Law and Australian Postal Corporation
[2002] AATA 272
•22 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 272
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1392
GENERAL ADMINISTRATIVE DIVISION )
Re KELLY MAURICE LAW
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Ms S M Bullock, Senior Member
Date22 April 2002
PlaceSydney
Decision The decision under review is affirmed, albeit for reasons that differ from those in the reviewable decision. The tribunal decides that the applicant has not been incapacitated for work in the relevant period. The applicant is not entitled to any of the costs associated with this application.
[SGD] M J SASSELLA
Senior Member
CATCHWORDS
WORKERS COMPENSATION - Knee injury - compensation paid for several years - employee deemed to have resigned - compensation payments ceased - whether incapacity payments are payable to employee - whether employee qualifies for reimbursement for medical expenses
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) "ailment", "disease", "injury", "suitable employment", (9), 14(1), 19(4)(b), (e), 24(1), 27(1), 124(1), (1A), 128
Compensation (Commonwealth Government Employees) Act 1971 ss 5(1) "disease", "injury", (6), (7), 27(1), (2), 29, 30, 31, 37(1), 45(1), 46
Casarotto v Australian Postal Corporation (1989) 86 ALR 399
Power v Comcare (1998) 56 ALD 141
Re Sumner and Comcare (AAT no 13548, 17 December 1998)
Re Wheeler and Reserve Bank of Australia (1989) 17 ALD 574
Comcare v Rawling (1993) 31 ALD 501
Woodbridge v Comcare (1994) 20 AAR 196
REASONS FOR DECISION
22 April 2002 Mr M J Sassella, Senior Member Ms S M Bullock, Senior Member
HISTORY OF APPLICATION
On 17 August 1982 Mr Kelly Maurice Law ("the applicant") lodged with the Australian Postal Corporation ("the respondent", "Australia Post") an accident report (T8/20) in which he stated that on that day at 3.30 pm the motor cycle on which he was riding fell over on travelling on wet paper. He said that he grazed his right elbow, that his knee was grazed and sore to move (which knee was involved was unclear). On 30 August 1982 he lodged with the respondent a compensation claim citing a bruised right knee as the injury (T8/22). On 30 November 1982 the respondent accepted liability for this injury (T7) describing it as "bruised right knee". Incapacity payments were approved for 28 August to 10 September 1982 (T7/17), and for 13 September to 26 November 1982 (T7/18). It seems that there were subsequent determinations approving incapacity payments which are not in the T documents. The applicant was off work, as far as Australia Post was concerned, virtually from then on. A short return to work period is discussed below.
Mr Law's compensation payments ceased on 15 April 1987 when he was deemed to have resigned because he did nor return to work when required to do so (T27). The notice sent to him required Mr Law to resume duty by 14 April 1987 or to explain his absence. Mr Law did not respond.
On 21 August 1997 Mr Law contacted the respondent and sought incapacity payments from January 1990 (T68). On 19 July 1999 a delegate of the respondent denied Australia Post's liability to pay any compensation in respect of Mr Law's alleged partial incapacity. In the respondent's view, the applicant had failed to take up an offer of suitable employment (T81). On 28 July 1999 Mr Law sought reconsideration of this decision (T82). On 13 August 1999 the primary decision was affirmed by an internal review officer (T83). This is the reviewable decision in the present action.
On 14 September 1999 the applicant filed with the Administrative Appeals Tribunal ("the tribunal") an application for review of the reviewable decision (T1).
REVIEWABLE DECISION [T83]The decision-maker affirmed the unfavourable primary decision for the following reasons. First, Mr Law was said to be fit for sedentary duties on and from 2 March 1987 and suitable duties were said to be available to him. However, he did not report for duty.
Second, a letter was forwarded to Mr Law's known address at the time, 30 March 1987, advising him that he had been absent without permission since 2 March 1987. He was advised that, unless he resumed duty by 14 April 1987, or explained his absence, he would be deemed to have resigned from Australia Post.
Third, a further letter was forwarded to Mr Law on 16 April 1987 advising him that he was deemed to have resigned.
The review officer finished with, "Based on the available evidence, I am satisfied that he was fit for suitable duties, a suitable position was available however he failed to take up the opportunity to work. This ability reduced the amount of compensation otherwise payable to a nil entitlement. Accordingly I affirm the decision of 19th July 1999 to deny liability for payment of compensation in respect to partial incapacity."
RELEVANT LEGISLATIONPrimarily, the relevant provisions are as follows from the Safety, Rehabilitation and Compensation Act 1988 ("the Act"): ss 4(1) "ailment", "disease", "injury", "suitable employment", (9), 14(1), 19(4)(b), (e), 24(1), 27(1), 124(1), (1A), 128.
However, because the accident occurred in 1982, the following provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") are also relevant: ss 5(1) "disease", "injury", (6), (7), 27(1), (2), 29, 30, 31, 37(1), 45(1), 46.
SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Interpretation
4. In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.…
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.…
(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 injuries14. (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
…
(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;
…
(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;
…
Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
…
Compensation for non-economic loss
27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that in injury or impairment.
…
Application of Act to pre-existing injuries
124. (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.…
Liability under previous Acts
128. Any liability of the Commonwealth, or of a Commonwealth authority, to pay compensation or make any other payment to a person under any provision of … the 1971 Act shall, to the extent that it had not been discharged before the commencing day, be taken to have been incurred by the relevant authority on that day under the corresponding provision of this Act.
COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT 1971
5. (1) In this Act, unless the contrary intention appears-
…
"disease" includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;
…
"injury" means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease;
…
(6) A reference in this Act to an injury to an employee shall, unless the contrary intention appears, be read as a reference to an injury to the employee in respect of which the Commonwealth is liable to pay compensation under this Act.
(7) A reference to an employee in a provision of this Act that is applicable to an employee at a time after the Commonwealth has incurred a liability in relation to the employee under this Act shall, unless the contrary intention appears, be read as including a reference to a person who has ceased to be an employee.
…
Compensation for personal injuries
27. (1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
(2) If an injury to an employee is intentionally self-inflicted, the Commonwealth is not liable under the last preceding sub-section to pay compensation in respect of that injury.
…
Compensation in respect of death, loss, disfigurement or incapacity through
disease.29. (1) Where-
(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2) If-
(a) the death of the employee;
(b) a loss to the employee of a kind referred to in section 39 or 40;
(c) facial disfigurement to the employee;
(d) a loss to the employee of the sense of taste or smell; or
(e) the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears-
(f) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g) the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.
(3) The last preceding sub-section does not apply in relation to a disease, or an aggravation, acceleration or recurrence of a disease, if the employee has at any time, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease.
Certain diseases to be deemed to be contributed to by employment.
30. Without limiting by implication the operation of the last preceding section, where-
(a) an employee has suffered or is suffering from a disease or the death of an employee results from a disease;
(b) the disease is a disease of a kind specified in the regulations as a disease that is related to employment of a kind so specified; and
(c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth in employment of that kind,
then, for the purposes of this Act, unless the contrary is established, the
employment in which the employee was so engaged by the Commonwealth shall be deemed to have been a contributing factor to his contraction of the disease.Provisions relating to diseases.
31. (1) Any employment in which an employee who has contracted a disease was engaged by the Commonwealth at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken for the purposes of this Act to have been a contributing factor to his contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of that disease among persons who have engaged in employment generally in the place where the employee was ordinarily employed.
(2) Any employment in which an employee who has suffered an aggravation, acceleration or recurrence of the disease was engaged by the Commonwealth at any time before symptoms of the aggravation, acceleration or recurrence first became apparent shall, unless the contrary is established, be taken for the purposes of this Act to have been a contributing factor to the aggravation, acceleration or recurrence if the incidence of the aggravation, acceleration or recurrence of that disease among persons suffering from that disease who have engaged in such employment is significantly greater than the incidence of the aggravation, acceleration or recurrence of that disease among persons suffering from that disease who have engaged in employment generally in the place where the employee was ordinarily employed.
(3) The death of an employee shall be taken for the purposes of this Act to have been contributed to by a disease or by an aggravation, acceleration or recurrence of a disease, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be, the death of the employee would have occurred at a significantly later time.
(4) An incapacity for work or facial disfigurement of, or a loss suffered by, an employee shall be taken for the purposes of this Act to have been contributed to by a disease, or by an aggravation, acceleration or recurrence of a disease, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be-
(a) the incapacity, disfigurement or loss would not have occurred;
(b) the incapacity would have commenced, or the disfigurement or loss would have occurred, at a significantly later time; or
(c) the extent of the incapacity, disfigurement or loss would have been significantly less.
(5) This section shall not be construed as limiting by implication the generality of the provisions of section 29.
Compensation payable in respect of medical expenses, etc.
37. (1) Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it is reasonable in the circumstances for the employee to obtain, compensation of such amount as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained.
…
Compensation payable in respect of injuries resulting in total incapacity.
45. (1) Where an injury to an employee results in the employee being totally incapacitated for work, the succeeding provisions of this section have effect.
(2) Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to-
(a) $90, or such higher amount as is prescribed, plus any amount or amounts required to be added to that amount in accordance with the succeeding provisions of this section; or
(b) the average weekly earnings of the employee before the injury,
whichever is the less.
(2A) Notwithstanding the last preceding sub-section, but subject to the succeeding provisions of this section, if the prescribed amount applicable to the employee under the next succeeding sub-section in respect of a week, being one of the first twenty-six weeks of the period, or of the aggregate of the periods, of the incapacity, is greater than the amount of compensation that would, but for this sub-section, be payable to him in respect of that week under the last preceding sub-section (including sub-sections (3) and (4), if applicable), the amount of compensation payable to him in respect of that week is that prescribed amount.
(2B) For the purposes of the last preceding sub-section, the prescribed amount applicable to an employee in respect of a week is-
(a) in the case of an employee who is, during that week, employed by the Commonwealth under conditions of employment providing for sick leave payments-an amount equal to the sum of-
(i) the sick leave payment that he would receive in respect of that week if, during that week, he were entitled to, and were granted, sick leave on full pay by reason of an illness that is not attributable to an injury in relation to which this Act applies; and
(ii) the amount, if any, that was payable to the employee under the next succeeding section in respect of the week that ended immediately before the commencement of the period of the incapacity or, where there are two or more periods of incapacity, the last of those periods;
(b) in the case of an employee who is not employed by the Commonwealth during that week, but was, immediately before he ceased to be employed by the Commonwealth, employed under conditions of employment providing for sick leave payments-an amount equal to the amount that would be applicable to him under the last preceding paragraph if he had continued in that employment; or
(c) in any other case-an amount determined by the Commissioner, having regard to the following:
(i) if the employee is, during that week, employed by the Commonwealth-the amount of the earnings, if any, payable to him in respect of that week in respect of that employment;
(ii) if the employee is not, during that week, employed by the Commonwealth-the amount of the earnings, if any, that, if he had continued in the employment in which he was engaged immediately before he ceased to be employed by the Commonwealth, would have been payable to him in respect of that week in respect of that employment; and
(iii) any other matter that the Commissioner considers to be relevant.
(2C) For the purposes of the last preceding sub-section-
(a) an employee who would be, or would have been, employed but for his incapacity shall be taken to be employed, or to have been employed, as the case may be;
(b) a reference to a sick leave payment is a reference to a payment by way of salary, wages or pay in respect of a period during which the employee concerned is absent from his employment by reason of illness; and
(c) a reference to earnings, in relation to an employee-
(i) includes a reference to the earnings that would be or would have been, payable to the employee but for his incapacity; and
(ii) does not include a reference to a payment in respect of overtime or a reference to an allowance that is intermittent or is payable in respect of special expenses incurred or likely to be incurred by the employee in respect of his employment.
(3) If there is a prescribed person who is, or there are prescribed persons who are, wholly or mainly dependent upon the employee, there shall be added to the amount specified in paragraph (a) of sub-section (2) the amount of $23.60 or such higher amount as is prescribed.
(4) If there is a child in relation to whom this Act applies (whether born before, on or after the date of the injury) who is wholly or mainly dependent upon the employee or there are children in relation to whom this Act applies (whether born before, on or after the date of the injury) who are wholly or mainly dependent upon the employee, there shall be added to the amount specified in paragraph (a) of sub-section (2) the amount of $11.25, or such higher amount as is prescribed, for that child or each of those children, but an amount shall not be so added for a child in relation to any time before the date of the birth of that child.
(5) If a child in relation to whom this Act applies is the only person who is a prescribed person in relation to the employee, the last preceding sub-section does not apply in relation to that child.
(6) If there are two or more persons who are prescribed persons in relation to the employee and are wholly or mainly dependent upon the employee and each of those persons is a child in relation to whom this Act applies, sub-section (4) does not apply in relation to one of those persons.
(7) If the employee-
(a) is retired from his employment as a result of the incapacity for work;
and(b) as a result of the retirement is in receipt of a pension under a superannuation or provident scheme established or maintained by the Commonwealth or by a prescribed authority of the Commonwealth,
the compensation payable to the employee in respect of each week during the period of the incapacity shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed-
(c) if a part of the pension is, under the scheme, attributable to contributions for the pension paid by the employee-the part of the pension paid or payable to the employee in respect of that week that is not attributable to those contributions;
(d) if the employee has paid contributions under the scheme, the scheme does not identify a part of the pension as being attributable to those contributions and the Commissioner has determined that if it is reasonable that a part of the pension should be treated as if it were attributable to those contributions-the part of the pension paid or payable to the employee in respect of that week that is determined by the Commissioner to be the part that is to be treated as not attributable to contributions for the pension paid by the employee; or
(e) in any other case-the pension paid or payable to the employee in respect of that week.
(8) Where-
(a) as a result of the injury, the employee is being maintained as a patient in a hospital, nursing home or similar place and has been so maintained for a continuous period of not less than one year; and
(b) there are no prescribed persons, and no children in relation to whom this Act applies, who are dependent upon the employee,
the compensation payable to the employee is such amount per week as is determined by the Commissioner, having regard to the present and probable future needs and expenses of the employee and the duration of the period during which the employee is likely to be a patient in a hospital, nursing home or similar place, but the amount so determined shall not be less than one-half of, and shall not be greater than, the amount per week of the compensation that, but for this sub-section, would be payable to the employee.
(9) Subject to sections 47 and 50, where a determination is made that an amount of compensation is payable to the employee under section 39 in respect of an injury that resulted in a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under section 46 in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination.
(10) For the purposes of this section, "prescribed person ", in relation to an employee, means-
(a) the spouse of the employee;
(b) any of the following persons, being a person over the age of sixteen years:
(i) the father, mother, step-father, step-mother, mother-in-law, grandfather, grandmother, son, daughter, step-son, step-daughter, grandson, granddaughter, brother, sister, half-brother or half-sister of the employee;
(ii) a person who stands in loco parentis to the employee; or
(iii) a person, not being the spouse of the employee or a person
referred to in either of the last two preceding sub-paragraphs, who is wholly or mainly maintained by the employee and has the care of a child in relation to whom this Act applies being a child who is wholly or mainly dependent on the employee; or(c) in the case of a male employee, a woman who, throughout a period of three years ending on or after the date of commencement of the incapacity of the employee, although not legally married to him, lived with him as his wife on a permanent and bona fide domestic basis.
(11) For the purposes of sub-paragraph (i) of paragraph (b) of the last preceding sub-section, relationships referred to in that sub-paragraph shall be taken to include illegitimate relationships and relationships by adoption and relationships that are traced through illegitimate relationships or relationships by adoption.
(12) For the purposes of sub-paragraph (iii) of paragraph (b) of sub-section (10), a person who has the care of a child referred to in that sub-paragraph shall not be taken not to be wholly or mainly maintained by an employee by reason only that the employee pays any remuneration to the person for caring for that child.
Compensation payable in respect of injuries resulting in partial incapacity.
46. (1) Where an injury to an employee results in the employee being partially incapacitated for work, the succeeding provisions of this section have effect.
(2) Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to-
(a) the lesser of the following amounts, namely-
(i) $90 or such higher amount as is prescribed; or
(ii) the amount (if any) by which the average weekly earnings of the employee before the injury exceeds from time to time the amount per week that he is able to earn in some suitable employment or business; or
(b) the amount (if any) by which the amount per week that would be payable to him under the last preceding section, disregarding sub-sections (2A) and (7) of that section, if he were totally incapacitated for work exceeds from time to time the amount per week that he is able to earn in some suitable employment or business,
whichever is the greater.
(3) If, as a result of the partial incapacity for work-
(a) the employee is retired from his employment, or the minimum amount per week payable to the employee in respect of his employment by the Commonwealth is reduced; and
(b) as a result of the retirement or reduction, as the case may be, the employee is in receipt of a pension under a superannuation or provident scheme established or maintained by the Commonwealth or by a prescribed authority of the Commonwealth,
the compensation payable to the employee in respect of each week during the period of the incapacity shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed from time to time the sum of-
(c) the amount per week that he is able to earn in some suitable employment
or business; and(d) the amount of-
(i) if a part of the pension is, under the scheme, attributable to contributions for the pension paid by the employee-the part of the pension paid or payable to the employee in respect of that week that is not attributable to those contributions;
(ii) if the employee has paid contributions under the scheme, the scheme does not identify a part of the pension as being attributable to those contributions and the Commissioner has determined that it is reasonable that a part of the pension should be treated as if it were attributable to those contributions-the part of the pension paid or payable to the employee in respect of that week that is determined by the Commissioner to be the part that is to be treated as not attributable to contributions for the pension paid by the employee; or
(iii) in any other case-the pension paid or payable to the employee in respect of that week.
(4) In ascertaining for the purposes of the last two preceding sub-sections the amount per week that an employee is able to earn, any amount that he is able to earn in respect of overtime shall be taken into account.
(4A) In determining, for the purposes of sub-sections (2) and (3), the amount per week that an employee is able to earn in some suitable employment or business, the Commissioner shall have regard to –
…
(b) in a case where, after becoming partially 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 the employee had accepted that offer and were engaged in that employment;
(c) in a case where, after becoming partially 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 the employee were engaged in that employment;
…
(f) any other matter that the Commissioner considers relevant.
(5) Subject to the next succeeding section, where a determination is made that an amount of compensation is payable to the employee under section 39 in respect of an injury that caused a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under this section in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination.
BACKGROUND
Mr Law was born on 23 August 1952 (T5). In 1997 he told Dr H E Marsden that he was born in Sydney. He was married at the time but was separated from his wife. There were two children (T59). In February 2000 he told Dr Gliksman that he was living alone (ex R2/4) but he told Dr Cree in September 2000 that he was living with a girlfriend (ex R4/2).
Dr Marsden recorded a medical history as including a low back complaint. In the course of employment in 1967 a telephone coil came off the back of a truck and onto his back. He later had a laminectomy. He said he was off work for two years. He worked for Fairfield Council at the time (T59).
He has had a number of jobs. He was a prison officer in 1978-1980. He then became a gardener for Fairfield Council. He was then available as an extra in ABC-TV film productions. In 1981 he worked as an insurance broker. In 1981-1982 he was attached to a modelling agency (T5). He applied to join Australia Post in February 1982 (T5). On 21 March 2000 he had told the respondent (ex R3) that he had worked in three jobs since 15 April 1987. These were for Liverpool Hospital (22 November 1995 – 30 June 1996), South Western TAFE College (March 1997) and Night Guard Protection Services (no dates given). In the same document he said he had not been self-employed. In the same document he provided a list of applications, numbering some 140, he had made for employment between 1995 and 2000. Copies of job application documentation were provided in ex A6.
Mr Law's work in year 2000 (February) was three days a week in a casual security position (ex R3/2). He carried out television monitoring and telephoned a report wherever he spotted trouble. The shifts were 14 ½ hours long and he could do more of that work if he wished. The work allowed him to stand and sit as required. Dr Burke (ex R5) took a full history of Mr Law's security work. Indeed, Dr Burke took an extensive occupational history that was at odds with some of Mr Law's other evidence. The elements of that history were:
After leaving school he was a motor mechanic for three years.
He did various other jobs "here and there".
He obtained a horticulture certificate.
He was self-employed as a park and garden attendant.
He worked as a commercial fisherman in Queensland.
For two years he was a shark catcher.
He worked for the Sydney Game Fishing Club.
He was self-employed as a security guard for 10 years.
For three years he was employed with Knightguard and was off for eight weeks.
In January 2000 he was employed in security work by Unilodge. He was dismissed with no reason given in May 2000.
He had worked for Double Bay Security from June to August 2000. He apparently resigned because he had to get into and out of a car frequently and this caused him back symptoms.
By the time of the first day of the hearing in October 2000 Mr Law was unemployed.
In 1980 Mr Law was convicted of assault at Fairfield Court (T5). In ex R8, an application for employment by South Western Sydney Area Health Service, he placed the year as 1978 and said he was defending the family against a violent intruder.
Mr Law left school at age 13 (ex R2/3) but has engaged in a number of education and training courses. In T68 he listed them. He has a certificate in animal genetics and breeding and, in 1997, was studying animal technology. He did some voluntary work for FAWNA, a wildlife support agency (T75).
Mr Law has had a compensation history. Mention was made earlier of his back injury in 1967, of which little is recorded. However, he had a collision on his Australia Post motor cycle in May 1982 which led to a compensation claim (T3, T4, T7). He claimed against Australia Post for permanent impairment affecting the right knee and lower back in 1992 (T39). This led to no final decision (T41A). He claimed again for permanent impairment in respect of pain and swelling of the right knee, lower back pain and mental frustration in October 1994 (T45). There was yet another permanent impairment claim in February 1995 (T47). Eventually, after further unusual developments (T49, T52, T55, T62, T66, T69, T74), he was offered over $21,000 in August 1997 (T66). He queried this and a review resulted in a nil entitlement (T74). He appealed to this tribunal which on 15 January 1998 issued a consent decision (T76) recognising a permanent impairment of the right knee resulting from the injury of 17 August 1982. He was entitled under s 39 of the 1971 Act to a lump sum. Under the Act this translated to an award of almost $31,000.
In 2000, while doing security work, Mr Law allegedly injured his back when lifting and moving a refrigerator. This resulted in two of the medical reports tendered by the respondent (ex R4, R5).
HEARING AND APPEARANCESThe tribunal convened a hearing in Sydney on 17 and 18 October 2000 and on 18 May 2001. Mr L T Grey of counsel represented the applicant. Mr G Elliott of counsel represented Australia Post.
The tribunal had access to the Section 37 Statement (ex TD1) and attached exhibits T1-T84. The tribunal also had access to the following exhibits:
Exhibit TD2 – Applicant's wage records from Knightguard Protection Services Pty Ltd, 2 November 1997 to 4 June 2000, information supplied on 7 September 2000.
Exhibit A1 – Report by Dr J E C Bentivoglio, orthopaedic surgeon, 21 July 2000.
Exhibit A2 – Report by Dr N A Berry, surgeon, 4 September 2000.
Exhibit A3 – Applicant's answers to particulars requested by respondent's solicitors, 21 March 2000.
Exhibit A4 – Copy of applicant's claim for Invalid Pension payable by the Commonwealth Department of Social Security, 14 February 1986.
Exhibit A5 – Copy of medical assessment conducted to assess Invalid Pension eligibility, 27 March 1986.
Exhibit A6 – Applicant's records of job applications.
Exhibit A7 – Certificate of applicant's completion of animal breeding and genetics course run by the Victorian College of Agriculture and Horticulture, 28 July 1994.
Exhibit R1 – Respondent's solicitor's request for further and better particulars from applicant, 26 October 1999.
Exhibit R2 – Report by Dr M Gliksman, occupational physician, 16 February 2000.
Exhibit R3 – Report by Dr B Casey, orthopaedic surgeon, 21 February 2000.
Exhibit R4 – Report by Dr A Cree, orthopaedic surgeon, 11 September 2000.
Exhibit R5 – Report by Dr P J Burke, surgeon, 12 September 2000.
Exhibit R6 – Letter dated 24 August 2000 from QBE Workers Compensation (NSW) Limited to Dr Cree.
Exhibit R7 - Letter dated 24 August 2000 from QBE Workers Compensation (NSW) Limited to Dr Burke.
Exhibit R8 – Applicant's application for employment prepared for South Western Sydney Area Health Service, 8 August 1995.
Exhibit R9 – Statement by Ms C Walker, 30 August 2000.
This matter was almost completed in the first two days. However, Mr Elliott for the respondent was left with insufficient time to provide a final statement to the tribunal. The tribunal proposed a resumption for that matter alone, and for any comment by Mr Grey on any issue arising. It was anticipated that such a resumption could be arranged with minimum delay. However, Mr Grey observed that Mr Elliott would have the benefit of access to a transcript in preparing his final submission. He asked that arrangements be made to give him (and the applicant) an equal opportunity. He made it clear that the applicant was not able to afford to order his own transcript. The tribunal offered Mr Grey access to its copy of the transcript, through Mr Law's solicitors, Messrs Carroll and O'Dea. The tribunal is not permitted to make its own copies of transcripts for reasons of copyright. In the long run Mr Grey did not avail himself of this offer. Once it became clear that this was to be the position the hearing was resumed for finalisation of submissions.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIALS IN SUPPORT OF THOSE FINDINGS
applicable lawsBecause the injury from which any of Mr Law's claims emerge occurred in 1982 the legal position requires consideration of both the 1971 Act and the Act. Sections 124(1) and 128 of the Act have the effect that it is the Act that applies to an injury even if it occurred before the commencing day of the Act, ie 1 December 1988. However, s 124(1A) results in the compensation payable in respect of a pre-1 December 1988 injury being limited to that payable, in this case, under the 1971 Act. The primary issues, therefore, involve consideration of Mr Law's entitlements under the 1971 Act.
Under the 1971 Act it is noted that ss 27 and 29 in combination are equivalent to s 14(1) of the Act in that the Commonwealth is liable to pay compensation under the 1971 Act where an employee suffers a personal injury or disease with a necessary connection to his or her employment by the Commonwealth.
Further, it is noted that the definitions of "disease" and "injury" in the 1971 Act are effectively equivalent to those in the Act, albeit presented very differently. Thus, although the provisions of the 1971 Act apply to Mr Law, the outcomes should be similar to those eventuating had the injury occurred after 1 December 1988. There is a difference of substance between the definitions in the two Acts. In the Act there is a requirement that an ailment or aggravation be "contributed to in a material degree by the employee's employment …" for a "disease" to exist (s 4(1)). In the 1971 Act Commonwealth employment had only to be "a contributing factor to the contraction of the disease …" (s 29(1)(b)).
The tribunal notes the onus of proof situation in this matter. On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Corporation (1989) 86 ALR 399, 412-413:
"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression 'onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.
"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:
'Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:
"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."
"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."
In the present application Mr Law is seeking to disturb the compensation situation which has applied since April 1987 when he was deemed to have resigned. Incapacity payments were no longer regarded by Australia Post as justified as Mr Law had refused an offer of work. He could therefore be seen as able to earn sufficiently to reduce incapacity payments to nil under s 19 of the Act (s 46 of the 1971 Act). Mr Law now asks for incapacity payments back to 1990. Mr Law therefore has the "implied burden" of proof in the present case.
injury or disease?Is the condition of which Mr Law complains an injury or a disease? At first blush there is an injury. In 1982 Mr Law said he fell off his motor cycle injuring his knee (T8). Early medical certificates referred to an injury to the right knee (T10/25-29, September to November 1982). By 29 November 1982 a torn medial meniscus was identified (T10/30). Subsequent medical certificates into January 1986 referred to injury to the right knee, or to trauma to the right knee, or to traumatic arthritis of the right knee (T10/36-57). Later the diagnosis became degenerative arthritis of the right knee (T1/58-59, March and June 1986). This latter diagnosis might suggest a disease. On 20 October 1986 Dr L Sampson, orthopaedic surgeon, diagnosed early degenerative change of the medial compartment of the right knee and chondromalacia of the right knee patella (T26/83) and this was related to the work injury of 17 August 1982 (T26/84, 3 November 1986). Dr M H Page, an orthopaedic surgeon, saw degenerative changes to the right knee in 1982 (T32/92) and in 1983 (T40/103). He diagnosed osteoarthritis in the right knee in 1993. In T32 he saw a contribution to the knee problems stemming from the Australia Post motor vehicle accident. It has since been generally accepted that the right knee condition is osteoathritis (Dr M G Miller, physician, T48; Dr H E Marsden, orthopaedic surgeon, T59; Dr J E C Bentivoglio, orthopaedic surgeon, ex A1; Dr M Gliksman, occupational physician, ex R2; Dr B Casey, orthopaedic surgeon, ex R3). Dr Casey saw the tear of the medial meniscus as precipitating the degenerative osteoarthritis (ex R3/3). However, he thought that the damage to the meniscus may have predated 1982 and that there was evidence of recovery in 1985.
It appears then that the preponderance of evidence is that Mr Law suffered an injury that involved a tear in the medial meniscus and that contributed to the development or aggravation of osteoarthritis in the right knee. Despite some doubt by some doctors, there appears to have been a satisfactory nexus between the accident on 17 August 1982 and the osteoarthritis to ground compensation liability. Australia Post, of course, paid compensation for some five years. The greater interest is in whether it should have paid beyond 1987, most notably from 1990.
the respondent's caseThe respondent accepts that Mr Law injured his right knee on 17 August 1982 and that he was initially incapacitated for a period of time in 1982. Dr Claffey, an orthopaedic surgeon, diagnosed damage to the posterior horn of the medial meniscus of the right knee (T12/61). On 29 January 1983 Dr Claffey removed part of the damaged meniscus (T12/62). By 3 May 1983 Dr Claffey regarded Mr Law as fit to return to work as of 9 May 1983 (T10/35, T12/63). Mr Law did not return to work at that time.
In December 1983 Dr Claffey again regarded Mr Law as fit for work including riding motor cycles (T15). Mr Law did not return to work.
In March 1984 Mr Law saw Dr J P H Stephen another orthopaedic surgeon (T16). As Mr Elliott put it, Dr Stephen considered that the applicant had some disability in his knee but he did not suggest he was unfit for all work. The tribunal notes that this is correct as far as it goes. However, the Stephen report is interesting. Dr Stephen accepted at face value Mr Law's complaints (the knee was constantly sore in the region of the patella, the knee locked after squatting, the knee was painful if he rode a motor cycle, he had a constant ache from prolonged sitting or walking or any activity) and considered that Mr Law had a genuine disability. He did, however, note, "He likes game fishing and finds that standing on a game fishing boat produces pain because of the rocking!" (T16/69). He proceeded to conduct an arthroscopy (T17). Dr Stephen was conscripted as very much a treating specialist and was not asked about employment matters. His report is overwhelmingly favourable to Mr Law in that it supports his suggestion that his knee was not fully recovered. However, the tribunal notes, by 28 May 1984, Dr Stephen regarded Mr Law as fit to return to work as a postmen "in the next week or two" (T17/71). By 3 September 1984 Dr Stephen noted that Mr Law had not returned to work and he considered Mr Law's motivation questionable (T17/72). He considered that Mr Law could ride a motor cycle, albeit with some ache and discomfort. The tribunal notes, along with Mr Elliott, that the reference to Mr Law going game fishing in March 1984 is at odds with Mr Law's oral evidence to the tribunal that he did not do any fishing after the August 1982 accident.
Mr Elliott pointed to another occasion where Mr Law was described as fit to return to work but did not present himself. This was on 31 October 1984 when Dr Hedberg said he was fit for sedentary duties (T20).
Mr Elliott referred to a newspaper item suggesting that Mr Law had caught a shark in January 1985 (T20A). Mr Elliott used this only to suggest that, at that time, Mr Law was having some involvement in fishing circles and was probably not living the sedentary lifestyle Mr Law had suggested. The tribunal notes Mr Law's explanation for this item in ex A2/3. Dr N A Berry, a surgeon, wrote on 4 September 2000, "I further note that there was a report in the paper showing him catching a shark in 1985. On direct questioning the patient told me that there was a picture in the paper showing him holding a set of shark jaws, the shark having actually been caught by his father not himself and quite some years before the photo was taken".
On 18 February 1985 a Commonwealth Medical Officer certified Mr Law fit for his ordinary duties (T21) and on 14 February 1985 Dr Stern, general practitioner, considered him fit to return to work riding a motor cycle (T10/48). Indeed, Dr Stern noted that he had improved over six months. He had less quadriceps wasting, he had les and less intense pain, and he could climb stairs without difficulty. He returned to work on 18 February 1985 and lasted about a week. An internal minute from Australia Post records this (T22). It states that Mr Law phoned on 25 February 1985 to say that "his knee was playing up and he would have to go to the doctor". Nothing was heard from him on 26 or 27 February 1985 "and no advice as to his reasons or whereabouts ha[d] been received".
Mr Elliott noted the applicant's oral evidence. The work in February 1985 had not involved cycle riding. It was sorting work. There were no medical restrictions banning him from sorting work. He could use a stool if he wished in doing sorting. Mr Law agreed that the work was light and sedentary. Mr Elliott observed that, if Mr Law had difficulty with the sorting work, there is no record of him reporting it at the time.
Although Dr Stern gave Mr Law other medical certificates allowing time off until 31 March 1985 (T10/51, 52, 53), on 1 April 1985 he certified Mr Law fit for sedentary duties only to 31 December 1985 (T10/54). The applicant took no steps to return to Australia Post at that time.
Mr Elliott suggested that this failure by Mr Law to return to work put an end to his case. He failed to take up suitable work that was offered at the time. He thus had an ability to earn that wiped out any compensation for incapacity under s 19 of the Act (and, presumably, s 46(3) of the 1971 Act).
Mr Elliott submitted that Mr Law was uninterested in Australia Post work because he was working elsewhere. He worked for his brother's insurance business for some hours on several days a week (T23A). The tribunal notes the surveillance report which indicates that at the time Mr Law showed no sign of limping or discomfort when walking or running. Mr Law also gave evidence of other work at the time. He did security work at two nightclubs and some work as an extra for ABC TV dramas.
In about May 1985 Mr Law moved to Queensland (T24), further evidence, as Mr Elliott saw it, of Mr Law's lack of commitment to working for Australia Post. He said at one point in the hearing that he went there because of a relationship with a woman. Later he said he was "drinking and got the geographics" [whatever that may mean] and left. He went without discussing it with Australia Post. He gave them his address to ensure continuity of receipt of compensation payments (T24). The tribunal notes that even this contact with Australia Post was in response to an Australia Post request that he see some specialists. Once in Queensland Mr Law did not report for work to Australia Post.
At the same time there is some evidence that he was working in Queensland. For example, in ex R8, an application for a job in 1995, he said he was in Queensland from 1988 to 1990 working for himself as a shark catcher and processor. He also told Dr Burke (ex R5/1) that he worked as a commercial fisherman in Queensland and that for two years he was a shark catcher. He said in oral evidence that the statement in the job application was untrue and that he did not tell Dr Burke what Dr Burke said in his report. Dr Burke gave oral evidence and confirmed that this material came from the applicant. He did not pick it up from any other source. Mr Law saw Dr Burke in the context of his 2000 workers' compensation claim against QBE Insurance. Mr Elliott suggested that Mr Law was minimising any earlier problems in order to maximise any apparent injury arising from his security work in 2000.
There is evidence that Mr Law was fit for work while in Queensland. Dr Sampson found him to be suitable for light sedentary clerical work, depending on his training and expertise (T25, 20 February 1986). The tribunal notes a disinterest on Mr Law's part in that report in full recovery. He was not doing quadriceps exercises prescribed by Dr Sampson. He seemed disinterested in possible retraining. Dr Sampson again certified him as suitable for light sedentary occupations on 3 November 1986 (T26/84), having regarded him as "presumably totally incapacitated" on 20 October 1986 (T26/83).
Mr Elliott stressed that, even on Mr Law's own oral evidence, he did no work between 1987 and 1995 and took no steps to seek any. That would mean that his ability to earn is measured by reference to work available at Australia Post under s 19(4)(e) of the Act (and s 46(3)(b) of the 1971 Act).
Mr Elliott then moved on to 1987 when Australia Post attempted to get Mr Law back to work. This involved:
A letter dated 30 March 1987 (T27/85) asking him to resume work by 14 April 1987 or explain his absence and seek a further period of absence.
Deemed resignation if he failed to respond as required (T27/85).
A telegram dated 16 April 1987 (T27/86) noting that he had not responded to the letter of 30 March 1985 and was deemed to have resigned with effect from 14 April 1987.
In oral evidence Mr Law had said that he had no money to return to Sydney to take up the job. Mr Elliott said that there was nothing to suggest that he told Australia Post of this. The whole tenor of the evidence was that Mr Law had decided to move to Queensland, he had settled into a relationship there, and he had no wish to return to Sydney, where he had been employed in the past. His financial situation was said to have nothing to do with it.
The position offered to Mr Law in 1987 was, based on Ms Walker's affidavit (ex R9), a position in the Sydney GPO. Ms Walker said that "a position was available for him in Sydney City Division performing sedentary duties. … I recall that the sorts of light duties available in the GPO included facing up and sorting the mail, cancelling make-up labels and answering the telephone. Such light duties allowed for intermittent sitting and standing". Mr Elliott pointed out that such duties agreed with what Dr Sampson had advised (paragraph 41 above). Mr Elliott emphasised that the offer was for work at the GPO, a well designted post office, that it was to work in a clearly identified position and involved work of the type identified as suitable.
It was suggested to Mr Elliott that an offer of employment might not be suitable if it required the applicant to move from Queensland to NSW to take up the offer. The definition of "suitable employment" in s 4(1) of the Act addresses this point. There seems to have been no equivalent definition in the 1971 Act. The Act says:
"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)." (Tribunal's emphasis)
Mr Elliott submitted that the offer was of suitable employment because Sydney was where the applicant had at all material times worked during his employment with the respondent. Mr Elliott went on to explain, justifiably in the tribunal's view, that there is no evidence to suggest, had Mr Law contacted Australia Post and said that he wanted to stay in Queensland, that Australia Post would have refused to try and find him a sedentary position in Queensland. Mr Law said and did nothing to address Australia Post's offer. In oral evidence the applicant had admitted that he at no time sought Australia Post work in Queensland.
Mr Elliott referred to a letter from Mr Law's solicitors dated 14 November 1991 (T33) in which they said that Mr Law was not interested in pursuing weekly compensation payments and that he was on an Invalid Pension. According to Mr Elliott, this shows that Mr Law was prepared to rely on his pension. He was neither seeking work from Australia Post nor from any other potential employer.
It was in 1995 that Mr Law began in earnest to seek work (ex A3) and he found work fairly quickly. He told the tribunal that that work was more demanding than the work he had done at Australia Post. Mr Law appears to have been in a position to earn at least as much as he would have done with Australia Post. However, he admitted in oral evidence that there was a large level of self-limitation in his earnings. He worked 30 to 38 hours a week in security work. He did part-time study at the same time. For compensation purposes, however, Mr Elliott said, Mr Law had an ability to earn during the periods when he was not working because he was studying. Mr Law admitted that he limited his earnings because he wanted to pay less tax. Mr Law agreed that extra work was available had he wished to take it up.
Mr Elliott then addressed the medical reports from 1995 onwards that suggest limitations in Mr Law's work capacity. There are not many of these.
Dr N Berry, a surgeon (ex A2), in September 2000 said he was fit for light sedentary duties allowing frequent posture changes and that he could not do prolonged standing, climbing up and down stairs or ladders and he could not crouch or kneel.
Dr M Gliksman, an occupational physician (ex R2), in February 2000 said he was fit to perform the duties of a postal officer but with restrictions in squatting, repetitive use of stairs, prolonged walking and with regular breaks.
Even regarding these, Mr Elliott observed that the doctors were reliant on Mr Law's account of his symptoms. What he told the doctors, Mr Elliott said, did not sit well with Mr Law's work in the security industry. Further, away from the knee claim, Mr Law was prepared to tell Drs Burke and Cree that he had no incapacity arising from any condition in the knee.
This led Mr Elliott to comment on Mr Law's credibility. Earlier the tribunal recorded that Mr Law denied telling Dr Burke certain things that appear as history in Dr Burke's report. These items suggested that Mr Law was fit for work when in Queensland and was working. Dr Burke assured the tribunal in oral evidence that he had obtained this material from Mr Law. As Mr Elliott put it, "where there's a clear monetary incentive to give a particular answer, the applicant is giving a different story entirely to the doctors involved in that case".
Mr Elliott pointed out that in numerous job applications Mr Law, as he admitted, has lied about his work history. He went so far as to invent jobs that he had not had. The application for a job in the Liverpool Hospital was one instance.
Mr Elliott submitted that the fact that Australia Post had given Mr Law lump sum compensation for a permanent impairment did not compel Australia Post to make incapacity payments. First, the applicant had said in evidence that he has no problem with slopes and steps. He would therefore not seem eligible for the payment he had received under table 9.5 of the Comcare Guide (Guide to the Assessment of the Degree of Permanent Impairment ( Second, the Federal Court in Power v Comcare (1998) 56 ALD 141 held that an earlier award of a lump sum under ss 24 and 27 of the Act did not prevent a later decision-maker from refusing the employee incapacity payments because the later decision-maker was not convinced that the medical condition in question was employment-related.
In summary then, Mr Elliott argued that:
(a)Considering especially the opinions of Drs Burke and Cree, there is no clear evidence that Mr Law has an ongoing incapacity.
(b)Even if Mr Law has and had an incapacity, his ability to earn in suitable employment has been reduced under s 19(4) of the Act, especially s 19(4)(b), because of the offer of suitable employment, firstly in 1985 in Bondi and, secondly, in 1987 at the GPO, Sydney.
(c)Mr Law's ability to earn would be assessed from 1985 to 1994 by reference to work on offer from Australia Post. He said he sought no employment during this time and he was fit for sedentary work in this period.
(d)After 1995 Mr Law's ability to earn was affected by s 19(4)(e) of the Act. He failed to seek suitable employment in that he restricted his hours of employment to reduce his tax liability and to permit him to study.
the applicant's case
Mr Grey summarised the applicant's case initially at the end of the hearing in October 2000. Because a significant part of this was in response to the matters raised in oral cross-examination of Mr Law the respondent's arguments were presented first in these reasons.
Mr Grey addressed the suggestion that the applicant had returned to work in 1985 and, inferentially, had no good reason to cease working at that time after a few days. He indicated that, although Australia Post apparently required that he return to work in February 1985 (T22), there is no evidence regarding the work intended for him. However, it seems that sorting was anticipated. Mr Law worked for a week and was certified after that by Dr Stern as unfit for work (T10/52, 53). [The tribunal notes, however, that from 1 April 1985 he was certified as fit for sedentary duties while being unfit for full duties until 31 December 1985 (T10/54).] By May 1985 Australia Post was registering that Mr Law was changing his address and moving to Queensland (T24). There is nothing in this material to suggest that the respondent was offering Mr Law a job.
The surveillance results date from May 1985. In Mr Grey's view they did not show any significant employment occurring. As regards the newspaper item suggesting that Mr Law had caught a large shark in January 1985 (T20A), the applicant's explanation had not been questioned.
Mr Grey then addressed Mr Law's period in Queensland. He said that Mr Law had not voluntarily removed himself from employment. He continued to submit medical certificates. His compensation payments continued. Australia Post apparently accepted that he was not working elsewhere. [The tribunal notes that after May 1985 the evidence (T10/54-55) suggests that there were no medical certificates lodged between April 1985 and January 1986. In late January 1986 there were several medical certificates (T10/55-57), then certificates in March and June 1986 (T10/58-59). Dr Sampson entered the picture in 1986 and authored reports in February, October and November 1986 (T25, T26). The last of these said that Mr Law could do light sedentary work.]
In April 1987 the respondent moved to require Mr Law to return to work (T27). The respondent wrote to Mr Law in Sawtell, NSW, not Boondall in Brisbane (as requested by Mr Law in T24). It is unclear why the Sawtell address was used.
Mr Grey referred to Dr Sampson's reports from 1986 (T25, T26). He said that they showed that Mr Law had problems. He referred (T25) to Mr Law using a crutch at times under his right armpit, wasted quadriceps and to medications. Mr Law suffered from a moderate effusion in February 1986 and he had a noticeable right sided limp (T25). He was suited to light sedentary clerical work depending on his training and experience (T25). By October 1986 Dr Sampson regarded Mr Law as totally incapacitated for work (T26/83). He recommended him for inpatient rehabilitation. Then in November 1986, Dr Sampson responded to questions from Australia Post, the questions being undisclosed, saying that Mr Law was fit for light sedentary work but that he should have inpatient rehabilitation assessment (T26/84).
Mr Grey moved on to the requirement in April 1987 that Mr Law return to work. The letter (T27) was sent about a week before Mr Law was to return to work, ie 30 March 1987. [The tribunal notes that the letter, dated 30 March 1987, required Mr Law to resume duty on 14 April 1987 or explain his absence and seek further leave.] Mr Grey queried the genuineness of that offer of work in light of Dr Sampson's preference for a rehabilitation assessment and the fact that the work was in Sydney. The letter had been sent to Sawtell rather than Boondall and was very brief. It was scarcely how a matter that could result in Mr Law's deemed resignation should have been treated. There was, Mr Grey said, no offer of suitable employment behind the letter. The letter refers to no position as being offered to Mr Law.
Mr Grey referred the tribunal to the tribunal's decision in Re Sumner and Comcare (AAT no 13548, 17 December 1998) where the tribunal was said to have held that, for an offer of suitable employment to provide a basis for reducing or ceasing an employee's payments of compensation, the offer must be clearly identifiable and must refer to a particular position so that it is possible to ascertain the amount per week that the employee would be earning in that employment and the duties that would be performed.
Mr Grey referred also to the tribunal's decision in Re Wheeler and Reserve Bank of Australia (1989) 17 ALD 574 in which Deputy President McMahon considered an offer of re-employment was not genuine. A letter of offer required the employee to report for duty on a day when the employer knew he could not. The employer terminated the employee's employment by telephone on the day when this was pointed out to the employer. The termination was expressed to have taken effect on the previous day. The earlier letter had not mentioned the consequences of non-attendance. The tribunal was apparently critical because the offer of employment was open for a very short time.
The tribunal notes certain other findings in that case. The tribunal said at paragraph 30 (page 576):
"I accept the applicant's evidence that he wanted the job. He needed it for financial reasons. The work was within his capacity. As he put it, he would have been a fool to knock it back."
Mr Grey referred the tribunal to the Federal Court decision in Comcare v Rawling (1993) 31 ALD 501 and suggested that the court there made a similar decision to the tribunal in the above cases. That was not quite accurate. The employer in Rawling (supra) offered work to an employee who was totally incapacitated at the time. That was held not to be a genuine offer of suitable employment. The case of Woodbridge v Comcare (1994) 20 AAR 196 (Hill J) was mentioned. However, it is not clear why this case might assist the tribunal. It dealt with an employee who resigned from what was said to be suitable employment and the court did not venture into issues of what is suitable employment for an employee actually off duty when an offer is made.
Mr Law said in evidence that he spoke by phone to "Mr Cameron" in Australia Post after receiving the letter but there is no record of that conversation, which Mr Grey saw as surprising. This suggests, however, that Mr Law did receive the relevant correspondence and was aware of the requirement that he should return to work.
When Mr Law was informed that his employment had been terminated he thought this would end his compensation payments. On 26 February 1986 Mr Law claimed an Invalid Pension from the Department of Social Security. He told that department (ex A4) that his compensation payments had been erratic, that they should be $500 gross a fortnight, but that he had had "great difficulty finding out from Sydney just what is happening" and he said, "I don't know how long that will continue to be paid". [The compensation continued, in fact, for over a year.] A Commonwealth Medical Officer assessing him for Invalid Pension wrote on 25 March 1986 (ex A4) that he was "quite capable of sedentary work but this is against 'union rules' while on medication".
Mr Grey argued that the combination of Mr Law's alcohol problems, his need for pain killers, and Dr Sampson's opinion that he required an inpatient rehabilitation assessment meant that Mr Law could not return to work. It cannot be said that the role of Mr Law's knee in preventing him from working is displaced by the effects of alcohol and the pain killers. In any case, said Mr Grey, if Mr Law could not work because of the effects of alcohol and pain killers, his resort to these was caused by his disabled knee. Had the respondent seriously undertaken the rehabilitation recommended by Dr Sampson it would have detected the problems stemming from alcohol and pain killers. Had Mr Law been given rehabilitation in 1987 much of his subsequent slide could have been avoided. Mr Law in fact "rehabilitated himself" from 1991. Dr M Hyde Page, an orthopaedic surgeon, in November 1989, considered Mr Law totally incapacitated for work at that time (T32).
Mr Grey took up the theme of Mr Law's self-rehabilitation from 1991. By 1993 Mr Law was said to be able to do many things. He was involved in study. He did practical work. He applied for many jobs as shown in ex A3, although, the tribunal reiterates, this activity did not commence, on Mr Law's own evidence, until 1995. As Mr Grey put it, by the 1990s Mr Law was not work shy. There had been good reasons for his unemployment in the 1980s. He has demonstrated a great deal of job search activity (ex A3, A6). He had adopted a practical bent in seeking work. He endeavoured to obscure his compensation history and his periods off work in these applications. Mr Grey said it was reasonable conduct for Mr Law to limit his working hours to accommodate his study time. Mr Grey pointed out that there is evidence that Mr Law's knee still swells depending on how much work he does. Mr Law is not fit to do all that he could do before the injury. He is fit to work now if he is careful and measured in his work effort.
Mr Grey commented on Mr Law's credibility. He said that Mr Law's evidence had been refreshing. He had been frank about "fibbing". He had had a bad time in the 1980s. He was now "getting there, no thanks to Australia Post". He had made "monumental efforts". This was not the conduct of a liar and cheat. The recent medical reports had related to the back and not the knee. Mr Law had answered the questions asked of him. Mr Grey was critical of Dr Casey's report (ex R3). He had been strongly influenced by the newspaper item on Mr Law's alleged shark catching. He had not put this to Mr Law. He challenged Dr Cree's report because of the defective history recorded by Dr Cree (ex R4).
In May 2001 Mr Grey responded to Mr Elliott's submissions and made the following points that were either new or more pointed.
He criticised Mr Elliott for suggesting that the respondent can rely on the failed return to work in 1985 as a basis for arguing that Mr Law had refused an offer of suitable employment. This had not been raised in any statement of facts and contentions. The central facts in this application relate to 1987. Australia Post had not initiated any action in respect of any alleged failure to take up suitable employment in 1985. It was said to be too late to do that now.
Dr Sampson had considered Mr Law fit for light sedentary duties in February 1986 but nobody took that up. By October 1986 Dr Sampson saw Mr Law as totally incapacitated for work. Shortly after, Dr Sampson again says that Mr Law can do light sedentary "occupations". As he had done before, Mr Grey queried the content of the questions Australia Post put to Dr Sampson to elicit that Mr Law was fit for some work. It is possible that Dr Sampson said that Mr Law would be fit for light sedentary duties if he had undertaken rehabilitation.
Mr Grey reinforced that no steps were taken to provide rehabilitation. It also took a lengthy period before Mr Law was approached with a return to work proposal.
Mr Grey submitted that it could not be said that Mr Law had been asked to attend for suitable duties. There was nothing known about what he would be doing in Sydney. Ms Walker's evidence referred to there being suitable light duties available for Mr Law at the GPO in Sydney. She could not say how many hours a week they were to be worked. The correspondence to Mr Law did not delineate the duties and hours. Without that information there is no benchmark for working out any compensation entitlement.
Mr Grey submitted that, by the time of the return to work demand, Mr Law had lived in Queensland for 18 months. He had not simply gone there for a holiday and not returned. There is said to be no evidence that Australia Post took this into account in requiring him to return to Sydney at short notice. Australia Post could have considered offering Mr Law employment in Queensland but it did not.
Australia Post has offered nothing to Mr Law since 1987 when they, erroneously in Mr Grey's view, terminated his employment.
Mr Grey was at pains to explain that he regarded Mr Law's alcohol problems as minor in relation to the knee disability. However, if the tribunal were minded to see the alcohol problems as a supervening cause of Mr Law's incapacity for work, that condition must be seen as stemming from the knee disability.
Mr Grey emphasised that Mr Law's work in the security industry was "very laid back". It was physically undemanding.
Mr Elliott responded to some of this material.
(a)The 1985 offer of suitable employment, Mr Elliott said, was relevant. The events of 1985 can be considered in relation to the later events of 1987 which generated the application currently before the tribunal. In effect, Mr Elliott was arguing that there is a dynamic process at play which the events of 1985 can help explain.
(b)Mr Elliott refuted Mr Grey's assertion that in 1987 there were no efforts at rehabilitating Mr Law. Ms Walker's evidence was that a Ms Willis, a rehabilitation officer in Australia Post, was involved at the time and would not have been involved if there were no proposed program. There is no documentary evidence of that program. However, Mr Elliott said that a number of documents in this case have gone missing. That is not unusual where an applicant has delayed so long in asserting his claims.
other evidence
The tribunal has canvassed much of the evidence in presenting the parties' cases. However, the tribunal wishes to call attention to certain other elements of the evidence in this case.
Mr Law's evidence
The following, not captured above, emerged from Mr Law's oral evidence before the tribunal.
(a)By the time of the hearing in late 2000 Mr Law was not working because of his back injury in 2000.
(b)Mr Law told his counsel that he had engaged in fishing in the late 1970s and wrote for Fishing News. He did that into the 1980s. He had tried game fishing once and shark fishing once. He had never worked at fishing for an extended period. He did no fishing in 1985. He told Mr Elliott in cross-examination that he had engaged from 1982 in "selling shark fins to Asians". He believes he may have done this in Queensland also. He bought fins from a "crabber" and sent them to Sydney. He said that he cannot remember and that he "tried to pay the rent a lot of ways over the years". He had not revealed this employment in ex A3 because he did not see it as employment. He was paid $50-$70 a kilogram and would have traded about 10 kg in a month. He later said that he did this for only a month or two.
(c)The Daily Mirror item presenting Mr Law in a photograph with a shark's jaw showed him with a shark jaw from a shark his father caught. Mr Law said he had never suggested that he caught the shark. The shark did weigh 275 kg. He was used for the article because of his work on Fishing News. Mr Jack Farrell had been the go-between with the Mirror. He said that he "had fibbed a bit to some people saying he had caught a big fish".
(d)Mr Law told Mr Elliott that he had been out in fishing boats since 1982. He had been a couple of times and did recreational fishing before he went to Queensland. He could not recall when. He went beyond the Sydney Heads in search of shark and marlin. He did not fish himself. He was an angling instructor and was seated.
(e)Mr Law could not recall what he did when he was off work in the early 1980s after the August 1982 injury. He developed alcohol problems. He ceased excessive alcohol consumption in 1991.
(f)Mr Elliott cross-examined Mr Law about the work he did in 1985 for his brother who was involved in insurance. He agreed that he did not tell Australia Post about this work or the payments he received from his brother. He did not think that he had to do so. Mr Law said at first that he worked only two or three hours a week for his brother. He then said that he worked three, four or five days a week for his brother. He was identifying on microfiche policies reaching renewal dates. Mr Law said this was a "pity job" that he did for only four to six weeks.
(g)Mr Law told Mr Elliott that he worked at some time between 1982 and 1985 for Cheeta's Nightclub. He told Mr Grey that this was a four hour shift one night a week with no stress on the knee. He was paid $11 an hour. He worked at the Collonade for a night a week in that period. He later told Mr Grey that he did this job for two nights a week over two weeks. He worked as a waiter. He could not say how long each job lasted. He agreed that he worked as a film extra and model. He agreed that he had not worked at the Randwick Hotel, although he told Liverpool Hospital that he had.
(h)He had moved to Queensland in 1985 because he had "met a woman", he had alcohol problems, was "rotting at home" and wanted a clean start. His Queensland lifestyle was much as it had been in Sydney. He agreed that he looked for no work in Queensland. In Kempsey from 1989 to 1984 he had not looked for work.
Mr Law recalled receiving a telegram while he was in Deception Bay in 1987 requiring him to return to work at Australia Post in Sydney. He had to return within several days. [There is no record of such a telegram in the documents before the tribunal.] He phoned Australia Post. He was short of money and could not return so quickly. He can recall no request that he attend for rehabilitation. He had received no prior indication that Australia Post was looking for a light duties position for him. Mr Law said he phoned a Mr Cameron in Australia Post who said it was "bad luck" when Mr Law told him that he could not return to Sydney immediately. Mr Law told Mr Elliott that Mr Cameron did not refer to any particular job in Sydney as being held for Mr Law. However, he said a job was there for him if Mr Law turned up. There was no mention of it being a light duties job. He agreed, however, that he had no reason to think the job would be inconsistent with the restrictions recommended by doctors. He made no detailed inquiry as to the nature of the job. The applicant understood that he was covered by a medical certificate in 1987 saying that he could not work. [This was T10/59, issued by Dr Collins, which said he was unfit for work from 2 June 1986 to 2 June 1987.] He thought this would prevent Australia Post from dismissing him. Mr Law said that he did not receive a letter telling him that he was deemed to have resigned. Mr Law did not receive T27, the letter threatening him with deemed resignation which had been sent to Sawtell. He had been there briefly but did not recall giving that or any other Queensland addresses to Australia Post. He stopped supplying medical certificates when his compensation payments ceased. Later he told Mr Elliott that he advised Australia Post where they should send his "wages" while he was in Queensland. He also later told his counsel that, if Australia Post had, in 1987, offered him work in a month's time in Sydney with a defined duty statement, he would have taken the job.
(j)In 1987 Mr Law discovered that work was hard to find. He was drunk all the time, his knee was swollen and continuously painful. However, he agreed in cross-examination that he has no certificate from a doctor to state that he was unfit for sedentary work between 1987 and 1991 when, Mr Law agrees, he did not seek work.
(k)In 1991 Mr Law changed his lifestyle. He gave up alcohol. He engaged in light exercises for his knee. He took up study. He obtained a security licence in 1992. He completed courses in animal genetics and breeding and animal attending. He has qualifications for implanting microchips in animals. He "gave himself six months after ceasing drink before he began looking for work". As regards the study and training, Mr Law told Mr Elliott that the genetics course ran from 1993 to 1994 and required 20 hours of work a week. The animal attending course ran for two years and required attendance two nights a week, one weekend a month and study for 40-50 hours a week. He was in a third year of a Diploma of Animal Science at the time of the hearing. He qualified in chip implanting in 2000. He said that since 1993 he had engaged in 20-40 hours of study a week on many or most weeks. He denied that this impinged on his availability for work. He could combine work and study.
(l)As regards security work, the history he gave the tribunal was that he worked at first at a club as a bouncer but his knee caused problems and swelled up. He could not bend the knee. He then worked on reception as a doorman. The knee ached but was tolerable. He joined Knightguard Security in 1997 and was not working regularly prior to that.
(m)Mr Law applied for veterinary work. He felt he could do that because the job allowed for posture variety. He opted for security work because he understood he could do it and take pressure off his knee.
(n)Mr Law gave considerable evidence on his work for Knightguard. He worked 12-14 hour shifts three times a week. He limited his hours to reduce his tax liability He could elect to work for up to 60 hours a week if he wished. He compared this work to desk work on offer in 1987. Working at a desk would cause problems. His knee would stiffen and he could not get up and move around.
(o)Mr Law discussed the injury he sustained working for Knightguard. In early January 2000 he was ordered to move a refrigerator from a shower recess. He hurt his back in doing this. He worked reduced hours for several nights and was then dropped by the firm. He found another job driving for Double Bay Security. He had further back and knee problems working for them and was put off work.
(p)Mr Law told the tribunal that he saw Dr Cree (who provided ex R4) for only 20 or 30 minutes. The doctor did ask him about his medical history but Mr Law could not recall if he was asked about his work.
(q)Mr Law summarised his present problems. He takes Codral Forte and Voltarin. He has a continuous burning sensation in the knee. His knee aches. It stiffens if he sits for a long time. He has no problem walking up and down steps and slopes, however entry into and exit from a car can be a problem.
(r)Mr Elliott put to Mr Law that, when it suits his purpose, Mr Law is not above telling lies. Mr Law agreed that was so, "if it gets the job".
(s)Mr Law told Mr Elliott that he did return to work in 1983 at Australia Post. He was on light duties and required medication. He was sent home, however, because he was on medication and working while medicated was contrary to union rules. He later thought that this may have occurred in 1985 when he was offered a light duties job at the Bondi post office.
(t)Mr Law conceded that the list of jobs he had done, as provided by him in part 6 of ex A3, was incomplete. He listed only three jobs, Liverpool Hospital (22 November 1995-30 June 1996), South Western TAFE (March 1997) and Knightguard Protection Services. He suggested that he had given his solicitor a longer list. He also suggested that he could not remember if he knew the list to be incomplete when he gave it to his solicitor. Mr Law agreed that the list was misleading. Mr Law agreed with Mr Elliott that in his job applications he usually claimed to have engaged in shark fishing and processing between 1988 and 1990. Mr Law agreed that this was false. Mr Elliott also challenged Mr Law with having worked for the Mandarin Club. Mr Law at first said that he did this for Knightguard but then admitted that he also worked there directly for the club management. He had not declared this job in his papers. Mr Law insisted that he told untruths only to get jobs.
(u)As at late 2000 Mr Law had seen a Dr Nathe once over the previous six months for treatment of his knee. He reported that his knee was aching during the hearing.
Dr P J Burke
There were aspects of the applicant's employment history as presented by Dr Burke in ex R5 that Mr Law had said were incorrect. Dr Burke confirmed that the history was as told to him by Mr Law. He had not relied on other sources for this material. Dr Burke confirmed that Mr Law had not mentioned to him that he had ever worked for Australia Post, although he had listed a variety of other employers. He did, however, mention a knee injury from a motor cycle accident. In cross-examination Dr Burke agreed that Mr Law had not told him that he worked for the Sydney Game Fishing Club. Dr Burke had assumed this because of the context in which Mr Law had referred to that club.
Ms C Walker
Ms Walker had provided a statement (ex R9) relating to the work intended for Mr Law had he returned to Australia Post in 1987 (see paragraph 45 above). She said in oral evidence that she could not recall Mr Law personally and that she had used records to refresh her memory in writing ex R9. She could recall discussions about Mr Law's return to work. She explained that she would not, in her then position, have had access to Dr Sampson's reports recommending rehabilitation for Mr Law. The rehabilitation counsellor would have seen them. Ms Walker's job was to advise on opportunities for placement of an employee in the workplace. The rehabilitation counsellor was a Ms Lyn Wattis. Ms Wattis had informed Ms Walker of Mr Law's restrictions – he could not walk upstairs; he could not do postal deliveries. Ms Walker said that Mr Law would have been a definite rehabilitation prospect if Ms Wattis was involved. Ms Walker had ascertained that sedentary positions were available in the Sydney GPO. She did not say that a particular position had been earmarked for Mr Law. Ms Walker said that she had no copies of paperwork passing between her and Ms Wattis. The rehabilitation experts would have that. It is possible too that discussions were oral and not recorded.
Ms Walker had no personal knowledge of contact made by Australia Post with Mr Law. In the usual course he would have been contacted by both the rehabilitation counsellor and a personnel management officer.
Ms Walker had not known that Mr Law was in Queensland when considering work options in Sydney for Mr Law. Had she known she could have telephoned Queensland to see what could be offered to him in that State.
Consideration of evidence
Mr Law's case , wherein he seeks incapacity payments and medical expenses from 1990 until the present ("the relevant period") , raises the following issues:
(a)Has Mr Law had during the relevant period an injury under the Act resulting in an incapacity for work, or an injury resulting in partial or total incapacity under the 1971 Act? If he has not had such injury and incapacity he cannot receive incapacity payments. If he has had such injury and incapacity then issue (b) arises.
(b)If Mr Law has had an injury and incapacity since 1990 at what times has he suffered from this? If the injury or incapacity resolved at some time after 1990 then he cannot be compensated from that time for his incapacity.
(c)If Mr Law has had an injury or incapacity since 1990, during the period when he has suffered from such injury or incapacity has he had an ability to earn?
(d)If Mr Law has had an ability to earn during the period when he may qualify for compensation payments, was that ability such as to reduce his incapacity payments to nil at any time during the period?
(a) Has Mr Law had during the relevant period an injury under the Act resulting in an incapacity for work, or an injury resulting in partial or total incapacity under the 1971 Act?
There is medical evidence from late 1989 and scattered medical evidence through the 1990s. An x-ray of the right knee dated 29 June 1989 (T29) found early osteophyte formation at the articular margins and on the tibial spines and a slight narrowing of the medial joint space. There was no other abnormality.
On 1 August 1989 an x-ray examination of the right knee arthrogram prep contrast (T31) identified osteoarthritic changes particularly involving the medial joint compartment.
Dr Hyde Page on 29 November 1989 (T32) recorded that Mr Law was doing very little physically because of his knee. He recorded that Mr Law had not worked since 1985. However, Dr Hyde Page seemed mystified by Mr Law's symptoms. He said, amongst other things:
"When I examined him on the 7th July, 1989, there was not a lot to find. He certainly walks with some difficulty and could not do squats because of the pain.... he has quite good quadriceps power. He does not have specific tenderness, but there was quite a marked grating in the patello femoral joint on flexing the knee and his collateral ligaments appeared to be intact.... Overall examination of the knee did not contribute greatly to the underlying cause of all his problems. X-rays done in 1988 indicated some early degenerative changes in the medial compartment of the knee.... Overall I am a little unsure why this man's knee is giving him so much trouble and preventing him from getting back to a reasonable standard of physical activity and back to some form of work. At this stage his symptoms seem very severe although examination of the knee would suggest he does not have particularly severe degenerative changes."
Dr Hyde Page favoured an arthroscopic examination of the knee to resolve these odd findings but nevertheless accorded Mr Law a remarkably supportive assessment of his incapacity, finding him to suffer from degenerative changes in the right knee following the motor cycle accident and the menisectomy in 1983. He found that Mr Law had a permanent disability and was "at the moment" totally incapacitated for work. Dr Hyde Page, to the extent that he certified that Mr Law was incapacitated was taking Mr Law's account of his symptoms at face value despite Dr Hyde Page's difficulty in understanding why they should be present.
There are no further medical records available to the tribunal until 1992, although his solicitor wrote in 1991 that he was receiving an Invalid Pension (T33). On the other hand there is some suggestion that he had been working. It is not abundantly clear when Mr Law moved from Queensland to Kempsey. At one stage the date was said to be 1989. In other places Mr Law indicated that he was still in Queensland in 1990. For the purposes of the current inquiry the tribunal regards any evidence as to Mr Law's activities in the late 1980s in Queensland as indicative of his work capacity in 1990. In ex R8 Mr Law said that he worked for himself in Queensland between 1988 and 1990 as a shark catcher and processor. He told Dr Burke (ex R5) that he worked as a commercial fisherman and for two years as a shark catcher in Queensland. In his oral evidence Mr Law went so far as to say that he "may have" engaged in selling shark fins to Asians from Queensland and even described how he transported them to Sydney. He also said that he had tried to pay the rent in a lot of ways over the years [whatever that may mean], without excluding either the Queensland or the Kempsey periods from this.
Mr Law disowned much of this evidence. He told the tribunal that what he had written in ex R8 was false and was included to bolster his chances of obtaining a job. He denied telling Dr Burke what Dr Burke included in ex R5, however Dr Burke confirmed on oath that he had received this material directly from the applicant. He said at one stage that he engaged in sending shark fins to Asians for only a month or two. If accurate, that would suggest that he had little in the way of a work capacity. However, the tribunal finds it difficult to accept Mr Law's evidence about such matters as these at face value. Mr Elliott's submissions in paragraphs 52 and 53 above carry particular force.
Mr Law is clearly an intelligent person. He has acquired a number of technical qualifications through part-time distance study, a notoriously difficult mode of study that carries a high rate of failure or non-completion. The tribunal takes "judicial notice" in this regard. The presiding member spent eight years teaching distance part-time students at a Sydney university and is well aware of these matters. Mr Law's own evidence was that he has dedicated up to 50 hours a week at times to study. He was still engaged in a diploma course at the time of the hearing. It is difficult to credit that Mr Law could succeed in such studies while having a memory for detail and history as poor as he has presented to the tribunal and some doctors. The vagueness and inconsistencies in Mr Law's responses were irritating and, in the tribunal's view, most probably avoidable.
The tribunal is not convinced by the applicant's suggestion that his alcohol problems are responsible for this vagueness and poor memory. There is not one medical report or certificate before the tribunal that addresses in any significant way any alcohol-based disability suffered by Mr Law. The tribunal is aware from the evidence presented to it in very many cases involving alcohol abuse that such abuse tends to be associated with a deterioration in a person's cognitive skills. Mr Law's evidence depended to a considerable extent on an acceptance that he had suffered such a cognitive loss. The tribunal considers that such a loss is unlikely in Mr Law's case in view of his history as a mature age student and in view of his evidence as to how he organised his life. He calculated how much work to do to prevent paying what he saw as too much tax. He had to mix his security work with his studies. This requires considerable intellectual and logistical skills. There is also the applicant's admitted propensity to "fib", as he put it, although he would say he did that only in order to obtain jobs.
The applicant's own evidence suggested that he embarked on study in 1991, that is quite soon after 1990. That fact, plus the evidence that he did engage in certain work in 1988-1990, prompts the tribunal to find that Mr Law, while not 100% well as regards his right knee, was not, in 1990, incapacitated for work. The tribunal applies s 4(9) of the Act in making this finding. To find that Mr Law was incapacitated for work in 1990 the tribunal would need to be satisfied that Mr Law had an incapacity to engage in any work (s 4(9)(a)), or an incapacity to engage in work at the same level as he was enjoyed when working for Australia Post in 1982 (s 4(9)(b)).
The tribunal has found on the balance of probabilities that Mr Law was able to work between 1988 and 1990 and that he was able to engage in studies at least from 1991. This leads the tribunal to find that as at 1990 Mr Law was capable of doing some work. That could be the marine work he said at times that he did in Queensland, or it could be the intellectual sedentary work involved in study. Thus, the tribunal finds that he was not incapacitated under s 4(9)(a) of the Act.
In considering s 4(9)(b) of the Act, the tribunal notes that Mr Law occupied a junior position as a "telegram boy" in 1982. There was no direct evidence before the tribunal regarding salary for one in such a position in 1982 and in successive years. There was evidence available to the tribunal as to Mr Law's salary from Knightguard. He was also earning from the Mandarin Club for at least some of that time. Perhaps Mr Law's earnings have fallen below what he would have earned from Australia Post but there is no evidence of this. The tribunal has already noted that Mr Law bears an implied onus to satisfy the tribunal that he merits compensation payments. He has not offered the tribunal any evidence that his income from work he able to do in 1990, or in later years, was any lower than it would have been had he remained in his Australia Post position. The tribunal therefore finds on the balance of probabilities that Mr Law did not suffer from an incapacity as a result of his injury under s 4(9)(b) of the Act.
The tribunal has made these findings applying the Act. Arguably, given the date of injury, the findings should be made under the 1971 Act. The tribunal considers that the findings would be the same in substance under ss 45(1) and 46(1) of the 1971 Act.
It is necessary to consider whether the position is any different later in the relevant period. The tribunal finds that it is not. Indeed, if anything, the evidence shows that the applicant, despite advancing osteoarthritis in his right knee, was fit to work in the security industry until his back injury in 2000 put him out of that work. Additionally, as noted earlier, the applicant has engaged in considerable study activity with notable success. Such activity is, in the tribunal's view, evidence that the applicant could with little difficulty engage in clerical work requiring intellectual skills and permitting flexibility in postural requirements.
The tribunal decides that it is not compelled to find that Mr Law is necessarily incapacitated for work because the respondent has given him lump sum compensation in respect of a permanent impairment. The authority cited on this point by Mr Elliott in paragraph 54 above was relevant. The tribunal would add only that a worker may have an impairment but still work. He or she could receive compensation under ss 24 and 27 of the Act in such a case, provided that liability exists under s 14(1) of the Act and the impairment is permanent and results from a compensable injury (s 24(1) of the Act).
In view of these findings, it is unnecessary to consider issues (b)-(d) in paragraph 88 above.
CONCLUSIONThe tribunal has rejected Mr Law's arguments to the effect that he qualified for incapacity payments from 1990. This is because the tribunal has found that, despite his right knee disability, the evidence suggests on the balance of probabilities that Mr Law was not unfit for work and not unfit for work at the same level as he occupied when working for the respondent.
The tribunal notes, however, that the respondent, as far as the tribunal is aware, has never formally ceased its liability to Mr Law. This leaves open the possibility that Mr Law qualifies under s 37(1) of the 1971 Act or s 16(1) of the Act for reimbursement for the cost of any medical treatment obtained in relation to his right knee injury so long as that treatment is or has been reasonably obtained. There was no evidence submitted to the tribunal on this, nor indeed any suggestion that such claims had been denied. The tribunal has not, therefore, made findings on that matter.
DECISIONThe decision under review is affirmed, albeit for reasons that differ from those in the reviewable decision. The tribunal decides that the applicant has not been incapacitated for work in the relevant period. The applicant is not entitled to any of the costs associated with this application.
I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member Ms S M Bullock, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 17, 18 October 2000, 18 May 2001
Date of Decision 22 April 2002
Counsel for the Applicant Mr L T Grey
Solicitor for the Applicant Carroll & O'Dea, Solicitors
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Forners, Solicitors & Consultants
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