Dale and BIS Industries Limited (Compensation)
[2016] AATA 862
•31 October 2016
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2015/0567 and 2015/2391
General Division )
Re: Steven Dale
Applicant
And: BIS Industries Limited
Respondent
CORRIGENDUM
TRIBUNAL: Deputy President Dr P McDermott RFD
DATE: 12 December 2016
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
Sentence 2 of the decision should read:
“For the purpose of s 7(4) of the Act, the applicant should have been taken to have sustained the injury on 25 October 2013.”
In paragraph 71 of the decision the second sentence should read:
“For the purpose of s 7(4) of the Act, the applicant should have been taken to have sustained the injury on 25 October 2013.”
..................................[sgd]..............................
Deputy President
Dale and BIS Industries Limited (Compensation) [2016] AATA 862 (31 October 2016)
Division
GENERAL DIVISION
File Numbers
2015/0567 and 2015/2391
Re
Steven Dale
APPLICANT
And
BIS Industries Limited
RESPONDENT
Decision
Tribunal Deputy President Dr P McDermott RFD
Date 31 October 2016 Place Brisbane I set aside the reviewable decision of 24 September 2014 in application no 0567 of 2015 and substitute a decision that from and including 23 September 2014 until the date of this decision the applicant is entitled to compensation for incapacity for work under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). For the purpose of s 7(4) of the Act, the applicant should have been taken to have sustained the injury on 19 July 2013. The application is remitted to the respondent to calculate incapacity payments in accordance with paragraph 70 of these reasons for decision. The respondent is to pay the reasonable costs and expenses of the applicant incurred in relation to application no 0567 of 2015.
In application no 2391 of 2015 I affirm the decision of 18 April 2015 under review.
..............................[sgd]..........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – compensation for injuries resulting in incapacity – injury suffered by employee – rehabilitation program not suitable employment – decision set aside and remitted
COMPENSATION – compensation in respect of medical expenses – applicant does not require further medical treatment – decision affirmed under review
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 8, 16, 19, 40
CASES
Lyons and Telstra Corporation (2001) 66 ALD 159
Telstra Corporation v Lyons (2003) 132 FCR 548
Saag and Comcare (2006) 89 ALD 710
Simmons v Comcare (2013) 134 ALD 522
Australian Postal Commission v Oudyn (2003) 73 ALD 659REASONS FOR DECISION
Deputy President Dr P McDermott RFD
31 October 2016
introduction
On 28 June 2011, Steven Dale (“the applicant”) commenced employment with BIS Industries Limited (“the respondent”) as an Operator (Level 2) with road train driver duties.[1] On 25 October 2013, the applicant was injured in the course of his employment.[2] The applicant received compensation after the injury was sustained until his employment with the respondent was terminated on or about 22 September 2014.[3] The applicant seeks review of two reviewable decisions that deny him compensation for incapacity to work and medical expenses for the period after the termination of his employment.
[1] Exhibit 2, T-Documents – 2015/0567, T3 at p. 19.
[2] Ibid at p. 11.
[3] Exhibit 2, T-Documents – 2015/0567, T37.
prior determinations
On 16 December 2013, the respondent made a determination that it was liable to pay the applicant compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of a "tear of the lateral collateral, lateral ulnar collateral ligaments and common extensor tendon insertion, left elbow". The determination provided that the date of injury was 25 October 2013.[4]
[4] Exhibit 2, T-Documents – 2015/0567, T17.
On 24 September 2014, the respondent made a determination that, from 22 September 2014, the entitlement of the applicant to compensation for incapacity for work under s 19 of the Act was $0.00.[5] On 22 October 2014, the applicant requested reconsideration of the determination dated 24 September 2014.[6] In the request for reconsideration the applicant contended that he was unable to undertake any of the tasks necessary to perform his pre-injury duties and that he had little or no prospect of earning any income in the open labour market.[7]
[5] Exhibit 2, T-Documents – 2015/0567, T38.
[6] Exhibit 2, T-Documents – 2015/0567, T45.
[7] Ibid at p. 128.
On 20 November 2014, QBE issued a reviewable decision concerning the determination of the respondent dated 24 September 2014, finding that there was no present liability on the part of the respondent to pay compensation for incapacity for work pursuant to s 19 of the Act.[8]
[8] Exhibit 2, T-Documents – 2015/0567, T48.
On 9 March 2015, the respondent made a determination that the applicant had no present entitlement to compensation for medical treatment under s 16 of the Act in respect of “Extensor tendon tear, left elbow" in view of what was then recent evidence from the treating doctor which outlines that no further medical treatment is required.[9] On 17 March 2015, the applicant requested reconsideration of the determination dated 9 March 2015.[10]
[9] Exhibit 1, T-Documents – 2015/2391, T4.
[10] Exhibit 1, T-Documents – 2015/2391, T5.
On 18 April 2015 QBE issued a reviewable decision affirming the determination of the respondent dated 9 March 2015.[11]
[11] Exhibit 1, T-Documents – 2015/2391, T7.
medical evidence
On 21 November 2013, Dr Darlow reported a tear of the extensor tendon insertion of the applicant’s left elbow. On 21 November 2013, an ultrasound revealed an almost complete tear of the common extensor tendon insertion.[12] On 4 December 2013, an MRI report confirmed a high grade partial or complete tear of the lateral collateral and lateral ulnar collateral ligaments. The MRI report also confirmed a high grade partial tear of the common extensor tendon insertion.[13] At this time Dr Darlow reported that the applicant was not fit for his normal duties and would require reassessment. Dr Darlow referred the applicant to a specialist.
[12] Exhibit 2, T-Documents – 2015/0567, T7.
[13] Exhibit 2, T-Documents – 2015/0567, T15.
On 10 April 2014, Mr Adams, Exercise Physiologist, reported that the applicant had a left elbow common extensor tendon tear and a lateral collateral ligament tear and that he was fit for suitable duties.[14]
[14] Ibid.
On 29 May 2014, Dr Bansi reported that the applicant could return to driving duties with breaks and recommended that he be provided a vehicle with power steering and automatic transmission.[15]
[15] Exhibit 2, T-Documents – 2015/0567, T28.
On 1 August 2014, Konekt Australia issued a Return to Work Progress Report. It was reported that the applicant had returned to a seven day swing of twelve hour shifts with five to seven hours of driving per shift. The applicant then reported that he experienced an increased, but manageable, level of pain after driving for an extended period, but experienced no specific difficulties.[16]
[16] Exhibit 2, T-Documents – 2015/0567, T30.
On 2 September 2014, Dr Bansi reported that the applicant was fit for suitable duties and did not require further specialist review. Dr Bansi recommended PRP injections and physiotherapy. Dr Bansi described the elbow as stable and stationary.[17]
[17] Exhibit 2, T-Documents – 2015/0567, T32.
On 3 October 2014, Dr Journeaux reported that the applicant had a traumatic onset of a lateral epicondylitis involving the common extensor mechanism with lateral collateral ligament damage.[18] Dr Journeaux noted that the PRP injections that were recommended by Dr Bansi did not provide any significant benefit.[19] Dr Journeaux recommended surgical exploration of the elbow followed by a splint and physiotherapy.[20] He considered the applicant was fit for light duties and noted that the applicant had been working full-time with modified duties prior to being stood down.[21].
[18] Exhibit 2, T-Documents – 2015/0567, T39 at p. 117.
[19] Ibid at p. 114.
[20] Ibid at pp. 117-118.
[21] Ibid at pp. 115, 118.
On 15 December 2014, Dr van der Walt reported that the applicant had sustained a significant injury in the accident resulting in recalcitrant tennis elbow syndrome.[22] The pain experienced by the applicant since the accident gradually increased despite receiving PRP injections and undergoing physiotherapy.[23] Dr van der Walt reported that the applicant had some relief by using an elbow strap. However, he ceased using the elbow strap because it caused ulnar nerve symptoms.[24] In terms of his current symptoms, the applicant reported to Dr van der Walt that his pain was not “a problem” as long as he did not perform physical activity.[25] Dr van der Walt did not recommend surgery because he considered that there was a risk that surgery would worsen the applicant's condition.[26] Dr van de Walt considered the applicant was unfit for his pre-injury duties but fit for sedentary or light manual work.[27]
[22] Exhibit 10, Medical report prepared by Dr Van Der Walt dated 15 December 2014 at p. 7.
[23] Ibid at pp. 3-4.
[24] Ibid at p. 4.
[25] Ibid.
[26] Ibid at p. 7.
[27] Ibid at p. 8.
At the hearing Dr van de Walt was asked a number of questions by the respondent about treatment options such as surgery where a person is suffering from a more retractable form of lateral epicondylitis. Dr van der Walt stated that “the longer the symptoms have lasted the more difficult it is to effect and cure all of the symptoms by operating on the elbow”.[28] Dr van der Walt agreed with the proposition that the preferred course is to get a person to avoid using the affected elbow if that person has what might be regarded as an intractable form of lateral epicondylitis.[29] Dr van der Walt stated that physiotherapy would not improve matters after a period of six months.[30]
[28] Exhibit A, Transcript of Proceedings: 1 March 2016 at pp. 75-76.
[29] Ibid at p. 75.
[30] Ibid at p. 76.
On 26 March 2015, Ms Hague, Occupational Therapist, reported decreased grip strength, tenderness and muscle wasting in the applicant’s left elbow.[31] Ms Hague considered that the applicant was unable to return to his pre-injury role following the accident.[32] Ms Hague considered that there would need to be restrictions on heavy lifting and repetitive use of his elbow.[33] She opined that there would be great difficulty in attempting to retrain the applicant having regard to his low literacy and computer skills, and lack of vocational aptitudes for lighter work. This report of Ms Hague was admitted by consent of the parties. Ms Hague was not called to attend and give oral evidence.
[31] Exhibit 13, Medical report prepared by Ms Hague, Occupational Therapist, dated 26 March 2015 at [21].
[32] Ibid at [29],
[33] Ibid at [25].
On 7 July 2015. Associate Professor Steadman, Consultant Orthopaedic Surgeon, reported that the injury was fairly substantial and that there was residual tenderness with activities related discomfort.[34] In terms of causation, Professor Steadman suggested that the applicant's tear may have been pre-existing but rendered symptomatic by the incident.[35] Professor Steadman considered that the applicant's lateral ligament injury had most likely healed. He also considered that the common extensor tear had not yet healed but would fully resolve in due course.[36] Professor Steadman also reported that he considered the applicant was capable of returning to work although the elbow may be painful with different activities and would be unlikely to abate in the future.
[34] Exhibit 8, Medical report prepared by of Associate Professor Steadman, Consultant Orthopaedic Surgeon, dated 7 July 2015 at p. 5.
[35] Ibid at pp. 5, 7.
[36] Ibid at p. 6.
Professor Steadman considered the applicant was fit for restricted duties and was currently receiving no treatment.[37] He advised against surgery stating that additional treatment was not likely to improve the applicant's outcome.[38]
[37] Ibid.
[38] Ibid at p. 8.
On 7 August 2015, Dr van der Walt reported that there was no instability of the elbow at his previous examination and agreed with Professor Steadman that the lateral ligament injury had resolved.[39]
[39] Exhibit 11, Medical report prepared by Dr Van Der Walt dated 7 August 2015 at p. 1.
On 13 September 2015, Professor Steadman reported that the features of the ultrasound completed in July 2014 were consistent with the previous findings of a left lateral collateral ligament injury of the elbow. Professor Steadman considered that there was no evidence of ongoing clinical instability.[40]
[40] Exhibit 9, Medical report prepared by of Associate Professor Steadman, Consultant Orthopaedic Surgeon, dated 13 September 2015 at p. 2.
On 19 October 2015, Dr Maheshwari reported that an MRI of the left elbow of the applicant revealed a high grade partial thickness tear of his common extensor tendon origin as well as a tear of his lateral collateral ligament and joint effusion with secondary developing degeneration.[41]
[41] Exhibit 14, MRI report (left elbow) prepared by Dr Maheshwari dated 19 October 2015.
rehabilitation program
Workers' compensation medical certificates certified that the applicant was unfit for work until 4 February 2014 and subsequently fit for suitable duties until November 2014.[42] On 4 February 2014, the applicant returned to full-time work.
[42] Exhibit 2, T-Documents – 2015/0567, T18, T26, T29, T32, T40, T42, T47, T49, T51.
A rehabilitation program was agreed to collectively by the applicant, Mr Sweeney, Mr Smart, Ms Periera, Mr Smith and Dr Bansi.[43] The applicant’s assigned duties under the program included administrative tasks such as filing, photocopying, data entry, statistics entry and computer work.[44]
[43] Exhibit 5, Respondent’s book of rehabilitation documents at pp. 64-67.
[44] Ibid at p. 64.
In giving evidence the applicant stated that he could type with one finger but did not touch type.[45] The applicant stated that he was able to photocopy with his right hand.[46]
[45] Exhibit A, Transcript of Proceedings: 29 February 2016 at p. 48.
[46] Ibid at p. 49.
The rehabilitation program included the resumption of driving duties for up to four hours per day.[47] Under cross-examination the applicant agreed that the vehicles that he was required to drive were automatic and he did not have to change the gears with his left hand. He also stated that all the vehicles had power steering and he did not have to use significant left arm pressure to steer them.[48] The rehabilitation plan included provision for a day without driving for him to complete administrative duties in an office.[49]
[47] Exhibit 5, Respondent’s book of rehabilitation documents at p. 64.
[48] Exhibit A, Transcript of Proceedings: 29 February 2016 at p. 50.
[49] Exhibit 5, Respondent’s book of rehabilitation documents at p. 64.
The applicant did not challenge the reasonableness of the rehabilitation program offered to him. Among other things, he did not ask for it to be reconsidered or reviewed pursuant to s 38 of the Act.
evidence of the applicant
The applicant gave evidence that in July 2011 he commenced employment with the respondent as a Road Train Driver. The applicant was asked about the circumstances of the accident when he was injured. He confirmed that he fell backwards as he was stepping backwards out of the bus. When he was on the ground a crowbar fell down and hit his elbow. He remarked that one person picked him up and the other person took the crowbar off him.[50]
[50] Exhibit A, Transcript of Proceedings: 29 February 2016 at p. 64.
The applicant stated that his pre-injury duties included those outlined in the respondent’s book of rehabilitation documents.[51] The pre-injury duties of the applicant at the start of each shift required him to undertake maintenance of the vehicle such as using the tire bar to tap the tyres and using a tension wrench with two hands to check the nuts on each wheel.[52]
[51] Exhibit 5, Respondent’s book of rehabilitation documents at p. 9; Exhibit A, Transcript of Proceedings: 29 February 2016 at p. 34.
[52] Exhibit A, Transcript of Proceedings: 29 February 2016 at p. 35.
The applicant stated that after the incident he was unable to undertake the duties of tapping and changing tyres as well as tensioning because it would “be too much” for his left arm. When he tries to use his left arm it “burns” and “weakens”.[53]
[53] Ibid at p. 42.
Another duty of the applicant was “operator - prolonged sitting”.[54] He said that he can sit for prolonged periods but he cannot drive for prolonged periods because driving is a two-handed operation and the vibration weakens his arm. The applicant stated that he would experience difficulty getting in and out of the truck because he could not pull himself up and down the ladder.[55]
[54] Exhibit 5, Respondent’s book of rehabilitation documents at p. 9.
[55] Exhibit A, Transcript of Proceedings: 29 February 2016 at p. 43.
On 13 October 2015, the applicant swore an affidavit in which he outlined the work that he was tasked with after his injury. He remarked that between 4 February 2014 and 16 June 2014 he was capable of performing the majority of his administrative duties.[56] He stated that his hours of truck driving were increased to a maximum of three or four hours per day between 16 June 2014 and 17 September 2014.[57]
[56] Exhibit 7, Affidavit of Mr Dale sworn 13 October 2015 at [2].
[57] Ibid at [3]-[4].
The applicant in giving oral evidence stated that he was placed on a rehabilitation program and that a suitable duties plan was discussed with Dr Bansi.[58] The applicant confirmed that he signed the rehabilitation program and that the program fairly well set out his administrative duties.[59]
[58] Exhibit A, Transcript of Proceedings: 29 February 2016 at p. 37.
[59] Ibid.
The applicant confirmed that he underwent a number of return to work progress meetings with his employer which he signed off. He agreed that he also had the opportunity to tell his return to work coordinator, Mr Sweeney, and Dr Bansi how he was going with his return to work.[60]
[60] Ibid at p, 65.
The applicant stated in his affidavit that on 15 September 2014 he did not have an e-cigarette in his possession and was using a vapour stick.[61] He stated he had used a vapour stick in view of senior management throughout his employment, including while he was performing his administrative tasks. The applicant stated that he was not advised that the use of a vapour stick was prohibited.[62]
[61] Exhibit 7, Affidavit of Mr Dale sworn 13 October 2015 at [24]-[25].
[62] Ibid at [22].
The applicant stated that he has been a smoker for “20-odd years” and he was not “a big cigarette smoker” and preferred to use vapour sticks.[63]
[63] Exhibit A, Transcript of Proceedings: 29 February 2016 at pp. 64-65.
The applicant stated that when he commenced employment with the respondent he was told of a smoking policy that there was no smoking on site. He acknowledged that there was also a sign on the site to that effect.[64] The applicant stated that on 15 September 2014 he was handed a form by Mr Augustine concerning e–cigarettes.[65] The applicant stated that on that day he was using a vapour stick and was approached by Mr Smart and sent to the office where he was told to get on the bus and not come to work on the next day.[66] The applicant stated that his employment was terminated on 22 September 2014 and he been unable to obtain employment since then.[67]
[64] Exhibit A, Transcript of Proceedings: 29 February 2016 at p. 39.
[65] Exhibit 7, Affidavit of Mr Dale sworn 13 October 2015 at [21].
[66] Exhibit A, Transcript of Proceedings: 29 February 2016 at pp. 41-42.
[67] Ibid at p. 44.
The applicant contended that the termination of his employment was manufactured by the respondent for the purpose of terminating his compensation payments. The applicant stated that the use of vapour sticks by other employees is a common and daily occurrence on site.[68] The applicant stated that his injury prevented him from undertaking any work in which he had experience, namely driving and labouring, meaning that he was unable to obtain employment in the open market.[69]
[68] Exhibit 7, Affidavit of Mr Dale sworn 13 October 2015 at [28].
[69] Ibid at [12]-[15].
It was put to the applicant in cross-examination that 15 September 2014 “was the day in which Darren Smart caught you in the tyre yard”.[70] The applicant agreed to the proposition that “that’s the date on which he saw you doing something that ultimately led to the termination of your employment”.[71] The applicant also agreed when it was put to him that he was “standing essentially away from people”.[72] When asked if he was “out of view of most people on the site”, he responded “I’m not really sure of that but I guess so”.[73] He also agreed that Mr Augustine had told him that he was not permitted to use an e-cigarette.[74]
[70] Exhibit A, Transcript of Proceedings: 29 February 2016 at p. 57.
[71] Ibid.
[72] Ibid.
[73] Ibid.
[74] Ibid at p. 58.
The applicant agreed that when Mr Smart found him he said words to the effect of “Stevie, what are you doing?”.[75] The applicant agreed that he did not say anything to Mr Smart or at the office about “being allowed to use a vapour stick”.[76] The applicant remarked that a vapour stick and e-cigarettes operate on the “same principle” and both use a battery.[77] The applicant asserted that at the office he remarked: “This is bullshit over a vapour stick. But you’re going to sack me, then sack me”.[78]
[75] Ibid.
[76] Ibid.
[77] Ibid.
[78] Ibid.
The applicant confirmed in evidence that his employment with the respondent was not reinstated. On 17 November 2014, he made an unfair dismissal application with the Fair Work Commission in relation to the termination of his employment which was outside of the limitation period of 21 days after his dismissal taking effect.[79] On 9 December 2014, the Fair Work Commission ruled that there were no exceptional circumstances to warrant the grant of an extension of time.[80]
[79] Exhibit 3, Respondent’s book of documents at pp. 26-30.
[80] Ibid at p. 59.
evidence of management
On 27 October 2015, Mr Smart in his statement stated that he observed the applicant smoking and hiding behind tyres on 15 September 2014 and that the applicant had then admitted that he had been caught smoking. [81] Mr Smart believed that the applicant was smoking a real cigarette as there was a large cloud of smoke around him. He asked the applicant what he was doing and the applicant admitted "you caught me smoking".[82] Mr Smart referred the matter to human resources who terminated the applicant's employment. Mr Smart referred the applicant to Paul Agustin, Operations Manager.
[81] Exhibit 20, Witness statement of Mr Smart signed 27 October 2015 at [12]-[14].
[82] Exhibit 20, Witness statement of Mr Smart signed 27 October 2015 at [12]-[14].
On 15 September 2014, Mr Smart sent an email regarding the incident in which he stated that he had caught the applicant with a "smoke" in his hand earlier that day.[83]
[83] Exhibit 3, Respondent’s book of documents at p. 18.
On 23 September 2014, the following letter of termination was sent to the applicant:[84]
[84] Exhibit 2, T-Documents – 2015/0567, T37.
Dear Steve
This letter is to confirm the outcome of the disciplinary interview held with you on 22 September 2014 with Lee Jansen HRBP and myself, where you declined to have a support person with you.
On 15 September 2014 you were observed smoking amongst the tyre storage area by me, behaviour that you admitted at that time. Your conduct is in clear breach of the Company’s Employee Performance Behaviour Code, and the Code of Behaviour FIFO/DIDO Operations, the Smoke Free Work Policy, and the client’s various requirements about not smoking on site, which poses a risk not only for your own health and that of those around you, but also the Company’s reputation with the client.
Accordingly, please be advised that your employment is terminated for wilful misconduct effective 22 September 2014 as you have failed to comply with the above named policies and requirements. Please be advised that you will receive payment of all your accrued legal entitlements by way of automatic pay into your account.
The Company would like to remind you that you may seek advice and to take appropriate treatment from the Employee Assistance Program (EAP). This service is strictly confidential and paid for by Bis Industries. All details discussed in the counselling sessions remain strictly private and confidential between yourself and the counsellor. Should you wish to access the EAP please call 1800 303 090.
Should you have any queries, please direct them to myself.
Yours sincerely
Darren Smart
Manager
Mr Sweeney in his statement signed 28 October 2015 said that the applicant had been cleared to return to almost all of his pre-injury duties prior to the termination of his employment.[85] Mr Sweeney was aware that the applicant had been caught smoking on site and confirmed that all new employees are trained regarding the smoking policy as part of the “Glencore Induction Process”.[86] The presentation advises that Newlands Coal is a non-smoking site and that anyone found smoking on site will be managed in accordance with the site's counselling, discipline and dismissal procedure.[87] Mr Sweeney went to the applicant's room on the morning on 16 September[88] 2014 to take a statement from him regarding the incident.[89] When he arrived he discovered the applicant had checked out and driven home.
[85] Exhibit 18, Witness statement of Mr Sweeney signed 28 October 2015 at [14].
[86] Ibid at [17], [21].
[87] Ibid at attachment 2.
[88] The reference in the statement to “December” appears to be a typographical error.
[89] Exhibit 18, Witness statement of Mr Sweeney signed 28 October 2015 at [18].
On 10 November 2015, Mr Gardner, Manager, made a statement in which he confirmed that the worksite had strict policies regarding smoking and that other employees have been terminated for smoking on site previously.[90]
[90] Exhibit 22, Witness statement of Mr Gardner signed 10 November 2015 at [12]-[15], [21].
legislation
Section 19(2) of the Act provides that, subject to Pt 2 of the Act, the amount of compensation that is payable to an employee in respect of an injury is worked out using the formula:
NWE - AE
where:
“AE” is the greater of the following amounts:
a)the amount per week (if any) that the employee is able to earn in suitable employment;
b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
“NWE” is the amount of the employee’s normal weekly earnings.
The “normal weekly earnings” of an employee are determined under s 8(1) of the Act.
The term “suitable employment”, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, is defined in s 4(1) of the Act as:
a)in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
i.the employee’s age, experience, training, language and other skills;
ii.the employee’s suitability for rehabilitation or vocational retraining;
iii.where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
iv.any other relevant matter; and
b) in any other case--any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
Section 19(4) of the Act provides the following criteria that must be considered in determining the amount per week that an employee is able to earn in suitable employment:
a)where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment;
b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
f)where paragraph (b), (c), (d) or (e) applies to the employee— whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
g)any other matter that Comcare considers relevant.
consideration
Application 0567 of 2015
The respondent contends that the applicant’s ability to earn income in suitable employment has been correctly calculated as the amount that he was earning prior to the termination of his employment. The respondent further contends that as of 23 September 2014 the respondent did not have a present liability to pay compensation to the applicant under s 19 of the Act. This submission was made on the basis that the amount per week that the applicant was able to earn in suitable employment was the same as his NWE so that the amount per week of compensation payable to the applicant under the formula in s 19(2) of the Act is as follows:
$2,190.33 (NWE) - $2,190.33 (AE) = $0.00
Section 19(4) of the Act provides for matters to be considered in determining what an employee is able to earn in suitable employment. The respondent relies upon paras 19(4)(c) and (g) of the Act in support of its submission that as at 23 September 2014, it was not liable to pay compensation to the applicant under the Act.
The foremost argument that is put forward by the respondent is based upon s 19(4)(g) of the Act which provides that any other matter that Comcare considers relevant is to be taken into account. The respondent submits that the termination of the applicant’s employment and his failure to have that termination set aside by the Fair Work Commission are relevant matters for the purposes of s 19(4)(g) of the Act. The respondent contends that the applicant is asking the Tribunal to make a finding that would have the effect of negating that outcome. Such a finding, the respondent contends, would render the termination meaningless as the applicant is seeking to compel the respondent to pay him the equivalent of weekly wages in circumstances where it otherwise would not do so, nor would it have been required to do so. The respondent contends that this would place the applicant in a better position than another person whose employment was terminated and who was not eligible for compensation.
It was submitted that it could not have been the intention of the legislature, in enacting s 19(4) of the Act, to require the payment of the equivalent of weekly wages to the applicant in such circumstances. The respondent has contended, in reliance on Saag and Comcare (2006) 89 ALD 710 at 716, that it would be contrary to common sense to hold that a person who is terminated for wilful misconduct, and who does not have that termination set aside by the Fair Work Commission, to receive incapacity payments to negate the effect of the termination.
At the conclusion of the hearing the respondent lodged a USB device which was provided to the respondent by the applicant. The respondent has acted properly under its obligation of continuous disclosure in lodging the USB device with the Tribunal as soon as practicable after obtaining possession of the device. The respondent invited the Tribunal to examine the recording which is said to have been recorded by the applicant when he was interviewed by management at the time of the termination of employment. However, the providence of the recording was not confirmed by any evidence before the Tribunal and there is no consensus between the parties as to what was actually said at the time of the interview. At an adjourned hearing I ruled that it would not be fair to place any weight upon the recording in such circumstances.
The respondent submitted in closing submissions that the preferable conclusion that should be reached by the Tribunal is that the applicant was dismissed because he was smoking a normal cigarette.[91] It is submitted that this finding should be made on the basis of the evidence by Mr Smart who said that he caught the applicant smoking. However, when it was put to Mr Smart that he did not tell the applicant that he was smoking a tobacco cigarette he responded “Obviously not. I can’t remember”.[92] When it was again put to Mr Smart that at the meeting he did not raise with the applicant that he was smoking a tobacco cigarette he replied that he could not recall. I can conclude that at the meeting Mr Smart had not informed the applicant that he believed he was smoking a tobacco cigarette.
[91] Respondent’s closing submissions dated 13 April 2016 at [63].
[92] Exhibit A, Transcript of Proceedings: 1 March 2016 at p. 101.
When the applicant gave evidence he stated that on 15 September 2013 he was smoking a vapour cigarette.[93] The applicant was smoking a vapour cigarette when he saw Professor Steadman on 21 July 2015. It would not be fair for me to find that the applicant was smoking a tobacco cigarette when it was not put to him in cross-examination that he was smoking a tobacco cigarette. It is also not fair for me to conclude that even if the applicant was smoking an e-cigarette, he would be doing so in breach of the policy of the respondent. It is not clear that there is a policy of the respondent which prohibits the use of e-cigarettes. Mr Gardner in his statement of 10 November 2015, which was made more than a year after the incident of 23 September 2014, states that he has reviewed the policy and that it does not specifically refer to e-cigarettes.[94]
[93] Exhibit A, Transcript of Proceedings: 29 February 2016 at p. 41.
[94] Exhibit 22, Witness statement of Mr Gardner signed 10 November 2015 at [14].
In any event I do not consider that it is part of my enquiry to make any findings of fact as to whether the respondent was justified in terminating the applicant’s employment. In Telstra Corporation v Lyons (2003) 132 FCR 548 RD Nicolson J emphasised at 554-555 that it is important to have regard to the objects of the Act which are the provision of rehabilitation and worker’s compensation. The Full Court of the Federal Court of Australia explained in Comcare v Line (2002) 124 FCR 337 at 346-347 that the policy objects of the Act can be defeated where an employer terminates the employment of an employee and “thus removing the duty to provide suitable employment provided for in s 40(1)”.
One matter that must be considered is for how long the applicant has been prevented from returning to the workplace by his injuries. In his report dated 7 July 2015 Professor Steadman opined that “one would expect complete resolution in the fullness of time. Functionally one would consider him capable of returning to work although the elbow may be painful with different activities and this is unlikely to abate easily in the near future”.[95] In this report Professor Steadman has used the expression “resolve” to indicate when an injury has healed.
[95] Exhibit 8, Medical report prepared by of Associate Professor Steadman, Consultant Orthopaedic Surgeon, dated 7 July 2015 at p. 6.
At the hearing Dr van de Walt was questioned about when the applicant could be expected to have recovered from the lateral epicondylitis condition. Dr van de Walt agreed with the proposition which was put to him by the respondent that the condition is usually expected to settle down after about six months of being taken away from the provoking activity but he also stated that some people have symptoms for many years and are considerably disabled from doing their work.[96] There is no cogent evidence that the condition would have resolved itself by the date of the hearing. The Tribunal makes such an inference in respect of the condition of the applicant as Dr Van de Walt under cross-examination remarked that the longer the symptoms have lasted the more difficult it is to cure all the symptoms by operating on the elbow.[97] In his report dated 3 October 2014 Dr Journeaux had recommended surgical exploration of the elbow but this recommendation was not adopted.[98]
[96] Exhibit A, Transcript of Proceedings: 1 March 2016 at p. 75.
[97] Ibid.
[98] Exhibit 2, T-Documents – 2015/0567, T39 at p. 118.
An alternative argument which is put forward by the respondent is based upon s 19(4)(c) of the Act. It is contended that the applicant’s incapacity payments should be reduced to $0.00 because he unreasonably failed to continue in suitable employment. The respondent quite properly appreciates that this issue depends upon the applicant having received an offer of suitable employment.
The respondent contends that the applicant received an offer of suitable employment which was made as part of the rehabilitation program that was provided to the applicant. In this regard the respondent contends that the word “employment” in the phrase “suitable employment” simply means the actual employment or job that an employee was engaged in at a particular time. In support of this contention the respondent relies upon remarks of Rares J in Simmons v Comcare (2013) 134 ALD 522 at 529. However, in Simmons His Honour was considering the use of the expression “the employment in which he or she was engaged” in s 8(10)(b) of that Act. The question that I have to determine is quite different as “an offer of suitable employment” is quite different from employment in which a person is engaged.
The respondent contends that the word “employment” is qualified only by the suitability criteria provided in s 4(1) of the Act. The respondent further contends that the Act does not provide that duties provided to an employee in a rehabilitation program cannot amount to “suitable employment” for the purposes of s 4(1) as it would have said so if this was the intention of the legislature.
The respondent has raised the issue of whether the language in the definition of “suitable employment” in s 4(1) of the Act is broad enough to encapsulate suitable duties offered to an employee as part of a rehabilitation program. In my opinion the Act makes a clear distinction between a “rehabilitation program” and “suitable employment”. Both of these terms are defined in s 4(1) of the Act. There are a number of provisions in the Act which are important. I refer to s 19(4)(d) of the Act which refers to “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;”. In s 19(4)(d) of the Act, Parliament has made a clear distinction between “suitable employment” and a “rehabilitation program”. Another example where Parliament has made a clear distinction between “suitable employment” and a “rehabilitation program” is in s 40(1) of the Act which provides that where an employee is undertaking or had completed a rehabilitation program, the employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.
At the time of the termination of the applicant’s employment he was still undertaking a rehabilitation program which had an end date of 17 January 2015 with a proposed date of 17 December 2014 to achieve to return to working his pre-injury hours.[99] At the time of the termination of his employment while he was still undertaking a rehabilitation program he was not undertaking suitable employment. The circumstances of this application differ from the factual matrix in Lyons and Telstra Corporation (2001) 66 ALD 159 where the applicant had been cleared for full-time light duties. I find that the offer of a rehabilitation program, which was certainly accepted by the applicant, was not an offer of “suitable employment” under the Act.
[99] Exhibit 5, Respondent’s book of rehabilitation documents at pp. 75-76.
I should record that the applicant does not challenge the rehabilitation program that was given to him. The respondent at the hearing pointed out that the applicant had not sought reconsideration of the rehabilitation program.
It is unnecessary for me to consider whether the applicant “failed to engage, or continue to engage, in that employment” for the purposes of s 19(4)(c) as I have found that the rehabilitation program was not suitable employment.
The amount of AE in the formula in s 19 of the Act is $0.00 as I do not consider that the applicant was able to earn anything in suitable employment. The applicant is unable to use his left arm until his elbow injury resolves. Dr van der Walt in giving evidence remarked that the preferred course is to avoid using the affected elbow.[100] The work of the applicant has involved the use of his hands as a driver.
[100] Exhibit A, Transcript of Proceedings: 1 March 2016 at p. 75.
Application No 2391 of 2015
The reviewable decision of 18 April 2015 determined that the respondent is not presently liable to pay any compensation for medical treatment under s 16 of the Act.[101] The applicant has not made any submissions in relation to this reviewable decision.
[101] Exhibit 1, T-Documents – 2015/2391, T7.
There is evidence that the applicant does not require any further medical treatment. Since the reviewable decision was made Professor Steadman reported on 7 July 2015 that additional treatment is unlikely to improve the applicant’s condition.[102] Dr van de Walt in his report of 15 December 2014 expressed the opinion that there were risks that surgery could worsen the applicant’s condition.[103] In giving oral evidence Dr van de Walt confirmed that he did not recommend any surgical procedure.[104]
[102] Exhibit 8, Medical report prepared by of Associate Professor Steadman, Consultant Orthopaedic Surgeon, dated 7 July 2015 at p. 8.
[103] Exhibit 10, Medical report prepared by Dr Van Der Walt dated 15 December 2014 at p. 7.
[104] Exhibit A, Transcript of Proceedings: 1 March 2016 at p. 75.
I have decided in application no 2391 of 2015 to affirm the reviewable decision. The applicant has not made any submission that this decision should be set aside and there is no evidence which indicates that there is a need for medical treatment of the elbow condition.
Form of order
The applicant initially sought an order that the “applicant’s entitlement to compensation pursuant to section 19 of the SRCA from 23 September 2014 is $2,190.33”.[105] The reference to $2,190.33 in the submissions of the applicant is a reference to the agreed NWE component of the formula in s 19 of the Act.[106] The respondent has quite correctly pointed out that this formulation offends the principle in Australian Postal Commission v Oudyn (2003) 73 ALD 659 at 667-668 that a decision under s 19 of the Act cannot impose future liability.
[105] Applicant’s closing submissions dated 30 March 2013 at [54].
[106] See Applicant’s closing submissions dated 30 March 2013 at [5].
The applicant in the reply seeks an order that his entitlement to compensation under s 19 of the Act from 23 September 2014 to the date of determination of the proceedings is $2,190.33. The respondent had not made an objection to this form of order. However, the Act does not confer jurisdiction upon this Tribunal to make such an order. For the first 45 weeks from 23 September 2014 the amount of NWE is $2,190.33. However, after an employee has received the first 45 weeks of incapacity payments, the rate of incapacity payments is calculated under s 19(3) of the Act to be the applicable adjustment percentage which in this case would appear to be 75% of NWE. The amount of AE in the formula in s 19 of the Act is $0.00 as I do not consider that the applicant is able to earn any income in suitable employment.
decision
71. I set aside the reviewable decision of 24 September 2014 in application no 0567 of 2015 and substitute a decision that from and including 23 September 2014 until the date of this decision the applicant is entitled to compensation for incapacity for work under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). For the purpose of s 7(4) of the Act, the applicant should have been taken to have sustained the injury on 19 July 2013. The application is remitted to the respondent to calculate incapacity payments in accordance with paragraph 70 of these reasons for decision. The respondent is to pay the reasonable costs and expenses of the applicant incurred in relation to application no 0567 of 2015.
72. In application no 2391 of 2015 I affirm the decision of 18 April 2015 under review.
I certify that the preceding 72 (seventy - two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD .............................[sgd]...........................................
Associate
Dated 31 October 2016
Dates of hearing 29 February 2016, 1 March 2016, 29 April 2016 Date final submissions received 29 April 2016 Counsel for the Applicant Ms J M Sorbello Solicitors for the Applicant Morton and Morton Solicitors Counsel for the Respondent Mr P G Woulfe Solicitors for the Respondent HBA Legal
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