Graham and Military Rehabilitation and Compensation Commission
[2006] AATA 286
•29 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 286
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/364
VETERANS’ APPEALS DIVISION ) Re BRENDAN GRAHAM Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date29 March 2006
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that the amount Mr Graham is able to earn in suitable employment from the date of his discharge from Defence employment to the present is nil.
..............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - cervical and lumbar spine injury – Commonwealth employment - aggravation and acceleration of previously asymptomatic degenerative condition – ongoing partial incapacity - termination of employment – incapacity payments - suitable employment - amount able to earn in suitable employment – relevant factors - labour market – relocation to area of low employment opportunity reasonable – capacity for work differentiated from ability to earn in the circumstances - decision set aside
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 19
Re Liu and Comcare (2004) 79 ALD 119
Brown v Dunn (1893) 6 R 67
Comcare v Line (2002) 124 FCR 337
Woodbridge v Comcare (1994) 20 AAR 196
Telstra Corporation Limited v Warner (1994) 20 AAR 259
REASONS FOR DECISION
29 March 2006 Mr S. Webb, Member 1. By this application Brendan Graham is seeking review of the rate of incapacity payments to which he is entitled, if any, following the termination of his employment by the Department of Defence in July 1991.
factual context
2. Mr Graham (date of birth: 5 November 1968) left school at the age of 16 having completed year 10 in Harden, NSW. He obtained unskilled employment picking fruit, carting wood, working in the Harden abattoir and as a mail contractor. In July 1989 his application to enlist in the Australian Army was accepted. He took up that employment on 28 February 1990.
3. On or about 3 April 1990 Mr Graham’s service medical records reveal that he presented with a sore and bruised lower back and was placed on light duties (T5 folio 12).
4. On or about 31 July 1990 Mr Graham sustained an injury to his neck in the course of his employment while on field exercises in which he was required to dig trenches and carry a heavy backpack on a forced march in cold and rainy conditions. The precise circumstances and the mechanism of injury are not clear. On the one hand the evidence is that the injury occurred while carrying a backpack in the rain on a forced march, on the other hand the evidence is that it occurred while digging trenches in the rain at the base camp. The only evidence on this point is the history given by Mr Graham. As Dr McKee observed, it is not possible at this distance to determine which of the range of activities Mr Graham carried out on 31 July 1990 was the cause of injury (Exhibit A2, p7). Nonetheless the weight of the medical evidence is that Mr Graham’s pre-existing degenerative changes in his spine were aggravated by those activities and I so find.
5. In October 1990 Mr Graham’s medical status was reviewed and he was reclassified as unfit for infantry training. His discharge was deferred for a period of six months in order for treatment options to be pursued. He was posted to DSU in Sydney where he performed clerical duties in the registry. Mr Graham’s medical status was subsequently reviewed in 1991 and his medical classification was not changed. At that time he was fit to perform clerical duties consistent with medical restrictions on his physical capacity.
6. On review of his work performance in April 1991 he was found to be performing satisfactorily, albeit without adequate clerical training, and was recommended for employment performing clerical duties in a large orderly room.
7. Mr Graham was discharged, medically unfit, on 26 July 1991. He has not been in employment since.
8. Mr Graham registered with the Commonwealth Employment Service in Canberra following his discharge in 1991. He relocated to his family home in Harden approximately six months later. I understand and it is accepted that he received unemployment benefits, and subsequently a New Start Allowance, until 2001, when he was granted a disability support pension.
history of claims
9. On 23 October 1990 Mr Graham made a claim for compensation concerning a neck strain injury in which it was said the injury occurred while “digging during programmed training in the construction of a shelter trench” (T18). On 12 December 1991 his claim was denied (T34). However, on 10 February 1993, by a subsequent determination, liability was accepted for ‘damaged cervical intervertebral disc between the 6th and 7th cervical vertebrae’ (T40). On 30 March 1994 Mr Graham made a claim for payment of compensation for a permanent impairment in relation to his neck injury (T42). That claim was denied on 1 June 1994 (T47). However, on 24 January 1995, a reconsideration decision was made revoking the prior determinations of liability and determining to accept liability “in respect of musculo-ligamentous strain to the neck and back, an aggravation of pre-existing degenerative changes”, and accepting liability to pay compensation for a 10 percent whole person impairment to his “back” and a 5 percent whole person impairment to his “neck” (T52).
10. On 2 September 2003 Mr Graham made a claim for incapacity payments from the date of his discharge from the Army and ongoing (T56). On 14 November 2003 the respondent Commission determined to reject his claim (T58). On 2 November 2004 the matter was reconsidered and it was decided that Mr Graham is “entitled to receive incapacity top up payments since leaving Defence employment for the difference between a Department of Defence Australian Public Service Level 2 (DOD APS 2) and [his] military employment” (T65). That decision is before this Tribunal.
legislation and issues
11. In the Commission’s submission there are two issues to be determined: the first is whether there is liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) to compensate Mr Graham for any claimed incapacity from the date of his discharge to the present; and the second is whether Mr Graham has any ability to earn in suitable employment. It was common ground that, in the event of a finding that he is able to earn in suitable employment, it would be desirable to remit the matter to the Commission to determine the amounts of compensation for incapacity that is payable from time to time. With that I agree. However, I do not agree that there is any issue under s 14 of the Act in these proceedings.
12. Once a determination has been made to accept liability for an injury under s 14 of the Act, that liability will persist unless the primary determination by which the liability was accepted is reconsidered and set aside (Re Liu and Comcare 79 ALD 119). In the absence of any such reconsideration, liability to pay compensation pursuant to a claim is to be determined under relevant and applicable sections of the Act. If, as in this case, compensation for incapacity is claimed, then the claim is to be determined under s 19 of the Act.
13. When determining whether compensation for incapacity is payable under s 19, it is necessary to determine whether the claimed incapacity is the result of a compensable injury. If the claimed incapacity does not result from a compensable injury, compensation for incapacity is not payable. It follows that in this case, it is not necessary, nor would it be appropriate or within the Tribunal’s jurisdiction, to make a fresh s 14 determination in relation to Mr Graham’s claimed symptoms. Either his claimed incapacity for work is the result of his accepted compensable injury or it is not. If it is, then it is necessary to determine the amount he is able to earn in suitable employment for the purposes of s 19.
14. I do not accept the submission put for Mr Graham that the Tribunal’s jurisdiction is confined to determining the amount of incapacity payments to which Mr Graham may be entitled and does not extend to determining whether the incapacity claimed is the result of a compensable injury. Plainly enough the question of liability for incapacity payments during the period in question was the subject of consideration and determination at both primary and reconsideration stages. That issue is a live issue in these proceedings.
15. It follows that the issues for determination are:
(a)from the date of his discharge from Defence employment to the present (“the relevant period”), or any period therein, is Mr Graham entitled to payment of compensation for incapacity as a result of his compensable injury, being “musculo-ligamentous strain to the neck and back, an aggravation of pre-existing degenerative changes”; and, if so,
(b)what is the amount of weekly compensation that is payable, if any, during each week of the relevant period?
consideration, findings and decision
16. Making this decision I have carefully considered all of the evidence, the submissions of the parties,, the relevant case law and legislation.
issues of credit
17. To the extent that there are inconsistencies in the accounts Mr Graham has given about the mechanism or circumstances of his injury and subsequent symptoms causing incapacity for work, his evidence will be treated with caution. I note in passing that some of the events about which he was cross-examined occurred 15 to 20 years ago. It is reasonable to expect some dimming of memory over that period and I am satisfied that Mr Graham’s apparent difficulty recalling the detail of events that occurred in 1987 or 1990 was, at least in part, due to that cause. However, that does not explain inconsistencies in documents that contain or reflect varying accounts Mr Graham gave of the history of his injury.
18. In the Commission’s submission Mr Graham’s uncorroborated evidence cannot be relied upon and should carry little weight. Mr Graham’s attack on that submission is, in part, made out on the basis that it would be unfair to weigh against him inconsistencies in the evidence that were not put to him in cross-examination without giving him the opportunity to respond. In the specific instances, that would indeed be unfair (Brown v Dunn (1893) 6 R 67). Nonetheless, the issue of credit was raised during the hearing and the function of this Tribunal is to make an assessment of the credibility of witnesses giving evidence. In so doing I have considered all of the evidence, including the evidence of Mr Graham, and the submissions of the parties. I do not discount Mr Graham’s evidence for want of credibility but, rather, will proceed cautiously when weighing his evidence on crucial points in the absence of corroboration.
has mr graham suffered incapacity for work as a result of his compensable injury?
19. I am satisfied that Mr Graham suffered a partial incapacity for work as a result of injury in the course of his Defence employment pursuant to subparagraph 4(9)(b) of the Act. There is no contemporaneous evidence that his partial incapacity resolved at any time prior to the date of his discharge. I am satisfied that it did not. The contemporaneous evidence indicates that his partial incapacity was persisting at that time. He was discharged from Defence service in July 1991 on the basis that he was medically unfit.
20. Mr Graham’s discharge medical documents report the following medical restrictions: “No running or prolonged marching or heavy lifting”. Subsequent medical reports indicate that Mr Graham was not fit to perform work involving heavy lifting, repetitive bending, or prolonged sitting, crouching or stooping in the period from 1992 to December 1994 (see reports by Drs Berry, Ashman and Alam at T49, T37, and T50 respectively). I note that those restrictions are not inconsistent with the report prepared by Dr Dowda on 27 May 1994 concerning permanent impairment (see T45 folio 77).
21. More recent medical reports indicate that Mr Graham continues to suffer restriction of his capacity for work (see reports by Dr McKee and Dr Talbot at Exhibit A2, p 9 and Exhibit R2, p 9 respectively). Dr Coyle reported no injury or incapacity for work (T55 and Exhibit R3). With respect, he stands alone in that assessment and his evidence is not preferred. I note that Dr Coyle assessed Mr Graham applying a Statement of Principles concerning war causation (for the purposes of veterans’ entitlements legislation) that is not applicable in this case.
22. It follows and I find that Mr Graham suffered a partial incapacity for work from the date of his discharge from Commonwealth employment to the present. Is that partial incapacity the result of his work injuries in 1990? As will appear I am satisfied that it is.
23. In the Commission’s submission, any incapacity Mr Graham has suffered since his discharge from Defence service is not as a result of his 1990 injury. The Commission contends that the injury was no more than a musculo-ligamentous strain that caused a temporary aggravation of a pre-existing degenerative condition, which would have resolved in a matter of weeks. As will appear, I do not agree
24. The Commission relies on the evidence of Dr Talbot and Dr Coyle that the incapacitating effects of Mr Graham’s injury were of a temporary nature and would have resolved in a matter of weeks or months. However, the preponderant weight of the medical evidence does not propel me to that conclusion. There is simply no contemporaneous evidence that Mr Graham’s injury or related symptomatology resolved in a matter of months after July 1990 or at any time thereafter. Dr Talbot and Dr Coyle both agreed under cross examination that, while the majority of cases involving injuries such as that suffered by Mr Graham could be expected to resolve in a matter of weeks or months, there are rare or exceptional cases where resolution does not occur and ongoing symptoms are experienced without relief.
25. I accept the evidence of Dr Datoo, Dr Ashman, Dr Berry, Dr Alam, Dr McKee and Dr Talbot that it was probable that Mr Graham had existing degenerative changes in his spine on enlistment. With the exception of Dr Talbot, the evidence of those doctors is that the degenerative changes were likely to have been aggravated and accelerated, and rendered symptomatic, by activities and duties Mr Graham performed in the course of his Defence employment (see paragraph 4). On balance, I am reasonably satisfied that is what occurred. There is simply insufficient evidence to support a finding that the symptoms or incapacitating effects of Mr Graham’s injury resolved or that the degenerative changes existing in his spine prior to injury would have resulted in his present symptomatology by their natural progression over time in the absence of injury.
26. I note that Dr Talbot recorded his difficulty obtaining a detailed history from Mr Graham within the allocated time and proceeded to make his assessment on the basis of the history he obtained and documents provided by the Commission. Perhaps for that reason the only mechanism of injury Dr Talbot identifies is “simply carrying a back pack”, which he discounts as a cause of the cervical spondylosis he diagnosed in Mr Graham in 2005. It appears, with respect, that Dr Talbot did not consider other claimed mechanisms of injury, such as digging trenches or other duties that Mr Graham was required to perform for which he was subsequently found to be unfit. At least, if he did consider other mechanisms of injury, he omitted to address these in his reports (Exhibit R2).
27. In the Commission’s submission Mr Graham was injured in 1987 and harboured symptoms of that injury or its effects during the period prior to his Defence employment. It was contended that Mr Graham initially failed to declare the injury in his enlistment medical questionnaire, but subsequently revealed his ongoing symptomatology in a medical declaration. However, the evidence does not point to that conclusion.
28. It is true that Mr Graham consulted Dr Datoo on 9 September 1987 following an incident in which a car jack failed and a vehicle fell onto his left shoulder. Dr Datoo’s written evidence is that Mr Graham suffered a soft tissue injury to the left shoulder with no spinal symptoms (T32), as confirmed by X-ray soon thereafter (see Exhibit R4, flag 1). Curiously, that X-ray report by Dr B. Collins records “H/U trauma 9/12 ago”. Mr Graham could not provide any explanation concerning that record, and the clinical notes of Dr Datoo are of no assistance in that regard. On the basis of that evidence I am not persuaded that Dr Collins’s record is reliable evidence that Mr Graham suffered a trauma to his left shoulder nine months earlier.
29. Mr Graham completed a Medical Induction Declaration on 1 March 1990 in which he admitted an upper limb injury: “Sore inbetween [sic] shoulder blades from accident in car 1986” (Exhibit R5). He gave oral evidence that the description of injury he included in that document did not reflect any present symptoms in 1990 but rather symptoms he experienced at the time in 1987. Mr Graham did not record any prior injury to his upper limbs or to his back in the Medical History Questionnaire he completed on 11 July 1989 (T3). His evidence concerning that document was that he had not suffered an injury to his upper limbs or back as a result of the incident with the car jack failure in 1987.
30. Mr Graham gave evidence, which was not challenged, that he worked in manual and labouring jobs prior to service, including heavy work in the Harden abattoir, which he was able to perform without complaint or symptomatology in his back. His evidence is corroborated, to some extent at least, by Dr Datoo’s reports in which he states that he examined Mr Graham on 9 September 1990 and found him to be suffering from a soft tissue injury to his left shoulder (T32). Dr Collins did not report any abnormality in Mr Graham’s left shoulder on X-ray at that time (Exhibit R4). Dr Datoo subsequently reported that he did not treat Mr Graham for any back problems prior to September 1991, but did so following his discharge from the Army (T35). On that evidence I am reasonably satisfied that if Mr Graham suffered any symptoms in his back or left shoulder after September 1987 those symptoms were not sufficient to cause him to seek medical treatment or to restrict his physical or work capacity in the period prior to his enlistment.
31. I note in passing that Dr Datoo’s clinical note dated 15 March 1988 in Exhibit R4 is indecipherable. It is possible that the interpretation contended for by the Commission is correct, that is “back ache – during bush running”. However, the entry is not sufficiently legible to permit any such finding as a matter of probability in the absence of evidence from Dr Datoo (who apparently could not be located for that purpose). The note must be considered in relation to Dr Datoo’s report dated 13 July 1992 in which he reports that he had “never treated [Mr Graham] for any back injury or cervical spine injury until September, 1991…” (T35). Mr Graham gave evidence that he could not recall consulting Dr Datoo about a sore back at that time, but thought that he may have consulted Dr Khalfan in relation to some moles on his back. Even if the Commission’s interpretation is correct and Mr Graham did seek medical treatment for back ache at that time, little can be made of it. There is no subsequent record of Mr Graham seeking medical treatment for back or shoulder pain in the period from March 1988 to April 1990.
32. Considering that evidence, I am reasonably satisfied that the soft tissue injury Mr Graham sustained in his left shoulder in 1987 is distinguished from the neck and back symptoms he suffered in 1990 and thereafter. The contemporaneous medical evidence indicates that Mr Graham suffered from only one, or possibly two, events involving left shoulder or back pain for which he sought medical treatment. Both those events occurred at least two years before his complaint of back pain on 3 April 1990 (T5) during his Defence employment. The history is not consistent with a person suffering from a symptomatic degenerative spinal condition at that time. However, from 3 April 1990 the medical evidence is that he suffered continuing problems and pain in his lumbar and cervical regions and his shoulders in relation to which he sought medical treatment on numerous occasions thereafter (see T8-T17, for example).
33. I am reasonably satisfied, on the balance of probabilities, that Mr Graham’s 1990 injuries aggravated his previously asymptomatic spinal degeneration and once rendered symptomatic those symptoms have persisted to the present causing partial incapacity. It follows that from the date of his discharge from Defence employment to the present date Mr Graham’s partial incapacity for work is the result of his compensable injury.
what is suitable employment for mr graham?
34. When assessing the amount of weekly compensation for incapacity that is payable under s 19 it is necessary to determine the amount of Mr Graham’s ‘normal weekly earnings’ (his “NWE” amount) and the amount he is able to earn in suitable employment (his “AE” amount). No evidence was led concerning Mr Graham’s NWE amount. That matter will be remitted to the Commission to determine. In order to determine Mr Graham’s AE amount it is first necessary to determine what employment, if any, constitutes “suitable employment” for him, as defined at s 4 of the Act.
35. The term ‘suitable employment’ is defined at s 4 of the Act. Relevantly, Mr Graham was ‘a permanent employee of the Commonwealth’ when he was injured ‘who did not subsequently terminate that employment’. His employment was terminated by the Commonwealth. That being so, ‘suitable employment’ for Mr Graham is employment with the Commonwealth for which he is suited having regard to the factors set out in the definition at s 4(1)(a)(i)-(iv) (Comcare v Line (2002) 124 FCR 337 at 346-347).
36. Ms Staats reported that Mr Graham is well suited for and would require retraining in order to compete in the open labour market for employment in the occupations of tag and tester, computer hardware service technician, motor cycle mechanic and clerk, for which she considered him suited. Nonetheless, she noted that Mr Graham’s age, the length of time he has been out of employment and the limited employment options in his local labour market were factors adversely affecting his employment prospects (Exhibit A3, p 8). I accept Ms Staats’ evidence in that regard.
37. Mr Graham is 37 years old. By his own account, he has some skills and interest in mechanics and computers. Mr Graham left school at the age of 16. He undertook a course in engineering drawing in Young in or about 1993, but did not proceed to a high level in that course because higher units were not available locally. Mr Graham also undertook training and obtained first aid qualifications and licenses to drive a truck and to carry dangerous goods, as well as to operate a fork lift.
38. It is questionable whether occupations to which those skills are relevant would be employment for which Mr Graham is suited. I am satisfied that they are not. On the medical evidence employment driving a truck or a forklift would in all likelihood be outside the scope of Mr Graham’s physical capacity. His own evidence was that he is not able to drive for more than 45 minutes without a break, and not as a regular day to day occurrence. On that evidence it appears that driving occupations are beyond Mr Graham’s capacity. I accept Mr Graham’s evidence that he undertook these courses because he was required to undertake training to upgrade his skills in order to continue to qualify for New Start Allowance and not because he thought, in truth, that he would obtain employment as a truck driver or a forklift operator.
39. Mr Graham maintained that he supervises and assists others to use his workshop when conducting repairs to items such as chainsaws. Dr Talbot observed that Mr Graham’s hands were ‘very well used… with thickened, calloused skin and some ingrained dirt” as a result of repairing chainsaws (Exhibit R2, p4). I am not persuaded to accept Mr Graham’s account. A more probable explanation for his calloused hands, especially in the light of his avowed interest in mechanics, is that he did undertake repairs and other mechanical activities on small engines. Is a small engine or motor cycle mechanic suitable employment for Mr Graham? I am satisfied that it is not. The requirement for lifting identified by Ms Staats in relation to a motor cycle mechanic is not consistent with the medical evidence concerning Mr Graham’s lifting restrictions. There is no evidence concerning the frequency or duration of Mr Graham’s mechanical repair activities. Mr Graham does not possess any qualifications in the field of mechanics. I am satisfied that, in all likelihood, his mechanical activities are more akin to a hobby in which he has some skills, in which he is able to obtain assistance from others to lift heavy items, rather than an employment for which he is suited.
40. Mr Graham gave evidence that he spends up to three hours working on his computer each day. Plainly enough he has some skills and interests in that regard. There is evidence that Mr Graham has repaired computer devices or systems for friends. However, he does not possess any qualifications in the field of computer repair or computer systems. His computer-related activities are no more than a hobby and do not constitute suitable employment for Mr Graham. I note that on Ms Staats’ evidence there is a requirement for lifting computers in her description of computer hardware service repair that is unlikely to be consistent with Mr Graham’s restriction on lifting heavy items.
41. Mr Graham asserted that he was interested in employment as a clerk. He has six months experience of clerical work in the period prior to the termination of his Defence employment, but has no formal qualifications in that field. I note his evidence that he can sit for up to three hours at his computer each day. On that basis, I accept that clerical work is employment for which Mr Graham is suited.
42. On Ms Staats’ evidence it is reasonable to conclude that there is negligible opportunity for employment as a clerical officer with the Commonwealth in the Harden locality. Mr Graham’s evidence is that he is unable to drive long distances, but that he would be willing to relocate for employment. I understand that Canberra is 90 minutes drive away from Harden. By Mr Graham’s account it is not within his capacity to travel that distance by car on a regular basis. However, Mr Graham pointed to the numerous job applications for employment in places outside his locality in support of his stated willingness to relocate for work (see Exhibit A1). On that basis, I find that it would be reasonable to expect Mr Graham to change the place of his residence in order to take up suitable employment with the Commonwealth.
43. I note in passing that Mr Graham gave oral evidence that he thought he was capable of performing certain jobs that he applied for, including work as a storeman, a gardener or handyman, a cleaner, a truck or forklift driver and a salesman for Austar. However, each of those employments are likely to involve physical elements such as lifting weights, repetitive bending or driving for long periods, which are outside Mr Graham’s physical restrictions, even by his own account. It is difficult to resolve his evidence in this regard. Either Mr Graham is telling the truth about his capacity, in which case he has lied to doctors over time and in his other evidence in these proceedings, or, as is more likely the case, he is not telling the truth about the extent of his capacity in order to represent his job applications as genuine attempts to find employment. I am satisfied, on balance, that the latter is more probable and Mr Graham made applications for employment for which he was not suited in order to comply with his New Start Allowance obligations.
44. Considering the evidence, I find that employment with the Commonwealth as a clerk would be suitable employment for Mr Graham. I am not satisfied that employment as a tag tester, computer hardware service technician or small engine or motor cycle mechanic is within Mr Graham’s physical capacity. Those occupations are not suitable employment for Mr Graham.
what is the amount mr graham is able to earn in suitable employment?
45. In order to determine the amount that Mr Graham is able to earn in suitable employment during each week of the relevant period it is necessary to have regard to all the relevant factors pursuant to subs 19(4) of the Act (see Woodbridge v Comcare (1994) 20 AAR 196 at 205-207). I note in passing that the amount a person is capable of earning may differ from the amount he or she is able to earn. For the purposes of s 19 it is necessary to determine the amount that Mr Graham is able to earn in suitable employment, not what he is capable of earning (see Telstra Corporation Limited v Warner (1994) 20 AAR 259 at 264).
46. The simple facts are that Mr Graham has not earned any amount in employment since July 1991. He has neither been offered nor declined any offer of suitable employment by the Commonwealth. Following the termination of his employment by the Commonwealth Mr Graham was left to his own devices and was neither offered nor declined rehabilitation or vocation retraining. It follows that subparagraphs 19(4)(a)-(d) do not apply.
47. In the Commission’s submission Mr Graham failed to seek suitable employment following his discharge from the Army pursuant to subparagraph 19(4)(e). If that is so, was it reasonable? I accept Mr Graham’s evidence that he resided with his sister in Canberra for a period of approximately six months after his discharge from Defence employment, during which time he looked for employment and registered with the Commonwealth Employment Service. He was singularly unsuccessful in that endeavour. In the absence of employment, after six months he returned to his family home at Harden, where he continues to reside. In the years thereafter until May 2002 Mr Graham applied for work and attended training in order to comply with his New Start Allowance (and previously Unemployment Benefit) obligations. He did not obtain any employment in that period. He conceded that on or about May 2002 he was granted a disability support pension and ceased seeking employment thereafter.
48. Mr Graham did not place any evidence before the Tribunal concerning his efforts to seek suitable employment with the Commonwealth or a licensed authority. He could not recall positions that he had applied for in Canberra after his discharge, but thought these would have included clerical positions. I note that employment by the Australian Capital Territory is within the scope of the Act. On balance, I accept that it is probable that Mr Graham did seek suitable Commonwealth employment during the six month period he resided in Canberra following his discharge from the Army.
49. Did Mr Graham seek to obtain suitable employment thereafter? In support of his contention that he did, Mr Graham tendered a bundle of rejection letters from prospective employers to whom he had applied for work in the period from 1996 to 1998 (Exhibit A1). None of those letters relate to suitable employment for him. No records from the Commonwealth Employment Service or from Job Network providers were tendered. Mr Graham gave evidence, which was not challenged, that in order to receive New Start Allowance and previously Unemployment Benefit he was obligated to apply for work and, from time to time, to participate in training activities. Plainly that is the case. However, I have found that in so doing he applied for jobs that were not suitable employment for him. To that extent I am compelled to find that Mr Graham’s efforts to obtain employment were not genuine. Furthermore, he did not undertake training to obtain skills that were relevant to employment that was suitable for him, but rather undertook training relevant to fields of work for which he was not suited, such as truck or forklift driving.
50. I note in passing that it cannot be inferred that Mr Graham did not apply for work before 1996 or after 1998 merely because the documentary evidence (copies of his job applications or responses in Exhibit A1) is from the period 1996 to 1998. I am satisfied that it is reasonable for a person in Mr Graham’s circumstances not to retain copies of unsuccessful job applications or rejection letters for long periods of time. Mr Graham was obliged to make regular applications for employment in order to receive New Start Allowance and Unemployment Benefit payments. It appears that he did so. What is surprising is that Mr Graham retained the job applications and responses that are in Exhibit A1. I accept his account of finding those documents when cleaning out old boxes with his mother.
51. Nonetheless, it appears from the materials in Exhibit A1 and by inference from Mr Graham’s oral evidence that he did not seek suitable Commonwealth employment following his relocation to Harden in or about early 1992. If that is correct, and for present purposes I am willing to proceed on the basis that it is, was that failure reasonable in all of the circumstances? I am satisfied that it was. Mr Graham possessed only limited experience working as a clerk in the six month period prior to the termination of his Defence employment on medical grounds. His only training in that work was on the job. In the absence of being provided with suitable employment or rehabilitation or vocational retraining by the Commonwealth, Mr Graham’s failure to compete for suitable employment on the open labour market in Canberra is unsurprising. I accept the evidence of Ms Staats in that regard. In those circumstances I am satisfied that Mr Graham’s failure to seek suitable Commonwealth employment after a period of six months was the result of his failure to compete on the open labour market for such employment and was reasonable in all the circumstances.
52. In the Commission’s submission the fact that Mr Graham moved from Canberra to Harden in 1992 is a relevant factor to have regard to when determining the amount he is able to earn in suitable employment. The position contended for by the Commission is that Mr Graham removed himself from an area of high employment opportunity, especially in relation to suitable Commonwealth employment, to an area of substantially lower employment opportunity in a smaller labour market. I am compelled to agree. Even though no evidence was placed before the Tribunal concerning the comparative size of the labour markets, plainly the opportunity for Commonwealth employment as a clerk is greater in Canberra than in the Harden locality.
53. Nevertheless, it is a matter of whether Mr Graham’s relocation to Harden from Canberra in 1992 was reasonable in all of the circumstances. I am satisfied that it was. Mr Graham enlisted from Harden and, ultimately, after injury, discharge on medical grounds and his unsuccessful efforts to obtain suitable employment in Canberra, it was to his family home in Harden that he returned. Mr Graham was an injured employee who was provided with no rehabilitation or vocational retraining or suitable employment following the termination of his Defence employment by the Commonwealth. In those circumstances, his decision to return home was reasonable. For present purposes, by that decision, he did not deprive himself of suitable employment. Simply, in his partially incapacitated condition there was no such employment available to him on the open labour market without appropriate rehabilitation or vocational retraining.
54. In the Commission’s submission, Mr Graham has lacked motivation to obtain suitable employment and with the passage of time his employment prospects have narrowed; a difficulty that is compounded by Mr Graham’s failure to obtain appropriate training and his continuing residence in Harden. That may be true. However, Mr Graham is not a person who has removed himself from the labour market following the termination of his employment in order to ensure that the Commonwealth remains liable to pay him compensation for incapacity. Mr Graham has not received any compensation for incapacity since the termination of his employment in July 1991. He applied for employment in order to comply with his New Start Allowance (and previous Unemployment Benefit) obligations until May 2002, when he was granted a disability support pension and, in all likelihood relinquished any aspiration to obtaining employment. To that extent he is to be distinguished from the example discussed by the Full Federal Court in Comcare v Line (above) at FCR 347-348.
55. The difficulty in this case is that during the relevant period Mr Graham has suffered only a partial incapacity for work: he has some capacity to earn in suitable employment if such employment was available to him. The weight of the medical evidence supports that finding. Nevertheless, the test to be applied for the purposes of s 19 is not whether Mr Graham is capable of undertaking suitable employment, but rather whether he is able to earn in suitable employment. The concept of ‘able to earn’ is one in which the availability to the injured employee of suitable employment in the open labour market must be considered. The evidence on this point is plain enough. Prior to his discharge from Defence service further training was recommended to assist Mr Graham to develop skills that would enable him to advance in clerical roles within Defence. Ms Staats articulated similar recommendations in her report in 2005 and in her oral evidence. It is not surprising, therefore, that in the absence of such training (or rehabilitation) and following the termination of his suitable employment by the Commonwealth in July 1991, Mr Graham has been unable to avail himself of suitable employment despite his continuing but limited capacity for work.
56. I note that under the Act the Commission is not required to provide rehabilitation or vocational retraining. However, Mr Graham’s case exemplifies the desirability of doing so. It is true that Mr Graham has not undertaken training to increase his skills and market competitiveness for suitable employment as a clerk on his own initiative. On Ms Staats’ evidence he could have done so had he so chosen. However, he chose instead to upgrade his skills in other fields for which he was not suited. The Commission is correct in contending that as a result of failing to undertake appropriate training to improve his competitiveness for suitable employment on the open labour market, and with the passage of time, Mr Graham’s chances of obtaining suitable Commonwealth employment diminished.
57. Was his failure to undertake appropriate training reasonable? On the one hand it is reasonable to expect an injured worker such as Mr Graham to undertake training that is within his capacity and that is relevant to employment for which he is suited, in order to improve his prospects of obtaining suitable employment. Ms Staats reported that there are a number of administration training courses that “may assist in gaining employment, although depending of local employment demands, training may be provided wholly on the job” (Exhibit A3, p7). That is consistent with Mr Graham’s previous, and only, experience of clerical work and the report of his supervisors in May 1991. Ms Staats’s evidence was that in 1991 the requirements attaching to Commonwealth employment as a clerical officer were less onerous than now and Mr Graham’s skills would then have been current. Nevertheless, he failed to obtain such employment on the open labour market at that time and failed to undertake training to upgrade his skills and his competitiveness in the open labour market. On the other hand, in the case of a worker who is injured in compensable circumstances in Commonwealth employment, it is reasonable to expect the Commonwealth to provide suitable employment as is required under the Act, or at least for the Commonwealth to provide rehabilitation and vocational retraining in order to assist him to obtain suitable employment. In Mr Graham’s case that did not occur and he was left to his own devices, bearing the effects of his injury for which the Commonwealth was liable.
58. In Mr Graham’s submission declaring his injury and partial incapacity to prospective employers was a substantial factor in his failure to obtain suitable employment, or any employment whatsoever, on the open labour market. I accept that submission. It is an unfortunate matter of commonsense that a prospective employer choosing between two similarly qualified applicants, one of whom declares a prior back injury with ongoing effects, is more likely than not to select the uninjured applicant for employment. If Mr Graham’s failure to obtain suitable employment was solely the result of a deficiency of his skills or training, then his subsequent failure to obtain appropriate remedial training may not be reasonable. Similarly, if his failure to obtain suitable employment was the result of unreasonable choices that he made, then it may be appropriate to deem him able to earn an amount from suitable employment that is within his capacity. However, Mr Graham’s submission that his inability to compete in the open labour market was substantially the result of informing prospective employers about his injury is compelling. For that reason, on balance, I am persuaded to accept that his failure to obtain training that was aligned to employment for which he was suited is reasonable in the particular circumstances.
59. Had circumstances been different, to the extent that Mr Graham had been provided with appropriate rehabilitation and vocational retraining after his discharge from Defence employment, he may well have succeeded in his efforts to find suitable employment in 1991 or 1992 and would not now be in the situation in which he finds himself. The evidence of Ms Staats is that his employment prospects may yet be improved by vocational retraining for suitable employment. Considering the extent of his partial incapacity, his age and his willingness to move in order to obtain employment, I am compelled to agree with that assessment and urge the Commission to consider the benefits of that approach.
60. I accept Mr Graham’s submission that his difficulty obtaining suitable employment was, in substantial measure, the result of his injury and consequent incapacity. It cannot be said, in truth, that those factors, on the basis of which he was discharged from Defence service on medical grounds, are immaterial in his failure to obtain suitable employment. Nor can it fairly be said that such factors carry little weight in comparison to other relevant factors: Mr Graham’s failure to seek suitable employment, or his relocation from the comparatively large labour market in Canberra to the small labour market in Harden, or his apparently increasing lack of motivation to seek employment, or his narrowing employment prospects with the passage of time out of the workforce. Each of those latter factors, I am satisfied, are causally related to the ongoing effects of his injury and his failure to compete successfully on the open labour market for suitable employment in the absence of appropriate rehabilitation and vocational retraining.
61. Mr Graham has not been able to earn in suitable employment since the termination of his suitable employment by the Commonwealth on 27 July 1991. It follows that the amount he is able to earn in suitable employment during each week since that date is nil.
conclusion
62. During the relevant period I am satisfied that Mr Graham has been partially incapacitated as a result of his injury during Defence employment. He has been capable of undertaking suitable employment but has not been able to earn in suitable employment for the simple reason that he was unable to compete successfully for suitable employment, or for that matter any employment, on the open labour market. His inability to compete was in substantial part the result of his injury in the absence of rehabilitation and vocational retraining.
63. In the final analysis, the Commission’s submission that Mr Graham is able to earn at least the equivalent of the salary of an officer at the Department of Defence Australian Public Service Level 2 is not made out. Mr Graham is capable of earning that amount in suitable employment, but no such suitable employment has been available to him on the open labour market.
64. From the termination of his Defence employment Mr Graham has not been able to earn in suitable employment. It follows that Mr Graham’s AE amount for the purposes of s 19 is nil. It is necessary to calculate his NWE amounts in order to properly determine his weekly entitlement to compensation for incapacity from 27 July 1991 to the present. For that purpose the matter will be remitted to the Commission.
65. The decision under review is set aside and in substitution thereof the Tribunal determines that the amount Mr Graham is able to earn in suitable employment from the date of his discharge from Defence employment to the present is nil.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: .....................................................................................
Peter Edwards AssociateDate of Hearing 8-10 March 2006
Date of Decision 29 March 2006
Counsel for the Applicant Stuart Pilkington
Solicitor for the Applicant Brian Hatch
Pamela Coward & Associates
Counsel for the Respondent Charles Clark
Solicitor for the Respondent Madhu Dubey
Phillips Fox
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