GOODRICKE and COMCARE
[2010] AATA 410
•1 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 410
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1256
GENERAL ADMINISTRATIVE DIVISION ) Re PETER GOODRICKE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date1 June 2010
PlaceCanberra
Decision The decision under review is set aside and remitted to Comcare. ....................[sgd]...................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Whether Applicant entitled to incapacity payments under s 19 – if so, whether Applicant currently incapacitated for work as a result of his accepted condition – if so, the extent to which he is incapacitated – if Applicant is entitled to compensation under s 19, the amount per week Comcare is liable to pay him under s 19(3) – whether ‘adjustment percentage’ under s 19(3) – the amount per week Applicant is able to earn in ‘suitable employment’, having regard to the labour market at the relevant time under s 19(4) – whether Applicant failed to seek suitable employment under s 19(4)(e) – if s 19(4)(e) applies, whether Applicant’s failure to seek employment was reasonable in all the circumstances under s 19(4)(f) – decision under review set aside and remitted
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 19
Re Arbuckle and Comcare (2005) 89 ALD 84.
Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171
Re Chamberlain and Comcare [1997] AATA 17
Martin v Australian Postal Corporation (2000) 32 AAR 199
Re Peers and Commonwealth (1987) 14 ALD 209
Pelgrave v Comcare Australia (2002) 36 AAR 1
Re Prica and Comcare (1996) 44 ALD 46
Re Sabioni and Comcare (1999) 61 ALD 305Slater v Telstra Corporation Ltd [2001] FCA 1417
Re Smith and Comcare [2002] AATA 249
Telstra Corporation Ltd v Slater [2001] FCA 1491 June 2010 REASONS FOR DECISION
Professor RM Creyke, Senior Member
1. Mr Goodricke was employed by Health Services Australia as a senior systems engineer from 13 October 1999 under a fixed term contract. The contract was for three years, but permitted early retirement, for example, on a redundancy. Mr Goodricke retired from Health Services Australia by an involuntary redundancy on 22 February 2000.
2. On 3 March 2000, Mr Goodricke sought compensation for repetitive strain injury in both arms. That claim was ultimately successful and he has an accepted claim now diagnosed as aggravated regional pain syndrome (bilateral)[1] with a date of injury of 14 February 2000.
[1] As from 7 May 2008.
3. A claim for permanent impairment was accepted by a consent order from the Tribunal on 6 August 2004, and Mr Goodricke was entitled to incapacity benefits from 13 February 2002 to 16 February 2004. He was awarded a lump sum payment of $24,866.38 under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) and $14,478.13 under section 27 of the Act.
4. On 6 August 2004, the Tribunal made an order by consent that Mr Goodricke’s normal weekly earnings were $1150.16; that he had an ability to earn $150.00 per week; that he was entitled to incapacity benefits for the period 13 February 2002 to 16 February 2004 but not thereafter; and that he had a permanent impairment of 10 per cent for his arms (bilaterally).
5. On 24 December 2008, the Tribunal made orders by consent to set aside a decision of 9 August 2005 relating to medical treatment and in substitution found Comcare was liable for the costs of a pain management program at the Royal North Shore Hospital.
6. On 12 January 2009, Comcare denied liability under section 19 for incapacity payments for the accepted injury of regional pain syndrome for the period after 17 April 2004. The decision stated that the determination of the Tribunal dated 6 August 2004 raised an estoppel that prevented Comcare from considering any application under section 19 for the period covered by the Tribunal’s orders, namely, 17 April 2004 to 6 August 2004. Beyond 6 August 2004, Comcare found that Mr Goodricke was not incapacitated for suitable employment.
7. On 3 February 2009, Mr Goodricke applied to the Tribunal for review of the decision of 12 January 2009. On 5 March 2009, the Tribunal dismissed the application for review for lack of jurisdiction, namely, that there had been no reconsideration of the decision. On 20 March 2009, Mr Goodricke applied again for review of the decision of 12 January 2009.
8. On 27 March 2009, Comcare issued a reviewable decision in which it varied the decision of 12 January 2009. The varied decision accepted that Mr Goodricke had an incapacity for work from 23 January 2006 to 27 March 2009, but that his entitlement under section 19 of the Act was nil due to the extent of Mr Goodricke’s residual capacity for suitable employment. The claim was subsequently accepted by the Tribunal when the reviewable decision by Comcare of 27 March 2009 was made.
9. In his application to the Tribunal, Mr Goodricke asserted he was entitled to incapacity payments under section 19 of the Act for the period from 7 August 2004 to the date of the decision.[2] He said he was able to work for 10 hours a week and was entitled to receive $143.10 per week at the current Commonwealth minimum wage; that he was also 'entitled to an “adjustment percentage” percentage (sic) equal to 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% under section [19(3)(c)] of the source Act'. He also claimed back-pay from February 28 2005 for specified amounts of salary, and that at the date of the application he was entitled to $1195.55 per week.
[2] Re Sabioni and Comcare (1999) 61 ALD 305.
Legislation
10. The following are the relevant provisions.
4 Interpretation
(1) …
suitable employment , in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed--employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence--whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case--any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
…
(9) 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: ...
(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.
19 Compensation for injuries resulting in incapacity
(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: …
(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%; ...
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: ...
(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. ...
Issues
11. The following issues have been identified:
·Whether Mr Goodricke is entitled to compensation for incapacity payments under section 19 of the Act for the period 7 August 2004 to the present?
oIf so, whether Mr Goodricke is currently incapacitated for work as a result of his accepted condition?
o If so, the extent to which he is so incapacitated?
·If Mr Goodricke is entitled to compensation for incapacity payments under section 19 of the Act, the amount per week that Comcare is liable to pay him under section 19(3) of the Act, including consideration of:
oThe number of hours per week that Mr Goodricke is in employment and the appropriate ‘adjustment percentage’ to apply under section 19(3)?
·The amount per week that Mr Goodricke is able to earn in suitable employment having regard to the state of the labour market at the relevant time under section 19(4)?
oWhether Mr Goodricke has failed to seek suitable employment under section 19(4)(e)?
oIf section 19(4)(e) applies, whether Mr Goodricke’s failure to seek employment was reasonable in all the circumstances under section 19(4)(f)?
Evidence of Mr Goodricke
12. Mr Goodricke completed secondary school and two to three years only of an electrical engineering degree at university, which he said gave him a theoretical grounding in the subject. Mr Goodricke also completed a Telecom apprenticeship as a Telecom technician, which taught him practical IT skills. He commenced a full-time Bible Study course for which some assessment remains outstanding. He agreed that he had enrolled in a Certificate IV in Workplace Training and Assessment in 2001 – 2002 but had not finished the course. He still has assignments to complete. At the same time, he was doing his theology course and he found he was more interested in theology. In 2002, he obtained his Certificate IV in Youth Work. He said he had the help of a flatmate who was good at English to assist him with completing his assignments.
13. He said a description of his position as a systems engineer is inaccurate since that label covers systems architecture, design and trouble shooting. He said he is incapable of doing the system architecture element of the role. He agreed he could work part-time as a systems engineer but that, although he was well qualified 10 years ago, he would need retraining to manage current systems.
14. From 13 October 1999, Mr Goodricke was employed by Health Services Australia as a senior systems engineer preparing systems for the ‘Y2K’ changeover. His employment was under a fixed-term contract on a salary of $1150.16 per week with no provision for overtime. It is accepted that his working hours were 36.75 hours per week. He said when he arrived the system was a ‘mess’ and he had to work intensively and do a lot of overtime to resurrect the situation. Prior to then, he had worked with the Australian Prudential Regulation Authority (APRA), also on the Y2K changeover.
15. Initially at Health Services Australia he experienced no physical problems However, as the scope of the work increased, he got sore quickly and his arm pain, which had arisen initially in the 1980s but had resolved with rest, flared up. By Christmas 1999 he was in constant pain. Although he took two weeks off in January 2000, the condition did not resolve. By February 2000 the level of symptoms was such that he consulted a doctor for his pain.
16. He said that the issues with his arms arose because he was expected to work from 9.00am till midnight and his overtime was equivalent to a full-time working day. On one occasion, he received an abrupt phone call from his supervisor to come in to work because the system 'had fallen into a heap'. He worked from 9.30am on Friday until 4.00am on Saturday. On Sunday, he was woken by someone from Health Services Australia and told 'to get your fat posterior into the office' to get the system running, which he did. When he went in on Monday, he was so tired that he fell asleep at his desk and then went home. The following day, he received a redundancy package. A few days earlier, he had complained to a supervisor about his hours. He had also talked to ‘personnel’ and was told that the organisation would like him to leave, so when he received the redundancy notice he left. He went to his general practitioner and said he had been thrown out of his job. However, on Thursday of that week he rang to ask if he could return to finish his work, in other words, rescind his acceptance of the redundancy, but the offer was refused. Subsequently he successfully claimed that his redundancy was involuntary.
17. After he left Health Services Australia on 22 February 2000, Mr Goodricke returned to Tasmania where, by 28 August 2000, he was working 4 hours per week at the Channel Christian School earning $50.000 a week and was operating a business he owned known as Tasman Internet Services for 5 hours a week. By 24 November 2000, Mr Goodricke said he was working 10 hours a week at his internet business. This was not sufficient to make the venture commercially viable and as his pain had also increased in 2001 he sold the company.
18. In 2002, while in Tasmania, he also did full-time voluntary work with Fusion, a youth and community organisation. That work involved no use of computers. He described 2003 as a 'mess'. Later in 2003, however, he became involved with Pacific Partners, a church-based missionary and community aid organisation with headquarters in New Zealand. From 2004 onwards, initially for short periods and now permanently, Mr Goodricke has been involved with the organisation.
19. Late in 2003 Mr Goodricke returned to Canberra. At his request, Comcare paid for a rehabilitation program and he was placed with Spherion, an IT training and recruitment company, as a part–time computer instructor and engineer. Initially, this was 10 hours per week but it was increased to 12-15 hours per week, which he found exacerbated his symptoms and so he reverted to 10 hours. He said the pain from his condition meant he had poor sleep and this affected the amount of work he could do. He ceased working for Spherion in the middle of 2004. At the same time he said he was doing some voluntary work with Fusion in Canberra. Through United Christian Broadcasters, he helped set up a community radio station in New Caledonia and was involved with a similar project for Mauritius.
20. While training for Spherion in the evenings, he was also working for Telecom, doing a full-time job by day. He did this for a month and said it was principally to help pay off debts. For example, he had a Centrelink debt of over $7,000, which was identified in February 2004. He said he could only manage this for a month and that he suffered the consequences later. This was in the first half of 2004. However, by the middle of 2004 he said physically he could not continue with the Spherion work even though he was not doing actual keyboarding because he became very tired and he left.
21. On 23 August 2004, Mr Goodricke commenced a three month contract with the Australian War Memorial, ACT on a full-time basis as a level 3 systems computing support officer. His three month contract was extended for another term and he concluded his work there on 28 February 2005. He managed full-time work at this time because he was again in financial difficulties. As he said he had ‘big bills and [would] just put up with the consequences later.’ Initially, too, he found the work interesting and he said it was a nicer environment in which to work. After about six weeks, however, his pain level was higher and he was falling asleep at work and his manager said he was not as effective as he should be. Although his initial three month contract was renewed, he left at the end of the six months in February 2004, because he said it would not have been ethical for him to seek a renewal when he was not being fully effective. He said he saw his GP about the issue but he could not remember when. He agreed it was probably not until a fortnight after he had left the Australian War Memorial.
22. Immediately after the cessation of his contract with the Australian War Memorial he went to Papua New Guinea on an assignment for Pacific Partners. His initial assignment in Papua New Guinea was for three weeks but he stayed for three months. However, he did return to Canberra in mid 2005. He was looking for work and used several recruitment agencies such as Verossity, Hudsons and Candle. He said he had four to five interviews in the six months to the end of 2005 but was not successful. He ran advertisement in The Canberra Times offering to repair home computers. He was also buying cars at auction, doing repairs and panel beating them for resale. He was in financial difficulties at the time, living in a group house and not paying rent. He also sought work through Fusion, and the Youth Centre in Woden, but without success. He was interested in a Defence position at HMAS Harman, but found it would take six to eight months to get a security clearance, so he did not pursue this option. Hence, in December 2005 he returned to work with Pacific Partners.
23. His base while working with the organisation is in Wewak, Papua New Guinea. His contract provides for him to be paid $55.00 per week plus food, accommodation and air fares when he has to travel. His evidence was that he and the three others who live in the group house in Wewak pay about $165 per month on water and electricity bills and their joint food bill is about $83 per week on groceries.
24. Mr Goodricke said as a project worker for Pacific Partners, he has been involved in relief work following a tsunami, and has assessed projects for suitability for community aid assistance. He provides training and advice on methods of doing things from a social, economic, and technological perspective. The aim is to bring appropriate technologies to a community to improve their productivity. Some of this work is repairing computers or moving parts from one computer to another to keep them functioning, or setting up or repairing radio stations. He estimates that he does two to three hours of keyboarding per day when required. There are no fixed hours in his contract of employment and he may do 2 – 3 days of work and then take a day or so off.
25. He says he manages the labour intensive side of the work by using a local person whom he is training to do the physical work under his direction. He also teaches basic engineering and electrical skills. He does this partly for skills transfer purposes but also because his arm conditions have resulted in some loss of manual dexterity. He says he is reasonably good at macro tasks like lifting, but has lost his fine motor skills. For example, he says his hands tend to drop coffee cups particularly in the morning.
26. He has now worked in Papua New Guinea, the Solomon Islands, Tonga and New Caledonia where he has been involved with community projects to do with hygiene, sewerage, alternative energy, training, and biodiversity projects. He has no set hours or days of work. Some days he spends in self-reflection. He manages his time around his injury. If he overdoes it he says he is sore the next day. He usually does his computer work in three hour blocks but no more, for 2 – 3 mornings a week. He also is involved in ministry work, so his technical work is only for a couple of days a week. He says his pain pops up from time to time and is unpredictable. He wants to do the ADAPT pain management course which Comcare has agreed to fund but it is only offered every 12 months. He cancelled his enrolment in the previous session for financial reasons.
27. Mr Goodricke said his present intention is to continue doing the work in which he is currently engaged. He believes he is using his skills and experience in a worthwhile fashion. He admitted if he had to come back to Australia he would draw on his other skills to get a different kind of job. However, he said even if he retrained he would not work a 9 – 5 day. Because of his medical conditions there are some days when he is not effective. He said he could not be a welfare worker since he saw on the internet that this requires a degree and involves a lot of report writing. He says he has dyslexia and relies heavily on a spell checker. Otherwise, he tends to write gibberish. At the moment someone is needed to check and edit his writing.
28. He believes his condition plateaued in the middle of 2000. He said he could do part-time work as an Information and Computer Technology (ICT) trainer, but not for 15 hours a week. He could not be a program administrator since that takes a lot of organisational ability. He could be a sales assistant, provided his employer coped with him only working part-time and running out of steam by 2:00pm.
29. In cross-examination, Mr Goodricke said his soreness or pain starts in the hands and moves up his arms and across his shoulder blades. He gets pins and needles in his finger tips and arms, and his palms are sore. He has had the condition now for some 10 years. The pain moves around depending on the time of day. He experiences both numbness and tingling at various times.
30. During the hearing, he said the pain in his forearm was a sharp pain and the pain across his shoulders was a dull ache. Activities such as using a lawnmower, writing, or doing computer work for any length of time provoked his pain. However, at other times the pain arises for no particular reason. He says he could no longer do full-time work. His Telecom work was only for one month and he could not have continued.
31. Mr Goodricke said he often does not feel pain at the time he does an activity, but experiences it later in the day. When he was with Health Services Australia he had chest pain initially but when the chest pain resolved he was left with arm pain. He says he is not totally incapacitated by his pain, but when it is severe he needs to expend mental energy in order to control the pain. Pain and its impact on his sleeping patterns are his biggest problems. He was taking sleeping pills but he found he was sleepy all the time and it deadened his ability to deal with his pain. He said he had tried marijuana, which was reasonably effective, but he does not have access to a supplier.
32. He says he has tried voice-activated software – Dragon Dictate, versions 5 and 6 – but has not used it for a while and he found it frustrating because of the need to go backwards and forwards. He manages emails with the help of others. His resume, prepared with the help of the Commonwealth Rehabilitation Service (CRS), says he has telephone maintenance skills, and computer engineer skills. His Telecom work involved fixing telephones in people’s homes or installing them.
33. He has worked as a shop manager and computer engineer designing and maintaining systems; in corporate sales as a personal computer supplier; doing computer design work for the Department of Defence; has managed his own computer business; has been an independent contractor network person for Comcare; worked for Austrade and the Department of Social Security as a trainer and mentor as well as on the IT help desk; and with the Jobsearch network, where he managed a team. He also worked for APRA as a contract worker; with Health Services Australia; and in engineering services for Telecom.
34. Mr Goodricke said he could do short-term computer work for up to 3 months. However, if his work was full-time in front of a computer he would last at most a week. Currently he does emails for about one-and-a-half to two hours a day, but said he could not write an essay for that length of time. He could only work full-time if an employer could cope with his idiosyncrasies. Handwriting is worse than keyboarding. His arms get sore within a couple of paragraphs. He avoids even completing short forms.
35. Counsel for Mr Goodricke pointed out that he was employed for a period in 2004 under the rehabilitation program with Spherion and he did systems analysis work for Telecom for one month. However, from February 2005 he has not worked in the IT industry. He would need considerable refresher training in computer software and systems to make him attractive to an employer. But there are appropriate short courses which would equip him to upgrade his skills.
36. As for remuneration, based on the standard publication in the area What Jobs Pay? 2009 – 2010 by Rodney Stinson, and taking account that he had some experience, he estimated that for a youth worker the gross figure for a 20 – 24 year old is $725 per week, and for a 25 – 29 year old is $840 per week. For a welfare worker, in the 20 – 24 year old age bracket he could earn $725 per week, and as a 25 – 29 year old he could earn $840 per week.
Medical evidence
37. On 19 April 2000, Dr Stefan Visagie, Mr Goodricke's general practitioner in Hobart, said Mr Goodricke’s prognosis was difficult. In 2000, Mr Goodricke could do 12 hours of work per week, but in Dr Visagie’s opinion, in 'a regulated work environment he would grade up each 2 weeks, aiming at more than 30 hours weekly in 6 weeks'. At the same time, he said it 'is difficult to estimate full recovery' at this time because of the prolonged dispute about his claim. As to suitability for work, Dr Visagie said 'keyboarding is [Mr Goodricke’s] job and without expert advice I cannot see alternative duties as possible. These restrictions relate to duration of work and rest breaks, interval exercise and work conditions'.
38. On 15 December 2000, Dr Hilton Francis, consultant rheumatologist, reported to Comcare that Mr Goodricke had a history of arm pain since he was 17 years of age, but that his symptoms were aggravated at work in 1999. Dr Francis noted the stress and anxiety arising out of perceived work stress suffered by Mr Goodricke and recommended counselling. He also said:
He is certainly restricted from returning to work on the basis of his symptoms and his psychological disturbance. He needs counselling. ... I believe he will continue to have symptoms indefinitely but he will cope better with them if the issues are dealt with. I think this will render him employable again. ... His capacity to work ... is quite limited.
39. On 14 November 2001, Dr Martin Ward, another of Mr Goodricke’s general practitioners in Hobart, reported to Comcare. In his report he said:
His pain is a major impediment to getting back into regular work. The reason his present situation sort of works is that he is virtually responsible to no one else, can make his own schedule and manipulate it around good and bad days. Working for a normal employer with their normal expectations of attending on time and functioning reasonably while at work will be a lot tougher than his present setup.
40. He noted that Mr Goodricke was 'presently approved for 12 hours keyboarding per week but is not managing that without an increase in his problems'. He also indicated Mr Goodricke would need major restrictions on his duties and the hours he worked and that he would have to start on reduced hours and build up.
41. On 17 December 2001, Dr Tony Kostos, rheumatologist, reported that there was no history of tenosynovitis or of repetitive strain injury. In his opinion, Mr Goodricke’s personality and psychological factors ‘probably contributed’ to his arm pain. For that reason, he was unable to suggest any restrictions for the workplace that might prevent or alleviate the symptoms. In his opinion, Mr Goodricke's capacity to return to work full-time would be determined by his perception of his symptoms. Dr Kostos believed he was fit for some work and there was ‘no objective way of deciding whether restrictions [for employment] are permanent or not’.
42. On 6 May 2003, Professor David Champion, consultant rheumatologist and physician, reported that Mr Goodricke had a fluctuating history of repetitive strain injury-type pain since his late teenage years, but noted that the condition had become worse in November 1999, during a period of intense keyboarding at work with Health Services Australia. Professor Champion diagnosed chronic regional cervicobrachial pain syndrome with neuropathic features, 'otherwise known as occupational overuse syndrome', and said Mr Goodricke had been unfit for keyboarding since his redundancy and had a 10 per cent permanent impairment in each arm in accordance with Table 9.4 of the Comcare Guide. Applying the Combined Values Chart, Professor Champion assessed whole person impairment at 19 per cent. In Professor Champion’s opinion, Mr Goodricke’s symptoms will persist potentially at a gradually reducing severity but noted that Mr Goodricke should be 'very careful ever returning intensively to [normal IT/keyboard operation duties]'.
43. On 16 March 2004, Dr Neil McGill, consultant rheumatologist, provided a report. He doubted Mr Goodricke had ever suffered any physical injury or condition in the arms and that the problem was psychological. He also said Mr Goodricke 'would be able to perform full time work provided he felt happy in the work place' and 'no restriction in regard to keying, computer mouse use, manual handling nor any other aspect of work is required'.
44. Dr Richard Rowe, Mr Goodricke’s treating general practitioner in Canberra, had been consulted in February 2000 because of chest pain. Dr Rowe said Mr Goodricke’s symptoms were related to stress and he advised that Mr Goodricke took time off work. Dr Rowe also provided a statement to the effect that on 10 March 2005 he consulted Mr Goodricke who had reported a ‘recurrence’ of his symptoms of regional pain syndrome which, as Dr Rowe said was an ‘aggravation of his existing ailment … probably caused by a recent 3 month contract’ with the Australian War Memorial. Dr Rowe did not address whether Mr Goodricke was capable of working at that time.
45. Dr David Elder, an occupational medicine specialist, provided an assessment on 17 November 2005. He reported Mr Goodricke as saying his symptoms either commenced at High School or at university during his engineering degree, when he developed forearm pain while writing a long essay or assignment. He said the difference between those occasions and the events of 1999 was that the symptoms did not resolve in 1999, whereas they did while he was studying.
46. In Dr Elder's view, Mr Goodricke had moderate lateral and medial epicondylitis bilaterally. He could identify no clinical evidence of tenosynitovitis or synovitis. There was evidence of soft tissue dysfunction, of forearm muscle deconditioning and poor muscle definition bilaterally, and small muscle wasting in the thenar eminences of both hands, the left worse than the right. There was also evidence of carpal tunnel syndrome that resulted from the work at Health Services Australia. In Dr Elder's opinion, the conditions were contributed to by both the employment contract at the Australian War Memorial, as well as at Health Services Australia. At the time he saw Mr Goodricke, his symptoms had improved to the pre-Australian War Memorial stage. However, he believed his prognosis was poor.
47. Professor Philip Sambrook, Professor of Rheumatology, Royal North Shore Hospital, provided a report on 2 February 2006. He found no swelling or synovitis of the upper limbs joints but said that Mr Goodricke had features of regional pain syndrome as well as electrophysiological evidence of carpal tunnel syndrome. In his view, Mr Goodricke would benefit from a pain management program, such as the ADAPT program at Royal North Shore Hospital. He found that Mr Goodricke 'would respond better to working in a non-stressful environment and the amount of keyboard work ... should be limited both in duration and in frequency and intensity'. Professor Sambrook noted that Mr Goodricke had said if he used the keyboard for between 15 to 30 minutes, his symptoms returned. Similarly, any form of activity involving rapid vibration or stress brought on his symptoms. Nonetheless, he noted that the condition to an extent had stabilised and improved.
48. Professor Sambrook provided a further report dated 14 November 2008 which essentially repeated his earlier report. His diagnosis was that Mr Goodricke continued to exhibit features of regional pain syndrome, with a suggestion of carpal tunnel syndrome. Professor Sambrook said while Mr Goodricke was working for Pacific Partners, he spent up to three hours per day keyboarding, at least half of which was work-related.
49. Dr Roger Reynolds, consultant general physician and rheumatologist, provided a report on 16 November 2009. Dr Reynolds saw Mr Goodricke in New Zealand on 1 October 2009. In his opinion, Mr Goodricke suffers from chronic pain syndrome of the shoulder girdle and upper limbs with central neural sensitisation. He observed evidence of gradual improvement in his 'symptoms, functional capacity, and in the slowly diminishing distribution and intensity of clinical findings.’ In his view, Mr Goodricke was predisposed to upper limb chronic pain disorders, given his history of forearm pain going back to his days in secondary and tertiary education. He would attribute his work at Health Services Australia as 75 per cent responsible for his symptoms, a proportion of which was due to stress, including the work intensity. He also found that Mr Goodricke had 'giveaway weakness' in his hands.
50. Dr Reynolds said that Mr Goodricke's work at the Australian War Memorial, even in that relatively relaxed work environment, resulted in an exacerbation of symptoms. He said Mr Goodricke's current work with Pacific Partners since August 2004, which involved little writing or computer work, made it difficult accurately to assess his work capacity. As a consequence he said:
It is very likely, but not certain, that his work capacity has also been impaired by lack of an active rehabilitation programme of the kind strongly advocated by Prof Sambrook in early 2006 and later 2008. Finally, there are aspects of [Mr Goodricke's] own behaviour that make work assessment difficult.
51. Dr Reynolds referred to Mr Goodricke's refusal to complete a brief enrolment form for his practice on the basis that it would provoke upper limb pain. As he said, this was surprising:
[for] someone who spends a substantial amount of time in remote areas of Papua New Guinea, attending to generators and radio aerials, not to mention performing the routines of daily life in a very basic environment.
52. As he went on:
For these reasons I think that the clinical examination is likely to have underestimated [Mr Goodricke's] true potential functional capacity, and that indeed his current volunteer activity also underutilises his capacity.
53. Dr Reynolds agreed with Professor Sambrook that Mr Goodricke would be better working in a non-stressful environment with keyboard work reduced in both frequency and intensity. He also agreed that if Mr Goodricke were to be involved in a pain management program this would further increase his ability to resume employment at an equivalent level to his work with Health Services Australia. At the same time, he believed Mr Goodricke was currently incapacitated from performing at that level, but his level of incapacity was slowly diminishing and would benefit further from involvement in a rehabilitation program. He should avoid working more than 50 per cent of the time at computer-based activities, and doing prolonged keyboard work. He believed with this assistance he would be capable of functioning as he was pre-Health Services Australia.
Other evidence
54. On 30 June 2009, Ms Philippa Grimes, occupational health physiotherapist, provided an Ability to Earn Assessment report. She said that from Mr Goodricke's description of his regional pain symptoms, 'it is currently not feasible for him to consider returning to an information technology employment role'. His current work entails 'greater elements of self-management and control over his work flow and workload volumes' which, by implication, Ms Grimes believed was preferable for him. She noted, however, that Mr Goodricke was capable of doing two hours computer work a day. In her view, Mr Goodricke 'has demonstrated ... the ability to return to work on a full-time basis, provided the computer component is limited'.
55. On 19 November 2009, Mr John Raue, vocational psychologist, reported to Comcare that Mr Goodricke has qualifications as a communication technician with Telecom; that he had no other formal qualifications except for Certificate IV in Youth Work (Christian); he has considerable experience in information technology and has done a variety of computer-related courses; there is a difference in opinion among the medical experts concerning his capacity for keyboarding work ranging between 3 hours a day (Professor Sambrook) and 50 per cent of the day (Dr Reynolds); that Mr Goodricke is undertaking full-time missionary type work and has no intention of doing otherwise; and that psychologically Mr Goodricke was fit to undertake a wide range of duties if he was disposed to do so.
56. Mr Raue described the occupations which Mr Goodricke had previously undertaken in accordance with the Australian and New Zealand Standard Classification of Occupations (ANZSCO). These were computer systems engineer; customer service manager; youth worker, welfare worker; ICT trainer; program administrator; ICT sales assistant; or inquiry clerk. Mr Raue said in his report that four hours per day computer use 'may be a reasonable assumption for the purposes of this assessment'. However, he noted that for administrative positions involving report writing, Mr Goodricke should contemplate voice dictation software. At the same time, he noted that for 'more technical hands-on systems engineering work’ such voice-activated software might not be suitable. He said:
In terms of work prospects, given his recent experience ... Mr Goodricke appears to be in a position where, if he chose to, he could seek paid welfare work either in general community welfare work or specifically in youth work. In terms of computer use, a range of jobs in the general computing area such as network engineering work or computer business analysis in which he makes recommendations to organisations on how systems can meet their needs or even some other computing work such as training work or sales work all seem within his skills base. He has run businesses and employed and supervised staff in the past. Organisational skills seem to be one of his main strengths in his current voluntary work.
57. Mr Raue said about 50 per cent of Mr Goodricke's computer work experience involved management, and the balance was operational work. In his view as a customer service manager, depending on the size of the organisation, more than 50 per cent of the work would be computer work. As a youth worker, the computer-based work would vary, but the majority would involve less than two hours day and in some cases there would be almost no keyboarding.
58. There is no requirement in Australia to have a degree in psychology to be a welfare worker. Generally, a diploma is sufficient. Some welfare workers have no formal qualifications. Mr Goodricke’s current occupations would fall into this category. For an ICT trainer, the keyboarding might involve up to 50 per cent of the work if the person was involved in writing programs or computer design. However, a person running courses would only be required to do occasional keying in work. Mr Goodricke’s work for Spherion was an example.
59. As a computer program administrator it would be common to require up to 50 per cent or more keyboarding if the person was designing or writing documentation, or had reports to finalise. A sales assistant, however, would have almost no computer work. As an inquiry clerk, the amount of keyboarding would vary with the role. An inquiry desk role would only be involved in intermittent keying in, while more telephone call-centred work, he might have to do keyboarding quite frequently. In Mr Raue’s view Mr Goodricke was capable of doing all these roles. He acknowledged that Mr Goodricke might need to upgrade his skills, but in his view, despite his lack of formal qualifications, Mr Goodricke was employable provided he had the motivation to return to mainstream employment.
60. In the course of the evidence, information was provided as to the potential earnings of someone employed in any of the occupations considered suitable for Mr Goodricke. These are outlined in the tables below.
61. Mr Rod Stinson ‘What Jobs Pay’ gives an estimate of the wage paid for 2004-2008 Labour Market Statistics for workers aged 30 years and over. The formula to be used by Comcare for the purpose of section 19(3) of the Act is:
(Adjustment % x Normal Weekly Earnings) – AE
The 85 percent and 75 percent columns in the following tables apply to the formula for the nominated percentages.
Normal Weekly Earnings are calculated at $1150.60 per week.
COMPUTER NETWORK AND SYSTEMS ENGINEER
2008 2007 2006 2005 2004 GROSS $1957.00 $1803.00 $1404.00 $1444.00 $1263.00 85% -$978.99 -$824.99 -$425.99 -$465.99 -$284.99 75% -$1094.05 -$940.05 -$541.05 -$581.05 -$400.05 CUSTOMER SERVICE MANAGER
2008 2007 2006 2005 2004 GROSS $1447.00 $1311.00 $914.00 $869.00 $856.00 85% -$468.99 -$332.99 $64.01 $109.01 $122.01 75% -$584.05 -$448.05 -$51.05 -$6.05 $6.95 YOUTH WORKER
2008 2007 2006 2005 2004 GROSS $1002.00 $1008.00 $952.00 $884.00 $821.00 85% -$23.99 -$29.99 $26.01 $94.01 $157.01 75% -$139.05 -$145.05 -$89.05 -$21.05 $41.95 WELFARE WORKER
2008 2007 2006 2005 2004 GROSS $1309.00 $1088.00 $982.00 $910.00 $889.00 85% -$330.99 -$109.99 -$3.99 $68.01 $89.01 75% -$446.05 -$225.05 -$119.05 -$47.05 -$26.05 ICT TRAINER
2008 2007 2006 2005 2004 GROSS $1447.00 $1382.00 $1146.00 $1091.00 $1073.00 85% -$468.99 -$403.99 -$167.99 -$112.99 -$94.99 75% -$584.05 -$519.05 -$283.05 -$228.05 -$210.05 PROGRAM ADMINISTRATOR
2008 2007 2006 2005 2004 GROSS $1439.00 $1549.00 $1331.00 $1234.00 $1204.00 85% -$460.99 -$570.99 -$352.99 -$255.99 -$225.99 75% -$576.05 -$686.05 -$468.05 -$371.05 -$341.05 SALES ASSISTANT (GENERAL) – COMPUTERS
2008 2007 2006 2005 2004 GROSS $756.00 $724.00 $738.00 $720.00 $661.00 85% $222.01 $254.01 $240.01 $258.01 $317.01 75% $106.95 $138.95 $124.95 $142.95 $201.95 INQUIRY CLERK
2008 2007 2006 2005 2004 GROSS $972.00 $931.00 $872.00 $815.00 $786.00 85% $6.01 $47.01 $106.01 $163.01 $192.01 75% -$109.05 -$68.05 -$9.05 $47.95 $76.95 Consideration
Whether Mr Goodricke is entitled to compensation for incapacity payments under section 19 of the Act for the period 7 August 2004 to the present?
62. There is no dispute that if Mr Goodricke is entitled to compensation for injury resulting in incapacity, that entitlement must flow from section 19 of the Act. The formula for assessing compensation in section 19(2) does not apply to Mr Goodricke’s claim since it relates to the first 45 weeks for which compensation for an injury is sought. Mr Goodricke has already received compensation for the same injury – his regional pain syndrome – for that period. The formula is found in section 19(3), which applies to the balance of the period and provides that the compensation is a percentage of the normal weekly earnings depending on whether an employee is engaged or could be engaged in full-time or part-time work.
Incapacity for work
63. The first issue is whether Mr Goodricke has an incapacity to work for the purposes of section 19, that is an incapacity to engage in any work, or an incapacity to engage in work at the same level at which he was engaged immediately before the injury happened.[3] The ‘level’ of work takes into account the type of work undertaken, the duration of that work, the grading of the position, and its level of remuneration.[4]
[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 4(9).
[4] Re Prica and Comcare (1996) 44 ALD 46.
64. Mr Goodricke is currently working for Pacific Partners and has been employed in other positions since 2000. He is not incapable of engaging ‘in any work’ under section 4(9)(a).[5] The sole issue is whether Mr Goodricke had an incapacity to engage in work at the same level at which he was engaged before the injury happened (section 4(9)(b)).
[5] The terms of s 4(9)(a) are the same in both the current and the previous version of the Act. The Act as it was prior to 13 April 2007 applies to certain periods considered in this decision.
65. Comcare in the reviewable decision conceded, on the medical evidence, that from 23 January 2006 Mr Goodricke had ‘an incapacity to engage in work at the same level at which he was engaged by the Commonwealth immediately before the injury happened’. That date was chosen since it was the date of a consultation by Mr Goodricke with Professor Sambrook which established that Mr Goodricke could only use the computer for 15-30 minutes before getting symptoms. As Comcare said:
The employee was working in an IT section as a senior systems engineer and, on the basis of Professor Sambrook’s report, I am satisfied that at that date he could not have engaged in work of the same nature and characteristics, namely, requiring substantial amounts of computer work.[6]
[6] Re Smith and Comcare [2002] AATA 249; Re Prica and Comcare (1996) 44 ALD 46.
66. The Tribunal affirms that finding in light of the evidence from the medical, occupational health and vocational experts before the Tribunal. Although the Tribunal accepts Dr Reynolds’s view that Mr Goodricke’s work with Pacific Partners since at least the end of 2005 has involved little writing or computer work and this makes it difficult accurately to assess his work capacity, the predominant medical and occupational experts’ view, and Mr Goodricke’s own testimony, indicates that he can manage keyboarding without exacerbating his symptoms for between 10 and 15 hours a week. Accordingly, the Tribunal finds that Mr Goodricke is currently incapable of working full-time as a computer systems engineer.
67. Mr Goodricke, however, has asserted he was entitled to incapacity payments under section 19 of the Act for the period from 7 August 2004. Initially, that requires a consideration of Mr Goodricke’s level of incapacity for the period 7 August 2004 to 22 January 2006, since Comcare has conceded that Mr Goodricke had an incapacity to engage in work from 23 January 2006.
68. ‘Incapacity’ is not defined in the Act. The classical definition of incapacity is found in Ball v William Hunt & Sons Ltd [1912] AC 496 at 450 :
In the ordinary and popular meaning which we are to attach to the language of this statute, I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch.
69. ‘Partial incapacity’ was described in Arnotts Snack Products Pty Ltd v Yacob:[7]
…the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.
[7] Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 178.
70. Mr Goodricke has a ‘physical defect’ and a ‘reduced physical capacity by reason of physical disability‘, namely, a regional pain syndrome which has been accepted as compensable by Comcare. There is some dispute in the medical evidence as to whether there is evidence of an organic source of the condition, but no dispute that his condition leads to a reduced physical capacity to work. Moreover, the Act’s definitions of ‘injury’ and ‘disease’ are sufficiently broad to encompass conditions such as regional pain syndrome.
71. Mr Goodricke’s evidence was that his position with Health Services Australia as a computer systems engineer was full-time and indeed required extensive overtime. However, as the position was under a fixed-term contract with no provision for overtime, his contract was considered to mean a 36.75 hour week. So his capacity must be tested against work as a computer systems engineer on at least a full-time basis.[8] Since the testing is being done for the period 2004 to 2006, the Tribunal has had regard to the earlier medical assessments.
Whether Mr Goodricke is currently incapacitated for work as a result of his accepted condition and, if so, the extent of his incapacity from August 2004?
Assessments of Incapacity to work – August 2004 to January 2006
[8] Re Prica an Comcare (1996) 44 ALD 46; Re Smith and Comcare [2002] AATA 249.
72. Dr Visagie said in April 2000 that Mr Goodricke was restricted to computing work for no more than 12 hours a week and could not resume his previous computer related duties without restrictions relating to ‘duration of work and rest breaks, interval exercise and work conditions’. Dr Francis, also in 2000, said ‘[Mr Goodricke’s] capacity to work is quite limited’ and his symptoms ‘will continue … indefinitely‘. In Dr Francis’s view, Mr Goodricke would need major restrictions in the hours he worked and on his duties to gradually build up to his former capacity. Dr Ward, who saw Mr Goodricke at the end of 2001, concluded Mr Goodricke’s regional pain condition meant he could not ‘presently’ do a maximum of 12 hours of keyboarding per week.
73. Dr Rowe referred to a ‘recurrence’ of Mr Goodricke’s ‘existing ailment’, namely, his regional pain syndrome symptoms. That suggests the underlying symptoms had not disappeared but were dormant and reactivated following intense computer based work. Dr Kostos, in December 2001, said Mr Goodricke was ‘fit for some work‘ but there was ‘no objective way of determining whether restrictions [for employment] are permanent or not’.
74. In 2003, Professor Champion had concluded that Mr Goodricke had been unfit for keyboarding since 2000 and, as he said: ‘Once [his symptoms] had developed to that extent… my expectation is that it will continue well into the future albeit potentially at a gradually reducing severity‘. He concluded ‘he has remained unfit for normal IT/Keyboard operation duties and would need to be very careful ever returning intensively to such a field of work’.
75. Dr Elder said in his report of 17 November 2005 that although Mr Goodricke’s symptoms had improved to the pre-Australian War Memorial stage, that improvement was not to the pre-Health Services Australia level. Dr Elder stated that Mr Goodricke has ‘essentially had symptoms from that time period [work at Health Services Australia] and that they were exacerbated …. and then they have gone back to their base line condition by the employment at the War Memorial’. In Dr Elder’s view his prognosis was ‘poor’.
76. Professor Sambrook, in 2006, found that Mr Goodricke experienced symptoms if he used the keyboard for 15 to 30 minutes. However, he concluded there was a ‘substantial chance‘ that Mr Goodricke could resume employment at his pre-injury level if he attended a pain management program. Until then, he said Mr Goodricke should work in a ‘non-stressful environment and the amount of keyboard work should be limited both in duration and in frequency and intensity‘.
77. The Tribunal finds that the predominant medical view from 2000 to the end of January 2006 was that Mr Goodricke was incapable of working at his pre-Health Services Australia level in a computer engineer systems role. In the experts’ opinion, which the Tribunal accepts, full-time work would only be possible in a relatively stress-free environment and with restrictions on the quantity, duration and intensity of keyboard work.
78. Mr Goodricke’s own evidence supports these views. In late 2003 till mid 2004, he was engaged by Spherion as a part-time computer instructor and engineer in a Comcare-funded rehabilitation program. Initially he was working 10 hours per week, and the Tribunal infers this was manageable since Mr Goodricke said when his hours were increased to 12 – 15 hours per week, this exacerbated his symptoms so he reverted to 10 hours.
79. At some point during his time with Spherion, Mr Goodricke was also working full-time as a Telecom technician. He undertook this work for one month. In explanation to the Tribunal Mr Goodricke said he only managed this because of short-term financial difficulties. The need is corroborated by evidence that as at 16 February 2004, Mr Goodricke owed Centrelink $7,494 for overpayment of disability support pension. However, Mr Goodricke said he knew that working at that intensity would have consequences and he found the increase in pain kept him awake, and left him exhausted so that he was falling asleep while at work with Spherion. Although this suggests that Mr Goodricke is capable of doing short-term assignments, the Tribunal finds, given these consequences for Mr Goodricke, that this short term ability to work did not mean that Mr Goodricke had returned to his pre-Health Services Australia capacity on a full-time and continuing basis.
80. That is borne out by Mr Goodricke’s work at the Australian War Memorial. From August 2004 until February 2005, Mr Goodricke was engaged full-time as a level 3 systems computing support officer. However, this exacerbated his symptoms from about six weeks into the first contract. Although he undertook a second three month contract, Mr Goodricke said as he was not working effectively because he was not sleeping and he did not seek a renewal of the contract and finished work in February 2005. Since then, Mr Goodricke has not been involved in any full-time computer systems engineer work.
81. On the basis of this evidence, the Tribunal finds that although his symptoms were improving Mr Goodricke’s incapacity to engage in computer-related work at the same level as he managed prior to his period with Health Services Australia continued from August 2004 to January 2006.
Assessment of capacity to engage in 'any other work' - August 2004 to present
82. Since Mr Goodricke is capable of working, section 4(9)(b) requires that capacity to engage in work at a pre-injury level must be tested not only against capacity to engage in the work being engaged in immediately pre-injury but also against 'any other work' at the same level. That requires identification of what forms of 'other work' Mr Goodricke was capable of doing.
83. Section 19 determines Comcare's liability to compensate for injuries resulting in incapacity for work and does so in terms of incapacity to engage in 'suitable employment'. Compensation is based on the difference between the amount of the employee’s normal weekly earnings (NWE) and ‘the amount per week (if any) that the employee is able to earn in suitable employment’ (AE or ability to earn) (emphasis added). 'Ability to earn' (AE) defines 'any work' in terms of 'suitable employment' (AE(a)) and 'any employment' (including self-employment)' (AE(b)). The description of ability to earn in section 19(2) applies also to section 19(3).
'Suitable employment'
84. The Tribunal notes that in the period to 12 April 2007 the Act defined 'suitable employment' in section 4(1)(a) as meaning:
(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 ... in work for which the employee is suited ...'; and
(b) in any other case - any employment (including self-employment) ...'.
Since 13 April 2007 the definition of 'suitable employment' was altered and paragraph (a) now only applies to an employee who 'continues' in Commonwealth employment.
85. Counsel who provided a statement of facts, issues and contentions for Mr Goodricke argued that for the period to 12 April 2007, 'Where paragraph (a) applies the work capacity of the injury employee can only be assessed against the labour market of Commonwealth employment ... and not against the labour market generally'. However, since Mr Goodricke was only employed by Health Services Australia on a fixed term contract for three years, the Tribunal finds that his employment was not 'permanent'.[9] That means paragraph (a) does not apply. In turn that means that 'suitable employment' for Mr Goodricke for the entire period from August 2004 to the present is covered by paragraph (b) of the definition which is in identical terms in the pre 13 April 2007 and the current versions of the Act and covers 'any employment (including) self-employment'.
[9] Re Arbuckle and Comcare (2005) 89 ALD 84.
86. What work is ‘suitable employment‘ is a question of fact but must take account of ‘the employee’s age, experience, training, language and other skills‘, as well as ‘suitability for rehabilitation or vocational training’ and ‘any other relevant matter’.[10] It is not necessary to explore with precision what constitutes ‘suitable employment‘.[11]
[10] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1).
[11] Pelgrave v Comcare Australia (2002) 36 AAR 1 at [19].
87. Although in 2000 Dr Visagie concluded that ‘alternative duties’ to keyboarding were not possible he noted that he was not an expert in occupational placement and others had dealt with the issue either in general or specific terms. Dr Ward said Mr Goodricke would need to do work in which he could set his own schedule and this was not ‘working for a normal employer with their normal expectations‘ but did not say whether he could work full-time in other forms of employment. Professor Champion warned Mr Goodricke against doing work in future involving ‘intensive IT/keyboard work’ but did not address other forms of work Dr McGill said his only restriction was to work in a work place in which he was happy.
88. Professor Sambrook would only hazard that his future occupation should be in a non-stressful environment with limited keyboard work and in order to return to full-time pre-Health Services Australia work Mr Goodricke would benefit from a pain management program. Dr Reynolds concurred with Professor Sambrook’s views. Similarly, Ms Grimes said it was not appropriate for Mr Goodricke to return to an information technology role. However, provided he had control over his work, and was involved no more than 2 hours keyboard work a day she said he had 'demonstrated the ability to return to work on a full-time basis'.
89. Mr Raue concluded Mr Goodricke was capable of working in a range of occupations apart from computer systems engineer including customer service manager; youth worker; welfare worker; ICT trainer; program administrator; ICT sales assistant; or enquiry clerk. For most of these positions keyboarding would be not exceed Mr Goodricke's capacity, but, for example, if as a welfare worker or program administrator he was required to do more extensive reports, in his opinion Mr Goodricke could manage these using voice-activated software.
90. Mr Goodricke’s curriculum vitae and his evidence indicates he has had wide-ranging work experience and possesses valuable skills, both in management, training, sales as well as computer engineer and design work. At the hearing, Mr Goodricke said if he were to return to Australia he would use his skills. However, he noted that as a welfare worker, although qualified, he did not think he could work 9-5, given that at present, on some days he is ineffective. He said report writing as a welfare worker would be difficult given not only the longer keyboard work involved but also his dyslexia which means someone has to check his work. He said as an ICT trainer he would also have to have someone check the training courses he would be required to write, but he can do the presenting at least for 50 per cent of the time. He denied he had the organisational ability to be a program administrator. As for sales assistant, he said he could do the work, provided he had an employer who coped with him 'running out of steam by 2.00pm'.
91. The Tribunal finds however, in summary, that Mr Goodricke has the capacity to engage full-time in employment which did not involve extensive writing or keyboarding. Such work is available in the occupations identified. To achieve work in these fields full-time, Mr Goodricke may need to be self-employed or work in a non-stressful environment with an understanding employer. Nonetheless, those are not insurmountable restrictions. A pre-requisite is that he undertake the pain management ADAPT program so that his sleep difficulties due to his current pain level become manageable. Mr Goodricke has said he plans to do the course when it is run in the middle of 2010. The Tribunal finds 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.
92. Finally, the Tribunal notes that what is ‘suitable employment’ must take account of the fact ‘that where employment is available in a place that would require [him] to change his place of residence, whether it is reasonable to expect [him]’ to do so.[12] The Tribunal notes that in order to undertake most of these occupations Mr Goodricke would need to return to live in Australia. However, the Tribunal, while accepting that Mr Goodricke has a strong commitment to his current missionary/support role for Pacific Partners and that he believes he is doing worthwhile work in that position, it is not unreasonable in deciding whether Comcare should be liable to compensate him, that he should be prepared to move in order to obtain work commensurate with his skill level and experience, thus reducing the burden on the public purse.[13] In that context, the Tribunal notes that the information in the DEEWR table headed Vocational Capacity Centre for these occupations in the Australian locations with which Mr Goodricke has closest links, Tasmania and the ACT, indicate that the job prospects are good for all these occupations with the exception of an ICT trainer, where the prospects are average.
The amount per week that Mr Goodricke is able to earn in suitable employment under section 19(4), according to the definition of ‘suitable employment’ in section 4(1)
[12] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1)(a)(iii) – definition of ‘suitable employment’.
[13] Re Chamberlain and Comcare [1997] AATA 17 at [63]; Re Peers and Commonwealth (1987) 14 ALD 209 at [33].
93. Having identified for the purposes of section 19(3) what full-time or part-time work subject to the restrictions is available to Mr Goodricke the next step is to decide whether Mr Goodricke to entitled to compensation. Section 19(4) sets out the factors to be taken into account in determining what an employee is able to earn in suitable employment. That is the case, whether or not Mr Goodricke would have been prepared to accept that work.[14]
[14] Martin v Australian Postal Corporation (2000) 32 AAR 199 at [34].
94. Apart from section 19(4)(g) - 'any other matter that Comcare considers relevant' each of the paragraphs refers to a defined amount.[15] The calculation requires a comparison between two amounts: the amount of Mr Goodricke's normal weekly earnings with Health Services Australia, as calculated under section 8 of the Act; and the amount per week (if any) that he is able to earn in 'suitable employment'.[16]
[15] Telstra Corporation Ltd v Slater [2001] FCA 149 at [39].
[16] Slater v Telstra Corporation Ltd [2001] FCA 1417 at [18].
95. Mr Goodricke’s normal weekly earnings (NWE) as a computer systems engineer have been accepted to vary from $1150.16 per week in 2001 to $1152.94 in 2009. Estimating the amount of his alternative employment (AE) is more problematic. At the hearing, there was discussion about whether Mr Goodricke’s AE levels should be set at the over 30 year age level, or at the 20-24, or 25-29 age levels, given his lack of experience in most of the suggested alternative occupations. The figures Comcare provided are for someone who is 30 years or older. The Tribunal finds that these figures are adequate for comparative purposes at the broad level being essayed by the Tribunal.
96. The Tribunal also notes that Mr Goodricke has pointed out that the amounts Mr Raue has listed are significantly higher than the ones published in What Jobs Pay 2009-2010 by Rod Stinson as well as those published by the Australian Bureau of Statistics. These are factors which impact on the accuracy of the figuring. Ultimately, Comcare should recalculate the Tribunal’s indicative figures, as required.
97. The evidence, although incomplete, establishes that from August 2004 until the present Mr Goodricke’s employment broadly has taken the following forms and been for the following periods:
·23 August 2004 – 25 February 2005: Australian War Memorial, Canberra (Full-time)
·25 March 2005-May 2005: Pacific Partners, Papua New Guinea (short-term assignment which extended for 3 months). Mr Goodricke was not fully employed during this period since on his own admission he has not set hours of work and takes days off when he needs or wants to do so.
·Mid 2005 – December 2005: Attempting to find work through various employment agencies, restoring vehicles for sale, computer repair work, Canberra.
·December 2005 – present: Pacific Partners, permanent employment.
98. Section 19(4)(a) covers periods when 'the employee is in employment'. In the period under consideration, namely from August 2004 to the present, Mr Goodricke was first employed at the Australian War Memorial as a level 3 systems computing support officer. That is one of the identified forms of employment which would be 'suitable'. The amount of compensation will, therefore, be considered under the discussion of the operation of section 19(3). Subsequently, Mr Goodricke has been employed by Pacific Partners earning a minimal amount of no more than $55.00 per week. This is not listed as employment which is 'suitable', so will not be further considered.
99. Sections 19(4)(b)-(d) do not apply. Mr Goodricke has not received an offer of suitable employment which he 'failed to accept', 'failed to engage in or to continue to engage in', or was made conditional on Mr Goodricke completing a 'rehabilitation or vocational retraining program' which he failed to comply with.
Whether Mr Goodricke has failed to seek suitable employment under section 19(4)(e)?
100. The central issue in considering section 19(4) relates to section 19(4)(e), namely, whether Mr Goodricke has 'failed to seek suitable employment'.
101. Since Mr Goodricke was engaged in suitable employment in the period August 2004 to February 2005, the question has to be asked only in relation to the time since February 2005. Initially, Mr Goodricke worked for Pacific Partners in Papua New Guinea for some three months before returning to Canberra. That period is one in which he was not working in suitable employment. At the same time from February 2005 until July 2005, Mr Goodricke provided evidence that he was assiduously applying for IT jobs. In that period, for example, he appeared to be close to accepting a position with Defence, until the issue of a security clearance arose.
102. By July 2005, Mr Goodricke had returned to Canberra. In the period July to December 2005 the Tribunal only has the evidence from Mr Goodricke at the hearing of his job-seeking in this period. He said he put ads in The Canberra Times for doing computer repair and other work, he was buying and doing up old cars for sale, and was doing some computer repair work. He also said he was using several job-seeking agencies in this period and the Tribunal has no reason to doubt this. The Tribunal has the evidence of these attempts as provided by one of the three or so providers Mr Goodricke was using. The Tribunal also infers that since the Verossity evidence of job-seeking refers principally to IT work, and this has been the field in which Mr Goodricke has the greatest skills and experience, that it would have been these kinds of jobs he would have been seeking. The Tribunal finds, as a consequence, that from February 2005 to December 2005, Mr Goodricke was taking steps to find 'suitable employment'.
103. From December 2005 Mr Goodricke has been working for Pacific Partners. That work, as the Tribunal has already found, although personally satisfying to Mr Goodricke, is not considered to be 'suitable employment' for the purposes of the Act. Mr Goodricke said in written and oral evidence, and when providing information to medical and other experts, that at present he has no intention of looking for other work. For these reasons, the Tribunal finds that since December 2005, Mr Goodricke has not been seeking 'suitable employment'. Nor, in the Tribunal's view, is Mr Goodricke's admittedly laudable beliefs in the worthwhile nature of this form of employment sufficient to justify Mr Goodricke's choice of occupation, given his skills and experience. On that basis, his choice is not considered to be 'reasonable in the circumstances' (section 19(4)(f)).
The number of hours per week that Mr Goodricke is in employment and the appropriate ‘adjustment percentage’ to apply under section 19(3)
104. The final step is to consider section 19(3) which sets out the amounts of compensation, if any, to which Mr Goodricke would be entitled. Mr Goodricke's claim is that an adjustment percentage should be applied under section 19(3)(c) of the Act. The Tribunal has not wholly accepted that claim. The Tribunal has found that Mr Goodricke is capable of working full-time in the identified occupations which do not require extensive keyboard work, in effect, all the occupations other than computer systems engineer. That means, in those weeks in which Mr Goodricke is not working between June and December 2005 and, for those occupations the relevant ‘adjustment percentage’ is 75 per cent (section 19(3)(a)). In those weeks in which Mr Goodricke is working as a computer systems engineer, the adjustment percentage is 85 per cent (section 19(3)(c)). The Tribunal does not have the exact dates of Mr Goodricke’s return to and departure from Australia in 2005, so it is also not in a position to provide the exact number of weeks involved.
105. In 2005, the Tribunal has assessed that for periods while he was in Canberra in the second half of that year Mr Goodricke would have had weeks when he was not working. The Tribunal has no evidence as to how many weeks he was in fact not at work, nor how much Mr Goodricke earned during that period and is, therefore, not in a position to undertake the calculation required. Accordingly the Tribunal remits the matter to Comcare to make the determination.
106. In order to undertake that calculation and to estimate Mr Goodricke’s AE for any weeks between the middle of 2005 and December 2005, indicative calculations have been provided in paragraph 60 of these reasons in accordance with section 19(3)(a), (c). The 85 per cent and 75 per cent columns represent the calculations in accordance with the formula in section 19(3). .
107. The table indicates that for several of the occupations listed application of the formula would produce a negative balance. That means in effect that Mr Goodricke’s compensation would have been nil. Those results indicate that from December 2005, Mr Goodricke has no entitlement to compensation.
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.
112. The Tribunal makes the usual order as to costs.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ......................[sgd]....................................
AssociateDate/s of Hearing 31 March - 1 April 2010
Date of Decision 1 June 2010
Counsel for the Applicant Ray Livingstone
Solicitor for the Applicant Unrepresented
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Australian Government Solicitor
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