Chalmers and Comcare - [2002] AATA 1136

DECISION AND REASONS FOR DECISION [2002] AATA 1136

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/854 and Q2000/1167

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ANDREW CHALMERS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member K L Beddoe Dr K P Kennedy, Member

Date5 November 2002
PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

(Sgd) K L Beddoe
Senior Member
CATCHWORDS
WORKERS COMPENSATION – benefits - rehabilitation program – whether applicant should be provided with a rehabilitation program involving self-employment – incapacity payments – applicant's ability to earn – whether applicant's entitlement to weekly incapacity payments correctly calculated

Safety, Rehabilitation and Compensation Act 1988

Hardin v Comcare (1995) 21 AAR 392

REASONS FOR DECISION

5 November 2002 Senior Member K L Beddoe Dr K P Kennedy, Member

The respondent accepted liability in respect of "Torn Anterior Cruciate Ligament – Right Knee". The respondent notified the applicant by letter dated 31 January 2000 that provision of a rehabilitation program under section 37 of the Safety Rehabilitation and Compensation Act 1988 ("the Act"), was, in effect, closed. That decision was subsequently affirmed on reconsideration and the applicant sought review in this Tribunal (T57).
By letter dated 11 February 2000 the respondent notified a decision that the applicant has a partial incapacity for work but was capable of performing appropriate sedentary employment. Ability to earn was determined to be $486.92 per week as a Level 1 Administrative Service Officer with effect from 16 March 2000. Applying section 21A of the Act the respondent determined weekly incapacity payments to be "nil" from 16 March 2000. That decision was subsequently affirmed on reconsideration, the decision being notified by letter dated 27 November 2000 (T16).
Section 37(1) of the Act provides for a rehabilitation authority to make a determination that an employee who has suffered an injury resulting in incapacity for work should undertake a provided rehabilitation program.
Subsection 37(3) sets out criteria to be taken into account in making a determination under sub-section 37(1). These criteria are:
"(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a)any written assessment given under subsection 36(8);
(b)any reduction in the future liability to pay compensation if the program is undertaken;
(c)cost of the program;
(d)any improvement in the employee's opportunity to be employed after completing the program;
(e)the likely psychological effect on the employee of not providing the program;
(f)the employee's attitude to the program;
(g)the relative merits of any alternative and appropriate rehabilitation program; and
(h)any other relevant matter."

Sub-section 36(8) provides, in essence, for written assessment of an employee's capability of undertaking a rehabilitation program where an assessment of capability to undertake rehabilitation has been made by a medical practitioner, a suitably qualified person or a panel of such persons.
Section 19 of the Act provides for calculation of compensation payable because of injury resulting in incapacity for work. The amount payable is based on the amount of an employee's normal weekly earnings reduced, in the first 45 weeks by the amount the employee is able to earn in suitable employment (NEW-AC).
Section 19 contains provisions reducing the amount of compensation after 45 weeks. Those provisions apply on the facts of this case but are not in issue. It is also relevant to note that the applicant is in receipt of superannuation benefits so that section 21A of the Act also applies to reduce compensation otherwise payable but is not in issue here.
At the hearing Mr Harding appeared for the applicant and Mr Clark appeared for the respondent. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, in each application, were before the Tribunal as the T documents. Further documents were tendered and marked as exhibits. The respondent objected to the tender of Exhibit E. The document was marked subject to the objection and the Tribunal's consideration as to what weight, if any, should be given to the document which is a report of Dr McMeniman dated 23 May 2001.
Oral evidence was given by the applicant and Mr Boucher, a former employer; Ms Bertram, a delegate of the respondent; Dr Friis, Sports Physician; Dr Adams, Specialist in occupational medicine, and Ms Kingsford, Occupational Therapist.
The applicant was born on 12 June 1959, joined the Australian Army on 8 September 1976 and was discharged from the Army on 15 February 1998.
On 18 September 1992, the applicant submitted a claim for compensation for torn anterior cruciate ligament, right knee, said to have occurred during unit physical training. The applicant had an arthroscopic knee reconstruction.
The applicant was employed in the Signals Corporation being involved in Army communication and computer related duties.
Upon discharge from the Army the applicant obtained employment as a computer technician, the applicant having obtained some experience in this field while employed in the Army. Exhibits A, B, and C are statements made by the applicant. Some of the material is argumentative and deals with the claim for rehabilitation.
Prior to discharge from the Army the applicant purchased 40 acres of land at Mt Mee. Date of purchase was 7 January 1998 with settlement on 3 March 1998. The land of 40 acres is located in the vicinity of Mt Mee approximately 60 km from Brisbane and 20km from Caboolture. The property is the applicant's place of residence.
We accept that the applicant has sought work since his voluntary discharge from the Army but he has sought work on a basis that would allow him time to also develop the Mt Mee property.
It is apparent from the evidence that the applicant has investigated various proposals for exploiting the Mt Mee property for commercial gain.
On 8 June 1999 the applicant wrote to the respondent about his compensation claim raising a number of issues. That letter included the following paragraphs which, in the light of the material before us, fairly reflect the applicant's position:
"After cessation of my civilian employment, being unable to continue working in this area due to the instability of my injury, I spent time re-assessing my situation. I came to the decision that I would like to attempt to make a living from the forty acres I had purchased after leaving the Defence Force, however, to do this I would require the necessary farming machinery. This would allow me to pursue financial independence at my own working pace, as I would be self employed. The idea, previous to ending my employment, was to purchase this machinery over a period of time with my wages.
First I would need to acquire proof of my present incapacity, and so was examined by a local GP a Dr Collins, who identified that I did have an incapacity. While being examined, I told the doctor that I wished to alter my lifestyle to be able to deal with the injury I was carrying, to this he scoffed and told me that with anti-inflammatories I would be able to continue working, but I would need rehabilitation and a arhtroscopy. He was going to refer me to a specialist. This I felt would do nothing, as I had already undergone a second operation on my knee, to no avail. So I elected not to take this approach, as I still felt that my lifestye (sic) should be altered.
I approached the Department of Veteran Affairs with the idea of turning my existing fortnightly lifestyle compensation payment into a lump sum pay-out, this would assist me in my venture. The Department of Veteran Affairs advised me that I would have to apply to the Military Compensation and Rehabilitation Service, which I did. On 12/10/98 I was examined by a Dr Peter Grant (a GP) who ultimately deemed me to be fit and have 0% disability, but he did advise me to have the floating bone chip removed from my knee."

During his service in the Army, after suffering the injury, the applicant was able to maintain his employment as a sergeant in the Signals Corp because his duties were essentially of a sedentary nature.
He was also able to maintain employment at Hendra for five weeks after discharge from the Army, but left this employment because travel time between Hendra and Caboolture/Mt Mee was excessive, because he was clearing portion of the Mt Mee property and because he was assisting builders with construction of the family home .
The applicant's wife conducts her own business in Caboolture which the applicant has said is of precedence so that he undertakes domestic responsibilities so that he was only seeking part-time work. In particular the applicant objected to working on Saturdays for family reasons.
The applicant, acting on his own initiative, entered into a work trial program with a business (Computer Edge) under the auspices of the Military Compensation and Rehabilitation Service with the service providing the applicant's remuneration, superannuation and workers' compensation insurance. The employment was as a networking technician and hours of duty were set at 9.00am to 5.00pm Monday to Friday and 9.00am to 1.30pm on Saturdays. The work trial was to commence on 18 November 1999 and ceased on 18 February 2000 (T41). Place of employment was Caboolture. The applicant left the work trial after less than one week making allegations against the employer.
The reasons for leaving the work trial given by the applicant did not satisfy us that we had heard the real reason. While agreeing that, he signed the work trial agreement he denies that it was for full-time work taking the position that his other responsibilities and interests prevent full-time work and his knee injury mitigates against full-time work. He conceded in cross-examination that he had disagreements with the employer.
More relevantly on 22 December 1999 the applicant wrote to Caboolture Shire Council proposing Council approval (or rezoning) for the Mt Mee property being used as a Redclaw Crayfish farm. Such a proposal was also put to the Military Compensation and Rehabilitation Service.
Exhibit 6 is a statement by David Boucher, Joint Owner/Manager of Computer Edge, who also gave oral evidence. Mr Boucher explained that he became aware that the applicant was seeking work through the applicant's wife and he was keen to engage the applicant. The applicant attended for interview and sought to negotiate a remuneration package of $60,000 plus a four wheel drive vehicle. Mr Boucher said the applicant made a lesser offer and that was accepted. Mr Boucher said the applicant did not appear to be hindered by his knee injury but there was a fundamental disagreement between them as to methodology and the applicant refused to accept directions as to how the work was to be done. That disagreement did not reflect the applicant's inability to do the work but did reflect his failure to accept directions as to how the work was to be done. The consequence was that the employment was terminated but we are unsure as to who provoked that termination. It was Mr Boucher's understanding that the employment of the applicant with Computer Edge was to be on a full-time basis.
The Medical Evidence
Because the respondent accepts liability for the injury the medical evidence is relevant only as to whether the applicant was justified in refusing, in effect, to pursue the external work trial and to assess the applicant's ability to earn.
Documents T33 to T39 and T42 to T44 are copies of a series of assessments of the applicant by CRS Australia to identify rehabilitation needs of the applicant. These reports recommended intervention by a physiotherapist and an occupational therapist with oversight by a rehabilitation counsellor. The reports also report the failure of the rehabilitation program with Computer Edge.
In so far as these reports recommended that the Military Compensation and Rehabilitation Service support the applicant's self-employed farm activity that recommendation was rejected by the respondent. CRS also supported the work trial at Computer Edge. In so far as the reports recommended employment as a computer technician that has been rejected by the applicant.
Document T6 is a detailed medical liability report by Dr Grant dated 12 October 1998. The report includes the following clinical finding:
"The claimant is observed to walk with a normal gait on level surfaces and he is able to heel and toe walk without apparent difficulty. He is able to squat fully with minor discomfort. He is observed to climb and descend a flight of 24 stairs without difficult. The range of active movement is full. The Lachman's and anterior drawer tests are minimally positive whilst the remaining ligaments are stable. McMurray's and Clark's test are negative."

Document T24 is a copy of a report of Dr Friis, dated 29 January 1999, and addressed to the applicant. Dr Friis said that on the day of consultation there was no excessive joint fluid on examination. The range of movement was said to be complete and apart from the surgical scar no other significant observations were made. X-Rays revealed generalised "wear" evident in the knee. Dr Friis thought that the wear was related to the previous trauma and advised rehabilitation exercises avoiding repetitive bending.
Document T15 (Q2000/1167) is a copy of a further report, to the applicant, by Dr Friis dated 11 September 2000. On examination Dr Friis found no signs of inflammation and a good range of movement. He described a genetic predisposition to arthritis and supported crayfish farming as a suitable activity subject to assessment by an occupational therapist. Dr Friis' oral evidence was brief. He has not obtained any report from an occupational therapist.
Document T25 is a medico-legal report by Dr McMeniman, dated 15 April 1999, for the respondent. Dr McMeniman is an Orthopaedic Surgeon. He sets out the history taken from the applicant which is generally consistent with the material before the Tribunal.
Dr McMeniman found the applicant's gait as satisfactory, lower limb alignment normal, considerable wasting of the right quadriceps muscles with some reduction of range of movement. He found moderate crepitus with movement. The effects of the injury are likely to continue indefinitely. In response to questions put to him (T20), Dr McMeniman made it clear that the applicant suffers incapacity which limits his ability to carry out work and physical activities. He described the incapacity as being incapacitated for work of a heavy nature, the incapacity being described as "total as far as heavy work is concerned; it is partial as far as light work is concerned".
Dr McMeniman said further treatment was not indicated but the applicant would continue to experience intermittent symptoms of post traumatic degenerative arthritis in his right knee with time. He recommended rehabilitation assistance including a rehabilitation program.
Exhibit E is a copy of a letter by Dr McMeniman dated 23 May 2001 to "whom it may concern" referring to an occupational therapist assessment by a Ms Young and stating it would be appropriate for the applicant to undertake his crayfish farming exercise.
Exhibit 1 is a medico legal report dated 30 July 2001 by Dr Adam, Specialist in Occupational Medicine, addressed to the respondent's solicitor. Dr Adam examined the applicant and had the benefit of documents and other reports including the assessment by Ms Young. Dr Adam records a history taken from the applicant more suggestive of incapacity than other material before the Tribunal. He found mild effusion on examination, full range of movement but mild clicking. He found the applicant could walk 600m including a ramp and stairs with no apparent difficulty except a mentioned increase in pain. Dr Adam assessed permanent impairment under Table 9.5 of the Comcare Guide of 0%. He noted the following vocational restrictions:

unable to kneel or squat for any more than limited periods
unable to walk while carrying heavy weights
difficulty in driving for extended periods
difficulty in walking up and down stairs repeatedly

Dr Adam said he only had limited information about crayfish farming but he queried whether the applicant would be able to handle some aspects of the manual work.
Dr Adam thought the condition was stable and would remain so in the near future but gradually deteriorate over many years.
Consideration
Section 37(1) has been satisfied, the applicant submits, because the CRS assessment of 2 September 1999 (T38) satisfies paragraph 37(3)(a) and the applicant is keen to engage in a farming enterprise on his Mt Mee property. An approved rehabilitation program can include a program involving self-employment but the program must be under a determination by the rehabilitation authority. In this case that is the Department of Defence (Hardin v Comcare (1995) 21 AAR 392).
The only rehabilitation program determined in this case is the Department of Defence/Computer Edge program evidenced by documents T40 and T41. We are satisfied this program was a program within the terms of section 37(1) and was within the physical capacity of the applicant.
We are also satisfied that he did not proceed with the rehabilitation program for reasons not relevant to his capacity to undertake the program. We do not regard the private domestic arrangements, the decision to live at Mt Mee or the desire to conduct a farming operation at Mt Mee as factors which constitute a reasonable excuse for refusing to continue with the rehabilitation program.
In so far as there is a conflict between the evidence of the applicant and Mr Boucher about the applicant's employment under the rehabilitation program we prefer the evidence of Mr Boucher. The applicant satisfied us, from his own evidence, that he preferred self employment at Mt Mee and we are also satisfied that he preferred not to be employed in a situation where he was subject to direction of an employer. He left the rehabilitation program for reasons other than incapacity to perform work he was being asked to do. In all the circumstances the decision to close the rehabilitation program was reasonable.
We are satisfied on the material that the applicant suffered incapacity because of his injury but that incapacity was limited. In particular Dr McMenamin performed objective testing of the applicant and he found impairment which he assessed at 0% under Table 9.5 of the Comcare Guide.
As we understand the material, the rehabilitation program was closed by the Department of Defence so that no issue arises as to the suspension of the program under subsection 37(7) of the Act.
The second issue is the applicant's ability to earn. We are satisfied that the applicant has the ability to earn income as a computer technician at a level comparable with his previous employment by the Army.
Document T52 is an assessment of the applicant's ability to work in sedentary categories of physical work. Taking into account the applicant's physical abilities, knowledge and skill base acquired while in the Army the rehabilitation consultant recommended several areas of employment. These categories did not include computer technician but we are satisfied that computer technician is an appropriate level of sedentary work which the applicant would be able to perform.
The respondent assessed the applicant's ability to earn on the basis of a salary paid to a clerical officer at Level 1 Administrative Services Officer under the defence Employees Industrial Agreement 1998-99 in an amount of $486.92 per week.
We can find no basis to disagree with that determination.
For these reasons both decisions under review will be affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe and Dr K P Kennedy, Member
Signed:         Jan Lauriston
  Administrative Assistant
Dates of Hearing  27 November 2001, 29 November 2001
  and 17 December 2001
Date of Decision  5 November 2002
Counsel for the Applicant        Mr Harding
Solicitors for the Applicant       Gilshenan & Luton
Counsel for the Respondent    Mr Clark
Solicitors for the Respondent Phillips Fox

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Chalmers and Comcare [2002] AATA 1136

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