Burrows and Australian Postal Corporation - [2002] AATA 447

DECISION AND REASONS FOR DECISION [2002] AATA 447

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/51
GENERAL ADMINISTRATIVE DIVISION ) No A2001/141

Re      GRAHAM BURROWS
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent
DECISION

Tribunal Mr G A Mowbray

Date16 May 2002
PlaceCanberra
DecisionThe Tribunal:

Affirms the decision under review in matter A2001/51, being the Respondent's decision of 5 December 2000.
Sets aside the decision under review in matter A2001/141, being the Respondent's decision of 22 March 2001.

Remits matter A2001/141 to the Respondent for reconsideration with a direction to calculate the compensation, if any, payable to the Applicant from 1993 to the present under section 19, 20, 21 or 21A of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in accordance with the findings made by the Tribunal in its reasons for decision.

Pursuant to section 67(9) of the Act orders the Respondent to pay the Applicant's costs in matter A2001/141 as agreed or taxed.
..............................................
Member
CATCHWORDS
COMPENSATION – suitable employment – whether voluntary termination of employment – whether employee received an offer of suitable employment on the condition that the employee completed a reasonable rehabilitation or vocational retraining program – whether employee failed to fulfil that condition – whether failure was reasonable
COMPENSATION – calculation of incapacity benefits – determination of amount employee is able to earn in suitable employment – whether actual earnings in employment to be taken into account

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 19(3), 19(4)(a), 19(4)(d), 19(4)(f)

Comcare v Chenhall (1996) 69 FCR 201; 139 ALR 380; 24 AAR 106; 44 ALD 25
Pulitano v Telstra Corp Ltd (1998) 50 ALD 1015
Comcare v Line [2002] FCA 553
Re Sumner and Comcare (AAT 13548, 17 December 1998)
Re Jones and Telstra Corp Ltd [1999] AATA 679
Re Stephenson and Telstra Corp Ltd [2001] AATA 343
Re O'Shea and Comcare (1993) 18 AAR 430
Freightcorp v Duncan [2000] NSWCA 309
Re Shanahan and Australian Postal Corporation (1995) 36 ALD 613
Woodbridge v Comcare (1994) 20 AAR 196
Slater v Telstra Corp Ltd [2001] FCA 1417

REASONS FOR DECISION

12 June 2002 Mr G A Mowbray

History of the Applications

There are two applications before the Tribunal. A2001/51 relates to a claim for permanent impairment, and A2001/141 relates to a claim for incapacity payments.
On 24 May 1988, Graham Burrows (the Applicant) made a claim for compensation in relation to a left knee strain sustained on 28 April 1988 when his motorbike slid in the mud outside a house on his delivery route. A determination that the Australia Postal Corporation (the Respondent, referred to in these reasons as Australia Post) was liable for left knee injury was made in June 1988. Mr Burrows ceased work with Australia Post in February 1993 after accepting a redundancy package. On 7 December 1999 Mr Burrows, through his solicitors, requested a compensation claim form in relation to his knee injury.
On or about 18 April 2000 Mr Burrows completed a claim for permanent injury. On 14 July 2000 Mr Burrows requested compensation for ongoing wage loss from his cessation of employment in 1993 to the present. On 20 July 2000 Australia Post determined there was no liability to pay ongoing compensation for wage loss under sections 19, 20 or 21 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
On 14 August 2000 Australia Post denied liability for permanent impairment under sections 24 and 27 of the Act, and Mr Burrows requested a reconsideration on 17 August. On 5 December 2000 Australia Post affirmed the determination of 14 August and an application for review of this decision was made to the Tribunal on 25 January 2001. This is the subject matter of A2001/51, that is, the permanent impairment claim.
On 3 November 2000 Mr Burrows requested an extension of time to apply for reconsideration of the determination of 20 July relating to wage loss. An actual request for reconsideration was made on 24 January 2001. On 22 March 2001 Australia Post affirmed the determination of 20 July 2000 and an application for review of this decision was made to the Tribunal on 28 March 2001. This is the subject matter of A2001/141, that is, the wage incapacity claim.
The hearing for both these matters was held on 9 and 10 May 2002. Mr Burrows was represented by Mr Alan Anforth of counsel instructed by Capital Lawyers, and Australia Post was represented by Mr Brian Skinner of counsel instructed by the Australian Government Solicitor. Oral reasons for decision were given on 16 May 2002, affirming the decision under review in matter A2001/51 and setting aside the decision under review in matter A2001/141 and remitting that matter to Australia Post for reconsideration with a direction. On 17 May 2002 the Tribunal received a request for written reasons from Australia Post's solicitor pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.
Background
Mr Burrows was born on 23 June 1965 in the Australian Capital Territory. He was educated to year 10 level and left school at age 16. Immediately after finishing school he worked as a retail sales assistant for approximately 12 months before working as a labourer for about three years in various positions around Canberra. He commenced employment with Australia Post in 1984 as a telegram boy. In that employment he was promoted until he attained the position of Senior Postal Delivery Officer. On 25 June 1988 he was married to Karen Burrows and has two children from that marriage.
In his written evidence Mr Burrows described what happened on 28 April 1988
"I was riding a motorcycle in the course of my employment as a postal delivery officer in Swinger Hill, ACT when the said motorcycle slid in some mud, requiring me to use my left leg as a stabiliser to ensure I did not fall off the bike. As a result, I badly twisted my knee and I felt immediate pain. I finished the remaining couple of houses on the run and returned to the Depot before going home early.
The next morning my knee was very sore and swollen and so I went to see Dr Stevens who certified me unfit for work for a few days. After the accident I was unable to work as a post deliverer."
Mr Burrows continued working for Australia Post in other duties until February 1993. Over the approximately five years from April 1988, the time of the accident, until his cessation of employment in February 1993 he had a considerable amount of time off work due to his knee injury. This included time off for a number of surgical operations and arthroscopic examinations.
After he left Australia Post, Mr Burrows worked in a variety of positions for periods of about 6 to 12 months each, including work as a taxi driver, an administrative clerk, a real estate agent and installing roof insulation. At the time of the hearing he had been self-employed in a gardening and landscaping business for approximately six years.
The permanent impairment claim
At the commencement of the second day of hearing on 10 May 2002, Mr Anforth for Mr Burrows advised the Tribunal that Mr Burrows would not be further pursuing the permanent impairment claim. It was to be abandoned. The Tribunal therefore will affirm the reviewable decision of 5 December 2000 in matter A2001/51.
The incapacity payments claim - Issues
Mr Anforth advised however that the incapacity claim was to be pressed, at least for the period up to Mr Burrows' onset of gout in 1999.
Mr Skinner for Australia Post conceded that Mr Burrows suffered a compensable injury on 28 April 1988, and that as a consequence Mr Burrows was and still is incapacitated for work in terms of section 4(9) of the Act.
As I see it, there are three issues remaining for the Tribunal. First, what amounted to "suitable employment" for Mr Burrows? To decide this, I need to answer the question whether Mr Burrows terminated his employment with Australia Post subsequent to his injury – see section 4(1) and the definition of "suitable employment".
Secondly, what was Mr Burrows able to earn in suitable employment? To determine this I need to examine issues including

what amount (if any) Mr Burrows was earning in employment
whether Mr Burrows was offered suitable employment and failed to accept that offer or failed to continue to engage in that employment
whether Mr Burrows was offered suitable employment on condition that he completed a reasonable rehabilitation or vocational retraining program and failed to fulfil that condition
whether any such failure to accept or continue employment or to complete such a program was reasonable in all the circumstances
any other relevant considerations – see section 19(4).

The third and final issue is what amount of compensation, if any, Mr Burrows is entitled to.
Legislation
The following provisions of the Act are relevant. I note that the amendments made to section 19 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 do not apply in these proceedings (these amendments only apply to determinations made after 1 April 2002 – see Schedule 2, Part 3, item 20). I also note that portions of sections 20, 21 and 21A not set out below would require consideration of calculations made under section 19.
"4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
"suitable employment", in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case—any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
…"
"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 compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated using the formula:
NWE – AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:
(a) where the employee is not employed during that week—of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;
(b) where the employee is employed for 25% or less of his or her normal weekly hours during that week—of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings;
(c) where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings;
(d) where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings;
(e) where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings; and
(f) where the employee is employed for 100% of his or her normal weekly hours during that week—of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her 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—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.
…"

Evidence

The Tribunal had the following documents before it which were received into evidence
· Set 1 – the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 in matter A2001/51 (the documents within the set were labelled T1-T94)
· Set 2 – the section 37 documents in matter A2001/141 (labelled T1-T11)
· Exhibits A1 to A17 submitted by the Applicant and R1 to R8 submitted by the Respondent, and a video.
Oral evidence was received from Mr Graham Burrows, his wife Ms Karen Burrows and Mr Graham Luck, currently Australia Post's Human Resources Adviser Southern Region situated at the Canberra Mail Exchange.
Consideration of Issues and Findings
(1) What amounted to suitable employment for Mr Burrows?
This is important in determining a claimant's ability to earn for the purposes of section 19. The definition of suitable employment is set out in section 4(1) of the Act (see paragraph 17 of these reasons).
The first issue is whether Mr Burrows' case falls within paragraph (a) of the definition, which applies to employees who do not voluntarily terminate their employment with the Commonwealth or a licensed corporation, or paragraph (b) which catches other cases. If a person falls within paragraph (a), account can only be taken of employment with the Commonwealth or a licensed corporation in determining what was suitable employment. Paragraph (b) takes account of employment in the general labour market and self-employment. Therefore the question for the Tribunal is whether Mr Burrows' departure from Australia Post was voluntary. That is, did he terminate his employment subsequent to his injury?
Exhibit R8 and Set 1 T60 are the most relevant documents

on 2 December 1992 Mr Luck provided a payout quotation for "Voluntary Early Retrenchment" (VER) following discussions with Mr Burrows (Exhibit R8)
on 4 January 1993 Mr Burrows advised the Manager, Human Resources, of his "interest in accepting a voluntary early retirement package" (Set 1 T60 at 200). He also acknowledged that Australia Post had a permanent position of Postal Services Officer (PSO) available if he desired such a position
on 8 January 1993 a "Voluntary Retrenchment (Excess Staff) package" was offered to him by the Regional Manager, Canberra Murray, Australia Post. Mr Burrows was given one month to respond and advised "against making a hasty uninformed decision" (Set T1 T160 at 201)
on 2 February 1993 Mr Burrows responded accepting the offer (Set T1 T160 at 202)
the VER was formally approved by a delegate of Australia Post on 11 February 1993 (Set T1 T160 at 203).

Mr Burrows gave both oral and written evidence. His evidence was he was told, probably by Mr Graham Luck, that he was excess staff and not needed. The only option was a VER as he had rejected a night sorting job at Tuggeranong. About a fortnight later he received a written letter.
He might have had a discussion with Mr Luck about a payout. He figured at this stage that he could not go back to his motorbike and there were no other avenues providing retraining and suitable employment. He was resented by staff for taking their overtime and by management for not doing his full duties. He never asked to be made redundant, it was offered to him by Australia Post. He would have preferred to return to normal duties but was forced into a VER.
He was told that he should write the letter of 4 January 1993 if he wanted a VER. A VER would only be offered if he wrote such a letter. He was told by Mr Luck to write that there was a permanent position of PSO available, even though he did not know whether this was true.
Mr Burrows acknowledged in cross-examination that he accepted the offer of his own free will. There was no coercion by Australia Post, but he felt that he had no choice although he could have ignored the offer. Nevertheless he still insisted that the initiator of the VER was Australia Post, not himself. In re-examination, Mr Burrows said that he thought that if he did not take the VER he would have been fired. But this belief resulted from hearsay from what other postmen had told him – no one in authority at Australia Post had suggested this.
In her oral evidence, Mr Burrows' wife Karen stated that her husband had not applied for the VER but had been offered it. He had told her this. The alternative was night sorting. She could not recall any discussion with her husband about whether to take a VER. That was a matter for her husband.
Mr Graham Luck, who is currently Human Resources Adviser, Southern Region in Australia Post located at the Canberra Mail Exchange, also gave evidence on events leading up to the VER. Mr Luck has been employed by Australia Post in the human resources area since 1987. His evidence was that Mr Burrows initiated the VER issue, first raising it in a telephone conversation with Mr Luck in about November 1992 at a time when Mr Burrows was on leave – "It was Graham [Burrows]. Graham always wanted a package".

Mr Luck was initially reluctant, as he generally was with VERs. On 2 December 1992 Mr Luck provided a payout quotation as requested by Mr Burrows (Exhibit R8). He told Mr Burrows not to make a hasty, uninformed decision, and to discuss it with his wife and get formal advice. He confirmed that a Postal Service Officer position was available for Mr Burrows. He told Mr Burrows that he would have to apply for a VER if he wished to take one, and explained what should be put into the letter, including that a PSO position was available. However, he would not have told him the precise words to use.
There was no suggestion that Mr Burrows' employment would be terminated if he did not accept a VER. There would need to be an inquiry before such a determination could be made. Although he could not recall the precise conversation, Mr Luck would have told Mr Burrows of the consequences if he accepted a VER and if he did not. If Mr Burrows did not accept a VER, he would have encouraged Mr Burrows to pursue the PSO option. If Mr Burrows was adamant he did not want a PSO position, Mr Luck would have examined other options.
In his submissions Mr Anforth for Mr Burrows in effect argued that Exhibit R8 and Set 1 T60 disguised the true position. He submitted that Australia Post initiated the moves to terminate Mr Burrows' employment, taking an expedient business decision. Mr Luck, as a person knowledgeable in compensation matters, effectively trapped Mr Burrows to take this course. It involved a constructive forced redundancy, with Mr Burrows having little choice but to accept. Mr Burrows' mode of termination was formally described as a voluntary redundancy, but in truth it was a forced redundancy.
Mr Anforth in his submissions referred to Comcare's Customer Circular, Issue No.3, July 1996, which reads in part
"Incapacity benefits
For compensation purposes, it is most important to note that the term "voluntary" under the clause 11 (sic) of the General Employment Conditions Award 1995 dealing with redundancies, does not necessarily mean that the claimant separated "voluntarily" for SRC Act purposes.
For the purposes of the SRC Act, there are three types of redundancies:
Involuntary - …
Voluntary "Hands Up" - …
Voluntary "Excess" - where the person was declared excess with no reasonable employment options and, in this sense, had no real option other than to accept the offer.
…
Suitable Employment
…
In defining "suitable employment", the SRC Act distinguishes between cases on the basis of whether the employee's termination of employment was voluntary or involuntary…
For example… if the person is declared excess with no reasonable ongoing employment options… then there is scope to regard the separation as involuntary and give the employee the benefit of the less stringent test on ability to earn that applies to those whose employment was involuntarily terminated.
…"
Mr Skinner for Australia Post submitted that there was in fact a voluntary termination. Mr Burrows accepted a VER on 2 February 1993 of his own volition, at the same time recognising that a PSO position was available. Mr Burrows then remained silent until December 1999 when he sought a compensation form to re-open the matter as he was experiencing financial difficulties at that time. Any suggestion of a trap by Mr Luck should be rejected. Mr Burrows' evidence, unless corroborated, should be rejected. His recall about 10 years after the event amounted to unreliable reconstruction.
There is a sharp difference between Mr Burrows' recollection, supported (but not convincingly) by his wife, and that of Mr Luck. I have some difficulty with Mr Burrows' evidence on some crucial issues. I am not suggesting he deliberately mislead the Tribunal, rather he showed poor recall, his demeanour was not convincing, and, as Mr Skinner commented, his recollection waxed and waned. Mr Luck also had difficulty remembering specific conversations, but his evidence was corroborated by and consistent with the documentary evidence, for example his evidence of a long gap between the rejection of night sorting at Tuggeranong and any discussion of a VER. Where there has been a difference in recollection, I have therefore generally accepted that of Mr Luck.
Taking all the evidence, I am satisfied that Mr Burrows voluntarily sought and accepted the VER package, that he was aware at the time that a PSO position was available for him, that there was no coercion or entrapment by Australia Post or by Mr Luck, and that Mr Burrows was not forced but elected to terminate his employment. I so find. Consequently the applicable paragraph in the definition of suitable employment in section 4(1) of the Act is paragraph (b).
What then amounted to "suitable employment" for Mr Burrows? About January 1992 Mr Burrows rejected an Australia Post proposal that he take up a night sorting position at the Tuggeranong Mail Delivery Centre. Following unsuccessful searches for positions in a post office mail room or at the Canberra Mail Centre, arrangements were made for a vocational assessment of Mr Burrows to be undertaken by a psychologist, Dr Tom Sutton (see Set 1 T42 and Exhibit R6).
Specifically Dr Sutton was asked to assess Mr Burrows' suitability for a Postal Services Officer (PSO) position. The duties of and training for such a position were described to Dr Sutton by Mr Luck (Exhibit R6)
"We have positions of Postal Services Officer who perform indoor duties including clerical, marketing, customer services, financial, salaries and wages preparation, staff supervision, and computer and facsimile operation. Before a person can be employed as a Postal Services Officer, they must undergo a computer based training course which is normally for a period of around 30 weeks. The training is undertaken in a Post Office and includes theory (on the computer) and practical (on the job) work. On the successful completion of the training course the person becomes a qualified Postal Services Officer. I have attached for your information a copy of a typical statement of duties for a Postal Services Officer."
Dr Sutton in his report (Exhibit R7) concluded
"Given your criteria of the job skills required for Postal Services Officer I feel Mr Burrows will have the majority of necessary aptitudes to learn and perform the task. He may require some extra tutoring in the clerical area where english (sic) grammatical usage is required, this can be obtained from a variety of TAFE courses. His vocational interests also enable him to successfully pursue many of the activities in the job. The only drawback would be the management of his pain condition. As I have mentioned, this may interfere with any successful re-integration. I'd also like to point out that Mr Burrows (sic) good abilities really mean that he should have some form of stimulating intellectual work. Simply sorting activities will probably lead to some degree of boredom and internal frustration. This is likely to allow him time to focus upon and perceive the pain, increasing the interference from that area."
Mr Burrows said in evidence that his only concern with the PSO position was standing and walking without breaks. He accepted that he could perform it, although it would not be his first choice. Mr Luck testified that Mr Burrows' concerns about standing could be accommodated, for example, by use of a stool and also by undertaking back room work.
Having regard to the matters specified in paragraph (b) of the definition of suitable employment (those matters specified in subparagraphs (a)(i) to (a)(iv)), and to the evidence before me – in particular Mr Burrows' age and experience, his suitability for retraining as evidenced by Dr Sutton's report, and the availability of a PSO position in Canberra – I am satisfied that employment as a PSO amounted to suitable employment for Mr Burrows. Furthermore, self-employment in a landscape gardening business such as Mr Burrows currently undertakes also amounts to suitable employment for him.
(2) What was Mr Burrows able to earn in suitable employment?
(a) Application of section 19(4)(a)
The first point to consider is whether section 19(4)(a) of the Act applies. It relevantly provides
"(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—the amount per week that the employee is earning in that employment;
…"
Mr Anforth argued that this paragraph had no application. He relied on Comcare v Chenhall (1996) 69 FCR 201; 139 ALR 380; 24 AAR 106; 44 ALD 25, which he said confirmed that only earnings from suitable employment are caught by this paragraph. I think he misunderstands Chenhall. The relevant portion of Justice Heerey's judgment is as follows (at 206; 384; 110-1; 29)
"On appeal, Comcare's argument was that s 19(4)(a) required the Tribunal to have regard to the amount earned in actual employment, regardless of whether that employment was "suitable employment". Attention was drawn by counsel to the use of the word "employment" in s 19(4)(a) as distinct from "suitable employment" in paras (b)-(e). It was said that the interpretation contended for was consistent with the ordinary meaning of the word "employment" and with the intention of the statute to "avoid double-dipping".
However, in my respectful opinion this argument misunderstands the function served by s 19(4). That provision is concerned with the amount the employee is able to earn in "suitable employment". The amount the employee is in fact earning in any employment (whether "suitable employment" or not) is only relevant insofar as it assists in that determination. If the intention had been to deduct from compensation entitlements all actual earnings, that object could have been achieved very simply." (emphasis original)
Justice Heerey's decision is said to have been followed by Justice Emmett in Pulitano v Telstra Corp Ltd (1998) 50 ALD 1015. More recently Justice Carr has had cause to examine this provision in Comcare v Line [2002] FCA 553. Of particular significance are the following passages from his Honour's judgment
"60.     In my view, as the respondent concedes, it was unlikely to be the intention of the Parliament that a person in the respondent's situation should be entitled to retain the whole of her actual earnings (whether in "suitable employment" or not) and also to receive 100% of her normal weekly earnings. I form that view on the basis that such a conclusion is consistent with the whole history of workers' compensation and that a contrary result would be extraordinary.
61.      In my opinion, the Tribunal should have started with s 19(4)(a) which required it to have regard, where the respondent was in employment, to the amount that she was earning in that employment, when determining the amount per week that the respondent was able to earn in "suitable employment".
62.      In the absence of any other relevant circumstances [as to which see s 19(4)(g)], it would seem most likely that a decision-maker, in so having regard, would equate those earnings with the amount that the employee would be able to earn in suitable employment.
63.      The Tribunal should then have made whatever calculation of compensation, referred to in s 19(3)(b) to (f), was appropriate to the facts as found.
64.      The result would be that for the purposes of whichever of paragraphs 19(3)(b) to (f) applied to the facts as found, a figure would be brought into account and, in effect, a deduction made for any amount which the employee actually earned.
65.      The Tribunal (see paragraphs [71]-[73]) applied Heerey J's reasoning in Chenhall and held that because "suitable employment" had not in fact been available to her (because the Commonwealth had not made any offer of such employment) she had thus not been "able to earn" any amount in "suitable employment", notwithstanding her short term employment in late 1995/early 1996 and then full-time employment as a clerk at Curtin University from 9 April 1996 to 20 June 1997.
66.      It thus becomes necessary for me to express the extent to which I agree and disagree with Heerey J's views on this point in Chenhall. The relevant part of his Honour's reasons starts at p 206 (note this is the passage quoted at paragraph 42 of the current reasons). I agree, respectfully, with the views expressed in the third paragraph on that page, in particular, that the amount which an employee is in fact earning in any employment (whether "suitable employment" or not) is only relevant to the extent that it assists in the determination of the amount which the employee is able to earn in "suitable employment".
67.      His Honour then considered a hypothetical example…
68.      I think it must be implicit in Heerey J's analysis of those examples, that the Commonwealth was in each case offering suitable employment to the lawyers in question… Accordingly, I do not find the examples to be of any assistance in the disposition of this case.
…
70.      I would distinguish Chenhall on that factual basis.
71.      However, if that distinction is not a valid one, I would respectfully not follow the reasoning of Heerey J in Chenhall on this particular point. I do so, principally, on the basis that s 19(4)(a) squarely fits the facts of the present case and is to be distinguished from the circumstances referred to in paras (b) to (f) of that subsection. Paragraph (a) simply posits a particular factual circumstance, namely that "… the employee is in employment". Paragraphs (b) to (f) are concerned with situations in which relevantly the Commonwealth has offered the employee work or an employee has failed to seek suitable employment
72.      Furthermore, such a construction has the result that, at least, the respondent's substantial earnings as a clerk in full time employment with Curtin University over a period of some 14 months may properly be brought into account so that it would be improbable that, in the exercise of the discretion of the relevant administrative decision-maker, the respondent would be found to be entitled to receive those earnings and in addition 100% of her normal weekly earnings. I think that that was highly unlikely to have been the intention of the Parliament.
73.      In my view, the Tribunal erred in wrongly applying this particular aspect of Chenhall at this point or, (if Chenhall cannot be distinguished in the manner in which I have suggested) was led into legal error by being obliged to follow this aspect of Chenhall."
I reject Mr Anforth's submission for two reasons. First, I respectfully agree with Justice Carr's approach. Secondly, I have in any event already found (at paragraph 35 above) that paragraph (b) of the definition of suitable employment applies to Mr Burrows, and that suitable employment for him includes his landscape gardening business. I note that Mr Anforth had in fact argued that paragraph (a) of that definition applied, a submission which I have rejected.
Therefore, Mr Burrows' earnings in his business (set out in exhibits A11, A15 and A16) are matters for consideration in determining the amount he is able to earn in suitable employment. However, it is clear from the evidence that these earnings are below what he would have earned in his pre-injury duties and as a PSO.
(b) Failure to accept, engage in, continue or seek suitable employment
The issue to be determined under this heading is whether Mr Burrows received an offer of suitable employment, that is, as a PSO, or an offer on condition he completed retraining, and failed to accept or pursue the matter. The relevant part of section 19(4) is as follows
"(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:
…
(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;
…"
Mr Burrows' evidence on this was at times vague and contradictory. Again, his memory waxed and waned. He initially denied any attempt to deploy him as a PSO. He could not remember that he was to do computer based training. He did not start any such course. He then recalled Mr Luck mentioning redeployment as a PSO, but could not remember his response. He agreed, however, that he had no proper reason to reject training as a PSO. Later he was adamant that no PSO position had been offered. There was mention of training but none was offered or commenced.
On the other hand, Mr Luck gave evidence of the process that Australia Post undertook in seeking to rehabilitate Mr Burrows and find suitable work for him. First, an attempt was made to return him to his pre-injury duties, but this was unsuccessful. Secondly, other positions for which Mr Burrows was appropriately trained were looked at, but no position was available at the time. Thirdly, night sorting duties at Tuggeranong were offered and rejected by Mr Burrows as unsuitable. Inquiries were then made of controlling Postal Managers and at the Canberra Mail Centre. Again, these were not successful.
Mr Burrows was sent to Dr Sutton as Australia Post was considering redeploying him as a PSO. Mr Burrows was considered suitable, as I have described above at paragraph 38. Mr Luck was quite sure that Mr Burrows understood that a PSO position would be provided to him at the conclusion of his training. Although Mr Luck had not identified a specific position, such positions came up all the time.
In about April 1992 Mr Burrows agreed to undertake the computer based training. He was aware of the structured, modular nature of the training and he was provided with an overview of where it would take him. However, there was a delay in commencing the training. First, Mr Luck had to await the finalisation of the previous intake in June 1992, then Mr Luck was told a number of staff being redeployed from another area had to be trained as a matter of priority (the training took six months and could only occur at union approved sites in Post Offices). Mr Burrows was informed of the delay and that he would go into the next intake. In the meantime he started familiarisation training at Weston Creek Post Office in about May 1992. This involved work on staff pays, on financial arrangements and back office functions. Familiarisation training went through to about August 1992.
Mr Luck said that Mr Burrows was then on leave until about November (although this was not disputed, it is not consistent with the leave history at Set 1 T194 page 271). In a phone call with Mr Luck whilst on leave in November 1992, Mr Burrows told Mr Luck that he did not wish to continue with the PSO position. He felt he was not suited to that work, and did not like the retail environment or handling large sums of money. He never commenced formal training. Following this, the VER discussion commenced.

Mr Anforth contended that no offer of a PSO position was ever made. It was just a mere possibility. Mr Burrows was only doing vague preliminary training which never came to fruition. He was left "doodling" on the computer for months with no indication of what was happening. As a result, it was reasonable for him to draw an inference that his case was of low priority.
Mr Anforth referred me to the decision of the Tribunal in Re Sumner and Comcare (AAT 13548, 17 December 1998), where the Tribunal considered that
"…for an "offer of suitable employment" to provide a basis for reducing or ceasing a person's payments of compensation, the offer must be clearly identifiable and must refer to a particular position so that it is possible to ascertain "the amount per week that the employee would be earning in that employment", and the duties that would be performed." (paragraph 63)

The Tribunal in that case found that an informal interview on a date which was not recorded did not amount to an offer of employment.

But each matter must be decided on its own facts. Re Sumner is a case where no identifiable position was offered. For example, there was a dispute in the evidence over the level of the position. In my view, Sumner does not suggest that the full details of a position are required, such as the position number and location, et cetera. In Mr Burrows' case the position can be identified with sufficient precision to satisfy the Sumner test.
After having considered all the evidence and bearing in mind the concerns I expressed earlier about the reliability of Mr Burrows' recollection, I am satisfied and find

that in terms of section 19(4)(d) of the Act, Mr Burrows did receive an offer of suitable employment, that is, as a PSO, on condition he completed a reasonable vocational retraining program
that Mr Burrows agreed to undertake computer based training and commenced familiarisation training
that despite the delay Australia Post was serious in its proposal to provide computer based training and was serious about the PSO offer
that Mr Burrows in about November 1992 advised Mr Luck that he no longer wished to continue with the training for the PSO position
that in terms of section 19(4)(d) Mr Burrows failed to fulfil the condition that he would complete a reasonable rehabilitation program.

These findings are not only supported by the oral evidence received by the Tribunal (and for the reasons previously given I prefer Mr Luck's evidence to that of Mr Burrows), but are fortified by the documentary evidence. I refer in particular to Set 1 T42 at page 173, Set 1 T46 at page 181, and Mr Burrows' own letter Set 1 T60 at page 200. In my view, section 19(4)(d) of the Act applies to Mr Burrows.
(c) Reasonableness of Mr Burrows' failure to undertake or complete retraining
I refer to section 19(4)(f) of the Act, which provides
"(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:
…
(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;…"
Mr Anforth suggested a number of reasons why it was reasonable for Mr Burrows not to continue with the training. He submitted that Mr Burrows was regarded as a nuisance by Australia Post and resented by his workmates. Australia Post was not serious about retraining. Mr Burrows was just "doodling on the computer" and Australia Post was "just playing with him". He was in "limbo land". Mr Burrows did not know where he was going. From his own perspective, Mr Burrows was wasting time. He had no future at Australia Post. It was a dead end.
I was referred to a number of cases by Mr Anforth, which he submitted supported the reasonableness of Mr Burrows' action. These were Re Jones and Telstra Corp Ltd [1999] AATA 679, Re Stephenson and Telstra Corp Ltd [2001] AATA 343, Re O'Shea and Comcare (1993) 18 AAR 430, and (applying the equivalent New South Wales legislation) Freightcorp v Duncan [2000] NSWCA 309. However, each of these can be distinguished on the facts.
In Re Jones the Tribunal did not need to consider section 19(4)(f) on the question of reasonableness. It also indicated that mere labelling of a redundancy as voluntary is not conclusive. I accept this and have had regard to it in this decision.
In Re Stephenson the evidence was that work within medical restrictions was not available in Goulburn so that Mr Stephenson was required to travel to Canberra, 55 minutes each way, to perform computer work. The Tribunal accepted medical evidence that Mr Stevenson should not sit or drive for long periods. The Tribunal accepted evidence that his primary concern regarding travel was his back pain, and monetary considerations were found to be secondary. Reluctance to travel was found to be reasonable. Reluctance to relocate to Canberra was found not to be unreasonable. Mr Stephenson had difficulties managing the work he was doing, due to his back pain and lack of experience with the computers, and this was impliedly contrasted with the existence of a secure and stable job.
Mr Stephenson was also provided with advice that a redundancy would not affect his compensation. The Tribunal found he was entitled to rely on that advice. A month before redundancy Mr Stephenson was instructed to go "into the garden". He did not have to attend work and was instructed not to injure himself before the redundancy took effect. The Tribunal then said
"The applicant's acceptance of the redundancy did not bring him into the ambit of refusing suitable employment. The fact is there was none available to him at that time. Acceptance of the voluntary redundancy in the circumstances and with the advice received by Mr Stephenson made it abundantly reasonable." (paragraph 150)
In Re O'Shea employment opportunities for Mr O'Shea within the Australian Public Service were found to be very limited.
In Freightcorp v Duncan a substantive position had been abolished. Both Mr Duncan and personnel officers thought that another position was unsuitable. Mr Duncan applied for a new redesigned position but was not successful. No specific job was identified as being suitable for him, and there was no evidence he was offered duties in the "vegie patch". The trial judge described retraining and redeployment as having failed before a redundancy was accepted. The judge found that Mr Duncan had not rejected any offer of suitable employment under the New South Wales provisions because none had been offered.
Clearly these cases are distinguishable on the facts. Whether Mr Burrows' failure to undertake or complete retraining was reasonable in all the circumstances is a matter to be assessed objectively, taking into account all the relevant facts in his possession (see for example Re Shanahan and Australian Postal Corporation (1995) 36 ALD 613).
On the evidence before me I reject Mr Anforth's submissions. I am satisfied that it was not reasonable for Mr Burrows to fail to undertake or complete the computer based training program. There would be a job available on successful completion of the training, a job as a PSO. Australia Post was capable and willing to provide that employment. Mr Burrows was capable of doing that job, as he affirmed in evidence. He had been informed of the delay in training and the reasons for it. Mr Burrows was aware that the job and training were available. It appears that Mr Burrows made a personal choice that he did not want to be employed in the retail work of Australia Post at post offices.
(d) Other relevant considerations
I refer to section 19(4)(g) of the Act. No other relevant considerations were raised by counsel – that is, considerations either of assistance to Mr Burrows or against him – in relation to the determination of the amount he was able to earn in suitable employment (see Woodbridge v Comcare (1994) 20 AAR 196).
(e) Findings – Mr Burrows' ability to earn in suitable employment
Having established that paragraphs 19(4)(a) and (d) apply to Mr Burrows but that paragraph 19(4)(f) does not, I find that the amount Mr Burrows was able to earn in suitable employment was that amount payable to a PSO at the relevant times. On the evidence of Mr Luck this was roughly comparable to what Mr Burrows had been earning previously as a Senior Postal Delivery Officer. Account should also be taken of his earnings as a landscape gardener consistent with the decision in Comcare v Line to which I have referred.
However, the evidence before me does not allow me to determine a precise figure, or set of figures, for the AE factor in section 19(2), that is, what Mr Burrows was able to earn in suitable employment.
(3) What compensation, if any, is Mr Burrows entitled to?
The relevant provisions are section 19(2) and (3). In Slater v Telstra Corp Ltd [2001] FCA 1417 the Full Federal Court said (at paragraph 18)
"In order to determine whether Telstra had a liability to pay compensation, it was necessary to compare two amounts as follows:

the amount of the appellant's normal weekly earnings with Telstra, as calculated under s 8 of the Act; and
the amount per week (if any) the appellant is able to earn in suitable employment."

This applies to Mr Burrows' case, although the comparison is with a percentage of the normal weekly earnings, depending on which paragraph in section 19(3) fits his specific circumstances.

However, I am unable to make that comparison. There is inadequate evidence on the AE factor as discussed above. It is unclear from the evidence what Mr Burrows' normal weekly earnings were. There is no evidence on the proportion of normal weekly hours that Mr Burrows has worked at the relevant times. It is also unclear whether Mr Burrows received a superannuation pension, a lump sum benefit, or both, and therefore whether any of sections 20, 21 or 21A applies.
I therefore propose to set aside the reviewable decision and remit the matter to Australia Post with the direction that Australia Post calculate the compensation payable, if any, for the years from 1993 to the present under sections 19, 20, 21 or 21A on the basis of the findings set out in these reasons for decision. I imagine this will amount to a very small sum, if any, but in the circumstances I think it is the appropriate course.
Costs
In matter A2001/141 section 67(9) of the Act compels me to order costs against Australia Post. Had I had a discretion I would not have made such an order as Mr Burrows has been very largely unsuccessful.
Inadequacy of Documents
Before I conclude I wish to make some comments on the material presented in this case. First of all I want to direct Australia Post's attention to the statements of reasons in both the primary determination and the reviewable decision in each of these matters. In my view these statements of reasons are wholly inadequate and go very little way in explaining to the claimant the reasons for the decision. Unfortunately they are consistent with those I have seen in other proceedings involving Australia Post. A statement of reasons should explain in an intelligible way the reasons for a decision. I refer to the requirements for reasons in sections 61 and 63 of the Act.
The two sets of T-documents were also inadequate – some documents were missing, and the index at the beginning of the documents is in many respects incomprehensible. More care needs to be taken in relation to this. At the hearing I also referred Applicant's counsel to problems with duplication and inadequate care in relation to documents provided by the Applicant.
Conclusions
In summary my conclusions are as follows

Mr Burrows does not suffer from any compensable permanent impairment to his left knee

(ii) Mr Burrows voluntarily sought and accepted the voluntary early retirement package

(iii) Suitable employment for Mr Burrows includes both a PSO position with Australia Post and self-employed landscape gardening

(iv) I am unable to decide what Mr Burrows is able to earn in suitable employment, but section 19(4)(a) and (d) apply and section 19(4)(f) does not apply

(v) I am unable to decide what amount of compensation, if any, Mr Burrows is entitled to under sections 19, 20, 21 or 21A of the Act.

Decision

The reviewable decision of 5 December 2000 in matter A2001/51 is affirmed.
The reviewable decision of 22 March 2001 in matter number 2001/141 is set aside and the matter remitted to the Respondent with the direction that the Respondent calculate the compensation payable, if any, for the years from 1993 to the present under sections 19, 20, 21 or 21A of the Act on the basis of the findings set out in these reasons for decision.
Pursuant to section 67(9) of the Act the Respondent is ordered to pay the Applicant's costs as agreed or taxed in matter A2001/141.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:         .....................................................................................
  Associate
Date/s of Hearing  10-11 May 2002
Date of Decision  16 May 2002
Date of Written Reasons         12 June 2002
Counsel for the Applicant        Mr Alan Anforth
Solicitor for the Applicant         Mr Daniel Steiner (Capital Lawyers)
Counsel for the Respondent    Mr Brian Skinner
Solicitor for the Respondent    Ms Sadie Hamer (Australian Govt Solicitor)