Cooney and K & S Freighters Pty Ltd (Compensation)
[2017] AATA 1460
•13 September 2017
Cooney and K & S Freighters Pty Ltd (Compensation) [2017] AATA 1460 (13 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/4519; 2015/4617
Re:Gregory Cooney
APPLICANT
K & S Freighters Pty LtdAnd
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:13 September 2017
Place:Sydney
The Tribunal orders:
(i)The decisions under review be set aside
(ii)Proceedings 2016/4519 and 2015/4617 be remitted to Comcare for the calculation of the applicant’s entitlements based on the findings made in this decision.
............................[sgd]............................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
COMPENSATION – compensation for injuries resulting in incapacity – applicant failed to engage in the employment offered - whether the applicant was offered suitable employment – the applicant was not offered suitable employment – whether it was reasonable in all the circumstances for the applicant to resign – applicant’s resignation was reasonable – the applicant does not have capacity to earn equivalent to NWE - the decision under review is set aside and remitted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19, 62
CASES
Slater v Telstra Corporation Limited (2001) 115 FCR 34
Esam v ASP Ship Management (1998) 87 FCR 82
Montgomery and Comcare [1996] AATA 655
Brooks and Comcare [1995] AATA 252
Ferreira and Comcare [1995] AATA 531
Woodbridge v Comcare (1995) 21 AAR 20
Woodbridge v Comcare (1994) 20 AAR 196West and Comcare [1994] AATA 33
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
13 September 2017
2. Mr Gregory Cooney (‘the applicant’) was employed by K & S Freighters Pty Ltd (‘the respondent’) as a truck driver. He suffered an injury at work for which he claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’). Such claim related to the applicant’s entitlements for compensation in varying periods following his resignation on 7 September 2012. The applicant’s claim made pursuant to section 19 of the SRC Act was rejected by decision made on 4 August 2015 (‘the Decision’) pursuant to section 62 of the SRC Act. He thereafter sought reconsideration. The reconsideration which affirmed the original decision was notified on 17 August 2015.
3. By Application for Review dated 4 September 2015 (proceedings 2015/4617), the applicant seeks review of the Decision. The Decision referred to the original Determination dated 4 August 2015 which stated in part:
I accept that you have an entitlement to claim incapacity payments notwithstanding your resignation as your compensable condition continues to cause some degree of incapacity. However as stated above I believe you failed to continue to engage in suitable employment with K & S Freighters as you choose [sic – chose] to resign from suitable employment to become self-employed. I believe you had the ability to earn equivalent to the amount you would have been earning in employment with K&S Freighters had that continued.
4. By a second Application for Review dated 26 of August 2016, (proceedings 2016/4519) the applicant seeks review of a decision made on 29 of July 2016. Such claim relates to whether the respondent is liable for compensation from 6 July 2016.
FACTS
5. The applicant, upon leaving school, began work as a storeman in a supermarket. He then became an apprentice butcher and thereafter owned a butcher shop for approximately 3 ½ years. In 1993 he commenced as a truck driver working with C&D Burns delivering bricks and roof tiles between Newcastle and Wollongong. He worked in this capacity for 10 years and in 2009 commenced work with AirRoad Overnight, driving large trucks known as B doubles. In June 2009, he experienced minor back issues and consulted his general practitioner Dr Ekezie who practices at Northlakes Medical Centre at San Remo.
6. In February 2011 he commenced work with a subsidiary of the respondent, namely Douglas Transport Management (DTM). Work with that company required delivery of roof tiles from Sydney, collecting roof tiles from Emu Plains Yard and delivering them to the Central Coast and Newcastle region. Such work was performed pursuant to a contract between either DTM or the respondent and with Boral.
7. On 25 July 2011, the applicant stated that he was required to lift a pallet of terracotta roof tiles using a forklift. In the course of the operation, a pile of tiles fell over into a trailer. The applicant commenced picking up the tiles, but in doing so injured his lower back. He said he felt it was a muscle pull. He states that he drove from the unloading depot at Emu Plains to Wyee where he consulted Dr Ekezie. The applicant states he had some physiotherapy from a physiotherapist, Matthew Chase, who operates at Total Physio at Morisset. The applicant stated that he recovered “fairly well”.
8. The applicant returned to his pre-injury duties following certification and continued with those duties until May 2012. The applicant states he had no other difficulties during the period of his return to work.
9. On 15 May 2012, the applicant drove a truck containing a consignment of terracotta roof tiles to Dungog. Following the unloading he commenced his return along a road between Dungog and Patterson. He states that the truck he was driving started to “oscillate” due to the undulations in the road which resulted in the driver’s seat collapsing. He stated that “the seat’s just collapsed and it just speared me in the back. It’s just caused the seat to collapse down. As I’ve come down I’ve hit it hard.”
10. The applicant states that he noticed pain radiating down his left leg. On the following day, he took painkillers and returned to work but the pain did not improve so he contacted his supervisor and informed him. He had an MRI scan shortly thereafter and commenced seeing Dr Ekezie again.
11. The respondent did not require the applicant to return to work on his normal duties but rather he was placed on “home pack”. That work involved him undertaking bookwork at home including reviewing his safety procedures. The period during which the applicant was undertaking the home pack work was from 11 July to 3 August. The applicant submitted a claim for workers compensation dated 25 of July 2011. The condition was “lower back strain” and “ruptured disc”. In September 2011, the respondent acknowledged that it was liable to pay compensation in respect of “lower back strain” up to and including 31 of October 2011.
12. By workers compensation claim submitted on 29 May 2012, the applicant submitted a further claim for “low back pain with left nerve root irritation” the claim referred to the previous “ruptured disc in lower back and disaligned hips”. The cause of this incident was stated to be “travelling in empty truck over extremely rough roads. Airbag system rides too hard with no ‘give’”.
13. A medical certificate was provided by Doctor Foo dated 18 May 2012. He concluded:
Degenerative changes, mild to moderate at the lumbosacral junction, and early degenerative change at L4/5, with left L5 neural exit foraminal stenosis, and a disc protrusion abutting at not displacing or compressing the right S1 nerve root in the lateral recess.
14. Doctor Ekezie certified that the applicant was fit for the following capabilities:
8hrs/day 5 days/week (Mon to Friday Office work only)
15. The applicant commenced modified duties at the yard on or about 6 August. On 10 August 2012 he commenced to “off-siding duties”, that is, he went on a job with a driver. He said he found the truck was uncomfortable with a very hard and rigid seat and it jarred his back. He continued that work to 13 August, noticing that climbing up from the ground caused him issues because he had to twist to sit down. At the end of the two day period of offsider duties he telephoned his supervisor, Scott Fletcher, and told him that it was not working. On 21 August the applicant was allocated to clerical duties. He was allocated a workspace in the lunch room undertaking modified duties. He described the lunch room as having dimensions of approximately 8 feet wide by 12 feet in length. He would drive approximately 35 to 40 minutes from his home, which was then located at Cooranbong, to Cardiff. Whilst located in the lunch room he stated that he was “sorting out the drivers’ logbook sheets and their run sheets”. It appears that the lunch room may have been located in the premises of BlueScope Steel with which the respondent had some relationship.
16. The applicant stated that he was allocated a “hard seat” made of wood with a “small cover” of foam. The back of the chair was similarly constructed. The wooden back was comprised of a horizontal timber support approximately 5-6 inches wide.
17. The applicant states that he would sustain pain and would stand up at times and move around. Pain would recur in the lower back after 15-20 minutes and he found that if he sat for longer than 20-30 minutes at a maximum, he would feel the onset of pain.
18. The applicant remained working in that capacity until he resigned on 7 September 2012, having given one week’s notice on 3 September. The applicant’s letter of resignation dated 3 September 2012 stated:
I, Gregory Mark Cooney, hereby give 1 week notice to terminate my employment with DTM. This is due to the medical injury suffered will [sic] working for DTM. I have spoken to my doctor and have come to realise I will never be able to comfortably drive a heavy vehicle again. Also the lack of medical rehabilitation from DTM in recovery.
Resignation
19. On the applicant’s last day of work, 7 September 2012, he signed an “Employee Status Alteration Form”. The termination details contained in the report include the following details:
Reason for termination: Personal Reasons, Retired, Unsuitable, Redundancy
20. The box against “Personal Reasons” is ticked. The form also contains the following: “Please record specific details of termination:” Inserted is: “Personal reasons”.
21. At the hearing, the applicant denied that the words “personal reasons” were written by him.
Surgery
22. In respect of surgery, two surgical procedures have been performed on the applicant. The applicant underwent a laminectomy on 30 April 2013 for L5-S1 and rhizolysis of nerve roots. The applicant underwent further surgical treatment, namely spinal fusion of L4-5-S1 on 14 July 2015. It appears that the respondent has paid for such treatment.
Applicant’s current physical condition
23. The applicant states that he continues to experience pain in his left leg with muscle spasms, pins and needles, lack of feeling under his foot and in his toes. He considered that the surgery alleviated pain in his left leg, but increased his pain in the lower back, on occasion he has had to lie down to obtain pain relief. The applicant further states that he experienced difficulties with sitting at a desk and attempting to do paperwork. The applicant stated he is currently taking strong painkillers such as Panadine Forte, Lyrica and Endone. Daily he takes up to 8 tablets of Panadine Forte, 2 tablets of endone (although 4 tablets were prescribed for daily use) and 2 tablets of Lyrica. He also takes Palexia and Oxycontin.
24. The applicant stated that he also sought to obtain employment through Workplace Rehabilitation Management (WRM) and states that he searched out five jobs which might have been suitable for him, but he received no response. WRM is a consultant of the respondent.
25. The applicant states that following his resignation, he went to assist his wife who was conducting a doughnut or coffee shop known as the Hole in One Doughnut Shop which was purchased by Contract for the Sale of Business dated 19 September 2012 (“the coffee shop”). The coffee shop was purchased in the joint names of the applicant and his wife. The shop was located in the Erina Fair at Erina. When asked what work he performed, the applicant stated that “I have been there several times, yes”. In respect of the actual work which he might have performed there, he said:
Not much. Mainly had a coffee. I’d supervise occasionally if the wife had to go do something down the road. But usually the girls knew how to run the business.
26. The coffee shop closed on 13 December 2013 after 15 months of operation. Otherwise, the applicant has not worked except to assist the Central Coast Mariners preparing lunch meals two days a week at their Tuggerah training field. The applicant is currently bankrupt.
FIRST CLAIM FOR COMPENSATION
27. The applicant claims compensation on the basis that, but for the injury, he would have been entitled to his normal weekly earnings. In the determination dated 4 August 2015, the following is included:
4. It is noted that you voluntarily resigned from suitable employment with K & S Freighters and finished on 7/09/2012, to start your own business.
5. As at 7/09/2012 you were earning in suitable employment with K & S Freighters an NWE of $1,480.18 gross per week on modified duties. But for your resignation, you would have continued to have received in suitable employment with K & S Freighters an amount of $1,480.18 gross per week up to 31/3/2013, then from 1/4/2013 to 30/42013 an amount of $1230.46 per week.”
28. The applicant sought reconsideration of such decision pursuant to section 62 of SRC Act. However, the decision of 4 August 2015 was affirmed on 17 August 2015. The findings for this decision, as stated in the Statement of Reasons in the Reviewable Decision, are as follows:
3. It is noted that you voluntarily resigned from suitable employment with K&S Freighters to start your own business, and finished with K&S Freighters on 7/9/2012.
4. It is noted that on and prior to 7/9/2012 you were earning your Normal Weekly Earnings (NWE) in suitable employment (on modified duties) with K&S Freighters. But for your voluntarily [sic] resignation, you would have still continued to receive your NWE in suitable employment with K&S Freighters.
5. You have failed to engage, or continue to engage in suitable employment with K&S Freighters pursuant to section 19(4)(c) of the Safety Rehabilitation and Compensation Act 1988.
29. The Reviewer also concluded as follows:
Decision
In having regard to all of the available evidence, including that which was considered by the primary delegate and summarised in the determination dated 4/8/2015, and the further submissions provided in the request for reconsideration, I have concluded the following
● I am in agreement with the reasons for the decision provided by the primary delegate in the primary determination; and
● The request for reconsideration provides no cause for me to disagree with the findings of the primary delegate.
As such, I am satisfied that there is liability for K&S Freighters to pay compensation to the [sic] Mr Cooney under Section 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect to past incapacity payments as detailed in the determination dated 4/8/2015…
SECOND CLAIM FOR COMPENSATION
30. The applicant made his second claim for compensation in respect of “low back pain with? left nerve root irritation - ? facet? discogenic” sustained on 15 May 2012. By decision made on 7 July 2016 the claims officer found as follows, inter alia:
9. Accordingly I am of the view that total incapacity entitlements exist only up to 05/07/2016 as follows:-
| Start Date | End Date | NWH | NWE | Weekly rate 100% | NEW Adjusted to reflect RDO, AL, SL, etc | Able to earn | Compensation payments made | Section of SRC Act |
| 29/06/2016 | 05/07/2016 | 53.06 | $1,447.19 | 100 | $1,447.19 | $0.00 | $1,447.19 | 19 (2) |
10. On that basis you would have continued to have earned in suitable employment of 8 hours per day, 5 days a week with K & S Freighters but for your voluntary resignation. Based on the opinion of A/P Peter Steadman and Dr Nel Wijetunga, I believe you now have the capacity to work at the same level as you were prior to your resignation on 03/09/2012.
11. Therefore, I am of the view that total incapacity entitlements effective from 06/07/2016 are as follows:
| Start Date | End Date | NWH | NWE | Weekly rate 100% | NEW Adjusted to reflect RDO, AL, SL, etc | Deemed able to earn | Compensation payments made | Section of SRC Act |
| 06/07/2016 | 12/07/2016 | 53.06 | $1,447.19 | 100 | $1,447.19 | $1,447.19 | $0.00 | 19 (2) |
12. I accept that you have an entitlement to claim incapacity payments notwithstanding your resignation of employment as your compensable condition continues to cause some degree of incapacity. However, as stated above, you voluntary [sic] resigned from employment with K&S Freighters when you had the capacity to work 8 hours per day 5 days per week – office duties.
13. By reasons above based on the current medical evidence we believe there is no entitlement to pay Section 19 compensation in respect of weekly compensation payment from 06/07/2016 onwards, however liability does remain in respect of Section 16 medical expenses…
31. By letter dated 16 July 2012, the applicant sought reconsideration of the decision. On 29 July 2016 a reviewable decision was made affirming the decision made on 7 July 2016. The decision relevantly states the findings as follows:
1. Both Dr Wijetunga (Occupational Consultant) and Associate Professor Peter Steadman (Consultant Orthopaedic Surgeon) agree that Mr Cooney can undertake suitable employment of 8 hours per day, 5 days per week, which is the same level of capacity as Mr Cooney was at immediately prior to his voluntary resignation on 03/09/2012.
2. I am in agreeance [sic] with the reasons for the decision provided by the primary delegate as stated in the determination of 07/07/2016.
3. Consequently, the request for reconsideration provides no cause for me to disagree with the findings of the primary delegate.
ISSUES FOR DETERMINATION
32. The critical matter for determination in this review in respect of each proceedings is whether the applicant, having become incapacitated for work, received an offer of suitable employment and whether, having accepted that offer, he failed to engage, or to continue to engage in that employment. Section 19(4) of the SRC Act 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 (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 employees 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.
33. The issues arising in the applications are stated by the applicant to be:
(a)Was the applicant employed by the respondent in “suitable employment” prior to his resignation on 7 September 2012?
(b)If the applicant was employed by the respondent in “suitable employment” prior to his resignation on 7 September 2012, was it nonetheless reasonable in all the circumstances for the applicant to not continue to engage in that employment from 7 September 2012?
(c)What has the applicant been able to earn in “suitable employment” between 10 September 2012 and the present time?
Submissions
34. The respondent maintains that alternative duties were offered to the applicant, but he rejected such work. The respondent maintains that it was unreasonable for the applicant to refuse to perform those duties, and accordingly the respondent submits that section 19(4)(c) applies. The respondent also maintains that the real reason for the applicant’s cessation of duties was not in consequence of any physical injury, but rather in consequence of the fact that he wished to commence the operation of the new coffee shop business with his wife.
35. The applicant maintains that if it is established that claimed “suitable employment” duties are found not to have been suitable, then the applicant is entitled to receive his normal weekly earnings (NWE) as a truck driver, rather than as a clerical assistant for which he was being paid substantially less.
36. The respondent replies that such issue has not been the subject of any determination and accordingly the Tribunal is not required to consider the question of the quantum of any payment for which the applicant might be found to be entitled.
Were the duties offered “suitable employment”?
37. During the hearing, which extended over a four day period, the Tribunal heard much medical evidence from both medical experts retained by the applicant and the respondent. Dr Cosmas Ekezie, the applicant’s general practitioner, has provided several reports. His report dated 6 September 2012 states that he has treated the applicant for more than two years commencing on 21 May 2012. The report records a visit of the applicant following his back injury strain. Dr Ekezie was of the opinion that the applicant suffered“[S]train low back muscles with disc disruption L4/5”. He considered that the applicant was unfit to perform his full duties as a truck driver because the current two day duties per week were proving too much for him. Dr Ekezie stated:
He is currently capable of full-time duties, suitable duties that restrict him to 2 days per week driving and administrative duties the rest of the time is being trialled at the moment. His ability to return to full-time duties will depend on the progress he makes.
38. On or about 3 April 2013, Dr Y.A.E. Gahabrial, orthopaedic and spinal surgeon, examined the applicant. His report dated 3 April 2013 states, inter alia:
The MRI scan showed left L5/S1 disc protrusion with compression on the neural elements. He has classic features of left S1 radiculopathy. It also showed minor to moderate protrusion at the L4/5 level.
39. The report refers to discussions held between the practitioner and the applicant in which the practitioner recommended surgery, pointing out that it would not relieve the osteoarthritic back pain but would relieve nerve root compression and alleviate leg pain. Dr Ghabrial provided further reports on 8 May 2014 and 10 June 2014.
40. In February 2014, the applicant saw Dr David Maxwell, an orthopaedic and spinal surgeon, for the purposes of a medico-legal report. He said:
He [the applicant] did in fact complain of back pain in 2009 to Dr Ekezie with some pain radiating to the left thigh. I note that he suggested this pain was due to a change in the truck seat. It does accord with the description provided in the earlier report. I consider on this occasion he probably sustained some very mild L5 nerve root irritation secondary to the foraminal stenosis. I therefore consider the incident of 15 May 2012 was a temporary aggravation of an underlying condition.
41. It should be noted that Dr Maxwell stated:
Since I last examined Mr Cooney he said he and his wife bought a coffee shop lease in the Erina Fair Shopping Complex. They leased the premises from September 2012. His wife and daughter worked at the coffee shop and they also had other casual employees. He said he would also help at the coffee shop in the morning making doughnuts for a couple of hours. He would do this sitting down.
He returned to work at the coffee shop after the operation on 30/4/2013.
42. Dr Kim Edwards, a surgeon, provided a medico-legal report dated 11 June 2014. Dr Edwards considered there was “considerable doubt that there was any incident related to the seat on 15 May 2012”. He continued:
If it is considered that there was a collapse of the seat, then it would appear that the collapsing of the seat, according to Mr Cooney’s history, may have caused an aggravation of pre-existing degenerative changes in his lumbar spine and resulted in some leg left pain. That aggravation, if it occurred would appear to be of a temporary duration. When seen by Dr Maxwell on 26/7/12, the L5 nerve root impingement symptoms had settled.
43. Dr Edwards concluded that the complaints made by the applicant were due “to his underlying degenerative changes, and that any aggravation caused by work has ceased.”
44. He continued:
In my opinion, based on Mr Cooney’s obesity and the degenerative changes present in his lumbar spine, I consider it is more likely than not he would have had a similar condition whether or not he worked at K & S Freighters.
45. As to capacity to work Dr Edward said:
I do not believe Mr Cooney is totally incapacitated for employment. I accept that he may suffer from back discomfort and some intermittent leg pain. I believe he would be capable of work which allowed him to change positions as required and did not require repeated heavy lifting.
46. Dr Edwards also said:
I believe Mr Cooney should be able to work normal hours. He would certainly be fit for clerical duties provided he could sit and stand as desired.
47. Dr Edwards noted:
Mr Cooney said he resigned in September 2012. He and his wife had invested in a coffee and doughnut shop. He said this was closed down in December 2013. He said that he used to go in each morning to make the doughnuts, and because he was unable to go in on some days, the business lost money. He said he had 16 employees on his books.
48. A medico-legal report was obtained from Dr Nel Wijetunga dated 16 December 2016. This reported upon a visit of the applicant for a consultation on 25 February 2016. The applicant informed that practitioner as follows:
He advised that the suspension of the seat had given-out and at that same time he felt a sharp pain in his lower back and numbness and burning in his left leg.
49. Dr Wijetunga, an occupational physician, noted that the applicant weighed 127kg and was 160cm tall. He was accordingly classified as obese. She considered that certain activities such as heavy lifting, repetitive lifting, pushing or pulling, awkward postures, prolonged periods of sitting and standing should be avoided. However, she stated that he should engaged in such manner where he could undertake duties alternating between sitting and standing. She also recommended that the applicant avoid frequent climbing of stairs, frequent driving and walking for greater than 200m. She stated that there were various jobs to which he would be suited, namely youth worker, retail sales assistant, general clerk/customer service officer.
50. Dr Wijetunga observed that it might be difficult to obtain work “in a real working environment and Mr Cooney has been advised to attempt to simulate this environment at home to recondition himself to a working environment”.
51. Professor Peter Steadman, Associate Professor in Orthopaedics, provided a report dated 5 July 2016.
52. He considered, in summary, that:
…he [the applicant] is likely to be able to return to some form of pre-injury employment at this time given his agility. With the passage of time and weight loss, I would envisage that he could return to full pre-injury employment.
53. He considered that the applicant was not totally incapacitated, stating:
I doubt that he would be in a position to return to full pre-injury duties most probably because of his morbid obesity affecting him climbing into the truck. He would however be in a position to return to 5 days per week, eight hours per day, office work. I am also of the opinion that he would be fit for truck driving were it not for his obesity and degenerative disease...
54. Dr Neil W. McGill, consultant rheumatologist, has provided a report dated 4 June 2014. He considered that the incident causing the back injury of which the applicant complained of resulted in “exacerbation of back and lower left symptoms which eventually led to him having surgery”.
55. Other medical reports exist relating to the surgery performed on the applicant. Further, there is evidence of considerable physiotherapy undertaken by the applicant for his back condition.
56. The Tribunal has also been provided with reports of WRM relating to the attempts to find the applicant suitable employment, and there is evidence of a difference of opinion between the applicant and the rehabilitation officer who was attempting to find suitable employment for the applicant.
57. As a separate factual consideration, it should be noted that insofar as the injury was stated by the applicant to have resulted from a “collapsed seat”, an inspection of the vehicle following his complaint would reveal there was no fault with the seat in the vehicle.
Consideration of the evidence
58. In summary, there is no medical expert which has said that the applicant could not have undertaken the administrative duties with which he was provided in August and September 2012. Whilst Mr Cooney may have been correct in his assumption, as per his resignation letter, that he could not return to his truck driving activities, he was offered administrative work which he surrendered. The Tribunal has heard the submissions of the respondent that the real reason for the resignation from his employment was the fact that he wished to join his wife in the conduct of a coffee shop. There is evidence that the applicant’s wife had worked in casual employment in Woolworths supermarket at Swansea prior to September and was anxious to establish her own business and that his daughter was a trained barista. For this reason, the decision was made by her to acquire the business at Erina Fair.
59. There is evidence that, in fact, the applicant did work at the coffee shop following his resignation, albeit his involvement may not have been substantial. It should be observed that there are certain factual disputes, but generally the facts which the respondent relies upon are as follows:
·The contract for the purchase of the coffee shop was in both the name of the applicant and of his wife. The applicant attended his accountant, his solicitor and his bank in relation to the purchase of the café.
·The applicant resigned on 3 September 2012, finished work on 7 September 2012, saw his solicitors a week after in relation to the purchase of the coffee shop, and signed the contract to purchase the coffee shop; the contract is dated 19 September 2012.
·The history given by the applicant to Dr Maxwell on 27 February 2014 at page 302, “Since I last examined Mr Cooney he said he and his wife bought a coffee shop lease at Erina Fair Shopping Complex. They leased the premises from September 2012. His wife and daughter worked at the coffee shop and they also had other casual employees. He said he would also help at the coffee shop in the morning making donuts for a couple of hours. He would do this sitting down. He returned to work at the coffee shop after the operation on the 30/4/2013”. See also at about point 5 at page 307 where Dr Maxwell records “He subsequently resigned from his position, bought a lease on a café and ran a café until the rent at the shopping centre went up and he closed the business”. “He was a little vague regarding the number of hours he worked in his café but he did suggest that would go in in the morning and make donuts for 3-4 hours.”
·Report of Dr Neil McGill, Rheumatologist, dated 4 June 2014, Page 325 records “He then commenced work in his own coffee and doughnut shop”.
·Report of Dr Kim Edwards, Surgeon, dated 11 June 2014, records at page 111 “Mr Cooney said he resigned in September 2012. He and his wife had invested in a coffee and doughnut shop. He said that this closed down in December 2013. He said that he used to go in each morning to make doughnuts, and because he was unable to go in on some days, the business lost money”.
·Report of Dr Kim Edwards dated 11 January 2017 at page 2 records “Mr Cooney confirmed that he resigned from his job in September 2012, and invested in a coffee shop with his wife.”
·Report of Dr Neil McGill dated 7 December 2016 page 2 “He and his wife purchased a coffee and doughnut shop at Erina Fair in September 2012. He was active in the business up until his back surgery on 30 April 2013”.
·Report of Dr Ghabrial’s, Orthopaedic Surgeon, dated 16 February 2016 where he records “As he previously ran a small business and was unable to go on with that even though it was sedentary…”
·The applicant’s oral evidence where he continually said “we” in relation to the coffee shop.
·clinical note from Total Physio Centre Morisset with an entry dated 6/6/12 stating “Thinking of buying a coffee shop for a change of career.”
·A clinical note from Total Physio Centre Morisset with an entry dated 15/7/13 stating “sitting tolerance 20-35 mins lifting – 5kg buckets 6-7 day (3-4 in am)”.
·A clinical note from Total Physio Centre Morisset with an entry dated 26/8/13 “WC sitting (45) 30 lift x 1 10 kg working restricted duties – icing doughnuts stand/sit 45 mins/day”.
Findings
60. The relevant portion of section 19 provides:
in determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, care shall have regard to:
(c) where, after becoming incapacitated for work, the employee receives 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.
61. The term “suitable employment” is defined in section 4 of the SRC Act and relevantly means:
a…,
b. Any employment including self employment having regard to:
(i) The Applicant’s age, experience, training, language and other skills;
(ii) The Applicants suitability for rehabilitation or vocational retraining
(iii) not relevant
(iv) Any other relevant matter
62. In Woodbridge v Comcare (1994) 20 AAR 196 the Federal Court identified the steps to be followed in applying section 19(4) which are:
(a)Has there been an offer of suitable employment? This question gives rise to a consideration of the medical condition of the applicant;
(b)Has the applicant failed to engage or continue to engage in that employment?
(c)If so, was the failure to engage or to continue in the employment reasonable?
(d)What is the amount which the employee is able to earn in suitable employment? In making such a calculation the Tribunal must have regard to the matters in subsection (4). However, “none of those matters will necessarily be determinative. Some may point one way and some may point other ways in making the calculation of the amount per week that the employee is able to earn in suitable employment.”
63. What constitutes “suitable employment” has been the subject of authority see for example: Woodbridge v Comcare (1994) 20 AAR 196 and Woodbridge v Comcare (1995) 21 AAR 20; Slater v Telstra Corporation Limited (2001) 115 FCR 34 (‘Slater’); Esam v ASP Ship Management (1998) 87 FCR 82 (‘Esam’); West and Comcare [1994] AATA 33 (‘West’); Montgomery and Comcare [1996] AATA 655 (‘Montgomery’); Brooks and Comcare [1995] AATA 252 (‘Brooks’); Ferreira and Comcare [1995] AATA 531 (‘Ferreira’).
64. In Woodbridge v Comcare (1995) 21 AAR 20, the applicant, Woodbridge, was a boilermaker who sustained an orthopaedic injury and appeared to have recovered (although it was not determined whether Woodbridge was fit to work at his normal duties as a boilermaker). However, he was considered to be making a full recovery. Irrespective the applicant resigned. The Full Court of the Federal Court of Australia concluded that there was sufficient evidence before the Tribunal for it to conclude that Woodbridge was able to perform the duties of a boilermaker at the relevant time.
65. The respondent claimed that the resignation resulted from Woodbridge’s desire to return to Canberra to live with his mother and accordingly his resignation was not reasonable. The Full Court found that once the applicant’s credit was impugned, it was open to the Tribunal to accept that the resignation had nothing to do with the applicant’s medical condition: rather the resignation was the result of his desire to return to Canberra,
66. In Slater, the employee injured his knee in the course of his employment with Telstra. Telstra determined subsequently that he was fit to resume his former employment. The reconsideration of the original determination confirmed that the employee was partially incapacitated but fit for full-time work in employment in suitable duties and that clerical duties would be deemed suitable and that it was expected that the claimant would undertake such duties. Since the remuneration payable in that position was equivalent to or greater than his earnings in his usual employment as a Communications Officer Grade 2, there was no obligation to pay compensation. On appeal the Full Court allowed the appeal but remitted the matter to the Tribunal for further consideration.
67. In Esam, an employee suffered a knee injury which left him unfit for his employment as a rating and fit for sedentary work only. He had actively sought suitable work but because of general economic conditions in the labour market, was unable to do so. The Tribunal found that clerical work was suitable employment for the applicant and that his failure to secure such work was due to economic circumstances and not to incapacity caused by work. The Federal Court said at page 87:
An additional and important consideration in the present case is that the applicant was exposed to the adverse labour market as a consequence of the work-related injury which he suffered. Accordingly, it is difficult to support, in the present case, a view that the inability to find work was due to economic circumstances or the state of the labour market alone. The two considerations of injury and labour market conditions are related in the present case. There is a close causal connection in the sense that the applicant would not be seeking work “but for” the injury.
68. The Federal Court found that the Tribunal had erred in law by failing to give proper consideration and weight to the state of the labour market. The judgement continues (at 88):
it is apparent on the face of the reasons that the AAT considered that because there was an adverse labour market, no weight should be given to the applicant’s inability to obtain employment notwithstanding the repeated efforts made by him which evidenced the unavailability of appropriate work.
69. In West, an air traffic controller who sustained an injury was provided with alternative duties which did not appropriately utilise his skills, experience and qualifications. The Tribunal found that the alternative duties did not constitute “suitable employment”.
70. In Montgomery, the applicant claimed compensation for hearing loss. He suffered from tinnitus and recruitment (sound amplification). He was provided with alternative duties which required him to be located in an area where there was noise from airport radar and other office equipment which aggravated his condition. He was allocated work in a security room which was adjacent to noise sources. He was given no suitable duties. The Tribunal found that in determining ‘other relevant matters’ as defined in section 4 of the SRC Act, the applicant’s injuries were a relevant factor for consideration. The Tribunal made a helpful observation at [77] concerning the definition of “suitable employment” as follows:
A most significant and relevant consideration in the opinion of the Tribunal is the environment in which the applicant is trained and/or in which he is employed, having regard to his unique hearing difficulties…An adequate understanding of the hearing difficulties which he experiences is crucial in providing a suitable training/working environment.
71. Similarly, Brooks also implicitly found that the applicant’s injuries/incapacities could be considered as another ‘relevant matter’ to take into consideration when determining what constitutes suitable employment. In this case, the applicant was employed as an administrative services officer and lodged a claim for compensation for ‘stress/anxiety’ as a result of an incident with his superior. There was evidence that the applicant had a phobic reaction to his supervisor and this was accepted by the Tribunal. The duties were not considered to be suitable as the only place the applicant could sit to carry out these duties was in close proximity to his previous superior which would aggravate his stress/anxiety.
72. Lastly, in Ferreira the applicant injured his right hip and claimed compensation for this injury at work. He later lodged a claim for aggravation of a paranoid personality disorder caused by the physical injury he sustained at work. The applicant was a fitter (originally he worked on trains where he had to crawl underneath carriages to repair them) and he was given bench work duties to accommodate his physical injury. The applicant refused to undertake the bench duties (largely due to his psychiatric disorder which meant that he thought he was in pain undertaking such work when he was physically able to do it). The Tribunal accepted that his psychiatric condition meant the bench duties were not suitable employment for this reason.
Application of legal principles
73. Applying these principles to the circumstances of the present matter, it is necessary to compare the duties fulfilled by the applicant before his injury compared to the work that was offered to him after his injury. The work history of the applicant demonstrates a lack of sedentary occupation and a lack of clerical work. He has worked as a butcher and for most of his working life, a truck driver. There is no issue that he sustained an injury which prevented him from working as a truck driver, largely because of pain generated as a result of of prolonged sitting.
74. The clerical duties offered to the respondent as “suitable employment” were foreign to the applicant’s normal work. There is no evidence that book work and clerical work had ever featured in his employment history. Further, the facilities offered to carry out such work were, on the evidence, basic. Inherent in the position was the need to sit for prolonged periods of time to carry out the desk work, for which a hard seat and a table were provided. His request for an adjustable seat was rejected:
I was advised that…they couldn’t do anything.
75. The applicant testified that he could not sit for long periods of time and that it was necessary for him to stand up and move around in order to alleviate his pain. The applicant said that at the end of the day, he felt “[v]ery sore. I’d have to go home and take some heavy painkillers to try and relax.”
76. The medical evidence establishes that the applicant could undertake part-time administrative duties on a daily basis. However, the work provided by the respondent and the facilities provided for such work to be performed rendered the work unsuitable.
Reasonable cessation
77. The Tribunal also concludes that it was reasonable for the applicant to cease such employment. Such a conclusion is reached upon the evidence that, whilst the applicant could sit at the table, the continued sitting caused him pain and discomfort because the clerical duties required work to be done at a table or desk, and required powerful medication. The applicant’s working conditions were scarcely suitable, and his request for an improvement by provision of an adjustable chair was declined.
78. The Tribunal is mindful of the respondent’s submissions and of the evidence concerning the purchase of the doughnut shop. However the chronology shows that the first mention of the coffee shop was made by the applicant to Dr Ezekie on 6 June 2012 when Dr Ezekie’s notes record:
Thinking of buying a coffee shop for a change of career.
79. By this date the applicant had already suffered an injury, namely on 25 July 2011, in respect of which the respondent acknowledged liability in September 2011. He again suffered a further injury on 15 May 2012 which liability was accepted on 29 May 2012. Such injuries caused pain in his left leg and ultimately surgery.
80. Whilst the respondent maintained that the applicant resigned solely to work in the coffee shop business, there are other important factors to be considered. His wife had worked in a retail supermarket and his daughter was a qualified barista. The duties involved in the clerical work, and the requirement for the applicant to sit for long periods of time caused the applicant pain and discomfort. Assisting his wife in the operation of a coffee shop would provide some form of work. That work was sporadic and comprised mainly of supervising assistants, preparing work rosters at home once per week, and demonstrating icing of donuts. It provided the flexibility of standing and sitting. The Tribunal can infer that it was principally because of his injuries that the applicant was contemplating a change of career and that his work in the coffee shop was to provide a part-time occupation and that this was not the motivating reason for his termination. The Tribunal accepts the evidence of Mrs Cooney that the business was placed in her name and that of the applicant, because that was a requirement of the banking authority which provided the funds for the purchase.
81. The applicant informed Dr Maxwell in 2014 that he resigned from his employment to operate the coffee shop in order to keep active. During the course of the Tribunal hearing, the applicant denied making such statement. The Tribunal finds that it is most unlikely that the medical practitioner would contrive such a statement and finds that the statement was made. However, the applicant’s statement is entirely consistent with the notes of Dr Ekezie dated 6 June 2012 which read: “Thinking of buying a coffee shop for a change of career”.
82. The Tribunal does not consider that, because the applicant might simultaneously also have been contemplating a change of career, that such contemplation is to be considered as the motivating reason for surrendering his employment with the respondent. The Tribunal is satisfied that the immediate cause of the resignation was a fact that the work offered was difficult for the applicant to physically perform, and was work which was totally foreign to his normal work. In Tillman’s Butcheries v AMIEU ((1979) 42 FLR 331) the Federal Court considered, in the context of the Trade Practices Act 1974 (Cth), what was the immediate purpose of certain conduct compared to some other purpose. By analogy the same principle should apply in assessing the reason for resignation. There is scope for two reasons to exist simultaneously, one being an immediate reason, and the other a secondary reason. The immediate or causative reason is that which is to be considered. In summary, whilst the applicant may have been contemplating a change of career, such a consideration does not necessarily result in the conclusion that it was because of this desire that the applicant decided to resign. There was another and greater motivation; namely that the applicant suffered great pain in the back and leg if he sat for any length of time. The fact that the applicant contemplated assisting his wife in the operation of the coffee shop is the secondary reason and was not the motivating reason for the applicant’s resignation.
83. The Tribunal concludes that:
(a)At the date of resignation, the applicant realised that he would not be able to return to work as a truck driver;
(b)Following the injury to his back the applicant commenced thinking of an alternative career;
(c)The work that was offered to the applicant was not “suitable employment” because the applicant was physically unable to undertake that work;
(d)Because the applicant experienced pain and discomfort in fulfilling clerical duties, it was reasonable that the applicant resign.
Earning capacity
84. The Tribunal finds that that the employment offered to the applicant by the respondent was not suitable and that the applicant’s rejection of such employment was reasonable in all the circumstances as referred to in section 19(4)(f).
85. The Tribunal does not accept the submission of the respondent that the applicant has full capacity to work to receive payments equivalent to his NWE.
86. In his report dated 16 February 2016, Dr Ghabrial stated:
1He is still unable to mow his lawns and care for his garden as he did prior to his injury. He will still require assistance for at least the next 12 months.
2I believe that he is not fit to return to work as a Youth Worker/Community Support Worker. As he previously ran a small business and was unable to carry on with that even though it was quite sedentary, that indicates that he is totally and permanently disabled.
3It is highly unlikely that he will be able to return to work as a Retail Sales Assistant as that does involve activities requiring lifting, bending and twisting.
4He is not able to return to work as a General Clerk/Customer Service Officer/Contact Centre Worker as that involves long periods of sitting and he is finding it difficult to sit for more than 20 minutes at a time.
5He will require treatment in the form of physiotherapy, hydrotherapy and medications prescribed by his local medical officer as required immediately.
87. Professor Steadman, in his report dated 12 December 2016, said:
He told me that he recovered fully from the initial tile incident, although the report of Dr Billet could suggest otherwise. At the time, he had the same symptoms for which he ultimately went on to have surgery. He may have recovered clinically but then he had a second event which occurred in the truck. This may or may not represent an aggravation but certainly the underlying diagnosis is severe degeneration of the lumbar spine. This includes the disc protrusion and any compression of the nerve and narrowing of the exit foramen.
88. The applicant did perform some work in the coffee shop. He stated on 26 August 2013 that he was working. The physiotherapist notes state:
working restricted duties – icing donuts stand/sit 45mins/day.
89. The physiotherapist notes for 15 July 2013 state:
Feels tight today, working sitting tolerance 20-35 minutes lifting 5kg buckets 6-7/day (3-4 in am)
90. Dr McGill in his report dated 7 December 2016 stated:
He and his wife purchased a coffee and donut shop at Erina Fair in September 2012. He was active in the business up until his back surgery on 30 April 2013. The history of his work subsequent to surgery that I provided in my previous report was different from the recollection he had today. When I saw him previously I obtained the history from him that he was away from work for about four months following surgery and then returned to work in the coffee and donut shop but felt unable to work adequately. The business ceased on 29 December 2013. He today explained that at no stage did he return to the coffee and donut shop subsequent to his surgery although he did do some bookkeeping work in relation to the business from home. He has not worked since 2013.
91. He also stated:
I think he would have remained fit for light duties such as of the type that he was performing at the time of his resignation in 2012, from four weeks following his
30 April 2013 surgery up until his fusion procedure on 14 July 2015. Recovery following fusion at two levels is substantially slower. He would have been able to return to light duties six months following that surgery. Since that time he would have remained capable of performing the duties that he was performing in September 2012. He reported to me that his tasks were very light tasks in the warehouse and office.
92. Based upon the above medical opinions, the Tribunal does not accept the submission of the respondent that the applicant has fully capacity to work to receive payments equivalent to his NWE.
Alternative Employment
93. In April 2016 the applicant had a discussion with Ms Julie Thompson, a representative of Workplace Rehabilitation Management (WRM), WRM was engaged by the respondent to provide rehabilitation assistance to the applicant. The discussion, around 20 April 2016, was the first contact of any rehabilitation consultant with the applicant.
94. The applicant stated that Ms Thompson was following up job opportunities for him, namely mentoring young persons with indigenous communities in Newcastle. The positions would have required the applicant to go into high schools and mentor, with such work having the prospect of leading to youth work. The applicant said he was “very excited about” such prospects. However, Ms Thompson was taken off his case and he never heard any more.
95. Ms Elizabeth Roberts, the principal of WRM, provided a report dated 21 March 2017.
96. The report refers to the applicant’s desire to become engaged in youth work. A vocational report dated 11 January 2016 identified such work as being “physically appropriate”.
97. Ms Roberts said that the applicant did not provide her with the relevant contact details of the people the applicant claimed he had contacted for job opportunities. The evidence establishes that the first contact by WRM with the applicant was not until April 2016. The evidence also establishes that WRM made no enquiries of the persons identified by the applicant to confirm such content, nor to enquire why employment had not been offered to the applicant. Ms Roberts says that the she was waiting to see Mr Cooney, but this did not occur until March 2017 at the Toukley Library. The meeting was unproductive, Ms Roberts claimed that the applicant was in effect uncooperative. The applicant considered the meeting a waste of time. There was no evidence of any follow-up appointment being initiated by Ms Roberts, nor is there any evidence of any job opportunities being sourced by WRM and offered to the applicant.
98. Ms Roberts, in her report of 21 March 2017, referred to the applicant’s obesity, and the failure of the applicant to adopt an appropriate dietary regime. The applicant, in response, said he was trying to consume healthier food.
99. Ms Roberts stated in her report that:
No objectives had been achieved to date as Mr Cooney has declined WRM’s offer for assistance with...
100. Thereafter a list of matters is included, “sourcing a Job Trial”. But there is no evidence that any job trials have been offered to the applicant.
101. The applicant had applied during this time for various positions, but no work was offered to the applicant. He states that he has never been a clerical worker, nor worked in office assistance. He said he would like to be a youth worker and has also applied, without success, for a number of jobs for two days a week.
102. The applicant has a limited education, having left school at aged 15, he is now 53 years of age. The applicant says he made “hundreds” of job applications online but received only one response from David Jones. He sought a position as a loss prevention officer with David Jones, but was informed the position required a Class 2 –Class 3 security licence. He say that youth work is “slightly above my education level” with the study required. The applicant states, however, that he sought to complete a youth work Certificate IV online in 2015.
103. The applicant stated that he had applied for positions through Max Employment, and that his resume had been prepared by Castle Personnel. He provided his job application log to WRM, Ms Roberts reported that the logs were incomplete and there was accordingly no way of verifying his applications. The applicant stated that WRM had not asked him to provide copies of any letters of his job applications.
104. The efforts of the respondent to attempt to provide rehabilitation are, at best, desultory. It seems that no efforts were made to rehabilitate the applicant until 2016, being years after the termination of employment. Since then, no jobs have been offered to the applicant. However, the lack of progress may have been constituted by the fact that the applicant rejected the offers of assistance in preparing a resume made to him by RWM, the applicant considering that his own resume for job applications was appropriate. The applicant acknowledged that he did not provide RWM with the particulars of his job applications, that that he did not know “how to do it”. No particular job trial was offered to the applicant by RWM.
105. With respect to the medical issues, the Tribunal notes that there has been considerable surveillance of the applicant. It shows the applicant apparently walking freely to his motor vehicle and entering and exiting the vehicle without difficulty. The applicant was also able to drive to a football match, to sit through its duration and to return without apparent pain. However, in the absence of knowing the medication taken by the applicant prior to such activities, these matters do not detract from the evidence that the applicant gave that such activities caused him pain and discomfort. The applicant stated that he took painkillers, daily.
106. The Tribunal is satisfied that the applicant did not choose to “shun employment which he was otherwise able and qualified to undertake” as per Flick J in Goodricke v Comcare [2011] FCA 694 at [32]. Unlike the circumstances in that decision, the applicant surrendered the administrative duties because of the pain he experienced in fulfilling those duties.
107. The Tribunal finds that the evidence is insufficient for it to make a determination of the entitlements payable to the applicant. Accordingly, the Tribunal will make its factual findings and will remit the applications to Comcare for calculation of the application’s entitlements based on the Tribunal’s findings.
FINDINGS
(a)The applicant was not offered suitable employment within the meaning of the definition contained in s 4 of the SRC Act.
(b)The resignation of the Applicant on and from 7 September 2012 was reasonable;
(c)The applicant worked in the coffee shop until the closure of the business in December 2013;
(d)Since December 2013 the applicant has not been offered suitable employment
ORDERS
(iii)The decisions under review be set aside
(iv)Proceedings 2016/4519 and 2015/4617 be remitted to Comcare for the calculation of the applicant’s entitlements based on the findings made in this decision.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President
...........................[sgd].............................................
Associate
Dated: 13 September 2017
Date(s) of hearing: 21 March 2017, 22 March 2017, 23 March 2017 and 1 June 2017 Counsel for the Applicant: Mr L Grey Solicitors for the Applicant: Mr J Clarke, Maurice Blackburn Lawyers Counsel for the Respondent: Mr D Richards Solicitors for the Respondent: Mr D Clarke, Clarke Legal
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