Arbuckle and Comcare
[2005] AATA 820
•25 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 820
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/492
GENERAL ADMINISTRATIVE DIVISION ) Re ASHLEY ARBUCKLE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr P. Staer, Member
Date 25 August 2005
PlacePerth
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that the Applicant is able to earn $825 per week in suitable employment.
The matter is remitted to the Respondent to calculate the Applicant’s entitlement to compensation payments for incapacity in accordance with these reasons.The Respondent is to pay the Applicant’s cost of these proceedings as agreed or taxed.
.............(sgd S Webb).............
Mr S. Webb, Presiding Member
CATCHWORDS
COMPENSATION – injury – liability accepted for focal regional dystonia – partial incapacity – suitable employment – meaning of permanent employee - able to earn – self employment – employment without direct payment – direction of fees and earnings to non arm’s length corporate and business entities – value of labour – weekly amounts – decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 9, 19, 20, 21, 21A, 67
Lees v Comcare (1999) 29 AAR 350
Pelgrave v Comcare [2002] 36 AAR 1
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Pulitano v Telstra Corporation Ltd (1998) 50 ALD 1015
Jones v Dunkel (1959) 101 CLR 298
Re MacFarlane and Comcare (1998) 58 ALD 304
Re West and Comcare (1994) AATA 9320
Re Woolf and Comcare (1995) AATA 10362
Telstra Corporation Ltd v Slater (2001) FCA 149
Esam v ASP Ship Management (1998) 87 FCR 82
Martin v Australian Postal Corporation (2000) 32 AAR 199
Comcare v Woodbridge (1996) FCA 84
Cage Developments Pty Ltd v Schubert (1983) 151 CLR 584
REASONS FOR DECISION
25 August 2005 Mr S. Webb, Member
Dr P. Staer, Member1. By this application Ashley Arbuckle (“Applicant”) is seeking review of a reviewable decision made by Comcare (“Respondent”) whereby the rate of his compensation payments for incapacity were reduced to nil.
2. The matter came on for hearing in Perth on 20-25 June 2005. Mr J. Criddle, counsel, represented the Applicant. Mr J. Lenczner, counsel, represented the Respondent. The Applicant, Mr D. Daniels, Mr G. Wood, Dr S. Clarke and Ms D. Campbell gave oral evidence. The Tribunal had before it documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Materials were tendered and labelled during the hearing.
3. During the hearing the Respondent was directed to obtain and tender within 14 days additional factual information from Ms Campbell concerning labour market information, including rates of pay, in relation to employment as a small retail store manager. That additional information is labelled Exhibit R26.
FACTUAL CONTEXT
4. The following information is not in dispute between the parties and arises from the materials before the Tribunal.
5. The Applicant was born on 20 March 1943. He is 62 years of age.
6. The Applicant is left hand dominant, but uses his right arm when bowing a violin.
7. The Applicant holds a Bachelor of Music (Composition) (University of Western Australia), having graduated in 1966. He also holds licentiates in performance from Trinity College (London) and the Australian Society for Music Education.
8. In or about 1967 the Applicant was employed by the Western Australia Symphony Orchestra (“WASO”) as a rank and file violinist. The Applicant had a successful career in the WASO and, in or about 1982, he moved to London to take up an appointment with the London Philharmonic Orchestra. Subsequently he was employed as Co-leader of the London Symphony Orchestra. He returned to Australia in 1990 to take up an appointment as Concert Master of the WASO.
9. On or about 5 June 1997 the Applicant experienced “pain whilst playing” in his right shoulder (T4).
10. The Applicant obtained treatment for these symptoms by Professor S. Gubbay on and after 29 December 1997 (T27). A diagnosis of focal dystonia was confirmed by Dr P. Silbert on or about 25 March 1998 (T7). Unfortunately for the Applicant the treatment he obtained was only partially effective in reducing the symptoms. Ultimately the Applicant’s focal dystonia rendered him incapable of performing his duties as Concert Master of the WASO.
11. On 17 June 1998 the Applicant lodged a claim for compensation in relation to periods of incapacity for work from 5 June 1997 as a result of focal dystonia (T12 and T13). The condition was accepted as a work-caused injury on 17 August 1998 (T32). The date of injury was said to be 29 December 1997 (T33).
12. On 13 August 1999 the Applicant’s employment in the position of Concert Master with the WASO ceased (T105) on the expiration of his (then) contract of employment (Exhibit A2).
13. On 23 November 2001 Comcare purportedly determined to cease all liability for the Applicant’s injury and, it appears, ceased incapacity payments from 19 November 2001 (T142). That determination was subsequently set aside in a reconsideration decision dated 26 June 2002 (T155).
14. On 25 June 2002 Comcare determined that the Applicant was able to earn $1,200 in suitable employment as a music teacher and calculated that compensation for incapacity was payable at the rate of $281.06 per week (T153).
15. On 30 July 2002 in an own motion reconsideration of the 25 June 2002 determination, Comcare decided that the calculation of the Applicant’s incapacity payments was incorrect and, on the basis of an adjustment percentage, recalculated the rate of those payments to be nil (T158). The date from which that reconsideration decision applied is unclear as the primary determination did not specify a date to which it applied. However the reconsideration decision makes reference to 23 October 2001 and it appears that the Applicant’s incapacity payments were ceased on 19 November 2001. We note the document at T129. Counsel for the Respondent was unable to assist the Tribunal on this point. It will be necessary for the Respondent to ascertain the date from which the own motion reconsideration decision applied (that is the date on which the Applicant’s incapacity payments were reduced to nil) when this matter is remitted, with liberty to apply, for the purpose of calculating compensation payments that are payable to the Applicant as a result of this decision.
16. On 9 August 2002 the Applicant requested reconsideration of the own motion reconsideration decision (T161). On 18 September 2002 Comcare declined that request (T161).
17. On 13 December 2002 the Applicant lodged an application for review of that decision by this Tribunal.
issues for determination
18. The parties are agreed and informed the Tribunal at the outset of the hearing that there is no threshold issue of liability nor is the amount of the Applicant’s normal weekly earnings, as determined from time to time by the Respondent, before the Tribunal in these proceedings. Subsequent efforts to agitate these issues were rejected by the Tribunal for want of jurisdiction as hitherto neither issue was considered in the primary determination or the reviewable decision in these proceedings (see Lees v Comcare (1999) 29 AAR 350 at 359-360).
19. The matter before the Tribunal concerns the applicable rate of compensation payments for incapacity to which the Applicant is entitled in the period from the date on which the reviewable decision applied, on or about 19 November 2001, to the present date (“the relevant period’). There are, essentially, four issues to be decided:
(a)What is suitable employment for the Applicant?
(b)Is the Applicant presently able to earn in suitable employment and has he been so able during all or part of the relevant period?
(c)What is the weekly amount he is able to earn in such employment?
(d)As the Applicant has been incapacitated for work for more than 45 weeks, what is the correct adjustment percentage to apply, from time to time, during the relevant period?
20. The Tribunal notes that matters concerning the applicable adjustment percentage were not agitated in these proceedings and no submissions were made by either party in that regard. The Tribunal is guided by the matters placed in issue by the parties before it and will proceed to determine only those issues (see Pelgrave v Comcare [2002] 36 AAR 1). Nevertheless, submissions were made about the extent of the Applicant’s employment from time to time during the relevant period and factual findings will ensue. Applying the appropriate adjustment percentages will be a matter for the Respondent when calculating any compensation that is payable to the Applicant in accordance with these reasons on remittal of this decision for that purpose.
legislation and law
21. This matter rises under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Sections 19 to 21A concern compensation payments for incapacity in the particular circumstances of a claimant.
22. The substantive issue is the applicable rate of incapacity payments during the relevant period. That rate is to be worked out applying the formulae set out in the aforementioned sections. Specifically, in these proceedings, the subs 19(2) “NWE-AE” formula must be considered, whereby the amount of weekly compensation is to be calculated by subtracting the amount a claimant earns in employment or is able to earn in suitable employment (“the AE amount”) from his or her normal weekly earnings (“the NWE amount”).
23. In this case, as the Applicant has been incapacitated for work for more than 45 weeks, an adjustment percentage applies to the NWE amount pursuant to subs 19(3). The correct adjustment percentage is determined on the basis of the percentage of the claimant’s normal weekly hours that were spent in employment in any particular week.
24. The term ‘suitable employment’ is defined at subs 4(1) of the Act in the following terms:
“suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case—any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).”
25. As can be seen, it is necessary to determine whether the Applicant was a permanent employee of the Commonwealth or a licensed corporation on the day he was injured. The word ‘permanent’ is defined at subs 4(1) in the following terms:
“permanent means likely to continue indefinitely”.
26. In order to determine the amount the Applicant is able to earn in suitable employment it is necessary to have regard to the matters set out at subs 19(4) of the Act.
summary findings on material questions of fact
27. The Applicant is partially incapacitated for work as a result of his focal dystonia injury pursuant to subs 9(b) of the Act.
28. The Applicant was not a permanent employee of the Commonwealth on the date of his injury.
29. Suitable employment for the Applicant includes:
(a)Music event coordinator
(b)Music booking agent
(c)Small retail store manager
(d)Retail sales manager/assistant
30. The Applicant is able to earn in suitable employment. There are no medical restrictions on the number of hours per week the Applicant is able to work in suitable employment.
31. The Applicant has been in employment for at least 25 hours per week during each week in the relevant period.
32. Having regard to the factors set out at subs 19(4) of the Act, the Applicant is able to earn $825 per week during the relevant period. The applicable AE amount during each week of the relevant period is $825. For the purposes of calculating his entitlement to payment of compensation for incapacity, that weekly amount is to be deducted from the applicable NWE amount, and the relevant adjustment percentage is to be applied.
consideration of submissions and findings
33. In making this decision the Tribunal carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.
suitable employment
34. In order to determine what is suitable employment for the Applicant it is first necessary to determine whether the Applicant is within the terms of paragraph (a) or (b) of the meaning of the term “suitable employment” as defined at subs 4(1) of the Act. The Applicant will be within the terms of paragraph (a) if it is found that he was a permanent employee of the Australian Broadcasting Corporation (“ABC”), being a licensed corporation for present purposes, on the day on which he was deemed to be injured, and he did not subsequently terminate that employment. As will appear, we are satisfied that the Applicant was not a permanent employee of the ABC on the date of his injury, in which case paragraph (b) of the “suitable employment” definition applies.
35. During the hearing the parties sought a ruling on this point. The ruling given was in terms that are consistent with the following.
36. It is not in dispute that the date of the Applicant’s injury is 29 December 1997. Focal dystonia is a disease. Pursuant to subs 7(4) of the Act the date of the Applicant’s injury is the earliest date on which he either obtained medical treatment for the disease or was incapacitated for work by it. In this case the Applicant first suffered incapacity for work as a consequence of focal dystonia on 5 June 1997 (T4 and T12). On the evidence that is before us, the earliest date on which he obtained medical treatment was 29 December 1997 (T27).
37. On either date, the Applicant was an employee of the WASO. The WASO was, at that time, a department of the ABC. The relevant facts are as follows:
(a)the Applicant was employed under contract in or about August 1990 in the position of Concert Master. He entered into a contract of employment with a four year term with an option for extension (Exhibit A5).
(b)That option was exercised by contractual agreement in 1994 and the employment was extended for a further four year period, expiring in August 1998. In its terms the 1994 contract made no provision for extension of the employment (Exhibit A1).
(c)A third employment contract was entered into in August 1998 for the period of one year between the Applicant and West Australia Symphony Orchestra Holdings Pty Ltd (Exhibit A2). That contract expired on 19 August 1999, on which day the Applicant’s employment with the WASO ceased.
38. In the Applicant’s submission the 1990 and 1994 contracts were subject to the terms of the Musicians (ABC) Award 1985 (“Award”) (Exhibit R22). It was submitted that the position of Concert Master is not within the meaning of the terms “temporary” and “casual” pursuant to subclauses 6(b) to (d) of the Award, and must therefore be a permanent position within the meaning of the term “member of a regular unit” at subclause 6(a). As will appear we do not agree.
39. Following Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348, the critical question is what meaning can reasonably be attributed to the words of the 1994 contract between the Applicant and the ABC in all of the circumstances. We find that the position of Concert Master is a contract position within the WASO that is given meaning by definition at subclause 6(e) of the Award, and is distinguished from other positions within the WASO thereby. We are satisfied that the contracts of employment into which the Applicant entered in 1990 and 1994 were contracts for fixed term employment pursuant to subclause 10A(1) of the Award. Those contracts define the terms of the Applicant’s employment by the ABC and specify an end date to the employment. We note that the word “permanent” is defined at subs 4(1) of the Act to mean “likely to continue indefinitely”. We are compelled to conclude that the fixed contractual terms of the Applicant’s employment were not ‘likely to continue indefinitely’ and cannot, therefore, be construed to fall within the meaning of ‘permanent’ employment.
40. The existence of an option, at subclause 1(b) of the 1990 contract, whereby the ABC may extend the Applicant’s employment for a further term, does not disturb the fixed term nature of the employment. We find that terms dealing with the cessation of employment on completion in the 1990 and 1994 contracts, concerning the provision of air travel to the United Kingdom for example, indicate the intention of the parties to those contracts to enter into an employment agreement that was fixed in its terms and in its duration. That is perhaps not surprising given the leadership role and the high performance expectations attaching to the position of Concert Master. We accept the oral evidence of Mr Daniels in that regard.
41. It follows that the Applicant was not a permanent employee of the ABC on either 5 June 1997 or 29 December 1997 and we so find.
42. That being so, ‘suitable employment’ is not confined to employment by the ABC, or in the Commonwealth sphere more generally, but pertains to any employment having regard to the matters set out at sub-paragraphs (a)(i) to (iv) of the definition (Pulitano v Telstra Corporation Limited (1998) 50 ALD 1015).
43. It is to those matters we now turn. The position contended for by the Respondent was that the Applicant has high level music skills and knowledge that qualify him for employment in the fields of music teacher, music lecturer, music director and other music related occupations. In the Respondent’s submission, ‘suitable employment’ for the Applicant is also indicated by the work in which he has been engaged on his own account or on the account of business entities or ventures in which he has an interest or in which members of his family have an interest. Those entities and ventures include Al Fine Function Co-ordinators, Electriclassics, Perth Filmharmonic Partnership, Classic Music Promotions, Posh Picnics, Best of British Pops Concerts, the Balingup Classic Concerts, Concert on the Bay and other musical entertainment events, and the Swan Valley Cheese Company (“SVCC”), of which he was a director, and the Swan Valley Cheese factory or shop (“the Cheese business”). Such work, it was submitted, is equivalent to the occupations of Music Event Coordinator, Music Booking Agent, Small Retail Store Manager, Administration Assistant and Retail Sales Assistant.
44. The Applicant submitted, correctly in our opinion for the purposes of subs 4(1), that it is necessary to consider his age, the extent and transferability of his skills, his training and qualifications, his work experience, the extent of his incapacity consequent upon injury, any damage caused to his reputation by the charges and related actions that were raised against him by the Respondent, and the competitive state of the labour market. The Applicant contends that his ability to earn in employment is restricted to the “sheltered” work he has been undertaking for the SVCC and the Cheese business as a result of his age, incapacity, narrow skills base and lack of vocational retraining. As will appear, we do not agree.
45. It is necessary to deal with these submissions in some detail.
46. On the evidence before us, we are satisfied that teaching the violin is not suitable employment for the Applicant. The weight of the medical evidence is that the Applicant is prevented from playing the violin by his accepted work-caused injury (Dr S. Clarke, Professor Gubbay, Dr Silbert and Dr A. K. Lethlean). We note Dr Lethlean’s conclusion (T131 folio 175):
“[The Applicant] is totally and permanently incapacitated for work as a violinist. It is not likely that further injections … will improve his condition sufficiently for him to play the violin again professionally, whether in concert or as a teacher.”
47. We are satisfied that the symptoms of muscle spasm, stiffness and pain in the Applicant’s right arm render him partially incapacitated pursuant to subs 4(9)(b) of the Act and incapable, in any meaningful or professional sense, of performing or demonstrating a number of bowing techniques for the violin and so find. It may be that the Applicant has attempted to play the violin and has been able to do so in a constrained manner for up to two or three minutes at a time before the aforementioned symptoms prevent him from continuing, and we accept his evidence in that regard. However, it does not follow that such restricted playing ability is consistent with the ability to demonstrate violin playing or bowing techniques to students in any professional sense. We find that it is not.
48. In the Respondent’s submission, evidence that the Applicant is able to ride his motor bike for periods of at least 15 minutes without dystonic symptoms preventing him from doing so indicates that the Applicant would be capable of enduring similar symptoms or discomfort for a sufficient time to demonstrate all required bowing techniques to violin students. We do not accept that submission. The video evidence (Exhibit R19) clearly shows the Applicant adopting an awkward position with his right arm when riding his motor bike, and resting that arm from time to time, when stopped at traffic lights for example. We note that the position of the Applicant’s arm when riding the motor bike is substantially different to the positions and postures that are required when playing or demonstrating the violin. In the former the arm is not raised to shoulder height and the elbow is held in a static position with minimal flexion, whereas in the latter the bowing arm is raised to shoulder level with the elbow being substantially flexed and mobile.
49. We note in passing that, in our opinion, the video film confirms the Applicant’s oral evidence that he is not able to conduct an orchestra to a professional standard because he is not able to use his right arm effectively for that purpose, and so find. Plainly, that is an impediment to his satisfactory performance of any role in employment, such as that of a Music Director, which requires him to conduct musicians. For that reason we are satisfied that the occupation of Music Director is not suitable employment for the Applicant.
50. Prior to 1998 the Applicant privately tutored a small number of violin students at an advanced level of musicianship. We find that his ability to tutor such students during the relevant period is diminished and impeded by his inability to play or effectively demonstrate techniques on the violin. We accept the evidence given by Mr Wood concerning the demonstration requirements that attach to teaching the violin and note his evidence that he “…would probably spend about 50% of my teaching time demonstrating how to play the violin” (Exhibit R21, p2). To contend that a person in the Applicant’s circumstances may be able, somehow, to teach violin students without demonstrating, or if demonstrating, to do so in a way that is constrained or impeded by injury or discomfort, is an exercise in conjecture that is not supported by the weight of the evidence. We note Mr Wood’s evidence that it may not be necessary to demonstrate playing techniques to beginner students at the lowest level of musicianship.
51. In the position contended for by the Respondent, the Applicant is capable of teaching music to students either privately, or in a Technical and Further Education (“TAFE”) course, or in a university or conservatorium of music, without necessarily being called upon to demonstrate the violin, for example in the role of a lecturer. We do not accept that submission.
52. The Applicant’s experience of ‘teaching’ is confined to privately tutoring a small number of high level violin students, with a focus on demonstrating techniques to improve performance. There is no evidence before us that the Applicant has teaching experience of any currency that is relevant to teaching beginners how to play the violin. Nor is there evidence that he has experience or skills as a lecturer in music to the extent that lecturing at a TAFE or at a university or conservatorium of music would be suitable employment. The Applicant’s experience of ‘teaching’ music is in the capacity of a private tutor at an advanced level, substantially relying on the demonstration of techniques to improve performance in his students. In our opinion that work is to be distinguished from employment as a teacher of beginners or a lecturer in a course structure within an institution. Plainly, such an institutional role requires more of a lecturer than simply delivering knowledge, but also requires the management of curriculum and the assessment and grading of students within a course structure. There is no evidence that the Applicant is possessed of any relevant qualifications or experience in that regard.
53. We do not accept the proposition that a person who is possessed of specialist knowledge is, as a matter of course, suited to employment as a teacher or lecturer. Knowledge alone does not a teacher make. Mr Wood gave evidence that he has graduate and post graduate qualifications in performance and composition, has “…adjudicated competitions and eisteddfods, examined for the Australian Music Examinations Board…” and was employed as a Senior Lecturer at the University of Western Australia for 12 years even though he has no formal teaching qualifications (Exhibit R21). However, Mr Wood has experience assessing and grading students in a structured way and was able to demonstrate performance techniques in his teaching. It does not follow that the partially incapacitated Applicant, lacking such relevant experience, would be able to perform in such a role. We are satisfied that, while the Applicant may have some capacity to adjudicate competitions and eisteddfods, he does not have a background that suits him for teaching music.
54. Issues of credit were agitated in relation to the Applicant’s evidence that he had not taught music students since 1997-1998. On the basis of Dr Clarke’s reported comment on 2 June 2005 that the Applicant “…recently finished up with his last remaining student” (Exhibit R1, p2) the Respondent urged the Tribunal to find that the Applicant had continued in employment as a music tutor after 1998. However, Dr Clarke gave oral evidence that his comment was not based on a clinical note of the history recounted by the Applicant and may have been inaccurate. We note that the comment is not consistent with Dr Clarke’s earlier report dated 29 April 2002 in which he reported the Applicant telling him that he had no students “in the last four years” (T150 folio 204).
55. The Respondent did not adduce any other evidence to suggest that the Applicant engaged in music tutoring activities after 1998, or more particularly, during the relevant period, but urged the Tribunal to apply the rule in Jones v Dunkel (1959) 101 CLR 298 and draw an adverse inference against the Applicant as a consequence of his failure to call his wife to corroborate his evidence on this point. The Jones v Dunkel rule should be applied with caution in proceedings before a Tribunal of fact with an inquisitorial role (see Re MacFarlane & Comcare (1998) 58 ALD 304). We are not persuaded that the Applicant could reasonably be expected to call his wife to give evidence on this point and the assertion that she would have any relevant knowledge about the Applicant’s involvement, or otherwise, in private music tutoring is speculative. On that basis we are satisfied that it is not appropriate to apply the rule in Jones v Dunkel (supra) and find that there is not sufficient basis on which to draw the inference contended for by the Respondent. We accept the Applicant’s evidence that, after his injury in 1997, he continued to tutor one student in 1998 but did not otherwise engage in music tutoring activities thereafter. We so find.
56. The question of suitable occupations or vocations for the Applicant is dealt with in reports by Ms K. Woodley, Worklink Occupational Health and Rehabilitation Service, (T108) and by Dr Clarke (T150). Ms Woodley reported (T108 folio 129):
“Based on my assessment, I am unable to recommend any occupations that may be suitable for [the Applicant], given that the areas he has expressed an interest in and is qualified for are currently unavailable in the Perth Metropolitan Area.
…
A range of occupations were discussed with [the Applicant] including music lecturing, music tutoring, music directing, which [the Applicant] has indicated may not be appropriate given his injury and his narrow skills base.
Accordingly, I recommend that [the Applicant] consider his vocational interests and that he be counselled regarding the limitations of this within the workers’ compensation system.”
Dr Clarke reported (T150 folios 208-209):
“From an occupational perspective, it would be self-evident that a performer with such along [sic] history of performing at the highest level including internationally, would have a number of talents that could be put to good use in the music industry. Possible suitable options for this patient might include talent spotting, promotion of young performers, lecturing in music or composition. Undertaking arrangements of sheet music for various performances, assisting at mix down in recording studios, judging Eistedfords [sic] and performing other educational and mentoring roles for younger musicians.”
57. These and related occupations are discussed in reports by Professor C. Mulvey, Labournet, (T152) and by Ms D. Campbell, Mount Injury Management Service, (Exhibit R18). Subject to what we have said about teaching, we accept the contents of those reports and note Professor Mulvey’s conclusion (T152 folio 219) that:
“[The Applicant’s] prospects of finding employment and earning a reasonable income in a music related field are somewhat restricted. Persons whose skills and talents are in the performance of music will not generally be well placed to compete with people whose training has prepared them for work in marketing, managing and promoting artists, lecturing etc. in fields ancillary to music. The most significant opportunities for [the Applicant] may lie in private music tuition. If he is able to teach violin to classes there is a potential for him to attract a good number of pupils and earn a reasonable income.”
58. Having found that teaching music is not suitable employment for the Applicant, we accept Professor Mulvey’s conclusion that the Applicant’s prospects of obtaining employment in a music related occupation is “somewhat restricted”. Nonetheless, that the Applicant was employed in a variety of commercial or quasi-commercial music ventures following the date of his injury indicates his ability to successfully engage in music related employment that does not require him to play the violin or to conduct an orchestra or ensemble of string players.
59. The music ventures and activities to which we refer include Al Fine Function Co-ordinators, Electriclassics, Perth Filmharmonic Partnership, Classic Music Promotions, Posh Picnics, Best of British Pops Concerts, the Balingup Classic Concerts, Concert on the Bay, events at the WELD Club and other occasional musical entertainments and events to which attention has been drawn in these proceedings (see Exhibits A6 and R13, for example). The Applicant’s role in these ventures was the subject of dispute.
60. However, only scant evidence concerning the Applicant’s role in the aforementioned music related ventures was placed before the Tribunal. The Applicant urged the Tribunal to accept his evidence that he had either not been involved or had played only a minor role in such ventures during the relevant period. He called no witnesses to corroborate that evidence.
61. In the Respondent’s submission the Applicant was the driving force behind the music related ventures in which he was employed. We accept that submission and so find. While we accept that Mrs Arbuckle undertook a proportion of the administrative and organisational work in these ventures, we are satisfied that the Applicant performed higher level tasks relating to the conceptualisation, promotion and coordination of events, the selection of and negotiation with musicians, and the quality of the musical content and the selection and arrangement of pieces to be performed. We find that the Applicant’s reputation and knowledge were significant factors that place the value of his labour above that of Mrs Arbuckle. We are reasonably satisfied that the value of the Applicant’s labour relative to that of Mrs Arbuckle is 75% to 25% respectively. Even though he may not have received direct payment for his labour in relation to the aforementioned music related ventures, we accept that the work he performed therein constitutes employment consistent with the functions Ms Campbell described for Music Events Coordinator and Music Booking Agent (Exhibit R18) and so find.
62. With reference to the Applicant’s own evidence and the reports of Ms Woodley, Professor Mulvey, Dr Clark and Ms Campbell we are satisfied that the Applicant possesses appropriate experience, training and skills and is vocationally suited for such occupations. There is no medical evidence that employment in such occupations would be outside the Applicant’s medical restrictions. It follows, therefore, that Music Events Coordinator and Music Booking Agent constitute suitable employment for the Applicant and we so find.
63. On the evidence that is before us, scant as it is, we find that the Applicant has engaged in paid and unpaid work for the SVCC and the Cheese business since May 2001.
64. We pause to note the parlous state of the evidence concerning the accounts, finances, taxation returns and performance of the SVCC and the Cheese business, and the Applicant’s role in these enterprises, during the relevant period. The Applicant did not adduce relevant evidence in documentary form or from witnesses who could be reasonably expected to have a knowledge of these matters, such as Mrs Arbuckle (co-director of the SVCC), his two step-sons (who he claimed managed and worked in the Cheese business), the Cheese business and SVCC book-keeper (whom he claimed was unable to be contacted in Adelaide) and his present and past accountants. Nonetheless, the Applicant urged the Tribunal to accept that he had played only a minimal role in the SVCC and the Cheese business, working at a low level for only 25 hours per week. Weighing the evidence on this point we are satisfied that it is appropriate to draw an adverse inference against the Applicant following the rule in Jones v Dunkel (supra).
65. Considering all of the evidence we are reasonably satisfied that the Applicant’s daily work for the SVCC and in the Cheese business included business management functions relating to stock, employees, purchasing and sales, deliveries, facility maintenance and business promotion. In our opinion, and with reference to Ms Campbell’s oral evidence and reports (Exhibits R18 and R26), the work performed by the Applicant in the Cheese business is consistent with the occupations of Small Retail Store Manager and, to a lesser extent, Retail Sales Manager/Assistant. Accepting Ms Campbell’s evidence, we are reasonably satisfied that the Applicant possesses appropriate skills and experience to be qualified and vocationally suited for those occupations. That conclusion is reinforced by the Applicant’s own evidence concerning the choices he has made in relation to employment since his injury in 1997. There is no medical evidence that such occupations are beyond the Applicant’s capacity and medical restrictions.
66. It follows that Small Retail Store Manager and Retail Sales Manager/Assistant are suitable employments for the Applicant. We so find.
67. In the Respondent’s submission employment of an administrative nature would be suitable for the Applicant. We do not agree. The Applicant’s evidence concerning his knowledge and vocational capacity in relation to administrative functions, and computer systems in particular, were tested under cross-examination. Taking account of Ms Campbell’s evidence concerning the nature of duties and qualifications or skills required for employment as either an Administrative Assistant or a Music Development Officer, for example, we are reasonably satisfied that the Applicant does not possess appropriate skills or experience and, at his age, is unlikely to be vocationally suited to acquire such skills. We accept that the Applicant is capable of performing certain administrative and clerical duties, such as occasional photocopying or filing functions within his medical restrictions. However, applying principles enunciated in Re West and Comcare (1994) AATA 9320 and Re Woolf and Comcare (1995) AATA 10362), even if the Applicant was possessed of appropriate skills, experience and training, which he is not, it would not necessarily follow that such tasks would constitute suitable employment for the Applicant. In the circumstances, we are satisfied that employment as an Administrative Assistant is not suitable employment for the Applicant and so find.
68. There is no medical evidence before us that indicates the Applicant is incapable of working in suitable employment on a full time basis within the medical restrictions that arise from his injury. We are satisfied that the actual activities of the Applicant in the aforementioned employments are within his medical restrictions and that those employments constitute ‘suitable employment’.
is the applicant entitled to payment of compensation for incapacity during the relevant period?
69. The Applicant’s entitlement, if any, to payment of compensation for incapacity is to be calculated pursuant to Part II Division 3 of the Act. For that purpose the formula “NWE-AE” at subs 19(2) is to be relevantly applied. Following Telstra Corporation Ltd v Slater (2001) FCA 149 it is necessary to determine whether the Applicant is able to earn in suitable employment and, if so, the weekly amount he is able to earn in such employment. We are mindful of the need to consider the state of the labour market (Esam v ASP Ship Management (1998) 87 FCR 82) and whether employment of a suitable kind is available to the Applicant (Martin v Australian Postal Corporation (2000) 32 AAR 199).
is the applicant able to earn in suitable employment?
70. The incomplete state of the evidence in relation to the Applicant’s involvement in and earnings from music related ventures and the SVCC and Cheese business means that it is not possible to ascertain with any certainty the extent of the Applicant’s actual income from these sources. Fairly plainly on the evidence that is before us fees, profits and material benefits were variously generated by and derived from the Applicant’s efforts in these activities. We are not persuaded that the Applicant’s share of any such fees, profits and benefits, of the amounts he was paid directly, fairly represent the amount he is able to earn through his labour. That is a point to which we will return in due course. Nevertheless, we are satisfied that those results of the Applicant’s labour indicate that he is able to earn in such suitable employment and we so find.
71. We note that the Applicant is currently 62 years of age. However, we do not accept his submission that his age renders him suitable for ‘sheltered’ employment only, nor that he would be unable to compete for suitable employment on the open labour market. There is no compelling evidence that his age prevents him from earning in suitable employment, and we are satisfied that it does not. In so finding we accept the evidence of Ms Campbell that the state of the labour market in Perth has been improving during the relevant period, and that the Applicant’s age would not reasonably preclude him from competing successfully on the open labour market for suitable employment. We note and accept her evidence concerning the availability of suitable employment for the Applicant in the Perth labour market.
72. As will appear, considering the Applicant’s evidence about the activities in which he has been engaged since his injury in 1997, we are satisfied to the requisite civil standard of proof that the Applicant is a person of maturity who is possessed of skills, experience and training that would render him able to compete on the open labour market for suitable employment.
73. We do not accept that the Applicant’s partial incapacity nor the existence of a compensable injury preclude him from competing successfully for suitable employment on the open labour market. The Applicant demonstrated that he was able to successfully compete for and undertake music related employment after his injury until at least May 2001.
74. It is possible that the sudden end of the Applicant’s violin playing career as a result of injury may have had an adverse effect upon his state of mind. However, even if that is the case, and we make no such finding, it has not prevented him from competing for and engaging in suitable employment. We note that the Applicant has been in suitable employment in the Cheese business since May 2001.
75. To the extent that the Applicant has withdrawn from music related employment since May 2001, we are satisfied that he has done so as a matter of choice and convenience. The reasons he made that choice remain opaque. However, it is perhaps unsurprising that a person in the Applicant’s circumstances, suffering the sudden and unexpected end to a virtuosic violin playing career as a result of injury, would seek to commit himself to new endeavours afresh; in this case a cheese business in a semi-rural area and the opportunity to spend time raising his young son with his wife. On those facts it does not follow that the Applicant is unable to earn in suitable music-related employment. He simply chose not to pursue such employment.
76. That being so, we are compelled to conclude that the Applicant is able to earn in suitable employment in the occupations of Music Event Coordinator, Music Booking Agent, Small Retail Store Manager or Retail Sales Manager/Assistant.
77. It is convenient to observe at this point that the Applicant has not been provided with any suitable employment or effective rehabilitation or vocational retraining by the WASO or the Respondent following the cessation of his employment in 1999. That is a matter of concern, especially in the light of subsequent events. In the Applicant’s submission, he was left to his own devices and given insufficient information about his obligations under the compensation scheme. The evidence is that he pursued his own initiative in generating employment with some success. The Respondent asserts that the Applicant failed to properly comply with his obligations to report all such employments and earnings derived thereby (see Exhibits R3, R4, R13 and R24, for example), as a result of which charges of fraud were raised against him. While the Applicant may have failed in his obligation, and we make no such finding, that situation may have been avoided if his efforts to develop a new career had been undertaken with appropriate rehabilitation or vocational retraining support.
78. Nevertheless, we do not accept the Applicant’s submission that the Respondent’s allegations of fraud and the related charges that were raised against him, and the summons that were served on his friends, associates and clients, caused sufficient damage to his reputation to prevent him being able to earn in music related employment. The Applicant asserted that he ceased engaging in music related activities and commenced his involvement in the SVCC in May 2001. The Applicant stated that he assisted in the conduct of that business on a part time basis thereafter. Those events occurred prior to the raising of any charges against the Applicant or the serving of summons against any of his business associates or acquaintances.
79. Neither do we accept the Applicant’s submission that he is unable to compete for suitable employment as a consequence of the narrow ambit of his training, skills and experience, being limited to playing the violin. His own evidence concerning his activities and employment since 1997 does not support that submission. Noting Professor Mulvey’s evidence that employment opportunities for the Applicant may be “somewhat restricted”, we find that, while the Applicant may find it challenging to compete on the open labour market for employment in occupations that are suitable, his skills and experience render him able to do so. We accept the evidence of Ms Campbell concerning the availability of suitable employment for the Applicant in the Perth labour market.
was the applicant in employment during the relevant period?
80. Balancing all of the evidence, scant as it is, and noting the contents of Exhibit R13, we are reasonably satisfied that the Applicant was employed in music related ventures until at least May 2001 and was employed in the SVCC and the Cheese business thereafter.
81. There is insufficient evidence before us to support a finding that the Applicant was employed in music related ventures during the relevant period. The parlous state of the evidence concerning such activities has been noted. The fact that the Applicant failed to adduce relevant evidence on this point does not help his case. Even though the evidence does not support a finding that he was in music related employment during the relevant period, we have found, nonetheless, that he was able to earn in such employment.
82. The Applicant’s evidence is that from May 2001, when he and his wife acquired a 50 percent share in the business, to December 2002 he worked in the Cheese business without payment for “…15 to 20 hours per week…” “…to help in the day to day running of the business…” (Exhibit A4, p16). He stated that he was not in employment in the period to July 2001 (Exhibit R3) but, when cross examined on this point, conceded that he understood ‘employment’ to mean paid employment. Be that as it may, by his own account the Applicant was working in the SVCC and the Cheese business on a regular weekly basis as a part owner and director from May 2001. Prior to 12 December 2002 that work was not paid work. Nonetheless, we are satisfied that it constituted employment for present purposes that may be characterised as a form of self-employment and so find. The fact that the Applicant has not been paid for his labour directly, and has provided his labour to a business of which he is part owner, does not mean that the Applicant’s efforts and labour are not within the meaning of employment.
83. The Applicant’s evidence is that he and his wife acquired 100 percent ownership of the SVCC on 12 December 2002, whereafter he increased his hours of work at the Cheese business. The Applicant stated that from 12 December 2002 to the present he has worked for at least 25 hours per week in the Cheese business. He asserted that he was in employment during this period and ongoing, but had only received payment of $500 per week in salary for the period 12 December 2002 to 27 February 2003 and his wages since that date are owing.
84. The Applicant was cross-examined on these points and conceded that he may have spent more hours working in the Cheese business each week. As with so much in this case, we are asked to rely on the Applicant’s uncorroborated evidence. Our reluctance to do so derives from our assessment that the Applicant did not fully disclose information of relevance. He did not call witnesses who could reasonably be expected to have relevant knowledge and information germane to these proceedings and he did not tender materials that could reasonably be expected to exist in relation to the SVCC and the Cheese business, in the form of accounting records, book keeping records, taxation returns and other business records.
85. As a result the true state of the SVCC and the Cheese business, and the extent of the Applicant’s role, employment and earnings therein, are not clear. In all likelihood and in the absence of other employment the Applicant spent more hours than he claimed at the Cheese business before and after 12 December 2002. Furthermore, it appears that the Applicant chooses to tailor his hours of employment to suit his lifestyle, for example in relation to his son’s school commitments.
86. Balancing the evidence, we are persuaded to conclude that the Applicant was employed by the SVCC or at the Cheese business for at least 25 hours per week from May 2001.
what is the weekly amount the applicant is able to earn in suitable employment?
87. When determining the weekly amount the Applicant is able to earn in suitable employment it is necessary to have regard to the matters set out at subs 19(4) of the Act (see Comcare Australia v Woodbridge [1996] FCA 84).
88. Turning to consider paragraph 19(4)(a) we again note with some concern the unsatisfactory state of the evidence in relation to the Applicant’s earnings, directly or indirectly, from suitable employment, that is from music related employment and from employment by the SVCC and the Cheese business during the relevant period (Exhibits A7, A9, A10, R13 and R24). The Applicant’s evidence was that over years he arranged his affairs to minimise taxation, channelling fees and other income through family related trusts (the Trudi Trust and the Ashley Arbuckle Trust) and businesses registered in his wife’s name (Electriclassics, Classic Music Promotions and Al Fine Function Co-ordinators, for example) (see Exhibit R24). The Applicant claimed that he had invested heavily in the SVCC business and had lost money on that investment, and had been forced to sell assets in order to live. That may be so, but it does not explain the difficulty obtaining the trading, financial and taxation records of the music-related ventures and activities and the businesses in which he has been involved since ceasing employment with the WASO in August 1999. The Tribunal is not satisfied that all relevant information has been placed before it.
89. The incomplete state of the evidence means that it is not possible to ascertain with any certainty the extent of the Applicant’s actual income during the relevant period. Fees, profits and material benefits were variously generated by and derived from the Applicant’s efforts in music related ventures and the SVCC and the Cheese business. We are not satisfied, however, that the evidence before us regarding the Applicant’s share of the fees, profits and material benefits, or the amounts he was actually paid, fairly represents either the amount he actually earned or the amount he is able to earn through his labour.
90. In the circumstances, the Respondent urged the Tribunal to draw an adverse inference against the Applicant in relation to his income, directly or indirectly, from such ventures. The Applicant’s decision not to call relevant witnesses to support his case has been noted. How the Applicant conducts his case is a matter for him and his legal advisers. In these circumstances and being mindful of the Jones v Dunkel (supra) rule the Tribunal must do the best it can with the available evidence.
91. Considering the evidence (see Exhibits A6, R2, R5, R6, R7, R8, R9, R10, R11, R13, R24 and R25) we are reasonably satisfied that it can be inferred that the Applicant either earned, directly or indirectly, or is able to earn an amount of at least $225 per week, from his labour in suitable music related employment during the relevant period, and so find. Exhibit R25 indicates the following earnings from music related businesses conducted by the Applicant and his wife:
·$24,565 in the 1999-2000 financial year
·$11,280 in the 2000-2001 financial year
·$1,575 in the 2001-2002 financial year.
We note that there is no evidence to corroborate these amounts. When cross examined on these issues the Applicant denied the existence of other earnings, but conceded that the Balingup Classic Concert had returned approximately $10,000 per annum since 2002, asserting that money was paid to his wife and was not the result of any labour on his part. We note further that he denied any involvement in or earnings from events set out in the documents at Exhibit R13. We are not persuaded by the Applicant’s assertions in that regard.
92. While there is no direct evidence of the Applicant’s employment in music related ventures after 2001, we are reasonably satisfied that it can be inferred that he was either earning or, if he was not, then he was able to earn in such employment, on the same basis that previously pertained. That is, on the basis that such employment, being part-time, variable and requiring only few hours on a weekly basis, was, by the Applicant’s own account, ancillary to his primary employment as Concert Master prior to 1999.
93. We have found that the Applicant was the driving force in the various music related ventures and activities in which he and his wife engaged after 1999 and that the value of his labour in those ventures was significantly greater than that of his wife (75 percent to 25 percent, respectively), even though he may not have been paid directly and his employment was not at arm’s length. We find that his labour was consistent with the functions of a Music Event Coordinator or a Music Booking Agent, whereas his wife’s contribution was administrative.
94. In the circumstances, following Cage Developments Pty Ltd v Schubert (1983) 151 CLR 584, it is appropriate, for the purpose of calculating the value of the Applicant’s labour in those employments to consider the cost of replacing his labour on the open market and the amount of earnings that he could reasonably have expected to earn in such employment. We note Ms Campbell’s comments and observations concerning the variability of earnings a person could reasonably expect to pay or be paid in such employment (Exhibit R18). There is scant evidence before us concerning earnings foregone by the Applicant in music-related employment since 1999. Doing the best we can with the available evidence, we note the contents of Exhibit R25 and find that the fees charged by the Applicant or his wife, whichever business name was being used, for each event ranged from $300 to over $1,500. On the evidence of the Applicant and Mr Wood, up to three days may be required in relation to more complicated, larger events and only a number of hours in relation to smaller events. Accepting that, we are satisfied that the earnings foregone by the Applicant should be calculated on the basis of fees of $300 per day.
95. It is germane to consider the actual earnings stated by the Applicant at this point. The annual income the Applicant claimed he and Mrs Arbuckle generated from music related ventures over three financial years from 1999 to 2002 is set out in Exhibit R25. If an averaging principle is applied to those annual amounts, a figure of $12,473 is indicated. However, the Applicant stated that amounts of approximately $10,000 were derived from the Balingup Classic Concert each year since 2002. It is not clear, however, whether this amount constitutes or includes management fees or business profits. If those combined amounts, totalling $22,473 per annum, are to be used for the purpose of estimating the Applicant’s earnings, it would be necessary to apportion them to the Applicant and his wife. For that purpose, on the basis of our previous findings, it would be reasonable and appropriate to apportion 75 percent of the amount to the Applicant, being the driving force and coordinator, and 25 percent to his wife. On that basis the annual amount the Applicant would be able to earn would be $16,855. However, it is not clear that the $10,000 derived from the Balingup Classic Concert is appropriately included as fees or earnings for present purposes. Plainly business revenues and profits, or otherwise, must be distinguished from earnings in employment.
96. For that reason we consider that it is safer to calculate the amount the Applicant is able to earn in music related employment on the basis of fees that were charged and paid, that is, $300 per day with 75 percent being apportioned to the Applicant. Importantly, however, it does not follow that the Applicant is able to earn that amount every day of every week. We accept that in a competitive market such music related employment is of variable duration and frequency. For that reason we are reasonably satisfied that the Applicant’s ability to earn in such employment is appropriately calculated on the basis of one day each week.
97. On that basis, and at the rate of one day per week, we find that the value of the Applicant’s labour and the amount that he is able to earn in suitable employment as a Music Event Coordinator or a Music Booking Agent is $225 per week.
98. The Applicant contended that he has not maintained the networks within the music industry on which he previously relied when coordinating or arranging bookings for music events and that, to some extent, his name has receded from public recognition subsequent to the cessation of his orchestral career. While those factors may diminish his ability to earn in music-related employment they do not extinguish the probability that he is able to earn the conservative amount we have inferred in the role of Music Event Coordinator or Music Booking Agent during the relevant period. That probability is founded on the firm basis of the evidence concerning the Applicant’s skills, experience, knowledge, activities and employments up to 2001.
99. Turning to consider the amount the Applicant has earned or is able to earn in the occupations of Small Retail Store Manager and Retail Sales assistant, the Applicant’s own evidence is that he earned $500 per week in employment at the cheese business from 12 December 2002 ongoing, even though he has not been paid since 26 February 2003. For the purposes of subs 19(4)(a) we find that the Applicant has earned $500 per week in suitable employment from 12 December 2002 to the present.
100. In the Respondent’s submission any benefit the Applicant has derived from the Cheese business in the form of cash from daily takings or materials from the business inventory should be taken into account as earnings for present purposes. We accept that it is reasonable to infer that during the relevant period, in all likelihood, the Applicant derived benefits, other than salary or wages, in the form of profits or dividends or supplementation of his living expenses from the cash takings or by removal of stock or inventory of the business. However, there is insufficient evidence before us on which to determine the value of such benefits with any accuracy.
101. The financial records of the SVCC and the Cheese business (Exhibits A7, A9, A10 and R25), incomplete and disordered as they are, indicate a level of turnover and profitability that is not sufficient to cover the Applicant’s weekly living expenses, which includes mortgage repayments of approximately $2,000 per month. We note the Applicant’s sworn evidence that the family home at Ellenbrook is for sale and contracts are due to exchange with a prospective purchaser shortly. We also note his assertion that he has been forced to trade his late model Subaru car for a cheaper utility vehicle. There is no independent evidence to corroborate these claims. We also note the Applicant’s evidence and documents that are before the Tribunal which indicate that he has sold real estate properties in Mosman, Claremont and Nedlands, and has been a trustee or beneficiary of a number of trusts (see Exhibit R24), although he denied that the Trudi Trust or the Ashley Arbuckle Trust were in operation during the relevant period. His sworn oral evidence is that the proceeds from such asset sales have been applied to either the SVCC or the Cheese business or to his family’s living expenses. We note in passing that the Applicant affords to send his young son to an expensive private school and employs staff in the Cheese business without apparent hardship.
102. On balance, we find that during the relevant period the Applicant has supplemented his income and reduced his living costs by extracting cash and stock from the Cheese business from time to time, and otherwise has used capital to cover any shortfall in the family’s weekly living expenses and continues to do so.
103. The benefits derived from the Cheese business and the fact that there is not an arm’s length relationship between the Applicant and the SVCC are relevant matters to consider pursuant to subs 19(4)(g). For that purpose we are satisfied that the actual amount the Applicant received in wages from the SVCC and the Cheese business does not fairly represent the amount of his earnings in employment nor does it reasonably represent the value of his labour. Following Cage Developments Pty Ltd v Schubert (supra) it is appropriate, therefore, to determine the earnings of the Applicant by reference to the value of the work he performed in the Cheese business or the equivalent cost of his labour on the open labour market.
104. We are satisfied that the Applicant’s role in the SVCC and the Cheese business during the relevant period is the equivalent of a Small Retail Store Manager, occasionally performing duties that are consistent with the occupation of Retail Sales Manager/Assistant. Weighing the evidence contained in Ms Campbell’s reports (Exhibits R18 and R26), we find that the value of the Applicant’s work for SVC and the Cheese business is to be calculated on the basis of $39,000 per annum, or $750.00 per week. That figure is calculated on the same hourly rate the Applicant claimed he was actually paid for 25 hours labour per week. We accept that that rate of pay is consistent with Ms Campbell’s evidence, that is, it is within the low to middle range of applicable pay rates for the occupation of Small Retail Store Manager that would apply on the open labour market (Exhibit R26, p4).
105. The Applicant stated that he has not sought employment outside the Cheese business during the relevant period. His evidence is that he spends most of every week day at the SVCC premises and is committed to making it a success. To the extent that the Respondent presses its assertion that the Applicant did not seek suitable employment during the relevant period, for the purposes of subs 19(4)(e) and (f), we are satisfied that he did not do so because he was in employment during the relevant period. He was employed in the SVCC and the Cheese business for at least 25 hours per week.
106. The medical evidence is that the Applicant’s compensable injury does not prevent him from undertaking suitable employment on a full time basis. That being so, and taking into account Ms Campbell’s evidence in relation to the state of the labour market in Perth pursuant to paragraph 19(4)(g), we find that the Applicant is able to earn $750.00 per week in suitable full time employment as a Small Retail Store Manager. We note, with reference to Ms Campbell’s evidence (Exhibit R18, p3), that the Applicant is currently able to earn a lesser amount per week in casual employment as a Retail Sales Manager/Assistant, that is an approximate amount of $632 per week, or $16.65 per hour, plus penalty rates.
107. We note that prior to his injury the Applicant pursued music related employment in addition to his employment in the position of Concert Master. On that basis we accept that a similar construction of suitable employment may pertain for present purposes, whereby the Applicant could reasonably be expected to spend the majority of his working week, notionally four days per week, in employment as a Small Retail Store Manager and the remaining day in suitable employment as a Music Event Coordinator or a Music Booking Agent.
108. It follows and we find that the weekly amount the Applicant is able to earn in suitable employment is:
(a)$225 per week in suitable employment of Music Event Coordinator or Music Booking Agent, and
(b)$600 per week in suitable employment of Small Retail Store Manager.
109. For the purpose of calculating the rate of compensation for incapacity that is payable during the relevant period, the weekly “AE” amount is $825.
conclusion
110. During the relevant period the Applicant has been in employment for at least 25 hours per week. His weekly AE amount is $825. It follows, therefore, that the decision under review, which determined the AE amount to be $1,200.00, cannot stand and the matter must be remitted to the Respondent to calculate the amount of compensation that is payable to the Applicant during the relevant period.
111. As the matter is decided in a manner that is favourable to the Applicant, pursuant to subs 67(8) of the Act the Tribunal orders the Respondent to pay the Applicant’s costs of these proceedings as agreed or taxed in accordance with the Tribunal’s Practice Direction.
I certify that the 111 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member and Dr P. Staer, Member
Signed: ........(sgd N Wee)..............
AssociateDate/s of Hearing 20 - 25 June 2005
Date of Decision 25 August 2005
Counsel for the Applicant Mr J. Criddle
Counsel for the Respondent Mr J. Lenczner
Solicitor for the Respondent Ms L Hardwick