Re Anthony Colosimo and the Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 42 (26 February 1991)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: ANTHONY COLOSIMO
And: THE COMMISSION FOR THE SAFETY, REHABILITATION AND
COMPENSATION OF
COMMONWEALTH EMPLOYEES
Nos. V90/105 and 195
AAT No. 6697
Compensation

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
Mrs J.R. Dwyer(1) (Senior Member)

CATCHWORDS

Compensation - back injury at work - determination finding liability to pay compensation - periods of total incapacity - return to work - changes of employment - continuing compensation paid in respect of massage treatment recommended by treating orthopaedic surgeon - determination ceasing entitlement to compensation in respect of massage - applicant's evidence lacking credibility - finding that massage treatment continued to be reasonable made on medical evidence - claim for additional period of incapacity for work - medical certificate restricting duties for two months - gap of many years between injury and further claim - applicant retrenched meanwhile - finding that depression not due to back condition but to anxiety about unemployment and pending compensation proceedings - finding that partial incapacity existed during two month period but that applicant could have performed his usual duties at that time - no compensable incapacity after that period.

Commonwealth Employees Rehabilitation and Compensation Act 1988

Compensation (Commonwealth Government Employees) Act 1971, ss.5, 37

Re Willis and Australian Telecommunications Commission (No 2) (1990) 19 ALD 677

Behan v Australian Telecommunications Corporation (unreported) G355 of 1990, delivered 13 December 1990

Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173

Boyd v Australian Industry Development Corporation (unreported) No ACT G19 of 1990, delivered 21 December 1990

Arnotts Snack Products Proprietary Limited v Yacob [1985] HCA 2; (1983) 155 CLR 171

Williams v Metropolitan Coal Co Ltd [1948] HCA 8; (1948) 76 CLR 431

HEARING

MELBOURNE
26:2:1991

ORDER

Both the decisions under review are set aside.

In substitution for the decision made on 5 January 1990, the Tribunal decides that it has continued to be reasonable for Mr Colosimo to obtain medical treatment consisting of massage for his compensable back condition from 31 July 1989 to date. The Tribunal remits the matter to the respondent for reconsideration in accordance with the directions that:
(a) Mr Colosimo be refunded the costs of massage treatment

which he can establish that he obtained between 31 July 1989 and
this date, so long as it was not obtained more than twice per week;
and
(b) Mr Colosimo continue to be paid compensation in respect of
the cost of up to two massage treatments per week.

In substitution for the decison made on 15 March 1990 the Tribunal decides

that Mr Colosimo was partially incapacitated for work from 19 December 1989 until 14 February 1990 due to his compensable back condition, but that during that period he was able to work as a clerical assistant or salesman, and that since 14 February 1990 he has not been incapacitated for work due to his compensable back condition. The Tribunal remits the matter to the respondent for reconsideration in accordance with this decision.

The Tribunal orders that half the applicant's costs of the proceedings be paid by the respondent, in default of agreement such costs to be taxed on the appropriate County Court scale.

DECISION

The Tribunal in this matter considered two applications for review of reviewable decisions under the Commonwealth Employees Rehabilitation and Compensation Act 1988 ("the Act"). Mr N R Bird of Counsel appeared for the applicant, Mr Colosimo, and Mr M McInnis of Counsel appeared for the respondent.

2. The first reviewable decision, that dealt with in application V90/105, was a decision made on 5 January 1990 to affirm a determination made on 31 July 1989 which decided to deny liability to pay compensation under the Act in respect of the cost of any massage obtained by Mr Colosimo on or after 31 July 1989. The second reviewable decision, that dealt with in application V90/195, was a decision made on 15 March 1990 affirming a decision made on 21 January 1990 denying liability to pay compensation in respect of incapacity for work for the period 19 December 1989 to 14 February 1990. As the applicant's statement of facts makes clear, the applicant claimed an ongoing entitlement to compensation in respect of total incapacity for work from 19 December 1989.

3. The Tribunal received in evidence the documents ("the T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 in respect of both applications and a number of other exhibits which were tendered during the hearing. Evidence for the applicant was given by Mr Colosimo, Mr Grossbard, an orthopaedic surgeon and Dr Batagol, a psychiatrist. Evidence for the respondent was given by Mr Buzzard, a surgeon, Mr Weaver, an orthopaedic surgeon, Dr Grainger-Smith, a psychiatrist, and Mr Smith, a press room manager with The Herald and Weekly Times Limited ("the Herald").

4. Mr Colosimo worked with the Department of Taxation and then the Australian Taxation Office (the "Taxation Office") as a clerical assistant from June 1973, when he was aged 15, to 30 July 1985. In evidence he told the Tribunal that on 15 January 1981 he leant back in a chair and fell backwards onto the floor. He said that on the day of the incident he attended the work sister and she told him to go to a doctor. He attended the City Medical Centre which was near to his work place.

5. Mr Colosimo's evidence was confirmed by the T documents which include a certificate from the work medical centre dated 15 January 1981, and also an initial medical certificate of the same date from Dr Cooke at the City Medical Centre. He described Mr Colosimo as suffering from "acute low back injury, which he stated was the consequence of tipping over on chair." Dr Cooke certified Mr Colosimo unfit for work for two days. He was then off work on compensation most of the time until 26 June 1981.

6. After 26 June 1981, Mr Colosimo had a considerable amount of time off work due to back pain or back treatment. On a number of occasions, the time off was very short and was simply to attend a gymnasium. These attendances were sometimes as frequent as two or three times a week. Attendance at a gymnasium and massage were recommended by his treating orthopaedic surgeon, Mr Grossbard and the expenses were covered as part of his compensable medical expenses.

7. In July 1985 Mr Colosimo left the Taxation Office. The circumstances leading to his decision to leave were associated with his conviction in the Box Hill Magistrates Court on 18 July 1985 of five charges involving dishonesty. Mr Colosimo said that there was somebody from the Taxation Office present at Box Hill Court, and that it was subsequently suggested to him by one of his superior officers that he could be dismissed from the Taxation Office because of the convictions and therefore it would be wise to resign before he was dismissed, as otherwise he would have difficulty in finding alternative employment.

8. On 8 September 1985 Mr Colosimo started employment with the Herald as a machine hand working nightshift in the Sun machine room. Not surprisingly Mr Colosimo did not disclose to the Herald, either his reason for leaving the Taxation Department, or the fact that he had had a substantial amount of time off work on worker's compensation for a back injury. His employment with the Herald was subject to him passing a medical examination which he did successfully.

9. There is no evidence that Mr Colosimo ever complained of any pain or injury to his back during his time with the Herald. His work there according to his evidence and that of Mr Smith was not purely sedentary and did involve some bending and lifting. He did not have time off work for any back related condition. He continued to receive reimbursement of gymnasium, massage and associated travel expenses throughout the three years he was with the Herald. At times he claimed $30.00 for massage on a daily basis, although more usually it appears to have been three times a week. Mr Colosimo did not take any time off work to attend the gymnasium or massage while he was working nightshift at the Herald.

10. Mr Colosimo resigned from the Herald on 31 October 1988. In evidence he said that he resigned to look after his father and brother both of whom were dying. His father died in August 1988 after a stroke, and his brother died of leukemia in November 1988. Mr Colosimo said that he in fact left work in August shortly before his father died, and did not return although his resignation only took effect from 31 October 1988. The records from the Herald received in evidence give the reason for resignation as "serious ill-health".

11. Mr Colosimo did not find further employment until April 1989 when he took a position as a salesman with United Carpet Mills Pty Ltd ("United Carpets"). He remained in that position until 27 October 1989. A letter from the Payroll Officer says that he was retrenched due to a rationalisation of certain areas of the Mills. The only evidence as to Mr Colosimo's duties with United Carpets was his own evidence that he worked as a salesman selling carpet to wholesalers, and performed clerical duties related to the sales. Mr Colosimo said that he managed to cope with his job at United Carpets without any difficulty. The T documents show that he continued to claim the cost of frequent massages during his time there.

12. In 1989 the respondent arranged for Mr Colosimo to be examined by Mr Buzzard. In a report dated 14 June 1989 he set out a history he had obtained from Mr Colosimo which in a number of respects is inconsistent with the evidence before the Tribunal. First it states that Mr Colosimo described the incident which led to the severe back problems in 1981 as occurring, not when he fell off a chair, but when he was carrying some stores at work and fell down about six or seven steps. It appears from the sick leave records that such an incident did occur on 15 February 1978, but that Mr Colosimo returned to work after approximately two weeks and did not require further time off work due to that incident. Mr Buzzard obtained no history at all of the incident in January 1981 when Mr Colosimo fell off the chair.

13. Mr Buzzard noted on examination:

"The patient was able to sit at right angles on the
examination couch without apparent pain. The straight leg raising
tests were negative. There was a full range of apparently painless
movement of the back."

Mr Buzzard had been advised of the existence of a scan which suggested a fractured transverse process of the third lumbar vertebra. He wrote in his report:

"This patient probably did suffer from a soft tissue injury
to the low back region as the result of the accident in question. I
am bothered that there is a possibility that the patient may also
have suffered from a fracture of the transverse process of the third
lumbar vertebra. Such a fracture would have been consistent with
significant injury but would not be expected to give rise to
continuing symptoms.
(emphasis added)
. . .
The particular point at issue appears to be whether or not
it is appropriate or not for the patient to have continuing massage
as described above thrice weekly.
I can see no medical justification or basis for this. It
would appear to me that the appropriate massage will be
psychologically beneficial for the patient but I can see no physical
basis for such benefit.
I don't think there is any evidence that the patient is
suffering from any significant physically based problem in relation
to his back resulting from the incident of 1981, however, I stress I
have not seen the above mentioned x-rays and would like to do so
before being adamant about this point."

14. That report from Mr Buzzard was preferred by a delegate of the respondent to a number of reports from Mr Grossbard, in which he had said that he considered that Mr Colosimo should continue with gymnasium and swimming "from a physical point of view", and that his degree of tenseness would undoubtedly be benefited by massage. A determination was made on 31 July 1989 denying liability to pay for the cost of any massage obtained after that date. That determination was affirmed by the reviewable decision of 5 January 1990.

15. After the original decision was made Mr Buzzard saw the bone scan and x-ray and reported that they did demonstrate that Mr Colosimo had had a fracture of the right transverse process of L3 and he considered it reasonable to accept that it resulted from the accident in question. He did not however comment on whether or not that affected the opinions expressed in his report of 14 June 1989.

16. The medical evidence relied on by Mr Colosimo as supporting his claim that his massage expenses are recoverable under the Act, was that of Mr Grossbard. He first saw Mr Colosimo in March 1981, on referral from Dr Jarrad at the City Medical Clinic. Dr Jarrad made that referral when Mr Colosimo returned to the clinic complaining of pain in his back, on the first day she had sent him back to work, after the incident when he fell off the chair.

17. Mr Grossbard in his earliest report which was dated 24 June 1981 wrote that on examination he noted some tenderness in the lumbo sacral spine with reduced flexion and a suggestion of an extension hitch, however he said the mobility was reasonable and straight leg raising was limited to 45 degrees on each side. Mr Grossbard noted that Mr Colosimo was particularly tense and anxious. He considered Mr Colosimo's injury to be largely of a soft tissue nature, but wrote that he would have persistent symptoms for a long period of time. Mr Grossbard considered that there was no reason why Mr Colosimo could not perform his normal clerical duties, and noted that the whole situation appeared to be complicated by his degree of anxiety. On 23 April 1981 Mr Colosimo apparently told Mr Grossbard that he had had short episodes of severe sharp pain particularly at night. In a report of 15 February 1982 to the Taxation Office Mr Grossbard described that symptom as rather strange and wrote:

"It is also strange that these are relieved by Serepax which
is a sedative. Although I have no doubt that this man is suffering
back discomfort intermittently, and this may well be related to the
aggravation of his early injury, there is most certainly an element
of anxiety in relation to his ability to cope with the situation. I
feel that his continuing back symptoms are related to the accident
described, however, their severity and the incapacity that they are
causing him are the aspect which I question. I think that he will
eventually settle completely, and I do not anticipate that there
will be a long-term problem relating to this injury. I feel,
however, that he is likely to have recurrent episodes of pain,
particularly if he should sustain further injury."

The determination relating to cost of massage

18. In March 1984 Mr Grossbard recommended swimming and regular attendance at a gymnasium as part of Mr Colosimo's treatment, and in March 1986 he recommended that, as Mr Colosimo found therapeutic massage to be helpful, it should be included as part of the therapeutic regime relating to the back pain. In his report of 19 February 1987 Mr Grossbard said that he believed that an exercise programme would be important to Mr Colosimo for a long time. He recommended that this activity be undertaken on a couple of occasions each week, and confirmed that Mr Colosimo could do most clerical jobs providing he was able to get up and move around at will.

19. When Mr Grossbard gave evidence he gave the dates of all the attendances Mr Colosimo had had on him. After mid 1983 he saw Mr Colosimo once in 1984, and twice in early 1985, although those two visits related to an arm injury rather than the back problem. He only saw Mr Colosimo twice in 1986, and not at all after that until 9 November 1988 when Mr Colosimo had resigned from the Herald. He saw him once in July 1989 while he worked for United Carpets, but that was in order to get a report to answer that of Mr Buzzard, and then again on 20 December 1989. That visit was about two months after he had been retrenched from United Carpets and will be considered in relation to the second application before this Tribunal.

20. Thus, so long as Mr Colosimo was in employment and having his gymnasium and massage expenses covered by his compensation, he apparently had very little need of treatment for his back. The question is whether Mr Colosimo's lack of need of medical attention was because there was nothing wrong with his back, or because the massage relaxed Mr Colosimo's back and thus kept him fit enough to work without requiring further medical attention.

21. That issue is complicated by the fact that, for a number of reasons, I can not accept Mr Colosimo as a credible witness. I found his evidence unconvincing in general. The fact that Mr Colosimo is a poor historian was apparent from the evidence he gave to the Tribunal and from a comparison of the histories he gave to the doctors who gave evidence before the Tribunal. Although the sick leave records establish that Mr Colosimo injured his back twice at work at the Taxation Department, in 1978 when he fell down some stairs, and in 1981 when he fell off a chair, he frequently only mentioned one of those incidents or else confused the order in which they occurred. I am satisfied that those problems with giving a history do not result from any intention to mislead doctors or the Tribunal. It would in fact have strengthened Mr Colosimo's case, had he given an accurate history to all the doctors and the Tribunal.

22. There are however a number of facts which were revealed in cross-examination, which cause me to place little reliance on Mr Colosimo's credibility. The incident at Box Hill Magistrates Court was not the first time Mr Colosimo had been before a Court charged with offences involving dishonesty. The evidence is that on two previous occasions he had been convicted of charges of dishonesty. On one occasion the charges related to a course of conduct covering twenty-two charges of obtaining money by deception.

23. There is also evidence which tends to show that Mr Colosimo has endeavoured to make the most out of compensation claims, rather than to make a good recovery. His time off work after the January 1981 incident was longer than his treating doctors expected and he was reluctant to pursue treatment such as physiotherapy and the wearing of a back brace.

24. Mr Colosimo also had a significant compensation claim while he was with the Herald. He lodged a claim in respect of an injury to the heel which he claimed occurred on 16 December 1985 when a reel truck ran into him in the basement. He did not return to work after that incident until 2 May 1986. It appears from the Herald personnel file that there was some doubt about the genuiness and severity of his heel injury. Mr Colosimo was warned after his lengthy absence in respect of this incident that any further compensation claims would be investigated. His time off work was reduced after that warning and his perfomance is reported as having improved.

25. Some basis for the Herald's concern about this claim is provided by the evidence that on 2 April 1986, while on compensation for the heel injury, Mr Colosimo attended Mr Grossbard. Not only did he not mention the heel injury to Mr Grossbard but he also told him that he was at that stage working in Canberra and seeing a psychiatrist there.

26. Mr Colosimo's credibility was further reduced by the fact that he denied in cross-examination that he had been involved in any car accidents. Mr McInnis produced records showing that Mr Colosimo had claimed that he had been involved in two car accidents while he worked for the Taxation Office.

27. If there were no objective medical evidence as to the existence of a back problem, I would not be prepared to accept Mr Colosimo's evidence that he suffered an injury to his back at work in January 1981 or that he has ongoing problems from that injury. However, there are the records from the work sister and from the City Medical Clinic of 15 January 1981. There is also evidence of the bone scan and x-ray to which Mr Grossbard sent Mr Colosimo on 29 September 1982 and which Mr Buzzard viewed. The report of that scan is in the T documents and reads in part as follows:

"Increased isotope emission was present from the right
transverse process to the third lumbar vertebra."

An x-ray taken on the same day is reported as follows:

"A healing fracture is present in the right transverse
process of the third lumbar vertebra. No other bone, joint or soft
tissue abnormality was detected."

28. Somewhat surprisingly in view of those reports, Mr Grossbard, in a report of 14 June 1983, wrote:

". . .all investigations were normal, including a bone scan
and I felt that the problem was one of musculo-ligamentous injury to
his lumbar spine."

29. However, in evidence Mr Grossbard, Mr Buzzard and Mr Weaver all agreed that the bone scan and x-ray provided evidence that Mr Colosimo had sustained a fracture of the transverse process of the third lumbar vertebra as a result of a tearing of the muscles attached to that vertebra. Mr Buzzard and Mr Weaver both said that in their opinion the fracture was probably recent, in order to show up in the bone scan. They thought it could be no older than January 1981. There is no evidence that Mr Colosimo sustained any back injury after 15 January 1981 and I therefore find that on that date he did sustain a back injury of sufficient significance to cause a fracture of the right transverse process of the third lumbar vertebra.

30. The point where the medical evidence diverges is in considering whether that incident would have any ongoing effects in 1989 and 1990. Mr Grossbard said in evidence that transverse fractures are usually caused by a severe twisting injury. He said such injuries may damage muscles or a disc and sometimes, because of the associated soft tissue injury, they are persistently painful. He said that most of Mr Colosimo's pain results from muscle spasm and massage is a way of overcoming that muscle tightness and is preferable to taking valium. Mr Grossbard said he considered muscle wrenching to have been the factor initiating Mr Colosimo's pain. He said there may also have been some disc injury but he did not consider surgery an appropriate treatment option at this stage, and therefore there was no reason for further investigation.

31. Mr Grossbard said that Mr Colosimo's pain and spasm is consistent with an injury such as that described as occurring on 15 January 1981 but is added to by his anxiety. He said the finding of spasm is an objective finding. Mr Grossbard said he has always considered that Mr Colosimo does have a genuine problem, but that he does not cope with it well and needs exercise and swimming to help him cope. He said Mr Colosimo has emotional problems as well as physical problems and for that reason he referred him to a psychiatrist, Dr Batagol in 1985. Mr Grossbard said in evidence that he was happy to recommend massage as a treatment, if it kept Mr Colosimo fit and functioning, and that it could be that he would need it once or twice a week.

32. It is unfortunate that Mr Grossbard gave evidence prior to Mr Colosimo. Mr Colosimo's credit was damaged quite substantially in cross-examination and Mr Grossbard was not asked whether those matters would have caused him to change any of the views he expressed in evidence.

33. Mr Buzzard said in evidence that if Mr Colosimo had suffered a disc injury it could cause recurrent episodes of pain in subsequent years, but a tearing of the muscles sufficient to cause a fracture of the transverse process would not do so. Mr Buzzard did not satisfy me that the distinction is as clear cut as he suggested in evidence, particularly in view of his report of 14 June 1989 when he wrote that he was "bothered" by the possibility that Mr Colosimo may have suffered a fracture of the transverse process of the third lumbar vertebra. In evidence he gave no explanation of why the confirmation of the possibility which previously had "bothered" him, was now seen by him as quite insignificant.

34. Mr Weaver also gave evidence for the respondent. His evidence was however much more helpful to Mr Colosimo. Mr Weaver also obtained an inaccurate historyfrom Mr Colosimo in that he was told that the first incident was in 1979, when Mr Colosimo fell off a chair at work and that he had a further accident in 1981 when he fell down stairs at work. Mr Weaver considered that he obtained positive objective signs of problems in the back, and therefore he suspected that Mr Colosimo may have some form of disc injury.

35. Mr Weaver explained to the Tribunal his findings of signs of lumbar disc degeneration. He said the signs were suggestive not of a "frank disc prolapse" but of a disc which had previously been injured and "remained injured to a degree". Mr Weaver said that he considered that there was some genuine restriction of movement of the back. He said that there was also difficulty in sitting upright and with straight leg raising and lowering.

36. Mr Weaver said he could not disagree with Mr Grossbard's evidence that massage would be of help in relieving Mr Colosimo's muscle strain or muscle spasm. He said it was his opinion that there were psychological elements to Mr Colosimo's presentation, but probably also a physical basis to his problems. In his report of 14 November 1990 Mr Weaver wrote:

"It is conceded that Mr Colosimo might find it comforting to
undergo some massage treatment on a fairly regular basis although
attending for treatment three times a week does seem to be somewhat
excessive."

37. The Tribunal in Re Willis and Australian Telecommunications Commission (No 2) (1990) ALD 677, held that s.124 of the Act requires that entitlement to compensation in respect of an injury that occurred prior to the commencement of the Act be determined according to the entitlement provisions of the Compensation (Commonwealth Government Employees) Act 1971 (the "1971 Act"). That interpretation was approved by the Federal Court in Behan v Australian Telecommunications Corporation an unreported decision of Lockhart J delivered 13 December 1990. Thus the relevant criteria as to compensation for the cost of massage treatment are found in ss.5 and 37 of the now repealed 1971 Act. Section 5 defined medical treatment as including:

"(d) therapeutic treatment by, or under the supervision of,
a physiotherapist, masseur or chiropractor registered under the law
of a State or Territory providing for the registration of
physiotherapists, masseurs or chiropractors as the case may be;"

Section 37(1) provided:

" 37.(1) Where an injury is caused to an employee, the
Commonwealth is liable to pay, in respect of the cost of medical
treatment obtained in relation to the injury, being treatment that
it was reasonable in the circumstances for the employee to obtain,
compensation of such amount as is appropriate to that medical
treatment having regard to the charges customarily made for similar
medical treatment in the place where that treatment is obtained."

38. The evidence of Mr Grossbard and Mr Weaver is broadly in agreement. That of Mr Buzzard contradicts it, but for the reasons already given in para 33 I find it less convincing than that of Mr Grossbard and Mr Weaver. I therefore find that Mr Colosimo does have some ongoing physical problems from his work related injury and that the massage recommended by his treating orthopaedic surgeon is a treatment that has continued, since 31 July 1989, to be reasonable for him to obtain. I find that it is reasonable for him to continue to obtain massage, as required, up to twice weekly. That was the frequency suggested by Mr Grossbard as reasonable. I accept Mr Weaver's evidence that three times a week would be excessive.
Incapacity for work

39. The second reviewable decision affirmed a determination denying liability to pay Mr Colosimo compensation for incapacity for work from 19 December 1989 to 14 February 1990. The original determination relied on Mr Buzzard's report of 14 June 1989.

40. For the reasons already given I cannot agree that Mr Buzzard's report was "the only definitive statement" on Mr Colosimo's capacity for employment in relation to the incident of 15 January 1981. In fact the only medical report before the review officer as to incapacity during the relevant period was a certificate from Mr Grossbard dated 20 December 1989 which stated that Mr Colosimo was suffering from back injury and was unfit for work from 19 December 1989 until 14 February 1990, "unless sedentary duties not involving bending or lifting are available".

41. Mr Grossbard gave evidence about Mr Colosimo's attendance on him on 19 December 1989. He said:

"In December of 89, he was in increased pain over a few days,
he said at that stage that he had lost his job, but was still going
to the gym, I suggested that perhaps he find a light duty job at
that stage. When I saw him again in January he said he was having a
great deal more back pain. He was not able to relax, he was having
trouble sleeping and that was when - perhaps prescribed a little
Valium for him and suggested he go back to see Dr Batagol
again."

Mr Grossbard said that on examination in December 1989 Mr Colosimo "was able to move his back but he had some spasm there". He said that otherwise Mr Colosimo was fairly normal. Mr Grossbard saw Mr Colosimo on five occassions in January and February 1990 and had not seen him since then.

42. Mr Colosimo was first referred to Dr Batagol, who is a psychiatrist, by Mr Grossbard in April 1983. From Dr Batagol's evidence it appears that he was seen on six occasions between April and August 1983. He did not see Dr Batagol again for six years until 6 February 1990, as a result of Mr Grossbard's second referral. On 28 February 1990 Dr Batagol gave Mr Colosimo a certificate stating that he would be unfit for work for 21 days. In evidence Dr Batagol said that from December 1990 he considered Mr Colosimo to be totally incapacitated for work due to depression.

43. Dr Batagol, in a report dated 5 March 1990 and in evidence, said that it was his opinion that in February 1990 Mr Colosimo was suffering from a recurrence of reactive depression which was caused by a number of different factors, one of the significant factors being the underlying problems with his back. He said that Mr Colosimo had told him that his back had started to get much worse again since the beginning of 1990, and that it was making it impossible for him to do various physical things and interfering with his sleep. Dr Batagol said that he thought Mr Colosimo had developed psychological problems because of his back problems.

44. Dr Batagol said that there had been times in 1990 when he thought Mr Colosimo could have managed to work, but most of the times he had seen him he thought he was not capable of working. From April 1990 until July 1990 Mr Colosimo was on an overseas trip. He said that during the trip he was quite well and did not need to seek medical treatment for either his back or any psychiatric problems. Dr Batagol said that when Mr Colosimo returned from the overseas trip he had encouraged him to seek work.

45. However Dr Batagol said that in December 1990 he again regarded Mr Colosimo as totally incapacitated because he was more depressed and agitated. His evidence as to the last occasion when he saw Mr Colosimo, which was on 3 December 1990 was as follows:

"He started off looking much better but as that interview
progressed he became more agitated and restless - as he can do
sometimes - and that was when talking about the problems that he was
having over this whole hearing and Comcare and the injury and
everything."

Dr Batagol agreed that it could have been the pending compensation proceedings which were making Mr Colosimo more agitated at that time. He said that Mr Colosimo had expressed to him a lot of concern about the proceedings and frustration at the difficulty in getting compensation payments.

46. Dr Batagol said that he agreed with the opinion of Dr Grainger-Smith, the psychiatrist who saw Mr Colosimo on behalf of the respondent, that he was suffering from neurotic depression. He did not however agree with Dr Grainger-Smith that it was not related to the underlying back condition. He also disagreed with Dr Grainger-Smith's opinion that from a psychiatric point of view Mr Colosimo was fit to work at any of the jobs he had had in the last ten years.

47. Dr Batagol was of the view that there were both physical and psychological factors affecting Mr Colosimo and that they could not be separated. He said he had always considered that Mr Colosimo did have "an underlying genuine physical problem", but he could not rule out the possibility that the problem might be solely psychological.

48. I have reservations about the weight I can put on Dr Batagol's opinion because even though he has been Mr Colosimo's treating psychiatrist, he did not obtain a full history from Mr Colosimo. Mr Colosimo did not disclose to him factors such as his significant worker's compensation history when he was with the Herald, or the fact that he had to leave the Taxation Office due to a conviction and had had other convictions in 1980 and 1981. Those matters, together with his compensation history while at the Taxation Office would be a disadvantage in looking for further employment, and thus could have caused the reactive depression, which only developed after Mr Colosimo had been retrenched and had looked unsuccessfully for new employment.

49. Mr Colosimo's evidence was that after his retrenchment he had made about 25 applications for employment and had attended 14 or 15 unsuccessful interviews. This would in itself would be very depressing. I also accept that anxiety about the compensation proceedings would have aggravated his psychological problems. Neither anxiety about unemployment nor anxiety about legal proceedings gives rise to an entitlement to workers' compensation. These aspects were considered by the Federal Court in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at pp 187-188 and at p 195, and in Boyd v Australian Industry Development Corporation an unreported decision No ACT G19 of 1990, delivered 21 December 1990.

50. Another gap in the history obtained by Dr Batagol was as to Mr Colosimo's psychiatric history. He apparently did not tell Dr Batagol that he had had psychiatric treatment when he was living in Canberra, while on workers compensation leave from the Herald in 1986, or that, as appears from the Herald file, he had been retired from the Herald for reasons of "serious ill-health" because of a nervous condition in October 1988 and had at that time been seeing a treating specialist.

51. Dr Batagol said that this further information did not change his opinion, because Mr Colosimo always looked to him like "somebody that really has a genuine problem with his back". However it does effect the weight I can give to Dr Batagol's opinion that it was based on an incomplete history. When I also consider Mr Colosimo's general lack of credibility, his refusal to continue with physiotherapy treatment or the wearing of the brace, and the facts that from the time he left the Taxation Office he never lost a day off work due to back pain, and only began to complain of it after his retrenchment, I am satisfied that Mr Colosimo exaggerated the effect of his back condition to Dr Batagol. I consider that he did so to justify a claim for compensation during the period he found himself unemployed; even though that unemployment was not attributable to the back condition. I am satisfied, from Mr Grossbard's evidence, that Mr Colosimo's back condition in February 1990 was not sufficient to be playing the role Dr Batagol attributed to it.

52. Dr Grainger-Smith who was called by the respondent saw Mr Colosimo on 23 July 1990, and concluded that at that time he was fit to work, and that the major factor making him depressed, but not so as to make him unable to work, was the fact that he could not obtain a job. Mr Colosimo said to Dr Grainger-Smith that "if he had a job he would be fine." His evidence to the Tribunal gave a similar impression. He said he could work at the time of the hearing if he could find a job. Of course Dr Batagol was also of the view in July 1990 that Mr Colosimo was fit to work.

53. Dr Grainger-Smith said that, on the history he obtained, Mr Colosimo's history of nervous tension related to the back injury had resolved prior to his leaving the Taxation Office and that the depressive illness in 1990 was related to economic circumstances arising from his retrenchment from United Carpets. Some factors which lead me to conclude that the depressive illness was related to the retrenchment rather than the back condition are the inconsistencies in the account of the onset of the back pain in December 1989 or January 1990 and the fact that, from the history Mr Colosimo gave to Mr Grossbard in December 1989, it appears that the back pain then was not such as to stop Mr Colosimo attending the gymnasium. Although Mr Grossbard said there was some spasm in December 1989, the certificate he gave was one restricting the duties Mr Colosimo could undertake, rather than one of unfitness for work. Mr Colosimo's work with the Taxation Office and with United Carpets would on the evidence have complied with those restrictions. Furthermore, after February 1990 Mr Colosimo appears to have had no need to return to Mr Grossbard.

54. For the reasons already given I prefer the opinion of Dr Grainger-Smith to that of Dr Batagol. I am satisfied that the depression from which Mr Colosimo suffered after his retrenchment from United Carpets was due to anxiety about his continuing unemployment. The depression and agitation he demonstrated in December 1990 was I find due to anxiety about the pending compensation proceedings. I accept Dr Grainger-Smith's evidence that if Mr Colosimo "had a job he would be fine" and that his emotional disorder does not prevent him working.

55. I find, on the basis of Mr Grossbard's certificate and evidence, that from 19 December 1989 to 14 February 1990 Mr Colosimo was restricted because of his back condition to "sedentary duties not involving bending or lifting". However that restriction would not on the evidence have prevented him from working in a clerical position, as he did with the Taxation Office, or as a salesman, as he did with United Carpets. Thus applying the test in Arnotts Snack Products Proprietary Limited v Yacob [1985] HCA 2; (1983) 155 CLR 171 ("Yacob's case") he was not totally incapacitated for work during that period as he was not disabled from his former employment.

56. It is a difficult question whether during the short period covered by Mr Grossbard's certificate Mr Colosimo was partially incapacitated for work. At p 178 the High Court in Yacob's case said:

"It follows that the concept of partial incapacity for work
is that of reduced physical capacity, by reason of physical
disability, for actually doing work in the labour market in which
the employee was working or might reasonably be expected to work."

There is no evidence that Mr Colosimo's work with the Taxation Office or United Carpets involved bending or lifting. That with the Herald did however involve some bending and lifting. During his period of restricted duties Mr Colosimo would not have been able to perform such work, which was work he had performed previously, but not immediately before the latest period of restriction in capacity for work. The majority in the High Court referred to such a fact situation saying at p 79:

"The employee may as a result of injury sustain an incapacity
for a particular class of work, being work in which he might
reasonably be expected to engage in the future. The problems, . . .
created by incapacity for work of this kind, inherent in the
conception of incapacity recognized by Dixon J. in Williams (25),
need not be explored here, where the incapacity is for part of the
work actually undertaken by the respondent immediately before his
injury."

57. The reference to the comments of Dixon J in Williams is a reference to a passage quoted at pp 176-177 of Yacob's case from Williams v Metropolitan Coal Co Ltd [1948] HCA 8; (1948) 76 CLR 431 at p 449. Summarising that passage, the High Court in Yacob's case said at p 177:

"Central to these statements especially that of Dixon J. is
the view that incapacity for work denotes a physical incapacity for
doing work in the labour market in which the employee was working or
might reasonably be expected to work, though this incapacity may not
necessarily attract compensation . . . because it results in no loss
of earning power." (emphasis added)

58. Accordingly I must find that during the period 19 December 1989 to 14 February 1990 Mr Colosimo was partially incapacitated for work due to his compensable back condition. It does not affect my finding that this incapacity will probably not attract compensation under the Act because it did not affect the amount per week that Mr Colosimo was able to earn in suitable employment.

59. Mr Colosimo did not see Mr Grossbard after February 1990 and was not given any further time on restricted duties by Mr Grossbard. Dr Batagol did certify that he had some subsequent periods of total incapacity but I find that any total incapacity after 14 February 1990 has been due to depression which has not been caused or contributed to by Mr Colosimo's employment with the Taxation Office, but was caused by anxiety about his unemployment and these proceedings.

60. Both the decisions under review will be set aside. In substitution for the decision made on 5 January 1990, I decide that it has continued to be reasonable for Mr Colosimo to obtain medical treatment consisting of massage for his compensable back condition from 31 July 1989 to date. The matter will be remitted to the respondent with the direction that: (i) He be refunded the cost of massage treatment which he can establish that he obtained between 31 July 1989 and this date, so long as it was not obtained more than twice per week, and (ii) He continue to be paid compensation in respect of the cost of up to two massage treatments per week.

61. In substitution for the decision made on 15 March 1990 I decide that Mr Colosimo was partially incapacitated for work from 19 December 1990 until 14 February 1990 due to his compensable back condition but that during that period he was able to work as a clerical assistant or salesman. I also decide that since 14 February 1990 he has not been incapacitated for work due to his compensable back condition. The matter will be remitted to the respondent for reconsideration in accordance with this decision.

62. Mr Colosimo has succeeded in having both the decisions under review set aside. The first of the decisions made in substitution, is clearly more favourable to him than the reviewable decision. The decision finding partial incapacity for work is unlikely to result in any payment to Mr Colosimo as I have found that he was able to earn income as a clerical assistant or salesman. It is therefore in substance not really more favourable to him than the reviewable decision. Under s.64(8) of the Act in these circumstances I have a discretion to order that the costs or part of the costs of the proceedings before the Tribunal be paid by the respondent. It appears to me that the appropriate order in this matter is that half the applicant's costs of the proceedings be paid by the respondent and I will so order.