Seamons and Australian Postal Commission

[2005] AATA 1000

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1000

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/0506, Nº V2003/0865

Nº V2003/1199, Nº V2004/1285

GENERAL ADMINISTRATIVE  DIVISION

Re:         HIRAM ROBERT SEAMONS

Applicant

And:       AUSTRALIAN POSTAL COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:11 October 2005

Place:Melbourne

Decision:The Tribunal affirms the decision under review in application NºV2003/506.

The Tribunal affirms the decision under review in application NºV2003/865.

The Tribunal affirms the decision under review in application NºV2003/1199.

The Tribunal affirms the decision under review in application Nº V2004/1285.

(sgd) G.D. Friedman

Senior Member

COMPENSATION ‑ right groin strain ‑ back pain ‑ right inguinal hernia ‑ whether aggravation work-related ‑ whether applicant able to earn normal weekly earnings

Safety, Rehabilitation and Compensation Act 1988 ss 4(9), 8, 14, 16, 19, 37, 62

Lees v Comcare and Another (1999) 56 ALD 84
Martin v Australian Postal Corporation (2000) 32 AAR 1999
Slater v Telstra Corporation (2001) 115 FCR 34

Tippett v Australian Postal Corporation (1998) 27 AAR 40

REASONS FOR DECISION

11 October 2005  G.D. Friedman, Senior Member

1.      This is an application by Hiram Robert Seamons (the applicant) for review of four decisions of delegates of the Australian Postal Commission (the respondent) concerning his back, groin and the extent of any incapacity to work.

2.      At the hearing Mr D. Richards of counsel represented the applicant and Ms A. McMahon of counsel represented the respondent.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975, plus twelve exhibits (Exhibits A1‑A12) lodged by the applicant and six exhibits (Exhibits R1‑R6) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 19 January 1950 and at all relevant times was employed by the respondent as a postal delivery officer.

5.      The applicant lodged claims for compensation under the Safety, Compensation and Rehabilitation Act 1988 (the Act) for lower back pain/strain in 1991 and 1995.  On 11 May 1995 liability was accepted for temporary episode of ligament strain - lower back.  On 23 November 1998 the applicant lodged a claim for compensation for lower back strain.  On 29 January 1999 the respondent accepted liability for low back strain, which was later amended to temporary aggravation of underlying degeneration of the lumbar spine.

Application Nº V2003/506:

On 13 September 1999 the applicant lodged a claim for compensation for right groin strain.  In August, November and December 1999 the applicant’s general practitioner was informed by Mr R. Ferguson, general surgeon, that the applicant was experiencing pain, swelling and thickening in the right groin area but that there was no clinical hernia, although this remained a possibility.

6.      On 27 October 2000 the respondent denied liability for right groin strain, and on 4 January 2001 the respondent affirmed the decision.  The applicant sought review of that decision by the Tribunal.  On 6 June 2002 the Tribunal made orders by consent of the parties, under which the applicant was entitled to compensation for incapacity until the date of decision, and ongoing medical expenses for aggravation of underlying degenerative disc disease and right groin strain.

7.      On 18 October 2002 the applicant underwent an ultrasound test of the right groin which showed a small, right, indirect inguinal hernia.  This was confirmed on 28 November 2002 by Mr E. Torey, general surgeon.  On 18 December 2002 the applicant sought to amend the description of the compensable injury from right groin strain to right inguinal hernia.  On 13 January 2003 the respondent determined that it was not liable to pay compensation for right inguinal hernia.  On 3 April 2003 the respondent affirmed the determination.  On 19 May 2003 the applicant lodged an application with the Tribunal for review of that decision.

Application Nº V2003/865:

8.      On 10 May 2003 the applicant lodged a claim for compensation for lower back/sciatica/pain from centre chest to low back that he said was an aggravation of a pre-existing condition.  He said the aggravation occurred on 30 April 2003 when he was undertaking duties outside his return to work plan.  On 23 May 2003 the respondent determined that the applicant did not sustain a new and separate injury as a result of his duties on 30 April 2003, on the basis that the Tribunal’s decision of 6 June 2002 limited compensation payments to the date of its decision.  On 4 July 2003 the respondent affirmed the determination.  On 12 August 2003 the applicant lodged an application with the Tribunal for review of the decision.

Application Nº V2003/1199:

9.      On 19 August 2003 the respondent determined that it was no longer liable to pay compensation to the applicant for aggravation of underlying degenerative disc disease and right groin strain because the applicant was considered fit to undertake full-time work.  On 14 October 2003 the respondent affirmed the determination.  On 28 October 2003 the applicant lodged an application with the Tribunal for review of that decision.

Application Nº V2004/1285:

10. On 21 October 2004 the respondent issued a reconsideration on own motion under s 62(1) of the Act, revoking the reviewable decision dated 19 August 2003. The respondent substituted a determination that as the applicant had been able to earn equal to or more than his earnings for the purposes of s 8 and s 19 of the Act, he had no entitlement to compensation for incapacity from 6 June 2002 under s 19 of the Act. It also determined that he has no entitlement to the cost of medical treatment from 19 August 2003 under s 16 of the Act. On 21 October 2004 the respondent again issued a reconsideration on own motion under s 62(1) of the Act, revoking the determinations dated 19 August 2003 and 13 August 2004 and substituted a new determination in similar terms to the one above.

11.     The issue before the Tribunal is whether the applicant is entitled to compensation for incapacity and the cost of treatment for his medical conditions.

EVIDENCE

12.     In oral evidence the applicant stated that he left school after completing Year 11 and worked as a draughtsman for two years, before travelling overseas for a year.  He then began a small business which later ceased operation.  In 1974 he started working with the respondent as a postal delivery officer.  He had no medical problems at that time.  He said that in 1991 he became a parcel delivery driver.  In June 1991 when he was lifting a parcel he experienced pain in his lower back.  He said that in September 1991 he again experienced back pain.

13.     The applicant told the Tribunal that a further incident involving low back pain occurred on 23 March 1995 when he was asked to lift a motorcycle onto a delivery van.  He said that he also suffered low back pain on 13 November 1998 when he felt severe heat and pain in his back while sorting mail.  The applicant said that on 12 August 1999 he suffered a right groin strain while sorting mail, causing intense pain.  He stated that he noticed in the shower at home that his right groin was swollen, and he consulted his general practitioner, who sent him for tests that ultimately led to surgery on 4 November 2002 for a right inguinal hernia.

14.     The applicant stated that on 30 April 2003 he had been on a return to work program and was requested to face up second class mail, a process he described as organising mail so that the addresses are easy to read.  He told the Tribunal that he experienced pain to his right chest down to his lower back, and after about 30 minutes he felt pain across his lower back, then down his right leg to his hip.  He emphasised that the task was outside his return to work program, but he said that he did not complain at the time because he believed that disciplinary action would be taken against him.

15.     In respect of his post‑surgery condition, the applicant told the Tribunal that his condition has improved, although occasionally he suffers pain in the groin area.  He said that he is walking, swimming and stretching.  He stated that he is on restricted duties, doing data entry and other office procedures for 6 hours per day, and his intention is to return to full‑time duty under a return to work plan.  He said that he takes anti‑inflammatory medication and visits his general practitioner monthly.

16.     Under cross‑examination the applicant agreed that under the terms of the consent orders made by the Tribunal in June 2002 he undertook to increase his daily hours of work beyond five hours.  He said that he has tried to increase his hours to the full‑time rate but has been unsuccessful in going beyond six hours per day because of back and groin pain, numbness in the leg and foot, and the risk of aggravation of his medical conditions.  He noted that he is unable to sit or stand for extended periods and stated that his various conditions have taken their toll on his body.

17.     The applicant agreed that various medical practitioners had assessed him as fit for full‑time restricted duties, but he said that he knows his own body, and full-time hours are impossible at present.  He stated that his general practitioner is comfortable with the proposition that an individual is best placed to make decisions on working hours.  He agreed that he has not consented to meetings or consultations involving his general practitioner because of privacy concerns and his belief that his medical condition is a matter between himself and his doctor.

18.     In relation to the incident on 30 April 2003, the applicant agreed that his supervisor had not threatened disciplinary action on any previous occasion.  He said that he was directed to perform the task in a twisting motion, as he was unable to move his feet because of the design of the sorting equipment.  The applicant agreed that he waited until the Monday after the incident before reporting it to his supervisor; and that he did not seek medical treatment for eight days.  He said that he did not want to go through the administrative process of lodging a claim, and had no way of knowing the seriousness of his injuries.

19.     In a written report dated 11 January 2000 (T15) Dr G. Williams, the applicant’s general practitioner, stated that a diagnosis of hernia had been excluded by Mr R. Ferguson, general surgeon.  In a medical report dated 21 August 2000 (T19) Dr Williams stated that the applicant had a right iliopsoas muscle condition.

20.     In a written report dated 18 August 2003 (Exhibit A5) Mr E. Torey, general surgeon, stated that he performed surgery on the applicant’s right inguinal hernia on 4 November 2002.  He said:

Whilst a hernia can occur in patients who do not have a job that involves heavy lifting it is widely considered that heavy work predisposes one to the development and progression of a hernia problem.  If a hernia is present then continued heavy lifting and straining can aggravate and/or accelerate the problem.

In a letter dated 28 November 2002 (T25) to the respondent Mr Torey stated:

It would seem to me that the injury that led to his hernia certainly did occur at work according to the patient and he has asked me to write to explain to you that the condition certainly is a hernia rather than a strain and it did require surgery.

21.     In oral evidence Mr Torey said that a hernia could be congenital or due to pressure on the abdominal cavity.  Under cross‑examination Mr Torey agreed that any physical activity could have caused the hernia and that it was unusual for diagnosis of a hernia to take two years, especially when it had been heavily investigated.  He said that he was not aware of any post-surgery problems and that the applicant would be capable of full‑time light work. 

22.     In a written report dated 14 February 2003 (Exhibit A12) Mr O. Williamson, orthopaedic surgeon, stated that he first examined the applicant on 21 October 1999 with recurrent episodes of low back, right buttock and right groin pain, and reviewed him several times in 2000.  He concluded:

In summary therefore Mr Seamons presented with a long history of recurrent episodes of low back pain and subsequently right buttock and hip pain that he related to his occupation as a postal worker.  Clinically, it appeared that the symptoms he was complaining of when I saw him were possibly arising from his right psoas muscle rather then the lumbar spine.  As Mr Seamons’ symptoms appeared to improve with an active physical therapy program and there was no clinical evidence of any serious underlying cause for his symptoms, no investigations were performed in an attempt to precisely define the origin of his pain.

…

I cannot relate his symptoms specifically to the abnormalities demonstrated on the MRI scan of the lumbo-sacral spine performed in 1999.  The changes in L4/5 and L5/S1discs seen on the scan are more likely to represent age related degenerative changes rather than work related injuries.  …On balance it is more likely that Mr Seamons’ employment contributed to his back and groin condition rather than caused it.

…

23.     In a written report dated 20 November 2003 (Exhibit A13) Mr G. Grossbard, orthopaedic surgeon, stated that he examined the applicant on 12 November 2003 and said:

…I think the cause of this man’s pathology is partly degenerate but also significantly related to the multiple incidents at work.  It is difficult to know which particular incidents have been most responsible for the onset of symptoms but the incident in 1991 has probably been the initiating cause of his symptoms.

The incident in April of 2003 is basically another exacerbation of the long-standing back problem, although the change in distribution of the pain would, to some extent, suggest that there has been an extension of the pathology.  There is no evidence of major disc protrusion either clinically or radiologically.  Each of the exacerbations that Mr Seamons has described has been work-related.  The work has clearly aggravated the condition, although there may well have been an underlying degree of degenerative change.

Mr Grossbard concluded that if appropriate duties, that do not involve activities such as lifting or bending, are found for the applicant, there should not be any restriction on the number of hours worked.  He said that surgery was not appropriate, although the situation should be kept under review. 

24.      In oral evidence Mr Grossbard confirmed the contents of his report.  Under cross‑examination he agreed that he examined the applicant six months after the incident on 30 April 2003, and that the applicant’s symptoms were exacerbated after the incident.  He agreed that in general terms back pain was subject to fluctuations from time to time.

25.     In a written report dated 25 March 2004 (Exhibit R5) Mr M. Shannon, orthopaedic surgeon, stated that the applicant is suffering from lower lumbar disc degeneration without clinical or radiological evidence of disc prolapse, and that his employment at least aggravated the condition.  He said that the applicant is fit for light to moderate physical work which excludes activities such as prolonged or repetitive bending or heavy lifting, but was unable to say whether the work‑related component, or the condition itself, has completely resolved.  Mr Shannon said that the prognosis for chronic lumbar disc degeneration is for susceptibility to further injury, but that self‑managed treatment is preferable to surgery.

26.     In oral evidence Mr Shannon stated that some degenerative changes in the lumbar spine are not uncommon for a person of the applicant’s age.  Under cross‑examination he agreed that any flare‑up in the applicant’s condition could be managed with treatment such as physiotherapy or medication such as analgesics or anti‑inflammatories.

27.     In a written report dated 1 July 2003 (T42) Dr D. Julien stated that during an examination the applicant said to him:

They are irresponsible at work and have forced me to work outside my return to work plan.  I told them it wouldn’t work.  They only have themselves to blame.  I have no plans to improve and cannot see myself getting well.  

28.     In a written report dated 5 August 2003 (T50) Mr R. Pease, spinal surgeon, examined an MRI of the applicant’s lumbar spine and diagnosed degeneration of L4/5 and L5/S1 discs.  He was not able to identify any incident during the applicant’s employment with the respondent which could have significantly aggravated the underlying degeneration.  He stated:

Overall I am drawn to the conclusion that there is almost certainly a very significant element of conscious or subconscious exaggeration and/or embellishment.  I believe that if he were so minded this gentleman would be able to undertake a wide range of suitable light duties as long as he was protected from repeated bending and lifting…In my view there is no physical reason why, in appropriate circumstances, Mr Seamons should not work full-time.

29.     Ms J. Bryant, occupational therapist, gave oral evidence that on 21 September 2004 she accepted a referral from the respondent to assist the applicant to return to work after a considerable absence.  She said that she carried out a worksite assessment on 23 September 2004 and devised a return to work plan that took into account the applicant’s physical limitations and included an induction program, data entry tasks and activities involving the sorting of mail.

30.     Ms Bryant stated that on 26 September 2004 she received a letter from the applicant who indicated that he was unhappy with the proposed number of hours to be worked per day.  She said that she made a number of attempts to contact Dr Williams to discuss the applicant’s concerns but was unsuccessful.  She told the Tribunal that eventually the applicant increased his hours from 5 hours per day to 5½ to 6 hours per day, which is the current level.  She said that his workplace accommodates the restrictions on him such as no lifting or bending.  Ms Bryant stated that in July 2005 the respondent wanted to increase the applicant’s hours by 10 minutes per day, but on 22 July 2005, the applicant declined.  She said that as far as she was aware the applicant is not having any medical treatment and has not complained to his supervisor about his duties.

31.     Under cross‑examination Ms Bryant agreed that she is not a medically‑qualified practitioner and that she had had no involvement with the applicant before September 2004.

CONSIDERATION OF THE ISSUES

32.     The Act provides:

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.

…

16(1)    Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

…

19(1)    This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2)       Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

NWE-AE

where:

AE is the greater of the following amounts:

(a)       the amount per week (if any) that the employee is able to earn in suitable employment;

(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee’s normal weekly earnings.

Application Nº V2003/506:

33.     Mr Richards submitted that on all the material before the Tribunal the cost of the surgery carried out by Dr Torey on 4 November 2002 relating to right inguinal hernia was a work‑related medical expense which was reasonable in the circumstances.  He said that on 6 June 2002 the respondent had accepted liability for right groin strain arising from sorting mail on 12 August 1999 which was aggravated while undertaking a monitored gymnasium program in August 1999.  Mr Richards referred to the evidence from Dr Torey that the injury that led to the applicant’s hernia occurred at work.  He also noted that Dr Brygel, a specialist from the Hernia Clinic, stated that a hernia may be difficult to diagnose, and that he believed the applicant’s work contributed to the development of the groin and hernia problems.

34.     Ms McMahon submitted that the applicant has two conditions, namely a hernia and a right iliopsoas muscle dysfunction and the latter would cause groin pain but was a different condition.  She stated that the applicant was not undertaking heavy work at the time of the onset of the hernia and that the medical evidence is equivocal about the whether the condition was work‑related.  She said that any of a number of activities may have caused the hernia, and that the applicant has not been back to Mr Torey since the hernia repair in 2002.

Application Nº V2003/865:

35.     Mr Richards submitted that the applicant suffered an aggravation of his degenerative back condition on 30 April 2003.  He said that the duties performed by the applicant, as directed by his supervisor, were not part of the return to work program, and resulted in lower back/sciatica pain from the centre of his chest to his lower back.  Mr Richards stated that the clinical notes of the applicant’s general practitioner confirm an increase in back pain consistent with the claim form and the applicant’s oral evidence.  He also referred to the evidence from Dr Julien, Mr Pease, Mr Grossbard and Mr Shannon that from 30 April 2003 the applicant consistently reported pain in his back which radiated to other parts of his body.  Mr Richards referred to Tippett v Australian Postal Corporation (1998) 27 AAR 40 and said that Finkelstein J held that even a temporary increase in pain is sufficient for a finding that an aggravation of a pre-existing injury has occurred.

36.     Ms McMahon submitted that the applicant has always been offered suitable employment in accordance with medical advice and has the capacity to fulfil the recommended duties.  She said that the applicant was unable to demonstrate that the duties involved in the incident of 30 April 2003 were outside his return to work plan.  She noted that the applicant did not complain to his supervisor at the time and did not attend Dr Williams until eight days after the incident.  Ms McMahon stated that the evidence from medical specialists was that the applicant has an age-related back degeneration.

37.     Ms McMahon submitted that the reviewable decision of 4 July 2003 was correct in that there were no compensable effects of any occurrence on 30 April 2003.   She relied on the authority of Lees v Comcare and Another (1999) 56 ALD 84. She stated that Dr Williams was the only person to certify the applicant as totally incapacitated after 30 April 2003 until his return to work on 30 September 2004. Dr Williams was also the only person to certify the applicant unfit for full‑time duties since 30 September 2004. She noted that Dr Williams was the only medical practitioner to have seen the applicant between June 2002 and 30 April 2003 and between 30 April 2003 and the present. However he was not called by the applicant to give evidence and many of his medical certificates failed to include reference to a particular condition suffered by the applicant. Similarly, she said that Mr Williamson, the surgeon, was not called to give evidence about a possible misdiagnosis of the applicant’s groin problem.

Application Nº V2003/1199:

38.     Mr Richards submitted that the applicant was incapacitated for work from 19 August 2003 to date, due to a work‑related back injury and is entitled to medical treatment expenses.  He stated that the applicant has suffered a series of aggravations to his degenerative back condition, and his capacity to work should be assessed as it was immediately before the first aggravation on 20 June 1991 (s 4(9) of the Act).  Mr Richards referred to the evidence from Mr Grossbard, Mr Shannon and Mr Pease, and said that the applicant has ongoing symptoms relating to his back condition, and is not fit for full‑time unrestricted duties.

39.     In relation to medical expenses from 19 August 2003 to date, Mr Richards said that the evidence showed that it was reasonable for the applicant to obtain analgesics, anti‑inflammatories, sleeping tablets and physiotherapy treatment during any flare‑ups in his condition, and to continue to attend his general practitioner.  He said that the respondent should pay for the applicant’s medical expenses.

40.     Ms McMahon submitted that in its decision of 6 June 2002 the Tribunal found that the applicant did not have an ongoing entitlement to compensation for aggravation of underlying disc degenerative disease and right groin strain as he had an ability to earn an amount equal to or greater than his normal weekly earnings for the purposes of s 19 of the Act. She said that there was no evidence of any new injury or change in condition between 6 June 2002 and 30 April 2003. In addition, there was no medical evidence of incapacity to perform full-time restricted duties that were available to him. Therefore, he had no entitlement to compensation under s 19 of the Act and has remained fit for full‑time restricted duties. She said that there was no credible evidence that the applicant was undergoing regular medical treatment, so the respondent should not pay for medical expenses.

Application Nº V2004/1285:

41. Mr Richards submitted that the applicant has an entitlement to compensation under s 19 of the Act for incapacity for work from 6 June 2002 to date because his ongoing symptoms of back pain demonstrate that he is unable to engage in work at the same level at which he was engaged immediately before his injuries.

42.     Mr Richards submitted that, with regard to suitable employment under s 19 of the Act, the Tribunal must consider the work available to the applicant in the relevant period (approximately 160 weeks). He referred to Martin v Australian Postal Corporation (2000) 32 AAR 1999 as authority for this proposition. He said that the Tribunal should follow the Full Federal Court decision in Slater v Telstra Corporation (2001) 115 FCR 34 and determine the amount of compensation payable to the applicant using the formula set out in s 19 of the Act, or alternatively remit the matter to the respondent for calculation of the amounts.

43.     In respect of medical expenses from 19 August 2003 to date, Mr Richards stated that the medical evidence supports the view that it was reasonable for the applicant to consult his general practitioner regularly, to take recommended medication such as analgesics, anti‑inflammatories and sleeping tablets, and to undertake other treatment such as myopathy and physiotherapy.

44. Ms McMahon submitted that there is no evidence of any change in the applicant’s condition from 6 June 2002 to the present to demonstrate a loss of capacity to earn an amount equal to or greater than his normal weekly earnings (NWE) as described in s 19 of the Act. She said that the applicant has never been offered any work other than restricted duties since November 1998 in accordance with his medical limitations. She also submitted that there is no entitlement to compensation under s 19 of the Act for incapacity to work as a result of his accepted conditions from 6 June 2002 to the present.

45.     In reaching its decision the Tribunal takes into account the oral and written evidence and the submissions made at the hearing.

46.     In respect of application Nº V2003/506 the Tribunal notes the medical evidence concerning whether the right inguinal hernia was a new or different injury from the right groin strain for which liability was accepted on 6 June 2002.  The right inguinal hernia was diagnosed on 18 October 2002.  Mr Grossbard and Mr Shannon indicated that they would not disagree with the diagnosis by Mr Williamson when he examined the applicant and referred to symptoms that were possibly arising from the applicant’s right psoas muscle, and that hernia and iliopsoas muscle dysfunction are different conditions and that each might lead to groin pain.  The Tribunal takes into account the medical reports dated 11 January 2000 and 21 August 2000 by Dr Williams in which he refers to a diagnosis of iliopsoas muscle condition and that Mr Ferguson had excluded a hernia.  The Tribunal also notes the oral evidence of Mr Torey in which he accepted the possibility that any physical activity could have caused the hernia, and that it would be unusual to take two years to diagnose a hernia.

47. In all the circumstances, and considering the medical evidence, together with the applicant’s evidence that he has not returned to Mr Torey since the surgery despite complaining of groin pain, the Tribunal accepts the submission from Ms McMahon that the iliopsoas muscle complaint caused right groin pain but was a separate condition from the hernia. The applicant was not doing heavy work at the onset of the hernia and the date the hernia developed is unclear. On balance, the Tribunal finds that the medical expenses relating to the surgery for right inguinal hernia were not work‑related under s 16 of the Act.

48.     In respect of application Nº V2003/865 the Tribunal notes that on 30 April 2003 the applicant agreed to perform duties involving facing up letters and small parcels.  The Tribunal finds that the tasks involved no bending, and takes into account that Dr Williams was the only medical practitioner to have examined the applicant after April 2003.  The medical certificates signed by Dr Williams did not specify the condition that restricts the applicant’s ability to perform his duties.

49.     Although no adverse inference should necessarily be drawn from the failure of the applicant to call Dr Williams to give evidence, the Tribunal is unable to ascertain from the medical certificates the cause of the restrictions that Dr Williams believes should be placed on the applicant’s capacity to work full‑time restricted duties.  The Tribunal notes that the applicant did not complain to his supervisor at the time of the claimed injury on 30 April 2003, he did not visit Dr Williams for eight days afterwards, and told his supervisor the next day that he had an ear infection.  No other medical practitioner has certified the applicant as unable to work full‑time restricted hours.  Dr Julien noted that any flare‑up might have been caused by a number of activities, including those occurring outside employment.

50.     The applicant assumed that his duties performed on 30 April 2003 were outside his return to work plan, as evidenced by his comments to Dr Julien that he was forced to do so.  He was unable to demonstrate that the duties were outside the return to work program.  However, the Tribunal notes that Dr Julien concluded that the applicant could handle paperwork and small items without aggravating his condition.  In all the circumstances the Tribunal finds that any symptoms suffered after 30 April 2003 were due to an age‑related back degeneration, and are not compensable.

51.     In respect of application Nº V2003/1199 the Tribunal notes the series of aggravations claimed by the applicant, to his degenerative back condition.  Although the applicant may have suffered some discomfort as a result of his underlying condition, the Tribunal accepts the evidence from Mr Pease, who was unable to identify any employment‑related activity that could have significantly aggravated the applicant’s underlying degenerative back condition.  The Tribunal accepts the submission from Ms McMahon that the medical evidence from Mr Grossbard, Dr Julien and Mr Shannon supports the proposition by Mr Pease that the applicant is able to work full‑time on restricted duties.  Dr Williams gives no reason why this could not occur.  Therefore, the Tribunal finds that the applicant does not have an incapacity to work (s 4(9) of the Act).  The applicant is not entitled to compensation for incapacity to work from 19 August 2003 to date, or to the payment of medical expenses.

52.     In respect of application Nº V2004/1285 the Tribunal finds, for reasons already given, that the applicant is fit for full‑time work performing restricted duties. The Tribunal also finds that, from 6 June 2002 to date, the respondent has continued to follow the recommendations of medical practitioners in respect of appropriate duties and the number of hours that the applicant should work. The Tribunal finds that the applicant has been offered suitable employment from 6 June 2002 to the present and has been able to earn an amount equal to or greater than his NWE for the purposes of s 8 and s 19 of the Act. For reasons already given, the Tribunal finds that the applicant has no entitlement to compensation for incapacity for work as a result of his accepted conditions from 6 June 2002 to the present. The Tribunal also finds that the applicant has no entitlement to the cost of medical treatment in relation to the accepted conditions from 19 August 2003 to the present under s 16 of the Act.

DECISION

53.     The Tribunal affirms the decision under review in application Nº V2003/506.

The Tribunal affirms the decision under review in application Nº V2003/865.

The Tribunal affirms the decision under review in application Nº V2003/1199.

The Tribunal affirms the decision under review in application Nº V2004/1285.

I certify that the fifty-three [53] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Angela Dennis

Clerk

Dates of hearing:  22 October 2004; 8 and 9 March 2005; and 5 and 6 September 2005

Date of decision:  11 October 2005

Counsel for applicant:             Mr D. Richards

Solicitor for applicant:             Slater and Gordon

Counsel for respondent:         Ms A. McMahon

Solicitor for respondent:          Australian Government Solicitor