time. ... In summary I would consider that this man is at risk of requiring further surgical treatment for spinal disability ...”
Dr Grant’s final report dated 13 March 2002 was before the Tribunal as Exhibit A2. In it he noted he had not reviewed Mr Rosillo since February 1998. He noted that Mr Rosillo reported acute episodes of back pain 3 - 4 times a year and the Applicant’s employment in the golf club. Dr Grant opined:
“The fact that he does have recurrent symptoms on several occasions a year would suggest that it indicates that there is an ongoing disability which, whilst not showing any evidence of deterioration, might at a later stage cause further problems.
Should he continue in his present occupation, I think it is unlikely that he will have problems that might require consideration of further surgical intervention.”
dr a p millar – physician
Dr Millar, whose report dated 25 May 1994 was at T58, recommended that the Applicant was permanently unfit for heavy work and that he was best suited for a position where he was seated but could move around.
dr neil berry – surgeon
Dr Berry, in a report dated 17 April 1997, (T65), gave his opinion regarding the level of permanent impairment. A further report of Dr Berry correcting his impairment ratings was before the Tribunal at T97 (2 June 1999).
dr david maxwell – orthopaedic surgeon
Dr Maxwell whose report dated 17 December 1998 was before the Tribunal at T91, referred to the Applicant’s two accidents, and to the investigations which followed. He gave his opinion regarding the level of permanent impairment of the Applicant.
A further report of Dr Maxwell dated 4 May 2000 (T103), was before the Tribunal. In it Dr Maxwell indicated that the effects of the work related contribution to Mr Rosillo’s disability were permanent, and that he required no treatment other than an intensive exercise program.
professor philip sambrook – rheumatologist
The report of Professor Sambrook dated 12 September 2002 was before the Tribunal as Exhibit A1. He noted the CT scan reports and previous medical reports of Drs Cusi, Harvey, Grant, Maxwell, Millar and Steele. Professor Sambrook noted that Dr Grant had recommended retraining and agreed it would be contraindicated to have Mr Rosillo return to linesman duties. He agreed with Dr Grant that there was a high likelihood of surgery in the future.
dr robert perrett – surgeon
A report of Dr Perrett dated 2 August 2002 was before the Tribunal as Exhibit R2. He opined that Mr Rosillo had long standing degenerative disc disease, constitutional in origin. He opined that the lumbo-sacral disc prolapse caused by the work related injury in 1993 was successfully treated by surgery and that there was no further evidence of lumbo-sacral disc prolapse. He concluded that accordingly it was not relevant to state that Mr Rosillo’s current back condition was materially contributed to by his employment.
dr ross mellick – neurologist
Dr Mellick, whose report of 8 April 2002 was before the Tribunal at Exhibit R3, had not had the opportunity of reviewing past X-rays. He referred to Mr Rosillo not missing work due to back pain since his time at the golf club, and concluded that he could not identify the cause of the S1 lesion, but added that Mr Rosillo had made a good recovery. He did not consider that Mr Rosillo required any ongoing treatment, neither was he able to find that there was any permanent impairment.
He opined:
“The prognosis is entirely favourable. That arises because of the time which has passed since surgery, the absence of signs associated with impaired function and the good spinal and leg function which was identified at the time of my recent assessment of him.”
SUBMISSIONS AND CONCLUSIONS
The Tribunal had to consider the whole of the evidence, both written and oral, the submissions of the parties, the case law and legislation to make the correct and preferable decision regarding whether Mr Rosillo was entitled to compensation pursuant to section 14 of the Act.
In coming to a decision, the Tribunal noted Mr Grey’s submission that the claim before it was not for medical expenses pursuant to section 16 of the Act, neither for loss of wages pursuant to section 19 of the Act, but simply to have liability accepted for the future on the basis that Mr Rosillo had ongoing incapacity as a result of compensable injuries.
The Tribunal noted the submissions of the parties which follow.
submissions of the applicant
Mr Grey, referring to the consent decision regarding permanent impairment (T99), submitted that the decision to deny liability had been made on the basis of a misunderstanding of the legislation. Referring to the reviewable decision dated 26 October 2001 (T114), which denied liability for “strain lower lumbar region”, he submitted that there was a fundamental misapprehension on which the Respondent had relied. The Tribunal noted that in paragraph 7 of the reviewable decision, the delegate referred to the most recent medical evidence of the Applicant being a medical certificate of 5 November 1998 indicating Mr Rosillo was fit to return to pre-injury duties from 31 October 1998, and that the Respondent had then relied on the report of Dr Maxwell of 4 May 2000, to deny liability on and from 28 August 2001.
Mr Grey referred the Tribunal to the cases of Lees v Comcare and Another: Comcare v Mathews and Others (1999) 56 ALD 84, in particular paragraph 34. The Tribunal noted that paragraph 34 reads as follows:
“34. The definition of ‘determination’ makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare ‘is liable to pay compensation in accordance with this Act’ in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.”
Mr Grey also referred the Tribunal to paragraphs 46 and 47 of Re Carson and Telstra Corporation (2001) 33 AAR 351, which the Tribunal noted cited Lees (supra) with approval in relation to section 14 determinations.
Mr Grey also referred to the medical reports of Professor Sambrook and Dr Grant, noting their opinions that the Applicant would have ongoing intermittent problems arising out of the compensable injuries which would result in impairment and therefore liability of the Respondent. He submitted that the issue of whether surgery was required in the future was not of great import. Mr Grey also referred to the reports of Dr Maxwell, with which he said the Applicant had no disagreement.
Mr Grey submitted that Drs Mellick and Perrett had only examined the Applicant on one occasion each, noting that Dr Mellick stated there was no ongoing liability.
Mr Grey submitted that the Tribunal should rely on the opinions of Drs Grant and Maxwell, and on the fact there had been a consent order with regard to the acceptance of permanent impairment.
Mr Grey submitted that the Applicant’s position was as it had been after the 1993 accident, that is, he had a compensable injury pursuant to section 14 of the Act. He submitted that the claim before the Tribunal was not for section 16 or 19 compensation, but that those could be claimed when necessary once section 14 liability had been re-established.
Mr Grey submitted that only if the injury had resolved completely would liability pursuant to section 14 no longer exist. In Mr Rosillo’s case however, there was permanent impairment and evidence that the injury had not resolved, he submitted.
submissions of the respondent
Mr Chen referred the Tribunal to Australian Telecommunications Corporation v Davis (1991) 14 AAR 99, a case where he submitted it was held that the Tribunal could lawfully make the determination as to future entitlements for an Applicant, and in this case, medical expenses into the future.
He also referred the Tribunal to Australian Telecommunications Commission and Glennie (1982) 5 ALN N56B, submitting that that case stood for the proposition that compensation was not payable in respect of an injury or disease unless a compensable sequel resulted. He cited McGregor J in Glennie (supra) as follows:
“The Determination, as I read it, did find an entitlement to compensation yet without expressing a view as to degree thereof; this being a significant omission.”
Referring to Re Tiranti-Valenti and Comcare (1996/7) 45 ALD 478, Mr Chen submitted that in that case, the Tribunal held that there had to be specific evidence, that is “reasonable certainty taking into account the prevailing circumstances”, to support a claim for future medical treatment. He submitted that in Re Tiranti-Valenti (supra) the Applicant sustained an injury, had had ongoing medical treatment since that time, about which the medical practitioners gave detailed evidence extending also into the future, and yet the decision under review was affirmed by the Tribunal. Mr Chen submitted that the situation in Mr Rosillo’s case demonstrated a lack of information about future treatment. He submitted that the medical evidence indicated that Mr Rosillo suffered intermittent pain, was having no treatment, there were no claimable medical expenses and that a possibility of surgery was indicated (Professor Sambrook).
Mr Chen submitted that the evidence showed overwhelmingly that:
there was an absence of formal treatment required;
Mr Rosillo’s condition had plateaued;
for the last nine years he had required only intermittent attendances to his general practitioner;
he had adopted the McKenzie program;
and there was an absence of any other form of treatment.
In that regard the Respondent relied on Drs Miller (T58), Berry (T65), Grant (T75) and Exhibit A2, and Drs Maxwell, Perrett and Mellick.
In summary Mr Chen submitted that there would have to be a determination connecting section 14 liability with a particular determination, adding: “It can’t be a determination made on its own, sitting on its own.” He submitted that pursuant to the legislation and case law, it was the effects of the injury which were compensable, and in Mr Rosillo’s case, notwithstanding that he could not do heavy work, there was no need for treatment, no time lost from work, and no further incapacity attracting compensation.
THE TRIBUNAL
The Tribunal was mindful of the submissions made, and considered them, referring first to the legislation which states that 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 (section 14 of the Act).
It was clear in this case that death was not involved, liability for permanent impairment had been accepted by consent in 1999, and Mr Rosillo compensated accordingly. It was not further argued before this Tribunal. The Tribunal then considered the legislation and the relevant case law with regard to section 14 of the Act, and considered the remaining issue, incapacity for work.
The Tribunal first moved to consider all the medical reports as noted in the paragraphs above, and made the following findings which were undisputed.
The Applicant sustained work related injury on 11 July 1991 and 6 April 1993, which was compensated pursuant to the Act.
The Applicant was compensated for permanent impairment assessed at 10% in a consent decision dated 8 October 1999 (T99).
The findings on investigation, that is, the CT scan of 17 July 1991 demonstrated a bulging annulus at L4/5 level, and the further CT scan of 25 May 1993 indicated that at L5/S1 level there was a large left postero-lateral disc herniation compressing the thecal sac and the left S1 nerve root. This was confirmed by a lumbar myelogram performed on 18 June 1993.
Mr Rosillo underwent operation for discectomy and laminectomy by Dr Grant in July 1993.
Mr Rosillo took a redundancy in 2001, and has been employed fulltime as secretary/ manager of a golf club in Sydney since June 2001.
In considering section 14 and any incapacity Mr Rosillo suffers, the Tribunal next moved to consider what the sequelae were, post operation. None of the doctors whose reports were before the Tribunal, recommended other than that Mr Rosillo not undertake his former work, crouching in confined spaces. They considered that he was fit for work during which he could sit or stand, and move around from time to time.
The Tribunal noted the following from the main medical reports:
On 11 July 1996 (T63), Dr Cusi recommended weight loss, stretching and pool membership.
Dr Steele (1991( recommended that Mr Rosillo continue his light duties without work in confined spaces.
Dr Harvey opined that the most likely cause of the disc lesions were the incidents of 10 July 1991 and 6 April 1993, and made recommendations that Mr Rosillo not work in cramped spaces.
Dr Grant performed laminectomy and discectomy in 1993, and then recommended that Mr Rosillo be deployed from his substantive work to office work. In 1999, Dr Grant opined that: “The degree of disability in his case would vary from time to time. ... In summary I would consider that this man is at risk of requiring further surgical treatment for spinal disability ...” However in his final report at Exhibit A2, dated 13 March 2002, Dr Grant noted that Mr Rosillo reported acute episodes of back pain 3 - 4 times a year and his employment at the golf club. Dr Grant opined:
“The fact that he does have recurrent symptoms on several occasions a year would suggest that it indicates that there is an ongoing disability which, whilst not showing any evidence of deterioration, might at a later stage cause further problems.
Should he continue in his present occupation, I think it is unlikely that he will have problems that might require consideration of further surgical intervention.”
Dr Millar, (1994), recommended that the Applicant was permanently unfit for heavy work and that he was best suited for a position where he was seated but could move around.
Dr Maxwell (2000), indicated that the effects of the work related contribution to Mr Rosillo’s disability were permanent, and that he required no treatment other than an intensive exercise program.
Professor Sambrook (2002), recommended retraining and agreed it would be contraindicated to have Mr Rosillo return to linesman duties. He opined that there was a high likelihood of surgery in the future.
Dr Perrett (2002), opined that Mr Rosillo had long standing disc degenerative disease, constitutional in origin. He opined that the lumbo-sacral disc prolapse caused by the work related injury in 1993 was successfully treated by surgery and that there was no further evidence of lumbo-sacral disc prolapse. He concluded that accordingly it was not relevant to state that Mr Rosillo’s current back condition was materially contributed to by his employment.
Dr Mellick, (2002) had not had the opportunity of reviewing past X-rays. He referred to Mr Rosillo not missing work due to back pain since his time at the golf club, and concluded that he could not identify the cause of the S1 lesion, but added that Mr Rosillo had made a good recovery. He did not consider that Mr Rosillo required any ongoing treatment, neither was he able to establish that there was any permanent impairment.
The Tribunal noted from the medical evidence as summarised above, and the evidence of the Applicant himself that he has not required medical treatment, physiotherapy or further rehabilitation from 1993 to the present. The Tribunal accepted Mr Rosillo’s evidence that he follows the McKenzie program from home, which is a regime of exercise and stretching.
In coming to a conclusion, the Tribunal noted that although Mr Rosillo suffered compensable injuries in 1991 and 1993, he continued to work for the Respondent until he took redundancy to pay off his home. The Tribunal was satisfied that the effects of the injuries resolved to the extent that Mr Rosillo worked for the Respondent after his operation in 1993, and that he has successfully undertaken alternative employment which has been ongoing since June 2001. The evidence before the Tribunal was that he is able to maintain the position at the golf club without time off, as well as play some golf.
The Tribunal noted that the Respondent based its reviewable decision on the medical report of Dr Maxwell who opined that Mr Rosillo required no treatment other than an intensive exercise program. The Tribunal was satisfied he has not required medical care since 1993.
The Tribunal has had the benefit of further medical reports, including that of Mr Rosillo’s treating surgeon, Dr Grant, whose report is given most weight, and who did not expect further surgery to become necessary. The Tribunal also noted the report of Professor Sambrook who suggested there was a likelihood surgery might become necessary in the future. The Tribunal did not accord weight to the report of Dr Mellick in that he had not seen the CT scans, and concluded that he could not identify the cause of the S1 lesion which in fact was well established and agreed upon by the other doctors.
The Tribunal was mindful of Lees (supra), relied on by Mr Grey who cited paragraph 34 (reproduced above). The Tribunal was mindful also of paragraph 35.
“35. This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an ‘employee’ at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.”
In that connection, the Tribunal found that all but the last of the indicia in paragraph 35 of Lees (supra) have been satisfied in relation to Mr Rosillo, noting that incapacity for work was not satisfied. The Tribunal has found, relying on the evidence before it, including the medical evidence, that Mr Rosillo is no longer incapacitated for work. The Tribunal noted that after the operation, and after returning to work with the Respondent, the Applicant took redundancy to pay off his home, and has since June 2001,- been working full time as secretary/manager of a golf club. Accordingly the Tribunal is satisfied there is no liability under section 14 of the Act.
The Tribunal was mindful of the principles involved in Glennie (supra) with regard to future entitlements, and noted the Tribunal in Re Tiranti-Valenti (supra) decided there had to be specific evidence to support a claim for future medical treatment. Clearly this was not available in Mr Rosillo’s case, particularly as he has not required medical treatment since 1993, and his surgeon Dr Grant did not consider the need for further surgery would arise. The Tribunal noted further Mr Grey’s submission that neither section 16 nor 19 claims were being made.
The Tribunal was mindful also of the principles enunciated in Australian Postal Corporation v Oudyn [2003] FCA 318, in which Lees (supra) was referred to. The Tribunal noted further from Plumb v Comcare (1992) 39 FCR 236, that the Respondent could not bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act. Accordingly, notwithstanding a finding of no liability under section 14 of the Act at the present time, should Mr Rosillo’s situation change, he would not be disentitled from making a claim under the relevant head of liability.
However based on the evidence before the Tribunal in this instance, the correct and preferable decision is to affirm the decision under review.
DECISION
The Administrative Appeals Tribunal affirms the decision of Telstra of 28 August 2001 which was affirmed by the decision of 26 October 2001 to deny liability for compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 in respect of “strain lower lumbar region” on and from 28 August 2001.
Costs: No costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.
I certify that the 70 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe Member.
Signed: .......................................................................................
Associate
Dates of Hearing 3 February 2003
Date of Decision 23 June 2003
Solicitor for the Applicant Carroll & O’Dea Solicitors
Counsel for the Applicant Mr L Grey
Counsel for the Respondent Mr N Chen
Solicitor for the Respondent Henry Davis York
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