Hancock and Comcare
[2003] AATA 217
•6 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 217
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2000/490
GENERAL ADMINISTRATIVE DIVISION ) Re MERILYN HANCOCK Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date6 March 2003
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – whether Comcare is liable to pay compensation in respect of injuries on and from the date of the applicant’s termination of her Commonwealth employment – whether applicant is partially incapacitated for work – suitable employment
Safety Rehabilitation and Compensation Act 1988 sections 4, 19
REASONS FOR DECISION
6 March 2003 Senior Member WJF Purcell 1. This is an application for review of a decision of the respondent (Comcare) of 16 November 2000, which affirmed a determination of 6 September 2000, that Comcare was not liable to pay compensation to the applicant on and from the date of the termination of her Commonwealth employment, namely June 1994.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), and supplementary documents, together with exhibits tendered by the parties. The applicant appeared on her own behalf, and gave oral evidence. Mr Cole was Counsel for Comcare, which called Mr E Eriksen, General Surgeon, and Dr S Sathananthan, Medical Officer, Australian Government Health Service, as witnesses.
3. The applicant, who is 36 years of age, grew up on the family farm and attended Lameroo Area School until year 9, when her family moved to Mt Compass. She had been involved in a motor vehicle accident at the age of 15, when she was a passenger in the front seat of the vehicle and a head-on collision occurred. She was not wearing a seat belt, and her head went through the glove box. She sustained a major head injury, a right jaw injury, a dislocated left thumb, multiple lacerations and body bruising. As far as she is aware, she did not suffer any knee or spinal injuries. She was taken to the Flinders Medical Centre, where she remained for 7 days. Following that accident she had persistent problems with her teeth, jaw, and her left thumb. She says that she has found it difficult to concentrate and memorise, and considers that there has been significant memory disturbance. A third party claim was finalised in relation to that accident when she was 18 years of age.
4. The applicant attended Mt Compass Area School and after completing year 11, undertook a 12 week Introduction to Trades for Young Women, at O’Halloran Hill TAFE, followed by a Pre-vocational Wood Trades Course in 1983. She commenced an apprenticeship as a carpenter with the Department of Housing and Construction (subsequently Australian Construction Services) (the Department) in 1984.
5. On 20 March 1985 the applicant’s place of work was the Department’s Depot at Netley. Whilst returning to the Depot, in the course of her employment, she was involved in a motor vehicle accident, and says that she sustained injuries to her head, back, knee and right ankle. She claimed compensation, and on 12 June 1985, Comcare accepted liability, and compensation was paid for the period 21 March 1985 to 4 April 1985.
6. On 31 August 1988, the applicant was based still at the Department’s Netley Depot, and was struck by a car, whilst riding her bicycle home from work. She sustained further injuries to her neck, right thigh and knee and her left knee. Comcare accepted liability on 25 October 1988, for “bruised right thigh and knee, and sore neck" for the periods 1 September 1988 - 16 September 1988, and 20 September 1988 - 3 October 1988. The Department provided alternate duties upon her return to work, in accordance with the restrictions stipulated by the applicant’s treating Orthopaedic Surgeon, Mr B Wallace. The alternate duties were provided initially at the Netley Depot, and later at the Maintenance Section of the Repatriation General Hospital at Daw Park. On 21 April 1991 Mr Wallace reported in the following terms:
“Ms Hancock developed bilateral anterior knee pain after a contusion injury to both knees approximately 3 years ago when her bicycle collided with a car.
Her diagnosis is chondromalacia patellae which causes anterior knee pain typically aggravated by bent knee activities such as kneeling, squatting and climbing.
This condition often results in chronic pain but it does not lead to any permanent or serious damage to the knee.
The symptoms can usually be controlled by avoiding the sort of activities already mentioned together with physiotherapy and strengthening exercises for the knee.
I agree with Mr. Dobson in that Ms Hancock may find it difficult to return to full carpentry duties because of pain but if she can avoid kneeling, squatting and climbing she should manage to continue working.
As far as any further treatment goes, she had already undergone a coarse [sic] of physiotherapy but it would be beneficial for her to continue the gym programme as instructed by her physiotherapist to improve the strength in her knee particularly the quadriceps muscle.” [T25/37-38]
7. The applicant made claims for damages at common law from third parties in respect of the injuries which she received in the motor vehicle accidents of 20 March 1985, and 31 August 1988. She received a total amount of $33,500.00, from which she repaid Comcare $29,905.70. The amount to be offset (damages less the amount of compensation recovered) is $3,594.30. It is not clear on the evidence whether the applicant has established the amount that would have been payable for medical expenses.
8. The applicant was employed by the Department at the Repatriation General Hospital at Daw Park from 1992 to 1994. She was required to perform various aspects of work as a maintenance carpenter. Throughout this time, she experienced restrictions in her capacity to bend, lift, stoop, stand, and carry heavy loads. She said in evidence that she was supposed to be provided with assistance in carrying out heavy aspects of maintenance carpentry, but that assistance was not provided to her when requested, or required by her. She said that during this time she was subject to repeated criticism by her Depot Manager, and by her leading hand, and was also subjected to sexual innuendo. On 17 August 1992 the applicant developed a depressive disorder as a result of which she was totally incapacitated for work until 7 October 1992. She lodged a claim for compensation, and on 16 October 1992 Comcare accepted liability for the period 17 August 1992 to 7 October 1992, for the condition of “adjustment disorder with depression”.
9. In early 1994 the applicant and the other employees in the maintenance group, were offered voluntary redundancy packages, and in June 1994 the applicant accepted the offer. She said in evidence, that although in 1994 the restrictions as to lifting heavy weights, kneeling, and squatting were still current, she knelt, squatted, stooped and bent, as each job involved the need to do these things. She did every job to the best of her ability. She continued to be very unhappy at the manner in which her workmates and her supervisor treated her. She says that their attitude to her was no different from when she lodged her accepted claim for depression in October 1992. She did not mind the work; she could cope with the work, it was the people around her. She considers that her workmates continued to harass her, and that she was never 100% fit..
10. In early 1994 a very close friend of the applicant, who worked as an orderly at the Repatriation General Hospital, committed suicide. The applicant requested leave, but this was refused. She said that this callous attitude to her grief affected her greatly. The applicant said in evidence that when the offer of redundancy was made in early 1994, she was not interested, but that subsequent to her friend’s suicide and continuing harassment in the work place, she hoped that with her qualifications she would establish a business of her own; and she accepted the offer in June 1994. Approximately 12 months later the remaining carpenters were declared redundant, and received, of necessity, a more attractive financial package than that available to the applicant on a voluntary redundancy basis.
11. In 1995 the applicant undertook a course of training pursuant to the New Enterprise Incentive Scheme, and says that she has actively sought work through newspapers, local contacts and through registration with various job-seeking agencies, including the Commonwealth Employment Service. She has been able to obtain only some 3 to 4 short-term contracts as a carpenter, involving fitting skirting boards, installing a shelf and fitting a dog door for a client. She found also that she could not do all the work herself. Clients complained that she was too slow; she was not fit enough.
12. The applicant said in evidence that she completed a cabinet making course, which she had commenced whilst working for the Department. She did a furniture polishing course with Workskill over a 12 month period in 1999; but she realised that her depression was increasing her fears, her loss of confidence. The Commonwealth Rehabilitation Service, she said, recommended a psychologist and another medical practitioner they thought could help. She felt the psychologist was not sympathetic. She says that she lost a lot of energy, motivation and had declining confidence – she did not feel that she was good enough; she was angry and distrustful. She has over the last 12 months been consulting a new medical practitioner, Dr Helen Sage, who she sees on a 4 weekly basis. Dr Sage prescribed anti-depressants, and she finds that she has more motivation and a higher pain threshold. When her stress levels are high, her pain levels are high. She manages better if she is not worried. She has been granted recently, Disability Support Pension.
13. On 19 November 1998 the applicant’s then solicitors wrote to Comcare in the following terms:
“We refer to previous communications, and especially to your advice that our client is not entitled to further compensation until proof of expenditure of an amount of $3,594.30.
We enclose a copy of a report dated 2 November 1998 from Dr B Steele, who has continued to treat our client for disability to her back following the injuries which she received in her motor vehicle accident. It appears from that report that our client is currently, and has been, incapacitated for work since the occurrence of the injury. She has incurred the expenses detailed. Since 1994 our client has had no employment, but has been registered for work with, formerly, the Commonwealth Employment Service. Our client claims weekly payments of compensation from 1994 to the present time. We would be pleased if you would make a determination assessing our client’s entitlement to compensation in the reasonably near future.” [T44/77]
14. On 6 September 2000, a Comcare delegate rejected the claim in the following terms:
“…
I acknowledge your client’s claim for weekly incapacity payment from the date of her separation from the Commonwealth Public Service. In regard to this I note the following:
· Medical evidence in 1991 states that Ms Hancock was unfit for carpentry duties. There appears no suitable duties were available with Asset Services, but alternative duties were found with Project Services involving architectural drafting.
· She received a Common law settlement in June 1992.
· A claim was lodged in 1992 in respect of “adjustment disorder with depression”. Liability was accepted for the claim and she was granted weekly incapacity payments from 17/8/92 to 2/10/92.
· Information from the employer shows that she returned to modified duties on 8/10/92 and to carpentry on 15/10/92. This was as a result of a report from her treating surgeon Mr Brian Wallace. It is stated in the report “Clinically her knees have improved and I believe that she is fit to return to work as a carpenter but with some restrictions. Essentially these are as I have indicated in my previous reports to avoid kneeling, squatting, climbing or lifting heavy weights.” In addition to “I believe that her condition has improved enough that she would cope well with the type of maintenance work that she outlined at the Repatriation Hospital.”
· She accepted voluntary redundancy late in 1992. The exact date of redundancy in [sic] unknown.
· I note that Dr Meegan in his report of 27/9/99 indicates that Mr Collins [sic] is unfit due to various conditions. However only the condition of the knees is compensable.
Under the 1988 Act, sub-section 19(4)(c), it is stated that when an employee is able to earn in suitable employment, Comcare shall have regard to various factors. In sub-section 19(4)(c) it is stated that where an employee received an offer of suitable employment but “failed to continue to engage in that employment”, Comcare shall have regard to the amount that the employee would be earning if still employed. In your client’s case, she was fit to work as a carpenter at the time she accepted a voluntary redundancy package from the Commonwealth in late 1992.
I hereby determine that incapacity is not payable on and from the date of termination of Commonwealth employment.
Enclosed is Notice of rights.
Medical expenses
Medical expenses can be claimed, but the amount of $3594.30 remains to be offset. Please provide evidence of medical expense incurred by your client due to the compensable injury.
…” [T51/91-92]
15. The applicant applied for a reconsideration of the decision, and the Independent Review Officer affirmed the decision on 16 November 2000. In the course of his Reasons for Decision he stated, in part, as follows:
“…
Prior to ceasing employment with the Commonwealth, the employee was examined by Dr Sathananthan. He provided a report dated 1 October 1992, in which he advised the employee would become fit to return to her normal position on a graduated basis if her treating specialist considered her fit to resume such work.
Thereafter, in a report dated 9 October 1992, Dr Wallace advised he reviewed the employee on 1 October 1992. At that time she reported her knees had improved significantly since commencing alternative sedentary duties in August 1991 and that she wished to return to her previous occupation as a carpenter as her current job was due to become redundant as a result of restructuring. Dr Wallace’s examination of the employee’s knees revealed no swelling, a full range of motion and improved quadriceps strength. He commented there was mild crepitus in both patello femoral joints but no pain on compression or resisted knee extension. Dr Wallace advised clinically the employee’s knees had improved and he believed she was fit to return to her work as a carpenter, but with some restrictions of avoiding kneeling, squatting, climbing or lifting heavy weights. Dr Wallace advised the employee indicated there was a possibility she could perform maintenance work at the Repatriation Hospital which would be much lighter work than either site work or a joinery shop and he believed that the employee’s condition had improved enough that she would cope well with that type of maintenance work.
…
Dr Meegan advised the employee complained of an eight year history of back pain which she related to her work duties as a carpenter but stated she had not made a claim for compensation and had not sought treatment or investigation of her back pain. He advised the employee complained of right hip pain, related to right knee pain and the second motor vehicle accident, which had also not been investigated or treated. Dr Meegan advised the employee reported she had stopped work five years earlier when she resigned and accepted a voluntary separation package. He commented the employee had wanted some time away due to a friend’s suicide but leave had not been granted.
According to Dr Meegan, physical examination of the employee revealed mild tenderness at L4-5 and L5-S1 with a full range of movement of the lumbo-sacral spine and neurological examination of her upper and lower limbs was normal. He stated the employee was able to squat and waddle in a squatted position with the knees and that there was no tenderness specifically of the knee structures with no wasting. He reported tests of the ligamentous and meniscal structures were normal, as was examination of the right hip.
In summary, Dr Meegan advised the employee presented with non-specific cervical, thoracic and lower back pain with normal investigation and mild signs on examination. Likewise, he stated there was non-specific right hip and bilateral knee pain that might be consistent with chondromalacia patellae. Dr Meegan opined the employee should be able to undertake the duties of a carpenter although she might have a degree of restriction for some heavier or more prolonged aspects of carpentry, such as not being able to cope with second fix carpentry rather than first fix carpentry, and might cope with work in a team rather than on her own.
…
In relation to the employee’s current incapacity for work, the most recent medical evidence on the claim file is the report dated 27 September 1999 of Dr Meegan. Dr Meegan was of the view the employee should be able to undertake duties of a carpenter with some minor restrictions.
Based on the opinions of Dr Wallace, Dr Sathananthan and Dr Meegan, I find the employee has not been incapacitated for work since ceasing Commonwealth employment.
However, in the event the minor restrictions referred to by Dr Wallace and Dr Meegan create an incapacity for work within the meaning of the Act, I will address the further issues:
6.1 Suitable Employment
In circumstances where an employee voluntarily terminates his or her employment with the Commonwealth, “suitable employment” is defined in s. 4 of the Act as meaning any employment (including self employment) have regarding [sic] 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.
In Woodbridge v Comcare, Hill J stated the finding of the amount that an employee is able to earn in suitable employment is to be made having regard to all relevant factual matters and is not to be made exclusively by reference to the matters set out in paras 19(4)(a)-(f) of the Act.
…
Consequently, it is necessary for findings to be made as to whether:
(a) there has been an offer of suitable employment;
(b)having accepted that offer, the employee failed to engage or to continue to engage in that employment;
(c)the employee’s failure was, in all the circumstances, reasonable; and
(d)if it is found that it was not reasonable, whether there are any other circumstances to which regard should be had.
In Re Shanahan and Australian Postal Corporation, the Tribunal held where para. 19(4)(c) of the Act applied, an employer might be entitled to take into account the employee’s ability to earn the amount per week that the employee was earning before his or her voluntary redundancy.
In Re Prica and Comcare, the Tribunal held para. 19(4)(c) applied because the employee took a voluntary redundancy in a situation where he had been offered suitable restricted duties by his employer and the Tribunal also considered the employee’s action was not reasonable in terms of para 19(4)(f) of the Act.
Paragraph 19(4)(c) of the Act provides that where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage in that employment, for the purposes of calculating the employee’s entitlement to compensation, the amount per week that the employee is able to earn in suitable employment is the amount per week that the employee would be earning in that employment if he or she were engaged in that employment.
As indicated above, there is no evidence to suggest that at the date of resignation/voluntary redundancy, the employee was unable to perform her normal duties and I note in October 1992 both Dr Sathananthan and Dr Wallace considered the employee was fit to perform the normal duties of a carpenter. I also note the Rehabilitation Case Closure Report dated 22 October 1992 stated the employee had returned to carpentry duties on 15 October 1992.
If however, the restrictions referred to by Dr Wallace and Dr Meegan are considered to result in an incapacity for work such that the employee is not able to perform her pre-injury duties, it is necessary to have regard to sub-s. 19(4)(e) of the Act. That sub-section provides that where, after becoming incapacitated for work, an employee has failed to seek suitable employment, the amount per week that an employee is able to earn in suitable employment, is the amount per week that, having regard to the state of the labour market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she was engaged in such employment.
…” [T53/101-105]
16. The applicant has applied to this Tribunal for review of that decision, and submits that at all relevant times since the termination of her employment she has been partially incapacitated for work. As a result of the effects of the injuries sustained by her in the course of her employment, she has been unfit for work which requires prolonged standing, lifting and carrying heavy weights, or for work which places a strain on her knees or her back. Since the beginning of 1995, she has sought suitable employment or suitable work, and the remaining carpenters were made redundant in 1995, and this event is a basis also, for ongoing payment of compensation. She maintains that she is entitled to compensation in accordance with section 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
17. Comcare argues that the applicant has wholly or substantially recovered from her injuries; that she has not been incapacitated for work from the injuries, since her resignation in June 1994, and thereafter. It argues in the alternative, that the Commonwealth provided suitable employment, which the applicant chose not to perform, as evidenced by her resignation. In the alternative, it argues also, that the applicant has retained a capacity to perform suitable employment, from which she could earn at least the equivalent of her normal weekly earnings.
18. Section 19 of the Act, as far as is relevant for the purposes of this review, provides:
“(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:
(a) where the employee is in employment (including self-employment)-the amount per week that the employee is earning in that employment;
(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;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition-the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment-the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee-whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.”
19. “Suitable employment” is defined in section 4 of the Act as follows:
“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);”
20. “Incapacity for work” is defined in section 4(9) of the Act as follows:
“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.”
21. Comcare called Dr Sathananthan, Medical Officer with Australian Government Health Services as a witness. She first examined the applicant on 31 October 1990 at the request of her Department, in relation to the applicant’s possible redeployment, or retirement on the grounds of invalidity, in relation to her knee problems. Dr Sathananthan obtained reports from the applicant’s treating medical practitioner, and was involved in her return to work regime. On 7 May 1991, on review, Dr Sathananthan recommended that the applicant was fit to continue 6 hours of work per day; that her duties should be semi-sedentary and at bench height; and was of the opinion that the applicant was unfit to perform work involving prolonged kneeling, squatting, standing or climbing ladders. On 29 May 1991, Dr Sathananthan was of the opinion that the applicant was unlikely to return to her nominal position for another 12-18 months; that she should be redeployed to a sedentary/semi-sedentary position; and that she was fit to continue 6 hours of restricted duty per day. Dr Sathananthan reported on 12 September 1991, that the applicant had been working in the Architectural Practice of ACS Project Services, as an architectural draftsperson, and Dr Sathananthan considered her fit to perform full duties, 8 hours per day, as an architectural draftsperson.
22. On 1 October 1992, Dr Sathananthan reviewed the applicant to determine her fitness to return to her alternate duties, in the light of her continuous absence from work since 28 July 1992, and her declining work performance. Dr Sathananthan stated, in part:
“…
In September 1992, she was referred for a medical assessment for symptoms suggestive of a mild anxiety disorder allegedly related to ongoing work related stressors. At the time of the initial assessment, she was receiving counselling from a psychologist, Helen Hardacre to deal with the anger and hurt secondary to her problems. In view of the sensitive nature of her problems, she has [sic] referred to a psychiatrist Dr CJ Schembri to obtain advice on the nature and appropriate treatment of her problems. Dr Schembri confirms that her symptoms are secondary to a mild anxiety disorder. He also states that her prognosis will be very favourable so long as the issues that have troubled Ms Hancock can be resolved without any confrontation which stands to be destructive and likely to complicate matters further. Mrs Hancock did not consent to the disclosure of the contents of Dr Schembri’s report to her employer.
She has made good progress during the last few weeks with psychological counselling.
Her knee condition appears to be improving gradually. She only has minimal discomfort in her left knee at present. She will be reviewed by her specialist Dr B Wallace today to obtain a clearance to return to her usual work.
…” [T34/59]
23. Dr Sathananthan considered that the applicant’s knee symptoms were very minimal at that time, and noted that no abnormalities were found on clinical examination of her knees. In his report of 9 October 1992, her treating surgeon, Mr Wallace, was of the opinion that the applicant was fit to resume her duties as a carpenter, with some restrictions, essentially those he had indicated in his earlier reports to avoid kneeling, squatting, climbing or lifting heavy weights.
24. Dr Sathananthan gave evidence that in her final report on 14 October 1992 [ST45], she stated that the applicant had made good progress emotionally during the last few weeks; she had minimal symptoms of anxiety, currently; that she had returned to clerical duties, on 8 October 1992; and that the work related problems which contributed to her anxiety had been dealt with administratively. The applicant’s knee position appeared stable at that time. Dr Sathananthan has not seen the applicant since October 1992.
25. In the course of Dr Sathananthan’s oral evidence, the applicant outlined to her the problems she experienced with continuing harassment, and problems with coping physically with her duties, which persisted until she took the voluntary package in June 1994, more than 18 months after Dr Sathananthan had seen her for the last time. Dr Sathananthan said that although she had seen the applicant on numerous occasions between October 1990 and October 1992, the applicant did not consult her in relation to any problems she was facing subsequently, as had been her previous habit. Dr Sathananthan said that she assumed that the applicant was progressing normally. The documentary evidence does not record any complaint by the applicant of continuing knee or psychological problems, prior to her taking the voluntary package.
26. Comcare called Mr Eriksen, who examined the applicant on 3 May 2001, and reported [ST48] that she reported pain involving all body segments; the entirety of the spine, the ankles, knees, hips, wrists, elbows and the right and left shoulders. Examination of the lower limbs did not define any abnormality. There was no clinical abnormality to examination of the heels, feet, knees or hips. There was no joint tenderness of the knees. Mr Eriksen expressed his medical opinion in the following terms:
“…
Medical Opinion
This person presented to me in a very straightforward and genuine manner. I perceive she is in a very difficult situation in the sense that she is now long-term unemployed, she is significantly frustrated by her current position and in the past there has been significant stress and anxiety factors which I understand are in the process of remission at this stage.
1. The history has been embodied in the above body of the report.
2. My findings on clinical examination are that of normality.
3. Her diagnosis is of nonspecific body pain.
4.My general comments on this worker’s condition, treatment provided and response to treatment, progress generally and current presentation is as follows.
I believe that in the past she had sustained discrete soft tissue injuries and I perceive in the first motor vehicle accident she probably sustained a significant closed head injury, and may have had some significant neurological impediment as a result of that motor vehicle accident. She has had significant stress and anxiety factors of which she had coped in a reasonably admirable manner, but she is in a situation at this stage where she is frustrated by her long-term unemployment. Her symptoms are of a nonspecific nature but may reflect past soft tissue injuries. The physical components of which are resolved, but are influenced by ongoing stress and anxiety factors which are understandable in the current clinical setting.
5.I believe she has presented to me in a reasonable and genuine manner but I believe she has the potential to radically improve her current clinical status. I believe that she should be referred to a Rehabilitation Centre and if she had a multi-functional rehabilitation involving physiotherapy, hydrotherapy, gym, pain management and occupational therapy, I think it could be reasonably stated that she could return to her previous working activities, or fulfil her current working requirements or aspirations.
6.I believe that she has the attitude, motivation and coping skills to undertake a rehabilitation programme and return to selected working activities in her expertise and qualifications as a Carpenter.
7.I believe her prognosis is excellent and I am not able on current medical data to assess permanent residual disability and permanent restriction of work capacity. I found this person presented in a very genuine manner and if required or requested I would liaise with her General Practitioner to try and implement treatment strategies and rehabilitation programmes which may improve her condition as stated in the above body of my report.”
27. In the course of his oral evidence, Mr Eriksen explained to the applicant, in considerable detail, the range of rehabilitation available which could be tailored to meet her particular needs; that on the evidence he had, he could not find a problem, and he could not find an impairment. He considered that she had suffered soft tissue injuries, the physical components of which had resolved, but were influenced by ongoing stress and anxiety factors.
28. The applicant, in the course of her evidence and the presentation of her case, impressed me as genuine in her description of her complaints of pain and discomfort. Taking into account the emphasis she wished to place upon the significance of particular events, I consider that there were elements of exaggeration, in hindsight, of the conditions of her employment after October 1992. Her evidence in the main however, was credible, and without embellishment.
29. The applicant was clearly a pioneer in her field as a female carpenter in the Public Service. It would not have been easy for her in such a male dominated area of endeavour. She persisted however, and proved her competency to her superiors and her work colleagues. She was involved, sadly, in a number of road accidents, which caused her injury and suffering, and she succumbed also in about August 1992 to feelings of helplessness and depression. She was diagnosed by Dr Schembri, as suffering from a mild anxiety disorder, and liability was accepted for the condition. She returned to work on a full-time basis, with restrictions, in October 1992, and on the evidence, despite her claims during the Hearing that she never fully recovered, and could, in effect, only do the work to the best of her ability, there is no record of any complaint by her of symptoms of knee pain, or anxiety.
30. On the evidence, the applicant had been in consultation with Dr Sathananthan on a regular basis over the 2 year period from October 1990 to October 1992, but did not seek her assistance, or advice, subsequently. By June 1994 she may well have come to the conclusion that she no longer enjoyed the work, and that if she took the voluntary redundancy she could establish a business of her own. On her own evidence, she was looking forward with confidence, in June 1994, to a future in the private sector. Her hopes were not realised, and it is clear on her evidence also that her resentment of her workmates’ perceived financial good fortune in being declared redundant some 12 months after she left her employment, weighed heavily on her mind, and was at least one of the spurs to her seeking legal advice in 1998. Unlike her workmates however, the applicant’s cessation of employment was on a voluntary basis.
31. The applicant prior to June 1994 was continuing to engage in employment with the Commonwealth. Section 19(4) of the Act provides that in determining the amount that a person is able to earn in suitable employment Comcare shall have regard to the amount the person would be earning, if he or she had continued to engage in that employment. In my view, the applicant had, after becoming incapacitated for work, accepted an offer of suitable employment; and having accepted that offer and continued to work in that position, the acceptance of the voluntary redundancy in June 1994, means that she has failed to continue to engage in that employment.
32. I accept Mr Eriksen’s evidence that any physical effect of her accepted knee condition has resolved; and Dr Sathananthan’s evidence that as at October 1992 the applicant had minimal symptoms of anxiety, and made no subsequent complaints to her of such symptoms.
33. I am satisfied on the whole of the evidence, and find as a fact, that the applicant is not incapacitated for work; and that if she was incapacitated for work, her failure to continue to engage in her employment would bring into operation section 19(4)(c) of the Act, which takes into account the amount per week she would have been earning in that employment if she was engaged in that employment. She would not be entitled therefore to any weekly payments of compensation. Her application for review cannot succeed.
34. For these reasons, the Tribunal affirms the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDate/s of Hearing 7/8 August 2002
Date of Decision 6 March 2003
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Thomson Playford
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