Ross and Australian Capital Territory (Compensation)
[2023] AATA 3569
•3 November 2023
Ross and Australian Capital Territory (Compensation) [2023] AATA 3569 (3 November 2023)
Division:GENERAL DIVISION
File Number(s): 2023/2245
Re:Gerard Ross
APPLICANT
AndAustralian Capital Territory
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date:3 November 2023
Place:Canberra
The reviewable decision is set aside and the matter remitted to the respondent for determination on a basis consistent with these reasons.
…………………………[sgd]………………………
Senior Member O’Donovan
CATCHWORDS
WORKERS' COMPENSATION - whether the applicant has an incapacity for work - what is the amount per week that the employee is able to earn in suitable employment - whether the applicant is able to earn an amount greater than the applicant's normal weekly earnings - whether the applicant is entitled to medical expenses - set aside and remitted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1997, s 4, 5A, 14, 16, 19
CASES
Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171
John Holland v Bartlett [2023] FCA 1030
Re Moon and Telstra Corporation Ltd (2006) 93 ALD 740
Re Prica and Comcare (1996) 44 ALD 46Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585
REASONS FOR DECISION
Senior Member O'Donovan
3 November 2023
In April 2009 the applicant was working as a classroom teacher in the ACT school system. He was confronted by a student and verbally abused. The incident had both immediate and long-term effects on his mental health. He initially took time off work suffering from acute anxiety but was reasonably quickly re-deployed to other roles both inside and outside the ACT Government. The applicant never returned to teaching.
It is accepted that the applicant still presents with symptoms reflective of an adjustment disorder and that there is a causal relationship between the adjustment disorder from which he currently suffers and the event in April 2009. His general functioning on a day-to-day basis is excellent, but any reminder of the event, or discussion of a return to work in teaching produces symptoms.[1]
[1] T42 p 216. See also the opinion of Dr Gunapu at T48 p 246 where he states ‘psychiatrically speaking his current symptoms and diagnosis can be attributed to the incident when Mr Ross was threatened by a year 12 student…his condition cannot be considered resolved for the reasons that he is very vulnerable and presdisposed to flare-ups…These symptoms are not a day-to-day phenomenon but the vulnerability remains
Consequently, there is no dispute that since April 2009 and currently the applicant meets the general threshold in section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for compensation to be payable under that Act. He suffers from a disease (an adjustment disorder) and that results in an impairment of his mental functioning - but only in circumstances where the precipitating incident is discussed, or the possibility of resuming classroom teaching is raised.
This unusual combination of generally good mental health and generally good work capacity, but a specific medical issue which prevents the applicant from performing his pre-injury duties as a teacher, has raised issues for the applicant’s ongoing entitlement to compensation under sections 16 (compensation for medical treatment) and 19 (compensation for incapacity).
At present the applicant is not undergoing any medical treatment for his condition. Once each year he attends his general practitioner who confirms that he still suffers from an adjustment disorder.
Since April 2009 the applicant has been deployed in a range of jobs. For a significant proportion of his time since the injury the applicant has been granted leave without pay by the ACT and he has performed long term IT contracts with Commonwealth agencies and private companies. For some periods the applicant has been unable to find work of that kind. In those circumstances the applicant has been deployed by the ACT in various roles. When there has been a gap in finding the applicant a role, he has received payments for incapacity.
In August 2022 the applicant resigned from the ACT Government. Just prior to his resignation the applicant completed a three-year contract with the Commonwealth Department of Agriculture. Five days after his resignation the applicant commenced a contract with Services Australia.
The terms of the applicant’s resignation suggest that it was the applicant’s belief that if he failed to maintain ongoing work after his resignation, he would be entitled to incapacity payments. His resignation relevantly states:
I note that I have also been officially informed through you [referring to an employee of the ACT Government] and EML, that EML is still obligated to honour all compensation conditions for my compensation claim which remains open, particularly if in the future I cease work at any time.
Somewhat unexpectedly, the applicant’s contract with Services Australia was terminated on or around 2 December 2022. He did not pick up another contract for many months.
The hiatus in paid work led the applicant to make a claim for incapacity payments.
He provided EML (the respondent’s claims manager) with evidence of the termination of his contract with Services Australia.
On 7 December 2022 a delegate made a decision in relation to the applicant’s claim.
It was expressed in the following terms:
You removed yourself from suitable employment with ACT Government when you resigned on 26 August 2022 to take [the Services Australia] contract role.
The ACT Government have an extensive medical redeployment policy. In line with this policy, you would have been offered several suitable positions to apply for prior to these positions being advertised. At present there are several positions that would have been provided to you to apply for in line with your skills and experience, had you remained an ACT Government employee.
…
Under section 4(1) of the SRC Act, suitable employment while employed by the ACT Government is employment within the ACT Government Public Service.
Once you removed yourself from the ACT Government Public Service, via resignation, employment is any employment (including self-employment) having regard to your age, experience, training, skills and suitability for such employment.
You have completed a VOC assessment in 2017, demonstrated an active work history in a range of positions that you have the expertise, skills and experience in. At the time of the injury in 2009, you were employed in a teaching position for one year and one month. You have worked in other fields for over 10 years. In your email dated 24 August 2022, you informed the ACT Government that you were leaving due to a new contract job with a Commonwealth Department.
You were fully aware that you were removing yourself from ACT Government employment for a ‘contract job’ and this new job was not permanent. A contract job means that there is a timeframe that the contract will end. If you fail to win a new contract or a new job, you will be unemployed… you were under the impression that if you resigned from your position and you were unemployed between positions, you would receive incapacity payments during any interim period. This is incorrect. Incapacity payments are only payable if there is an incapacity for work due to the compensable condition, not as a result of being unemployed.
…
In summary, the reason that you are unemployed at this time, is not due to an incapacity for employment, rather, it is due to a contract ending that you entered into knowing that you were removing yourself from a permanent position and suitable employment with the ACT Government Public Service. Your incapacity for work results from your failure to continue to remain in employment, as the contract was terminated. Therefore, there is no incapacity for work resulting from your compensable condition.
…
Under section 19 of the SRC Act, I am not satisfied that you have an incapacity for employment.
If the above is found to be incorrect, under sections 19(4) of the SRC Act, I have determined that you have an ability to earn of $54.93 per hour ($2197.27 per week) over 40 hours per week in suitable employment, the amount you would have received had you not removed yourself from ACT Government Public Service and reflects other employment entitlements that are not available in a contract position.
The applicant was shocked by the decision as it placed significant weight on the fact that he had resigned from his employment with the ACT Government. He responded:
I will be vigorously opposing this decision based on EML failing in their responsibility to provide full information when officially requested to do so.
As such, through the serious omission of EML clearly stating or outlining the differences in how my entitlements would be calculated differently, which was clearly requested before I resigned my ACT Government permanency, has misled both myself and a senior ACT Government HR Executive officer into believing that everything regarding entitlements would still be the same if I resigned my permanency.
On 11 January 2023 a delegate made a reviewable decision in the following terms:
Based on the evidence before me, ACT Government has no present liability to pay compensation to you for medical expenses or incapacity payments under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
The date your entitlement ceases is 10 January 2023.
In the reviewable decision the delegate did not accept that the applicant continued to suffer from an injury as defined in section 5A of the SRC Act. The decision referred to the report of 18 January 2021 of psychiatrist Dr Gunapu, which stated that the applicant’s present condition was no longer significantly contributed to by his employment. It further found that the applicant’s attendances on his General Practitioner were not medical treatment in relation to the compensable condition and were not reasonable. In relation to section 19 the delegate determined:
(a)that the applicant’s injury did not result in an incapacity for work;
(b)the applicant had removed himself from suitable employment (noting that since his resignation any employment is suitable employment); and
(c)the applicant had a demonstrated ability to work on an ongoing basis.
The applicant applied to the Tribunal for review.
In the context of the Tribunal proceedings, the respondent’s position was more nuanced than the positions taken in the earlier decisions.
It accepted that the applicant continues to suffer from a psychological condition that is significantly contributed to by his former employment with the respondent. That condition however only manifests in the context of teaching duties, a discussion of the precipitating incident or a discussion about a return to classroom teaching. Consequently, in most contexts and for long periods, the applicant is completely unaffected by the condition.
In these circumstances, the respondent contends that the finding that the respondent has no present liability should be affirmed on the basis that:
(a)the applicant is not incapacitated for work as that expression is defined in section 4(9) of the SRC Act which requires either:
(i)an incapacity to engage in any work; or
(ii)an incapacity to engage in work at the same level he could immediately before the injury happened;[2]
neither of which is the case for the applicant;
(b)in the alternative, when the formula for calculating incapacity payments in section 19 is applied, the amount the applicant is able to earn in suitable employment exceeds the amount of the employee’s normal weekly earnings; and
(c)in relation to section 16, the applicant does not require medical treatment in relation to the accepted condition.
[2] For clarity of expression I have slightly simplified the test specified in section 4(9) but I have applied it according to its terms.
I will consider each of these arguments in turn.
Is the applicant incapacitated for work?
The definition of the phrase ‘incapacity for work’ in subsection 4(9) relevantly provides as follows:
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he… was engaged by a… licensed corporation in that work or any other work immediately before the injury happened.
Paragraph (a) is straightforward. If you can’t engage in any work after an injury then you have an incapacity for work. The applicant does not meet that test.
Paragraph (b) deals with partial incapacity and specifies a test to be applied when a person’s capacity for work has been reduced by an injury but not destroyed altogether.
Unfortunately, the test is expressed in slightly confusing terms. It is particularly difficult to work out why the phrase ‘in that work or any other work’ was included and what role it plays in determining whether a person has an incapacity for work. The paragraph is much easier to understand if those words are simply ignored.[3] However, such an approach is not generally permissible when construing a statute. In an attempt to give each word a role, it seems that the phrase is one which expands the scope of the concept of work at the same level so that any reduction in the level at which a person can work, whether that reduction is in their capacity to do the job they were doing prior to the injury or any other job, is enough to qualify as incapacity for work.
[3] I note that the Seafarers Rehabilitation and Compensation Act 1992, which was passed by the Parliament only a few years later and relies on almost identical concepts to the SRC Act, omits the phrase ‘in that work or any other work’ from its almost identical definition of incapacity.
In the present case it is not necessary to resolve that question. The work the applicant was engaged in immediately before his injury was work as a classroom teacher. He has an incapacity to engage in that work at the same level at which he was engaged immediately before the injury happened. Indeed, he has no capacity to engage in the work of a classroom teacher at any level. Accordingly, it can be said that he has an incapacity for work as a result of an injury.
This might seem like an overly generous interpretation of what can constitute incapacity given that the applicant now has more than a decade of proven work capacity in well-paying jobs. However, it is important to keep in mind what was said by the Tribunal in Re Prica and Comcare:[4]
A finding of an incapacity itself does not necessarily result in any entitlement to periodic or lump sum compensation under the Act. There are additional requirements in ss 19, 24 and 27 concerning those issues.
[4] (1996) 44 ALD 46, [22].
A finding that there is an incapacity to engage in work at the same level is recognition of the ongoing effect of the injury. It does not necessarily result in any entitlement to compensation. Whether that partial loss of capacity results in the payment of compensation is determined by reference to other provisions of the SRC Act.
Drawing this distinction between a finding that a worker has a level of incapacity for work and the calculation of the compensation entitlement that that incapacity might attract, is consistent with the approach taken by the High Court in the context of other workers’ compensation statutes. In the context of state workers’ compensation laws, the High Court has decisively rejected the proposition that the receipt post-injury of the same or higher wages than those received pre-injury denies the existence of partial incapacity for work.[5]
[5] Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585 cited with approval in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171,177.
However, not every alteration in work capacity justifies a finding that an employee has an incapacity for work. Re Moon and Telstra Corporation Ltd provides one of the rare examples where this was found to be the case;[6]
The definition of ‘incapacity for work’ in subsection 4(9) refers to an incapacity to engage in work ‘at the same level’; it does not require a return to precisely the same duties. The decisions in Re Prica and Comcare and Smith v Comcare referred to the nature and quality of the work being carried out and similarly, did not suggest that the Act requires an injured employee be able to perform each and every pre-accident duty before it can be said that he or she is no longer incapacitated.
[6] (2006) 93 ALD 740, [21].
Incapacity to engage in work at the same level is not synonymous with an incapacity to perform the same tasks as were required in pre-injury employment.
The importance of this distinction was emphasised recently by the Federal Court in John Holland v Bartlett.[7]
[7] [2023] FCA 1030.
The relevant passages of that decision are as follows:[8]
The respondent submits that the Tribunal made findings necessary to properly deal with s 4(9) of the SRC Act at reasons 55(c) in which it found that the respondent:
“(a) Is unable to work as a machine operator as he was trained to do in his occupation of choice;
(b) Has not been able to work as a machine operator since 2 November 2017; and
(c) Has suffered incapacity to engage in work at the same level at which he was engaged by John Holland.”
However, although it would seem the respondent is unable to work in dusty/dirty environments, other than the reference to the respondent’s occupation of choice, to which I refer below, there is no discussion anywhere in the reasons nor any reference to different tasks a machine operator may undertake, nor reasons as to why there is no possibility of him working as a machine operator.
The reasons are silent as to the respondent’s inability to work as a machine operator save for the specific circumstances in which the respondent worked, the point being that machine operators work in various locations and under various circumstances. In that sense, the Tribunal failed to deal with John Holland’s submission that the respondent had capacity to perform work in a relatively clean environment.
[8] Ibid, [97]-[99].
Accordingly, to establish that an employee has an incapacity to engage in work at the same level after an injury, it is necessary to show more than that they cannot do exactly the same job as they were doing before their injury.
In the present case, the evidence establishes that there is a whole field of employment which is now closed to the applicant as a result of his injury.
The psychiatrists briefed by the respondent report that the applicant is incapacitated for classroom teaching.[9] Consequently, the applicant has an incapacity to engage in work at the same level at which he was engaged immediately before the injury happened. He was a classroom teacher. The medical evidence establishes, and the respondent concedes, that he now cannot engage in that work at all. I have no difficulty concluding that the applicant has an incapacity to engage in work at the same level at which he was engaged immediately before the injury happened. The applicant remains as incapacitated for that profession today as he was when the precipitating incident first happened. It is not to the point that the applicant has since his injury, acquired additional skills that allow him to perform many other jobs which pay as well or better than a classroom teacher. The focus of the statutory inquiry is the work in which he was engaged immediately prior to the injury. In relation to that work – classroom teaching – there can be no dispute that he cannot engage in work at the same level. He cannot engage in that work at all.
[9] See for example T42 p 219 and T48 p 247
What compensation is payable under section 19?
The respondent argues in the alternative that even if the applicant’s ongoing symptoms mean that the applicant has an incapacity for work, when a calculation of his entitlements is made under section 19 the formula results in a payment of zero in the relevant weeks.
Compensation under section 19 is calculated by reference to the formulas in subsections (2) and (3). Subsection (2) covers the calculation in weeks described as ‘maximum rate compensation weeks’, subsection (3) is used for every other week. Fundamental to both calculations are the concepts NWE and AE. In relation to maximum compensation weeks[10] the formula is as follows:
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.
[10] I use this as an example – I am not suggesting that the weeks which are the subject of the claim are maximum compensation weeks
There is no dispute as to what the applicant’s NWE is for the period in December 2022 and following. It has been calculated by reference to the formula in section 8. The amount is $2,197.27 per week.
In the weeks where the applicant is working his AE amount exceeds his NWE amount and no compensation is payable. The amount per week that he actually earns can be used for the purposes of the calculation.
However, in the weeks where the applicant is not earning money because he has been unable to secure an IT contract, it is necessary to determine what amount he is ‘able to earn in suitable employment.’
The term suitable employment is defined in section 4 of the SRC Act. Prior to the applicant’s resignation from the ACT Government suitable employment would have been restricted to employment by the ACT. Since the applicant’s resignation suitable employment means any employment (including self-employment), having regard to:
(a)the employee’s age, experience, training, language and other skills;
(b)the employee’s suitability for rehabilitation or vocational retraining;
(c)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
(d)any other relevant matter.
Employment as an IT contractor working for private firms and the Federal Government in the Canberra region is suitable employment now that the applicant has resigned his employment with the ACT.
The question then, is what was the applicant able to earn in any given week since his contract with Services Australia was terminated in December 2022. The answer in any given week may differ from week to week. In some circumstances the amount the applicant will be able to earn in suitable employment will be different to what he did earn in suitable employment. For example, in any week where the applicant decides not to work in order to take a holiday, the amount that he is able to earn may be whatever his usual rate as a contractor is even though the amount he did earn was nil.
But the question arises, what amount is the applicant able to earn in weeks where he is ready, willing and able to work, actively pursuing opportunities but is unable to secure work? In those weeks, the assessment has to start with the basic fact that the applicant did not earn any money in the given week. To reduce his compensation, I have to be satisfied that there is an amount which he was able to earn in suitable employment which he did not earn that week. In reaching a conclusion about that issue I need to have regard to subsection 19(4).
Subsection 19(4) provides:
In determining, for the purposes of subsection (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 complete 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.
In relation to paragraph (a), I am satisfied that the applicant can be appropriately described as being in self-employment in the sense that he offers himself to employment agencies and he decides when he is prepared to work and when by accepting or declining contracts. In the weeks following the termination of his contract with Services Australia he did not earn anything from his work. The evidence before me does not reveal for how long he was not earning anything, but for the purposes of determining this claim I am satisfied that there was a period after 5 December 2022 when the applicant was not earning any amount per week in suitable employment.
In relation to paragraphs (b), (c) and (d) there is no evidence before me that in the relevant period the applicant received an offer of suitable employment and failed to accept that offer, failed to continue in suitable employment after accepting such an offer or failed to fulfil any rehabilitation condition resulting in the offer not resulting in employment. The applicant’s work history following his injury reveals a man who is motivated to work and has sought and obtained work regularly. From 14 November 2019 until 30 June 2022, he had continuous work at the Department of Agriculture and from 29 August 2023 he commenced what he believed would be a long-term contract with Services Australia. That contract was terminated unexpectedly.[11] The applicant supplied evidence to EML that he was undertaking work searches post 2 December 2022.[12] He indicated in the hearing that he has now secured work. I have no reason to think that the applicant was offered suitable employment but declined to accept it or failed to continue with it.
[11] T57 p 272.
[12] T57 p 265.
In relation to paragraph (e) I am satisfied that there was a brief period from 31 December 2022 to 26 January 2023 where the applicant was not seeking suitable employment because he had made arrangements to have a holiday.. Having regard to the state of the labour market however I am not satisfied that the applicant would have been able to earn during those weeks by securing a contract. In relation to the weeks prior to Christmas in 2022 and the weeks following Australia Day in 2023, the applicant has provided evidence to EML of the work searches which he undertook. In a context where the applicant had no source of income for an extended period, I have no reason to think that he was not actively pursuing work searches. I note that the applicant did not give sworn evidence about his work searches and opted instead to rely on the material he had submitted previously. As a consequence, I have approached what he has said in documents given to EML and filed with the Tribunal with caution and I have not treated his statements from the bar table as evidence. However, even when the material available is examined with a level of scepticism, it still reveals a picture of a man motivated to work, with significant financial incentives to seek work and a reasonable expectation that he will ultimately find work. I am not satisfied that the applicant failed to seek work in the relevant period except in those weeks where he had a holiday planned.
Paragraph (f) has no application.
The question then is are there any other relevant matters. Comcare’s main contentions are as follows:
The rehabilitation reports [concerning the applicant] …make it clear that the Applicant developed an interest in project management within the years after his initial injury (see e.g. T19; T30). This was an area of interest for him, which he elected to become qualified in (T20). The Applicant has focussed his job-search on this avenue; for example in 2013 it was noted that he was ‘reluctant to apply for other positions excluding project management roles, which can limit scope with job seeking” (T19/89)…
The Respondent contends that by narrowly focusing his job-seeking activities on positions of this nature, and primarily applying for short-term contract positions, the Applicant has failed to seek ‘suitable employment’ for the purposes of the SRC Act. This is because although he chose to pursue some options falling within the definition of suitable employment, there are many alternative positions the Applicant could have pursued but chose not to based on his limited area of interest. An employee’s interest in a particular type of role is not, prima facie, a relevant or determinative matter in determining whether that role constitutes suitable employment in accordance with subsection 4(1). The primary question in identifying what constitutes suitable employment for the purpose of the SRC Act is what employment the Applicant is suited to, not what employment he would like to pursue: Goodricke and Comcare [2010] AATA 410.
In any event, the Applicant ceased to be engaged with suitable employment when his contract was terminated in December 2022. That termination was unrelated to the Applicant’s accepted condition or capacity for work and rather related to termination of a contractual agreement which is an expected consequence of being engaged on a short-term contract basis.
Accordingly, having regard to subsection 19(4) and in particular paragraphs 19(4)(a), (c), (e) and (f) the Respondent contends that the Applicant has an ability to earn in suitable employment…the Respondent contends that the Applicant is able to earn at least $2,197.27 per week in suitable employment for the purpose of paragraph 19(2)(a) of the SRC Act.
The respondent’s contention is that the applicant’s work interests have in the past been unduly narrow and this has to a degree narrowed his employment opportunities. I do not consider this to be a fair way of viewing the applicant’s employment history.
The starting point for any analysis is that the applicant was employed full time as a classroom teacher and enjoyed the benefit of a permanent job. As a consequence of his injury, he can no longer undertake work as a teacher. Since his injury he has worked with the ACT Government to secure permanent employment notwithstanding the limits arising from his injuries. He has pursued work with a wide range of employers:
(a)The Australian Competition and Consumer Commission;
(b)Hewlett Packard;
(c)ACT Department of Education and Training Professional Learning area;
(d)ACT Government Shared Services including Project Management area;
(e)Charles Weston School;
(f)ACT Transport and Municipal Services;
(g)ACT Education Directorate;
(h)Thales Group (Department of Defence);
(i)Department of Home Affairs;
(j)ACT Education Directorate in Records and Digital Governance;
(k)Department of Agriculture; and
(l)Services Australia.
The applicant’s work history demonstrates a willingness to try a range of placements which have allowed him to develop skills outside of teaching which have value on the employment market. Despite his best efforts and those of the ACT, the applicant could not be permanently placed in a full-time job within the ACT public service. Given the wide range of jobs the applicant was prepared to try and the skills which he developed along the way, I am not prepared to find that the failure to find a permanent placement for him was the result of pickiness on his part. He obviously felt that he had skills in certain areas which he wanted to develop and that seems to be a reasonable employment strategy which has mostly been successful. Indeed, the approach he took looked to have been successful in securing for him a permanent stream of work. His long contract with the Department of Agriculture followed by the move to Services Australia was a cause for optimism that the applicant had developed skills which would provide him with work that was as regular and consistent as full-time teaching. Unfortunately, for a period from December 2022 it did not prove to be. I am however satisfied that the extended period he spent out of the workforce following the cancellation of his contract with Services Australia was not the product of him making decisions which undermined his ability to find remunerative work.
Indeed, the evidence suggests that the applicant has consistently looked to find employment that will take him outside the compensation system for good. In May 2021 (at ST p72) the applicant sought leave without pay from the ACT for an extended period. He summarised his position as follows:
My current permanent position is with Lake Ginninderra College as a year 11 and 12 Information Technology (IT) instructor. However, due to an accepted work place injury, I’m medically unable to undertake this position.
I have undertaken the modified-duties responsibility of searching for outside work and I thank you for your professionalism and encouragement in helping me achieve this compensation-related requirement.
I have consequently just been offered a 12 month contract extension as a Technical IT Writer with the Department of Agriculture, Water and the Environment, as per the dates of this LWOP application detailed above (and attached).
In addition to the cost savings to the ACT Government, this will provide me with extra professional skills and increases the chances that I could be offered a permanent position within the Australian Federal government or other permanent positions within the ACT Government. This would therefore help me move beyond compensation-related payments and conditions, and thus I would not be a financial burden on the ACT Government through the compensation scheme.
In light of his extended period on contract and the evidence of his pursuit of further contracts I am satisfied that this accurately reflects his approach to securing work and developing skills. The steps he has taken in pursuing work outside the ACT context have been directed at freeing himself from the compensation system.
Accordingly, I am not satisfied that I should treat his approach to work or rehabilitation in the past as diminishing his ability to earn in suitable employment.
The respondent’s submissions also betray what I regard as an error in conceptual approach. The focus of the section 19 calculation is on any given week where a person is incapacitated for work (in this case classroom teaching) as a result of an injury. If a person earns money in a given week or refuses work in a particular week, then those matters can be brought to account in that week. But if a person earns no money in a particular week despite an earnest search for work, then it is difficult to find that in that week they had an ability to earn higher than what they did earn. In the present case, the applicant was receiving no compensation payments but remained unemployed for an extended period. In such circumstances it is difficult to infer that at that point in time he had an untapped ability to earn.
I am conscious that this focus on any given week rather than looking at the applicant’s capacity overall carries with it a risk that in any given year the applicant will be in some senses overcompensated. He will have the benefit of the higher weekly payments associated with contract work combined with receiving compensation payments in the weeks where he is not working. If I had any inkling that this was an outcome that the applicant had engineered, I would regard it as relevant and a proper basis under paragraph (g) for finding a higher able-to-earn figure. But in circumstances where I am satisfied that the applicant actually has a preference for permanent work but has been unable to secure it, and the loss of permanence in his employment is attributable to his inability to continue as a classroom teacher, it is not appropriate to shift focus from weekly earnings to which section 19 directs attention to making more global assessments about what the applicant could be regarded as able to earn if his earning potential for an entire year is considered.
On that basis I am satisfied that the applicant’s AE figure for the weeks from 5 December 2022 until he resumed contract work should be set at nil.
The decision under review insofar as it concerns incapacity payments is set aside and the matter remitted to the respondent for determination in accordance with these reasons.
Medical expenses
The evidence establishes that the only reason that the applicant attends his doctors in relation to his adjustment disorder is for the purposes of obtaining evidence to support his compensation claims. Those costs are not claimable. The visits do not constitute medical treatment. The applicant has no present entitlement to medical expenses. The decision in relation to medical expenses is affirmed.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan
......................................[sgd]..................................
Associate
Dated: 3 November 2023
Date(s) of hearing: 6 September 2023 Applicant: In person Counsel for the Joined Party: Ben Dube Solicitors for the Joined Party: Sparke Helmore
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