Pelgrave and Comcare - [2002] AATA 301

DECISION AND REASONS FOR DECISION [2002] AATA 301

ADMINISTRATIVE APPEALS TRIBUNAL )

)Nos. S1999/144 & S2000/487

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ANTHONY MARK PELGRAVE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date2 May 2002
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decisions under review.
  (Signed)
  J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
COMPENSATION - left wrist injury – whether applicant incapacitated for work as a result of the ongoing effects of his injury or an aggravation of his injury – whether applicant is able to earn an amount in "suitable employment".
Safety, Rehabilitation and Compensation Act 1988 - section 19
Australian Postal Corporation v Nadge, Federal Court, 21 June 1994, 463/1994
Woodbridge v Comcare (1994) 20 AAR 196
Ghattas and Australian Telecommunications Corporation (AAT 7058, 20 June 1991)

REASONS FOR DECISION

2 May 2002 Senior Member J.A. Kiosoglous MBE

These are applications for review by Mr Anthony Mark Pelgrave (the applicant) for review of the reconsideration of the respondent (S1999/144) dated 30 March 1999 (S1999/144 - T2) which affirmed a determination of the respondent dated 3 November 1998 (T20) and to also review a reconsideration of the respondent (S2000/487) dated 1 December 2000 (S2000/487 – T22) which affirmed a determination of the respondent dated 1 August 2000 (T17). The reconsideration of 30 March 1999 (S1999/144 – T2) disallowed the applicant's claim for "recurrent (left) wrist pain – old scaphoid fracture and degenerative changes" associated with an incident with a "mattock" on 5 August 1998 (T9/62). The reconsideration of 1 December 2000 (S2000/487 – T22) disallowed the applicant's claim for incapacity payments for "fractured bone left wrist" sustained on 2 May 1987 (T22/89).
The Tribunal received into evidence the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as to Administrative Appeals Tribunal ("AAT") file S1999/144 (T1-T35) and AAT file S2000/487 (T1-T22), together with ten exhibits, six tendered by the applicant (Exhibits A1-A6) and four by the respondent (Exhibits R1-R4). Evidence was given at the hearing by the applicant, who also called Dr M.G. Hayes, orthopaedic surgeon. The respondent called Dr P.L. Fry, orthopaedic surgeon and Dr G.E. Long, consultant occupational physician. The applicant was represented by Mr A.S. Martin and the respondent by Mr S.H. Milazzo, both of counsel.
legislation
The parties agreed that the relevant legislation to be considered in this matter is section 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act) which provides as follows:
"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.
(3A)     If, as a result of the incapacity:
(a)the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b)a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(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.
(5)       Where an amount of compensation calculated under subsection (3) exceeds 150% of the amount called the "Average Weekly Ordinary Time Earnings of Full-time Adults", as published from time to time by the Australian Statistician, the amount so calculated shall be reduced by an amount equal to the excess.
(6)       Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
(7)       For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be:
(a)$202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or
(b)       an amount equal to 90% of the employee's normal weekly earnings;
whichever is less.
(8)       If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7) (a) the amount of $50.
(9)       If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7) (a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child.
(10)     If a prescribed child is:
(a)       a prescribed person in relation to the employee; and
(b)the only prescribed person who is wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that child.
(11)     If 2 or more prescribed children are each:
(a)       a prescribed person in relation to the employee; and
(b)       wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children.
(12)     In this section, "prescribed person", in relation to an employee, means:
(a)       the spouse of the employee; or
(b)       any of the following persons, being a person who is 16 or
more:
(i)the father, mother, step-father, step-mother, father-in-law, mother-in-law, grandfather, grandmother, son, daughter, step-son, step-daughter, grandson, granddaughter, brother, sister, half-brother or half-sister of the employee;
(ii)a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee;
(iii)a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee.
(13)     For the purposes of the definition of "prescribed person" in subsection (12), relationships referred to in that definition shall be taken to include illegitimate relationships and relationships by adoption and relationships that are traced through illegitimate relationships or relationships by adoption.
(14)     For the purposes of the definition of "prescribed person" in subsection (12), a person who has the care of a child referred to in subparagraph (12) (b) (iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.

HISTORY OF THE APPLICATION

The applicant was born in Adelaide on 27 July 1966. He did not attain any outstanding grades at school and on leaving he had a number of jobs with intermittent periods of unemployment before obtaining a casual position with Australian Airlines (now called "Qantas"). In November 1985, his position with the airline became permanent.
On or about 2 May 1987, in the course of his employment the applicant injured his left wrist, breaking a scaphoid bone. Following this injury, he experienced considerable trouble and was seen by a number of doctors including Mr Michael George Hayes, orthopaedic surgeon, who performed arthroscopic surgery on 28 November 1988 to ascertain the damage in the wrist.
The applicant's services at Australian Airlines were terminated and compensation payments to him were stopped from 5 June 1989 and he has received no weekly payments since that time. His services were terminated due to the fact that he was not willing to accept alternative jobs offered to him nor to enter into any rehabilitation programmes. This was the subject of an application previously made to and reviewed by this Tribunal in early 1993 and which the Tribunal in its decision on 5 March 1993 (S1999/144 – T20; S2000/487 – T8) affirmed the decision that was under review, namely, that it was satisfied that the airline made every effort to offer the applicant suitable employment, and in this case to undertake by way of rehabilitation a ticketing course, and that his refusal to undertake this was unreasonable.
One of a number of tasks that was offered to the applicant prior to his services being terminated and which he refused to attempt was that of working in the catering division stacking dishes. He declined to attempt this.
At the outset of the current hearing, Mr Martin of counsel for the applicant stated that in no way was the applicant disputing the Tribunal's decision and has accepted this. However, since that decision was handed down, the applicant's evidence in the current proceedings is that he has aggravated the injury, has undertaken work and is requiring to attempt a rehabilitation programme.
evidence of the applicant
The applicant in evidence stated that he attended Sacred Heart College during his high school years and left school towards the end of Year 11 when he was 16 years of age. He did not pass Year 10 and spent Year 11 in a "transitional class" which was not as academic in its focus. The applicant left school only with his school leaver's certificate. Prior to his job at Qantas he had done some work as a window cleaner and as a shop assistant. He stated that he worked for Australian Airlines ( now called "Qantas") from just over 18 years of age and that he got this job through a family friend, who was the assistant manager. Until the termination of his employment with Qantas, the applicant only worked as a baggage handler. He further told the Tribunal that the work he did for Qantas could be described as heavy manual work. As a baggage handler, he was responsible for handling baggage, loading aircraft manually with items such as suitcases and loading and unloading freight, by either throwing it to a workmate or stacking it in the holds under the seats.
The applicant stated that when he hurt his wrist some 2½ years after commencement with Qantas, he was asked if he would like to undertake a 40-hour ticketing course. The applicant told the Tribunal that he objected to the course at the time because at that stage he was not keen on clerical work as he felt he was not suited to it. He was hoping he could be put in a more suitable position that he would be happier doing. After the termination of his employment with Qantas, he undertook relatively little work. He had a job cleaning supermarket floors but was unable to continue with this work because it caused too much aggravation to his wrist. A friend then offered him a position assisting an electrical contractor in the early 1990's. The job lasted for three months until the work "dried up". The applicant stated that he then was unemployed and registered with the Commonwealth Employment Service ("CES") for a while as the unemployment rate was high and there were no jobs available.
The applicant then began working at Port Stanvac Oil Refinery as a trades assistant in January 1995, where he worked wrapping tape around the refinery's pipework to stop corrosion. This job lasted two to three months until the job was finished. The applicant stated that the job caused him pain through movement of the wrist joint and arthritic change in the wrist joint. During cross-examination, the applicant stated that this was casual work, not full-time. He got the job through "World Services", a well-known employment agency in the building and maintenance trade. The applicant testified that at the time he also wrote to other employers seeking trades assistant positions, but he did not keep copies of any letters. The applicant agreed that when the work at Port Stanvac ended, he did not seek a reference from his employer.
The applicant stated that he then went to Queensland to seek work for 18 months. During that time he worked on a casual basis, generally for several weeks at a time. The applicant testified that he had problems, depending on the tasks but overall his wrist was not too bad as his work was pretty light. In relation to his work in Queensland, the applicant told the Tribunal during cross-examination that he originally went to Cannonvale, about a 1½ hour drive from Mackay because he had friends living there and would therefore have somewhere to stay. The applicant stated that he went to Queensland looking for work and it so happened that his friends lived there. The applicant told the Tribunal that that area was the "hub" for employment in North Queensland. The applicant testified that the work he undertook in Mackay was casual and when he was not working he went to the beach, visited friends and looked for work. Whilst in Queensland the applicant worked for Joy Mining Machinery Company, Strammit and IPEC.
During cross-examination, the applicant stated in relation to his work at Joy Mining Machinery Company that he worked in a valve shop and had no experience of working on the machinery. The work involved mostly using his right hand and light lifting occasionally with his left hand. The applicant agreed that he had not done that type of work before and that they trained him to do the job. However the applicant testified that the tasks were very limited and not extensive. The applicant testified that he had not found any other very simple jobs. The applicant stated that he would not consider a career involving the repair and maintenance of machinery as such work would involve the use of two good hands. The applicant stated that when he left Joy Mining Machinery Company, he asked for a reference and got one even though the company usually did not allow them. The applicant stated that the reference was somewhere at home and was rather limited – it only stated that the applicant had worked there and that they were pleased with the applicant's work.
Whilst working for Strammit for two weeks, the applicant stated that his work involved making guttering - he helped another person by holding the metal sheets and loading them into a machine. He managed to do most of this work right-handed. The applicant agreed that he had not done that type of work before and was told what to do on the job and he knew what to do after a couple of days. He stated that no other job that he came across was like this where he only did the one task but he said that he was sure there were other such jobs.
The applicant stated during cross-examination that he worked for IPEC for two to three months for two hours per night. This work consisted of loading freight onto trucks. His tasks involved checking in freight and using a forklift – this involved not much use of his left wrist but it still caused him aggravation. It was not similar to his work at Qantas. The applicant stated that he had driven a forklift before at Qantas and he had a Qantas forklift licence. The applicant could not recall if he told IPEC that he had had experience driving forklifts. The applicant told the Tribunal that during the day he was working at Joy Mining Machinery Company as well but he was generally unemployed and looking for work.

The applicant told the Tribunal that he returned to Adelaide in 1997 for his father's birthday. When he got back to Adelaide he got some work for three months with an electrical contractor. The work involved driving to jobs, picking up parts, handing the electrical contractor tools, occasionally drilling holes and putting cabling through walls. The applicant stated that he had problems doing this drilling as it caused him strain lifting the heavy drills. The job ceased when the work dried up. The applicant stated that he got this job because he was friends with the contractor, who knew that the applicant was out of work and so he put him on and gave him a bit of work.
As to the "mattock incident" in 1998, the applicant stated that for six months to a year after it, he was experiencing a tremendous amount of pain compared to usual. The applicant stated that it limited him to not doing anything with his wrist which limited the use of his hand altogether. His shoulder injury was also causing him pain. He stated that he went downhill because he could not use his hand and arm and was not able to swim and do exercises. The applicant also told the Tribunal that it has been four years since he last worked and he receives Newstart Allowance payments. He stated that he has continued to look for work through the newspapers and explore his options regarding work he could do. The applicant told the Tribunal regarding retraining that Centrelink said that they could not help him and sent him to job agencies who were frustrated because of his restrictions. The job agencies suggested to Centrelink that he needed extensive training in the administrative or clerical area due to his being unable to perform any manual tasks since his injury. The applicant stated during cross-examination that he had tried to undertake Centrelink courses but had been told that he was not suited to some types of courses and that as funding was not available, he would have to pay for it by himself.
The applicant stated that his wrist is now considerably worse and explained that his wrist problem is a gradual process akin to chronic arthritis, deteriorating with time. The pain and loss of mobility is becoming more and more restrictive. The applicant said that any use of his wrist, whether he is picking something up, holding something, doing the dishes or swimming causes him wrist pain. The applicant further stated that he "catches" himself doing things which cause him pain and he has to be very careful. He stated that tasks at home, for example, holding a hose with his right hand whilst supporting the hose with his left hand causes him wrist pain. When it was put to the applicant during cross-examination that the opinion of Dr Hayes was that he had lost only 20% of the strength of his hand, the applicant stated that if he is under duress he can grip something but it causes him pain.
During cross-examination he agreed that he had tried to play golf into the 1990's. He stated that he did not play from 1987–1990 and did not recall pulling his trapezius muscle playing golf in 1988. The applicant stated: "I get aches and pains all the time due to left hand dominance". He told the Tribunal that he last played golf in about 1994.
The applicant gave evidence that after his compensation payments stopped and he was unsuccessful before this Tribunal, he wrote to Qantas on a number of occasions requesting rehabilitation under section 19. The applicant was shown the bundle of correspondence from him and his solicitors to Qantas and the respondent (Exhibit A6). When shown a letter from him to Qantas dated 1 June 1994 (Exhibit A6, page 36) he stated that he never got a reply to that letter. The applicant stated that he had help writing the letter from his solicitor and that the aim of the letter was to be rehabilitated and to get back into the workforce, rather than to get compensation payments. The applicant did not agree that that was his first letter to Qantas but rather he had written to Qantas on two or three previous occasions. He stated that he did not keep copies of these other letters and agreed that he did not refer to them in the letter of 1 June 1994. The applicant stated during cross-examination that after the sending the letter dated 1 June 1994, he rang Qantas rehabilitation and spoke to someone there and was told that "they were on it" – they had received his letter and were looking into it. When the applicant spoke to Comcare, he was told that until Qantas made a decision, Comcare did not have a decision to review.
In relation to the letter sent from the respondent to the applicant dated 6 May 1994 (Exhibit A6, page 35) the applicant stated that this was a response to a letter he sent relating to rehabilitation. When asked during cross-examination if this letter was what motivated him to write to Qantas on 1 June 1994, the applicant did not agree that this was what motivated him as he had already written to Qantas on two to three prior occasions. The applicant disagreed during cross-examination that the letters in Exhibit A6 which were written to Qantas and Comcare were written to help his compensation claim but rather were for rehabilitation. The applicant stated: "I still want to be rehabilitated, whether by Qantas or otherwise." The applicant agreed that the possibility of Qantas undertaking an assessment of his capacity to undertake a rehabilitation program was something he discussed with his lawyers prior to writing to Qantas and that it was thought that this would help to advance his compensation claim. He agreed that if he were entitled to rehabilitation, then he would also be entitled to compensation.
The applicant told the Tribunal that he is not fit for any manual work with his left hand and he is prepared to undertake retraining for suitable employment not involving his left hand. When asked by the respondent during cross-examination what kind of work he would be looking for, the applicant testified that he was looking for administrative or clerical work, however, jobs involving extensive keyboard work would not be suitable for his wrist. He said that he asked to be redeployed as a clerk but there were no jobs or retraining for him. When asked by the respondent during cross-examination whether he was looking in the newspaper for jobs, the applicant stated that there has never been a time when he had stopped looking in the papers. However, at the moment he is trying to find something which could lead to work he could do. The applicant stated that his knowledge of clerical work was that it consisted of paperwork and computer work. He further stated that he had not applied in the past five years for clerical work because he had no skills or qualifications in the area and that if he was not given training, then the chances of him gaining employment would be pretty low. He stated that all the jobs that he had seen required a person with skills or qualifications and he had never come across appropriate jobs that included on-the-job training. He gave the opinion that it was hard enough for people to get a job even after training. The applicant stated during cross-examination that his impression of a rehabilitation program was that an assessment would be carried out of the work which he could do and then he would be put through some schooling to be trained to do such a job. When asked by the respondent during cross-examination what work he thought he could do if he gained employment at Qantas, the applicant stated that he thought he could do administrative tasks or clerical work. The applicant stated that if Qantas offered him a job he would work for them and in fact he would work for anyone.
The applicant agreed during cross-examination that he saw his general practitioner, Dr Nunn, in the two years following his injury on a number of times with wrist pain. He did not recall if he mentioned any shoulder problems as he did not consider his shoulder to be as big a problem as his wrist at the time. He could not recall telling Dr Nunn in 1988 that he had pulled the trapezius muscle in his shoulder.
The applicant recalled seeing Dr Steele Scott, orthopaedic surgeon, in July 1988, but he did not recall the exact details of the conversation. The applicant was referred to a letter written by Dr Steele Scott to Dr Williams (Exhibit R4) in which Dr Steele Scott stated that he was not prepared to certify the applicant as unfit for work. The applicant recalled Dr Steele Scott saying that he should find another job but the applicant did nothing about that at the time.
It was put to the applicant during cross-examination that he saw Dr Fry on 7 March 2000 and told Dr Fry that his wrist was not much different before the mattock incident. The applicant told the Tribunal that he would have said to Dr Fry that it was the same type of pain, and the pain he had experienced since the mattock incident had settled back to how it was before the mattock incident. He stated that this was a little optimistic on his part in describing his condition.
dr m.g. hayes, orthopaedic surgeon
The Tribunal had before it the oral evidence of Dr Hayes as well as four medical reports (T24 and T25 in S1999/144; and Exhibits A4 and A5). In his report dated 27 October 1998 (T24) he stated, inter alia, that the applicant presented with discomfort in the left shoulder and left wrist as a result of both areas recently being aggravated whilst using a mattock. On examination of the left wrist there revealed a very restricted range of movement with no obvious signs of instability or neurological deficit. He then referred the applicant for an MRI study and up-to-date x-rays.
In his report dated 12 November 1998 (T25) Dr Hayes stated that the MRI study performed confirmed the presence of ongoing injury to the triangular fibrocartilage in the left wrist and there was no evidence of avascular necrosis in the scaphoid bone. He further stated that he did not think the wrist symptoms would alter a great deal in the future and will remain a restrictive problem. This MRI report was subsequently provided as an attachment to a further report dated 23 September 1999 (Exhibit A4).
In this report (Exhibit A4) Dr Hayes stated, inter alia, that he had not seen the applicant for over six years but reviewed him on 27 October 1998 and 12 November 1998. He stated that examination of the applicant's left wrist revealed a very limited range of movement and that the MRI revealed a possible small defect in the triangular fibrocartilage and some cortical irregularity in the distal pole of the left scaphoid bone.
Dr Hayes further stated in this report that the applicant's wrist problem was more worrying and acute than his left shoulder discomfort and that his efforts were directed to the wrist injury. He also stated that with the various conditions, the applicant would experience difficulty with any manual work but should be fit to carry out light clerical duties and although the applicant told him he was working in a variety of jobs since last seen, Dr Hayes did not explore the applicant's various occupations in any great detail. The report further stated that from a prognostic point of view, the wrist problem would slowly deteriorate.
Dr Hayes stated that in his opinion the wrist discomfort had been the result of further degeneration which was the sequelae to the injury sustained on 2 May 1987 which pre-disposed him to further degeneration in the wrist.
In his oral evidence Dr Hayes stated that he examined the applicant on a number of occasions and in particular in the early stages of the injury in the late 1980's, with the last time during that period being 30 March 1989. He stated that the applicant still had discomfort with the left wrist as at 11 March 1992 resulting in an "arthroscopic assessment" being carried out on 22 March 1992. The applicant was discharged from his care on 7 April 1992. Dr Hayes stated that he next saw the applicant on 27 October 1998 and has seen him on approximately seven occasions since then.
Dr Hayes stated that he carried out one surgical procedure and this was arthroscopic surgery to the shoulder on 27 January 2000. He further stated that since the applicant's surgery procedure to the wrist in March 1992 there is present in the wrist joint areas of cartilage damage. However, he was unable to say if there was further deterioration in the wrist joint cartilage without undertaking another arthroscopy, which has not been done.
Dr Hayes gave the opinion that the cartilage in the applicant's wrist has degenerated or gotten worse. This opinion is based on the nature of the injury and the applicant's increasing symptoms. He believes that the condition is likely to deteriorate in the sense that the pain would worsen resulting in increased loss of movement in the wrist joint.
Dr Hayes was unable to say what the applicant was doing in the form of employment between 1992 and 1998 but when he saw the applicant in October 1989 he was satisfied that the applicant's capacity to perform manual work was limited and that the applicant was unable to play golf. In particular, he found that after the mattock incident the applicant suffered severe pain and had to use a wrist-brace. Dr Hayes also stated that he advised against the applicant doing manual work because there was the likelihood for it to lead to further problems of the wrist. As to being able to undertake light clerical duties and computer use, he stated that the applicant would need scheduled breaks form keyboard work such as at the rate of a five minute break every twenty minutes.
Dr Hayes stated that the applicant was limited to the type of work he could do and any repetitive manual labour with the left hand would cause pain. Also if the applicant undertook any heavy manual work then that could accelerate the degeneration. When asked to comment about the applicant's age, background, limited education and the fact that the applicant had worked only in manual occupations, Dr Hayes stated that in relation to light clerical work "I would have thought he would need educational upgrades before being suitable to this type of work". Notwithstanding this response by Dr Hayes, the Tribunal questions the expertise of Dr Hayes in commenting on educational requirements.
Although Dr Hayes was asked about the applicant having an on-going shoulder problem and he stated that the applicant following shoulder surgery was incapacitated, the Tribunal is mindful that the shoulder injury is not in issue before it. Dr Hayes went on to say that the main problem with the applicant was his wrist but that he also suffered pain in the elbow and shoulder arising as a result of the wrist injury. During cross-examination Dr Hayes stated that in his notes he made mention of shoulder pain in November 1988 and up to 1998 but after that there was no further reference to the shoulder.
Dr Hayes also stated that from 1998 to the present in terms of symptoms the applicant's wrist condition has deteriorated. As to the MRI report of Dr Jones and Partners (Exhibit A4) Dr Hayes stated that it did not reveal any evidence of further degenerative change. Any further change could only be identified from a second arthroscopy but to date this has not taken place. Dr Hayes also stated that the report showed there was possible evidence of small perforation of the triangular fibrocartilage being present not only in the left wrist but also in the right wrist.
When asked whether or not the applicant if motivated could do heavy work without his left hand, Dr Hayes stated that the applicant could do a wide range of things without using his left hand. He further stated that the applicant could not use instruments that required the use of two hands nor do any overhead work for prolonged periods because of his shoulder.
The Tribunal notes that Dr Hayes did not indicate whether the nature of the injury prevented the applicant from undertaking certain types of work without clerical training nor did he specify the range of things the applicant could do without use of his left hand.
dr p.l. fry, orthopaedic surgeon
The Tribunal has before it the oral evidence of Dr Fry as well as one medical report (T13 in S2000/487) dated 17 March 2000. In preparing the report Dr Fry referred to the applicant's left wrist injury in 1987 and the subsequent further injury in 1998 as a result of the applicant's using a mattock whilst digging in his backyard. After obtaining a full history from the applicant and taking into account the reports of Dr Hayes as well as considering x-rays, Dr Fry stated that there did not appear to be any left wrist symptoms present prior to May 1987. However, between May 1987 and August 1998 there were ongoing symptoms in a steady increasing fashion. After the mattock incident in August 1998, more symptoms appeared but since then there has been a settling and he stated that the left wrist is currently very little worse than it was when the mattock incident disturbed it. He further stated that it would appear that any ill effects caused by the mattock have now essentially gone, or at least, have very nearly gone.
Dr Fry stated in his report that the injury suffered by the applicant in August 1998 to have merely been an aggravation of what was already present in the wrist, with these aggravating effects then slowly subsiding to present levels. He also stated that the mattock caused injury but only in the sense that the applicant got temporary extra symptoms. He did not believe that any new pathology was caused but that there was merely a disturbance of the old injury hence the episode of August 1998 constitutes more an aggravation than anything else.
Dr Fry was of the view that the applicant's current wrist symptoms appear to be principally due to the 1987 events and that in small measure the present wrist symptoms are due to the mattock incident but that his impression was that the present symptoms seem likely to go.
Dr Fry stated that the applicant has a partial incapacity for work not only by virtue of the wrist but also by the shoulder. He further stated that the applicant's incapacity for work is due, fundamentally, to the events of 1987 and what has happened since. He also stated in his report that the 1998 injury to the wrist appears at present to be but little involved in this process, if at all.
In his oral evidence, Dr Fry stated that he saw the applicant on 7 March 2000 soon after shoulder surgery from which he had not at that point fully recovered. Dr Fry was referred to his report dated 17 March 2000 (S2000/487 – T13) and in particular to a passage (T13/71) that states as follows:
"…
There were no further wrist injuries until August of 1998. Then, digging in his backyard, the mattock that he was swinging struck a rock and it both jarred and twisted his hand. The left hand held the end of the mattock handle, the right hand slid along it as he swung. It was the left hand that was affected, with virtually unbearable pain there caused at first, this then settling somewhat. The wrist with time improved, the present position being one of marginally worse pain than was present before the 1998 incident. That had only caused a little overall worsening when compared with what was there beforehand.
…"

Dr Fry stated that this was what had been told to him by the applicant when he saw the applicant in March 2000.

In response to a question put to him regarding the applicant's work capacity, namely, assuming that the applicant's shoulder operation had been successful and that the applicant was motivated to do physical work, what work would the applicant not be able to do apart from heavy work that may involve heavy lifting, Dr Fry replied that he agreed that heavy lifting was out of the question and any lifting of his arm above shoulder height would be excluded because of the shoulder problem. He further stated that the applicant would be able to do clerical duties and light work.

During cross-examination and in response to a question put to him whether assuming that the applicant had suffered an original traumatic injury to his wrist which resulted in articular damage to the joint, it was likely to have led with time to some degeneration with increasing symptoms of pain and lack of movement, Dr Fry agreed that this was the case. He further agreed that fundamentally a limiting feature of the applicant's physical capacity is pain. He went on to explain that pain is a personal limitation for the applicant but that it appears that the applicant is capable of light manual work. As to working with machines that require use of two hands, Dr Fry stated that the applicant's hand was not "useless" and that he is able to use it but it was a matter of how far the applicant could go. He further stated that the applicant was obviously unable to do heavy work but he could do some form of lighter work.
It was also put to Dr Fry that the applicant was able to do the watering in the garden by holding the hose in the right hand but any use of the left hand or the holding of the hose in the left hand caused pain to the left hand. In response, Dr Fry stated that this appeared to him to be a very extreme situation. He stated that he last saw the applicant almost two years ago and that unless there had been any dramatic change he would find it highly unusual for the applicant to get pain from that kind of activity.
Dr Fry, on being asked to comment on Dr Hayes's opinion that jobs involving significant use of the left hand were ruled out, questioned "how significant is significant?" He went on to say that if the applicant uses his left hand for a reasonable degree of light manual work "then that would be okay" and that the applicant would get pain from everyday activities, for example, the lighting of a cigarette.
The applicant's having no educational qualifications was also put to Dr Fry and that the only work experience the applicant has is manual work and that therefore unless the applicant received some training then clerical work would not also suit him. In response to this Dr Fry stated only "I suppose it depends on what he is expected to do". Unlike Dr Hayes, Dr Fry did not attempt to give a layperson's opinion on educational requirements.
Dr Fry stated that any effort to attempt work required not only physical effort but also a degree of motivation. He further stated that the mere production of pain by an activity does not necessarily mean that the activity would cause degeneration in the wrist and that such would only be caused by very heavy manual labour.
dr g.e. long, consultant occupational physician
The Tribunal had before it the oral evidence of Dr Long as well as one medical report (Exhibit R3). In his report dated 22 October 2001 he stated, inter alia, that he saw the applicant on 15 October 2001 when he complained of left wrist and shoulder symptoms with the wrist being the main complaint of "constant background discomfort indicated deep in the ulnar side of his wrist". The applicant further told him that there was also restriction of joint range and symptoms which were easily aggravated with left hand/wrist activities and that symptoms tended to ease overnight in his resting splint and he also used hot packs for relief. The applicant also told Dr Long that generally he did not use any analgesics and that he also had a leather splint for use during the day.
Dr Long in his report in setting out his clinical findings stated, inter alia, that there appeared to be some broadening of the left wrist when compared to the right and that pain and tenderness were indicated maximally over the dorsum of the left distal radio-ulnar joint. Dr Long further set out that wrist pain increased with active wrist movement and isometric testing and grip strength was diminished on the left. He found that the applicant's left wrist range was diminished by about half normal for radial and ulnar deviation and palmar and dorsi flexion when compared to the right and supination was also mildly restricted.
Dr Long stated that on the information received it would appear that the applicant sustained quite substantial disruption to the left wrist in the 1987 work injury with a fracture of the scaphoid, tear of the triangular fibro cartilage complex and chondral damage to the radio lunate joint with resultant synovitis and degenerative changes. He further stated that given the applicant's left wrist complaint, the applicant is no longer suited to most manual labouring work and would also be precluded from a wide range of factory assembly/process work where this requires the use of both hands because repetitive or forceful wrist actions are likely to result in an increase in his wrist pain and restriction and an acceleration of the degenerative joint changes which were initiated as a result of his initial joint injury.
As to the applicant's use of a computer keyboard, Dr Long stated that the applicant would be expected to have increased wrist discomfort and joint inflammation with extended periods when using the keyboard with his left hand. Dr Long further stated that the applicant would not be precluded from using his right dominant hand for such work however, and with a supportive splint he should be able to use his left hand for short periods provided he is supplied with a wrist rest and a suitable work station which takes account of his height.
He concluded his report by stating that the applicant should be able to perform a range of administrative and clerical tasks if available provided this work can be done predominantly with his right dominant hand. In the future the applicant may eventually require wrist fusion surgery which may afford him some pain relief but this would naturally be offset by an increased restriction of joint range and would not improve his prospects for returning to heavy manual work.
In his oral evidence, Dr Long stated that he agreed with the contents of his report and that he saw the applicant in 2001. He stated that he sees patients for rehabilitation purposes and as an occupational physician his role is to consider all matters relating to health and work, to investigate work injuries and the effects of chemical exposure. He further stated that he mostly does medical assessment work regarding disabilities and incapacity for work. He is involved at the workplace level and he does not just rely on the history given to him by both the employee and the employer.
In cross-examination when asked if in addition to an employee's theoretical ability to undertake tasks physically if he also takes into account the age, experience, skills and training of the employee, Dr Long answered that he endeavours a wholistic approach especially in occupational rehabilitation and work injuries. He agreed that he is more actively involved in the return to work and rehabilitation process than is an orthopaedic surgeon. He further stated that he is involved on a daily basis with the assessment of suitability and return to work programmes. He further agreed that there is a lot more to the process than the employee's capacity to perform physical tasks.
Dr Long also stated that when considering return to work programmes, he also principally takes into account whether the worker is in employment at the time and in such case if the employer is willing to accommodate modifications in duties. He also takes into account any background experience, age and other medical problems. He further agreed with the proposition that it was fundamental to a return to work strategy for there to be set out for the worker goals that are realistic, including whether or not work of a clerical and/or administrative nature would be available with the employer if the worker is still in employment. In support of this Dr Long reiterated the opinion he expressed in his report (Exhibit R3) that the applicant should be able to perform a range of administrative and clerical tasks if available provided that this work can be done predominantly with his right dominant hand. When asked if it was fair to say that this is also the first step and that the second step would be for the applicant to undergo retraining, Dr Long replied that this would be the case if the applicant pursued that type of work. Dr Long further stated that there are a range of ways that people can get into this type of work, such as undertaking a course, doing volunteer work involving on-the-job training or the use of one's own networks through friends and family.
respondent's submissions
as to S1999/144
Mr Milazzo submitted on behalf of the respondent that the original injury and subsequent disability in 1987 to the left wrist is agreed to be work-related and was found to be such in a previous application by the applicant before the Tribunal but for reasons previously stated the applicant did not receive any compensation payments. Mr Milazzo submitted that in so far as the mattock incident in August 1998 is concerned there may have been an incapacity for some undefined period of time but that in any case this was not work-related. He further submitted that in so far as the applicant presently having an incapacity for work (S2000/487 application) the application of section 19 of the Act does not give any entitlement to payment for compensation.
Mr Milazzo submitted that the applicant's employment was terminated effective from 26 June 1989 and that he suffered an aggravation of his compensable wrist injury on 4 August 1998 whilst using a mattock in his backyard. He further submitted that in so far as the application S1999/144 is concerned, the Tribunal needs to consider whether or not the mattock incident should be considered as a fresh injury and relevant to this Mr Milazzo cited Australian Postal Corporation v Nadge, Federal Court, 21 June 1994, 463/1994. He stated that based on the medical evidence of both Doctors Fry and Hayes the aggravation to the applicant's wrist injury was only temporary and that after a period of six to twelve months the applicant's wrist condition returned to its pre-aggravation state at which time he was not employed by the Commonwealth and as such, it was submitted, he was not an "employee" for the purposes of the Act. In any case even if the applicant was an employee this aggravation clearly arose whilst the applicant was working in his backyard and that therefore it did not "arise out of, or in the course of" his employment with the Commonwealth. Mr Milazzo submitted that it was not a case of the applicant doing normal day-to-day activities which resulted in a re-emergence of the wrist problems but rather the applicant was doing something out of the ordinary. Therefore, the applicant suffered a trauma to the left arm on 4 August 1998 in non-compensable circumstances and hence Mr Milazzo submitted that such trauma constitutes a fresh injury. Mr Milazzo submitted that using a mattock against rocks was exactly something everyone agreed the applicant should not do, considering his wrist problem.
In referring to the case of Nadge, Mr Milazzo stated that Mr Nadge suffered a lower back injury in the course of his employment which incapacitated him from employment. In September 1990, Mr Nadge was operated on (laminectomy) which proved successful in that it relieved him from most of the pain and he then undertook a strengthening program but did not resume playing squash as he did not think that to be a good idea. He resumed employment with Australian Postal Corporation. However, on New Year's Day 1993, Mr Nadge together with his family went to the beach. He participated in typical beach activities, most of which took place in the water. He also played beach cricket where he jumped, ran and dived into the water for the ball. Mr Nadge noticed that in the course of the activities and upon returning home that day that the pain in his lower back increased slightly but he was not overly concerned by this. He did not consider the pain to be any worse than the continuing pain he had experienced in the lower back after the laminectomy. On the following day the pain had increased in severity and there was a tingling in the back of the right leg. He also suffered stiffness and lack of mobility. As a result Mr Nadge spent a considerable part of 1993 away from work, returning the following year.
Mr Nadge applied to the Tribunal pursuant to section 64 of the Act for a review of the determination made on 21 July 1993. The Tribunal found that there was no new injury or accident in 1993 and that the pain was a direct result of the 1988 injury. In arriving at that conclusion the Tribunal found two factors to be significant. It found first, that even though the applicant had undergone major surgery in 1990 that had reduced considerably the pain suffered by the applicant and which enabled him to resume normal working life, it did not completely remove the symptoms of the original injury and the pain had persisted, albeit with less severity. In so applying these facts relevant to Nadge to the case currently before the Tribunal, Mr Milazzo stated that the respondent accepts that there is ongoing disability and weakness in the applicant's wrist.
In reference to Nadge, Mr Milazzo then went on to the second finding of the Tribunal in that case, namely that the activities in which Mr Nadge had engaged on 1 January 1993 were not excessive but really constituted part of the normal day-to-day living activities of a normal family of his age.
Mr Milazzo in further reference to Nadge referred to paragraph 23 of the judgment, in which Lee J states as follows:
"Putting to one side the Tribunal's equation of aggravation of a pre-existing injury with a "new injury" the Tribunal found as a fact that no new injury occurred on 1 January 1993 and that the incapacity which occurred after that date was a direct result of the 1988 injury."
Mr Milazzo went on to submit that Lee J in paragraph 29 of his judgment in Nadge sets out the legal test, namely:
"This was not a case where the evidence before the Tribunal permitted only one conclusion by a reasoned process of fact finding. It was for the Tribunal to determine whether the activities were such as to be likely to have occasioned a fresh injury or whether they constituted no more than the give and take of daily activities which, if they occasioned the re-emergence of symptoms in the damaged spine, could be said to be a continuation or recurrence of the original injury."

Mr Milazzo then submitted that there was a contrast between the applicant in the current matter and Mr Nadge. He stated that Mr Nadge did not do something and then suffer pain. Mr Nadge just spent a day at the beach with his children and the pain then evolved over the succeeding days. This is in contrast to the history relevant to the injury being considered in the current matter and in support of this Mr Milazzo referred the Tribunal to Dr Fry's report (S2000/487 – T13) and quoted from it that paragraph set out previously in paragraph 44 herein. He stated that this was a trauma to the wrist situation and in contrary distinction to the Nadge situation and has been properly characterised as an injury.
as to S2000/487
Mr Milazzo continued in his submissions by stating that the respondent accepts that the applicant continues to suffer from his wrist injury, is unable to currently perform heavy manual labour and cannot perform his pre-injury duties as a baggage handler.
He submitted that section 19 of the Act, as previously set out, provides the entitlement to compensation if an employee suffers an injury resulting in an incapacity for work and that pursuant to subsection (2) the applicant is entitled to compensation in accordance with the calculations set out being the weekly earnings less the amount per week, if any, that the applicant is able to earn in suitable employment. Mr Milazzo submitted that this needs to be considered in the light of all the factors set out in section 19(4) of the Act. Those factors would include, inter alia, whether the applicant sought employment, whether he declined an offer of suitable employment and whether he was offered employment on the basis that he undertook a rehabilitation programme.
Mr Milazzo also submitted that in March 1993 the Tribunal affirmed a prior reviewable decision of the respondent which disallowed the applicant's claim for continuing compensation payments. He referred to the matter of Woodbridge v Comcare (1994) 20 AAR 196, stating that the principle from this case is that if there is a fresh claim that a partial incapacity in the economic sense exists at any given time, then section 19 has to be re-applied, and if there are fresh circumstances on the re-application then this may mean that at the latter time there is compensation payable. He submitted that there is a need to look at how the applicant came to be in the position in which he presently finds himself. The earlier Tribunal in its decision made a number of findings including that offers of suitable employment had been made to the applicant in accordance with section 19(4)(b) of the Act. He also submitted that the Tribunal in its decision found that the applicant unreasonably refused to undertake by way of rehabilitation a ticketing course (section 19(4)(d)) which would have led to further employment.
He submitted that the applicant is now before this current Tribunal seeking to have the amount which he can earn in suitable employment reviewed by the Tribunal in light of the fact that he is now willing to undertake a rehabilitation programme and that he has asked Qantas to provide him with employment. In determining the amount a week that the applicant is able to earn in suitable employment the Tribunal must have regard to the matters in subsection 19(4) of the Act. Mr Milazzo submitted that there is no evidence to suggest that the applicant would not still be employed by Qantas if he had accepted the suitable employment or rehabilitation offered to him in 1989.
Mr Milazzo stated that the medical evidence before the Tribunal indicates that the applicant is able to perform a wide range of tasks which include clerical and administrative duties. He further stated in support of this that Dr Fry is also of the view that the applicant can perform light manual work and a reading of Dr Long's report is to the same effect. He also submitted that the decision of the Tribunal in 1993 continues to be relevant and that there are not any new factors which would mean that if the matter were considered today a different decision would be arrived at. He further stated that the applicant on his own evidence has not applied for clerical or administrative positions and that the respondent is entitled to deem the applicant able to earn in an administrative or clerical position and to take that into account in determining his entitlement to compensation payments.
In reference to the applicant's educational limitations, Mr Milazzo stated that far too much emphasis has been placed upon these. He stated that there are plenty of people that go into self-employment without education and are successful entrepreneurs. He also stated that education is one way of entering the workforce and of acquiring skills but also experience is another way. He referred to the decision of the Deputy President McMahon in Ghattas and Australian Telecommunications Corporation (AAT 7058, 20 June 1991) in reference to the approach taken in applying section 19 of the Act without having specific figures. Mr Milazzo submitted that the Tribunal should adopt the approach taken in Ghattas in that Mr Pelgrave was not a specialist worker but a labourer engaged in heavy lifting as a baggage handler. He submitted that this Tribunal adopt the respondent's approach in that it is not known what work the applicant is specifically suited for and that any work should not be narrowed down to working for one specific employer doing specified tasks. Mr Milazzo further submitted that the applicant is able to earn the money that he earned as a baggage handler notwithstanding his present limitations.

On the issue of rehabilitation Mr Milazzo submitted that the Tribunal does not have jurisdiction in this application to consider whether Qantas, which is the relevant rehabilitation authority, ought to provide a rehabilitation programme. He further submitted that the applicant has not sought a review of Qantas's failure to make a determination under section 36 of the Act but rather that the applicant claims that he sought an assessment to be undertaken by Qantas regarding his capacity to undertake a rehabilitation programme on at least three occasions. He also stated that the only requests for rehabilitation produced by the applicant were prepared by lawyers in the context of the applicant's ongoing pursuit of compensation payments. Mr Milazzo submitted that there is nothing to suggest that the applicant wanted to undertake a rehabilitation programme or that such would assist him in obtaining employment as a light manual labourer or in a clerical administrative position to which he would be suited. Mr Milazzo further stated that the applicant is clearly able to work and his capacity to undertake rehabilitation, if relevant, is beyond question. He also stated that the applicant needs to decide that he cannot go through the rest of his life doing nothing and that he will have to find some employment with his limitations and that he needs to "take the bull by the horns" and do something about that.
Mr Milazzo compared the similarity of Woodbridge with the current matter in that Mr Woodbridge ceased employment but did so because he retired. At the time of retirement Mr Woodbridge was actually working overtime and Comcare made the decision that as he was able to earn a full wage it would not give him compensation. The issue then was to what extent the decision made back at retirement determined the applicant's entitlement to payments of compensation for the future.
Mr Milazzo then referred, inter alia, to the reasons of Hill J in Woodbridge at pages 205 and 206, dealing with the application of subsection 19(4) of the Act, namely:
"…
A case may arise, I do not say the present is such a case, where one of pars (a) to (e) may be satisfied and Comcare form the view of reasonableness in par (f), but subsequent circumstances intervene which could be relevant in determining the ability of an employee to earn a weekly amount in suitable employment. Indeed this was conceded ultimately by counsel for Comcare. In such cases, at least, it would be necessary to determine as a fact the amount the employee is able to earn in suitable employment. It is, as was conceded by counsel for Comcare, in these circumstances simply not correct to say that once an employee has come within one or other of pars (a) to (e) in a case where the discretion under par (f) required Comcare to find reasonableness, that an employee is forever disentitled to compensation. To put it in another way, it is not true to say, as a matter of construction of s 19, that the rights of the employee to compensation are thereby automatically extinguished 'forever and a day'.
The reference to other relevant matters to which Comcare shall have regard, is not a reference just to matters which might disentitle the employee to compensation. It includes, as well, matters which could entitle the employee to compensation, notwithstanding the existence of one or other of the matters in pars (a) to (e).
By way of example, a case may be imagined where an employee, having regard to his or her then medical condition, received an offer for what was at that time suitable employment and failed to accept that offer in circumstances where the failure so to do was unreasonable. However, at a later time the employee's medical condition might deteriorate to a point that the employee was no longer able to work at all. That would clearly be a relevant matter for Comcare to consider under par (g). It might well outweigh the existence of the failure to accept the original offer of suitable employment (par (b)) and in such a case Comcare, in determining how much the employee was able to earn in suitable employment, could disregard the amount per week that the employee would have been earning if engaged in the employment initially offered and rejected. In summary, therefore, although Comcare is directed to have regard to pars (a) to (e), that does not exclude Comcare having regard to other matters in arriving at the factual conclusion as to the amount the employee is able to earn in suitable employment."
In concluding his submissions, Mr Milazzo stated that there is really little difference between Woodbridge and the current matter in which Mr Pelgrave asserts that his condition "is a little bit worse". However, there is no evidence of that and it was further submitted that Dr Hayes concedes that the applicant's condition may have deteriorated and that this was to be expected. Mr Milazzo said that on the evidence before the Tribunal, the applicant prior to the mattock injury was able to use the mattock. It was also submitted that the applicant gave evidence that following his recovery from the exacerbation of symptoms caused by the jarring, the wrist returned to essentially its present pre-injury condition and was hence only marginally worse. Mr Milazzo concluded that the applicant's capacity for work now is similar but perhaps a little worse than it was when wielding the mattock in 1998. Accordingly, he submitted that unlike in the Woodbridge situation, there are no intervening factors which now give an entitlement to compensation.
submissions of the applicant
Mr Martin at the outset of his submissions stated that the only issue concerning both reviews is the amount that the applicant has been able to earn with suitable employment within the meaning of section 19(1)(3)(a) since May 1998. He further stated that the issue concerning the shoulder is not before the Tribunal. He stated that the first claim was rejected on the basis that the mattock incident was a new injury and did not occur at work and hence was non-compensable.
Mr Martin submitted that in fact the applicant made a claim for rehabilitation and compensation on 10 September 1998 (S1999/144 – T9/61). This referred to the original claim of 2 May 1987 describing the injury as "recurrent (left) wrist pain – old scaphoid fracture and degenerative changes" (T9/62) as well as the injury caused by the use of the mattock on 5 August 1998 which aggravated the original injury. He submitted that the determination of 3 November 1998 (T20/81) stated that there was insufficient evidence to show whether or not the injury caused by the mattock incident arose out of or in the course of the applicant's employment. It was further submitted that the applicant applied to this Tribunal alleging that he has been totally incapacitated for work as a result of the injury that occurred on 5 August 1998 and that the current incapacity arises out of aggravation of the original injury of 2 May 1987. Mr Martin submitted that "injuries get aggravated and they recur" and if they occur at work a fresh entitlement to compensation arises from the second injury notwithstanding that that injury has been aggravated by a non-work incident.
Mr Martin also submitted that the mattock incident amounts to nothing of significance as a matter of fact. In support of this he stated that Dr Fry's report (S2000/487 - T13) addressed the effects of the mattock incident and not the question of incapacity and reading from that report, Mr Martin quoted (T13/75):
"There were ongoing symptoms from May 1987 to August 1998, in a steady increasing fashion. There were more after August 1998, for the mattock incident caused more to appear, but since then there has been a settling, and his wrist is currently very little worse than it was when the mattock disturbed it. It would appear that any ill-effects caused by the mattock have now essentially gone, or at least, very nearly. The injury suffered by him in August 1998 to have merely been an aggravation of what was already present in the wrist, with these aggravating effects then slowly subsiding to present levels. Clearly he had an injury caused by the mattock, but only in the sense that he got temporary extra symptoms. I do not think that any new pathology was caused, there was merely a disturbance of the old, so that the episode constitutes more an aggravation than anything else."
Mr Martin in his submissions continued to read further Dr Fry's report (T13) and in particular as follows (T13/76):
"The incident that he described in August 1998, i.e. swinging the mattock, could cause an injury to the wrist, but it would appear that it did not. It certainly disturbed the old area, but it does not appear to have produced any fresh pathology in its own right."
Mr Martin submitted that Dr Fry describes the effect of the mattock incident as being an aggravation of what was already present in the wrist, amounting to an increase in symptoms, and being "merely a disturbance of the old". He further submitted that on Dr Fry's evidence there is the applicant with an injury to the wrist who feels more pain in it when swinging the mattock causing a continuation in the increase of level of pain. By this submission it would appear that the aggravation may have been caused by the swinging movement of the mattock. Notwithstanding this, the Tribunal notes that the applicant in his claim for rehabilitation and compensation (S1999/144 - T9/64) at point number 24 describes the contribution to the injury as "digging in the backyard, accidentally struck rock using mattock".
Mr Martin then proceeded to describe what he saw as the true issue concerning the applications before the Tribunal, namely, "what is the amount that the applicant is able to earn in suitable employment since 1998?" He proceeded to refer to sub-section 19(4)(e) of the Act in that this becomes applicable the moment the applicant stops looking for work but if the contrary should apply in that if the applicant then resumes the search for work then sub-section 19(4)(e) is irrelevant and sub-section 19(3)(a) becomes relevant. He further submitted that what is in issue is what amount is the applicant able to earn in suitable employment during the weeks after May 1998. The only work, it was submitted, that the applicant is physically suited for is that of a clerk, doing essentially administrative work and, even then, there are limitations of what he would be able to do. Also the applicant would be able to undertake some light manual work which it was submitted he had been seeking and at which he was occasionally able to obtain for fairly short periods, up until May 1998 and that he has continued to look for work throughout.
It was further submitted by Mr Martin that the applicant sought suitable employment and that he had actually found and worked at six jobs since he left Qantas. He also stated that the applicant had given evidence that he "has been looking for work all the time". For most of the period since 1993 the applicant has been unable to earn anything doing light manual work because despite efforts to find such work he has been unable to find that work.
Mr Martin submitted that in so far as clerical and administrative work is concerned, during the relevant period there was no such suitable work available within the meaning of sub-section 4(a)(i) as regard needed to be given to age, experience, training, language and other skills. It was further submitted that in the labour market the applicant finds himself since 1998 the looking for such work in the absence of an upgrade in educational training would be a fruitless pursuit. Mr Martin also stated that over a period of nine years the applicant has looked for employment and found it on six occasions but that on each occasion has lost the job through no fault of his own. The applicant made no claim for compensation until the mattock incident at home caused an increase in his symptoms and then only did he seek compensation. Through his solicitor he asked for rehabilitation and despite no response he continued to pursue this.
Mr Martin submitted that over the whole of this period the applicant's condition has deteriorated and he has chosen May 1998 as being the last time he worked and from which to seek a claim. Mr Martin further submitted that a relatively long period of time has elapsed at which the applicant has not resubmitted himself to the Commonwealth for employment as what the applicant was doing was choosing to seek suitable employment outside of the Commonwealth.
respondent's submissions in reply
In reply to Mr Martin's submissions, Mr Milazzo referred to two matters. The first was in relation to Mr Martin referring to Dr Fry's report (S2000/487 – T13/76) wherein the view was expressed that there was no pathology caused during the mattock incident and therefore no fresh injury. Mr Milazzo submitted that the use of the work "injury" by Dr Fry was in a very specific and narrow sense. He further submitted that there were a whole range of soft tissue type injuries that are compensable where there is no discernible pathology.
As to the second matter, Mr Milazzo submitted that Mr Martin had stated "that because the applicant had given such forceful evidence about looking at the paper and the like the Tribunal would have great difficulty finding that the applicant had not sought employment". In response to this Mr Milazzo stated that "the concept of seeking employment in section 19(4)(e) means trying to get work, to seek, to try and obtain". Mr Milazzo further submitted that the evidence, if accepted by the Tribunal, amounted to no more than the applicant window shopping and that until such time as the applicant makes a bona fide attempt to actually obtain work, then the applicant is not seeking work within the meaning and intent of the provision of sub-section 19(4)(e) of the Act.
discussion and findings
The Tribunal reiterates that the parties are agreed and the Tribunal so finds that the issue of the shoulder is not for consideration as the respondent had not made a determination concerning it. It was not disputed that the applicant suffered with such.
S1999/144
The Tribunal is satisfied that the application S1999/144 was concerned with the effects of the mattock incident on the applicant's wrist condition. In the applicant's claim (T9) the applicant described his medical diagnosis as "recurrent (L) wrist pain – old scaphoid fracture and degenerative changes" (T9/62) and his injury as "severe wrist pain – unable to use left arm"(T9/63) which he described as having occurred whilst he was "working at home"(T9/63) "digging in backyard, accidentally struck rock using mattock"(T9/64).
The Tribunal is therefore somewhat puzzled by Mr Martin's submission that the mattock incident amounted to nothing of significance as a matter of fact. It would appear that in putting forward this submission, Mr Martin did so hoping to boost the application S2000/487.
In considering the evidence as a whole in arriving at its conclusion, the Tribunal is satisfied and so finds that a fresh injury occurred to the applicant whilst he was digging in the backyard at home when he struck a rock whilst using a mattock. The use of the mattock cannot be described as being a normal everyday activity unless one is a market gardener or hobby gardener, neither of which has the applicant professed to be. There is no evidence prior to this that the applicant had been doing gardening and using a mattock which causes the Tribunal to conclude that it was not a regular everyday event.
The Tribunal is further satisfied and so finds that the actions of the applicant in using the mattock are in no way related to his employment at Qantas. At the time of the fresh injury, he was not an "employee" of Qantas for the purposes of the Act, nor did the incident with the mattock occur "during or in the course of" the applicant's employment.
In any case, on the medical evidence and the evidence of the applicant himself, he has recovered from any injury relating to the mattock incident.
S2000/483
In relation to this file the applicant stated during his evidence that he seeks rehabilitation or in the alternative suitable employment. As to his seeking rehabilitation, the evidence before the Tribunal indicates a number of letters (Exhibit A6) written by him or his solicitors to the respondent and to Qantas seeking to undertake a rehabilitation programme. It would appear the first letter that the first letter to Qantas written by the applicant was dated 1 June 1994 although in his oral evidence the applicant stated that he had written prior to this at least on a couple of occasions. The last letter he wrote was dated 2 July 2001.
According to the applicant, the letters that he sent to Qantas were not answered. In fact, the applicant stated in oral evidence that at one stage he communicated with the respondent and was alleged to have been told that the respondent could not take any action until such time as Qantas had reached a decision as to rehabilitation. Apart from this evidence of the applicant there appears to be no evidence before the Tribunal as to the attitude nor course of action taken by the respondent and/or Qantas.
Whilst referred to during the hearing, the applicant is not actually seeking rehabilitation per se before this Tribunal but rather he is seeking compensation for incapacity, due to his inability to undertake suitable employment. In fact, Mr Martin in his submissions stated that the applicant sought weekly compensation payments pursuant to section 19 of the Act form May 1998, being the last time that the applicant worked.
The respondent accepts and the Tribunal so finds that the applicant continues to suffer from his wrist injury, is unable to perform heavy manual labour and is unable to perform his pre-injury duties as a baggage handler. To this end, the Tribunal needs to consider sub-section 19(2) of the Act in the light of the factors set out in sub-section 19(4). Such would include, inter alia, whether the applicant sought employment, whether he declined an offer of suitable employment and whether he was offered employment on the basis that he undertook a rehabilitation programme.
It is not disputed and the Tribunal is satisfied and so finds that the applicant has not worked since May 1998. In considering the medical evidence there is no evidence before the Tribunal that suggests the applicant's condition "is a little bit worse" although it may have deteriorated. In applying sub-section 19(4) to the matter before it, the Tribunal rejects the explanation of the applicant as it is not satisfied that the applicant made any sincere and bona fide attempt to actually obtain work. The Tribunal hence is satisfied and so finds that the applicant has not sought work in accordance with the provisions of sub-section 19(4)(e) of the Act.
Accordingly the Tribunal affirms the decisions under review.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  5-6 February 2002 & 8 February 2002
Date of Decision  2 May 2002
Counsel for the Applicant        Mr A.S. Martin
Solicitor for the Applicant         Langsfords Solicitors
Counsel for the Respondent    Mr S.H. Milazzo
Solicitor for the Respondent    Australian Government Solicitor