Baker and Telstra Corporation Limited
[2006] AATA 400
•9 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 400
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/235
GENERAL ADMINISTRATIVE DIVISION ) Re WILLIAM GREGORY BAKER Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr S. Webb, Member Date9 May 2006
PlaceCanberra
Decision The decision under review is affirmed. ..........................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - polymorphic light eruption - liability for aggravation accepted - partial incapacity redemption - subsequent claim for further incapacity payments - not totally incapacitated for work - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 124
Compensation (Commonwealth Government Employees) Act 1971 ss 26, 45, 46, 49, 50
Social Security and Repatriation Legislation Amendment Act 1985 ss 35, 45
Re Baker and Australian Telecommunications Commission (AAT 4232, 24 March 1988)
Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585
Ball v William Hunt and Sons Ltd (1912) AC 496
Williams v Metropolitan Coal Company Limited (1948) 76 CLR 431
Cage Developments Pty Limited v Schubert (1983) 151 CLR 584
REASONS FOR DECISION
9 May 2006 Mr S. Webb, Member 1. William Baker is seeking payment of compensation for incapacity as a result of a work related injury that occurred in 1981, in relation to which he was paid a lump sum in redemption of his partial incapacity entitlements in 1988. Telstra Corporation Limited (“Telstra”) decided to reject his claim for further incapacity payments. Mr Baker has applied for review of that decision.
2. The matter came on for hearing before me in Canberra on 1 May 2006. Mr Baker gave oral evidence as did Dr Paul Freeman and Dr Edmund Lobel. Materials were tendered and labelled during the hearing.
factual context
3. The background facts are not in dispute. From 1972 to 1982 Mr Baker was employed by forerunners of Telstra (the Post-Master General and the Australian Telecommunications Commission). In 1981 he was employed as a Telecommunications Technician when he was injured in the course of his employment. By a consent decision of the Tribunal on 15 February 1983, liability was accepted for a compensable injury in the form of “aggravation of polymorphous light eruption” by exposure to fluorescent light. The date of injury was 16 February 1981. Amounts of compensation for total and partial incapacity were paid to Mr Baker pursuant to ss 45 and 46 of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) then in force.
4. Mr Baker was retired on invalidity grounds with effect from 12 July 1982.
5. In 1987 Mr Baker requested payment of a lump sum in redemption of his compensation entitlements under s 46 of the 1971 Act for partial incapacity. His request was denied. However, on 24 March 1988 the Tribunal decided that the Commonwealth’s liability to make further payments for partial incapacity was to be redeemed by payment of a lump sum to Mr Baker pursuant to s 49 of that Act (Re Baker and Australian Telecommunications Commission AAT 4232, 24 March 1988). In result Mr Baker was paid an amount of $134,730.15.
6. In its decision, the Tribunal made findings of fact that are accepted and re-applied in these proceedings insofar that is relevant. I find no reason to either depart from or disturb matters that were settled by Deputy President Thompson. At that time it was not in dispute that Mr Baker was partially incapacitated for work as a result of his injury. He had been partially incapacitated and receiving compensation payments under s 46 for a continuous period of at least six months and the injury was unlikely to result in Mr Baker becoming totally incapacitated for work. It was on that basis that the redemption decision was made.
7. By his own account in the period from 1988 to 2003 Mr Baker worked in contract employment and in telecommunications businesses he conducted in Adelaide and Canberra with a number of employees. No documents pertaining to Mr Baker’s contract employment or his business ventures are in evidence. No detailed financial or taxation records are in evidence. Mr Baker’s personal tax assessment notices are at Exhibit A2 and are the subject of his own summary at T7. As can be seen, Mr Baker was in receipt of income from superannuation as well as other taxable income derived from his business activities in some but not all of the years during this period. Mr Baker gave evidence that his businesses failed and he was rendered bankrupt on three occasions. No documents pertaining to Mr Baker’s alleged bankruptcy are in evidence.
8. On 25 May 2004 Mr Baker made a claim for “recurrent payments from the 30th June 1988” pursuant to s 50 of the 1971 Act, stating “My incapacity to sustain income in self-employment or as an employee demonstrates my total incapacity” (T7). On 6 August 2004 Telstra determined to reject his claim (T8). Mr Baker provided a report by Dr Freeman dated 10 February 2005 (T15) and requested reconsideration of the determination. On 8 April 2005 Telstra decided to affirm the determination and issued a reviewable decision (T20).
9. On 5 August 2005 Mr Baker applied to the Tribunal for review of that decision and was granted an extension of time for that purpose. Telstra filed a report by Dr Lobel dated 24 November 2005 (Exhibit R1).
legislation and issues for determination
10. Mr Baker’s application rises under the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). Section 124 applies with effect to the 1971 Act. Mr Baker’s claim is pursuant to s 50 of the 1971 Act, which states as follows:
“Recurrent payments after payment of lump sum
50.(1) Where:
(a) an injury in respect of which a lump sum was paid to an employee in pursuance of section 39 or section 49 results in the employee, at any time after the payment of that lump sum, being totally incapacitated for work; and
(b) the incapacity is likely to continue indefinitely;
compensation is payable to the employee in accordance with this section during the period of the total incapacity.
(2) The compensation is:
(a) an amount per week equal to the amount per week that would be payable to the employee under a provision of this Act, other than subsection 45 (2A), during the period of that incapacity if the lump sum had not been paid, less an amount (if any) ascertained in accordance with the formula
A‑B,
---
52C
where:
A is the lump sum that was paid to the employee;
B is the sum of the amounts that would, but for the payment to the employee of that lump sum, have been paid to the employee under section 46 in respect of the period that commenced on the date on which the Commissioner determined that the lump sum was to be paid to the employee and ends on the date on which compensation became payable to him under this section; and
C is the number of years in the complete expectation of life of the employee at the date on which compensation became payable to him under this section, as ascertained by reference to the prescribed Life Tables; or
(b) an amount per week that is prescribed for the purposes of this section in respect of a class of persons in which the employee is included;
whichever is the greater.”
11. As can be seen, compensation payments are only payable under s 50 during the period in which an injured employee is totally incapacitated for work in certain circumstances:
(a)a lump sum payment has been made to the injury worker under (in this case) s 49,
(b)the compensable injury results in the employee being totally incapacitated for work after payment of the lump sum, and
(c)the incapacity is likely to continue indefinitely.
12. In Mr Baker’s submission ‘the incapacity’ referred to in 50(1)(b) is not total incapacity alone and includes any incapacity resulting from the compensable injury. I do not agree. Paragraphs 50(1)(a) and (b) are conjunctive and must be read together in order to discern the meaning of the subsection. Plainly enough the subsection is concerned with a change in the circumstances of an injured employee after the payment of a lump sum whereby compensation may be payable if the person becomes totally incapacitated for work as a result of his or her compensable injury. Compensation is only payable if ‘the incapacity’ is likely to continue indefinitely, that is the incapacity to which paragraph 50(1)(a) refers. The subject incapacity is the total incapacity resulting for the compensable injury. That construction is consistent with the objects of the section and the 1971 Act.
13. Thus the issues for determination are:
(a)Has Mr Baker become totally incapacitated for work in the period from June 1988 to the present? And if so
(b)Is the total incapacity the result of his compensable injury? And if so
(c)Is the incapacity likely to continue indefinitely? And if so
(d)What is the period of total incapacity?
consideration
14. Making this decision I have carefully considered all of the materials placed before me, the submissions of the parties, the relevant caselaw and legislation.
15. Has Mr Baker become totally incapacitated for work since June 1988? I am satisfied that he has not.
16. In 1988 the Tribunal proceeded, without controversy, on the basis that Mr Baker was partially incapacitated for work as a result of his PMLE. Indeed this was the basis of Mr Baker’s requests for redemption of the Commonwealth’s liability to pay him compensation under s 46 of the 1971 Act. The Tribunal found that following the termination of Mr Baker’s previous employment on invalidity grounds he had worked as a security technician under contract or in his own business. The Tribunal considered medical evidence, notably that of Dr Burry, and concluded that even though there was a possibility that Mr Baker’s PMLE may incapacitate him for employment in the future, that possibility was small to the extent that it was not likely (Re Baker and Australian Telecommunications Commission (supra) at [21]).
17. Mr Baker’s oral evidence in these proceedings is that he continued to work under contract and in his own businesses until 2003, when his business failed and he entered into bankruptcy. He has not worked since that occurrence. His evidence was that his health status has not changed since 1988. He has continued to suffer from PMLE and sensitivity to ultra-violet light. In consequence it has been necessary for him to minimise his exposure to sunlight and neon light. Those facts are not controversial and are consistent with the medical evidence. On those facts I am satisfied that since June 1988 Mr Baker has been partially incapacitated for work and so find.
18. The concept of ‘incapacity for work’ refers to a physical or mental incapacity for actually doing work and earning income thereby on the open labour market. Under subs 4(9) of the SRC Act incapacity is expressed in terms of an incapacity to engage in any work (total incapacity for work) or incapacity to engage in work at the same level (partial incapacity for work). Those delineations are consistent with earlier concepts of total and partial incapacity for work that applied under the 1971 Act and the law at that time (see Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585). In a passage that is often quoted, Lord Loreburn said in Ball v William Hunt & Sons Ltd (1912) AC 496 at p 500:
“… I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such defect makes his labour saleable for less than it would otherwise fetch.”
19. In general terms an employee who is totally incapacitated for work as a result of an injury is a worker who is unable to work by reason of the physical or mental effects of his injury and is unable, therefore, to earn any amount in employment on the open labour market. Dixon J said in Williams v Metropolitan Coal Company Limited (1948) 76 CLR 431 at 449:
“… it is commonplace that incapacity is not total if some other employment is reasonably open to the injured man.”
Beyond the general case, s 26 of the 1971 Act makes provision that an injured employee may be deemed to be totally incapacitated for work in certain circumstances.
20. Plainly enough, Mr Baker was able to obtain work under contract and in the businesses he conducted in the period from June 1988 to 2003. The fact that he undertook that work for the period of at least 15 years indicates that the work was not unsuitable for him. That he obtained work on his own account or in business indicates that he was able to obtain employment on the open labour market and earn income thereby. On that basis it cannot be said that he was totally incapacitated for work.
21. In Mr Baker’s submission the fact that his businesses failed and he was not able to earn an income thereby indicates that he was totally incapacitated for work. I do not agree. Mr Baker’s ability to earn in business is not a reasonable measure of the extent of his incapacity for work. It is necessary to consider the services Mr Baker performed in self employment or business. By his own account those services and functions he performed constituted suitable work for him so long as he was not exposed to ultraviolet light for long periods of time. That is consistent with the medical evidence. Furthermore, to the extent that Mr Baker’s submission on this point attributes a low value to his labour in business, as measured by his taxable income from business activities, that is not a proper measure of his incapacity. Even if it was it would be necessary to determine the value of his labour on the basis of what he would have had to pay another person for those services on the open labour market (Cage Developments Pty Limited v Schubert (1983) 151 CLR 584 at 586). On the medical evidence, the only restriction on Mr Baker’s capacity for work has been and remains his sensitivity to ultraviolet light. That restriction did not prevent him from working and by his own account it was not the cause of his business failures. There is no evidence before me that Mr Baker sought to obtain employment for which he was suited but failed because of his compensable injury. By his own account he applied on one occasion to Telstra for employment in 2003 but was unsuccessful (the details of that application and response are not in evidence). Since that time Mr Baker has been in receipt of a disability support pension and has not sought employment.
22. In Mr Baker’s submission, he is within the terms of subsection 26(3) of the 1971 Act and should, therefore, be deemed to be totally incapacitated for work. Section 26 in the form to which Mr Baker refers was introduced by s 35 of the Social Security and Repatriation Legislation Amendment Act 1985 (“the Amendment Act”) that came into effect on 5 September 1985. Unfortunately for Mr Baker the section in that form does not apply to him. Section 45 of the Amendment Act directs that section 35 (and the substituted form of s 26 of the 1971 Act introduced by that section) only applies to injuries occurring on or after the commencement date. As Mr Baker’s injury occurred in 1981, s26 in the form introduced by the Amendment Act does not apply to him.
23. Nevertheless, it is necessary to determine whether Mr Baker is within the terms of s 26 that was in force before the Amendment Act had effect, as follows:
“Employee deemed to be totally incapacitated if employment for which he is
fitted is not available.26. For the purposes of this Part, an employee shall be deemed to be totally incapacitated for work if his incapacity is such that he is fitted only for employment of a kind that is not commonly available and employment of that kind is not reasonably available to him.”
24. In its terms the section intends to deem an ‘odd lot’ employee as totally incapacitated for work. I am satisfied that Mr Baker is not within the terms of the section. Since June 1988 he has been fit for employment of the kind he performed under contract or in his businesses. Work of that kind was available to him and he performed it, albeit without financial success in business. However, by his own account, his businesses failed as a result of economic and other factors. I do not accept that the failure of those businesses indicates that such work was not suitable employment for Mr Baker. He continued to work in those employments, despite his alleged financial difficulties, for a period of at least 15 years until 2003.
25. In Mr Baker’s submission acknowledgement of his PMLE condition to a prospective employer would preclude him from obtaining employment. However, there is no evidence to support that submission. The medical evidence of Drs Freeman and Lobel is that the only restriction on Mr Baker’s capacity for work is his PMLE ultra-violet light sensitivity and his condition is reasonably stable. I accept that Mr Baker is not, therefore suited for work requiring extensive exposure to sunlight or neon light. I also accept that neon lighting is commonly found in many modern work environments. Nevertheless, Mr Baker was able to work under incandescent tungsten lighting in his business without difficulty for at least 15 years. By his own account he was able to attend jobs in houses so long as he was not unduly exposed to sunlight or neon light. There is evidence that he injured his back while lifting cables in the course of his work and attended Canberra Hospital on two occasions during this period. There is nothing to indicate that Mr Baker would not presently be able to work in employment under incandescent tungsten light. That is especially so if Mr Baker continues to adopt a responsible and cautious approach to managing his condition as he has done in the past.
26. I am not persuaded by the evidence or by Mr Baker’s submission that employment for which he is suited is not reasonably available to him. He adduced no evidence to support that submission. That being so, I find that Mr Baker is not within the terms of (original) s 26 of the 1971 Act and cannot, therefore, be deemed to be totally incapacitated for work.
27. In the circumstances it is not necessary to make findings concerning the continuance, or otherwise, of Mr Baker’s compensable injury since June 1988. Nor is it necessary to address Mr Baker’s submissions concerning the burden of persuasion in relation to that issue.
28. As Mr Baker has not been totally incapacitated for work since June 1988 and is not presently totally incapacitated for work he is not entitled to payment of compensation pursuant to s 50 of the 1971 Act. That being so the decision under review is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: Peter Edwards
AssociateDate of Hearing 1 May 2006
Date of Decision 9 May 2006
Counsel for the Applicant Mr D. Richards
Counsel for the Respondent Mr B. Kelly
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