Nikolovski v Telstra Corporation Ltd

REASONS FOR JUDGMENT Introduction 1 This is an appeal by Mr Cane Nikolovski ("the applicant") from a decision of the Administrative Appeals Tribunal ("the Tribunal") dated 25 October 2001 made pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the Act"). In its decision the Tribunal affirmed five decisions made pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Compensation Act"). 2 The decisions which were the subject of the appeal to the Tribunal were described in its reasons: "(i) 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'. (ii) 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. (iii) 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'. (iv) Matter N2000/1929 seeking review of a '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'. (v) 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'." Background 3 The following is a summary of the applicant's circumstances as found in the reasons for decision of the Tribunal ("the Tribunal's reasons"). In June 1995 the applicant, during the course of his employment with Telstra Corporation Ltd ("the respondent"), suffered injuries in a motor vehicle accident. Liability was accepted for the injuries sustained by the applicant, who required treatment and a short period of absence from work. Following this absence the applicant was able to resume full duties. 4 On 10 March 1998 the applicant injured his back while lifting a block of concrete during the course of his employment with the respondent. He received medical treatment from his general practitioner but continued to carry out his normal duties. He did, however, continue to experience discomfort. Some months later, in October 1998, the applicant had another accident at work in which he again suffered injury to his back. On this occasion the treatment prescribed by his general practitioner was physiotherapy and acupuncture. 5 The applicant commenced five weeks annual leave in December 1998 and did not resume work until 19 January 1999. As he was continuing to experience back pain and was unable to perform the full range of his normal duties, he was removed from field work and placed on light duties in the respondent's Ashfield office, commencing in February 1999. A return to work program was implemented requiring the applicant to build up his work hours from five to eight hours per day. Because he was removed from field work, the applicant had to surrender a company vehicle. This led to a dispute between the applicant and management. 6 After commencing light duties in the Ashfield office, the applicant had to apply for the position as a permanent position. He was unsuccessful and was advised that he did not present well at interview. Some time later he sought an interview with his Regional General Manager to ascertain his future prospects with the respondent. This, too, was unsuccessful, the applicant giving evidence that the Regional General Manager's response had been: "What do you want me to do about it?" The net effect of these events was that the applicant became depressed and fearful of losing his employment. By late 1999 this had worsened to the point where he was unable to communicate and confined himself to his home. In January 2000 he was certified unfit for work for reasons of "back pain and depression." 7 On 17 July 2000 Ms Carina Vitelli, a rehabilitation consultant employed by the respondent, contacted the applicant's general practitioner, Dr Gill. In response to her enquiry regarding the applicant's ability to "return to work to perform suitable duties with restrictions", he replied that physically he could but mentally he could not. He added: "[The applicant] doesn't want to go back to Telstra because of poor treatment by managers and staff". 8 The applicant's manager, Mr Ivanovski, wrote to the applicant again on 16 August 2000 to advise him of a return to work program. In that letter it was requested that the applicant meet with his manager and Ms Vitelli to discuss his situation and the possibility of establishing a rehabilitation program for him. The applicant's response was that he would not attend a meeting until he had discussed the matter with his solicitor. By a letter dated 4 October 2000, the applicant was invited to show cause why his employment should not be terminated on the basis of medical capacity. His failure to show cause resulted in the termination of his employment on 22 November 2000. In the letter of 4 October 2000 it was noted that the applicant had declined an offer of continued support and rehabilitation.