Goodricke and Comcare
[2011] AATA 941
•23 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 941
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/5504
) 2011/4606
GENERAL ADMINISTRATIVE DIVISION ) Re PETER GOODRICKE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date23 December 2011
PlaceCanberra
Decision The decision under review in application 2010/5504 will be varied to the extent that Mr Goodricke’s AE amounts are:
(a) from 1 January 2006 to 23 May 2010, from 13 June 2010 to 30 June 2010 and from 7 July 2010 to 5 October 2010 - the average weekly earnings amounts derived from the age appropriate What Jobs Pay data at the relevant times;
(b) from 24 May 2010 to 12 June 2010 – zero; and
(c) from 1 July 2010 to 6 July 2010 - the amount Mr Goodricke earned in employment by Pacific Partners.
The decision under review in application 2011/4606 will be varied to the extent that Mr Goodricke’s AE amounts are:
(d) from 28 April 2011 to 11 May 2011 and from 7 July 2011 to 10 August 2011 - zero; and
(e) from 12 May 2011 to 6 July 2011 - the weekly amounts Mr Goodricke earned in self-employment and employment by Energy Base.
Within 28 days Comcare is to file and serve a request for orders setting out the amount of weekly compensation that is payable to Mr Goodricke in accordance with the terms of these reasons, applying the age-appropriate weekly earnings data set out in the What Jobs Pay publications from 1 January 2006. There will be liberty to apply within 14 days thereafter in the event of further disputation in respect of those calculations.
.....................[sgd].........................
Mr S. Webb, Member
CATCHWORDS
WORKERS COMPENSATION - chronic pain - incapacity for work - weekly compensation - normal weekly hours - adjustment percentage - meaning of 'employed' - able to earn in suitable employment - meaning of 'failed to seek suitable employment' - calculation of weekly compensation - minimum earnings – decisions varied
Safety, Rehabilitation and Compensation Act 1988 ss 4, 19
Comcare v Heffernan [2011] 196 FCR 494
John Holland Group Pty Ltd v Robertson [2010] 185 FCR 566
Martin v Australian Postal Corporation [2000] FCA 1646
Re Goodricke and Comcare [2010] AATA 410
Slater v Telstra Corporation Limited [2001] 115 FCR 34
Telstra Corporation Limited v Warner (1994) 20 AAR 259
Woodbridge v Comcare (1994) 20 AAR 196
REASONS FOR DECISION
23 December 2011 Mr S. Webb, Member 2. Peter Goodricke was injured in 2000 when employed by Health Services Australia as a senior systems engineer. He claimed and was paid compensation. Presently, there is a dispute about the amount of weekly compensation that is payable in two periods, from 1 January 2006 to 5 October 2010 and from 28 April 2011 to 10 August 2011. Mr Goodricke does not agree with Comcare’s reconsideration decisions on this point and he has applied for review.
3. There are a number of preliminary matters to address. Firstly, Mr Goodricke’s entitlement to weekly compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in the period from 7 August 2004 to 1 June 2010 were considered by the Tribunal in proceedings in 2010[1]. The Tribunal decided that ‘suitable employment’[2] for Mr Goodricke included “customer service manager; youth worker; welfare worker; ICT trainer; program administrator; ICT sales assistant; or enquiry clerk” in Australia, noting that completion of a pain management program was a “pre-requisite” and finding that “Mr Goodricke’s capacity to work in ‘suitable employment’ in the computer engineer field is at present only possible with more significant restrictions and for only up to 50 per cent of a full time position. These restrictions involve no more than 15 hours a week keyboarding, and skills upgrading through targeted short courses”[3].
[1] Re Goodricke and Comcare [2010] AATA 410.
[2] Section 4(1) Safety, Rehabilitation and Compensation Act 1988 as it applied before and after 12 April 2007.
[3] Re Goodricke and Comcare [2010] AATA 410 at [89]-[92].
4. As the periods under claim in these proceedings overlap with those in issue during the earlier proceedings, it is necessary to set out the terms of the Tribunal’s decision:
“108. In summary, from August 2004 to February 2005, Mr Goodricke was working full-time in the computer engineer systems field and the amount he was earning exceeded his normal weekly earnings. For that period he would have had no entitlement to compensation.
109. For the period from December 2005 to the present, Mr Goodricke’s has not been seeking alternative employments and has indicated his intention to continue with his work for Pacific Partners. Since his ministry work is not considered ‘suitable’ employment for the purposes of the Act, in that period his ability to earn must be tested against one or more of the occupations listed. Accordingly, there would be no entitlement to compensation for the period from December 2005 to the present, applying the formula in section 19(3).
110. For the period March 2005 – December 2005, a period in which Mr Goodricke was actively seeking ‘suitable employment’ Mr Goodricke is likely to have an entitlement to compensation. This period includes the time spent on the first assignment in Papua New Guinea, since Mr Goodricke initially only intended to undertake that task for 3 weeks, and he continued actively to seek employment in the computer-related field in Australia. The Tribunal is not in a position to undertake the calculations since it has inadequate information on which to make an assessment. Accordingly the Tribunal remits the matter to Comcare with the direction that Comcare is to identify, for that period:
·the number of weeks Mr Goodricke was in Australia;
·the number of weeks Mr Goodricke was employed and his earnings in that employment;
·whether by applying the formula in section 19(3) using an adjustment percentage of 85 per cent for consideration of the earnings of a computer engineer, and 75 per cent for all other occupations, and applying relevant and up-to-date figures for actual earnings in those occupations, the amount of any compensation to which Mr Goodricke may be entitled.
111. The Tribunal has noted that it has essayed these calculations based on figures with which it had been provided. However, the ABS figures may be a more accurate and up-to-date indication of the actual earnings in the ACT or Tasmania of someone seeking employment in each of the occupations identified. The Tribunal accordingly varies the decision but remits it to Comcare for more accurate calculations in accordance with the directions in paragraph 109.”
5. It appears that the Tribunal decided that Mr Goodricke had no entitlement to weekly compensation from August 2004 to February 2005 and from December 2005 to 1 June 2010, the date of the decision, but remitted the calculation of weekly entitlements from March 2005 to 1 June 2010 to Comcare. Thus, it is not necessary for me to revisit the issue whether Mr Goodricke was seeking suitable employment from December 2005 to 1 June 2010 – the Tribunal has already decided that he was not.The issue of the quantum of weekly compensation that may be payable from 1 January 2006 remains a live issue, however.
6. The second preliminary issue concerns Mr Goodricke’s normal weekly earnings (NWE) amount. Mr Goodricke sought to attack the underlying quantification of his NWE from the date of his injury in 2000. But this matter has already been decided by the Tribunal in a consent decision in 2004[4]. Mr Goodricke was legally represented in the 2004 proceedings that led to that decision and his NWE on and before 6 August 2004 will not be revisited in these proceedings.
[4] T3 folios 5-7.
7. The third preliminary issue concerns the nature of the hearing. Mr Goodricke requested that the hearing be conducted on the papers. The parties have agreed to this course of action on the basis that the papers before the Tribunal are confined to:
(a)documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 in each application (2010/5504 - T documents; 2011/4606 – AT documents);
(b)Ability to Earn Assessment Report of Philippa Grimes, an occupational health physiotherapist, dated 30 June 2009 (Exhibit 1);
(c)Vocational Assessment Report of John Raue, a vocational psychologist, dated 18 November 2009 following an assessment of Mr Goodricke on 5 November 2009 (Exhibit 2);
(d)Australian Bureau of Statistics salary data for 2004, 2006, 2008 and 2010 (Exhibit 3);
(e)Summary of Australian Bureau of Statistics Data: Employee Earnings and Hours (Exhibit 4);
(f)Extracts from What Jobs Pay Seventh Edition (2004 to 2005), Eighth Edition (2006 to 2007), and Ninth edition (2008 to 2009) (Exhibit 5); and
(g)Letter of Matthew Porter, Matts Mobile Computer Care, to Comcare dated 29 March 2011 (Exhibit 6).
I will proceed on this basis.
8. The issue to be decided is the amount of weekly compensation to which Mr Goodricke is entitled from 1 January 2006 to 5 October 2010 and from 28 April 2011 to 10 August 2011. This requires the formula in section 19(3) of the Act to be applied – ‘(Adjustment percentage x NWE) – AE’, where NWE is the normal weekly earnings amount and AE is the greater of the weekly amount Mr Goodricke is able to earn in suitable employment or the weekly amount of his actual earnings[5].
[5] Slater v Telstra Corporation Limited [2001] 115 FCR 34 at [18].
Normal weekly earnings
9. On 6 August 2004 Mr Goodricke’s NWE was $1,150.16. This amount is subject to annual indexation under section 8 of the Act. Mr Goodricke did not challenge the annual indexation amounts applied by Comcare. I accept that those amounts are correct and find that Mr Goodricke’s NWE amounts are:
On 1 January 2006 $1,319.84
On 1 July 2006 $1,375.27
On 1 July 2007 $1,430.28
On 1 July 2008 $1,490.35
On 1 July 2009 $1,552.94
On 1 July 2010 $1,597.98On 1 July 2011 $1,658.70
Suitable employment
10. The issue of suitable employment for Mr Goodricke was thoroughly considered by the Tribunal in Mr Goodricke’s 2010 proceedings. I am not persuaded that it is necessary to revisit those findings in respect of the period from 1 January 2006 to 1 June 2010. Since those proceedings, it appears that Mr Goodricke has completed a pain management ADAPT program and he has engaged in employment with Pacific Partners, Matts Mobile Computer Care, Energy Base and self-employment. Having regard to the matters set out in the definition of ‘suitable employment’ at section 4(1) of the Act and the present evidence, I am reasonably satisfied that suitable employment for Mr Goodricke in the periods under claim after 1 June 2010 is the same as that previously decided by the Tribunal, being employment in the occupations of customer service manager; youth worker; welfare worker; ICT trainer; program administrator; ICT sales assistant; enquiry clerk; or in a restricted degree, computer systems engineer.
11. As to whether Mr Goodricke’s employment by Pacific Partners from 13 June 2010 to 5 September 2010 was suitable employment, I am not persuaded on the present evidence that this was. There is little evidence about the nature of this employment and Mr Goodricke’s assertion that it was full time paid employment is not supported by verifiable evidence. He asserts that the rate of pay was approximately $20,000 per annum. Even if that is accepted, and it is not presently established, by definition the applicable AE amount is the greater of the amount Mr Goodricke was able to earn in suitable employment at the relevant time or the weekly amount that he was actually earning at the time.
12. On the scant evidence before me, I accept that Mr Goodricke’s employment with Matts Mobile Computer Care, Energy Base and self-employment were suitable employments for him. I note, however, that Mr Goodricke’s capacity to undertake these employments was variable, subject to health and other considerations.
Adjustment percentage
13. The adjustment percentage is to be assessed under section 19(3) of the Act in relation to Mr Goodricke’s normal weekly hours prior to injury. Mr Goodricke has asserted, in respect of his NWE assessment, that he worked regular overtime prior to injury. The present evidence does not satisfy me that his normal weekly hours prior to injury were other than 36 hours and 45 minutes, however. This conclusion is consistent with the Tribunal’s findings in Mr Goodricke’s 2010 proceedings. It is not necessary to revisit the previous Tribunal findings in respect of this or the applicable adjustment percentages in the period from 1 January 2006 to 1 June 2010.
14. The adjustment percentage is to be worked out by application of sections 19(3)(a) to (f). Those sections set out a graded scale of adjustment percentages that are derived from the proportion of the employee’s ‘normal weekly hours’ that he or she is employed for in each week – if the employee ‘is not employed’ in a week, the adjustment percentage is 75%, whereas if the employee ‘is employed for’ up to 25% of his or her normal weekly hours in a week, the adjustment percentage is 80%. The word ‘employed’ is not given any special meaning for the purposes of section 19 or under the Act, generally. The word should be given its ordinary meaning in common usage. In John Holland v Robertson[6], Dowsett J identified three shades of meaning in respect of employment when construing section 8(10): ‘being employed’ – the use by somebody of somebody; ‘that which is actually being done’ – the employee’s actual duties; and ‘the trade or calling of the employee, or the category of employees of which he or she may be a member’[7]. To my mind, these ‘shades of meaning’ are presently applicable and they are relevantly applied in relation to section 19(3): the word ‘employed’ carries the same meaning in the phrase ‘continues to be employed’ for the purposes of section 8(10) ( as considered by the Full Court in John Holland v Robertson) and the phrases ‘is not employed’ in section 19(3)(a) and ‘is employed’ in section 19(3)(b) to (f). This construction is consistent with the construction applied in Comcare v Heffernan[8] in the state of being ‘employed’, for the purposes of section 19(3), is construed in relation to hours worked or work effort[9].
[6] [2010] 185 FCR 566.
[7] John Holland Group Pty Ltd v Robertson [2010] 185 FCR 566 per Dowsett J at [59] - [65].
[8] [2011] 196 FCR 494.
[9] Comcare v Heffernan [2011] 196 FCR 494 per Marshall and Bromberg JJ at [10] and [16]; Downes J at [34]-[35].
15. It follows that if Mr Goodricke did no work in a particular week, he would be taken to be ‘not employed’ during that week. The matter is somewhat complicated as Mr Goodricke says that he was undertaking medical treatment or a rehabilitation program during the weeks from 24 May 2010 to 12 June 2010. There is no evidence that the ADAPT pain management program was a rehabilitation program determined by a rehabilitation authority for the purposes of section 37. It is more probable that it is within the meaning of medical treatment. In any event, Mr Goodricke was not able to do any work, and he was not ‘employed’, in this period. As a result the applicable adjustment percentage is 75%.
16. On 4 June 2010 Mr Goodricke informed Comcare that he had accepted full time employment with Pacific Partners as a community aid and youth worker in Papua New Guinea, with an annual salary of 45,000 Kina[10]. In the period from 13 June 2010 to 5 September 2010 Mr Goodricke was, it appears, employed by Pacific Partners in Papua New Guinea. By his own account, this employment was full time. There is no detailed evidence present in respect of Mr Goodricke’s actual hours of work, week by week, in this employment. Nevertheless, I accept that full time is likely to equate to 36 hours and 45 minutes per week, at least. On that basis, the applicable adjustment percentage in this period is 100%.
[10] T7 folio 50.
17. It appears that Mr Goodricke ceased his employment with Pacific Partners and returned to Australia in September 2010. In the period from 6 September 2010 to 5 October 2010 he was not employed. Accordingly, the adjustment percentage during this period is 75%.
18. It appears that Mr Goodricke obtained employment with Matt’s Mobile Computer Care in January 2011 that continued until at least 29 March 2011[11]. On 21 April 2011 Mr Goodricke notified Comcare that “I no longer have any involvement with Matt’s business due to unviability”[12]. In the period from 28 April 2011 to 11 May 2011 Mr Goodricke was not employed. Accordingly, during this period the adjustment percentage is 75%.
[11] Exhibit 6.
[12] AT12 folio 19; AT21 folio 37 refers.
19. On 20 May 2011 Mr Goodricke notified Comcare that he was self-employed from 12 May 2011[13]. This work involved the installation of electronic equipment in the form of television set-top boxes[14]. Also on 12 May 2011 he obtained employment with Energy Base, assisting with solar power installations[15]. It appears probable that Mr Goodricke worked the following weekly hours in this employment:
[13] AT41 folio 75; AT40 folio 72 refers.
[14] AT41 folio 75.
[15] AT45 folio 81; AT37 folio 68 and AT38 folio 69 refer.
12 May 2011 to 25 May 2011 – 36 hours 45 minutes[16];
26 May 2011 to 1 June 2011 – 25 hours 30 minutes[17];
2 June 2011 to 8 June 2011 – 36 hours 45 minutes[18];
9 June 2011 to 15 June 2011 – 36 hours 45 minutes[19];
16 June 2011 to 22 June 2011 – 36 hours 45 minutes[20];
23 June 2011 to 29 June 2011 – 20 hours 15 minutes[21];
30 June 2011 to 6 July 2011 – 17 hours[22];
7 July 2011 to 18 July 2011 – 0 hours[23];
19 July 2011 to 25 July 2011 – 0 hours[24];
26 July 2011 to 1 August 2011 – 0 hours[25];[16] AT40 folio 74.
[17] AT65 folio 122.
[18] AT65 folio 122.
[19] AT65 folio 123.
[20] AT65 folio 123.
[21] AT65 folio 124.
[22] AT65 folio 124.
[23] AT85 folio 171.
[24] AT85 folio 171.
[25] AT93 folio 185.
2 August 2011 to 10 August 2011 – 0 hours[26].
[26] AT93 folio 185.
20. It follows that Mr Goodricke was employed for 100% of his normal weekly hours prior to injury in weeks commencing 12 May 2011, 2 June 2011, 9 June 2011 and 16 June 2011. In these weeks the adjustment percentage is 100%. In weeks commencing 26 May 2011 and 23 June 2011 Mr Goodricke was employed for more than 50% but less than 75% of his normal weekly hours prior to injury. Accordingly, the adjustment percentage in these weeks is 90%. In the week commencing 30 June 2011, Mr Goodricke was employed for more than 25 % but less than 50% of his normal weekly hours prior to injury. In this week the adjustment percentage is 85%. From 7 July 2011 to 10 August 2011 Mr Goodricke was not employed and the adjustment percentage is 75%. I note that he asserts that he worked in some of these weeks, but was not paid[27]. Without more, however, I am unable to determine that Mr Goodricke was employed for the purposes of section 19(3) during these weeks. There is no probative evidence that Mr Goodricke was employed in the period from 7 to 11 July 2011.
[27] T85 folio 171.
The AE amount
21. There are two issues in dispute in respect of Mr Goodricke’s weekly AE amount – the amount of the applicable weekly earnings in occupations that are nominated as suitable employment for Mr Goodricke; and whether Mr Goodricke has failed to seek suitable employment during periods in which he was not employed.
22. I will address each of these issues.
Applicable weekly earnings in suitable occupations
23. The occupations that I have found are suitable employment for Mr Goodricke are customer service manager; youth worker; welfare worker; ICT trainer; program administrator; ICT sales assistant; enquiry clerk; or in a restricted degree, computer systems engineer. Presently, there is evidence concerning the respective weekly rates of pay for these (or similar) occupations from the Australian Bureau of Statistics[28], Mr Raue[29] and publications entitled ‘What Jobs Pay’[30]. Only extracts from the Australian Bureau of Statistics and What Jobs Pay publications have been tendered in evidence, and those documents contain substantial differences, concerning the categorisation of occupations, the periods to which specific earnings are attributed and age-based variations. Furthermore, even a cursory examination of these data reveals significant gaps in the evidence. I note that the primary and reconsideration decisions in application 2010/5504 and Mr Raue’s report are based on What Jobs Pay publications for the relevant years[31]. I note that Mr Raue appears to have applied the 30+ age data for the respective occupations.
[28] Exhibit 3.
[29] Exhibit 2.
[30] Exhibit 5.
[31] T53 folio 165.
24. The Australian Bureau of Statistics data in Exhibit 3 are as follows:
OCCUPATION 2010 2008 2006 Miscellaneous clerical and administrative workers 1194 1160 1071 Welfare support worker 1220 1173 981 ICT and telecommunications technicians 1341 1300 1287 Program administrator 1484 1422 1416 Sales assistant 941 914 762 Call centre information clerk 1033 970 866 ICT network and support professionals 1720 1622 1392 25. The evidence of Mr Raue in Exhibit 2 is as follows:
OCCUPATION 2008 2007 2006 Customer service manager 1447 1311 914 Youth worker 1002 1008 952 Welfare worker 1309 1088 982 ICT trainer 1447 1382 1146 Program administrator 1439 1549 1331 Sales assistant - computers 756 724 738 Enquiry clerk 972 931 872 Computer network and systems engineer 1957 1803 1404 26. The age appropriate What Jobs Pay data for Mr Goodricke in Exhibit 5 are as follows:
OCCUPATION 2008-09 2006-07 Customer service manager 1261 989 Youth worker 1045 915 Welfare worker 1045 915 ICT (Vocational) trainer 1338 1153 Program administrator 1456 1153 ICT sales assistant 1483 1064 Enquiry clerk 915 783 ICT professionals 1605 1430 27. The reconsideration decision data on which Comcare relied are said to be derived from What Jobs Pay, as follows:
OCCUPATION 2010-11 2009-10 2008-09 2007-08 2006-07 2005-06 Customer service manager 1220 1340 1447 1311 914 869 Youth worker 923 960 1002 1008 952 884 Welfare worker 1141 1227 1309 1088 982 910 ICT trainer 1459 1398 1447 1382 1146 1091 Program administrator 1341 1248 1439 1549 1331 1234 Sales assistant - computers 1442 1651 1439 1549 1331 1234 Enquiry clerk 918 907 972 931 872 815 28. Considering this evidence, it is appropriate to exclude the rates of pay for computer network and system engineers as Mr Goodricke has only a limited capability to engage in work of that kind with restriction. Those restrictions are not simply confined to the amount of keyboard and mouse work, but also relate to the currency of his skills – in 2010 the Tribunal found that Mr Goodricke would require additional training in order to be able to obtain work and employment of this kind.
29. As to the remaining occupations and rates of pay, as can be seen, there are some disparities in the evidence. The most up-to-date evidence is from the What Jobs Pay data used by Comcare and the Australian Bureau of Statistics data in Exhibit 3. The What Jobs Pay data is the most age-appropriate – in its 2010 decision the Tribunal considered earnings data for an employee over the age of 30. It appears that Mr Raue adopted this approach in his report in Exhibit 2. The What Jobs Pay data is scaled by age and, to my mind, it is appropriate to apply the data relating to a person of Mr Goodricke’s age class, being 40-45 years old from 1 January 2006 to 17 March 2008 and 45-49 years old from 18 March 2008. For this reason the What Jobs Pay data is preferred and is to be applied. Unfortunately, I am not able to verify the rates of pay recorded by Comcare in the table at T53 folio 165. I do not have before me the relevant What Jobs Pay datasets for each of the periods under claim. In the datasets that I am able to verify for 2006-07 and 2008-09, there are minor discrepancies between the data Comcare applied in the 2010/5504 reconsideration decision (based on Mr Raue’s data) and the data contained in Exhibit 5. It is likely that these discrenacies may arise from the application of different age ranges. As I have said, the appropriate age ranges are those relevant to mr Goodricke’s age at the particular time.
30. The application of the age appropriate What Jobs Pay data is a mechanical exercise of mathematics. This will need to be done to accurately determine the weekly earnings in work that is suitable employment for Mr Goodricke.
31. The remaining issue on this point concerns which of the pay data for the occupations that are suitable employment should apply. Comcare says that an averaging principle is the appropriate way to determine Mr Goodricke’s weekly ability to earn amounts.
32. I accept that averaging weekly earnings across the spectrum of suitable employments may provide a broad indication of what Mr Goodricke may be able to earn, generally, in suitable employment in any week. It is important to note that this assessment concerns the weekly amount he is able to earn in suitable employment, not what he is capable of earning[32]. One should not too readily apply average weekly earnings over a variety of occupations for the purposes of section 19, however. The AE amount is assessed by reference to ‘the amount per week (if any) that the employee is able to earn in suitable employment’, being employment in work to which the injured employee is suited having regard to the matters set out in the definition of ‘suitable employment’ at section 4(1). When assessing the amount the employee is able to earn in such employment, it is necessary to consider the matters set out in section 19(4)[33]. This includes, importantly, the availability of work in suitable employment to the injured employee[34].
[32] Telstra Corporation Limited v Warner (1994) 20 AAR 259 at 264.
[33] Woodbridge v Comcare (1994) 20 AAR 196 at 205-207.
[34] Martin v Australian Postal Corporation [2000] FCA 1646 at [34]-[38].
33. If there are a variety of occupations or work that is suitable employment for an injured employee, it is necessary to assess the amount the employee is able to earn in each occupation having regard to all relevant matters, including the rates of pay or earnings applicable to the particular occupations, as well as factors that bear upon the employee’s ability to earn in such occupations, including any medical restrictions and the state of the labour market. These are matters of fact and degree to be assessed in the particular circumstances. In the event that this approach produces a range of weekly earnings rather than a specific amount that the employee is able to earn each week, it will be necessary to distil the range of weekly earnings to a weekly amount. Whether this is most appropriately achieved by applying the weekly earnings in one particular kind of work than another, or by taking the average weekly earnings, will depend upon the facts in each case.
34. Considering the evidence of Ms Grimes and Mr Raue, and having regard to Mr Goodricke’s age, skills, experience and his suitability for vocational retraining or rehabilitation, as well as the state of the labour market, I am satisfied that it is appropriate to average the weekly earnings that may be obtained in occupations that are suitable employment for him.
35. The average weekly ability to earn amounts applied by Comcare in the reconsideration decision for 2005-06, 2006-07, 2007-08 and 2008-09 are as follows:
2010-11 2009-10 2008-09 2007-08 2006-07 2005-06 Average weekly ability to earn amounts 1206 1247 1297 1260 1075 1005 36. These average weekly earnings amounts may change when the age appropriate earnings data is applied. Comcare is to recalculate the average weekly earnings amounts on the basis of age appropriate data set out in the What Jobs Pay reports for each of the years under claim. On this point, there will be liberty to apply within 28 days of this decision.
Failure to seek suitable employment
37. Mr Goodricke says that he has been seeking suitable employment during the periods under claim. This, he says, is supported by evidence that he lodged a number of applications for positions that are suitable employment for him. Furthermore, in Mr Goodricke’s submission, the fact that he obtained and engaged in suitable employment as a result of his efforts proves that he made genuine efforts to return to work. He has made extensive submissions about these issues.
38. Comcare asserts that Mr Goodricke failed to seek suitable employment during periods when he was not actually employed. In Comcare’s submission, Mr Goodricke did not seek suitable employment while he was undertaking voluntary or paid work for Pacific Partners in Papua New Guinea during the periods under claim.
39. Furthermore, Comcare asserts that Mr Goodricke did not make genuine efforts or adequate attempts to seek suitable employment during periods in which he was not employed following his return to Australia in September 2010. Comcare says that Mr Goodricke completed job search forms on the Internet, but this, alone, is not sufficient. Furthermore, Comcare notes that Mr Goodricke has failed to provide additional supporting evidence of his efforts to seek suitable employment, even though he has been provided with ample opportunities to do so.
40. The amount an injured employee is able to earn in suitable employment is to be assessed on a weekly basis. Section 19(4)(e) applies ‘where, after becoming incapacitated for work, the employee has failed to seek suitable employment’. As can be seen, when deciding whether or not an employee has failed to seek suitable employment, it is necessary to have regard to the employee’s efforts during the period in which he or she is incapacitated for work.
41. Whether or not an injured employee has failed to seek suitable employment is but one of a number of matters that must be considered when determining the amount he or she is able to earn in suitable employment in any particular week. The significance of failing to seek suitable employment, for the purposes of section 19 of the Act, is not difficult to understand. As Downes J said in Comcare v Heffernan, “the legislation has a purpose of encouraging incapacitated employees to return to work to the maximum extent possible”[35]. For an injured employee, returning to work may be effected by various means, including being offered suitable employment by an employer, or seeking suitable employment. Failing to accept, engage, continue with or seek suitable employment are matters that may affect the AE amount, and the amount of weekly compensation that is payable.
[35] [2011] 196 FCR 494per Downes J at [35].
42. Section 19(4) sets out the matters to which regard must be had when determining the amount an injured employee is able to earn in suitable employment in any particular week. Those matters are not confined to the effects of failing to accept, engage, continue to engage or to seek suitable employment, but also include the weekly amounts the employee has earned in employment, as well as any other relevant matter. The relevance of other matters is to be assessed in relation to the policy underlying the legislation, being to encourage injured employees to return to work in suitable employment to the maximum extent possible. That purpose can most clearly be seen in the terms of section 19(3) when properly construed in the manner set out by the Full Court in Comcare v Heffernan.
43. It can be accepted that none of the matters set out in section 19(4) will necessarily be determinative – “Some may point one way and some may point other ways in making the calculation of the amount per week that the employee is able to earn in suitable employment”[36]. It is necessary to have regard to all relevant matters when making this calculation.
[36] Woodbridge v Comcare [1994] FCA 1429 at [51].
44. When considering whether or not an injured employee has failed to seek suitable employment during a period of incapacity, the nature and extent of the employee’s efforts to seek suitable employment may be relevant matters to consider. Clearly, a person may seek suitable employment in a tokenistic or cursory manner without genuinely hoping to obtain employment, alternatively the seeking of suitable employment may be undertaken in a manner that is consistent with a genuine effort to return to work. Clearly, these are matters of fact and degree that may be relevant to the calculation of the amount the employee is able to earn in suitable employment.
45. Construing the legislation in this way, if an employee is not within the terms of section 19(4)(a) to (f), it does not follow that his or her ability to earn in suitable employment will be zero. An injured employee may have sought suitable employment in a tokenistic manner, for example, and still be found able to earn an amount in suitable employment that is greater than zero.
46. It is not necessary for me to revisit the Tribunal’s 2010 decision in Re Goodricke and Comcare that Mr Goodricke failed to seek suitable employment while he was engaged in work for Pacific Partners in Papua New Guinea prior to 1 June 2010. There is no evidence before me to disturb that finding.
47. I accept that Mr Goodricke failed to seek suitable employment in the period from 23 May 2010 to 12 June 2010, when he was attending a pain management program in respect of his injury. To my mind, his attendance at that program is a reasonable excuse for that failing.
48. It appears that Mr Goodricke has applied or registered for employment on a number of occasions from July 2010. At various times he made applications for specific positions using Internet employment services, such as Seek, and he registered his interest with prospective employers, such as Austrade. It appears that he also applied for positions directly with employers and he attempted self-employment, and these efforts were productive of employment.
49. On the present evidence, Mr Goodricke lodged applications for employment on 1 July 2010, 2 July 2010, 3 July 2010, 6 July 2010, 16 April 2011, 18 April 2011, 2 May 2011, 9 May 2011, 11 May 2011, 12, May 2011, 13 May 2011, 15 May 2011, 17 May 2011, 19 May 2011, 24 July 2011, 25 July 2011, 3 August 2011 and 4 August 2011[37]. I note that the applications he made in April 2011 are outside the period under claim.
[37] See T13, T14, T15, T16, T17, T19, T20, T21, T22, T23, T24, T27, T28, AT3, AT4, AT5, AT6, AT7, AT9, AT13, AT17, AT18, AT29, AT32, AT33, AT34, AT74, AT75, AT76, AT77, AT78, AT79, AT80, AT81, AT89, AT91, AT94, AT95, AT96, AT97 and AT99.
50. Full copies of Mr Goodricke’s applications have not been brought forward – all that appears in the present evidence are application lodgement emails and, in some cases, receipts of lodgement or responses to the applications made. I am not able to determine the content or substance of these applications. This is a difficulty for Mr Goodricke. I note that he was provided with ample opportunity to adduce evidence in respect of his applications for employment but no more detailed probative evidence was adduced.
51. I note that Mr Goodricke lodged a number of applications using Internet services within minutes of each other on the same day. For example, on 16 April 2011 Mr Goodricke lodged applications at 0636, 0643, 0644, 0648 and 0650 hours. But not all of the applications he made were lodged in such close proximity. On 4 August 2011, for example, he lodged applications at 1058, 1525, 1526, 1530 and 1636 hours.
52. Mr Goodricke received responses to some, but not all of the applications he lodged using Internet facilities. He was not successful in any of these applications.
53. Nevertheless, he was successful in obtaining employment with Matt’s Mobile Computer Care from January to April 2011 and with Energy Base from 12 May 2011 to 6 July 2011. It also appears that Mr Goodricke registered a business name ‘Compcare’ on 12 May 2011[38] and obtained a small amount of paid work in self-employment installing electronic equipment[39].
[38] AT35 folio 65.
[39] AT41 folio 75.
54. There are documents in evidence in the form of job descriptions[40], but it is not clear that Mr Goodricke made applications for these positions. It appears that Mr Goodricke applied for employment in positions that may not be suitable employment for him or that may not be well-aligned with his training, experience and skills. He applied, for example, for employment overseas and as a delivery driver, as head of a humanities faculty in a Catholic College, and as a mine maintenance planner.
[40] T20 and AT100.
55. As I have said, Mr Goodricke lodged a number of applications for employment over a period of days from 1 to 6 July 2010. There is no detailed evidence in respect of the content or substance of these applications. The present evidence is not sufficient to establish whether these applications were tokenistic or genuinely made. Nevertheless, this evidence establishes that Mr Goodricke lodged applications of some kind for employment positions that may have been suitable employment for him, and to that extent he was seeking suitable employment at the time.
56. It can be seen that Mr Goodricke also lodged applications for employment during the period from 28 April 2011 to 10 August 2011. There are serious doubts about the nature and substance of these applications, however, especially where the applications were lodged in close temporal proximity. On the present evidence I am not able to determine whether these applications were tokenistic and insubstantial, or whether they were of genuine substance. It is conceivable that the applications he lodged in close proximity contained common or formulaic content; equally it is possible that they contained no content at all, being simply comprised of the covering email. These are matters for evidence, but Mr Goodricke has adduced no further evidence, despite being given ample opportunity to do so. Insubstantial evidence of this kind, alone, may not be sufficient to establish that Mr Goodricke was in truth seeking suitable employment. But these are not the only efforts he has made to obtain suitable employment in this period. The fact that he obtained suitable employment on two occasions in January 2011 and May 2011 suggests that at least some of his efforts to seek suitable employment were genuine.
57. Other relevant matters to consider include Mr Goodricke’s state of health and his complaints concerning the adverse effects of dealing with his compensation issues, as well as the straitened financial circumstances he has faced. To the extent that these matters appear in Mr Goodricke’s written materials, they are noted.
58. As I have said, it is also relevant to consider the nature and extent of Mr Goodricke’s efforts to seek suitable employment in the circumstances. There are serious doubts about the veracity and genuineness of some of his efforts to seek suitable employment over the period of six days in July 2010 and from 28 April 2011 to 10 August 2011. Considering the spread, timing and subject of his efforts to seek suitable employment prior to 5 October 2010 it appears to me that Mr Goodricke’s efforts were not sustained over time and for a substantial period he was not available to engage in suitable employment as a matter of choice – I note that Mr Goodricke had a reasonable excuse during the period in which he was undertaking a pain management program. Whereas his efforts in the periods under claim in 2011 were sustained over time and he was available to engage in suitable employment, and he did so when he was able to obtain such employment. That being so, without the benefit of Mr Goodricke being cross-examined on this point, I am prepared to accept that his efforts to seek suitable employment in the periods from 28 April 2011 to 11 May 2011 and from 7 July 2011 to 10 August 2011 were genuine and of real substance.
59. Mr Goodricke should not expect, as a result of this finding, that other claims for weekly compensation are bound to succeed. Each claim must be determined on its merits. Those assessments of merit will, necessarily, involve an assessment of the evidence concerning his efforts to seek suitable employment. If that evidence is insubstantial, or his efforts to seek suitable employment are not genuine or are not sustained over the period under claim those are relevant matters t o which regard must be had when calculating the amount each week that he is able to earn in suitable employment.
60. At this point it is important to observe, as I have said, that insubstantial evidence of the kind that appears in the documents, in the form of emailed application cover notes and responses to those ‘applications’, may not be sufficient, alone, to establish that genuine efforts were being made to seek suitable employment. More detailed evidence may be required in respect of the positions being applied for, the content or substance of the applications made. When deciding claims, it may be reasonable to expect a claimant to adduce such evidence, but in the event that he or she does not, it may be necessary for Comcare to obtain that evidence from prospective employers.
61. Thus, in sum on this point, I am reasonably satisfied that Mr Goodricke did not fail to accept, engage, continue with or seek suitable employment in the period from 28 April 2011 to 10 August 2011. I accept that he took steps to seek suitable employment in the period from 1 to 6 July 2010, but he was not available to undertake suitable employment at the time when he was otherwise employed by Pacific Partners in Papua New Guinea. And his efforts to seek suitable employment were not sustained thereafter to 5 October 2010. Mr Goodricke has not provided evidence that he had a reasonable excuse for failing to seek suitable employment in this period.
62. Having regard to section 19(4)(e), I note and accept Mr Raue’s evidence and the Tribunal’s previous conclusions[41] concerning the state of the labour market in Queensland, the Australian Capital Territory or Tasmania in 2010. I am satisfied that it is reasonable to expect that the weekly amount Mr Goodricke would be able to earn in the occupations that I have found to be suitable employment is the weekly amount specified for those occupations in the What Jobs Pay datasets for his age group at the relevant time. As I have said, it is appropriate in the circumstances to apply the average of those weekly earnings amounts when determining Mr Goodricke’s AE amounts during the periods under claim.
The AE amounts
[41] Re Goodricke and Comcare [2010] 410 at [92].
63. Weighing the evidence and having regard to the matters set out in section 19(4), I am reasonably satisfied and find that:
(a)from 1 January 2006 to 23 May 2010: Mr Goodricke was not employed in suitable employment and he failed to seek suitable employment - the weekly amount he was able to earn in suitable employment is the average weekly earnings amounts derived from the age appropriate What Jobs Pay data at the relevant time;
(b)from 24 May 2010 to 12 June 2010: Mr Goodricke failed to seek suitable employment, but had a reasonable excuse - the amount that he was able to earn in suitable employment was zero;
(c)from 13 June 2010 to 30 June 2010: Mr Goodricke was not employed in suitable employment and he failed to seek suitable employment - the weekly amount he was able to earn in suitable employment is the average weekly earnings amounts derived from the age appropriate What Jobs Pay data at the relevant time;
(d)from 1 July 2010 to 6 July 2010: Mr Goodricke was employed in Papua New Guinea in employment that was not suitable employment and he did not fail to seek suitable employment, but he was not available to undertake suitable employment - the weekly amount he was able to earn in suitable employment is the average weekly earnings amounts derived from the age appropriate What Jobs Pay data at the relevant time;
(e)from 7 July 2010 to 5 October 2010: Mr Goodricke was not employed in suitable employment and he failed to seek suitable employment - the weekly amount he was able to earn in suitable employment is the average weekly earnings amounts derived from the age appropriate What Jobs Pay data at the relevant time;
(f)from 28 April 2011 to 11 May 2011: Mr Goodricke was not employed in suitable employment and he did not fail to seek suitable employment - the weekly amount he was able to earn in suitable employment is zero;
(g)from 12 May 2011 to 6 July 2011: Mr Goodricke was employed in suitable employment - the weekly amount he was able to earn in suitable employment is the amount that he earned;
(h)from 7 July 2011 to 10 August 2011: Mr Goodricke was not employed in suitable employment and he did not fail to seek suitable employment - the weekly amount he was able to earn in suitable employment is zero.
64. It follows that Mr Goodricke’s AE amounts are:
(a)from 1 January 2006 to 23 May 2010 - the average weekly earnings amounts derived from the age appropriate What Jobs Pay data at the relevant time;
(b)from 24 May 2010 to 12 June 2010 - zero;
(c)from 13 June 2010 to 5 October 2010 - the average weekly earnings amounts derived from the age appropriate What Jobs Pay data at the relevant time;
(d)from 28 April 2011 to 11 May 2011 - zero;
(e)from 12 May 2011 to 6 July 2011 - the that he earned in employment by Energy Base and from his self-employment;
(f)from 7 July 2011 to 10 August 2011- zero.
Conclusion
65. The decision under review in application 2010/5504 will be varied to the extent that Mr Goodricke’s AE amounts are:
(a)from 1 January 2006 to 23 May 2010, from 13 June 2010 to 30 June 2010 and from 7 July 2010 to 5 October 2010 - the average weekly earnings amounts derived from the age appropriate What Jobs Pay data at the relevant times;
(b)from 24 May 2010 to 12 June 2010 – zero; and
(c)from 1 July 2010 to 6 July 2010 - the amount Mr Goodricke earned in employment by Pacific Partners.
66. The decision under review in application 2011/4606 will be varied to the extent that Mr Goodricke’s AE amounts are:
(a)from 28 April 2011 to 11 May 2011 and from 7 July 2011 to 10 August 2011 - zero; and
(b)from 12 May 2011 to 6 July 2011 - the weekly amounts Mr Goodricke earned in self-employment and employment by Energy Base.
67. Within 28 days Comcare is to file and serve a request for orders setting out the amount of weekly compensation that is payable to Mr Goodricke in accordance with the terms of these reasons, applying the age-appropriate weekly earnings data set out in the What Jobs Pay publications from 1 January 2006. There will be liberty to apply within 14 days thereafter in the event of further disputation in respect of those calculations.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
Signed: .....................[sgd].........................................................
H. Choi, Associate
Date of Hearing 19 December 2011
Date of Decision 23 December 2011
Representative for the Applicant Self representedSolicitor for the Respondent Mr A. Dillon, Australian Government Solicitor
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