Keen and Telstra Corporation Limited
[2003] AATA 585
•23 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 585
ADMINISTRATIVE APPEALS TRIBUNAL N 2001/750; N 2002/730
GENERAL ADMINISTRATIVE DIVISION
Re: La-raine Lesley Keen
Applicant
And: Telstra Corporation Limited
Respondent
DECISION
Tribunal:P.J. Lindsay, Senior Member, Dr P.D.Lynch, Member, Mr S. Webb, Member
Date: 23 June 2003
Place: Sydney
Decision: N2001/750
The Tribunal sets aside the decision under review and remits the matter to the respondent with the following directions:
i) the applicant is entitled to payment of compensation for incapacity pursuant to s.19 of the Safety, Rehabilitation and Compensation Act 1988 from 30 December 1997; and
ii) the amount that the applicant is able to earn in suitable employment is nil;iii) the respondent is to assess any compensation owing in respect of the applicant’s incapacity payments.
N 2002/730 : The Tribunal affirms the decision under review.
The respondent is liable to pay the applicant's costs of these proceedings in accordance with the Tribunal’s General Practice Direction.
. . . . . . . . .. . . . . . . . . . . . . . . .
Senior Member
© Commonwealth of Australia (2003)
CATCHWORDS
COMPENSATION – injury to neck and shoulder – entitlement to incapacity payments - whether applicant’s injury results in incapacity for work – whether incapacity for work caused by other factors - decision set aside – applicant’s depression – whether work related - whether employer liable for compensation – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 Act: ss.4(1),(9); 8(1),(7); 14(1); 16(1),(6),(7),(8); 19(1),(2),(3),(4); 24(1),(2),(3),(4),(5),(6),(7); 27(1); 28(1),(3),(4),(5),(7), (9),(10)
Martin v Australia Postal Corporation [2000] FCA 1646
Re Farah and Austalian Postal Corporation 91997) AATA 11849
Comcare v Lees (1999) 56 ALD 84
Comcare v Rowe [2002] FCA 1034
Re Prica and Comcare (1996) 44 ALD 46
Telstra Corporation Ltd v Slater [2001] FCA 149
Woodbridge v Comcare (1994) 20 AAR 196
Esam v ASP Ship Management (1998) 87 FCR 82
Re West and Comcare (AAT 9320, 23 February 1994)
Pulitano v Telstra Corporation Limited [1998] 212 FCA (16 February 1998)REASONS FOR DECISION
P.J. Lindsay, Senior Member, Dr P.D. Lynch and Mr S. Webb, Members
1. Ms La-raine Lesley Keen (the applicant) seeks review of two decisions made by Telstra Corporation Limited (the respondent). Proceeding N2001/750 concerns a decision by the respondent to cease liability from 30 December 1997 for weekly compensation payments to the applicant. Proceeding N2002/730 concerns a decision by the respondent denying the applicant’s claim for compensation for depression.
2. At the hearing of this application, Ms Keen was represented by Mr M. Vincent of counsel. The respondent was represented by Mr N. Polin of counsel. The applicant gave evidence. The Tribunal had before it documents (T documents) prepared under s.37 of the Administrative Appeals Tribunal Act1975 (the AAT Act) and the exhibits tendered during the hearing.
background
3. The applicant was born on 14 May 1952 and is single without dependants. At the age of 23 she suffered a penetrating injury to her right eye, as a result of which she has a visual impairment (T53). In 1981, the applicant was involved in a motor vehicle accident causing a whiplash injury (T13) which was settled in 1987 in the District Court. The applicant’s father died in 1982, causing her to suffer a “period on disturbed behaviour” (ST9 folio 35) culminating in a “nervous breakdown” (ST4 folio 11).
4. The applicant commenced employment with the PMG, later Telecom Australia, now Telstra Corporation Limited on 6 April 1970 and ceased this employment on 29 December 1997 (Ex A9). The applicant’s work history with the respondent from 1991 was:
- Immediately prior to and on 8 August 1991: she was employed on a full time permanent basis as an AO4 (T4 folio 8).
-On 8 August 1991: she was injured and went off work.
-On 2 September 1991: she returned to work (T106) resuming her previous duties which are recorded as “clerical and computer work” (T4).
-During the period 3 September 1991 to 29 December 1997, Ms Keen was absent from work for short periods for medical reasons on forty six occasions, five of which explicitly refer to her neck injury, and was absent from work on fifteen occasions on either recreation leave or long service leave (T106 folios 193-199).
-During 1996: the applicant was promoted to the position of Regional Manager, National Directory Services. She was able to adjust her working arrangements to accommodate difficulties she experienced as a result of her neck injury.
-In 1997: National Directory Services merged with the Yellow Pages. The applicant ceased her employment with the respondent on 29 December 1997.
5. On 13 August 1991 the applicant filed an incident report form (T3) with the respondent. She reported that on 8 August 1991 at 3.00pm a man fell from a pole onto her head and neck during a training exercise at Binna Burra Lodge in Queensland, as a result of which she sustained injuries to her neck and left shoulder.
6. The applicant submitted a claim for compensation on 16 August 1991 for “neck and shoulder/muscle and soft tissue damage/whiplash left side” (T4). The respondent accepted liability for “muscular and ligamentous injury to the neck” by determination dated 2 October 1991 (T7). A determination approving incapacity payments followed, as did determinations approving payment of treatment expenses.
7. On 13 November 2000, the applicant advised the respondent of her claim for on-going incapacity payments, due to her incapacity for employment since 30 December 1997, the date of her employment separation from the respondent (T78).
8. On 10 December 2000 the applicant lodged a compensation claim for permanent impairment, claiming chronic neck and shoulder pain, limited movement in neck and back, constant headaches and depression. She was assessed by her treating doctor, Dr Fischer, General Practitioner, with a whole person impairment of the cervical spine of 15 per cent (T82 folios 128-138). Dr O’Keefe, Orthopaedic Surgeon, concurred with this assessment using Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”) on 6 February 2001 (T93 folio 163).
9. On 15 February 2001, a compensation delegate for the respondent determined (T95):
“1.In accordance with section 24 of the SRC Act the claimant suffers a 15% whole person impairment of the cervical spine.
2.In accordance with section 24 of the SRC Act the claimant is entitled to payment of compensation for 15% whole person impairment totalling $17,473.05.
3.In accordance with section 27 of the SRC Act the claimant is entitled to payment of compensation for non-economic loss totalling $16,089.77.”
First Reviewable Decision
10. On 6 March 2001 a compensation delegate for the respondent, recognising that the claim for incapacity payments was linked to medical opinions that her compensable injury had led to loss of neck function and chronic pain, determined that “the claimant is not entitled to payment of weekly incapacity payments from 30 December 1997” (T99). On 27 March 2001 the applicant requested a reconsideration of the primary decision (T102).
11. On 10 May 2001, a Reconsiderations Officer issued a reviewable decision (T108), affirming the primary decision of 6 March 2001. In the reasons for the decision the Reconsiderations Officer stated in paragraphs 17 and 18:
“17. It would therefore seem that although the claimant is no longer employed by Telstra her fitness to work in suitable duties is essentially the same as prior to her becoming redundant. Also despite the claimant’s contention that the claimant’s separation from Telstra was involuntary in view of the claimant’s advice that she intended to take a redundancy package rather than work for Yellow Pages indicates to me that she voluntarily left Telstra’s employment for reasons unrelated to her compensable condition. Therefore in the absence of evidence to the contrary it is considered that had the claimant not accepted voluntary redundancy from Telstra she would have continued to have been employed in suitable duties within her restrictions in accordance with the provision of the SRC Act in Yellow Pages at least.
18. In these circumstances I have decided to affirm the primary determination pursuant to Section 62(5) of the SRC Act and so find that Telstra Corporation Limited is not liable to pay incapacity payments to the claimant in respect of this claim on and from 30 December 1997.”
12. The applicant has applied to the Tribunal for review of the respondent’s decision of 10 May 2001 (Tribunal matter N2001/750).
Second Reviewable decision
13. On 1 November 2001, the applicant lodged a claim for workers compensation benefits with the respondent (ST5), stating:
“Depression has resumed from original neck injury on 8.8.91. I believe the ongoing pain, inability to find work as a result of injuries received, feelings of worthlessness, ongoing panic attacks and anxiety, have all played a part in my depression.”
14. On 8 April 2002, a compensation delegate for the respondent determined (ST11):
“On the evidence available I am not satisfied that La-Raine Keen has suffered any injury as a result of her claim for “depression” which was materially contributed to by her previous employment with Telstra”.
On 6 May 2002, the applicant sought a reconsideration of the primary decision (ST12), claiming depression and associated psychiatric sequelae relating to her original neck injury on 8 August 1991.
15. On 21 May 2002 a Reconsiderations Officer issued a reviewable decision (ST14), affirming the primary decision of 8 April 2002. In the reasons for the decision the Reconsiderations Officer stated in paragraphs 6-10:
“6. I note the ongoing liability in respect of the neck claim is in dispute and is a matter now before the Administrative Appeals Tribunal. There are a number of issues in dispute including whether or not the claimant’s redundancy was in fact voluntary and whether she is now capable of working full time in an alternate position.
7. The issue in this claim is whether or not the claimant is suffering from depression, associated with alleged on going pain and alleged inability to work.
8. The claimant appears to have reported in medical investigations to date that she suffered psychiatric symptoms following the death of her father in 1982 and subsequently suffered a nervous breakdown.
9. Dr Lewin, psychiatrist, suggested it was possible for the claimant to have suffered an adjustment disorder as part of her emotional response to pain symptoms during 1992 and possibly some time in 1993 and later. However, Dr Lewin apparently found that the claimant did not suffer from any current adjustment disorder and that psychiatric treatment was not warranted.
10. In these circumstances I have decided to affirm the primary determination pursuant to Section 62(5) of the SRC Act and so find that Telstra Corporation Limited is not liable to pay compensation to the claimant in respect of this claim.”
16. The applicant has applied to the Tribunal for review of the decision made on 21 May 2002 (Tribunal matter N2002/730).
17. The applicant moved from Sydney to Diamond Beach in early 2000 to be near her family. She is in receipt of a Disability Support Pension from Centrelink that was granted on 19 April 2001 for an initial period of one year. This was extended for a period of five years on 2 April 2002.
relevant legislation
18. The applicant is seeking payment of regular incapacity payments pursuant to her previously accepted injury to her cervical spine, and is seeking compensation for psychiatric sequelae from the cervical spine injury. If the applicant is to succeed in these claims the Tribunal must be satisfied that she has suffered the claimed injuries and that the respondent is liable to pay compensation under relevant sections of the Safety, Rehabilitation and Compensation Act 1988 Act (the Act).
19. The following provisions of the Act are relevant: ss 4(1) (“impairment”, “injury”, “permanent”, “suitable employment”), (9); 8(1),(7); 14(1); 16(1),(6),(7),(8); 19(1),(2),(3),(4); 24(1),(2),(3),(4),(5),(6),(7); 27(1); 28(1),(3),(4),(5),(7), (9),(10).
SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
…
permanent means likely to continue indefinitely;
…
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, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee’s age, experience, training, language and other skills;
(ii) the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter; and
(b) in any other case—any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
…
(9) A reference in this Act to an incapacity for work is a reference to 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 he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
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.
…
Compensation for injuries resulting in incapacity
19. (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.
…
(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:
…
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
…
(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.
…
evidence of ms keen
20. Ms Keen told the Tribunal that she had commenced work with Telstra in 1970, working as a filing clerk. In 1990 she had progressed to the position of Direct Marketing Manager for her business unit which was responsible for marketing the White Pages telephone directory. In 1991, she had been selected to attend a management training course. The object of one exercise was for a member of her group to escape over a fence, using only a pole and team effort. In attempting the exercise, a man climbed the pole and fell, landing on the applicant’s head and neck, knocking her to the ground. She briefly lost consciousness and noticed a tingling sensation in her arms and legs. She was taken to Nambour Hospital and X-rays of her neck were taken. The X-rays showed no break had occurred and she was told that there had been a shock to her spine and there were some ligament tears. Her neck was immobilised in a hard collar. She was told to go home to lie down and was given pain-killers. The next day she was flown to her home in Sydney and had physiotherapy treatments over the ensuing few months.
21. Ms Keen stated that she had about four weeks off work, during which period she was contacted by her national manager. The national manager had encouraged her to return to work, warning that workplace arrangements could change in her absence. She returned to work wearing her stiff collar and continued to take pain-killers, Panadeine Forte, which made her feel groggy and unable to work effectively. The applicant stated that the pain continued and she continued to take Panadeine Forte, taking on average 2 or 3 per day, and up to 8 or 10 per day on bad days. The respondent purchased her a special chair and modified her workstation.
22. Ms Keen told the Tribunal she felt that if she did not cope with her work, she would lose her job. She developed a number of coping mechanisms as a result. However, she stated that the pain affected her mood and that she had difficulty sleeping. She would experience muscle spasms, especially after work and on Sundays because she became very anxious about her work and had panic attacks at the thought of returning after a weekend. When she first had a panic attack she attended a hospital because she thought she was having a heart attack. She became concerned that if she did not cope with her job, she would be denied promotions. As her concerns grew, she became better at concealing the difficulties she was experiencing as a result of her injury. She described her ways of coping. Since she had her own office, Ms Keen said she would lay down if the pain-killers made her drowsy. Other times she would go and sit in her car or visit the sick room. She would frequently leave work early. She would work from home. The applicant told the Tribunal that from this time until she finished with Telstra in December 1997, she would work only a proportion of each day in the office, working only half days or even less sometimes. On some mornings she would ring Telstra, telling them that she was going to a meeting, when in fact, she was at home, coping with her symptoms. On other occasions, she would take flex days off because of her symptoms, even though she may have exhausted her flex leave credits. Similarly, she would take sick days off, providing fake reasons, such as “period pain”, “flu” or “headaches” to conceal the real reason for her absence.
23. Ms Keen said she was promoted to the position of Sales Manager in 1996, about twelve months prior to her leaving Telstra. This position gave her more freedom. She said she could take more time off and go out of the workplace more easily to try different treatments, such as acupuncture. Also her duties changed, so that she was spending only half her time working on the computer. She spent the remaining time supervising staff.
24. Ms Keen reported that she worked to achieve performance targets that would be set each year in consultation with her national manager. Reaching the target would mean getting a remunerative bonus, additional to her base salary. Generally, she had been successful and was paid a bonus. She was able to achieve the performance targets by working additional hours at home, where she had a computer on which she could work as it suited her.
25. Ms Keen told the Tribunal that she and other regional managers had been told in late 1996 or early 1997 that the business was to be restructured and outsourced. The new business, Pacific Access, which had hitherto been responsible for marketing the Yellow Pages, was in future going to produce and market both the Yellow Pages and the White Pages telephone directories. She stated that there was a blanket offer made to all staff that they could take up employment in the new business, Pacific Access, but to do so they must resign from Telstra. Ms Keen explained that when the redundancy offer was announced, staff were given three options. They could resign from Telstra and be re-employed by Pacific Access, or they could accept a voluntary redundancy, or they could seek redeployment within Telstra. Staff had until 31 October 1997, the day on which Pacific Access took over the business, to make up their minds.
26. Ms Keen explained that she had not been offered a specific position with Pacific Access. She had discussed the matter with Mr Peter Barclay, her national manager, and was told that there could be no guarantees of obtaining the same position. She did not want to go into a new position where she may not have the flexibility to cope with her symptoms at work. She thought, with her health problems, she would not be able to cope with a job such as a sales representative which would involve a lot of travelling by car and would end up being sacked in a matter of months.
27. Ms Keen told the Tribunal that, initially, she had opted for redeployment in Telstra, as she did not want to sacrifice her career and long service benefits with Telstra. Later, Mr Danny Porter, the National Manager, informed staff that whichever of the options they chose, they could change their minds until 31 October 1997. She explained that she registered with the respondent’s National Skills centre who were trying to find her a job within Telstra. If a job was found, she could take it and not proceed with the voluntary redundancy. If not, she could still go ahead with voluntary redundancy. With this in mind, the applicant opted for a voluntary redundancy, in the expectation that if a suitable position were found, she could change her mind. In the event that she was not successful finding a suitable position, she would take the redundancy package and seek other employment. However, during this period, Ms Keen said the workplace became very chaotic, with a lot of uncertainty about what people were doing. Her duties became less onerous. She negotiated to stay past the 31 October 1997 transfer date, when other workers were made redundant, until the end of December 1997, to assist the transition to the new business, but in fact was hoping to extend the period of time in which to find suitable redeployment within Telstra. During this period Ms Keen told the Tribunal that she needed to work only one hour per day to complete her duties, but was very stressed and was experiencing frequent muscle spasms in her neck and a lot of pain.
28. Ms Keen said that she was not successful finding redeployment through the National Skills Centre and finally accepted redundancy, with reluctance, in December 1997. She stated that she had not wanted to leave Telstra but, in the end, had no choice, as a result of which her redundancy was not really voluntary.
29. After leaving Telstra, Ms Keen said she took a holiday in January 1998 to try and relax. She attended a National Skills Centre course in February 1998. The course was run by Telstra to assist people who were redundant to improve their resumes. Ms Keen explained that, thereafter, she sought work by canvassing advertisements in the newspapers, sending her resume to the human resource departments of various companies, and ringing companies and friends in business. She recalled seeking work with a telecommunications company in North Sydney, but was precluded from applying as the company was affiliated with Telstra – staff who had taken redundancy were not permitted to apply for re-employment with Telstra for a two year period. She recalled making applications to Optus and to an organic fruit and vegetable shop operated by her friends. She claimed that she continued to seek work until September 1998, but was not successful because whenever she mentioned that she had special requirements relating to her back condition, she would be dropped from consideration. She was not successful in gaining an interview and became very stressed and depressed about her prospects.
30. In September 1998, Ms Keen said she applied for a Newstart Allowance from Centrelink, on which she remained “for about six months”. She stated that she had been given medical certificates stating that she was unfit for work during this period and remained on Newstart Allowance until she was assessed by Centrelink for a Disability Support Pension. She recalled being assessed by Dr Arad in December 2000, with the Disability Support Pension being granted on 19 April 2001. She said that initially she was placed on the Disability Support Pension for a twelve-month period, at the end of which period a medical review was conducted and her grant of Disability Support Pension was extended for five years.
31. Ms Keen described her condition now being worse than when she was employed by the respondent. The referred pain in her lower back, which she started experiencing in about 1995, is worse and does not go away. Whereas the panic attacks used to be more frequent, about once every week, due to stress at work with the respondent and after accepting voluntary redundancy, they are now infrequent. She reported that she started to get depressed after finishing work with the respondent and failing to find alternative employment because of her back condition.
32. Ms Keen stated that she went to her general practitioner about her depression and was referred to the St George Hospital Pain Clinic for assistance in managing her depression and pain. In 1998, she was prescribed antidepressant medication. She could not recall the name of the original medication prescribed, but recalled it making her feel drunk. After a couple of weeks she was placed on Endep, with an initial daily dose of 10 mg. This was subsequently increased to 85 mg daily to improve management of panic attacks and to assist her sleeping. The applicant said she became very stressed and depressed when she moved from Sydney to Diamond Beach near Taree, to be near her family, in early 2000.
33. Ms Keen stated that she continues to have a limited range of movement and cannot lift her hands over her head. She said she is very stiff and has constant pain in her neck, back and shoulders, and sometimes down her arms. She is anxious about her situation and depressed, suffering occasional panic attacks. She has very low self-esteem and low levels of confidence. She does not socialise or go out much, and has few friends. She cannot do the heavy housework, including vacuum cleaning and carrying shopping. She relies on help from her mother and brother to do these chores. She maintains a garden and grows vegetables, but relies on her brother to do any of the heavy work, such as digging. She is unable to pursue her previous interests in golf, boating and fishing, and leads a quiet withdrawn life in which her main pursuits are gardening and reading.
34. In cross-examination, Ms Keen denied that she was a dishonest person but admitted that she had misled her employer, providing false sick leave records and giving wrong information to her employer for her own benefit. She was challenged with discrepancies in the accounts she had given to different authorities and specialists regarding her symptoms, her daily activities and her history, but denied she was misleading the Tribunal, explaining the discrepancies as errors and misunderstandings. She explained that she had had a car accident in 1983 and that she had endured symptoms for at least four years thereafter, taking extensive periods of time off work. She explained that she did not feel a need to conceal her health problems because at that time she was not concerned about her career. She stated that her problems from the car accident had resolved completely before the accident in 1991. When challenged with information about her reported furniture restoration hobby in 1999, the applicant explained that this involved small items that were not heavy. Previously, before her injury, she had enjoyed going to furniture auctions, she reported, but now she cannot lift heavier items. In April 2000 she tried to assist her brother unload a heavy piece of furniture from a trailer and had been unable, falling and seriously injuring her knee.
35. When questioned about how she obtained Panadeine Forte, in the absence of frequent or regular visits to her doctor, Ms Keen stated that she had obtained Panadeine Forte from her mother, as her pensioner mother was able to obtain the drug at no cost. When questioned as to why she had not claimed reimbursement from the respondent for the cost of medication, Ms Keen admitted that she had sought reimbursement for the cost of acupuncture treatments but did not know that she could claim medication costs in the same way.
36. Ms Keen was asked why she had submitted a medical certificate for a three day period of sick leave in July 1997, which cited her neck problems as the cause, when previously she had provided the respondent with false reasons, such as “gastroenteritis” or “flu”, for periods of absence in order to conceal her neck problems. It was put to her that this happened to coincide with the only record of her visiting her doctor for her neck problems during an extended three year period. Ms Keen explained that she had to submit the medical certificate that was prepared by her doctor and that she could not lie in this situation. The reason for this, she suggested, was that periods of absence on sick leave of more than one or two days required a doctor’s certificate.
medical evidence
37. Dr Fischer, the applicant’s general practitioner, provided medical certificates and brief reports regarding the applicant’s cervical spine injury and related matters in the period after the injury in 1991. On 28 March 1996, Dr Fischer reported:
“I feel that La-Raine Keen will continue to have bouts of neck pain and stiffness in the future and will require rest and physiotherapy when they occur.” (T21)
Dr Fischer reported on 30 March 1999, in similar terms:
“I feel that she will continue to have exacerbations of her neck problems well into the future, and will require physiotherapy as necessary.” (T47)
On 19 April 2001, Dr Fischer reported an impairment rating of 20 per cent and a psychiatric impairment rating of 10 per cent, stating:
“Ms Keen has a long-standing cervical injury which has resulted in chronic head and shoulder pain…
As a result of her chronic pains she has had to cease working…
She had become markedly depressed…
Her depression has required long-term antidepressant therapy, without this she is unable to sleep, concentrate or function adequately.” (ExA5)
38. Dr J Govind, specialist occupational physician, reported on 18 September 2001 that the applicant was suffering injuries to the left and right C2/3 zygapophyseal joints, injuries to the left C5/6 and C6/7 zygapophyseal joints, and depression. Dr Govind concluded:
“Ms Keen has sustained a compressive and avulsion injury to the zygapophyseal joints as identified. Her current presentation can be directly attributed to the incident of August 8 1991. Both diagnostic and therapeutic modalities have been identified and her current condition precludes her from being gainfully employed for the foreseeable future.” (ExA2)
39. Dr D Arad, medical adviser to Health Services Australia, reported on 14 December 2000:
“Ms Keen has been suffering from:
1. Neck pain with loss of a half from the range of movements.
…
3. Depression with difficulties to cope and panic attacks. Ms Keen has improved since 6 months ago, her doctor plans to further increase her antidepressant dose and Ms Keen plans to have counseling.
Following today’s assessment I find that Ms Keen is unfit for employment for a period of 12 months. During this period she can have her treatment modified and commence counseling and hopefully continue to improve. A review in 12 months is recommended.” (ExA1)
40. Dr G Peretz, radiologist, reported on 29 August 1995:
“The joint spaces between the atlas and axis are abnormal. There is marked narrowing of the joint space of the left side. There is no evidence of bony erosion. The other intervertebral disc space and height and facet joint spaces appear normal. The intervertebral extra-foraminal appear normal.” (T16)
41. Dr C Bryant, radiologist, reported on 26 October 1998:
“Degenerative disc disease can be seen at C5/6 with disc narrowing and some osteophyte formation.
No neural foramen narrowing can be seen and there is no avulsed bone fragment.
There is a restricted range of cervical flexion.” (T40)
42. Dr I Bryan, orthapaedic surgeon, reported on 31 August 1995:
“The changes in the upper cervical spine at the level C1/C2 could account for her present symptoms in the upper cervical spine but are unlikely to account for symptoms in the left shoulder and left scapular region although there may be some symptoms referable to intervertebral disc disturbance at a lower level.
I believe she is in a reasonably stable condition. I feel that she is fit for work but may be subject to intermittent episodes such as she describes.” (T17)
43. Dr K Hume, orthopaedic surgeon, reported on 3 October 1997:
“1. I consider that Ms Keen has suffered damage to the C1/C2 disc.
2. On the balance of probabilities the condition is due to the incident on 8.8.91.
3. It appears likely that stress in her work in recent weeks has contributed to her pain. She has done a lot of computer work and stooping over a computer has also caused pain at times.
4. She is not totally incapacitated for work. She is working. Her employment is to be terminated on 31.10.97.” (T31, folio 52)
Dr Hume reported on the same day that Ms Keen has a 10 per cent permanent impairment of her neck which he thought was attributable to the incident that occurred on 8 August 1991.
44. Dr A Loefler, Surgeon, reported on 26 October 1998:
“The alignment of the cervical spine is normal. Formal examination of her range of motion demonstrates restricted movements and the patient complains of pain. Both shoulders have a normal range of motion. During the examination the patient complained of a cramp in her left supraspinatus. The examination of the lumbar spine was unremarkable. …
This lady’s history of neck pain seven years after her accident is suggestive of soft tissue injuries. I suspect that Ms Keen has developed a chronic pain syndrome as a result of her injuries. Today’s physical examination does not demonstrate a structural or neurological deficit.” (T41)
45. Dr J Steinweg, consultant sports physician, reported on 20 May 1999:
“Forward neck flexion and extension were limited by 25% due to pain. Lateral flexion and lateral rotation to either side were also limited to 50% due to pain.
Thoraco-lumbar rotation was limited by 25%.
…
This lady appears to be suffering from a chronic pain syndrome.
X-ray evidence of degenerative changes to C5/6 may have occurred as a result of the accident in 1991, but does not appear to be related to her present symptoms.
Her present condition appears to relate to her injury in 1991.” (T53)
Dr Steinweg further reported on 14 March 2000:
“Examination of the neck revealed an almost full range of flexion. However, extension, lateral rotation, and lateral flexion to either side were decreased by about 50%. Similarly, thoracic rotation was decreased by 50% bilaterally.
…
Generally her condition has improved since I last saw her. This is due to a combination of seeing a psychologist and Feldenkrais treatment.
…
Despite the improvement in her symptoms since I last saw her, it is most unlikely that she will make a full recovery.
As a result of the work related condition, future restrictions on employment include no computer work, no heavy lifting, no overhead work, and no sitting for more that half an hour before standing and walking for a few minutes.
She would be fit for employment such as office administration, receptionist work, etc.” (T72)
46. Dr D O’Keefe, orthopaedic surgeon, reported on 6 February 2001:
“Ms Keen is quite disabled due to pain and loss of function. She has had to basically cease work because of this.
She has lost more than half her normal range of movement, but does not appear to be amenable to any surgical treatment.
…
1. Ms Keen has a chronic stiff neck due to muscle spasm, but the actual pathology is unknown.
2. On the balance of probabilities, this condition resulted from the incident at work on 8 August 1991. I do not believe there are other external factors.
…
4. Ms Keen has major restriction in neck movement with chronic headaches. She is suffering an overlying depression and anxiety state as a result of the above.
…
8. In accordance with Table 9.6 of the ‘Guide to the Assessment of the Degree of Permanent Impairment’ Ms Keen has a 15% whole person impairment as a result of her cervical problems.” (T93)
47. Professor R Mitchell, consultant surgeon, reported on 20 September 2001:
“All her symptoms point to a lower neck degenerate C5/6 disc, on the balance of probability injured in the 1991 accident.
…
I think the injury in 1991 has been a significant factor in her present disc degenerative change, which would definitely reduce her capacity to obtain further employment, mainly because of her neck pain and stiffness.” (ExA8)
48. Mr B Wood, clinical psychologist, reported on 28 August 2001:
“My impression following the assessment was that Ms Keen was suffering from a chronic pain syndrome characterised by irritable mood, sleep disturbance, anxiety and behavioural deficits.
…
My prognosis at the final treatment session was that as long as Ms Keen continued to utilise her pain management techniques she would continue to function at a much improved level compared to before treatment commenced.” (ST3)
49. Dr R Mellick, consultant neurologist, reported on 18 October 2001 that following the Applicant’s injury in 1991 there was “no documentation of any structural spinal injury”. Dr Mellick considered the symptoms she reported at the time to have been ”consequent upon a transient neurological cause from which a full recovery occurred.” He concluded:
“At the time of my examination of her… there were no symptoms described by Ms Keen which alerted one to the likelihood of any neurological sequelae of the accident and the findings on physical examination did not enable one to identify any objective organic sign.
The features which are described above in relation to the findings on physical examination are not manifestations of any structural spinal abnormality but are clear indications of Illness Behaviour.
That is occurring in the context of a history of panic attacks and depression from which recovery is occurring.
…
When one considers the specifics of Ms Keen’s current condition one recognises that it may be defined as being the presence of a Chronic Pain Syndrome associated with psychological factors revealing themselves as episodes of depression and panic attacks. The history of the mood disorder is, however, of improvement.” (ExR2)
50. Mr D Spencer, clinical and consultant psychologist, reported on 24 October 2001:
“There seems clear evidence that Ms [Keen] has suffered (and continues to experience) significant anxiety, and problems with a Panic Disorder – without agoraphobia (as defined by DSM-IV).
There is also in my opinion, reason to believe that Ms Keen is suffering from a Pain Disorder – associated with both psychological factors and general medical condition (as defined by DSM-IV). This disorder has as its primary features the presence of pain that is the predominant focus of the clinical presentation, and is of sufficient severity to warrant clinical attention. The pain is severe/chronic enough to cause impairment in social, occupational or other important areas of functioning.” (ST4)
51. Dr R Lewin, consultant psychiatrist, reported on 1 February 2002:
“There are a number of factors in the past history which appear to be vulnerability factors. I note there may be a genetic loading.
…
It is common for those who have a long-term focus upon persisting pain symptoms to also report some low-grade depressive and anxiety symptoms. In this case I did not diagnose a separate anxiety or depressive disorder.
…
It is my opinion that there is no enduring impairment within my area of expertise as a psychiatrist.
…
It may well be that further medical management within the context of a pain clinic is indicated. This is a question for experts in other disciplines.
Ms Keen is not suffering from a psychiatric illness at the present time.
…
Ms Keen’s fitness for work at the present time depends essentially upon the evaluation of her physical condition.” (ST9)
submissions, consideration and findings
52. The Tribunal carefully considered all the evidence, the submissions of the parties, the relevant legislation and caselaw in order to make the correct and preferable decision in this matter.
53. Mr Polin submitted that the applicant was not a witness of truth, but someone who has lied repeatedly to gain advantage. He argued that she lied to her employer, lied to her doctors and lied to the Tribunal. The Tribunal does not accept this submission.
54. It was contended for the applicant that she attempted to conceal from her employer the extent of problems and pain she was experiencing as a result of the injury to her neck. There is little objective evidence to support this claim and the Tribunal finds it difficult to accept the applicant’s contention that she embarked on this course of concealment in reaction to a single comment made to her by the national manager while she was recuperating from her injury in 1991. However, the Tribunal accepts the contention that she was concerned to protect her reputation within Telstra in a climate of on-going restructuring and uncertainty. If, as claimed by the applicant, pain was the primary cause of discomfort, it is perhaps understandable, in the absence of obvious physical injury and any objective measurement of pain, that she may have experienced concern about whether or not she would be believed. The Tribunal finds it reasonable for a person in such circumstances to seek to protect their reputation and their employment prospects from any suspicion of malingering.
55. The Tribunal accepts the submission for the respondent that there are anomalies and inconsistencies in the applicant’s evidence, but, on balance, does not find these decisive. The essential character of her medical condition arising from the injury to her neck is revealed in the weight of medical opinion. This is not displaced by the challenge to her integrity. In sum, the Tribunal finds that the medical condition that the applicant suffered as a consequence of her injury is made out by medical specialists rather than by the inconsistencies to which the respondent has drawn attention. The Tribunal finds compelling the applicant’s admissions that she misled her employer in order to conceal the extent of her symptoms and in order to protect her reputation and increase her prospects of future employment during a time of uncertainty.
56. However, the Tribunal notes the issues raised by the respondent and recognises that some caution must be exercised when considering the uncorroborated evidence of the applicant. Thus, the Tribunal proceeds with due diligence and care to consider the matters of substance in the claims of the applicant.
Injury
57. The Tribunal finds that the original compensable injury, muscular and ligamentous injury to neck, for which Telstra accepted liability, resulted from an accident at work on 8 August 1991 in which a man fell from a pole onto the applicant’s head.
58. The applicant claims she suffers from chronic stiffness and pain in her neck, as well as depression that is a sequela to the compensable injury. It is to these matters the Tribunal now turns.
59. The Tribunal finds that the weight of the medical evidence reveals that the applicant suffers from persistent pain and loss of neck function, and from reactive depression and anxiety symptoms. The Tribunal is satisfied that the applicant’s continuing chronic neck pain and stiffness have arisen from the injury she sustained in 1991. The Tribunal is also satisfied that the applicant’s depression and anxiety symptoms are associated with her chronic pain and loss of neck function and should be considered, for present purposes, in that context.
60. The Tribunal is satisfied, however, that the medical evidence does not support a separate clinical diagnosis of depression. Doctors Fisher, Arad and O’Keefe note symptoms of depression but do not offer a clinical diagnosis. From the psychiatric point of view, Dr Lewin reports (ST9) it is likely that:
“Ms Keen developed an Adjustment Disorder as part of her emotional response to pain symptoms. This was probably present during 1992 and, possibly also, for some time during 1993 and later. The timeframe for the resolution of her symptoms is clear. It is possible that vulnerability factors led to a somewhat longer period of symptoms than might usually occur.”
Dr Lewin is of the opinion that Ms Keen is not suffering from a psychiatric illness and does not require psychiatric treatment. But he notes that:
“further management within the context of a pain clinic is indicated. This is a question for experts in other disciplines.” (ExR2, p9)
Mr Spencer, a clinical psychologist, diagnosed “significant anxiety, and problems with a Panic Disorder” as well as a “Pain Disorder…[that] is of sufficient severity to warrant clinical attention” (ST4). Mr Wood, a clinical psychologist with the St George Hospital Pain Clinic, reported that the applicant was suffering from :
“a chronic pain syndrome characterised by irritable mood, sleep disturbance, anxiety and behavioural deficits.” (ExR6, p2)
Dr Mellick, consultant neurologist qualified by the respondent, reported that:
“The symptoms which are currently present do not conform to any symptoms which can be regarded to represent consequences of a spinal lesion.. The symptoms are widespread and diffuse and unassociated with radiological or clinical abnormality. Ms Keen should be regarded, therefore, to exhibit a chronic pain syndrome, unassociated with objective features and with evidence of depression and panic attacks.” (ExR2)
61. Mr Vincent contended that the applicant’s dosage of anti-depressant medication has been increased as a result of the worsening of her symptoms. The Tribunal accepts that the dosage of Endep has increased from 10 milligrams per day to 85 milligrams per day. However, this does not confirm a diagnosis of clinical depression and, in absence of medical evidence of such a diagnosis, the Tribunal cannot so find. The Tribunal notes that anti-depressant medications are widely utilised in combination with analgesic medications in the management of pain disorders, being prescribed in lower dosages than would generally be required to treat clinical depressive illness.
62. On balance and in consideration of all the medical evidence, the Tribunal finds that the applicant is not suffering from a discrete clinical depression, but is suffering low-grade reactive depression.
63. This being the case the Tribunal finds that the applicant’s depression is not a discrete psychiatric disorder, but is symptomatic of the conditions that are associated with and caused by the applicant’s neck injury. The applicant’s depression must be viewed in that context. The Tribunal accepts Dr Lewin’s opinion that:
“It is common for those who have a long-term focus upon persisting pain symptoms to also report some low-grade depressive and anxiety symptoms. In this case I did not diagnose a separate anxiety or depressive disorder.” (ST9)
Accordingly, the Tribunal decides that the decision under review in respect of the applicant’s claim for compensation for depression must be affirmed.
64. The applicant continues to suffer, however, from a chronic stiff neck, associated chronic pain and loss of function of the neck. The Tribunal, on balance, is satisfied on the evidence Dr Steinweg, Dr O'Keefe and Professor Mitchell, that the stiff neck, chronic pain and loss of function are related to the musculo-ligamentous injury that she sustained in August 1991. Therefore the effects of the compensable injury are continuing.
Incapacity
65. Turning to the applicant's claim for incapacity payments, it is noted that the Tribunal has found that she is suffering from chronic pain, stiffness and loss of function of the neck that is related to her injury at work.
66. The Tribunal finds that the respondent accepted liability to pay compensation for the injury, muscular and ligamentous injury to neck, under s.14 of the Act in a determination dated 2 October 1991. Pursuant to a claim for incapacity payments from 30 December 1997 relating to this injury, the respondent determined that the applicant was not so entitled on 6 March 2001. Consequent upon a request for reconsideration, the respondent made a reviewable decision pursuant to s.62(5) of the Act on 10 May 2001 (T108, folio 202), affirming the primary decision..
67. The reviewable decision contemplated the applicability of s.21 of the Act, whereby the employee receives a lump sum benefit under a superannuation scheme on retiring from employment, voluntarily or otherwise. However, the parties elected not to make submissions on the applicability of this section, requesting the Tribunal to accept their agreement that this question be left open, as a question of fact, for consideration subsequent to the determination of the applicant’s entitlement to payment of compensation for incapacity. Accepting this agreement, the Tribunal notes that the amount of compensation payable under s.21 of the Act is to be worked out using the following formula:
AC – [SA/520 + SC]
Where AC is the amount of compensation that would have been payable to the employee for a week if s.19, other than s.19(6), of the Act had applied.
68. As to the determination of liability to pay compensation under s.14 of the Act, the Tribunal notes that the applicant lodged a claim for permanent injury and non-economic loss benefits in respect of “chronic neck and shoulder pain, limited movement in neck and back, constant headaches, depression” on 10 December 2000 (T96, folio 166). Relying on the medical reports of Dr Fischer and Dr O’Keefe, the respondent determined a 15 per cent whole person impairment in accordance with Table 9.6 of the Guide on 15 February 2001. In its reasons for the determination, the respondent noted Dr O’Keefe’s opinions that:
“the claimant has a chronic stiff neck due to muscle spasm although the actual pathology is unknown. He felt on the balance of probabilities the condition resulted from the incident at work on 8 August 1991. Dr O’Keefe considers the effects of the injury were permanent and had stabilised. He too was of the opinion that the percentage whole person impairment of the claimant’s cervical spine was 15% in accordance with Table 9.6 of the Guide.”
The respondent also took into account Dr Fischer’s opinions. These are reported in the reasons for the determination:
“Dr Fischer states the claimant suffers from severe whiplash injury, chronic pain syndrome, depression and anxiety. Dr Fischer describes the claimant’s impairments as chronic severe neck pain and stiffness, resultant low back pain, severe depression with resultant panic disorder. It was Dr Fischer’s opinion that the claimant was at least 40% disabled. Whilst I note that this assessment has not been made in accordance with Table 9.6 of the Guide I further note that Dr Fischer has attached a copy of Table 9.6 to the back of the claimant’s Compensation Claim for Permanent Injury and that he has circled the 15% level in respect of whole person impairment of the cervical spine, namely loss of more than half normal range of movement." (T96, folio 166)
The Tribunal notes the opinions of Dr O’Keefe and Dr Fischer.
69. In consideration of this decision, the extent to which pain and depression, as identified by Dr Fischer, were taken into account in the assessment of whole person impairment is not clear to the Tribunal. However, this question is not before the Tribunal: Comcare v Lees (1999) 56 ALD 84. For present purposes, the Tribunal must determine whether, or not, the applicant is incapacitated for work and must apply s.19 of the Act to determine whether compensation for incapacity is payable.
70. Much was made in submissions by the respondent that issues of credit undermined the applicant’s evidence regarding the on-going nature, extent and severity of her symptoms. The Tribunal has found that her medical condition is made out on the medical evidence and that is not displaced by questions of credit.
71. Mr Vincent submitted that the medical evidence indicates at least partial incapacity for work as a consequence of her neck injury. This may be so, however, it is necessary to determine whether there was any incapacity for work on 30 December 1997 and thereafter. The respondent submitted that the applicant returned to work in 1991 and continued to work until 29 December 1997, during which period she performed her duties to satisfaction, receiving performance bonuses and promotions. The Tribunal agrees with this submission but accepts the applicant’s submission that the nature and structure of her work changed during this period, whereby she was permitted certain flexibility regarding the organisation of her work. The Tribunal finds the applicant was able to arrange her work to accommodate her symptoms of pain and accepts that she sought to disguise from her employer such symptoms in order to avoid any possible adverse effects upon her on-going employment during a period of significant restructuring.
72. The respondent argued that Ms Keen was not suffering any on-going incapacity of significance on 29 December 1997, and that the extent of any incapacity was limited to the occasional aggravation of her symptoms possibly requiring some treatment and some time off work. The Tribunal does not agree with this submission. Contemporaneous medical reports from Dr Bryan in 1995 (T17), Dr Fischer in 1996 (T21) and in 1997 (T25), and Dr Hume in 1997 (T31) reveal Ms Keen was suffering reduced flexion, rotation and extension of the neck, with some reduced abduction and rotation of the shoulders. Further, Ms Keen’s evidence referred to her difficulties, inter alia, driving and working on her computer for extended periods, as she was required to do for more than 50 per cent of the time in her previous work. The Tribunal finds, on the balance of probabilities, the applicant’s injury gave rise to a medical condition in her neck and shoulders that had an adverse effect on her capacity for work. In the absence of treatment, the symptoms of her medical condition increased and her capacity to undertake the work that she was employed to do reduced over an extended period of time. It is necessary, therefore, to determine the extent of any incapacity thus arising.
73. Following the formulation set out in Comcare v Rowe [2002] FCA 1034, the Tribunal turned to consider the level of work in which the applicant was engaged immediately prior to the compensable injury. The evidence establishes that the level of work in which the applicant was engaged prior to the injury was “AO4” (T4 folio 8) involving “clerical and computer work” (T4 folio 7). The Tribunal finds that, after the injury, the applicant experienced difficulty driving and working on her computer for extended periods. Thus, in accordance with s.4(9)(b) of the Act, the Tribunal finds the applicant had an incapacity “to engage in work at the same level” at which she was engaged immediately before the injury happened. The Tribunal held in Re Prica and Comcare (1996) 44 ALD 46 that the reference to “the same level” in s.4(9) of the Act is meant to refer not to the remuneration a new job attracts, but to the nature of the work in the sense of its characteristics, which will include its degree of difficulty.
74. Thus, the Tribunal finds the applicant is not able to engage in work “at the same level”, that is involving significant computer work, at which she was engaged immediately prior to the work injury in 1991. Thus, the Tribunal finds the applicant has a partial incapacity for work on 30 December 1997 and thereafter for which the respondent is liable to pay compensation pursuant to s.14 of the Act. That the applicant was in full-time employment does not disturb the Tribunal’s finding concerning her partial incapacity for work.
75. The amount of compensation thus payable is to be calculated using the formulae set out in s.19 of the Act. In accordance with s.19(2) of the Act, the applicant qualifies for incapacity payments at a rate based on her normal weekly earnings from Telstra minus the weekly amount she is able to earn in suitable employment. Thus, it is necessary to determine what constitutes suitable employment for the applicant and the amount per week that she is able to earn in such employment: Telstra Corporation Ltd v Slater [2001] FCA 149.
Suitable employment
76. Section 4(1) of the Act provides a definition of “suitable employment” that differentiates, relevantly, whether the person was a permanent employee of the Commonwealth or a licensed corporation on the date of the injury and whether the person has subsequently terminated that employment.
77. The Tribunal finds the applicant was a permanent employee of a licensed corporation on the day on which she was injured. It was submitted for the respondent that Ms Keen voluntarily retired from Telstra’s employment, electing to accept a voluntary redundancy package rather than redeployment within the company or an offer of suitable employment with Pacific Access, thereby removing herself from suitable employment. The Tribunal finds that the applicant originally opted for redeployment within Telstra and subsequently opted to accept a redundancy package, apparently in the belief that she would still be eligible for redeployment until the redundancy came into effect. The evidence reveals that the applicant sought redeployment within Telstra and extended her employment with Telstra from 31 October 1997 to 29 December 1997 in order to extend the time available in which to secure redeployment within the company. As a result, the Tribunal finds that the applicant accepted the redundancy package consequent to her failure to secure redeployment within the available time, whereupon Telstra terminated her employment. On this basis, it is clear to the Tribunal that the applicant faced a situation of diminishing options consequent upon her decision to seek redeployment with her employer, whereby, ultimately, she was left with no option but to accept redundancy in face of Telstra’s termination of her employment.
78. The respondent argues that the redundancy was voluntary, and is so characterised in various documents. However, the Tribunal accepts the applicant’s submission that the redundancy, which was formally voluntary, was in fact involuntary because the applicant was left, in practical terms, with no choice in the matter. The evidence establishes, and the Tribunal finds, that Telstra did not provide the applicant with suitable redeployment or retraining and terminated her employment:
“following due consideration of your redeployment and retraining options within Telstra, I regret to inform you that the company is unable to offer you continuing employment. As a consequence of this, your employment with Telstra will cease close of business on 29th December 1997.” (T102, folio 183)
79. In any event, the Tribunal considers that even if the redundancy was considered voluntary, this would not necessarily raise an estoppel preventing the applicant from asserting an incapacity for work within her capabilities (Re West and Comcare (AAT 9320, 23 February 1994)).
80. The Tribunal finds, therefore, that the applicant was employed by a licensed corporation when she was injured and, subsequently, that employment was terminated by her employer. This being the case, paragraph (a) of the “suitable employment” definition applies.
81. The evidence establishes that the applicant has no formal tertiary qualifications but attended a number of short courses during her employment with Telstra. She was employed as a regional manager with responsibilities for marketing Telstra’s White Pages business in New South Wales. The Tribunal finds that the applicant has administrative skills and management experience that may qualify her for employment in work that is similar to her previous employment.
82. It is of relevance to consider the medical evidence in relation to restrictions on the applicant’s employment arising from the mechanical and psychological manifestations of her condition. The Tribunal accepts Dr Steinweg’s assessment of the applicant’s work restrictions and finds:
“As a result of the work related condition, future restrictions on employment include no computer work, no heavy lifting, no overhead work, and no sitting for more than half an hour before standing and walking for a few minutes.
She would be fit for employment such as office administration, receptionist work, etc.” (T72)
83. Thus, having regard to the matters set out in sub paragraphs (a) (i) to (iv) of the definition, the Tribunal finds suitable employment for the applicant to include office administration, reception, direct marketing, and section or branch management within the employ of the Commonwealth or a licensed corporation subject to the restrictions on employment as found. The Tribunal notes that the applicant’s employment prior to termination in December 1997 constituted suitable employment.
What is the amount the applicant is able to earn in suitable employment?
84. To answer this question, the Tribunal must have regard to the matters that are set out at s.19(4) of the Act.
85. The Tribunal finds the applicant is not in employment and has not been so since 30 December 1997, whereby s.19(4)(a) of the Act does not apply.
86. The Tribunal finds that the applicant has not received an offer of suitable employment since becoming incapacitated for work that she has failed to accept. This being the case, the Tribunal finds s.19(4)(b) of the Act does not apply. Mr Polin submitted for the respondent that the applicant refused to accept an offer of suitable employment with Pacific Access. Relying on the Federal Court decision in Pulitano v Telstra Corp Ltd [1998] FCA 212 Mr Polin contended that employment with Pacific Access, which is not a licensed corporation, should not be excluded for present purposes from the ambit of suitable employment for the applicant. The Tribunal does not accept this submission. The offer of employment with Pacific Access was in the form of a generalised offer to all Telstra employees in the relevant division and was not specific to a particular position with identified duties, and the Tribunal so finds. The offer was made in the context of a corporate restructuring at a time when the applicant was in suitable employment with the respondent. The Tribunal observes that employees who accepted the offer of employment with Pacific Access transferred into that employment in October 1997. Those who did not accept the offer but accepted voluntary redundancy ceased employment at or about the same time. The applicant, however, continued in employment with the respondent until December 1997, whereupon her employment ceased and she received a redundancy payment. The Tribunal is satisfied that Pacific Access did not make an offer of suitable employment to the Applicant that she subsequently declined.
87. The Tribunal notes s.19(4)(c) of the Act requires that the employee “failed to engage, or to continue to engage” in suitable employment after becoming incapacitated. Interpreting this paragraph, the Tribunal finds no cause to divert from the ordinary meaning of “failed”, being a transitive verb defined in the Macquarie Dictionary (2nd revision, 1987) as follows:
“fail – v.t. 6. to neglect to perform or observe: he failed to come.”
Thus, if this paragraph is to apply, it must be found that the applicant was remiss in not engaging or continuing to engage in suitable employment, or that this circumstance arose from an act of neglect or omission on her part. The Tribunal finds neither to be the case and, thus, does not find that the applicant “failed” through an exercise of her own volition to engage or continue to engage in suitable employment. The facts, as found, are that the employer decided to restructure the division in which she was employed, offering affected employees the option of redeployment, redundancy or transfer to Pacific Access. In the applicant’s case she was not offered a specific position with Pacific Access and Telstra failed to deliver any redeployment options, thereby leaving her with no option but to accept redundancy as a consequence of which her engagement in suitable employment was terminated.
88. This being the case, the Tribunal finds that the applicant was not able to continue to engage in suitable employment, and that employment was terminated by Telstra. The Tribunal does not consider the cessation of suitable employment to be the result of any failure on the part of the applicant, in the sense of causal stimulus, and does not, therefore, consider s.19(4)(c) of the Act applies in the circumstances. However, if this was found to be in error, and it was found that the applicant “failed” to continue to engage in suitable employment through no act of will or fault of her own part, the employer having decided to terminate her employment, the applicant’s ‘failure’ would have been found reasonable in the circumstances pursuant to s.19(4)(f) of the Act, in the absence of suitable alternative employment.
89. The Tribunal finds, on the evidence, that s.19(4)(d) of the Act does not apply.
90. Section 19(4)(e) of the Act applies in circumstances in which the person has failed to seek suitable employment after becoming incapacitated for work. There is evidence that the applicant sought, but was singularly unsuccessful in finding, suitable employment following cessation of her employment with Telstra. She gave evidence that she applied for, but was precluded for a two-year period from obtaining, employment with any Telstra company or affiliate. She stated that she could not recall the names of businesses she had approached for employment, but gave evidence that she scanned newspaper advertisements, circulated her resume to possible employers in telecommunication businessess, such as Optus, and approached her friends in business without success. Subsequently she registered for and was granted Newstart Allowance, but was unsuccessful in obtaining any form of employment despite her efforts.
91. The applicant gave evidence that discussions about possible employment with prospective employers after ceasing work with Telstra, were curtailed once her employment restrictions were mentioned. The Tribunal is persuaded by the applicant’s submission that she was unable to obtain work because nobody would employ a person with her medical history, employment restrictions and on-going incapacities. Ultimately, the applicant was transferred from the Newstart Allowance to a Disability Support Pension because of her increasing incapacity and was thereby removed from the labour market. Taking these factors into account, and discounting the respondent’s unsupported submission that she did not seek suitable employment after 30 December 1997, the Tribunal finds that the applicant does not come within the terms of s.19(4)(e) of the Act.
92. It is necessary to consider any other relevant matter pursuant to s.19(4)(g) of the Act: Woodbridge v Comcare (1994) 20 AAR 196. The Tribunal considers it relevant that the applicant moved from Sydney to Diamond Beach in January 2000 to be closer to her family. This move was, in effect, a move from an area of greater employment opportunity to an area of lower employment opportunity. However, the Tribunal notes that the applicant was not able to obtain suitable employment in Sydney in the period following her cessation of employment with Telstra and moving to Diamond Beach, a period of two years. The applicant’s given reason for the relocation related to her desire to be closer to her family and, being proximate, to benefit from the physical and psychological support thus available, and the Tribunal so finds. Nonetheless, the Tribunal notes that were suitable employment available to the applicant in Sydney, the income that she could earn from that employment would be taken into account despite her current residence at Diamond Beach.
93. In these circumstances, the Tribunal finds it relevant to consider the state of the labour market in the period from 30 December 1997 to January 2000 (Esam v ASP Ship Management (1998) 87 FCR 82). The Tribunal notes that the labour market accessible to the applicant, being the Commonwealth Public Service and telecommunications corporations, was undergoing a significant restructuring, one consequence being the transfer of part of Telstra’s business to Pacific Access. There being no evidence, however, about the impact of the restructuring and of reforms to the public service upon the state of the labour market open to the applicant, the Tribunal is not able to draw conclusions or make findings in this regard.
94. Wilcox J considered the question of availability of employment in the case of Martin v Australian Postal Corporation, [2000] FCA 1646:
“[34] … For reasons which she gave, the Senior Member distilled from their evidence a statement about Mr Martin's present fitness for work. She expressed this by saying that Mr Martin was fit to engage in full time employment provided that certain restrictions apply. Having regard to the terms of s19 of the Act, it was then necessary for the Senior Member to consider, and determine, whether full time work that observed those restrictions had been, and now was, available to Mr Martin. If such work had been available to Mr Martin at any time during the period for which he sought compensation, the income attached to that position would have been "the amount per week . [Mr Martin] is able to earn in suitable employment": see s19(2) and (3) of the Act. That is so whether or not Mr Martin would have been prepared to accept that work.
[35] On the other hand, of course, if no such work was available during the relevant period, then the amount per week that Mr Martin was able to earn in that employment would have been nil and compensation would be calculated accordingly.”
Consistent with the approach adopted in Martin, the Tribunal finds no work that observed the applicant’s employment restrictions has been available to her since 30 December 1997.
95. Mr Vincent contended that the applicant’s condition had worsened after leaving Telstra. The Tribunal notes Mr Vincent’s submissions concerning Disability Support Pension and is mindful of the decision in Re Farah and Australian Postal Corporation (1997) AATA 11849. That the applicant’s qualification for a Disability Support Pension provides some measure of her incapacity for work is accepted. The Tribunal notes, however, that the tests applying to qualification for Disability Support Pension under the Social Security Act 1991 are of a different character to those applying to the assessment of incapacity for present purposes.
96. The Tribunal finds that the compensable musculo-ligamentous injury to the applicant's neck has led to chronic symptoms of pain, stiffness and consequent loss of function. Her chronic condition has at times shown improvement, for instance in response to Feldenkrais treatment and treatment at the St George Hospital Pain Clinic during 1999. The Tribunal notes the words of Mr Wood on 21 August 2001 following the applicant’s course of treatment at the Pain Clinic:
“My prognosis at the final treatment session was that as long as Ms Keen continued to utilise her pain management techniques she would continue to function at a much improved level compared to before her treatment commenced.” (ST3, p2)
97. Taking these matters into account, the Tribunal finds the amount that Ms Keen is able to earn in suitable employment is NIL from 30 December 1997 and ongoing. However, the Tribunal is satisfied that Ms Keen's symptoms would be susceptible to improvement by further pain management treatment. This being the case, the Tribunal notes that the applicant may benefit from further pain management treatment, as well as rehabilitation and vocational retraining, whereby her ability to earn may be improved.
decision
98. N2001/750: The Tribunal sets aside the decision under review and remits the matter to the respondent with the following directions:
i) the applicant is entitled to payment of compensation for incapacity pursuant to s.19 of the Act from 30 December 1997; and
ii) the amount that the applicant is able to earn in suitable employment is nil;iii) the respondent is to assess any compensation owing in respect of the applicant’s incapacity payments.
99. N 2002/730 : The Tribunal affirms the decision under review.
100. The respondent is liable to pay the applicant’s costs in both applications.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr P.D. Lynch and Mr S. Webb, Members:
Signed: .......................................................................................
AssociateDate of Hearing 5 and 6 September 2002
Date of Decision 23 June 2003
Counsel for the Applicant Mr M VincentCounsel for the Respondent Mr N Polin
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