Gilbody and Comcare
[2006] AATA 985
•20 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 985
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/0788
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT GILBODY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member Dr John Campbell Date of oral decision 20 October 2006
Date of written reasons 20 November 2006
PlaceSydney
Decision 1. We set aside the decision under review and remit the matter for reconsideration in accordance with our findings that:
(a) Mr Gilbody has a capacity to work for 24 hours over three days a week, with one day at least between the days he works and
(b) There is suitable employment available which meets the limitations of his condition as described by Doctors Dowda and Bentivoglio.
2. The question of costs is reserved and the parties are to advise the Tribunal within 7 days whether they wish to argue the question of costs.
CATCHWORDS
WORKER’S COMPENSATION – whether suitable employment exists – limited capacity for work - found suitable employment does exist – decision under review set aside and matter remitted for reconsideration by Comcare.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988
WRITTEN REASONS
1. At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent.
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly and Member Dr John Campbell 1. Mr Robert Gilbody suffered a back injury in February 1988 while a member of the Australian Federal Police. Liability was accepted by Comcare and is not in dispute in these proceedings.
2. The parties agree that the only issue is whether Mr Gilbody has made sufficient effort to find suitable work such that we would find that there is no “suitable employment” available for a man of his age and incapacity within the meaning of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”).
3. He was born on 2 May 1951 and is 55 years old. He was previously employed by the Australian Federal Police (“AFP”). There was a legal argument about the particular legislative provisions which give rise to the issue in these proceedings. However, as the issue was agreed it is unnecessary to consider that legal argument.
4. Based on the evidence of Dr Dowda, consultant occupational physician, and Dr Bentivoglio, orthopaedic surgeon, it is agreed that Mr Gilbody has a capacity to work three days or 24 hours a week, preferably Monday, Wednesday and Friday, that is, to have one day between each day of work, and subject to the limitations both those doctors refer to in relation to walking, sitting, bending, twisting and lifting. One such position is the work he was undertaking as a transport allocator at Roadmaster, from which he was retrenched in March 2005.
5. In order to determine whether there is or is not suitable employment available to Mr Gilbody, it is relevant to understand his employment history. He completed the Intermediate Certificate and then obtained a carpentry and joinery qualification. In 1972 he joined the AFP. He voluntarily resigned from his employment as a detective sergeant effective on 14 April 1989. At the time he was certified as fit for normal duties.
6. He became an owner driver of a courier van handling small parcels. He was unable to continue that job because of his back condition as of 1991. In early 1993 Mr Gilbody returned to work with the AFP pursuant to the rehabilitation provisions of the SRC Act. That ceased as of 21 May 1993. The AFP had no policy of employing people such as Mr Gilbody at that time (Exhibit A1).
7. In his evidence Mr Gilbody said that he had initiated further rehabilitation through the Bankstown TAFE as a carpenter and joinery teacher for three months, which was extended for a further period of three months. He was effectively looking for work from 1991 until 1994 or 1995 when he found employment doing suitable duties with Butterfield Cheese Factories as a warehouse supervisor. He worked 40 hours five days a week. He had a special seat and writing desk and could move around freely so his back would not seize up. He continued in that employment until he found another job doing similar duties with Region Transport as a warehouse supervisor/transport allocator at its Lurnea depot. His evidence was that this position was tailored for him. Again, he was working five days a week for 40 hours.
8. In 2003 he was having trouble with his back and his hours of work were reduced to 24 hours per week. On 12 June 2003 his general practitioner, Dr Luscombe, issued a medical certificate stating that Mr Gilbody was fit to work 24 hours per week on selected duties due to chronic low back pain.
9. In July 2004 another organisation called Roadmaster took over Region Transport. Mr Gilbody continued in the same position doing the same duties. In November 2004 the Lurnea depot was closed and the whole operation moved to the company’s premises at Riverstone. The travelling from his home at Picnic Point to Riverstone involved one to one and a half hour’s journey each way compared to the 20 minutes to Lurnea he had previously travelled. The additional driving aggravated his back condition. It would ache when he arrived at work and throughout the day but he put up with it. He did some forklift work at the Lurnea depot but not at Riverstone. He said it was about half an hour a day when necessary but only as much as he could manage.
10. Mr Gilbody was made redundant on 11 March 2005. From June 2003 until then he had worked 24 hours a week over Monday, Wednesday and Friday. His evidence is that he has been unable to find another job since then. He could not do the Roadmaster job for five days a week. He could possibly do it at Lurnea. He said he would try to do the Riverstone job three days a week.
11. In cross-examination he said that if he had been offered a position by the AFP in 1993 he would have taken it. At that time he had worked supervising a pistol range and preparing courses. He said that he might be able to do that job three days a week now but he has made no application since then as he was under the impression that you had to be fully fit to join the Australian Federal Police. There is no evidence to the contrary.
12. He said he has not refused any work that was offered. He used the old boys’ network, spoke to contacts in the transport industry and asked for work that he could do such as similar transport allocation work or warehouse supervision. He said he would go through the Sydney Morning Herald weekly and the Internet site, MyCareer.com. He has kept records, he said, since the last Tribunal hearing on 25 May 2006 when the matter did not proceed. He has been using the MyCareer.com website since he saw a report from Associate Professor Athanasou which may have been after May or June 2006; it is unclear.
13. He said he is not great at using computers. He has applied for jobs as a warehouse supervisor and in customer service. He said there are lots of jobs in the Herald for transport, many full-time, and he makes a cursory call to see if there is part-time work available, with no success. Using MyCareer.com he has made applications on the Internet. He says he searches all part-time jobs. 170 jobs come up in seven days. He only goes back that far. He lacks the skills to refine the search. If there is something there he sends an email, sometimes one a week, two or three at the most. They may not be suitable but he just has a go. He says he has not been offered anything and he has had only two replies.
14. In terms of his physical activities they include going to a physiotherapist once a week and undertaking an exercise class to strengthen the back muscles once a week. He was asked about the positions that Associate Professor Athanasou refers to in reports that he prepared and he said if he was offered a position in any of those that were identified, if he could do it, essentially he would have a go. He said he would try to get back into the workforce. His wife works and he cannot stay home the rest of his life. He indicated in general terms that he would try to find work that he could do for three days a week.
15. Both Drs Bentivoglio and Dowda were of the view that he was fit for semi‑sedentary clerical, managerial duties with the limitations previously described. He agreed that he would try such work. In cross-examination it was put to him and he agreed that there was a letter of 23 May 2006 which was a request from the respondent’s solicitor requiring particulars of job applications. Without going through the details of what they were, there were six of them and he agreed that they were the only applications he had made in that previous year. That is, from the retrenchment or over a year from March 2005 until 23 May 2006 there were six. He then said that they were the main ones, largely jobs in the transport industry.
16. Generally speaking he said that he had looked for customer service jobs and had not been able to find any. He had applied for a couple of clerical or administrative jobs but there were no part-time ones and they had not got back to him. During cross-examination, Mr Gilbody said that he had copies of job applications with him. They were tendered. There were the following.
17. On 7 August 2006, a cartage coordinator. There was a response that there was a full-time position only. Then there were two on 20 September, one for administrative assistant and the other for a customer service dispatch. There was no response provided.
18. There were two applications on 29 September 2006 for customer service type jobs. No response was provided. On 6 October, two applications, gate clerk and warehouse storeman. There was one response on 10 October that said he had been unsuccessful and then there were other applications, two on 11 October 2006 and one on 12 October 2006.
19. We would refer to the opinion relied on by the applicant’s counsel expressed by Mr Dowda, that in relation to the restrictions that Mr Gilbody had, the likelihood that Mr Gilbody would find employment within those restrictions, “is not great, and this alone might be sufficient alone for him not to be able to return to the workforce”.
20. Reference was also made in submissions to the opinion of Associate Professor Athanasou previously referred to, a consultant in vocational guidance, who said in both of his reports that in theory Mr Gilbody has a potential to work in a range of occupations. He provided an estimate or a range of average weekly earnings.
21. The reviewable decision of 14 June 2005 determined that Comcare was liable to pay incapacity payments for Mr Gilbody. The question was what the amount was. We were not asked to address all the aspects of that decision, so our conclusion is that we are not satisfied on the evidence that Mr Gilbody has put before this Tribunal that there is not suitable employment available.
22. The reason we say that is in particular the evidence about the applications for work. He said he had kept records since May 2006. There were only the applications which we have referred to, one in August, four in September and then another five in October 2006. There was also evidence of his applications by word of mouth and that he had not kept other applications he had made, but given the predominance of the applications he has kept only being from 7 August until 12 October we are not persuaded that there is not suitable employment available in the marketplace.
23. Accordingly we make the findings that he has a capacity to work and that is for three days a week for 24 hours but with a day between the days of work and that there is suitable employment available which meets the limitations of his condition as described by Drs Dowda and Bentivoglio.
24. Accordingly, we set aside the decision under review and consequent to agreement between the parties, remit the matter for reconsideration in accordance with our findings.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Member Dr John Campbell.Signed: Ms Preethi Nimmagadda
AssociateDate of Hearing 20 October 2006
Date of Oral Decision 21 October 2006
Date of Written Reasons 20 November 2006
Solicitor for Applicant Leitch Hasson Dent
Counsel for Applicant Darren Kelly
Solicitor for Respondent Sparke Helmore
Counsel for Respondent Brendan Kelly
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