Ganley and Comcare

Case [2003] AATA 14

DECISION AND REASONS FOR DECISION [2003] AATA 14

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No A2001/350

GENERAL ADMINISTRATIVE DIVISION          )          

Re      EUGENE GANLEY

Applicant

And    COMCARE  

Respondent

DECISION

Tribunal       Mr S Webb, Member         

Date9 January 2003

PlaceCanberra

Decision      1. The Tribunal decides to set aside the decision under review and, in substitution therefor, decides that: (i)     The Applicant is entitled to on-going compensation payments for incapacity from 22 February 2000 for which the Respondent is liable. (ii)     The amount the Applicant is able to earn in suitable employment is the amount of his earnings each week in employment commencing 22 February 2000. (iii)         The matter is remitted to the Respondent to assess the correct amount of compensation for incapacity that is payable. 2. The Tribunal orders that the Respondent pay the Applicant's reasonable costs of these proceedings. Mr S Webb, Member         
CATCHWORDS

WORKERS COMPENSATION - compensable injury - entitlement to incapacity payments - offer of suitable employment - voluntary redundancy - whether offer of employment suitable - whether failure to accept or continue to engage in that employment reasonable - relevance of other factors - relocation for family reasons - knowledge of effect of accepting voluntary redundancy on compensation claim

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 sections 4(1), 4(9), 14(1), 19(1), 19(2), 19(4)

Compensation (Commonwealth Government Employees) Act 1971 sections 7A, 7B

CASES

Re Lagwa and Comcare [1999] AATA 638
Re Ginn and Telstra Corporation Limited (AAT 13340, 1 October 1998)
Davies and Australian Postal Corporation (2002) 68 ALD 238
Woodbridge v Comcare (1994) 20 AAR 196
Re Shanahan and Australian Postal Corporation (1995) 36 ALD 613
Re Collins and  GIO Australia  (1999) 60 ALD 516 
Re Evans and Australian Postal Corporation (AAT 10586, 8 December 1995)
Re Ly and Australian Postal Corporation  (AAT 10581A, 28 January 1997) 
Re Chamberlain and Comcare  (AAT 11567, 24 January 1997)
Comcare Australia v Rowe (2002) 35 AAR 410
Re Prica and Comcare (1996) 44 ALD 46
Telstra  v Slater [2001] FCA 149
Re Andrade and Department of Health and Community Services (NT) (1990) 19 ALD 99
Esam v ASP Ship Management [1998] 1129 FCA
Comcare v Rawling (1993) 42 FCR 421
Re Peers and Commonwealth of Australia (1987) 14 ALD 209
Re Peers and Commonwealth of Australia (No. 2) (1987) 15 ALD 193
Arnotts Snack Products Pty Ltd v Yacob (1984) 155 CLR 171
Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585
Pulitano v Telstra Corporation Limited [1998] 212 FCA
Re Spano and Australian Telecommunications Commission (1987) 15 ALD 121
Comcare v Line [2002] FCA 553

REASONS FOR DECISION

9 January 2003     Mr S Webb, Member          

  1. This is an application by Mr Eugene Ganley ("the Applicant") for review of a reviewable decision (T69) made by an Independent Review Officer ("IRO") on 20 August 2001 under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The IRO's decision affirmed a determination made by a delegate of Comcare ("the Respondent") on 15 May 2001 (T63) to reject the Applicant's claim…

Continue reading Ganley and Comcare

Sign in free to access the full text

Details
AGLC
Ganley and Comcare [2003] AATA 14
Case
[2003] AATA 14
Decision Date

CaseChat Overview and Summary

The case of Ganley and Comcare involved the Applicant, Eugene Ganley, who sought ongoing compensation payments for incapacity from Comcare. The dispute centred around the definition of suitable employment and the Applicant's decision to voluntarily resign from his position as a Transport Inspector. The matter was heard by the Administrative Appeals Tribunal on 2 and 3 October 2002. Mr S Pilkington represented the Applicant, while Ms L Walker represented Comcare. Evidence was presented by the Applicant, Dr Millons, a Consultant Orthopaedic Surgeon, and Dr J Chen, a Consultant in Occupational Medicine. The Tribunal had before it various documents and reports that detailed the Applicant's employment history, medical assessments, and the nature of his injuries.

The legal issues before the Tribunal were whether the offer of suitable employment to the Applicant was indeed suitable, whether the Applicant's decision to accept voluntary redundancy was reasonable, and how other factors such as family relocation and the Applicant's knowledge of the effects of voluntary redundancy on his compensation claim should be weighed. The primary consideration was to determine if the Applicant's voluntary resignation was justified under the circumstances and if the refusal of incapacity payments was legally sound.

The Tribunal examined the Applicant's medical history and employment conditions, noting that he had been certified unfit for the duties of a Transport Inspector since 1993. Despite this, he was instructed to return to that position in 1999, which the Tribunal found to be unreasonable. The Tribunal also took into account the Applicant's motivation to reunite with his family in Canberra, where his wife and children resided, and his lack of experience and aptitude for clerical duties. The Tribunal concluded that the Applicant's decision to resign was reasonable given the circumstances and that the refusal of incapacity payments was unjust.

The Tribunal set aside the decision under review, finding that the Applicant was entitled to ongoing compensation payments for incapacity from 22 February 2000. The Tribunal determined that the amount the Applicant could earn in suitable employment should be based on his earnings since that date and noted that further rehabilitation or vocational retraining could increase his employment opportunities. The matter was remitted to Comcare to reassess the correct amount of compensation for incapacity payable. Additionally, the Tribunal ordered Comcare to pay the Applicant's reasonable costs of the proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal convened a hearing in this matter on 2 and 3 October 2002 in Canberra. Mr S Pilkington of Counsel appeared for the Applicant. Ms L Walker of Counsel appeared for Comcare. The Applicant gave sworn oral evidence. Evidence was also given by Dr Millons, Consultant Orthopaedic Surgeon, and Dr J Chen, Consultant in Occupational Medicine. The Tribunal had before it the following documents:Exhibit T1-T69 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Exhibit A1 Report by Dr W Harrex, Consultant Occupational Physician, dated 26 September 2002. Exhibit A2 Vehicle Standards Officer, Motor Vehicle Registration, Dept Transport & Works, Physical Job Description, dated June 1999. Exhibit A3 Applicant's bundle of documents comprising folios 1-43. Exhibit A4 Report by Dr D Millons, AM, Orthopaedic Surgeon, dated 30 November 1999. Exhibit A5 Department of Transport and Works Job Description: Transport Inspector – T2, dated 1 November 1999. Exhibit A6 Chronology of Employment – Eugene Ganley, reference 180602. Exhibit A7 Notice of Redundancy for Eugene Francis Ganley, dated 10 February 2000. Exhibit A8 Report by Dr D Millons, dated 18 March 1993. Exhibit A9 Minute to Personnel Officer, subject: Eugene Ganley – Fitness to Discharge Duties as Transport Inspector, dated 8 August 1990, with attached report by R A Ballagh, dated 23 December 1988. Exhibit A10 Letter to Mr E Ganley signed by Melinda Bongiorno, dated 5 November 1999. Exhibit R1 Report by Dr J Chen, Consultant Physician in Occupational Medicine, dated 28 November 2001. Exhibit R2 Respondant's bundle of documents noted in covering "Chronology – Ganley", reference 112822189\2348321\JMF. Exhibit R3 Report by Dr K Nadana Chandran, Neurosurgeon, dated 23 July 1998. Exhibit R4 Report By Dr K Nadana Chandran, dated 3 August 1998. Exhibit R5 Letter from Department of Transport and Works to Mr E Ganley dated 22 November 1999. Exhibit R6 Letter from Department of Transport and Works to Mr E Ganley dated 9 December 1999 background facts The following background is provided by way of information and is not disputed by the parties. The Applicant was born on 29 November 1962 and suffered an injury to his back in a motor vehicle accident when leaving his place of employment in Alice Springs on 16 October 1984. At the time, he was employed by the Northern Territory Department of Transport and Works ("the Employer") in the position of Motor Mechanic. Initially his injuries were thought to be minor, however a disc protrusion at the lumbrosacral level was diagnosed in early 1985. The Employer accepted liability and, after treatment, the Applicant returned to work in mid-1985. After the motor vehicle accident, the Applicant was not able to continue to carry out his duties as a Motor Mechanic and was allocated light duties (T5). The Applicant worked as a Spare Parts Purchasing Officer for a period of approximately 12 months, until this position was discontinued and he was transferred to a Transport Inspector Officer position. The Applicant continued in this position with the support of weekly physiotherapy until August 1993 (T5). In August 1993, he was redeployed to the position of Disposals Officer with NT Fleet (T62, folio 150). The Applicant had difficulty coping with aspects of this position and was referred to Mr Tyrell, Clinical Psychologist, for a stress management program (T3).

Evidence

Evidence Before The Court

On 23 October 2000 the Applicant sought payment of incapacity payments to "top up" his part time salary as a cleaner in Canberra (T60). Payment of incapacity payments was refused on 15 May 2001 by a delegate of the Respondent (T63). On 5 June 2001 the Applicant sought a reconsideration of this decision (T64). The decision was affirmed on reconsideration on 20 August 2001 (T69), as a consequence of which application was made to the Tribunal on 23 August 2001 (T1).EVIDENCEThe Applicant The Applicant gave evidence that his injury prevented him from performing the duties of a Motor Mechanic. On returning to work in 1985, he had been assigned light duties in the position of Spare Parts Purchasing Officer. He stated that this position was abolished about 12 months later, whereupon he was transferred to the position of Transport Inspector. However, contending that the duties of this position aggravated and exacerbated his symptoms, the Applicant described duties that required extensive bending, twisting and heavy work, especially when required to inspect road-trains on mobile patrols and in the vehicle testing shed. The Applicant told the Tribunal he had been found unfit to perform the duties of Transport Inspector in 1993 and was redeployed to NT Fleet in the position of Disposals Officer. He said he found the physical duties of this position more suitable, but had difficulties with clerical duties, especially filing. He reasoned that he had no experience or aptitude for clerical and administrative duties, and did not know how to use a computer. He told the Tribunal such duties caused him to experience stress for which he had received psychological assistance. The Applicant related experiencing difficulties with clerical functions while on a temporary transfer to the Department of Education as a Courier. He recalled his Disposals Officer duties being modified to exclude administrative tasks, whereupon he was declared to be an unattached officer. In 1999, he stated he became aware that he was to be made redundant, and was declared to be excess to the Department's requirements. In this regard, he recalled signing redundancy papers provided to him by Mr Brierson of NT Fleet, only to discover later that no involuntary redundancies would be provided. He stated he did not want to proceed with a voluntary redundancy at that time. The Applicant told the Tribunal he married his wife in 1990 and she relocated to Canberra in 1995 to take up a new job. He gave evidence that they experienced difficulty starting a family and received treatment for fertility problems in Canberra that was not available in Alice Springs. The treatment was successful and two children were born in 1996 and 1998. The Applicant recalled the difficulties he experienced being separated from his wife and infant children. He said he had wanted to join his family in Canberra and was strongly motivated in that regard, but needed to resolve his employment and compensation first. In this regard, the Applicant told the Tribunal he made enquiries about voluntary redundancy options and sought advice. Ultimately, the Department had instructed him to return to work in the position of Transport Inspector, even though he had been certified unfit to perform the duties of this position. He felt the Department was trying to get rid of him. He reasoned that he was faced with an impossible choice between:

Decision

Reasons for decision

Having regard to the relevant factors pursuant to section 19(4)(g) of the Act, the Tribunal finds the amount the Applicant is able to earn in suitable employment is the amount of his earnings each week in employment since 22 February 2000; Comcare v Line [2002] FCA 553. In so finding, the Tribunal notes that the Applicant's opportunities for suitable employment, and the amount that he may be able to earn thereby, may be increased with further rehabilitation or vocational retraining.DECISION The Tribunal decides to set aside the decision under review and, in substitution therefor, decides that: (i) The Applicant is entitled to on-going compensation payments for incapacity from 22 February 2000 for which the Respondent is liable. (ii) The amount the Applicant is able to earn in suitable employment is the amount of his earnings each week in employment commencing 22 February 2000. (iii) The matter is remitted to the Respondent to assess the correct amount of compensation for incapacity that is payable. 109. The Tribunal orders that the Respondent pay the Applicant's reasonable costs of these proceedings.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.