Davies and Comcare - [2007] AATA 1829

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1829

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A 2005/150

GENERAL ADMINISTRATIVE DIVISION		)
Re		KERRY DAVIES

Applicant

And

COMCARE

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Dr M.D Miller AO, Member

Date3 October 2007
PlaceCanberra

Decision

1. The reviewable decision made 24 June 2005, which affirmed a determination of 1 March 2005, is set aside.

2. The matter is remitted to Comcare for reconsideration in accordance with the following directions:

1) during the whole of the period from 3 December 2001 to 19 April 2006 inclusive, Ms Davies was incapacitated for work as a teacher as a result of the injury, being anxiety and depression, ongoing liability for which was accepted by Comcare on 18 July 1997;

2) the offer of employment in the Department of Defence made to Ms Davies by letter of 27 July 1999 was not an offer of suitable employment within the meaning of section 19 of the Safety, Rehabilitation and Compensation Act 1988;

3) during the period 28 September 1999 to 19 April 2006, any employment requiring Ms Davies to work in the Commonwealth, State or Territory Public Services was not suitable employment within section 19 of the Act;

4) during the period 28 September 1999 to 19 April 2006 inclusive, the self employment of Ms Davies in the business known as Bali Gardens was suitable employment within the meaning of section 19 of the Act; and

5) during the period 3 December 2001 to 30 June 2004 inclusive, the amount which Ms Davies was able to earn in employment in the business was nil.

....................................................

J.W. Constance, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – Anxiety and depression- Incapacity – Suitable employment – Failure to accept offer of employment - Whether offer of employment suitable under section 19

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19

Re Ferreira and Comcare (1995) AATA 10281
Moon v Telstra Corporation [2006] AATA 996
Re Prica and Comcare (1966) 44 ALD 45 at 51
Re West and Comcare (1994) AATA 9320
Smith v Comcare [2002] AATA 249

REASONS FOR DECISION

J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

3 October 2007
INTRODUCTION

In 1998 Ms Davies was injured whilst working as a teacher employed by the Australian Capital Territory. In September 1999 Ms Davies accepted an offer of voluntary redundancy. At the time she was not working as a result of the injury she had suffered. Following the redundancy Comcare ceased to compensate Ms Davies in respect of her incapacity, although she continued to receive compensation for treatment expenses.
In 2001 Ms Davies sought a resumption of compensation payments for incapacity. Ultimately this request was refused by Comcare on the ground that she was not incapacitated for work as a result of the injury. It was therefore unnecessary to determine the amount to which Ms Davies would have been entitled had she been partially incapacitated.
Ms Davies is seeking a review of this decision.
For the reasons which follow we are satisfied that since 3 December 2001 Ms Davies has been partially incapacitated for work as a result of the injury she suffered and is entitled to compensation in respect of that incapacity.

EVIDENCE AND FINDINGS OF FACT

Unless otherwise stated the following findings of fact are based on the evidence of Ms Davies. Having listened to and observed her give evidence we are satisfied that she is a truthful witness. We are satisfied of the facts found on the balance of probabilities.
Ms Davies commenced teaching in 1971. Before setting out on her teaching career she had a strong interest in Indonesia and the Indonesian language and as her career developed she became a highly regarded and experienced teacher. In 1985 Ms Davies commenced employment as a teacher by the ACT Department of Education and Training and for the years 1990 to 1996 inclusive she taught at Stromlo High School.
Between late November 1996 and mid December 1996 Ms Davies took a group of twenty-three students on an excursion to Indonesia. This was her eighth such excursion. When the group was in a remote part of Sumatra one of the students became extremely ill. As the teacher in charge of the excursion Ms Davies had the responsibility of evacuating him to Singapore and at the same time ensuring the safety of the other students on the trip. The condition of the student was such that at times he lost consciousness and stopped breathing during the evacuation. It is clear that the situation experienced by Ms Davies, particularly the twenty-four hours which it took to evacuate the student, was extremely stressful.
When Ms Davies returned to her school following the excursion she received minimal assistance in dealing with the aftermath of her experience. The manner in which the incident was treated by her employer caused her to feel that she had done something wrong in the way in which she had managed the situation with which she had been confronted.
In February 1997 Ms Davies sought the assistance of a psychologist to assist her to cope with the stress she was experiencing as a result of the Indonesian trip. She also consulted her general practitioner, Dr Gow, who diagnosed that she was suffering anxiety and depression due to work-related stress associated with the excursion and with the unsupportive environment at the school.
In May 1997 Comcare accepted liability to compensate Ms Davies for a closed period in relation to anxiety and depression. By mid June 1997 Ms Davies was too ill to continue teaching and she took sick leave. In July of that year liability was accepted in relation to ongoing anxiety and depression.
Ms Davies’ relationship with her employer was further damaged in July 1997 by its response to Comcare in relation to her claim for compensation. Ms Davies felt outraged by the manner in which her employer responded to her claim and felt she was being treated with contempt.[1] Her written comments to Comcare’s response made in August 1997 support her evidence as to the way she felt at the time.[2]
[1] Transcript 12.6.07 p-30.
[2] Ex. A6.
In October 1997 Ms Davies first consulted Dr Saboisky, Consultant Psychiatrist, on referral by Dr Gow. Dr Saboisky reported that, following further consultations in November and December 1977:
“I believe that she has a primary diagnosis of Post Traumatic Stress Disorder but a co-morbid diagnosis of Major Depressive Disorder. These often go together.
I believe the aetiology of the condition relates to her experiences in dealing with the crises in Indonesia when a student of hers had a life-threatening condition in an isolated village. I further believe that her psychological symptoms were worsened by her perceived inadequate departmental response to her and her students [sic] needs." [3]

At the time of the report (January 1998) Dr Saboisky was optimistic that Ms Davies would be able to return to full-time employment as a teacher but felt that it would take six to twelve months to achieve this outcome. He also reported that Ms Davies had “progressively begun to feel mistrustful of the system”.[4]

[3] Ex. R4.

[4] Ex. R4

For six months commencing in March 1998 Ms Davies worked part-time at Birrigai, an Outdoor School in the Territory. This position was arranged as part of her rehabilitation program and did not involve her in teaching duties. This part of the program was not successful. Ms Davies was unable to deal with the hierarchy of the Department and she continued to feel as though she had done something wrong.[5] She continued to feel a sense of mistrust towards the Department and had difficulty coping emotionally.[6]
[5] Transcript 12.6.07 p-28.
[6] Ex. A7, document T58.
Towards the end of 1998 Ms Davies reached the conclusion that to enable her to adequately cope with what had happened she should seek employment outside the Department of Education. She applied for a number of jobs in both the Commonwealth and Territory Public Services but her applications were unsuccessful. At this time Dr Saboisky reported that Ms Davies “remains consumed with the injustice of what happened……” [7]
[7] Ex. R6.
At about the same time Ms Davies began to consider setting up a garden design business as an alternative to returning to teaching. She discussed this with Mr McMaster, her Rehabilitation Officer, who assisted her to enrol in a course designed for people who have been made redundant and who wish to establish a small business.
On 31 October 1998 Ms Davies wrote to Comcare seeking advice as to her entitlement to ongoing compensation in the event of her resigning from employment by the Territory.[8]
[8] Ex. A8.
Ms Davies attended the small business course in February and March 1999.
During the first half of 1999 Ms Davies and her husband further investigated the prospects of her establishing a business. Ms Davies obtained the consent of her employer to her conducting the business. She arranged finance and ordered artefacts from Indonesia and she commenced business on 1 July 1999.
On 5 July 1999 Ms Davies wrote to Comcare, in part as follows:
“ I would like to advise you that my husband and myself have completed a feasibility study and initial arrangements, including some financial commitment, for the development of a business involving marketing of Indonesian artefacts, advice on Indonesian-type landscaping, and the provision of support services to teachers of Indonesian.
At this stage there has been no income from the business, in which I will play a primary role. I would expect that some small initial income will be obtained in the next few weeks." [9]

Ms Davies had arranged finance and ordered artefacts from Indonesia and the business in fact commenced at the beginning of July 1999.

[9] Ex. A9.

On 13 July 1999 Ms Davies wrote to Comcare advising that she wished to cease receiving compensation. The email included the following:
“I cannot return to my normal work...I am at the stage of "new work, new employer" but want to employ myself (don’t trust anyone and I'm almost 50 yrs of age)." [10]
[10] Ex. A11.
Shortly before 27 July 1999 Mr McMaster spoke to Ms Davies and advised her that he was obliged to offer her a position that he had been seeking for her for a long time. He further advised Ms Davies's that he had a friend in the Defence Department and that as a personal favour he had asked him to provide her with a trial to see how she would go. He then said words to the effect "if you take this, then Kerry -- then you'll be able to get better jobs in the public service because this will give you …… office experience." [11]

Prior to this, neither Comcare nor the Department had offered any form of work placement to Ms Davies since she had finished working at Birrigai in September 1998.

[11] Transcript 12.6.07 p-44.

On 27 July 1999 Mr McMaster wrote to Ms Davies. In part, he advised her:
“I am writing to formally advise you of an offer of employment with the Publishing Unit, Department of Defence for a three-month period commencing Thursday 29 July 1999. As we have discussed this placement, you are aware that the duties meet the restrictions certified by your treating specialist Dr Saboisky, that you commence on a half time workload. The restrictions on the duties of the position being offered have been discussed with you, your rehabilitation provider and your treating specialist.
I am obliged to advise you that refusal to take up an offer of suitable duties while on a return to work program under the Safety, Rehabilitation and Compensation Act 1988, may lead to suspension of your entitlements under that Act. That is, if you choose not to take up the offer of suitable duties, Comcare will be advised and will make a decision as to whether your compensation for time off work and medical expenses should be suspended." [12]

This offer was made on behalf of the Department.

[12] Ex. A12.

At the time the above offer was made, the Department, Comcare and Ms Davies were all aware that mediation between the Department and Ms Davies had been arranged for 4 August 1999. Ms Davies considered that the mediation would provide her with an opportunity to clear her name and to endeavour to determine what her future would be with the Department. In a document forwarded by the Department to Ms Davies prior to the mediation, the Department stated that it was seeking "an outcome by mediation which will bring closure to all of Kerry's concerns which relate to her outstanding grievances against the department and its officers" and that it was seeking her "cooperation in making a return to work with a view to resolving her ongoing claims to compensation as far as is possible." [13]
[13] Ex. A14.
Attached to the letter of 27 July 1999 was an "Offer of Suitable Duties" form which Ms Davies completed and returned to Mr McMaster on or shortly after 28 July 1999. When she completed the form Ms Davies crossed out the words "I understand that refusing to accept the offer of suitable duties as part of my return to work plan may affect my entitlement to compensation" and inserted “ I understand that my future employment will be discussed at mediation on Wed 4 Aug." Further, in response to a statement in the form "If you do not accept this offer of employment, please provide the reason " she stated:
“The decision on my future status with the Education Dept and Defence will be determined on the mediation date set by the Dept on Wed 4th August." [14]
[14] Ex. A13.
At the mediation the issues of concern to Ms Davies were resolved. In addition the Department offered Ms Davies a voluntary redundancy package which she accepted. This was the first time such a package had been offered to Ms Davies. Ms Davies ceased employment by the Territory in mid September 1999.
Mr McMaster gave evidence. His relevant academic qualification is a Bachelor of Social Science Applied Psychology. From February 1998 until August 1999 he was Ms Davies’s Rehabilitation Case Manager. At that time he was employed by an accredited rehabilitation provider under the Safety, Rehabilitation and Compensation Act 1988. He impressed us as an honest witness and we are satisfied on his evidence and the documents before us that he had the expertise and experience to express an opinion as to Ms Davies’ prospects of rehabilitation following her injury. We accept his evidence.
Mr McMaster advised Ms Davies that it may be useful for her to enrol in the small business course which she undertook in 1999. He said that “…… the fact that she wasn't coping there [at Birrigai] was quite problematic, and that was at the point that the alternative self-employment, which had always been in the background and I had to explore so that it was something that was looked at realistically I hoped, could then be engaged at the end if the return to the public service wasn't going to work." [15]
[15] Transcript 13.6.07 p-94.
On the basis of the evidence of Mr McMaster we are satisfied that:
·the position which was offered by the Department to Ms Davies was available as a result of negotiations with the Department of Defence by Mr McMaster;
·at the time both the Commonwealth and the Territory Public Services were downsizing and it was very difficult to find employment in either Service;
·the position became available as a result of the occupant of the position (a client of Mr McMaster) resigning “because of what was going on over there [at Defence] and the downsizing[16]
·there was no specific job that had a position number to which Ms Davies could be gazetted;
·at the end of the three month placement there was no guarantee of a job for Ms Davies; and
·about twelve months after the offer was made the work of the Printing Unit was outsourced and all employees lost their jobs.
[16] Transcript 13.6.07 p-95.
Mr McMaster described the proposed placement as “simply an opportunity to increase transferable skills, get her face known, build her résumé and have an opportunity to transfer from a teaching position into a more administrative role".[17] He described the discussions with Ms Davies as a “process for a trial.” [18]
[17] Transcript 13.6.07 p-95.
[18] Transcript 13.6.07 p-110.
It was put to Mr McMaster that Ms Davies was exploring other options and wanted to put the job offer on hold until she saw what happened at the mediation. He did not agree with this proposition, and said that in his understanding Ms Davies “was feeling too fragile again to put herself in a position where, if she wasn't able to do the work because of her emotional status, she would prejudice her opportunity."
Dr Gow has been Ms Davies’s general practitioner since 1983. He gave evidence, which we accept, that on 29 July 1999 Ms Davies told him that she had been offered a job in the Department of Defence but that she intended to resign.
When Ms Davies’ employment by the Territory ended Comcare ceased compensating her for loss of income, but has continued to pay compensation for medical treatment.
In June 2001 Ms Davies consulted Dr Veness, Psychiatrist. Dr Veness gave some evidence by telephone. During cross-examination he appeared to become annoyed by questions being put to him by Counsel for Comcare and he terminated the call. We were later informed by Counsel for Ms Davies that Dr Veness had informed him that his emotional state did not permit him to continue to give evidence. As neither party sought an adjournment or that a summons be issued to Dr Veness the hearing was concluded without further evidence from the Doctor. In these circumstances we have disregarded the evidence of Dr Veness in reaching our decision.
In August 2005 Ms Davies was assessed by Dr Lucas, Consultant Psychiatrist, at the request of Ms Davies’s solicitors. At that time Dr Lucas was of the opinion that:
“It is quite plain that a return to the public sector employment as a teacher or any other capacity is out of the question. She would not accept such employment and it is inadvisable from a psychiatric point of view." [19]

He was also of the view that if Ms Davies was forced into such employment the employment would fail. Additionally, he is of the opinion that it would cause deterioration in her psychiatric condition, particularly the depression, and may exacerbate the symptoms of post-traumatic stress disorder. He thought that the situation would not have changed since August 1999, although he did not see Ms Davies at that time.

[19] Ex. A21.

Ms Davies was assessed by Dr Harrison, Psychologist, in July 2003 at the request of Ms Davies’ solicitors. From October 2003 Dr Harrison provided Ms Davies with psychotherapy treatment and at the time of the hearing this treatment was continuing.
A report of 25 July 2003 by Dr Harrison is in evidence.[20] In July 2003 Dr Harrison diagnosed Ms Davies as suffering from chronic Post Traumatic Stress Disorder and chronic Major Depression of moderate severity, in partial remission.
[20] Ex. A27.
Dr Harrison gave evidence. She has qualifications in medicine, surgery, psychiatry and has a Master of Medicine in Psychotherapy. Dr Harrison is of the opinion that in September 2005 Ms Davies still had quite marked symptoms of post-traumatic stress disorder and that the disorder was still chronic. In her view Ms Davies remains unable to deal with people in a hierarchical situation as a result of the manner in which she was treated after her return from the Indonesian trip. Further she was firmly of the view that Ms Davies would have suffered from the same condition and symptoms in July and August of 1999.
When Dr Saboisky gave evidence he was asked for his opinion as to the rationale behind Ms Davies’s decision to continue with her own business rather than to trial the work placement at the Department of Defence. Dr Saboisky was of the view that Ms Davies “was very unhappy with having to deal with bureaucracies, generally, particularly the Department of Education. And so ……she was very ambivalent …… “Will I or wont I go into another bureaucratic situation?" So my feeling at the time was that she could have managed a graduated return to work in another government department, but it was her choice not to and she chose instead to run her own business. There was no psychiatric reason, at the time, that she couldn't have, at least, attempted a graduated return to work or a work placement in another department."[21]

Dr Saboisky also said that he did not know whether Ms Davies would have relapsed into depression had she gone into a bureaucratic structure at the Department of Defence or elsewhere, although at the time she was functioning a lot better than formerly. This was a result of a process of psychological counselling and medication.[22] He thought that there was a “fair chance” (i.e. better than 50 percent) that Ms Davies could have been gainfully employed at the Department of Defence.[23]

[21] Transcript 30.7.07 p-4.

[22] Transcript 30.7.07 p-10.

[23] Transcript p-14.

In September 2005 Ms Davies was examined by Dr Skinner, Consultant Psychiatrist, at the request of Comcare’s solicitors. Dr Skinner provided two reports[24] which we have considered.
[24] Ex. R2 and R3.
In the opinion of Dr Skinner Ms Davies was not suffering from a psychiatric illness in September 2005 and had recovered from the anxiety and depression from which she suffered by late 1998. In her view the running of the Bali Gardens business involved duties of an equivalent nature to those required of a school teacher and required an equivalent level of intellectual input.[25] Dr Skinner considers that Ms Davies is capable of performing work as a teacher and does not suffer an incapacity for work; her failure to return to her teaching duties was simply as a result of her reluctance to do so. Notwithstanding this view Comcare has continued to compensate Ms Davies for treatment expenses.
[25] Ex. R2.

ISSUES FOR DETERMINATION

The first issue for determination is whether Ms Davies was wholly or partially incapacitated for work between the time she was made redundant (28 September 1999) and the time she suffered a stroke (19 April 2006). The question of liability to compensate Ms Davies for incapacity subsequent to 19 April 2006 is not before us.
Section 19 of the Act provides for the payment of compensation to an employee who is incapacitated for work as a result of an injury.
Subsection 4(9) provides:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
It is agreed that Ms Davies is not incapacitated to engage in all work, and so the issue arises whether she is incapacitated to engage in work “at the same level” at which she was engaged immediately prior to the injury occurring. If it is decided that she was able to engage in work at the same level as she had prior to her injury for all or part of the period, it follows that there was no incapacity during that period or part of it.
If it is decided that Ms Davies is partially incapacitated for work the next question is the proper basis for determining the correct rate of compensation payable. This in part depends on a determination of the amount per week Ms Davies was able to earn in suitable employment in the subject period.
Subsection 19(4) provides in part:
“(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)     where the employee is in employment (including self‑employment)—the amount per week that the employee is earning in that employment;
(b)     where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment………….
(g)     any other matter that Comcare considers relevant.”
“Suitable employment” is defined in subsection 4(1):
“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).”

DETERMINATION OF THE ISSUES

A. Between 28 September 1999 and 19 April 2006 did Ms Davies suffer an incapacity to engage in work at the same level at which she was engaged by the Commonwealth immediately prior to her being injured?

A point was raised by Counsel for Ms Davies that she was not employed by the Commonwealth but by the Territory. However under section 4A of the Act the Territory has been declared a Commonwealth authority for the purposes of the Act.
It is clear that in deciding whether an injured employee has been able to engage in work “at the same level’ one looks at the nature and quality of the work being done, rather than the grade or salary level: Re Prica and Comcare (1966) 44 ALD 45 at 51; Smith v Comcare [2002] AATA 249 at paragraph 85; Moon v Telstra Corporation [2006] AATA 996 at paragraph 19.
Comcare has argued that Ms Davies “has demonstrated, by the choice she made in running the business, and in offering within that business tutoring and lecturing roles, the ability to work at the same level as she had worked previously as a teacher.” [26] There was some support for this argument by Dr Skinner who expressed the opinion that the running of Bali Gardens involved the equivalent duties and intellectual input as teaching.
[26] Transcript 30.7.07 at p-54.
We do not accept this argument. Prior to her being injured Ms Davies was working as a very experienced teacher of high school students, specialising in the teaching of the Indonesian language and culture. She had conducted several student excursions to Indonesia as part of her teaching program. To reach this level of teaching she had obtained tertiary qualifications. In comparison, the establishment and operation of Bali Gardens required no experience or qualifications and in fact the only training Ms Davies had undertaken was the six week business course.
We have considered a report prepared by Mr Bilboe, Psychologist, in 2006, [27] in which he compares the role and functions of a Level 1 teacher and Ms Davies as the owner/operator of Bali Gardens. Apart from the stated function of “conducting professional development seminars and workshops for teachers” the functions identified by Mr Bilboe are not similar. His opinion does not support Comcare’s contention. We do not accept the opinion of Dr Skinner as she did not have detailed information to form such an opinion and in any event was not appropriately qualified to express it.
[27] Ex. R7.
We are satisfied that during the whole of the period under consideration Ms Davies had some capacity to work but that she was incapacitated to the extent that she was unable to work at the same level as she did immediately prior to the injury.

B. What amount, if any, was Ms Davies able to earn in “suitable employment”?

B.1. What was the effect of Ms Davies’ injury on her ability to engage in employment?

Before considering the legal position it is necessary to decide the extent to which the injury affected Ms Davies during the period September 1999 to April 2006. Comcare concedes that Ms Davies was unfit to work in the Department of Education. We are satisfied on the evidence that this was a proper concession to be made.
The views of the professional medical witnesses as to Ms Davies’ state of health at the time she took the voluntary redundancy in September 1999 and afterwards varies substantially.
As the treating psychiatrist who had the considerable advantage of being able to asses Ms Davies at the time, Dr Saboisky was a persuasive witness whose opinions are entitled to very careful consideration. In his opinion at the time Ms Davies was in a fit state to trial employment in a public service position which involved her working in a traditional hierarchical structure. This view was supported by Dr Skinner, although on the basis that Ms Davies would have recovered from her injury by late 1998 and was capable of returning to her work as a teacher in the Education Department.
The alternative view was that put by Dr Harrison that in August-September 1999 Ms Davies was suffering from post traumatic stress disorder and chronic depression and that these conditions were continuing in April 2006. Dr Harrison did note that the depression was in remission in July 2003. She was of the opinion that Ms Davies continued to be unable to deal with people in a hierarchical structure throughout the period until April 2006. We were impressed by the clear and logical manner in which Dr Harrison explained her opinions. Her views were supported by Dr Gow and Dr Lucas.
Having considered the varying views we are satisfied that, during the whole of the period from the time she was made redundant until she suffered the stroke, Ms Davies was incapable of employment in a hierarchical structure such as a Public Service, be it Commonwealth, State or Territory. Whilst we accept that Ms Davies may have been able to attend such employment for a period, we are satisfied that any such period would have been very short and the attempted return to work in this environment would have failed. As a matter of common-sense capacity to work must include a capacity to maintain the working relationship on an indefinite basis.
In preferring the opinion of Dr Harrison over that of Dr Saboisky we have taken account that although she did not have the advantage of assessing Ms Davies in 1999, Dr Harrison did commence treatment of Ms Davies in July 2003 and has continued to treat her since that time. Dr Harrison has the advantage of having been able to assess Ms Davies over a period in excess of five hundred hours. We are satisfied that with her qualifications and experience, Dr Harrison was in a position to properly assess Ms Davies’s condition in September 1999. Dr Gow, who was treating Ms Davies at the time, and Dr Lucas support her view.
In considering the views of Dr Saboisky we have taken into account that his opinion was that there was no psychiatric reason why Ms Davies could not at least attempted a graduated return to work (our emphasis). He said that it was “his feeling” that she could have managed a graduated return to work in another government department and that there was a “fair chance” that she could have been gainfully employed in the Department of Defence. We were left with the impression that Dr Saboisky was in considerable doubt that Ms Davies would succeed in working in the hierarchical environment being proposed. Nevertheless we accept without hesitation that he would not have supported the proposed trial if he had thought that it would have caused Ms Davies any further injury. However this is not the same as saying that the experiment was likely to succeed. On the balance of probabilities we are satisfied that it would have failed.
We have also taken into account the evidence of Mr McMaster. Although he proposed the work trial he was of the view that Ms Davies “was feeling too fragile” to accept the position. This is consistent with Ms Davies’s evidence that she knew at the time that she could not accept the Defence position.[28] We also take into account that although Ms Davies was able to participate in the return to work plan at Birrigai for six months, ultimately this trial failed.
[28] 12.6.07 p-74.
B.2. What was “suitable employment “for Ms Davies?
As Ms Davies terminated her employment by accepting the offer of redundancy, sub-paragraph (b) of the definition of “suitable employment” applies and any employment, including self-employment, can be considered; Re West and Comcare (1994) AATA 9320.
At times the argument before us proceeded as if we were required to decide whether Ms Davies should have accepted the offer of the position in the Department of Defence. This is not a relevant consideration. When Ms Davies was faced with the choice of accepting the offer of the position at the Department or accepting the offer of redundancy and continuing to operate her own business, the choice was hers to make. The only relevant question in relation to the position at the Department was whether it is to be considered “suitable employment” for the determination of the compensation payable during all or part of the period of incapacity.
Although the health of an injured employee is not directly referred to in subparagraphs (i)-(iii) of the definition of suitable employment, clearly it is a relevant consideration under subparagraph (iv): Re Ferreira and Comcare (1995) AATA 10281. On the basis of our finding that Ms Davies’ continued to suffer from a condition which prevented her taking up the position in the Department of Defence, we are satisfied on that ground alone that the offer was not one of suitable employment and therefore is not relevant to the determination of the amount Ms Davies was able to earn for the purpose of calculating compensation payable under section 19.
There are additional grounds on which we conclude that the Defence position was not suitable employment. The first of these is the short term of the appointment (a period of three months with some prospects, but no guarantee, of a longer period). When considering “any other relevant matters” it is necessary to take into account the employee’s circumstances at the time of the offer of employment claimed to be suitable. In this case Ms Davies had undertaken the small business course with the encouragement of her rehabilitation case manager and had invested time and money in commencing the operation of the business with the consent of her employer. Acceptance of the offer of the position at Defence would have necessitated her neglecting, if not abandoning, her business in its infancy. In these circumstances, employment for a very limited time with an uncertain future was not suitable.
Further, we are satisfied that the offered employment was not suitable as it was not commensurate with Ms Davies’ experience, training and other skills as a teacher. The evidence as to just what the position required was very limited, other than that it was in a printing unit. Ms Davies is a highly skilled and experienced teacher in a specialised area. Employment which under-utilises an employees skills is not suitable employment: Re West and Comcare.
The conclusion expressed in the preceding paragraph does not mean that the proposed position was not an appropriate form of rehabilitation. This is a separate issue and not one for us to decide. Further we should not be taken as agreeing with the argument that if an offer is of rehabilitative treatment it cannot also be an offer of employment. We are satisfied in this case that the offer made to Ms Davies was an offer of employment.
It was not disputed on behalf of Ms Davies that employment in her own business, Bali Gardens, should be regarded as suitable employment for the purposes of section 19. On the basis that the business enabled Ms Davies to utilise her experience with the Indonesian language and culture in a non-hierarchical environment we are satisfied that this was a proper concession to be made.
B.3. What amount was Ms Davies able to earn in her employment in her own business during the period 28 September 1999 and 19 April 2006?
On the basis of the report of Sinclair King of 16 August 2004,[29] we are satisfied that during the financial years ending June 2001 - 2004 inclusive, Ms Davies made a loss in operating the Bali Gardens business. We are satisfied therefore that the amount which Ms Davies was able to earn in her own business during each of the financial years referred to was nil. Although we do not have available the evidence to enable us to make such a finding, it is likely that the results for the remainder of the period under consideration were the same.
[29] Ex. A16.
We have considered the report of Mr Bilboe [30] that in his opinion Bali Gardens could be “a lucrative small business.” However this comment refers to the potential of the business rather than its earning capacity in the period under consideration and in any event, on the evidence before us, Mr Bilboe is not qualified to express this opinion.
[30] Ex. R7.

DECISION

The reviewable decision made 24 June 2005 which affirmed a determination of 1 March 2005 is set aside.
The matter is remitted to Comcare for reconsideration in accordance with the following directions:
1)     during the whole of the period from 3 December 2001 to 19 April 2006 inclusive, Ms Davies was incapacitated for work as a teacher as a result of the injury, being anxiety and depression, ongoing liability for which was accepted by Comcare on 18 July 1997;
2) the offer of employment in the Department of Defence made to Ms Davies by letter of 27 July 1999 was not an offer of suitable employment within the meaning of section 19 of the Safety, Rehabilitation and Compensation Act 1988;
3) during the period 28 September 1999 to 19 April 2006, any employment requiring Ms Davies to work in the Commonwealth, State or Territory Public Services was not suitable employment within section 19 of the Act;
4)     during the period 28 September 1999 to 19 April 2006 inclusive, the self employment of Ms Davies in the business known as Bali Gardens was suitable employment within the meaning of section 19 of the Act; and
5)     during the period 3 December 2001 to 30 June 2004 inclusive, the amount which Ms Davies was able to earn in employment in the business was nil.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.

Signed: .....................................................................................

Geoff Foley, Associate