Burke and Telstra Corporation Ltd
[2011] AATA 843
•29 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 843
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2403
GENERAL ADMINISTRATIVE DIVISION ) Re SHANE ALLAN BURKE Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Senior Member K Bean Date29 November 2011
PlaceAdelaide
Decision 1. The decision under review is varied so as to provide that:
(a) between 4 May 2009 and 29 November 2009, Mr Burke was entitled to be paid incapacity payments, pursuant to Part II, Division 3 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), on the basis that the amount per week that he was able to earn in suitable employment was nil;
(b) from 30 November 2009 to date, Mr Burke’s entitlement to incapacity payments should be calculated on the basis that the amount per week that he was able to earn in suitable employment was $700; and
(c) as at the date of this decision, Mr Burke’s ability to earn in suitable employment is $700.00 per week.
2. The matter is remitted to the respondent for calculation of the amount of incapacity payments payable to Mr Burke as a result of this decision.
3. The Tribunal:
(a) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(b) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant pursuant to s 67(8) of the SRC Act.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
COMPENSATION – Entitlement to incapacity payments – Nature and extent of incapacity – Ability to earn in suitable employment – Whether applicant failed to seek suitable employment – Whether failure reasonable – Amount applicant could have earned in suitable employment – Decision under review varied.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 19, 37, 67
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 s 4(1)
Commonwealth of Australia v Muratore (1978) 22 ALR 176
Telstra Corporation Ltd v Warner (1994) 20 AAR 259
Versace v Messer (1993) 172 LSJS 409
Wade and Others v Allsopp and Anor (1976) 10 ALR 353REASONS FOR DECISION
29 November 2011 Senior Member K Bean introduction
1. The applicant, Mr Burke, was involved in a motor vehicle accident in the course of his employment with the respondent, Telstra, on 9 September 1995 as a result of which he suffered serious injuries to his right foot. At the time of his injury, he had been working with Telstra since 1985 and had expected to do so for the rest of his life. However, as an indirect result of his injuries, his employment with Telstra was terminated in September 2001 and he has not worked since.
2. Prior to 13 April 2007, the provisions of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) were such that, if alternative suitable employment was not available to Mr Burke within the Commonwealth, he was entitled to receive incapacity payments at the maximum rate. On that date however, the provisions of the SRC Act were amended so as to provide that “suitable employment” for him was not restricted to employment within the Commonwealth. This had the further consequence that, if it could be shown that Mr Burke had not sought suitable employment, within or outside the Commonwealth, his incapacity payments could potentially be reduced.
3. In early 2008, the respondent engaged a rehabilitation service provider, Konekt, to assist Mr Burke and a rehabilitation program pursuant to s 37 of the SRC Act was put in place with a view to assisting Mr Burke to obtain suitable employment.
4. Unfortunately, the program was not successful in achieving that aim. At the conclusion of the program Konekt reported to the respondent that Mr Burke had been unco-operative with the program and appeared unmotivated to return to work. They also reported that they had been able to identify duties which Mr Burke could potentially undertake, which included work as a forklift driver. A market analysis report was also provided by Konekt to the respondent, indicating the availability of the types of employment identified as suitable for Mr Burke, and the applicable rates of pay.
5. After considering this information, on 4 May 2009 the respondent determined that in light of his capacity to undertake suitable employment and the amount he would be expected to earn if he did undertake such employment, as at 4 May 2009, Mr Burke had no current entitlement to incapacity payments pursuant to s 19 of the SRC Act[1]. That determination was affirmed by a reconsideration decision dated 26 May 2009[2] and on 29 May 2009, Mr Burke sought review of that decision by this Tribunal, giving rise to these proceedings.
[1] T79/286
[2] T81/292
statutory framework
6. Section 19 of the SRC Act governs the entitlement of an employee to payments in respect of incapacity[3] and relevantly provides as follows:
[3] For some employees, their entitlements to incapacity payments are calculated under ss 20, 21, 21A or 22. However these sections each require regard to be had to the amount calculated under s 19.
“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:
NWE - AE
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.
…”
7. Section 4 of the SRC Act defines “suitable employment” as follows:
“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 the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed—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).”
8. Sub-s 4(9) also defines incapacity for work as follows:
“(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.”
issues
9. It follows that the issues for determination by me are as follows:
(a) whether, as at and since 4 May 2009, Mr Burke has been incapacitated for work as a result of his compensable injury;
(b) if so, the nature and extent of his incapacity;
(c) what constitutes suitable employment for Mr Burke; and
(d)the amount per week that Mr Burke is able to earn in suitable employment, having regard to the following:
(i)whether, during the relevant period, he has failed to seek suitable employment;
(ii)whether any failure by him to seek suitable employment was reasonable in the circumstances;
(iii)if he has failed to seek suitable employment, the amount he could reasonably be expected to have earned in such employment; and
(iv)any other relevant matter.
10. Before discussing the evidence and considering each of those issues however, I propose to address another issue which arose at the hearing, being the extent to which the respondent bears an “onus” of establishing the matters of which it seeks to persuade me.
the “onus” issue
11. The parties agreed that in relation to the question of any practical onus, the High Court decision of Commonwealth of Australia v Muratore (1978) 22 ALR 176 at 180 was applicable. Therefore, because it was seeking to reduce Mr Burke’s incapacity payments, there was an onus on the respondent to show that the circumstances had changed.
12. However, Mr Wallace, who appeared as counsel for the respondent, contended that the amendment to the definition of “suitable employment” in s 4(1) by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 constituted a sufficient change of circumstances such as to discharge that onus. As I have alluded to above, that amendment had the effect that, after 13 April 2007, employees no longer employed by the Commonwealth may have an ability to earn deemed under s 19(4) of the SRC Act in relation to their capacity to earn in suitable employment, regardless of the circumstances of their separation from employment by the Commonwealth. Prior to that date, where an employee’s employment had been involuntarily terminated, in calculating their ability to earn regard could only be had to Commonwealth employment.
13. I accept Mr Wallace’s submission that this constitutes a significant change in circumstances which satisfies the requirement imposed pursuant to Muratore. It follows that I do not consider that the respondent bears any additional “onus” in relation to any of the issues I have identified above.
the evidence
Background Facts
14. There is no dispute between the parties that, as recounted above, Mr Burke was involved in a motor vehicle accident in the course of his employment on 9 September 1995, as a result of which he suffered serious injuries to his right foot. On 18 October 1995, the respondent accepted liability to pay compensation to Mr Burke for the condition of “fractured first metatarsal, dislocated second toe, MTP joint”[4]. There is also no dispute that Mr Burke has undergone various surgical procedures on his right foot including:
(a)stabilisation of fractures and dislocations with pins – 13 September 1995;
(b) removal of pins and screws – 5 January 1996;
(c) hemi-phalangectomy of the right fourth toe – 11 February 1998; and
(d) amputation of the fourth right toe – 27 October 1999.
[4] Respondent’s Statement of Facts, Issues and Contentions, 26 October 2010.
Mr Burke’s evidence
15. In his evidence Mr Burke said that following the injury and notwithstanding the treatment he has received for it, he has ongoing pain and discomfort in his right foot made worse by certain activities. He says he is not able to use his right foot in the same way he could prior to the injury and that he is restricted in his ability to stand or walk. He said that he could walk 500 metres to his local shops and back, but if he attempted to walk further than this he would suffer increased pain either at the time or later.
16. Mr Burke also provided a written statement in which he said the following in relation to his ongoing symptoms:
“I have very limited capacity to stand or walk for any length of time, especially if under pressure such as in a working environment.
I continue to experience an ache on the lateral side of my foot with occasional ache in the toes, and pain in the top of my foot near the surgical scars.
I can do activities but the next day my foot is in pain and requires rest.
My general flexibility and mobility has decreased.
I have difficulty walking on uneven ground, hills and slopes.
I have found it difficult to obtain satisfactory footwear.
I have to be provided with shoes with a wide fitting.”[5]
[5] Exhibit 3
17. He also said in his statement that during the period after his injury when he continued working with Telstra, he continued to experience pain in his foot. He said towards the end of his employment with Telstra he had been able to cope with some duties in the field, but it did cause him “some problems” and “I was not doing a lot of work”.
18. In his evidence, Mr Burke said that he had not been employed since the termination of his employment by Telstra in September 2001. However, he acknowledged that in approximately April 2008 he undertook a return to work program organised by the respondent and managed by Konekt. He said that he co-operated with this, but it did not lead to him obtaining any employment.
19. Mr Burke said that after his incapacity payments were ceased in May 2009, he approached Centrelink approximately 4 months later. He said he had since been in receipt of Newstart Allowance payments from Centrelink and had also been looking for work through the services offered by Centrelink. He said that in the period between May 2009 and when he approached Centrelink, he looked at the paper each morning, especially on a Wednesday and a Saturday and would “follow up” on any jobs he saw in the paper. He said he saw some jobs that he was interested in but they required experience or qualifications which he did not have and therefore he did not pursue them.
20. He said that after his rehabilitation program ended he had applied for a job as a tram operator, but did not get an interview. A couple of months prior to the hearing, he said that he also applied to a company called Hans Construction which does sub-contracting work for Telstra. However, he was unsuccessful. He said that at the time of the hearing he was working with the Disability Services section of Centrelink with a view to undertaking some re-training. He said at one stage he had enrolled in a TAFE course in horticulture, but this had “fallen through” as it was not clear who would pay for it.
21. In the course of his evidence, Mr Burke was also questioned about a number of statements he had made whilst undertaking the rehabilitation program with Konekt.
22. He was asked about a comment he was reported to have made to a consultant, Ms Ceara Warren, during an occupational skills assessment that he believed the assessment was a “waste of time”[6]. He did not deny making this statement, but said he was not sure why he said it. He was also asked about another comment recorded by Ms Warren as follows:
“Mr Burke stated that [he] would only consider employment if the pay were significantly greater than his current pay rate and stated that if that were the case, he may be able to undertake the duties.”[7]
[6] T46/137
[7] T46/138
23. He said that he did not say that, but did say he wanted a good paying job. He was also asked about a further comment recorded by Ms Warren “I don’t need to work … I won’t work … they [Telstra] have to put up with it”[8]. He acknowledged saying “something to that effect”. He also acknowledged telling Ms Warren that “he was being paid $60,000 annually by Telstra and stated that he did not wish to work unless he were paid at the rate earned by Telstra’s CEO at $10 million annually”[9]. He said that this comment had “come out of his mouth without thinking”. He denied saying to Ms Warren that he did not want to be employed, stating that it was more a case of questioning who would employ him after his injury. Asked as to whether he had told Ms Warren that he would “like a big payout rather than work towards rehabilitation” he said he could not recall saying this.
[8] T46/138
[9] T46/138
24. Mr Burke acknowledged saying to a different Konekt consultant, Mr van Brussel that “I don’t need to work, Telstra has to pay me no matter what”[10]. He said at the time that he was frustrated, mad and angry and was not sure why he had said this. He also acknowledged saying to Mr van Brussel that if he was not attending the return to work program “I would be helping my mate laying down pavers … a couple of hours a week … watching him”[11]. However, he said that he did not mean to suggest by this that he was working with his mate, rather he was watching his mate lay the pavers and socialising.
[10] T51/163
[11] T51/163
25. Mr Burke was also asked about reports by Konekt to the effect that he had behaved obstructively in relation to a “work hardening placement” organised with IKEA. He said that on the day of the placement organised with IKEA it was 37 degrees and he was “heat exhausted, frustrated and confused”. He also indicated however that he had not understood that he would be required to actually work at IKEA on that day and that in any event he had not been provided with modified steel capped safety boots which he would need to perform the duties he was expected to undertake.
26. He acknowledged making a comment to Konekt in 2009 that he was happy to receive income maintenance and not work. He also acknowledged saying to Konekt that he “could get work anytime” as he said that was “what they wanted to hear”. He said that after 10 years of not working he was starting to lose interest, even in training. He said he wanted to do some training in horticulture, but had not been able to achieve this. He denied making a comment in February 2009 to the effect that he was “happy not working”.
27. Under cross-examination, Mr Burke acknowledged that in March 2009, in response to a letter from him, a body called Industrial Labour Service contacted him and asked him to come in with his qualifications[12]. He said he did not go to see them and acknowledged that he had a forklift licence by then. He also acknowledged that whilst he was undergoing the work rehabilitation program through Konekt, he had expressed interest in being a youth worker or park ranger. He also acknowledged that if he had had suitable safety boots he would have been able to participate in the work hardening placement with IKEA for three days per week. He also said he might be able to undertake work with Bunnings and had approached them at one stage. He also said he had thought about approaching Australia Post but had not thought about getting a motor bike licence. He acknowledged that he could undertake work as a road pilot with Telstra with an automatic vehicle. He said he had never thought of hire car driving, although he does drive. He said he was “not prepared” to do heavy vehicle work. He said at one stage he had applied for work as a council worker and had also applied for a job stacking shelves with Woolworths through Konekt. He said he had not thought of purchasing a franchise such as Jim’s Mowing. He said he wanted to be retrained and reskilled.
[12] Exhibit 4
28. In relation to working with a bobcat, Mr Burke acknowledged that he had done this in the past but said that he would not be able to operate a bobcat now because of the movements required with both feet. He did acknowledge however that he was able to operate a forklift and had undertaken a course on Melbourne Cup Day in 2008 as a result of which he had a forklift licence. He said in his evidence that he did not consider that he could operate a forklift all day, but if he was only required to operate a forklift on an intermittent basis, for a few hours per day, this “might be okay”.
29. Mr Burke also acknowledged in his oral evidence that he owns an 18 foot fishing boat which he has had for 5 to 8 years and which is kept on a trailer. He also has access to a “shack” at Port Minlacowie, which is about 200 kilometres or approximately a 3 hour drive from Adelaide. He acknowledged that he regularly takes the boat to Port Minlacowie to go fishing and said that he goes with friends. He acknowledged that he is able to drive the boat and has been going fishing since 2002.
Medical evidence as to incapacity
30. The medical evidence unanimously supports the proposition that Mr Burke’s ongoing difficulties with his right foot restrict his capacity for employment.
31. In a report dated 12 March 2009, Mr Robin Jackson, orthopaedic surgeon, stated:
“Mr Burke would be currently capable of engaging in suitable employment in the open labour market.”[13]
[13] T73/268
32. However he also indicated in his report that there were some restrictions on the employment Mr Burke could undertake, stating:
“He does require specific orthotic boots to wear. The only other restriction I would apply is that he should not be required to spend extended periods of time walking over rough or uneven ground, hills or slopes or negotiating steps or stairs to anything other than a moderate extent and he should avoid heavy lifting and carrying.”[14]
[14] T73/269
He considered that these restrictions would be permanent. He also acknowledged that Mr Burke continued to suffer pain and that he may suffer an increase of pain with certain aspects of work[15].
[15] T73/270
33. In a report dated 3 March 2009, Dr Graham, occupational physician, commented on Mr Burke’s restrictions as follows:
“As stated in my previous report, I would consider him fit for all work which does not include safety critical situations where balance is necessary. I would recommend that he avoid tasks which require heavy lifting which may place strain on the foot and would also recommend that he avoid tasks which require jumping.”[16]
[16] T71/257
He also considered these restrictions to be permanent.
34. Mr Burke’s general practitioner, Dr Cawley, has also consistently stated that he considers Mr Burke to be significantly incapacitated and able to undertake only limited types of employment. In his report dated 15 October 2008, he stated that Mr Burke had “very limited capacity to stand or walk for any length of time”[17].
[17] T53/166
35. Each of the practitioners referred to above also gave more precise oral evidence at the hearing at to the nature and extent of Mr Burke’s incapacity.
Medical evidence as to the nature and extent of Mr Burke’s incapacity
36. In his evidence, Dr Cawley acknowledged that in early 2000 he had advised that Mr Burke could work 5 hours per day for 5 days per week. He also confirmed that in June 2002 he had written a letter to Mr Burke’s solicitors stating that he did not consider Mr Burke would ever be fit for labouring work again, but that he was fit for sedentary work. He also stated in his evidence that he expected Mr Burke’s condition to get worse as he was likely to develop arthritis in his foot.
37. Dr Cawley also confirmed that on 9 February 2008, he had signed a “section 37 plan” in respect of Mr Burke which had as its goal that “Mr Burke to return to new employment with a new employer undertaking a full-time role consistent with his medical restrictions”[18]. Mr Burke’s restrictions as stated in the plan were as follows:
“Mr Burke was assessed by Ms Priest as being capable of performing between medium and heavy work, with maximal lifting of 37.5 kg from ground level, 32 kg to shoulder height, and 27.5 kg to overhead height. Ms Priest recommended that Mr Burke receive regular rest breaks, undertake a graduated return to work plan, and have regular postural changes and weight dispersion through the lower limbs.”[19]
[18] T47/146
[19] T47/146
38. Suitable duties were listed as follows:
“…
- truck driver (long haul);
- mobile plant operator;
- forklift operator;
- bus driver;
- delivery driver;
- Australia Post transport driver;
- retail sales within the fishing/boating industry;
- aquaculture worker.”[20]
[20] T47/146
39. Training was recommended in the following areas:
“…
- forklift licence;
- certificate II in metalliferous mining operations (open cut);
- manual handling training.”[21]
[21] T47/146
40. Dr Cawley also stated in his evidence that Mr Burke had found he “could not tolerate” forklift driving. However, on further questioning it transpired that Dr Cawley had a mistaken recollection that Mr Burke had tried forklift driving and been unable to tolerate it. In fact, Mr Burke had not at any time worked as a forklift driver or undertaken a work hardening program involving forklift driving.
41. Dr Cawley acknowledged that in the second “section 37 plan” signed by him on 27 January 2009, it was correctly recorded that he had advised that Mr Burke would need to work every second day, i.e. Monday, Wednesday and Friday, as he built up his capacity to work and he had also stated that “Mr Burke’s fitness for work would be approached through graduation”[22].
[22] T60/191
42. Dr Cawley was also asked about a medical certificate signed by him on 5 February 2009 in which he stated that Mr Burke was fit to return to modified duties from 5 February 2009 to 24 March 2009 “(at Konekt only)” with the following restrictions:
“He can only have a return to work program involving government departments. This injury pre-dated the administration changes which have occurred.”[23]
He said that he had been hoping that Mr Burke would be given a computer or clerical course as forklift driving was not suitable for him. He also acknowledged that he had signed a further medical certificate on 26 March 2009 certifying Mr Burke fit to return to modified duties from 26 March 2009 to 28 May 2009 with the following restrictions:
“This man still needs retraining. Only training he has received has been forklift driving. However this does not constitute a suitable job. …”[24]
[23] T64/205
[24] T76/279
43. He acknowledged that he had also certified Mr Burke as being unfit for work from 1 April 2008 to 31 October 2008[25] and said in his evidence that Mr Burke was “unfit for any work as no one could find suitable work for him”.
[25] ST20/440
44. He also acknowledged however that on 9 July 2008 he signed a further medical certificate certifying that Mr Burke was fit to return to modified duties from 9 August 2008 to 12 July 2008 with the following restrictions:
“Forklift driving with minimal manual handling. I also strongly recommend retraining. I suggest he starts work 3 hours daily 3/7 week.”[26]
[26] ST38/468
45. In relation to working on a forklift, bobcat or bulldozer, Dr Cawley stated that the main difficulty Mr Burke would have was getting on and off the machine, which was likely to cause him problems.
46. Dr Cawley also acknowledged under cross-examination that he had recorded in his notes for 28 January 2005 that Mr Burke was “working outside again”, although he had no recollection of the circumstances of this work or what it involved. He said it was his understanding that Mr Burke could not do “outside work” or “odd jobs” consistently.
47. Dr Cawley also acknowledged that he wrote to the respondent in late 2008 stating as follows:
“I am delighted that progress is finally being made with regards to Shane’s work hardening programme.
Damian Van Brussel from Connect [sic] has succeeded in locating a trial job at IKEA, where Shane will work 3 days per week with graded increases.”[27]
[27] T57/182
48. Dr Cawley indicated in his evidence that Mr Burke would be able to perform mail sorting if he was able to sit. He also thought Mr Burke could work as a delivery driver or in retail sales in fishing or boating. He also stated that he considered Mr Burke could potentially work as a taxi driver or car park attendant.
49. He acknowledged that he had not prescribed any painkillers to Mr Burke for three to four years.
50. In his evidence, Dr Graham confirmed that when he examined Mr Burke on 27 May 2003, he reported that he was able to run a maximum of 100 metres[28]. He was asked about a statement in his report of 29 May 2003 that Mr Burke was “fit to perform the duties he was performing prior to the injury”[29] and stated that he had understood that following the amputation of his toe, Mr Burke had returned to his previous duties until he had been retrenched. He also confirmed that as recorded in his report of 25 July 2008, he did consider that Mr Burke was subject to restrictions in his capacity to work in relation to “balance and lifting which may place excessive strain on the right foot”[30].
[28] T36/74
[29] T36/75
[30] T49/159
51. Questioned in relation to what he thought Mr Burke could do in the period from March 2009 onwards, Dr Graham said there was nothing which would prevent Mr Burke from driving a forklift or doing other driving work such as driving a taxi or light courier work.
52. Under cross-examination however, he acknowledged that he had not been aware that Mr Burke had undergone repeated surgeries. He qualified his earlier evidence by stating that he could do work as a truck driver, plant operator or forklift driver, depending on the ancillary aspects of these duties. He maintained that he thought Mr Burke could step on and off most forklifts without a problem, but acknowledged that lifting could be a problem for him. He also acknowledged that Mr Jackson’s findings on examining Mr Burke in April 2007 indicated some muscle wasting above and below the knee on the right side which was suggestive of lesser use of that limb. He confirmed that he considered Mr Burke could do light courier work, although lifting heavy bags could be a problem and shovelling was also likely to be difficult for him.
53. Late in his evidence, Dr Graham also indicated that if his understanding was incorrect and Mr Burke had moved to clerical work prior to the ending of his employment with Telstra that would affect his conclusions. He also indicated that if Mr Burke had pain on walking and standing that would also affect his conclusions.
54. Under re-examination he confirmed that he considered Mr Burke could do forklift duties if this involved only using a forklift without ancillary duties which were problematic for him.
55. Although he was not called to give oral evidence, Mr Jackson, orthopaedic surgeon, also addressed these issues in his report of 12 March 2009[31]. In that report he stated:
“He must have many suitable employment options. I noted the work situations in file material to include:
i. truck driver;
ii. mobile plant operator; and
iii. forklift operator.
He informed me he does have a forklift licence. Many of these jobs, however, would require the use of safety boots and he simply does not have a pair that he can wear comfortably. Hence, my suggestion of supplying him with the boots so that he can then apply with confidence to jobs. He would also be suitable for work in other situations, such as security. I believe there are many types of work and he must have some transferable skills following his sixteen years of employment with Telecom/Telstra.”[32]
[31] T73/263
[32] T73/269
56. In relation to Mr Burke’s work restrictions, he stated as follows:
“He does require specific orthotic boots to wear. The only other restriction I would apply is that he should not be required to spend extended periods of time walking over rough or uneven ground, hills or slopes or negotiating steps or stairs to anything other than a moderate extent and he should avoid heavy lifting and carrying.”[33]
[33] T73/269
57. As noted above, he considered these restrictions to be permanent. He also stated in his report that he thought Mr Burke could potentially work 40 hours per week, 8 hours per day “or even possibly overtime if this was offered to him”, although he also stated:
“However, I would make strong recommendation that he have at least some work hardening and work trials and commence work, if possible on a graduated return to work basis as this should lead to a greater work sustainability.”[34]
[34] T73/269
Evidence of the Konekt witnesses
58. Two of the Konekt consultants, Ms Ceara Warren and Ms Louise Marks, also gave oral evidence. Apart from confirming the contents of notes and reports prepared by them, the evidence of each of them was broadly to the effect that their observations of Mr Burke suggested to them that he was not motivated to return to work. Ms Marks also gave evidence that Mr Burke tended to develop inappropriate resumes and covering letters, which she considered were below the standard he was capable of.
Evidence directed to Mr Burke’s ability to earn in suitable employment
59. Following the main hearing on 31 January to 3 February 2011, I convened a directions hearing at which I advised the parties that there was very little evidence before me directed to the question of what Mr Burke could be expected to earn in various types of employment. The parties acknowledged that there was little evidence before me directed to that question and the respondent subsequently filed further documentary evidence in the form of two reports from Dr Graham dated 22 June 2011[35] and 19 July 2011[36], together with a Labour Market Research Report completed by Ms Ceara Warren dated 3 August 2011[37]. Ms Warren also gave further oral evidence at a resumed hearing on 16 September 2011.
[35] Exhibit 6
[36] Exhibit 7
[37] Exhibit 8
60. In his report of 22 June 2011, Dr Graham recorded that at an appointment on 21 June 2011, Mr Burke had advised him that he was currently undertaking a horticultural course for six hours per day, two days a week. Mr Burke apparently advised him that this involved classroom work as well as some practical work. Mr Burke also apparently advised Dr Graham that he felt he could work four to five hours per day if he was successful in obtaining employment following his horticultural course.
61. Dr Graham also indicated in his report that he remained of the view that Mr Burke could work on a full-time basis and that he was fit for work which did not require climbing, jumping or “safety critical work where balance is vital”. He also indicated that he thought any form of sedentary work including bench work would be appropriate for Mr Burke. In his supplementary report of 19 July 2011, he indicated that the following forms of employment would be suitable for Mr Burke, with no restrictions or qualifications:
(a) call centre operator;
(b) dispatch clerk/co-ordinator;
(c) console operator/car park attendant/service station attendant/ weighbridge operator.
62. Dr Graham also indicated that the following types of employment may potentially be suitable for Mr Burke, depending on the particular requirements of the job:
(a) sales/customer service;
(b) store person;
(c) driver – courier/taxi/delivery/forklift.
63. In relation to possible employment as a driver, Dr Graham stated “These would all be suitable for Mr Burke, although it would be necessary to ensure that the role of delivery driver did not involve recurrent climbing on to the truck to attend to loads”.
64. In her Labour Market Research Report dated 3 August 2001, Ms Warren provided information on job vacancies and remuneration for a variety of positions advertised in Adelaide, including in the following areas:
(a) call centre operator;
(b) dispatch clerk/co-ordinator;
(c) sales/customer service;
(d) console operator/car park attendant/service station attendant/ weighbridge operator;
(e) store person/forklift driver;
(f) driver – courier/taxi/delivery; and
(g) assembly worker/process worker/packer/machine operator.
65. Ms Warren indicated in her report that she had been able to locate 17 jobs as a dispatch clerk or co-ordinator advertised in Adelaide between 20 June 2009 and 8 February 2011. Based on her research, she also reported that the remuneration for positions of this nature was $1,000 per week in 2009 and $1,200 per week in 2011 for a transport and dispatch clerk.
66. In relation to employment as a console operator/car park attendant/service station attendant/weighbridge operator, she was able to locate 17 positions advertised between 9 May 2009 and 5 July 2011 and she reported that the relevant remuneration was $800 per week in 2009, $720 per week on average in 2010 and $1,000 for a car park attendant in 2011. However she also reported that the minimum for a console operator under the relevant award was $651.30 per week in 2011.
67. In relation to employment as a courier/taxi/delivery driver, Ms Warren was able to locate 25 vacancies advertised between 6 June 2009 and 26 February 2011 and she reported that the relevant remuneration was $800 in 2009. She also reported that the award rate in 2010 was $580.35 to $687.45 per week for a delivery driver and that the applicable remuneration in 2011 was $950 per week for courier or postal delivery drivers and $850 per week for delivery drivers. The positions advertised included contract delivery drivers, lunch van drivers, chauffers, pizza delivery drivers, taxi drivers and pathology couriers.
68. In relation to employment as a storeperson/forklift driver, Ms Warren was able to locate 26 vacancies advertised between 11 July 2009 and 23 July 2007. She also reported that the applicable remuneration was $800 per week in 2009, $900 per week for forklift drivers and $817 per week for storepersons in 2011 and that the minimum award rate in 2010 was $647.90 per week.
69. In relation to employment as an assembly worker/production worker/machine operator, Ms Warren was able to locate 28 positions advertised between 9 May 2009 and 23 July 2011 including positions as meat packers, process workers, and fruit and vegetable packers. She reported that the applicable remuneration for these positions was $900 per week in 2010 and between $760 per week and $1,050 per week in 2011.
70. In her oral evidence, Ms Warren indicated that it was her understanding that generally no formal qualifications were required for dispatch clerk/co-ordinator positions and training was generally provided for these positions. Similarly, she indicated that it was her understanding that training was not generally required for positions as a console operator, car park or service station attendant, weighbridge operator, or for an assembly worker or machine operator.
71. Under cross-examination, she also conceded that she had not followed up any of the advertisements relating to positions as a dispatch clerk/co-ordinator to ascertain whether experience was required or desired for the positions advertised. She conceded that these positions may involve some packing or stores work, and that it was difficult to be precise about what the physical requirements of the positions were. In relation to work as a service station attendant, she conceded that in some cases a service station attendant may be required to climb a ladder, although she indicated in her experience this was not a common requirement. She also conceded that in relation to duties as a car park attendant, some of these jobs would involve mostly standing. She also conceded that in respect of the forklift driver positions, without making further inquiries it was difficult to predict how often a driver may be required to get on and off the forklift. In relation to driving work, she stated that there was a constant demand for taxi drivers and often no requirement for qualifications or training as this would be provided by the employer. She said the same situation pertained with regard to courier/delivery drivers.
72. Later in her evidence, she also clarified that in her experience, if a particular position required prior experience this would generally be stated in the advertisement relating to the job.
73. I will now proceed to address each of the issues identified above by reference to the evidence and the contentions of the parties.
whether since 4 may 2009, mr burke has been incapacitated for work as a result of his compensable injury?
74. As I have noted above, the medical evidence is unanimously to the effect that as a result of his injury, Mr Burke’s capacity for work has been reduced and he can no longer do the range of duties he could prior to the accident. Having regard to the evidence directed to this issue referred to above and the fact that, prior to his injury, Mr Burke was engaged in general labouring work, I am satisfied that as at and from 4 May 2009, he has suffered ongoing incapacity for work as a result of his compensable injury pursuant to s 19 of the SRC Act.
the nature and extent of mr burke’s incapacity
75. In light of the evidence referred to above, I am also satisfied that although the injury has left Mr Burke with a significant disability, he nevertheless has a significant residual capacity for work. I also consider that he has capacity to work full-time in a suitable occupation.
76. As to the nature of his incapacity, in light of his evidence that he can walk up to 1 kilometre at a time, but not more, I consider that he could not undertake duties which involved walking more than 1 kilometre at a time or more than 1,500 metres in the course of a day. In a job which required safety boots, I consider that he would require orthotic boots designed specifically for him. He would not be fit for duties where balance is necessary for safety reasons and he would not be fit for duties involving climbing, heavy lifting or jumping. I also accept Mr Burke’s and Dr Cawley’s evidence that Mr Burke could not perform duties which involved standing for any significant period of time. I also accept Mr Burke’s evidence, which is supported by most of the medical evidence, that he could not undertake duties which involved walking on uneven ground, hills or slopes. I also consider that Mr Burke would not be able to operate mobile plant equipment, such as a bobcat, which depends on him needing both feet to operate the equipment. He could not do work involving shovelling. He could not do heavy carrying or duties that entailed negotiating steps or stairs to anything other than a moderate extent.
77. As to the specific types of duties which I consider Mr Burke could physically undertake, these include:
·call centre work;
·work as a storeperson/forklift driver providing the ancillary duties were consistent with his restrictions;
·any type of driving work if this did not involve using his right foot to drive, including light courier work but excluding driving a taxi if this involved lifting heavy bags and any work involving climbing;
·work in retail sales providing this did not involve being on his feet for extended periods of time;
·work as a dispatch clerk/co-ordinator;
·work as a car park or service station attendant or weighbridge operator;
·light gardening work provided this did not involve walking more than 1,500 metres per day;
·clerical work; and
·mail sorting if seated.
what constitutes suitable employment for mr burke?
The contentions
78. Counsel for Mr Burke, Mr Cole, submitted that suitable employment for Mr Burke would include driving work and a range of other work where he could sit or stand. Mr Cole submitted that he would not be suited to work which involved sitting all of the time or work which could be more psychologically challenging, such as call centre work.
79. Counsel for the respondent, Mr Wallace, also accepted that Mr Burke had always done outdoor labouring type work in the past and there was nothing to suggest that he had an aptitude for “clerical work”. Mr Wallace also accepted that Mr Burke was likely to be most suited to work in a government environment, for example, horticultural type work for a local council would be suitable for him, and within his limitations. He also submitted that suitable work for Mr Burke would include forklift driving, although he accepted that such duties would not be suitable if they also involved heavy lifting and/or extensive walking. He also submitted that other types of work which would be suitable for Mr Burke within the meaning of s 4 of the SRC Act included taxi driving, working as a car park attendant or at a console in a service station.
Consideration
80. Taking into account the type of work he has done in the past, his skills, preferences and aptitudes, as well as his physical limitations, I consider that “suitable employment” for Mr Burke would include a range of different forms of employment including driving and light manual work consistent with the physical limitations I have outlined above. In the course of his evidence, he expressed an interest in horticultural or gardening type work and Dr Graham has subsequently indicated that he is undertaking training in that area. I consider that he could potentially undertake work of this nature, providing it was consistent with his physical limitations. Mr Burke also referred in his evidence to having applied to work as a tram driver and I consider he could potentially undertake work of that kind once he had undertaken the relevant training.
81. I am also satisfied that he could undertake work as a forklift driver, providing the job did not also involve any heavy lifting or significant walking and was not otherwise inconsistent with his physical limitations. Although Mr Burke said in his evidence that he could not do forklift driving for more than a few hours a day, in light of the medical evidence I am satisfied that he could in fact carry out forklift driving on a full-time basis providing the duties were otherwise consistent with his physical limitations.
82. Mr Burke also said in his evidence that he did not consider himself suitable for taxi driving and I accept that he is not temperamentally suited to driving a taxi and this would also be likely to be contrary to some of his physical limitations as it would be likely to involve some heavy lifting. I am also satisfied that he is not suited by experience, personality or aptitude to clerical work or call centre work.
83. In summary therefore, I consider that “suitable employment” for Mr Burke includes the following types of employment:
·work as a storeperson and/or forklift driver providing the ancillary duties were consistent with his physical restrictions;
·light courier or other light driving work (excluding taxi driving) providing this did not involve heavy lifting, climbing or using his right foot to drive;
·work as an attendant at a car park or service station or as a weighbridge operator;
·work in retail sales providing this did not involve being on his feet for extended periods of time;
·work as a dispatch clerk/co-ordinator;
·light gardening or other light manual work providing this did not involve walking more than 1,500 metres per day or significant walking on slopes or uneven ground; and
·mail sorting.
what is the amount that mr burke is “able to earn” in “suitable employment”?
84. Consistently with my characterisation of the issues at the beginning of these reasons, I propose to address this broad issue by reference to the four more specific issues which I have identified, namely:
(a)whether, during the relevant period, Mr Burke failed to seek suitable employment;
(b)whether any failure by him to seek suitable employment was reasonable in the circumstances;
(c)the amount he could have expected to earn in suitable employment; and
(d)any other relevant matter.
Did Mr Burke fail to seek “suitable employment” during the relevant period?
85. In the reviewable decision, the delegate affirmed a determination of 4 May 2009 which determined that Mr Burke had no entitlement to compensation by way of incapacity payments at and from 4 May 2009. The respondent does not now contend that Mr Burke’s entitlement to incapacity payments should be altered from any earlier date and accordingly the relevant period for my purposes is the period from 4 May 2009 to date.
Contentions
86. In his submissions of behalf of Mr Burke, Mr Cole said that the Tribunal should not pay too much heed to comments made by Mr Burke to Konekt staff, as these reflected his frustration at his situation and did not necessarily suggest that he was unmotivated to seek work. Mr Cole suggested that the Tribunal should pay greater attention to what he did rather than comments made by him and pointed out that he had in fact co-operated fully with the Konekt program. However the only actual work hardening placement which had eventuated from this was the one with IKEA which could not proceed because Mr Burke had not been provided with suitable safety boots and IKEA had indicated that these were required.
87. Mr Cole submitted that it was highly significant that during the whole time Mr Burke was participating in the Konekt program and despite all of the job applications he had made, he had not been able to obtain employment or even a successful work placement. He said this was illustrative of the difficulties faced by Mr Burke in obtaining employment. He said that after Mr Burke’s incapacity payments stopped in May 2009, he had been looking for work in the newspapers and had also been seeking work through Centrelink since being on Newstart Allowance, however he had not been successful in identifying and obtaining any suitable employment.
88. Mr Cole also pointed out that there was no evidence before the Tribunal that anyone was in fact willing to employ Mr Burke. He said it was relevant for the Tribunal to have regard to the difficulties Mr Burke faced in obtaining employment given his injury and workers’ compensation history. To the extent that there was any criticism directed to Mr Burke on the ground that, whilst he was with Konekt, his job seeking efforts were focussed too narrowly, Mr Cole submitted that his job seeking efforts were nevertheless reasonable during this period, having regard to the fact that he was led and guided by Konekt.
89. In summary, Mr Cole submitted that Mr Burke’s co-operation with the rehabilitation program constituted a reasonable attempt to seek suitable employment during the period when it was operating and given the limited range of jobs Mr Burke could now do and was likely to obtain, his attempts to seek employment since then were also sufficient such that he had not failed to seek suitable employment.
90. Mr Cole also contended that before it could be said that Mr Burke had failed to seek suitable employment, it was incumbent upon the respondent to identify employment, in the sense of a particular job, which Mr Burke could actually have done. In the absence of such a position being identified, he said that it was not properly open to the Tribunal to conclude that Mr Burke had failed to seek suitable employment. In this regard he relied upon the following observations of Justice Heerey in Telstra Corporation Ltd v Warner (1994) 20 AAR 259 at 264:
"Capable of Earning", "Able to Earn"
25. In my opinion, the expression "capable of earning an amount per week in suitable employment" in s.132A(1) refers to capacity to work.
26. It was established by the first Tribunal hearing that Mr Warner is capable of earning an amount per week in suitable employment because he has the physical capabilities and skills to carry out some, albeit limited, kinds of employment. The availability in fact of work for Mr Warner becomes relevant at the stage when the calculation under s.132A(2)(a) is being carried out.
27. For the purpose of determining what Mr Warner is "able to earn in suitable employment", reference must be made to the definition of "suitable employment" in s.4(1), which includes personal attributes such as age, experience etc and to s.132A(4). As previously noted, s.132A(4) requires the s.19(4) factors to be considered. None of factors (a),(b),(c) or (d) apply. The Tribunal made a finding of fact that Mr Warner had not "failed to seek suitable employment". No challenge is made to that finding, so (e) does not apply either. Telecom would therefore have to have regard to factor (g). A relevant matter in considering what Mr Warner is able to earn in suitable employment would be the actual availability of such employment for him. The Tribunal's findings are to the effect that no such employment is available.”
91. Mr Cole contended that the respondent had not identified a particular job which Mr Burke was able to do and for that reason, it could not be said that Mr Burke had failed to seek suitable employment, or that any such failure was not reasonable. Even if this was not relevant in relation to those questions, he submitted that it was in any event relevant under s 19(4)(g). He said that Mr Burke’s incapacity payments could not be reduced to nil in the absence of a suitable job being identified for him which he could undertake.
92. Mr Wallace contended that it was only in approximately December 2008[38] that Mr Burke became aware of the amendment to the SRC Act which had the effect of defining “suitable employment” more widely such that he was effectively under an obligation to seek employment outside the Commonwealth. He submitted that prior to that time, Mr Burke believed that in practical terms he was entitled to receive incapacity payments regardless of whether he sought suitable employment and it suited him not to seek employment in those circumstances. It was only when it was explained to him that this was no longer the case and he was at risk of having his incapacity payments ceased if he did not actively seek suitable employment that his attitude and behaviour changed to some extent. Fundamentally however, he submitted that Mr Burke remained unwilling to seek employment and that it was his preference to not work but receive income support in the form of incapacity payments.
[38] T55/179
93. Mr Wallace also submitted that, having regard to the range of duties Mr Burke could potentially perform, his attempts to secure employment were desultory. He pointed out that although in the period since the ending of the rehabilitation program Mr Burke claimed he had looked in the paper and sought employment through Centrelink, he had only actually applied for two jobs between March 2009 and the hearing on 31 January 2011.
94. Mr Wallace also contended that it was clear from the terms of s 19, taken as a whole, that there was no obligation on a respondent to actually find a job for the injured employee. He said that s 19(4)(b) addressed the scenario where an employee had received an actual offer of suitable employment and failed to accept that offer. However he said that s 19(4)(e), properly construed, addressed a different scenario, that is where the employee had failed to seek suitable employment. He said it could not be implied from that provision that there was an onus on the employer to find suitable employment for the employee.
Consideration
95. Whilst I consider that Mr Burke was relatively unmotivated to seek employment, particularly during the earlier part of the rehabilitation program prior to his realisation about the change to the legislation, on balance I accept Mr Cole’s submission that given his participation in that program, Mr Burke cannot be said to have failed to seek suitable employment during the operation of the program. I also accept Mr Cole’s submission that whilst the efforts of the program were quite narrowly focussed, for example primarily on forklift driving, this was not something for which Mr Burke was responsible. Some of the medical certificates issued by Mr Burke’s general practitioner, Dr Cawley, also complicated the situation by providing for example, that he could only do government work. The situation was further complicated by the fact that, for example, when the work hardening placement was organised with IKEA, Mr Burke did not have suitable safety boots. In effect therefore, I consider that various factors conspired with the result that the program was not successful in securing employment for Mr Burke. However, it does not follow in my view that he did not fail to seek suitable employment during the currency of that program.
96. However, I accept Mr Wallace’s submission as to the proper construction of s 19(4) and what it requires of an employer. The phrase “suitable employment” is defined in the SRC Act in relatively broad terms. Section 19(4)(e) clearly places an onus on an employee to seek such employment. In my view, it is not possible to imply into that section an obligation on an employer or respondent to identify a particular job which is available to the employee in order to establish that they have not sought suitable employment. Rather, the provision imposes an obligation on an employee to seek out work which they could potentially undertake. Providing they do this, if they are unsuccessful in securing a particular job, their entitlement to incapacity payments continues.
97. On balance therefore, I have concluded that Mr Burke technically complied with the rehabilitation program and could not be said not to have sought suitable employment whilst that was continuing. Having said that however, the evidence of him actively seeking employment in the period after that program ended is scant. I accept that he applied for two jobs in the period after March 2009, looked in the paper from time to time and complied with the job seeking obligations imposed on him through Centrelink. However, I am not satisfied that he made a genuine and reasonable attempt to seek suitable employment during this period. Rather I consider that after 6 months had elapsed, say by 4 September 2009, it could fairly be said that Mr Burke had not made sufficient efforts to obtain employment such that he could fairly be said to have sought suitable employment. In light of the range of duties he could potentially undertake and the fact he has only applied for two jobs since the rehabilitation program stopped, I consider that Mr Burke failed to seek suitable employment during the whole of the period from 4 September 2009 to date.
98. However that leaves the question of whether Mr Burke’s failure to seek suitable employment was “reasonable in all the circumstances” for the purposes of s 19(4)(f).
Was Mr Burke’s failure to seek suitable employment reasonable in all the circumstances?
99. In relation to this issue, Mr Cole pointed out that Mr Burke was not actually provided with suitable safety boots until November 2009[39] and could not have done work such as, for example, forklift driving, without these.
[39] The respondent acknowledged at [2.17] of its Statement of Facts, Issues and Contentions dated 26 October 2010 that payment for these was only approved on 2 October 2009.
100. Mr Cole also contended that when it came to considering whether any failure by Mr Burke to seek suitable employment was “reasonable” the Tribunal should have regard to the fact that employers tend to have a negative attitude to workers who have been injured, particularly where they remain affected by that injury. In this regard he relied on some observations of Justice Perry in Versace v Messer (1993) 172 LSJS 409 at 413 as follows:
“It is a matter of common knowledge that plaintiffs, or persons who seek jobs, are commonly asked to disclose whether or no they have previously suffered an injury and to give details of it and its consequences. It is a fact of life that persons in that situation, even if they are capable of doing the job for which they may be applying for, in a physical sense, may well be at a disadvantage in securing such a position in the first place.”
101. He also relied on the comments of the High Court in Wade and Others v Allsopp and Anor (1976) 10 ALR 353 at 361:
“… To state this is but to recognize that whereas diminished capacity to perform useful services may be expressed by a percentage figure the process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful.”
If this was not relevant under s 19(4)(f), he submitted that it should be taken into account under s 19(4)(g). He submitted that in practical terms, Mr Burke had no realistic prospect of obtaining suitable employment and this made any failure by him to seek such employment reasonable.
102. Mr Wallace contended that Mr Burke had received assistance from Konekt for some 15 to 16 months and still had not secured employment. He said the conclusion which should be drawn from this, together with Mr Burke’s conduct and comments during the program, was that he was not willing to undertake any work. He pointed out it had not been seriously disputed by Mr Burke that he had made most of the comments reported by Konekt and submitted that these accurately reflected his state of mind. He also submitted that Mr Burke had not been frank and forthright about his situation and attitude. He pointed to an entry in Dr Cawley’s notes that Mr Burke had been “working outside” in 2005 and suggested that Mr Burke’s capacity for work was and had been greater than he was willing to admit to.
103. He said it was significant that there were no recorded attempts by Mr Burke to seek suitable employment, other than those facilitated by Konekt. He also pointed out that Mr Burke had failed to respond to the letter from Adelaide Industrial Labour Service which invited him to attend at their office to register for work[40]. Relying on the labour market analyses carried out by Konekt, he further submitted that work suitable to Mr Burke, including forklift driving, was available in Adelaide.
[40] Exhibit 4
104. As to the difficulties likely to be faced by Mr Burke in securing employment, Mr Wallace contended that the evidence did not permit a finding that it was futile for Mr Burke to seek work and in these circumstances he was obliged to look for it, and had not fulfilled that obligation.
Consideration
105. As to whether Mr Burke’s failure to seek employment after 4 September 2009 was “reasonable”, I accept Mr Cole’s submission that in this context I can and should have regard to Mr Burke’s realistic prospects of obtaining work. I also accept Mr Cole’s submission that I should take into account in this context the fact that employers are less likely to employ someone with a previous injury and ongoing disability such as that suffered by Mr Burke. I accept that this is likely to make it more difficult for Mr Burke to actually secure employment. However, I also accept Mr Wallace’s submission that the evidence does not support a conclusion that it would be futile for Mr Burke to seek work. Of course if he had sought work but been unable to obtain it, then he would remain entitled to incapacity payments. On balance however, I am not satisfied that the evidence supports a conclusion that there is so little likelihood of Mr Burke obtaining employment that it was reasonable for him to not even attempt to secure employment, at least once he had been provided with suitable safety boots. I do accept that it was reasonable for him not to seek suitable employment before he was provided with modified safety boots by the respondent, which on the material before me had occurred by 30 November 2009.
106. It follows that I have concluded that during the period from 30 November 2009 to date, Mr Burke has failed to seek suitable employment and that failure has not been reasonable in the circumstances.
What could Mr Burke have earned in suitable employment?
107. Mr Cole submitted that, although the respondent had identified advertisements for positions which theoretically could potentially be undertaken by Mr Burke, this did not advance the position as the respondent had not identified any employer willing to actually take Mr Burke on as an employee. In these circumstances, Mr Cole submitted that I should conclude that Mr Burke’s ability to earn was nil.
108. However, Mr Wallace maintained that the question for the Tribunal was whether there was work available to Mr Burke. He submitted that Ms Warren’s evidence had addressed any deficiency in the evidence such that there was now a firm basis for the Tribunal to conclude that work was available to Mr Burke and as to the amounts he could be expected to earn in suitable employment. Having regard to that evidence, Mr Wallace submitted that the amount determined by the delegate to be the amount Mr Burke could earn in suitable employment, i.e. $800 per week, remained appropriate and that was the amount the Tribunal should find Mr Burke was able to earn in suitable employment.
109. Having carefully considered this issue, I have concluded that I should accept some aspects of Mr Wallace’s submissions, although I do not accept his ultimate contention as to the amount Mr Burke could have earned in suitable employment. I also do not accept that all of the positions identified by Ms Warren were necessarily suitable for Mr Burke. For example, as I have indicated above, I consider that call centre work would not be suitable for Mr Burke. I also consider that on the material before me, a small proportion of the positions advertised as a storeperson, forklift driver or other driver may not have been consistent with his physical restrictions. I also consider that it is likely a small proportion of the positions identified by Ms Warren as an assembly worker, packer or machine operator are likely to have been unsuitable for Mr Burke given the likely requirement for long periods of standing in some of those positions. Having regard to Ms Warren’s evidence, it is also possible that a small proportion of the jobs identified by her as a service station or car park attendant may not have been consistent with Mr Burke’s physical restrictions.
110. However, having regard to all of the evidence before me, including the recent reports of Dr Graham, I am satisfied that work as a dispatch clerk or co-ordinator, or as a car park or service station attendant or a weighbridge operator would be suitable for Mr Burke and that the vast majority of the positions identified by Ms Warren in those areas are likely to be consistent with his physical restrictions and therefore constitute suitable employment for Mr Burke, which is available to him in Adelaide. I am also satisfied that the majority of the forklift and other driving positions, and the majority of the process worker/packer/machine operator positions and storeperson positions identified by Ms Warren are also likely to constitute suitable employment for Mr Burke and which is available in Adelaide. Having regard to the remuneration for those positions as reflected in Ms Warren’s report, including the minimum amounts applicable to some of the positions identified, I am also satisfied that, from 30 November 2009 to date, Mr Burke could have earned at least $700 per week gross in work that was suitable for and available to him. I consider the amount suggested by Mr Wallace, of $800, is unrealistically high when regard is had to the lower end of the range of wages payable in respect of some of the positions identified by Ms Warren.
Any other relevant matter
111. In the event, I have considered each of the matters which I consider to be relevant in the context of s 19(4)(e) and (f) and I have not identified any other matters which I should take into account in determining the amount that Mr Burke is “able to earn” in suitable employment.
conclusion
112. In summary, I have concluded that Mr Burke continues to suffer some degree of incapacity as a result of his compensable injury. However, I consider that he has a significant residual capacity for work.
113. I have further concluded that in the period 30 November 2009 to date, Mr Burke has failed to seek suitable employment, that that failure was not reasonable within the meaning of s 19(4)(f), and that he could have expected to earn at least $700 per week in suitable employment from 30 November 2009 to date.
decision
114. The decision under review is varied so as to provide that:
(a) between 4 May 2009 and 29 November 2009, Mr Burke was entitled to be paid incapacity payments, pursuant to Part II, Division 3 of the Safety, Rehabilitation and Compensation Act 1988 Act, on the basis that the amount per week that he was able to earn in suitable employment was nil;
(b) from 30 November 2009 to date, Mr Burke’s entitlement to incapacity payments should be calculated on the basis that the amount per week that he was able to earn in suitable employment was $700; and
(c) as at the date of this decision, Mr Burke’s ability to earn in suitable employment is $700.00 per week.
115. The matter is remitted to the respondent for calculation of the amount of incapacity payments payable to Mr Burke as a result of this decision.
116. The Tribunal:
(a) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(b) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant pursuant to s 67(8) of the SRC Act.
I certify that the 116 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ............J Coulthard....................................
AssociateDates of Hearing 31 January 2011, 1-3 February 2011 and 16 September 2011
Date of Decision 29 November 2011
Counsel for the Applicant Mr S Cole
Solicitor for the Applicant Duncan Basheer Hannon
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Sparke Helmore
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