Moore and Comcare
[2003] AATA 1005
•7 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1005
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/520
GENERAL ADMINISTRATIVE DIVISION )
Re DANIEL PAUL MOORE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date7 October 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)......................
O Rinaudo
Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – capacity to work – whether applicant is able to work – nature of work which applicant is able to perform – “suitable employment” – assessment of rate of possible earnings from suitable employment
Safety, Rehabilitation and Compensation Act 1988 s 14
Pulitiano v Telstra (1998) 50 ALD 1015
Comcare v Line [2002] FCA 553
Comcare v Line [2002] FCFCA 321
Re Apostolidis and Comcare (AAT No 10431, 27 September 1995)REASONS FOR DECISION
7 October 2003 Mr O Rinaudo, Member Reviewable Decision
1. Mr Daniel Paul Moore makes application to review the decision of the Department that his entitlement to receive incapacity payments for his accepted back condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) ceased on and from 3 July 2000. This decision was affirmed by the Reconsideration Delegate on 10 May 2001.
2. At the hearing the applicant, Mr Moore, gave evidence. In addition to Mr Moore’s evidence, evidence was also taken from Mr Trevor Little; Dr Bruce Low, Orthopaedic Surgeon; Dr Richard Gibberd, Orthopaedic Surgeon; Miss Kathryn Purse, Occupational Therapist; Ms Hemmett, Rehabilitation Consultant and Dr John Cameron, Neurologist.
3. In addition to the oral evidence the following documents were tendered into evidence and marked as exhibits.
§Exhibit 1 “T” Documents
§Exhibit 2 Statement of Daniel Paul Moore dated 12 January 2002
§Exhibit 3 Statement of Daniel Paul Moore dated 27 February 2002
§Exhibit 4 Statement of Daniel Paul Moore dated 21 October 2002
§Exhibit 5 Report of Dr Bruce Low dated 24 April 2001
§Exhibit 6 Report of Dr Bruce Low dated 22 June 2001
§Exhibit 7 Report of Kathryn Purse dated 13 August 2001
§Exhibit 8 Report of Dr John Cameron dated 20 December 2001
§Exhibit 9 Statement of Trevor Little undated
§Exhibit 10 Rehabilitation Plan from CRS Australia
§Exhibit 11 Letter from Australian Army, dated 12 March 1998, regarding discharge
§Exhibit 12 Confidential Report from Department of Defence dated 24 June 1996
§Exhibit 13 Confidential Report from Department of Defence dated 15 May 1998
§Exhibit 14 Position Profile – Department of Veterans’ Affairs
History and Background
4. The applicant enlisted in the Australian Regular Army on 26 April 1990 serving in the Infantry. Upon discharge on 28 June 1998 he had reached the rank of Lance Corporal. He was discharged medically unfit.
5. On 10 January 1996, the applicant injured his back during a company organised combat fitness test when he was required to lift a man twice his weight in what is described as a fireman’s carry.
6. On 19 March 1997, a delegate under the Act admitted liability for “chronic back pain due to disc degeneration of pars defect at L5/S1 on 10 January 1996”.
7. On 23 June 1997, the applicant was determined to have suffered a 15% whole of person impairment as a result of his injury and received a lump sum payment for that impairment and for non-economic loss. On 10 May 2001, a Review Delegate of the Department affirmed the decision made on 6 June 2000 to cease incapacity payments. In the Review Delegate’s report he stated:
“Doctor Gibberd, in his reported, had stated; ‘I believe this man is fit for any light to moderate duties, ie on a full time basis, definitely this to include sedentary work or even storeman’s work. I believe Mr Moore is only incapacitated for heavy labouring type occupations’. Consequently, in the decision of 6 June 2000, you were deemed able to earn as a clerk.
As you did not agree with the medical opinion as stated by Dr Gibberd, you requested and were granted an extension of time to obtain a second opinion. Unfortunately, the report from Dr Low, which you have provided, does not address the issue of your capability for work and in no way challenges the report of Dr Gibberd. In the matters which Dr Low has chosen to address, there would appear to be complete consistency with the earlier report of Dr Gibberd.
Therefore, I have no reason to believe that Dr Low disagrees with the functional assessment provided by Dr Gibberd and have no choice but to accept the report of Dr Gibberd. Consequently, I accept that you may be deemed able to earn in accordance with Section 19(4) of the Act.”
8. It is this determination which the applicant seeks to have reviewed. The applicant contends that he is either unable to carry out any work at all in which event the amount he is able to earn in suitable employment is nil or, alternatively, he would be able to work on a part-time basis at approximately half the amount assessed by the respondent.
Issues
9. The issues for the Tribunal are whether the applicant is able to undertake suitable employment and, if so, what amount would the applicant be able to earn in such employment.
Medical and Expert Evidence
10. Dr Bruce Low in his report dated 3 March 1997 stated that, in his view, the applicant “is fit for sedentary work”. On 14 May 1997, Dr Low considered that the applicant had a 10% whole person impairment under Table 9.5 in respect of his back injury.
11. On 30 July 1998, Associate Professor Bruce McPhee reported that the applicant:
“…would be ill-advised to take on work which was of a moderately heavy to heavy manual nature. He should be capable however of full-time employment in work which is sedentary or light manual.”.
He also opined that the applicant “should be fit to return to appropriate work”. He regarded the applicant as capable of “work which is sedentary or light manual in nature”.
12. Occupational Therapist Carmen Nevin of the Commonwealth Rehabilitation Service said in summary that:
“Mr Moore reports that he has been gradually increasing his activity level by exercising and working around his property over the past few months and considers that his physical condition has improved significantly. He states that he is pain free most of the time and feels optimistic that he can continue to manage well if he is careful to avoid situations which present a risk of injury.”
13. She stated that:
“His right leg injuries and degenerative back condition would place restrictions on his job opportunities, however, when defining suitable duties the following guidelines are advised:
· Avoid jarring/vibrational movements – eg driving cars/machinery over rough ground, applying forces with jerking and jarring components.
· Avoid prolonged static positions – eg sitting or standing for long periods.
· Avoid prolonged weight bearing activities – eg standing and walking for long periods – especially over rough or uneven ground.
· Avoid climbing activities – eg ladders, scaffolds, frequent stair climbing.
· Limit loads to 25 kg – on an occasional basis only.
· Restrict lifting to between hip and shoulder height.
· Restrict all repetitive or sustained work in low level positions – eg squatting and crouching.
· Avoid standing and stooping or forward leaning postures – eg working at low benches.
· Avoid all moderate to heavy manual handling.”
14. Ms Nevin summarised her assessment as follows:
“The most suitable duties would allow frequent variation of postures – eg desk work combined with standing and walking or short duration driving, would be suitable. Mr Moore is considered capable of performing some manual handling duties on an occasional basis with the above restrictions enforced, however Occupational Therapy work site assessment is further advised to facilitate return to work.”
15. Dr Douglas Scott, Consultant Psychiatrist reported on 23 August 1999:
“He said that this injury has stopped him doing simple jobs however later in the interview he described being able to chop down trees, build pig pens and was really quiet capable of strenuous activity.”
16. In a report dated 10 May 2000, Occupational Therapist Belinda Hemmett carried out a functional capacity evaluation on the applicant. Under the heading “Work Suitability” at page 5 of the report Ms Hemmett stated:
“Results on the day of the assessment indicate that Mr Moore is most suitable for employment within the light category of physical work demands.
…
Employment as a clerk or computer technician would be examples of suitable employment in the light work category. Mr Moore would be suitable for this type of employment for up to eight hours per day, five days per week.”
Ms Hemmett subsequent recommended that:
“1.Mr Moore is suitable for employment within the light category of physical work demands for up to eight hours per day, five days per week. Suitable employment for Mr Moore should allow for adequate task rotation from sitting to standing (every 30-40 minutes) and not involve repetitive crouching, kneeling, stair climbing, or forward/overhead reaching.
2.Employment as a clerk or computer technician would be examples or suitable employment in the light work category, however a vocational assessment is recommended to determine more appropriate job options within this category.”
17. On 1 June 2000, Dr Richard Gibberd, Orthopaedic Surgeon, reported, subsequent to his examination of the applicant on 31 May 2000, that:
“9.I do not believe the employee can perform the duties of his pre injury employment.
10.I believe this man is fit for any light to moderate duties, i.e. on a full time basis, definitely this to include sedentary work or even storemans work.
11.I believe Mr Moore is only incapacitated for heavy labouring type occupation.”
18. In his report of 22 June 2001, Dr Bruce Low, Orthopaedic Surgeon (Exhibit 6), reported that the applicant:
“…is capable of doing sedentary work. Sedentary work encompasses a lot of different sorts of work which do not involve repetitive bending and twisting of the lumbar spine under load.
People with back pain can sometimes tolerate sitting better and some can tolerate standing better. Most people with back pain would prefer to alternatively sit and stand and walk to relieve the pain. Sitting for prolonged periods of time in the one spot may be the cause of some significant low back pain.”
19. In her report dated 13 August 2001, Ms Kathryn Purse, Occupational Therapist (Exhibit 7) summarised the applicant’s work capacity on page 4 of her report under the heading “Conclusions and Opinion” as follows:
“7.1Mr Moore experiences a significant impairment of function as a result of his back injury and chronic back and leg pain. His physical capacities are restricted.
His continuous sitting tolerance is restricted to about 1 Hour.
His continuous standing tolerance is restricted to about 30 minutes.
His lifting and carrying capacity is restricted to light loads.
He is unable to squat comfortably.
He is able to kneel.
Is ability to use his hands and arms is only limited by his postural tolerances.
7.2Mr Moore has some limitations in his capacity to attend to the normal activities of daily living including household chores and leisure pursuits. He manages domestic chores by using some modified methods so as to avoid bending, stooping and load handling, and by pacing out the tasks over time.
7.3Mr Moore has restrictions in his capacity to engage in employment. The testing indicates that he is now suited to light work that allows for alternating postures throughout the working day.
It is my opinion that he would be physically capable of undertaking office/administrative/clerical duties and working on computers in a technical position. The testing indicates that he is not suited to work as a storeperson due to the demand for frequent and repetitive load handling.
He is obliged to endure varying levels of back pain during the course of working and studying.”
20. On 20 December 2001, Dr John Cameron, Consultant Neurologist, confirmed in his report (Exhibit 8) that:
“I believe this man could perform light duties and also office and sedentary type work.”
Legislation
21. The relevant legislation in this matter is as set out in sections 4, 14 and section 19 of the Act. Those sections relevantly read:
“Section 4: Interpretation
(1) In this section, unless the contrary intention appears: …
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).
…
Section 14: Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
Section 19: Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.
…
(3) Subject to this Part, Comcare is liable to pay compensation 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), of an amount calculated using the formula:
(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 (including self-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.”
Consideration
22. The respondent called evidence from a Mr Trevor Little who said that he was the Manager of the Mt Gravatt office of Sarina Russo Job Access and had been in the employment services industry for 16½ years. Mr Little provided a statement (Exhibit 9) which states as follows:
“2.At the moment the job market in Brisbane is generally buoyant across the board with moderate growth in employment. The job market with respect to clerical and administrative work is always quite reliable and is particularly so now, with a diversity of positions available.
3.In recent years the public sector market has declined somewhat with the privatisation of major public sector employers. It stands to reason that this has created further opportunities in the clerical/administrative market. There are now also a lot of administrative/clerical roles that used to be public but are now private.
4.In terms of income, a person carrying out a Level 1 Clerical role would earn approximately $25,000 pa, a Level 2 Clerical role approximately $27,500 and a Level 3 Clerical role approximately $29,000.
5.It would be reasonable to expect someone to travel from Ipswich to Brisbane for employment. The trip take approximately 35 minutes by train.
6.In the main, employers are far more interested in the skills and attributes of a potential employee rather than their disability. Having said this, a person with a back condition would likely face prejudice in a job which was physically demanding but not with respect to a job which was sedentary in nature.
7.Employers in the private sector are willing, if necessary, to modify the workplace/workplace practices to accommodate a person’s disability. Employers in the public sector are even more willing to do so. The public services’ ‘reasonable adjustment’ policy requires them to undertake reasonable adjustment to facilitate a person’s employment (ie take regular breaks, create an ergonomic work-station and if necessary have an occupational therapist make an assessment with respect to modifying the work-station/duties).
8.There are also numerous employment opportunities in a number of industries, such as hospitality, for people with limited skills, provided they are willing to undertake a traineeship/undergo courses for new and enhanced skills.”
23. In cross-examination, Mr Little acknowledged that people with back problems were at a disadvantage in the workplace. However, he said that his role was to help people with such disabilities into employment. He said that his company had had success “in putting people with bad backs into employment”. Whilst he acknowledged that making modifications did cost money, he said that employers were willing to undertake this and that they were prepared to employ people with back problems. He also acknowledged that having a back complaint could be a problem in the workforce because backs could be “problematical”.
24. In this case the applicant did not resign his position so the factors to be considered by the Tribunal when considering the issue of the definition of “suitable employment” are those set out in subsection (a) of section 4(1).
25. In considering the matters set out in that subsection the Tribunal has had regard to the decisions of Pulitiano v Telstra (1998) 50 ALD 1015, Comcare v Line [2002] FCA 553, and Comcare v Line [2002] FCFCA 321 where the words “suitable employment” were considered. The Full Court (Nicholson J) made the following observations in Line:
“45 The case for the appellant then submits that when regard is had to the function which the term ‘suitable employment’ performs in s 19 of the Act, the words ‘employment by the Commonwealth’ should be understood as meaning ‘employment of the nature concerned with the Commonwealth’ and not simply ‘employment by the Commonwealth alone’.
Reasons of the primary judge
46 His Honour considered a submission on this issue made on behalf of the then applicant based upon observations by Emmett J in Pulitano v Telstra Corporation Ltd (1998) 50 ALD 1015. The submission was that ‘suitable employment’ referred to ‘employment of the nature concerned with the Commonwealth and not simply by the Commonwealth alone’; that is, it was not dependent on continuing employment with the Commonwealth.
47 His Honour examined the facts in Pulitano in some detail because the applicant before him had claimed that Emmett J's observations formed part of the ratio decidendi whereas the respondent had contended the remarks were obiter dicta. His Honour concluded the situation in Pulitano was one where Mr Pulitano had received an offer of suitable employment by Telstra but, after commencing such employment, had failed to continue to engage in that employment. In that situation s19(4)(c) had entitled the delegate to have regard to the amount per week that Mr Pulitano would have been earning as a petrol bowser attendant if he were engaged in that employment.
48 However, Emmett J had given consideration (in the alternative) to what might have been the position if s 19(4)(c) had not been applicable. Emmett J said he would, in those circumstances, have rejected the applicant's contention that once employment had been terminated there was nothing to be deducted in making a calculation under s 19(3)(b). Emmett J had then said (at pp 1016 - 1017):
‘However, I consider that the term "suitable employment" where it is used in s 19 is, as Heerey J says (at ALD 29; ALR 384):
"... concerned with the amount the employee is able to earn in ‘suitable employment’.”
Thus the term refers to employment of the nature concerned with the Commonwealth and not simply employment by the Commonwealth alone.
However, for the reasons which I have indicated I do not consider that on a fair reading of all of the material, the matter goes beyond a determination of the tribunal in accordance with section 19(4)(c). For those reasons I consider that the appeal should be dismissed.’
Carr J concluded it was quite clear that the observations of Emmett J were obiter dicta. He did not think that it was a fair construction of what Emmett J had said in the paragraph quoted that the term ‘suitable employment’ in s 19 of the Act referred to employment of the nature concerned with the Commonwealth by an entity other than the Commonwealth. In his view his Honour was referring both to employment of the nature concerned and to such employment being ‘with the Commonwealth’ as contrasted with simply ‘employment by the Commonwealth alone’. That is, he considered that the word ‘alone’ did not refer to the possibility of an alternative employment. Carr J regarded such a conclusion as perfectly consistent with par (a) of the definition of ‘suitable employment’ which refers to work ‘for which the employee is suited’. He also considered it was consistent with the fact that Emmett J had just expressed agreement with Heerey J in Chenhall. For these reasons he rejected the applicant's alternative argument based upon its construction of what Emmett J said in Pulitano.”
26. The court said in agreeing with this reasoning:
“50 I agree with the views of Carr J in relation to what was said by Emmett J in Pulitano. In particular, I consider that to read the words as the appellant urges would be inconsistent with the reference to work ‘for which the employee is suited’ in the relevant part of par (a) of the definition of ‘suitable employment’. I note, as did the primary judge, that Emmett J had expressed agreement with Heerey J in Chenhall.
51 In relation to the examples given by the appellant to illustrate absurdity, they are not in my view such as to make the statutory construction wrong as a matter of law. If such events occur they would be supportive of the need for amendment of the Act by Parliament, a course hitherto abjured.
52 For these reasons I do not consider this ground of appeal is made out.”
27. It is clear from the evidence that the applicant is trained to undertake clerical duties and is currently studying to improve his skills and hence his appeal as a potential employee.
28. He says that he enrolled in a Certificate of Engineering course at James Cook University in 2000 and attended part time in the second semester of 2000. He had problems with this study including headaches and was uncomfortable sitting requiring him to alter his sitting position regularly.
29. Mr Moore says that he wants to work. He is depressed that he is not working. He says that his move to a new career in computing is necessary for “my sense of personal self worth and well being as well as the only way I can see my way to a continued working career”.
30. The Tribunal is satisfied that the overwhelming preponderance of medical evidence that the applicant is fit for light duties must be accepted. The Tribunal is satisfied that suitable employment is available to the applicant if he was to look for it.
31. The Tribunal notes that Mr Moore has not sought employment recently. On this issue regard must be had to the decision of Re Apostolidis and Comcare (AAT No 10431, 27 September 1995):
“38. I find that Mrs Apostolidis' attempts to seek suitable employment have been inadequate. The sending of one letter to a personnel agency with no follow‑up, and a vague mention of looking at employment boards at the CES, once again with no follow‑up, and a statement that newspapers have been looked at and telephone calls made do not satisfy me that Mrs Apostolidis made a genuine attempt to seek suitable employment. I agree with Mr Ryan's submission that, as was said by the Tribunal in Re Anderson and Director‑General of Social Security, unreported, 17 August 1981, there is a distinction between serious efforts to seek employment and token ones. I find that Mrs Apostolidis did not make serious efforts to seek suitable employment. My finding in this respect is reinforced by the evidence that Ms Cynthia had advised Mrs Apostolidis by letter in September 1990 that she should keep records of attempts to seek suitable employment. In the light of that advice her failure to produce any records or give any detail of attempts to seek suitable employment beyond one letter sent to a personnel agency seems to me to be not consistent with genuinely seeking suitable employment.
39. I have already found that Mrs Apostolidis still suffers some incapacity as a result of her compensable injury. But I am also satisfied that she has ‘failed to seek suitable employment’ within the meaning of that term in s.19(4)(e) of the Act. Thus, in accordance with s.19(4) of the Act, in determining for the purposes of subsections 19(2) and 19(3) of the Act the amount per week that Mrs Apostolidis would be able to earn in suitable employment, I find that Comcare should have regard to ‘the amount per week that, having regard to the state of the labour market’ from 21 April 1994, Mrs Apostolidis could reasonably be expected to have earned in employment in office work, clerical work or secretarial work. Under paragraph 19(4)(g) of the Act it is appropriate to have regard to the amount Mrs Apostolidis could reasonably be expected to earn in such employment working the same number of hours as were taken into account in calculating her ‘normal weekly earnings’ in accordance with the formula in s.19(2) of the Act.”
32. In this case the Tribunal is satisfied that the applicant is able to be employed, having regard to the evidence of Mr Little, which the Tribunal accepts, in clerical employment at a rate of $25,000.00 pa being equivalent to Level 1 Clerical position.
33. Accordingly the Tribunal is satisfied that the applicant is no longer entitled to receive incapacity benefits. The Tribunal affirms the decision under review.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 24 and 25 October 2002 (at Townsville)
Date of Decision 7 October 2003Counsel for the Applicant Mr D Hanchin
Solicitor for the Applicant Purcell Taylor
Counsel for the Respondent Mr P Bickford
Solicitor for the Respondent Blake Dawson Waldron
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