Barry and NDC Limited
[2004] AATA 1384
•23 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1384
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/559
GENERAL ADMINISTRATIVE DIVISION )
Re DOONE BARRY Applicant
And
NDC LIMITED
Respondent
DECISION
Tribunal Dr K S Levy, Member Date23 December 2004
PlaceBrisbane
Decision The decision under review is affirmed. ..................[Sgd].......................
K S Levy
Member
CATCHWORDS
COMPENSATION – Claims – Application to review decision to reject claim for compensation on the basis of incapacity – Whether applicant entitled to incapacity payments in respect of neck sprain and lumbar sprain – Degree of impairment less than 10% - Decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4,6,14, 16, 19, 24
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Commission (1998) 27 AAR 40
Comcare Australia v Rowe [2002] FCA 1034
Arnotts Snack Product Pty Ltd v Yacob (1985) 155 CLR 171
Re Prica and Comcare (1996) 44 ALD 46
Re Sabioni and Comcare (1999) 30 AAR 150
The Commonwealth v Smith (1989) 18 ALD 224REASONS FOR DECISION
23 December 2004 Dr K S Levy, Member Introduction
1. In these proceedings the applicant, Doone Barry, seeks review of a decision dated 22 May 2003 of QWL Corporation Pty Ltd, as independent agent for Network Design and Construction Limited (“NDC”), an organisation related to Telstra Corporation Limited.
2. The decision under review affirmed a decision of 28 October 2002 of QWL Corporation Pty Ltd to reject a claim for compensation on the basis of incapacity under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) from 1 January 2002.
3. On 13 June 2003, QWL Corporation Pty Ltd on behalf of NDC, wrote to the applicant advising of its determination that with effect from 12 June 2003, there was no further liability under the Act with respect to the applicant’s claim for compensation based on the available medical evidence.
4. On 3 July 2003, the applicant lodged an application for review with the Administrative Appeals Tribunal.
5. On 17 July 2003, GIO (a Suncorp company) responded to Mr Barry as GIO had taken over the services under the Act from the respondent on or about 27 June 2003.
6. At the hearing on 17 November 2004 and on 19 November 2004, Mr Barry was self-represented. NDC Limited was represented by Mr C Clark of Counsel, instructed by Sparke Helmore Lawyers.
Background
7. Mr Doone Barry is a 43 year old man who was previously employed as a communications rigger until 1 March 2002. He had been so employed for approximately 5 years. His duties involved climbing very high towers and carrying heavy safety and other gear in the process. Specifically, while climbing up and down towers, he also had to run cable, install microwave dishes and undertake maintenance work.
8. On 21 October 2001, he was driving a four wheel drive vehicle when it hit a large pothole in the road. He claims that the suspension seat in his vehicle was broken and as a result, that he was forced upward and hit his head on the ceiling of the cabin of the vehicle. He stated that there was a noticeable dent in the roof of the vehicle as a result of him hitting his head on the cabin ceiling and that he was dazed for about an hour afterwards. After the accident, he stopped and waited for a work mate travelling behind and who arrived at the scene of the injury sometime afterwards. After he settled, he then drove to Coen, a further 3½ hour drive.
9. The next day he saw the general practitioner in Coen, who referred him to the Cairns Base Hospital. There, he saw Dr Peter Pereira. X-rays were taken but no abnormality was detected. By this time, he had complained of general soreness and numbness in the left hand and left leg. He returned to Townsville, had physiotherapy and visited the local medical practice at Bluewater. He saw GPs at the Bluewater Practice (Dr Fiona Smith and Dr Bruce Robinson) from October to November 2001, on a number of occasions following the accident. He was referred from that practice to neurologist Dr Jon Reimers in November 2001.
10. He was subsequently referred to orthopaedic specialist, Dr Bruce Low (February 2002 and April 2002), Dr Richard Gibberd (May 2002) and Dr James Price (January 2003 and March 2003). In more recent times, he attended on Associate Professor Bruce McPhee, an orthopaedic specialist.
11. Initially, the medical opinion anticipated his symptoms would subside within a reasonable time and that he would be fit to return to work. Specialist opinion seems to find no pathological reason for the applicant’s numbness and other symptoms, although, there is some opinion supportive of the view that there is aggravation of a congenital vulnerability in his spine.
12. On 6 November 2001, QWL Corporation Pty Ltd recommended acceptance of the claim. On 13 November 2001, Comcare accepted liability for neck sprain and lumbar sprain under section 6 of the Act. Medical claims were accepted up to 11 December 2001 and worker’s compensation claims until 3 December 2001. On that date he submitted a claim for WorkCover leave from 3 December 2001 to 31 December 2001. This was approved on 4 January 2002. He had various other medical certificates for leave up to 1 February 2002 which certified his being partially unfit, and was subsequently certified to be totally unfit for the period 1 February 2002 to 28 April 2002.
13. He took recreation leave from 2 January 2002 to 14 January 2002. He then returned to work for the period 15 January 2002 to 4 February 2002. On 4 February 2002, he was sent home on full pay as there was no work available. He was retrenched on 1 March 2002. Evidence was provided to the Tribunal that he had been previously advised of his possible retrenchment on 15 October 2001, just one week before the accident.
14. He has subsequently claimed compensation with effect from 1 March 2002, the date of his retrenchment.
15. A retrospective application for leave dated 2 July 2002 was submitted to his former employer whereby he applied for sick leave for the period 10 February 2002 to 1 April 2002. On 5 July 2002, this application for leave was approved up until 1 March 2002, the date of his retrenchment. On 28 October 2002 his claim for incapacity payments were rejected based on medical evidence and were determined not to be payable with effect from 1 January 2002. This was affirmed on 22 May 2003.
16. On 13 June 2003, a determination was made that Telstra’s reviewing agent that it would no longer be liable for compensation to the applicant with effect from 12 June 2003.
Issues
17. The issues in this matter are –
(a)whether the applicant is entitled to incapacity payments in respect of his “neck sprain” beyond 1 March 2002; and
(b)whether the applicant is entitled to incapacity payments for “lower back pain” or “lumbar sprain” beyond 1 March 2002.
Legislation
18. The relevant provisions of the Act are as follows:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
‘injury means’:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
‘medical treatment means’:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…..
(d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
…..
‘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).
‘therapeutic treatment’ includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
…..
(8)A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…..
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…..
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…..
19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
…..
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.”
Documentary Evidence
19. The Tribunal had before it the following documents which were taken into evidence for the purpose of considering the decision under review :
Exhibit 1Documents tendered under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2Report of Associate Professor Bruce McPhee dated 24 October 2003
Exhibit 3Briefing letter to Dr McPhee dated 9 October 2003
Exhibit 4Employment Training Certificate of the Applicant
Exhibit 5Climbing Permit for the applicant
Exhibit 6Bundle of documents from the applicant received 9 October 2003
Exhibit 7Bluewater Medical Practice notes
Exhibit 8EKCO Occupational Survey dated 19 December 2001
Evidence
20. Mr Barry, the applicant, provided oral evidence in relation to the two major areas of complaint – neck and back pain. There was also evidence submitted by the applicant in relation to numbness in his left arm and his left leg.
21. He referred to the various medical reports which have been tendered into evidence and sought to rely on various doctors’ opinions as supportive of his claims. In particular, he claimed to have an “annular tear”, based on the opinion of Dr James Price. When he was sent home on 4 February 2002, Mr Barry stated in evidence that he thought he was going on sick leave not on pre-redundancy leave. At one further point in the evidence he indicated that he had initiated that leave on the basis of incapacity, rather than it being initiated by the employer as was provided elsewhere in the evidence.
22. During cross-examination, Mr Clark highlighted a number of inconsistencies in the evidence of Mr Barry about the status of the injuries claimed to various medical practitioners. For example, on 6 November 2001, Dr Reimers’ report makes no mention of any difficulty with numbness in the arms which was the claim made by Mr Barry to other medical practitioners. Mr Barry maintained that he did mention it to Dr Reimers albeit that it was not documented in that report (see T11).
23. The earlier report by Dr Peter Pereira on 23 October 2001 had made mention of a complaint of pain on lifting both arms but there was no mention on that occasion of neck pain.
24. In the subsequent report by Dr Jon Reimers dated 10 December 2001, he formed the view that Mr Barry’s symptoms would continue to settle and did not warrant any further investigation and treatment. He stated in that report:
“I really can’t see any reason why he cannot return to work.”
25. The applicant admitted under cross-examination that he had lied to Dr Reimers as he wanted to go back to work. He stated he did not feel that he was well enough to return to work but that he did not want to be a target for redundancy and therefore, he maintained the appearance of being well enough to return to work.
26. Dr Smith, general practitioner, provided various medical certificates for leave based on injuries claimed by Mr Barry. However, in December 2001, in the questionnaire which she was asked to complete for ECKO about a proposal for Mr Barry to undertake a rehabilitation programme, Dr Smith said he could return to work and undertake his normal duties in about a month from that time, i.e. about 21 January 2002.
27. Concerning the report by Dr Low, Mr Barry stated that he was annoyed that Dr Low’s report suggested that litigation may be in the air. He was annoyed that there was an implication in the doctor’s report that Mr Barry’s medical claims may be false. At that time, he claimed that he had back problems and numbness in both legs as well as the left arm but had no problems with his neck. When he consulted with Dr Gibberd, that doctor suggested there may be some psychological issues involved. In particular, he suggested that Mr Barry may have an adjustment problem. The applicant stated in evidence that he mentioned to Dr Gibberd during his consultation that he had “shakes of the upper arms”, although he had never mentioned this to any of the other doctors. Likewise, he had mentioned to Dr Price, the orthopaedic specialist, that he had blood in the bowel motion but had not mentioned this to Dr Reimers, whom he had seen previously, nor to the Cairns Base Hospital.
28. One common thread running through most of the medical evidence was that no organic pathology could be found to explain the neck and lower back pain or the muscular weakness and paresthesia on the left side. It was put to the applicant that he was disingenuous in his presentation to medical practitioners between 2001 and the date of the hearing, and/or that there were some psychological issues associated with his claimed injuries. In particular, Dr Low first suggested that there may be potential litigation associated with Mr Barry’s claims. That was in February 2002. Three months later he saw Dr Gibberd who reports that he may have had some psychological difficulties or perhaps an adjustment disorder. When Dr Gibberd provided evidence to the Tribunal, he stated that he could not remember exactly what words were used but that the words used in his report are consistent with the context of his interviews with Mr Barry. Those opinions are not inconsistent with the report by Dr Reimers in December 2001, in that there appeared to be no reason why Mr Barry could not return to work. His general practitioner, Dr Fiona Smith also reviewed the applicant on 20 December 2001 and stated to the Tribunal that it was her expectation also that he would be able to go back to work about one month from that date.
29. However, the specialist medical evidence in relation to the claimed injuries and orthopaedic problems is informative. Dr Bruce Low, orthopaedic surgeon, in February 2002 reported that Mr Barry’s claims were “unusual complaints” and that all his x-rays were normal. However, Dr Low saw him again in April 2002 and stated that there were some signs of degeneration which had occurred. At that stage, Dr Low opined that the applicant may have Scheuermann’s disease.
30. The applicant then saw Dr Robertson on 30 September 2002 who concluded that there was no specific diagnosis that he could provide in relation to Mr Barry’s complaints. In describing the symptoms, he was unsure whether this was from the trauma, pre-existing Scheuermann’s Disease or neuropraxia (pain from sleeping in an awkward position). However, Dr Robertson stated that there was evidence that he had a pre-existing disc degenerative disease in the lower spine, Scheuermann’s Disease of the dorsal spine and psoriasis. He concluded that Mr Barry was, in September 2002, “…unfit for heavy manual work and likely to remain so. He is fit for light manual and non-manual work or study”. It was said that Mr Barry would not be fit to perform his usual duties and concluded that he thought “…it unlikely that he would be able to return to heavy labouring duties again”.
31. Mr Barry was subsequently referred to Dr James Price, an orthopaedic surgeon. Dr Price provided two reports to the Tribunal, one dated 21 January 2003 and a second report dated 19 March 2003. He also provided telephone evidence to the Tribunal on 19 November 2003. Consistent with other medical opinion, he stated he could find no organic explanation for most of the complaints claimed by Mr Barry. However, he concluded that Mr Barry had an annular tear in the L4/5 disc. He said he believed Mr Barry was going to be quite disabled by his lower back and did not believe he could go back to his pre-injury employment. This evidence revealed a slight difference of opinion as to diagnosis relative to that of Associate Professor Bruce McPhee, but acknowledged Dr McPhee as highly regarded and an orthopaedic specialist for whom he had great respect.
32. Dr McPhee provided evidence in a report dated 24 October 2003 and also provided oral evidence on 17 November 2004. He had been practising as an orthopaedic specialist since 1974 and stated that he specialised only in problems of the spine, such as are claimed in this case. In his report, he seems to accept incapacities for Mr Barry in the sense that “the claimant has come to the realisation that he will not be able to gain employment in any occupation requiring robust or heavy manual work…..”. He referred also to the probability of a person in the position of Mr Barry returning to work –
“….after a compensable back injury is no greater than 25% at one year and virtually zero by two years. This is now the case with Mr Barry. Failure to return to work is generally unrelated to the underlying injury but due to other confounding factors. A number of potential factors including fear avoidance beliefs and exaggerated view of his injury, financial worries and litigation are all factors which may contribute to cricinity.
It is reasonable to accept that Mr Barry sustained an injury to his spine during the course of his work on 21 October 2001 in the manner he describes. This constitutes a significant injury within the meaning of the Compensation Act. He now complains of chronic thoracic and lower back pain which is due to aggravation or pre-existing constitutional changes. Although he has left arm and leg symptoms, there is no logical explanation for their origin. The only physical impairment relates to his lumbar spine although occult examination suggests that his range of lumbar spine movements may be within normal limits. There is certainly no evidence of radiculopathy.
From these findings, I would conclude that the patient probably has a Category II DRE impairment of the lumbosacral spine resulting from the aggravation of the degeneration in the lower two lumbar discs. Based on the AMA Guides, this equates with a 5% whole person impairment. The 5th Edition of the AMA Guides allows up to 3% whole person impairment for pain and disability. My impression is that these are somewhat amplified and not explainable on the basis of his clinical and radiological findings. Pain and disability cannot be validated or quantified.
The claimant’s thoracic pain is related to thoracic Scheuermann’s Disease, a known risk factor for back pain. It is possible that the accident has aggravation [sic] this condition. There is no objective evidence of restrictions of the thoracic spine or radiculopathy. Accordingly, based on the AMA Guides there is no impairment. I would consider the present level of discomfort in the thoracic spine is in keeping with these constitutional changes.”
Consideration
33. I have reached a decision in this matter based on consideration of all of the evidence, the submissions made by the parties, statutory law and case law.
34. Having considered the medical evidence and the pattern of its development from October 2001 until the latest reports in 2003 and oral evidence provided on 17 November 2004, it seems clear that there is no objective and verifiable evidence for the numbness and pain in the left arm and left leg which Mr Barry reports. In relation to his lower back pain, however, there is some evidence as reported by Dr Low, Dr Robertson (assumingly based on specialist advice), Dr Price and Dr McPhee, of some disc degeneration which is congenitally based and that Scheuermann’s Disease is probably present. While Dr Price states that Mr Barry does not specifically have Scheuermann’s Disease but has some characteristics of that condition, he claims an 8% impairment on behalf of Mr Barry.
35. On the other hand, Associate Professor McPhee agrees that there is disc degeneration with Scheuermann’s Disease but states that this is a problem for which Mr Barry probably had a predisposition, and the accident has aggravated this pre-existing condition. Unlike Dr Price, his diagnosis is that Mr Barry does not have an annular tear. He stated there would be a 5% impairment but that the 3% whole person impairment for pain and disability cannot be validated. I believe Associate Professor McGhee’s opinion is the most informative and most consistent with the medical evidence and other circumstances admitted into evidence.
36. The Tribunal decides as a matter of fact based on the specialist medical opinion provided, that there is no evidence of residual neck sprain in the applicant beyond January 2001. It is also decided as a matter of fact that the degenerative back injury is a Category II DRE impairment of the lumbosacral spine resulting from the aggravation of the degeneration in the lower two lumbar discs and that this equates to a 5% whole person impairment.
37. As a finding of fact, I accept Dr McPhee’s conclusion that Mr Barry has a condition which is an aggravation of a pre-existing congenital vulnerability and that the accident on 21 October 2001 has resulted in a 5% impairment to his lower spine. It seems coincidental that the accident occurred almost a week after a suggestion of redundancy. Nevertheless, the medical evidence which provides objective information about the stated conditions has to be given precedence over the perceptions of possible contrived evidence by the applicant.
38. The Tribunal also notes the decision of Commonwealth of Australia v Beattie (1981) 35 ALR 369, where at 378 it was held that pain which emanates from work activity may constitute an aggravation of a pre-existing injury, even though no pathological changes take place. It is therefore a question of fact for the Tribunal to decide whether there is an aggravation of a pre-existing injury.
39. Also, in the case of Tippett v Australian Postal Commission (1998) 27 AAR 40 at 44, his Honour Finkelstein J stated:
“What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corp v Percival (1988) 20 FCR 176; 9 AAR 206 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it, that is not so for compensation law where it is fundamental that the symptom of an injury is part of that injury.
Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment, then the employee will have suffered a compensable injury: Commonwealth Banking Corp v Percival at 179-180; 209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee’s employment: Canberra Abattoir Pty Ltd v Asioty (unreported, Fed Ct, FC 26 April 1988) a proposition which was not disturbed on appeal at Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.
However, as was pointed out by the Full Court and The Commonwealth and Beattie at 201 per Evatt and Sheppard JJ:
‘It does not follow in every case that a worker with a pre-existing injury who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.’
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that caused the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
…..”
40. In this case, an aggravation of a pre-existing condition seems to be supported by all four orthopaedic specialists, notwithstanding some minor variations in causation or degree of damage. Considering that evidence together with the above authorities, Mr Barry has pain, a symptom of an injury and therefore part of an injury. Even though his injury is an aggravation of a pre-existing vulnerability or injury, as it occurred as a result of his employment as an employee of NDC, he has an injury within the meaning of section 4.
41. Even though he has an “injury” under the Act, is he entitled to compensation under section 19 of the Act? To be so entitled, he must satisfy the requirements of section 4(9) in that he must have an incapacity suffered as a result of an injury which is either –
(a) an incapacity for any work; or
(b)an incapacity to engage in work at the same level in which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened (my emphasis).
42. The respondent’s claim was not for total incapacity under section 4(9)(a). Accordingly, if the claim is to succeed it must fall within section 4(9)(b). This requires the Tribunal to satisfy itself in relation to the following questions –
(i) when did the “injury” happen?
(ii)what was the work in which the employee was engaged for the Commonwealth or a licensed corporation immediately before the injury happened?
(iii)what was the “level” at which the employee was engaged to work immediately before the injury?
(iv)is the employee incapacitated from engaging in work at the “same level” at which he or she was engaged to work by the Commonwealth or a licensed corporation?
(v)where necessary, is the incapacity one which prevents engagement in “any other work” which the applicant was engaged in immediately before the injury happened (Comcare Australia v Rowe [2002] FCA 1034).
43. In relation to the first two questions above, the injury occurred on 21 October 2001 and his duties are broadly described at paragraph 7. In relation to the third and fourth questions in paragraph 42, what level of work was the applicant performing and is he incapacitated from engaging in work “at the same level” as that in which he was previously occupied. In considering the meaning of the term “level” one must first have regard for the concept of “incapacity for work”. The High Court considered that terms in the case of Arnotts Snack Product Pty Ltd v Yacob (1985) 155 CLR 171. At 178, Mason, Wilson, Deane and Dawson JJ noted that:
“It follows that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work. Under s.11(1), an applicant’s entitlement to compensation will depend on his loss of earning power. This flows, not from the concept of partial incapacity for work, but from the nature of the express limitation which the sub-section places on the amount of compensation payable…”
44. What does it mean to have work “at the same level” as required by section 4(9)(b)? This term was considered in the case of Re Prica and Comcare (1996) 44 ALD 46, where at 51 the Full Tribunal said:
“….The reference to ‘level’ could be construed as a reference to a grade or salary level or could be a reference to the nature of the work in the sense of its characteristics, which will include its degree of difficulty. If the former construction were adopted it would produce the apparently anomalous result that a person with severe (or moderate) disabilities would be found to lack any incapacity for work as long as they continued to occupy the same grading or earn the same salary as at the date of the injury. The anomaly would not arise under the latter construction. A finding of an incapacity itself does not necessarily result in any entitlement to periodic or lump sum compensation under the Act. There are additional requirements in ss 19, 24 and 27 concerning those issues. Hence a construction of s 4(9)(b) which permits a finding of an incapacity for work in circumstances where the applicant subsequent to an injury is engaged in light duties at their former salary does not produce any anomaly within the Act and recognises that incapacity for work is a relative concept and a matter of degree.”
45. Also, in Re Sabioni and Comcare (1999) 30 AAR 150 at 157; 61 ALD 305 at 307 Senior Member Dwyer accepted that the combined effect of sections 14 and 19 of the Act is that there is no entitlement to compensation for incapacity to work under section 19 if there is no loss of earnings and future incapacity resulting from compensable injury.
46. Taking account of the High Court’s consideration of incapacity for work in Arnotts case as well as the authorities in Re Sabioni and Re Prica, I have concluded that the word “level” within the key clause “at the same level” refers to the work value, or the quality of the work in terms of its complexity and rewards, which includes pecuniary rewards and job satisfaction, the latter being a measure of work value. More specifically, this refers to the level of knowledge, judgment, responsibility and other aspects which relate to the motivation and enjoyment attached to the ‘level’ of work involved for the applicant.
47. In considering entitlement to compensation under section 19, it is also relevant to consider the amount which the applicant can earn in “suitable employment”. But what could be regarded as “suitable employment” for Mr Barry in the circumstances of this case? It is clear that a finding of incapacity does not of itself result in an entitlement to incapacity payments under section 19. That assessment first requires a determination of what is “suitable employment” for the applicant. That term is defined in section 4(1) above and must be seen to be consistent with the meaning of the term “at the same level” as discussed above. It is understood that Mr Barry was not a permanent employee of Telstra and therefore sub-paragraph (b) of that definition would apply. In assessing “suitable employment” under sub-paragraph (b) of that definition, one would need to have regard for the matters listed in sub-paragraph (a)(i), (ii), (iii) and (iv) of that definition as well as any employment (including self employment).
48. The considerations which are relevant to this assessment are matters such as:
(a)The applicant’s age, experience, training, language and other skills; suitability for rehabilitation or vocational retraining; location of employment in relation to his place of residence and other relevant matters;
(b)The application of knowledge. A simple repetitive activity or aspect of work may not require anything other than knowledge (or skill). Such task probably can be learnt quickly and easily by most people. Other activities of work range in level of knowledge required and may require moderate to complex mental processing or decision making in applying knowledge required. There may also be a need for fine motor skill or well developed skill in construction of language to applying knowledge.
(c)Experience. The basic level of knowledge required to perform most tasks usually is supplemented by experience. Beyond the range of routine or repetitive tasks involved in work at a low level, knowledge required is a key factor and is fundamental as depicted in (b) above. This might need to be supplemented by additional experience commensurate with the work or tasks to be achieved.
(d)Judgment. At even the most basic levels of work, knowledge and experience usually requires supplementation of a degree of reasoning or judgment. At a relatively low level, work, even rudimentary manual work, would require a level of judgment that would require at least an ability to draw conclusions from observations and facts involved in the person’s work. Added to this, there can be various degrees of mental processes or reasoning capacity which is involved in the judgment involved in work. In a particular case, more difficult problems can be commonplace and the reasoning process and the ability to draw conclusions and make decisions can become more complex, with a greater level of uncertainty about the facts upon which decisions must be based. These mental processes, while abstract to some degree, can, define the level of complexity of judgment for particular jobs. All of these factors can form a basis of measurement or grading into levels for determining what might be “suitable” or equivalent to the work ordinarily done by a particular employee.
(e)Creative thought is another aspect of work. This is usually less pervasive particularly in the work done by those involved in trade and manual work but is not uncommon in the work of many people involved in manufacturing or creative industries, or in some aspects of white collar work for the Commonwealth. A large number of positions require, or at least are defined as part of the job description, for many positions in the Commonwealth Government and require some degree of novel thinking, inventive powers or ingenuity. Where this requirement exists, it introduces greater challenge in assessing what might be suitable or equivalent work for a person’s ordinary role. There can often be a question, of course, whether a person who is injured might still have the capacity for the quality of work previously performed. It is usually a factor more relevant to intellectual rather than manual types of work.
(f)Human relations/interpersonal relationships. This is a personal quality which is generally regarded as essential to a greater or lesser degree with employees. Whether there is constant interpersonal interaction or only protracted involvement with colleagues or other human beings, is undoubtedly a fundamental aspect of work and an aspect which impinges on the degree of success of a person undertaking their work. Other abstract qualities such as honesty, loyalty and manifestations of personality such as industry, initiative, reliability and a great alacrity in undertaking work, are also characteristics which will be relevant in determining what work the person can or should perform which is “suitable”.
(g)Responsibility. In contemporary government and statutory body employment, job relativities often refer to responsibility. This term can sometimes have a vagueness which makes it difficult to define or which is often misconceived. It can imply specific responsibilities such as for financial matters, workplace efficiency, morale, discipline, welfare, termination and a variety of other terms associated with decision-making and/or human resource management. Responsibility in fact, if it is to have any meaning in a practical sense, must reflect a power to make decisions. These are usually defined in terms of the weight or value of a position in relation to the decisions which the incumbent must make. Decisions concerning the use of the organisation’s resources are often a key responsibility. These, of course, include not only financial expenditure, but the utilisation of staff facilities and the brand or good will of the organisation. Responsibility in government positions can also involve decision-making which affects confidence in the government or a department, by the public at large.
(h)Psychological factors may also be relevant in cases of determining capacity to change in workstream or career for an individual.
49. Has the applicant the capacity to engage in work at the same level? In the present case, medical opinion suggests this will not be possible if it is gauged on physical agility alone, which is a strong consideration as to capacity (Re Prica and Comcare). However, is it possible that the applicant could obtain “suitable employment”? Based on the medical evidence and the applicant’s own indication of and motivation for retraining, he is not mentally or physically incapacitated for work at all, but clearly is not capable of working in his former role which required a high degree of physical strength and agility. His age, experience, suitability for retraining and other factors did not reveal any impediment to him gaining “suitable employment” in an unskilled capacity or at the level of training which was required of his former job as a communications rigger. No evidence was offered that the level of knowledge or judgment required in such a role was specialised to make re-employment at the same level improbable. Nor was the level of responsibility or judgment raised as an inhibiting factor in the applicant being able to seek and successfully transition to other employment which was “suitable employment”.
50. In relation to psychological factors, “The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his predispositions and susceptibilities whatever they may be ….”. (The Commonwealth v Smith (1989) 18 ALD 224 at 226). In this case, Mr Barry’s psychological factors were raised as an issue. It was not suggested in evidence, nor was there any indication that these were pathological to any significant degree, but were merely a temporal issue and a consequence of dealing with his circumstances and the anxiety and uncertainty about his condition and his future.
51. Did he have an incapacity for any other work immediately before the injury happened? Mr Barry, after being retrenched, has chosen not to seek any employment but has chosen to pursue a course of study through TAFE in order to provide a new skill set for skill base for work for the future.
52. In determining the amount of compensation that might be payable, section 19(4) requires regard to be had to:
“(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;”
53. In the circumstances of this case –
(a)Mr Barry did not receive any offers of suitable employment after becoming incapacitated for work; and
(b)he never failed to accept any offer of employment, nor did he fail to accept or continue to engage in that employment.
54. However, while Mr Barry did not seek employment under section 19(4)(e) of the Act, the question of his entitlement under section 19 is governed by section 19(4)(f). That subsection applies in determining whether his actions were reasonable in all of the circumstances. Mr Barry informed the Tribunal that he had decided to seek re-training by undertaking a TAFE course. He also informed the Tribunal that he is in receipt of benefits from Centrelink in support of he and his family while he undertakes this course. In the circumstances, therefore, it would seem to be reasonable that Mr Barry has sought to increase his prospects for the future by seeking to become re-skilled in another avenue of employment. Given his age and family circumstances, his capacity for vocational retraining, his industry knowledge and experience, his capacity for positive interpersonal relationships, this also seems eminently suitable and reasonable. This was a matter of his choice and his support via Centrelink benefits is also reasonable in the circumstances.
55. Is he, however, concurrently with his present Centrelink benefits, entitled to compensation under section 19(2) of the Act at least for the period prescribed by section 19? Having made a finding of fact that Mr Barry’s injury of neck sprain is not supported by the evidence as a continuing injury, there is no entitlement under section 19 for that aspect of his claim.
56. In relation to the aspect of his claim dealing with lower back pain or lumbar sprain, the Tribunal has found as a matter of fact based on the evidence of the orthopaedic specialists, that on the balance of probabilities, Mr Barry has an aggravation of a pre-disposition to a spinal injury.
57. Therefore, he has an “injury” within the meaning of the Act. However, it was also accepted as a matter of fact that the evidence of Associate Professor McPhee is to be preferred in assessing the extent of injury and that was accepted as being 5%. The entitlement under section 19 is subject to section 24 which relates to impairment, which is defined, inter alia, as “… damage or malfunction of any part of the body…”. The evidence indicates that this can be expected to be a permanent impairment or injury due to a congenitally based predisposition. Therefore, section 24 is relevant. Section 24(7) of the Act provides that for a permanent impairment other than a hearing loss, if the degree of impairment is less than 10%, then an amount of compensation is not payable to the employee. In these circumstances, therefore, as the accepted medical assessment has placed the applicant’s incapacity at 5%, he is not entitled to recover for this injury.
58. Consequently, the decision under review is affirmed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Member
Signed: Camille Banks
AssociateDate/s of Hearing 17 and 19 November 2004
Date of Decision 23 December 2004
The Applicant appeared in person
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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