Martin and Australian Postal Corporation - [2002] AATA 250

DECISION AND REASONS FOR DECISION [2002] AATA 250

ADMINISTRATIVE APPEALS TRIBUNAL )

)No N2000/1779

GENERAL ADMINISTRATIVE DIVISION )
          Re      JOHN MARTIN
  Applicant
          And     AUSTRALIAN POSTAL CORPORATION
   Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date15 April 2002
PlaceSydney

Decision I find on the basis of the evidence before me that, as demonstrated in the Table at paragraph 65 of these Reasons for Decision, and applying section 19(2) of the Safety Rehabilitation and Compensation Act 1988 ("the Act"), there is a differential in wages between Mr Martin's Normal Weekly Earnings ("NWE"), and the positions of wardsperson and pathology courier driver for the relevant period for the first 45 weeks, commencing, 1 January 1994. Applying section 19(3) and other relevant sub-sections of the Act thereafter, I find that there is no further compensation payable. I remit the matter for calculation of the final detail to the Respondent, the Australian Postal Corporation. Costs are awarded pursuant to section 67 of the Safety Rehabilitation and Compensation Act 1988 pursuant to the AAT's Practice Direction.

..............................................
Ms G Ettinger
Senior Member

CATCHWORDS
Compensation - whether suitable work available - whether differential between suitable work and NWE – differential found for first 45 weeks.

Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4,19

Cases
Martin v Australian Postal Corporation [2000] FCA 1646
Martin v Australian Postal Corporation [2000] AATA 577
Martin v Australian Postal Corporation (AAT 12502, 19 December 1997)
Martin v Australian Postal Corporation (1999) 29 AAR 420

REASONS FOR DECISION

15 April 2002 Ms G Ettinger - Senior Member

The issue before the Administrative Appeals Tribunal ("the Tribunal"), was to consider the Directions of his Honour Justice Wilcox in Martin v Australian Postal Corporation [2000] FCA 1646, which had been remitted to the Tribunal after Mr John Martin, the Applicant in these proceedings appealed my decision of 13 July 2000, (Martin v Australian Postal Corporation [2000] AATA 577).

In my decision of 13 July 2000, Martin v Australian Postal Corporation [2000] AATA 577, I had found as follows:
"The Tribunal sets aside the decision of the Australian Postal Corporation dated 30 May 1996 which was affirmed by the Reconsideration Section of the Australian Postal Corporation dated 21 August 1996 to deny liability in respect of the Applicant's claim for compensation for his right shoulder injury.
In substitution therefor, the Tribunal finds that the Applicant was incapacitated for work due to a compensable injury for the period 23 June 1997 until 21 July 1997 whilst he was undergoing surgery and recuperation. The Tribunal remits the matter to the Respondent for calculation of the amount of compensation including medical expenses pursuant to section 16 of the SRC Act.
The Tribunal recognises that there was a finding which has not been disturbed with regard to a compensable condition for which a 10% permanent impairment pursuant to sections 24 and 27 of the SRC Act has been awarded.
Costs to be calculated pursuant to the Tribunal's Practice Direction."
His Honour Justice Wilcox heard the appeal from that decision, and in remitting Martin v Australian Postal Corporation [2000] FCA 1646, directed as follows:
"1. That part of the decision of the Administrative Appeals Tribunal dated 13 July 2000, as is contained in the second paragraph thereof, commencing with the words "In substitution therefor", and ending with the words "amount of compensation" be set aside.
2. The matter be remitted to the Tribunal for further hearing, with such further evidence as may be provided or required, and determination according to law.
3. The respondent, Australian Postal Corporation, pay the costs of the applicant, John Martin."
Before me, the Applicant, Mr John Martin, was represented by Mr M Perry of counsel instructed by Fishburn Watson O'Brien Solicitors, and the Respondent, Australian Postal Corporation, ("Australia Post"), by Mr J Johnson of counsel, instructed by the Australian Government Solicitor.
Oral evidence was given by Ms J Harrington, psychologist, and Ms H Benari, occupational therapist.
BACKGROUND
By way of background, I noted that Mr Martin was employed by the Australian Postal Corporation ("Australia Post"), as a Postal Delivery Officer from 1989. He resigned on 12 November 1992, for reasons unconnected with injuries sustained in 1990 and 1991 in two accidents while riding a motorcycle in the course of his employment. I noted Mr Martin's counsel at the earlier hearing before me conceded that his shoulder injuries did not become symptomatic until the end of 1993 or early 1994. The parties were satisfied and I agreed that the nominal date for the commencement of the time at which Mr Martin's injuries became symptomatic could be taken to be 1 January 1994.
I noted that Mr Martin was employed by Panasonic Australia Limited ("Panasonic") on 16 November 1992, four days after terminating his employment with Australia Post. He resigned from this position on 25 June 1993, and I am mindful that I made a finding in the decision published 13 July 2000, (Martin v Australian Postal Corporation [2000] AATA 577) that the resignation was not because of Mr Martin's shoulder, but due to disagreements with other staff.
Again by way of background, I noted that Mr Martin commenced work with the Illawarra Area Health Service on 7 April 1997 as part of a 20 week Government funded initiative to gain exposure to nursing procedure. Mr Martin concluded his employment on 19 April 1998, having had a short interruption to undergo shoulder surgery on 23 June 1997, and post-operative recovery. Mr Martin's evidence as given at the hearings before me on 1 & 2 May 2000 were that he favoured his right shoulder while he did his work at the Illawarra Area Health Service, but that he was able to carry out his duties adequately. The 20 week program concluded because there was no further work available, and not as a result of any of Mr Martin's shoulder problems.
Mr Martin appeared before Senior Member Allen of this Tribunal, and on 19 December 1997, Senior Member Allen in Martin v Australian Postal Corporation (AAT 12502, 19 December 1997), held that Mr Martin had suffered a compensable 10 percent whole person impairment in respect of his right shoulder. This was not argued further before me at either hearing, and I have made no findings in that regard.
However Senior Member Allen, apart from awarding a short closed period for incapacity in June/July 1997 when Mr Martin was having surgery, rejected Mr Martin's claim that he was further incapacitated for work because of any compensable injury, and held that Mr Martin was unable to obtain work because of economic conditions in the Illawarra region.
Mr Martin appealed this decision, with a cross-appeal by Australia Post in relation to permanent impairment. Burchett J, in Martin v Australian Postal Corporation (1999) 29 AAR 420, dismissed the cross-appeal, and remitted the finding of Senior Member Allen rejecting incapacity except for the closed period, to the Tribunal to be reheard. The matter came before me and is the subject of a decision published on 13 July 2000 (Martin v Australian Postal Corporation [2000] AATA 577). Mr Martin appealed again, contending that the Tribunal had again erred in law in relation to his claim for incapacity.
ISSUES BEFORE THE TRIBUNAL
The issues before the Tribunal were:
(a)      whether Mr Martin, (whom I had found previously could engage in full-time employment with restrictions) could find "suitable employment";
(b)      whether Mr Martin's ability to earn in "suitable employment", given his restrictions, resulted in any compensation payable pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988 ("the Act").   I was mindful that the extent of the restrictions I found were:
·     Not riding a motorcycle;
·     Driving up to two hours at a time;
·     Sorting to up to two hours at a time;
·     Two to four hours of "plugging" at a time;
·     Lifting no more than 15 kilograms;
·     No repetitive above-the-shoulder work;

LEGISLATION

The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4 and 19. The definition of injury and suitable employment in section 4(1) of the Act are as follows:
""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;
"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);
Compensation for injuries resulting in incapacity
19. (1) This section applies to an employee who is incapacitated for work as
a result of an injury, other than an employee to whom section 20, 21, 21A or
22 applies.
(2) Subject to this Part, Comcare is liable to pay compensation to the
employee in respect of the injury, for each of the first 45 weeks (whether
consecutive or otherwise) during which the employee is incapacitated, of an
amount calculated under the formula:
  NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in
suitable employment.
(3) Subject to this Part, Comcare is liable to pay to the employee, in
respect of the injury, for each week during which the employee is
incapacitated, other than a week referred to in subsection (2), compensation:
(a) where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;
(b) where the employee is employed for 25% or less of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings;
(c) where the employee is employed for more than 25% but not more   than 50% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings;
(d) where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings;
(e) where the employee is employed for more than 75% but less than   100% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; and
(f) where the employee is employed for 100% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
…
(4) In determining, for the purposes of subsections (2) and (3), the amount
per week that an employee is able to earn in suitable employment, Comcare
shall have regard to:
(a) where the employee is in employment - the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition - the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment - the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
          …"

EVIDENCE BEFORE THE TRIBUNAL

Oral evidence was given by Ms H Benari, occupational therapist and Ms J Harrington, psychologist.
It was agreed between the parties that Mr Martin would not be required to give further evidence.
However as the Appeal Books relating to the hearing at the Federal Court were in evidence as Exhibit R2, all evidence given at the previous Tribunal hearing was before me, and could be taken into account.
The following documents were also taken into evidence:
Item     Date    Name
Report of Ms J Harrington 5 September 2001   Exhibit R1
Appeal Books (hearing before Wilcox J)             Exhibit R2
Report of John Elwell – NSW/ACT Workers Compensation – NWE Rates and Adjustments Table           29 August 2000       Exhibit R3
NSW Department of Industrial Relations – Award Enquiry Service Centre   9 October 2001           Exhibit R4
Report of Ms H Benari     5 September 2001   Exhibit R5
Facsimile - Ms J Harrington Award Wages Summary 9 October 2001       Exhibit R6

evidence of ms j harrington – psychologist

Ms Harrington whose reports of 5 September 2001 (Exhibit R1) and 9 October 2001 (Exhibit R6) were before the Tribunal, gave oral evidence. Her detailed Curriculum Vitae was before the Tribunal. Ms Harrington said in her oral evidence that she was a registered psychologist, and that her areas of work were amongst others, occupational rehabilitation, and vocational and work capacity assessments.
Ms Harrington noted in her report at Exhibit R1, that this referral had been to consider whether there was "suitable employment" within the terms of the legislation available to Mr Martin on the basis of my findings regarding Mr Martin's restrictions for the period 1992 to the "present".
In the section headed 'Summary and Conclusion' of her report at Exhibit R1, Ms Harrington stated as follows:
"11.1 Mr Martin is a 60 year old man who was employed as a Postal Delivery Officer when he sustained an injury to the right shoulder, resulting in the physical restrictions determined by Senior Member Ettinger, as outlined above. Since that time he has undertaken employment as a chauffeur/mail room worker/handyman (7 months), and as a Ward Assistant (11 months, incl.11 weeks as a trainee). While the heavier work performed prior to his injury would now be precluded, Mr Martin has demonstrated a capacity for work since his injury in the areas outlined above. I consider this work to be suitable employment as outlined in the Safety Rehabilitation and Compensation Act 1988, included with your referral.
11.2 It is reasonable to expect that, suitably motivated, Mr Martin could have obtained and maintained employment as above, over the period since 1992 (with the exception of his incapacity following surgery in 1997, resulting in an earning capacity as outlined above. When indexation is applied, it would be expected that the current NWE figures provided would exceed these wage rates over the period since 1992."
Mr Johnson asked Ms Harrington about the position of "Delivery Driver (Light – eg pathology courier)" discussed on page 7 of her report at Exhibit R1. I noted from paragraph 10.4 of Exhibit R1 as follows:
"Liaison by the author with various Sydney-based employers in this industry (including Macquarie Pathology, Douglass Hanly Moir and SDS Pathology), over the period since 1995 confirms that such employment is within Mr Martin's restrictions and skill base, with driving not exceeding 2 hours at a time. Driving duties are frequently punctuated by stops to collect and deliver pathology samples and equipment, which are unlikely to exceed his 15kg lifting limit. Mr Martin's previous experience as a driver, and excellent knowledge of the Sydney Metropolitan area would have helped make him competitive for jobseeking in this area. … Employment growth in his sector is also tied to the Health and Community Services Section which has had a good employment outlook over the period since 1992 (with 16% growth from 1989 to 1994). …"

Ms Harrington said that drivers who were self-employed and used their own vehicles, received higher rates of pay.
Ms Harrington also referred to Mr Martin's previous employment as a wards person. She also said that a ward assistant's wages were sometimes above award, but that that depended on the state of the labour market. She said that in 1997 the award wages were $434 but the Average Weekly Earnings ("AWE") were $446. In the year 2000 the award had been $475 and the AWE $483 she said.
Ms Harrington also referred to paragraph 10.5 of Exhibit R1, indicating that other suitable work for Mr Martin could be positions in the manufacturing industry such as "light assembly:ASCO code 9212-11; or machine operation in a light industry: ASCO 9211-11." She added in her report:
"His prospects for employment, however, would be significantly reduced by his age and by the nature of his injury, in an industry where overuse injuries are more common, and where in the author's experience, employers are significantly more wary regarding previous Worker's Compensation claims. …"

Ms Harrington also said that other suitable positions may have included work as a driveway attendant, console operator (Level 3 at $473.50 per week) or driveway/parking attendant ($413.40 per week).
Ms Harrington agreed in cross-examination with the proposition that Mr Martin's employment options were limited and that with his disabilities, his ability to sell his labour, and accordingly be remunerated, was also limited. Ms Harrington agreed in cross-examination that it was one thing to identify jobs in theory, but that it was another to obtain them. She added however that it was the experience of rehabilitation specialists to match their clients to the current market and that the abovenamed positions were suitable. Ms Harrington noted for the Tribunal that Mr Martin had already done the job of wardsperson, but agreed in cross-examination that the inability to perform the full range of duties could adversely affect obtaining suitable employment.
Ms Harrington disagreed with the proposition put in cross-examination that taking Mr Martin's disabilities into account, including his age, his neck problems and previous disabilities, it was more likely than not full-time work on the open labour market was not available to him.
When asked in cross-examination whether the majority of employers would not take an occupational health and safety risk and employ a person with disabilities even though the person could perform the full-time work satisfactorily, Ms Harrington said that she had no hard data, but that that could be a perception in the community.
evidence of ms h benari – occupational therapist
Ms Benari whose report of 5 September 2001 was before the Tribunal as Exhibit R5, gave oral evidence. Her qualifications were appended to her report. I noted that she had worked as an occupational therapist for 17 years.
Ms Benari stated in her report that Mr Martin had been referred for an assessment of:
the vocational options that may be available to him according to restrictions set out by Senior Member Ettinger in an Administrative Appeals Tribunal on 13/7/00 the income of any identified vocational option
Ms Benari also stated that in preparation of her report, consideration was given to the instructions noted above, but that she thought that the physical restrictions I had set out in my decision of 13 July 2000 were not conclusive in determining potential vocational options for Mr Martin. She stated that the following further factors needed consideration, including:

·      [Mr Martin's] His physical capacities, related to and not related to his injuries at Australia Post, beyond those set out by Senior Member Ettinger e.g. his neck pain relating to past injuries sustained with a previous employer, level of repetitive work that can be sustained below shoulder height and his abilities to lift weights under 15 kg on a repetitive basis
·     His behavioural and interpersonal capacities
·     His level of education
·     His employment history and acquired skills
·     The labour market

I was mindful from the Executive Summary in the report at Exhibit R5, that Ms Benari stated as follows:
"…
s.3      Mr Martin reported reduced tolerances for climbing, stooping, crouching, crawling, reaching, handling, lifting and sustaining forward flexed postures.
s.4      Mr Martin suffers from ongoing arthritis in his right shoulder which raises the possibility of further deterioration in the future.
s.5      He is not suited to work involving sustained higher level interpersonal capacities. He would prefer to have minimal or no public contact at work.
s.6      His transferable skills are limited as some involve physical activities of which he is no longer capable.
s.7      It is estimated that Mr Martin could sustain full-time employment in an appropriate occupation.
s.8      A review of recognised Australian occupations identified a range of occupations in the Major Groups of Intermediate Transport Workers, Elementary Clerical, Sales and Service Workers and Labourers and Related Workers as being appropriate alternatives for Mr Martin.
…
s.10     In my opinion, based on independent analysis of data published by the Australian Bureau of Statistics into the effects of injury on lifetime employment prospects, Mr Martin faces a reduction in his residual worklife of 70% as compared with an unimpaired person of similar age, sex and level of education.
…"
Ms Benari stated at paragraph 5.9 of her report (Exhibit R5), that "Mr Martin has a wide range of acquired skills, predominantly in the mining industry, postal services and driving." In the same report, she gave a review of potential occupations at section 6, and identified "suitable occupations" and average wages for 1993 and 1998 at paragraphs 6.3 and 6.7.
Ms Benari agreed when questioned, that the figures for employment and wages shown at section 6 of her report at Exhibit R5 were reliable.
When questioned about the availability to Mr Martin of the positions mentioned in her report, she agreed it would be difficult for him to obtain those jobs and said that it was possible, but not likely. She added that it would be difficult for the Applicant to obtain and sustain employment due to the many factors influencing his employment. Ms Benari agreed that in expressing the opinions reported in these paragraphs, she had taken into account Mr Martin's own account of his disabilities as reported to her and recorded at page two of her report (Exhibit R5), and the views of the psychologist with regard to Mr Martin's interpersonal capacities. Finally, she stated that:

Mr Martin was 60 years of age, had difficulties with interpersonal relationships, and poor transferable skills
Mr Martin had achieved employment at the Illawarra, albeit under a Government training scheme,
there were employers who "would give people a go".

My impression of her conclusions about Mr Martin were that given his restrictions, employment was possible but unlikely.
SUBMISSIONS AND CONCLUSIONS
Having heard the evidence and considered all the documentation, legislation and case law, and mindful of the decision of Wilcox J in Martin v Australian Postal Corporation [2000] FCA 1646, I had to come to a decision regarding whether Mr Martin could obtain full-time "suitable employment" within the bounds of the restrictions as found in my previous decision, and what he could earn, (applying section 19 of the Act), in "suitable employment". I had also to consider whether on the basis of Mr Martin's ability to earn, a differential resulted such that he had entitlement to compensation pursuant to section 19 of the Act.
I have given the background as to how this claim came to again be before the Tribunal in an earlier section of these Reasons, and that is not repeated here.
I am mindful that Wilcox J did not disturb the finding I made that Mr Martin could work within the restrictions I had listed in my decision of 13 July 2000. The evidence led, and submissions of both parties in this case, concerned themselves mainly with issues of "suitable employment" pursuant to section 19 of the Act. Both Ms Benari and Ms Harrington commented on Mr Martin's interpersonal skills, and what effect these might have with regard to "suitable employment".
I was mindful that in both earlier Tribunal decisions it had been held that Mr Martin was incapacitated for work for the period 23 June 1997 to 21 July 1997, (which occurred during the Illawarra Area Health Service employment period), and noted that this was not in dispute before this Tribunal.
I noted also that in earlier hearings, the dates given for Mr Martin's shoulder injuries to have become symptomatic were said to have been between the end of 1993 to early 1994, but that since the Federal Court had accepted that 1 January 1994 could be taken as the relevant date, I accepted that date as the nominal date, mindful however that Mr Martin left Australia Post for reasons unconnected with his work related injuries, noting that he entered voluntarily in employment with Panasonic four days later on 16 November 1992 until he resigned effective 25 June 1993, and that he was in employment with the Illawarra Area Health Service from 7 April 1997 until 19 April 1998.
I was mindful that it was common ground between the parties that the Respondent was not prepared to provide work for the Applicant, including work that fell within the restrictions stipulated in my decision. Mr Perry did however express on behalf of Mr Martin that the Applicant had stated he was at all relevant times willing to try to further work for Australia Post.
I moved then to consider the evidence and submissions regarding the implications for Mr Martin, of section 19 of the Act. Mr Perry submitted that having heard the further evidence, that is of Ms Harrington and Ms Benari, it was clear full-time work was not available to Mr Martin, and that the concept of full-time work for him was a fiction. He invited me to prefer the evidence of Ms Benari regarding Mr Martin's options, which he submitted indicated that work for him was in reality, not practically available.
Mr Perry submitted that the Applicant's primary position was that he was totally incapacitated for work. In that connection, I noted at page 681 of Appeal Papers Volume 2, Mr Perry's statement to the previous Tribunal hearing as follows:
"and perhaps I should have said this at the outset, my primary submission is that the applicant is totally incapacitated. The evidence for that submission is, from, of course, the applicant himself. It does not have the support of a medical practitioner …"
I rejected the submission that Mr Martin was totally incapacitated, and I found from the evidence before me that at 1 January 1994, the date at which it has been held that Mr Martin's shoulder injuries became symptomatic, he could work full-time (with the exception of the period 23 June 1997 to 21 July 1997) with the restrictions I listed, and taking into account the interpersonal skills discussed by Ms Benari and Ms Harrington who gave evidence before the Tribunal.
Mr Perry submitted that Ms Harrington had given evidence that some employers did engage disabled workers, but that when asked whether it was more likely than not that Mr Martin could find "suitable work", she was not able to be positive.
Mr Perry submitted that in considering whether work was available, the approach should not be a mechanical one, as this did not do justice between the parties.
Mr Perry emphasised that Mr Martin had experienced difficulties even prior to employment with Australia Post with regard to the sale of his labour, and that his injury now caused him to have a diminished ability to find work. He submitted that there was no full-time work available to Mr Martin.
Mr Perry submitted that the reasons for Mr Martin leaving Australia Post and Panasonic (which I noted from Mr Martin's evidence were his perception of being harassed at Australia Post, and disagreements with other staff in the case of Panasonic), were factors to be taken into account. In that regard I have also noted the evidence of Ms Benari and Ms Harrington and have taken Mr Martin's skills in interpersonal relations into account in the selection of occupations suitable to him.
Mr Perry acknowledged, referring to paragraphs 18 and 19 of my decision of 13 July 2000, that Mr Martin was in full-time employment with the Illawarra Area Health Service, (in 1997/98), and that he had left because the program ended. He emphasised however, that it was a program for the unemployed, and submitted it could not be compared to normal commercial employment. Mr Johnson disagreed with that proposition, and I noted that with the exception of the month or so during which Mr Martin had a period off for his operation and recuperation from 23 June 1997 to 21 July 1997, he worked 38 hours a week at the Illawarra Area Health Service, and was paid a training allowance of $321 per week. The course commenced on 7 April 1997 and concluded on 19 April 1998. Mr Martin's own evidence was that he had been able to do the work whilst favouring his right shoulder.
I was mindful of the evidence before me that Mr Martin worked in a variety of industries, including a long period in mining, labouring as a bakery oven operator, and as a store proprietor before joining Australia Post in February 1989 as a postal delivery officer. He found work at Panasonic Australia Pty Ltd ("Panasonic"), only four days after resigning from Australia Post on 12 November 1992. It was undisputed, and I accepted that following his resignation from Panasonic on 25 June 1993, as a result of disagreements with work colleagues, Mr Martin joined, and successfully completed the Government funded full-time work program at the Illawarra Area Health Service. I accepted the evidence which indicated that the termination of this program was the reason for Mr Martin leaving, and that he left for no other reasons such as his level of comfort or his health.
Mr Perry submitted that were I not satisfied with his submissions that Mr Martin could not find "suitable employment", then in the alternative, if Ms Harrington's opinion were to be accepted, and it was considered that Mr Martin was able to work as a ward assistant or personal care assistant, (noting that in 2000, the wages were $483 per week), the loss for the first 45 weeks would then be over $100 per week. Mr Perry submitted pursuant to section 19(2) of the Act, that this would be followed by 75 percent of the wage when applying section 19(3) of the Act, if Mr Martin was not employed subsequently. Mr Perry argued however, that in reality, from 1994 onwards, if Mr Martin could work at all, then at best he could have worked only 20 hours per week. Mr Johnson submitted however that Mr Martin could work full-time within the restrictions nominated in my previous decision and accepted by Wilcox J.
Mr Johnson, referring to the report of Ms Benari (Exhibit R5), submitted that the jobs and wages listed on page 17 of that report were taken from actual jobs rather than award rates, and that compared to the figures in Exhibit R3, the NSW/Act Workers Compensation - NWE Rates and Adjustments Table, there was no differential between what Mr Martin could earn in "suitable employment", and the NWE. Mr Johnson submitted therefore, that, relying on the report of Ms Benari, I was entitled to find that there was no differential between the NWE and Mr Martin's ability to earn between 1993 and the date of the hearing. Referring again to Exhibit R3, Mr Johnson submitted that it was more likely than not that the relativities were the same, and I accepted that submission. Mr Johnson also referred to Exhibit R6, the report of Ms Harrington, submitting that the actual earnings shown there were slightly higher than award wages.
Mr Johnson submitted in the alternative, that if I were to take as an example the potential jobs for Mr Martin which were paid at a wage lower than he had been receiving at Australia Post, such as ward assistant or personal care assistant, then there could be a small differential for the first 45 weeks when compared to his NWE. After the first 45 weeks, applying section 19(3) of the Act, there would be no difference, and the wage would be equal to or greater than the ward assistant as in Exhibit R6.
Mr Johnson submitted that pursuant to section 19(2) of the Act and the information regarding wages (before the Tribunal), for the ward assistant or pathology courier driver positions, there was a simple differential for the first 45 weeks comparing the NWE with the ability to earn in "suitable employment". As to the following period, Mr Johnson submitted that applying section 19(3) of the Act, there would be no liability.
With reference to section 19(4) of the Act, Mr Johnson submitted that "suitable employment" could be any employment because Mr Martin had been a permanent employee and had terminated that employment voluntarily and not as a result of any work related injury.
I noted that "suitable employment" pursuant to section 4(1) of the Act 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)."
I was mindful of Mr Johnson's submission, and noted that all paragraphs (a)(i) to (iv) in the definition of "suitable employment" as noted above, applied to Mr Martin because he had terminated his employment from Australia Post voluntarily for reasons other than the effect of injuries sustained during his employment. I was mindful also that 1 January 1994 was the date I had accepted as the date on which Mr Martin's injury became symptomatic.
Mr Johnson submitted that the "suitable employment" from Ms Harrington's report be used as a basis for assessment (Exhibit R1, paragraph 9, pp 5-6). Mr Johnson referred to the position Mr Martin held at the Illawarra Area Health Service, emphasising that this had terminated not for any other reason than that the program had come to an end, and submitting that Mr Martin could work as a ward assistant or as a personal care assistant. He emphasised that persons over the age of 45 could find employment in these positions, and also, that taking into account Mr Martin's disabilities, it should be noted that there were hydraulic devices in use for the lifting of patients.
Mr Johnson referred again to paragraph 10.4 of Ms Harrington's report, submitting that Mr Martin could also work as a delivery driver, in a position where extensive lifting was not required.
Mr Johnson also emphasised the findings made that Mr Martin had failed to seek employment and I was mindful of the application of section 19(4)(e) of the Act in that regard.
My task then was to compare, pursuant to section 19 of the Act, the amount of Mr Martin's normal weekly earnings with Australia Post, with the amount per week he could, since 1 January 1994, earn in "suitable employment".
In summary the "suitable employment" pursuant to the Act which I have identified from the submissions of the parties and application of the legislation, I have taken from the reports of both consultants. I am minded to find based on the evidence before me:

Mr Martin could work full-time within the restrictions as found and documented in my previous decision of 13 July 2000 (Martin v Australian Postal Corporation [2000] AATA 577) and except for the period for a month during June/July 1997 when he underwent surgery.
Mr Martin resigned from Australia Post on 12 November 1992 and went straight into full-time employment with Panasonic where he stayed from 16 November 1992 until his resignation on 25 June 1993 because of disagreements with staff.
Mr Martin worked successfully and fully with the Illawarra Area Health Service on a 38 hour week Government funded program in which he participated from 7 April 1997 until its conclusion on 19 April 1998(with the exception of a month off for surgery).
The only reason Mr Martin left the Illawarra Area Health Service was the termination of the Government assisted program.
I have distilled from the reports of Ms Benari and Ms Harrington that Mr Martin is able to work full-time within his physical restrictions as a car park attendant, ward assistant or personal care assistant, or as a courier driver in a delivery position, without heavy lifting, and in some other positions nominated in their reports.

I have noted that Mr Martin's interpersonal skills may cause a difficulty in obtaining and maintaining employment, but find that in the positions mentioned above, particularly as a car park attendant, courier driver or ward assistant, those issues may be optimised.
I have noted further from Ms Harrington's report (Exhibit R1), that Mr Martin's transferable skills included "sound verbal communications (tangential at times)"; basic written communication skills sufficient for use of most forms or data entry; sound problem solving and logical reasoning skills; ability to follow instructions and to work unsupervised; and sound knowledge of the Sydney Metropolitan area or expected ability to refresh same.
I have noted Ms Harrington's statement that while the labour market information she has given related mainly to the Sydney metropolitan area, Mr Martin demonstrated a willingness to move considerable distances in pursuit of employment. She gave the example of a move from Coffs Harbour to Sydney.

I noted that Ms Harrington stated in her report at Exhibit R1 that as to ward assistant and personal care assistant: "Workers over 45 years of age are the most strongly represented in this workforce. … The employment outlook in this area is considered sound, … Approximately one third of jobs are located in rural areas in NSW."
As to delivery driver, Ms Harrington stated that she had been in touch with various pathology laboratories who confirmed that driving positions were available, and that she considered such employment was available to Mr Martin given his previous experience as a driver, geographical knowledge and notwithstanding his restrictions and skill base.
Ms Harrington also indicated that other positions such as machine operation in a light industry were within Mr Martin's capabilities, but that employment in manufacturing industry was more difficult to obtain than positions as driveway attendant or as a parking attendant.
Having considered the evidence before me, I then turned to consider the following table which gives figures for NWE for Mr Martin as supplied by the parties and their witnesses, as well as wages for pathology couriers and wardspersons. I am mindful that I did not have the exact corresponding dates for NWE and for the various positions. I am mindful also that in some positions which might be suitable for Mr Martin, the market rates were higher than Australia Post's NWE. There can however be no argument that we are dealing here with beneficial legislation, and accordingly, I have selected the dates as available in the documents before me, and the two lower paid positions nominated as jobs suitable for Mr Martin, that is pathology courier and wardsperson. I was mindful that Mr Martin has experience in driving, that his geographical knowledge of Sydney would stand him in good stead, and that a pathology courier is generally not required to lift heavy items or drive continuously for long distances. As to the wardsperson position; the Illawarra Area Health Service position has provided Mr Martin experience in that field.
Date    Australia Post NWE Pathology Courier    Wardsperson
(R4) 30 September 1993  (R4) $397.60 – 1st year (R6) $397.60 (R4) $400.70 2nd year
(R3) & (R6) 21 October 1993     (R3) $463.34 (R6) $463.34 n.a.    n.a.
(R6) 25 February 1994     n.a.     (R6) $400     n.a.
(R6) & (R4) 25 July 1994 n.a.     n.a.     (R6) $408.70 (2nd year & after) (R4) $405.60 – 1st year (R4) $408.70 – 2nd year
(R3) & (R6) 20 October 1994     (R3) $472.61 (R6) $472.61 n.a.     n.a.
(R6) 1 March 1995 n.a.     (R6) $408     n.a.
(R3) 20 April 1995    (R3) (R6) $479.70        n.a.            n.a.
(R4) (R6) 9 May 1995   (R4) 1st year $413.60 (R4) 2nd year $416.70 (R6) $416.70
(R1) (R3) (R6) October 1997 (R4) 28 August 1997    (R3) 30 October 1997 - $541.78                 n.a.     (R1) $446. (R4) 1st year -$431.60 (R4) 2nd year - $434.70
(R3) 5 March 1998 (R6) 30 June 1998    (R3) (R6) $555.32    (R6) $448        n.a.
(R4) (R6) 18 August 1998 n.a.     n.a.     (R4) 1st year -$445.60 (R4) 2nd year - $448.70 (R6) $448.70
(R3) (R6) 1 April 1999        (R3) (R6) $577.53    n.a.     n.a.
(R1) (R3) 2000        (R3) (R6) $591.97    (R6) 12 August 2000 – $475         (R1) $483 (personal care &nursing asst) (R4) 1st year - $472.60 (R4) 2nd year - $475.80
(R1) 2001 (R4) (R6) August/September 2001 (R3) 4 January 2001 – $603.81    (R1) $492.56    (R6) $488     (R1) $472.60   (R4) 1st year – $485.60 (R4) 2nd year - $488.70 (R6) $488.70

I am mindful that Ms Benari (Exhibit R5), did not consider wardsperson as a suitable occupation for Mr Martin due to heavy lifting. Other evidence before me however, which I accepted, indicated that lifting devices were available, and I have considered on the basis of that evidence and Mr Martin's previous experience at the Illawarra Area Health Service, that he could work as a wardsperson. Taking into account the table above to consider Mr Martin in employment as a ward assistant, personal care assistant or courier driver, I have noted that the differential available to him in the first 45 weeks from January 1994, (section 19(2) of the Act), would be the difference between the figures given for his NWE and the figures listed in the other columns of the table above. The figures available to me did not fit exactly within the time frames given, and the evidence before me suggested that market rates for these occupations could be above award rates. However these were the figures before me and I have used them; as I did not have a figure for 1 January 1994, I have used October 1993 as a guide. The NWE at October 1993 was $463.34, and the difference between that figure and what Mr Martin could earn as a wardsperson at $397.60, would be the differential referred to in section 19(2) of the Act, and payable to him pursuant to the Act. By July 1994, Mr Martin could have earned $405.60 as a wardsperson, still less than the $463.34 (NWE given in Exhibit R3), or indeed the figure of $472.61 given for NWE in October 1994. That was still within the first 45 weeks referred to in the Act, and Mr Martin would therefore still have been eligible to be paid the differential pursuant to section 19(2) of the Act. To ensure accuracy, I remitted the final calculation to be made by the Respondent.
I then considered Mr Martin's situation in employment as a wardsperson with regard to compensation in relation to section 19(3) of the Act, that is for the period after the first 45 weeks. I was mindful of the wages of a wardsperson, Mr Martin's NWE as shown in Exhibit R3, and the formula in section 19(3) of the Act, and find that there was no further differential available to him. Once again, to ensure accuracy, I remit the final calculation to the Respondent.
I then turned to Mr Martin's situation in relation to employment as a pathology courier, where again the evidence was that an owner driver could earn more than the award. However, I took the award payment as a benchmark and compared it to the NWE as shown in the table above. At January 1994, the commencement of the compensation period, NWE was, pursuant to Exhibits R3 and R6, in the vicinity of $463.34 whereas the award for a pathology courier was $400. The differential was then the difference between the NWE which could have been marginally more than $463.34 (shown for October 1993), and the $400 wage for a pathology courier. By October 1994, NWE was $472.61, whereas the pathology courier rose to $408 by March 1995. Once again it is the differential as calculated according to section 19(2) of the Act, and to ensure accuracy, I remitted the final calculation to be made by the Respondent.
I then considered Mr Martin's situation in employment as a pathology courier with regard to compensation in relation to section 19(3) of the Act, that is for the period after the first 45 weeks. I was mindful of the wages of a pathology courier, Mr Martin's NWE as shown in Exhibit R3, and the formula in section 19(3) of the Act, and found that there was no further differential available to him. For the sake of accuracy, I remitted the detail of the calculation to the Respondent.
Ms Benari in her report at Exhibit R5, also gave a comparison of average wages for a number of other positions which she opined would be suitable employment for Mr Martin. She dismissed bowling alley attendant and ticket collector/usher on the basis of their "intensive interpersonal requirements with working with the general public." I accepted that.
Ms Benari did however make some suggestions as follows (Exhibit R5):
Designated position 1998 – average wage        1993 – average wage
Mail clerk      $631   $556.44
Registry and filing clerk     $592   $522
Meter reader $609   $537
Video library assistant        $609   $537
Railways assistant   $609   $537
Car park attendant   $609   $537
Crossing supervisor $164   $144.62
Leaflet & newspaper deliverer      $20 per day

In considering the table directly above based on Ms Benari's evidence, I discounted "clerk", as I found from the evidence that it was unlikely Mr Martin would be suited to clerical work, neither that Australia Post would offer it to him. I was mindful that January 1994 had been taken as the date when Mr Martin's shoulder injuries first became symptomatic and section 19 considerations arose. I was mindful also that in comparing Mr Martin's NWE as listed in document Exhibit R3, and R6, where NWE in October 1993 were given as $463.34, with those given above in Exhibit R5, the wages for meter reader, video library assistant, railways assistant and car park attendant were higher than the NWE figure for the same period. Should it be relevant, on the basis of the same documentation, this applied similarly for 1998.
Crossing supervisor and leaflet and newspaper deliverer were calculated at part-time rates, and did not strictly apply as I have found that Mr Martin could work full-time with the restrictions as stated above.
I therefore decided that Mr Martin could work in occupations such as meter reader, video library assistant, railways assistant and car park attendant where the wages were higher than the NWE figure for the same period. In the alternative, he could work as a wardsperson or pathology courier, where applying section 19 of the Act, there was a differential as stated above for the first 45 weeks, and no differential thereafter. As the legislation is unquestionably beneficial, I have calculated Mr Martin's section 19 entitlements taking into account the positions of wardsperson and pathology courier which attract a lower wage than some others mentioned above, and measured them against the NWE.
DECISION
I find on the basis of the evidence before me that, as demonstrated in the Table at paragraph 65 of these Reasons for Decision, and applying section 19(2) of the Safety Rehabilitation and Compensation Act 1988 ("the Act"), there is a differential in wages between Mr Martin's Normal Weekly Earnings ("NWE"), and the positions of wardsperson and pathology courier driver for the relevant period for the first 45 weeks, commencing, 1 January 1994. Applying section 19(3) and other relevant sub-sections of the Act thereafter, I find that there is no further compensation payable.
I remit the matter for calculation of the final detail to the Respondent, the Australian Postal Corporation.
Costs are awarded pursuant to section 67 of the Safety Rehabilitation and Compensation Act 1988 pursuant to the AAT's Practice Direction.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  10 October 2001
Date of Decision  15 April 2002
Counsel for the Applicant        Mr M Perry
Solicitor for the Applicant         Fishburn Watson O'Brien Solicitors
Counsel for the Respondent    Mr J Johnson
Solicitor for the Respondent    Australian Government Solicitor