Goodwin and Australian Postal Corporation
[2002] AATA 694
•15 August 2002
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2002] AATA 694
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/100
) No N2000/551
GENERAL ADMINISTRATIVE DIVISION ) Re GRAHAM JOHN GOODWIN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member
Dr M E C Thorpe, Member
Ms N Isenberg, MemberDate15 August 2002
PlaceSydney
Decision The tribunal decides that it has no jurisdiction to entertain application number N2000/100.
The tribunal affirms the decision under review in application number N2000/551.
The applicant is entitled to no costs in respect of either application for review.
[SGD] M J SASSELLA
Senior Member
CATCHWORDS
WORKERS' COMPENSATION – employee sustained compensable injury – employee required to commence rehabilitation program – employee failed to undertake rehabilitation program –determination requiring employee to undertake rehabilitation program revoked with legal effect – tribunal lacks jurisdiction to review refusal to engage in rehabilitation program – employee’s entitlement to weekly incapacity payments – offer of suitable employment made to employee – employee refused offer of suitable employment – employee able to earn what employer was prepared to pay had employee accepted offer of suitable employment.
Acts Interpretation Act 1901 s 33(3).
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“injury”, “suitable employment”), (9), 14(1), 19(1), (2), (4)(b), (g), 37(1), (3), (5), (7), (8), 38, 40.
Chowdhary v Bayne (1999) 29 AAR 100
Comcare v Rawling (1993) 42 FCR 421
Lagwa and Comcare, Re [1999] AATA 638
Prica and Comcare, Re (1996) 46 ALD 46
Quis and Comcare, Re (2001) 64 ALD 485
REASONS FOR DECISION
15 August 2002 Mr M J Sassella, Senior Member
Dr M E C Thorpe, Member
Ms N Isenberg, MemberHISTORY OF APPLICATION
1. On 21 March 1997 Mr Graham John Goodwin (“the applicant”) lodged with the Australian Postal Corporation (“the respondent”) an incident report (T6/9). On 20 March 1997 at 3.45 pm he had been delivering mail on an Australia Post motorcycle when he ran into the back of a car stopped at an intersection. He was tired and fatigued after doing his delivery round. He suffered a broken right leg, a compound break in the right arm and a broken wrist. He had been treated on the day of the event.
2. On 21 March 1997 Mr Goodwin also lodged a workers’ compensation claim with the respondent citing a broken right arm and leg, stitches to the left leg and bruising to the right side of his rib cage (T6/13).
3. On 9 April 1997 an Australia Post delegate decided to accept liability for the injuries, terming them “midshift fracture right tibia and fractured radius” (T9). Compensation was payable for lost wages and a series of subsequent determinations (T9/55-87) continued incapacity payments to 13 July 1999, some being reduced by an ability on Mr Goodwin’s part to earn income.
4. There followed a series of attempts by the respondent to have Mr Goodwin involve himself in return to work programs. These commenced on 23 January 1998 (T45) and produced little in the way of results. Mr Goodwin was aided by medical certificates (T7) which supported the position that he was unfit for work until 11 June 1998. The position as regards medical certifications is somewhat unclear until he is certified as fit for restricted duties from 11 June 1998 to 11 September 1998 (T7/28). However, on 17 June 1998 he was again certified as unfit for work because of an ankle injury (T7/29). By 8 July 1998 he was certified as suffering from depression (T7/30) and he had surgery on 13 July 1998 (T7/31). So far as actual return to work experience was concerned, he did return on 27 April 1998 (T64) and this lasted until July 1998 when, according to T79, he had an operation (T125/254).
5. The applicant returned to work again on 9 July 1999 (T137) but worked for only three days (T146) before falling while entering the workplace on 14 July 1999, a fall that prompted a successful claim for compensation for aggravation of of his right leg injury (T138). The claim was admitted on 10 August 1998 (T140).
6. In these attempts to have Mr Goodwin return to work on graduated rehabilitation programs a continuing theme was Australia Post’s insistence that he return to work at Kirrawee Delivery Centre, in the Sydney suburban area, rather than at Bellingen (near Coffs Harbour) where he had relocated. On 13 August 1999 Mr Goodwin wrote to Australia Post (T141) after he received a letter (T139) that stating that it would issue a determination that his compensation would be suspended unless he could provide a reasonable explanation for his failure to comply with his rehabilitation program, medical experts having said that he was fit for suitable duties. Mr Goodwin said, in part,
“I find it difficult to grasp your opening statement in relation to requirements of my rehabilitation program. It seems my needs are totally removed from this project.
“You have failed to mention in your letter that I have returned to Sydney on two previous occasions to comply with the rehabilitation program. Further, I find it disgusting that on my return to work on this most recent occasion, I was subjected, in the words of your department 'to being overlooked' and was sent off duty to recuperate. This placed a great deal of emotional pressure on me. I was never asked how I felt about this situation just sent home. Why; was I not offered support from the start? Why I am being discriminated against?
“Why not request why I returned to Bellingen on this occasion, and the events that occurred leading to Dr Heslop's report dated 30th July 1999. Rather than cast blame why I left Sydney.
“I feel that I am being discriminated against because of my injuries, Doctors appraisal in regard to working location and why can't I have the option of seeing a Psychologist.
“I have totally complied with the rehabilitation program and severely refute your accusation, I returned to Bellingen to be reviewed by my treating Doctor, who has stated not to return to Sydney after this second incident....”
7. In documents T142 to T145 in early September 1999 Australia Post officers are seen to be considering what to do with Mr Goodwin. Managers were seen to be reluctant to find selected duties for him to perform but were under pressure to do so because it was thought that he was preparing to lodge a claim for a psychiatric condition. It appears that there was not much in the way of duties for him to perform. It also appears that no thought was given to finding him a program he could undertake in or near Bellingen.
8. On 1 November 1999 a direction was issued to Mr Goodwin to return to work on 15 November 1999 at Kirrawee or he would be deemed to have abandoned his Australia Post employment (T154). This letter was revoked on 12 November 1999 because of medical material Australia Post had received (T157). On the same day, 12 November 1999, a delegate purported to decide to suspend Mr Goodwin’s rights to compensation in accordance with s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) (T156).
9. This letter was ill-conceived in several respects.
·First, s 37(7) operates automatically, without the need for a decision by a delegate, where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee, to suspend compensation entitlements[1]. The letter should merely have informed Mr Goodwin that s 37(7) had begun to operate and his rights had been suspended.
·Second, an employee’s rights to reconsideration of rehabilitation decisions arise under s 38 of the Act, not s 62 as the writer of the letter put to Mr Goodwin. However, absent a decision about another matter, there is no decision that can be reviewed where s 37(7) operates. There can, therefore, be no proper reviewable decision under s 38 of the Act in respect of a suspension under s 37(7) of the Act[2]. Section 38 may be of use in relation to the decision to require an employee to engage in a rehabilitation program in accordance with s 37(1). That is when the employee should protest the decision, ie before he or she is in breach of the requirement.
[1] Trajkowski v Telstra Corporation (1998) 81 FCR 459; Chowdhary v Bayne (1999) 29 AAR 100; Re Quis and Comcare (2001) 64 ALD 485.
[2] See Re Quis (above).
10. On 8 December 1999 a delegate decided to give Mr Goodwin something of a “second chance” by allowing him until 8 December 1999 to commence his rehabilitation program (T160). The letter to Mr Goodwin did not expressly say where he was to report on 8 December but it can be inferred that it was at Kirrawee.
11. On 17 December 1999 a reconsideration was sought (T162).
purported reviewable decision N2000/100
12. On 5 January 2000 a purported reviewable decision was issued (T164) affirming the decision of 8 December 1999 (appearing as T160).
13. On 21 January 2000 Mr Goodwin lodged with the Administrative Appeals Tribunal (“the tribunal”) an application for review of the “decision” to suspend Mr Goodwin’s compensation entitlements (T1). This is tribunal application N2000/100.
14. However, on 24 January 2000, most probably in ignorance of the tribunal application, a delegate within Australia Post wrote to Mr Goodwin stating that the suspension would not occur (T168).
15. On 25 January 2000 a delegate made a decision that Mr Goodwin qualified for incapacity payments at nil rate on the basis of his ability to earn (T169).
16. On 23 March 2000 a reconsideration of the nil rate decision was requested (ex TD2/T6)[3].
[3] Citations from the Section 37 Statement for application number N2000/551 are shown as T documents from ex TD2, the exhibit number for the Section 37 Statement.
reviewable decision N2000/551
17. On 31 March 2000 a delegate issued a reviewable decision (ex TD2/T7) affirming the decision of 25 January 2000 (T169 above). The decision-maker gave the following reasons:
·A workplace assessment dated 8 July 1999 (T135) provided the proposed work upgrading program. This followed an assessment done on 5 July 1999. It was intended that Mr Goodwin start work on 5 July 1999. He was regarded by Dr Gliksman, occupational physician, as fit to work normal hours on restricted duties. He was regarded by Dr Heslop, his general practitioner, as fit for suitable duties for five hours a day, four days a week with hourly five-minute rest breaks. By Dr Gliksman he was banned from lifting weights above certain limits, from prolonged walking or standing, from motorcycle delivery, from repetitive stair walking and from driving for longer than 30 minutes on any one occasion without a five-minute break before the next period of up to 30 minutes. By Dr Heslop he was restricted in that standing and walking were limited to half-hour periods with rests, walking was limited to 250 metres, he could only half-squat, he could do no motorcycle riding or heavy manual work. He could drive only an automatic car in half-hour spells. The selected duties were assisting other staff with sequenced seated streeting and clerical duties, where available. He was to work five hours a day over four days a week for one week. That would increase over a month to normal hours.
·Dr R Cameron, a surgeon, on 1 November 1999 (T153) had considered Mr Goodwin suitable for the duties he was performing in July 1999 prior to the injury he sustained on 14 July 1999. He regarded an arthroscopy of Mr Goodwin’s knee, injured in July 1999, as justified and he foresaw a reasonable period of temporary incapacity as the likely result of that procedure.
·Dr A G Hopcroft, a surgeon, on 9 November 1999 (T155) had conducted the arthroscopy on 5 November 1999 and had written that, on 8 November 1999, Mr Goodwin telephoned him to complain of some swelling of the left foot. He had advised Mr Goodwin to remove the dressings from his knee and use either the “Tubigrip” or the knee guard.
The decision-maker said that, as Dr Cameron had said that Mr Goodwin would only be temporarily incapacitated for work following the arthroscopy. He was satisfied that Mr Goodwin could have commenced a graduated return to full hours program similar to that proposed in July. This involved upgrading from 6 December to 29 December 1999. He concluded that Mr Goodwin should be regarded as able to earn for a number of hours in that period as follows:
·6-14 December 1999 20 hours a week.
·15-21 December 1999 30 hours a week.
·22-28 December 1999 35 hours a week.
·29 December 1999 onward full hours.
18. On 10 April 2000 Mr Goodwin lodged with the tribunal an application for review of the decision in paragraph 17 (ex TD2/T1).
RELEVANT LEGISLATION
19. The following provisions of the Safety, Rehabilitation and Compensation Act 1988 are relevant: ss 4(1) (“injury”, “suitable employment”), (9), 14(1), 19(1), (2), (4)(b), (g), 37(1), (3), (5), (7), (8), 38, 40.
SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
…
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, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment-employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence-whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case-any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv);
…
(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:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
Compensation for injuries
14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
Compensation for injuries resulting in incapacity
19. (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:
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.
…
(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:
…
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
…
(g) any other matter that Comcare considers relevant.
…
Provision of rehabilitation programs
37. (1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
…
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36 (8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
…
(5) Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
(a) if the employee is undertaking a full-time program-compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or
(b) if the employee is undertaking a part-time program-compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program.
…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8) Where an employee's right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
Review of certain determinations by Comcare
38. (1) As soon as practicable after a rehabilitation authority (other than a relevant authority) makes a determination under section 36 or 37, the authority shall cause to be served on the employee to whom the determination relates a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the employee may, if dissatisfied with the determination, request Comcare for a review of the determination under this section.
(2) An employee in respect of whom a determination under section 36 or 37 is made by a rehabilitation authority (other than a relevant authority) may, by notice in writing given to Comcare, request Comcare to review the determination.
(3) A request shall:
(a) set out the reasons for the request; and
(b) be given to Comcare within 30 days after the day on which the determination first came to the notice of the employee, or within such further period (if any) as Comcare, either before or after the expiration of that period, allows.
(4) On receipt of a request, Comcare shall review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit.
…
Duty to provide suitable employment
40. (1) Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.
(2) In this section:
"relevant employer" means:
(a) in relation to an employee employed by a Commonwealth authority-that authority; and
(aa) in relation to an employee employed by a licensed corporation-that corporation; and
(b) in relation to any other employee-the Commonwealth.
BACKGROUND[4]
[4] This is based on material in T3, T30, T39, T40, T49, T99 and T153.
20. Mr Goodwin was born on 29 December 1951 (T3) in Waverly, NSW (ex A9). He is the eldest of three children. His parents divorced when he was aged 14. He left school at age 15 because of family problems. He did not obtain the Intermediate Certificate or the School Certificate. He became an apprentice butcher and completed his apprenticeship.
21. He has worked for Australia Post, or its predecessor, several times. He worked in Redfern from about 1970 to 1974 and in Kempsey. In 1987 he worked at the Perth Mail Exchange until 1989. He has worked as a full-time casual at Australia Post since 13 February 1997 (T4). His temporary employment has been renewed repeatedly (T8, T22, T67, T96, T103, T105, T110, T121).
22. He has worked also as a milk vendor, as a labourer, as a coach driver for Pioneer Tours, as a lawnmowing contractor and as a deliveryman.
23. Mr Goodwin is divorced with one son born in 1990. He sees little of his son. At T60 it is suggested that Mr Goodwin has two children but this would seem incorrect.
24. Mr Goodwin has had an interest in martial arts, holding a “second dan black belt” in Jiu Jitsu.
25. Since his injury in 1997 Mr Goodwin has lived in Bellingen at different times with his brother, his mother and a friend. More recently he seemed to have moved away from his mother’s and was assisted by a female student sharing his house (ex R2). By April 2001 he was assisted in the house he owns in Bellingen by “a carer fellow” (ex R3).
HEARING, APPEARANCES AND DOCUMENTARY EVIDENCE
26. The tribunal convened a hearing in this matter in Sydney on 21 August 2001. Mr E Tuckerman of counsel represented Mr Goodwin. Mr B Kelly of counsel represented the Australian Postal Corporation. The tribunal heard oral evidence from Mr Goodwin. The tribunal had access to the following documentary evidence that was admitted and given exhibit numbers.
·Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1-T171) in application number N2000/100.
·Exhibit TD2 – Section 37 Statement and associated documents (exhibits T1-T7) in application number N2000/551.
·Exhibit A1 – Applicant’s statement of facts and contentions, undated.
·Exhibit A2 – Report by Dr A G Hopcroft, general surgeon, 22 February 1999.
·Exhibit A3 – Report (2 pp) by Dr Hopcroft, 17 September 1999.
·Exhibit A4 – Report (1 p) by Dr Hopcroft, 17 September 1999.
·Exhibit A5 – Report by Dr Hopcroft, 9 November 1999.
·Exhibit A6 – Report by Dr Hopcroft, 4 April 2000.
·Exhibit A7 – Report by Ms C Dinneen and Mr I F McCombie, psychologists, 26 September 2000.
·Exhibit A8 – Statement by Mr G A Healey, 19 August 2001.
·Exhibit A9 – Report by Ms Dinneen and Mr McCombie, 13 September 1999.
·Exhibit R1 – Respondent’s statement of facts and contentions, 10 August 2001.
·Exhibit R2 – Report by Dr A Hodgkinson, orthopaedic surgeon, 3 August 2000.
·Exhibit R3 – Report by Dr M Walden, psychiatrist, 26 April 2001.
·Exhibit R4 – Records from Osborne Park Hospital, Western Australia.
27. Two documents attracted objections from Mr Kelly and were marked for identification.
·MFI1 – Report by Mr B Casey, disability consultant, 8 November 1999.
·MFI2 – Report by Mr Casey, 9 October 2000.
EVIDENCE
medical evidence
28. Although a medical condition or variety of medical conditions are a basis for Mr Goodwin’s compensation entitlements, the focus on the medical evidence in this case is less central than usual. There is a strong measure of agreement between the experts that Mr Goodwin fractured the mid-shaft of the right tibia, in addition to damaging his wrist in compensable circumstances. Later he fell, again in compensable circumstances, and aggravated his leg problems. The respondent’s expert, Dr Gliksman, accepted in December 1997 (T40) that there had been a non-union of the mid-shaft fracture. He had also had some post-operative infection problems in the right leg.
29. By February 1998 Dr D Mills, an orthopaedic surgeon, considered (T49) that the union of the mid-shaft fracture was proceeding. By 4 November 1998 Dr I Harris, an orthopaedic surgeon, was writing that the shaft fracture had completely healed (T94). Dr I Chan, another orthopaedic surgeon, said something similar on 21 September 1998 (T88).
30. In May 1999 Dr Gliksman wrote (T125) that Mr Goodwin was suffering from the after-effects of a fracture of the mid-shaft of the right tibia and the subsequent osteotomy to the distal portion of the right tibia. Good bone union had occurred. Infection had resolved. He had been left with residual reduction in right ankle dorsiflexion power, mild paraesthesia distal to the original wound site and some right ankle laxity. He also had evidence of left knee degenerative change, “possibly secondary to his altered gait”.
31. The applicant, to judge from the material before the tribunal, has not claimed compensation for a psychiatric disorder. However, there is some evidence that he is depressed (T7/30) and may have post-traumatic stress disorder (T26, T30) resulting from the motor cycle accident. Psychologists R Tait and I McCombie reported on 23 March 1998 (T57) that he was depressed, tense, anxious and worried. They diagnosed “post-traumatic stress disorder – chronic”, “major depressive disorder – moderate to severe/chronic” and “pain disorder associated with psychological factors and a general medical condition – moderate/chronic”. By 13 September 1999 Ms Dinneen and Mr McCombie (ex A9) and by 25 October 1999 Ms Tait (T149) were diagnosing “major depressive disorder – recurrent/chronic/moderate severity”, “generalised anxiety disorder” and “pain disorder associated with psychological factors and a general medical condition”. A report dated 26 September 2000 contained almost identical diagnoses (ex A7).
32. Dr L Lee, a psychiatrist, reported on 9 April 1998 that Mr Goodwin was not depressed and anxious when interviewed (T60). Mr Goodwin registered extensive complaints about the work required of him by Australia Post. Dr Lee considered that Mr Goodwin had underlying psychological problems and exhibited abnormal illness behaviour preventing him from co-operating in his rehabilitation. Dr Lee’s report is noticeably judgmental and unsympathetic.
33. Dr M Walden, another psychiatrist, examined Mr Goodwin and reported on 26 April 2001 (ex R3). Dr Walden, as might be expected, was underwhelmed by the opinions of the psychologists, Tait, McCombie and Dinneen (paragraph 31 above). She considered that, as the psychologists themselves had said, that Mr Goodwin was “over reporting” his psychological symptoms. Dr Walden did not accept that the motor cycle accident could qualify as a sufficient stressor to ground a diagnosis of post-traumatic stress disorder. Mr Goodwin was suggesting for the psychologists that he had symptoms he had not disclosed to another psychologist, Mr B Kemp (T30) on 23 August 1997, a time closer to the accident. Dr Walden said that it would be unusual for him to have developed more symptoms as time went by.
34. Dr Walden did not agree with the diagnoses of major depression and a pain disorder. “Pain Disorder is not diagnosed when there is an underlying Mood Disorder”, presumably such as depression. She said also that it was odd that in a later report (T149) the psychologists considered that Mr Goodwin’s symptoms had improved over three counselling sessions yet he had symptoms sufficiently severe to attract a diagnosis of major depressive disorder. She said that it was not appropriate to diagnose generalised anxiety disorder because most people with some symptoms of depression feel somewhat anxious.
35. Dr Walden endorsed much of Dr Lee’s report (paragraph 32 above). She concluded that she did not think Mr Goodwin had a psychiatric illness at the time of the interview. She said that he had long standing personality difficulties. He was somewhat passive in dealing with conflict. He seemed to have taken on a somewhat passive and dependent role in getting others to do day to day chores for him. She thought Mr Goodwin psychologically fit for a return to work program if he chose to participate. He did not wish to do so and that was unlikely to change.
lay evidence
36. On 17 August 2001 Mr G A Healey, area manager for the Australia Post North Coast Delivery Network, provided a written statement (ex A8) in which he said that there were no openings for an Australia Post employee on the North Coast of NSW with the injuries that Mr Goodwin has.
37. The applicant gave sworn evidence at the hearing. He set out his problems with self-care in the home.
·He can walk no further than 200 metres, and that is assisted with a walking stick.
·He cannot scrub floors or clean baths. He tends to lose balance.
·He cannot make the bed.
·He cannot hang sheets on the line.
·He cannot do car maintenance.
38. He has support from others in Bellingen. He has found people prepared to use his spare room in return for providing him with household help. His mother, cousins and friends live nearby in Bellingen. He had gone to Sydney to work for Australia Post in 1997 because he was tired of living on social security payments and wanted to find work. Since his injury Australia Post had offered him work only at Kirrawee. He said that he could not accept. Accommodation is a problem in Sydney. He cannot look after himself. He said that he had a specialist’s agreement that this is the case[5].
[5] The tribunal can find no reference to such a specialist’s statement.
39. He described the difficulties of life for him in Sydney. He cannot handle the pace of life. The traffic and transport systems induce stress in him.
40. In cross-examination he agreed that he sorted mail for Australia Post in Perth in the 1980s. It was suggested that he could do that work again if seated. Mr Goodwin denied that there was no physical reason why he could not work in Sydney. He said that his life outside work hours would be a problem.
41. Mr Kelly asked Mr Goodwin to consider the rehabilitation plan dated 29 November 1997 (T38). This proposed a return to work with input from treating doctors, the occupational health and safety experts and the workplace. Rehabilitation counselling was also proposed. Mr Goodwin could not remember this document. The tribunal pauses to comment that the actual duties expected of Mr Goodwin were not specified. Mr Kelly indicated T39, Mr Goodwin’s response to the plan. This document was essentially a request for light duties work on the NSW North Coast. Mr Kelly put to Mr Goodwin that there were no medical reports precluding Mr Goodwin from living in Sydney. Mr Goodwin thought there may be but he was not certain.
42. Mr Kelly put to Mr Goodwin the views of a succession of doctors who saw Mr Goodwin as fit for restricted, sedentary duties. These included Dr Gliksman (T40), Dr Mills (T49) and Dr Chan (T50). He then referred Mr Goodwin to a letter Mr Goodwin had written on 13 March 1998 (T54) in response to a demand by Australia Post that Mr Goodwin was to return to work on 16 March 1998 as Kirrawee Delivery Centre. In his letter Mr Goodwin said that he agreed with the doctors that he could perform sedentary duties. However, he said that the problem was the requirement that he work in Sydney. He said, "However, I simply feel unsafe domestically in the rush and volume of city life alone, at this stage. I presently receive much-needed support from relatives while I am incapable of performing or functioning normally, due to my injuries. That support is unavailable in Sydney.... Therefore, I will not be participating in the Return to Work Program on 16 March 98. I am placing my mental + physical welfare ahead of Workers Compensation payments in choosing to remain amongst this necessary support."
43. Mr Kelly referred Mr Goodwin to a return to work program proposed for Mr Goodwin at Kirrawee (T56). The selected duties proposed were primary sorting, streeting and sequencing mail, assisting postal delivery officers as required within medical restrictions, distributing express post and other clerical duties as required. It was proposed that he commence by working four and a half hours a day for several weeks and gradually work up to normal hours over a six-week period. There were certain lifting restrictions in addition. Mr Goodwin agreed that he was physically capable of doing that work. Indeed, on 27 April 1998 he did return to work performing the duties outlined above for a period of some three months.
44. Mr Kelly then raised with Mr Goodwin his return to live in Bellingen after his major operation on his leg. He referred Mr Goodwin to a letter he had written on 29 November 1998 to Australia Post (T99) in which he explained that he was making that move in order to care for his 76 year-old mother. He wrote, "More importantly, my 76 year-old mother is showing signs of anxiety over my constantly changing medical circumstances. She can't be out of my sight for longer than minutes fearing I may have fallen. My crutch falls on the floor she panics, the continuity is now disaffecting her too much.... We are moving both into family owned premises which are close together, whilst my brother moves to Fernmount. I am confident family members + friends can cater for my basic needs in town easier than at present, where driving 5 kms applies.” Mr Kelly put to Mr Goodwin that the purpose of his move to live with his mother was to assist his mother, not that she would be assisting him. Mr Goodwin responded that the move was definitely for his own benefit. Mr Kelly then observed that the applicant no longer lived with his mother. The applicant explained that his mother had been extremely controlling and that this had caused emotional problems. That was why he had moved out.
45. Mr Kelly observed that Mr Goodwin had told Ms Tait, the psychologist, in January 1999 (T106) that he felt vulnerable in crowds, fearing that he could be attacked. He had felt unsafe in Sydney. He had said he could not drive in Sydney and that he felt that public transport was unsafe. Mr Kelly queried how it was then that Mr Goodwin had been able to work for three months in Sydney. It was explained that Mr Goodwin had driven to work however he had had problems driving because of slow reaction times caused by his injured leg. Mr Kelly suggested that there were similar dangers to driving in the country if one did not have rapid response times and he observed that Mr Goodwin had been a professional coach driver for a lengthy period. Mr Goodwin responded by insisting that driving is definitely easier to do in the country than in Sydney.
46. Mr Kelly referred Mr Goodwin to a letter he had written to Australia Post on 29 April 1999 (T116) in response to a demand for the return to work on 19 April 1999. Among other things in that letter, he had said, "I am totally prepared and am willing to undertake the rehab program.” He proceeded to ask that the program being reviewed with input from himself and his treating doctor in a bid to arrange suitable return to work date. Mr Kelly noted that Mr Goodwin had not mentioned problems associated with a return to work in Sydney.
47. Mr Kelly then referred Mr Goodwin to another return to work plan dated 5 July 1999 (T135). Mr Goodwin agreed that he was capable of doing the duties identified in that plan. These were covered in paragraph 17 above. Mr Kelly suggested that the only reason that Mr Goodwin rejected this program was that it would interrupt his life with his friends in Bellingen. Mr Goodwin responded that he could not recall saying that.
48. There was some discussion about Mr Goodwin's current employment status with Australia Post. Mr Kelly put to Mr Goodwin that selected duties were still available for him at Kirrawee post office. Mr Goodwin responded that he believed that he had been sacked. He presented that as a reason why he had not offered himself for rehabilitation. He agreed that he had not received any official notice of termination from Australia Post.
49. Mr Kelly challenged Mr Goodwin to show where in any of his reports Dr Hopcroft had said that Mr Goodwin could not return to work and restricted duties and selected duties at Kirrawee post office. Mr Goodwin said that he could not say where this had been written but reiterated that the problem is where he has to live, not the work on offer. Eventually, it was established that only Dr Heslop had written opposing the suggestion that Mr Goodwin should return to work in Sydney.
50. Mr Kelly then focused on Mr Goodwin's psychiatric condition. He put to Mr Goodwin that he had had treatment in 1988 at Osborne Park Hospital in Stirling, Western Australia. He suggested that Mr Goodwin had been treated for anxiety and depression. Further, he suggested that the reason for the difficulties was marriage problems at the time and that Mr Goodwin had engaged in marriage counselling. The papers from Osborne Park suggested that the marital conflict stemmed around the suggestion that Mr Goodwin did not want to work. Apparently Mr Goodwin was a househusband who stayed home looking after his son. He said at the time that he was anxious in a working environment. Mr Goodwin responded that it was not that so much as that he did not like both himself and his wife working and paying a baby sitter. In re-examination Mr Goodwin said that his treatment in Perth had been for mild anxiety and depression and that he had recovered when the marriage was over. However, since his motor vehicle accident his anxiety and depression had worsened.
51. Mr Kelly suggested that on 28 November 1991 Mr Goodwin had told the psychologist that the problem was that his wife wanted the family to move to Sydney. He suggested that the records showed that Mr Goodwin would not countenance this as an option. Mr Kelly suggested that the situation was the same now. Mr Goodwin agreed that he had not moved to Sydney until a further five years elapsed. Mr Kelly suggested that he made the move to Sydney so to have access to his son. Mr Goodwin replied that it was not that so much as that they had come to Sydney to find work. He was no longer occupied with childcare duties.
52. There was discussion about the care assistance Mr Goodwin has in Bellingen. It was suggested that he could arrange something similar in Sydney. Mr Goodwin doubted this because he said it would be difficult to find such a decent person to live with and assist him in Sydney. He admitted that he had not investigated this.
53. Mr Kelly put to Mr Goodwin that his refusal to return to work in Kirrawee was unreasonable. Mr Goodwin responded that might be Mr Kelly's opinion. Mr Kelly then put to Mr Goodwin that his failure to return to work was because he was unwilling to return to work on anything but his own terms. Mr Goodwin responded that that was Mr Kelly's opinion and that he did not agree.
54. In final submissions on Mr Goodwin’s behalf Mr Tuckerman said that, medically speaking, the applicant was fit to return to work for four hours a day. However, said Mr Tuckerman, it was not reasonable to require Mr Goodwin to live in Sydney if he were to be working only four hours a day on a small wage.
55. Mr Goodwin was incapable of doing housework and finding a carer in Sydney and would be fraught with risk. Mr Tuckerman submitted that that Mr Goodwin could not live in Sydney because of his neurosis, his injury and his finances. He had been able to cope with his depression and anxiety while working for Australia Post but he had lost control after the accident. Mr Goodwin would have difficulty moving around in Sydney. He would have a miserable existence. On the other hand he had a safety net in Bellingen. Mr Tuckerman said that Mr Goodwin has a significant psychological or psychiatric problem. Mr Tuckerman criticised Australia Post for never investigating work for Mr Goodwin on the North Coast. If any organisation could find work there for Mr Goodwin it would have to be Australia Post, given its size. In view of these considerations Mr Goodwin’s refusal to return to work was said to be reasonable.
respondent’s final submissions
56. Mr Kelly commenced by rebutting Mr Tuckerman's submissions concerning the size of Australia Post and its capacity to find work on the North Post for Mr Goodwin. He referred to ex A8 in which Mr Healey had stated that there was no work suitable for Mr Goodwin in that part of New South Wales. Mr Kelly then said that the size of Australia Post was not relevant, in any event. He said that the issue was the reasonableness of the response of an employee to an offer of work. He referred to the decision of the Federal Court in Comcare v Rawling (1993) 42 FCR 421 for the proposition that it is the reasonableness of an employee’s response to an offer of work that is the issue in respect of s 19 of the Act. He submitted that the employer’s obligation is to provide suitable employment, not to provide employment where the employee demands it.
57. Mr Kelly proceeded to submit that at all times Australia Post had made suitable duties available to Mr Goodwin. He referred the tribunal to T156, the notice to Mr Goodwin telling him that his compensation rights were suspended under s 37(7) of the Act. It was clarified in the notice that psychological counselling services had been provided for Mr Goodwin [these were the Tait/McCombie/Dinneen services] and would be provided again on Mr Goodwin’s return to work in Sydney.
58. Mr Kelly pointed out that Mr Goodwin had successfully returned to work from April to July 1998 and that that arrangement had been interrupted only by the need for Mr Goodwin to have another operation. Mr Kelly indicated that Mr Goodwin had again returned to work in July 1999 under threat of suspended benefits. Although that return had been frustrated by a new injury after several days, medical experts had later certified that the duties performed at the time remained suitable.
59. Mr Kelly submitted that the only medical opinion against the return to work came from Dr Heslop and his views were based on socio-psychological concerns.
60. Mr Kelly submitted that the Tait/McCombie/Dinneen reports were deficient because the writers had not known of Mr Goodwin’s psychiatric history in Western Australia. Mr Kelly submitted that Mr Goodwin had a problem in Perth that was in no way mild. In a report dated 3 January 1991 (in ex R4) Dr J Hardy described Mr Goodwin as “quite disabled”. Mr Kelly said that the documents in ex R4 showed that Mr Goodwin had had a set against Sydney since as early as 1990. On 28 November 1991 doctors identified Sydney as an issue between Mr and Mrs Goodwin. On 3 January 1992 Mr and Mrs Goodwin had had an argument about Sydney. The same entry occurred on 6 March 1992.
61. Mr Kelly submitted that Mr Goodwin had been set on a move to the North Coast. Even before the first return to work plan he had written to the respondent seeking light duties on the North Coast (T39, 4 December 1997). Mr Kelly said that, save for the two periods when Mr Goodwin did return to work, a North Coast location had been his consistent demand.
62. Mr Kelly suggested that all of the medical evidence, when taken into account along with the other documentary evidence, is consistent with Dr Lee’s views. Dr Lee said (T60) that Mr Goodwin was an unco-operative, angry and litigious man who was engaging in passive aggressive behaviour and was refusing to co-operate in his rehabilitation. Dr Lee absorbed that Mr Goodwin was angry that he had been refused rehabilitation at a country mail centre. Dr Lee proceeded to say that Mr Goodwin had underlying psychological problems. He had not resolved his dependency on his mother and was angry with the world in general. Dr Lee said that he believed that these factors were causing Mr Goodwin to indulge in abnormal illness behaviour and were preventing him from co-operating with a rehabilitation plan. He said that he believed Mr Goodwin to be angry and litigious. Mr Goodwin had not appeared depressed or anxious at interview. Dr Lee concluded that Mr Goodwin was not motivated to participate in a Sydney-based return to work program and it remained to be seen if he would be cooperative in a country based program if one were offered.
63. Mr Kelly referred also to the report by Dr Walden (ex R3). Dr Walden had recorded at page 5 of the report that, as regards a return to work, Mr Goodwin had made clear that he did not wish to return to work in Sydney. He considered that the problem was not the work itself but that he had nowhere to live and no support in Sydney and that, as such, he did not consider that he could manage outside of work. He had stated that he was prepared to do light duties work at Coffs Harbour. However, she said, it seemed that even prior to his accident Mr Goodwin was dissatisfied with his work at Australia Post. He considered that he had been worked too hard and stated that on the morning of the accident he had actually phoned Greyhound to see if he could get his old job back but had ascertained that no work was available at that time. Mr Kelly submitted that these comments indicated that Mr Goodwin had not seriously tried to accept the notion of working in Sydney. He said that, after all, Mr Goodwin had returned on two occasions to Sydney to work and had made no particular complaint about experiencing any difficulties.
64. Mr Kelly also tapped into part of the history taken by Dr Walden where Mr Goodwin had said that he was no longer anxious driving. Mr Kelly observed that was at odds with what the applicant had told the tribunal at the hearing.
65. Mr Kelly submitted that Mr Goodwin had always had an aversion to living in Sydney but that what he now had was an excuse not to come back to Sydney and an excuse to remain living in Bellingen. Mr Kelly said that Mr Goodwin had exhibited a complete unwillingness to come back to Sydney, or indeed to go back to work for the respondent in suitable light duties on anything other than his own terms.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
66. The tribunal finds that Mr Goodwin suffered an injury as defined in s 4(1) of the Act on 20 March 1997 when he collided with a car while riding on an Australia Post motor cycle. This has not been challenged by the respondent.
67. The tribunal finds that the applicant suffered a second compensable injury on 14 July 1999 when he slipped on the way in to work on 14 July 1999. This has not been challenged by the respondent.
68. The tribunal finds that the respondent accepted lability under s 14(1) of the Act in respect of each of these injuries (T9, T140).
69. The tribunal finds that there is nothing in the evidence before it to suggest that the respondent has ever decided that liability to compensate Mr Goodwin has ceased. The tribunal considers that it is appropriate there has been no decision to cease effects because, judging from the medical evidence, Mr Goodwin still clearly suffers some ill-effects from his first injury.
70. There has, however, been a determination that Mr Goodwin is to undertake a rehabilitation program (T160) and a refusal by Mr Goodwin to undertake the program. As was explained in paragraph 9 above, such a refusal has the automatic effect of suspending Mr Goodwin’s compensation entitlements. He can, under s 37(7) of the Act, resolve the situation by beginning to engage in the program.
71. However, the tribunal finds that a decision-maker within Australia Post on 24 January 2000 purported “not to pursue” action regarding suspension under s 37(7) of the Act “at this time” (T168). The only reason given was advice that Mr Goodwin required continuing treatments. This decision-maker was the same person who required Mr Goodwin to undertake the rehabilitation program in T160.
72. As was explained in paragraph 9 above, with some exceptions that do not apply here, there is no capacity to review a suspension under s 37(7). However, the tribunal considers that what the writer of the letter did on 24 January 2000 was to revoke the determination under s 37(1) of the Act that Mr Goodwin should undertake a rehabilitation program. There may be some doubt whether a delegate has the power to revisit his or her decision. The well-known doctrine of functus officio would suggest that there is not. There is, however, s 33(3) of the Acts Interpretation Act 1901 which reads as follows:
Exercise of powers and duties
33. (1)
…
(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
73. This provision has been read as permitting a person who issues a determination to revoke, vary or amend such a determination unless a contrary intention appears. It is arguable in the present context that the existence of the review mechanism in s 38 of the Act evidences such a contrary intention, but the tribunal considers that something more explicit is probably necessary if s 33(3) is to be ousted.
74. The tribunal therefore finds that the respondent has lawfully revoked the determination to require Mr Goodwin to undertake a rehabilitation program.
75. In so far as disposal of application number N2000/100 is concerned, for the reasons given in paragraph 9 above the tribunal finds that it had no jurisdiction to consider that application in any event.
76. The tribunal has, therefore, only to make a decision in relation to application number N2000/551. Fortunately the presentation of the case before the tribunal concentrated on issues relevant to that application.
77. At base Mr Goodwin is seeking reinstatement of his incapacity payments under s 19 of the Act. Any success Mr Goodwin may have under s 19 is predicated on a finding that he is incapacitated for work as the result of an injury as defined in the Act (s 19(1)). In accordance with s 4(9) of the Act Mr Goodwin will be incapacitated for work if, as a result of an injury, he has either, an incapacity to engage in any work, or an incapacity to engage in work at the same level at which he was engaged by the licensed corporation in that work, or any other work, immediately before the injury happened.
78. In the present case the medical experts agree that Mr Goodwin can engage in light duties. However, he cannot engage in the range of duties, notably mail delivery on a motor cycle, he was doing before the injury in March 1997. This was Dr Hodgkinson’s view on 3 August 2000 (ex R2), for example, but it is a constant thread running through the medical reports. In Re Prica and Comcare (1996) 44 ALD 46 the tribunal addressed the situation where the employer retains an injured employee on lighter work but at the same or a higher salary than he or she enjoyed immediately before the injury. The tribunal said in paragraphs 22 and 23 (at page 51):
“The phrase ‘at the same level’ in para (b) of the definition does not appear to have been the subject of consideration by a Court or this Tribunal. The reference to ‘level’ could be construed as a reference to a grade or salary level or could be a reference to the nature of the work in the sense of its characteristics, which will include its degree of difficulty. If the former construction were adopted it would produce the apparently anomalous result that a person with severe (or moderate) disabilities would be found to lack any incapacity for work as long as they continued to occupy the same grading or earn the same salary as at the date of the injury. The anomaly would not arise under the latter construction. A finding of an incapacity itself does not necessarily result in any entitlement to periodic or lump sum compensation under the Act. There are additional requirements in ss 19, 24 and 27 concerning those issues. Hence a construction of s 4(9)(b) which permits a finding of an incapacity for work in circumstances where the applicant subsequent to an injury is engaged in light duties at their former salary does not produce any anomaly within the Act and recognises that incapacity for work is a relative concept and a matter of degree.
“We are satisfied that in the period from the applicant’s return to work after the mid-1991 accident, to the point of his leaving his employment, the applicant was not engaged in work at the same level as that in which he was engaged prior to that accident. The respondent adduced evidence designed to establish that from 6 November 1992 until the present the applicant has retained his capacity for the post mid-1991 lighter duties in the proof coin area. This may or may not be established, but for present purposes we note that the respondent did not seek to show that the applicant could still perform his pre-mid 1991 duties in the circulation coin area. We would thus find that from 6 November 1992 until the present that the applicant does have an incapacity for work.”
79. The tribunal accepts the interpretation of “work at the same level” adopted in Prica (above) and finds that Mr Goodwin is incapacitated for work as a result of his compensable injury.
80. Section 19(2) then provides for Mr Goodwin to be compensated at the level of his normal weekly earnings (or a percentage thereof in accordance with s 19(3) of the Act) minus the amount per week he is able to earn in suitable employment. It is Australia Post’s case that Mr Goodwin is able to earn his full salary by returning to work at Kirrawee on light duties. Thus, the respondent says, Mr Goodwin qualifies for a nil rate of weekly compensation.
81. Section 19(4) of the Act provides a number of scenarios and determines an employee’s ability to earn where any of them apply. Australia Post could be relying on s 19(4)(b) or (c) of the Act. However, each of these provisions depends on a finding that the respondent offered Mr Goodwin “suitable employment” as defined in s 4(1) of the Act.
82. Mr Goodwin was not a permanent employee of Australia Post so paragraph (a) of the definition of “suitable employment” may not be applicable. This is not free from doubt, however, because Australia Post consistently entered into fresh temporary employment contracts with Mr Goodwin which continued, according to the documents before the tribunal, until 31 December 1999 (T121). There is also Mr Kelly’s proposition in paragraph 57 above that suitable duties have always been on offer to Mr Goodwin and remained on offer at the time of the hearing.
83. Paragraph (b) of the definition of “suitable employment” states that suitable employment for a non-permanent employee who has suffered an injury attracting compensation under the Act is “any employment (including self-employment), having regard to” four factors listed. If paragraph (a) applies, “suitable employment” is employment by the licensed corporation in work for which Mr Goodwin is suitable, having regard to the same four factors as in paragraph (b). As there is an offer of work with Australia Post apparently still on the table for Mr Goodwin, the tribunal finds paragraph (a) to be applicable.
84. The factors, and findings in relation to them, are now considered. First, the employee’s age, experience, training, language and other skills are relevant. The tribunal described the employment on offer in paragraph 17 above. The tribunal finds that that employment was suitable in relation to the employee’s age, etc as just enumerated. The work on offer was within his capabilities and he was not notably overqualified for it.
85. Second, regard should be had to Mr Goodwin’s suitability for rehabilitation or vocational retraining. It is not clear to the tribunal that the most appropriate attention was paid to this matter. The tribunal has already referred to something of a scramble to find some duties for Mr Goodwin late in 1999. This is a summary of the relevant documents.
·On 1 September 1999 a human resources officer in Australia Post wrote to the “Delivery” department inquiring what duties could be found for Mr Goodwin in view of his restrictions (T142). The restrictions were that (i) he had to travel to and from work in daylight because of poor mobility, (ii) he was limited to walking 200 metres and that was with a stick, (iii) he could stand a half-hour maximum followed by a half-hour seated time, (iv) no bending, pushing, pulling, squatting, climbing or walking on uneven ground. It was noted that “VSORTS” (a new type of sorting frame) had been introduced at Kirrawee and these would not be amenable to use for suitable duties. An occupational therapist on 5 July 1999 had suggested presorting of mail or printing labels for the VSORT frame, seated data entry and walking to the frames to change labels, etc. However it was noted that such work would require training in computer skills. The writer sought advice on suitable duties available.
·On 2 September 1999 the recipient of the above request responded (T143). The delivery manager at Kirrawee had advised that he had nothing suitable for Mr Goodwin “at this time” due to the introduction of VSORT. A similar situation was said to apply in all offices. He wrote, however, that “The mail centres might be another option. They have plenty of sit down jobs during the day.”
·On 2 September 1999 the same human resources officer wrote to a more senior officer about “lack of suitable duties” (T144). She wrote:
“This fellow is currently living in Bellingen and Nancy has obtained agreement from his GP for his RTW. Based on the fact that we are now in a much stronger position to bring him back to work with the support of his GP and the independent medical advice, it is crucial that we offer him SD’s immediately.
“Nancy had also found out that he has a medico-legal psych assessment next Friday which, presumably, has been arranged by his solicitor in an attempt to claim compensation for his reported depression.
“Rehab has paid for some counselling to help with his adjustment to disability. He has spoken to Nancy today and stated he was reportedly suicidal so we have approved some further sessions.
“For all the above reasons, could you please intervene and assist with ‘persuading’ management to offer SD’s. He's fit for indoor duties with limited lifting and standing tolerances and needs to work during daylight hours due to his knee injury, as per his GP's request. This is to minimise the risk of further injury to his knee as last time the returned to work he injured his knee again while walking in the dark.”
·On 13 September 1999 the human resources officer was sent a message stating that suitable duties had been found (T145). They were return to sender stamping, administrative duties, assist with scanning express post mail, assist with “VSORT iaw tolerances”, ie standing maximum 30 minutes followed by sitting with leg elevated for 30 minutes. The writer was to liaise with Mr Goodwin’s doctor to ensure his support.
It should be recorded that occupational therapists or similarly qualified persons were engaged in relation to each return to work exercise. However, it is unclear, for example, why some consideration was not given to retraining Mr Goodwin in computer work given that he was not fit to return to delivery work. Despite some reservations about the process, the tribunal finds that due regard was had to this matter.
86. Third, where employment is available in a place that would require the employee to change his or her place of residence it is necessary to consider whether it is reasonable to expect the employee to change his or her place of residence. This factor is central to the present case. The arguments of the parties can be summarised as follows.
87. The applicant argued that for an offer of employment to be “suitable” it should permit him to do the work where he is in Bellingen. Mr Goodwin’s own reasons for wanting to live and work in or near Bellingen were:
·There were few villages, mail sidings and travel routes he was not familiar with on the North Coast (T39).
·He had all manner of family support available in Bellingen and virtually no similar support in Sydney. He was confident that his physical condition would improve with family support (T39).
·He had little knowledge of procedures at Kirrawee where he was still learning his first round when injured (T39).
·He felt unsafe domestically in the rush and volume of city life alone, as at March 1998. He was receiving “much needed support” from relatives while incapable of performing normally due to his injuries. Such support was unavailable in Sydney (T54).
·Mr Goodwin’s then 76-year old mother was concerned for Mr Goodwin’s welfare and did not want him out of her sight. She tended to fear that he may have fallen. He and his mother were moving as at November 1998 into “family owned premises” which were close together (T99).
88. Mr Tuckerman’s reasons for the alleged unreasonableness of the employment offer were:
·The job at Kirrawee involved Mr Goodwin in working only four hours a day on a small wage.
·Mr Goodwin was incapable of doing housework and finding a carer in Sydney and a move there would be fraught with risk.
·Mr Goodwin could not live in Sydney because of his neurosis, his injury and his finances.
·Mr Goodwin would have difficulty moving around in Sydney. He would have a miserable existence.
·Mr Goodwin had a “safety net” in Bellingen.
·Australia Post had never investigated work for Mr Goodwin on the North Coast. If any organisation could find work there for Mr Goodwin it would have to be Australia Post, given its size.
89. The views of experts offering some possibly positive comment on Mr Goodwin’s desire to live and work in or near Bellingen were:
·Dr Chan recorded on 27 February 1998 (T50) that Mr Goodwin had sustained a psychological trauma in that he was fearful of further accidents on a motor cycle as well as fearful that he may not cope living by himself in Sydney. Mr Goodwin had said that he felt much more comfortable staying at Coffs Harbour as at least he had the back up of his mother there. However, Dr Chan recommended orthopaedic follow up that could occur in either Sydney or Coffs Harbour. He expressed no real preference for Coffs Harbour.
·Ms Tait and Mr McCombie on 23 March 1998 (T57) wrote that, since the accident, Mr Goodwin had moved to Bellingen where he had little responsibility and where he had withdrawn from the world. This had given him time to think and ruminate about his accident and his injury, which had increased his arousal, his depression and his anger. This set of comments is at best ambiguous as a guide to what should be done for Mr Goodwin.
·Ms Tait on 20 January 1999 (T106) wrote that she felt that Mr Goodwin's perception that he had been unsupported by his employer during his whole deal, his pre-existing belief that Sydney was unsafe place to live in and his perception of a lack of support in Sydney decreased his motivation to return to work in Sydney and maintained his illness beliefs.
·Dr Heslop on 5 May 1999 (T118) was strongly of the view that Mr Goodwin should be committed to work in the Bellingen -- Coffs Harbour area. He wrote:
“Mr Goodwin is in slow recovery phase following an accident at work on the 20/3/97. He has had number of operations and complications concerned with the compound fracture of his right tibia, and is at present cleared to work with the following restrictions.
“The first and foremost of this is that I do not think that he is fit for work in the Sydney metropolitan area. He has his family and social support in the Bellingen -- Coffs Harbour area and depends on these quite a deal at the moment to cope with his life.
“During the accident post-recovery time he has suffered from Depression and found it difficult to cope, though he is now over that but remains at risk. His reaction times with his left leg are now slower, and I think that in any heavy traffic or normal metropolitan traffic he would be at risk if he were doing any driving. He is safer driving in the country areas. He suffers a degree of anxiety, when faced with heavy traffic driving.
“For Mr Goodwin to find accommodation, moving and maintain living in the Sydney metropolitan area, I think is beyond him at this time, and will be in the foreseeable future. He is set up to live here in Bellingen and copes in this situation with family support....
“In summary, the issue here is whether Mr Goodwin is fit to work in Sydney and I do not think that he is fit and I feel that if he's rostered on any duties in Sydney that he will come to grief. I do not think it is in the best medical and psychological interests of Mr Goodwin to be working in the Sydney metropolitan area.
“I would request that he be rostered for work with Australia Post in the Coffs Harbour area, where he can maintain his family support and ties and where I think that he will cope much more fully....
“I think that if Mr Goodwin is required to work in Sydney it is opening up for further deterioration and problems related to his legs and to his general health and to his psychological state. All of which could be avoided if he is rostered for work in the Coffs Harbour area under the restrictions outlined in the return-to-work form.
“If Mr Goodwin is forced to return to work in Sydney then the person who decides that should be held responsible for his health outcomes, as it is not in his best medical interests.”
This was the most supportive opinion in Mr Goodwin’s favour.
·Ms Tait on 25 October 1999 (T149) wrote that she felt that it was probably unlikely that Mr Goodwin would want to return to Sydney in the weeks following his arthroscopy as he would feel vulnerable and insecure. She also felt that, if he had any adverse reactions to the operation, his illness conviction would become so great that he would find very difficult to recover.
·Dr Hopcroft on 22 February 1999 (ex A2) recorded that Mr Goodwin described as one of his biggest frustrations attempting to find accommodation in Sydney with the difficulties of finding long-term, secure and reasonable rental and he also had great difficulty moving furniture from time to time. Mr Goodwin said that he would much prefer to stabilise his accommodation requirements in the Bellingen district if he was to return to the workforce.
·Ms Dinneen and Mr McCombie on 26 September 2000 (ex A7) recorded that Mr Goodwin had said that he had a good support network in his town and that he felt very supported by the people in Bellingen. He stated that he felt safe as he knew that people would stop to help him up if he fell. He stated that he had no desire to live in a city where people would not be as caring. In the report Ms Dinneen and Mr McCombie said that Mr Goodwin's perception of vulnerability associated with living in Sydney was severely limiting the prospects of him returning to his employment.
·Dr Walden on 26 April 2001 (ex R3) recorded Mr Goodwin is saying that with regard to a return to work, he made it clear that he did not wish to return to work in Sydney. He considered that the problem was not the work itself but that he had nowhere to live and no support in Sydney and as such he did not consider that he could manage outside of work.
90. Some of the above comments did not exactly support Mr Goodwin in his desire to work and live only in Bellingen. They serve rather to demonstrate how strongly he held to his preference. They also demonstrate how the issue was presented to the writers. The arguments in support of the Australia Post position, that Mr Goodwin should be required to return to work in Sydney, were as follows.
·Mr Kelly submitted that Mr Goodwin had returned to work in Sydney twice, once for about three months, without his doubts about Sydney surfacing as a concern.
·Mr Kelly submitted that Mr Goodwin’s distaste for working in Sydney was entrenched by the early 1990s and was not connected with any vulnerability allegedly flowing from his compensable injury.
·Dr Lee on 9 April 1998 (T60) wrote that he believed that Mr Goodwin was simply unwilling to return to Sydney and was rationalising this as a fear for his safety. Dr Lee thought it likely also that Mr Goodwin was resentful against the people at the Kirrawee Mail Centre where he had been previously employed. Dr Lee wrote that he believed that Mr Goodwin had a pre-existing personality problem in that he was antiauthoritarian and had an angry relationship with his ex-wife and was intensely resentful at Australia Post. He could see no clear reason for Mr Goodwin to be unable to remain in Sydney. Mr Goodwin had stated that he experienced leg pain and had difficulty coping with daily chores and that that made him dependent on his mother. Dr Lee said that he believed that Mr Goodwin had an unresolved neurotic dependency on his mother.
·An Australia Post delegate recorded on 12 November 1999 that Dr Heslop had “agreed that with the provision of psychological counselling, it is reasonable for you to return to work in Sydney” (T156). Australia Post, it was stated, was offering psychological counselling. The tribunal has been unable to locate this assessment by Dr Heslop. The closest we could find leans in the other direction. On 30 September 1999 Dr Heslop said that Mr Goodwin was restricted from work in Sydney as that would affect his psychological state and there was a major risk of depression occurring (T7/50).
·Dr Walden wrote on 26 April 2001 (ex R3) that Mr Goodwin had no interest in returning to Sydney to take part in a return to work program. He preferred to live in Bellingen. She considered that this was a lifestyle choice and not based on the presence of the psychiatric disorder. She continued that, given that Mr Goodwin was not happy in his work with Australia Post even prior to the accident, and considered that he was being over-worked and had rung his former employer to try get a job there, it is likely that this had some impact on his willingness, or lack thereof, to return to work with Australia Post. She considered him psychologically fit to comply with the return to work program if he chose to do so. However, she said that he did not wish to do so and that this was unlikely to change.
91. There are several authorities worthy of note on an employer’s offer of employment away from an employee’s home base. The first of these is Re Lagwa and Comcare [1999] AATA 638.
The Lagwa case
92. In that case Mr Lagwa worked for Australian Defence Industries (“ADI”) at Mulwala on the Victoria/NSW border. There was an explosion in which one person was killed. Mr Lagwa was at work and was thrown onto his back by the shock from the blast. He sought compensation for lumbar back strain, anxiety and headaches. Liability to pay compensation for the lumbar condition was admitted. Mr Lagwa returned for work for some weeks but it was then ascertained that Mr Lagwa suffered from post-traumatic stress disorder. Mr Lagwa’s relationship with Mrs Lagwa suffered as a result and she left to go to Melbourne where she found work. Medical experts considered that Mr Lagwa should not return to work at the Mulwala site. The advice was that he should be rehabilitated into a job at a different location. Mr Lagwa moved to Melbourne to be near his estranged wife and a son. His wife, although estranged, was enthusiastic that Mr Lagwa should move to Melbourne. He asked responsible staff in ADI to look for opportunities for him to work for ADI in Melbourne. ADI then offered him a graduated return to work in Albury in a supernumerary position. This was a form of rehabilitation. Mr Lagwa’s solicitor again asked that ADI try to find Mr Lagwa a position in an ADI establishment in Melbourne. ADI continued to offer work only in Albury.
93. The tribunal held that this was not an offer of suitable for several reasons:
(a)It was reasonable for Mr Lagwa to move to Melbourne to be near his wife and children. After he moved to Melbourne Mr and Mrs Lagwa resumed a close supportive relationship where they saw each other frequently and did much together. Mr Lagwa continued playing an important role in his younger son’s life.
(b)Mr Lagwa’s close contact with his wife and son was important for his psychiatric well being.
(c)It was necessary for Mr Lagwa to move away from Yarrawonga, where the family was living when Mr Lagwa worked in Mulwala. This was recognised by doctors.
(d)ADI should have considered the option of offering Mr Lagwa work in Melbourne. An employee who is obliged to move residence because of the effects of a compensable injury must have some say in the decision as to the place where he or she must move. The tribunal found that there were a number of possibilities in Melbourne that should have been explored and discussed with Mr Lagwa but that they were not.
(e)The ADI’s Manager, Rehabilitation and Compensation, knew that Mr Lagwa did not want to move to Albury and that to do so would require either a physical separation from his family at a time when Mr Lagwa’s marriage was under stress, or a further substantial disruption in the lives of his wife and son, if they had been prepared to move with him.
94. The tribunal held that, as no offer of suitable employment had been made to Mr Lagwa, it was unnecessary to consider the somewhat similar issues that arose under s 19(4)(b) in the context of whether Mr Lagwa’s refusal of work had been reasonable.
95. Mr Kelly cited the Rawling case (above).
The Rawling case
96. In this case Ms Rawling, a senior enrolled nurse, suffered a soft tissue injury to her lower back when she lifted a patient at the Heidelberg Repatriation General Hospital in Melbourne. She returned to work but aggravated the condition again a few days later at work. Since that time she had been unable to resume full-time employment. Soon after the aggravation she tendered her resignation because she was moving to Adelaide with her fiancé. In Adelaide after a period of time Ms Rawling commenced a three-month “work trial” in a repatriation hospital at Daw Park organised by the Commonwealth Rehabilitation Service, Comcare and her ex-employer, the Department of Veterans’ Affairs. From that trial it was concluded that Ms Rawling could work only eight hours a day for two days a week. Her weekly compensation was reduced on the basis that she had an ability to earn equivalent to 40% of her salary.
97. Ms Rawling appealed to the tribunal which held that no offer of suitable employment had been made to Ms Rawling. Had such an offer been made, and had Ms Rawling unreasonably refused the offer, she would have an ability to earn commensurate with the offer. Comcare appealed to the Federal Court. At pages 426-427 O’Loughlin J said this about s 19(4) of the Act:
“The object of s 19(4) is to aid in the determination of the extent of an injured employee's ability to earn. Hence, although the subsection makes no reference to it, conduct on the part of an employee in removing herself to a remote location in the knowledge that there would be no job opportunities would probably be a relevant matter for Comcare's consideration under paragraph 19(4)(g). Contrary to the views expressed by the Tribunal, I consider that the active resignation and the move to Adelaide were matters that Comcare was entitled to take into consideration for the purpose of assessing whether they were 'relevant'. But on the other hand, and in the circumstances of this case, I share the ultimate view of the Tribunal that Ms Rawling should not be penalised. Whilst I consider that it would be proper for Comcare to have regard to those matters, I do not consider that a proper regard to them could affect the outcome of these proceedings. The active resignation and the movement interstate from one capital city to another did not in any way inhibit Ms Rawling's employer from making a genuine offer of suitable employment -- perhaps at her original place of employment -- perhaps some other location. If, because of her personal circumstances, Ms Rawling being medically fit to accept the offer unreasonably rejected it, then her compensatory entitlements would be at risk of being eroded in the manner contemplated by paragraph 19(4)(b).”
98. Mr Goodwin appears to have remained in Sydney’s southern suburbs until about January 1998. The first document in ex TD1 that shows him with an address in the Bellingen district is T44 dated 23 January 1998. Rehabilitation action had commenced on 29 November 1997 (T38) when a plan was devised that was never signed by Mr Goodwin. Indeed, there were seven rehabilitation plans created between November 1997 and January 2000 and Mr Goodwin signed none of them. He also elected not to attend at least one workplace assessment by an occupational therapist (T56). Mr Goodwin had written on 4 December 1997 (T39) to Australia Post stating why he wanted to perform his suitable duties on the North Coast. Thus the picture is of an employee who:
·was living in Sydney, and
·who had worked in Sydney since about 1993 (ex R3), and
·who had commenced with Australia Post in February 1997 (T4), and
·who had sustained an injury on 20 March 1997, and
·who had been the subject of a rehabilitation plan on 29 November 1997 (T38) which he had not signed and which contemplated his returning to work at Kirrawee in the Sydney suburbs, and
·who in early December 1997 wrote asking for suitable duties on the North Coast of NSW (T39), and
·who was written to on 9 December 1997 (T41) by Australia Post’s rehabilitation counsellor who said that she had read his letter in T39, that the usual goal of rehabilitation was to return the employee to the pre-injury job location, that Mr Goodwin was free to apply for transfer to the North Coast and that she would liaise with Mr Goodwin’s area manager to find him suitable duties in the network,
·who, by 23 January 1998, had moved to an address in Bellingen (T44).
99. The tribunal finds that the rehabilitation plan dated 29 November 1997 was the foundation for an offer of suitable employment in that it satisfied the criteria discussed earlier and did not require Mr Goodwin to alter his place of residence. The actual notice requiring Mr Goodwin to resume work at Kirrawee was issued on 23 January 1998 (T45). Mr Goodwin in fact moved to Bellingen aware that the focus of Australia Post’s rehabilitation staff was on finding him work in his pre-injury area of operations. While it is correct that Mr Goodwin referred to the personal support he could access in Bellingen in his letter of 4 December 1997, he had not moved to Bellingen to avail himself of that support in the nearly nine months that had elapsed then since he was injured. He does not appear to have suffered any sudden reversals of fortune in his medical progress late in 1997 or early in 1998 such as to change his circumstances and make attachment to family members a priority. This is a matter that could, in accordance with the Rawling decision (above), be considered under s 19(4)(g) of the Act.
100. How similar is Mr Goodwin’s situation as compared to Mr Lagwa’s in Re Lagwa (above)?
·Like Mr Lagwa the applicant moved to a different location to be near family. This contributed to the finding that an offer of employment requiring Mr Lagwa to move his family or leave them if he was to accept it was not a suitable offer. However, unlike Mr Lagwa, the family Mr Goodwin moved to join up with was not as intimate or “nuclear” as that in Re Lagwa (above). Also, in Lagwa (above) the employee moved before any employment proposals were on the table. In the present case Mr Goodwin moved to Bellingen after being told that the proposal was to return him to work in Kirrawee.
·In Lagwa (above) being near his son and wife was seen as important for the employee’s psychiatric well being. Opinions differ on that point in the instant case. Psychologists in T57 considered that Mr Goodwin’s move to Bellingen had allowed him time to think and ruminate about his accident and injury and that had increased his arousal, depression and anger. The psychiatrist Dr Lee (T60) saw an unresolved neurotic dependency by Mr Goodwin on his mother. This was unlikely to be resolved by his returning to Bellingen. Against these experts was Dr Heslop (T118), Mr Goodwin’s treating doctor, who saw it as essential for Mr Goodwin’s psychological and physical health for him not to return to work in Sydney, and for him to utilise his support base in Bellingen.
·In Lagwa (above) it was necessary for Mr Lagwa to move away from Yarrawonga for the good of his health. In the instant case Dr Heslop had a similar view and considered that Mr Goodwin should remain away from Sydney. No other medical expert in the instant case had a similar view. Consideration of their contributions in paragraph 89 above indicates that most have tapped into Mr Goodwin’s preference for life in Bellingen because of convenience factors.
·In the Lagwa case (above) the tribunal considered that an employee who is obliged to move residence because of the effects of a compensable injury must have some say as to the place where he or she must move. In the instant case there was no question of Mr Goodwin having to move to comply with the first rehabilitation plan. He was in Sydney where he had lived for over four years, including at least six months with his injury, when that first plan was devised. It was only after that plan was tabled that Mr Goodwin moved to Bellingen.
101. On the basis of this analysis, the instant case is sufficiently different from the Lagwa case (above) to produce a different result. There are three additional matters, however, that should be noted. The first is that an occupational therapist conducted a home visit on 24 June 1997 (T21) and concluded that Mr Goodwin required only three minor and portable home aids to assist him in coping with his injuries. Had he required home modifications, and had these been carried out in Bellingen, this would have been a factor in favour of requiring an offer of suitable employment to relate to work in or near Bellingen.
102. The second matter is whether Mr Goodwin’s situation in Bellingen in more recent times, with the support structures he has in place there, has changed the picture summarised above in paragraph 100. The tribunal finds that it has not. The medical and psychological evidence taken into account has included material of recent date in relation to the hearing date and there was no change in opinions in more recent reports.
103. The tribunal has decided that Dr Heslop’s report of 5 May 1999 (T118), the only report assertively requiring that Mr Goodwin be permitted to engage in suitable duties only on the North Coast, is out of step with other assessments, and trespasses into psychological and psychiatric areas in which other commentators have superior credentials, and as such should not be preferred to those other assessments.
104. The tribunal has considered Mr Tuckerman’s submission that it was unreasonable of Australia Post to require Mr Goodwin to return to Sydney to start a job on a low salary and occupying only four hours a day. In the tribunal’s view this overlooks the fact that Mr Goodwin would receive in total his full weekly earnings, such as wages and salary and some as compensation, and the other consideration that it is in Mr Goodwin’s interest to have a graduated return to work. The tribunal notes, again, that it was Mr Goodwin who made the decision to remove himself from Sydney after becoming aware of an impending offer of suitable employment.
105. The tribunal therefore finds that Australia Post’s offers were offers of suitable employment. This leads to a finding that Australia Post, in accordance with s 19(4)(b) made an offer of suitable employment to Mr Goodwin after he became incapacitated for work and that Mr Goodwin failed to accept that offer. In further accordance with s 19(4)(b) of the Act, the tribunal finds that Australia Post acted properly in having regard to the amount per week that Mr Goodwin would have earned in the employment offered to him when Australia Post was assessing Mr Goodwin’s ability to earn.
CONCLUSIONS
106. The tribunal has not made a decision on the reasonableness of the requirement that Mr Goodwin should undertake a rehabilitation program of the type offered to him because it has no jurisdiction in this matter.
107. The tribunal has decided that it agrees with the decision taken by Australia Post in relation to the weekly incapacity payments payable to Mr Goodwin. Mr Goodwin can resolve this problem by taking up Australia Post’s offer of work in Kirrawee or, if Australia Post agrees, a different offer at a location more acceptable to Mr Goodwin.
DECISION
108. The tribunal decides that it has no jurisdiction to entertain application number N2000/100.
109. The tribunal affirms the decision under review in application number N2000/551.
110. The applicant is entitled to no costs in respect of either application for review.
I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member, Dr M E C Thorpe, Member and Ms N Isenberg, Member.
Signed: .....................................................................................
AssociateDate of Hearing 21 August 2001
Date of Decision 15 August 2002
Counsel for the Applicant Mr E Tuckerman
Solicitor for the Applicant Alexanders Lawyers
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Sparke Helmore Solicitors
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