Hunt and Comcare (Compensation) - [2022] AATA 786

Hunt and Comcare (Compensation) [2022] AATA 786 (14 April 2022)
Division:GENERAL DIVISION
File Number: 2019/2100
Re:Jo-Ann Hunt
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:14 April 2022

Place: Hobart
The reviewable decision is set aside and remitted to the Respondent for determination on the basis that the Applicant’s AE is calculated on the actual earnings of the Applicant from 1 July 2013 until 3 April 2019.
...................[sgd]....................................................
A G Melick AO SC, Deputy President
Catchwords
COMPENSATION – work-related injury – whether applicant engaged in suitable employment – offer of temporary employment – effect of voluntary redundancy on entitlement – number of hours the Applicant can work – decision set aside and remitted.
Legislation
Safety, Rehabilitation and Compensation Act 1998 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Cases
Alan Esam and ASP Ship Management [1998] AATA 44
Apostolidis and Comcare [1995] AATA 284
Cobern and Comcare [1998] AATA 221
Ganley and Comcare [2003] AATA 14
Goodricke and Comcare [2011] FCA 694
Huckel and Comcare (1995) AATA 260
Jones and Telstra Corporation Limited [1999] AATA 679
O’Shea and Comcare (1993) 18 AAR 430
West and Comcare [1994] AATA 33
Re Woolf and Comcare [1995] AATA 230
REASONS FOR DECISION
A G Melick AO SC, Deputy President
14 April 2022

INTRODUCTION

This application for review has been brought under s 64 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) by Ms Jo-Ann Hunt (Applicant), a former employee of the Australian Taxation Office (ATO) in respect of a decision made by Comcare (Respondent) under s 62 of the Act on 15 February 2019.
The Applicant suffered a workplace injury in 2004 which eventually prevented her performing her usual duties and working more than three days a week.
The reviewable decision varied a determination dated 9 October 2013. A Delegate of the Respondent (the Delegate) determined that for the purposes of s 19(2) of the Act the Applicant was able to earn $1,028.25 per week, being fit to work 22 hours and three minutes per week; which was equal to three full-time days per week.
The Applicant did not dispute that she was fit to work 22 hours and three minutes per week, but the Delegate’s calculations were based upon the Applicant’s potential earnings should she have continued to work with the ATO, which were greater than her actual earnings post-employment with the ATO. The Respondent contended that the Applicant had failed to continue to engage in her employment with the ATO and hence the Delegate was correct to calculate her potential earnings in accordance with her ability to earn at the ATO rather than with reference to the lower wages she received post ATO employment. The Applicant contended that her failure to continue to engage in employment with the ATO was reasonable in all the circumstances and hence the Delegate’s calculations should have been based on her lower actual wages rather than the potential ATO wages.
EVIDENCE
The hearing in this matter was conducted over four days. The Applicant gave oral evidence and the Respondent called the Applicant’s former manager, Ms Kathryn Crawford, on the final day of hearing.
Applicant
The Applicant’s statement dated 3 July 2020 was tendered in evidence at the hearing. That statement begins by noting the Applicant adopts a previous statement produced in the supplementary T-documents in this matter dated 1 April 2019.[1] There was another statement by the Applicant dated 12 October 2017 that was also tendered as part of the supplementary T-documents.[2]
[1] Supplementary T-documents, 102-21.
[2] Supplementary T-documents, 70-83.
In her statement dated 1 April 2019, the Applicant explained that after commencing work at the ATO in 1995, she obtained a position in working in a national team. This was approximately two years prior to her injury.
She explained that “a few months” prior to her injury, she was acting in a position as EL1, which involved “being the manager of the team nationally”.[3] In this role, the Applicant stated that she was earning around $1900 per week gross. By contrast, she stated that her base level salary at the APS6 level was about $1600 gross. Her work in both the EL1 role and APS6 role was predominantly computer-based.
[3] Supplementary T-documents, 71.
On or about 27 Janury 2004, the Applicant stated that she began to experience intense pain in her neck, shoulder and down her right arm to her fingertips. The pain suddenly became very severe and caused the Applicant to cease work. She reported her injury to her manager and went home. She attended her general practitioner, Dr McCarthy, a short time later. After being admitted to hospital, she was diagnosed with a broken disc and crushed nerve that radiated down the Applicant’s right arm.
On 5 February 2004, the Applicant underwent a microdiscectomy at the C6/7 level, and on 30 March 2004, the Applicant made a claim for compensation for ‘pain and parasthesion ? secondary to disc lesion at C6/7’ affecting her ‘neck, (R) shoulder, arm + hand’.[4]
[4] T-documents, 13.
On 30 April 2004, the Respondent accepted liability for ‘intervertebral disc disorder – cervical region’. The date of injury was determined to be 1 February 2004 being the date on which the Applicant first sought medical treatment.
The Applicant stated that the EL1 role in which she was acting at the time of her injury required significant interstate travel. She suggested that she would travel “once to twice a week” with her “bulky” laptop.
During the hearing, counsel for the Respondent asked the Applicant about the frequency and nature of her travel arrangements in her EL1 role. It was put to the Applicant that she was not travelling as frequently in late 2003 to early 2004 as she contended and counsel for the Respondent referred to an ATO summary of her travel during this period.
The Applicant noted that the ATO summary of her travel did not take into account local trips in Tasmania where she would be required to lift her luggage in and out of the car. This included a trolley with folders.
Counsel for the Respondent directed the Applicant to the report of Dr Muthu, which noted that the travel undertaken by the Applicant would have materially contributed to the disc fragment, because of the need to carry a heavy latop and cabin baggage, and specially, the need to lift and place these in the overhead lockers, and navigate narrow airplane aisles.
Counsel for the Respondent questioned whether, in the context of the infrequent plane travel reflected in the ATO summary, it could be said that the Applicant had needed to travel with the heavy latop every week and sometimes twice a week.[5] During re-examination, the Applicant confirmed that she did not think the history of her travel contained within the ATO summary was complete.[6]
[5] Transcript, 13 July 2020, 12-13.
[6] Transcript, 13 July 2020,
The Applicant also asserted that she had been engaged in travel prior to her role as an EL1, and possibly more frequently when she was in the APS6 position. Despite this, the Applicant gave conflicting evidence about whether she was required to carry a heavy laptop during this period. At one stage in her evidence, she said she could not remember whether she had the laptop when travelling as an APS6[7] and later stated that she definitely was travelling with a heavy laptop.[8]
[7] Transcript, 13 July 2020, 6.
[8] Transcript, 13 July 2020,13.
Following the Applicant’s injury, she attempted to return to work in March 2004 and again in April/May 2004. She was unable to manage the workload proposed in her rehabilitation plan. She was working two to three days, rather than the proposed three and a half days.
During the years following the Applicant’s return to work, she was unable to sustain her managerial role. She stated that her “employer’s had [her] doing anything they could find”[9] and that her inability to perform tasks that used to be within her capacity, at work and also at home, made her feel like she had no “value/capacity/use in any way”.[10]
[9] Supplementary T-documents, 109.
[10] Supplementary T-documents, 109.
The Applicant confirmed during cross-examination that since her injury in 2004, she did not return to full time work. From 2004, adjustments were made to her work in response to rehabilitation reviews or new doctors’ certificates, but the work remained ultimately computer-based.[11] Despite these adjustments, the Applicant acknowledged that she had not been fully occupied over her three days of employment every week. When asked whether the ATO had done everything possible to give her as much work as they could, she stated that she was unsure.[12]
[11] Transcript, 14 July 2020, 2.
[12] Transcript, 14 July 2020, 2.
During cross-examination, the Applicant was shown email communications in 2013 with Ms Antoinette Tsabazis who discussed the possibility of trialling a new National Quality Assurance role (National QA role) for the Applicant for a period of three months after which the role would be reviewed.[13]
[13] T-documents, 64.
Counsel for the Respondent questioned the Applicant as to her position with respect to a potential offer of a short-term role. He led evidence that the Applicant had a preference for an offer of redundancy over the offer of short-term employment. The Applicant explained that she did not feel that she could contribute in the roles that she had been given, and was being offered, stating that she did not want to “sit there and do nothing for another three months”.[14] She did not consider the redundancy “voluntary,” stating that she wanted to be “busy and productive” at work.[15]
[14] Transcript, 14 July 2020, 9.
[15] Transcript, 14 July 2020, 10.
In mid-2005, the Applicant stated that she was able gradually increase her hours to three days a week, despite being subject to “multiple restrictions”.[16] In 2006, she increased her hours to four days per week.
[16] Supplementary T-documents, 110.
In January 2009, the Applicant suffered from ‘compensable low back pain L4-5’ and was incapacitated until April 2009. She recommenced work for two days per week for three hours. In June, the Applicant underwent further facet blocks to her cervical spine. She was advised in July 2009 that her nerve had been permanently damaged.
Following further surgery in November 2009, the Applicant reported being incapacitated again. She tried to return work in April 2010 before being made redundant in June 2013. The Applicant stated in her 1 April 2019 statement:[17]
“I could see there were no other positions for me and essentially there was no work that I could do. My supervisor said it was likely that if I did not take the redundancy then it may be I would receive an involuntary redundancy which was less renumerative. My supervisor told me that there were no other positions for me in the department”.
[17] Supplementary T-documents, 115.
In her statement dated 3 July 2020, the Applicant further stated:[18]
“My employer had no meaningful way of continuing my position and I was surplus to requirements. It appears from the T papers pp 78 & 75 that my employer considered my ongoing employment was unsustainable from the ATO's perspective. And, from my position, I simply could not keep on as I was so depressed and felt worthless and that was obvious to me on a day to day basis when I went to work.
I was told there was no other job in the public service that they could find for me”.
[18] Applicant’s statement dated 3 July 2020, 3.
Counsel for the Respondent questioned the Applicant in relation to her voluntary redundancy. The Applicant conceded that the voluntary redundancy was a financial incentive, but maintained that she had only been gathering relevant information prior to receiving a formal offer of redundancy on 25 June 2013. When asked about the voluntary redundancy and whether the Applicant felt she had a choice as to whether she accepted it, she stated:[19]
“I took the redundancy because I was only going to be able to have at the most three months more employment because Kath had already stipulated that it was highly unlikely it would go into the next financial year, and that if I did not take it, when we discussed actually receiving it, that I would not - I would only be offered this once. And it was either that or be made to sit there and still have people looking at me and walk in and do nothing”.
[19] Transcript, 14 July 2020, 13.
During re-examination, the Applicant expanded on the interactions she had with the ATO with respect to her redundancy:[20]
“Kath had told me that when I got back from leave, that I would no longer be employed in CAS, Client Account Services, which is where my position was and there was nothing in Hobart. And that I would be being made redundant and that I could consider the voluntary or the non-voluntary. She said that there was a possibility they may be able to give me up to three months work as a part of a project team but I am not sure what the tasks or anything that they could’ve come up with – and as Kath alluded to during our discussions, they hadn’t been able to find anything in nine and a half years that was suitable. So it was highly unlikely that in the next three months, they were going to be able to find anything that was suitable, given that everything was going to 100 per cent computer based”.
[20] Transcript, 15 July 2020, 14.
The Applicant subsequently requested that the Respondent treat her redundancy as non-voluntary, citing that she did not feel she had any choice to leave but for her mental health.[21] When asked whether she was aware that by treating her redundancy as non-voluntary, there would be a consequential effect on her rate of weekly compensation payment, the Applicant stated that she was more concerned that it purported that she had removed herself from suitable employment, when she did not consider this to be true.[22]
[21] Transcript 14 July 2020, 14.
[22] Transcript, 14 July 2020, 15.
During examination in chief, the Applicant was asked about her attempts to obtain other employment after she ceased working at the ATO, and prior to her employment at Oak Tree Retirement Village (Oak Tree). The Applicant stated that she had applied for every part-time position in Hobart related to clerical or office-type duties using various advertising platforms including the Public Service Gazette and Seek. She also applied for some retail assistant positions. She explained that she had attended more than 12 interviews prior to securing employment at Oak Tree.
The Applicant was questioned in relation to the work she was undertaking at the time of the hearing. She gave evidence that she was working at Rosary Gardens Nursing Homes (Rosary Gardens) for 29 hours per week. This occurred over a period of five days, and she worked approximately 5.5 hours each day. She indicated that she took breaks during each day, and that the majority of her work was not computer-based.
In her statement dated 1 April 2019, she stated that at that time, she was earning $696.00 per week at Rosary Gardens.
Counsel for the Respondent directed the Applicant to an ergonomic interview she participated in while employed at Rosary Gardens. The Applicant agreed that her capacity for computer-based work at the time of the interview was 40-60 minutes in the hour for 67-100% of the time. The Applicant agreed this was a constant part of her work, among other things.[23] Counsel for the Respondent also highlighted that the interview recorded the Applicant’s sustained use of dual-monitors as “constant”. Again, the Applicant clarified this statement by suggesting that it was constant, among a group of things. She suggested these activities combined made up approximately 60% of her time.
[23] Transcript, 15 July 2020, 32.
Counsel for the Respondent questioned the Applicant on her decision to increase her hours from 25 to 29 per week. The Applicant agreed that she increased her hours at Rosary Gardens due to the cessation of payments from Comcare.[24]
[24] Transcript, 15 July 2020, 34.
She gave evidence that her symptoms worsened when she adopted the increased hours, and she assumed her manager at Rosary Gardens would have had some awareness of her increased pain levels. She maintains that she took the regular short breaks (five-10 minutes) recommended by a treating doctor, despite counsel for the Respondent calculating that the five minute breaks alone would have equated to more than half an hour work less each week. In the Tribunal’s calculation, a five minute break every hour for 29 hours equates to over two hours less work per week.
During re-examination, the Applicant explained that she would take her breaks depending on how much pain she was experiencing that day, noting that she was often sitting and standing and it was difficult to quantify.[25] When asked about each itemised rehabilitation recommendation in the ergonomic report, the Applicant’s evidence suggested that she was overall compliant with the recommendations.[26]
[25] Transcript, 15 July 2020, 12.
[26] Transcript, 15 July 2020, 12-13.
The Applicant was finally questioned in relation to her participation in extra-curricular sports. The Applicant confirmed that since her injury in 2004, she had been unable to continue to play netball and basketball. She did attempt to maintain her commitment to cue ball by playing a game once every three weeks.[27] The Applicant gave evidence that she had not played cue ball for some time now. She had reported to Dr Muthu, and also to Dr Gan that she had not been able to continue to play cue ball as effectively as she previously had.[28] During re-examination, the Applicant explained that she had previously played cue ball at A grade level, but her injury in January 2004 significantly restricted her physical capacity to play. She gave evidence that the reason for her involvement in cue ball was predominantly to spend time with her daughter and best friend.
[27] Transcript, 14 July 2020, 22.
[28] Transcript, 14 July 2020, 30.
Ms Crawford
The Respondent called Ms Kathryn Crawford to give oral evidence on the final day of hearing. Ms Crawford once held the position of acting/Director Hobart: Client Account Services (CAS) Business Exceptions Management Group. She had responsibilities in respect of the provision of the Applicant’s duties when she was employed as an APS6. Ms Crawford’s written statement dated 17 July 2020 was also tendered in evidence.[29]
[29] Exhibit 8.
Following changes to the type of work required by a team leader at the APS6 level, the Applicant was no longer able to fulfill the role due to the limitations on hours she could sustain. Ms Crawford was involved in the process of discussing suitable alternative roles for the Applicant that were consistent with her medical restrictions.
The Tribunal has also considered a report produced by Ms Crawford dated 2 January 2013 that reported no issues in the quality of the Applicant’s work nor her output, timeliness and attitude/behaviour.[30] In this report, Ms Crawford commented that due to the Applicant’s restricted capacity for work, it was difficult to “provide her with a meaningful role at the APS6 level”.[31]
[30] T-documents, 59-62.
[31] T-documents, 59.
When the Applicant declined the offer of the three-month National QA role, Ms Crawford and the Applicant commenced discussions of a voluntary redundancy. With respect to that offer, Ms Crawford stated:[32]
“I had a number of discussions with Jo-Ann about changes to her role and the proposal that she accept the 3 month National Q&A position. However, Jo-Ann told me that she did not feel that she was able to continue to contribute to working with the ATO, and I took her responses to indicate that an offer of a voluntary redundancy would suit her better.
During my discussions with Jo I did not state that she could not contribute to her employment at the ATO and I did not tell her that if she didn’t accept the voluntary redundancy she would be given an involuntary redundancy. Nor did I tell her that there were no other positions for her in the public service in Hobart”.
[32] Statement of Kathryn Crawford dated 17 July 2020, [19]-[20].

There is a clear difference in the recollections of the Applicant and Ms Crawford, and although I found both to be credible witnesses, I am satisfied that the Applicant’s version of events is more reliable for the following reasons:
(a)From 2013 to 2014 Ms Crawford was managing 150 permanent and 2000 casual employees.
(b)Ms Crawford did not have access to notes made at relevant times with either the Applicant or ATO Delegate Steve Fellows, who was involved in the organisation of the Applicant’s voluntary redundancy.
(c)Contemporaneous documents as set out in the Applicant’s evidence in reply [21]-[26] are consistent with the Applicant’s evidence including:
(i)A report produced by Ms Crawford stating:[33]
[33] T-documents, 59.
“the duties undertaken by Joanne cannot be performed at home. There are no duties available that can be performed by Joanne from home.
Due to the restriction of hours /days that Joanne is able to attend the workplace it is very difficult in our business area to provide her with a meaningful role at APS6 level. Ordinarily staff at the AP S6 level within my business are team leaders , and the need for APS six officers outside of the team leader role is minimal”.
(ii)A notice of termination of employment dated 28 June 2013 from a delegate of the ATO, Ms Emma Tobias, who determined the Applicant to be “an employee whose services can no longer be effectively utilised”.[34] Delegate Tobias further certified that she had “fully considered all possible options for redeployment or retraining that could allow [the Applicant ] to be retrained in gainful employment [and further certified that she had also fully considered] whether it was in the interests of the efficient administration of the office to assign new duties to [the Applicant]”.[35]
(iii)Delegate Tobias further concluded that it was appropriate from the perspective of the Respondent to terminate the Applicant’s employment on the ground that she was “excess to the requirements of the Australian Taxation Office (s29(3)(a) of the Public Service Act 1999)”.[36]
(iv)On 25 June 2013 Delegate Fellows certified to the Applicant that her services “cannot be effectively utilised by the tax office in your current position and that alternative employment for you within the tax office is not available”.[37] Delegate Fellows formally offered the Applicant voluntary redundancy and advised her that if she rejected the offer of voluntary redundancy it would not be offered again and if alternative employment could not be found, proceedings for involuntary termination would commence.
(v)On 31 May 2013 Delegate Fellows gave the Applicant “formal notification that as an employee you can no longer be gainfully employed in the ATO”.[38] Delegate Fellows recited the relevant attempts at redeployment or retraining and he concluded (in consultation with Ms Crawford): “Redeployment or retraining are not options. These have been tried recently without success”.[39] He reviewed a redeployment in November 2012 involving a supporting role which “was moved to being completed nationally and there was minimum input required of you and your duties were below the APS6 level”.[40] Delegate Fellows further stated in this notice:[41]
“the expectations of an APS six team leader encompass constant and ongoing changes. You were unable to demonstrate the required capabilities despite the extensive support provided to assist.”
(vi)there was no documentary evidence of any specific role for the Applicant, apart from the possible National QA role for three months and no location, duties or supervisor were nominated for that role.
[34] T-documents, 78.
[35] T-documents, 78.
[36] T-documents, 78.
[37] T-documents, 75.
[38] T-documents, 71.
[39] T-documents, 71.
[40] T-documents, 71-2.
[41] T-documents, 71.
Other evidence
The Tribunal also received into evidence reports from several of the Applicant’s treating medical practioners. The opinions in those reports are summarised as follows.
Dr Michael McCarthy
In a letter address to Ms Michele Wilson, a representative of the ATO, dated 10 May 2012, Dr McCarthy outlined the duties the Applicant could safely perform including the amount of time for which she could comfortably use her arms to perform tasks. Dr McCarthy opined that the Applicant was only able to work for a maximum 22 hours per week spread over a period of 3 days.
Dr McCarthy also produced a report dated 14 November 2015[42] for Comcare delegate, Ms Day, opining that the Applicant’s injury was directly related to her work at the ATO. He opined that while she had transitioned to a stable state, she would not be able to achieve independent self management and would continue to be dependent on medications, massage and counselling for the foreseeable future.
[42] T-documents, 213-19 (2016/7036).
Dr Andrea James
Dr James assessed the Applicant at the request of the ATO Health Consultant, Ms Tsabazis. Dr James produced a report dated 13 June 2012 which outlined her view that the Applicant had some capacity to trial an increase in her hours of work from three to a maximum of four days gradually. She recommended changes to the Applicant’s duties including allowing her greater flexibility in the time she has to complete computer-based work, and allowing her to take short breaks to adjust her posture. Dr James recommended that the Applicant be reviewed again if she was unable to achieve the gradual upgrade in hours.[43]
[43] T-documents, 27.
On 7 August 2012, Dr James provided a supplementary report[44] addressed to Ms Tsabazis following a discussion between Dr James and the Applicant’s treating general practitioner, Dr McCarthy. Dr McCarthy agreed that the Return to Work plan proposed by Dr James was reasonable and appropriate. Again, Dr James recommended that if the Applicant was unable to gradually increase her work hours then she should be subject to further assessment to determine her working capacity.
[44] T-documents, 47.
Dr James wrote a further supplementary report dated 29 August 2012 for Ms Tsabazis[45] making changes to her recommendations after reading the recommendations of Dr McCarthy. These changes introduced more flexible arrangements to the Applicant’s Return to Work plan.
[45] T-documents, 49-55.
After discussions with Dr Sharman regarding the Applicant’s ongoing work capacity, Dr James, in a further supplementary report dated 29 October 2012,[46] opined that the Applicant had most likely reached her maximum capacity of three days per week at seven hours and 21 minutes work per day. She acknowledged that Dr Sharman has requested a follow up assessment prior to making a final determination. Her recommendations regarding the types of duties she should perform and the need for flexibility were consistent with her prior recommendations.
Dr Jennifer Nichols
[46] T-documents, 47.
Dr Nichols, clinical psychologist, produced a letter dated 27 June 2012[47] outlining her assessment of the Applicant. Dr Nichols opined that there had been a deterioration in the Applicant’s psychological state due to a feeling of being unsupported in the workplace and a lack of an ongoing role. She also reported a feeling that the Applicant was not coping at work and feeling anxious upon entering the workplace.
[47] T-documents, 33.
On 12 August 2013, Dr Nichols wrote a subsequent letter to a representative from the Respondent,[48] stating that given the Applicant had not been given meaningful duties within the workplace, her voluntary redundancy had not been a matter of choice.
Dr Peter Sharman
[48] T-documents, 90.
Dr Sharman assessed the Applicant at work and produced a report dated 27 August 2012 addressed to Ms Tsabazis.[49] Dr Sharman opined that an upgrade to the Applicant’s Return to Work plan would not be suitable until the supports she was waiting on were in place. Dr Sharman issued a certificate providing that the Applicant could work for 22 hours per week on non-consecutive days but with the flexibility to increase or decrease her work depending on her level of pain. He opined that any upgrade to the Applicant’s hours as proposed by Dr James could be considered on the expiration of his certificate.
Dr Peter Gan
[49] T-documents, 47.
Dr Gan, consultant neurosurgeon, produced a report dated 4 September 2017.[50] Dr Gan opined that the Applicant has an impairment that was mainly contributed to by work-related factors.
Dr Thirayan Muthu
[50] T-documents, 103-9.
Dr Muthu, neurosurgeon, examined the Applicant on 11 May 2018 and produced a report dated 12 June 2018.[51] He opined that the Applicant’s injury was not sustained through her work duties, but that at the time of the assessment, the Applicant was unable to do any prolonged activity in front of a computer.
[51] T-documents, 110-31.
FACTS
Based upon the evidence referred to above and the T-documents, I find the following facts.
The Applicant commenced work at the ATO in 1996, as a permanent full-time employee.[52]
[52] T-documents, 85.
Prior to her injury, the Applicant was employed as an Assurance Officer at an APS6 level. On a claim for worker’s compensation form, an ATO supervisor recorded her normal weekly earnings as $1,168.37 per week.[53] The majority of her duties were computer-based.
[53] T-documents, 11 (2016/7036)
At the time of her injury and for the previous two months before the injury, the Applicant had been involved in interstate and state-based travel in the course of her employment. She would take her work laptop when travelling and a trolley suitcase. This travel involved a lot of lifting, carrying, stowing, unstowing, and handling her laptop and luggage into and out of taxis.
The Applicant maintained that she was earning approximately $1,900 gross per week. However, I found this evidence imprecise and confusing bearing in mind the Respondent’s submission to the effect that the Applicant’s salary at the time of her injury was $1,168.37 which appeared to be an APS6 level salary and not the salary she was earning at the time of injury. I note the following evidence regarding the Applicant’s salary:
(a) On the Applicant’s original claim for worker’s compensation, referred to by the Respondent, the Applicant’s weekly salary is recorded as $1168.37 gross at the APS6 level while working as an Assurance Officer.[54]
(b) In the Applicant’s statement dated 1 April 2019, she claims she earned $1600 as a base level APS6 salary, and when working as an EL1 at the time of her injury, she earned “around $1900 gross”.[55]
(c) The Applicant’s Normal Weekly Earnings (NWE) in the reviewable decision have been calculated as $1713.74, which appears to be consistent with the salary the Applicant was earning at the date her employment with the ATO ceased, also at the APS6 level.[56]
(d) The Applicant recorded in her statement dated 1 April 2019, that at the time she was earning $696.00 per week at Rosary Gardens. It is unclear whether the Applicant was working 29 hours or less at the time.
(e)In view of my final orders, the precise amounts will have to be determined by agreement or remittal on this narrow point.
[54] T-documents, 15 (2016/7036).
[55] Supplementary T-documents, 103.
[56] T-documents, 84.
The injury
On or about 1 February 2004, the Applicant, while at work, experienced sharp pain radiating through her right arm that left her unable to work. She underwent surgery on 4 February 2004 and on 30 March 2004, made a claim for compensation for ‘pain and parasthesion ? secondary to disc lesion at C6/7’ affecting her ‘neck, (R) shoulder, arm + hand.’
On 30 April 2004, liability was accepted by the Respondent for ‘intervertebral disc disorder – cervical region’. The date of injury was determined to be 1 February 2004 being the date on which the Applicant first sought medical treatment.
Rehabilitation and return to work
Following her injury, the Applicant made several attempts to return to work including in March 2004, and again in April/May 2004. It was expected that she would perform the responsibilities she had in her pre-injury team leader role to the extent that she could.
On 11 October 2004 the Applicant had a C5/6 radiofrequency facet joint denervation and, on 23 November 2004, the Applicant underwent a C6/C7 anterior cervical fusion. On 27 November 2004 the scans revealed a need for further surgery in the form of a cervical fusion with peek cage. The Applicant had continued to be managed with physiotherapy, medication and massage.
In the years following the injury, the Applicant was still in her full-time role but performing part-time hours. During this period, the Applicant was required to do predominantly computer-based activity. She was relieved from her managerial role given she could not perform full-time hours and commenced in a Client Account Services Role. The Applicant could not manage time sensitive projects or heavy workloads, this was exacerbated by her need for frequent small breaks to manage her pain. As a result of her limited capacity, she found the tasks she was given to be menial and inconsequential.
The Applicant suffered both emotional and physical consequences as a result of her injury. She found it difficult to cope with her workload and this caused her to feel anxious in the workplace. She was concerned about her capacity to contribute effectively.
In 2005, the Applicant’s hours gradually increased. By August 2005, the Applicant was working three full days on Monday, Wednesday and Friday.
In March 2006, the Applicant was requested to trial an increase in her hours to four days per week, including working from home on Thursdays. The Applicant continued to suffer from the same severe symptomology in her neck, shoulder, right arm, hand and fingers.
In 2009, the Applicant underwent further surgery:
(a)On 22 January 2009 the Applicant had an epidural at the L4/5 level, followed by an L4/5 facet and nerve root block on 26 February 2009.
(b)In July 2009, the Applicant was referred to Mr Stan Siejka, neurologist. He conducted nerve conduction testing and told her that her cervical nerve was permanently damaged and advised that she needed more extensive cervical surgery at C5/C6 and C6/C7 with metal fixation.
(c)On 13 November 2009, Dr Erasmus, neurosurgeon, performed a right side C5/6 anterior cervical discectomy and fusion.[57]
[57] T-documents, 85 (2016/7036).
After the surgery in 2009, the Applicant remained totally incapacitated until she returned to her reduced hours regime on 20 April 2010.
APS 6 Team Leader “Return to Work Plan”
When the Applicant returned to work in 2010 following surgery throughout 2009, the APS6 team leader role previously held by the Applicant had been varied. It was no longer feasible for a part-time leader to offer the requisite supervision and management expected by the role. The Applicant was working three days a week at this time.
The Applicant was examined in 2011 on behalf of the ATO by consultant neurosurgeon, Dr Bonkowski[58] and occupational physician Dr Hwang[59] who made recommendations to gradually increase the Applicant’s hours. The Applicant was also examined by Dr Derek Stanley Clarke, orthopaedic surgeon, who considered that there was not any reason why the Applicant could not increase the level of duties and she could be encouraged to do so on a gradual basis.[60]
[58] T-documents, 92-100; 104-6.
[59] T-documents, 111-17 (2016/7036).
[60] T-documents, 129-39.
The Applicant was able to work up to 29 hours per week but then she had to reduce her hours to 22 hours per week from December 2012 after a number of attempts.
The Applicant’s then supervisor, Ms Michelle Wilson, provided a report dated 30 March 2012.[61] Ms Wilson relevantly noted that the Applicant was working three days a week on a graduated return to work program. She also noted there was an expectation that the Applicant would take on more of a team leader role with administrative work: however, due to the Applicant’s limited capacity, she was struggling to meet the expectations of the role in a timely manner. Ms Wilson included that she did not believe the Applicant was working to her full potential at the APS6 level.
[61] T-documents, 15.
On 9 May 2012, Dr McCarthy noted that the Applicant was generally able to work up to a maximum of 80% of her normal work capacity ie. a maximum of 22 hours a week spread over three working days with flexibility depending on her pain levels.
Further occupational specialist opinion was then obtained from the following doctors concerning the Applicant’s capacity to undertake duties with particular reference to the hours that the Applicant may be able to sustain: Dr Sharman;[62] Dr James;[63] and Dr Trifiletti.[64]
[62] T-documents 46-48.
[63] T-documents 49-55, 56-58, 156-58.
[64] T-documents 163-178 (2016/7036).
Based on the medical evidence before the Tribunal, I accept the Applicant’s capacity for work is limited to three full days per week of seven hours 21 minutes per day with flexibility to achieve a total weekly hours to 22 hours and three minutes per week.
Given the Applicant could not return to full-time work, she accepted an alternative role. Not all the duties the Applicant could undertake in this role were equivalent to an APS6 level. It was conceded by the ATO that it was difficult and sometimes not possible to find work for the Applicant to perform that was equivalent to an APS6 level.
There were ongoing attempts to increase the Applicant’s hours from three to four days per week through a gradual increase trial. The Applicant was not able to sustain any increase in her hours.[65]
[65] T-documents, T11-T14.
In 2013, the Applicant was offered the National QA role at the APS6 level but for a duration of three months. The role would have required the Applicant to report to a manager based remotely.[66]
[66] T-documents, 63-5.
On 6 May 2012, the Applicant commented by email on the National QA role offer: [67]
“I thought it was part of the GRTIN process to ensure that I was provided with an ongoing suitable role. Given that this role is a trial only and there is no finite position on whether it can be sustained at this point is it wise to close and then possibly have to go through all the history again with someone new when stress is a part of my current situation, this does concern me. I still am trying to ascertain the full details of the position and how we arrange training and support from my manager who will be in Newcastle”.
[67] T-documents, 63-4.
The Applicant confirmed with Ms Crawford on 27 May 2013 that despite having been given opportunity to adequately discuss possible alternatives, she did not “have any alternative but to consider voluntary redunduancy as it has been years since [she] had a role at level or any meaningful duties”.[68]
[68] T-documents, 68.
I find that there was no guarantee of any employment with the ATO after the proposed three month trial period in the National QA role.
The Applicant did not accept the National QA role. On 31 May 2013, a Delegate of the ATO wrote to the Applicant stating that she could no longer be gainfully employed at the ATO, citing the following:[69]
“In November 2012 you commenced in an APS6 administration role, supporting
the broader team with reporting and analysis with limited success. The reporting role moved to being completed nationally and therefore there was minimal input required of you and your duties were below the APS6 level,
The expectations of an APS6 team leader encompass constant and ongoing changes. You were unable to demonstrate the required capabilities despite the extensive support provided to assist,
CAS created a position of a temporary APS6 and provided you with tasks at a lower APS level. A senior leader provided you with support and mentoring to assist you with your performance.
As new tasks and responsibilities were introduced you indicated you were unable to complete these tasks and you indicated this caused you stress at your inability to adapt. This had an impact on your confidence”.
[69] T-documents, 71.

The Applicant accepted an offer of voluntary redundancy on 28 June 2013.[70]
[70] T-documents, 74-5.
In summary, I find that the Applicant had become redundant and surplus to the requirements of the ATO, which was unable to offer her any meaningful employment.
I find that it was entirely appropriate and reasonable for the Applicant to accept a voluntary redundancy for both her mental wellbeing and financial security. I find that the Applicant had been given the option to accept voluntary redundancy or, at best, continue in unsuitable employment with the reasonable risk of a non-voluntary redundancy in the future.
Employment post-redundancy
The Applicant obtained part-time work with Oak Tree from 2014 to November 2014 and then with Rosary Gardens from February 2015 to present. Both of these positions were Administration Assistant roles.
The Applicant could only perform part-time roles, and her work at Oak Tree ceased when additional duties interstate made the role inappropriate. The Applicant obtained a promotion in 2017 and increased her hours to 29 hours per week over five days. She has not been able to sustain these levels without having time off to compensate or recuperate.
LEGISLATION
The Act governs the provision of compensation for work-related injury to employees by the Respondent. The Respondent 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.[71]
[71] Safety, Rehabilitation and Compensation Act 1988 s 14(1).
Section 4(1) of the Act defines suitable 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 was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee’s age, experience, training, language and other skills;
(ii) the employee’s suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case—any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
Section 19 of the Act sets out the calculation of an employee’s entitlement to compensation where the employee is incapacitated for work as a result of an injury. Subsection 19(2) contains the following formula:
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings
Subsection 19(3) applies where an employee’s normal weekly earnings have been altered because an employee is working less than her or his normal weekly hours:
(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
(Adjustment percentage x NWE) - AE
where:
adjustment percentage is a percentage equal to:
(a) if the employee is not employed during that week—75%; or
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week—80%; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—85%; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—90%; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—95%; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week—100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
(3A) If, as a result of the incapacity:
(a) the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b) a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
Subsection 19(4) sets out the matters to which the Respondent must have regard to when determining the amount an employee is able to earn in suitable employment:
(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.
[Emphasis added].
CASE LAW
The case law discussed below makes it clear that each matter will be determined on its own particular facts.
The Applicant referred the Tribunal to the following case law:
(a)In West and Comcare,[72] an applicant took a voluntary redundancy package after he was assigned office duties when his air traffic controller licence was not renewed. The Tribunal decided that after the non-renewal of the Applicant’s licence, the work he undertook prior to his voluntary redundancy was not suitable employment. The Tribunal stated:
[72] [1994] AATA 33.
“Had he not elected to retire, it is possible that he may have been given suitable employment which included further challenging tasks, but there is no evidence to that effect. While we do not accept that Mr West was forced to retire, we do accept that he and his managers at the CAA understood that he would be retiring when the voluntary retirement package came in. We are satisfied that is why he was provided with a holding position at a salary far in excess of that which would normally be paid for the performance of those duties. It is also, no doubt, why no effort was made to see that his capacities were fully utilised”.[73]
[73] West and Comcare [1994] AATA 33, [65].
(b)In O’Shea and Comcare,[74] the Tribunal considered whether the Applicant had voluntarily retired from his employment. The Applicant was given the option of reapplying for a job in the APS but with the advice that the likelihood of redeployment was slight, or to accept a voluntary redundancy. He was advised that the acceptance of a voluntary redundancy would not impact future compensation payments. The Tribunal decided:
[74] (1993) 18 AAR 430.
“… that at the time of the termination of his employment Mr O'Shea wished to continue with his employment with the APS but that on the basis of all the advice he had received, he considered it fruitless to apply for re-appointment. Further, it was quite reasonable for Mr O'Shea to rely on the advice of Mr Chisholm that his best option, and in reality his only option, was to choose 'involuntary retirement' on 15 May 1992.
[…]
For the reasons outlined in paragraphs 24. and 25. above, the Tribunal finds that in determining for the purposes of s.19(2) or (3), the amount per week that Mr O'Shea is able to earn in suitable employment, the only paragraph applicable to the circumstances of his case is paragraph (a) of s.19(4) of the Act. The Tribunal is of the view that Mr O'Shea's choice not to remain in the Public Service was, pursuant to s.19(4)(f) of the Act, reasonable in all the circumstances considering the limited availability of positions in all relevant departments. Accordingly, the Tribunal is of the view Mr O'Shea's failure to continue to engage in employment within the Public Service and any failure to undertake or complete a rehabilitation program, should not be taken into account in determining the amount per week that he is able to earn”.[75]
[75] O’Shea and Comcare (1993) 18 AAR 430, [25], [85].
(c)In Huckel and Comcare,[76] the Applicant returned to work in his role as a police Sergeant following a work injury, but was only able to perform desk duties. The Tribunal decided at [19]:
[76] (1995) AATA 260.
“In this matter the Tribunal accepts the majority medical opinion that the applicant is incapable of seeking significant employment. It also finds that in light of the terms of the redundancy offer which was made to the applicant and the fact that he was not performing the full duties of a sergeant at the time he ceased his employment, it was reasonable for him to fail to continue with his employment. The Tribunal is unable to find any other relevant circumstances for the purposes of section 19(4) of the Act”.
(d) In Jones and Telstra Corporation Limited,[77] the central issue was whether the Applicant had, having accepted an offer of suitable employment from the Respondent, failed to continue to engage in that employment because he accepted a voluntary redundancy. At [37] the Tribunal stated:
“The Tribunal rejects the Respondent’s submission that the Applicant’s retirement should be accepted as voluntary merely because he accepted a voluntary redundancy package. That characterisation of the situation is too simplistic and the Tribunal is required to look to the actual circumstances of the retirement notwithstanding its formal labelling as “voluntary”. Whether or not a “voluntary redundancy” was indeed voluntary has been considered in other matters before the Tribunal and is an essential element of determining the Applicant’s entitlement to compensation for incapacity”.
In Jones, the Tribunal decided:
“Even if the Applicant raised the issue of redundancy payment with Mr Abraham, the context of that discussion reflecting doubt he had any further with Telstra because he had failed to be appointed to any for the positions for which he had applied, should have alerted Mr Abraham to the necessity of exploring alternative ways of enabling the Applicant to remain in the Respondent’s employ. Mr Abraham did not do that, and the Tribunal finds that Mr Abraham acted without due care when he persisted with voluntary redundancy discussions and actions as if that was the only appropriate alternative”.[78]
(e) In Ganley and Comcare,[79] the Tribunal decided the Applicant had been given two options: either to accept a voluntary redundancy or to continue in unsuitable employment. The Tribunal decided he had therefore not failed to engage in suitable employment and s 19(4)(c) did not apply. At [105], the Tribunal stated:
“The simple fact is, as the Tribunal has found, the offer of employment in the position of Transport Inspector was not a real offer of suitable employment and the Applicant was not engaged in any other suitable employment provided by the Employer. In the case of Re Evans (supra), on which the Respondent relied, the Tribunal found reasonable the Applicant's acceptance of voluntary redundancy in the face of very limited options, which did not include an offer of permanent employment. On this point, the Tribunal agrees Re Evans (supra) may be distinguished from the case at hand, however, in the present case, the offer of permanent employment was not a real offer of suitable employment that the Applicant could reasonably be expected to accept. The Tribunal accepts the Applicant's submission that his options had narrowed to the point where he was forced to choose between, on the one hand, accepting unsuitable employment away from his wife and family, in the knowledge that this may be to his physical and psychological detriment, and, on the other hand, accepting voluntary redundancy, in the knowledge that this may have an adverse effect upon his entitlement to compensation in circumstances where the value of his labour and his ability to find on-going suitable employment were reduced as a result of his compensable condition”.[80]
[77] [1999] AATA 679.
[78] [1999] AATA 679, [38].
[79] [2003] AATA 14 (Ganley).
[80] [2003] AATA 14, [105].
The Respondent referred the Tribunal to the following case law:
(a) In Re Woolf and Comcare,[81] the Applicant sustained an injury to his back. After the injury he returned to work but could not maintain his hours, so he continually reduced them. His contract was not renewed and he did not apply for a permanent role. The Applicant sought new employment over a 15-month period of unemployment and attended 10-20 interviews. His new employment, working at a hospital, was not commensurate to his qualifications and he had never undertaken the clerical duties it entailed. The Applicant submitted that this could not be considered “suitable employment” and his capacity for suitable employment should not be assessed by reference to this type of work. The Tribunal found the work he undertook at the hospital was suitable:
[81] [1995] AATA 230.
“His work at St. George Hospital uses his professional expertise in understanding computers. This is not merely clerical work, which we find is not consistent with the Applicant's professional qualifications and experience and does not meet the requirements of section 4 of the Act. The restricted duties provided by the Respondent during the Rehabilitation programme before the Applicant's contract expired was only partly within the meaning of section 4. His writing of the software program was consistent with his professional expertise but that part of his duties which related to providing a photocopying service was not”.[82]
[82] WOOLF AND COMCARE [1995] AATA 230, 10.
(b)In Goodricke and Comcare,[83] Flick J considered the meaning of suitable employment. At [32]-[33] His Honour stated:
[83] [2011] FCA 694 (Goodricke).
“The phrase employed by the legislature is “suitable employment” rather than, for example, “any employment”. And in determining what is “suitable employment” the legislation directs attention to specified criteria. Those criteria, including the reference to “’the employee’s age, experience, training, language and other skills”, direct attention to identifying that employment which an employee is able to perform and for which he is qualified. It would be an off contruction of the phrase “suitable employment” if an injured employee could shun employment which he was otherwise able and qualified to undertake so that he could henceforth engage in only that work which he unilaterally consider provided personal security, satisfaction or gratification. An injured employee may so choose; but s 19 will continue to operate in the manner intended by the legislature.
And, in any event, the conclusion of the tribunal as to what was or was not “suitable employment” was a finding of fact which was open to the tribunal to make. No error of law is exposed in making that finding of fact”.
(c) The Respondent referred the Tribunal to the decision in Cobern and Comcare.[84] The Applicant in this matter suffered from a psychiactric condition that constituted an injury and retired from a position at the ATO to avoid further deterioration in his condition. The Tribunal considered the effect of the Applicant’s voluntary retirement and decided:
“… at the time of his retirement, the Applicant was neither incapacitated from engaging in any work at all, nor incapacitated from engaging in work at ASO5 level. He was approaching the point where he would become so incapacitated. It was reasonable, even wise, for him to retire early before his psychiatric condition deteriorated to such an extent that he reached that point. But he was still fit to work at ASO5 level when he retired”.[85]
(d) In Apostolidis and Comcare,[86] the Applicant suffered an injury in 1989 and a claim for compensation was accepted. The Applicant was made an offer of temporary employment, but failed to accept that offer. Despite the Applicant participating in vocational retraining, the Tribunal found that she failed to make genuine attempts to seek suitable employment, and therefore that s 19(4)(e) of the Act should be considered in calculating the Applicant’s entitlement to compensation.[87]
(e) In Alan Esam and ASP Ship Management,[88] the Applicant sought review of a decision that reduced the amount of compensation he was entitled to on the ground that he had not sought suitable employment. The decision was made under the Seafarers Rehabilitation and Compensation Act 1992 which contained similar provisions to those found in the Act. The Tribunal found that the Applicant was able to undertake clerical work and would have been awarded an award rate of $437 gross per week. The fact that he was not employed in this type of employment was due to economic circumstances and not any work caused incapacity. The Tribunal decided that the Applicant’s compensation was to be calculated by adding the Applicant’s income in his current employment as a waiter to the amount he could earn in suitable employment.
[84] [1998] AATA 221.
[85] Cobern and Comcare [1998] AATA 221, [18].
[86] [1995] AATA 284.
[87] Apostolidis and Comcare [1995] AATA 284, [39].
[88] [1998] AATA 44.
ISSUES
The principle issue in this application is:
(a)the amount per week, if any, that the Applicant is able to earn in suitable employment;
(b)in deciding that issue, I agree with the Respondent that I must consider s 19(4) of the Act to decide:
(i)whether by accepting an offer of voluntary redundancy, the Applicant failed to continue to engage in suitable employment; and
(ii)if I find the Applicant could engage in suitable employment, what amount per week she would be earning in that employment if she were engaged in that employment; and
(iii)the number of hours per week the Applicant is able to work.
Whether by accepting an offer of voluntary redundancy, the Applicant failed to continue to engage in suitable employment

I make the following findings in relation to the relevant sub-sections contained within s 19(4) of the Act:
(a)I am not satisfied that the Applicant was offered suitable employment at the ATO after her injury and I refer to my findings at [81]-[88] above.
(b)I find that the offer of temporary employment received by the Applicant following her injury did not constitute suitable employment for the reasons specified at [79]-[83] above, therefore I do not consider s 19(4)(c) to be a relevant consideration.
(c)I find that the Applicant did not fail to seek suitable employment after becoming incapacitated. She acceeded to every reasonable request made by the ATO to attempt alternative employment within the organisation and assiduously sought appropriate employment after accepting her redundancy.
(d)Even if my consideration of either of the above matters is incorrect, I find that the Applicant’s failure to continue to engage in her employment with the ATO is reasonable in all the circumstances. With respect to my findings as to reasonableness I have taken into account the comments by Flick J in Goodricke referred to at [96(b)].[89]
[89] [2011] FCA 694.
I find that the Applicant had effectively only been given two options, either accept a voluntary redundancy or to continue in unsuitable employment. I therefore find that she had not failed to engage in suitable employment. Her position was similar to that as discussed in Ganley rather than the circumstances being considered in Goodricke. The Applicant’s AE should be assessed by reference to her actual earnings.
The hours per week the Applicant is able to work
The Delegate found the Applicant is capable of working 22 hours and three minutes per week or, in other words, three days per week. Despite evidence of the Applicant working for up to 29 hours per week in her post-ATO employment, I find that she has worked more hours than appropriate for her medical restrictions due to financial pressures but was only able to so do by taking appropriate respite. I agree with the Delegate’s assessment with respect to the number of hours the Applicant is able to work.
Accordingly I am satisfied on the evidence referred to above that the Applicant is capable of working 22 hours and 3 minutes per week.
DECISION
Accordingly I set aside the reviewable decision and remit the matter back to the Respondent for determination on the basis that the Applicant’s AE is calculated on the actual earnings of the Applicant from 1 July 2013 until 3 April 2019.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President.

............[sgd].....................................
Associate
Dated: 14 April 2022

Date of hearing: 13, 14, 15 and 21 July 2020

Counsel for the Applicant:

Solicitors for the Applicant:

Mr William Ayliffe SC

Blissenden Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

Mr John Wallace

Australian Government Solicitor