Sethi and Comcare
[2013] AATA 620
•30 August 2013
[2013] AATA 620
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3950
Re
Anil Sethi
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 30 August 2013 Place Melbourne The Tribunal affirms the decision made by Comcare on 29 June 2012.
.......[sgd Egon Fice].................................................................
Egon Fice, Senior Member
COMPENSATION – workers’ compensation – medical treatment – incapacity payments – rehabilitation program – return to work plan – vocational assessment – repetitive work injury – right wrist – chronic pain syndrome
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 19, 37, 57, 60, 62, 64
REASONS FOR DECISION
Egon Fice, Senior Member
30 August 2013
Mr Anil Sethi was employed by the Australian Taxation Office (ATO) on a casual basis between 25 May 2009 and 9 November 2011. He lodged a claim for Workers' Compensation with Comcare on 11 October 2011 for Repetitive Work Injury. Mr Sethi said that the injury occurred on 20 September 2011 at 5 PM. He first sought medical treatment for the injury on 22 September 2011. He described the injury as feeling a slight pain in the right hand.
In a letter dated 12 November 2011 a Comcare delegate notified Mr Sethi that his claim for wrist sprain (right) had been accepted pursuant to s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The delegate advised Mr Sethi that Comcare would accept medical treatment claims for his injury up to and including 15 November 2011 and claims resulting from incapacity to work up to and including 12 October 2011. Comcare made a number of incapacity payments to Mr Sethi between 22 September 2011 and 9 November 2011.
Between October 2011 and March 2013 Dr Brian Nathan, who was Mr Sethi's General Practitioner, provided Mr Sethi with a number of medical certificates relating to his capacity to work. Those certificates varied considerably from classifying Mr Sethi as totally unfit for work; fit for modified duties; and fit for normal duties. On 19 March 2013 Dr Nathan certified that Mr Sethi was suffering from chronic pain syndrome, sometimes described as myofascial pain syndrome.
The ATO determined that Mr Sethi should undertake a rehabilitation program pursuant to s. 37 of the SRC Act. He underwent a vocational assessment on 5 December 2011 and the rehabilitation program commenced on 20 February 2012. The purpose of the rehabilitation program was to assist Mr Sethi to obtain employment, either part-time or full-time, in an occupation commensurate with his existing skills, experience and education. The rehabilitation program was closed on 31 May 2012 due to Mr Sethi's failure to attend the program.
On 5 April 2012 a Comcare delegate made a determination rejecting Mr Sethi's incapacity from 9 November 2011. That was because a vocational assessment performed by AW Workwise on 5 December 2011 identified a position which Mr Sethi had the capacity to fill and which had an average weekly full-time income of $1560. That exceeded Mr Sethi's normal weekly earnings (NWE) at the time when his employment ceased, which was $1087.51 per week. The delegate also claimed that Mr Sethi had refused an offer of suitable employment.
In a letter dated 21 May 2012 Mr Sethi requested reconsideration of the delegate's decision. On 29 June 2012 a Senior Review Officer with Comcare wrote to Mr Sethi stating he had completed his reconsideration and decided that the determination made by the delegate on 5 April 2012 was correct. Mr Sethi lodged an application for review of the Senior Review Officer's decision with the Tribunal on 7 September 2012.
There was no issue about the fact that the decision made by the Senior Review Officer on 29 June 2012 was a reviewable decision for the purposes of s. 64 of the SRC Act. That decision was made pursuant to s. 62 which falls within the definition of reviewable decision in s. 60.
The matters which I am required to determine are:
(a)whether Mr Sethi was incapacitated for work as a result of his accepted injury from the date he ceased employment with the ATO (9 November 2011) and ongoing;
(b)
whether Comcare is liable to pay Mr Sethi weekly compensation in respect of his incapacity for work pursuant to s. 19 of the SRC Act during the period
9 November 2011 and 31 May 2012;
(c)
whether Comcare was liable to pay compensation pursuant to s. 19 during the period Mr Sethi was undertaking a rehabilitation program during the period
20 February 2012 and 31 May 2012; and
(d)if Mr Sethi was incapacitated for work, the amount per week that he was able to earn in suitable employment.
INCAPACITY FOR WORK AFTER 9 NOVEMBER 2011
Following Mr Sethi's injury on 20 September 2011, he did not return to work on a full-time basis between that date and the date his employment with the ATO ceased. He was paid compensation under s. 19 (2) of the SRC Act during that period. His NWE were determined to be $1087.51. This amount was not in dispute. During this period he had no ability to earn income due to his injury and therefore his AE (the amount he is able to earn in suitable employment or the amount he has turned from any employment undertaken during the week in question) was 0. Therefore, according to the formula set out in s. 19 (2), he was paid the full amount of his NWE during that period.
Dr Nathan issued Mr Sethi with a Certificate of Capacity (Medical Certificate) on
13 October 2011 in which he said Mr Sethi was unfit for any duties between 12 October 2011 and 14 October 2011 but expected him to be fit for normal duties from 15 October 2011.Dr Nathan examined Mr Sethi on 5 October 2011 and issued a Medical Certificate for Workers' Compensation. On that certificate Dr Nathan indicated Mr Sethi was fit for modified duties with limitations between 15 October 2011 and 15 November 2011. The restriction on his duties was that he should avoid continuous use of a computer mouse for more than 10 minutes. Dr Nathan also indicated that Mr Sethi was totally unfit for work between 12 October 2011 and 14 October 2011.
Despite the medical certificate issued by Dr Nathan on 13 October 2011, a report by
Mr Sethi's manager in the workplace, Mr Patrick Mynott, indicates he continued to work up to 5 hours per day from 10 October 2011. The probable reason for that that is
Dr Nathan signed the medical certificate on 18 October 2011 despite having examined Mr Sethi on 5 October 2011. Mr Sethi was also provided with the new keyboard and mouse wrist pad to assist.On 6 October 2011 Mr Sethi attended Victoria House Medical Imaging where he underwent an ultrasound of his right elbow, forearm and wrist. The conclusion drawn from that ultrasound was: normal study. No problems were identified.
Dr Nathan again examined Mr Sethi on 21 November 2011 for the purposes of a further medical certificate. Dr Nathan did not consider Mr Sethi to be totally unfit for work but rather indicated that he was fit for modified duties from 16 November 2011 to
16 December 2011. The restriction Dr Nathan suggested was to avoid continuous use of mouse for more than 10 minutes.On 20 December 2011 Dr Nathan examined Mr Sethi for a further medical certificate. Again, Dr Nathan did not regard Mr Sethi as totally unfit for work but rather that he was fit for modified duties from 16 December 2011 to 16 January 2012 with the same restriction as previously recorded.
Mr Sethi was referred to Dr Loretta Reiter, a rheumatologist, on 14 February 2012. The purpose of the examination was to obtain a precise diagnosis of Mr Sethi's current condition and the impact that condition had on his capacity to work. Dr Reiter provided a report dated 27 February 2012 after examining Mr Sethi on 24 February 2012.
Dr Reiter noted his current work restriction as able to do full hours but limited to 30 minutes of continuous work on a mouse and keyboard, with a 10 minute rest. Dr Reiter noted his work with the ATO had finished and he was now engaged in Job Search.Dr Reiter was of the opinion that Mr Sethi suffered from right medial, greater than lateral, epicondylitis, with non-specific tenderness on the dorsal aspect of his right hand between his first and second metacarpal area. She was also of the view that there were no aspects of the clinical examination to suggest that Mr Sethi was voluntarily exaggerating his symptoms or displaying any symptoms inconsistent with the claimed condition. However she noted an unusual feature, which she could not explain, being the non-specific tenderness on the dorsal aspect of his right hand between his first and second metacarpals.
Dr Reiter was of the opinion that Mr Sethi was currently medically fit to engage in work. She said his only work restriction was his current restriction of 30 minutes of mouse and keyboard work followed by a 10 minute rest. She said Mr Sethi had no limit on his range of movements and that he should be able to work a full week, whether 38 or 40 hours.
Her prognosis regarding Mr Sethi's condition was guarded but she said that with thorough, appropriate treatment, his symptoms may completely resolve.
I had in evidence a number of further Medical Certificates given in early 2012 and medical certificates prepared for Centrelink, all of which were provided by Dr Nathan. Those certificates stated that Mr Sethi was fit for modified duties with restrictions relating to computer use and resting time. The certificates prepared for Centrelink, the first of which is dated 18 June 2012, stated that Mr Sethi was unable to do his usual work for eight hours or more per week but that he could do other work for that period of time although he was unable to use his right arm for more than 10 – 15 minutes at a time. Those certificates stated that his symptoms were triggered by prolonged travelling.
I also had in evidence a very brief letter from Dr Nathan addressed To Whom It May Concern dated 12 March 2013 in which he said: he has been unable to work in any capacity involving the use of his right arm (including computer-based work) since 09/05/2012.
I had in evidence a report dated 4 May 2012 prepared by Dr Bernadette Trifiletti, an occupational physician, who examined Mr Sethi on 17 April 2012 and who was asked to prepare a report regarding his capacity to undertake a rehabilitation program. While I have more to say about that below, it is sufficient for the present purposes to simply note that Dr Trifiletti considered Mr Sethi was medically fit to undertake rehabilitation, job seeking activities and that she considered his condition had resolved such that he would be fit to resume his usual employment if this were available.
I should also point out that Dr Trifiletti, when testing Mr Sethi's grip strength, said that he demonstrated strong symmetrical grip and grasp bilaterally when asked to squeeze her hands. However, when the testing was undertaken with a Jamar dynamometer, this revealed normal strength on the left-hand (32, 36 and 32 kg) while on the right hand he recorded 14, 6 and 4 kg. Dr Trifiletti was unable to reconcile that test with the remainder of her assessment.
In a letter dated 29 May 2013 Dr Nathan responded to questions asked by Comcare regarding Mr Sethi's medical condition. Dr Nathan was of the opinion that Mr Sethi suffered from right arm chronic pain syndrome which is sometimes referred to as myofascial pain syndrome. He explained that the condition is not well understood but the diagnosis is generally applied in circumstances where a region or part of the body is affected by chronic pain in the absence of any specific or clearly defined tissue injury; or which persists longer than would be expected for a given degree of tissue injury; or if there is a poor response to standard medical treatments. Dr Nathan said that Mr Sethi's symptoms began in September 2011 but his condition had not improved to any meaningful extent. He also noted that Mr Sethi was not taking any medication in respect of his chronic pain.
The medical certificates provided by Dr Nathan record that Mr Sethi was fit for modified duties with limitations from 15 October 2011. The restrictions related to avoiding continuous use of a computer mouse for more than 10 minutes. Subsequent medical certificates issued by Dr Nathan including those certificates provided to Centrelink throughout 2012 and up to 23 May 2013 all indicate that Mr Sethi was able to do work other than his usual work for eight hours or more per week with restrictions in the use of his right arm when working on the computer. Despite that, Dr Nathan provided a letter dated 12 March 2013 addressed to: To Whom it May Concern, stating that Mr Sethi was unable to work in any capacity involving the use of his right arm since 9 May 2012.
Mr Sethi attempted to explain this inconsistency in a document he prepared for the purposes of this hearing in which he said that the medical certificates provided by
Dr Nathan were completed after he pleaded with him to change them from unfit for any duties because his family was suffering financially. He said he told Dr Nathan to write certificates with some capacity for that reason. Dr Nathan was not asked to give evidence in this proceeding and therefore I was unable to verify the request Mr Sethi said he made to Dr Nathan.Therefore, on the evidence before me on the hearing of this matter, I find that Mr Sethi did have the capacity to engage in remunerated employment and his condition has either resolved or he is able to work in some capacity, even in his usual occupation, provided that he takes regular breaks to rest his right arm when working on a computer.
RETURN TO WORK PLAN
On 25 October 2011 Mr Sethi was referred to Medibank Health Solutions for a workplace rehabilitation assessment. In a report dated 7 November 2011 a Medibank consultant reported that it may be appropriate for Mr Sethi's employer to provide him with a vocational assessment and to support him through the process of redeployment given that his contract with the ATO ended on 9 November 2011. The consultant said that in view of the present circumstances, the return to work goal was for Mr Sethi to find new suitable employment, performing pre-injury duties, working pre-injury hours with the new employer. The consultant recommended that in view of the fact that it was not possible for Mr Sethi to commence a return to work plan because of the termination of his contract on 9 November 2011, it may be appropriate for the ATO to provide vocational assessment and support for Mr Sethi in search for suitable new employment.
Mr Sethi was referred to AW Workwise for a vocational assessment. In a vocational assessment report dated 13 December 2011 Ms Jacinta Boase, a Case Manager with AW Workwise, said that the purpose of the assessment was to explore whether Mr Sethi's current level of skills and experience would enable him to access work with a new employer. She also said that she was asked to explore whether Mr Sethi needed to add to his current level of training to successfully re-enter the workforce and/or if there were any other barriers, such as location, demographic or rate of pay/salary which may impede his progress.
In the course of conducting the vocational assessment, AW Workwise asked Mr Sethi to select, from a list of jobs consistent with his profile, those which appealed to him.
Mr Sethi identified five vocational options including Call Centre Team Leader/Manager. AW Workwise provided Dr Nathan with a copy of the five vocational options selected by Mr Sethi and asked him to indicate whether or not he believed Mr Sethi had the capacity to return to work in one of those options. Dr Nathan responded by stating that he believed Mr Sethi had the capacity to return to work as a Call Centre Team Leader/Call Centre Manager. At the time of identifying that possible work option, AW Workwise also identified that there were 702 Call Centre Team Leader jobs in Melbourne and suburbs local to Mr Sethi. They identified the salary as $1560 per week being the full-time income for a 30 – 34 year old.Comcare accepted that having only one suitable employment opportunity regarded as satisfying his medical restrictions was insufficient to conclusively demonstrate that
Mr Sethi had an ability to earn in suitable employment. On that basis, Comcare was of the view that Mr Sethi may be entitled to incapacity payments after ceasing employment with the ATO for as long as his medical restrictions applied. Comcare then decided to obtain its own medical opinion in accordance with s. 57 of the SRC Act. On 24 February 2012 Mr Sethi was examined by Dr Reiter. She reported as I have stated in [16] – [19] above. Dr Reiter was also asked to comment on whether Mr Sethi was capable of undertaking a rehabilitation program. She said Mr Sethi was capable of working full working hours and that his only restriction continued to be 30 minutes of mouse and keyboard work followed by 10 minutes rest when he should be doing forearm stretches.On 16 February 2012 Mr Sethi agreed to a return to work plan established under s. 37 of the SRC Act. His responsibilities under that plan included attending AW Workwise on a daily basis or as requested; undertaking intensive daily job searching using AW Workwise facilities; taking advice from AW Workwise regarding his resume, applications and cover letters; and applying for jobs deemed suitable by AW Workwise. Mr Sethi was also required to keep an AW Workwise Job Seeker Diary; to bring that diary to each AW Workwise session; and to give it to the consultant for monitoring and feedback. The return to work plan to which Mr Sethi agreed also involved monitored and assisted job search sessions at AW Workwise for two hours each day.
In a status report prepared by Ms Lyn Woods regarding his return to work program which was made on 16 March 2012, it was recorded that Mr Sethi participated in regular job seekers sessions at AW Workwise. The report also stated that Mr Sethi was becoming frustrated and despondent with his lack of success in obtaining work with a new employer although he was currently receiving Newstart Allowance from Centrelink. It also recorded that Mr Sethi was going to India in mid April 2012 to attend a family property settlement. The additional comments made in that report included the fact that Mr Sethi did not bring his job seeker diary with him as required and that he had not written anything in it since 5 March 2012. When asked if he was still applying for jobs and/or attending interviews he said that he was, but that he did not think he was required to keep a record.
In her report of 16 March 2012 Ms Woods also said that Mr Sethi told her he received a job offer but rejected it because the salary, $39,000 including superannuation, was too low. Ms Woods said she asked Mr Sethi what the job was and he told her it was a Collections job. He could not recall the company name or location but thought it may have been Dunn & Bradstreet, or something like that. She reminded Mr Sethi that if he had kept a record of these applications he would know who he was talking to as well as the pertinent details. Ms Woods confirmed the discussion she had with Mr Sethi in her examination in chief. She was also asked why Mr Sethi considered $39,000 to be too low and she referred to his age and that he would not go back to that level of salary. When Mr Sethi was asked about this in cross-examination he denied not wishing to accept employment at a low salary. He did however agree that he had a conversation with Ms Woods saying he did not want to go back to the same salary he had earned seven years previously. He nevertheless claimed that he did not reject that offer.
Ms Woods also reported that at a session conducted on 29 February 2012 Mr Sethi reported he rejected a part-time job because he was asked to commit for six months but he was looking for a permanent, full-time job and therefore declined. Ms Woods suggested that Mr Sethi try and call the company back to tell them that he could commit to 6 months due to a change in his circumstances, but Mr Sethi could not recall the name of the company.
Mr Sethi also told Ms Woods that he intended to go to India in about mid April 2012 and he was not sure for how long he would be gone. Ms Woods recorded Mr Sethi as telling her that if he was offered a good job before he left Australia, he would not go to India. She reported that Mr Sethi seemed quite particular about the position for which he would remain in Australia and that he had rejected jobs to wait in hope for a better offer. She advised Mr Sethi to continue job searching before he left Australia. In her examination in chief, Ms Woods also agreed with the suggestion put to her by Ms C Dowsett of counsel, who appeared on behalf of Comcare, that Mr Sethi had not included all of the information about his job search activities in his Job Seeker Diary. As will become apparent shortly, that is a significant matter in this case.
Ms Woods prepared a second report on 11 May 2012. She reported that Mr Sethi told her that he did not keep records of job outcomes or employer feedback, but only a list of job applications. She explained to Mr Sethi the importance of keeping a full and complete record so that she could properly assist him by using feedback from prospective employers. Ms Woods said she put Mr Sethi through telephone interviewing role-plays but noted that he needed much more practice in this area. She also advised Mr Sethi that he should accept any job offer at this stage otherwise he would be in danger of not working for a very long time. Ms Woods recorded that Mr Sethi said to her that he did not intend to accept any job offer.
In late April 2012 Mr Sethi cancelled a deferred session with Ms Woods and although an extended appointment was made on a subsequent day, he cancelled that session explaining he would be attending a three hour assessment and interview for a job he had applied for. He also said he was not feeling well that morning. According to Ms Woods, Mr Sethi then said he would not be able to attend AW Workwise sessions for the next two weeks as he was required to attend compulsory Centrelink job search sessions from 30 April 2012 to 11 May 2012 for 30 hours per week otherwise he would lose his Centrelink payments. Ms Woods asked Mr Sethi to continue updating his job diary and e-mailing it to her each Monday morning. Mr Sethi did so on Monday, 30 April 2012 but Ms Woods said she received no further updates after that date.
There was nothing in Ms Woods' second report about Mr Sethi commencing employment in early May 2012. The only reason this came to light was because Dr Nathan recorded it in his clinical notes on 9 May 2012 where he said: has new job – lots of writing – flare in symptoms over the last few d – associated with increased workload getting neck pain as well. In cross-examination Mr Sethi agreed that he told Dr Nathan about a new job on that day and he described the work as being at a call centre on a part-time basis. He agreed it was that work which caused the flare-up in his symptoms. He described the symptoms as being more painful than he previously experienced. In cross-examination Mr Sethi agreed that he did not tell Ms Woods about the new job.
Ms Woods prepared a third report on 31 May 2012. She reported that Mr Sethi had only provided a list of job applications to AW Workwise on three occasions between 20 April 2012 and 31 May 2012. Ms Woods said she expected Mr Sethi to continue his AW Workwise sessions after he completed his Centrelink commitments on 11 May 2012. However she did not hear from Mr Sethi and attempted to contact him on 14 May 2012 without success. Mr Sethi finally contacted AW Workwise on 17 May 2012 saying that he was not feeling well and did not want to return for another session before 21 May 2012. Ms Woods apparently asked Mr Sethi if he had any job interviews and he told her that he was offered a job he had applied for before he went to Centrelink. He said he could not remember the name of the company but thought it may have been Kraft. According to Mr Sethi it was a permanent call centre/customer service job answering incoming calls and the annual salary was $55,000. He had provided the company with bank details and tax details. He said that when he was asked if he had an injury which would interfere with his ability do the job he replied that he had to take a 10 minute break every 30 minutes. Ms Woods reminded Mr Sethi that he did not have to take a break from work but could do some other work such as administrative work for up to
10 minutes if he was required to continually key/mouse for more than 30 minutes at a time. Mr Sethi told Ms Woods that after he told the employer that he would require a break every half hour, he was told that the company would get back to him if he was required to start. Importantly, Mr Sethi asked that the information regarding this job offer not be reported to Comcare. Ms Woods told Mr Sethi she was required to report to Comcare. Mr Sethi confirmed this conversation with Ms Woods in the course of his cross-examination.At a session conducted with Mr Sethi on 21 May 2012 Ms Woods asked him why he continued to advise prospective employers that he needed a 10 minute break every
30 minutes when, according to current medical information, he had full capacity to work. According to Ms Woods Mr Sethi insisted that the doctors were wrong and that he had pain when he did anything for more than 30 minutes, not just keying/mousing.On 31 May 2012 AW Workwise closed Mr Sethi's return to work plan due to his rehabilitation program being withdrawn. On the return to work plan closure document Ms Woods noted that Mr Sethi reported he was receiving Centrelink benefits and therefore was not always available to participate in job search and job search training with AW Workwise as required. She also noted that although Mr Sethi was expected to provide a list of his job applications on a weekly basis, he only did so on 23 April 2012, 30 April 2012 and 21 May 2012. Nothing further was received from Mr Sethi after that date.
The first observation I must make about Mr Sethi's compliance with the return to work program is that it was less than satisfactory. He plainly did not record every job application he made nor did he record sufficient details to enable meaningful assistance to be given to him in securing employment.
Furthermore, the medical evidence was uncontroversial. All medical practitioners, including Dr Nathan, regarded Mr Sethi as medically fit for work on a full time basis with restrictions when using a keyboard or mouse. However those restrictions were not so severe as to prevent Mr Sethi from obtaining and carrying out employment in one of the options he chose at the time his vocational assessment was conducted. That position was described as a call centre team leader/manager. Dr Nathan expressly agreed that
Mr Sethi's medical condition permitted him to undertake the role. At the time that assessment was conducted, Ms Woods identified some 702 call centre team leader jobs in Melbourne and suburbs local to Mr Sethi. The wages were said to be $1188 up to $1560 per week.The evidence in this matter is that Mr Sethi declined at least one job offer on the grounds that it was a part-time contract and one on the grounds that the salary was insufficient. It is also possible that he was made another offer by Kraft given that they took his bank account and taxation details. Although Mr Sethi claimed that the employment could not proceed because he told the prospective employer that he needed to take a 10 minute break every 30 minutes, as Ms Woods pointed out to him, that was not what the medical practitioners who examined him said. He was simply required to take a break from continuous use of a keyboard or mouse when working on a computer. He was not precluded from conducting other activities. As Ms Dowsett submitted, it would be most unusual for a prospective employer to take bank account and taxation details if an offer had not been made. Given the unreliability of Mr Sethi's compliance with recording details of job offers, it is certainly possible that Kraft offered Mr Sethi employment which was suitable. In fact, it is probable that an offer was made given that Ms Woods recorded in her third status report dated 31 May 2012 that Mr Sethi asked that the information regarding the job offer (presumably from Kraft) not be reported to Comcare.
Finally, there is evidence that Mr Sethi in fact commenced employment in early May 2012 but he did not inform Ms Woods or Comcare of that fact.
CONCLUSIONS
From 15 October 2011, Dr Nathan issued medical certificates to Mr Sethi stating that he was fit for modified duties, avoiding continuous use of a computer mouse for more than 10 minutes. While Dr Nathan did provide a general letter dated 12 March 2013 stating Mr Sethi was unable to work in any capacity involving the use of his right arm, on every other occasion, Dr Nathan was of the opinion that he could work for eight hours or more per week but with restrictions regarding the use of his right arm.
Dr Reiter, who examined Mr Sethi on 24 February 2012, found that subject to a limitation of 30 minutes of continuous work on a mouse and keyboard, he was able to work full hours. Dr Trifiletti, who examined Mr Sethi on 17 April 2012 found him to be medically fit to undertake rehabilitation and job seeking activities. Furthermore, she found his condition had resolved such that he was fit to resume his usual appointment if that were available. There being no evidence to the contrary, I must find that from
9 November 2011 Mr Sethi was capable of full-time employment subject to the restrictions identified by the various medical practitioners regarding the use of his right arm.I also find that Mr Sethi did not fully cooperate with his return to work provider. The three reports prepared by Ms Woods were detailed and not controverted by Mr Sethi in the course of his oral evidence. Those reports disclose Mr Sethi did not fully complete his job seeker diary as he was required to do. Nor did he disclose every job offer that was made to him in the course of that program. I find that he rejected one offer because he considered the salary to be too low and another because the job was for a six month contract. There was no evidence that he could not have performed the tasks involved in either of those jobs. Furthermore, I find that he was offered a job, which Mr Sethi thought may have been with Kraft, but subsequently made statements which probably resulted in the employer withdrawing the offer. He attempted to suppress that from Comcare, asking Ms Woods not to report it.
Finally, Mr Sethi clearly accepted a job offer and commenced employment in early May 2012 without notifying Ms Woods or Comcare of that fact.
Section 19 (4) of the SRC Act provides:
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self-employment) – the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.
Section 37 (5) is also relevant and it provides:
(5) Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
(a)if the employee is undertaking a full-time program – compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or
(b)if the employee is undertaking a part-time program – compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program.
The problem with applying s. 37 (5) is that the medical evidence was that Mr Sethi was not incapacitated in the sense that he could not perform full-time work at the time he was undergoing the return to work program. Although there were restrictions regarding the use of a keyboard and mouse, they were not such as would prevent him from carrying out work even if it involved the use of a computer.
There is also a problem in determining an amount of compensation payable under s. 19 of the SRC Act. In my opinion, Mr Sethi received at least two offers of suitable employment after becoming incapacitated for work and he failed to accept those offers. Therefore, I must have regard to s. 19 (4)(e) which, in this case, would disentitle
Mr Sethi to compensation from incapacity. In addition, I find that he failed to complete vocational retraining or to seek employment which was reasonable in the circumstances. Therefore, I must have regard to the matters set out in s. 19 (4)(b) and (f). Although the amount Mr Sethi could have earned per week had he accepted the offers of employment which he rejected is not absolutely certain, based on the vocational assessment report in evidence, the amounts probably exceeded Mr Sethi's NWE at the time he was employed by the ATO. That being the case, I find Mr Sethi was not entitled to any compensation after 9 November 2011.
In my opinion, the decision made by a Comcare Senior Review Officer on 29 June 2012 was correct. I affirm the decision.
I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member ...[sgd].....................................................................
Associate
Dated 30 August 2013
Date of hearing 28 June 2013 Representative for the Applicant Self-represented Counsel for the Respondent Ms C Dowsett Solicitors for the Respondent Comcare
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