Cowe and Tidewater Port Jackson Marine Pty Ltd - [2001] AATA 674

DECISION AND REASONS FOR DECISION [2001] AATA 674

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/165

GENERAL ADMINISTRATIVE DIVISION          )
           Re      WILLIAM COWE
  Applicant
           And    TIDEWATER PORT JACKSON MARINE PTY LTD
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member & Dr D Weerasooriya, Member

Date26 July 2001
PlacePerth

Decision      Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 the decision of the respondent of 28 January 2000, set out in the documents filed by the respondent pursuant to s37 of the said Act, at T70, is set aside and in substitution therefor decides that the applicant's entitlement to compensation be calculated pursuant to s31(5)(a) of the Seafarers Rehabilitation and Compensation Act 1992 on the basis that there is no amount that the applicant was able to earn in suitable employment during the relevant weeks. The respondent pay the applicant's costs pursuant to s92 of the Seafarers Rehabilitation and Compensation Act 1992.
  ...........(sgd R D Fayle)............
  Senior Member
CATCHWORDS
COMPENSATION – incapacity for work engaged in at time of injury – unable to return to that class of work – specialist area of work for entire working life prior to injury – some post-injury experience in new field of employment – many job inquiries and applications – meets Grade 2 Clerical Assistant skill levels – whether meets Grade 3 Clerical Officer skill levels – whether clerical jobs "suitable employment" – whether sought suitable employment.
Clerks (Commercial, Social and Professional Services) Award No. 14 of 1972
Seafarers Rehabilitation and Compensation Act 1992 –ss.3 definition "suitable employment"; 31 & 32
Administrative Appeals Tribunal Act 1975 – ss36, 43
Re Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue 28 ATR 307
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Pamela Maree Taylor and Commonwealth of Australia, AATA 4270
Esam v ASP Ship Management (1998) 87 FCR 82

REASONS FOR DECISION

26 July 2001 Mr R D Fayle, Senior Member & Dr D Weerasooriya, Member

After having been compensated on a weekly basis for a period since suffering a work related injury the applicant was advised by the respondent, on 28 January 2000, that his weekly compensation rate would be reduced from 11 February 2000, on the grounds that he was fit to perform clerical duties on a full-time basis, that he was capable of undertaking work commensurate with a Grade 3 – Clerical Officer at $467.90 per week, and therefore his weekly compensation would be reduced by that amount.
The applicant requested that the respondent review its determination of 28 January 2000 and provided reasons for that request.
The respondent, through its solicitor, sought a review of the original determination and received a report from Comcare Australia recommending that the original determination be affirmed. Consequently, on 19 May 2000 the respondent, through its solicitor, advised the applicant that in all respects it affirmed the determination of 28 January 2000. It is that decision which was referred to this Tribunal for review, the application having been received by the Tribunal on 24 May 2000.
Before the Tribunal the applicant was represented by Mr Guy Stubbs, solicitor, of Dwyer Durack whilst Mr Joe Lenczner, counsel, represented the respondent. The Tribunal had before it documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and received into evidence the following exhibits:
A1Undated document on Tidewater Port Jackson letterhead and signed by Mr Sean Johnston, Operations Manager, Tidewater Port Jackson Marine.
A2      Resume of William Cowe.
A3      Folder of Job Applications.
R1Copies of extracts from the applicant's income tax returns for the years ended 30 June 1996 to 30 June 2000 inclusively.
R2      Business Names extract concerning Multiscreen Bill Board W.A.
R3      Business Names extract concerning Interfaced Images.
R4      Report of 6 April 2001 from Active Injury Management.
R5Copy of selected advertised positions vacant from the West Australian newspaper of 31 March 2001.
R6Letter from Tidewater Port Jackson Marine to applicant dated 14 April 1998.
The applicant gave evidence as did Dr Michael Alexeeff and Ms Laura Smitham, a psychologist employed by Active Injury Management, who was called by the respondent.
The issue before the Tribunal is to determine, in terms of s31 of the Seafarers, Rehabilitation and Compensation Act 1992 ("the Act"), the amount per week (if any) that the applicant is able to earn in suitable employment. The phrase "suitable employment" is defined in s3(1) of the Act. The relevant provisions of s31 and s3(1) of the Act are reproduced below for reference:
31 Compensation for injuries resulting in incapacity
(1)      This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 33, 34, 35, 36 or 37 applies.
(2)      Subject to subsection (3) and this Part (other than this section), compensation for the injury is payable to the employee, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount worked out using the formula:
Normal weekly earnings — Earnings in suitable employment
where:
Normal weekly earnings means the amount of the employee's normal weekly earnings;
Earnings in suitable employment means the amount per week (if any) that the employee is able to earn in suitable employment.
(3)      If the employee is a seafarer, the compensation payable under subsection (2) is payable for each of the first 45 weeks (whether consecutive or otherwise) after the date on which the seafarer is left on shore at, or returned to, his or her proper return port.
(4)      Subject to this Part (other than this section), compensation for the injury is payable to the employee, for each week during which the employee is incapacitated, being a week to which subsection (2) does not apply.
(5)      The amount of compensation per week payable under subsection (4) to an employee is:
(a)      if the employee is not employed during that week—an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment; or
         (b)      if the employee is employed for 25% or less of his or her normal weekly hours during that week—an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings; or
         (c)      if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings; or
         (d)      if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings; or
         (e)      if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; or
         (f)       if the employee is employed for 100% of his or her normal weekly hours during that week—an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
(6)      If:
(a)      compensation is payable under subsection (4) to an employee for a week; and
         (b)      the employee is employed or engaged during the whole or any part of that week as a seafarer;
subsection (5) applies in relation to the employee as if he or she were covered by paragraph (5) (f).
Section 3 General Definitions
3       In this Act, unless the contrary intention appears:
"suitable employment", in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means any employment (including self-employment) for which the employee is suited having regard to:
         (a)      the employee's age, experience, training, language and other skills; and
         (b)      the employee's suitability for rehabilitation or vocational retraining; and
         (c)      if 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
         (d)      any other relevant matter;
For the purposes of subsection 31(1), the Tribunal understands that none of sections 33, 34, 35, 36 or 37 apply in this instance.
At the time of the hearing, the applicant was almost 59 years of age. He was born in Scotland in May 1942 and educated to senior secondary level in Glasgow. About a year after leaving school the applicant attended Radio College and qualified as a marine radio operator. He commenced his working career as a radio operator going to sea in 1961 at the age of 19. He continued this career until September 1995, working in various places around the world. He moved to Western Australia permanently in 1972 and continued to work as a radio operator at sea until about 1974 when he began work as a radio operator in the off-shore oil industry. The applicant said that beyond a relatively quick promotion to full radio officer there is no further recognised career path for radio operators.
The applicant said that he was injury free until his accident in September 1995, when he was working on the Ocean Bounty off the coast of Victoria. The accident, he said, happened on 24 September 1995 when he slipped in the shower, grabbing the partition between two shower stalls. The partition came away from its mounting and in falling he twisted his arm and shoulder, realising at the time that he had caused some damage. He reported the accident at the time to the on-board medic who provided some pain killers "and things like that". The following day the applicant was getting numbness and tingling in his arm (which apparently prevented him carrying on his job). He was evacuated to shore, (Sale, Victoria) where he was attended by a doctor. Two days later he returned to Perth, his home base and consulted Dr Murphy, (reports at T8 & T9). Dr Murphy classified the applicant as "fit but requires further treatment" and prescribed physiotherapy. However, the applicant said that he did not receive the physiotherapy as he could not make contact with the recommended physotherapist.
The applicant said that about a week after returning to Perth he was directed to attend his employer's Nedlands office, but after about three or four days he departed because they had no meaningful work for him. He continued to see Dr Murphy at regular intervals and also attended a physiotherapist.
In October 1995, at the request of the respondent, the applicant was examined by Dr Marcus Adonis of the West Perth Occupational Medical Clinic. His report appears at T13. Dr Adonis was not provided with any x-rays and reported that on the basis of the examination performed he believed that the applicant was then suffering from a multitude of injuries precipitated by the fall which occurred at work on 24 September 1995. He recommended comprehensive x-rays including cervical and dorsal spine, thoracic inlet and bilateral shoulder and a U S scan of the left shoulder. He further recommended that the applicant see an orthopaedic surgeon as a matter of urgency. Dr Adonis prescribed anti-inflammatory medication with "an appropriate tricyclic or similar" and to continue with the physiotherapy. At the time Dr Adonis opined that the applicant presented as a difficult management problem, requiring very close control and that it may take several months before significant recovery occurs. He suggested that the applicant be referred to a "physical rehabilitationist after a complete medical diagnosis".
Following that, the applicant saw Mr John Hill, orthopaedic surgeon, on 17 November 1995, who confirmed a left shoulder injury and recommended a continuation with conservative treatment. He opined that the applicant would be unfit for at least another two months or possibly even longer. (T18)
The applicant continued to seek treatment from his treating general practitioner, Dr Murphy and from Dr Adonis and was examined by a number of doctors throughout the period to the end of 1999 (see T documents). In December 1999, the applicant attended Mr Michael Alexeeff, orthopaedic surgeon on reference from Dr Murphy. Mr Alexeeff expressed the view that the applicant's then "pathology was probably in his neck, notwithstanding whatever changes he has going on in his shoulder". He said that he would review the applicant "after his cervical MRI". (T67) Apparently another appointment was made with Mr Alexeeff for 2 February 2000, after the applicant had the MRI scan. Mr Alexeeff reported to Dr Murphy that the applicant did not stay for the appoinment but if he had he would have discussed with him the possibility of a "subacromial injection to see what relief he obtained in respect of his symptomatology". When asked as to why he did not remain for the examination the applicant said that he waited two to three hours and left because there were still people ahead of him (tr. p.31). However, Mr Alexeeff said in evidence that his secretary had noted that the applicant arrived at 3.25 p.m. for a 3 o'clock appointment and left at 4.26 p.m. The issue of the subacromial injection was therefore never discussed with the applicant.
The applicant resides in Glen Forrest, an outer suburb of the Perth metropolitan area, in the Darling Ranges. He is a member of the Darling Range Volunteer Bush Fire Service, a voluntary organisation. In this regard, the applicant was referred to a report by Ms Jenny Miller-Kallawk, rehabilitation consultant with Independent Rehabilitation Consultants Pty Ltd (T25). The applicant pointed out several factual errors in that report. He denied that his voluntarily service with the Darling Range Bush Fire Service required him to be "physically fit in order to undertake the rescue role of a firefighter". He also denied Ms Kallawk's assertion that his "role was far more strenuous … as radio operators are, at times, required to wear a back pack when unable to access normal road thoroughfare". The applicant's evidence is that the unit is a mobile communications unit operating from a converted Nissan civilian bus. He said that he was not required to and never did drive the bus. He said that his duties required him to carry a mobile unit, slightly bigger than a mobile-phone. He said that the Darling Range Bush Fire Service's function is purely communications, logistics and support to the Incident Management team (the actual fire fighters). The Service does not physically fight fires, nor does it carry out physical rescues. He said the Service's communications were by radio, satellite tracking, facsimiles, telephone and similar. The applicant estimated that in the fire season he may spend up to 20 to 25 hours a week with the Service on a voluntary basis and he regarded the work there as very important to him. In response to questions put to him by Mr Leczner, the applicant explained that the volunteer position he held with the Service had become more time demanding since he ceased his employment (mentioned below). He said that he could be considered to be on 24 hour a day call but as the work was voluntary he could refuse it.
The applicant did not explicitly state in evidence that he would forsake his voluntary work given an opportunity for full-time employment. The following relevant exchange occurred between Mr Leczner (for the respondent) and the applicant whilst being cross-examined:
MR LECZNER: … the only job I could find [in exhibit A3] which was a warehouse officer's assistant job and it was something called New Colour View? ---Yes.
… they want a warehouse officer assistant. Accurate – something called permanent position, efficient/accurate order collation. Computer literacy. And the hours would have been 9.30 to 3.15 Monday to Friday which is 6 hours. Now, what was it that attracted you about that job? ---Well, one, I thought I was capable of doing it.
Yes? –And, two, it was a local company we are all familiar with.
And also the hours were really not completely part time but 6 hours a day is not full time? ---It was always a start.
Yes. And also meant it gave you time to perform your other work with the volunteer work with the Bushfire? ---That comes third in order.
Third in order? --- We always say in the Brigade it is family first, employment second and Brigade third. (Tr p.52-53)

The impression is that the applicant has immersed himself in his voluntary work with the Service, which engages his interest, because he had been unsuccessful in obtaining full-time work for which he believes himself to be both capable and qualified. However, it is the Tribunal's view, gleaned from an impression of the applicant, whom it views as honest, intelligent and frank, that he would reduce his volunteer work accordingly, given appropriate full-time employment. The Tribunal is not of the view that the evidence supports a conclusion that the applicant has avoided full-time employment because he actively pursued the voluntary work which he preferred, and could afford because of his compensation entitlements.
The applicant's evidence is that he was trying to obtain any sort of work that he was capable of doing, even if part-time because he wanted to at least re-establish his entitlement to 75 percent compensation.
The applicant gave evidence about his efforts to gain employment. He said that his rehabilitation provider, Ms Millar-Kallawk suggested that he seek radio communications work with the police, the ambulance service and the fire and rescue service. To that end he applied, without success, to the St Johns Ambulance Service and the WA Fire Brigade. As a result it was clear that the applicant lacked sufficient skills in modern communications technology, particularly with computers, to meet the criteria for those positions. To address this he was enrolled, through Skillshare, in a course at the Midland TAFE. This was a course in basic word processing and Windows familiarisation. His subsequent evidence is that his typing skills are limited to "two fingers" whilst looking at the keyboard, and is therefore relatively slow and inefficient.
The next job application discussed was made in July 1996 for an advertised position as a control room operator with Honeywell Securities. The applicant received a reply that stated, "After careful consideration I must advise you we will not be progressing your application any further at this stage." That was the only communication from the advertiser.
In relation to the applicant's various attempts to secure employment, he provided a file containing a list of the 10 job search agencies and 9 web site agencies with which he has registered (A3). He said that he had provided each with a copy of his resume (A2). Exhibit A3 also contains numerous copies of job advertisements, each pasted on an A4 page and bearing a hand written notation, which, the applicant explained, was the response received when initial contact was made to inquire about the advertised position. In some cases the applicant applied in writing (copies on file) but mostly by telephoning the advertised contact number. The file also contains letters received in response to written applications but not all those advertisers replied in writing. These documented applications and inquiries covered a period from 1996 until after his application to this Tribunal. Exhibit A3 documents applications and inquiries made during the time (as mentioned later) that the applicant was in part-time work and on a work trial in 1998 with the respondent. His evidence is that he continued to seek full-time permanent work throughout the period and is still doing so. The jobs considered and inquired about or applied for range from radio operator (communications/control room officer), telephone operator, courier, various administrative positions, port marine officer, State Emergency Services support officer, Foxtel Cable Advisor, customer service officer, project clerk, counter officer with the police service, seasonal work with the Fire and Rescue Emergency Service and so on. In addition the applicant gave evidence of having made many applications for a suitable position with organisations which had not advertised (what was termed "cold canvasses" and "mail outs").

The applicant admitted in evidence that many of these inquiries did not result in an application for a job because the initial telephone contact revealed more pertinent information. This enabled him more accurately to assess his ability to do the job. Most of the courier jobs were not pursued because they involved a lot of driving (which he could not do because of his injury), or required the applicant to have his own vehicle or, in one instance, to form a company to act as contractor – conditions which the applicant viewed as unacceptable.
In regard to cold canvassing, the transcript records this evidence in chief:
MR STUBBS: … so when you were canvassing, what were you doing? --- I was basically going around the local light industrial areas seeing if anybody had any – any jobs available to me, that I could handle and administrative – type things.
And what sort of businesses, etcetera, did you approach? --- There's all sorts in there, everything from metal works to car repair shops, you name it, just what you'd normally have in light industrial area, there's all sorts of things.
Now cold canvasses, are they contained in that file (a reference to A3), or not? --- No, they're not.
Okay? --- Because basically you just went door knocking.
Okay and just in that period how many businesses would you say you door knocked before you got a position at the Mundaring Hotel? --- At a rough guess I would probably say 30 to 40 in that area.
The applicant did manage to secure two part-time positions – one from a cold canvass at the Mundaring hotel near home as a clerical assistant (referred to above) and the other as a telephonist with the RAC Group. The former was for about 10 hours a week at $10.00/hour and involved paying bills, filing and banking. The latter job commenced on 7 October 1996, paid $11.40 per hour for 4 hours per day from Monday to Friday (3pm – 7pm). The applicant applied for a full-time position but was given part-time employment. This job entailed operating a telephone with a headset and a computer terminal – receiving calls from the public whose vehicles had broken down, checking their membership status, entering details in a data base and sending it off to dispatchers. He also subsequently secured a full-time position as radio operator with the Fire and Rescue Emergency Authority.
The applicant ceased working for the RAC at the end of 1996 – the position at the RAC ceased to exist because of what the applicant understood to be restructuring. He left the hotel job in October 1998 to take a position with the Fire and Rescue Emergency Authority of Western Australia. His employer for that job was Drake Overload, which placed him in the job and paid him as their employee. He was required to complete four weeks full-time training and then rostered on the basis of 4 days on and 4 days off. A rostered day was ordinarily for 10 hours unless he was required to undertake a 12-hour shift – it varied. The applicant said that he was retrenched on 31 December 1988, the service maintaining that its employees, with whom the applicant was required to communicate, did not readily understand his accent.
Some time in 1998 the applicant's rehabilitation provider was changed from Ms Kallawk to Excell Rehabilitation, which assisted the applicant in his job applications. The applicant's evidence in this respect is that this agency was excellent, notwithstanding that at the time he was working part-time at both the Mundaring Hotel and the RAC. The applicant said that during this time he "did lots of mail outs with Excel Rehabilitation". He also said that about this time he underwent a physical work performance test with CRS Australia. Their report of 17 July 1998 is at T58. In the covering letter to Excel Rehabilitation, Ms Chiu states:
"Mr Cowe states that he is working two part-time jobs which are office based. During discussion and from observations made during the assessment, it appears that Mr Cowe has adopted his own way of performing tasks which rely very heavily on his unaffected side (i.e. right upper limb). He favours his right upper limb in performing tasks which require bilateral operation as in bilateral lifting, carrying, pushing and pulling. He tends to put the weight of his load on his right upper limb.
Mr Cowe was also observed to sit in an awkward posture and he reported that was to reduce the weight of his left upper limb on his shoulder. Since he reports using the keyboard constantly with his RAC job, would you consider recommending and Ergo-rest for this gentleman to reduce the weight of his left upper limb on his shoulder?"
The applicant said that he found the report by CRS Australia "pretty accurate". That report states that:
"… the client is capable of performing physical work at the light level, a defined by the US Department of Labor in the Dictionary of Occupational Titles. Based on this evaluation the client is capable of light level of work for an 8-hour day.
…Mr Cowe demonstrated no self-limiting participation by stopping on any of 21 [of 36] tasks. … The values reported for the tasks in which the client self-limited represent, therefore, what the client was willing to do rather than a safe maximum physical effort. …Self-limiting participation may be due to one, or any combination, of several factors. Some common factors contributing to self-limiting participation are: pain, fear of pain, fear of injury/re-injury, depression, anxiety, lack of familiarity with a safe physical maximum, and lack of motivation to perform maximally secondary to perceived financial gain. … Based on this evaluation, the factors underlying the client's limitations seem to be:
1.        Decreased strength in left upper limb.
2.        Decreased flexibility and the range of movement in Mr Cowe's shoulder joint.
3.        Generalised deconditioning.
4.        Pain."
There were two other relevant employment occasions. The first arose as a result of a letter to the applicant from the respondent, dated 14 May 1998 (R6). This confirms that a position had become available for the applicant to serve as a radio operator on board the drill ship Northern Explorer III, which was then in the Bass Strait. The letter explained that the position did not involve climbing vertical ladders or a need to work with his left arm above shoulder height. The position however, was subject to the applicant passing a medical examination. The medical examination was carried out by Dr Martin who reported (T54) on 19 May 1998 that there was an "unacceptably high likelihood of aggravation of problem at sea". The applicant also told the tribunal that Dr Andrew Marsden had expressed the opinion, in a letter of 6 March 1997 to the respondent, that the applicant could not safely undertake the HUET test for emergency drills". (T49) The Tribunal understands that this is a test which must be passed by all off-shore personnel and it involves passing a simulation test of escaping from a ditched upturned submerged helicopter, getting in and out of life rafts and assisting others to do the same and climbing vertical rope ladders. Needless to say that the applicant did not get the position.
The second employment occasion also involved the respondent. About April 1999 the applicant was engaged on a work trial in the office which involved him in a project to document vessels with expired radio licences and to update manuals which he said were out of date. The updating exercise involved contacting various government departments to get the relevant information. The applicant said that his supervisor was Mr Johnson, the operations manager. The applicant said that this trial came to an abrupt end suddenly, without a satisfactory explanation, the day following his refusal to accept a settlement offered by the respondent through its solicitors. The applicant, of course, remained employed by the respondent but on workers' compensation. Exhibit A1 is what the applicant states is a reference provided by Mr Johnson upon his departure on 9 November 1999. That reference lists ten tasks completed by the applicant between 4 April 1999 and 9 November 1999. It concludes with the following paragraph:
"Mr Cowe completed all assigned tasks in a thoroughly professional manner, to a high standard and with minimum supervision. His dedication and industry greatly assisted the running of the Operations Department during his period with the Head Office staff.
All the staff have enjoyed his good humour and willingness to help.
I have no hesitation in recommending Mr Cowe for any position he may apply for."
Mr Leczner asked the applicant about his involvement in two registered business names and from which he had returned tax losses in the years of income ended 30 June 1995, 1996, 1997, 1998 and 1999. Exhibits R2 and R3 show that there were two business names each registered in 1993. The applicant described the business as a distributorship, which was run by his then wife (since divorced). He said that because it was anticipated that the business would incur losses initially his accountant suggested that it be registered in his name for taxation purposes. He said that he initially paid $30,000 for the equipment etc. The intention was to transfer the business to his wife when it became established. The applicant said that his wife operated the business and he had minimal involvement, even after his accident in September 1995. He said that he would have become more involved then although he stated the he "can't honestly imagine what [he] would be doing". (Tr. p.74, 76), and later, that his involvement was limited to answering the telephone if somebody called, (Tr. p 77). In the opinion of the Tribunal, it is apparent from the applicant's evidence in relation to the business that he had little, if anything, to do with its daily operations. The applicant's evidence, which the Tribunal adjudges as truthful, is that his spouse operated business with a minimal assistance by the applicant and that that commitment did not interfere with the applicant's ability to pursue his own employment endeavours.
On 5 November 1999, Dr J E Crockett reported, after examining the applicant and having been provided with previous medical reports, that:
"Although I believe he is fit to continue in his job he is, I think, not fit to work at sea or on oil rigs. Particularly, I do not think he would be fit to undertake or carry out helicopter underwater evacuation training. He could certainly manage a clerical type job on a forty hours per week basis. I believe his ability to do this could be improved this (sic) by partial acromionectomy as this would tend to reduce his need for physiotherapy and reduce his episodes of discomfort and hence any time required off work." (T65)

Dr Crockett assessed the applicant's loss of efficiency function of the whole of the left arm of twenty percent and expressed the view that an operation may reduce that to ten percent.

In response to questions put to him by Mr Leczner about his ability to carry on his previous job as an off-shore radio/communications officer, the applicant said he could not because of his physical limitations. The transcript, in this regard records:
MR LECZNER: But what about Dr Murphy? Was he prepared to certify you to go back to the ship? --- I don't think so.
No. Because of what? What was the restriction? ---Well, the restriction was the shoulder and arm injury.
But in context of what work? --- Well, in the context of doing your normal duties. You have to go up vertical ladders – to maintain radar scans and things. There's many emergency drills on board where you have to go down vertical ladders to maintain radar scans and things. There's many emergency drills on board where you have to go down vertical ladders, climbing out of lifeboats, all that type of thing, and just getting in and out [of] the helicopter arriving there and carrying your baggage down there, the companion way. (Tr. p.96)
The Tribunal understands that the applicant concedes that he is qualified, has the skills for or is trained to meet the requirements of, a Grade 2 – Clerical Assistant as described in the Clerks (Commercial, Social and Professional Services) Award. However, the applicant disputes that he has the required qualifications, skills or training to meet the requirements of Grade 3 – Clerical Officer. Grade 3, has the following recital prior to defining the actual skill etc levels;
GRADE 3 – CLERICAL OFFICER
Employees in this grade perform clerical and office tasks uning a more extensive range of skills and knowledge at a level higher than required in Grade 2.
They are responsible and accountable for their own work, which is performed within established guidelines, they exercise limited discretion within the range of their skill and knowledge. Supervision is limited.
Employees holding a Certificate of Office and Secretarial Studies (TAFE) or accredited equivalent who are required to exercise any one or more of the skill levels described in this grade shall be classified Grade 3 or above.
The applicant's responses to questions put to him by Mr Stubbs, his advocate, and also by Mr Leczner under cross-examination, in relation to his particular skills, by reference to the Grade 3 schedule, are summarise as:

The applicant said that he has not previously operated computerised radio or telephone equipment. However, he said that with training he believed that he could operate computerised radio and telephone equipment or other equipment of equal complexity, but he has never operated a dictaphone but he imagines that he could learn (subject to his typing limitations mentioned elsewhere).
The applicant said that he has no experience in using computer software packages to populate a spreadsheet although he has experience of entering data into a database (at the RAC and also with Fire & Rescue), but no experience or training to manipulate that data. Further, he has never created, maintained or generated simple (computer based) reports. He expressed the view that although he has never worked with spreadsheets, that with suitable training he could manage those things. He said that he could carry out the print screen operation on a computer.
The applicant said, in relation to his typing skills, that he cannot touch type and his typing skills are limited to "two finger stuff" and "I get along reasonably fast" looking at the key board. The applicant said that he was required to type at 40 words per minute when he worked for the Fire and Rescue Emergency Services and to have Windows computer literacy.
The applicant believes he has the skills to carry out the required word processing procedures (subject to his typing limitations). He said that he currently uses Word 2000 software.
In terms of the Information Handling skill level, the applicant said that he would need a lot of guidance to "oversee record management systems including review and analysis". Apparently he has no experience in this procedure save what he did as a radio control operator at sea although that did not involve using computers to manage and manipulate data.
The applicant's evidence is that with experience he believes he could apply a working knowledge of a working organisation's products, services, functions, locations and clients; and respond to and act upon internal/external inquiries in [his] own function area; [Skill level 3 – Enterprise/Industry knowledge].
The applicant said that he had no experience in maintaining financial records and journals or payroll records. However, in response to questions put to him by Mr Leczner in relation to his duties at the Mundaring Hotel, the applicant said that whether he could maintain financial records and journals would depend on "how deep they go", (tr p.93). His experience at the hotel in this regard was limited to paying creditors' accounts.
In relation to the Secretarial skill level – requiring ability to take shorthand at 80 words per minute and transcribe with 98% accuracy, the applicant said that he has no knowledge of shorthand and that his typing skills are limited as previously mentioned. He did not agree with Mr Leczner's suggestion or implication that he could learn shorthand relatively easily, (tr p.93).
The applicant agreed with Mr Leczner that he could handle travel bookings and itineraries.

The applicant's evidence is that he had never had cause to undertake a course in shorthand or in payroll maintenance or in preparing accounts – that he had spent his working life in communications. In further response to assertions by Mr Leczner, the applicant denied that he could drive a taxi (too strenuous) although he thought he could do local courier work not involving long distances and allowing frequent stops. He further stated, in response to questions put to him by the Tribunal, that his employer (the respondent) refused to pay for him to enrol in a computer spreadsheet course, although they did pay for the computer awareness and word processing course.
The respondent called Ms Laura Smitham, an employee with Active Injury Management. Her report of 6 April 2001, (ex. R4) and two pages of photocopied press clippings of classified advertisements for positions vacant, appearing in the West Australian newspaper, Saturday 31 March 2001 (Ex. R5), were referred to during her evidence in chief and in cross examination. For reasons below, in the Tribunal's opinion, this evidence was of little, if any, assistance in this matter. That is not intended to be derogatory of Ms Smitham, or suggest that her veracity was in question. The Tribunal simply found her evidence almost irrelevant and that is not her fault.
Ms Smitham, it appears, graduated with a bachelor's degree in psychology in 1999. Ms Smitham is provisionally registered as a Psychologist, her necessary two years of post-graduation experience being only partly completed (hence the provisional registration). At the time of the hearing, Ms Smitham had some 7 or 8 months work experience to complete for registration. Ms Smitham's experience was necessarily limited and she admitted of having no formal qualification or training in labour market research or labour market economics. Ms Smitham's experience appeared to be limited to about 3 months post-graduation employment in injury management, several months as an employment coordinator with persons suffering from mental illness and some months employed with a specialist employment agency, about 18 months overall.
Exhibit R4, the report of 6 April 2001, is general and not specific to the applicant in any way. When asked, Ms Smitham was unable to explain in clear and unequivocal terms what she understood the paragraph headed "Occupational Size" to mean. That paragraph states:
Occupational Size
Described as "very large" 92,600 positions advertised at national level.

When asked, Ms Smitham agreed that this might refer to the number of positions in a particular classification of clerks' jobs, existing nationally at the time, which was probably in April 2001, according to some (unidentified) ABS statistical base. She admitted that it was not about the number of jobs advertised at any one time. The Tribunal was simply left to wonder what, if anything, was the significance of this paragraph. In Re Pamela Maree Taylor and Commonwealth of Australia, AATA 4270, 12 April 1988, Senior Member B J McMahon (as he then was) observed, at paragraph 28, that national statistics of a job market have little, if any relevance, to the state of the job market in a relevant place for a relevant applicant. That at least, would be implied in the Act's s3 definition of "suitable employment". However, to give Ms Smitham her dues, she did attempt to refer to the job market immediately available to the applicant, but as mentioned below, that could not be considered reliable indicative evidence of such job opportunities available to the applicant.
Ms Smitham agreed that her report reference to "AQF Certificate II" qualification was probably not readily understood by the majority of employers because it is a relatively new term adopted to describe, in national terms, a standard. The report states that on 31 March 2001 and on 5 April 2001 (no explanation given for the different dates), there were 13 "positions advertised" and "14 General Clerk positions … advertised" in the West Australian newspaper and on the Job Search Internet Site respectively. The implication is that these are all different positions available which might be filled by the applicant should he apply. However, upon cross-examination it became apparent that there was no check made to ensure that there was no double counting of the same position. Further, Ms Smitham admitted, at the time, of having only been provided with a copy of the applicant's Resume (Ex. A2) and no other relevant informatiion. And when pressed by Mr Stubbs, the witness conceded that had she more information (as provided by Mr Stubbs) that a significant proportion of the 13 advertised positions were not ones likely to suit the applicant. Ms Smitham's evidence in relation to the 14 positions on the Internet site is that no information was available in the report to confirm that the applicant met the jobs' criteria.

In the Tribunal's opinion, the evidence contained in exhibits R4 and R5 and Ms Smitham's oral evidence in this regard is of little assistance in guiding the Tribunal as to the size of the actual clerical job market reasonably available to the applicant at the time. Ms Smitham repeated many times what she understood to be a useful technique to assist in obtaining employment. In general terms, she suggested that a job seeker should apply for all positions advertised for which that person believed they met at least 60 percent of the required criteria. She further would advise the job applicant to follow-up should they not be successful. The purpose of the follow-up contact would be to ascertain what skills or attributes were lacking and in what specific ways that person might improve their marketability. As the Tribunal understands Ms Smitham's evidence/opinion in this respect, it is not to say that a person meeting only 60 percent of the advertised job criteria had a good chance of securing the job.
In terms of this particular review, the Tribunal does not take issue with what Ms Smitham believes as a sound job seeking strategy. However, the evidence is that the applicant has made many and varied job inquiries and applications for positions which he believed he might be equipped to fill. Whilst there is evidence of repeated applications to the same potential employer, there is little evidence of any follow-up once he had been refused or dissuaded from applying. But in the circumstances, whilst it may be open to say that ideally he should have been more persistent, it is reasonable to conclude that he did actively seek employment in jobs for which he believed he could fulfil.
Submissions and reasons for decision
In the Tribunal's opinion, before discussing the submissions of the parties, it is useful to reflect on the actual legislative provisions with which the Tribunal is concerned in this matter. The Tribunal understands that there is no dispute that the applicant is entitled to compensation pursuant to s31(4) of the Act, which in turn, is subject to s31(5) of the Act, at least in so far as this dispute is concerned. Subsection 31(5) of the Act is divided into six subparagraphs, (a) to (f) inclusively. Subparagraph 31(5)(a) deals with the situation where an employee who is not employed during a week is entitled to compensation based on the employee's normal weekly earnings. It stipulates that the employee is entitled to a certain sum weekly, subject to being reduced by "the amount (if any) that the employee was able to earn during that week in suitable employment". Subparagraphs 5(b) to (f) inclusively, each deal with a situation where, during a week for which the employee qualified for compensation, the employee was actually employed. Each subparagraph, in turn, by reference to the hours employed, as a percentage of the normal weekly hours, assesses the compensation amount by reference to the amount that the employee was able to earn during that week in suitable employment.
The evidence is that the applicant cannot return to his former job at sea. Therefore the issue is what is the amount each week, for which the applicant was entitled to compensation, that the applicant was able to earn in suitable employment. It has been conceded that the applicant is able to work full-time in a clerical job which would meet the classification of Grade 2 – Clerical Assistant, as that term is defined in the Clerks (Commercial, Social and Professional Services) Award (T69). That concession on the part of the applicant however, does not foreclose the matter in that regard. It is still relevant to determine, as a matter of fact, whether a clerical position or positions at the level of Grade 2 – Clerical Assistants was/were available in the applicant's relevant job market at the time of the decision under review, that is, January/February 2000. And in any event, the Tribunal is not necessarily bound by what the parties may agree between themselves as fact. In Re Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue 28 ATR 307, (see Davies J at 311 lines 27 to 30 and Wilcox J at 319, lines 19-39). Their honours refer to the task of an Administrative Tribunal, "to review the administrative decision that is under attack before it". It adopted those words used by their Honours Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 which particularly concerned this Tribunal.
In the present case, the evidence is that, since his injury, the applicant has held down a clerical/administrative job at the Mundaring Hotel, has worked with the RAC, the Fire and Rescue Emergency Authority of Western Australia and has successfully completed about 6 months work trial with the respondent. Also, on the evidence of Drs Murphy (his treating GP) and Crockett mentioned above, it is apparent that the applicant is fit for work (albeit not his pre-injury job). On his own evidence the applicant said that he was seeking full-time employment. Further, the applicant's evidence as to his clerical skill levels indicate that he believes that he meets most of the skill levels set out in the said award for Grade 2 – Clerical Assistant. The Tribunal accepts that the applicant is not presently trained to comply fully with "Computer" skill level 2 in that he cannot, without appropriate training (which has been denied him) work with spreadsheets. Therefore, to this extent the evidence is that the applicant can meet, at least to a very significant degree, the skill levels of a Grade 2 Clerical Assistant.
The issue in this regard therefore, is whether the applicant can meet the criteria required for a Grade 3 – Clerical Officer (T69).
In the recital to the list of skill levels for a Grade 3 – Clerical Officer (T69) it states, inter alia:
"Employees holding a Certificate of Office and Secretarial Studies (TAFE) or accredited equivalent who are required to exercise any one or more of the skill levels described in this grade shall be classified Grade 3 or above."
The applicant did not concede, and there is no evidence to the contrary before the Tribunal, that he holds "a Certificate of Office and Secretarial Studies (TAFE) or an accredited equivalent". Therefore, in the Tribunal's opinion, in the absence of such a formal qualification, it is incumbent on the applicant to be able to satisfy a prospective employer that he could acquit himself satisfactorily in regard to each of the skills stipulated in Grade 3 – Clerical Officer (T69). As mentioned, the Tribunal does not accept the evidence of Ms Smitham as establishing that a person who has at least 60 percent of the job criteria skills would be enough to hold down the relevant job. The Tribunal is of the opinion that a minor shortcoming in skills would not necessarily present an insurmountable obstacle to obtaining a particular job. For example, in the Tribunal's opinion, it does not seem reasonable to disqualify a job applicant from a Grade 3 level clerical position merely because that person has no training in or experience with, using a dictaphone; or that whilst they can type at the required rate they must look at the key board to do so. Clearly, the skills required for each position would dictate the desirability or otherwise of the applicant having to meet those criteria in particular. The Tribunal agrees with the submission of Mr Leczner that the grading referred to in the said Award must be considered from a practical point of view and not treated literally as immutable.
As a guide to what constitutes "suitable employment" in terms of s31 of the Act, the Tribunal finds assistance from what Senior Member McMahon said in Re Taylor (cited above), at paragraphs 30, 31 and 32:
"30      In order to establish an entitlement to compensation calculated as for total incapacity in accordance with s45 of the Act, the applicant must show that she 'has taken all reasonable steps to obtain but has failed to obtain suitable employment'.
31       The question of what steps are reasonable must always be a question of fact to be decided in the circumstances of the particular case. No Court or Tribunal could limit the discretion that ultimately must be exercised by the decision maker when considering the whole of the facts and circumstances. It may however, be of some assistance to offer a view as to what would not be reasonable in the circumstances. It would not, in my view, be reasonable to expect an applicant to undertake all and every possible steps whether or not they offer any prospect of success. The steps taken by the applicant to secure employment initially may be taken as a guide to what is reasonable in seeking and finding employment after the injury. It cannot be regarded as reasonable to require the applicant to approach potential employers by means of expensive advertisements, the delivery of circulars, or the seeking of undue publicity. Reasonable steps to obtain employment must be looked at having regard to the applicant's own character, capacity, health, initiative and abilities. Whilst ultimately the test to be applied must be an objective one, it seems to me that it would be unreal to ignore these or similar factors. One need not go to the extreme length of looking at the position through the eyes of the applicant. One must, however, judge the efforts of the applicant with reference to these individual and endogenous factors.
32       Similarly the nature of suitable employment which the applicant must take reasonable steps to obtain must be judged objectively, but having regard to the practical realities of capacity and chances of success. Sub-section (5) requires the decision maker to take account of the state of the labour market at the relevant time. … I consider that under the heading of "any other matter" the decision maker should take account of an applicant's age, education, presentation, cultural difficulties, time out of the workforce, compensation history and all other personal and external factors that have gone into determining permanent incapacity for work for invalid pension purposes …"

In relation to the last paragraph the Tribunal simply notes that these sentiments are now to a degree, encapsulated in the s3 of the Act definition of "suitable employment" in any event and embellished for these purposes by s32 of the Act.

Section 32 of the Act is central to the submissions and is therefore reproduced below for convenience:
32 Determination of suitable employment
An employer who determines, for the purposes of section 31, the amount per week that an employee is able to earn in suitable employment must have regard to the following:
          (a)       if the employee is in employment—the amount per week that the employee is earning in that employment;
          (b)       if, after becoming incapacitated for work, the employee received an offer of suitable employment and did not 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)       if, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, did not engage, or 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)       if, 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 did not fulfil that condition—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
          (e)       if, after becoming incapacitated for work, the employee has not sought 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)       if 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 opinion of the employer, reasonable in all the circumstances;
          (g)       any other matter that the employer considers relevant.
The Tribunal now deals with each of the paragraphs of s32 of the Act in turn and with regard to the evidence before it and the relevant submissions of each party. Paragraph 32(a) states:"(a) if the employee is in employment—the amount per week that the employee is earning in that employment". Since at the relevant time of the hearing the applicant was not in employment then this paragraph has no effect.
Paragraph 32(b) states: "(b) if, after becoming incapacitated for work, the employee received an offer of suitable employment and did not 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". The evidence is that the applicant did receive three offers of employment, albeit on a part-time basis, and accepted those positions. His evidence is that he was retrenched from RAC job as a result of restructuring and that he left the job at the Mundaring Hotel to take up the position with Fire and Rescue, from which he was eventually retrenched because of his accent. In the opinion of the Tribunal it cannot be said that the applicant did not take up any offer of suitable employment made to him.
Paragraph 32(c) states: "(c) if, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, did not engage, or 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". In the Tribunal's opinion the evidence establishes that the applicant did continue to engage in the employment referred to in the previous paragraph until such time as, in the case of the job at the Mundaring Hotel, it was no longer feasible for him to continue, and in the other two cases, until the termination of those jobs was beyond his control.
Paragraph 32(d) states: "(d) if, 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 did not fulfil that condition—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment". The evidence is that the applicant did not receive any offer of suitable employment on condition that he completed a reasonable rehabilitation or vocational program. The evidence is that the respondent, in its capacity as employer, provided two firms to assist him in his rehabilitation and in obtaining suitable employment. The latter of those, Excel, was particularly helpful, assisting him with mail-outs and other relevant matters, and recommended that he undertake computer based training. The evidence is that the respondent provided opportunities for the applicant to learn basic computer skills and familiarisation with word processing (but not touch typing). However, although Excel recommended that the applicant be enrolled in a spreadsheet course, that was denied by the respondent. Further, the evidence is that the applicant attended a work experience placement with the respondent and during those months he was punctual, cooperative, effectual and worked well with those in the section to which he was assigned. That work trial was terminated suddenly without any explanation being given to the applicant and at a time when it seems his assigned tasks were far from completed. In the opinion of the Tribunal, the applicant would have greatly enhanced his opportunities for suitable employment had the respondent facilitated the spreadsheet course and further, allowed the applicant more time in the work experience placement. His current lack of training in these respects is probably a significant factor in him being unable to obtain suitable employment outside radio/control room/communications type jobs for which he is trained (albeit, lacking to some extent, modern information technology knowledge and experience).
Paragraph 32(e) states: "(e) if, after becoming incapacitated for work, the employee has not sought suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment". Mr Leczner submitted, for the respondent, that at the relevant time there was available to the applicant suitable employment of a clerical nature, at either Grade 2 or Grade 3 award level. Further, the applicant did not make any concerted effort to obtain that employment and those are sufficient factors to determine this matter and affirm the decision under review.
Mr Leczner submitted that the applicant has not demonstrated a willingness to seek out suitable employment in the clerical field, neither has he made any effort of his own initiative to improve his computer skills including spreadsheet applications when the cost of doing so was relatively little. Mr Leczner further submitted that the evidence supports the conclusion that the applicant made little if any, attempt to obtain employment outside the kind of job he formerly did at sea – radio/communications control operations, and this is supported by exhibit A3. Mr Leczner submitted that an analysis of the jobs which the applicant inquired about or applied for and as documented in exhibit A3, indicate that they are essentially of that nature. He submitted that exhibit A3 contains evidence in relation to a few other types of jobs, such as local courier operator; a counter officer at the Geraldton Police station; the port marine officer job at Port Hedland; and a warehouse job with Nucolorvue Productions. In this respect, in the Tribunal's opinion, it is a fact that the jobs detailed in exhibit A3 are predominantly those for which the applicant is trained and has experience. That is, control room/radio/communications officer type jobs. However, there is also evidence of other jobs having been at least the subject of an initial inquiry or the subject of an application (such as that of port marine officer mentioned). But in respect of those "other" kind of jobs, the Tribunal agrees with Mr Leczner that they would not normally be classified as clerical although some clearly required administrative abilities. Further, in the Tribunal's opinion, the evidence supports the conclusion that the applicant has demonstrated his inter-personal skills and administrative ability.
The evidence is that the applicant has made an effort to obtain employment. He has "cold canvassed"; and with the assistance of Excel, he has participated in "mail outs" to likely employers. He has responded to jobs advertised in the press; he has registered with job search agencies and provided a resume of relevant details; and more latterly, he has registered with several recruiting agencies on the Internet. But as mentioned, he has focussed predominantly on jobs for which he has the formal qualifications and experience – those referred to as communications/radio/control room type jobs, including jobs in locations that would require him to move.
In the opinion of the Tribunal the evidence supports a conclusion that the applicant has focussed his job search effort to obtain employment in jobs within the scope of his training and experience. Although he has made inquiries and some applications outside this immediate area of expertise, they are few in number and selective and generally cannot be described as clerical type jobs. In February 2000, the date of the decision under review, the applicant was going on 58 years of age. He impressed the Tribunal as a capable and intelligent person. In the opinion of the Tribunal, it is not unreasonable for a person having a long history of specialist employment (~35 years in the applicant's case), with a limited career path, to seek, almost exclusively, employment in that specialist field. The applicant is not a trained clerk and his concession that he does possess the skills required of a Grade 2 – Clerical Assistant is not, in the opinion of the Tribunal, sufficient of itself to conclude that clerical employment of that nature is necessarily suitable for the applicant. This conclusion is founded having regard to the applicant's age, experience, training, and his limitations in relation to keyboard skills and computer applications. The Tribunal is mindful of the need to have regard to the prevailing labour market conditions for employment suitable to the applicant: Esam v ASP Ship Management (1998) 87 FCR 82. In the opinion of the Tribunal the evidence introduced through Ms Smitham, of the size of the clerk type position labour market reasonably available to the applicant, for reasons already noted, is of little assistance in enabling the Tribunal to gauge the size of or identify that market. In the opinion of the Tribunal, and despite a valiant effort by Mr Leczner to persuade us otherwise, it cannot be concluded from Ms Smitham's evidence, or from exhibits R4 and R5 as tested in cross-examination, that the majority of those clerical jobs were jobs for which the applicant was qualified, sufficiently experience, or for other reasons including his age and gender, likely to secure had he applied.

In terms of paragraph 32(f) of the Act, as none of paragraphs 32(b), (c), (d) or (e) apply then neither does paragraph 32(f). And further, for the purpose of paragraph 32(g) of the Act, having regard to the evidence and submissions, in the Tribunal's opinion, there are no other matters,(other than those discussed above), that the respondent and therefore the Tribunal should consider relevant for the present purpose.
In regard to paragraph 32(e) above, the Tribunal concludes that the applicant has sufficiently and earnestly tested the labour market for suitable employment without success and therefore he could not reasonably be expected to earn any remuneration from suitable employment. In the opinion of the Tribunal, at the relevant time and in the absence of appropriate additional training and work experience, it is not reasonable to assert that the applicant could be expected to earn a salary or wage as a Grade 3 – Clerical Officer nor, having regard to the state of the labour market (as in evidence), as a Grade 2 – Clerical Assistant.
Decision
For the above reasons and pursuant to s43 of the Administrative Appeals Tribunal Act 1975 the decision of the respondent of 28 January 2000, set out in the documents filed by the respondent pursuant to s37 of the said Act, at T70, is set aside and in substitution therefor decides that the applicant's entitlement to compensation be calculated pursuant to s31(5)(a) of the Seafarers Rehabilitation and Compensation Act 1992 on the basis that there is no amount that the applicant was able to earn in suitable employment during the relevant weeks.
The respondent pay the applicant's costs pursuant to s92 of the Seafarers Rehabilitation and Compensation Act 1992.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member & Dr D Weerasooriya, Member
Signed:
.................................(sgd S Railton).................................
Associate
Date/s of Hearing  9 & 10 April 2001
Date of Decision  26 July 2001
Counsel for the Applicant        Mr Guy Stubbs, Dwyer Durack
Counsel for the Respondent    Mr Joe Leczner
Solicitor for the Respondent    Ms Patricia Saracini, Cocks Macnish