Blewitt and Telstra Corporation Ltd
[2012] AATA 25
•19 January 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 25
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2011/1230
) No 2011/4276
GENERAL ADMINISTRATIVE DIVISION ) Re DIANNE BLEWITT Applicant
And
TELSTRA CORPORATION LTD
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date19 January 2012
Place Canberra
Decision The decision under review is affirmed.
...........................[sgd].........................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – compensation for incapacity cervicobrachial regional pain syndrome – relocation to Queensland – whether failed to continue to engage in suitable employment in the ACT – suitable employment - factors relating to reasonableness.
Safety, Rehabilitation and Compensation Act 1988(Cth) ss 4, 19
Brickworks Ltd v Warringah Corp (1963) 108 CLR 568
Comcare v Rawling (1993) 42 FCR 421
Formosa v Secretary, Department of Social Security (1988) 15 ALD 657
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
Sean Investments Pty Ltd v McKellar (1981) 38 ALR 363
Woodbridge v Comcare (1994) 20 AAR 196
Re Chamberlain v Comcare [1997] AATA
Re McQualter v Comcare [1990] AATA 605
Re Prica v Comcare (1996) 44 ALD 46REASONS FOR DECISION
19 January 2012 Professor RM Creyke, Senior Member
1. Ms Dianne Blewitt lodged a compensation claim on 26 May 2003 for an injury affecting her right arm, right shoulder and neck, and which caused her to have an aching elbow and numbness in her fingers. The agreed date on which the injury occurred was 29 August 2002. The injury followed a training session for a new computer system.
2. Telstra Corporation Ltd (Telstra), a self-insurer for workers’ compensation purposes under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), compensated Ms Blewitt under section 19 of the Act for her reduced capacity to work. She returned to work on a part-time basis.
3. On 30 November 2010, Telstra decided that under section 19(4)(c) of the Act her entitlement to compensation was to be reduced as of 14 December 2010, because she had voluntarily removed herself from suitable employment with Canberra Connect. The decision was affirmed on 4 February 2011, following a reconsideration of the initial decision.
4. Following a request by Ms Blewitt, a further reconsideration was undertaken on 16 March 2011, which again reaffirmed the initial decision.
5. Ms Blewitt sought Tribunal review of both reviewable decisions on 4 April 2011. That is matter No 2011/1230.
6. On 10 June 2011, Telstra made a further decision which varied the adjustment percentage being applied to Ms Blewitt’s Normal Weekly Earnings (NWE) and increased compensation payments from 75 per cent, to 90 per cent. The increased payment was to be effective from 7 January 2011, the date Ms Blewitt commenced employment in Brisbane.
7. The letter indicated that the reassessment of the payments to Ms Blewitt were based on her normal weekly earnings being $1178.78 per week, her adjustment percentage being 90 per cent; and her ability to earn being $500.25 per week. The letter noted that under section 19 of the Act, Ms Blewitt was eligible for incapacity payments at the rate of $560.65 gross per week.
8. Ms Blewitt requested a reconsideration of this second decision on 30 August 2011. On 23 September 2011, the third reviewable decision affirmed the second decision. Ms Blewitt sought review of this decision by the Tribunal on 5 October 2011. This is matter No 2011/4276.
9. Both applications were heard by the Tribunal in Canberra on 19 December 2011.
History
10. Ms Blewitt, born in 1955, commenced full-time employment with Telstra in 1997, undertaking work which involved considerable keyboard and computer-related tasks.
11. On 29 August 2002, Ms Blewitt suffered an overuse injury described as cervicobrachial regional pain syndrome, during her employment with Telstra.
12. As a result of her injury Ms Blewitt was unable to return to full-time work and has since been engaged in part time work, generally at 20 hours a week.
13. Initially, she remained at Telstra working at that reduced rate. However, Ms Blewitt was made redundant by Telstra on 23 June 2003 when the Queanbeyan office of Telstra was closed, and she was not offered a position elsewhere in the company. She subsequently obtained employment for herself in the ACT Public Service, working with Canberra Connect, the government call centre (the ACT job).
14. Ms Blewitt’s condition means that although she can drive a car, she is not able to manage journeys for more than one hour without aggravation of her symptoms. She requires assistance with cooking and housework and is unable to do vacuuming. She shares the task of cleaning bathrooms with her husband. He hangs the washing on the line and brings it in. Ms Blewitt irons, but for short periods only. She can do the shopping, but requires help loading the bags into the car. Her ability to garden is now restricted, and she does not mow lawns, or take out the garbage bins. She is no longer able to do sewing.
15. In 2010, Ms Blewitt was working 20 hours per week in Canberra Connect and was paid $500.25 gross per week. She was working two full days and one short shift. She said the work was initially manageable, but as the size of the call centre increased, she became much busier. When that happened, Ms Blewitt said she ‘was struggling’.
16. Despite her difficulties, she continued to work for 20 hours a week. She said she loved the work, Canberra Connect was supportive and she was able to take breaks as needed. She noted, however, that even in that supportive environment at times she had to take time off work. Her longest break was of some five weeks from late November 2009 till January 2010, on Dr Eaton’s advice. She initially returned to work in January 2010 only for 12 hours a week, but gradually increased to 20 hours. She said that on occasions she continued to need short periods – two to three days - of leave because of her condition.
17. During 2009 Ms Blewitt was given cortisone injections in her neck to reduce the pain, but after the initial injection, the beneficial effects of later injections did not last for any length of time. In August 2010, Ms Blewitt was advised by Dr Eaton to try acupuncture. This proved successful and Dr Eaton’s clinical notes indicated that with acupuncture her conditions were being managed satisfactorily in the latter part of 2010.
18. Ms Blewitt has a daughter in Brisbane who was having difficulty managing working and childcare. During 2010, Ms Blewitt had made several trips to Brisbane for periods to assist her daughter. She said these trips occurred every four to six, or on one occasion, eight weeks.
19. Partly for this reason, Ms Blewitt and her husband decided to move permanently to Brisbane. The decision was not an easy one since Ms Blewitt had lived all her life in Queanbeyan, and she has a sister in a nursing home in the region and a son living in Canberra. Another son lives in Brisbane. However, it was her desire to assist with the grandchildren which eventually led the couple to make the move.
20. She said her symptoms had lessened following the move, although she continued to have acupuncture but not weekly, as she was doing while working at Canberra Connect. Ms Blewitt said that acupuncture has proved to have more long-lasting benefits than cortisone injections. Nor does she need to visit the doctor as frequently for medication.
21. Ms Blewitt obtained work with Premier Plumbing, commencing in the week of 7 January 2011. Initially Ms Blewitt said she was doing 20 hours a week. However, the need for her services has reduced and her hours had been reduced to about 7.5 hours a week. Ms Blewitt said she is looking for alternative employment.
22. Prior to the move, she contacted the Claims Manager at Allianz Insurance handling her compensation claim to ask how the move would affect her compensation payments. The initial contact was on 3 March 2010. A further email was sent by Ms Blewitt on 15 March 2010, noting she had not had a response to the email of 3 March 2010. She did receive a response to her second email but only to a query about gym membership. The Tribunal requested that a search be made for that email correspondence. The email dated 3 March 2010 from Ms Blewitt was provided. However, despite Ms Blewitt’s recollection that she eventually received a written response, no email in reply from the Claims Manager was found.
23. Ms Blewitt again contacted her claims manager in September 2010 concerning the financial implications of a move to Brisbane. His emailed response, dated 29 September 2010, was that she would be paid the adjustment percentage of 75 per cent of normal weekly earnings while she was unemployed.[1] She said ‘No mention was made of the Deemed Able to Earn (DAE) amount being factored in’. Ms Blewitt said the information provided in March and in September was important for financial reasons in the decision made to move to Brisbane
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 19(3).
24. Ms Blewitt said she understood from the September email that if she moved to Brisbane and was not working she would suffer a reduction in her compensation payments for that period. She understood this to mean that the calculation of her payments would be based on 75 per cent of her normal weekly earnings. However, she understood that if she was working for 20 hours a week for less pay than she was getting at Canberra Connect, her compensation payments would be adjusted accordingly but that her compensation payments would top up the difference. She said that this was how it was explained to her. She said she did not understand that payments would cease.
25. She also said that if she had known she would be getting less because of her move to Brisbane, she and her husband may not have made the move to Brisbane. She said ‘We were in a very tight financial situation’ as we had to meet the extra payments involved in selling the house in Canberra, buying a house in Brisbane and the costs of relocation.
26. Following the move to Brisbane, and even after she had obtained work with Premier Plumbing, Ms Blewitt said she was getting 75 per cent of normal weekly earnings, less what she had been earning at Canberra Connect before her resignation. However, when the insurance function was taken over from Allianz by Telstra, she was told she would be paid at 90 per cent, less her deemed ability to earn amount. She had found this confusing, and had been told that the only way to sort out the matter was to go to the Tribunal. She was aware that her payments would be considerably less than she was receiving when at Canberra Connect, but she is not sure what she should be getting.
27. At the hearing it was discovered that, despite the decision by Telstra that her adjustment amount should be increased to 90 per cent as she had commenced working, Ms Blewitt was continuing to be paid at 75 per cent, less her deemed ability to earn amount. In other words, the Telstra agreement to pay Ms Blewitt at 90 per cent, backdated to 7 January 2010, had not been implemented. Counsel for Telstra promised to raise the matter with Telstra with a view to rectifying this omission.
28. Ms Blewitt said when she first moved to Brisbane she searched the internet for work. At that point, Allianz Insurance was indicating the need for Ms Blewitt to find work and she said she was quite prepared to work 20 hours a week. She said the reduction in her payments also was an incentive to do so. Work for 20 hours a week in call centres and data input work was plentiful but she said, although qualified, she was trying to avoid such work on Dr Eaton’s advice and because she knew it would aggravate her injury.
29. She said prior to her departure from Canberra, Dr Eaton had recommended she try to avoid call centre work in Brisbane. She acknowledged, however, that she had not been certified as unfit to work in a call centre. On 4 December 2010 Ms Blewitt had emailed Dr Eaton asking that he write a letter to Allianz concerning her need for continuing gym membership. In her letter to Dr Eaton she said:
Also at our last consultation we discussed that I might seek a different type of employment as sitting at a keyboard is probably an aggravation to my injury. Allianz are putting the pressure on for me to find employment & I could do so quite quickly if I chose to work in the same type of job. Can you also write another letter recommending that a change of job type to something with less sitting & more opportunity to move around would be a good thing.
30. Ms Blewitt conceded at the hearing that, in effect, his advice was that ‘It would have been preferable if you could have found a job that paid $500.00 on 20 hours which involved less sitting on the keyboard, notwithstanding [a] supportive employer’.
31. Ms Blewitt also acknowledged at the hearing that the kind of call centre work she was doing in Canberra was available in the Brisbane CBD. She said she would try to avoid such employment in the CBD as she was located about 35km away. The drive took some 1.5 hours, the traffic was ‘horrific’, and she had never driven to the city. She also said it was uncomfortable for her to be in a car for that length of time.
32. Although counsel for Telstra pointed out that depending on the time of day, the journey would only take between 45 and 60 minutes, Ms Blewitt said even if that was correct she would be reluctant to seek work in the CBD because of the driving in the city. However, Ms Blewitt said going to the CBD would not be necessary, since even if nothing else became available, call centre work was available closer to where she was living and she would seek work there, rather than in Brisbane city.
Medical evidence
33. Ms Blewitt’s condition has been treated conservatively with a combination of pain-killer medication, cervical root injections, exercise, physiotherapy, and from the latter part of 2010, with acupuncture. Major surgery has not been considered appropriate, although it may be needed in the future.
34. A CT scan of her cervical spine on 5 December 2007 showed degenerative changes in the right facet joint at the C4/5 level, ‘marked erosive degenerative changes in the right facet joint’, and a narrowing of the right intervertebral foramen at the C5/6 level. An MRI scan of her cervical spine on 21 December 2007 showed ‘C5/6 spondylosis with right C6 foraminal stenosis and associated nerve root compromise’.
Dr Eaton
35. Dr Garth Eaton, occupational physician, has been treating Ms Blewitt at the Canberra Injury Management Centre since 2003. In a report of 16 July 2011, he recorded Ms Blewitt as saying: ‘Workload … was …excessive and [Ms Blewitt] was required to do an excessive amount of repetitive computer duties’. He attributed her accepted condition to an ‘established cervical spondylosis and C6 nerve root irritation/entrapment,’ which became symptomatic due to the nature of her work at Telstra.
36. After Ms Blewitt was made redundant by Telstra, and she commenced working with Canberra Connect, Dr Eaton reported that ‘It is more probable than not that Ms Blewitt’s condition has been significantly contributed to by workplace activities, particularly excessive and intensive computer duties’. He considered her condition had stabilised and foresaw no major deterioration or improvement. Prior to her move to Brisbane she had been working 20 hours per week, the maximum number of hours that he recommended.
37. In a report of 8 December 2010, Dr Eaton, wrote: ‘I would recommend she not work in an intensive computer position, carry out large amounts of data entry or work in a position where she has to sit in front of a computer for extended periods’.
38. However, the clinical notes of Dr Eaton for the period immediately prior to Ms Blewitt leaving the Canberra region, record:
·2.2.10: Going well.
·11.5.10: Going well. Continue.
·2.8.10: Back pain ++? Cortisone Injection. … Review later. Examination: Pain Left Scapular Pain. Mobic 15mg 1 daily. Referral to Oliver Cheng. Massage, Acupuncture.
·7.9.10: Going well. Continue Rx Massage, acupuncture. Off to Brisbane. Examination: Improved +++.
·2.11.10: Off to Queensland. Going Well. Seeing Oliver Cheng, 1 more sessions (sic). ISQ [‘In status quo’, that is, nothing has changed].
Dr Azoury
39. Dr JK Azoury, her treating general practitioner, in his report of 9 September 2009, confirmed the diagnosis of her condition provided by Dr Eaton. However, in his opinion, Ms Blewitt did not have any pre-existing condition. He noted, however, that the MRI and CT scan reports showed ‘C5/6 spondylosis and right C6 foraminal stenosis with associated nerve root compromise’, degenerative conditions which he said were ‘the most likely cause of her regional pain syndrome’. His view was that full resolution of the condition was unlikely. He said in his opinion she was ‘fit for her work keyboarding with … restriction[s] of 5 minutes break per hour’ for a total of 20 hours a week, restrictions that should be maintained indefinitely.
Dr Cairns
40. Dr Anthony Cairns, consultant orthopaedic surgeon, provided a report for the insurance company, on 4 August 2009. In his opinion Ms Blewitt’s disability ‘derives from underlying, age-related degenerative changes involving the C5/6 level of her cervical spine’. His view was that her symptoms had been ‘symptomatically provoked and aggravated by the nature of her work activities, but [were] not caused thereby’. It was also his opinion that ‘the effects of any work-related contribution/aggravation have ceased, her ongoing disability derived from the underlying, pre-existing pathology’.
41. Dr Cairns’s view was that Ms Blewitt’s conditions were likely to continue and were not likely to improve. In his opinion, her work commitments of 20 hours per week with restrictions were reasonable.
Dr Burke
42. Dr Nicholas Burke, consultant occupational physician, reported on 3 August 2011. He diagnosed ‘chronic neck and upper limb pain associated with cervical spondylosis, with probable compromise of the right C6 nerve root’. In his view Ms Blewitt was capable of working at her existing rate of 20 hours per week. He said she ‘would be best suited to a position which is reasonably sedentary but allows her to regularly adjust her posture throughout the working day’ and that she ‘avoids prolonged sustained static activity of the neck/shoulder’. He also believed that Ms Blewitt’s position with Canberra Connect ‘although not ideal was … suitable employment’.
Mr Cheng
43. Mr Oliver Cheng, registered acupuncturist, reported on 16 November 2010, that ‘Ms Blewitt had responded well to treatment with minimal discomfort of neck and scapular pain at the last session. She believes the treatment has helped her in managing her pain and discomfort on her right neck and shoulder’.
Legislation
44. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) section 19.
Issues
45. The issues to be tested as at 14 December 2010 are:
·What was Ms Blewitt’s entitlement to compensation for incapacity under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act)?
·What was Ms Blewitt’s adjustment percentage for the purposes of section 19(3) of the Act?
·Was it necessary to reduce Ms Blewitt’s rate of incapacity payments on the grounds that, after becoming incapacitated for work, Ms Blewitt received an offer of suitable employment by Canberra Connect and, having accepted that offer, she failed to continue to engage in that employment (section 19(4)(c))?
If so, should her ability to earn be assessed against her work with Premier Plumbing or with Canberra Connect?
CONSIDERATION
46. Ms Blewitt suffers from a condition diagnosed as ‘cervico-brachial regional pain syndrome’. As Dr Azoury, her general practitioner, helpfully explained the condition means her pain is cervicogenic, that is arising from the neck; it is brachial, that is, affects the arm; and regional, that is, it affects her right side predominantly, rather than being generalised.
Has Ms Blewitt suffered incapacity for work as a result of her compensable injury?
47. There is no issue that Ms Blewitt has an overuse injury, diagnosed in 2002. That was accepted by Telstra, her former employer. As a consequence of that injury Ms Blewitt has only been able to work part-time to a maximum of 20 hours per week. That incapacity continued even though she obtained alternative employment with Canberra Connect, an ACT government call centre. An attempt to work 25 hours a week in that employment was not pursued.
48. The medical evidence from Dr Eaton was that her condition had stabilised and plateaued. He did not recommend she increase her working hours. Dr Azoury’s view was that full resolution of her condition was unlikely and the restrictions on her keyboarding work should be maintained indefinitely. Dr Cairns said that ‘in the absence of any further treatment/intervention’, the restrictions on her time keyboarding ‘are permanent’. Dr Burke’s view was that she was capable of working for 20 hours a week in a ‘reasonably sedentary’ position which should not involve ‘sustained static activity of the neck/shoulder’. Dr Cheng reported Ms Blewitt’s belief that acupuncture had assisted her manage the discomfort due to her condition.
49. Despite conservative treatment, her condition, although stabilised, is unlikely to improve. Her condition is now being contributed to by degenerative spondylosis in her spine and in time Ms Blewitt may need surgery in response. That condition, on the medical evidence by Dr Eaton, Dr Azoury, Dr Cairns and Dr Burke, limits her capacity for work to 20 hours a week.
50. According to Dr Cairns’ evidence, it was her spondylosis rather than her cervico-brachial regional pain syndrome which was now causing her discomfort. However, he conceded that her symptoms had been ‘provoked and aggravated’ by her work, and the Tribunal finds that even he agreed that there was a causal connection between her employment and her accepted condition, although his opinion was that the connection no longer existed. He was alone among the medical and allied practitioners in that view and the Tribunal does not accept his opinion.
51. In the light of the medical evidence, and counsel for Telstra’s concession to this effect in the agreed facts, the Tribunal finds that there was no question that Ms Blewitt had suffered a compensable injury, that the injury causes her pain or discomfort, that it has limited the amount of work and other activities she is able to do, and that the effects of that injury have continued and are likely to do so indefinitely.
What amount of weekly compensation for incapacity is payable under section 19 of the Act?
52. The rate of entitlement to incapacity payments has to be decided in accordance with the terms of section 19(3) of the Act, based on the formula: (Adjustment percentage x NWE) – AE.
That requires an assessment of the amount of Ms Blewitt’s normal weekly earnings (the NWE amount) and the amount she is able to earn in ‘suitable employment’ (her AE amount). Ms Blewitt’s normal weekly earnings while at Canberra Connect were $1178.78 per week. The Tribunal must make a finding of the amount that an employee is able to earn in ‘suitable employment’, taking into account all relevant matters.[2] What is suitable employment for Ms Blewitt is considered in the following discussion.
Ms Blewitt’s adjustment percentage for the purposes of section 19(3) of the Act
[2] Woodbridge v Comcare (1994) 20 AAR 196 at [45] (Deputy President Breen).
53. The expression ‘adjustment percentage’, and the acronyms NWE and AE are defined in section 19(3); ‘AE’ is further defined in section 19(2).
‘adjustment percentage’ is a percentage equal to:
(a) if the employee is not employed during that week--75%; or
…
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week--90%...
‘AE’ applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
‘NWE’ is the amount of the employee's normal weekly earnings.
54. Ms Blewitt was employed at Premier Plumbing, at least initially, for 20 hours a week, which is 50 per cent, but not more than 75 per cent, of her normal weekly hours. No issue arose in relation to that choice of adjustment percentage.
55. The adjustment percentage used to assess compensation payments for Ms Blewitt was 75 per cent when she was not employed, that is, in the weeks between leaving Canberra in November 2010 until 7 January 2011 (section 19(3)(a)). Ms Blewitt conceded that she had been paid at the 75 per cent rate during this period.
56. The adjustment percentage should have increased to 90 per cent from the week of 7 January 2011, when she was again working at 20 hours a week with Premier Plumbing. Although Telstra conceded this was so in its decision of 10 June 2011, it became apparent at the hearing that payment at that rate had not been activated.
Was it necessary to reduce Ms Blewitt’s rate of incapacity payments on the grounds that, after becoming incapacitated for work, Ms Blewitt received an offer of suitable employment by Canberra Connect and, having accepted that offer, failed to continue to engage in that employment (section 19(4)(c))?
If so, should her ability to earn be assessed against her work with Premier Plumbing or with Canberra Connect?
57. In deciding whether Ms Blewitt had failed to continue to engage in suitable employment, the Tribunal must consider what is Ms Blewitt’s ability to earn. The ‘ability to earn’ (or AE) is defined in section 19(2).
19(2) ‘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.
58. In deciding what is an employee’s ability to earn, the Act requires consideration be given to certain matters. These are set out in section 19(4). Where section 19(4) applies, Comcare’s ‘obligation to an employee will only cease if the applicant’s failure to continue to engage in suitable employment was reasonable in the circumstances: section 19(4)(f)’.[3] Counsel for Telstra maintained that Ms Blewitt’s decision to relocate and to accept work with Premier Plumbing was not reasonable in the circumstances.
[3] Re Chamberlain and Comcare [1997] AATA 17 at [61] (Deputy President Forrest).
59. Among the matters covered in section 19(4) are the requirements of section 19(4)(c) of the Act.
19(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:
…
(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.
60. The requirement is expressed in mandatory form and there is an obligation on a decision-maker to take it into account.[4] The issue is whether Ms Blewitt’s decision to move to Brisbane was a failure to continue to engage in [suitable] employment. In other words is ‘suitable employment’ to be gauged in relation to Ms Blewitt’s work, for example, in Canberra Connect or with Premier Plumbing.
[4] Sean Investments Pty Ltd v McKellar (1981) 38 ALR 363; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
61. These are the principal issues in this matter and the responses to the issues provide the answer to the question of the level of Ms Blewitt’s entitlement to compensation for incapacity under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
‘Suitable employment’
62. The Act defines ‘suitable employment’ in section 4(1).
4(1) ‘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 was a permanent employee of … a licensee on the day on which he or she was injured and who continues to be so employed--employment by … 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; …
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).
63. Ms Blewitt, who is 57, left school at year 10 and worked for two years as a clerk at the Commonwealth Bank, was at home for the next 14 years, and then recommenced work as a clerk in a printing organisation before joining Telstra, eventually full-time. At Telstra she was initially employed at the directory call centre, became a work manager, and then client liaison officer, work which continued after she was injured and was restricted to work on a part-time basis. After being made redundant by Telstra, she worked at the call centre, Canberra Connect.
64. Accordingly her experience has been of clerical, customer liaison, data entry and advice work. These were responsible positions requiring good communications skills, computer proficiency, accuracy in data recording, knowledge of areas of work and ability creatively to call on that knowledge to provide useful advice. These are transferable skills.
65. The first issue is whether the work which she has performed, predominantly in call centres, is ‘suitable’. Her evidence was that she enjoyed her employment with Canberra Connect, an employer which had been supportive of her part-time employment, permitted regular breaks in accordance with her medical restrictions, and with which she had worked for seven years. She said that although her accepted condition continued to be aggravated by her employment with Canberra Connect, necessitating her taking an extended period off work at the end of 2009, and shorter periods in 2010, she would have continued in that employment had family needs not led to her move to Brisbane.
66. The predominant medical evidence was that the call centre work, although it aggravated her symptoms, was manageable at the reduced hours, and with the restrictions under which Ms Blewitt was working. This was the view of Dr Azoury, Dr Cairns and Dr Burke. It was also acknowledged by Ms Blewitt, who, in her statement of 1 July 2011, said that her intention was to get call centre work in Brisbane since ‘I did not think there was any other work I could get’.
67. Dr Eaton’s letter to Comcare suggests otherwise. He wrote in December 2010, that she should not work in an intensive position involving sitting in front of a computer for extended periods doing large amounts of data entry. That opinion was expressed in a letter he wrote at Ms Blewitt’s request, confirming his oral discussion with her about a possible change of employment on her relocation to Brisbane.
68. At the same time, his clinical notes during 2010 indicated that although he had recommended a cortisone injection in August, and her referral to an acupuncturist for pain relief at that time due to a flare up in her pain, generally she was managing well during that year. His clinical notes indicated that during 2010, she was consulting him only every two to three months, and the notes he made himself following those consultations consistently stated that Ms Blewitt was ‘going well’.
69. Although his letter and recommendation are couched in mandatory language, the circumstances in which the report was written indicate that his recommendation was just that; it was not a certification that she was unfit to work in a call centre environment. So much was conceded by Ms Blewitt at the hearing.[5] On that basis, there is no medical evidence to suggest that Ms Blewitt is unfit for such work. The Tribunal finds that work in a call centre, although not ideal, was ‘suitable employment’ for Ms Blewitt for the purposes of section 4(1) and is relevant to her ‘ability to earn’ for the purposes of section 19(2), (3) and (4). No evidence was provided to the Tribunal about other occupations relying on comparable skills for which Ms Blewitt could apply.[6]
[5] Cf Comcare v Rawling (1993) 42 FCR 421 where at the time of her relocation the employee was totally unable to earn.
[6] Cf Re Goodricke and Comcare [2011] AATA 941 at [23]-[27].
70. If Ms Blewitt obtained work in Brisbane at the same level in the sense of its characteristics including degree of difficulty, as her work with Canberra Connect, that too would be ‘suitable work’.[7] However, her obtaining work at a level not commensurate with her ‘age, experience, training, language and other skills’, namely, her work with Premier Plumbing, was unreasonable for the purposes of section 19(4)(f)) as she had a capacity for work at the level she enjoyed at Canberra Connect which, on the evidence at the time of her relocation, had not diminished.[8]
[7] Re Prica and Comcare (1996) 44 ALD 46 at 51 (Senior Member Bayne, Member Anforth and Member Re).
[8] Eg Re McQualter and Comcare [1990] AATA 605 at [26]-[27].
71. The matter cannot be concluded, however, without consideration of whether there were any other grounds which made it reasonable for Ms Blewitt to move to Brisbane and to engage in work of the kind she was doing at Premier Plumbing.
Other factors to be taken into account in relation to ‘ability to earn’
The Tribunal is required to take into account a number of factors for the purposes of deciding the ‘amount per week that an employee is able to earn in suitable employment’. These include the amount per week that the employee is earning (section 19(4)(a)). Ms Blewitt is employed by Premier Plumbing and the amount she earns in that employment which is substantially less than the amount she was formerly earning, is a matter which the Tribunal has taken into account in relation to its finding on what is ‘suitable employment’ for Ms Blewitt.
The other matter which is raised in this application for review is section 19(4)(g) ‘any other matter that Comcare considers relevant’. Three such matters were considered: the advice Ms Blewitt received from her claims manager and on which she relied in making the decision to relocate; the failure by Telstra to offer Ms Blewitt rehabilitation or vocational retraining; and the desire of Ms Blewitt to assist her daughter with the children.
Factors relating to reasonableness of relocation - adequacy of advice (s 19(4)(g))
72. Ms Blewitt maintained she might not have made the move had she not assumed, on the advice given, that once she was employed she would again be able to rely on adjustments to her salary being made to bring her earnings back to the level she enjoyed prior to her departure from employment in Canberra.
73. The advice she received from Allianz Insurance about the effects of a move was not as clear cut as it might have been. The content of the advice on 29 September 2009 from her claims manager was:
I will be using the figures from your payslips so if the figures change then our payment to you will change accordingly, if you do not work then we automatically calculate your pay based on 75% of your NWE.
Ms Blewitt said she understood from this that when she started work, her payments would resume at 90 per cent of her NWE, and she assumed that any shortfall would be made up by Telstra.
74. The Tribunal notes that the response to Ms Blewitt’s question as to what compensation she would be entitled to if she moved to Brisbane that if her payslips changed, ‘our payment to you will change accordingly’, was ambiguous. It could have meant payments would increase to top up to the Canberra Connect level, or that the figure would go down if her income went down.
75. Ms Blewitt’s experience with changes in amounts of compensation, as detailed in the email exchange with her Claims Manager on 29 September 2009, supports her assumption that when her salary went up, her compensation payment went down. Logically on this basis, if her salary went down, her compensation payment would increase. Her email to Mr Bouquet-Ileri, her Claims Manager, on 29 September 2010 records her experience of managing an overpayment when advice of a salary increase she had received was not heeded by Allianz Insurance, and she was required to ‘repay a substantial amount of money’..
76. That exchange took place in the context of her being in ‘suitable employment’ with Canberra Connect. There is no necessary correlation about that situation and the situation where she is not employed in ‘suitable employment’. The advice provided to her was deficient in that the Claims Manager did not explain that the formula in the Act required the deduction of her ‘ability to earn’ amount, and that this was the greater of either the amount she could earn in suitable employment or her actual earnings. In other words, if she changed employment to a position paying less and not considered to be ‘suitable’, that too would affect the amount of her payment. That omission was unfortunate, but the Tribunal is not estopped by it from making the correct decision at law.[9]
[9] Brickworks Ltd v Warringah Corp (1963) 108 CLR 568 at 577 (Windeyer J); Formosa v Secretary, Department of Social Security (1988) 15 ALD 657 at 664-5 (Davies, Burchett and Gummow JJ).
77. The Tribunal finds, as a matter of common sense, that it was not likely that her compensation payer would continue to top up her salary to her Canberra level regardless of the kind of work she obtained. That would open the way for an injured employee to engage in work, such as self-employment in the arts, for which the person might get little payment. It would be to ignore the requirement in the Act that the former employer is only required to top up the compensation payment to a level consistent with the person’s ‘age, experience, training, language and other skills’, in other words, that the person must exploit their ‘ability to earn’. To find otherwise would be unreasonable and despite Ms Blewitt’s misunderstanding the Tribunal is not permitted to ignore what the Act says.
Failure of Telstra to consider Ms Blewitt’s suitability for rehabilitation or vocational retraining (section 19(4)(g))
78. A factor to be taken into account in deciding what is ‘suitable employment’ for an injured employee is the employee’s suitability for rehabilitation or vocational retraining. Counsel for Ms Blewitt noted that Telstra had not provided any such assistance to Ms Blewitt to obtain employment after she accepted a redundancy, nor by implication had they raised with her the option of assisting her with vocational retraining. Ms Blewitt said she was unaware she could have asked for any retraining assistance. So although Telstra assisted her with payments for medical expenses, including those relating to gym membership which could be characterised as rehabilitation, she remained unaware that she could have sought further assistance.
79. That argument, however, does not assist Ms Blewitt. As she had, without assistance, obtained suitable employment with Canberra Connect and had continued, relatively happily, in that employment for about 7 years, it would not have been reasonable to expect Telstra to provide such assistance. Through her own efforts, Ms Blewitt had managed to find and retain suitable employment over a considerable period. Ms Blewitt had not required any retraining to do so.
80. The Tribunal having found that at present call centre work is ‘suitable employment’ for Ms Blewitt, and Ms Blewitt having given evidence that such work is readily available in the outer area of Brisbane where she works as well as in the Brisbane city, there is no practical need for Telstra to provide her with rehabilitation or vocational training for another form of employment. In those circumstances, the absence of such assistance is not a factor relating to the reasonableness of her move or her ability to earn in section 19(4)(g). Should her condition deteriorate such that call centre work is no longer suitable, Ms Blewitt may choose to seek such assistance to find other ‘suitable employment’.
Other factors which go to ‘reasonableness’ of relocation (s 19(4)(g))
81. Apart from the misleading advice that Ms Blewitt received, no further factors which might relate to the reasonableness of the relocation were discussed. It was accepted that the predominant reason that Ms Blewitt moved to Brisbane was to assist her daughter and partner with their children. This was in her personal sphere and was not work-related. As a consequence, although a desire to assist family is laudable, it is not a factor to be taken into account in deciding whether her move to Brisbane was ‘reasonable’.[10]
[10] Re Chamberlain and Comcare [1997] AATA 17 at [54] – [55] (Deputy President Forrest).
Conclusion
82. In those circumstances, Ms Blewitt had received an offer of suitable employment in her work with Canberra Connect and had ‘failed … to continue to engage’ in that employment when she relocated to Brisbane and obtained employment with Premier Plumbing which was not at the same level as the employment in Canberra from which she resigned. That resignation was accordingly not ‘reasonable’ for the purposes of section 19(4)(f). Nor were there other circumstances (section 19(4)(g)) which changed that outcome. In those circumstances the decision under review is affirmed.
83. The Tribunal affirms the decision under review, but notes the undertaking by counsel for Telstra that Ms Blewitt should be receiving compensation payments at 90 per cent of her NWE, that is, at $1178.78 per week, less the amount she is deemed to receive from her ability to earn in suitable employment.
Date of Hearing 19 December 2011
Date of Decision 19 January 2012
Solicitor for the Applicant Brian Hatch, Brian Hatch Solicitor
Counsel for the Applicant Dan Shillington
Solicitor for the Respondent Andrew Klein, DLA Piper Australia
Counsel for the Respondent Steve Whybrow
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