Iselin and Comcare (Compensation) - [2022] AATA 3178

Iselin and Comcare (Compensation) [2022] AATA 3178 (29 September 2022)
Division:GENERAL DIVISION
File Numbers: 2020/3407 and 2020/3544
Re:Karen Iselin
APPLICANT

AndComcare
RESPONDENT

DecisionS
Tribunal:Senior Member B Cullen
Date:29 September 2022
Place:Brisbane

The Decision dated 11 May 2020 under review in AAT Application No. 2020/3407, in which the Determination dated 26 February 2020 was affirmed, is:
·varied to state that the Applicant is entitled to compensation for partial incapacity during the period commencing 9 April 2019 through to the week commencing
28 May 2019 and ending 3 June 2019; and
·remitted to the Respondent to quantify the Applicant’s entitlements to weekly payments in the period from 9 April 2019 to 3 June 2019, under the formula in s.19(3) of the SRC Act and in accordance with these reasons for decision.

The Decision dated 11 May 2020 under review in AAT Application No. 2020/3544, in which the Determination dated 14 April 2020 was affirmed, is affirmed.
................................[SGD]........................................
Senior Member B Cullen
Catchwords
COMPENSATION — entitlement to compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) — meaning of full time employment where the applicant engaged in work on a transient basis — calculation of net weekly earnings
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Lonergan v Comcare (2005) 143 FCR 307
Renouf and Comcare (Compensation) [2019] AATA 1055
Waldron and Comcare (Compensation) [2019] AATA 5455
REASONS FOR DECISION
Senior Member B Cullen
29 September 2022
Overview

Mrs Karen Iselin (‘the Applicant’) was employed as a permanent part-time interviewer with the Australian    Bureau of Statistics (‘ABS’).[1] During the course of her work, the Applicant suffered two injuries that have been accepted by Comcare, the Respondent:
·13 January 2015 - the Applicant sustained the “shoulder injury” - adhesive capsulitis of the right shoulder; and
·22 June 2016 – the Applicant was deemed to have sustained the “psychiatric injury” - a mild adjustment disorder secondary to the shoulder injury.[2]
[1]     Exhibit 1, Tribunal Book (‘Tribunal Book’), R9, ‘Respondent’s Amended Statement of Fact, Issues and Contentions’ (‘SFIC’) dated 21 January 2022, page 2, at [5] and A4 ‘Applicant’s SFIC in reply’ dated 7 February 2022, page 1, at [1]-[2].
[2]     Tribunal Book, R9, ‘Respondent’s Amended SFIC dated 21 January 2022’, page 2, at [7] – [8], Exhibit 3, ‘Respondent’s Further Amended Addendum SFIC dated 4 March 2022’, page 3, at [13.1].
The Applicant seeks review of two decisions by the Respondent which determined that she was not entitled to compensation for incapacity to work under s.19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’). The Applicant’s “First Claim” was made on 23 July 2019 (‘AAT Application No. 2020/3407’); and the “Second Claim” was made on 11 March 2020 (‘AAT Application No. 2020/3544’).
Although it seems straightforward to the Tribunal that the dates of injury listed by the Respondent in its submissions are correct in the context of the review now before the Tribunal, the Applicant has taken issue with same. In her Response to the Applicant’s Amended Statement of Facts, Issues, and Contentions ‘(SFIC’), the Applicant asserts that the “Respondent has plainly erred,” as her first injury accepted by the Respondent was sustained on 13 March 2013.[3]
[3] Tribunal Book, A4 ‘Applicant’s Response to the Applicant’s Amended SFIC’ dated 7 February 2022, page 1, at [1].
Although the information before the Tribunal indicates that the Applicant did sustain an accepted injury following a car accident in March 2013, that injury is not the subject of the reviews now before the Tribunal. It is obvious that the Respondent’s assertions of fact are correct when viewed in the context of the matters relevant to this review.
On application for review by the Tribunal, the relevant periods were:
·9 April 2019 to 9 October 2019 (First Claim) and
·10 October 2019 to 25 September 2020 (Second Claim).
However, during the course of the proceedings, the Respondent amended its SFIC making concessions in the Applicant’s favour. The Respondent accepted that the Applicant was partially incapacitated to work as a result of the shoulder injury in the week commencing 9 April 2019 through to the week commencing 28 May 2019 and ending 3 June 2019.[4]
[4] Respondent’s Further Amended Addendum to the Respondent’s SFIC dated 4 March 2022, at [2] – [3]; Transcript of 7 March 2022, page7, lines 33-38.
The Respondent amended its contentions to assert that the Applicant had no incapacity to work between 4 June 2019 and 25 September 2020.[5]
[5] Ibid.
The Tribunal accepts that the Applicant was partially incapacitated from 9 April 2019 through to the week commencing 28 May 2019 and ending 3 June 2019, as a consequence of her Shoulder Injury. The Tribunal’s finding is supported by the expert evidence of Dr Ki Douglas, Consultant Occupational Physician.[6]
[6] Tribunal Book, R1, T32 ‘Report of Dr Douglas, Consultant Occupational Physician’ dated 21 November 2019, page 531.
Consequently, the periods that remain in contention are now:
·4 June 2019 to 9 October 2019 (First Claim) and
·10 October 2019 to 25 September 2020 (Second Claim).
Issues before the Tribunal
The Tribunal must determine whether the Applicant is entitled to compensation arising from an incapacity to work under s 19 of the SRC Act during the period from 4 June 2019 to

25 September 2020.
In making this determination, the Tribunal must determine:
·Whether the applicant was incapacitated for her usual part time work during the period from 4 June 2019 to 25 September 2020, and if so, to what extent; and
·Did any incapacity arise out of a compensable condition(s); and if so, for each week during the period of incapacitation, what amount of compensation is the applicant is entitled to receive?
The Applicant’s circumstances
The Applicant ceased her work with the ABS in October of 2018. On 8 April 2019, following the resolution of proceedings in the Fair Work Commission by way of settlement, the Applicant resigned.[7]
[7] Ibid, T20.4 ‘Applicant’s Notice of Resignation from ABS’ dated 8 April 2019 and T25.2 ‘Terms of Settlement’ dated 8 July 2019.
The Applicant has submitted two claims for incapacity since resigning:
·First Claim
– the Applicant’s First Claim, dated 23 July 2019, was backdated to

9 April 2019, and covered the period until 9 October 2019.[8] In support of the First Claim, the Applicant’s longstanding General Practitioner, Dr Caetlin Jopson, completed a medical certificate stating that the Applicant had no capability to work as the result of her adjustment disorder (the psychiatric injury).
[8]     Tribunal Book, R1, T14.1 ‘Workers’ Compensation Medical Certificate for incapacity between 9 April 2019 to 9 October 2019’.
·
The First Claim was refused by a delegate of the Respondent on

26 February 2020. With the exception of a no driving restriction, the delegate was satisfied that the Applicant was fit to work at the same level as prior to her injury. The delegate further found that even if the Applicant was unfit for work from
9 April 2019, her incapacity was not as a result of a compensable condition.[9]
·Second Claim – the Applicant’s Second Claim, dated 11 March 2020, was backdated to 10 October 2019, and covered the period until 25 September 2020.[10] In support of the Second Claim, Dr Jopson again completed a medical certificate, stating that the Applicant had no capability to work as a result of her adjustment disorder (psychiatric injury) and right adhesive capsulitis (shoulder injury).
·The Second Claim was refused by a delegate of the Respondent on 14 April 2020, as the delegate found that the Applicant did not meet the definition of incapacitated for work under s 4 of the SRC Act.[11]
[9]     Ibid, T38 ‘Determination denying liability for incapacity payments under s 19 for the period of 9 April 2019 to 9 October 2019’ dated 26 February 2020.
[10]    Tribunal Book, R1, T41.2 ‘Workers’ Compensation Medical Certificate for incapacity between 10 October 2019 to 25 September 2020’ dated 11 March 2020.
[11]    Ibid, T47 ‘Determination denying liability for incapacity payments under s 19 for the period of 10 October 2019 to 25 September 2020’ dated 14 April 2020.
On 23 April 2020, the Applicant requested reconsideration of the determinations dated the 26 February 2020 (First Claim) and 14 April 2020 (Second Claim).[12]
[12] Tribunal Book, R1, T48 ‘Request for reconsideration of determinations dated 26 February 2020 and 14 April 2020’ dated 23 April 2020.
Both determinations were affirmed by a delegate of the respondent on 11 May 2020. The delegate found that the Applicant was not incapacitated for work from 9 April 2019 to 25 September 2020. The delegate further found that if the Applicant had suffered any incapacity, it was not as a result of her compensable conditions.[13]
[13] Ibid, T52 ‘Reviewable decision affirming determinations dated 26 February 2020 and 14 April 2020’ dated 11 May 2020.
On 3 June 2020, the Applicant applied to this Tribunal for review of the determinations.
Relevant legislation
Section 4 of the SRC Act defines several relevant terms:
normal weekly hours, in relation to an employee, means the average number of hours (including hours of overtime) worked in each week by the employee in his or her employment during the relevant period as calculated for the purpose of applying the formula in subsection 8(1) or (2).
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).
The normal weekly earnings of an employee before injury are to be calculated in accordance with s 8 of the SRC Act:
8 Normal weekly earnings
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) + A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
…
(5) Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.
The “relevant period” for calculating the normal weekly earnings of an employee is then defined in s 9 of the SRC Act:
9 Relevant period
(1) For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.
(2) Subject to subsection (3), if, during the period referred to in subsection (1), the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation was varied as a result of:
(a) the operation of a law of the Commonwealth or of a State or Territory; or
(b) the making, alteration or operation of an award, order, determination or industrial agreement, or the doing of any other act or thing, under such a law;
any part of that period that occurred before the variation, or last variation, took place shall be disregarded for the purposes of calculating the relevant period.
(3) Where in any case the application of subsection (2) would require that a period be disregarded for the purposes of calculating the relevant period in relation to an employee, and as a result of disregarding that period:
(a) it would be impracticable to calculate under section 8 the normal weekly earnings of the employee before an injury; or
(b) the normal weekly earnings as so calculated would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment by the Commonwealth or a licensed corporation before the injury;
subsection (2) shall not apply in that case, but the normal weekly earnings of the employee during that period shall be taken to be the amount that would have been his or her normal weekly earnings during that period if the variation had taken effect at the beginning of that period.
(4) If, during any part of the period calculated under the preceding subsections, the employee’s earnings were reduced, or the employee did not receive any earnings, because of absence from his or her employment for any reason, that part of that period shall be disregarded for the purposes of calculating the relevant period.
Incapacity for work
Section 4(9) of the SRC Act defines “incapacity for work” to mean:
…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 she was engaged by the Commonwealth immediately before the injury happened.
Section 19 of the SRC Act provides that:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
(2A) For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a) it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b) the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s 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:
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.
The Tribunal must determine whether the Applicant continues to suffer from an incapacity for employment as a consequence of her accepted injuries, such as to give rise to an entitlement to compensation pursuant to s.19 of the SRC Act. In making this determination, the Tribunal must consider the definition for incapacity contained in s.4(9) of the SRC Act, as set out above.
In Lonergan v Comcare (2005) 143 FCR 307, the Federal Court instructed that “incapacity for work” is to be decided according to the terms of the legislative definition and said that the issue of “suitable employment'” is a separate concept that does
not have a role in determining what “incapacity for work” means. Accordingly, the Tribunal has constrained its considerations to the legislative definition contained in s.4(9) of the SRC Act. That is, to find that the Applicant was incapacitated in the period from 4 June 2019 to

25 September 2020, the evidence must support a determination that she was not able to work at the same level as she did prior to sustaining her injuries.
What was the Applicant’s work and usual hours prior to sustaining her injuries?
Nature of the Applicant’s work
The Applicant submitted that her usual work, prior to her accepted injuries, included both fieldwork and telephone interviews conducted from home. The evidence before the Tribunal from Dr Douglas acknowledges that the Applicant reported that her work consisted of a mix of fieldwork and telephone interviews.[14] The Tribunal finds that the Applicant’s usual work with the ABS consisted of a mix of fieldwork and telephone interviews, prior to her accepted shoulder injury and psychiatric injury.
[14] Tribunal Book, R1, T32, ‘Report of Dr Douglas, Consultant Occupational Physician’, pages 521-522.
Usual hours of work
The issues surrounding the Applicant’s usual hours of her work prior to her accepted injuries were in significant contention between the parties.
The Respondent submits that the Applicant’s usual hours of work prior to her injuries were no more than 15-hours per week, for two weeks per month. The Respondent says that the Applicant was a part-time employee.[15]
[15] Ibid, R10, ‘Respondent’s Amended SFIC’ dated 21 January 2022), page 2, at [6].
The Applicant contends that she “worked the full required hours of the role,”[16] and is therefore a full-time employee. She asserts that the minimum monthly hours required of her under the ABS Interviewers Enterprise Agreement[17] were 30 hours per month; and says that she was “employed as an on-going interviewer under an irregular hours arrangement,” and that the absence of a definition of “part-time employment” in the SRC Act means that the Tribunal should consider her to be full-time as she “worked the full required hours of the role”.
[16] Tribunal Book, A4, ‘Applicant’s SFIC in reply’ dated 7 February 2022, page 1, at [2].
[17] ABS Interviewers Enterprise Agreement 2017; Tribunal Book, R1,T26.2 ‘Employer Response Form and attachments’ dated 25 June 2019 at [340] – [387].

The Applicant does not support her argument that she was full-time with any law. The Enterprise Agreement (paragraph 14.2) refers to “the usual basis for engagement as being an “ongoing Interviewer”.[18] “Employee” is defined in the Enterprise Agreement as “A person engaged by the ABS as an ABS Interviewer”; and “ABS Interview” is then defined as:
“Persons engaged under Subsection 16(2) of the Australian Bureau of Statistics Act 1975 and in accordance with Regulation 7 of the Census and Statistics Regulation 2016 to assist in the carrying out of the functions of the Statistician.”
[18] Ibid at [351].
The Tribunal accepts that the Applicant is correct that the ABS Interviewers Enterprise Agreement did, as she asserts, require her to be available at least two calendar weeks each month; during which periods she would be guaranteed 30 ordinary hours of work, with a minimum 10 hours in each week. The Tribunal finds, on the basis of the Applicant’s evidence and in line with the ABS Average Hours Report[19], that the Applicant was employed as an “ongoing Interviewer” – i.e. the Applicant was not a “casual employee” – a term which is separately defined in the Enterprise Agreement.
[19] Tribunal Book, R1, R10, ABS Average Hours Report, annexed to the ‘Respondent’s Amended Addendum SFIC , including annexures’ dated 21 January 2022, pages 6-11.
However, the Tribunal does not consider that status as an “ongoing Interviewer” who “worked the full required hours of the role” can be conflated to mean that the Applicant was a full-time employee.
The Applicant correctly asserts that the Fair Work Act 2009 (Cth) does not define “full time”. However, the Fair Work Ombudsman, which has responsibilities under the Fair Work Act 2009 (Cth), offers the following definition of “full-time employees” on its public website:
“Full-time employees usually work an average of 38 hours each week. They're usually employed on a permanent basis or on a fixed term contract.”[20]
[20] >
The Tribunal considers that the plain meaning of “full-time” is understood to mean an employee that works an average of 38 hours per week. The fact that the Fair Work Ombudsman publicly adopts this definition is persuasive in the Tribunal’s view.
In asserting that the Applicant was not full-time, the Respondent relies upon the ABS Average Hours Report, which records that during the year prior to the Applicant’s Shoulder Injury (2 January 2014 to 14 January 2015), there was no point at which the ABS recorded that she worked more than 15-hours in any week, nor more than 30-hours in a fortnight.
The Applicant’s position is that the Tribunal should not rely upon the pay evidence contained in the ABS Average Hours Report, for the reason that she submits that it represents the number of hours she claimed in that period, but not necessarily the number of hours she worked in that period.[21]
[21] Transcript of 8 March 2022, page 90, lines 15-20.
Ultimately, the Applicant conceded, during cross-examination by the Respondent’s Counsel, that she did not have any reason to challenge the accuracy of the hours of work reflected in the ABS Average Hours Report.[22]
[22] Transcript of 7 March 2022, page 18, lines 25-26.
There is further evidence before the Tribunal reflecting that the Applicant, during the course of her discussions with various doctors, also reported working hours that were significantly less than what might be considered full-time:
·Psychiatric Report, Dr Kipling Walker – “She is employed to work a minimum 30 hours per month.”[23]
·Psychiatric Report, Dr Curtis Grey – “She has now built up to 12 hours a week for two weeks (minimum) per month, and told me that Comcare have refused to pay the three-hour gap between what she is working currently and her usual employed hours of 15 hours per week for two weeks (minimum) per month.”[24]
·Report by Occupational & Environmental Physician, Dr Chris Cuneen – “This right hand dominant employee informed me she had been employed by the Federal Government’s Australian Bureau of Statistics as a part-time permanent HSO Field Interviewer Grade 3 since early 2012. Normally she worked a minimum of 30 hours per fortnight, being a mix of office based telephone interviews usually from home and field visits to the telephoned members of the public.”[25]
·Report by the Applicant’s General Practitioner, Dr Caetlin Jopson – “…that she return to her hours….”[26]
[23]    The Tribunal Book, R1, T3 ‘Report of Dr Walker, Forensic Psychiatrist including written permission from the Applicant’ dated 7 October 2016 at 14.
[24]    Ibid, T4, ‘Report of Dr Gray, Psychiatrist’ dated 11 April 2018 at 29.
[25]    The Tribunal Book, R1, T6 ‘Report of Dr Cunneen, Occupational and Environment Physician’ dated 18 June 2018 at 58.
[26]    The Tribunal Book, R1, T9 ‘Report of Dr Jopson, General Practitioner’ dated 27 August 2018.
When queried about her Report at the hearing, Dr Kai Douglas confirmed that she included the line in her report that “She described her role as working 30 hours every two weeks in each month” because that is what the Applicant told her that usual hours of work were.[27]
[27] Ibid, T32 at 520 and Transcript of 8 March 2022, page 84, lines 1-8.
The evidence before the Tribunal persuasively demonstrates that the Applicant’s usual hours of work did not, at any point in the relevant period prior to her injuries, work anywhere near 38-hours per week. The Tribunal finds that the Applicant was not a full-time employee.
The Tribunal further finds, on the basis of the ABS Average Hours Report, the reports by the medical practitioners outlined above, and the Applicant’s own concession that she had no basis on which to challenge the information recorded in the ABS Average hours report, that the Applicant’s usual hours of work prior to her injuries were no more than 15-hours per week, for two weeks per month.
Calculation of the Applicant’s normal weekly earnings
The parties do not agree about the appropriate manner in which the Applicant’s normal weekly earnings should be calculated in accordance with the SRC Act.
The Applicant’s argument in relation calculating her normal weekly earnings
The Applicant raised a number of concerns about the methodology used to calculate her normal weekly earnings. Firstly, she submitted that the Respondent, “assumed that I work part‑time otherwise section 9 of the SRC Act is inapplicable and this will result in the applicable hours of 16.25 hours. Alternatively applying the formula in section 9 to determine the amount of compensation for the purpose of section 8(8) is a reasonable basis for Comcare to determine the amount per week that I would have been able to earn at the date of the injury, being 16.25 hours.”
Her argument is that:
(a)part-time work is not defined in the SRC Act nor the Fair Work Act and must therefore be interpreted in accordance with the agency agreement that she was employed under.
(b)A part-time job is something less than a full-time job;
(c)Prior to her compensable injuries, she worked the hours required of her under the ABS interview’s agreement and therefore, the Applicant says that for purposes of the SRC Act, she was “deemed full-time”, and “compensation is payable under section 9 of the SRC Act”.[28]
[28] Transcript, P-10 at [31] – [47].
The Respondent’s argument in relation calculating normal weekly earnings
The Respondent asserts that the Applicant’s average weekly hours of work with ABS during the period 2 January 2014 to 14 January 2015 was 6.58 hours.[29]
[29] Respondent’s Second Further Amended Addendum to the Respondent’s Statement of Facts, Issues and Contentions at [6].
The Respondent contends that the calculation of normal weekly earnings should be in line with s 8(5) and 9(3) of the SRC Act, as follows (original references excluded)[30]:
[30] Respondent’s Further Amended Addendum to the Respondent’s Statement of Issues, Facts and Contentions at [7].
“The partial incapacity period relates to incapacity from the First Injury, which has a date of injury of 13 January 2015.
Given the potential for variance in hours, the shortness of relevant period as defined in s 9 of the SRC Act does not fairly represent the weekly rate at which the applicant was being paid in respect of her employment before the First Injury.
Given the potential for variance in hours, it is appropriate to calculate the applicant’s normal weekly earnings having regard to the hours of the applicant’s employment in the period 2 January 2014 to 14 January 2015, being the 54 weeks before the First Injury as this period is a reasonable period for arriving at an amount that does fairly represent the weekly rate at which the applicant was being paid.
This 54 week period aligns with the applicant’s pay cycles and the hours of work recorded as having been worked by the applicant on a fortnightly basis through the ABS payroll system.
In the period 2 January 2014 to 14 January 2015, the applicant was on leave from:
2 to 15 February 2014; and
14 to 20 December 2014.
It is fair to exclude those weeks of leave when calculating the average weekly hours worked during this period for the purposes of assessing the amount that does fairly represent the weekly rate at which the applicant was being paid while working in part-time employment as an ABS interviewer.
The applicant was receiving compensation for other injuries during the period 2 January 2014 to 14 January 2015. However, on 20 May 2013, the applicant was certified fit to work her usual hours as an ABS interviewer, subject to some restrictions and modifications required to her workstation. Therefore, the hours actually worked by the applicant during this period are a fair representation of the hours she would ordinarily have been able work in part-time employment as an ABS interviewer prior to the First Injury.
Averaging the total weekly hours across the remaining 46 weeks in the period 2 January 2014 to 14 January 2015, amounts to 6.58 hours per week.
Therefore, the applicant’s NWE corresponds to an average of 6.58 hours work per week. “
The Respondent says that although the Applicant was receiving compensation for other injuries during this period, that as she had been certified fit to work her usual hours as an ABS interviewer on 20 May 2013, subject to workstation modifications, these hours fairly represent the number of hours that she would ordinarily have been able to work prior to her first injury (the shoulder injury sustained on 13 January 2015).
For the reasons set out above, the Tribunal has found that the Applicant was not a full-time employee, and that her usual hours of work prior to her injuries were no more than 15-hours per week, for two weeks per month.
However, the Tribunal must still consider the Applicant’s argument that the Tribunal should calculate her normal weekly earnings using the “relevant period” contained in s.9(1) of the SRC Act.
The Applicant argues that the Tribunal should have reference to the latest period of two weeks before the date of her injury during which she was continuously employed by the Commonwealth or licenced corporation. The Applicant asserts that this is a reasonable basis to determine what she would have been able to earn at the date of her injury.
She then references what she defines to be her “first injury” – her car accident in 2013. Prior to the 2013 car accident, she says that she was working 16.25 hours per week.
As explained earlier in this decision, although the Applicant asserts that her “First Injury” occurred following her 2013 car accident, that claim is not before this Tribunal. For the purposes of this review, the “First Injury” is the Applicant’s 13 January 2015 shoulder injury.
The Applicant argues that the hours that she was receiving compensation for during the period 2 January 2014 to 14 January 2015 (in relation to her 2013 car accident injury), should be considered for purposes of calculating her normal weekly earnings in this review.[31] The Respondent disagrees and says that to do so would be effectively allowing the Applicant to be compensated twice in relation to the same injury.
[31] Tribunal Book, R1, A4, ‘Applicant’s SFIC in reply’ dated 7 February 2022, at [4].
The Tribunal has had regard to s.8 of the SRC Act. In s.8(1) of the SRC Act, the formula for “Normal Weekly Earnings” is calculated by reference to “the average number of hours worked in each week” (Tribunal’s emphasis). The plain meaning of “worked” implies that there was actual engagement in the employee’s usual work. Where an employee is being compensated, it is because they cannot engage in their usual work. Therefore, they receive compensation in lieu of work. It is consistent with the language in s.8(1) of the SRC Act for the Tribunal to exclude the hours that the Applicant was receiving compensation for from the calculation of normal weekly earnings.
The Tribunal considers the Respondent’s methodology, calculating the total weekly hours that the Applicant actually worked across the remaining 46 weeks in the period

2 January 2014 to 14 January 2015, to be the preferable basis on which to calculate the Applicant’s normal weekly earnings. The Tribunal considers the fact that the Applicant was receiving compensation arising from her earlier 2013 injury to be irrelevant to the Tribunal's determination in this proceeding.
The Applicant’s January 2015 injury is the “first injury” for purposes of this review. The Tribunal reject’s the Applicant’s submissions that it should include compensable hours from her 2013 injury (that is not under review), as the Tribunal finds that to do so would allow the Applicant to reventilate the issue of the appropriateness of the compensation that she received for an injury that is not within the jurisdictional scope of this review.
Having regard to the Applicant’s actual hours worked, as reflected in the ABS Average Hours Report, the Tribunal finds that the Applicant’s “Normal Weekly Hours” for purposes of s.8 of the SRC Act average 6.58 hours per week.
Key Medical Evidence
Dr Andrew Ryan, Orthopaedic Surgeon
Dr Ryan provided two brief reports in his capacity as a medical practitioner involved in the “investigation and management” of the Applicant’s shoulder injury. Dr Ryan was not called by the Applicant to give evidence at the hearing and was therefore not cross-examined.
In his 25 March 2019 report, Dr Ryan stated that:
“Following my most recent review, I believe that [the Applicant] at this stage of her recovery is fit to drive and participate in face to face interviews. I have read and understand the duties of an interviewer in her role at the ABS.I believe she is capable of performing these duties at the current time while she continues her rehabilitation.”[32]
[32] Ibid, T20.1, ‘Report of Dr Ryan, Orthopaedic Surgeon’ dated 25 March 2019.
Dr Ryan confirmed his opinion on 28 March 2019, writing that “I don’t see any reason why she can’t return to her full duties as an ABS interviewer and have certified her as such”.[33]
[33] Tribunal Book, R1, T18.3 ‘Albany Hills Radius Medical Centre clinical notes for the period 8 March 2016 to 20 August 2019’, page 178.
Dr Ryan did not express a view about the Applicant’s psychiatric injury as it is outside his area of expertise.
Dr Caetlin Jopson, General Practitioner
On 28 March 2019, the applicant’s general practitioner reported that the Applicant was fit to return to her work conducting phone interviews immediately, and opined that “there were no medical reasons holding [the Applicant] back from working”.[34]
[34] Ibid, T12, ‘Report of Dr Jopson, General Practitioner).
On 23 July 2019, Dr Jopson completed a “Queensland workers’ compensation medical certificate” for the Applicant’s WorkCover claim. In the certificate, Dr Jopson certifies that she first saw the Applicant for her psychiatric adjustment disorder injury on 23 July 2019, and then certified that the Applicant was not capable of working between the period from

9 April 2019 and 9 October 2019.[35]
[35] Tribunal Book, R1, T14.1, ‘Attachment 1: Medical Workers’ Compensation Certificate for incapacity
between 9 April 2019 to 9 October 2019’.
The notes made by Dr Jopson following the Applicant’s 23 July 2019 consultation reflect “Long discussion about workcover. Solicitor has advised to submit another Workcover form from 9/4/19 – date of firing from ABS.”[36]
[36] Ibid, T18.3, ‘Attachment 3: Albany Hills Radius Medical Centre clinical notes for the period 8 March 2016 to 20 August 2019 (extract)’, at 174.
On 14 August 2019, Dr Jopson recorded that the Applicant’s “[r]ight shoulder is fine. A little niggle here and there”.[37]
[37] Ibid, at 177.
On 11 March 2020, Dr Jopson completed a “Work capacity certificate – workers’ compensation” wherein she indicated that “If suitable duties available, can return to some form of work from 10/10/2019”.[38] The medical certificate indicates that the Applicant was suffering from her “adjustment disorder and right adhesive capsulitis” and was not capable of working between 10 October 2019 and 25 September 2020.[39]
Dr Ki Douglas, Consultant Occupational Physician
[38] Tribunal Book, R1, T41.2, ‘Attachment 2: Medical Worker’s Compensation Certificate for incapacity between 10 October’, at 567.
[39] Ibid.
The Respondent referred the Applicant to Dr Douglas for the purpose of obtaining an assessment of the Applicant’s shoulder injury, as well as an expert opinion about the Applicant’s work capacity. Dr Douglas appeared before the Tribunal on 8 March 2022 to give evidence and was cross-examined by the Applicant.
In her report dated 21 November 2019, Dr Douglas expressed an opinion that the Applicant’s Shoulder Injury had resolved, and she was “no longer restricted in range of motion and her strength is gradually increasing.”[40]
[40] Tribunal Book, R1, T32, ‘Report of Dr Douglas, Consultant Occupational Physician’, at 528 – 530.
In relation to the type of work the Applicant could perform, Dr Douglas’s view was that she was “currently capable of doing telephone interviews part time. She has always done this on a work from home situation.”[41] Dr Douglas said that the Applicant should take “regular breaks when using the mouse on a computer,” and “avoid lifting overhead with her right upper limb.”[42]
[41] Ibid, at 531.
[42] Tribunal Book, R1, T32, ‘Report of Dr Douglas, Consultant Occupational Physician’, at 531.
In relation to the field work component of the Applicant’s work, Dr Douglas’s opinion was that the Applicant’s Shoulder Injury had resolved and would not prevent her from driving, or from conducting field-based interviews.
However, Dr Douglas acknowledged that in addition to the Shoulder Injury, the Applicant also had anxiety issues (the “Psychiatric Injury”). Dr Douglas was careful to only provide expert evidence to the Shoulder Injury, as assessing the impact of the Psychiatric Injury on the Applicant’s ability to work was outside her area of expertise and needed to be considered by a psychiatrist.[43]
Evidence of Dr Curtis Gray, Consultant Psychiatrist
[43] Ibid, at 532.
The Respondent referred the Applicant to Dr Gray for the purpose of obtaining an assessment of the Applicant’s psychiatric injury, as well as an expert opinion about the Applicant’s work capacity. Dr Gray appeared before the Tribunal on 8 March 2022 to give evidence and was cross-examined by the Applicant. Dr Gray produced three written reports, the effects of which are summarised below.
Report of Dr Gray, dated 11 April 2018[44]
[44] Tribunal Book, R1, T4, ‘Report of Dr Gray, Psychiatrist (including letter of instruction)’ and T5, ‘Supplementary Report of Dr Gray, Psychiatrist’ dated 11 April 2018.
Dr Gray diagnosed the Applicant with a chronic adjustment disorder with mixed anxiety and depressed mood, as well as a longstanding specific phobia of driving.

Dr Gray expressed a view that the Applicant’s chronic adjustment disorder was evident from early 2016. His opinion was that:
“The history available to me does not point to [the Applicant’s] psychological condition or the Adjustment Disorder having been the factor that prevented her from undertaking her usual duties on a full-time basis. The history I have points to her shoulder injury being the reason for this.”[45]
Report of Dr Gray, dated 26 November 2019[46]
[45] Ibid, T4 at 39.
[46] Tribunal Book, R1, T33, ‘Report of Dr Gray, Psychiatrist’ dated 26 November 2019.
In Dr Gray’s expert opinion, the Applicant had “an ongoing capacity to engage in phone-based work as an interviewer for the ABS for 15 hours per week for up to two weeks per month”.[47]
[47] Ibid, T33 at 547.
Although Dr Gray acknowledged that the Applicant’s “inability to partake in interviewing of the public in the field, which led to the previous restriction of no face-to-face work, was primarily driven by her adjustment disorder[48],” did not consider the Applicant’s diagnosed adjustment disorder to be “a significant impediment to her returning to the 15 hours work per week for two weeks of any month, which she usually works”.[49]
Supplementary report of Dr Gray, dated 30 April 2021[50]
[48]    Tribunal Book, R1, T33, ‘Report of Dr Gray, Psychiatrist’ dated 26 November 2019, at 546.
[49]    Ibid, at 547.
[50]    Tribunal Book, R1, R4, ‘Report of Dr Curtis Gray, psychiatrist, including briefing letter dated 16 April 2021’.
In Dr Gray’s opinion, the Applicant “was still suffering the effects of the accepted Adjustment Disorder between 9 April 2019 and 25 September 2020, although it is likely that the symptoms of it tended to fluctuate”.[51] Dr Gray’s opinion was that the Applicant’s adjustment disorder had resolved in early 2021.[52]
[51] Ibid, R4 at page 11.
[52] Ibid.
Dr Gray considered that the two most significant factors in the causation of the accepted Adjustment Disorder between 9 April 2019 and 25 September 2020 were the Applicant’s shoulder injury and termination from the ABS.
In relation to the Applicant’s capacity to undertake her usual part time hours during the period from 9 April 2019 to 25 September 2020, Dr Gray was able to state “with some degree of confidence, albeit not absolute certainty” that the Applicant would have been able to manage phone-based work during the period of 9 April 2019 to 25 September 2020, but probably would have struggled with work “in the field”.[53]
[53] Tribunal Book, R1, R4, ‘Report of Dr Curtis Gray, psychiatrist, including briefing letter dated 16 April 2021’, at page 13.
During cross-examination by the Applicant, Dr Gray was asked about his various reports. The Applicant’s questions of Dr Gray took the format of a discussion with Dr Gray that seemed to focus on his comment that she may have struggled to return to work in the field.
The expert opinion of Dr Gray is that the Applicant’s psychiatric injury did not cause any impairment to her ability to perform telephone based interviews, up to her usual hours of work.
The Applicant was partially incapacitated following her shoulder injury
The Respondent submits that the Applicant was partially incapacitated as a result of her shoulder injury for a period of eight-weeks, and that following the period of partial incapacity, she was able to return to her usual hours of work.
In support of this contention, the Respondent points to the report of Dr Ki Douglas, wherein Dr Douglas determined that the Applicant had capacity to work the hours reflected in the table following, initially on telephone interviews only[54]:
[54] Tribunal Book, R1, T32 at 528.

Graduated Return to Work Week Dr Douglas’s recommended number of hours of work Number of hours per week Calendar week

Weeks 1 and 2 1 ½ hours three days a week 4.5 hours Weeks commencing 9 April 2019 and 16 April 2019

Weeks 3 and 4 1 ½ hours five days a week 7.5 hours Weeks commencing 23 April 2019 and 30 April 2019

Weeks 5 and 6 Two hours a day five days a week 10 hours Weeks commencing 7 May 2019 and 14 May 2019

Weeks 7 and 8 2 ½ hours a day five days a week 12.5 hours Weeks commencing 21 May 2019 and 28 May 2019

Week 9 onwards Three hours a day five days a week 15 hours Week commencing 4 June 2019

The parties agree, and the Tribunal has made a finding accordingly, that the Applicant was partially incapacitated to work as a result of her Shoulder injury, from 9 April 2019 through to the week commencing 28 May 2019.
From 4 June 2019 onwards, the Respondent submits that the Applicant had no incapacity to work between 4 June 2019 and 25 September 2020. The Respondent’s position is that the Applicant was not incapacitated for work from 4 June 2019, as she would have been able to work 15-hours per week from “Week 9” of Dr Douglas’s graduated return to work plan had she not resigned.
In support of her assertion that the medical evidence before the Tribunal would support a finding that she had an ongoing incapacity for her usual work. The Applicant says that, “…Dr Douglas does not hold that her recommended graded return will allow me to do fieldwork. That makes up 70 per cent of those duties.”[55] The Applicant’s assertion ignores the evidence that Dr Douglas gave on this point, which was very clearly that the Applicant’s shoulder injury had entirely resolved.
[55] Transcript of 7 March 2022, page 10, lines 7-9.
Dr Douglas concluded that if work was available, the Applicant could commence a graduated return to work program, undertaking telephone interviews part-time if work was available. Dr Douglas confirmed that the Applicant could gradually increase her work hours over a period of 8 – 9 weeks, which would see the Applicant, had she not resigned, working 15-hours per week by “Week 9” of the Graduated Return to Work Program, onwards. This is reflected in the chart above.[56]
[56] Tribunal Book, R1, T32, ‘ Report of Dr Douglas, Consultant Occupational Physician’, at 528.
The Applicant expressed a strong view that she has not been provided with a “graded return to work as recommended by numerous medical practitioners.”[57] It is clear that the Applicant is not satisfied with the terms on which her employment with the ABS ended on 8 April 2019. This Tribunal is not able to adjudicate the industrial issues, or order that ABS allow the Applicant to return to her role, as it does not have jurisdiction to do so.
[57] Transcript of 7 March 2022, page 10, lines 16-17.
While the Tribunal accepts that the Applicant’s usual work did consist of a combination of field work and telephone-based interviews, the issue as to whether a graduated return to field work would have been successful is not relevant to the issues before the Tribunal. As set out earlier in this decision, the Tribunal has found that the Applicant’s usual hours of work prior to her injuries were no more than 15-hours per week, for two weeks per month.
The Applicant relies upon the evidence of her General Practitioner, Dr Jobson, as well as the Workcover medical certificates completed by Dr Jobson on 27 July 2019[58] and
11 March 2020[59] to support her contention that she was incapacitated for work from
[58] Tribunal Book, R1, T14.1, ‘Attachment 1: Medical Workers’ Compensation Certificate for incapacity between 9 April 2019 to 9 October 2019’.
[59] Ibid, T41.2, ‘Attachment 2: Medical Worker’s Compensation Certificate for incapacity between 10 October 2019 to 25 September 2020’.
4 June 2019 through 25 September 2020.
During the hearing, the Respondent cross-examined Dr Jopson in relation to her making the medical certificates retrospective, alleging that she had done so on the instructions of the Applicant’s solicitors, rather than on the basis of her own independent view. Dr Jopson conceded that she had adopted the retrospective date of 9 April 2019 because that was what had been suggested to her, rather than on the basis of a clinical assessment. The following exchange took place between Dr Jopson and Counsel for the Respondent[60]:
[60] Transcript of 7 March 2022, page 33, line 17 – page 34, line 43.
“Counsel: And you’ll see there on the screen under the heading “actions”, Queensland’s workers compensation medical certificate printed?
Dr Jopson: Yes.
Counsel: And if you go up to “history” on the previous page?
Dr Jopson: Yes.
Counsel: You’ve written (indistinct) WorkCover?
Dr Jopson: Yes.
Counsel: Solicitor advised to submit a WorkCover form from 9 April ’19?
Dr Jopson: Yes, there you go.
Counsel: So is it likely the case that you chose the date of 9 April 2019?
Dr Jopson: Sure.
Counsel: Please just wait for me to finish my question, Doctor?
Dr Jopson: M’mm.
Counsel: Because that is what was suggested to you, rather than on the basis of any clinical assessment made by you?
Dr Jopson: It was a date suggested to me, yes.
Counsel: And there is nothing in your notes to suggest that she had, that is, Mrs Iselin had no capacity to work between 9 April and when you signed the certificate on 23 July 2019, that that opinion is based entirely upon a suggestion made to you by her solicitor, is that right?
Dr Jopson: Yes.
Counsel: There is nothing in your clinical notes of 23 July 2019?
Dr Jopson: Well, I’m just about to have a little look.
Counsel: ‑ ‑ ‑ that supports your opinion as stated in the certificate that that incapacity would continue until 9 October 2019, is there?
Dr Jopson: I’m just going and having a look.
Counsel: Your clinical note of 23 July is on the screen, Doctor?
Dr Jopson: Yes, and what’s the question?
Counsel: The certificate that I’ve just taken you to, the certificate itself?
Dr Jopson: Yes.
Counsel: Is certified that Mrs Iselin had no capacity for any kind of work from 9 April 2019 until 9 October 2019?
Dr Jopson: Yes.
Counsel: You are making that assessment on 23 July 2019?
Dr Jopson: Yes.
Counsel: So they’re a period of retrospective assessment and a period of prospective assessment, do you agree?
Dr Jopson: Yes.
Counsel: You’ve told us already that the period of retrospective assessment was based upon the suggestion to you by Ms Iselin’s solicitor and not on any clinical assessment made by you of her capacity. What was the basis of you asserting in the certificate that she would have no capacity for work for a prospective period from 23 July 2019 to 9 October 2019; there is nothing, I suggest to you, in your clinical note of that consultation that would support that assessment?
Dr Jopson: Yes, the only thing is that these are not very full notes, and I can actually see here that she’s got itching skin, which I said, “Query anxiety, related and sweating palms” and for the first time in the entire time that I’ve seen [the Applicant] I put her on an anti‑anxiety medication. And, you know, we don’t always see people on the very first day of their anxiety illness. I mean I haven’t documented here what’s going on, although the reason for the contact, the main reason for the contact actually was anxiety and starting on an antidepressant, anti‑anxiety medication. So clearly there’s been a long discussion about this.
Counsel: But notwithstanding the fact that you had previously recorded in correspondence your opinion that Mrs Iselin was fit to return to work as a phone interviewer in March 2019?
Dr Jopson: M’mm.
Counsel: You’ve signed a document which you knew would be submitted for the purposes of workers compensation saying that she had no capacity whatsoever for work between a period of April ’19 to October ’19, and you haven’t recorded any information in your clinical notes about your clinical assessment that would support that opinion. That’s extraordinary, isn’t it, Dr Jopson?
Dr Jopson: No, sometimes we don’t write as much in our notes as we should do, you know. I can actually see - the other thing is when you’ve known patients for a very long time - because I’d always write a lot down, but I have written certainly some symptoms that she’s got, I’ve given her a diagnosis on that day and I have executed some treatment, as well as ‑ ‑ ‑“
In relation to the 11 March 2020 medical certificate signed by Dr Jopson, the following exchange took place during cross-examination[61]:
[61] Ibid, page 37, lines 27-44.
“Counsel: So is it likely, more likely than not, that you gave this medical certificate dated 11 March 2020 at her request or the request of her solicitor to support her application for compensation?
Dr Jopson: I don’t know if it was for compensation, but to support her in the process that she was dealing with, yes.
Counsel: You’ve recorded in history report letter to support rebuttal of Comcare?
Dr Jopson: Yes.
Counsel: And you understand that Comcare is the Commonwealth compensation, workers compensation scheme?
Dr Jopson: No, I thought it was WorkCover.
Counsel: But you understood that the reason that you were doing a certificate on that day was to support Mrs Iselin’s application for workers compensation?
Dr Jopson: Yes.
Counsel: And you did so and included a date range of almost 12 months with no other clinical notes recorded about your assessment of her or her capacity to work?
Dr Jopson: Evidently.”
Dr Jopson is not a dispassionate expert witness – she has signed not one, but two, medical certificates, containing date ranges that were retrospective, and which Dr Jopson, herself concedes were to assist with the Applicant’s Workcover claim on instructions from the Applicant’s solicitor, and for which there are no clinical notes supporting the date range. In the Tribunal’s view, partisan evidence of this nature should be given less weight than neutral evidence.
It is problematic when otherwise qualified medical practitioners allow themselves to become involved in their patients’ legal circumstances by taking direction from lawyers about matters (here, the certification of dates that the applicant was unable to work), where they should instead exercise independent clinical medical judgment. The Tribunal has taken a dim view of Dr Jopson’s evidence for these reasons – she has permitted herself to become entangled in her patient’s broader circumstances, no doubt because she cares for the Applicant as they have now known each other for many years while the Applicant has been a patient. However, Dr Jopson has allowed herself to be used by the Applicant’s solicitors as their mouthpiece for purposes of dating a claim, such that her evidence can no longer be seen as objective.
In circumstances where it is transparent that Dr Jopson has provided medical certificates dated so as to assist the Applicant with a claim, dated in accordance with the Applicant’s solicitor’s suggestion, the Tribunal prefers the non-partisan evidence of Dr Douglas and

Dr Gray. The approach of this Tribunal in preferring what it considers to be objective and dispassionate evidence to that of a professional that acts as an advocate for the applicant’s position is consistent with that taken by the Tribunal in other Comcare matters, including Waldron and Comcare (Compensation) [2019] AATA 5455; and Renouf and Comcare (Compensation) [2019] AATA 1055.
Conclusion in relation to Shoulder Injury
Having earlier in this decision determined that the Applicant’s usual hours of work prior to her injuries were no more than 15-hours per week, for two weeks per month, it becomes apparent viewing the chart at paragraph [81] above that the Applicant had returned to her usual hours of work from “Week 9” onward, in accordance with Dr Douglas’ Graduated Return to Work Program[62], commencing on 4 June 2019. Therefore, the Applicant had no incapacity to work on the basis of her shoulder injury, from 4 June 2019 onward.
Conclusion in relation to Psychiatric Injury:
[62] Tribunal Book, R1, T33, ‘Report of Dr Gray, Consultant Psychiatrist’, at 544.
Dr Gray has concluded that the Applicant “reported reactive psychological/emotional symptomatology” that it was not “indicative of any psychiatric condition”.[63] Dr Gray continued, saying that while the Applicant “did have ongoing psychological emotional symptoms that remained indicative of a chronic adjustment disorder with mixed anxiety and depressed mood associated with her right shoulder injury” that it “did not seem to be causing any impairment for phone-based work as an interviewer” (Tribunal’s emphasis).[64]
[63] Ibid.
[64] Tribunal Book, R1, T33 at 544.
Dr Gray further records the following in his report:
“[The Applicant] reported that she is desirous or returning to her previous position as an interviewer with the ABS, and I am of the opinion that she could manage this, from a psychiatric perspective, virtually immediately, albeit with initial restriction of having no face-to-face contact with members of the general public.” (Tribunal’s emphasis)[65]
[65] Ibid, T20.4, ‘Attachment 3: Applicant’s Notice of Resignation from ABS’, at 195.
On this basis, the Tribunal concludes that the Applicant was able to work her usual hours in her role as an Interviewer with the ABS. The Tribunal does not need to consider all facets of the nature of the work that she might perform during her usual hours in the role.
Consequentially, the Tribunal finds that the Applicant did not have any incapacity for her usual work arising from her psychiatric injury during the relevant period between

9 April 2019 to 25 September 2020.
Calculation of incapacity payments
The Applicant has been found by this Tribunal to have been partially incapacitated for work as a result of her shoulder injury, from 9 April 2019 through to the week commencing 28 May 2019 and ending 3 June 2019.
Section 19 of the SRC Act provides for the amount of compensation that is payable to employees during the period in which they are found to be incapacitated.
Subsection 19(2) provides that compensation is to be calculated under the formula ‘NWE – AE’.
Once an employee has been paid compensation in accordance with s 19(2) for a period of 45 times the employee’s normal weekly hours, Comcare ’s liability to pay compensation in future weeks is assessed under s 19(3) of the SRC Act.
The total number of hours the Applicant has been prevented from working due to her compensable injuries under the SRC Act exceeds 45 times the applicant’s normal weekly hours.[66]
[66] Tribunal Book, R1, ST3, ‘Further Supplementary Documents’.
The Applicant’s incapacity payments are to therefore be calculated by applying the formula contained in s 19(3) of the SRC Act:
The Tribunal has earlier determined in this decision that the Applicant’s normal working hours “NWE” are 6.58 hours per week.
The Tribunal must now determine both the Adjustment percentage and “AE” for purposes of the formula contained in s.19 of the SRC Act.
Adjustment percentage
The Applicant resigned from her employment with the ABS as at 8 April 2019. As the Applicant was not employed during any of the weeks between 9 April 2019 and
[67] SRC Act s.19(3).
25 September 2020, the Tribunal finds that the applicable adjustment percentage is 75%.[67]
AE – suitable employment
The Applicant’s ‘AE’ is the amount per week that she was able to earn in suitable employment during the incapacity period.[68] There is no evidence that the Applicant received any earnings during the claimed incapacity period before the Tribunal.
[68] SRC Act s.19(2).
In considering what “suitable employment” means for purposes of the SRC s.19 formula, it is not in dispute that the Applicant was employed by the Commonwealth at the time of her injuries but is no longer employed by the Commonwealth. As such, the SRC Act
s.4 definition of suitable employment is not limited to Commonwealth employment.
In determining what suitable work is for the Applicant’s purposes, regard must be had to the matters outlined in (a)(i) – (iv) of the SRC Act s.4 definition of suitable employment.
The Respondent contends that the Applicant’s ‘AE’ should be calculated by reference to the number of hours that Dr Douglas said that she would have been able to work, had she not resigned from her employment on 8 April 2019. The Applicant has not made any alternate submission in relation to the calculation of AE. The Tribunal considers the Respondent’s proposal to be fair in the circumstances, particularly given that it is the case that the Applicant has not worked elsewhere during the relevant period.

Adopting this methodology, the Tribunal finds that the number of hours the Applicant could have earned in suitable employment for purposes of calculating the Applicant’s AE equates to the hours that Dr Douglas said she would have been able to work on a Graduated Return to Work program:

Calendar week Dr Douglas’s recommended number of hours of work Number of hours per week Hours for AE calculation

Weeks commencing 9 April 2019 and 16 April 2019 1 ½ hours three days a week 4.5 hours 4.5 x 2 weeks = 9 hours

Weeks commencing 23 April 2019 and 30 April 2019 1 ½ hours five days a week 7.5 hours 7.5 x 2 weeks = 15 hours

Weeks commencing 7 May 2019 and 14 May 2019 Two hours a day five days a week 10 hours 10 x 2 weeks = 20 hours

Weeks commencing 21 May 2019 and 28 May 2019 (the Applicant’s incapacity for work ends on 3 June 2019). 2 ½ hours a day five days a week 12.5 hours 12.5 x 2 weeks = 25 hours

Total AE = 69 hours
DECISIONS

The Decision dated 11 May 2020 under review in AAT Application No. 2020/3407, in which the Determination dated 26 February 2020 was affirmed, is:
·varied to state that the Applicant is entitled to compensation for partial incapacity during the period commencing 9 April 2019 through to the week commencing 28 May 2019 and ending 3 June 2019; and
·remitted to the Respondent to quantify the Applicant’s entitlements to weekly payments in the period from 9 April 2019 to 3 June 2019, under the formula in s.19(3) of the SRC Act and in accordance with these reasons for decision.
The Decision dated 11 May 2020 under review in AAT Application No. 2020/3544, in which the Determination dated 14 April 2020 was affirmed, is affirmed.

I certify that the preceding 113 (one-hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member B Cullen

.................[SGD].......................................................
Associate
Dated: 29 September 2022

Dates of hearing: 7 and 8 March 2022

Date final submissions received: 7 March 2022

Applicant: In person

Counsel for the Respondent: Ben McMillan

Solicitors for the Respondent: Madeleine King
(Australian Government Solicitor)

Graduated Return to Work Week	Dr Douglas’s recommended number of hours of work	Number of hours per week	Calendar week
Weeks 1 and 2	1 ½ hours three days a week	4.5 hours	Weeks commencing 9 April 2019 and 16 April 2019
Weeks 3 and 4	1 ½ hours five days a week	7.5 hours	Weeks commencing 23 April 2019 and 30 April 2019
Weeks 5 and 6	Two hours a day five days a week	10 hours	Weeks commencing 7 May 2019 and 14 May 2019
Weeks 7 and 8	2 ½ hours a day five days a week	12.5 hours	Weeks commencing 21 May 2019 and 28 May 2019
Week 9 onwards	Three hours a day five days a week	15 hours	Week commencing 4 June 2019

Dates of hearing:	7 and 8 March 2022
Date final submissions received:	7 March 2022
Applicant:	In person
Counsel for the Respondent:	Ben McMillan
Solicitors for the Respondent:	Madeleine King (Australian Government Solicitor)