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.
"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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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The case of Martin and Australian Postal Corporation was heard by the Administrative Appeals Tribunal (AAT) and involved a dispute regarding compensation for Mr Martin, who had sustained shoulder injuries during his employment with Australia Post. The primary issue before the Tribunal was whether Mr Martin could obtain full-time "suitable employment" within the restrictions outlined in previous decisions and, if so, what his potential earnings would be under such conditions. Additionally, the Tribunal had to determine if there was a differential between Mr Martin's capacity to earn and his notional wage earnings (NWE), entitling him to compensation under section 19 of the relevant Act.
The legal issues centred around interpreting "suitable employment" and assessing Mr Martin's capacity to earn within the restrictions imposed by his injuries. This involved considering expert evidence from a psychologist and an occupational therapist, Ms J Harrington and Ms H Benari, respectively. Both experts provided insights into Mr Martin's physical and interpersonal capabilities, and the impact these had on his ability to secure and maintain employment. The Tribunal also had to weigh this evidence against the legislative criteria for "suitable employment" and the concept of a differential in earning capacity.
In its reasoning, the Tribunal acknowledged the evidence provided by Ms Benari, who identified a range of occupations suitable for Mr Martin based on his physical restrictions and skill set. However, Ms Benari also noted that Mr Martin faced a significant reduction in his residual worklife, suggesting that despite the availability of some occupations, securing full-time employment was unlikely. The Tribunal accepted that Mr Martin could work within the restrictions set out in earlier decisions but found that the practical availability of full-time suitable employment was limited. This conclusion was supported by the evidence indicating that Mr Martin's earning capacity was substantially reduced, leading to a differential between his actual earning potential and his NWE for the first 45 weeks post-injury. Consequently, the Tribunal ruled in favour of Mr Martin, awarding compensation based on this differential.
The final orders of the Tribunal included an award of compensation to Mr Martin for the differential between his capacity to earn and his NWE for the initial 45 weeks following the date his injuries became symptomatic. The Tribunal did not extend the compensation beyond this period, finding insufficient evidence to support a continued differential in earning capacity thereafter.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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
Evidence
Evidence Before The Court
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: 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.
Decision
Reasons for decision
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.
