Danielle Fellows and Military Rehabilitation and Compensation Commission
[2012] AATA 735
•25 October 2012
[2012] AATA 735
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0961
Re
Danielle Fellows
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 25 October 2012 Place Sydney The Tribunal varies the decision under review so that it is determined that Ms Fellows has been capable, since 19 October 2011, of earning $669.47 per week in suitable employment.
.............[sgd]...........................................................
Senior Member J F Toohey
CATCHWORDS
COMPENSATION – permanent impairment of lower legs and wrists – medical evidence that applicant could work for 20 hours a week in suitable employment – applicant’s incapacity payments reduced accordingly – applicant relocated to Kuwait – applicant claimed unable to secure suitable employment in Kuwait – whether respondent liable to continue to pay full incapacity payments – relevant labour market – decision under review varied as to rate of incapacity payments but otherwise affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1999 s 19
CASES
Arnotts Snack Produces Pty Ltd v Yacob (1984) 155 CLR 171
Re Graham and Military Rehabilitation and Compensation Commission (2006) 91 ALD 175
Re Gregory John Peers and Commonwealth of Australia [1987] AATA 378Re O’Halloran and Comcare [1995] AATA 141
REASONS FOR DECISION
Senior Member J F Toohey
25 October 2012
BACKGROUND
Danielle Fellows served in the Royal Australian Air Force (RAAF) from February 1990 to September 2001. During that time, she sustained several work-related injuries. The respondent accepted liability to compensate her under the Safety, Rehabilitation and Compensation Act 1999 (the Act) for each injury as follows.
In 1999, the respondent accepted liability for chronic bilateral compartment syndrome affecting Ms Fellows’ lower legs. In 2000, the respondent accepted liability to compensate her for permanent impairment relating to that injury, and paid her a lump sum in compensation.
In 2001 and 2003 respectively, the respondent accepted liability for injuries to Ms Fellows’ right and left wrists. In 2003, the respondent accepted liability to compensate her for permanent impairment relating to those injuries, and paid her a lump sum in compensation.
After her discharge from the RAAF, Ms Fellows was paid incapacity payments under s 19 of the Act for 38 hours per week on the basis that her impairments precluded her from employment.
In about 2004, Ms Fellows commenced a rehabilitation program in Darwin where she was living at the time. As part of that program she agreed to undertake a Diploma of Professional Counselling. She started studying for the Diploma by correspondence in 2005.
In 2008, Ms Fellows and her family moved to the Hunter Valley where she continued her study by correspondence. Her rehabilitation was taken over by The ORS Group (ORS). Reports of assessments conducted by ORS in August 2008 are considered below. In short, they assessed Ms Fellow as capable of working 20 to 25 hours per week in suitable positions, and a “work conditioning program” was developed aimed at helping her to manage work related activities within the physical restrictions imposed by her medical conditions..
In June 2009, when Ms Fellows had successfully completed her “work conditioning program”, it was considered closed. In about August 2009, she and her children joined her husband in Kuwait where he had moved earlier in the year for work.
THE REVIEWABLE DECISION
On 21 September 2011, having reviewed Ms Fellows’ file, the respondent determined that she was capable of working 20 hours per week and earning, on average, $447.87 per week. On that basis, the respondent reduced her weekly incapacity payments to $499.32 as of 19 October 2011. On 29 November 2011, the respondent affirmed that decision.
In these proceedings the respondent seeks an order that the reviewable decision be varied so that it is determined that Ms Fellows is capable of earning $669.47 in suitable employment with effect from 19 October 2011. The basis of the variation sought is evidence of increased average earnings for the kinds of employment which the respondent contends Ms Fellows is capable of performing.
Other than for the proposed variation, the respondent contends that the reviewable decision should be affirmed. Although it contends that any efforts by Ms Fellows to find employment in Kuwait should be disregarded, it does not otherwise seek to revisit its determination.
MEDICAL EVIDENCE
It is not in dispute that Ms Fellows has permanent impairments of her lower legs and wrists.
Dr Susanne Homolka, occupational physician, examined Ms Fellows on 10 June 2005 and reported to the respondent that the injuries to her lower legs and wrists had stabilised, that further improvement was not anticipated, and that she was totally and permanently unfit for any form of military service. Dr Homolka reported:
[Ms Fellows] is fit for gainful full-time employment in sedentary or semi-sedentary occupations involving minimal use of her hands. Extensive writing and keyboard work should be avoided. She is currently undertaking retraining in counselling, and in my opinion is eminently suited to this occupation.
The most recent medical evidence concerning Ms Fellows’ capacity for work is from Dr Chris Whately, an orthopaedic surgeon who examined Ms Fellows in Dubai on 11 June 2012. He reported:
Ms Fellows has a partial disability but is able to perform part-time work that does not involve prolonged standing or walking. She is unable to do office work that demands full time use of a keyboard or repetitive activities with her hands. She would, however, be able to do keyboarding for short periods of time of 5-10 minutes maximum every 3 to 4 hours.
Ms Fellows disputes Dr Homolka’s assessment that she was capable of full-time employment in 2005, or now, but the respondent does not contend that she is capable of more than 20 hours per week in suitable employment. Dr Whately does not identify the number of hours of part-time work that Ms Fellows is capable of performing. However, he appears to have been provided with the ORS report which assessed Ms Fellows as capable of working 20 to 25 hours per week in suitable employment and nothing in his report contradicts that assessment.
I am satisfied, on the medical evidence, and the ORS assessment, that Ms Fellows has been, since 19 October 2011, capable of working 20 hours per week in suitable employment.
SUITABILITY FOR EMPLOYMENT
Section 4 of the Act provides:
"suitable employment", in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who 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).
ORS report August 2008
In August 2008, ORS prepared a Functional Capacity Evaluation Report and a Transferable Skills Analysis Report for the respondent.
The Functional Capacity Evaluation concluded that Ms Fellows should be capable of working 20 to 25 hours per week and was suited to light work; she could lift and carry within limits; she had unlimited tolerance for sitting, standing and kneeling, reduced tolerance for stooping and walking, and should not squat.
The Transferable Skills Analysis concluded, based on Ms Fellows’ previous employment, education and that she was currently undertaking a Diploma of Professional Counselling, that she had transferable counselling, clerical, computer, accounting, purchasing, warehousing and sales skills.
The report acknowledged that entry level counselling jobs required experience and knowledge that Ms Fellows presently lacked but which she could gain through volunteer work on completing her studies. It determined that she could work for 25 hours a week as a counsellor, accounts clerk/book-keeper and purchasing officer, in order of her preference.
On the basis of the Reports, a plan was formulated with the aim of helping Ms Fellows:
with injury management techniques for office based employment and provide her with functional work specific training to upgrade and assist her to adapt to employment based activities.
The Functional Capacity Evaluation considered that employment as a purchasing officer, book-keeper/accounts clerk and community services worker would be suitable.
ORS report July 2012
In July 2012, ORS undertook a further transferable skills analysis and a labour market review based on documents provided by the respondent including Dr Whately’s report. The respondent asked for a report on labour market availability in Australia and Kuwait.
The ORS report identified suitable employment for Ms Fellows as an accounts clerk, a purchasing officer and counsellor. In relation to the first two, the report noted that such positions require moderate, or better than moderate, reading and writing skills and data entry and suggested means by which Ms Fellows might overcome any barriers including use of voice recognition software, taking breaks and work station assessment. It noted that many counselling roles do not require extensive keyboarding or repetitive hand movements. It identified a number of particular positions that Ms Fellows would be capable of doing.
According to the ORS labour market analysis for the Hunter/Newcastle region in 2012, the employment outlook for administrative assistants is “fair” and the mid-term potential for new jobs is “below average to average”; for bank officers the outlook is “stable” and the mid-term potential for new jobs is “below average to average”; for recruitment consultant/personnel officer positions, the outlook is “good” and the mid-term potential for new jobs “average”. The position was roughly similar for other positions including counselling positions.
The report concluded that, on the basis of its research, there was “no doubt” that Ms Fellows:
would have secured suitable and durable paid employment within the community services sector using her [diploma] with her current skills set in a range of her vocational and personal interests and within her medical restrictions.
Finally, the report identified a number of advertised counselling positions in Kuwait but noted that all required a Master’s Degree in psychology, reflecting an American standard in the Middle East. However, it noted that two-thirds of the population in Kuwait is ex-patriot and suggested Ms Fellows make contact with the ex-patriot groups it identified. The report concluded it would not be unreasonable for Ms Fellows to obtain part-time administrative work, depending on her visa status.
Ms Fellows’ evidence
Ms Fellows says she undertook the Diploma of Professional Counselling after her rehabilitation provider at the time identified it as suitable. She says had no choice in the matter but she does not suggest it was an unsuitable pursuit. She spent approximately 18 months in the Hunter Valley region after completing her study. She says ORS failed to help her find a position; they contacted a number of agencies, only one of whom would employ a person with a diploma only, and then only with extensive on-the-job training and previous experience.
After that, Ms Fellows says, ORS tried other avenues none of which was appropriate. They managed to find her “about half a dozen jobs”, all of which she applied for without success.
In early 2009, Ms Fellows’ husband was offered a position in Kuwait with an attractive salary. They decided he would take the position; she would stay in Australia and try to find work and she and the children would join him in time to start the new school year in the northern hemisphere.
Ms Fellows gave evidence that she continued looking for work; she went to the Salvation Army and the Wesley Mission and checked their websites once a week. She says she applied for counselling and related positions but was not even offered an interview. She also applied for supervisory and mentoring positions “in the social services field” but had no response. She says she applied for “anything that could even be vaguely construed as suitable”. She says her husband then asked her and the children to join him in Kuwait, which they did in about late August 2009.
Ms Fellows says she was led to believe by the ex-patriot community in Kuwait that she would have no problem finding suitable employment but found that her qualifications were not sufficient for employment. She says she is applying for “half a dozen jobs a week” without success. She has not sought work in Australia since moving to Kuwait.
In August 2011 Ms Fellows received correspondence from the respondent to the effect that her situation was to be reviewed. She contacted the respondent and advised she had been looking for counselling positions in Australia and Kuwait but she was “physically incapable of performing most jobs that were designated sedentary because of the manual dexterity component”.
Ms Fellows says the respondent has based its decision on inaccurate and incomplete reports from ORS. She says the most recent ORS report from July 2012 was prepared by someone who had no first-hand knowledge of her. However, although she maintains she could cite “a plethora of jobs” she has applied for, Ms Fellows has not produced evidence of applications or even identified those positions other than in the broadest terms. She says she cannot produce that evidence because all her paperwork is packed away in boxes in Australia but I would still expect her to be able to provide more information about the positions she applied for than she has. Her failure to do so suggests her efforts were less than she claims.
Although Ms Fellows says she remained in Australia when her husband went to Kuwait so that she could look for work, her evidence is that she would remain here until the children were to start the school year in August 2009. I am not satisfied that it was her desire to secure suitable employment that kept her in Australia, or that it was her inability to secure suitable employment to led to her packing up and joining her husband. It is reasonably clear that she would be joining him in any event and that the local labour market was not the driving factor. In the meantime, she continued to be paid incapacity payments on the basis of a 38 hour week.
WHICH IS THE APPROPRIATE LABOUR MARKET?
Section 19(4) of the Act provides that, in determining the amount per week that an employee is able to earn in suitable employment, the respondent shall have regard to factors including:
(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 (emphasis added);
Ms Fellows contends that the appropriate labour market for the purpose of s 19(4)(e) is wherever a person is residing. The respondent contends that the appropriate labour market is not Kuwait but Australia.
There is little authority on the location of the relevant labour market for the purposes of s 19(4)(e).
In Re O’Halloran and Comcare [1995] AATA 141, the applicant had retired on grounds of invalidity. Her marriage ended and she returned to Northern Ireland to be with her elderly mother. The Tribunal found she was not capable of engaging in any employment. It was not required to determine – and did not appear to consider – where the relevant labour market was.
In Re Graham and Military Rehabilitation and Compensation Commission (2006) 91 ALD 175, the applicant was discharged as medically unfit. After some efforts to find employment in Canberra, where he was living, he moved to his family home in rural New South Wales. The Tribunal found he was partially incapacitated; he was capable of suitable employment but had not been able to earn because he was unable to compete successfully for suitable employment, or any employment, on the open labour market. It found the Commonwealth’s failure to provide him with any rehabilitation or suitable employment after his discharge was a material factor in his ongoing incapacity. The Tribunal found it was reasonable for him to relocate given the difficulty he had finding any employment in Canberra, but did not have to determine where the location of the relevant labour market.
The respondent relies on the decision of the Tribunal in Re Gregory John Peers and Commonwealth of Australia [1987] AATA 378. Mr Peers resigned from the Royal Australian navy after several workplace injuries and joined his fiancée who had been posted overseas. After they married, he accompanied her on a series of overseas postings. His visa precluded him from working in some locations and he had varying difficulties in the few positions he did obtain. He tried to find employment overseas and applied for several positions in Australia for which it seems his qualifications and experience did not equip him. There was medical evidence that he was fit for routine clerical duties. He had not sought jobs in that market.
The Tribunal found that Mr Peers was entitled to compensation for partial incapacity, at a time when he had a reduced capacity to work by reason of his work-place injuries but, because he had accompanied his wife overseas, he was not available for employment in a normal labour market in Australia. The Tribunal referred to the decision in Arnotts Snack Produces Pty Ltd v Yacob (1984) 155 CLR 171 at 178 where the High Court said:
[The principle is] that the concept of partial incapacity for work is that if reduced physical capacity, by reason of physical disability for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.
Mr Peers had registered with the CES and applied for a job in Australia which he had no hope of getting. The Tribunal said that, in any event, there was no evidence to suggest he would have taken it at a time when his wife was posted overseas. He had applied for a clerical job in the public service but, in the particular circumstances, that should be regarded as an application to take up work on returning to live in Australia and should be disregarded as indicating an intention to work until then. The Tribunal said at [38]:
As I see it, on these facts, the applicant by removing himself from any labour market which was reasonably open to him made it impossible for him to show consequent economic loss of wages.
I accept the respondent’s submission that the appropriate labour market in this case is in Australia, in particular, around the Hunter/Newcastle region. That is not to say that an overseas location could not be the appropriate labour market in a particular case. In Ms Fellows’ case, however, I find that she removed herself from a location where suitable employment was reasonably open to her. Unlike the applicant in Graham (above), suitable employment has been available and reasonably open to her, within her limitations, since October 2011. Having removed herself from that labour market, albeit for understandable reasons, she cannot now claim consequent loss of wages.
THE RATE OF PAYMENT
The July 2012 ORS report identified “a significant growth in starting earnings” for counsellors to a weekly full-time average of $1,575.00 at August 2011; average weekly full time earnings for accounts officers of $994.00, and $1,247.00 for purchasing officers. These rates averaged $1,272.00 at August 2011. No evidence to the contrary has been submitted by Ms Fellows.
On this basis, the respondent says, Ms Fellows should be assessed as capable of earning $669.47 per week, being the rate for 20 hours employment per week (rather than 25 hours which was the upper range identified in the ORS report.)
I accept the evidence in the ORS report and am satisfied that Ms Fellows is capable of earning $669.47 per week in suitable employment and that her incapacity payments should be assessed on that basis.
CONCLUSION
I am satisfied, on the evidence before me, that Ms Fellows was at the relevant time, and remains, capable of working 20 hours per week in suitable employment. I am satisfied that suitable employment was open to her in a location where she might reasonably be expected to work.
The decision under review is varied so that it is determined that Ms Fellows has been capable, since 19 October 2011, of earning $669.47 per week in suitable employment.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of ...........[sgd].............................................................
Associate
Dated 25 October 2012
Date(s) of hearing 30 July 2012 Date final submissions received 16 August 2012 Applicant In person Counsel for the Respondent Mr B Kelly Solicitors for the Respondent Sparke Helmore
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