Fagan and Comcare
[2005] AATA 533
•7 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 533
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/245
GENERAL ADMINISTRATIVE DIVISION ) Re CAROL ANNE FAGAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date7 June 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and substitutes a decision that:
(1) Comcare is liable to pay compensation to the applicant from 28 April 1997, pursuant to s 19 of the Safety Rehabilitation and Compensation Act 1988;
(2) the amount per week that the applicant is able to earn in suitable employment is nil; and
(3) Comcare will pay the applicant’s costs and disbursements of this application, as agreed, or failing agreement to be taxed by the Deputy Registrar of the Tribunal.(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – claim for work-related injury – tenosynovitis – incapacity for employment since 28 April 1997 – extent of incapacity – employment with Australian Government Public Service materially contributed to applicant’s present incapacity for work – Comcare liable to pay compensation – cease liability – suitable employment – decision set aside
Safety Rehabilitation and Compensation Act 1988 ss 4, 19, 24, 27
Woodbridge v Comcare (1994) 20 AAR 196
REASONS FOR DECISION
7 June 2005 Senior Member WJF Purcell 1. This is an application for review of a decision of the respondent (Comcare) of 9 May 2003, which affirmed a determination of 9 June 2001, that since 28 April 1997 the applicant has not been entitled to receive compensation for incapacity benefits under any section of the Safety Rehabilitation and Compensation Act 1988 (the Act).
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with exhibits tendered by the parties. The applicant, who was represented by Mr McRae of counsel, gave oral evidence, and called Dr C Mills, Occupational Physician, and Dr R Kwiatek, Rheumatologist, as witnesses. Mr Cole was counsel for Comcare, which called Dr B Byok, Occupational Physician, and Ms N Pouras, Senior Psychologist/Consultant, as witnesses.
3. The applicant, who is 61 years of age, attended Penshurst Girls High School in New South Wales to Intermediate level, and left at the age of 15. She obtained employment as a machinist, at Berlei, for 2 years, and then went to work for Griffith Brothers Teas, where she performed clerical, typing and switchboard duties. In 1962 her eldest son was born. His father was in infantryman in the Royal Australian Army (the Army), and they married on 14 December 1963. From 1962 to 1963 she worked as a receptionist/typist/secretary at Sandoz Australia.
4. On 4 April 1964 the applicant’s husband was posted to Adelaide. She did not work whilst they were in Adelaide. They went to Malaya in 1965, and in 1966 they returned to Holsworthy in Sydney. In 1968 they moved to Swanbourne in Western Australia. She worked part-time, cooking at Burger King. In 1970 they returned to Holsworthy. The applicant worked part-time, typing, and for a dry cleaner. In 1972 they moved to Wollongong, and she obtained employment delivering groceries.
5. In October 1973 the applicant’s husband was posted to Canberra, and in November 1973 she started working at the Higgins Post Office. She initially worked 20 hours a week, and later 25 hours a week. She worked behind the counter, selling, and also undertaking banking duties. She left in February 1976, because they were thinking of closing down that Post Office. She then worked behind the counter at a pie shop.
6. In June 1976 the applicant obtained full-time permanent employment with the Australian Government Public Service (the Public Service). She had applied to the Department of Defence (Defence), sat a test, and was accepted. She started as a typist, and became then a clerical assistant grade 2, in the Public Relations Department. She noticed that her shoulders started to ache at the end of the day, and also sometimes through the day. At Defence, she had been operating a heavy manual typewriter, where she had to pound to put an impression through sometimes as many as 10 copies. However, she took no medical advice. She left in October 1977, when she separated from her husband. In January/February 1978 she accepted a position as a typist, with the Australian Taxation Office (ATO) in Sydney.
7. In March and July 1978 the applicant had operations which led to a hysterectomy, later. She worked in between the operations, and went back to work 6 weeks after the hysterectomy. In October 1979 she left the ATO. As well as working full-time, she was spending approximately 3 hours per day (and sometimes more, depending on public transport) travelling to and from work. She was told by her doctor, Dr Trist, that she needed a rest for at least 6 months, and consequently she received Widow’s Pension. She could not manage financially with the high rents in Sydney, and the expense of supporting two fast growing teenage sons on the pension, so she moved back to Canberra, in December 1979. She knew she would only have approximately 20 minutes travelling time each way, in order to go back to work. She applied to Defence, in January 1980, and was again employed as a typist. From October/November 1981 she went to work as secretary to the Manager of the ACT Health Authority, but because of harassment by her ex-husband, went back to Defence in December 1981. While at the ACT Health Authority, she worked also as a cleaner, at night, in order to support her two younger sons.
8. The applicant said in evidence that she was still having problems with her arms and shoulders. She was working long hours. In 1980 she was working as a typist, non-stop typing in the typing pool, and for 3-4 hours in the evenings. She was an “on-call” typist, and would be called in if somebody wanted urgent work done, for example, over the weekend. She was often called in on a Saturday or Sunday. The latest she worked was 2.45 am. The typewriters were electric, and also some were manual. She worked 12-16 hours a day, 6-6½ days a week, whilst an “on-call” typist at Defence.
9. The applicant said in evidence that she noticed that she was getting increased pain. She used to soak her arms in hot water at the end of the day, have a shower and put liniment on. She described the pain as a deep throb and constant ache, up the forearms and across the shoulder and neck. It was sore if someone touched it. The applicant said in evidence that in 1982 she mentioned the pain to her supervisor at Defence. During 1982 and 1983 she continued to be harassed at work by her ex-husband, until she eventually complained to his Commanding Officer, who stopped the harassment.
10. The applicant consulted Dr Phillip, her treating General Practitioner, in January 1984. He provided her with a certificate to be away from work. She was to do no more keyboarding for an indefinite period. Dr Phillip referred her to Dr Chandran, Neurologist, for advice. Dr Chandran operated on her cervical spine, twice in 11 months, but there was no effect on the pain. After the first operation she had hypersensitive palms. Dr Chandran also used steroids. As a result, the applicant was unable to raise her right arm. Part of the treatment was learning to raise her arms by holding a broom handle, in both hands, and raising them. She spent 3 weeks trying this. It was a physiotherapist who suggested she use the broom handle. Comcare accepted liability for the condition of “tenosynovitis”, with date of injury being 11 January 1984.
11. The applicant was away from work for 9 months, returning in September 1984. She went straight back to the word processing pool, which was called the “fast turn around area”. She had to type highly classified information. It had to be got in and out of the typing pool quickly. She was there from early 1984 until late 1986. She said in evidence that no one in that processing pool lasted more than 2½ or 3 years, without going down with what was then called “RSI”. After the first week in the typing pool, the applicant was deployed to the personnel area, where she worked for a few weeks. She then moved from section to section, filling in where they needed support. She had been told to apply for jobs through the Gazette. She was prescribed splints for her right wrist in 1985, and used to wear the splints when she was working or driving. From 1984 to 1986 she was performing keyboard work. She obtained a position with the Department of Local Government and Administrative Services in 1986 as a Clerical Assistant Grade 4, at the Australian Defence Force Academy (Duntroon). She was then transferred to the Regional Office in the city, as an Acting Clerk Class 4, in the Purchasing and Disposals Section.
12. In 1987 the applicant returned to the word processing pool at Defence, and was keyboarding non-stop for 8 hours a day, and on some days, longer. She had pain in her arms and shoulders. She was wearing no splints then, although she did so on going home to rest. She said in evidence that she seemed to have pain in her arms and shoulders all the time, and she had to live with it. She could not cut the lawn, as the vibration would upset her arms and shoulders. She gave up breeding and showing dogs. She moved from a manual to an automatic car with power steering. She stopped sewing, crochet work and knitting. She says that she could not feel the needle between her fingers.
13. The applicant has been involved in two motor vehicle accidents. The first was in Perth in 1970 when she jarred her right shoulder and right elbow, but recovered. In 1987 she had an accident on her way to work, on Ginninderra Drive, in the ACT. It was a rear end collision, and she hurt her lower back. She still has symptoms – pain in her lower back going down the outside of her legs – more in the right than left.
14. In 1988, the applicant resigned from the Public Service. She had remarried, and moved to the central coast of New South Wales. She worked as an Assistant Secretary for the local Member of Parliament in the NSW Legislative Assembly, from September 1988 until February 1989, when she separated from her husband, and moved back to Canberra by herself. Her children were independent. Upon her return to Canberra the applicant obtained some temporary work at Duntroon, as a typist. The work at Duntroon was not intensive.
15. The applicant applied then, for a position as an ASO1 in the Department of the Senate. She was required to have a medical examination by the Chief Medical Officer (the CMO). He classed her as not fit for employment because of her injuries. She had 4 weeks to supply a written appeal against this decision. She submitted her appeal, on the grounds that despite the fact that she had RSI, she had managed to continue to work with minimal time away from her positions. The Senior CMO, after reading her appeal, and the proof she supplied, agreed that although she had disabilities, she displayed the tenacity to try to overcome them, by continuing to work. She said in evidence that she did not want to become a burden on society, and wanted to maintain her independence in life, without being placed on Social Security payments. At the Senate she was performing secretarial tasks, word processing and clerical work, but mainly word processing. She says that she had applied for these jobs despite the pain, because it was the only work she knew.
16. The applicant worked for the Senate until she was promoted in October 1990 to an ASO 2 with Defence, at the Joint Defence Facility Nurrunga (Woomera) where she was the secretary to the Deputy Commander, and assistant to the Establishment Security Officer. She was performing a mixture of clerical and keyboard work. Part of the building at Woomera had contained asbestos, and the Administration wanted 23 years of records of details of everyone who had been in Woomera, transferred from a hand-written register to the computer. She says that she was in a lot of pain and stress. Her Commanding Officer was insisting on 4 hours of keyboard/data entry work, or 4-5,000 entries a day, in addition to her secretarial duties. He insisted that RSI was not a recognised condition, when she told him that she was not to perform heavy keyboard work non-stop. The applicant had applied for a transfer back to Canberra in 1993, because her health was failing. Her Commanding Officer threatened, that if she obtained a transfer, and had not finished entering 23 years of work into the data base, he would personally telephone Canberra and refuse to release her.
17. The applicant was transferred back to Canberra in 1993, and stayed there until 1995. She was secretary to the Assistant Military Secretary. The work was spasmodically busy. Notwithstanding the worsening of symptoms in her hands, arms and shoulders, the applicant was able to perform the duties of the positions held, but by working at her own pace. She was able to push herself “through the pain level”.
18. The applicant gave evidence that as a result of her work at Woomera, and for the Senate, the condition of her arms and shoulders appeared much worse than before. She was in constant pain. Her arms and shoulders were constantly aching. She had not experienced that before. She remembers that she could not lift anything at home, of any weight. She remembers going shopping with difficulty and buying a few things at a time. She could not carry shopping bags, and had difficulty with washing, cooking and ironing. Her sons helped a great deal. They became responsible for cleaning her home, and did their own ironing. She says that her current condition is unchanged. Her arms are not getting any better, and her back is getting gradually worse.
19. In 1995 the applicant applied for a transfer to South Australia, as she wanted to be near her two grandchildren. She was unable to obtain a transfer, and took long service leave; and when that ran out, she took leave without pay, and resigned, finally, in September 1995, when she returned to South Australia and purchased a home in Woodcroft. She paid a small deposit and had a mortgage.
20. The applicant was on Social Security benefits until she found part-time employment in March 1996, on contract, with the Eastern Community Mental Health Service at Glenside (Glenside) as a secretary. She said in evidence that the work involved two different roles. In the morning she performed non-stop data entry, and in the afternoon she undertook secretarial and clerical duties. The data entry job became extremely busy when the Unit became a 24 hour Emergency Service. The applicant had to enter the data then, in only 4 hours. She said that this half-time position is now a full-time position. The applicant’s 3 month contract was renewed on several occasions, and after 13 months, the Ward Sister suggested that she should apply for a 12 month contract at the Royal Adelaide Hospital (the RAH).
21. The position at the RAH was as a Ward Secretary, in the Urology Ward, a mixture of clerical and keyboard work, which the applicant was confident she could perform. In her application for the position she stated that she had no disabilities; because, although she never denied her “RSI”, she was determined to continue to work – nothing would stop her. She said in evidence that she was determined not to go onto unemployment benefits. She said that the RAH was desperate to fill the position, and so she started work on Monday 21 April 1997, 4 days before her appointment with the RAH’s Assessing Medical Practitioner.
22. In the course of the examination on Thursday 24 April 1997, the doctor said that the applicant was disabled, and should not have been doing the mixture of clerical and keyboard work for all those years. The doctor certified her as “totally unfit” for work, and she was given one hour’s notice, and had to ring the next day to obtain her termination certificate [Exhibit R5]. The applicant said in evidence that she was horrified to be sacked. She felt that she could do the job. She was “devastated” – she had never been sacked in her life.
23. The applicant lodged a claim in the Industrial Commission for unfair dismissal. She was successful, eventually, and was awarded 12.4 weeks’ pay. As a result of the dismissal the applicant was unable to keep up the payments on her Woodcroft home, and her private health insurance. She sold the home at a loss, and moved to an undesirable area, at Christie Downs. She was in receipt of sickness benefits until she was granted a Disability Support Pension in late 1997. Between 1997 and late 1998/early 1999, she assisted her son in his cleaning contract, 1½ hours per week. Because of the pain in her neck, shoulders and arms, she could no longer persist with this work.
24. On 20 October 1998 the applicant’s former solicitors wrote to Comcare advising that they had instructions to pursue her entitlement, pursuant to ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (the Act). It took some considerable time for Comcare to obtain the relevant files from the applicant’s former employer agencies. On 29 January 2001, the applicant’s former solicitors wrote to Comcare, enclosing recent reports from Drs Brophy and Chandran, Neurosurgeons, Dr Ludlow, her treating General Practitioner, and Dr Hall, Neurologist, and a copy of a MRI report from Dr Jones and Partners. The solicitors sought compensation for the applicant’s pain and suffering, and costs, as well as weekly income maintenance from the date of cessation of employment on 28 April 1997.
25. The applicant gave evidence that between 1999 and 2002 she applied for half a dozen positions. She was going “stir crazy” with nothing to occupy her brain. She received only one interview, where she was informed that she was “too old”. The applicant said in evidence that by late 2002, conditions at Christie Downs had become unbearable. She had been robbed twice in one week by her neighbours, and there were other attempted robberies. She sold the house (again at a loss), and on 1 November 2002 she and a friend, Kevin Clarke, purchased a home at Warnertown, 15 kilometres from Port Pirie, for $160,000. They paid half each. Their relationship is that of “housemates”. She has been able to own her share of a home outright, and reduce her living expenses. In addition, Kevin acts as her carer, as she is unable to drive long distances, or manage heavier household tasks. She said in evidence however that she could drive the 15 kilometres to Port Pirie, if work was available. She has applied for one position in Port Pirie, as a receptionist, 2 days per week, but did not get an interview. It is a high unemployment area, but if she was offered a job she would “jump at it” no matter how much pain she would “go through”. She feels that, at present, from a mental point of view she could do the work, but physically doubts if she can push herself through the pain level; but she would give it a “damned good go”.
26. On 9 June 2001 the delegate determined that since 28 April 1997 the applicant has not been entitled to receive compensation for incapacity benefits under any section of the Act. In the course of his letter of advice, he stated:
“…
Dr Hall, Dr Chandran and Dr Brophy have provided medical evidence relating to the prognosis of your client’s condition.
Dr Hall opined the Employee has chronic soft-tissue regional pain syndrome dating initially from 1984 when her arms became symptomatic at work and in 1987 when she developed problems from the motor vehicle accident. Dr Brophy considered that the Employee’s right arm symptoms “could be related to the surgery that she underwent for her work problems in 1984”. Dr Chandran concluded that the Employee’s symptoms could not be traced back to the events in the 1980’s. He considered that the Employee’s symptoms were due to her present type of work and underlying degeneration.
The balance of the available specialist medical opinion is that, on the balance of probabilities, your client’s condition of “tenosynovitis” due to her employment in 1984 has not resulted in total incapacity for employment.
In my view Dr Chandran is in the best position to provide medical opinion in respect of your client’s condition of “tenosynovitis” as he was the treating specialist who performed the surgery and is the only doctor submitting medical evidence who treated her condition of “tenosynovitis” during the 1980’s. I also note that she continued to work full-time until about 1997. Having regard to Dr Chandran’s report, I am of the opinion that she no longer suffers from the condition of “tenosynovitis” suffered on 11 January 1984.
…” [T16/105]
27. On 28 June 2001 the applicant’s current solicitors wrote to Comcare requesting a reconsideration of the decision, and on 30 January 2002 forwarded a copy of a report from Dr Kwiatek, Rheumatologist, dated 27 August 2001, which was already before the Tribunal in relation to the applicant’s claim for permanent impairment, and non-economic loss pursuant to ss 24 and 27 of the Act. A consent decision was made in these proceedings on 28 August 2002 in the following terms:
“:…
1.For the period up to, and immediately prior to, 1 December 1988, the applicant, as a result of the injury of tenosynovitis sustained on 11 January 1984, has a permanent impairment of both upper limbs.
2.The applicant is entitled to a payment of $7,041.60, under section 39 of the Compensation (Commonwealth Government Employees) Act 1971, for 10% permanent loss of each upper limb.
3.The applicant is entitled to a payment of $10,100, pursuant to section 27 of the 1988 Act, comprising $3,000 (representing 20% permanent impairment and $7,100 (representing the degree of non-economic loss).
4.The respondent is to pay the applicant’s costs and disbursements in accordance with the practice direction of the Tribunal.” [T26 /128-129]
28. On 9 May 2003 the Review Officer affirmed the determination of 9 June 2001, and in the course of his determination stated that he had reviewed the medical evidence, and said in his summary as follows:
“…
In view of the fact that following the injury the employee carried out full-time secretarial duties with the Commonwealth for a period of around ten years, and that after resigning from her employment she then undertook data processing work, I am not satisfied that the injury resulted in any incapacity for work as defined in the Act. I am satisfied that, at all times, the injury had not prevented the employee from engaging at work at the same level at which she was engaged in 1984. From the sequence of events, I draw the clear inference that if at or since 28 April 1997 the employee was physically incapacitated for work, which is contrary to the opinions of Drs Hall and McCulloch, such incapacity must have resulted from factors subsequent to the injury, if not subsequent to the employee’s employment with the Commonwealth.
Further, I am satisfied that if there was incapacity for work as defined in the Act resulting from the injury, such incapacity has not prevented the employee from undertaking suitable employment. Because the employee terminated her employment with the Commonwealth, suitable employment means employment at large, including self-employment and is not confined to employment with the Commonwealth. The employee’s ability to earn in such employment has been and remains of sufficient magnitude that she would have no entitlement to incapacity payments in any event.
…” [T31/149-150]
29. The applicant has applied to this Tribunal for review of the decision. In relation to the applicable legislation “injury” is defined in s 4 of the Act as follows:
“(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
Section 4(9) of the Act 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.”
“Suitable employment” is defined in s 4 of the Act as:
“… 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, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—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 of the Act, as far as is relevant for the purposes of this review, provides:
“(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation 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.
…
(3)Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
(Adjustment percentage x NWE) - AE
where:
adjustment percentage is a percentage equal to:
(a) if the employee is not employed during that week—75%; or
(b)if the employee is employed for 25% or less of his or her normal weekly hours during that week—80%; or
(c)if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—85%; or
(d)if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—90%; or
(e)if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—95%; or
(f)if the employee is employed for 100% of his or her normal weekly hours during that week—100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
…
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the 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.
…”
30. The applicant submits that while employed by the Commonwealth, she suffered an injury diagnosed as “tenosynovitis”, and could be alternatively described as “a regional pain syndrome”; that at the time of her resignation from the Public Service, in September 1995, she was incapacitated to engage in the work she was employed for by the Commonwealth; that from and after her resignation from the Commonwealth, her condition has deteriorated, and from 28 April 1997, she has been incapacitated from engaging in any work, and is unable to earn any amount in suitable employment. She is eligible therefore for ongoing payments of compensation pursuant to s 19 of the Act.
31. Comcare maintains that the applicant does not have an incapacity to engage in any work. In administrative and clerical type work she has excellent and outstanding skills, and as a matter of fact, it would not be correct to say that she could not engage in any work. Alternatively, on the evidence, it is open to the Tribunal to accept that she is incapacitated to engage in the work at the same level at which she was engaged by the Commonwealth, in accordance with s 4(9)(b) of the Act. In that event, taking into account each of the relevant matters set out in s 19(4) of the Act, she is not entitled to payments of compensation. She continued in her Commonwealth employment until she chose to leave, in September 1995, and failed therefore to continue in employment, coming within s 19(4)(c) of the Act. In addition, her decision was not “reasonable”, and s 19(4)(f) of the Act applies. What she is able to earn, is what she was earning at the time she left the Commonwealth.
32. I have outlined Counsels’ submissions in a brief and general way. The submissions were lengthy, helpful, and carefully prepared. I have not attempted a précis of the arguments, but have taken each aspect into account in my deliberations.
33. The applicant gave oral evidence. I found her a credible witness. She was forthright and gave her evidence of the pain she has suffered over the years without exaggeration or embellishment. The only time she faltered was when giving evidence in relation to her dismissal from the RAH. Even eight years after this devastating event, she could not restrain her tears, when outlining the detail. The other witnesses were medical practitioners, and a psychologist, all of whom gave evidence with care, professionalism and appropriate objectivity; but I prefer the evidence of Drs Mills and Kwiatek in any area of conflict in the evidence.
34. Dr Mills, Occupational Physician, examined the applicant on two occasions, on 13 November 2002, and 25 October 2004. He reported on 25 November 2002, in part, as follows:
“…
Ms Carol Fagan had symptoms which began working for the Commonwealth Public Service in 1982, requiring surgery in 1984, 1985 aggravated in a motor vehicle accident in 1987:
Cervical spine symptoms
Cervical rib symptoms
Right shoulder subacromial bursitis
Right medial epicondylitis
Bilateral hand tingling
- these collectively diagnosed previously as a tenosynovitis.
I agree with the assessment of the Royal Adelaide Hospital that she is medically unfit for work. Her condition relates to the injury of 1982 working with the Commonwealth Public Service.
She has been significantly compromised for work from 1987, describing significant symptoms working at Glenside Hospital. Later she was transferred to the Royal Adelaide Hospital and declared medically unfit for work. I do not believe she is fit for any significant employment.
…” [T26/136]
He reported on 27 October 2004 [Exhibit A1] that he had read Dr Byok’s report, and although he accepted that the applicant was working with a chronic pain syndrome, the dismissal had a profound effect on her life. She lost her self-esteem, independence and remuneration; her symptoms were highlighted by a chronic pain disorder. Dr Mills noted that Ms Pouras, Psychologist, suggested activities consistent with the applicant’s previous work; but she was sacked from this work, as she represented a risk. He stated that nothing has changed, and now the applicant has the risk of aggravation, by employment.
35. Dr Mills said in evidence that he agreed with the assessment by the RAH doctor, that the applicant would have been a major risk for the RAH, and there was a risk that her symptoms would worsen. Dr Mills said that if keyboard work comprised only 10 percent of the workload, and with a sympathetic supervisor, the applicant could probably have managed; but now she has a chronic pain disorder in her hands, with a risk that it would worsen. He considered that the applicant has been unfit for work since April 1997, and this will continue in the future. I accept Dr Mills’ evidence.
36. Dr Kwiatek, Rheumatologist, examined the applicant on 5 July 2001, 27 August 2002, 12 November 2004 and 27 January 2005. He reported on 27 August 2001, in part, as follows:
“…
The clinical features are consistent with two regional pain syndromes, one involving the upper body and the other the lower body with the former due to industrial factors (so-called repetitive strain injury) and the latter a post-whiplash event, merging to qualify for the North American rheumatological construct of fibromyalgia, namely widespread pain associated with widespread tenderness. Historically the whiplash event may have augmented the cervical component of the upper body regional pain syndrome.
The presentation is therefore certainly consistent with one regional pain syndrome facilitating the development of the other. However from the history obtained by myself work-related events would seem to have played at least as a partial role in the development of the upper body and in particular arm symptoms. Having said this the development of generalised fibromyalgia out of regionalised “repetitive strain injury” of the upper limbs is recognised by many authorities including myself.
…” [T21/113]
37. Dr Kwiatek reported on 27 August 2002, that the applicant seemed considerably impaired with regards to both her upper body and lower body “regional pain syndromes”. The overall impression was that general sensitivity of her pain system had potentially deteriorated a little since last seen, but that it was clear that for personality reasons the applicant continued to push herself, and remained therefore quietly active around the house, although it would appear that she was still incapable of returning to work on a keyboard [Exhibit A3]. He reported again on 27 January 2005, that there was “No doubt her continuing upper limb pain syndrome relates to “RSI” (and which evolving research suggests is at least in part neuropathically-related), together with lower back mechanical problems, have contributed to this deterioration [Exhibit A4].
38. Dr Kwiatek expanded upon these views in his oral evidence. He said that when he examined the applicant in November 2004, and January 2005, there had been a recent exacerbation with the lower back flare-up, and her fybromyalgia had deteriorated. He said that the applicant gave a history consistent with an incapacity, and she had physical examination findings consistent with that. He considers that, regrettably, the incapacity is extremely likely to be permanent; and that rehabilitation was unlikely to yield more than marginal gain. The reason why these people do not improve with time, once the problems becomes entrenched, is that one of the problems of “RSI” is peripheral nerve damage. Secondary to that nerve damage, is irreversible damage in the spinal cord, which is associated with this hypersensitivity of the pain pathways. It is an irreversible state.
39. Dr Kwiatek said in the course of his cross-examination, that the applicant’s dismissal was a very distressing event for her; and there may be a contribution of psycho-social distress when he was assessing her; but there was a clear history of having problems before this, and he did not come across anything to suggest any major psychological issues prior to that. He said also, that when he examined her in 2001 and 2002, she could type for up to half an hour. By November 2004, she was able to edit only, for half an hour, not type continuously. Dr Kwiatek considered that there was a possibility that she could manage some part-time work, which was carefully structured, so that there was no major repetitive involvement, but he suspected that she would find great difficulty doing full-time work. She might be able to do some clerical work, involving filing and making entries in files, and the like, but Dr Kwiatek said he would suspect, at the end of the day, that we would have to give the applicant a trial. I accept Dr Kwiatek’s evidence.
40. Dr Byok, Occupational Physician, examined the applicant on 24 November 2003 at the request of Comcare’s solicitors, and reported on 3 December 2003, in part, as follows:
“…
Ms Fagan gave a chronological history of onset of upper limb and neck symptoms related to high frequency keyboard work, which initially was performed on a combination of manual and electric typewriters. The hours worked were long and turnaround time was quick. She would have fallen into the category of RSI or occupational overuse syndrome at that time. Subsequent neuropathic type symptoms in both hands are secondary to surgery carried out as part of the treatment she received for this condition.
…
In relation to her upper limb and neck problems, Ms Fagan retains the capacity to perform her normal duties, as she was carrying them out for the Commonwealth before she resigned from that employment in July 1995. Ms Fagan’s upper limb symptoms have not changed significantly over the last 13 years, therefore, she is fit for a trial of her previous Commonwealth duties. However, she has been out of the workforce for six years, during which time there have been both organisational and procedural changes. Prior to undertaking any trial of previous duties, Ms Fagan would have to update her skills and knowledge and a graduated return to work is recommended. Restrictions that would apply are that an appropriate ergonomic workstation is provided, that she perform a variety of duties, so that keyboard work does not exceed four hours per day and is non-continuous.
…
Reviewing Ms Fagan’s history, she gives a persistent history of constant upper limb and neck pain, with exacerbations which can be related to specific times when the workload in relation to keyboard and mouse use was increased.
In my opinion, her intensive data entry work at Glenside Hospital did not result in increased incapacity for work. Ms Fagan had made a choice to apply for another position at the Royal Adelaide Hospital, which would have suited her condition better, in that it provided a variety of duties with less intense keyboard work. This is not to say that she would not have continued to suffer ongoing chronic pain, as she had been for the last 13 years. I am also unable to say that she would not have been a potential risk for further exacerbations at some time in the future.
…” [Exhibit R1]
41. Dr Byok said in evidence that she had no doubt that the applicant’s medical condition had resulted in a partial incapacity for work. She considered the applicant an honest person, who had felt unable to push through the pain barrier more recently. She considered that, on purely medical grounds, the applicant had the potential to undertake modified duties, but agreed that in the light of the applicant’s age, her disabilities, and the fact that she had been dismissed by her last employer, these were very severely limiting factors which would colour an employer’s perspective.
42. Ms Pouras, Psychologist, interviewed the applicant at the request of Comcare’s solicitors, on 27 February 2004. In her report of 3 March 2004, she considered that the jobs for which the applicant was suited would include Clerical Assistant, Medical Receptionist, Information Desk Officer, and Ward Clerk. She stated that in the applicant’s case there were some barriers to securing employment, including her age and geographical location. Ms Pouras considered that the applicant could certainly benefit from undertaking a short course to upgrade her skills in computer applications, for example, as well as develop her confidence to re-enter the workforce. A relevant work trial in these areas would serve also to demonstrate the applicant’s capacity to work in these occupations.
43. Ms Pouras said in evidence that if the applicant disclosed her disability to a potential employer, at the age of between 58, when she ceased work, and 61, her present age, she would have virtually no chance of employment. She said that it would be most difficult, but not impossible, for the applicant to obtain employment. The opportunities were very limited.
44. As counsel submitted, the two issues in this matter are the question of incapacity, and the extent of that incapacity; and if the Tribunal finds there is an incapacity, the application of s 19(4) of the Act.
45. In accordance with s 4(9) of the Act, a reference to an “incapacity for work” is a reference to (a) an incapacity to engage in any work; or (b) an incapacity to engage in work at the same level at which she was engaged by the Commonwealth immediately before the injury happened. I am satisfied on the whole of the evidence that the applicant had an incapacity to engage in work at the same level at which she was engaged by the Commonwealth, at the time of her ceasing Commonwealth employment in 1995, and that incapacity continues, in accordance with s 4(9)(b) of the Act. Comcare is liable to pay compensation to the applicant, therefore, pursuant to s 19 of the Act. Section 19(2) of the Act provides that Comcare is to pay compensation for each week which is a maximum compensation week, an amount calculated by subtracting from the employee’s normal weekly earnings the amount per week (if any) that the employee is able to earn in “suitable employment”. Section 19(4) of the Act requires Comcare, and thus this Tribunal, in determining the amount per week an employee is able to earn in “suitable employment”, to have regard to considerations (a) to (g).
46. “Suitable employment” is defined in s 4 of the Act. In the case of a person who was a permanent employee of the Commonwealth on the day he was injured, and has remained an employee, the employment is employment by the Commonwealth, having regard to considerations in s 4(a)(i) to (iv) of the Act. In any other case, the employment is, any employment (including self-employment), having regard to the same considerations in s 4(a)(i) to (iv). The applicant is no longer employed by the Commonwealth, and “suitable employment” is employment at large, any employment. I am satisfied on the evidence that having regard to the matters set out in s 4(a)(i), (ii), (iii) and (iv) of the definition of “suitable employment”, that suitable employment in the applicant’s case would be Clerical Assistant, Medical Receptionist, Information Desk Officer or Ward Clerk, with minimal typing on a part-time basis.
47. In relation to s 19 of the Act, Hill J said in Woodbridge v Comcare (1994) 20 AAR 196, at pages 205-206:
“Section 19 applies to all employees who become incapacitated for work as a result of an injury, except the category of employees referred to in that section, a category which has no application to the present case. Sub-section (2) then imposes upon Comcare an obligation to pay compensation for each of the first 45 weeks of incapacity in accordance with the formula "NWE – AE” where:
"NWE is the amount of the employee's normal weekly earnings and AE is the amount per week (if any) that the employee is able to earn in suitable employment."
The formula, therefore, requires Comcare or, in the event of an application for review to the Tribunal, the Tribunal to determine both the employee's normal weekly earnings and the amount per week that the employee is able to earn in suitable employment. …
Subsection (4) then sets out certain matters to which Comcare is to have regard in making the determination, inter alia, under subs (2). Where an Act provides that regard shall be had to specific matters, there will often be a question whether those matters are exclusive. That issue is not important, having regard to para (g) of s 19(4). However, in Giris Pty Limited v Federal Commissioner of Taxation (1968-9) 119 CLR 365 at 384, Windeyer J pointed out the difficulty which arises from legislation which requires a decision-maker to "have regard" to certain stated matters, but makes no reference to what weight or influence each of those matters is to have. That problem is exacerbated where, as here, regard is required to be had not only to specifically listed matters but also any other matter which is considered relevant. Relevance will clearly depend upon the circumstances of the particular case, although no doubt the policy and purpose of the enactment will be a guide to relevance. In any event the requirement that Comcare take into account other relevant matters contained in para (g) makes it clear that the finding of the amount that an employee is able to earn in suitable employment is a finding that is to be made, having regard to all relevant factual matters. It is not a finding to be made exclusively by reference to the matters set out in subs 4(a) to (f).
A case may arise, I do not say the present is such a case, where one of paras (a) to (e) may be satisfied and Comcare form the view of reasonableness in para (f), but subsequent circumstances intervene which could be relevant in determining the ability of an employee to earn a weekly amount in suitable employment. Indeed this was conceded ultimately by counsel for Comcare. In such cases, at least, it would be necessary to determine as a fact the amount the employee is able to earn in suitable employment. It is, as was conceded by counsel for Comcare, in these circumstances simply not correct to say that once an employee has come within one or other of paras (a) to (e) in a case where the discretion under para (f) required Comcare to find reasonableness, that an employee is forever disentitled to compensation. To put it in another way, it is not true to say, as a matter of construction of s 19, that the rights of the employee to compensation are thereby automatically extinguished "forever and a day".
The reference to other relevant matters to which Comcare shall have regard, is not a reference just to matters which might disentitle the employee to compensation. It includes, as well, matters which could entitle the employee to compensation, notwithstanding the existence of one or other of the matters in paras (a) to (e).”
48. Sub-sections 19(4) (c), (e), (f) and (g) are the relevant sub-sections of the Act for the purposes of this review. The applicant continued to work for the Commonwealth for some 11½ years after her injury, in January 1984, despite the pain and discomfort she was experiencing; but it was “suitable work” only in the sense that despite her incapacity, she continued to perform the work to the satisfaction of her superiors, despite being declared unfit by a CMO in 1989. In 1995 she applied for a transfer to Adelaide, so that she could be closer to her grandchildren, and resigned in September 1995, when she was unable to find employment within the Public Service. Her resignation was for personal reasons, not connected with her injury. She failed to continue to engage in her employment, and this is a matter in accordance with s 19(4)(c) of the Act, which is to be taken into account.
49. In September 1995 the applicant was in a situation where she did not want to leave her employment; she had applied for a transfer; she had used up her recreation leave, and leave without pay, and was unable to obtain employment in the Public Service. She had no alternative but to resign. In my view, her failure to continue in her employment was reasonable in all the circumstances, in accordance with s 19(4)(f) of the Act.
50. In relation to s 19(4)(e) of the Act, the applicant applied, without success, for some half a dozen jobs between 1999 and 2001. I am satisfied, on the evidence, that the applicant’s move to Warnertown, was prompted by her parlous financial circumstances subsequent to her dismissal, and not by an intention to avoid responsibility to find employment. During the relevant period, the applicant had a substantial disability. Although it must be said that the circumstances surrounding her dismissal from the RAH were cruel, and from an industrial point of view disgracefully handled, the conclusion the RAH doctor reached, was properly open to him, on the history provided by the applicant, and on his examination. In 1989 she had been assessed as unfit by the CMO, and only succeeded in obtaining re-employment with the Commonwealth, as a result of her appeal. On my view of the applicant’s and the medical evidence, by April 1997, with the further deterioration in her condition, the applicant’s ability to retain full-time employment was tenuous. Sadly, it would appear that in the light of her incapacity, the most suitable occupation was that which she had obtained, Ward Clerk.
51. I am satisfied on the evidence that in her present condition and situation, the applicant’s chances of obtaining employment are minimal. She is 61 years of age, incapacitated, and she was fired by her last employer. It appears to me, that having regard to the realities of the labour market, it would be a rare employer who would take the risk. I consider therefore, that her failure to seek employment is reasonable in all the circumstances, in accordance with s 19(4)(f) of the Act.
52. Turning to s 19(4)(g) of the Act, I consider that since the applicant left her employment with the Commonwealth, her health has further deteriorated, and that this is a relevant consideration in this matter. In addition, the devastation brought upon her by the RAH dismissal, has sapped her confidence and self-esteem, so relevant to “presenting well on interview”. She is not the dogged, determined worker she was in 1995, who had struggled against her disability, and undertook extra work to enable her to educate her children. She can no longer force herself through the pain level.
53. In accordance with s 19 of the Act, I must determine the amount per week (if any) that the applicant is able to earn in suitable employment. I am satisfied on the whole of the evidence that the amount per week she is able to earn, is nil.
54. The applicant claims weekly payments of compensation from 28 April 1997. I note that she earned wages from her son in his cleaning business, for some time in 1997 until late 1998/early 1999, which will need to be taken into account when Comcare calculates her entitlement to compensation.
55. For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision that Comcare is liable to pay compensation to the applicant from 28 April 1997, pursuant to s 19 of the Safety Rehabilitation and Compensation Act 1988; and that the amount per week that the applicant is able to earn in suitable employment is nil. Comcare will pay the applicant’s costs and disbursements of this application, as agreed, or failing agreement to be taxed by the Deputy Registrar of the Tribunal.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDates of Hearing 1/2/3 March 2005
Date of Decision 7 June 2005
Counsel for the Applicant Mr T McRae
Solicitor for the Applicant TF Owen & Co
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Sparke Helmore