Kacanic and Australian Postal Corporation - [2001] AATA 524

DECISION AND REASONS FOR DECISION [2001] AATA 524

ADMINISTRATIVE APPEALS TRIBUNAL )

) N2000/66

GENERAL ADMINISTRATIVE DIVISION       )
         Re      SUZANNE MARIE KACANIC (DAVIES)
  Applicant
         And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member Dr P Lynch Member

Date13 June 2001
PlaceSydney

Decision        The Administrative Appeals Tribunal notes that the reviewable decision dated 25 September 1997 held that the Applicant, Mrs Suzanne Marie Kacanic (Davies), suffered a compensable injury on 27 July 1995 within the terms of the Safety Rehabilitation and Compensation Act 1988 and that she was incapacitated for work until 1 March 1996. The Administrative Appeals Tribunal varies the decision and finds that:   As the Applicant did not return to work on a graduated return to work program provided on and from 1 March 1996, no liability of the Respondent arose from that date, and there has been no loss of earnings because the Applicant resigned from the employ of the Respondent on 18 March 1998. No costs are payable pursuant to the Safety Rehabilitation and Compensation Act 1988.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Remittal from Federal Court – whether Applicant was able to work for the period 1 March 1996 to 17 April 2001 – whether Applicant failed to comply with a reasonable return to work program - whether the Applicant voluntarily removed herself from suitable employment by resigning on 18 March 1998 – decision varied

LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 14 and 19

CASE LAW
Kacanic and Australian Postal Corporation (AAT 12243, 25 September 1997)

REASONS FOR DECISION

13 June 2001 Ms G Ettinger Senior Member Dr P Lynch Member

The matter before the Administrative Appeals Tribunal ("the Tribunal") was the remittal by consent pursuant to a decision of his Honour Justice Madgwick of the Federal Court on 9 December 1999. The terms of the remittal were as follows:
"The Applicant's appeal be remitted to the Administrative Appeals Tribunal to determine only the extent of loss of income from 1 March 1996 to date."
Prior to the hearing before this Tribunal, there was correspondence between the parties, and a directions hearing to determine the intent of the parties in agreeing to consider "only the extent of the loss of income from 1 March 1996 to date". In this respect, Ms Dejean wrote to the Tribunal on 19 March 2001 and stated that:
"As discussed, I confirm that "to date" in the consent orders remitting the matter to the AAT means "ongoing". That is, the parties consider that the AAT has jurisdiction to determine liability from March 1996 to the date of the new hearing in the AAT on 17 April 2001. The applicant concurs."
The Applicant, Ms Suzanne Kacanic who now prefers to be known by her former name, Davies, was represented by Mr N Mayell of counsel instructed by Mr W Ghioni of Ghioni Solicitors and the Respondent Australian Postal Corporation ("Australia Post"), by Miss R Henderson of counsel, instructed by Ms H Dejean of the Australian Government Solicitor.
For the sake of completeness it is noted that the Tribunal was reconstituted with Senior Member Ettinger and Member Dr P Lynch sitting together. Member Sr M McGovern AO RSM has retired from the Tribunal and was therefore not available to sit further in this matter.
BACKGROUND
The matter before the earlier Tribunal had concerned an injury suffered by Mrs Davies in the course of her work as a postal delivery officer. The Tribunal was mindful that the finding of the original Tribunal, constituted by Senior Member Ettinger and Members McGovern and Lynch on 25 September 1997, was that:
"Ms Suzanne Kacanic suffered a compensable injury within the terms of the Safety Rehabilitation and Compensation Act 1988, and was incapacitated for work on and from 27 July 1995 until 1 March 1996 inclusive."

Mr Myall submitted that the Applicant had not been able to re-enter the workplace in any capacity since 1 March 1996 due to her continuing incapacity.
The question before the Tribunal was then to assess the position of the Applicant with regard to a return to work on and from 1 March 1996 to 17 April 2001 (the date of the present hearing), and to determine the extent of loss of income from 1 March 1996 to date.
The Tribunal was mindful that the Applicant had not returned to work since she suffered a severe anxiety attack on 27 July 1995. She did not commence a graduated return to work on 1 March 1996 as envisaged by the previous Tribunal and by Dr Chaudhary, and she resigned from Australia Post on 18 March 1998.
ISSUE BEFORE THE TRIBUNAL
The issues to be decided were:

Whether the Applicant, by reason of psychological injury, was unable to resume work for the Respondent from 1 March 1996;
Her situation to date, that is 17 April 2001; and
To determine the extent of loss of income from 1 March 1996 to date.

In order to determine whether the Applicant was able to return to work, the Tribunal was also required to consider:
·The extent of the Applicant's capacity to work after 1 March 1996 and the role of any work-related psychological injury;
·Whether the Applicant failed to comply with a reasonable return to work program;
·Whether the Applicant voluntarily removed herself from suitable employment by resigning on 18 March 1998;

LEGISLATION

The relevant legislation in this matter was the Safety Rehabilitation and Compensation Act 1988 ("the Act"), particularly section 14, which provides:
"Compensation for injuries
14. (1)Subject to this Part, Comcare is liable to pay Compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."
Section 19 of the Act outlines the compensation payable for injuries resulting in incapacity, which follows as relevant:
"Compensation for injuries resulting in incapacity
19. (1)…
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) …
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or 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)…
(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."
The phrase "suitable employment" is defined in section 4 of the Act as follows:
""suitable employment", in relation to an employee who has suffered an injury in respect of which compensation is payable under the Act, means:
(a)in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee's age, experience, training, language and other skills;
(ii)the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available 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);"

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), all files and exhibits relating to the previous Hearing at the Tribunal and the Federal Court, and the following Exhibits:
ITEM DATE NAME
Medical Report of Dr M Chaudhary        15 June 1998           Exhibit A1
Medical Report of Dr M Chaudhary         23 July 1998 Exhibit A2
Medical Report of Dr M Chaudhary         12 April 2000 Exhibit A3
Medical Report of Dr M Chaudhary         13 November 2000 Exhibit A4
All Exhibits from Original Tribunal Hearing  Exhibit R1

Oral evidence was given by the Applicant and Dr M Chaudhary, treating psychiatrist.
EVIDENCE OF THE APPLICANT - MS SUZANNE MARIE DAVIES
Ms Davies in her oral evidence, told the Tribunal that she understood that the previous Tribunal had considered that she was able to engage in a graduated return to work program to re-enter the workforce from 1 March 1996. She said that "they [the Respondent] needed to find me suitable hours."
The Tribunal was mindful that Ms Davies' initial application was listed for hearing on 11 and 12 February 1997, and again on 1 and 2 July 1997, and that the issue of offers of employment made by Australia Post dated to early 1996. Ms Davies detailed her recollections of offers of employment made by Australia Post regarding a graduated return to work program from early 1996 onwards.
Ms Davies told the Tribunal in respect of returning to work in March 1996, that there had been offers of work made on 23 February 1996, 29 February 1996 and in March and April 1996. She said that she was not sure if they had been conveyed to her orally or in writing. She said that an offer to work on a graduated return was offered consisting of mail sorting from 3:00 am to 5:00 am which was not viable, because she was the sole carer for her two young children whose health and behaviour were problematic. She said that Australia Post had "put her on the spot." Ms Davies said that she had sold her car to her sister-in-law and had had no transport to attend at work at the hours proposed, even when she was offered employment starting at 5:00 am instead of the earlier 3:00 am offer.
Ms Davies agreed she had worked shifts commencing at 5:30 or 5:45 am for many years, but with great difficulty because she had small children and had to employ baby sitters. She said that she had, for 10 years, applied for a transfer.
When asked how her health was between 2 March and 24 April 1996, Ms Davies said that it had not been good for the whole period, to the present, and that she could not have worked. Ms Davies told the Tribunal that her husband, who had suffered a heart attack in 1995, left her, returning some three months later to share the house, but said that they lived separated under the same roof. She said that he did not assist with the children because he was working, but stayed in the house until it was sold in July 2000. Ms Davies said they had divorced in August 1998.
Further to her return to work, Ms Davies said that she understood a letter was sent to her from Australia Post during 1997. However, she said that she had not received it, and did not know what it concerned. Ms Davies said that on her return from her home in New Zealand in March or April 1997, she contacted her employer. She could not recall what the subject of the telephone conversation concerned. She also said that she replied to the "second letter" adding that that she was only aware of the return to work offer because a second letter was sent following up the first which she had not received. Ms Davies said that she visited New Zealand a number of times, including in 1997, and for Easter 1999 and 2000.
When asked whether she could have returned to work in 1997, Ms Davies replied that she could not have, because she had a lot of problems at that time. She said that she could not afford to register her car and was in the process of losing her house. Ms Davies also said that her lawyers had been pressuring her for money and at the time, she did not know which problem to solve first. Ms Davies said she had been suffering stress since 1983.
When asked why she resigned in 1998, Ms Davies said that she was suffering from stress and pressure, was not well and was in financial difficulties. She said that she required the money from her superannuation to save her house, and that her psychiatrist agreed with her decision.
Ms Davies said that she was currently under the care of Dr Chaudhary, and had last visited him the week prior to this hearing. She said that she took herbal medicines for a time, but had recently agreed to return to medicine prescribed by Dr Chaudhary. When asked to comment on Dr Chaudhary's evidence that she had not been complying with the drug regime he prescribed, Ms Davies explained that the drugs affected her concentration and driving capabilities, and that she had wanted to try different ways of healing. She also said that no medication would stop her negative thoughts and thoughts about death.
Ms Davies said that she was working looking after her children, and that she would not now be able to carry out her former duties at Australia Post. She told the Tribunal that looking after her eight year old son and 11 year old daughter was a full-time job because neither was well, they did not attend school, and there were behavioural and emotional problems to deal with.
EVIDENCE OF DR M CHAUDHARY - PSYCHIATRIST
Dr Chaudhary whose reports were before the Tribunal at T30 (dated 11 September 1995), and as Exhibits A1 (15 June 1998), Exhibit A2 (23 July 1998), Exhibit A3 (12 April 2000) and Exhibit A4 (13 November 2000), also gave oral evidence before the Tribunal. The Tribunal also noted a report of Dr Chaudhary of 20 November 1996 which was before the previous Tribunal as Exhibit A1.
Dr Chaudhary said that he had been treating Ms Davies since August 1995, and prescribing anti-depressants, anti-psychotic and anxiolytic drugs for her, but that she had been non-compliant at certain periods. The Tribunal noted also that there had been gaps in the times he had been treating the Applicant.
When asked how Ms Davies was in 1995, Dr Chaudhary read from his 1995 reports, stating that Ms Davies was at that time, "overtired and wound up". He said that she was suffering stress and pressures at work.
When asked whether at 1 March 1996 anything had happened to change his opinion about Ms Davies' condition, Dr Chaudhary answered "no". He said that she had been unable to resume work at 1 March 1996. This was in direct contradiction of later evidence as noted below, and in direct contradiction of advice he gave to the rehabilitation consultant in March 1996.
Dr Chaudhary did not have his clinical notes with him at the Tribunal and gave evidence which did not assist the Tribunal in its deliberations. When asked about a graduated return to work for Ms Davies, Dr Chaudhary contradicted himself in that at this Hearing, he opined that a graduated return for the Applicant should have been working 9 am – 5 pm two days a week, whereas notes of the rehabilitation officer of 8 February 1996, indicated he had given a medical certificate for a return to work in "three weeks" and found that the Applicant was fit for suitable duties 3 hours per day from 9.30 am to 12:30 pm.
Dr Chaudhary, in his reports which were before the Tribunal, opined that at 1 March 1996 Ms Davies had improved sufficiently to take on her pre-injury duties with restrictions; he added the return should be gradual and not too many demands should be made of her. When reminded that he knew of the stress in her job and yet recommended a return to the same environment, Dr Chaudhary said that Ms Davies could have done the same job on trial with reduced hours. In his report of 20 November 1996 he said that the Applicant was still unfit to work on a fulltime basis.
When asked whether Ms Davies had deteriorated or improved, Dr Chaudhary replied that Ms Davies had been deteriorating since 1995. He had said in his report of 15 June 1998 (paragraph 5 of Exhibit A1), that Ms Davies suffered an "adjustment disorder caused by stress at work and then further deterioration due to other contributory factors e.g. her husband's health, marital problems, problems with the children and other environmental factors." Dr Chaudhary predicted a poor recovery both in 1998 and at the present Hearing, and opined that from the date of the present Hearing, it would be one to two years before the Applicant's condition would improve.
When asked about Dr McMurdo's views regarding a return to work, (report of 15 March 1996, Exhibit R1 before the previous Tribunal), Dr Chaudhary referred the Tribunal to paragraph 2 of Exhibit A4, his report of 13 November 2000. In paragraph 2 of Exhibit A4, Dr Chaudhary commented on the fact that Dr McMurdo opined that Ms Davies was fit for her pre-injury employment "a few weeks" before the date of his report (15 March 1996). He stated however (in paragraph 2), that:
"At the date of his report [Dr McMurdo] 15.3.96 he considered her to be fit for pre-injury employment. I would like to advise regarding this point that I do agree with Dr. McMurdo's report and would like to advise that the report I submitted to you on 12.4.00 does verify his findings …
I would also like to comment on his statement that he considered her to be fit for her pre-injury employment which was taken into consideration at the time and rehabilitation was suggested but this rehabilitation did fail and she could not get back to her pre-injury employment. I remember Suzanne made herself available for such rehabilitation and no attempts were made to get her back to pre-injury employment and this unsuccessful outcome was due to inability of Australia Post to provide her suitable guidance or direction at the time and I feel that Australia Post did fail in their duty of care of an employee."
The Tribunal found Dr Chaudhary's statements in the paragraph above regarding the lack of attempts by Australia Post to assist the Applicant with a return to work incorrect in the light of the notes of the rehabilitation consultants which were before the Tribunal and excerpts of which are quoted later on in these reasons for decision.
Dr Chaudhary was also asked about his views of Dr Roldan's evidence. His comments were at paragraph 3 of his report Exhibit A4. Essentially Dr Chaudhary disagreed with Dr Roldan that Ms Davies suffered a personality disorder or disorders.
In his report of 12 April 2000, (Exhibit A3) Dr Chaudhary contradicted himself in that he said on page 7 firstly: "I feel she is still unfit to work on a fulltime basis …" and a few paragraphs further in a section headed "Prognosis": "Her prognosis remains guarded as her condition is not fully established … and in my opinion she remains unfit for work at present."
Dr Chaudhary said that presently he had been unable to persuade Ms Davies to take her medication as prescribed. He said that her condition had deteriorated, and that she had psychotic and bizarre thoughts. Dr Chaudhary said that involuntary hospitalisation was not warranted at present but that he was concerned about the Applicant, and the problems of the children.
OTHER MEDICAL EVIDENCE

For the sake of completeness the Tribunal noted there was no other new medical evidence before the Tribunal but that the reports of Dr F Roldan, clinical psychologist, and Dr McMurdo, psychiatrist, which were in evidence before the previous Tribunal were before this Tribunal.
In summary, Dr McMurdo in his report of 15 March 1996 opined that Ms Davies was suffering from an adjustment disorder with anxiety and depression. He considered that she had been totally unfit for any employment from late July 1995 until "a few weeks" before the date of his report. At the date of the report he considered her to be fit for her pre-injury employment.
Dr Roldan's two reports of 10 March 1996 and 11 April 1996 were before the previous Tribunal as well as before this Hearing. In summary Dr Roldan said that Ms Davies:
"had a record of significant and preexisting psychosocial instability and that this was consistent with Borderline Personality Disorder. … I also pointed out that this disorder can cause considerable social and occupational interference for periods at a time and that complications of this disorder include Major Depression and Brief Reactive Psychosis. I also noted that this disorder is unrelated to Mrs Kacanic's work conditions."
Dr Roldan also opined that:
"… I also noted that Mrs Kacanic reported experiencing (what appears to have been) thought disorder for some time after her final day at work on 27.07.1995 and that it was possible that within the context of her pre-existing Borderline Personality Disorder and the impact of the life stressors … [marital difficulties, problems with child rearing, her husband's alleged heart attack, and her children's alleged physical difficulties], she may have experienced symptoms of a Brief Reactive Psychosis for a time."

SUBMISSIONS AND CONCLUSIONS

The Tribunal had to consider its previous decision in Kacanic and Australian Postal Corporation (AAT 12243, 25 September 1997) that Ms Davies should be paid compensation for a work related incapacity from 27 July 1995 to 28 February 1996, and its finding at paragraph 124 of the decision which found that Ms Davies could return to work on a graduated return to work on and from 1 March 1996 to date.
For the sake of completeness, the Tribunal noted that with the consent of the parties, his Honour Justice Madgwick of the Federal Court remitted the matter for reconsideration to the Tribunal on 9 December 1999. The terms of the remittal were as follows:
"The Applicant's appeal be remitted to the Administrative Appeals Tribunal to determine only the extent of loss of income from 1 March 1996 to date."
It was agreed by the parties and the Tribunal accepted that "to date" was intended to mean to the date of the Hearing of 17 April 2001.
The undisputed evidence before the Tribunal was that Ms Davies did not return to work with the Respondent at any time after 27 July 1995, did not return to work on a graduated return to work program as envisaged by the previous Tribunal, and that she resigned from the employ of the Australian Postal Corporation on 18 March 1998.
Mr Mayell submitted that Ms Davies was offered a gradual re-entry to her former employment consisting of an offer to commence work for three hours from 3:00 am daily, and later when she refused (the Tribunal noted on the basis of her child care duties), a 5:00 am start for two hours daily. Mr Mayell submitted that Dr Chaudhary had recommended Ms Davies working 9:00 am – 5:00 pm two days a week, and that she was not offered those hours at the relevant time. He emphasised that Ms Davies had wanted to return to work, but that the hours were not realistic. He submitted that it was clear now that Ms Davies now suffered new problems, and that her condition had deteriorated, as detailed by Dr Chaudhary in his evidence before the Tribunal.
Miss Henderson made submissions with reference to the report of the rehabilitation service which had been Exhibit R4 before the previously constituted Tribunal. She noted at PT36/124 that Dr Chaudhary had certified Ms Davies "unfit to 30.11.95 due to stress". Miss Henderson then drew attention to various other notations made by the rehabilitation service with regard to Ms Davies' graduated return to work.
Miss Henderson did not disagree that early hours for sorting were offered to Ms Davies, but submitted that there was no work available commencing at 9:30 am and extending to 12.30 pm in the sorting area. Miss Henderson submitted that Ms Davies declined to work, not on the basis of her capability to work, but of other factors such as the problems with her children, the lack of transport because she had sold her car, and other domestic non-work related problems. The Tribunal agreed with these submissions.
Mr Mayell referred the Tribunal to Dr Chaudhary's report at Exhibit A1 dated 15 June 1998, in particular to paragraph 5, and his diagnosis of adjustment disorder, noting also that Dr Chaudhary had then opined that the prognosis for Ms Davies' recovery and return to work due to her illness and other factors was poor. The Tribunal was mindful that this report was written after Ms Davies' resignation from Australia Post on 18 March 1998.
Mr Mayell also referred to the report of Dr McMurdo of 15 March 1996, submitting that Dr McMurdo had agreed with Dr Chaudhary that Ms Davies suffered an adjustment disorder with anxiety and depression which caused her to be unfit for employment for a period from July 1995. He submitted that equally, Dr McMurdo had opined that a structured re-entry to the work force was appropriate by an unspecified date some weeks before the date of the report of 15 March 1996. This accorded with the findings of the previous Tribunal in holding that Ms Davies could return on a graduated return to work on 1 March 1996.
Miss Henderson also referred to the records of the rehabilitation service, in particular notes dated 22 April 1996 where it was recorded that Ms Davies reported to the rehabilitation service that the following had been discussed with Dr Chaudhary:
"1) Suzanne feels she would be able to do diffr't duties w/ approp. training.
2) Suzanne said she won't be capable of u/grading to f/time work for 6-12 mths.
3) Suzanne said she feels capable of returning to her normal P.De'y O duties however only if the hrs were diff't + e.g. 9am – 5pm.
…
- SRC said that if duties are avail that they will be offered to her however if her sitn has changed she may need to look @ other work alternatives. Suzanne said that she has applied for a transfer to PFWO (Retail) about 1 mth ago ..."
Mr Mayell submitted however, that given what the Tribunal now knew, it could find that the aggravation of Ms Davies' condition suffered in July 1995 would extend beyond 1 March 1996.
The Tribunal was mindful of its role in the present matter, and the findings made on the previous occasion, based on the evidence then before it, holding that Ms Davies could return to work on a graduated program from 1 March 1996.
As previously constituted, the Tribunal had before it as Exhibit R4, the Rehabilitation Service – Case Memorandum. On this occasion, particularly in assessing any loss of income Ms Davies may have suffered from 1 March 1996 to date, the Tribunal has extracted passages from that document to illustrate what efforts were made to assist with the graduated return to work Ms Davies was to have made from 1 March 1996, noting that she did not return at all after leaving on 27 July 1995. In context of the graduated return to work on 1 March 1996, the Tribunal noted a selection of entries as follows:
"8.2.96 … Suzanne reported that she feels much better than she was & keen to RTW & feels that she could do any duties so long as it's only for 3 hrs p/day.
27.2.96 … PM advised that there are no duties avail @ 9:30-12.30 times. most of private box & primary sorting is already completed by this time. DM will talk it over with PDC3 and AM & look @ options & get back to SRC …
28.2.96 … SRC called to discuss RTW – sold car to sister-in-law & she can only have access to car @ the hours stated 9:30 am
28/2/96 Suzanne suggested she do some delivery of mis-sorts. SRC advised that these duties are not avail & that there are other employee/s (compensable) who have been supplied …
6.3.96 SRC discussed latest offer of employ't being private box sorting @ 5am –8am … Suzanne explained that this is not pos … Suzanne asked why no one has said that she's had an application in for a transfer for 8 year & SRC advised her again to put this appn in writing….Suzanne said that due to Δ's in family sitn she is unable to take up duties earlier that (sic) 9am & would need a transfer to a daytime position. SRC explained that this is outside the bounds of rehab & would need to be taken up by Suzanne as a request for transfer. Suzanne decided that she will need to stay off work until suitable duties can be found @ diff't hr
21.3.96 … SRC advised Suzanne that s.d's not avail to accommodate 9:30 am start & it's unlikely that duties will be able to be made avail @ this time in the future. SRC advised however that AM will look at other facilities but the best he could do would be 6am. Suzanne said she cannot accommodate this … AM requesting consideration of duties elsewhere in the Network …
15/4/96. … Bruce advised req't for transfer to retail network. Been referred to Greg Hartman & Paul Cruise, A/Murs retail in early April '96 & f/up again on 7/5/96 …
Bruce also advised rec's that mail-O duties at Leightonfield or Clyde may be options as duties/shifts are between 9-5 pm. Rec'd comp also look at parcel P.O. …
23/5/96: A/G SRC called Suzanne at home. (5.10pm) Advised at this stage no suitable duties in retail but A/Mans will continue to review availability & are … transfer submitted …
24/5/96: Lynda Leggatt super'r IMC called A/G SRC advised IMC Clyde can offer suitable duties on a rtw program i.e. 3 hrs/day 5 days/w Lynda advised only problem is their trainer is currently involved in manual handling training …"
The Tribunal concluded from the evidence of Ms Davies, and careful reading of the notes of the Rehabilitation Service and other evidence and submissions, that efforts were made to offer Ms Davies a graduated return to work from 1 March 1996, commencing with contact with her in February 1996. The Tribunal was mindful that for personal reasons as discussed above, she was unable to accept the work offered, and the attempt to find work in the retail or other areas appears to have been without success. The Tribunal noted also that Ms Davies removed herself from the workplace and travelled to New Zealand on several occasions.
In considering any loss of income, the Tribunal was mindful that the previous Tribunal had noted (paragraph 123 of Kacanic (supra)): "Ms Kacanic submitted that she would have been able to work from February 1996 with rehabilitation but that since December 1996 in the lead-up to her matter coming before the Tribunal, her symptoms 'erupted' again, and that at the date of the first part of the hearing in February 1997, she was not capable of working." There was however no medical evidence to back up the statement, and Dr Chaudhary in his report of 20 November 1996 stated that: " I feel she is still unfit to work on a fulltime basis …" He did not indicate that the Applicant could not work at all. However, Ms Davies resigned from Australia Post on 18 March 1998 and took herself out of the workplace.
Mindful that all these reports were dated after the resignation by Ms Davies from Australia Post, the Tribunal noted the further evidence of Dr Chaudhary, the treating psychiatrist, who opined in his reports of 15 June 1998 (Exhibit A1), 23 July 1998 (Exhibit A2), 12 April 2000 (Exhibit A3) and 13 November 2000 (Exhibit A4) as follows:
"Exhibit A1: "Prognosis remains very poor and it is my opinion that if this woman is not given some help her life is at risk and despite of the fact that she has been taking medication which I am having problems in achieving full compliance she has not improved over this period of time.
It is my opinion that her prognosis remains poor and she is unlikely to make recovery in the foreseeable future."
Exhibit A2: "Mrs. Kacanic has been my patient since August, 1995 and she has been diagnosed as suffering from psychiatric conditions which have not responded to the treatment because of the chronic nature of her illness."
Exhibit A3: "Her prognosis remains guarded as her condition is not fully established and it is also my opinion that her medical conditions as outlined under the Diagnosis heading were related to work environment and in my opinion she remains unfit for work at present."
Exhibit A4: "Adjustment disorder caused by stress at work and further deterioration due to other contributing factors, her husband's health, marital problems, problems with the children and other environmental factors."
Dr Chaudhary also opined that the present incapacity Ms Davies suffers is not related to her employment. Dr Chaudhary opined that Ms Davies, whose condition has been deteriorating over a period of time, is now totally incapacitated for work due to her marriage problems, financial pressures and psychiatric condition, but that it is not work related.
Although, it was not raised specifically at the Hearing, the Tribunal has, for the purposes of completeness, turned to consider whether the Applicant failed to comply with a reasonable return to work program pursuant to section 19 of the Act, or refused an offer of suitable employment by resigning. As relevant, section 19 follows:
"19(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)…
(h)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(i)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or 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;
(j)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;
(k)…
(l)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
(m)any other matter that Comcare considers relevant."
The Tribunal was mindful that the phrase "suitable employment" is defined in section 4 of the Act as follows:
""suitable employment", in relation to an employee who has suffered an injury in respect of which compensation is payable under the Act, means:
(a)in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee's age, experience, training, language and other skills;
(ii)the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available 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);"
Turning to the evidence before it, the Tribunal noted that a number of offers of employment were made to the Applicant which involved three hours work from 3:00 am daily and two hours work from 5:00 am daily. Her treating psychiatrist, Dr Chaudhary, in evidence before this Tribunal, recommended that the Applicant was able to return to work on a graduated return to work program involving working 9:00 am – 5:00 pm two days a week. The Tribunal was also mindful that he contradicted his earlier opinion that the Applicant was fit for suitable duties 3 hours per day from 9:30 am to 12:30 pm.
The Tribunal noted that Miss Henderson did not disagree that early hours for sorting were offered to Ms Davies, but submitted that there was no work starting at 9:30 am and extending to 12:30 pm in the sorting area.
In considering whether Ms Davies failed to engage in a rehabilitation plan or refused an offer of suitable employment pursuant to section 19(4) of the Act, and whether it was reasonable in all the circumstances, the Tribunal took into account all the evidence before it. The Tribunal was mindful that attempts had been made to restructure Ms Davies' employment, and that her inability to undertake the graduated return to work offered was as a result of her personal problems with her children, the sale of her car, her travel to New Zealand, and other personal problems rather than the workplace. The Tribunal considered that the efforts made to return the Applicant on a graduated return to work program were reasonable within the terms of the legislation.
The Tribunal finds from the medical evidence and that of Ms Davies as discussed with the rehabilitation service, that at 1 March 1996 the Applicant was well enough to return to work on a graduated program which may have lasted up to a year, or indeed more on the basis of Dr Chaudhary's report of 20 November 1996. However, she did not even attempt work. There can thus not be any loss of income for which the Respondent can be liable.
In respect of her resignation from work on 18 March 1998, the Tribunal noted that the reasons given by the Applicant was that she was suffering from stress, pressure, was not well and was in financial difficulties. However, the Tribunal agrees with the contention of the Respondent that "the applicant … voluntarily removed herself from suitable employment by resigning on 18 March 1998, and is therefore disentitled to compensation from that date onwards".
The Tribunal is mindful that since her resignation from Australia Post, Ms Davies has not engaged in any employment nor, according to the medical evidence, has she been able to. In this respect, the Tribunal notes that Dr Chaudhary opined that the present incapacity Ms Davies suffers is not related to her employment, adding that she is now totally incapacitated for work due to her marriage problems, financial pressures and her psychiatric condition. The Tribunal expresses its concerns for the fact that Ms Davies is unwell, noting however that her problems are not related to the workplace.
Accordingly, the Tribunal finds that the Applicant did not return to work on a graduated return to work from 1 March 1996 when she should and could have, so that there is no liability of the Respondent. As the Applicant voluntarily removed herself from the workplace 18 March 1998, there is no liability of the Respondent on and from that date. The Applicant has suffered no loss of earnings for which the Respondent has liability.
DECISION
The Administrative Appeals Tribunal notes that the reviewable decision dated 25 September 1997 held that the Applicant, Mrs Suzanne Marie Kacanic (Davies), suffered a compensable injury on 27 July 1995 within the terms of the Safety Rehabilitation and Compensation Act 1988 and that she was incapacitated for work until 1 March 1996.

The Administrative Appeals Tribunal varies the decision and finds that:

As the Applicant did not return to work on a graduated return to work program provided on and from 1 March 1996, no liability of the Respondent arose from that date and there has been no loss of earnings because the Applicant resigned from the employ of the Respondent on 18 March 1998.
No costs are payable pursuant to the Safety Rehabilitation and Compensation Act 1988.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member Dr P Lynch Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  17 April 2001
Date of Decision  13 June 2001
Counsel for the Applicant        Mr N Myall
Solicitor for the Applicant         Mr W Ghioni
Counsel for the Respondent    Miss R Henderson
Solicitor for the Respondent    Ms H Dejean