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IN THE MAGISTRATES COURT OF VICTORIA AT LATROBE VALLEY WORKCOVER DIVISION

Case No.F12473040 ADNAN GLIBANOVIC Plaintiff v FREEDOM FUELS AUSTRALIA PTY LTD Defendant

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MAGISTRATE: S GARNETT

WHERE HELD: LATROBE VALLEY

DATE OF HEARING: 30, 31 JANUARY & 1 February 2017 Defendant Submissions filed 8 February 2017 Plaintiff Submissions filed 13 February 2017 Defendant Reply filed 15 February 2017

DATE OF DECISION: 1 MARCH 2017

CASE MAY BE CITED AS: GLIBANOVIC v FREEDOM FUELS

REASONS FOR DECISION

--- Catchwords: 130 week termination of weekly payments – compensability of left hip condition – Capacity to undertake suggested suitable employment: ongoing symptoms and physical restrictions as a consequence of back injury – worker sustained prior significant amputation injuries to right hand – psychiatric condition - generic description of tasks involved in suggested suitable employments – specific and inherent requirements of each job not specified.

--- APPEARANCES:

Counsel Solicitors

For the Plaintiff Ms Galpin Patrick Robinson & Co For the Defendant Ms Tsikaris Lander & Rogers

1 DECISION

HIS HONOUR:

1 Mr Glibanovic is 44 years of age and was employed from late 2000 by Horizon

Petroleum which then became Freedom Fuels as a Console Operator/Retail

Assistant. He lodged WorkCover claim forms on 26 February 2009 alleging

that he had sustained injuries to his “right knee, right hip, right leg, groin, back,

left hip, left carpal tunnel, left wrist” as a consequence of “repetitive, rapid and

heavy work including constant lifting of boxes and constant kneeling –

repetitive lifting over 100 boxes of drinks” whilst performing stock control and

stacking the drinks fridge on 5 February 2009. As at the date he ceased work

he was employed on a permanent casual basis working approximately 25

hours per week.

2 Cambridge Integrated Services accepted liability for his claim and he received

weekly payments of compensation in accordance with the provisions of the

Accident Compensation Act 1985. On 18 May 2011, Xchanging gave Mr

Glibanovic notice of its intention to terminate his weekly payments of

compensation as from 3 September 2011 on the grounds that he had a

capacity to undertake suitable employment. He did not challenge this decision

at that time. On 31 March 2015, Xchanging gave him notice of its intention to

terminate his entitlement to payment of medical treatment expenses as from

30 April 2015 on the grounds that ongoing treatment was not essential to

ensuring that his health and ability to undertake activities of daily living would

not significantly deteriorate and that his treatment was only maintaining

symptomatic relief and not improving his condition.

3 Mr Glibanovic seeks to challenge both decisions and asserts that he has no

current work capacity which is likely to last indefinitely and that he requires

ongoing medical treatment for his compensable injuries. The defendant

asserts that Mr Glibanovic has a capacity for suitable employment and despite

originally admitting liability for his claimed left hip injury and paying for the

medical treatment relating to it, including a total left hip replacement which he

2 DECISION

underwent on 30 January 2014, it now disputes the compensability of it. The

suggested ‘suitable employment’ focussed on during the hearing was that of a

Purchasing and Supply Logistics Clerk, a General/Inquiry Clerk and a

Community Support Worker.

4 Mr Glibanovic gave evidence that he attended Yallourn Technical School but

only managed to pass two Year 12 subjects before completing an

apprenticeship as a panel beater. He then worked as a panel beater for a

period of 4 years and then commenced work with Rocklea Spinning Mills as

an operator/store person for a period of 4 years. Unfortunately, he sustained

serious amputation injuries to his right thumb, index and middle fingers on 23

January 1997 when operating a machine in the course of that employment. Mr

Glibanovic told the court that he required reconstructive surgery which

involved skin grafting from his left groin and bone grafting from his left hip

together with subsequent cosmetic surgery. He said that he was incapacitated

for a prolonged period as a consequence of these injuries but did manage to

return to work on alternate duties for a short period until he ultimately ceased

work in April 2000.

5 The evidence revealed that Mr Glibanovic successfully pursued a common

law negligence action against Rocklea which was settled in May 2000 for an

amount of $700,000. The evidence also revealed that on 1 June 2015,

Worksafe issued a Certificate pursuant to S134AB of the Act indicating that it

was satisfied that the ‘injury’ sustained by Mr Glibanovic on 5 February 2009

is a ‘serious injury’ and consenting to him bringing proceedings for the

recovery of pain and suffering damages. The particulars of ‘injury’ referred to

in the proposed common law Statement of Claim were; aggravation of injury

to lumbar spine including L4/5 and L5/S1 disc bulging, injury to right knee

including medial meniscus tear and aggravation of previously asymptomatic

osteoarthritis of the right knee, aggravation of osteoarthritis and soft tissue

injury to right hip and shock, nervousness, anxiety and depression.

3 DECISION

6 Mr Glibanovic said that after his common law settlement he managed to find

employment as a permanent casual console operator/retail assistant with

Horizon Petroleum/Freedom Fuels in November 2000 which required him to

work at various petrol stations performing console duties, general customer

service, cleaning, stocktake, invoicing, ordering and re-stocking of shelves. He

told the court that he initially worked 16 hours per week which increased over

time to 26-28 hours per week and in 2006 he became a fulltime employee in

the role of an Assistant Manager at the Churchill station. Mr Glibanovic told

the court that when Freedom Fuels took over Horizon Petroleum he was no

longer given the role of an Assistant Manager and returned to his part time

casual position as a console operator/retail assistant.

7 The evidence revealed that prior to the incident on 5 February 2009, Mr

Glibanovic had experienced episodes of back pain in the course of his

employment with Horizon/Freedom Fuels. It appears that he was

incapacitated for work for a period of 2 weeks in July 2003, had further time

off as a result of back and left hip pain in April 2005 and complained of back

pain to his general practitioner, Dr Kee in October 2008. In relation to the

incident on 5 February 2009, Mr Glibanovic gave evidence that because of the

outbreak of fires in the area the service station was extremely busy with

numerous police, DSE and SES workers, CFA volunteers and other agencies

attending the station. He told the court that the defendant donated food and

drinks to them resulted in large orders being made to replenish the stock. He

said that part of his duties required him to stack the new stock over a 7 hour

period and whilst doing so he experienced further back pain. He told the court

that the following day he also experienced pain in his right knee and right hip.

8 As mentioned, Mr Glibanovic lodged WorkCover claim forms on 26 February

2009 for the injuries referred to above for which liability was accepted. He told

the court that he included ‘left hip pain’ in his claim form as he had been

experiencing pain in his left hip over a period due to favouring his left side

4 DECISION

following his previous right hip problem. He said that from that date he had

returned to work on a number of occasions on restricted duties until he

eventually ceased work in August 2010. He gave evidence that his employer

made an offer of suitable employment to him dated 15 February 2010, initially

working 25 hours per week increasing to 27.5 hours per week by week 5

requiring him to perform customer service duties and small amounts of

cleaning and stacking shelves. The job offer indicated that he could alternate

between sitting and standing, take rest breaks as required and could cease

any activity which increases his symptoms. He told the court whilst performing

modified duties he would regularly take rest breaks and regularly cease work

because of increasing back pain.

9 Mr Glibanovic told the court that he currently experiences pain in his right hip

and low back which fluctuates to the left side and down to his groin area and

right leg. He said he experiences pain every day and the level of pain

fluctuates. He also said that he takes various medication including; Lyrica,

Topamax, Panadeine Forte and Panadeine Osteo, Endep and

Endone. He told the court that because of his fluctuating pain level on his

good days he is able to walk for 10-15 minutes and drive for short periods. He

said that he was depressed following the injury he sustained to his hand which

worsened following the injuries sustained on 5 February 2009. He told the

court that in the last 2 years he has seen Mr Winfield, Psychologist and more

recently a Psychiatrist, on 2 occasions in 2016. He said that the psychological

treatment and his ‘faith’ keeps him under control

10 The evidence indicated that Mr Glibanovic has been treated by general

practitioners, Dr Kee and since 2016, Dr Al-Mayahe, Mr Love, orthopaedic

surgeon who performed a right knee arthroscopy on 5 August 2009, Mr Carey,

orthopaedic surgeon in relation to his back condition, Dr Clayton Thomas,

pain specialist, physiotherapy and hydrotherapy treatment, psychological

treatment and more recently he has seen a psychiatrist on two occasions.

5 DECISION

11 During examination in chief, Mr Glibanovic told the court that he lives on a

farm comprising 27 acres and he has 28 sheep on it. He said that he takes

care of them in relation to feed and water and tends to his vegetable patch.

He told the court that when tending to his vegetable patch he tries to stand

whilst digging but if his back and right hip pain increases he sits on a stool but

is only able to do this activity for between 15 and 30 minutes. He says that a

normal day consists of him doing these activities or spending time on the

phone or on his recliner chair. He gave evidence that his wife works and that

he has 4 children aged 15 years, 11 years 10 years and 7 years of age. He

told the court that he is the designated carer of his 10-year-old son who has

low-level autism. He said that he was also the designated carer of his mother

who passed away on 27 January 2017. He told the court that he used to

prepare her medication and take her to her medical appointments when

necessary. He told the court that his mother lived with his brother in the house

next to his. Mr Glibanovic told the court that he is a member of the local

Muslim community and he attends the Mosque which is situated in a house

next to his on his property which was donated to the local Muslim community

by his late father who died in 2009. He gave evidence that his role in the

Mosque is to collect donations, pay bills and to ‘call people for prayer’. He also

told the court that prior to the injury on 5 February 2009 and after he sustained

his right hand injury in January 1997 he was able to play competitive tennis,

act as a goal umpire in the local football league and was able to socialise in

the community.

12 Mr Glibanovic also revealed that after his common law settlement he

purchased a commercial property in Moe, comprising two shops which he

personally managed and a rental house in Morwell which was managed by an

Agent for a period of 4 years. He told the court he sold all properties in

September 2016 for financial reasons.

13 In cross examination, Mr Glibanovic told the court that his current medical

6 DECISION

problems mainly involve his back and psychological issues and disputed that

he would be able to return to his pre-injury employment notwithstanding that

whilst performing console duties he would be able to sit or stand at will. When

questioned about his complaint of right hip pain he told the court that no

investigations have been undertaken and the pain he experiences in his right

hip originates from the right side of his low back. He agreed that he was able

to return to work on light duties after he underwent the right knee arthroscopic

in August 2009 and that the reason he ceased work was because his

employer was no longer prepared to offer modified duties. However, he told

the court that he was still experiencing fluctuating levels of pain at that time.

Mr Glibanovic agreed that when he was employed in the managerial position

with Horizon his tasks included customer service, ordering stock, training staff,

arranging for casual staff to work, preparing reports for management and

using a computer for stock reconciliation.

14 During cross examination, Mr Glibanovic confirmed that since 2008 he has

acted in the role of both President and Secretary of the Islamic Association of

Gippsland. He agreed that over this period his roles have required him to;

collect donations; make payments on behalf of the Association; make ‘the call

for prayers’ on Friday of each week and during the month of Ramadan; assist

refugees to find accommodation and life’s necessities; participate in events

conducted by the Association; and, attend meetings. He told the court that

during prayer he normally sits on a chair but may occasionally sit cross legged

on the floor.

15 Mr Glibanovic told the court that he is able to do household tasks including;

clothes washing, hanging the clothes on the line and gardening. He said that

he is also able to participate in family activities which includes picnics and

taking his children fishing. He agreed that he travelled to Vietnam in 2011 and

Bosnia in 2012 as well as travelling interstate for his children’s sporting and

recreational activities.

7 DECISION

16 Mr Glibanovic was questioned at length about whether he satisfied the criteria

to receive a carer’s pension for his son and mother which he has been

receiving since 2013/2014. He was adamant that he satisfied the eligibility

criteria.

17 He agreed that he had previously received treatment for back problems and

psychological problems prior to him sustaining injury on 5 February 2009 and

was continuing to receive treatment and medication for his right hand injury at

that time. He agreed that since undergoing the left hip replacement operation

he has not been referred to any other specialists for his back, right hip or right

knee complaints although said it had been suggested to him that he should

seek a referral to see Dr Clayton Thomas again for pain management. He told

the court that he cannot afford to see doctors because WorkCover ceased

paying for his treatment expenses in April 2015.

18 Mr Glibanovic said that he is able to speak Bosnian, Serbian and Croatian and

is currently learning Vietnamese and Arabic. He told the court that he is able

to operate a computer, a smart phone, browse the Internet, play games on the

computer and has experience with data entry. He agreed with the suggestion

that the role of a Purchasing and Supply Logistics Clerk as identified in the

report from nabenet dated 28 May 2010 was not dissimilar to the duties he

performed as an Assistant Manager with Horizon petroleum but said it

included a few extra tasks and he would struggle to work in that role on a

regular basis. He also agreed that the tasks required of an Inquiry Clerk as set

out in that report were the same types of duties he performed as an Assistant

Manager but said he would also struggle to perform those tasks on a regular

basis. Mr Glibanovic agreed that he has experience in the tasks required of a

Community Support Worker as set out in the nabenet report but did not

believe he would be able to perform all those tasks on his own.

19 Mr Glibanovic confirmed that in 2010 he had applied for work as a Rates

Officer with the Latrobe City Council and as a Service Delivery Officer with the

8 DECISION

Department of Human Services. He also confirmed that with the help of

nabenet he applied for the position of a Customer Service Officer with Vic

Roads in Moe for which he attended an interview and received positive

feedback but was unsuccessful in obtaining the job. He told the court that he

subsequently discovered that part of the role of a Customer Service Officer

would have required him to perform roadworthy checks which involved getting

under cars which he would not have been able to perform. He said that he

was not aware of this requirement when he applied for that position or when

he attended the interview.

Medical Evidence

20 Dr Kee gave evidence and numerous medical reports prepared by him were

tendered. Dr Kee told the court that he first saw Mr Glibanovic in 1988. In his

first report dated 2 May 2009, he noted that subsequent to the serious injuries

sustained to his right hand on 23 January 1997 Mr Glibanovic developed a

major depressive illness for which he received extensive counselling and

continued to suffer from a severe and persistent left hip pain and dysfunction.

He noted that this occurred as a result of extensive scarring at the site of the

graft donor site. Dr Kee reported that as a result of the persistent left hip

problems Mr Glibanovic was walking with a compensated gate to relieve the

pain in his left hip and in doing so he experienced a sore back which he

diagnosed as a chronic lumbar sacral back strain injury. Dr Kee reported that

Mr Glibanovic had gained 42 kg in weight since sustaining the injury to his

right hand in 1997.

21 Dr Kee reported that after Mr Glibanovic return to work with Horizon he

suffered repeated bouts of aggravation to his injuries and also suffered left

sided carpal tunnel syndrome due to overuse of his left hand as a

consequence of the loss of function to his right hand. He noted that he

underwent surgery by Mr Leung for this condition on 16 September 2002

which was paid for by his former employers WorkCover agent.

9 DECISION

22 In his report dated 19 April 2010, Dr Kee obtained a history from Mr

Glibanovic on 26 February that he had developed increasing pain in his right

hip, knee and leg as a consequence of lifting over 100 boxes of drinks at work

on 5 February 2009. Dr Kee reported that Mr Glibanovic had a period off work

but was able to return to work on restricted duties on 30 March 2009 and was

receiving physiotherapy, hydrotherapy and was prescribed medication. He

reported in April 2010 that Mr Glibanovic was permanently incapable of

returning to his preinjury duties but would be fit for light duties with significant

restrictions to avoid aggravating his injuries. In August 2011, Dr Kee reported

that Mr Glibanovic’s condition had deteriorated during 2010 which required an

increase in his pain management and medication and referrals to Mr Carey,

Orthopaedic Surgeon and Dr Clayton Thomas, Pain Management Specialist.

He noted that he ceased work on 18 May 2010 and that his attempt to return

to work on 20 August 2010 ‘failed miserably’. Dr Kee opined that his prognosis

for a return to work was poor and that he had no work capacity.

23 On 25 May 2015, Dr Kee reported that despite undertaking an intensive pain

management course in 2012 under the care of Dr Clayton Thomas, Mr

Glibanovic continued to experience significant pain in his back and left hip and

he referred him to Mr Patten, Orthopaedic Surgeon for a review of his left hip

pain and dysfunction. Dr Kee opined that as his pain had features of a

neuropathic component, they would be arising from his lumbar sacral spine.

He noted that Mr Glibanovic underwent arthroscopic surgery of his left hip by

Mr Patten on 14 August 2013 and a total left hip replacement operation on 30

January 2014. As a consequence of continuing complaints of pain, Dr Kee

reported that he sought to refer Mr Glibanovic back to Dr Clayton Thomas for

pain management but his request was denied by WorkCover.

24 Dr Kee reported that Mr Glibanovic has continued to experience increased

lumbosacral back pain and left hip pain and he requires high doses of

medication, massage and hydrotherapy treatment. He noted that WorkCover

10 DECISION

ceased paying for all medical treatment in April 2015. Dr Kee reported that Mr

Glibanovic’s quality of life was poor although he still managed activities of

daily living but would require ongoing treatment.

25 Dr Kee gave evidence that he last saw Mr Glibanovic on two occasions in

2016. He confirmed that he provided a certificate dated 29 April 2015

indicating that Mr Glibanovic was unfit for all work due to his; right hand injury,

left hip injury, post-traumatic stress disorder, left wrist carpal tunnel syndrome

surgery and his obesity secondary to inactivity. Dr Kee noted that he provided

a subsequent certificate dated 27 May 2015 certifying that Mr Glibanovic was

unfit for all work as a result of his; right hip, right knee, right groin, back and

left hip injuries. During cross examination, Dr Kee confirmed that Mr

Glibanovic had complained of back symptoms and depression prior to 5

February 2009. He also confirmed that when he saw Mr Glibanovic on 14

January 2009, 3 weeks prior to the injuries sustained on 5 February 2009, Mr

Glibanovic was complaining of right wrist pain and indicated that he was going

to stop work in the next 2 weeks. He agreed that Mr Glibanovic was

complaining of back and left hip pain and symptoms of depression prior to 5

February 2009 and those complaints continued thereafter although he did not

complain of left hip pain when he first saw him after the incident on 5 February

2009 on 11 or 26 February 2009. Dr Kee explained that although there may

be no mention of left hip pain in his attendance notes on those dates, Mr

Glibanovic may have complained about pain in the left hip but he may have

been selective in what he recorded. Dr Kee said that Mr Glibanovic’s left hip

condition is chronic and pre-dates 5 February 2009. Dr Kee agreed that the

medical report he provided on behalf of Mr Glibanovic in support of his

application for the disability support pension in October 2011 related his

conditions as having existed since 2002.

26 A medical report from Dr Al Mayahe dated 13 September 2016 noted that Mr

Glibanovic is suffering from pain in his right knee, both hips and lower back

11 DECISION

and that his current treatment regime includes rest and analgesia to help

alleviate his symptoms. Dr Al Mayahe reported that Mr Glibanovic is unfit for

work due to associated and other medical conditions including; acromegaly

which was diagnosed in 2013 and his right hand injury.

27 Mr Glibanovic tendered medico-legal reports prepared by Mr Brearley,

Professor Myers, Professor Bittar, Mr Moran, Mr Carey, Dr Nathar and

Vocational Assessment reports from Ms Leitch and Ms Webster. The

defendant tendered medico-legal reports from Dr Francis, Mr Hooper,

Professor Marshall, Mr Dooley, Associate Professor Love, Mr Jones, Dr Yong,

numerous reports prepared by nabenet and other miscellaneous documents.

Vocational Evidence

28 The reports from nabenet were prepared by Ms Allemand, Rehabilitation

Consultant. In her initial report dated 28 May 2010, she identified suitable

employment options as being; Store person, Purchasing and Supply Logistics

Clerk, General clerk, Inquiry Clerk and Community Support Worker. As at May

2010, she reported that Dr Kee was certifying Mr Glibanovic as fit for modified

duties 5.5 hours per day 5 days per week as per the return to work plan dated

15 February 2010. Ms Allemand reported that Mr Glibanovic had numerous

transferable skills which would allow him to undertake employment.

29 Ms Allemand listed the required tasks for each identified job option by

reference to an ASCO Code. In relation to the suggested ‘suitable

employment’ as a Store Person, she noted that Mr Glibanovic had performed

a similar role in the past and that his experience with stock control, data entry

and machine operation in addition to his sound communication skills and

qualification in stock control would make him a potentially attractive candidate.

She suggested that he would be able to perform the role from a physical

perspective as he would be able to alter his posture as needed providing he

was able to avoid heavier, manual duties such as lifting. She reported that Mr

12 DECISION

Glibanovic’s employment prospects in this field were ‘good’ and she identified

3 jobs of this type advertised in the Latrobe Valley region.

30 Ms Allemand also suggested that Mr Glibanovic would be able to be

employed as a Purchasing and Supply Logistics Clerk based on his

previous experience and noted that roles of this nature typically involved

working from a seated position with the ability to alter posture as required.

She stated that this occupation would also be physically suitable for him. Ms

Allemand reported that Mr Glibanovic’s employment prospects in this field

were average and identified four jobs of this type advertised in the Latrobe

Valley region.

31 Ms Allemand considered the role as a General Clerk would be appropriate

having regards to his sound communication skills and experience within his

community performing voluntary support roles. She stated these duties would

be physically suitable for Mr Glibanovic as it would allow working from a

seated position with opportunities to alter posture as required when

performing clerical and communicative duties. She considered his

employment prospects were good and reported that four jobs of this type were

advertised in the Latrobe Valley region.

32 Ms Allemand stated that Mr Glibanovic would be suited to a job as an Inquiry

Clerk based on his voluntary experience, his sound communication skills and

computer skills. She also stated that he may be suited to a role within the

public sector or within a community organisation or group and that from a

physical perspective roles of this nature typically involve performing clerical

and administrative duties from either a seated or standing position. She

reported that his employment prospects were good and identified two jobs of

this type advertised in the Latrobe Valley region.

33 Ms Allemand noted that Mr Glibanovic would be suited for a role as a

Community Support Worker as he was already undertaking a voluntary

13 DECISION

community support role and given his experience and language skills and the

fact that such a role would be physically suitable as it would allow him to alter

his posture as necessary and should not involve heavy manual duties. She

considered his employment prospects in this type of job to be good and

reported that two jobs of this type were advertised in the Latrobe Valley

Region.

34 Ms Allemand stated that in her opinion, based on Mr Glibanovic’s experience,

skills and qualifications, he should be able to secure employment in the listed

occupations and he did not require further training. She suggested that he

commence a 26 week New Employer Services Program which would provide

him with guidance and assistance in; preparing a professional resume;

matching his skills, experience and physical restrictions to suitable vacancies;

preparation of employment applications and cover letters; interview

techniques and tips and marketing his skills and experience. In her report

dated 24 September 2010, Ms Allemand noted that during the first 8 weeks of

the program Mr Glibanovic was keen to secure new employment and

indicated a particular interest in securing a customer service or administration

role within a community, not for profit or government organisation. She noted

that he attends job seeking appointments with copies of newspapers in which

he sourced suitable vacancies and demonstrated that he was independently

pursuing suitable employment opportunities.

35 In her report dated 18 November 2010, Ms Allemand noted that Mr Glibanovic

had submitted applications including roles as an External Relationships

Officer with ASIC, a Marketer/Sales position with Workways Limited,, Sales

Representative for Telstra and Care Worker with Berry Street. In her report

dated 16 February 2011, she noted that Mr Glibanovic had applied for a

position as a Rates Officer with the Latrobe City Council, a Service Delivery

Officer with the Department of Human Services and a Customer Service

Officer with Vic Roads for which he attended an interview but was

14 DECISION

unsuccessful.

36 In her final report dated 16 June 2011, Ms Allemand noted that although Mr

Glibanovic had been very keen to secure employment throughout the period

of his involvement with NES and had taken steps to obtain employment, Dr

Kee had recently certified him as unfit for all duties due to the onset of

increased pain. She opined that Mr Glibanovic had the necessary skills,

knowledge and resources to successfully continue the job seeking process

independently and his file with nabenet was to be closed.

37 A vocational assessment report of Ms Leitch, Occupational Therapist from

Evidex dated 28 February 2012, was tendered by Mr Glibanovic. Ms Leitch

opined that Mr Glibanovic’s limited literacy and poor aptitude for routine

clerical tasks would restrict his opportunities to meet the requirements of

alternative employment. She stated that she was unable to find any alternative

occupations where he had the necessary transferable skills and where the

inherent job requirements were within his capacity when considering his lower

back injury. She doubted whether occupational rehabilitation and/or retraining

was likely to lead to a suitable occupation in the open labour market. She also

commented that his place of residence would significantly reduce his chance

of gaining access to any occupation that may otherwise be considered

suitable.

38 Ms Leitch reported that based on a formal reading test that graded Mr

Glibanovic as reading English at the level of a 13-year-old, his literacy skills

would be adequate for occupations and study requiring basic level skills only,

and he would therefore be restricted when considering employment or training

where higher level literacy is required. She also stated that his poor aptitude

for basic clerical tasks would preclude him from meeting the pre-requisites for

clerical occupations such as Office Administration Assistant and General

Clerk. Furthermore, she noted that he has never been employed in a purely

administrative occupation and only has very basic computer skills which would

15 DECISION

preclude him from office administration and General Clerk tasks.

39 When considering the suggested suitable employment option as a Logistics

Clerk she made the following comments – Mr Glibanovic has poor aptitude for

basic clerical tasks and limited reading skills; the physical requirements of the

occupation include lifting and carrying moderate to heavy goods, to examine

the content of containers, to record quantities and to check that incoming

stock matches invoices; lifting and carrying moderate to heavy stock to check

inventories; and, frequent bending to access stock situated below mid-thigh

height and prolonged standing and walking when managing input and output

stock. Ms Leitch reported that Mr Glibanovic’s limited literacy and poor

aptitude for routine clerical tasks restrict his opportunities and when combined

with his limited functional capacity she was unable to find a suitable

alternative occupation after reportedly examining 120 ANZSCO occupations.

40 Mr Glibanovic tendered reports of Ms Webster from Flexi Personnel dated 4

September 2013 and 16 April 2015. Ms Webster’s biography indicates that

she has vast experience in employment recruitment over 25 years. The

admissible content of her report is therefore confined to this area of expertise.

She reported that Mr Glibanovic’s skills and work experience has been

predominantly in manual/physical roles within a panel beater or store

environment which has included customer service, stock control and

supervisory duties. Ms Webster noted that Mr Glibanovic has limited

transferrable skills and that based on his presentation at interview she would

not refer him for job vacancies as she would be '‘concerned he could injure

himself further which may also lead to absenteeism and loss of production’.

41 In her report dated 16 April 2015, she noted that Mr Glibanovic told her that he

could sit and stand for 15-20 minutes before having to alter his posture

because of pain, that he could walk for a reasonable distance at a slow pace

on flat terrain providing he could take a rest break and that he is restricted in

bending, twisting and lifting activities. He also told her that he could drive for

16 DECISION

up to one hour before resting and is restricted in his daily living activities. Ms

Webster stated that as a recruiter she would recommend that Mr Glibanovic

would need to be retrained to be considered a commercially viable candidate

for office work or an alternative vocation.

Expert Medical Opinion

42 Mr Brearley assessed Mr Glibanovic on behalf of his lawyers on 8 September

2011, 6 September 2013 and 15 April 2015. In his initial report, Mr Brearley

obtained a history from Mr Glibanovic that he did not experience any

symptoms whilst performing the tasks on 5 February 2009 but the following

day experienced pain in the lower back, right hip and right knee. Mr Brearley

noted that Mr Glibanovic underwent an arthroscopic meniscectomy on his

right knee which was performed by Mr Love on 5 August 2009 and that he

was subsequently referred to Mr Carey in June 2010 who arranged for an MRI

to be performed which showed multilevel degenerative changes in his

thoraco-lumbar spine. Mr Brearley diagnosed that as a result of the work

activities on 5 February 2009, Mr Glibanovic aggravated a pre-existing

degenerative disc disease in his spine, suffered a tear of the medial meniscus

in his right knee and that the pain he experienced in his right hip was referred

pain from his lower back injury.

43 In his report dated 6 September 2013, Mr Brearley noted that on 14 August

2013 Mr Glibanovic underwent arthroscopic debridement of the left hip

performed by Mr Patten. Mr Brearley reported that the operation note

indicated that there was considerable degenerative change of the acetabular

surface and there was a loose body which was removed together with

articular changes over the femoral head and a small cam lesion which was

resected. Mr Brearley also noted that in February 2013 Mr Glibanovic had a

pituitary tumour removed by Prof Kaye and had been diagnosed with acro

megaly secondary to a macro adenoma associated with hypopituitarism. Mr

Glibanovic also told Mr Brearley that his weight increased from 120 kg to 180

17 DECISION

kg due to the acromegaly.

44 In his final report dated 15 April 2015, Mr Brearley noted that Mr Glibanovic

underwent a left total hip replacement by Mr Patten in February 2014 and Mr

Glibanovic reported that he was experiencing more pain on the right hip due

to putting more strain on it as a consequence of the surgery. Mr Glibanovic

also told him that he was continuing to experience serious low back pain

although there was some improvement in his right knee condition. He also told

Mr Brearley that he felt he could do some very light work, probably clerical but

that he would be totally unreliable because he experienced episodic pain and

was unable to predict when it would occur. Mr Glibanovic told Mr Brearley that

he was prescribed OxyContin 20 mg twice daily, Lyrica 150 mg twice daily,

Mobic 7.5 mg, 2 Panadol Osteo twice daily, and Topiramate 25mg twice daily,

which is prescribed for neuropathic pain.

45 On examination, Mr Brearley reported that Mr Glibanovic’s movements in

relation to his left hip joint were close to normal, there was a slight restriction

of movement in all directions in relation to his right hip joint and back and that

he had a full range of movement in relation to the right knee joint. Mr Brearley

confirmed his previous diagnosis concerning Mr Glibanovic’s back injury and

recommended that he have ongoing conservative treatment with medication

and physiotherapy.

46 Mr Brearley opined that in relation to the back injury he could possibly do

some very light work but considered that there was no realistic possibility of

him obtaining suitable employment. He did not consider that Mr Glibanovic

required further treatment for his right knee injury and noted that Mr

Glibanovic complained of increasing pain in the right hip with x-rays indicating

osteoarthritis which may lead to a total hip joint replacement. Whilst opining

that Mr Glibanovic did not sustain a specific injury to his left hip on 5 February

2009, he stated that it was probable that because of his right hip symptoms he

did put more strain on the left hip and his increased weight would have put

18 DECISION

further strain on his left hip.

47 Professor Bittar, Consultant Neurosurgeon assessed Mr Glibanovic for his

lawyers on 28 March 2012 in relation to the back injuries sustained on 5

February 2009. He obtained a history from Mr Glibanovic that the morning

after 5 February he experienced pain in his right groin and hip radiating into

his right leg with his back pain commencing shortly thereafter and

deteriorating over the following week. He diagnosed him as suffering from an

aggravation of lumbar spondylosis.

48 Associate Professor Myers examined Mr Glibanovic for his lawyers on 28

August 2013 and 2 March 2015. He also obtained a history of pain

commencing the day after 5 February 2009 in the form of right knee and then

back and right hip pain. Mr Glibanovic told Associate Professor Myers that his

left hip was disintegrating which he attributed to a flare up of his previous

injury due to putting extra pressure on the left hip to protect his right hip. After

reviewing the medical reports provided to him, Associate Professor Myers

diagnosed that Mr Glibanovic aggravated a previously pre-existing

asymptomatic degenerative intervertebral disc disease and spondylitis in his

lumbar spine as a consequence of the work performed on 5 February 2009,

damaged the medial meniscus and aggravated pre-existing previously

asymptomatic osteoarthritis of his right knee and aggravated pre-existing

osteoarthritis of his right hip.

49 In his report dated 10 March 2015, Associate Professor Myers noted that Mr

Glibanovic had undergone a left hip joint replacement and subsequent

operations to clean up superficial infections. He also noted that he was

prescribed Mobic, Topiramate, Lyrica, Targin, Panadol osteo, Endep, Hydro

cortisone daily and medication for hypertension resulting from his acromegaly.

Mr Glibanovic told Associate Professor Myers he continues to suffer from

persistent pain in his back that goes “to and fro from one side to the other”. He

also said that the result of his left hip joint replacement was “fantastic though it

19 DECISION

is still troublesome with some pain but much better than it was and now

manageable”. In relation to his right hip he said that “it is giving me issues if I

take weight on it”. In relation to his lumbar spine, right knee, right hip injuries

and left hip condition, Associate Professor Myers expressed the opinion that

they restrict his everyday activities, enjoyment of life and capacity to perform

any work quite apart from any psychiatric or psychological consequence. He

also expressed the opinion that the work duties performed by Mr Glibanovic

on 5 February 2009 aggravated a pre-existing, previously asymptomatic

degenerative osteoarthritis condition of his left hip which would also prevent

him from returning to any full-time or part-time work.

50 Mr Moran, Orthopaedic Surgeon assessed Mr Glibanovic on behalf of his

lawyers on 4 November 2016. Mr Glibanovic told Mr Moran that his back pain

was present most of the time and that his back movements are restricted, that

he has right hip pain which is present most of the time and his hip movements

are restricted but he only has a little bit of right knee pain with normal

movements. He also told Mr Moran that he has intermittent left hip pain and

his left hip movements were good. Mr Moran obtained a history of current

medication intake and noted on examination that Mr Glibanovic is 185 cm tall

and weighs 150 kg.

51 Mr Moran diagnosed that he aggravated an osteoarthritic condition of his right

hip, sustained a tear of the medial meniscus of his right knee and damaged

the articular cartilage of the medial femoral condyle of his right knee and

aggravated a degenerative disease condition of his lumbar sacral spine as a

consequence of the work duties performed on 5 February 2009 Mr Moran

anticipates that Mr Glibanovic will require right hip surgery in the future and is

likely to develop osteoarthritis of his right knee which may require surgery. In

his opinion, Mr Glibanovic is unfit for any form of employment.

52 Dr Nathar, Consultant Psychiatrist assessed Mr Glibanovic on behalf of his

lawyers on 8 November 2011, 13 August 2013, 14 May 2015 and 8 November

20 DECISION

2016. Dr Nathar noted that Mr Glibanovic developed Major Depression and a

Post-Traumatic Stress Disorder following the injury to his right hand in 1997

for which he received psychiatric treatment and was prescribed

antidepressant medication. Dr Nathar stated that in his opinion the injuries

sustained on 5 February 2009 aggravated his underlying major depressive

illness.

53 In August 2013, Mr Glibanovic told Dr Nathar that emotionally he was under

severe financial stress and would have to sell (his rental properties) as he

failed the assets test (to obtain the disability support pension). He told Dr

Nathar that he was the Manager of the local Mosque and he would use prayer

to calm himself and was not receiving psychological or psychiatric treatment.

Dr Nathar expressed the opinion that Mr Glibanovic’s prognosis was poor, he

had become demoralised, he had been unsuccessful in finding an alternative

vocation and was facing severe financial difficulty. He considered Mr

Glibanovic to be totally and permanently incapacitated for all employment as a

consequence of his pain syndrome and associated psychological problems.

54 On 14 May 2015, Mr Glibanovic told Dr Nathar that he was able to tend to his

animals on the farm, could walk without difficulty, perform some domestic

chores and provide help at the Mosque. He also told Dr Nathar that he was

receiving rent from his 2 shops and was also receiving a Carer’s benefit from

Centrelink in relation to the care of his mother and autistic son. He told Dr

Nathar that “daily life is a struggle”. Dr Nathar opined that Mr Glibanovic

continued to suffer from a chronic adjustment disorder with anxiety and

depressed mood as well as a chronic pain syndrome where psychological

factors were amplifying his physical problems. Dr Nathar noted that Mr

Glibanovic had memory and concentration difficulties, tired easily, had a

negative attitude and was demoralised with all of his problems.

55 In his latest report dated 10 November 2016, Dr Nathar noted that Mr

Glibanovic continued to complain of pain in his low back, right leg and right hip

21 DECISION

and said that his left hip was better and his right knee condition had improved.

He also complained of experiencing sleep difficulties and became depressed

and angry. Dr Nathar recorded his current medication regime as consisting of;

150 mg of Lyrica (pain modulator), 7.5 mg of Mobic (anti-inflammatory), 25 mg

of Topiramate (analgesic), 20 mg of Hysone (steroid replacement due to

acromegaly), 10 mg Endep (hypnotic, mild antidepressant and pain

modulator), 80 mg Telmisatan (hypotensive), 40 mg Nexium (for reflux), iron

tablets (iron deficiency), 30 mg Duloxetine (antidepressant medication) and

Panadeine (analgesic).

56 Dr Nathar remained of the opinion that Mr Glibanovic suffers from a chronic

adjustment disorder with anxious and depressed mood (or a major depressive

disorder) and a chronic pain syndrome of moderate severity. Dr Nathar noted

that Mr Glibanovic had recently been referred for psychiatric treatment and

commenced taking antidepressant medication. He doubted that there would

be any improvement in the future due to the chronicity of his physical

problems.

57 The defendant tendered medical reports from Mr Hooper dated 15 March

2009, Mr Kendall Francis dated 27 May 2009 and Professor Marshall dated

16 December 2010. Their opinions do not assist in determining the issues

based on the date of their assessments.

58 The defendant tendered medical reports from Mr Dooley who assessed Mr

Glibanovic on 17 October 2013, 17 April 2015, and 9 March 2016. In his first

report, Mr Dooley noted that Mr Glibanovic was of a large build and

moderately overweight. He also noted that when he was reviewed by Mr

Carey in June 2010 it was reported that he had large feet and a left large hand

and in combination with his facial appearance, a diagnosis of acromegaly was

suggested. Mr Dooley opined that with the aid of hindsight, it was evident that

Mr Glibanovic had acromegaly which was long-standing. He stated that

patients with acromegaly are predisposed to osteoarthritis of their lower limb

22 DECISION

joints.

59 Mr Dooley opined that as a result of the work performed by Mr Glibanovic on 5

February 2009, he either sustained tearing within a degenerative medial

meniscus or aggravated tearing that had already occurred within a

degenerating medial meniscus. He was also of the opinion that Mr Glibanovic

aggravated an underlying naturally occurring degenerative disc disease of the

lumbar spine which would account for intermittent low back pain and pain

referred into the buttock and groin regions. He noted that Mr Glibanovic may

have developing osteoarthritis of both hip joints which was naturally occurring

and probably a consequence of his acromegaly.

60 Mr Dooley was of the opinion that Mr Glibanovic did not injure his right hip

joint and that the subsequent surgery performed on his left hip does not

directly or indirectly relate to the work activities performed on 5 February

2009. In his opinion, Mr Glibanovic had the physical capacity to carry out light

physical work and clerical duties.

61 In his second report dated 20 May 2015, Mr Dooley noted that Mr Glibanovic

had undergone a total left hip replacement operation in January 2014 which

was complicated by post-operative infection. He obtained a history from Mr

Glibanovic that he was still experiencing pain in the upper hamstring, buttock,

right knee and back and was prescribed various medications including Targin,

Lyrica, Topiramate, Panadol Osteo, Endep and Mobic.

62 Mr Dooley remained of the view that Mr Glibanovic sustained a soft tissue

injury to his right knee and lumbar spine and aggravated degenerative tearing

of the medial meniscus of his right knee. He stated that the soft tissue injury to

his lumbar spine involves some aggravation of naturally occurring

degenerative disc disease of the low lumbar spine which accounts for the

intermittent low back pain and some pain in the buttocks and thighs.

63 Mr Dooley remained of the view that the left hip surgery was carried out on the

23 DECISION

basis of naturally occurring osteoarthritis. He further noted that acromegaly

exists where there is an excess of growth hormone which is usually due to a

benign adenoma of the pituitary gland which most commonly presents in

people between the ages of their mid-20s and early 40s. He stated that the

excess of growth hormone results in an increase in the size of bones that

grow by membranous ossification, e.g. facial and skull bones. He noted that

patients with this condition can develop thickening of the digits in the hands

and feet and the condition can lead to development of cardiac failure and

diabetes. Mr Dooley reported that patients with this condition are at risk of

developing osteoarthritis of the lower limb joints as a consequence of

thickening of the articular cartilage that occurs within the excess of growth

hormone.

64 In his final report dated 15 March 2016, Mr Dooley noted that Mr Glibanovic

had slowly deteriorated and continued to complain of constant and ongoing

low back pain and pain in his groins and both thighs. Mr Glibanovic told him

that he experiences pain with activity that involves him leaning forward

slightly, notices pain in his right knee both of which make it difficult for him to

engage in household chores and experiences difficulty with his left hand

secondary to carpal tunnel syndrome. Mr Glibanovic told Mr Dooley that as

WorkCover ceased paying for his medication he had reduced his medication

intake.

65 Mr Dooley remained of the opinion that Mr Glibanovic sustained soft tissue

injuries to his lumbar spine and aggravated an underlying degenerative

tearing of the medial meniscus of his right knee. He opined that the injury to

the lumbar spine involved some aggravation of underlying naturally occurring

degenerative disc disease which accounts for his ongoing intermittent low

back pain and pain that he experiences in the groins and thighs. He noted that

on clinical examination, there was no evidence of objective neurological deficit

affecting the lower limbs and previous MRI scanning did not show evidence of

24 DECISION

a major disc prolapse or nerve root entrapment. He recommends that Mr

Glibanovic remain active, undertake low impact exercise and modify his

activities in relation to lifting, bending and manoeuvring. Mr Dooley remained

of the opinion that Mr Glibanovic’s left hip condition is due to osteoarthritis of

the left hip joint and is either naturally occurring or has occurred as a result of

his acromegaly. He does not believe that it was caused by the work episode

on 5 February 2009 or by his work in general.

66 In relation to the suggested suitable employments, Mr Dooley opined that from

an orthopaedic viewpoint Mr Glibanovic would have a physical capacity to

work as a Clerk or Community Support Worker in relation to his back, right

knee and hip conditions but would not be able to work as a storeman. He

noted that given his overall presentation he would struggle to be gainfully

employed.

67 Associate Professor Love assessed Mr Glibanovic on behalf of Xchanging

on 25 February 2015. He had previously treated Mr Glibanovic and operated

on his right knee in 2009. Mr Glibanovic told Associate Professor Love that he

was suffering from intense low back pain but his right knee and left hip were

not troubling him greatly. Associate Professor Love considered Mr Glibanovic

to be a chronic invalid and that in order for him to regain some functional

capacity he would need to lose weight and suggested that he undergo a

gastric reduction procedure. He diagnosed him as suffering degenerative disc

disease and early degeneration in his right knee and could not see him

returning to any work in the foreseeable future.

68 Mr Jones, Orthopaedic Surgeon assessed Mr Glibanovic on behalf of the

defendant’s lawyers on 5 May 2015. Mr Jones noted that Mr Glibanovic

underwent lap band surgery in 2011 which resulted in him losing 20 kg in

weight to his current level of 150 kg. Mr Glibanovic told Mr Jones that his right

knee was “not bad” but that he experiences constant and varying low back

pain which extends to his left and right groins and thigh regions which restricts

25 DECISION

walking and standing to between 10 and 20 minutes and sitting for about one

hour. After conducting an examination and referring to the various medical

reports and radiological reports provided, Mr Jones opined that Mr Glibanovic

has seemingly recovered from what appears to have been a minor

aggravation to a likely mildly degenerative condition affecting his lumbar spine

and has substantially recovered from the effects of his right knee injury.

69 The defendant attended a report from Dr Yong, Specialist Occupational

Physician dated 9 January 2017. Dr Yong was provided with all medical

reports referred to including the nabenet reports. Mr Glibanovic told Dr Yong

that his predominant symptoms are pain in his low back with occasional

shooting pain down his legs. He also said that he suffers occasional urinary

and faecal incontinence and still experiences discomfort in his left hip and

right hip but his right knee is “generally better now”.

70 Mr Glibanovic told Dr Yong that his current medication intake included; 150

mg Lyrica twice a day, 4 to 8 Panadeine tablets per day, 2 Endep tablets at

night, 50 mg of Topamax twice a day, 7.5 mg of Mobic and 10 mg of

Cortisone twice a day. He also told Dr Yong that he can; drive his children to

school, drive to the chemist, make lunch, tend to his vegetable patch, fish

from a jetty, make coffee, shop with his children and operate the washing

machine. He said that he varies his posture every 30 minutes between sitting

and standing, avoids prolonged walking and can drive to Melbourne if he has

rest breaks.

71 Dr Yong reported that Mr Glibanovic is morbidly obese as he weighs 145 kg

with a body mass index of 42. Dr Yong reported that Mr Glibanovic has an

aggravation of a degenerative lumbar spine, a treated right knee meniscal

tear, a left hip degenerative condition which required a total hip replacement

with some left hip dysfunction and a right hip degenerative condition. Mr

Glibanovic denied undertaking any voluntary work and in relation to his carers

duties, he told Dr Yong that he supervises his 10-year-old autistic son to

26 DECISION

ensure that he does not wander and that prior to the very recent death of his

mother he was overseeing her medication intake and providing general

supervision of her.

72 Dr Yong considered that Mr Glibanovic’s physical tolerances to be; sitting 30

minutes, avoid prolonged walking, avoid kneeling tasks, driving up to 45

minutes and avoid lifting more than 4 kg on a repetitive basis. In relation to his

back condition, Dr Yong suggests that Mr Glibanovic participate in an activity

based recovery program on a graduated basis which should include a range

of active physical therapy modalities which include an exercise program,

swimming sessions and walking programs.

73 Dr Yong considered Mr Glibanovic to be unfit for his pre-injury duties but has

a capacity for work with the following restrictions;

• avoid repetitive bending and twisting of the back;

avoid repetitive firm pushing or pulling;

vary posture regularly between sitting, standing and walking;

avoid lifting more than 4 kg on a repetitive basis;

an initial reduction in working hours.

74 In relation to the suggested suitable employments, Dr Yong opined that Mr

Glibanovic would not have the capacity to work as a Store person but would

have the capacity to work as a Purchasing and Supply Logistics Clerk,

General Clerk, Inquiry Clerk and possibly a Community Support Worker. He

made the following analysis of each suggested suitable employment:

Purchasing and Supply Logistics Clerk: this describes performing tasks in an

office based environment attached to a warehouse. This would involve a

range of administrative tasks, including computer-based tasks. This role

complies with the recommended restrictions, and thus would be considered

27 DECISION

suitable to perform.

General Clerk: this describes recording, preparing, sorting, classifying and

filing information, sorting, opening and sending mail, photocopying and faxing

documents, issuing of equipment to staff, receiving letters and telephone

messages, doing computer-based duties, to provide customers information

about various services and may require reception duties. Dr Jong considers

that this role complies with the recommended restrictions and would be

considered suitable for Mr Glibanovic to perform.

Inquiry Clerk: this has similar physical requirements of an administration

officer. In his opinion, this role complies with the recommended restrictions,

and would be suitable for Mr Glibanovic to perform.

Community Support Worker: this requires assessing clients’ needs and

planning and developing and implementing education, training support

programs. It involves interviewing clients and assessing the nature and extent

of difficulties, monitoring and reporting the progress of clients, referring clients

to agencies that can provide initial help, assessing community needs and

resources for health, welfare, housing, employment, training and other

facilities and services, liaising with community groups, supporting families and

providing education and care for children and disabled persons in units, group

housing and government institutions and may involve doing a range of office

administration -type tasks. There may be a requirement to provide hands-on

care for children and disabled persons and assisting with personal care tasks.

Dr Jong noted that these duties may exceed the current restrictions and

therefore the role would require individual assessment.

Conclusion

75 The defendant does not dispute that Mr Glibanovic continues to experience

symptoms and disability resulting from the injury sustained to his back and

right knee on 5 February 2009. The defendant asserts that these injuries do

28 DECISION

not result in him having ‘no current work capacity which is likely to last

indefinitely’. The defendant submitted that Mr Glibanovic has the capacity to

return to work in the suggested suitable employments as a Purchasing and

Supply Logistics Clerk, Inquiry/General Clerk or as a Community Support

Worker. Should the court make such a finding, the defendant submits that S

99(14) applies and Mr Glibanovic has no ongoing entitlement to payment of

reasonable medical and like expenses. The defendant also contends that the

claimed ongoing condition of the left hip is no longer contributed to by the

injury sustained on 5 February 2009.

76 In general, I found Mr Glibanovic to be an honest and credible witness

notwithstanding that I considered him to downplay the extent of his role in the

Mosque and his failure to inform all doctors that despite his symptoms and

physical restrictions he has been able to travel overseas and interstate in

recent years.

77 I accept his evidence as being truthful that he continues to experience

fluctuating levels of pain in his low back which extend to his left and right

groins and legs and occasional discomfort in his right knee. I find that as a

consequence he is restricted in performing physical tasks. His discomfort was

noticeable during the hearing because when he gave evidence over a period

of 3.5 hours he had to regularly change his posture regularly and alternate

between sitting and standing.

78 Mr Glibanovic is an intelligent man who is articulate and literate as

demonstrated by his role as Secretary of the Islamic Society of Gippsland and

the interviews he gave on ABC radio and to the Latrobe Valley Express

newspaper. The evidence also revealed he had previously stood for a seat in

State Parliament in the 2006 election and was able to manage a not

insignificant investment portfolio which he acquired following the common law

settlement for the right hand injuries sustained by him in 1997.

29 DECISION

79 Mr Glibanovic suffers from a multitude of medical problems, some of which do

not relate to his employment with the defendant. These include his pre-

existing right hand amputation injuries, hypertension, acromegaly and the

removal of a pituitary tumour in 2013. The significance of his right hand injury

and the limitations it imposes cannot be disregarded when considering his

capacity for employment. The law is quite clear that an employer must take a

worker as it finds him or her not only in relation to his or her physical

condition, but also in relation to the various factors set out in the definition of

‘suitable employment’ contained in S 5 of the Act.1 These include; the nature

of his pre-injury employment; his age, education, skills, work experience and

his place of residence.

80 The general consensus of the medical experts is to the effect that Mr

Glibanovic aggravated an underlying degenerative condition of his lumbar

spine as a consequence of the work performed by him in the course of his

employment with the defendant on 5 February 2009. There is also consensus

that he tore the medial meniscus of his right knee as a consequence of the

work performed by him on that date. Associate Prof Myers and Associate Prof

Love are also of the opinion that he aggravated an underlying osteoarthritic

condition of his right knee as a consequence of the work performed by him on

5 February 2009. Mr Moran is of the opinion that he may develop

osteoarthritis of the right knee which may require surgery. Dr Nathar, being

the only psychiatric opinion placed before the court, considers Mr Glibanovic

to be totally and permanently incapacitated as a consequence of his

psychiatric state. The court would have been assisted by hearing evidence

from Dr Winfield, his treating psychologist. The decision not to call him or

tender a report from him is somewhat curious. Nevertheless, the reports of Dr

Nathar were tendered by consent and he was not required for cross

examination by the defendant. Accordingly, I accept his opinion as being valid

1 See Dumancic v GIO & JWL Constructions Supreme Court Unreported 4 March 1998, McPeake v D&F Bell

[2006] VCC 318 Bowman J.

30 DECISION

having noted that he assessed Mr Glibanovic on 4 occasions over a 5 year

period.

81 The issue of causation in relation to his left hip is more contentious. Mr

Brearley is of the opinion that Mr Glibanovic probably put more strain on his

left hip because of his right hip condition and his significant weight increase.

Associate Prof Myers and Dr Yong considered that Mr Glibanovic aggravated

the pre-existing underlying osteoarthritic condition of the left hip as a

consequence of the work duties. Mr Dooley, however is of the opinion that the

underlying osteoarthritic condition of both hips is due to Mr Glibanovic’s long-

standing condition of acromegaly and is not work-related. Although he initially

expressed his opinion in a report to the defendant’s solicitors dated 15

January 2014, Xchanging previously accepted liability for arthroscopic surgery

to the left hip and then a left hip replacement operation which occurred on 14

January 2014.

82 After considering the medical evidence, I find that it is more likely than not that

Mr Glibanovic suffered an aggravation of the underlying osteoarthritic

condition of his hips as a consequence of the work performed by him on 5

February 2009, which was temporary in nature and which has been

compounded by him favouring his left side due to right sided pain and the

massive increase in his weight over the years due to inactivity.

83 I also find that Mr Glibanovic continues to suffer from varying levels of low

back pain and occasional right knee pain which requires daily medication. I

accept that he does have good and bad days depending on the level of pain

and restriction. I also find that his condition has deteriorated since his access

to ongoing medical treatment was terminated on 30 April 2015.

84 Mr Glibanovic was able to return to modified duties after sustaining injury on 5

February 2009. These duties were restricted to console duties where he was

able to sit or stand at will and take rest breaks when needed but ultimately his

31 DECISION

condition caused him to stop work altogether in August 2010. He also

demonstrated his willingness to return to work in suitable employment by

engaging with nabenet and unsuccessfully applying for suitable employment

positions in 2010 and 2011.

85 The defendant suggests that Mr Glibanovic has a capacity to return to work as

a Purchasing and Logistics Clerk. General/Inquiry Clerk or Community

Support Worker. In support of its submission, it relies on the medical opinions

of Mr Dooley and Dr Yong and the opinions expressed in the nabenet reports.

It also relies on the evidence of Mr Glibanovic that he had previously

considered himself fit for suitable work and had in fact applied for a number of

jobs. It is not disputed by the defendant that it carries an evidentiary onus to

demonstrate that suitable employment exists.

86 In determining this issue, I have had regard to the medical and vocational

evidence tendered including what is alleged to be the tasks that are required

to be undertaken in each of the suggested suitable employments and the

factors referred to in the definition of ‘suitable employment’ as contained in S

5(1) of the Act.

87 It is of some importance that the suggested suitable employments were

identified in 2010 some 15 months after Mr Glibanovic sustained injury, at a

time when Dr Kee certified him as fit for suitable duties and a time when he

was endeavouring to return to work with the defendant on a return to work

plan. The suggested suitable employments and the tasks required as

described by Ms Allemand and more recently Dr Yong are generic in nature

and in my opinion, do not provide any practical and realistic content to the

positions described. As I stated in Manthopoulos v Spencwill Nominees Pty

Ltd on 26 April 20122, “the suggested jobs do not, in any great detail, describe

the precise physical activities required, the inherent requirements of the job,

the duration of each duty, the number of hours required to be worked, the

2 [2012] VMC 15 para 52.

32 DECISION

skills required or training involved and the flexibility allowed to cater for

individual needs. There is no “degree of realism“ in the suggested ‘suitable

employment’ alternatives”. More recently, the Court of Appeal in the matter of

Richter v Driscoll & Ors3 noted that the duties upon which a Medical Panel

based its opinion were a generic description of activities which were required

by different jobs falling within the job title ‘light process/production worker’.

88 In relation to the definition of ‘no current work capacity’ the court held that the

definition required consideration of a worker’s capacity to return to work in

employment in a ‘meaningful way’, as a settled member of the workforce.4 The

court held that if the Panel was to conclude that Ms Richter ‘had an ability to

engage in employment which required one or more of the duties described’ it

‘was required to give some practical content to the job involved, in order that

its conclusion was capable of being examined’. In other words, the duties

were described in generic terms and to simply ‘accept and act upon the

characterisation that the physical demands of those duties were light to

medium was a lesson in obscurity’. Additionally, without an exposition of

duties involved in some job that fell within the broad job title, it was also not

possible to determine whether a job fitting the description was available when

regard was had to Ms Richter’s place of residence.

89 Similarly, the descriptions of the suggested ‘suitable employments’ given by

both Ms Allemand in her report dated 28 May 2010 and Dr Jong in his report

dated 9 January 2017, do not address the issues raised in both cases and

therefore lack evidentiary value.

90 I find that the opinions of Mr Dooley and Dr Jong on the issue of Mr

Glibanovic’s capacity to be unsound as the specific tasks of the suggested

‘suitable employments’ which they have based their opinions have not been

properly and fully analysed. The description of each of the suggested ‘suitable

3 [2016] VSCA 457.

4 Paras 74-75.

33 DECISION

employments’ do not specify the inherent requirements of the job, including;

the hours of work; whether any of the tasks require repetitive bending or

lifting, If so, the weights involved, whether the objects are required to be lifted

from waist height, knee height or from the ground, which tasks can be

performed from a seated or standing position and whether Mr Glibanovic is

permitted to take regular rest breaks as needed. Furthermore, the nabenet

reports did not identify an actual job which was said to be suitable, but rather

a generic description of jobs and what was asserted to be the general tasks

involved in those jobs.

91 It is also of importance that the opinions of both Mr Dooley and Dr Jong are

based on the physical capacity of Mr Glibanovic to perform the generic tasks

of the suggested suitable employments without regard to his psychiatric

condition and capacity. Mr Dooley did note that Mr Glibanovic’s psychological

condition is influencing his symptoms and that on presentation he considers

that Mr Glibanovic would struggle to be gainfully employed.

92 Furthermore, the nabenet report is outdated, having been written nearly 7

years ago, 15 months after Mr Glibanovic sustained injury and at a time when

he was certified fit for suitable duties. His condition has deteriorated since

then, his medication increased, he has been certified as unfit for all work and

has been diagnosed as suffering from a chronic adjustment disorder with

anxious and depressed mood (or a major depressive disorder) and a chronic

pain syndrome of moderate severity. He has also more recently been referred

for psychiatric treatment and is taking antidepressant medication. I do not

consider that he could reliably present for employment based on his current

physical symptoms, his depressive condition and his current medication

intake. His medication regime includes a number of medications with well

recognised side effects including; drowsiness, shortness of breath, nausea,

tiredness and insomnia.

93 After considering these factors and the matters referred to in the definition of

34 DECISION

‘suitable employment’ contained in S 5, namely; the nature of his pre-injury

employment, his age, work experience and place of residence (Yallourn Nth),

Mr Glibanovic does not have the physical or psychiatric capacity to return to

work in his pre-injury employment or suitable employment.

94 For the above reasons, I am satisfied that Mr Glibanovic has ‘no current work

capacity’ which is likely to last indefinitely. I am satisfied that he requires

ongoing medical treatment in the form of medication, massage and

physiotherapy to relieve his symptoms together with ongoing

psychological/psychiatric counselling.

95 Accordingly, Mr Glibanovic is entitled to weekly payments of compensation

from 3 September 2011 and reasonable medical and the like expenses from

30 April 2015 in accordance with the provisions of the Act.