Chambers and Military Rehabilitation and Compensation Commission
[2006] AATA 12
•10 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 12
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/343
VETERANS' APPEALS DIVISION ) Re KEVIN CHAMBERS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date10 January 2006
PlacePerth
Decision The Tribunal sets aside the reviewable decision of the respondent dated 29 July 2004 and, in substitution therefor, decides that the respondent is liable, pursuant to s 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), to pay compensation to the applicant for the period from 12 June 2002 to 13 June 2005 (“the relevant period”), and that the amount of such compensation is to be calculated, pursuant to s 20(3) of the SRC Act, on the basis that, for the whole of the relevant period, the amount per week that the applicant was “able to earn in suitable employment”, within the meaning of s 19 of the SRC Act, is nil.
The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
(Sgd S D Hotop)
......................................
Deputy President
CATCHWORDS
COMPENSATION - Commonwealth employees - applicant enlisted in Australian Regular Army in 1994 - applicant suffered knee injury in course of military service in 1999 - applicant discharged from Army on medical grounds in December 2001 - applicant not totally incapacitated for work - applicant received incapacity payments from December 2001 - respondent reduced applicant's incapacity payments in period June 2002 - June 2005 on basis that applicant able to earn in suitable employment in that period - meaning of suitable employment - respondent did not make offer of rehabilitation program or employment to applicant - applicant did not seek Commonwealth employment - applicant pursued full-time tertiary study - determination of amount applicant able to earn in suitable employment - relevant matters to be considered - availability of suitable employment to applicant - applicant not able to earn in suitable employment - respondent continues to be liable to pay compensation by way of incapacity payments to applicant - reviewable decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) s4(1), s4(9), s14, s19(4) and s20
Comcare v Line (2002) 124 FCR 337
Re Chamberlain and Comcare AAT Decision No 11567, 24 January 1997
Re Chambers and Military Rehabilitation and Compensation Commission [2004] AATA 1405
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Rawling (1993) 42 FCR 421
Martin v Australian Postal Corporation (2000) 32 AAR 199
Telstra Corporation Ltd v Warner (1994) 20 AAR 259
REASONS FOR DECISION
10 January 2006 Deputy President S D Hotop Introduction
1. The applicant, who was born on 16 September 1977, enlisted in the Australian Regular Army on 24 January 1994. On 22 July 1999 he injured his right knee while playing in a rugby union match organised in the course of his military service. He claimed compensation in respect of that injury in March 2001 and on 12 September 2001 a delegate of the respondent determined that the Commonwealth was liable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act”) to pay compensation to him in respect of his right knee injury, namely, “iliotibial band syndrome and early chondromalacia patellae right knee”. On 21 November 2001 a delegate of the respondent decided that the applicant was entitled to a lump sum payment of compensation for permanent impairment (on the basis of a “whole person impairment” of 10%) and non-economic loss, pursuant to ss 24 and 27 of the SRC Act. The applicant was discharged from the Army on medical grounds, with effect from 9 December 2001, and he subsequently received a pension under a superannuation scheme.
2. In a series of determinations dated 4 December 2001, 29 January 2002, 8 July 2002 and 7 September 2002, it was determined by the respondent that the applicant was entitled to compensation by way of incapacity payment pursuant to s 20 of the SRC Act as follows:
Period
Gross weekly amount
10 – 27 December 2001
$441.12
28 December 2001 – 27 June 2002
$440.59
28 June 2002 – 30 June 2002
$435.33
1 July 2002 – 5 September 2002
$460.26
6 September 2002 –
$260.71.
3. On 31 October 2002, however, a delegate of the respondent determined that, as from 12 June 2002, the applicant was able to earn an amount in suitable employment and that his incapacity payments should have been progressively reduced until 14 August 2002 on which date they should have ceased. The delegate, by letter dated 31 October 2002, notified the applicant of that determination and informed him that his incapacity payments had ceased on 24 October 2002 and that the amount of compensation which he had been overpaid between 12 June 2002 and 23 October 2002 would be recovered from him.
4. On 29 July 2004 a delegate of the respondent made a “reviewable decision” affirming the determination of 31 October 2002.
5. On 27 September 2004 the applicant applied to the Tribunal for a review of the “reviewable decision” of 29 July 2004.
6. On 26 July 2005, however, a delegate of the respondent made a determination that the applicant was entitled to compensation by way of incapacity payments pursuant to s 20 of the SRC Act, with effect from 14 June 2005.
The Issue and the Tribunal’s Determination
7. It is common ground that the applicant’s work-related right knee injury has resulted in an incapacity for work, but that that incapacity is not total and the applicant does have a capacity for work. The issue for the Tribunal’s determination is, therefore, whether, in the period from 12 June 2002 to 13 June 2005 (“the relevant period”), the applicant was “able to earn” an amount per week in “suitable employment”, for the purpose of calculating the amount of compensation by way of weekly incapacity payments to which he was entitled pursuant to s 20 of the SRC Act during that period.
8. For the reasons which follow, the Tribunal has determined that the applicant was not “able to earn in suitable employment” in the relevant period and that he was therefore entitled, for the whole of that period, to compensation by way of incapacity payments pursuant to s 20 of the SRC Act, calculated on that basis.
The Legislation
9. Pursuant to s14(1) of the SRC Act the respondent is:
“liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
Section 4(9) of the SRC Act provides that a reference in that 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”.
Division 3 of Part II of the SRC Act (comprising ss19-23) deals with the payment of compensation for injuries resulting in incapacity for work. Section 20(1) provides that that section applies to:
“an employee who, being incapacitated for work as a result of an injury, retires voluntarily, or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of the retirement, receives a pension under a superannuation scheme”.
Pursuant to subss(2) and (3) of s20, compensation by way of weekly incapacity payments is payable to the retired employee, the amount of such compensation being calculated in accordance with a formula, a component of which is:
“the amount of compensation that would have been payable to the employee for a week if … section 19 … had applied to the employee”.
Section 19 of the SRC Act also prescribes formulae for calculating the amount of compensation by way of weekly incapacity payments payable to an employee during certain periods of time. A factor to be considered in applying those formulae is:
“the amount per week (if any) that the employee is able to earn in suitable employment”.
Section 19(4) provides that, in determining the amount per week that an employee is able to earn in suitable employment, regard must be had to the following factors:
“(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 [the determining authority’s] opinion, reasonable in all the circumstances; and
(g)any other matter that [the determining authority] considers relevant.”
Finally, the phrase “suitable employment” is defined in s 4(1) of the SRC Act 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, 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).”
The Evidence, Analysis and Findings
Relevant statutory matters
10. In order to determine the amount of compensation (if any) to which the applicant was entitled pursuant to s 20 of the SRC Act during the relevant period, it is necessary, by reason of s20(3), to consider the application of s 19 of that Act in the circumstances of the applicant’s case during that period. In order to consider the application of s19, it is necessary to determine the meaning of the phrase “suitable employment” (which appears in that section) in the circumstances of this case. The phrase “suitable employment” is defined exhaustively in s4(1) of the SRC Act. In the present case, the applicant’s employment by the Commonwealth was not terminated by the applicant – it was terminated by the Commonwealth when the applicant was discharged from the Army on medical grounds with effect from 9 December 2001. In those circumstances para (a) in the statutory definition of “suitable employment” is satisfied and, in accordance with that paragraph, “suitable employment” in the present case means “employment by the Commonwealth … in work for which the [applicant] is suited having regard to” the matters referred to in subparas (i)-(iv) of para (a): Comcare v Line (2002) 124 FCR 337.
11. It is common ground that the critical matter to be determined by the Tribunal in this case is “the amount per week (if any) that the [applicant was] able to earn in suitable employment” throughout the relevant period, for the purposes of ss19 and 20 of the SRC Act. Section 19(4) of the SRC Act sets out (in paras (a) – (g)) the matters to which regard must be had in determining “the amount per week that an employee is able to earn in suitable employment”. It is common ground that the matters referred to in paras (a) – (d) of s19(4) are not relevant in the circumstances of the applicant’s case. That leaves for consideration the applicability of paras (e), (f) and (g) in those circumstances.
12. It is common ground that the applicant has not sought employment with the Commonwealth since his discharge from the Army. Accordingly, the matters referred to in paras (e) and (f) of s19(4) of the SRC Act are relevant in this case. As regards para (g) of s19(4), however, a relevant matter for present purposes is the actual availability, during the relevant period, of “suitable employment” for the applicant – that is, employment with the Commonwealth in work for which he is suited having regard to the matters referred to in subparas (i) – (iv) of para (a) in the definition of “suitable employment” in s4(1) of the SRC Act: Telstra Corporation Ltd v Warner (1994) 20 AAR 259 at 264.
Relevant factual background
13. The relevant background facts are not in dispute and are found by the Tribunal to be as follows:
· during his Army service the applicant obtained a trade qualification as a diesel motor mechanic in 1997 after completing an apprenticeship;
· in October 1998 the applicant was selected to undertake officer training at the Royal Military College, Duntroon (“RMC”) and he was then posted to Brisbane for the purpose of completing an adult tertiary preparation course in 1999 with a view to commencing the RMC course in January 2000;
· in July 1999 the applicant suffered the relevant compensable injury to his right knee;
· the applicant successfully completed the adult tertiary preparation course in December 1999 but, because of his knee injury, his medical classification was downgraded to a level below that which was required for entry into the RMC;
· the applicant was granted approval to defer his entry into the RMC until July 2000 but, because of his knee injury, his medical classification did not subsequently reach the level required for entry into the RMC, and he was thereby prevented from undertaking the RMC course;
· the applicant resumed work as a mechanic and in late 2000 he completed an Advanced Certificate in Engineering (Mechanical) course with the Department of Defence;
· the applicant then worked as a mechanical workshop supervisor until his discharge from the Army on medical grounds in December 2001;
· meanwhile in October 2001 the applicant (who was then still in Brisbane) had requested that an assessment of his capability of undertaking a rehabilitation program be made, and it was subsequently agreed between him and the Military Compensation and Rehabilitation Service (“MCRS”) that such an assessment be deferred until his return to Western Australia in early 2002;
· in January 2002 the applicant relocated to Esperance, Western Australia;
· in February 2002 the applicant enrolled in, and commenced studying on a full-time basis as an external student, a Bachelor of Arts in Ministry Studies course with Harvest West Bible College, Perth;
· on 3 May 2002 a Rehabilitation Assessment report regarding the applicant was completed by Ms A Reddyhough of the Commonwealth Rehabilitation Service office in Esperance (the contents of that report and Ms Reddyhough’s evidence will be referred to in more detail later in these reasons);
· on 12 June 2002 an officer of the MCRS made a determination that “no rehabilitation program be offered” to the applicant under s37 of the SRC Act for the following reasons:
“Ms Reddyhough reported that, based on Dr Hilford’s medical report and feedback from your treating GP, Dr Clingen, your prognosis for recovery and return to work was good. Feedback from Dr Clingen indicated that you had a current work capacity for 20 hours per week with an ability to increase by two hours per week to full-time hours. Mrs Carey, your physiotherapist, has estimated that a return to function within normal limits could be achieved within two months.
Ms Reddyhough considered that, based on the available medical information, you would be able to work in the following fields which are related to your trade qualification of Diesel Mechanic:
Small Engine Mechanic
Automotive Parts Interpreter
Machinery Sales Consultant
Service Station Attendant.Given that there are suitable employment options for you, MCRS can offer you a rehabilitation program aimed at assisting you to return to work in any of the above occupations. However, from discussion with yourself and from Ms Reddyhough’s assessment report, I understand that you wish to continue with full time external studies towards a Bachelor of Arts in Ministry Studies, through Harvest West Bible College. Therefore, no rehabilitation intervention is required at this stage.”;
· that determination was affirmed in a reviewable decision dated 21 November 2002;
· on 24 December 2004 this Tribunal (Mr M Allen, Member) set aside the reviewable decision of 21 November 2002 and remitted the matter to the respondent for further consideration in accordance with a direction that an appropriate rehabilitation program (not necessarily including a course of tertiary study) be offered to the applicant: see Re Chambers and Military Rehabilitation and Compensation Commission [2004] AATA 1405;
· meanwhile in January 2004 the applicant moved from Esperance to Albany, Western Australia where he has since been doing voluntary work as a Youth Leader in RIPE Youth Services, a youth organisation attached to Calvary Chapel Albany Inc;
· following the Tribunal’s decision of 24 December 2004, the applicant was referred by the respondent to Advanced Personnel Management (“APM”) for assistance with vocational rehabilitation and the development of a rehabilitation plan;
· in an Initial Assessment Report, dated 24 May 2005, regarding the applicant, Ms K Thompson, an APM Rehabilitation Consultant, stated:
“APM has developed a Rehabilitation Plan which documents the requirement for short labour market research to be conducted within the areas of Albany, Mount Barker and Denmark for the occupations of Education Aide, Youth Worker and Spare Parts Interpreter prior to a work placement being organised as a way of identifying more clearly the potential worthwhile job options within the local labour market. Given Mr Chambers’ extensive contacts within the Albany area in the area of Youth Chaplaincy/pastor work, it is likely this avenue will be furthered …”;
· in a subsequent (undated) Progress Report Ms Thompson stated that the rehabilitation goal was to retrain the applicant for a new vocation as a Youth Worker, working full-time with a new employer, and added:
“Following a period of delay with having the Rehabilitation Plan approved, APM provided Mr Chambers assistance to modify his curriculum vitae and education in job seeking including interview skills and job applications. Mr Chambers has placed in a submission for both a work placement and paid employment as a School Chaplain with Bethel Christian School and is currently awaiting the outcome of a board meeting. Additionally, APM has conducted further labour market research and work placement canvassing in a number of vocations and identified that the most appropriate vocation to pursue is the vocation of Youth Worker.”
The applicant’s evidence
14. The applicant confirmed that he is presently undertaking a rehabilitation program with a view to obtaining employment as a youth worker. He said that he is presently working 16 hours per week at the Albany Police and Citizens’ Youth Club, and that he is receiving compensation payments from the respondent.
15. The applicant said that he continues to experience pain behind and around his kneecap, and because of that he avoids stairs and inclines, squatting, kneeling, and lifting and pushing heavy things. He said that “running is not an option” but later said that he “can’t run more than 500 metres at a time”.
16. He said that he has not consulted a medical practitioner regarding his knee since March/April 2002, and that he had not received any physiotherapy for his knee since July/August 2002. He said that he has “altered [his] lifestyle to suit [his] disability” and that he “lives around [his] injury”. He added that he “can work around [his] injury as well”.
17. As regards Ms Reddyhough’s Rehabilitation Assessment report dated 3 May 2002, the applicant acknowledged that in that report Ms Reddyhough commented that he may be able to work in a field related to his trade qualification of diesel mechanic, such as small engine mechanic, automotive parts interpreter, machinery sales consultant, and service station attendant, but that, owing to his participation in full-time tertiary study, a rehabilitation plan had not been developed with him at that time. The applicant said, however, that Ms Reddyhough had never discussed those possible occupations with him and that she had included them in her report before he had had a chance to discuss them and the continuation of his tertiary studies with her. He said that he telephoned Ms Reddyhough on 9 May 2002 with a view to suggesting to her that he might reduce the amount of time he devoted to his studies so that he could at the same time undertake rehabilitation but, because she then informed him that she had already filed her report, he did not make that suggestion to her because he thought that, her report having already been filed, there would be no point in doing so.
18. The applicant confirmed that, after the determination of 12 June 2002 that on the basis of Ms Reddyhough’s report he not be offered a rehabilitation program, he wrote a letter dated 2 July 2002 to the respondent requesting a reconsideration of that determination, explaining why (in his opinion) none of the 4 occupations suggested by Ms Reddyhough was appropriate for him, and requesting that the respondent “consider [his] tertiary studies as rehabilitation”. He explained that when he wrote that letter he was of the opinion that he was “entitled to tertiary level rehabilitation” but that, in the light of the Tribunal’s decision of 24 December 2004, he now accepted that he was not so entitled. He added, however, that in his letter of 2 July 2002 he had also referred to his physical incapacity in support of his argument that none of the occupations suggested by Ms Reddyhough was appropriate for him.
19. The applicant said that his request that his studying in the Bachelor of Arts in Ministry Studies course be considered as rehabilitation was an option he was presenting to the respondent if he was found to be eligible for tertiary level rehabilitation. He also wrote a letter dated 2 October 2002 to the respondent in which he stated:
“Please note that I in no way intended to demand that my current study be accepted as rehabilitation; I presented only what I believe is a viable option when one takes into account the length of training required for me to realistically gain employment in any of the fields listed in the original rehabilitation proposal.”
More recently, however, the applicant, in a letter dated 3 March 2004 to the respondent’s solicitors, stated:
“It is still my request that Comcare (sic) accept this course as rehabilitation …”
20. The applicant was referred to a Physical Work Performance Evaluation Summary Report, dated 21 March 2005, prepared by Ms T Brian, Occupational Therapist, of WorkFocus Australia. In that report Ms Brian identified 19 occupations which, on the basis of the applicant’s “employment history, skills and aptitudes”, were “vocationally appropriate” for him. Asked to comment on each of those occupations, the applicant acknowledged that the following occupations, provided that the duties were modified so as to be within his physical capacity, would be appropriate for him:
· workshop supervisor
· spare parts interpreter
· vehicle service adviser
· light engine mechanic
· transport/despatch clerk
· mechanical engineering technician
· youth worker
· education aide.
Asked whether he had any “ideological problems” with undertaking occupations that might be “less intellectually stimulating” than his preferred occupations (such as youth worker or education aide), the applicant said that he would not have such a problem because he would be able to continue with his tertiary studies part-time (as he is presently doing) and he would derive intellectual stimulation from those studies. He added:
“And I wouldn’t have had a problem before if anything had been offered to me, we could have discussed it.”
21. The applicant said that he, his wife and children relocated from Brisbane to Esperance (where his parents resided) in January 2002 for family reasons. He acknowledged that at that time he did not think about the possible lack of employment opportunities for him in the town of Esperance (as compared with a city such as Brisbane). He said, however, that there are “always jobs going in Esperance” and that there is “a plethora of occupations that are available”. He said that he moved from Esperance to Albany in January 2004 because he had been offered “volunteer youth work” at Calvary Chapel in Albany, and also because of the better schooling for his children in Albany. He said that he did not “have a problem moving out of Albany” for employment purposes, although he said that other considerations would have to be taken into account – such as the expense of moving, the fact that he and his wife had recently bought a house in Albany and had financial commitments there, and the children’s schooling – before any such decision was made.
The evidence of Ms A Reddyhough
22. Ms Reddyhough also gave oral evidence at a hearing before the Tribunal on 23 June 2004 in relation to the applicant’s application for a review of the decision of the respondent not to offer a rehabilitation program to him, and a transcript of her evidence on that occasion is also in evidence in the present matter.
23. Ms Reddyhough has worked as a Rehabilitation Consultant for 17 years and has done so in Esperance for the last 10 years. She confirmed that she had prepared a Rehabilitation Assessment report, dated 3 May 2002, regarding the applicant following a referral from the MCRS. In that report Ms Reddyhough referred to the applicant’s right knee condition, the treatment and medication he was receiving for that condition, and the prognosis for his recovery and return to work as expressed by medical practitioners and a physiotherapist, and she indicated that it was her opinion that the applicant was capable of undertaking a rehabilitation program and that such a program was likely to increase his capability for work. She stated:
“Based on the information from treating practitioners, Mr Chambers may be able to work in a field related to his trade qualification of Diesel Mechanic. Examples of this include:
· Small Engine Mechanic;
· Automotive Parts Interpreter;
· Machinery Sales Consultant;
· Service Station Attendant”.
She then summarised the applicant’s physical work restrictions. Ms Reddyhough, however, did not go on to prepare a rehabilitation plan or recommend a rehabilitation program for the applicant for the following stated reasons:
“Mr Chambers has made a decision to commence full-time external studies in a Bachelor of Arts in Ministry Studies, through Harvest West Bible College.
Based on information provided by MCRS, and through review of the Military Compensation Scheme, long term tertiary training is not supported through a vocational rehabilitation program for the following reasons:
1.Mr Chambers has a current work capacity utilising his existing work qualification and experience; and
2.Tertiary study is not a level commensurate with Mr Chambers’ employment status at the time of his discharge.”
She later made the following additional comments:
“… a Rehabilitation Plan has not been developed with Mr Chambers at this stage, due to his current participation in tertiary study.
Mr Chambers intends to review his situation regarding ongoing participation in study as an alternative to participation in vocational rehabilitation. Mr Chambers is aware that tertiary retraining is not a rehabilitation option, and I understand that he will be consulting further with the Rehabilitation Co-ordinator regarding his situation.
No further rehabilitation intervention is therefore required at this stage.”
24. In her oral evidence at the hearing on 23 June 2004 Ms Reddyhough said that the purpose of her assessment regarding the applicant was “just … to look at whether rehabilitation would be proceeding, whether it was appropriate”. She said that she did not recall discussing with the applicant the 4 occupations referred to in her report and added that, given that he “had already commenced his study and had made his decision”, she may not have done so. She also said that she did not prepare a rehabilitation program for the applicant in respect of any of those occupations because she “saw” that he had made a choice to undertake studies and, that being the case, she could not offer him a “rehabilitation program within the boundary of the MCRS guidelines”. She acknowledged that she did not proceed to make a vocational assessment regarding the applicant because he had already “made his career choice as [she] saw it”. She added:
“… if somebody has already identified a work option that they are committed to there would have been no point in proceeding with a vocational assessment.”
Ms Reddyhough acknowledged that a person could undertake part-time tertiary study while they were undertaking a rehabilitation program provided that they were studying “in their own time” and their studying was not “interfering with” the rehabilitation program. Asked by the applicant whether this arrangement could have been suggested to him, Ms Reddyhough responded:
“That wasn’t considered.”
Ms Reddyhough also acknowledged that she was unable to express an opinion regarding the availability of work in any of the 4 occupations referred to in her report in Esperance at that time.
25. At the hearing in the present matter Ms Reddyhough confirmed the evidence which she gave at the previous hearing. She also reiterated that she did not make a “complete rehabilitation assessment” regarding the applicant. She said, however, that if the applicant had informed her that he would be prepared to discontinue his studies and to consider other options she would have proceeded to do a vocational assessment and, if necessary, a functional capacity assessment.
The evidence of Ms T Brian
26. Ms Brian is an Occupational Therapist and is employed by WorkFocus Australia. She confirmed that a Physical Work Performance Evaluation (“PWPE”) regarding the applicant was conducted on 2 March 2005 and that she subsequently prepared a Summary Report, dated 21 March 2005, setting out the results of that evaluation. That report is in evidence.
27. Ms Brian’s report identified 19 occupations which, on the basis of the applicant’s employment history, skills and aptitudes, were “vocationally appropriate”, and concluded as follows:
“Based on the results of the PWPE Mr Chambers demonstrated a safe working capacity for the following jobs:
·Spare Parts Interpreter
·Youth Worker
·Education Aide.
Mr Chambers did not currently have a safe working capacity for the following jobs however, depending upon the individual work environment and with provision of a stool or opportunity to alternate his postures regularly between sitting, standing and walking, Mr Chambers may be physically capable of undertaking the following jobs:
·Sales Assistant
·Vehicle Service Adviser
·Service Station Attendant
·Process Worker.”
28. Ms Brian also gave oral evidence but it is unnecessary to set out that evidence here.
The evidence of Mr J Kagi
29. Mr Kagi is a Consultant Orthopaedic Surgeon and he has been practising as an orthopaedic surgeon for approximately 30 years. He confirmed that, at the request of the respondent’s solicitors, he had prepared a report regarding the applicant. That report (which is in evidence) is dated 28 February 2005 and indicates that the applicant was examined on 24 February 2005. In that report Mr Kagi provided comments on specific matters put to him by the respondent’s solicitors, including the following:
“5.Nature and extent of any capacity (full or part-time, now and in the future) for:
5.1 pre-accident duties:
With regard to his pre-accident duties, he was a soldier and a diesel mechanic, I doubt whether he can resume these activities because of the difficulties with running and repetitive kneeling, squatting and standing from kneeling and squatting, either on a full or part-time basis.
5.2alternative duties, eg as a sales assistant, clerk, courier or taxi driver – please specify;
He could carry out the activities of a sales assistant, clerk, courier or taxi driver, or as he indicated a TAFE teacher, provided none of these roles involved running or frequent kneeling, squatting or climbing.
5.3 employment generally;
As above (my response to Questions 5.1 and 5.2), particularly with regard to the latter paragraph, describing recommended restrictions.
5.4 rehabilitation/return to work program and (sic)
He is suitable for a rehabilitation/return to work program and one that trained him to be a TAFE teacher in his trade would be ideal.
If the capacity is for part-time work only, please specify the number of hours of work per week.
He is fit to resume work as described under 5.2, 5.3 and 5.4 on a full-time basis, assuming that he would be given a two to three month graduated work-hardening period along standard lines considering the length of time he has been out of work.”
30. In his oral evidence Mr Kagi confirmed that the applicant is suffering from chondromalacia patellae – that is, in lay terms, a sore kneecap – in the right knee. He said that this is “a very common condition of the knee in all age groups” and he described it as “an annoying condition”. He added, however, that it is “difficult to treat” and “difficult to cure the symptoms”.
31. As regards the effect of the applicant’s right knee condition on his capacity to work, Mr Kagi said that he would be physically able to work in an occupation which did not require him to squat, climb or descend stairs, or run (especially downhill). He said that the applicant’s condition would not preclude him from working in an occupation which requires standing and sitting, although he acknowledged that “standing from sitting” might cause him “some discomfort”.
Additional evidentiary material
32. The material in evidence before the Tribunal also includes the following:
· a labour market research report, dated 5 July 2005, by Ms K Fitzsimmons of Advanced Personnel Management, regarding the following occupations:
-Youth Worker
-Chaplain/Religious Leader
-Spare Parts Interpreter
-Education or Teacher’s Aide;
·a labour market report, dated 23 March 2005, by Professor C Mulvey of LabourNet, regarding the following occupations:
-Spare Parts Interpreter
-Youth Worker
-Education or Teacher’s Aide.
It is unnecessary to refer in detail to the contents of those reports here.
Findings
33. The Tribunal will now address the matters referred to in paras (e), (f), and (g) of s19(4) of the SRC Act, having regard to the relevant evidence which is before it.
34. It is common ground that the applicant has not sought employment with the Commonwealth since his discharge from the Army in December 2001. The Tribunal notes, however, that the applicant testified, at the previous Tribunal hearing regarding the respondent’s decision not to offer him a rehabilitation program, that, although he had not sought employment whilst living in Esperance, he had, after moving to Albany in January 2004, unsuccessfully applied for about 20 positions in that locality, most of which were of an administrative or clerical nature although one position was that of a part-time TAFE college lecturer in automotive studies: see Re Chambers (above) at para 41. There is no suggestion, however, that any of those positions were with the Commonwealth, and, that being the case, none of those positions could constitute “suitable employment”, within the meaning of s19(4)(e) of the SRC Act, for the purposes of this case.
35. There is some evidence before the Tribunal regarding the state of the labour market in Western Australia with respect to the occupations of youth worker, chaplain/religious leader, spare parts interpreter, and education or teacher’s aide, and the general rates of remuneration associated with those occupations. That evidence comprises the 2 labour market research reports referred to in paragraph 32 above. Of those 2 reports, however, only the report of Professor Mulvey specifically addresses the state of the labour market in the relevant period, although not for the whole of that period (the earliest date mentioned being 25 February 2003). Moreover, neither of those reports specifically addresses the state of the labour market in respect of employment with the Commonwealth in any of the specified occupations. On the basis of the abovementioned evidence, the Tribunal is unable to make a finding, for the purposes of s19(4)(e) of the SRC Act, regarding the amount per week that the applicant could reasonably be expected to have earned in suitable employment – that is, employment with the Commonwealth for which he is suited having regard to the matters referred to in subparas (i)-(iv) of para (a) in the definition of “suitable employment” in s4(1) of the SRC Act – in the relevant period.
36. As regards the matter referred to in para (f) of s 19(4) of the SRC Act, the Tribunal notes that, since the termination of the applicant’s employment by the Commonwealth in December 2001:
· no offer of employment has been made to him by the Commonwealth; and, furthermore,
· on 12 June 2002 the respondent determined that no rehabilitation program be offered to him under s 37 of the SRC Act.
Since, by reason of the abovementioned determination of 12 June 2002 (as affirmed on 21 November 2002), the applicant was not, during the relevant period, offered a rehabilitation program by the respondent or by the Commonwealth generally, no question of his having failed to undertake or to complete such a program, for the purposes of s19(4)(f) of the SRC Act, arises. The matter of the applicant’s failure to seek suitable employment with the Commonwealth – and, in particular, the question whether his failure to do so was “reasonable in all the circumstances” – do, however, arise.
37. In the Tribunal’s opinion, as regards the applicant’s failure to seek suitable employment with the Commonwealth, the following circumstances are relevant:
·the applicant continued to receive compensation by way of incapacity payments from the respondent until 24 October 2002;
·in her Rehabilitation Assessment report of 3 May 2002 Ms Reddyhough expressed the opinion that the applicant was capable of undertaking a rehabilitation program and that such a program would be likely to increase his capability for work, yet a determination was made by the respondent on 12 June 2002 that no rehabilitation program be offered to the applicant under s 37 of the SRC Act;
·the applicant then sought an internal review of that determination, resulting in an affirmation of that determination on 21 November 2002, and he then sought review by the Tribunal of that decision which resulted in a decision of the Tribunal on 24 December 2004 that the matter be remitted to the respondent with a direction that the applicant be offered an appropriate rehabilitation program (not necessarily including a course of tertiary study);
·pursuant to the Tribunal’s decision 24 December 2004 the applicant underwent a fresh rehabilitation assessment following which a rehabilitation plan was developed and the applicant subsequently commenced a rehabilitation program, in accordance with that plan, with a view to obtaining full-time employment as a youth worker.
In those circumstances, together with the circumstances that no offer of employment was ever made to the applicant by the Commonwealth after his discharge from the Army on medical grounds in December 2001, and that the applicant continued to suffer from the right knee injury by reason of which he had been discharged from the Army and which restricted his physical capacity to perform the kinds of work for which he had been trained while in the Army, namely, diesel mechanic and workshop supervisor, it was, in the Tribunal’s opinion, not unreasonable that the applicant failed to seek suitable employment with the Commonwealth during the relevant period.
38. Finally, pursuant to para (g) of s19(4) of the SRC Act, the Tribunal must have regard to any other matter that it considers relevant.
39. The respondent submitted that, pursuant to para (g) of s19(4) of the SRC Act, the Tribunal should have regard to the following considerations:
· the applicant, in his dealings with Ms Reddyhough who had been engaged by the respondent to conduct a rehabilitation assessment of him, had adopted the position that he was interested only in a rehabilitation program that involved his undertaking full-time tertiary study – in particular, study in the Bachelor of Arts in Ministry Studies course offered by Harvest West Bible College;
· by adopting that position, the applicant had effectively prevented Ms Reddyhough from completing the rehabilitation assessment and preparing an appropriate rehabilitation plan for him, thereby resulting in the respondent’s decision that no rehabilitation program be offered to him under s37 of the SRC Act and also resulting ultimately in the applicant’s not obtaining suitable employment;
· in January 2002 the applicant voluntarily relocated from Brisbane to Esperance, Western Australia and subsequently, in January 2004, to Albany, Western Australia – both being country towns where the availability of suitable employment was likely to be significantly lower than in a capital city such as Brisbane.
The respondent submitted that it would be “grossly unfair” if the applicant, having adopted the abovementioned position regarding his continuing with full-time tertiary study, were entitled to receive ongoing compensation payments while he pursued such study. The respondent submitted, in effect, that the applicant, by adopting that position and thereby causing the rehabilitation assessment process to fail, had forfeited his entitlement to ongoing compensation payments.
40. The applicant submitted that Ms Reddyhough acted precipitately in submitting her report of 3 May 2002 to the respondent without first completing a rehabilitation assessment of him and providing him with rehabilitation options (which would have allowed him to continue with his tertiary studies on a part-time basis) for him to consider. He pointed to the fact that, following the Tribunal’s decision of 24 December 2004, he is presently undertaking a rehabilitation program and is, at the same time, continuing with his studies for the degree of Bachelor of Arts in Ministry Studies on a part-time basis.
41. It seems to the Tribunal that the relevant rehabilitation assessment process failed in May 2002 owing to a misunderstanding, on the part of Ms Reddyhough, of the applicant’s attitude regarding his rehabilitation. That misunderstanding was probably caused largely by the impression which the applicant conveyed to Ms Reddyhough that he was adamant that his full-time tertiary study course be accepted by her, and by the respondent, as his rehabilitation program. The Tribunal notes that, at the time of his dealings with Ms Reddyhough, the applicant believed that he was entitled to have his tertiary study course accepted as a rehabilitation program, and the Tribunal is prepared to infer that that belief led him to adopt an apparently uncompromising position on that matter in his dealings with Ms Reddyhough. The Tribunal also notes that the applicant, in the light of the Tribunal’s decision of 24 December 2004, now accepts that that belief was mistaken, and he is now happily undertaking a rehabilitation program which does not include tertiary study.
42. The Tribunal is, however, not prepared to infer that the position regarding rehabilitation and tertiary study adopted by the applicant in his dealings with Ms Reddyhough was in fact uncompromising and inflexible. The Tribunal notes that, on 2 October 2002 – that is, before the reviewable decision that no rehabilitation program be offered to him was made by the respondent on 21 November 2002 – the applicant wrote to the respondent that he “in no way intended to demand that [his] current study be accepted as rehabilitation”, and that he had merely presented what he believed to be a “viable option”. The Tribunal, however, accepts that, at that time, the applicant believed that he was entitled to have his full-time tertiary study course accepted by the respondent as a rehabilitation program, and he was, accordingly, maintaining his request to the respondent that it do so; but, on the other hand, the Tribunal accepts the applicant’s evidence that he nevertheless would have been prepared genuinely to consider undertaking an appropriate rehabilitation program which did not include tertiary study, had such a program been offered to him by the respondent.
43. The Tribunal notes that, in its letter of 12 June 2002 to the applicant notifying him of its determination that no rehabilitation program be offered to him, the respondent, after referring to the 4 occupations mentioned in Ms Reddyhough’s report of 3 May 2002 (namely, small engine mechanic, automotive parts interpreter, machinery sales consultant, and service station attendant), went on to state:
“Given that there are suitable employment options for you, MCRS can offer you a rehabilitation program aimed at assisting you to return to work in any of the above occupations.”
The respondent, however, failed to offer any rehabilitation program to the applicant. Had the respondent offered an appropriate rehabilitation program to the applicant, and had the applicant failed to undertake that program for no good reason, the respondent’s present claim that the applicant was responsible for the failure of the relevant rehabilitation assessment process in 2002 and for his subsequent failure to complete a rehabilitation program and obtain suitable employment might have had greater force. Having regard to the relevant circumstances concerning the applicant’s rehabilitation that did exist in 2002, however, the Tribunal is not satisfied that the applicant was solely, or even primarily, responsible for the failure of the rehabilitation process which occurred at that time. Nor, in the Tribunal’s opinion, was the applicant’s conduct in relation to his rehabilitation assessment by Ms Reddyhough at that time such as to affect adversely his entitlement to ongoing compensation pursuant to s 20 of the SRC Act.
44. There is, however, a further relevant matter for the Tribunal to consider, pursuant to s19(4)(g) of the SRC Act, for the purpose of determining the amount (if any) per week that the applicant was “able to earn in suitable employment” in the relevant period. That matter is the actual availability to the applicant of “suitable employment” – that is, employment with the Commonwealth in work for which the applicant is suited having regard to the matters specified in subparas (i)-iv) of para (a) in the definition of “suitable employment” in s 4(1) of the SRC Act in the relevant period: Telstra Corporation Ltd v Warner (above); Comcare v Line (above). Such employment would also have to be compatible with work restrictions imposed by reason of the applicant’s physical disability resulting from his compensable right knee injury: Martin v Australian Postal Corporation (2000) 32 AAR 199 at 204. The appropriate restrictions to be imposed on “suitable employment” in the present case are, according to Mr Kagi’s evidence, that there not be running or frequent kneeling, squatting, or climbing or descending stairs, and the Tribunal so finds.
45. In the present case the applicant did not receive any offer of employment (or, indeed, any offer of a rehabilitation program) by the Commonwealth in the relevant period. Although there is (as referred to in paragraph 35 above) some evidence before the Tribunal regarding the availability in Western Australia, during part of the relevant period, of jobs that might be appropriate for the applicant (namely, spare parts interpreter, youth worker, and education aide), and the general rates of remuneration applicable thereto, no evidence was presented to the Tribunal regarding the actual availability to the applicant of suitable employment with the Commonwealth (as described in paragraph 44 above) in the relevant period. On the basis of the evidence before it, the Tribunal is unable to make a finding that any form of suitable employment with the Commonwealth was actually available to the applicant in the relevant period.
46. Finally, the Tribunal accepts that the applicant’s conduct in relocating from a capital city (Brisbane) to a relatively small country town (Esperance, Western Australia) in January 2002 shortly after his discharge from the Army is also a relevant matter to be considered pursuant to s19(4)(g) of the SRC Act: Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Rawling (1993) 42 FCR 421 at 426; Re Chamberlain and Comcare (AAT Decision No 11567, 24 January 1997) at para 63. However, in the circumstances of the present case and having regard, in particular, to the absence of any evidence regarding the actual availability to the applicant of suitable employment with the Commonwealth anywhere in Australia, the Tribunal can derive no assistance from that consideration in determining the amount (if any) that the applicant was “able to earn in suitable employment” in the relevant period.
47. Having regard to all relevant matters in this case, the Tribunal, on the basis of the evidence before it, is unable to find that the applicant was “able to earn” any amount “in suitable employment” in the relevant period, for the purposes of ss19 and 20 of the SRC Act.
Conclusion
48. Accordingly, the Tribunal concludes that, for the purpose of calculating the amount of compensation by way of weekly incapacity payments to which the applicant was entitled, pursuant to s20 of the SRC Act, in the relevant period, the amount per week that the applicant was “able to earn in suitable employment”, within the meaning of s19 of the SRC Act, is nil.
Decision
49. For the above reasons the Tribunal sets aside the reviewable decision of the respondent dated 29 July 2004 and, in substitution therefor, decides that the respondent is liable, pursuant to s20 of the SRC Act, to pay compensation to the applicant for the relevant period, and that the amount of such compensation is to be calculated, pursuant to s20(3) of the SRC Act, on the basis that, for the whole of the relevant period, the amount per week that the applicant was “able to earn in suitable employment”, within the meaning of s19 of the SRC Act, is nil.
50. The Tribunal orders, pursuant to s67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: (Sgd S da Motta)
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AssociateDate of Hearing 1 August 2005
Date of last Submissions 29 August 2005
Date of Decision 10 January 2006
Counsel for the Applicant In person
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Phillips Fox
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