Slater and Telstra Corporation Limited

[2002] AATA 597

DECISION AND REASONS FOR DECISION [2002] AATA 597

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )           No Q2001/1154
GENERAL ADMINISTRATIVE DIVISION          )          
           Re      GORDON SLATER
  Applicant
           And    TELSTRA CORPORATION LIMITED    COMCARE  
  Respondent

DECISION

Tribunal       Mr R G Kenny, Member    

Date19 July 2002

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and, in substitution therefore, decides that: (a) the respondent is liable, pursuant to section 14 of the Act, to pay compensation to the applicant in respect of his left knee injury; and (b) the respondent is liable, pursuant to section 19 of the Act, to pay to the applicant compensation in the amount of $19.82 per week for the period from 1 October 1997 until 31 August 1998.

...................(Sgd)...................
  R G Kenny
  Member

CATCHWORDS
COMPENSATION – workplace injury – partial incapacity for work – fitness for full time work in suitable employment - suitable employment - normal weekly earnings – amount able to earn – required to undertake overtime work on a regular basis - rehabilitation program

Safety, Rehabilitation and Compensation Act 1988 ss 4, 8, 14, 19, 36, 37

Department of Defence v Fox (1997) 24 AAR 171
Fox v Department of Defence (1995) 22 AAR 402
Re Zarb and Comcare (1997) 25 AAR 344

REASONS FOR DECISION

19 July 2002 Mr R G Kenny, Member                

The Application

1. This matter was remitted, on 11 October 2001, by the Full Court of the Federal Court to the Administrative Appeals Tribunal (the Tribunal) for reconsideration of the determination of a claim by Gordon Slater (the applicant) for compensation for an injury to his left knee sustained in the course of his employment with Telstra Corporation Limited (Telstra – the respondent).

2. After the matter first came before it, the Tribunal determined, on 13 March 1998, that the applicant was partially incapacitated for work but fit for full time work in suitable employment. On that occasion, the Tribunal remitted the matter to the respondent with a direction that the respondent determine what would be suitable employment for the applicant pursuant to the terms of section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). On 14 October 1998, in reliance on a report, dated 4 September 1998, from Work Directions Australia (WDA), as well as other documentation from WDA, the respondent determined a list of what it considered to be suitable employment, for the purposes of section 19 of the Act, and advised the applicant accordingly.

3. The applicant requested a reconsideration and, on 10 November 1998, the decision was affirmed and the applicant was advised that he had no entitlement to compensation under section 19 of the Act.

4. The applicant requested further review by the Tribunal which, on 12 November 1999, varied the decision then under review and determined that suitable employment for the applicant was limited to the occupations listed by WDA in its report of 4 September 1998 and remitted the matter to the respondent again, in order for the respondent to calculate compensation payments payable to the applicant in accordance with section 19 of the Act. In addition, the Tribunal directed that:

   "Compensation payments as calculated in accordance with s 19 of the Act be payable from some date in October 1997 to be agreed on by the parties;
   Telstra provide vocational counselling for the appellant to select an occupation from the list provided in the WDA Report; and
   Telstra provide a rehabilitation program pursuant to s 37 of the Act, or some other form of program, with the aim of retraining the appellant for his chosen occupation."

5. On 28 February 2001, an appeal by the respondent against the Tribunal's decision was upheld in the Federal Court which ordered that:

   "1.   The appeal be allowed.

   2. The orders of the Administrative Appeals Tribunal of 12 November 1999 be set aside.

   3. The application for an order of review to the Administrative Appeals Tribunal of the decision of 10 November 1998 be dismissed."

6. The matter then came before the Full Court of the Federal Court which, on 11 October 2001, upheld the appeal in the following terms:

   "1.The appeal be upheld in part.

   2.Order 2 made on 28 February 2001, that the application to the Administrative Appeals Tribunal be dismissed, be set aside.

   3.The matter be remitted to the Administrative Appeals Tribunal for reconsideration according to law and in accordance with these reasons.

   4.The respondent pay the appellant's costs of the appeal.

   5.The costs order made on 4 April 2001 be set aside and in lieu thereof, there be no order as to the costs of the proceedings."

Appearances and Evidence

1. The applicant attended the hearing and was represented by Mr G Porter of Mahoney and Hesford, solicitors. Mr R Dickson, of counsel, instructed by Standish Partners, solicitors, appeared for the respondent.

2. At the hearing, the following material was taken into evidence from

   The applicant:

   Exhibit A1 volumes 1, 2 and 3 of the Full Court Appeal Books;

   Exhibit A2 the decision of the Full Court of the Federal Court;

   Exhibit A3a bundle of documents comprising:

   ·a letter dated 23 August 1996 from the respondent to the applicant

   ·an overtime approval dated 13 August 1996

   ·an e-mail message, dated 15 August 1996, from Sharon Coleman to Anthony Clark

   ·a statement of normal weekly earnings calculated by the applicant

   Exhibit A4 calculations of normal weekly earnings re two awards;

   Exhibit A5 award summary update No 8;

   Exhibit A6 award summary update No 7;

   Exhibit A7 WDA letter dated 24 November 1998.

   The respondent:

   Exhibit R1decision of the Tribunal dated 13 March 1998;

   Exhibit R2     bundle of documents comprising

   ·letters, dated 25 October 2001, from Queensland Government Department of Industrial Relations and Standish Partners, solicitors

   ·Clerical Employees' Award – State, dated 11 September 1997

   ·award rates of pay

   ·award summary updates 1C, 2, 3 and 5

   ·calculation sheet.

Background

1. The following  summary of the background to this matter was set out in the decision of Spender J in the Federal Court and no challenge was made to it by either of the parties.

   "10.     Mr Slater was born in the United Kingdom on 9 May 1954. From 1974 to 1992 he was employed as a refrigeration mechanic, and came to Australia in 1992. After approximately 18 months in Australia, he returned to the UK for some thirteen months. He returned to Australia in February 1995, and in October 1995 he commenced employment with Telstra on a fixed term contract as a communications officer or cable TV installer. He was employed on a further fixed term contract for the period 4 July 1996 to 4 January 1997 when, on 11 July 1996, he sustained an injury to his left knee whilst installing a television cable at a private residence.

   11.      On 19 July 1996 Mr Slater completed a claim for compensation, attaching a medical certificate by Dr B. Geissmann dated 26 July 1996, which certified that Mr Slater suffered from a left knee injury but 'is fit to return to modified/alternative duties from 27.7.96 to 10.8.96', and specified work restrictions or limitations to be 'no lifting/squatting/heavy weights etc'. Mr Slater signed a rehabilitation plan and return to work programme on 30 July 1996, the latter of which specified tasks to be undertaken as 'driving and other light duties as required' on a full-time basis from 30 July 1996 to 31 August 1996. After two days work, Mr Slater apparently experienced further problems with his knee, and on 31 July 1996 was certified by Dr Geissman to be totally incapacitated for work from that date until 7 August 1996.

   12.      By letter dated 6 August 1996, Telstra determined that it was liable to pay compensation in respect of 'Left Knee Injury suffered as result of a work related incident on 11/7/96'. Telstra further determined that it would pay various medical expenses incurred, and that in accordance with s 19(2) of the Act, Mr Slater was entitled to full pay incapacity payments of $545.00 per week from the period 12 July 1996 to 26 July 1996 inclusive.

   13.      Further medical assessments followed, including by orthopaedic surgeon Dr S. Rackemann. He recommended surgery and reported on 10 October 1996 following an arthroscopy of Mr Slater's knee that 'In summary his pathology is an 80% rupture of the anterior cruciate ligament and condral damage to the medial femoral condyle'. Various determinations by Telstra extending the period of Mr Slater's entitlement to full incapacity payments, the amount of which was increased to $678.08 per week from 19 September 1996, followed. On 2 December 1996, however, Dr Rackemann certified that Mr Slater was fit to return to modified/alternative duties from 8 December 1996 to 8 January 1997 - specifying work restrictions or limitations as 'avoid squatting, climbing'. Dr Rackemann's certificate also stated that Mr Slater would be fit to return to work from 9 January 1997. By letter dated 17 December 1996, Telstra indicated its intention to issue a determination that incapacity payments therefore cease on 9 January 1997, and offered Mr Slater an opportunity to provide evidence supporting a contrary decision.

   14.      Additional medical certificates subsequently provided by Mr Slater noted that he was fit to return to work but required treatment for his injury, and that he was fit to return to modified/alternative duties from 6 February 1997 to 26 March 1997, with restrictions or limitations being 'no squatting/climbing etc'. On 17 March 1997, a delegate for Telstra wrote to Mr Slater stating 'on the evidence before me I have determined that Telstra Corporation Limited is ceasing liability for incapacity in respect of your claim for compensation'. On 27 March 1997, solicitors for Mr Slater wrote to Telstra requesting reconsideration of the determination to cease compensation payments.

   15.      On 16 April 1997, a delegate of Telstra issued a 'Determination (Reviewable Decision)':

   '1. that the determination of 17.03.1997 be affirmed; and

   2.that the available evidence has established that the Claimant is fit to return to full time work, with restrictions; and

   3.that the available evidence has established that liability no longer exists in respect of incapacity payments; and

   4.that the available evidence has established that liability still exists in respect of medical expenses as outlined in the statement of reasons.'

16.      An application by Mr Slater for review of the decision of 17 March 1997 was received by the AAT on 30 April 1997. Mr Slater stated that his reasons for the application were 'I still am and always have been unable to resume full duties (see attached Clarification of Medical condition) and as such Telstra should still be liable for compensation'.

17.      On 13 March 1998 at Brisbane the AAT made the following decision:

'The Tribunal sets aside the decision under review only in so far as it decided that the applicant was fit to return to full time normal duties with restrictions, and substitutes a decision that:

(1)the applicant was partially incapacitated for work, but fit for full time work in suitable employment; and

(2)remits the matter to Telstra, with a direction that the delegate determine what would be suitable employment for the purposes of s 19 of the Safety Rehabilitation and Compensation Act 1988.'   [Emphasis added]

18.      The reasons for this decision of the AAT (the first AAT decision) reveal that it treated Mr Slater's application for review as relating to the decision of 16 April 1997, rather than the earlier determination which Mr Slater specified, but nothing turns on this. The Tribunal outlined Mr Slater's medical history and the history of his claim at length and concluded inter alia:

'We are satisfied on the evidence that the applicant is not totally incapacitated for work. He has residual restrictions of movement ...[but is able] to walk considerable distances and to play 6 to 9 holes of golf, four times per week. We consider that he is capable of working full time with restrictions, such as no squatting, no heavy lifting, no pivotal movements. On the medical evidence, which we accept, he should not return to his duties as a cable TV installer.
The decision under review refers to the applicant being fit to return to "full time normal duties with restrictions". Although we are satisfied that the applicant is capable of undertaking full time work, we would not envisage him returning to his "normal duties'" as a cable TV installer. He is capable of undertaking suitable employment, which would take into account the restrictions contemplated by the decision under review.'

19.      The AAT also commented at [3], in relation to Mr Slater's contention in his Statement of Issues and Contentions before the Tribunal 'that he had a permanent disability, and that Telstra was obliged, either to find him suitable employment, or to assist him to find suitable employment; and to provide him with a rehabilitation programme', that:

'The applicant has not lodged a claim for compensation for permanent impairment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988 (the Act) nor has he lodged a formal claim for rehabilitation. We accepted Telstra's submission that there is no reviewable decision, and the Tribunal does not have jurisdiction to examine these issues. The applicant formally withdrew these two contentions.'

20.      By letter dated 8 July 1998, solicitors for Telstra wrote to solicitors for Mr Slater noting that arrangements had been made for Mr Slater to be assessed by Work Directions Australia (WDA) on 21 July 1998, and that 'Subsequent to that assessment our client will then be in a position to comply with the Order of the Tribunal to determine what is suitable employment for the purposes of s 19 of the Safety Rehabilitation and Compensation Act 1988'. [Emphasis added]

21.      After assessment of Mr Slater, WDA issued a report on 4 September 1998. The report outlined his personal history, including education, employment and health, the circumstances and effect of the injury in question, and his current status. It assessed his physical abilities and mental capacity, and the types of work he preferred to do. It concluded that he should not return to his previous occupation, but that he would be suited to seven specified types of employment on a full-time basis, stating:

'Potentially suitable occupations which are commensurate with his physical disability and requiring various lengths of training include:

§ Console Operator (for petrol/service station)
§ Real Estate Salesperson
§ Occupational Health and Safety Officer
§ Teacher of Technical and Further Education/TAFE teacher
§ Engineering Associate Professional, eg Mechanical Engineering Technician
§ Engineering Associate Professional, eg Mechanical Engineering Associate
§ Building Inspector/Surveyor'

22.      The report specified the training required for each of the employment options listed. All required university or TAFE training of various durations, with the exception of the console operator option, for which 'training is carried out via a traineeship with the respective employer'. The report also indicated that Mr Slater's IQ 'is in the range of approximately 118 to 120 (High-Average to Superior Ranges of intellectual functioning)', and that the assessment generally had 'indicated that Mr Slater has a high level of aptitude for further training at a tertiary level'.

23.      Although it involves a departure from the chronological record, it is useful here to note the contents of a letter to Mr Slater dated 25 November 1998 from Margaret Kennedy, Occupational Therapist/Psychologist at WDA. Ms Kennedy was the author of the initial report referred to above, and was writing in response to a letter from Mr Slater which appears not to be in the material before the Court. Relevantly, Ms Kennedy writes:

In answer to your questions:

'1.Clerical duties could well be included in the list of occupations which were identified in my report dated 4 September 1998.

2.Without further training or qualifications, the first occupation of Console Operator is achievable. Training is required (13 weeks) once a person is employed but this is sponsored by the employer under a traineeship scheme. Such an employer would be eg. Shell.' [Emphasis added]

Ms Kennedy noted in essence that she did not include a clerical occupation in her initial suggested list because of the preferences Mr Slater expressed during the assessment for other types of work, and continued:

'To just nominate clerical work for any person who can no longer carry out heavier work would be an easy outcome from my assessments - however we do make carefully considered and researched opinions when making recommendations for an individual's future.'

24.      Consequent upon the first AAT decision, Telstra then determined on 14 October 1998 'that suitable employment' for the purposes of Section 19 of the Safety, Rehabilitation and Compensation Act 1988 is:-

'Console Operator
Real Estate Salesperson
Occupational Health & Safety Officer
Teacher of Technical and Further Education/TAFE Teacher
Mechanical Engineering Technician
Mechanical Engineering Associate
Building Inspector/Surveyor
Clerical Position.'  [Emphasis added]

For convenience, this will be referred to as the 'primary determination'.

25.      The statement of reasons for the primary determination stated inter alia that this list of eight suitable options was based on the report from WDA. Clearly, this list of eight is not the same list as that of seven provided in the WDA report. That the inclusion of 'clerical position' as an eighth option was based on the report is, however, equally clear: such a position can easily be seen to be commensurate with Mr Slater's identified level of intelligence, capacity for retraining, and ability to perform the tasks involved in the other positions identified. The 25 November 1998 letter from Mrs Kennedy, apparently responding to a letter from Mr Slater which asked inter alia why a clerical role had not been included in her WDA report, confirms this.

26.      Mr Slater subsequently made a request for reconsideration of the primary determination, and on 10 November 1998 Senior Claims Officer Sharon Coleman issued a 'Determination (Reviewable Decision)' affirming the primary determination. Ms Coleman's statement of reasons recounted that the primary determination 'found that the claimant was fit for suitable employment in a number of fields, inclusive of: [the eight employment options listed above]. On this basis it was determined that the claimant was able to earn in suitable employment, and consequently not entitled to payment under Section 19 of the Act' [Emphasis added]. This reviewable determination did not specifically address any of the eight suitable employment options other than the clerical one (see below), but since it affirmed the primary determination it may be taken as having affirmed the entire list.

27.      Ms Coleman's reasons also relevantly state:

'Having perused the available information it is apparent that the claimant has the attributes to efficiently and effectively perform the duties of a clerical type position, and that it is reasonable for the claimant to undertake such employment with the physical restrictions imposed by his left knee condition.
The claimant has subsequently opined that in accordance with the above definition, none of the occupational pursuits detailed in the determination of 14 October 1998, are suitable due to his not having the training, qualifications, or experience required.
Having regard to the findings of Work Directions Australia, the claimant has shown himself to be an individual of above average intelligence, who would be able to fulfil the requirements of a clerical based position, with the potential of advancement. It is not a requirement of such a role that formal training having been undertaken, or that formal qualifications be obtained. From the work directions report findings it would appear that the claimant has not pursued work of this nature previously because of a desire to work out of doors in a manual capacity, rather than indoors. This desire does not however preclude the expectation of the claimant undertaking work which is deemed suitable in light of physical restrictions.

The other matter raised by the claimant in his request for reconsideration concerns a failure by the primary decision maker to define an amount of compensation under Section 19 of the Act.
I note that the claimant was not a permanent employee of Telstra, and was in fact employed on a fixed contract basis. There was no expectation by the claimant of continued employment beyond the expiration date of the contract. Similarly there was no expectation by the claimant to maintaining salary beyond the expiration date of the contract, and he would have been seeking employment in the open market commensurate with his skills and abilities.
Accordingly there is no evidence to suggest that the claimant's earning capacity would have been less than, equal to, or greater than that received whilst in the employ of Telstra.
I am satisfied that the claimant is fit for employment in duties of a clerical nature, which may well attract financial remuneration equal to, or greater than that earned as a Communications Officer Grade 2 with Telstra. Furthermore, I find that such duties would be deemed suitable in accordance with the Act, and that it is a reasonable expectation for the claimant to undertake such duties.
In closing therefore, I find that the claimant's ability to earn is such that there would be no entitlement to compensation in accordance with Section 19 of the Act.' [Emphasis added]

28.      A letter to the AAT from Mr Slater dated 8 December 1998 is agreed to constitute the application for review which was before the AAT, although it is not in the form provided for by the AAT Act. The application is in the following terms:

'APPLICATION FOR REVIEW OF DECISION
This application refers to two decisions

1)Decision reference T0097659 dated 10 November 1998 reason for application: the occupation identified as suitable employment by the decision maker is not suitable.

No amount of earnings has been identified as being able to earn in suitable employment
No amount of compensation has been identified as being liable to pay under section 19

2)Several requests for a determination following a request for a rehabilitation program has resulted in no determination being forthcoming.

Failure to provide a determination is in itself a determination and as such I rquest [sic] that this determination be reviewed with a view to obtaining a rehabilitation program to include retraining

Enclosures: i)     Reconsideration of determination dated 10.11.98

ii)    Letters dated 24.4.98 and 25.1.98 requesting rehabilitation program.'

29.      For completeness it is sufficient for current purposes to note the contents of Mr Slater's enclosed letter dated 24 April 1998, which read inter alia:

'I refer you to my letters dated 15.10.97, 27.10.97, 5.11.97, 17.11.97, and 25.1.98 formally requesting that you supply me with a rehabilitation program.
It is your duty under the CRC Act 1988 to issue me with a formal determination to include a statement of reasons and informing me of my rights if I do not agree with your decision.

Your letter of 16.2.98 is not a determination and therefore constitutes a breach of my rights under the CRC Act 1988, I therefore request that you address this within the next seven days …'

30.      Telstra's letter dated 16 February 1998 referred to an earlier request by Mr Slater for a rehabilitation program, and to the WDA report dated 11 February 1998, a copy of which was attached. The letter stated inter alia:

'The rehabilitation assessment outcome was no further recommendations with regard to any physical intervention that would be of assistance.
The rehabilitation plan included job seeking assistance and you attended a Work Directions `Job Seeking Workshop' on 03 July 1997.
Further comments from Work Directions Australia indicated Job seeking services were declined by you until after your appeal had been determined.
In line with relevant provisions of the SRC Act 1988, you were assessed as capable of undertaking a Rehabilitation program and that was initiated under Work Directions Australia.
The rehabilitation program was closed in September 1997 after consideration that further physical intervention would be of no assistance and that job seeking services that had been included in that plan were declined.
After having examined circumstances of the case, the rehabilitation assessment [having] been exhausted, there is no additional benefit in having you re-assessed.' [Emphasis added]

31.      The report from WDA dated 11 February 1998 is entitled 'Case Summary' and was provided to Telstra as an outline of 'the progress of the case as detailed in the Work Directions Australia rehabilitation file'. The document notes that the report, prepared following an initial rehabilitation assessment of Mr Slater and review of the various medical reports, recommended that no further physical intervention would assist Mr Slater, but that Mr Slater 'be assisted with job seeking and a rehabilitation plan was developed to address this recommendation'. The plan was stated to include six hours job-seeking assistance and four hours for case management, and was estimated to run from 1 June 1997 to 1 September 1997. Mr Slater attended a workshop to which he was referred in relation to job application skills on 3 July 1997, and attended a later meeting to discuss further assistance that could be provided with job seeking as per the rehabilitation plan. The WDA case manager then received a letter from Mr Slater dated 26 August 1997 which stated that:

'Until the issue of suitable employment is resolved any job leads which you supply may be inappropriate, unless you address the issue of suitable employment first.'

32.      Upon receipt of this letter WDA contacted Telstra to discuss the ongoing rehabilitation plans. Telstra requested WDA to close the rehabilitation file, and this was done.

33.      Mr Slater's letter dated 26 August 1997 is to the effect noted in the WDA summary. Relevantly, Mr Slater also wrote to Telstra on 2 September 1997, referring to the WDA  job-seeking assistance and requesting:

'In an effort not to waste these resources on job leads which may not be classed as "suitable employment" as defined by the CRC Act 1998 please confirm that all efforts will be made to determine suitable employment prior to using these services.' "

10. In its decision of 12 November 1999, the Tribunal varied the decision under review, determining that suitable employment for the applicant included the seven occupations listed by WDA in their report dated 4 September 1998. That did not include the reference to clerical position, an occupation not mentioned by WDA in its initial report but referred to in the subsequent letter sent to the applicant by WDA. The Tribunal also remitted the matter to the respondent to calculate compensation payments in accordance with section 19 of the Act, for the respondent to provide vocational counselling for selecting an occupation from the list provided in the WDA report and for the respondent to provide a rehabilitation program pursuant to section 37 of the Act.
11. In the Federal Court, Spender J understood that the initial finding by the Tribunal on 13 March 1998 of the applicant's partial incapacity, but fitness for full-time work in suitable employment, was not in question and that the effect of that decision was to have required the respondent, in making the decision under review, not just to determine a list of suitable employment options but, in fact, to calculate the amount of compensation, if any, that was payable. His Honour concluded that this had not been done in the respondent's primary determination of 14 October 1998, as this merely provided a list of suitable employment options and failed to consider the amount of compensation payable. However, His Honour was also of the opinion that the second of those tasks had been carried out by the decision maker in the decision of 10 November 1998 in that, although a precise sum was not determined as being able to be earned by the applicant, it was determined that it may well have been a sufficient level of remuneration equal to or greater than the applicant's normal weekly earnings and that, therefore, compensation was not payable to him. As the calculation had been done in that way, the Tribunal decision of 12 November 1999 was set aside.

12. Spender J also referred to the Tribunal's direction that the respondent provide vocational counselling to the applicant for selection of an occupation from the list provided in the WDA report, and the direction that the respondent provide a rehabilitation program pursuant to section 37 of the Act, or some other form of program to retrain the applicant for his chosen occupation. His Honour was of the opinion that, under section 37 of the Act, there was an obligation for the respondent to consider whether to provide a rehabilitation program such as vocational training but that there was no duty to provide any such program.
13. The Full Court of the Federal Court did not accept Spender J's conclusion that the decision maker on 10 November 1998 had complied with the obligation under section 19 of the Act to make the appropriate calculation. The Full Court said:

"16.     His Honour construed the decision-maker's language, which his Honour characterised as 'imprecise', as a conclusion that the appellant was able to earn an unspecified amount in suitable employment of sufficient magnitude, such that compensation to be calculated in accordance with s 19 of the Act was nil. His Honour considered that the Act does not require of a decision-maker applying s 19 of the Act that he or she should always determine a precise amount for the figure 'AE' in the formula provided in s 19(2), at least where the decision-maker is satisfied that the amount able to be earned from suitable employment is greater than what was previously earned. His Honour considered that that was certainly so where none of the specific matters listed in s 19(4) of the Act to assist in calculation of the relevant amount is applicable. His Honour considered that that was the situation in the present case and that, in such a situation, the decision-maker would be left with an obligation merely to have regard to 'any other matter that [it] considers relevant' pursuant to s 19(4)(g). His Honour concluded that Telstra's finding that the appellant was not entitled to payments under s 19 of the Act did not demonstrate any misunderstanding of the requirements of the Act."

14. The Full Court found that there had been a failure to undertake the exercise required by sections 14 and 19 of the Act and that, in order to determine whether the respondent had a liability to pay compensation, it was necessary to compare two amounts:

(a)the amount of the appellant's normal weekly earnings with Telstra, as calculated under section 8 of the Act; and

(b)the amount per week (if any) that the appellant is able to earn in suitable employment.

15. The Full Court said that there was no indication that the decision maker had undertaken such a comparison other than simply to conclude that she was satisfied that the applicant was fit for employment in duties of a clerical nature which may well attract financial remuneration equal to or greater than that earned by him with the respondent.  In so far as the role of the Tribunal at this rehearing is concerned, the Full Court continued:

"20.     The Tribunal concluded that Telstra's determination evidenced a basic and fundamental misconception of the requirements of the Act. In so far as the decision-maker failed to make such a determination, that was so. The appropriate course for the Tribunal, therefore, was either to make such a determination itself or to remit the matter to Telstra to enquire into and determine those two amounts in order to make a determination in accordance with s 19 of the Act. However, it does not appear to have adopted either course. To that extent, it erred in law."

16. In relation to Spender J's observations about the provision of vocational counselling and a rehabilitation program, the Full Court said:

"17.     His Honour also concluded that the Tribunal's directions concerning vocational counselling and provision of a rehabilitation program reflected a misunderstanding on the part of the Tribunal of the relevant provisions of the Act. His Honour was of the view that, under s 37 of the Act, Telstra had an obligation to consider whether to provide a rehabilitation program to Mr Slater. Such a program may, under the Act, include vocational training. However, his Honour considered that s 37 did not require the provision of any such program but merely required that, in deciding whether an employee should undertake a rehabilitation program, the decision-maker should have regard to matters that included the employee's attitude to the program and any other relevant matter. His Honour concluded that, if there is in truth suitable employment available to the appellant and if the calculation called for by s 19 of the Act results in a nil entitlement, Telstra was not in breach of its obligations under the Act."

17. The Full Court continued:

"21.     In so far as the Tribunal directed Telstra to provide vocational counselling and to provide a rehabilitation program, the Tribunal appears to have misconceived the operation of s 37 of the Act. Section 37 confers a discretion on Telstra to make a determination that an employee should undertake a rehabilitation program and, where it so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee. It is not obliged to do so. Mere failure to do so was not a neglect by Telstra of its statutory obligation.

22.      On the other hand, there is no indication that the decision-maker turned her mind to the exercise of the discretion conferred by s 37 of the Act. The appropriate course for the Tribunal was to give consideration to that question and decide whether to exercise the discretion vested in Telstra or to remit the matters to Telstra to consider whether the discretion should be exercised. The Tribunal erred in so far as it found that Telstra had an obligation to provide a program."

Legislation
18. Matters relating to compensation are set out in Part II of the Act. Sections 14 and 19 of the Act relevantly provide:

"Section 14

(1)     Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

Section 19

(1)     This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2)     Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount under the formula:

NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.

(3)     Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:

(a)where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;

(4)     In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

(a)where the employee is in employment - the amount per week that the employee is earning in that employment;

(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition - the amount that the employee would be earning in that employment if he or she were engaged in that employment;

(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment - the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

(f)where paragraph (b), (c), (d) or (e) applies to the employee - whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare] opinion, reasonable in all the circumstances; and

(g)any other matter that [the Tribunal] considers relevant."

19. Sub-section 4(1) of the Act defines the term suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under the Act, to mean:

"(a)    in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

(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; and

(b)     in any other case - any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv)"

20. In this case, it is not disputed that the applicant was employed on a contract basis and that, therefore, part (b) of that definition applies so that suitable employment is not limited to employment with the respondent.
21. Sub-section 23(1) of the Act provides that compensation is not payable under sections 19, 20, 21, 21A or 22 to a person who has reached age 65 years.
22. Normal weekly earnings are calculated in accordance with section 8 of the Act which relevantly reads:

"8 Normal weekly earnings

(1)     For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:

NH x RP + A

where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee's average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of  that employment.

(2)     Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:

NH x OR

where:
NH is the average number of hours of overtime worked in each week by the employee in  his or her employment during the relevant period; and
OR is the employee's average hourly overtime rate of pay during that period."

23. Part III of the Act relates to rehabilitation matters. Section 37 relevantly provides:

"(1)    A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.

...

(3)     In making a determination under subsection (1), a rehabilitation authority shall have regard to:

(a)    …

(b)     any reduction in the future liability to pay compensation if the program is undertaken;
(c)     the cost of the program;
(d)     any improvement in the employee's opportunity to be employed after completing the program;
...
(f)     the employee's attitude to the program;
...
(h)     any other relevant matter.

…

(7)     Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program."

24.  Section 40 of the Act is headed "Duty to provide suitable employment" and sub-section 40(1) provides:

"Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment."

Issues
25. This reconsideration of the respondent's decision is not concerned with the initial finding by the Tribunal on 13 March 1998 that the applicant has partial incapacity and fitness for full-time work in suitable employment. On that occasion, the Tribunal remitted to the respondent the issue of what constitutes suitable employment and, as indicated by Spender J in the Federal Court and the Full Court of the Federal Court, there was also an obligation to make a determination under section 19 of the Act.
26.  The first issue for determination by the Tribunal is what constitutes suitable employment for the applicant.
27. The second issue for the Tribunal relates to section 19 of the Act. In accordance with the direction of the Full Court, the Tribunal must either make a determination by applying the formula in that provision or remit the matter to the respondent to do so. This will involve an enquiry into and determination of the amount of the applicant's normal weekly earnings with the respondent, as calculated under section 8 of the Act; and the amount per week that the appellant is able to earn in suitable employment, as calculated in accordance with sub-section 19(4) of the Act.
28. The third issue for the Tribunal relates to section 37 of the Act. In accordance with the direction of the Full Court, the Tribunal must exercise the discretion conferred under that provision or remit the matter to the respondent to consider whether the discretion should be exercised.
Applicant's case
29.  In relation to suitable employment, Mr Porter submitted that none of the seven forms of work listed in the WDA report or the additional clerical work were suitable in this case. This was because, although the applicant was physically capable of doing each of those forms of work, they could only be done if there was retraining. He submitted that, where there is such a need for retraining, the employment is not suitable. In that regard, he referred to the following comment by Spender J in the Federal Court decision (folio 534 of exhibit A1):

"60.     If retraining was necessary for suitable employment to be available to an injured employee, compensation would be payable until the time at which such retraining would reasonably be concluded."

30.  Mr Porter referred to the WDA report of 4 September 1998 and to the clear references therein to the need for the applicant to undergo retraining for each of the seven occupations listed. He also referred to a letter, dated 24 November 1998 (exhibit A7) written by Margaret Kennedy who was the the author of the original WDA report. He submitted that this letter, whilst indicating that clerical occupations may well have been included in the list of identified occupations suitable for the applicant, also declared that, in order for him to compete in the labour market for a clerical position, the applicant would need to complete a formal clerical-related program such as a TAFE course or an office administration course. Mr Porter referred to another letter written by Margaret Kennedy on 25 November 1998 (folio 38 of exhibit A1) to the applicant in which, again, she described clerical work as an occupation that could have been listed in her initial report and where she reiterated the need for the applicant to undergo a TAFE or office administration course in order for him to enter such a position.
31.  In relation to the employment option of console operator, Mr Porter noted that the retraining relevant to that position was "on the job" in format. However, he submitted that such work was not commensurate with the applicant's age, experience and suitability for retraining as required by the definition of suitable employment in sub-section 4(1) of the Act. In support, he referred to Fox v Department of Defence(1997) 24 AAR 171.
32.  Mr Porter referred to the report, dated 7 July 1998, by rehabilitation consultant, Chiu Teh (folio 150 of exhibit A1) where Mr Teh nominated the following as being suitable employment for the applicant: clerical/administration work, customer service officer, service station attendant or sales representative. However, Mr Porter also noted the following qualification given by Mr Teh.

"…Mr Slater lacks transferable skills and relavant work experiences to access these jobs. He is likely to have a better chance of re-accessing the workforce either within or outside Telstra if he is provided with some form of vocational rehabilitation assistance with the following interventions:

(a)Mr Slater should be given the opportunity to be retrained in either clerical/office skills or customer service/data entry skills area or sales work;

(b)a worksite assessment with ergonomics intervention should be carried out to determine suitability of duties and appropriate use of aids or modifications;

(c)sustainable part-time work hours should be negotiated with employers to accommodate Mr Slater's physical limitations and pain levels."

33. In relation to the application of section 19 of the Act, Mr Porter agreed that the relevant component was paragrapgh 19(3)(a) which is applicable in the situation where a person is not employed. He submitted that, as there was no suitable employment identified, the formula of NWE – AE should be applied with AE being treated as zero so that the amount of compensation to be paid to the applicant was 75% of NWE as provided for in paragraph 19(3)(a) of the Act.
34. Mr Porter submitted that NWE in this case should take account of overtime payments in accordance with sub-section 8(2) of the Act. He referred to the calculations of compensation payments to the applicant as being $545 per week for the period 12 July 1996 to 26 July 1996 (folio 331 of exhibit A1); $661.55 for the period 1 August 1996 to 18 September 1996 (folio 334 of exhibit A1); and $678.08 for the period 19 September 1996 until 16 October 1996 (folio 337 of exhibit A1). He submitted that these higher sums correctly reflected the inclusion of overtime payments for rostered Saturdays as indicated in exhibit A3 and that they should have been utilised for making the calculations of NWE under section 8 for the purposes of determining the amount of 75% NWE as required in paragraph 19(2)(a) of the Act. He referred to the schedule of payments made to the applicant (exhibit A4) as not reflecting that level of payment.
35. In relation to section 37 of the Act, Mr Porter submitted that the Tribunal should exercise the discretion available and order that a rehabilitation program be provided to the applicant. He described the applicant as having a positive attitude such that he would benefit from a program of retraining which would enable him to take up an employment option in the future. He also described Telstra as a class 3 licence holder under Part VIIIA of the Act and, as such, was an entity obliged to make reahabilitation programs available.
36.  In response to Mr Dickson's submissions (see below), Mr Porter noted the references to adverse comment about the applicant after the earlier Tribunal hearings but pointed out that, nonetheless, favourable outcomes had been achieved by him in the Tribunal decisions. Mr Porter also submitted that the applicant should not be perceived as a labourer but as a qualified tradesperson when consideration is given to suitable employment options.
Respondent's case
37. Mr Dickson submitted that it was significant that the applicant had not given evidence despite being present at the hearing. He referred to adverse comments about the applicant that had been made in the previous Tribunal hearings. This included the observation by the Tribunal, in the 1998 decision, that some of the activities the applicant performed such as playing six to nine holes of golf four times per week were inconsistent with the level of instability of the left knee, and the level of pain he allegedly experienced (para 17 of exhibit R1). He also referred to the decision of the applicant not to take up an option offered in 1997 of a session with WDA for investigation of tangible job leads and to the following observation on that matter by the Tribunal in the 1998 decision (paragraph 31 of exhibit R1):

"In June 1997 Telstra provided funding for a Rehabilitation Plan through Work Directions Australia to assist the applicant to return to full time work, and to investigate possible job opportunities. We do not consider that either Telstra or Work Directions Australia have acted unreasonably. We accept the applicant's evidence to the effect that he understood that Work Directions Australia would need to be satisfied that any prospective employment would be 'suitable employment' in accordance with the Act, and in the light of the applicant's assertion that he was not capable of performing full time work with restrictions. Whatever the perceptions of the situation from the viewpoint of the applicant, or Work Directions Australia, the Rehabilitation Plan was not implemented, and we have no evidence, therefore, of the type of employment that could be undertaken by the applicant, and could be regarded as 'suitable employment' for the purposes of the Act."

38. Mr Dickson submitted that the effect of the 1998 decision was that the applicant was able to return to the workforce but had chosen not to do so for his own reasons.  He also noted the following comment of the Tribunal in its 1999 decision (folio 293 of exhibit A1):

"29.     We agree with the submission that the applicant has shown no inclination to return into the workforce and sat on his hands waiting for the respondent to take the initiative in complying with the requirements of the Act. Indeed, we think it likely that the applicant will fail to take full advantage of any rehabilitation provided in order to seek suitable employment in this country. He has again made his life back in England and we feel he is likely to return there when his rights under the Act are exhausted. In short, we were far from impressed with the applicant and his demeanour in the witness box. He knows his rights and is determined to exhaust them to the end."

39. Mr Dickson submitted that the applicant could have given evidence to explain these matters.
40. In relation to the compensation payments made to the applicant, Mr Dickson submitted that these had continued until 1 October 1997.
41. In relation to suitable employment, Mr Dickson said that it was common ground that the applicant was not able to return to work involving strenuous physical activity but submitted that this left open the undertaking of sedentary work, many forms of which are carried out indoors. In that context, he noted the reservation that the applicant had expressed to WDA and recorded in the WDA report that he was "not keen to work indoors or in office or computer work" and that he liked "variety and to be able to move about" (folio 26 of exhibit A1). He submitted that this was a "spurious claim" calculated by the applicant to remove many employment options available to him.
42. Mr Dickson noted the letters of Margaret Kennedy (exhibit A7 and folio 38 of exhibit A1) in which she advised that clerical work could have been included in the WDA list of suitable employment options and submitted that, indeed, it should be included because of the comments in those letters. 
43. Of the suitable employment options nominated by WDA, Mr Dickson submitted that console operator was one that the applicant could have undertaken at any time without the need for any preliminary training because, as the WDA report advised, relevant training was incorporated into the position through on-the-job training (folio 27 of exhibit A1). Also, he submitted that the applicant was not in a position under the Act where he had some right of veto over particular employment options and referred to the following comment of Spender J in the Federal Court:

"While an injured employee might genuinely dispute whether employment suggested by the delegate of Telstra as suitable was suitable, the obligation to pay compensation is not conditional on the acceptance by an employee of what is in truth suitable employment. In those circumstances, an employee does not have a subjective right of veto in respect of what is suitable employment."

44. Mr Dickson submitted that the work that the applicant was undertaking with Telstra was in the nature of labouring work rather than that associated with a skilled trade such as refrigeration mechanic for which the applicant had qualified in the United Kingdom. Because he had made the decision to move into a labouring field, it was not the case that it was necessary for the respondent to provide training which would lead to professional work.
45. It was submitted by Mr Dickson that there had been an opportunity for the applicant to provide evidence to the Tribunal of what he was able to earn. This had not been done and this placed the Tribunal in a position where it was more difficult to make a finding on that part of the formula in section 19 of the Act denoted by AE. However, he submitted that the Tribunal should make such a finding, at the very least, at the level of the earnings applicable to a console operator or, because of the absence of evidence, at the level appropriate to a clerical worker.
46. In relation to rehabilitation, Mr Dickson submitted that it was not mandatory that this be provided and that there was discretion in section 37 in respect of this. Further, the decision on whether or not the discretion was to be exercised was to be made in accordance with the terms of that provision rather than on the basis of any licensing considerations that might arise under part VIIIA of the Act. Mr Dickson also submitted that the discretion to provide rehabilitation should not be exercised in this case.
47. In respect of paragraph 37(3)(b) of the Act, he submitted that the applicant had already demonstrated that he was not willing to take part in assistance programs so there could be no reduction in future liability to pay compensation because of the offering of a program to him.
48. As to the costs of any program referred to in paragraph 37(3)(c) of the Act, Mr Dickson referred to the costings provided in paragraph 8.5 of the WDA report (folio 29 of exhibit A1). There, the cost estimate of vocational counselling to the applicant was $660, being for six hours at $110 per hour. He submitted that this did not refer to vocational training which would be substantially more expensive and for which no cost estimates have been provided by the applicant. Moreover, he submitted that a program had been offered to the applicant in 1997 and he had chosen not to accept it.
49. In relation to paragraphs 37(3)(d) to (g) of the Act, Mr Dickson submitted that the applicant's attitude had been summed up in the previous Tribunal reasons for decision and that the provision of any rehabilitation program would not realistically improve the applicant's prospects of employment. 
Consideration
Suitable Employment
50. In the decision under review, eight entries were included in the list of suitable employment options. These were:

Console Operator;
Real Estate Salesperson;
Occupational Health & Safety Officer;
Teacher of Technical and Further Education/TAFE Teacher;
Mechanical Engineering Technician;
Mechanical Engineering Associate;
Building Inspector/Surveyor; and
Clerical Position.

51. Only the first seven of those were nominated in the WDA report dated 4 September 1998. The reference to the clerical position was noted by Spender J as being included because of the terms of the letter by Margaret Kennedy of WDA to the applicant on 25 November 1997. His Honour expressed the opinion that it was clear that the inclusion of clerical position as an eighth option was based on the report because "such a position can easily be seen to be commensurate with Mr Slater's identified level of intelligence, capacity for retraining, and ability to perform the tasks involved in the other positions identified" (folio 520 of exhibit A1).  The letter which comprises exhibit A7 was not before the Tribunal at the previous hearing or the Federal Court. It is headed "APPENDIX TO MEDICO-LEGAL/EMPLOYABILITY REPORT DATED 4 SEPTEMBER 1998" and I am satisfied that the WDA report comprises both the initial document of 4 September 1998 and the appendix. In that appendix, Ms Kennedy noted that "clerical occupations may well have been included in the list of identified occupations". She continued by stating that, because of the applicant's "interests, preferences, transferable skills, and aptitude", the other options were seen to be better matches for him.
52. The term "suitable employment" is defined in sub-section 4(1) of the Act and it is not disputed in this case that paragraph (b) is the relevant component of that provision. It provides that suitable employment is any employment (including self-employment), having regard to the following matters:

"(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."

53. The WDA report is very comprehensive. As Spender J said in the Federal Court decision (folio 518 of exhibit A1), it outlined the applicant's personal history, including his education, employment and health background, the circumstances and effect on him of his injury and his status at the time of the report. It assessed his physical abilities and mental capacity, and the types of work he preferred to do. It concluded that he should not return to his previous occupation, but that he would be suited to the specified types of employment on a full-time basis, noting that these were potentially suitable occupations which were commensurate with his physical disability and which required various lengths of training.

54. The applicant is aged 48 years and that may well impact on his willingness to undergo significant levels of retraining that would be associated with some of the employment options in the list. However, that would not be the situation with others, in particular, that of console operator where the training is relatively short and part of the job itself. The applicant does not have direct experience with the nominated employment options but has demonstrated in his working life a willingness and ability to embrace change. In particular, this is seen in the decision to leave work in the area of his trade as a refrigeration mechanic when he came to Australia. In his evidence at the 1999 Tribunal hearing (folios 160-161 of exhibit A1), he said that had worked for a few months at Power's Brewery near Brisbane as a brewery technician where his duties were related to the repair and maintenance of beer kegs. This flexibility was also seen in his decision to take up the cable installation work with Telstra. In his evidence at the 1999 Tribunal hearing (folio 161 of exhibit A1), he described his Telstra duties in the following way:

"That involved everything from relaying the cable from the street, wiring the house with the cable, doing all the installation work with regards to the cable TV installation, tuning the TV sets, tuning the receptors…."

55. The applicant also said in his evidence at the 1999 Tribunal hearing (folio 162 of exhibit A1) that, before commencing work with Telstra, he had been required to complete a three-week long training course at the Telstra Training Centre. In addition, he agreed with the proposition that the Telstra work was "somewhat labouring type employment" but with "perhaps a bit more expertise required than that" (folio 279 of exhibit A1).
56. The submission of Mr Porter was that the need for retraining as a precondition for taking up the employment options nominated by WDA made them unsuitable. I do not accept that submission. The relevant factor in the definition of "suitable employment" is not the need for training but, rather, the employee's suitability for rehabilitation or vocational retraining. The WDA report describes the applicant as being in the "high-average to superior ranges of intellectual functioning" and as being "highly capable of being retrained". The report of Mr Teh, which was relied on by Mr Porter, recommended vocational training but made no suggestion that the applicant would not be suited to this. There is no evidence before me to indicate that the applicant would not be able to undergo retraining for any of the listed employment options. In particular, that is the case with the position of console operator.
57. Another factor to be considered in the definition of suitable employment is whether it is reasonable to expect the employee to change his place of residence. As I understand it, any work opportunities nominated in the WDA report were in Australia. In his evidence at the 1999 Tribunal hearing, the applicant said that he had returned, in February 1999, with his wife and three children to England to live, that his wife was in full-time employment there and that at least two of his three children, then aged 12 and 14 years, were still in school there. He also said that, if rehabilitation was offered to him, he would have been prepared to travel back to Australia, that it was perceivable that his two younger children would also return with him but that he was uncertain of what his wife would do as this would be her decision (folios 84-85 of exhibit A1). As I understand it, the applicant still lives in England. He attended the hearing but gave no evidence which would enable those living arrangements or intentions to be clarified.
58. In Fox v Department of Defence (1995) 22 AAR 402, the Tribunal referred to the need for equivalence between a program offered to an employee and the kinds of employment that were being undertaken at the time of an injury. There, it was determined that training for a clerical position was not equivalent to a course that the employee had been taking with the Army: see also Department ofDefencev Fox (1997) 24 AAR 171. In this case, I am satisfied that any such equivalence must be to the applicant's work with Telstra rather than that of his former trade of refrigeration mechanic. By undertaking that work which, on his evidence noted above (see paragraph 55), has a labourer orientation, he had moved away from the skill base that his trade brought him. Indeed, he had done this at an earlier time when he was employed at Power's Brewery in the repair and maintenance of beer kegs.
59. I am satisfied that none of the eight employment options can be considered to lack equivalence with the nature of the applicant's work at Telstra. The need for training was the basis submitted by Mr Porter to show the unsuitability of those options. However, the applicant has been described in the WDA report as having a capacity to undertake any necessary training. Further, the position of console operator requires a relatively small level of on-the-job training and the applicant has already demonstrated an ability to undergo such training when he was first employed by Telstra. In addition, in his evidence at the 1999 Tribunal hearing, the applicant said that he had undergone a course, while working for Powers Brewery, to obtain a qualification as a fork-lift operator (folio 261 of exhibit A1).
60. On the evidence, I am satisfied that, for the purposes of sub-section 4(1) of the Act, the list of eight employment options determined in the decision under review constitutes suitable employment for the applicant. The decision of Spender J in the Federal Court was to the same effect and that part of His Honour's decision was not called into question by the Full Court.
The Formula in Section 19 of the Act: 75% NWE
61. In applying the formula in paragraph 19(3)(a) of the Act in the applicant's case, a calculation must be made of 75% NWE and of AE. For NWE, the calculations are made in accordance with sub-sections 8(1) and (2) of the Act, with the latter provision being relevant where the employee was required to work overtime on a regular basis. For AE, the calculation is made in accordance with sub-section 19(4) of the Act.
62. The documents in exhibit A3 indicate the applicant's engagement in overtime work in the fortnights ending 1 May 1996, 15 May 1996, 29 May 1996, 12 June 1996, 24 June 1996 and 10 July 1996 which were prior to his being injured on 11 July 1996. In those fortnights, he earned $309.53, $82.47, $157.10, $337.21, $0 and $272.06, respectively, in overtime payments. The documents in exhibit A3 also indicate that he had been rostered for two Saturdays on 20 July 1996 and 3 August 1996. I am satisfied that the applicant worked overtime but that is not sufficient to meet the terms of sub-section 8(2) of the Act. It must be the case that the applicant was required to work overtime by Telstra in the sense that there was "an imposition, by the employer, in an authoritative fashion, of an obligation upon the employee to work overtime on a regular basis": see Re Zarb and Comcare (1997) 25 AAR 344 at 354. There is no evidence before me that the applicant was required by Telstra to work overtime or that his taking up of overtime was not simply an election by him.
63. Further, sub-section 8(2) of the Act requires the overtime be worked on a regular basis. In Zarb (above), the word "regular" was held to mean "a uniform or symmetrical pattern over time which can be described as usual or customary" (at 355). The overtime payments noted above vary significantly from one fortnight to another and include one fortnightly entry where there was no overtime worked at all. I cannot be satisfied that the applicant was required to work overtime on a regular basis and it follows that the relevant component of the definition of NWE is that set out in sub-section 8(1) of the Act.
64. In exhibit R2, the respondent provided a summary of calculations of 75% NWE for the period from 1 October 1997, which marks the point to which compensation was paid to the applicant by Telstra, to 1 June 2002. The periods and amounts are set out in the following table:
Period Number of Weeks     75% NWE $   
1 October 1997 – 31 August 1998     48       446.02
1 September 1998 – 23 December 1998      16       446.02
24 December 1998 – 31 August 1999         36       463.86
1 September 1999 – 22 December 1999      16       463.86
23 December 1999 – 31 August 2000         36       473.13
1 September 2000 – 19 December 2000      16       473.13
20 December 2000 – 31 August 2001         36       492.05
1 September 2001 – 19 December 2001      16       492.05
20 December 2001 – 1 June 2002     23       511.73

65. In the absence of any evidence to the contrary of NWE during the periods identified in the first column of that table, I find that the amounts listed in the third column of that table correctly record the calculations of 75% NWE for those periods.
The Formula in Section 19 of the Act: AE
66. In determining AE, the decision maker must have regard to the various matters in paragraphs 19(4)(a) to (g) of the Act. Paragraphs (a) to (d) are not relevant because the applicant is not in employment nor has he, on the evidence available, received an offer of employment. The remaining paragraphs read:

"(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 [the Tribunal's] opinion, reasonable in all the circumstances; and

(g)any other matter that [the Tribunal] considers relevant."

67. In the 1999 Tribunal hearing, the applicant was questioned about letters that were then in evidence of many job applications that he had made between October 1996 and November 1998 (folios 80 to 95 of exhibit A1). The dates of these application letters, the positions for which the applications were made, the location of those positions and the respective folio numbers in exhibit A1 are set out in the following table:
No      Date    Position        Location        Folio  

1. 16 October 1996        Refrigeration mechanic        Daydream Island        80       

2. 30 April 1997   Brewery technician     Powers Brewery        81       

3. 6 May 1997     Field operator  Injune  82       

4. 21 May 1997   Accounts manager     Brisbane        83       

5. 5 August 1997 Refrigeration mechanic        University of Qld        84       

6. 9 October 1997         Beer systems representative  Brisbane        85       

7. 5 March 1998  Refrigeration positions          Victoria          86       

8. 15 April 1998   Sales engineer          Brisbane        88       

9. 7 May 1998     Refrigeration mechanic        Brisbane        89       

10. 29 June 1998  Telstra Sydney          90       

11. 9 July 1998     Mobile home loan consultant  Sydney          91       

12. 9 July 1998     Northern Territory Police       Northern Territory      92       

13. Undated        Mechanical engineer   Brisbane        93       

14. Undated        Surveyor        Townsville      94       

15. 30 November 1998     Console operator       Brisbane        95       

68. In those letters, the applicant referred to "an enclosed resume" but that document was not before the Tribunal at the 1999 hearing or before the Tribunal at this rehearing. In his evidence at the 1999 hearing, the applicant said that the first of those letters was written about a week after his knee surgery, while he was on compensation; that he was aware that Daydream Island was about 800 miles from Brisbane; and that he advised in the letter that he was still in rehabilitation (at folios 231-232 of exhibit A1). In relation to letter number 3, he said that he did not know what the field operator's position was but thought it had to do with work on an oil field (at folio 237 of exhibit A1). In relation to letter number 4, he said that he thought that the accounts manager's position would be similar to that of a sales representative (at folio 238 of exhibit A1). In relation to letter number 5, he said that he did not know where the University of Queensland was and that he had a medical report which stated that he could not work as a refrigeration mechanic (at folio 240 of exhibit A1). In relation to letter number 6, he detailed his technical qualifications but said that he thought that the job would involve dealing with customers (at folios 241-242 of exhibit A1). In letter number 7, the applicant included a reference to his knee injury and stated (at folio 86 of exhibit A1):

"The result of this is that I now have restrictions in what I can physically do without causing further damage to my knee. These restrictions are to do with squatting, lifting and climbing."

69. He said in his evidence that that letter had been sent to the head office in Victoria but that he understood there were positions available in Brisbane (at folio 243 of exhibit A1). In relation to letter number 9, the applicant said that, if he had been offered the position, he would have disclosed the physical limitations that he had (at folio 244 of exhibit A1). In relation to letter number 10, he said that he had contacted the Brisbane office of Telstra by telephone and had been advised to write to the Human Resources Office in Sydney (at folio 244 of exhibit A1). In relation to letter number 11, he said that he thought that this job would involve selling mortgages (at folio 240 of exhibit A1). In relation to letter number 12, he said that, in response to his letter, he had received an information package from the Northern Territory Police and decided that the position was not for him (at folio 246 of exhibit A1). In relation to letter number 13, he said that he was not aware of the qualifications required for the position (at folio 246 of exhibit A1). In relation to letter number 14, he said that he had no qualifications as a surveyor and that "there was no way in the world" that he "could take up a surveyor's job" (at folios 246-247 of exhibit A1).
70. In relation to letter number 14 for a position as a console operator, he said that he would have attempted this if work had been offered but thought that he would not be able to do the work. He said that he received a written response from the entity that he sent his application to, Robert Gow International, and agreed that he had been invited to attend an information session at a Milton office but had not attended and he said he could not recall whether or not he had contacted them by telephone. He said that he thought the entity was a jobseeking agency who were looking for clients to put on their lists (at folio 251 of exhibit A1).
71. In his evidence at the 1999 hearing, the applicant also agreed that he had made other job applications including those for the positions of legal secretary, stevedore, company administration officer and real estate secretary (at folios 262-263 of exhibit A1).
72. At that 1999 hearing, the following question-answer sequence occurred in cross examination of the applicant (at folios 263-264 of exhibit A1):

"Question - Mr Slater, I put it to you that you looked at the list as to what you were able to do and just went down the list. It starts off a with console operator, then mechanical engineer, surveyor, clerical position. And in your letter you followed that exactly in that sequence, didn't you?
Answer – I followed the list, yes.

Question – And that's the reason why you applied for them, because they were in the determination and you had no chance of getting any of those positions?
Answer – Well, I explained that before. The reason for applying for things like, you know, surveyor, for positions

Question – Because it was in the list?
Answer – That's correct. Because I didn't have the qualifications for them. I know I can't do them yet Telstra in the response are insisting that that is suitable employment and that subject to the definition of "suitable employment" I can do them. It was an exercise to show that I can't do those positions, and it's completely futile for them to put that down as being suitable employment.

Question – And that's the point you wanted to make?
Answer – Yes.

Question – They were just formalities, weren't they?
Answer – Well, some of them were, yes. Yes."

73. In further evidence at the 1999 hearing, the applicant stated that some of his applications that he made for work were genuine ones but these were not identified by him. There is no evidence that the applicant has attempted to seek employment at any time after the Tribunal hearing in 1999 either in Australia or in England.
74. Having seen and heard the applicant give evidence, the Tribunal in 1999 was able to conclude (see above in paragraph 38) that it agreed with a submission from the respondent that the applicant had shown no inclination to return to the workforce and had "sat on his hands waiting for the respondent to take the initiative in complying with the requirements of the Act". Having read the transcript of his evidence, I agree with that conclusion and find that the letters sent by the applicant to various potential employers did not represent any genuine attempt by him to seek suitable employment. That means that his situation falls within the terms of paragraph 19(4)(e) of the Act.
75. Under paragraph 19(4)(e), after becoming incapacitated for work, the applicant has failed to seek suitable employment. This means that, subject to the remaining paragraphs (f) and (g), AE, for the purposes of the formula, is the amount per week that the applicant could reasonably be expected to earn in suitable employment if he were engaged in such employment. Under paragraphs 19(4)(f) and (g), regard must also be had to whether or not the applicant's failure to seek employment was reasonable in the circumstances and any other relevant matter.
76. Both the applicant and respondent provided evidence of the weekly payments for the relevant periods applicable under the Motoring Services Award, which is relevant to a console operator working in a service-station (see exhibit A5, provided by the applicant, and the documents in exhibit R2, provided by the respondent). Additionally, both the applicant and the respondent provided evidence of the weekly payments applicable under the Clerical Employees Award which is relevant to a worker in a clerical position. The applicant, in exhibit A6, did so for the period from 1 September 2001 and the respondent did so in the documents in exhibit R2 for the period from 1 October 1997. The documents at exhibits A4 and R2 also provide the following summary of those weekly award payments:
 Period         No of Weeks  Motoring Services Award    Clerical Employees Award 
1 October 1997 – 31 August 1998     48       372.90 426.20
1 September 1998 – 23 December 1998      16       386.90 465.20
24 December 1998 – 31 August 1999         36       386.90 465.20
1 September 1999 – 22 December 1999      16       398.90 506.40
23 December 1999 – 31 August 2000         36       398.90 506.40
1 September 2000 – 19 December 2000      16       413.90 552.80
20 December 2000 – 31 August 2001         36       413.90 552.80
1 September 2001 – 19 December 2001      16       426.90 609.50
20 December 2001 – 1 June 2002     23       426.90 609.50

77. I find that the amounts in the third and fourth columns of that table are those that the applicant could reasonably have been expected to earn in suitable employment as a console operator or in a clerical position, respectively, during the periods nominated in the first column of the table. Each of those weekly amounts in the case of a console operator is less than the 75% NWE amounts for the equivalent periods as set out in the table in paragraph 64 above. With the exception of the first entry, each of those weekly amounts in the case of a clerical worker is greater than the 75% NWE amounts for the equivalent periods as set out in the table in paragraph 64 above. Therefore, if regard were had only to the terms of paragraph 19(4)(e) of the Act, compensation would be payable to the applicant throughout the period in accordance with the formula in sub-section 19(3) of the Act if the position of console operator was used as the basis of comparison. However, if a clerical position were used as the basis of comparison, compensation would only be payable in the first time-frame referred to in the table, which is from 1 October 1997 to 31 August 1998.

78. In determining the amount per week that an employee is able to earn in suitable employment under sub-section 19(4) of the Act, it is not only paragraph (e) of the provision that must be considered. Under paragraph (f) thereof, where paragraph (e) is satisfied, as in this case, regard must also be had to whether the employee's failure to seek employment was reasonable in all the circumstances. Additionally, regard must be had to any other relevant matter under paragraph (g).
79. It is now almost five years since the applicant was injured in his work with Telstra. The evidence is, and the decision of the Tribunal in 1998 was, that he is only partially incapacitated for work and is fit for full-time work in suitable employment. I am satisfied that it is not reasonable for a person with that level of capacity to take no steps towards regaining a place in the workforce over that period of time. The decision by the applicant not to give evidence has deprived the Tribunal of the opportunity of ascertaining what the situation has been in that regard since the last hearing in 1999. In particular, I find that the unreasonableness of the applicant's conduct is applicable to his not seeking to take up employment in a position such as a console operator which requires no formal training outside of the parameters of the job itself.
80. In addition, the evidence is not only that the applicant did not seek work but that he engaged in an elaborate process of preparing and sending letters to a range of potential employers with no intention of actually seeking employment.
81. I also note the submission of the respondent concerning the unwillingness of the applicant to complete the rehabilitation plan that was set up for him by WDA. On 27 May 1997, a WDA report was completed by Mr B Fielke, occupational therapist and rehabilitation case manager, in which reference is made to a rehabilitation plan that was developed for the applicant (at folio 123 of exhibit A1). The plan comprised attendance at a workshop on job-seeking skills; vocational counselling for 75 minutes; and 3.45 hours with WDA Employment Services for investigation of tangible job leads (at folio 146 of exhibit A1). The applicant attended the first two components of that plan on 14 and 24 July 1997, respectively. He did not attend the final session. Rather, he wrote a letter, dated 26 August 1997, to Mr Fielke stating that "until the issue of suitable employment is resolved any job leads which you supply may be inappropriate" (at folio 117 of exhibit A1). Then, on 2 September 1997, he wrote a letter to Telstra declining to participate in that session stating (at folio 118 of exhibit A1):

"In an effort not to waste these resources on job leads which may not be classed as "suitable employment" as defined by the SRC Act 1988 please confirm that all efforts will be made to determine suitable employment prior to using these services."

82. On 9 September 1997, WDA wrote to Telstra advising that his rehabilitation file had been closed as the applicant had declined to make use of the services that had been offered until his appeal had been determined (at folio 148 of exhibit A1). The rehabilitation plan had been put together by WDA, with the purpose of providing assistance to the applicant, by those with qualifications to provide that assistance. I find that the decision by the applicant to discontinue his involvement with WDA resulted in the decision by WDA to close his rehabilitation file. I also find that it was unreasonable for him to discontinue with the initiatives that had been commenced on his behalf by WDA and this conduct is a factor which can be taken into account as a relevant matter under paragraph 19(4)(g) of the Act.
83. Having regard to the terms of paragraphs 19(4)(f) and (g) of the Act, I am satisfied that the amount that the applicant was able to earn in suitable employment should be that applicable to a person in a clerical position. This is the higher of the two awards set out in paragraph 76 above and is selected because of the matters referred to in paragraphs 79 to 82 above. It is also the employment position selected in the decision under review. The reliance on the clerical award means that AE is in excess of the 75% NWE calculations set out above in paragraph 64 in all of the periods except for 1 October 1997 until 31 August 1998. This means that, in accordance with the formula in sub-section 19(3) of the Act, compensation is payable to the applicant only in that period and at a weekly rate represented by the difference between $446.02 and $426.20, that is $19.82.

Rehabilitation: Section 37
84. Under sub-section 37(1) of the Act, the Tribunal may determine that the applicant should undertake a rehabilitation program. I accept the respondent's submission that this is the provision relevant to the issue rather than the provisions of Part VIIIA of the Act. As noted above by the Full Court (above at paragraph 17), there is no obligation to provide such a program. Rather, it is a matter of discretion and, in exercising that discretion, sub-section 37(3) requires, in so far as relevant, that regard be had to the following:

"(b)any reduction in the future liability to pay compensation if the program is undertaken;

(c)the cost of the program;

(d)any improvement in the employee's opportunity to be employed after completing the program;

(e)the likely psychological effect on the employee of not providing the program;

(f)the employee's attitude to the program;

(h) any other relevant matter."

85. Given the decision that compensation is not payable to the applicant after 31 August 1998, paragraph (b) does not arise for consideration. The original WDA report, dated 4 September 1998, recommended vocational counselling only at a cost estimate of $660. In the extension to that report (at exhibit A7), there were added the following: case management of up to 20 hours at $110 per hour and job assistance of up to 10 hours at $110 per hour. The adjusted total was $3,960. However, in this case, the applicant is living in England and that may also impact on the cost of any program to be made available by the respondent. That factor also impacts on the viability of the program. However, I find that the attitude of the applicant in this case as demonstrated by his unwillingness to complete the assistance plan put in place for him by WDA in 1997 as being highly relevant. On balance, I am satisfied that a rehabilitation  program should not be made available to the applicant by the respondent.
Decision
86. The Tribunal sets aside the decision under review and, in substitution therefore, decides that:

(a)the respondent is liable, pursuant to section 14 of the Act, to pay compensation to the applicant in respect of his left knee injury; and

(b)the respondent is liable, pursuant to section 19 of the Act, to pay to the applicant the amount of compensation as set out in paragraph 83 above.

Costs
87. The matter of costs is dealt with in section 67 of the Act and, relevantly, sub-section 67(8) reads:

"(8) Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:

(a)   varying a reviewable decision in a manner favourable to the claimant; or

(b)   setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;

the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority."

88. As a decision favourable to the applicant has resulted from this hearing, costs may be awarded under that provision. At the hearing, reference was made to the making of a costs order but submissions were not made by the parties. I reserved the matter of an order for costs and that will be heard on a date to be arranged.

I certify that the preceding 88 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing                  31 May 2002
Date of Decision                19 July 2002

Solicitor for the Applicant       Mr G Porter, Mahoney and Hesford Solicitors

Counsel for the Respondent   Mr R Dickson
Solicitor for the Respondent   Standish Partners, Solicitors