Ian Edwards and Comcare
[2014] AATA 963
•24 December 2014
[2014] AATA 963
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3146
Re
Ian Edwards
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 24 December 2014 Place Brisbane The decision under review is set aside and substituted with the decision that applicant was able to earn nil amount in suitable employment for the purposes of s 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in the period
30 November 2000 to 26 April 2006.
............................[Sgd]............................................Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Applicant’s entitlement to compensation for incapacity – Applicant’s employment terminated on grounds of incapacity – Deductions made from applicant’s incapacity payment – Applicant unable to earn anything from suitable employment – Decision under review set aside and substituted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 19
Australian Federal Police Act 1979 (Cth)
Public Service Act 1999 (Cth)
REASONS FOR DECISION
Senior Member Bernard J McCabe
24 December 2014
This case arises out of a dispute over the applicant’s entitlement to compensation for incapacity under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
(the Act) between 2000, when the applicant left his job with the Australian Federal Police (the AFP), and 2006, when he commenced part-time work as a self-employed photographer. Comcare says the applicant, Mr Ian Edwards, was capable of working at least nine hours per week during the period notwithstanding his accepted injuries. It says the amount he notionally earned each week was correctly deducted from the incapacity payments he received.
Mr Edwards, for his part, agrees he could have worked at least nine hours per week during the relevant period if he had been offered suitable work – but he says that work was not available and was never offered. He says in those circumstances, notional amounts should not have been deduced from his incapacity payments.
WHAT HAPPENED?
Mr Edwards joined the AFP in 1985 and was seriously injured in a motorcycle accident in November 1986. He commenced a return-to-work program in 1987. He was given suitable duties that took into account his many injuries that were accepted as a consequence of the work-related injury. He initially undertook office work but was approached about becoming a forensic photographer (Mr Edwards had been a commercial photographer before he joined the AFP). He did well at the work: he was transferred to Brisbane in around 1991 where he established a new
Forensic Photographic Unit before he became an investigator working on fraud cases. He said in his evidence he thought there were limited opportunities for promotion in Brisbane at the time so he returned to uniformed community policing work in Canberra in 1994. It appears he was successful in that role (he received a bravery award in 1995, I was told) but he was injured again in the course of a demonstration in 1997. He said he shattered bones in his hand and wrist when he blocked a punch thrown by a demonstrator. He also seriously injured his shoulder when tackling an offender. He was off work for some time while he underwent surgery and recuperated.The applicant said he was offered a pension in 1998 when he was discussing his return to work. He said he did not want a pension: he wanted to work. This was a consistent theme in the evidence: it was clear from Mr Edwards’s evidence and from the evidence of his doctor that he was a stoic individual who tended to minimise his pain and continue working notwithstanding serious incapacity.
Mr Edwards said he transferred back to Brisbane after he returned to work in 1998 but ran up against an unsympathetic line manager. Mr Edwards recalled being told he was unwanted, but he was not deterred. He went into intelligence work, which required him to obtain further qualifications. In 1999, he was transferred to regional security. By that time, he was working on a full-time basis, albeit on modified duties.
The applicant explained in his evidence that he wanted to continue working but his line managers had made it clear further progress was unlikely. Mr Edwards stressed he was not criticising the AFP as a whole: he acknowledged the AFP had been supportive and accommodating since his earlier injuries. But things were changing, he said, and he started to look for other options. He said he was concerned about leaving the employ of the Commonwealth because he did not want to jeopardise his entitlements.
A welfare officer told Mr Edwards of an opportunity advertised at the
Australian Tax Office (ATO). The ATO was looking for fraud investigators in anticipation of the imminent introduction of the GST (goods and services tax).
Mr Edwards recalled discussing the opportunity with Dr Eaton, a consultant rehabilitation specialist, who was involved in the management of his case. Dr Eaton was called to give evidence by telephone at the hearing. He did not have comprehensive notes – he said the file notes were destroyed – but he had a good recollection of the discussions that took place at the time. Dr Eaton confirmed Mr Edwards’s evidence that he was offered the investigator’s role on an ongoing basis and that the ATO was happy to provide appropriate support and allowance for his accepted conditions. Dr Eaton also recalled being told the usual requirement of a medical clearance was to be waived.Mr Edwards pointed out in his evidence that he never would have resigned from the AFP and taken up the ATO role without receiving an assurance about the medical clearance. He said he would not have risked his entitlements in that way. Unfortunately, he did not obtain the assurance in writing; there is certainly no record of such an assurance now. I accept Mr Edwards’s claim that he believed the requirement of a medical clearance had been waived.
Mr Edwards resigned from the AFP on Friday, 2 June 2000. He started in his new role at the ATO on the following Monday, 5 June 2000 (exhibit 2 at page 181).
There was initially some uncertainty at the hearing about the role at the ATO. The formal Notice of Engagement document refers to the applicant being engaged for a fixed term of three months (exhibit 2 at page 181). Mr Edwards said he was assured by the officers with whom he negotiated over the role that it was an ongoing, full-time role notwithstanding what was said on the form. He produced pay certificates generated by the ATO (exhibit 4) which referred to an ongoing full-time role; he was also still working at the ATO after the date on the Notice of Engagement. He said the three month period in the Notice of Engagement should be understood as a three month probation period that he successfully fulfilled. I accept his explanation that he was engaged in a full-time role and that he was an ongoing employee; that evidence is consistent with the payslips he provided.
Mr Edwards did well in his new role. He said he was promoted quickly. He also demonstrated further evidence of personal courage when he rescued a drowning man from a river during the course of a raid in October 2000. The feat was recorded in a letter of commendation from the AFP that was provided to the ATO (exhibit 3). Yet within days of that incident there was a cloud over his career. He said he was instructed to report for a workplace assessment. It seemed he was to undergo a medical examination despite the fact the need for medical clearance had been effectively waived.
The story becomes murky at this point. Mr Edwards was informed in a letter dated
5 November 2000 that he was not considered physically capable of doing the job he had been successfully doing for months (see exhibit 2 at p 182). Mr Edwards says it is not clear why, as he had been successfully doing the job. But he was suspended and, in due course, his employment with the ATO was terminated on grounds of incapacity.
Mr Edwards says the decision was not justified: he remained capable of undertaking
full-time work with proper support, which he had been receiving.It is unclear what went wrong at the ATO. With the benefit of hindsight, the applicant should have challenged his termination. But he did not. He went back to his doctors – Drs Eaton and Pollock, in particular – who issued several medical certificates. The first certificate, issued by Dr Eaton, covered a three month period and said Mr Edwards was capable of working at least three days per week for three hours each day on modified duties with appropriate support (exhibit 1 at p 74). Dr Pollock issued further medical certificates. Mr Edwards said he spoke with various Commonwealth agencies about returning to work but he was unable to find work. He said he did not try private sector businesses as they were unlikely to employ a person with his record of injuries. He did not work again until he commenced a photography business in 2006. He said it was not really a business at all: he made a token amount of money from his photography business that was taken into account in the calculation of his entitlements.
Comcare said Mr Edwards was being provided with suitable employment within the meaning of s 4 of the Act (as it was prior to amendments in 2007) when he decided voluntarily to leave the AFP. It says it is entitled to take account of the money he would have been paid in that role when calculating his entitlements under s 19 of the Act during the period that followed his departure from paying work. It has made one concession, however: it has not assumed Mr Edwards would have continued working on a full-time basis, even though that is what he was doing before he left the AFP (and what he was doing up until the ATO, for reasons that are unclear, decided he was not capable of working in the role he had recently been given). Comcare has determined instead
Mr Edwards would only have been in paid employment for nine hours a week during the period, as Drs Eaton and Pollock have certified.THE LEGISLATION
Section 19 of the Act sets out the way in which compensation for incapacity is to be calculated. Section 19(2) of the Act provides for a formula. One of the variables in the formula is actual earnings, which is the amount the employee earned from employment or was “able to earn in suitable employment”. The expression suitable employment was defined prior to the 2007 amendments in s 4 of the Act as follows:
(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).
Mr Edwards says he remained a permanent employee of the Commonwealth after he parted company with the AFP and joined the ATO. He points out both are Commonwealth instrumentalities, and he finished work with the AFP on a Friday before commencing work with the ATO on the following Monday: he did not even take a day off between engagements. But Comcare points out s 4(a) of the Act refers to terminating that employment – which can only be a reference to resignation from his employment with the AFP. Comcare adds Mr Edwards’s employment with the AFP was under the Australian Federal Police Act 1979 (Cth) while his new employment with the ATO was under the Public Service Act 1999 (Cth).
Section 19(4) of the Act goes on to provide, relevantly:
(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:…
(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;
(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.
Comcare says Mr Edwards had an offer of suitable employment after he was incapacitated when he was still with the AFP: the AFP had accommodated him for nearly 14 years following his motorcycle accident, and there was no suggestion that was about to change when he voluntarily resigned. Comcare says Mr Edwards “failed… to continue to engage… in that employment” within the meaning of s 19(4)(c) of the Act. In those circumstances, I was told, the amount he was earning at the AFP should (subject to
s 19(4)(e) of the Act) be taken into account in the calculation of what he was able to earn in suitable employment (albeit that Comcare adds it accepts for the purposes of this exercise that Mr Edwards was only able to work nine hours per week).
Comcare also pointed out Mr Edwards failed to seek suitable employment because he did not seek out alternative roles in the private sector that might have been appropriate having regard to the matters referred to in s 4(a)(i)-(iii) of the Act. Mr Edwards pointed out he sought an appropriate role at the ATO, and then, after he was inexplicably terminated, persisted in asking for work in the public sector. He said there was no point looking for work in the private sector because no private employer was likely to employ him given his health conditions and requirements.
The question is whether Mr Edwards’s departure from his role at the AFP in 2000, and his subsequent failure to seek a role in the private sector before 2006, was reasonable in all the circumstances: s 19(4)(f) of the Act.
Mr Edwards’s decision to leave the AFP was reasonable. I accept his evidence that he was led to believe he would have a permanent role at the ATO and that his needs would be met by his new employer – and that there would be a seamless handover of his file from the AFP to the ATO. I accept his evidence that he was told (and that he honestly believed) the requirement of a health clearance was effectively waived so that his health conditions would not be an obstacle to keeping his job at the ATO. It may be that the assurance in this regard should never have been offered; it would certainly have been better if Mr Edwards had contested the decision to terminate him when it was made.
The more difficult issue is whether Mr Edwards’s failure to seek suitable employment was reasonable. I accept his evidence to the effect that he did seek employment in the public sector. But he agrees he did not make any attempt to seek employment in the private sector because he thought it would be futile to do so. He also agreed he did not make any attempt to start his own business before 2006, but even then he said the photography business he commenced was a business in name only: he said he started it in order to save face with his children who asked him what he did for a living, and because he was embarrassed to admit he was no longer working. He said he earned little from the business and effectively ran it at a loss.
While there is no direct evidence on this point (apart from Mr Edwards’s own testimony), I accept it is likely Mr Edwards would have experienced real difficulty securing suitable employment outside the public sector. While it was not impossible he might have found an employer willing to take a risk, I accept it was reasonable in light of his injuries not to seek out opportunities in the private sector. I also accept it was reasonable for him not to attempt to commence a small business during that period: the institutional support he was likely to require would not have been available in a small business environment.
I accept the medical evidence establishes Mr Edwards was capable of working at least nine hours per week in an appropriate role with appropriate support during the period in question. That is not a large commitment, and Mr Edwards is a capable, highly-trained and motivated individual. But after his inexplicable termination by the ATO, he was not provided with any realistic opportunity to actually work for nine hours each week in the period in question. I accept his decision not to pursue other roles outside the public sector was reasonable. In the circumstances, I am satisfied he was not able to earn anything from suitable employment for the purposes of the calculation required by s 19(2) of the Act.
CONCLUSION
The decision under review is set aside. I decide in substitution that the applicant was able to earn nil amount in suitable employment for the purposes of s 19(2) of the Act in the period 30 November 2000 to 26 April 2006.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
.......................[Sgd].................................................
Associate
Dated 24 December 2014
Date of hearing 15 December 2014 Applicant In person Counsel for the Respondent Andrew Dillon Solicitors for the Respondent Matylda Gostylla, Australian Government Solicitor
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