John Bowen and Australian Postal Corporation
[2012] AATA 704
•11 October 2012
[2012] AATA 704
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/4409
Re
John Bowen
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr Hadia Haikal-Mukhtar, MemberDate 11 October 2012 Place Sydney The Tribunal affirms the decision under review.
...[Sgd].....................................................................
Ms N Bell, Presiding Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – rehabilitation plans – restricted duties – whether rehabilitation plans suitable – whether restricted duties suitable – whether suitable employment – whether capacity for full-time restricted duties – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 19
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr Hadia Haikal-Mukhtar, Member11 October 2012
John Bowen worked continuously with Australia Post from 1992. In September 1999, when delivering mail on a motorbike, he struck a pothole and suffered an injury to his back for which liability was accepted by Australia Post. He was certified unfit for work until his return in December on restricted duties.
Over the following years Mr Bowen worked at restricted duties, according to various rehabilitation plans, ultimately for full hours. In February 2007 Mr Bowen tendered his resignation effective from 5 July 2007.
In December 2008 Mr Bowen made a claim for compensation for “lumbar-sacral [sic] degenerative disease, lumbar sacral disc lesion [sic], progressive osteo-arthritis [sic] including the shoulders, hips and spine and hypertension.” Liability for Mr Bowen’s back condition having already been accepted, Australia Post determined that no compensation should be paid to Mr Bowen on the basis that he was fit to earn full-time wages in restricted duties.
Mr Bowen contends that he is totally incapacitated for work. He maintains that the duties that were made available to him by Australia Post were not suitable duties. In particular, he contends that the duties did not amount to meaningful work and did not fill his hours at the workplace.
ISSUES
Liability has been accepted by Australia Post for Mr Bowen’s back injury. It follows that he should be compensated for any loss of wages that flows from any incapacity resulting from his injury. At the time he resigned from his employment Australia Post provided him with restricted duties to be performed for full-time hours. While engaged in this work, Mr Bowen suffered no loss of wages.
The question of Mr Bowen’s entitlement to compensation for loss of wages once he had resigned from his employment is governed by section 19 of the Safety, Rehabilitation and Compensation Act 1988 which, among other things, provides for calculation of compensation to take into account money earned or money that could be earned, by the employee in suitable employment.
“Suitable employment” is defined in section 4 of the Act as work for which the employee is suited, having regard to, among other things, age, training, experience, suitability for rehabilitation, location of available employment and any other relevant matter.
The issues that arise for our consideration in this application are:
(i)Whether Mr Bowen has the capacity to work full-time in restricted duties;
(ii)If so, whether suitable employment was made available to him by Australia Post; and
(iii)If so, whether Mr Bowen’s failure to continue with that suitable employment was reasonable in all the circumstances.
DOES MR BOWEN HAVE THE CAPACITY TO WORK FULL-TIME IN RESTRICTED DUTIES?
Mr Bowen said he had had no problems with his back prior to the incident on 22 September 1999 when he struck a pothole on his motorbike. He said that since that date there has never been a time he was free of problems with his back.
However, Mr Bowen later agreed he had a bout of back pain in 1999 prior to the motorbike incident, but chose not to tell his general practitioner about it. He agreed he has a number of other health problems including neck pain, bowel problems and a contracture in his right ring finger for which he has seen a surgeon, but he said they are not the reason he has not applied for any jobs.
He said that since the incident he has never been able to get back to his full duties. When he returned to work after the incident he did redirections of mail which involved data entry and affixing stickers to mail for three hours per day and mail sorting that took 30 minutes per day. He said he also had “ad hoc” office duties amounting only to about two hours per week. Mr Bowen said these duties continued for about two years and then redirections were transferred to the Penrith site, leaving a significant gap in his work. He said that mail sorting made his back ache and so he had to stop doing that after 15 minutes.
Mr Bowen said that when he went back on day shift in 2001 after being on night shift for a while he had no sorting work either and was left only with “ad hoc” office duties. He said he spent his time doing whatever jobs were available to be done and then would wait until home time. He said that, generally, most of his work was done before 10.00am. His start time was 6.10am and he finished at 1.30pm.
Mr Bowen said the drive from Portland, where he lived, to the Katoomba Delivery Centre was a 64 km trip and took him 50 to 60 minutes each way. He said the drive hurt his back and it would be aching when he arrived at work.
Mr Bowen said that on a typical day he would spend three hours with nothing to do. He complained that over time he had nine different managers, each one with a different attitude. He said they would not allow him to work in the office. Mr Bowen said that by 2004-2006 he had very little to do and nothing after 10.00 am and used to sit on his chair talking to a colleague. He said he would have tried to work if they had given him something to do. He said it was very boring and made him feel worthless. He said he raised it with his managers and they simply said “if there’s no work, there’s no work”. He said he was mocked and insulted by his colleagues for the first 12 months after the incident. They called him a bludger.
Mr Bowen said “I was employed as a postal delivery officer and that’s meaningful work.”
Mr Bowen referred to the report of Dr Boundy, his general practitioner, in July 2006 that suggested Mr Bowen go back on a motorcycle. He said no one at Australia Post acted on it.
He also referred to a 2007 return to work plan and gave details of the time it took him to perform each of the tasks set out in the plan. He said the “ad hoc” work never took more than two hours and 30 minutes per shift, the bag rack work (sorting mail into bags) never took more than 30 minutes and the private sorting took about 15 minutes
Mr Bowen said that by 2006-2007 he was getting additional work such as cleaning up the lunch room, sweeping the bike shed, redirections and making cups of tea. He said he “spent a fair bit of time” doing nothing and most of his time in the lunch room watching television. He said he had to wait for the last postman to return.
Mr Bowen said his back has become worse over the years but he has learned to live with the pain “like a toothache.” He said he could lift and carry small letter trays and small parcels and used to count the parcels. “How boring is that?” he said. But he had pain every day “like a throb.” He said he takes Panadeine Forte and Panadol, two each, every day.
At another point in his evidence he said his back is “the same.” He said on a good day it is pain free and on a bad day he can’t put his underwear on. He said that in any week he will have one bad day and one good day and all the rest are fair days. He said that on a fair day he will do gardening and mowing and will ignore his pain. He is having no treatment at the moment. He said he would not be able, now, to drive to Katoomba because sitting in his car for that long causes him great pain. He said he cannot sit or stand for any length of time because of the constant pain.
Mr Bowen agreed that he saw his employer as responsible for all of his medical conditions, including his hypertension. He described his stress at work and the worry of not knowing what he would be doing from day to day as putting a great deal of pressure on him.
Mr Bowen said he uses a walking stick at home to get out of his lounge chair but does not usually use it outside the house. However, he agreed he had told Dr Maxwell, who examined him for Australia Post, that he always walked with the stick he had brought to the examination.
He said that uneven ground makes him very unsteady and that he needs to use a stick to walk on slopes. He said that even on a good day he avoids walking on the footpath outside his house because of the potholes and their effect on his back.
A video recording of Mr Bowen on three occasions showed a level of activity, including sitting and walking, that was in stark contrast to his descriptions of the limitations he suffers as a result of his back injury.
Mr Bowen is shown on 22 January 2011 walking carrying bags of groceries freely. He is also shown, at his son’s cricket game, to remain seated in his Pajero vehicle, from 2.02 pm until 4.33pm without any movement or break. He said the seats in that car are very comfortable.
The video evidence shows Mr Bowen, on 13 May 2011, in his Pajero towing a trailer loaded with firewood. Mr Bowen agreed that he had collected the firewood with his son after driving 15 km of rough unsealed road. He said he has a licence to go into the bush and cut timber with a chainsaw, generally from fallen timber lying on the ground. He said he bends over and chainsaws it while it is lying on the ground. He described the chainsaw as very light and with a long handle and blade which meant he did not have to bend very far. His son loads it into the trailer. First he said he does not load and then he said “I do a bit.” He agreed he has to attach the trailer to the four wheel drive car. Mr Bowen agreed that the video showed a heavily laden trailer with many large pieces of timber. He also agreed that walking through the bush to find and cut timber involves walking over uneven ground.
The video evidence also showed Mr Bowen, at 3.07pm on 19 November 2011, at another cricket match. For much of the match he is shown seated on a fold up chair which he agrees has a seat that is at a level below his knees. He is shown leaning back in the chair with his foot resting on a railing. He rises from the seat with a can in his hand and walks down a hill to a garbage bin. He sits back down and places both feet on the railing. Mr Bowen said, “It must have been one of my good days.”
At 3.28pm he is shown walking over a grassed area to talk to a group of people. He does not use a walking stick and no walking stick is evident in any of the video material. At 3.35pm Mr Bowen walks down the hill to his car and while there raises his right leg to rest his foot on the car. At 3.41pm he is shown standing at the railing near his folding chair with his right foot resting on the railing above knee height. Later he is shown to raise his arms in the air while turning quickly – apparently to celebrate a run. On more than one occasion he is shown getting out of the chair without using his arms. After about two hours Mr Bowen is shown to fold up the chair with no apparent difficulty and to get into the car with equal apparent ease, twisting at one point, with one foot in the car and the other on the ground to see what is happening behind him.
When asked, Mr Bowen agreed that he cleans his car and particularly the tyre rims himself, bending down to apply degreaser.
We note that the duties set out for Mr Bowen in Stages 1 and 2 of the January 2007 rehabilitation plan were:
Stage 1
Dates: 31.01.07 – 28.02.07
Hours: Normal hours: 7.21hours a day, 5 days a week
Duties Restrictions/Comments Adhoc Office duties
· Seated duties
· Computer input-paperwork for (householders)
Sorting Mis sorts at VSD frame
· Colleague places small letter tray on desk
· Involves placing letters into apertures
· Alternate between sitting and standing every 10 minutes or more frequently as required.
· Up to 30 minutes maximum per shift
· Stand to reach upper apertures
Bag rack sorting:
· Colleague to position PDO trolley (mail in large letter tray) next to bag racks
· Involves taking small or large letters from trolley with large letter tray inserted to elevate base (at waist height only)
· Up to 10 minutes at a time then alternate to seated task
· 30 minutes maximum per shift
· Move feet to turn (to avoid twisting) and step towards the bag rack (to avoid reaching)
· No bending or rotation of back
· Work at own pace
· Adhere to lifting restriction
Private Box Sorting
· Involves placement of mail into private boxes (few boxes)
· No lifting small letter trays
· Avoid bending the back when accessing lower apertures, bend the knees instead.
· No bending or rotation of back
Housekeeping:
· Push empty trolleys to V sort frames as require
Medical Restrictions:
· No long distance walking
· No motorcycle riding
Noted previous Permanent Medical Restriction (Dr Gliksman):
· No motorcycle riding
· No bending or below knee work
· No long distance walking, no walking on uneven surfaces, up/down hills or repetitive stair climbing
· No lifting over 5kg
· No repetitive lifting
· No pushing/pulling over 8kg
· Avoid maintenance of prolonged fixed postures
· No rotation of lumbar spine
OH&S Recommendations:
· Adhere to medical restrictions as above
· Lifting up to 5kg
· Alternate seated and standing tasks every 10 minutes or more frequently as required
· Perform pause breaks regularly
· No parcel counting duty
· No V sorting
· No tie off or removing bags from the bag racks
· No lifting small/large letter trays or depot bags
· Only to push or pull empty PDO trolleys
· If experiencing lower back discomfort discontinue task and contract GP/Rehabilitation Consultant
Stage 2
1 Week
Dates: TBA
Hours: Normal Hours: 7.21 hours a day, 5 days a week
Duties Restrictions/Comments V sorting
· Involves sorting to middle shelves up to 10 minutes at a time
· Up to 20 minutes maximum per shift
· Every 10 minutes alternate to seated task (for 10 minutes) such as redirections, return to sender or missorts
· No clearing down or bundling
· Medical approval to be obtained prior to commencement of this task
Adhoc Office duties
· Seated duties
· Computer input-paperwork for (householders)
Sorting Mis sorts at VSD frame
· Colleague places small letter tray on desk
· Involves placing letters into apertures
· Alternate between sitting and standing every 10 minutes or more frequently as required.
· Up to 30 minutes maximum per shift
· Stand to reach upper apertures
Bag rack sorting:
· Colleague to position PDO trolley (mail in large letter tray) next to bag racks
· Involves taking small or large letters from trolley with large letter tray inserted to elevate base (at waist height only) and dropping letters into specific bag (at waist height only)
· Occasional taking of small parcels (less than 5kg) from large letter tray within trolley to be dropped
· Up to 10 minutes at a time then alternate to seated task
· 30 minutes maximum per shift
· Move feet to turn (to avoid twisting) and step towards the bag rack (to avoid reaching)
· No bending or rotation of back
· Work at own pace
· Adhere to lifting restriction
Private Box Sorting
· Involves placement of mail into private boxes (few boxes)
· No lifting small letter trays
· Avoid bending the back when accessing lower apertures, bend the knees instead.
· No bending or rotation of back
Housekeeping:
· Push empty trolleys to V sort frames as required
OH&S Recommendations:
· Alternate seated and standing tasks every 10 minutes or more frequently as required
· No lifting over 5kg
· No motorcycle riding
· No bending or below knee work
· No long distance walking, no walking on uneven surfaces, up/down hills or repetitive stair climbing
· No repetitive lifting
· No pushing/pulling over 8kg
· Avoid maintenance of prolonged fixed postures
· No rotation of lumbar spine
· Perform pause breaks regularly
· No parcel counting duty
· No lifting small/large letter trays or depot bags
· Only to push or pull empty PDO trolleys
· If experiencing lower back discomfort discontinue task and contract GP/Rehabilitation Consultant
We note the significant restrictions that apply not only in Stage 1 of the plan, but also in Stage 2.
Dr Bodel, orthopaedic surgeon, who had examined Mr Bowen on two occasions on 2009 and 2011, considered Mr Bowen had suffered some structural damage to his spine (L4/L5 disc bulging) as a result of the incident on the motorbike and considered him to be totally incapacitated for work. He agreed that he relied on the description of symptoms that Mr Bowen had given him. He also agreed that it can be difficult to identify structural damage resulting from trauma when there has been an earlier incidence of pain. He said he had not been aware of Mr Bowen’s earlier bout of back pain.
Dr Bodel said he considered the incident on the motorbike was a “significant jarring”. He said that he was mindful that, except for a short occurrence earlier, his degenerative spine disease had produced no symptoms until the motorbike incident. He initially said he considered the motorbike accident to be the most likely cause of disc bulging, but later modified this opinion to say that the disc bulge may be due to the motorbike incident. He said he found Mr Bowen to be disgruntled with his employer.
Dr Boundy, sports physician, treated Mr Bowen on referral by his general practitioner. Ultimately, in a report dated 21 July 2006, Dr Boundy said:
I do not believe there is very much physically wrong with Mr Bowen. Unfortunately seven years of inactivity have given him the time to ruminate over his present position in life and he is extremely disgruntled. The anger that he has within is directed at his employer and justified by his perception of pain in the lower back.
Mr Bowen’s perception has been affected by the chronicity of his problem. This makes him a poor historian as he tends to focus on things in his life that he perceives as being negative influences. This distorts his narrative such that he will say at one stage that he is “just sitting around all day” and then later will say that his pain is aggravated by having to bend and sort mail or pick boxes up from under the counter.
I do not believe that Mr Bowen is being deliberately obstructive or lying but, as stated previously, his perception of his world has been tainted by the frustration that he experiences at not returning to gainful employment.
Dr Boundy recommended that Mr Bowen return to motorcycle deliveries. In making this recommendation, Dr Boundy suggested that Dr McGill, rheumatologist, be consulted.
Dr McGill had first examined Mr Bowen in 2001 and later in 2004, 2006, 2009 and 2011. We note that Mr Bowen had told Dr McGill in 2004 that he intended to resign from work on his 55th birthday.
On examination in 2006 Dr McGill concluded that Mr Bowen would not be fit for motorcycle duties, but was fit to continue his then current light duties and to attempt a walking beat. He said there would be no possibility of this damaging his back.
In oral evidence Dr McGill said Mr Bowen has chronic degenerative change in his back and facet joint arthritis. He said he has no radiculopathy. He said that pain from such a condition can vary between individuals.
When Dr McGill was referred to Mr Bowen’s general practitioner’s clinical notes for 26 June 1999, noting a development of low back pain radiating into his right leg and a need for x-ray, he said Mr Bowen had told him he never had back pain before the motorbike incident in September 1999. He said his initial diagnosis of ongoing aggravation from the motorbike incident had been dependent on a history of no previous back pain.
When Dr McGill examined Mr Bowen in 2011 he concluded that he exhibited a non-organic pattern. He referred to his use of cottonwool to test sensitivity to touch and said he found no consistent loss of sensation between examination with eyes closed and examination with eyes open. He also noted inconsistency with the examination by Dr Bodel one month earlier where Dr Bodel found tenderness at the lumbar-sacral junction and he, Dr McGill, found none.
Dr McGill considered Mr Bowen’s reported use of a walking stick very strange since, in his view, it would provide no benefit for a bad low back. He considered that from 2009 Mr Bowen had been exhibiting non-organic pain behaviour. He explained that he did not think Mr Bowen was exhibiting significant functional overlay, but he considered that people can become emotionally involved in what they see as a “struggle” and suggested that for Mr Bowen to say that one whole half of his body had become desensitised is purely non-organic. Dr McGill considered that Mr Bowen’s capacity is no different now to what it was when he left work in 2007.
Dr Maxwell, orthopaedic surgeon, considered that Mr Bowen’s pathology did not account for his symptoms. He said he didn’t think Mr Bowen was as disabled as he, Mr Bowen, thought he was. He saw no reason why he could not do full-time light duties.
He agreed with Dr Boundy’s assessment that there were considerable psychosocial aspects to Mr Bowen’s symptoms and said that if a person has a persistent perception of pain then that person’s symptoms will be persistent. He did not consider Mr Bowen was being deliberately obstructive, but he did consider his walking stick was an affectation. He considered that Mr Bowen’s reaction to the motorbike incident and to subsequent treatment has become habitual.
We were referred to Mr Bowen’s successful claim for disability support pension in 2007 as support for the proposition that he is incapacitated for work. We requested that the Centrelink documents recording the grant of pension be obtained. Written submissions were made by the parties on the significance of the documents.
Following an appeal and re-assessment in September 2007, Centrelink granted Mr Bowen a disability support pension from 6 July 2007. On first assessment by job capacity assessor, Katrina Anderson, registered nurse, Mr Bowen was found to have 20 points under the Impairment Tables of the Social Security Act, in respect of his spine condition, thereby satisfying one of the requirements for eligibility for the pension. Mr Bowen had reported “no functional impact” in respect of his hypertension and the assessor awarded no points for hypertension under the Tables. However, Mr Bowen was found not to have a “continuing inability to work”, another requirement for eligibility. The first assessment referred to the advice of Mr Bowen’s general practitioner, Dr Suresh, that Mr Bowen could work for 23-29 hours in a physically appropriate job. The assessor reported that the reason Mr Bowen had left his employment was the “feeling that he was not being retained at work in a productive role and receiving little support from his employer”. The assessor also reported that Mr Bowen was not interested in seeking vocational rehabilitation assistance and that he reported an ability to sit for only 15 minutes, stand for 10 minutes and drive for 20 minutes. This conflicts with the activities undertaken by Mr Bowen as shown on the video evidence before the Tribunal.
It appears that Mr Bowen exercised his right to have the decision to refuse his claim for disability support pension reviewed and a further job capacity assessment was conducted in September 2007. This second assessment, conducted by job capacity assessor, Gemma Single, occupational therapist, concluded that Mr Bowen’s spinal condition and his hypertension attract an impairment rating of 40 points. The assessor reported that Mr Bowen had left his job at Australia Post because he “was constantly experiencing pain”. We note this conflicts with the evidence he gave to the Tribunal. The assessor also referred to a letter from Dr Suresh, Mr Bowen’s general practitioner, dated 24 August 2007 that says Mr Bowen is only fit for work of up to 10 hours per week. This conflicts with his reported advice to the previous assessor. Mr Bowen also told the assessor he has exacerbation of nose bleeds (now frequent) and dizziness from hypertension when he is stressed or worried. She described him as “highly stressed, expressing anger at previous employer, system, etc.” The assessor found he has a “very limited capacity for work” in the order of “0-7 hours per week” and saw no potential for improvement with intervention.
We find the contrast between these two assessments surprising. The main difference in evidence and material available to the two assessors, seems to be the very different assessments by Dr Suresh, in the space of two months, of his patient’s capacity for work, the difference in reasons given by Mr Bowen for why he left his job and the emergence of some functional impact of his hypertension. We are not persuaded that the fact that Mr Bowen was granted disability support pension by Centrelink establishes that he is in fact incapacitated for work. The surprising changes in his general practitioner’s assessment of work capacity, Mr Bowen’s advice to the second assessor that he left his job because of his pain (and not because he was bored and demoralised) and his reports to the first assessor of his limitations on sitting, standing and driving make us view the grant of disability support pension with caution. We do not consider it takes the matter any further.
We find there are many inconsistencies between Mr Bowen’s reported symptoms to various doctors, his symptoms as reported in his statements and evidence at different times and the activities that were shown on the video evidence with his own concessions, prompted by the video, as to activities he engages in. We found that Mr Bowen is given to overstatement of his symptoms. Sitting for over two hours in a car watching cricket, walking with no apparent difficulty on uneven ground and on a slope, rising from a folding chair unaided by his arms, let alone a walking stick, bending to use a chain saw to cut wood after walking over bushland to find it, applying degreaser to the wheel rims of his car all contrast markedly with the limitations he reported to the Tribunal, to doctors and to managers at work. Given these inconsistencies, we find persuasive the opinions of Drs McGill, Boundy and Maxwell as to Mr Bowen’s habitual perception of the extent of his symptoms and the development of non-organic symptomatology. We find that the symptoms he has reported have been significantly overstated by him. We do not conclude that Mr Bowen was purposely dishonest in these overstatements, but we do not consider he accurately stated his symptoms. He exhibits significant illness behaviour. We are mindful that assessing doctors, including those who advised on suitable restrictions for Mr Bowen, must rely on his reports of his symptoms.
We are also mindful of Mr Bowen’s boredom at work and his intention, reported to Dr McGill as early as 2004, to resign from his employment. He agreed in evidence that boredom was the reason he resigned rather than an inability to perform the duties he was given or those that he was being encouraged to do in rehabilitation.
We are also persuaded by the opinions of Drs McGill and Maxwell that he could now perform those duties on a full-time basis. We prefer their opinions to that of Dr Bodel because we consider them to be accompanied by insight into Mr Bowen’s resentment and disgruntlement with his employer and with his situation generally and his habitual perception of the extent of his symptoms. We are also particularly persuaded by Dr McGill’s clinical examination in 2011 and his opinion that Mr Bowen has exhibited non-organic symptomatology for some time.
We find that Mr Bowen had the capacity to work full-time in the restricted and other duties listed in the first two stages of the rehabilitation plan in place when he resigned his employment and that he retains that capacity now.
WAS SUITABLE EMPLOYMENT MADE AVAILABLE TO MR BOWEN?
When Mr Bowen returned to work in November 1999, he was given light duties for six hours per day, three days per week, doing redirections, scanning and administrative duties. By February 2000 his restrictions were on lifting above five kilograms, heavy pushing, long distance walking, walking on uneven ground, climbing and motorcycle riding. By 2001 Mr Bowen was working on the floor using a small forklift, unloading ULDs (unit loading devices). He also did some V sorting and did large letters and redirections. In July/August 2004 Mr Bowen had a flare up of his symptoms after doing V sorting. Flare ups continued over the years and when they occurred he would take some days off work, supported by a certificate from his general practitioner, Dr Suresh. His fitness for duties was regularly assessed by doctors including Dr McGill, Rheumatologist, and Dr Boundy, Sports Physician. He underwent various treatments including CT guided injections in his back, physiotherapy and hydrotherapy. By 2004 he reported to his rehabilitation counsellor that he felt the best he had in four years and nearly pain free. The counsellor’s notes show that consideration was being given to a modified walking beat for Mr Bowen at that time. However, he was still on permanent work restrictions on the advice of his general practitioner or the facility nominated doctor and the counsellor noted that Dr Boundy’s approval would be needed before a walking beat could be made available to Mr Bowen. It appears that approval was not forthcoming.
By December 2004 the rehabilitation counsellor’s notes show that redeployment options were being explored together with the possibility of Mr Bowen being moved to the Lithgow or Bathurst delivery centres. The notes show that he was concerned not to have to travel any further distance to work. The notes also record a comment from Mr Bowen’s manager that it is “unmotivating” for him not have enough work to do in a day. The file shows that the case was “closed” in February 2005.
Further rehabilitation plans were devised and amended for Mr Bowen in 2006 and 2007, with Mr Bowen tendering his resignation shortly after the last plan in January 2007, effective on his birthday on 5 July 2007.
Ms Leilah Verlinde (formerly Nelson) was the rehabilitation counsellor assigned to Mr Bowen from 2004. She said that until about 2005 rehabilitation was focused on redeployment and it was a matter for Mr Bowen’s managers to make any possible arrangements. Mr Bowen’s file was then closed. She said that from 2006, following a period of incapacity for all work, Mr Bowen’s case was reviewed and it was thought that upgrading to a small walking beat should be considered.
Ms Verlinde described the arrangement of rehabilitation plans into “stages” and said that Mr Bowen never progressed beyond ‘Stage 1’. She said she once tried to upgrade him to ‘Stage 2’ but after a week he complained of pain, was further medically assessed by a facility nominated doctor and then placed back on Stage 1. She said that a person’s reports of pain are treated very seriously in rehabilitation.
Ms Verlinde said that Mr Bowen’s complaints of pain when driving to work hampered the rehabilitation efforts she made on his behalf, because that meant he was unable to travel further to other sites where additional duties might be available. Ms Verlinde said that after Mr Bowen tendered his resignation and until he left Australia Post some five months later, he took a lot of sick days. She said this hampered rehabilitation efforts because he was not available to participate in or pursue the plan and upgrade to other duties.
Ms Verlinde said she spoke to Mr Bowen on the telephone approximately once each month and met him twice at Katoomba while she was his rehabilitation counsellor. She agreed that in Stage 1 of the plan the tasks on which restrictions had been placed amounted to just 1 ½ hours per day, but other tasks such as seated computer work, were not time restricted. She considered there was adequate work in unrestricted areas for Mr Bowen to do. She agreed that if a person was at a workplace but had no work to do then that would not amount to suitable employment. However, Ms Verlinde said Mr Bowen did have meaningful and useful work to do.
Ms Verlinde said that the proposal to upgrade Mr Bowen to a small walking beat would depend on his having moved to a later stage of the plan. She said a specific beat had been identified as available to him.
We note that Mr Bowen complained of pain when he did attempt Stage 2 of the plan and that when the new plan was introduced in 2007 Mr Bowen tendered his resignation soon after and in the remaining five months of his employment took a large number of sick days.
We note a passage in Dr Boundy’s report of 21 July 2006 in which he refers to Mr Bowen’s perception affected by the “chronicity of his problem” and the way this makes him a poor historian. He referred to Mr Bowen’s distorted narrative and gave the example of his saying at one stage that he is “just sitting around all day” and then later saying that his pain is aggravated by having to bend and sort mail or pick boxes up from under the counter.
We consider this an important observation. We consider it likely that Mr Bowen has exaggerated the extent to which he was “just sitting around doing nothing.”
However, we note the recorded comment of Mr Bowen’s manager that he did not have enough work to do in a day. We accept that in a small centre a person with significant restrictions, fixed at the lowest stage of a rehabilitation plan, whose only attempt at moving to the next stage resulted in reversion after one week, would be difficult to accommodate with work for all of his working hours. It was submitted for Mr Bowen that Australia Post did nothing to arrange redeployment to another centre where restricted duties were more abundant. However, this is speculative because we have no evidence of what was or was not done by Australia Post to investigate or attempt redeployment of Mr Bowen.
“Suitable employment” is defined in section 4 of the Act as:
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).
We note that Mr Bowen was never asked to change his place of residence, even though he complained about the amount of driving he had to do from Portland to Katoomba as a contributor to his symptoms. We are not aware of any evidence to suggest nor any submission that Mr Bowen was not suitable for rehabilitation. There is no evidence to suggest that the duties set out in Stage 1 and Stage 2 of the rehabilitation plan were inappropriate to Mr Bowen’s age, experience, training, language and other skills. If anything, they demanded very little from him.
Mr Bowen said that he was bored because there was not enough for him to do. He said this frustrated and demoralised him. We accept that was so. However, we have already found that he overstated his symptoms. We accept that it was on the basis of his reported symptoms that he was certified to revert to Stage 1 of the plan after one week of attempting Stage 2. We accept Ms Verlinde’s evidence that in rehabilitation, reliance is placed by Australia Post on injured workers’ reports of pain. We note that after he resigned his employment, he took a great deal of sick leave. We find that this behaviour together had the effect of frustrating his rehabilitation plan and obstructing his movement towards upgrading to the next stage with additional duties towards the walking beat that had been identified for him by Australia Post. We consider this to be a relevant matter of the kind provided for in paragraph (a)(iv) of the definition of “suitable employment.”
On balance, and even though the Katoomba centre did not generate sufficient light duties for Mr Bowen to be occupied for all of his working hours, we find that the employment made available to him by Australia Post was suitable in all the circumstances. Those circumstances include Mr Bowen’s overstatement of his symptoms and the consequences of that for the implementation of his rehabilitation plan.
WAS MR BOWEN’S RELINQUISHING OF HIS SUITABLE EMPLOYMENT REASONABLE?
Section 19 (4) of the Act provides for a range of matters to be taken into account in determining the amount per week an employee is able to earn in suitable employment. These include, relevantly:
… (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.
Mr Bowen said he had “had enough” of doing nothing every day for eight years. He said he could have gone to TAFE instead and learned computer skills.
He said that over the years he dealt with four different rehabilitation managers. The last one was Leilah Verlinde. He said he did not tell her he spent long periods doing nothing because he was “too embarrassed.” He said he tried to do Stage 2 of the rehabilitation Plan (which involved some V sorting) and the pain was so bad he had to go and see the facility nominated doctor at Leura. Mr Bowen said Ms Verlinde would come to the Katoomba Delivery centre early in the morning and talk to his manager and talk to him. He said “she didn’t see me sitting in the lunch room because she was only there in the morning.”
Mr Bowen said that when he resigned from Australia Post he applied for a job at Bunning’s Hardware and “got knocked back.” He said he disclosed his back problem. He has made no other applications for work. Mr Bowen said he lived on his long service leave for a while and then applied for disability support pension which he was granted after an appeal. He applied for a lump sum payment of his superannuation for total and permanent disablement and was successful.
Mr Bowen complained that he was never offered a job at Lithgow or Bathurst, both of which are closer to his home. He said he is able to drive to Lithgow and to Bathurst, but now he could not drive to Katoomba. He said that if he could be driven to work at Katoomba he would “go back and do whatever they wanted.”
Mr Bowen mentioned that he had been charged before the Australia Post disciplinary tribunal and was given a 12 month good behaviour bond.
He said he would love to return to work, but he lives in an area where there is no industry. He agreed he resigned because he was bored. He also said:
They changed my shift too much. You can’t plan social things when your shift keeps changing.
Mr Bowen’s evidence was contradictory. On the one hand he said he would “love to return to work” and would do anything that Australia Post asked him to do. On the other hand he said he resigned because the work was “meaningless” and made him bored and demoralised. He applied for one job after he resigned, was unsuccessful and then made no further attempt.
We have found that Mr Bowen overstates his symptoms. We have also found that he is fit to do the work that was available to him in Stages 1 and 2 of the rehabilitation plan in place when he resigned. We have found that work to be suitable employment in all the circumstances, even though it did not fill all of his time.
Having reached these conclusions, we consider that Mr Bowen’s relinquishing of his suitable employment was not reasonable. Even though it did not fill all of his time at work, it was not reasonable of him to leave that employment, when his own overstating of his symptoms obstructed his progression through his rehabilitation plan towards additional and more rewarding duties – and ultimately towards employment that did not bore or demoralise him.
For these reasons we consider that the full amount of the payment available to him in his suitable employment with Australia Post and relinquished by him in July 2007 should be included in any calculation of compensation under section 19 of the Act.
DECISION
The Tribunal affirms the decision under review
I certify that the preceding 79 (seventy -nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr Hadia Muktar, Member .....[Sgd]...................................................................
Associate
Dated 11 October 2012
Dates of hearing 9 & 10 February, 30 March 2012 Date final submissions received 7 August 2012 Counsel for the Applicant Mr Leo Grey Solicitors for the Applicant Firths - The Compensation Lawyers Counsel for the Respondent Mr Paul Jones Solicitors for the Respondent DLA Piper
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