Shanley and Comcare
[2011] AATA 259
•19 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 259
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2771
GENERAL ADMINISTRATIVE DIVISION ) Re WENDY SHANLEY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date19 April 2011
PlaceCanberra
Decision The decisions under review are set aside and are remitted to Comcare for calculation. .................[sgd].............................
Professor RM Creyke, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – accepted physical and psychological injuries – whether the applicant failed to seek suitable employment – whether the applicant had the capacity to work 20 hours per week - whether the applicant had an ability earn – where only suitable employment is self employment, ability to earn is to be based on amount actually earned – decision set aside and remitted to Comcare for calculation.
Safety, Compensation and Rehabilitation Act 1988 (Cth) ss 4, 19
Comcare and Davies [2008] FCA 393
Comcare and Woodbridge, Federal Court, 13 February 1996, 84/1996
J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625
Re Warnock and Comcare [2008] AATA 567
REASONS FOR DECISION
19 April 2011
Professor RM Creyke, Senior Member
1. Ms Wendy Shanley was born on 6 August 1953. She has accepted claims for a ‘lumbar sprain’ sustained on 25 March 1999; a ‘sprain of unspecified site of shoulder and upper arm’ sustained on 7 June 2002; an ‘unspecified acute reaction to stress (unspecified)’ sustained on 9 May 2003, and an ‘adjustment reaction with mixed emotional features (unspecified)’, sustained on 29 September 2003.
2. The first three conditions occurred during her employment with the Health Insurance Commission (HIC) where she worked between 1998 and July 2003. The fourth claim arose during her employment with the Department of Health and Ageing (Department) where she worked between August 2003 and December 2003. In July 2004, Comcare accepted liability to compensate for the adjustment disorder.
3. On 7 March 2006 Comcare decided that from 1 November 2005, Ms Shanley was no longer incapacitated for work as a result of the adjustment disorder. That decision was set aside by the Tribunal on 7 August 2008. The Tribunal’s decision was that during that period Ms Shanley had not fully recovered from her work-related injury. The Tribunal did not make findings on whether Ms Shanley had taken steps to find suitable employment, nor what hours she was capable of working.
4. On 12 September 2008, Ms Shanley’s solicitors requested a reconsideration of all Comcare’s decisions concerning Ms Shanley’s ability to earn in suitable employment. By reviewable decision dated 25 May 2009, Comcare affirmed the decisions made between 8 December 2003 and 12 September 2008 in relation to Ms Shanley’s ability to earn. The decision was made solely on the basis of her adjustment disorder. Ms Shanley received compensation for her physical injuries prior to 12 September 2008 based on a capacity to earn for 20 hours per week and this entitlement was not affected by the reviewable decision. On 19 June 2009, Ms Shanley sought review by the Tribunal.
5. At the hearing, counsel for Comcare conceded that for the period from 8 December 2003 to 12 April 2007 Ms Shanley did have an incapacity to earn under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). The concession meant that the only period under consideration by the Tribunal was the period from 13 April 2007 to 12 September 2008.
Legislation
Safety, Rehabilitation and Compensation Act 1988
4(1) "suitable employment" , in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means: …
(b) in any other case – any employment (including self-employment), having regard to the matters specified in subparagraph (a),(i), (ii), (iii), and (iv).
[The matters specified are:]
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence--whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter.
19 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 to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
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.
….
(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; …
(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
Issues
6. The principal issue is Ms Shanley’s ‘ability to earn’ per week (if any) from 13 April 2007 to 12 September 2008. That requires a separate analysis during this period of the following issues:
·What was suitable employment for Ms Shanley?
·Whether Ms Shanley failed to seek suitable employment?
·If so, whether her failure to do so was reasonable in the circumstances?
·If so, whether there were any other matters relevant to the issue of assessing the amount Ms Shanley was able to earn in suitable employment.
Background
7. Ms Shanley obtained a Higher School Certificate and commenced work on her husband's farm in the 1970s. She completed a Bachelors Degree in Communications at the University of Canberra in 1999 which had taken her approximately 10 years. She also holds a Certificate IV in Training and Assessment but could not recall when it was awarded. While in the Australian Public Service (APS), Ms Shanley completed a number of short courses, including in occupational health and safety, research and report writing, mediation and negotiation skills, management and leadership training. She has intermediate computer competencies and can operate Microsoft Word, Excel and Powerpoint, as well as, use email, and access the internet.
8. Ms Shanley separated from her husband in 1988. She then worked in casual employment as a publicity officer, did some writing for a national magazine, and worked part-time as a medical receptionist in 1990-1991. She joined the APS in 1998 and worked initially in the HIC and then for a short period in 2003, in the Department. Her employment in the APS was terminated on 8 December 2003.
Evidence of Kimberley Shanley
9. In 2004 Ms Shanley and her daughter Kimberley decided to go in to business together. Kimberley established a private company, Generating Business Solutions Pty Ltd, as the vehicle for their work. Initially they considered providing a training consultancy. That plan was abandoned when, according to Kimberley’s evidence to the Tribunal, Ms Shanley decided she wanted to do something in etiquette. That plan was not realised and the next proposal was that they would write resumes for people and help them find employment. At that point Ms Shanley said she was not able to do anything in the business.
10. Kimberley then started bookkeeping on her own behalf. She did this successfully and her mother occasionally helped her for half a day to a day a week. However, Ms Shanley could not remember what rules to apply, or what Kimberley had tried to teach her about data entry. As a consequence Kimberley said she found that, rather than assisting her, her mother’s attempts were proving more costly than beneficial. Ms Shanley’s evidence to the previous Tribunal hearing in 2008 was to the same effect.
11. Kimberley said during 2004-2005 she found her mother would not come in to work, and forgot appointments about 10 times in a period of approximately 18 months. Kimberley said if she called by to check on her mother she could find her in bed, mid-morning. She did not bathe, put on make-up, and would wear the same clothes for days at a time. She reported that Ms Shanley said to Kimberley and her sisters at this time, that she did not want to talk to any of them until she was ready and wanted time to herself. As Kimberley said, her mother ‘got very strange’.
12. In 2005 Ms Shanley began work in arts marketing under the business name, Kiku Arts. The business was, however, still conducted under Generating Business Solutions Pty Ltd. Kimberley said she was aware that her business was subsidising Ms Shanley’s, so in June 2006, at Kimberley’s request Ms Shanley agreed to run her business separately. As a first step Kimberley asked her to share the costs of their premises. Eventually, however, Kimberley downsized to a smaller office and Ms Shanley began running Kiku Arts from her home, initially in Canberra, ACT and then in Bungendore, NSW.
13. After the business separation, Kimberley said she was aware her mother would still do financially silly things. On one occasion she drove to Lightning Ridge, over 700 km from Bungendore, to sell art and obtain art for sale, and did so without calculating the costs of the trip or checking in advance whether there were buyers or sellers. She would buy art to sell outright, rather than sell it on consignment, and then find she could not sell the art works. Kimberley said she also has to do bookkeeping for her mother, who neglects this side of the business, often for months and does not pay bills or reconcile receipts.
14. When her mother first moved to Bungendore in 2007, Kimberley lived with her for about three months. She noted her mother would often shower only once a week, would stay in the same clothes, would forget to feed the dog she was minding, and was not having regular meals. In 2011, as she is again living in her mother’s house, Kimberley said if she did not provide regular meals her mother would not eat properly, her mother still neglects showering, is often late for appointments, and has to be reminded to lock up the chickens at night. Kimberley also said that after Ms Shanley first opened the Gallery she noticed there would be days when Ms Shanley had not opened the doors on an allotted day.
Rehabilitation and work trials
15. Between 13 August 2004 and 31 October 2005, Rosemary DuPont of DuPont & Associates, provided rehabilitation assistance to Ms Shanley. In her report of 14 January 2010, Ms DuPont notes that Ms Shanley applied for three positions with government not long after Ms DuPont started working with Ms Shanley, but she did not obtain an interview or even receive a response to her applications. Ms DuPont organised a work trial in February 2005 with Bayley & Associates but the work involved a substantial amount of data entry which was difficult given Ms Shanley’s epicondylitis and shoulder injury and, according to Ms DuPont, Ms Shanley 'found herself over committed with the voluntary work (in PA) [Public Affairs] she had commenced'. The trial finished after about a month.
16. Later in February 2005, Ms Shanley was involved in a work trial in a position she found for herself with Fashion, Flair and Fantasy, a wearable arts event. The venture was undertaken with the approval of DuPont & Associates. The position involved Ms Shanley coordinating volunteers, but when the Director became ill, Ms Shanley said the burden of running the show fell on her, and she assumed the title of ‘Marketing Director’. She had obtained a medical certificate enabling her to work 35 hours a week, but between March and the end of June 2005 she actually worked longer hours; over 40 hours a week in three of the fortnights. The work aggravated the pain in her right arm and back and she became emotionally fatigued and needed time to recuperate when the show was over. Ms Shanley persisted with the work until early 2006.
17. The venture was not a success financially and Ms Shanley said that looking back she could see the mistakes she had made. She also realised she had a problem working with people. In cross-examination she said even if she had confined her work to 20 hours a week during this period, the results would still have been as bad ‘because my analytical functioning and decision-making was faulty. So whether I had made faulty decisions over 49 hours or 20 hours, the outcome still would have been bad’.
18. Ms DuPont was also responsible for a placement in the Staff Development section of The Canberra Hospital, but due to difficulty in getting the necessary ergonomic equipment and voice activated software the placement did not go ahead. Ms DuPont also accompanied Ms Shanley to a GP on or around 4 July 2005 where the GP told her that Ms Shanley 'would not be fit to commence the work trial for a further three weeks’.
19. Ms DuPont's notes indicated that the Return to Work Plan (RTW plan) signed on 6 April 2005 identified the ultimate goal was to return Ms Shanley to paid employment or another suitable work trial and that she return to pre-injury hours. She noted that despite this goal 'there is no record of active job seeking'. She also noted ‘Later RTW plans do not mention ongoing paid employment as the focus turns to and remains on business development’.
20. Ms DuPont reported at the end of the assignment that early discussions about employment in government did not come to fruition for a number of reasons. These included:
·Self employment was apparently supported by her GP,
·Ms Shanley had a strong preference to build her own business which she had already commenced at the time of the referral to Dupont & Associates
She did not have confidence to work with government again after her earlier experiences
·By the time she was working sufficient hours to be competitive for paid work (Commonwealth or otherwise) she had her business well developed.
Ms DuPont recalled Ms Shanley discussing her distrust of government. She reported also that initially Ms Shanley had said she was not sufficiently well to do the intense development work to get a business running effectively. Nonetheless, Ms DuPont supported Ms Shanley’s efforts to set up her own business.
21. The business referred to was Kiku Arts. Initially Ms Shanley operated the business in Canberra but around June 2007 moved to Bungendore. After renovations to her home, so an art gallery could be conducted in the front of the building while she lived in the back, the Gallery was opened in February 2008. Ms Shanley worked there part-time. At times, two people assisted her on a casual basis as volunteers and she later employed someone to work in the Gallery.
22. Ms Shanley said that at Kiku Arts she tried to work the 20 hours a week that Comcare determined she was capable of managing. However, at times her work occurred during the night. In response to cross-examination at the hearing that suggested this meant she was able to work 20 hours a week provided the work and the timing of the work was flexible, Ms Shanley demurred. She said she could fill those hours with work-related activities but she knew that some of the output in those 20 hours would be ‘crap’. She said she might do some book-keeping in the middle of the night but when her daughter came to check the figures ‘it’s all done wrong’.
23. Initially Ms Shanley said she was trying to open the Gallery on the weekend and on one day a week. Later, when she had assistants it was, for a period, open all week. An exercise book maintained by Ms Shanley was available at the hearing which indicated the hours the gallery was open, but not necessarily the hours Ms Shanley was working. In the early pages, the hours were entered by Ms Shanley, but later there were entries in other’s handwriting. Ms Shanley said even when she was the recorder these did not necessarily reflect her working hours since she transcribed notes of hours by her assistants which she then entered because she said she liked to keep the book tidy. Although not indicative of the hours worked by Ms Shanley, the book does show the gallery opened at irregular times and on varying days.
24. According to Ms Shanley she ‘maintained [the Gallery] for a year and a half, running badly, running at a loss, taking every cent I had and going downhill’. In 2007-2008 the income of the business for income tax purposes was shown as $28,611, however the business never made a profit and Kimberley tried to persuade her that the business was not prospering. In response, Ms Shanley said:
I kept telling her I was going to do better and I was going to do better and I was going to do better. And she kept showing me facts and figures and things that I wasn’t doing better and eventually, they got me to realise that what she was saying is completely spot on and I closed.
The business was closed in May 2010.
25. During the relevant period Ms Shanley also had one paid job with the Cancer Council from 15 May 2007 to 31 May 2007. Her gross wage was $33.26 an hour. When she first moved to Bungendore she attempted to obtain a position as a receptionist, but did not commence the position due to anxiety attacks. She also attempted to take a position as a sales person in a rural supply store. In this position she undertook unpaid training which she managed for about 16 hours spread over four weeks, but she did not commence the employment. She said she realised she would not be able to function in the job after freezing while attempting to answer the phone on her own.
Evidence of Ms Shanley
26. Following her diagnosis with a serious medical condition in November 2009 which requires her to undergo regular treatment in Sydney, Ms Shanley said she did not work at the Gallery from January 2010, leaving it to her assistants or artist friends to manage.
27. Even when working at Kiku Arts, she stated that, on occasions she hit rock bottom and could not answer the phone or a knock on the door, could not manage contact with anyone, and just hid at the back of the house. Some days she said she could not get out of her pyjamas. She said this happened about once a week and has not changed. However, she said that even on those days she would try to do some work, such as emails or bookkeeping to make up the hours. At this time she would often not eat for days, and then would binge. She said at present she showers once a week, a reluctance fuelled by the colostomy equipment she now has to manage. In 2007-2008 she said she might go weeks without a shower. She said she did not eat normally any day of the week.
28. As an indication of her not managing, Ms Shanley said at the hearing that she had ordered business cards but forgot to include her telephone number. At one point she had arranged to put art in display homes in Canberra. On the first showing she forgot to bring the art, and when she did remember she had forgotten to put on the art where it was from, its cost, and from whom it could be bought.
29. Ms Shanley also said that during 2007-2008 she had periods of loss of concentration and memory. She would forget to turn up to meetings with artists or to make a delivery she had promised. During this period she said she could not read a book. Her psychologist, Mr Woodger, had advised her to make lists to remind herself to do everyday things. Whether she achieved what was on the list depended on whether it was a good day or a bad day. The bad days, she said, outnumbered the good. Her sleeping patterns were also bad and she spent considerable time ruminating about her failures.
30. In her statement Ms Shanley noted that following her experiences in the APS she had no trust in its processes and practices and could not return to working there. She has taken steps to find other work which would accommodate both her physical and her psychological conditions. In particular she was concerned to avoid workplaces in which she was ‘vulnerable to mistreatment’.
31. Ms Shanley said she did not try to obtain other employment during 2007-2008 because she regarded Kiku Arts as her business and she really wanted to make a success of it and have a career. She also said she knows that if she did not work for herself, other employers would not have kept her on.
Ms Sonja Carder
32. Ms Sonja Carder, a rehabilitation counsellor with Advance Personnel Management (APM) provided an Ability to Earn Assessment report on Ms Shanley for Comcare on 11 December 2009. The report documented Ms Shanley’s work history and noted that 'Comcare considered ... Ms Shanley could work 20 hours per week within the Commonwealth in a position compatible with her age, training and qualifications but that also involved limited contact with others'. The report lists the ‘Occupation/Duties’ involved in each of her activities during her working life from 1989. Her report concluded that Ms Shanley’s ‘Transferable Skills’ included:
· Ability to instruct and teach others in informal and formal learning situations
· Knowledge of learning strategies and training methods
· Ability to monitor and assess the performance of self and others
· Ability to talk to others and convey information effectively
· Time management and organisational skills
· Reasoning and problem solving skills
· Ability to understand and implement aims, policies and programs in educational and business setting
· Ability to prepare marketing material and quotes related to area of interest and expertise
· Ability to use word processing, internet and email software
· Business management and administrative skills
· Basic financial, budgeting and accounting skills related to business operation
· High level verbal and written communication skills
· Experience in preparing proposals and tenders to secure contracts
· Ability to prepare and display craft, jewellery and art for display and sale
· Customer service and cash handling skills
· Knowledge of the arts in Australia
· Knowledge of principles and methods for showing, promoting and selling products and services
· Ability to manage and direct activities of others
33. She confirmed that Ms Shanley did not bring with her a CV and that her history of Ms Shanley’s work experience was based on her discussions with her. Ms Shanley agreed and said that ‘the duties we went through seem to be the right sort of duties that you would have for those positions’. However, Ms Carder acknowledged that for the position with the Department she had relied on the Department of Employment and Workplace Relations Work Level Standards for information on typical duties, the details of which were not discussed with Ms Shanley.
34. Ms Carder concluded on the strength of these skills that Ms Shanley could fill an Executive Level 1 (EL1) position in the APS and said ‘it is considered Ms Shanley would have been suited to employment within the Commonwealth at same or similar level to that of EL1 or PAO3 [Public Affairs Officer Grade 3] provided she targeted part-time, project, contract or casual employment’.
35. Ms Carder also concluded that ‘Ms Shanley could have worked in suitable employment in the identified vocational options during the period in question. However, Ms Shanley may be more suited to work of a part-time consultancy or contract nature that allowed her more opportunity to dictate her working requirements’. Ms Carder said at the hearing, her assessment was based on Ms Shanley having ‘an ongoing condition that resulted in some incapacity for work’.
36. At the hearing, Ms Carder also said her assessment took into account Dr Knox’s opinion that Ms Shanley ‘would not work well in group environments where she is required to function in an ordered, authoritarian hierarchy’, and that Comcare considered she was capable of working 20 hours per week within the Commonwealth, ‘but that also involved limited contact with others’.
37. She said she did rely on Ms Shanley’s role in relation to Generating Business Solutions and in Kiku Arts in deciding what were suitable positions for Ms Shanley. Ms Carder agreed she would need to reconsider her recommendations relating to the three roles outside the APS she had identified as suitable, if the Tribunal accepted that Ms Shanley could not work for anyone else.
38. Ms Carder also conceded that in her assessment interview, Ms Shanley had indicated that she had problems with memory and cognitive issues, she mentioned the paintings in the display homes which had no purchase price or other details, and Ms Carder mentioned in her report the difficulty Ms Shanley had recalling specific dates and details in relation to some of the training that she had completed.
39. Ms Carder also conceded in cross-examination that if there was evidence that a person could not function normally in the workplace, for example, for 20 hours a week – which had been her assumption – she would need to review her opinion about suitable work for that person. For example, she conceded that in those circumstances, Ms Shanley could not function normally as a teacher, even for 20 hours a week.
40. At the same time Ms Carder said that if a person was hesitant about re-entering the workforce, having been away from work following an adverse incident, it was important to try to get them back into employment. She said that even for someone with Ms Shanley’s limitations, such as the absence of a hierarchical environment, there were suitable jobs for that purpose, such as contract and project type work.
Consideration
41. The Tribunal must consider, for the 17 month period from 13 April 2007 to 12 September 2008, what was Ms Shanley’s ‘ability to earn’ and what was ‘suitable employment’.
42. The previous Tribunal decision in this matter, Re Shanley and Comcare [2008] AATA 693 made no findings as to Ms Shanley’s ability to earn. That issue requires a consideration first of the medical opinions as to whether and the degree to which Ms Shanley continued to be incapacitated for work.
Whether Ms Shanley continued to be ‘incapacitated for work’ (section 19(1) of the Act)
Dr Young and Mr Woodger
43. Dr Anne Young, consultant psychiatrist, in a report of 1 June 2004 noted that Ms Shanley had symptoms of variable mood, poor concentration and short-term memory and variable appetite. Mr Neil Woodger, Ms Shanley’s treating psychologist until 3 November 2006, provided a final report on 1 October 2007. In that report he noted that he had seen Ms Shanley on 15 occasions between July 2001 and November 2006. His final report said that although her condition ‘showed some improvement prior to our discontinuing treatment in November 2006’, she continued to suffer from memory and concentration problems and had ‘trouble retaining new information at work’.
Dr Knox
44. Dr William Knox, consultant psychiatrist, who provided several earlier reports,[1] noted in his report of 19 February 2007, that Ms Shanley ‘continues to have significant psychiatric impairment by way of Chronic Adjustment Disorder With Mixed Anxiety and Depressed Mood’, and currently met DSM-IV[2] criteria for Major Depressive Disorder. He noted that despite these conditions Ms Stanley was ‘making efforts with her own employment to improve her mental health and succeed in her work performance’. He concluded that although Ms Shanley had noted no ‘major change in her overall mental health’ since late September 2004, ‘there can be a gradual improvement in her condition, although the longer term outcome remains uncertain at this time’. At the hearing he said that Ms Shanley’s conditions meant her moods were labile, that is, susceptible to change.
[1] Including his clinical notes on 25 April 2006, and two letters to Dr Bernadette Mackay, dated 25 April 2006 and 7 April 2006. Dr Knox had also assessed her for treatment in 2004.
[2] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed) (DSM-IV).
45. He found her ‘generally cognitively intact’ and her ‘history credible’. He noted her complaint of poor concentration and forgetfulness. For example, she had said she was organising an arts competition but had neglected to find a judge. He also reported her saying ‘She is regularly tired. She is indecisive. She feels guilty about her deteriorated abilities’, especially when contrasted with her earlier abilities while at HIC where she said ‘she had manifested normal cognitive ability and undertook high level analysis and work’.
46. In March 2008 Dr Knox confirmed his initial diagnoses, but said Ms Shanley’s Major Depressive Disorder occurs periodically. He noted that her ‘poor concentration and memory’ meant she neglected to take her anti-depressant medication on occasions and said that given ‘the chronicity of her conditions … I would not expect a rapid change in her condition’. He confirmed that ‘while her new … living and working arrangements seem appropriate’ he believed she also needed psychotherapy. He repeated the need for her to ‘continue in safe work activities for a considerable period of time’.
47. In his 24 February 2010 report, he said despite the elapse of time, and treatment with anti-depressant medication, her mental health and behaviour pattern were unchanged during the latter part of 2008 and early 2009. At the hearing he said there had been ‘fluctuations in intensity’ in Ms Shanley’s conditions, but ‘by and large … the main issues had continued’.
48. In his opinion Ms Shanley had: ‘worked to her maximum capacity by way of operating the Bungendore Gallery for part time hours’. He did ‘not believe her fit to have undertaken any other duties, and indeed the worsening of her depression in February 2009 was likely the result of her efforts during January at the Gallery’. As he said: ‘Any other duties would have taxed her coping capacities even more so’. He also noted that ‘some earlier interpersonal problems had left her too fearful to risk meeting with strangers. She had however been able to continue to liaise with most of the artists who exhibit through her gallery’. In particular, he noted she would not work well in group environments where she is required to function in an ordered, authoritarian hierarchy. Nonetheless, in his opinion, she had made ‘a genuine and fair attempt to utilise her work capacities’.
49. At the hearing he said:
… she would tell me that she would sometimes not be in the gallery or that she would be away outside. I mean she was frightened of meeting with people … so I think that’s broadly consistent that even though she was doing 20 hours, that she was up and down and sometimes coping and sometimes being very avoidant or afraid or tired and not therefore being at work, so that’s consistent.
50. In response to questions about whether an adjustment disorder could last beyond six months, Dr Knox said that if the stressors have disappeared it is likely that an adjustment disorder will be short-term but in Ms Shanley’s case ‘there are ongoing issues which have not gone away’. In particular, as he had said earlier ‘she was on the edge all the time, tipping in to be horribly frightened or expecting to be, not physically attacked, but misunderstood or abused or threatened’.
51. He also noted of the difference between his and Dr Skinner’s diagnosis of Ms Shanley’s mental state after she moved to Bundendore that Ms Shanley was likely to have gone through a ‘honeymoon’ period after the move. As he said:
… many people … who have been … psychologically injured in work places due to bullying and other negative behaviour, by and large their big issue is never being able to work for anybody else again. They can have their own gardening business or then can work from home or they can look after the kids because they are in control. They are not at the beck and call of somebody else that they fear will treat them harshly again. That’s the crucial point in my interpretation of why this move [by Ms Shanley] was potentially a constructive one and indeed, to some extent, did help this lady move ahead to manage to work some limited hours.
Dr Mackay
52. Dr Bernadette Mackay, Ms Shanley’s treating general practitioner, provided a report on 6 April 2010. She had earlier reported on this matter by letter on 21 June 2000, provided her clinical notes for periods in 2003 and 2005-06, and reported on 27 October 2005, and on 2 December 2007.
53. In her 2005 report Dr Mackay recommended that Ms Shanley should seek work within the private, not the public, sector. In her December 2007 report she confirmed that Ms Shanley’s conditions of depression and adjustment disorder continued and noted her present ‘symptoms are those of concentration difficulties, organizational difficulties, mood lability – namely low mood sad/depressed mood, motivational disturbance and a loss of hope regarding a good outcome [for] her situation’.
54. Dr Mackay confirmed her diagnosis of adjustment disorder/depressive illness in her 6 April 2010 report. She noted ‘that the degree of distress and loss of confidence and capability [of Ms Shanley] has intensified over the years’. She also acknowledged that when she earlier had written certificates that Ms Shanley could work full-time, ‘I was not fully aware of the problems and discord with her working problems, nor the degree of stress Ms Shanley was truly experiencing’. She said her capacity for work in accordance with medical certificates was to her best knowledge ‘hoped for’, ‘attempts at’ and ‘desire to work’, rather than an accurate reflection of her capability.
55. She said she had ‘become aware of Ms Shanley’s degree of difficulty in handling work and her short term memory problems and impairment of organization and at times self care only gradually’ although she noted that she ‘was aware that Ms Shanley was at times so distressed that she did stay in bed, fail to shower and fail to eat … missed medical appointments, forgot to renew her driver’s licence and reported marked anxiety over her memory and concentration’. In her view, Ms Shanley ‘requires intermittent ongoing psychiatric review possibly in conference with the treating psychologist. She said she ‘will most probably continue to require medication for assistance with mood support’.
56. Dr Mackay did note that Ms Shanley, despite her epicondylitis and shoulder pain ‘sought to …. modify her activities wherever possible to cope with her limitations’. In her view Ms Shanley ‘made very reasonable and determined efforts to remain employed when there were many obstacles in her path, her physical health was impaired and a healthy psychological status … had not been recovered’. All this was also at a ‘critical life time period’ in her health.
Dr Skinner
57. Dr Yvonne Skinner, consultant psychiatrist, provided a report dated 7 May 2010. She had provided previous reports dated 6 November 2006, 27 April 2007 and 22 November 2007. In her 2010 report, Dr Skinner pointed out that she had not seen Ms Shanley since 2007, so her report on Ms Shanley’s medical condition in 2010 was based on the assessment of others. For that reason, when she was unavailable to attend the hearing, her oral evidence was not sought by the Tribunal.
58. Dr Skinner’s report of 6 November 2006 said Ms Shanley reported sleeping difficulties, irritability, and poor memory. However, Dr Skinner said she did not find an 'identifiable psychiatric condition', nor any evidence of problems with memory or concentration. She considered Ms Shanley would be capable of working full-time in 'any occupation for which she is qualified and suited'. However, she did recommend she did not deal directly with clients and others.
59. In her 27 April 2007 report, Dr Skinner had said ‘I agree with Dr Knox that Ms Shanley has suffered from an identifiable psychiatric condition, Adjustment Disorder with Mixed Emotions of Depression and Anxiety from about May 2003’. Her 22 November 2007 report for Comcare noted, however, Ms Shanley was ‘not suffering from any psychiatric disorder’. The report was based on her assessment on 29 October 2007. She noted, as had Dr Knox, that ‘personality factors are also relevant to the manner in which she handles interpersonal relationships and disruptions’. She denied that Ms Shanley was suffering from a major depressive disorder, and said ‘She leads a reasonably active lifestyle and is functioning well in her home life and her business’.
60. In her view, Ms Shanley would not have been able to return to work in either of the Commonwealth agencies by whom she had been employed because of her treatment and the problems she encountered there. However, she would have been fit to work in other Commonwealth agencies if suitable work had been found. Dr Skinner noted that Ms Shanley might have preferred to be self-employed.
61. In the section ‘Present Complaints’ of her November 2007 report, Dr Skinner noted that Ms Shanley’s ‘ mood is generally good [although] at times … is labile and she is easily provoked to tears’. In addition she said:
… the move to Bungendore has been very positive, She loves living where she on half an acre. She described the position as being ‘in heaven all day’ and ‘very relaxing’. She rarely becomes irritable, although she described becoming irritable sometimes with telemarketers.
Her relationship with others is generally good. She gets on well with her boarders. She has good relationships with family members. She is very tolerant of her sisters and has ‘fantastic’ relationships with her three daughters. She gets on well with her parents.
Her memory is good both long-term and short-term, although possibly her short-term memory is less good. Her concentration was described as ‘terrible’ at times and good at other times. Sometimes she misplaces keys or sunglasses. Occasionally she forgets things but recalls them later.
62. Dr Skinner did note that although independent with self care, Ms Shanley ‘sometimes does not properly attend to her personal care. Her eating is normalised and she is not binge eating as she sometimes did before’.
Level of incapacity
63. It is clear that by the latter part of 2007, Ms Shanley’s condition had shown some improvement. Mr Woodger so reported from his last meeting with her in November 2006 and Dr Knox was prepared to find, by March 2008, that even though her adjustment disorder remained, her major depressive disorder was by then only ‘periodic’. Dr Mackay did not state whether there had been an improvement but noted Ms Shanley’s positive attempts to remain employed while at the same time indicating a continuing need for ‘medication for assistance with mood support’ with intermittent psychiatric review and possibly psychological treatment.
64. Dr Skinner’s report of 2010 acknowledged Ms Shanley continued to suffer from depression but gave as her opinion that this was due to the diagnosis in November 2009 of a serious condition. That event is outside the timeframe for the Tribunal’s consideration and accordingly can be discounted.
65. Dr Skinner’s earlier reports on the issue of a diagnosis had been equivocal. In April 2007 she agreed with Dr Knox’s diagnosis of adjustment disorder with mixed emotions of depression and anxiety from May 2003. By November 2007, in her report for Comcare, she had changed her view and denied that Ms Shanley was suffering a psychiatric disorder. An explanation for this change in diagnosis was that Ms Shanley, in her examination with Dr Skinner in October 2007, presented in an upbeat mood, a symptom of the labile characteristic of her condition.
66. Dr Skinner’s description of Ms Shanley’s present complaints on that occasion, depicted her mood as ‘generally good’, her ‘relationship with others is generally good’ including with her boarders, and family members, that she had a ‘fantastic’ relationship with her three daughters, that ‘her memory is good both long-term and short-term’ and that the move to Bungendore had been ‘fantastic’. These descriptions are consistent with Ms Shanley’s explanation of herself on that occasion as euphoric.
67. This glowing account of her relationships with those nominated is not consistent with other reports. There are indications that Ms Shanley had difficulties with her parents and sisters, for example, over the sale of their farm, that Ms Shanley had concerns at various times over the health of two of her daughters, and a relationship breakdown of one daughter, and she said in evidence she asked at least one of her boarders to leave.
68. In addition, Dr Skinner’s summation does not appear fully to reflect the history provided in October 2007. Ms Shanley is reported as saying that ‘she still had bad periods’ even with medication; that after the settlement of her house in Canberra, presumably just prior to this period when she moved to Bungedore, she ‘crashed’; that there were periods when she ‘did not properly attend to her personal care’; she had ‘insomnia’; ’her appetite was poor’; she did not have meals regularly and was prone to tears. These comments, which are reported by Dr Skinner in October 2007, are not reflected in the conclusions in Dr Skinner’s report.
69. The Tribunal is aware that a common thread in the medical accounts of Ms Shanley’s mental conditions is that her moods are ‘labile’. Ms Shanley’s history, for example, the several abortive business ventures she proposed to conduct jointly with Kimberley in 2004, culminating in her announcement that she was not able to do anything, and other instances of impulsive behaviour such as the trip to Lightning Ridge, are indicative of this characteristic. The Tribunal found Ms Shanley to be a credible witness.
70. For these reasons, the Tribunal gives less weight to the positive summary in Dr Skinner’s report. On balance, the Tribunal finds that during this period, which included the time in June 2007 when Ms Shanley sold her house in Canberra and moved to Bungendore, Ms Shanley continued to suffer from her psychiatric conditions.
71. That conclusion is consistent with the report of Dr Knox on 6 March 2008 that he ‘would not expect a rapid change in her conditions’ and that of both Dr Knox and Dr Skinner that Ms Shanley’s condition was unlikely to respond to anti-depressant medication. These opinions confirm that Ms Shanley was suffering an intractable condition which might improve but was likely to continue for a considerable time.
72. The effect of those conditions on her functioning was, as Mr Woodger and others had reported, that she continued to suffer from memory, organisational and concentration problems and had ‘trouble retaining new information at work’. The inability to learn and retain new information is consistent with Kimberley’s and Ms Shanley’s reports of how difficult she had found it to learn bookkeeping. Ms Shanley’s poor concentration and forgetfulness were also confirmed in reports of Dr Knox and Dr Mackay, although denied by Dr Skinner.
73. The medical report of Dr Knox in March 2008 also referred to Ms Shanley’s need to ‘continue in safe work activities for a considerable period of time’, in his 2010 report of ‘her fearfulness to risk meeting with strangers’, and her need to avoid working in an hierarchical, authoritarian environment. Dr Skinner recommended that Ms Shanley not undertake work dealing directly with clients and others.
74. The Tribunal also notes that there had been an assumption, based on findings by a medical practitioner in 2006 relating to her physical limitations, that Ms Shanley was capable of working for 20 hours a week. The evidence at this hearing indicates, and the Tribunal so finds, that although Ms Shanley would, on occasions, manage to fill 20 hours a week with work-related activities, the output in those hours was often below acceptable standards for those activities.
75. As Ms Shanley recorded Kimberley often had to re-do the bookkeeping Ms Shanley had managed. Dr Mackay too had noted Ms Shanley’s capacity for work was often in the ‘hoped for’, ‘attempts at’, and ‘desire to work’ category, rather than indicative of a capacity to function competently in these activities. These examples indicate that Ms Shanley frequently had aspirations which her performance could not match. Her forgetfulness, lack of organisational ability, inability to concentrate and mood disorders undoubtedly also impacted on her performance.
76. The Tribunal is aware that the medical reports in this matter were prepared in the context of its hearings. They were prepared by medical or allied practitioners who had either treated Ms Shanley or had assessed her on more than a single occasion. Even allowing for these facts, the Tribunal finds that the reports identify a consistent pattern of characteristics which have the effect of limiting Ms Shanley’s ability to work in 2007-2008.
77. The history in this matter indicates that no significant change occurred in Ms Shanley’s medical conditions between April 2007 and September 2008. In those circumstances, Ms Shanley continued to have serious limitations due to her psychiatric conditions on her ability to work.
‘Ability to earn’ and ‘suitable employment’
78. An employee’s ability to earn is defined as the greater of the amount that the employee can earn in suitable employment and the amount the employee earns in any employment (section 19(2) of the Act). ‘Suitable employment’ is defined in section 4(1) of the Act.
‘Suitable employment’
79. What was ‘suitable employment’ for Ms Shanley in 2007-2008 was the principal issue in this matter. Counsel for Ms Shanley maintained that there was no employment which was suitable for Ms Shanley. Counsel for Comcare relied on the report of Ms Carder as evidence of the kinds of employment which were suitable for her, in particular, being part-time employment of a contract, consultancy or project variety.
80. Ms Carder’s initial report concluded that, notwithstanding Ms Shanley’s medical condition, suitable employment included work ‘within the Commonwealth at same or similar level to that of EL1 or PAO3 provided she targeted part-time, project, contract or casual employment’. At the hearing she confirmed that this work could be in the public or the private sector.
81. However, also at the hearing Ms Carder conceded that if the Tribunal found that Ms Shanley could not work for anyone else, she would need to reconsider the three types of work she had suggested as suitable. She also conceded that her report was based on an assumption that Ms Shanley could work for 20 hours a week and if that assumption was not accepted, she would have to review her options.
82. The Tribunal notes that it was unlikely at that time, that Ms Shanley would have been able to work even as a consultant, on contract, or on projects. In each of those positions, despite a degree of flexibility in terms of working hours, there would still be a need for Ms Shanley to negotiate the contract or the project, or advise the client, there would be meetings to attend and reports of outcomes would be required. There would need to be interaction with those for whom the work was required and possibly with others from whom material would need to be obtained.
83. The material before the Tribunal, including the information about missed appointments, Ms Shanley’s concentration and memory problems, and organisational difficulties indicate that Ms Shanley could not have been relied on to manage even these minimal contacts with and employment responsibilities to others. The limitations on her interactions with clients or other people with whom she had not developed a level of trust, support the conclusion that finding contract or project work, even on a part-time, would have been difficult. It was also unlikely given her age and lack of recent workforce experience, that she would have been in a position to attract such work, much less perform it satisfactorily.
84. The Tribunal finds, accordingly, that Ms Carder’s suggestions about what would be ‘suitable employment’ for Ms Shanley failed to take account sufficiently of the factors limiting her earlier capacity. In other words Ms Carder’s assessment of the kinds of employment and the level indicated in her report were unrealistic.
85. That conclusion had been reached earlier by DuPont & Associates when her rehabilitation adviser supported Ms Shanley attempting the Kiku Arts venture. There can be no dispute that this was considered to be ‘suitable employment’ for her under the Act given the limiting factors, including not working in an hierarchical situation, and the need for her to work in a ‘safe working environment’ with people she believed she could trust.
86. The Tribunal is not prepared to find that Ms Shanley was totally incapable of working during that period since Ms Shanley was working and was earning income in that time. The Tribunal finds, accordingly, that the only suitable employment for Ms Shanley at that time was self-employment in Kiku Arts.
Hours of work
87. Both parties agreed that no finding was made in the previous decision by the Tribunal as to the hours Ms Shanley could work. Her evidence was that she did work about 20 hours a week in the Gallery.
88. Counsel for Comcare submitted that allowing for Ms Shanley’s incapacity, section 19(4) operated so as to deem her to have 20 hours per week ability to earn in suitable employment which included employment in the private sector. Counsel for Ms Shanley contended that as of 13 April 2007, as there had been no significant improvements in her medical conditions, she remained unable to undertake any employment.
89. The information available does not indicate with any precision the hours Ms Shanley could work. The report of DuPont & Associates, dated 7 October 2005, noted that Ms Shanley ‘has recently gained approval from her GP to increase her hours to 20 per week’. A report on 10 August 2005 by DuPont & Associates, had noted, however, she was only certified for 6 hours a week. Dr Knox, in his report of 24 February 2010, said in his opinion: ‘Ms Shanley worked to her maximum capacity by way of operating the Bungendore Gallery for part time hours’. Ms Shanley said in evidence that although she had tried to work the 20 hours she believed Comcare expected of her, she knew that she was not functioning efficiently for that period.
90. In the absence of further information, the Tribunal finds that Ms Shanley was, during the relevant period, not able to work 20 hours a week. Further evidence will need to be obtained by Comcare on this issue. In doing so, Comcare should take into account that the hours the Gallery was open were not indicative of the hours Ms Shanley was able to contribute to the business since those hours included the help of a couple of artist friends and of her daughter who was doing the books for her.
‘Earning capacity’
91. In deciding the amount per week that an employee is able to earn in suitable employment, the Tribunal must have regard to section 19(4)(a) of the Act which provides Comcare must have regard to:… where the employee is in employment (including self-employment) - the amount per week that the employee is earning in that employment.
92. Ms Shanley’s solicitors claimed that Ms Shanley’s ability to earn was the amount per week she earned from any employment. Estimating the value of that ‘suitable employment’ has to take account of ‘the earning capacity of a [person] as a worker … measured by the remuneration that is the fruit of [the person’s] labour, [the person’s] wages or their equivalent’.[3]
[3] J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 (High Court) per Windeyer J at 643, applied in Re Warnock and Comcare [2008] AATA 567 at [41]. See also Comcare v Woodbridge, Federal Court, 13 February 1996, 84/1996.
93. Ms Shanley’s ability to earn in that period in ‘suitable employment’, can only be based on what she managed to earn in self-employment in that period. This is the only result that sufficiently takes account of her age, experience, training, language, other skills, her attempts to be involved in rehabilitation and vocational training, and the employment available within reasonable distance from Bungendore, discounted in accordance with her health and other work-limiting factors.[4]
[4] Act s 19(1).
94. The calculation of Ms Shanley’s ability to earn in the periods covered by the decisions under review is to be taken from the figures provided in her income tax returns, in conjunction with the business records of Generating Business Solutions Pty Ltd, and the Profit and Loss Statements for Ms Shanley trading as Kiku Arts. The calculation is not to equate ‘operating loss with ability to earn’.[5] The relevant periods covered by both sets of documents do not correspond with any financial year and will need to be estimated by Comcare.
Whether Ms Shanley failed to seek ‘suitable employment’?
[5] Comcare v Davies [2008] FCA 393 at [11] and [37]; J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 per Windeyer J at 643.
95. In deciding the amount per week that an employee is able to earn in suitable employment the decision-maker must take into account whether the employee has ‘failed to seek suitable employment’ (section 19(4)(e)).
96. Ms Carder noted that there may be an issue as to whether the employment with the ACT Cancer Council as an administrative assistant, the position in a rural store and as a receptionist were suitable employment 'given the employee's age, training and experience'.
97. The Tribunal has found that the only employment which was suitable for Ms Shanley at that time was self-employment. In those circumstances, there is no need to consider whether Ms Shanley’s efforts to find alternative employment in that period were directed towards ‘suitable employment’. What those efforts confirmed was that Ms Shanley could only work in her own business, that she had not ceased to make efforts to find what employment was ‘suitable’, and that these efforts confirmed her conclusion that self-employment alone was suitable. In other words, Ms Shanley did not fail to seek employment but continued to try to work in her own business throughout the relevant period.
Costs
98. In relation to cost, the parties are at a liberty to apply within 21 days of this order. Failing an application, the usual costs order is to apply.
Order
99. The decisions under review are set aside and are remitted to Comcare for calculation.
100. It was conceded by Comcare at the hearing and the Tribunal so finds that from 8 December 2003 to 12 April 2007, Ms Shanley’s ability to earn under section 19 of the Act is to be calculated by reference to the amount per week, if any, that she earned in employment, including self-employment.
101. For the period 13 April 2007 to 12 September 2008 Ms Shanley’s ability to earn, including hours she is capable of working, under section 19 of the Act is to be calculated by reference to the amount per week, if any, that she earned in self-employment.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
Signed: ................[sgd]................................
C. Baillie, AssociateDate of Hearing 16-17 March 2011
Date of Decision 19 April 2011Solicitor for the Applicant Robert Coen
Maurice Blackburn Lawyers
Counsel for the Applicant David Richards
Solicitor for the Respondent Carmen King
Dibbs Barker
Counsel for the Respondent Grant Elliot
0
4
0