Simcock and Comcare - [2000] AATA 381

DECISION AND REASONS FOR DECISION [2000] AATA 381

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/216

GENERAL ADMINISTRATIVE DIVISION       )
           Re      KIM DEAN SIMCOCK
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

Date18 May 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is to be deemed to be able earn at one half of the level equivalent to that of a full-time Administrative Service Officer Class 1, being $12,451.50 per annum (or $238.69 per week) for the purposes of his incapacity entitlements pursuant to section 19 of the Act. The Tribunal remits the matter to the respondent for calculation of such entitlements in accordance with this decision and recalculation of the redemption payment as appropriate. The Tribunal, pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
COMPENSATION – capacity to work – 'suitable employment' considered – medical evidence – relevant factors in relation to 'suitable employment' considered
Safety Rehabilitation and Compensation Act 1988 ss.4, 19, 30
Woodbridge v Comcare (1994) 20 AAR 196
Re O'Shea and Comcare (1993) 18 AAR 430
Re Montgomery and Comcare AAT 10978, 31 May 1996
Telstra Corporation Ltd v Warner (1994) 20 AAR 259

REASONS FOR DECISION

18 May 2000 Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn, Member

This is an application by Mr Kim Simcock (the applicant) for review of a decision of a delegate of the Department of Defence dated 14 April 1999 (T109) affirming, on reconsideration, decisions of delegates of the Department of Defence dated 19 November 1998 (T99) and 30 November 1998 (T101). The aspect of the decision under review is that which deemed the applicant able to earn at a level equivalent to that of an Administrative Service Officer Class 1 salary which is $24,903 per annum.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T109), together with eight exhibits, five lodged by the applicant (Exhibits A1-A5) and three lodged by the respondent (Exhibits R1-R3). In addition, the Tribunal heard evidence from the applicant who was represented by Mr M. Kernot and the respondent was represented by Mr S. Cole, both of counsel.
The issues before the Tribunal are whether base clerical work equivalent to the Administrative Services Officer Class 1 (ASO1 type work) is "suitable employment"; and if so, whether the applicant should be deemed able to engage in such employment in a full-time capacity.
history of the application
The applicant enlisted in the Australian Army in October 1990 and was medically discharged on 12 July 1992. He has "hammer toes 4th and 5th toes both feet" as an accepted condition. The applicant received payments in respect of permanent impairment and non-economic loss in 1995 and has been in receipt of various incapacity payments from the deemed date of injury being 29 April 1991.
In a decision dated 19 November 1998 (T99) a delegate of the Department of Defence determined a deemed capacity to earn in suitable employment (ASO1 type work) at a full-time rate of $24,903 per annum ($477.37 per week). In a decision dated 30 November 1998 (T101) the applicant was advised that as the deemed earnings rate reduced his ongoing incapacity entitlement to $9.04 per week, he would receive a redemption payment as required by section 30 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
These decisions were affirmed upon review dated 14 April 1999 (T109).
applicant's evidence
The applicant was born on 11 March 1970, lived in Victoria for most of his childhood, left school in year eight and worked predominantly as a deckhand from 1985 up until his enlistment in October 1990. He has been in a defacto relationship for eight years and has two children aged seven and four years. He has lived at Middleton, 87 kilometres from Adelaide, for the past six years.
He described to the Tribunal the problems he has with his feet. He has had various operations which he considers have had little effect. He stated that his feet have got progressively worse. He further stated that the pain from his feet was constant with some days being better than others. He described the restrictions in movement of his toes and the difficulties and pain associated with walking, playing with his children, driving, bending, squatting, kneeling and climbing steps and stairs. He stated that he is cautious about carrying things as a result of various mishaps he has had with items falling on his feet. He told the Tribunal that he cannot walk for any great distance and needs to rest after about 150 metres. He further stated that he tried running a week ago but had to stop after six steps and lie down. He also stated that once he is sitting down he tries to avoid getting up again.
He stated that he cannot tolerate any footwear apart from thongs. He has tried the special Army boots, the Veterans' Affairs boots, Ugg boots and socks, but to no effect. He further stated that whilst in a shop he tried on sandals, but these "hurt" him. He conceded, under cross-examination, that he cannot afford to pursue the other footwear suggested by various specialists. He has not tried wearing loose, large socks.
He told the Tribunal about the study he has done towards an accounting certificate at Onkaparinga TAFE and the possibility of getting a Diploma in Accounting in the future by some further study. He stated that he has had two work placements during this course and described them in some detail to the Tribunal. Both were part-time and involved basic clerical duties. He also stated that he completed the requisite duties somewhat more slowly than he thought others would, and with some considerable pain by the time he got home at night. The duties involved both sitting at a desk and moving about at various times of the day. He considered that driving from Middleton to Adelaide was a major cause of the pain he felt in his feet. He further stated that he has unsuccessfully applied for over fifty jobs in recent times.
He stated that he does not consider that he would be able to work full-time as the pain would be too severe and he would then not be able to assist at home and find it difficult to cope with his wife and family. Under cross-examination he conceded that if he were offered a five day a week job similar to the job placements he undertook, he would jump at the opportunity so long as the employer understood that if he hurt his feet then he could not go to work. In such a scenario, he considered that although it would place a great strain on his home life, it would be an opportunity he could not refuse.
The applicant told the Tribunal that he takes eight Panadeine Forte per day and is also on Tofranil. He considers that the Panadeine Forte may be causing memory problems.
medical evidence
There is a wealth of medical evidence to which the Tribunal has had regard, however, for the sake of brevity, it only sets out the following, which are of particular relevance.
Associate Professor J. Krishnan, Orthopaedic Surgeon, prepared a report dated 23 August 1995 in which he stated (inter alia) (T61/113) as follows:
"…
4.Mr Simcock is partially incapacitated for work. He is unable to perform his duty as Gunner in the army, but is able to perform other work.
…
5.As Mr Simcock is partially incapacitated for work as a result of his feet problems, he should not perform any manual work as this would cause extra loading of his feet and exacerbate the problem.
If he is able to do a (desk job) then there would be no restrictions on the number of hours that he could work.
…"
Dr G. Long, Occupational Physician, prepared two reports dated 10 June 1999 (Exhibit A2) and 28 September 1999 (Exhibit A3). In the latter report he stated (inter alia):
"…
With respect to the question of his ability to undertake work as an Administrative Service Officer Class 1, I believe he does, strictly speaking, have the capacity to undertake some selective duties of this kind. In particular he has apparently demonstrated a tolerance for part-time work of a sedentary nature in a finance role, utilising his TAFE training. He would however have problems with counter work or similar tasks where he may be required to stand or walk for extended periods. Similarly lifting and carrying of office stores such as boxes of photocopy paper would also have potential to aggravate his injuries. He would also find difficulty with prolonged periods driving because of the constant pressure on his right foot. Driving to Adelaide from his home at Middleton on a daily basis would therefore present a significant barrier for employment. This would not be such an issue of course if he were able to obtain work in the Victor Harbour [sic] area. The other issue is whether or not he will ever be acceptable to a prospective employer while he is limited to wearing thongs because of his foot complaint. This would represent a very substantial barrier for anyone seeking work in an office situation. I expect this would be an even greater hindrance for someone endeavouring to enter into this work for the first time.
…"
In a report dated 13 March 2000 (Exhibit R2), Mr S. Vithoulkas, Podiatrist, stated (inter alia):
"…
6.Mr Simcock would be able to perform sedentary work. I am in agreeance with Dr. Long that the level of work in an office situation will be limited as normal daily activities other than sitting at a desk could aggravate his conditions.
…"

applicant's submissions

Mr Kernot submitted, on behalf of the applicant, that ASO1 type work is not suitable employment pursuant to the definition in section 4 of the Act. He further submitted that the applicant has a significant disability and his capacity for full-time work has never been tested. In his submission, enthusiasm for work should not be equated with capacity. He cited, in particular, the difficulties the applicant would have with carrying, driving, bending and walking distances.
respondent's submissions
Mr Cole submitted, on behalf of the respondent, that ASO1 type work does not require a great deal of leg work, and is broad spectrum administrative work. In his submission the applicant has developed a range of skills and abilities through training and has relevant work experience giving him the capacity to do base grade clerical work. He submitted that the Tribunal should take a 'broad spectrum' approach to paragraph (g) of sub-section 19(4) of the Act referencing Woodbridge v Comcare (1994) 20 AAR 196.
discussion and findings
In relation to the question of "suitable employment" the Tribunal notes that the applicant is caught within paragraph (a) of sub-section 4(1) of the Act (Re O'Shea and Comcare (1993) 18 AAR 430) as on his evidence, his termination was as a result of action by the Commonwealth.
Turning to factors (i) – (iv) of paragraph (a), the Tribunal takes into account that the applicant is thirty years of age, and has developed skills and experience through his recent training and work experience of a type which would equip him to perform ASO1 type work. It also takes into account that whilst not currently available, it is more likely that employment will become available in Adelaide than near and around Middleton. Whilst the applicant, as well as several doctors and occupational therapists, expressed concerns as to the impact of driving to and from Adelaide on a daily basis, it was not a live issue before the Tribunal at this stage as to whether or not it need be considered that the applicant move from Middleton. It is clear that he is demonstrating an enthusiasm to find work in either the South Coast or Adelaide regions. In respect of factor (iv) the Tribunal notes that particularities of his foot problems need to be taken into account in determining suitable employment, not only for the limitations they place on his movements, but also aesthetically and hygienically (Re Montgomery and Comcare AAT 10978, 31 May 1996).
The applicant gave evidence that he was able to manage the administrative duties in the two work experience placements, albeit with a degree of pain attached. He also stated that he would accept such work if offered. Work of this kind as described to the Tribunal encompasses a range of activities and responsibilities which appear comparable to those of ASO1 type work. The fact that he has undertaken such work and is trained and skilled to undertake such work leads the Tribunal to conclude that ASO1 type work is suitable employment as that term is defined and understood, and the Tribunal so finds. The question of suitable employment at this level does not require an assessment of the degree to which such work could be undertaken, in respect of which sub-section 19(4) of the Act must be considered.
In relation to the sub-section 19(4) factors, the Tribunal agrees with Mr Cole that paragraph (g) of the sub-section should be interpreted in a global fashion. Thus the Tribunal takes into consideration the matters put forward by Mr Cole such as the training and experience gained by the applicant. It also takes into account the comments of the various medical specialists and their particular concerns about certain aspects of administrative work such as lifting and bending. The Tribunal finds Dr Long's evidence in this regard to be persuasive. Dr Long also identifies the basic factor of the applicant's presentation, which will necessarily impact on the amount he is able to earn in suitable employment.
The applicant lives at Middleton and there are real concerns as to the effect driving any distances would have on his condition. The applicant driving into Adelaide on a daily basis (ie five days per week) for example would appear to be untenable.
The actual availability of suitable employment within the accessible labour market is also relevant within paragraph (g) (Telstra Corporation Ltd v Warner (1994) 20 AAR 259).
The Tribunal is concerned as to the psychological effect sustained levels of pain resulting from full-time administrative work and driving would have on the applicant. Whilst he was very stoic in his presentation, he identified that the consequent pain of full-time work might well make him unbearable at home. Both Mr S. Cartwright (Psychologist) (Exhibit A4) and Ms M. Watson (Psychologist) (T69 & T70) have identified some very real concerns as to the applicant's psychological state of mind and its consequent effects on his wife and children.
The applicant was a credible witness and aspects of his demeanour and actions are understandable given the persistence of his physical pain and the associated chronic pain syndrome identified by Mr Cartwright. He detailed to the Tribunal his concerns as to the pain that would result from full-time work and as noted, the psychological effects of such pain must also be considered as to capacity. Mr Kernot is right to assert that capacity is distinct from enthusiasm, and there are some real concerns as to the capacity of the applicant both physically, psychologically and emotionally in sustaining full-time work of the ASO1 type.
In the Tribunal's opinion, Dr Long has succinctly identified the applicant's capacity when he noted that he has "demonstrated a tolerance for part-time work of a sedentary nature …" (Exhibit A3). There is no demonstrable evidence that the applicant is able to perform suitable work in any more than a part-time capacity. "Ability" to earn can mean no more than the amount of work a person is capable of undertaking before it poses a serious threat to, or is seriously detrimental to, their health and well being. In this case the Tribunal considers that that level is about two and one half days on the present evidence as to capacity.
The Tribunal also has in mind that ASO1 type work is largely sedentary and that the range of movement required would be comparable to that undertaken by the applicant in his work experience placements and could be modified to some extent as appropriate.
Taking all relevant considerations into account, as detailed in paragraphs 22 to 28 herein, the Tribunal considers and so finds that the applicant is able to earn at a deemed rate of one half of the full-time ASO1 type work, (that being "suitable employment"). In other words, the applicant appears at this stage to be able to work in ASO1 type work for about two and a half days per week on the balance of the evidence.
decision
For the above reasons and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is to be deemed to be able earn at one half of the level equivalent to that of a full-time Administrative Service Officer Class 1, being $12,451.50 per annum (or $238.69 per week) for the purposes of his incapacity entitlements pursuant to section 19 of the Act.
The Tribunal remits the matter to the respondent for calculation of such entitlements in accordance with this decision and recalculation of the redemption payment as appropriate.
The Tribunal, pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr J.T.B. Linn (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  8 May 2000
Date of Decision  18 May 2000
Counsel for the Applicant        Mr M. Kernot
Solicitor for the Applicant         Jeremy Moore & Associates
Counsel for the Respondent    Mr S. Cole
Solicitor for the Respondent    AGS