Smith and Telstra Corporation Limited

[2003] AATA 1205

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1205

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/34
  )          No A2002/35

GENERAL ADMINISTRATIVE DIVISION		)
Re		DENNIS SMITH

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date28 November 2003

PlaceCanberra

Decision

The decision under review in application A2002/34 is affirmed.  The applicant is entitled to no costs associated with this application.

The decision under review in application A2002/35 is varied to the extent that the applicant’s normal weekly earnings are to be assessed in accordance with only s 8(1) of the Safety, Rehabilitation and Compensation Act 1988 but with the factor “NH” recalculated to include an allowance for overtime in the average number of hours worked in each week.  The matter is remitted to the respondent for it to do the recalculation.  The applicant qualifies for costs associated with this application.

..............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – degenerative disc disease of the lumbar spine – aggravation of degenerative disc disease – whether employee qualifies for compensation for permanent impairment – whether employee has undertaken all reasonable rehabilitative treatment – percentage of whole person impairment – credibility of employee – whether employee made wilful and false representation that he did not suffer previously from disease – compensation for incapacity – employee’s normal weekly earnings – allowing for overtime hours in calculating normal weekly earnings

Administrative Appeals Tribunal Act 1975 s 40(1A)

Privacy Act 1988 s 14

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“aggravation”, “ailment”, “disease”, “impairment”, “injury”, “normal weekly earnings”, “normal weekly hours”, “permanent”), (8), 7(7), 8(1), (2), (4), (5), (10), 9(1), 14(1), 19(1), (2), 24

Amorebieta, Comcare v (1996) 66 FCR 83

Bortolazzo v Comcare (1997) 75 FCR 385

Brede and Department of Defence, Re (1994) 33 ALD 669

Zarb and Comcare, Re 1997) 48 ALD 718

REASONS FOR DECISION

28 November 2003 Michael Sassella, Senior Member           

RESULT

1. Mr Smith’s claim for lump sum compensation in respect of the permanent impairment of his lumbar spine fails. There is at least one rehabilitative measure, namely a back brace, recommended that appears not to have been tried. Mr Smith’s claim for an increased level of normal weekly earnings does not succeed on the basis of any error in Telstra’s choice of a current class of employees against which to gauge an allowance for Mr Smith’s overtime. The current level seems, however, to be lower than it should be because of an error in applying the formula in s 8(1) of the Safety, Rehabilitation and Compensation Act 1988.  Telstra has been asked to attend to that problem.

BACKGROUND

2.      Mr Dennis Smith (“the applicant”) sought and was granted compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[1] in respect of a condition termed “back sprain” (T8)[2].  Mr Smith had claimed compensation as a result of an injury he said occurred to his back when, about to leave his house in the morning on 21 July 2000, he was lifting a drop-wire dispenser when he felt a pulling sensation in his lower back (T4).  Mr Smith later lodged a claim for compensation for a permanent impairment stemming from the back sprain (T84).  The Telstra Corporation Limited (“Telstra”, “the respondent”) rejected that claim (T115) and again rejected the claim on review in the reviewable decision dated 17 January 2002 (T147).

[1] See Schedule 1 for extracts from the Act.

[2] See Schedule 2 for a list of exhibits.

3. Telstra was paying Mr Smith weekly compensation payments for incapacity in accord with s 19 of the Act because of his inability to work a full day’s hours. Telstra reassessed his normal weekly earnings (“NWE”) downwards from $1,728.61 (T124/250) to $1,204.41 (T127/255) on 30 October 2001. This was confirmed in a determination dated 23 November 2001 (T135) which prompted Mr Smith to query the level of his NWE (T149). The lower level of NWE was confirmed by Telstra in a reviewable decision dated 18 January 2002 (T151). The dispute revolved around the credit being accorded Mr Smith for the overtime allowance he could be regarded as earning if he were fully fit for work.

4. By the time of the hearing the respondent was arguing that Mr Smith has a longstanding pre-existing lumbar disc and joint disease predating 21 July 2000, the date of injury (ex R15), that he injured his back in a domestic context on 10 July 2000 without disclosing that injury in his compensation claim and that this amounted to a wilful and false representation for the purposes of s 7(7) of the Act. This was said to mean that Telstra had never been liable to pay compensation to Mr Smith.

ISSUES

Permanent Impairment

5.      The issues relevant to the permanent impairment appeal A2002/34 are:

(a)Has Mr Smith suffered an injury under the Act?

(b)If the answer to (a) is yes, does Mr Smith have an impairment under the Act?

(c)If the answer to (b) is yes, what is the duration of the impairment?

(d)If the answer to (b) is yes, what is the likelihood of improvement in Mr Smith’s condition?

(e)If the answer to (b) is yes, has Mr Smith undertaken all reasonable rehabilitative treatment for the impairment?

(f)If the answer to (b) is yes, is the impairment permanent?

(g)If the answer to (f) is yes, what is the percentage impairment?

Normal Weekly Earnings

6.      The issues relevant to the NWE appeal A2002/35 are:

(a)Should Mr Smith’s NWE contain an allowance for overtime?

(b)If the answer to (a) is yes, is the overtime accounted for by reference to s 8(1) or s 8(2) or both?

(c)If the answer to (a) is yes, has the NWE been correctly calculated?

(d)If the answer to (a) is no, Does s 8(10) of the Act apply to reduce the level of NWE?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS – PERMANENT IMPAIRMENT

(A)Has Mr Smith suffered an injury under the Act?

7. The evidence suggesting that Mr Smith may not have suffered an injury under the Act has two facets. First, there may have been a wilful non-disclosure under s 7(7) of the Act such as to deny compensation in respect of an otherwise compensable injury. Second, despite Telstra’s earlier decision to accept liability, doubt was cast on whether Mr Smith ever suffered the alleged frank injury with the drop-wire dispenser on 21 July 2000.

8.      There is significant evidence that Mr Smith was suffering in July 2000 from a pre-existing degenerative condition of the lumbar spine (Dr R Jackson, orthopaedic surgeon, 17 March 2001, T58).  Dr Jackson took a history, which he regarded as credible, that Mr Smith had had no past history of back symptoms before he lifted the drop-wire dispenser on 21 July 2000.  His opinion was (T58, T61, ex R2) that the onset of symptoms related to the incident on 21 July 2000.  Mr Smith was born on 1  March 1951 (T4), so he was 49 when the incident happened.

9.      In completing his compensation claim in July 2000 (T4) Mr Smith answered no to question 20, “Have you had a similar injury or illness before, work related or otherwise (even if you think it is unrelated to your current injury/illness)?”  The respondent’s representatives ascertained from Mr Smith’s general practitioners’ notes (ex A12) that there appeared to have been an incident involving a back injury on 9 July 2000.  Dr M Yeung’s notes of 10 July 2000 state that Mr Smith was lifting a bed “yesterday” and injured his right lower back.  There is mention of a sharp pain in the right lower scapular and right sacroiliac joint “there and then”.  There is mention of reduced lumbosacral range of movement in all directions and right paralumbar muscle pain and increased tenderness in the sacroiliac joint.  Without more, that would suggest that Mr Smith’s response to question 20 was false.  A matter of 12 days before the 21 July injury he may have injured his lower back.  This was an apparent “similar injury”. 

10.     In oral evidence Dr Yeung said that he diagnosed right paralumbar muscle strain because of the reduced range of movement and location of pain.  He referred also to the scapular pain as suggesting a muscle problem.  He said that ranges of movement can be feigned but he could not say if that occurred on 10 July.  He doubted that the injury in early July had aggravated the underlying degeneration because the pain did not radiate.  That meant that it was less likely that a disc was involved.  He allowed that there may have been a mild aggravation that explained what he did find on examination.  Mr Smith had told Dr Yeung some days before the hearing that he had lied to Dr Yeung in early July 2000. 

11.     Dr Jackson commented in his evidence that Dr Yeung’s notes of 10 July 2000 indicated an aggravation of the underlying degenerative changes, although his evidence at one point had suggested Mr Smith had only a soft tissue injury. 

12.     Mr Smith then saw a different general practitioner in the same practice on 21 July 2000 and his notes (ex A12) refer to a lower back injury that morning lifting a heavy object from the back of his truck.  Pain radiated to the right.  There was a past history recorded of a mild lower back injury two weeks earlier where he had twisted his lower back at home.  That settled in two days.  On examination he was tender in the spine at L1-L5.

13.     However there was also evidence that the incident allegedly occurring on 9 July had not happened.  Mr Smith’s wife signed a statement dated 26 March 2003 (ex A2) stating that Mr Smith had applied for recreation leave at Telstra in July 2000.  The application was rejected.  The family was on holiday at a beach location.  He spent the weekend with them and returned to Canberra to go to work on the Monday.  On the Monday he phoned Mrs Smith to say he would be back to join them that day.  He told Mrs Smith he would “get a medical certificate for 3 days”.  He said he would tell the doctor he had a “sore back”.  Mr Smith phoned Mrs Smith later to advise he had been given a certificate for three days in respect of his back.  She wrote that he appeared fine when he arrived later in the day, that he participated in normal family activities, including fishing, over the next few days.  In sworn oral evidence Mrs Smith was definite that there had been nothing wrong with Mr Smith’s back on 9 – 10 July 2000. 

14.     Mr T Proudfoot, an acquaintance of Mr Smith, wrote on 6 March 2003 (ex A6) that he saw Mr Smith at Batemans Bay on 11 July 2000 and spent some hours with him.  They walked along the beach.  Mr Smith was jovial, happy and enjoying himself.  At no time did he say he was having back trouble nor did he display any symptoms of a bad back.

15.     In Mr Smith’s reply to the respondent’s statement of facts and contentions (ex A8) it was said that the injury described on 10 July 2000 did not occur.  In cross-examination, asked if his answer to question 20 in the compensation claim form was true, Mr Smith said no.  I have some concerns about accepting this answer at face value.  Mr Smith was at an early stage in a section of the proceedings where he was informed that he might want to refuse to answer certain questions on the basis of the privilege against self-incrimination.  He was clearly ill at ease and possibly confused when he gave that response.  The response was at variance with his wife’s evidence in ex A2 and his material in ex A8. 

16. The applicant is in an invidious position. If he did indeed suffer a back injury on 9 July 2000 and failed to declare it in his compensation claim s 7(7) precludes him from receiving compensation of any sort so long as the representation in the compensation claim form was wilful and false. If, however, he did not suffer an injury on 9 July 2000 he may be liable for prosecution for committing and profiting from an offence of dishonesty.

17.     I am satisfied on the balance of probabilities that Mr Smith did not suffer a back injury on 9 July 2000.  I am influenced most heavily by the consistency of Mrs Smith’s evidence and the fact that she was prepared to give that evidence under oath.  I am influenced also by Mr Smith’s confession to Dr Yeung that he had misled him.  This involved admitting to Dr Yeung that he, Mr Smith, is potentially untrustworthy in his dealings and in confronting Dr Yeung with the knowledge that he, Dr Yeung, had been hoodwinked.  It cannot have been an easy thing to do.  I am influenced also by Dr Yeung’s evidence that he could have been misled by Mr Smith’s presentation when conducting his examination.  Dr Yeung is the only medical person who saw Mr Smith at the relevant time and he is best placed to advise on this possibility.  It was also not in Dr Yeung’s own best interests to admit that he may have been misled.  The fact that he did so gives the evidence greater weight.  There was evidence led at the hearing also that Mr Smith had no time off work between 13 and 21 July and that he worked virtually daily overtime.  Finally, there was Mr Proudfoot’s statement that suggested no signs of any back problems when he saw Mr Smith on 11 July 2000. 

18.     I find therefore that Mr Smith’s answer to question 20 in the compensation claim form was not false.  This finding is on the assumption that Mr Smith was unaware of the underlying disc degeneration in his lumbar spine.  The experts appear to have no difficulty accepting that this condition was asymptomatic until it was aggravated in July 2000.  There is no evidence to suggest any reason why Mr Smith ought to have been aware of the degenerative condition..

19.     The tribunal finds that, if the event involving the drop-wire dispenser occurred, that event did aggravate the underlying disease condition.  In the terms of the legislation this involves the following chain of tentative findings:

· Mr Smith was suffering from an ailment as defined in s 4(1) of the Act in July 2000, ie a physical ailment in the nature of degenerative disc disease.

· Mr Smith was suffering from a disease as defined in s 4(1) of the Act, in that there was an aggravation of the ailment contributed to in a material degree by Mr Smith’s employment by a licensed corporation (Drs Wearne (ex A11), Jackson (T58, T64, ex R2), Tuck (ex R13)). The aggravation was caused by his lifting of the drop-wire dispenser. This was a task he did as part and parcel of his employment with Telstra.

20.     Did the event on 21 July 2000 occur in fact?  Mr Smith says that it did.  In oral evidence he said that the dispenser had to be hooked into two hooks on the Telstra truck.  He missed when doing this and the dispenser fell.  Mr Smith saved the dispenser but felt back pain.  He phoned his supervisor, Mr R E Smith, not a relative, who told Mr Smith to see a doctor.  Mr R E Smith drove the applicant to the doctor. R E Smith provided a written statement (ex A5) in which he said that when he arrived at the applicant’s house he “could see that Dennis was in pain and he was clutching his back”.  He spoke to the applicant’s doctor after Mr Smith was examined.  The doctor told him the applicant needed “complete rest”.  R E Smith took Mr Smith home and noted that Mr Smith “still appeared to be in a considerable amount of pain”..  R E Smith formed the view that the injury appeared genuine so he contacted the return to work consultant.  R E Smith had worked with the applicant earlier in the week and he had not appeared to suffer from a back or other medical problem at that time.

21.     Mrs Smith in ex A2 wrote that on 21 July 2000 Mr Smith returned to the house bent over and hobbling and complaining of back pain.  She and R E Smith helped Mr Smith into R E Smith’s car.  She said that her husband was difficult to manoeuvre and was clearly in pain.  From her observation Mr Smith’s back has not been the same since the incident.  In oral evidence she said that, on the day of the incident, Mr Smith could not sit.  He leant on the kitchen bench waiting for R E Smith’s arrival.  She had never seen the applicant like this before.  She said that Mr Smith can no longer “do the outside” of the house as he once did.  He also cannot drive long distances.

22. It is possible that Mr Smith feigned the events and symptoms he described as occurring on 21 July 2000. However a finding that the occurrence did not occur would require me to dismiss corroboration of the signs of Mr Smith’s injury as observed by Mrs Smith, R E Smith and the general practitioner. I do not think it would be reasonable to discount that evidence. I find that Mr Smith did experience an injury on 21 July 2000 that aggravated his degenerative disc disease. Mr Smith therefore suffered an injury under the Act.

(B)If the answer to (a) is yes, does Mr Smith have an impairment under the Act?

23. I find that Mr Smith has an impairment as defined in s 4(1) of the Act in that he has a “malfunction” in the lumbar spine (Dr Rivett, ex A3, A4; Dr Wearne, ex A11; Dr Jackson, ex R2, R6).

(C)If the answer to (b) is yes, what is the duration of the impairment?

24. This question is prompted by s 24(2)(a) of the Act. The impairment, which most experts describe as degenerative disc disease of the lumbar spine, commenced before the aggravating event of 21 July 2000 and continues. Such a degeneration is a permanent state of affairs. Section 24 of the Act is of course concerned with the effects of that condition and with the relationship between it and Mr Smith’s employment, the effects yet to be canvassed in these reasons.

(D)If the answer to (b) is yes, what is the likelihood of improvement in Mr Smith’s condition?

25. This question is prompted by s 24(2)(b) of the Act. Dr Jackson (ex R2, R6) considers that Mr Smith’s condition is unlikely to improve. However, Dr Rivett (ex A3) thought in March 2002 that the wearing of a full thoracolumbar Taylor brace together with a “good” Feldenkrais exercise program would hold some prospects of improving his symptoms. Dr Wearne made a somewhat similar recommendation on 30 October 2002 (ex A11). He said that a rigid, high lumbosacral brace can diminish pain even if not increasing working capacity.

26.     There is nothing before the tribunal to suggest that Mr Smith has tried a back brace.  In the absence of evidence that the use of a brace has been ineffective I find that there is some possibility of an improvement in Mr Smith’s condition from the wearing of a brace.

(E)If the answer to (b) is yes, has Mr Smith undertaken all reasonable rehabilitative treatment for the impairment?

27. This question is prompted by s 24(2)(c) of the Act. The experts do not favour surgical intervention in Mr Smith’s case (Dr Rivett, ex A3; Dr Wright, ex A10; Dr Wearne, ex A11; Dr Jackson, ex R2, in that he omits all suggestion of surgery as an option).

28.     There is, however, no evidence that Mr Smith has utilised a back brace as recommended by Drs Rivett and Wearne in [25] above.  This appears to me to be a rehabilitative measure that could produce an improvement in Mr Smith’s symptoms.  It is therefore the case that Mr Smith has not undertaken all reasonable rehabilitative treatment for the impairment and I so find.

(F)If the answer to (b) is yes, is the impairment permanent?

29. An impairment is permanent if it is likely to continue indefinitely (definition of “permanent” in s 4(1) of the Act). The medical experts agree in the present case that Mr Smith’s impairment is permanent (Dr Rivett, ex A3; Dr Wearne, ex A11; Dr Wright, ex A15; Dr Jackson, ex R2). I find that Mr Smith’s back condition is permanent under the Act.

(G) If the answer to (f) is yes, what is the percentage impairment?

30.     Dr Rivett (ex A4) found a 20% whole person impairment based on table 9.6 of the Comcare Guide[3].  This related to the lumbar spine and represented a loss of more than half the range of movement of the lumbar spine. 

[3] Guide to the Assessment of the Degree of Permanent Impairment ( This is a statutory instrument under s 28 of the Act.

31.     Dr Wearne (ex A11) found the following ranges of movement on examination:

·     Forward flexion (ie touching toes) was limited to 20 degrees (normal is 90 degrees).

·     Extension was nil degrees (normal is 30 degrees).

·     Lateral flexion was 10 degrees in either direction (normal is 30 degrees).

·     Rotation was reduced to 20 degrees in either direction (normal is 30 degrees in either direction).

This would support a 20% whole person impairment rating under table 9.6 related to the thoracolumbar spine.

32.     Dr Jackson (ex R2) doubted the genuineness of Mr Smith’s presentation when seeing him on 23 April 2002.  He said that Mr Smith flexed his back in a very careful manner to reach his fingertips to knee level before straightening up equally carefully.  Spinal extension and lateral flexion movements to the right and left were less than 10 degrees.  He was “very apprehensive” about any movement in examination.  He reported pain through the entire range of movement.  Dr Jackson said that “positive Waddell’s signs” (apparently a test of the genuineness of reported symptoms) were noted with a complaint of pain to even light touch sensation in the lower lumbar region.  Pain on the “Sham rotation test” and on axial compression test and the diversion test was positive indicating, said Dr Jackson, “non-organic factors”.  He assessed a 5% impairment of the back due to Telstra employment.

33.     In ex R6 (30 August 2002) Dr Jackson suggested that Mr Smith has a 20% whole person impairment, 10% (ie half) being attributable to his Telstra employment.  On 15 October 2002 (ex R7) Dr Jackson reduced his assessment to a 10% total, 5% attributable to Telstra.  In oral evidence Dr Jackson explained his revised opinion by reference to the Waddell’s signs and a loss of confidence in the genuineness of Mr Smith’s presentation during examination.  In oral evidence Dr Jackson also said that he had had more confidence in Mr Smith’s presentation when he saw him on 7 March 2001 (T58).  Range of movement was approximately half normal at that time.  Under table 9.6 this “approximate” figure could result in ratings of 10%, 15% or 20%, depending on whether the restriction was less than, equal to, or above half.

34.     In [17] above I found that Mr Smith had falsified his reporting to Dr Yeung on 10 July 2000 and that this had extended to his apparent range of movement of the lumbar spine.  Combined with Dr Jackson’s evidence regarding the probable invalidity of Mr Smith’s presentation to him on examination, this makes it very difficult for the tribunal to have any confidence in an assessment of range of movement based on Mr Smith’s subjective presentation.  I note in passing that Dr Jackson in April 2002 was able to elicit a greater range of movement from Mr Smith than Dr Wearne in October 2002 (see [31] above).  It seems unlikely that Mr Smith’s condition could deteriorate to that extent in such a short period.

35.     Dr Jackson’s approach to assessing Mr Smith’s level of impairment was more sceptical and more searching than the approaches of the other experts.  On this basis, and on the basis that Mr Smith has been found to have a history of misrepresenting his medical condition, I find that the safe approach to deciding on Mr Smith’s level of impairment is to accept Dr Jackson’s assessment.  Dr Jackson’s final word on the question was that Mr Smith has a 10% whole person impairment.  Dr Jackson saw only half of this as attributable to Mr Smith’s Telstra work.  In accordance with the Federal Court’s holding in Comcare v Amorebieta (1996) 66 FCR 83, 96-97 (Jenkinson J) this is probably a matter where there is no basis for a reduction of the percentage because of the pre-existing degeneration in Mr Smith’s spine. The evidence as accepted by the tribunal was that the condition, although present, was asymptomatic before 21 July 2000. It was the work-related injury that precipitated in total the effects perceived by Dr Jackson. I therefore find formally that Mr Smith’s level of whole person impairment under s 24 of the Act is 10%.

Conclusion – Permanent Impairment

36. The problem is, of course, that I have found that s 24(2)(c) of the Act is not satisfied (see [28] above). This means that Mr Smith does not qualify at this time for a permanent impairment compensation payment.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS – NORMAL WEEKLY EARNINGS

(A) Should Mr Smith’s NWE contain an allowance for overtime?

37.     The tribunal finds that Mr Smith’s NWE should include an allowance for overtime and finds that the NWE applied by Telstra did do this.

38. Section 8 of the Act provides for calculation of NWE by, firstly, working out a NWE based on an employee’s rate of pay per hour for the average number of hours worked in each week by the employee during the relevant period (s 8(1)). To this is added certain allowances payable to the employee each week in the relevant period. Certain types of overtime are dealt with in s 8(2) of the Act. To the NWE figure derived from s 8(1) is added a figure worked out by multiplying the average number of hours of required and regular overtime worked in each week by the employee in the relevant period by the employee’s average overtime rate of pay in the relevant period.

39. Section 9(1) of the Act determines the relevant period at first blush to be the latest period of two weeks before the injury. The injury here occurred on 21 July 2000. The relevant period would therefore be 7 – 20 July 2000. However, the tribunal learned that Telstra uses the period of 12 weeks prior to the injury as the relevant period. This is permissible under s 8(5) of the Act.

(B) If the answer to (a) is yes, is the overtime accounted for by reference to s 8(1) or s 8(2) or both?

40. I find that Mr Smith’s overtime is to be taken into account in applying s 8(1) of the Act but not s 8(2) of the Act. As s 8(2) makes clear, it is only overtime that an employee was required to work, and then on a regular basis, that is taken into consideration in s 8(2) of the Act.

41.     The evidence on Mr Smith’s working of overtime, and whether he was “required” to work overtime, was as follows.  Mr Smith told the tribunal that his working overtime was consistent.  He was required out of hours where cables had been cut and to see to line clearances.  He was on call when at home.  At the time of the accident in July 2000 he regularly did 15 - 20 hours a week overtime.  He said he was “first on the recall list”..  That means that he was the first person called if someone was needed.  He lives in the Canberra southern suburbs.  He said that overtime was not offered only to people in particular geographic teams.  It seems that during normal hours Telstra employees worked in teams attached to a particular geographic area.  After hours, however, an employee called to do overtime could be sent anywhere in Canberra.  The overtime is offered by SMS text message sent to all employees.  Those interested phone in.  Mr Smith has done no overtime since the date of injury and none has been offered to him.  Overtime, he said, is not given to those on compensation.  He still receives the SMS messages but if he responds his response is not acted on.

42.     Mr Fabio Tosti, an area service manager in Telstra, gave evidence.  He is responsible for a group who do installations and repair faults in telephone services in the Canberra geographical area.  The group is called the Canberra area services group.  Within that group there are different teams.  Five of eight teams fix faults and install new services.  Mr Tosti referred to these as “fix and fit teams”..  The other three take care of the network or managed sites such as Parliament House.  The five fix and fit teams are split into geographic sections.  Mr Tosti was aware of Mr Smith and that he was working in the Canberra south fix and fit team when injured in 2000.  He now works in the “network and quick wins team”, which is not split into geographic zones. 

43.     Mr Tosti also provided an affidavit (ex R5).  In it he made the following points:

·     In assessing NWE in the first instance Telstra takes account of the employee’s hours worked in the 12 weeks prior to injury.

·     After the initial NWE calculation the NWE is reviewed on occasion to adjust for pay rises, overtime changes, etc. 

·     To the best of Mr Tosti’s knowledge Mr Smith’s overtime hours in the NWE formulae are based on the number of hours overtime worked by the members of Mr Smith’s original team (Canberra south) performing similar work to Mr Smith’s pre-injury work.  Those hours are totalled and averaged by dividing the total by the number of people in that team performing similar work to that once done by Mr Smith and who made themselves available for overtime work in a 12-week period. 

·     Overtime is offered on a fluctuating basis from one week to another.  More is offered in periods where bushfires or excessive weather have caused faults. 

·     Telstra Service Operations, Canberra Area Service Group does not have compulsory overtime.  Overtime is voluntary.  Telstra does not have unlimited hours of overtime. 

·     Overtime is offered after about 3.00 pm in the afternoon if there are still outstanding jobs to be done by sending a SMS message to all employees on their mobile phones and inviting expressions of interest.  An employee’s expression of interest may be declined because too many have expressed interest, because the respondent is not appropriately skilled for the job, or for occupational health and safety reasons (ie an employee may work excessive hours in total if his or her offer is accepted, although, said Mr Tosti, this does not happen much). 

·     Overtime offered by Mr Tosti’s group has generally declined over the years.  Between 4 August 1999 and 19 July 2000 (50 weeks) a total of 3,429 hours of overtime was worked.  Between 26 September 2001 and 11 September 2002 (50 weeks) a total of 2,628.5 hours was worked.

Mr Smith’s representatives had provided data (ex A9) on overtime worked by others they regard as comparable to Mr Smith as he was before his injury.  Mr Tosti in ex R5 commented on this material:

·     Messrs C Peisley, G Munro, J Ganino and G Gilbert are in different teams from Mr Smith’s Canberra south team.  Their work is similar to that done by Mr Smith pre-injury.

·     The pay periods for these four employees as presented by Mr Smith are not consecutive and appear to provide an “extremely selective” picture of what Mr Smith may have been earning were he fully fit to undertake normal duties. 

44.     In his oral evidence Mr Tosti explained the importance of Messrs Peisley, Munro, Ganino and Gilbert being in teams other than the Canberra south team.  In considering the expressions of interest in overtime consideration is given to respondents’ geographical teams.  If a number of respondents express interest Telstra prefers to assign the work to an employee already in the team serving the geographical area where the job or jobs are outstanding.  Sometimes not many employees respond.  An employee may be assigned a job in a district not serviced by the employee’s work team. 

45.     For Saturday work expressions of interest are sought on the prior Wednesday.  There are usually a great many expressions of interest for Saturdays.  Saturday work is allocated on a team basis.  That is, an employee selected will find that his or her work is in the geographical area served by his or her team.  The Saturday work is passed around because of its popularity.  One employee will not usually be selected to work on consecutive Saturdays. 

46.     In cross-examination Mr Tosti agreed that the Telstra enterprise agreement provides that an employee “may” be required to work overtime.  However, he explained that no one is ever compelled to work overtime.  In cross-examination it was also established that there is a high probability that a respondent expressing interest in overtime on a weekday evening will be selected to do overtime. 

47.     In Re Zarb and Comcare (1997) 48 ALD 718 the tribunal considered the question of allowing for overtime in NWE assessments. The tribunal (Deputy President Burns) engaged in considerable analysis of the correct approach to interpreting s 8(1) and (2) of the Act. He came to the following conclusions:

(a)Where the employee has worked overtime in the relevant period a literal interpretation of s 8(1) requires that it be included as part of the factor “NH”. Thus the overtime becomes part of the average number of hours worked each week by the employee in the relevant period (Re Zarb (above) at page 726, paragraph 30).

(b)Where the employee has worked overtime in the relevant period and that overtime was required and regular then s 8(2) of the Act applies to add in an allowance for that overtime (Re Zarb (above) at page 727, paragraph 30).

(c)Where the employee’s overtime was required and regular, item (b) in this list of principles means that the employee’s overtime is double-counted and he or she has a windfall (Re Zarb (above) at page 726, paragraph 27). However, s 8(10) of the Act then applies to limit the NWE assessment to a rate that the employee would receive if he or she had not been injured (Re Zarb (above) at pages 726-727, paragraphs 29-30).

(d)The word “required” means “the imposition, by the employer in an authoritative fashion, of an obligation upon the employee to work overtime on a regular basis” (Re Zarb (above) at page 727, paragraph 34).  The employee’s representative in Re Zarb (above) had argued that “required” should be taken to mean “needed” such that “if the employer had a ‘need’ for overtime to be done. Then that could be considered to be required overtime, even if the employer did not mind which employee did the overtime (page 727, paragraph 33).  Deputy President Burns rejected this argument saying that such an interpretation would make it arguable that any overtime at all would be “required” rendering that word superfluous (page 727, paragraph 34).  In Re Zarb (above) the applicant had acknowledged that he worked overtime (as an intensive care nurse) of his own free will and volition.  There was no compulsion or obligation involved and he made himself available to work overtime at short notice.  He could refuse to work overtime.  It was held that he was not “required” to work overtime.

(e)“Regular” overtime connotes a “uniform or symmetrical pattern over time which can be described as usual or customary”..  One looks at the overtime worked during the relevant period to determine whether the pattern is uniform or symmetrical (Re Zarb (above) at page 728, paragraph 42). 

48.     As I see it the applicant’s argument here is that he did regular overtime in the relevant period at a rate of 15-20 hours a week.  Further, it was suggested that the overtime was “required” because the certified agreement says that Telstra may require an employee to work overtime.  It was then suggested that the amount of overtime worked has not declined since 2000.  

49.     On the basis of the tribunal’s decision in Re Brede and Department of Defence (1994) 33 ALD 669, 673 (paragraph 18), in ongoing reviews of NWE reference should be made to a class of employees currently employed by Telstra who are members of the class of which Mr Smith was a member at the time of his injury, not to the likely personal progress Mr Smith might have made himself in his employment if he had not been injured.

50. The logic would be that Mr Smith’s NWE should be calculated on the basis of (probably) 15-20 hours (or more) of required and regular overtime utilising s 8(1) and (2) to double-count the overtime, only then applying s 8(10) if necessary to bring his NWE into line with what he would be earning had he not been injured.

51.     The applicant relied on a schedule of comparable employees (ex A9) to refute Mr Tosti’s evidence that Telstra has offered much less overtime since 2000 (as in [42] above).  The tribunal noted the following from ex A9:

·     Mr Peisley worked overtime as follows: from 5 to 18 June 2002 he completed 31.5 hours overtime; from 15 June to 2 July 2002 he completed 35 hours overtime; from 22 to 29 June 2002 he worked 32 hours overtime; from 4 to 17 July 2002 he completed 21.5 hours overtime; from 18 to 31 July 2002 he completed 19.5 hours overtime; from 1 to 14 August 2002 he completed 19.5 hours overtime; from 15 to 27 August 2002 he completed 15.5 hours overtime; from 18 to 25 January 2003 he completed 45.5 hours overtime.

·     Mr Munro worked overtime as follows: from 23 to 30 June 2001 he worked 16.5 hours overtime; from 5 to 17 July 2001 he worked 27.5 hours overtime; from 7 to 13 August 2001 he worked 14.5 hours overtime; from 29 September to 10 October 2001 he worked 16.5 hours overtime; from 29 September to 10 October 2001 he worked 16.5 hours overtime; from 3 to 21 November 2001 he worked 37 hours overtime; from 22 November to 5 December 2001 he worked 16 hours overtime; from 6 to 13 December 2001 he worked 13.5 hours overtime; from 18 to 26 January 2002 he worked 18.5 hours overtime; from 31 January to 5 February 2002 he worked 42.5 hours overtime; from 14 to 23 February 20902 he worked 37 hours overtime; from 16 to 23 March 2002 he worked 25.5 hours overtime; from 20 to 28 January 2003 he completed 59.5 hours overtime;.

·     Mr Flood worked overtime as follows: from 21 to 28 January 2003 he completed 28 hours overtime.

·     Mr Ganino worked overtime as follows: from 18 to 25 January 2003 he completed 45.5 hours overtime.

·     Mr G J Gilbert worked overtime as follows: from 15 to 30 December 1999 he worked 12.5 hours overtime; from 6 to 14 January 2000 he worked 8 hours overtime; from 4 to 11 March 2000 he worked 17 hours overtime; from 25 May to 6 June 2000 he worked 24 hours overtime; from 8 to 21 June 2000 he worked 21.5 hours overtime; from 22 June to 5 July 2000 he worked 15 hours overtime; from 6 to 19 July 2000 he worked 36.5 hours overtime; from 14 to 19 October 2000 he worked 15 hours overtime; from 31 August to 9 September 2000 he worked 19 hours overtime; from 18 to 30 August 2000 he worked 33.5 hours overtime; from 26 to 28 October 2000 he worked 12 hours overtime; from 24 November to 3 December 2000 he worked 16.5 hours overtime; from 9 to 22 May 2002 he worked 22.5 hours overtime; from 4 to 6 April 2002 he worked 11 hours overtime; from 23 to 27 March 2002 he worked 12 hours overtime; from 1 to 9 March 2002 he worked 11 hours overtime; from 14 to 27 February 2002 he worked 28.5 hours overtime and from 9 to 11 February 2002 he worked 12 hours overtime.

·     The applicant worked overtime as follows: from 30 March to 20 April 2000 he completed 80.5 hours overtime.

·     Records for one or more unidentified Telstra employees in ex A9 indicated overtime of 29 hours between 31 January and 13 February 2002; overtime of 51.5 hours between 14 and 27 February 2002; overtime of 20.5 hours between 28 February and 13 March 2002; overtime of 24.5 hours between 14 and 27 March 2002; overtime of 24.5 hours between 28 March and 10 April 2002; overtime of 20 hours between 11 and 24 April 2002; overtime of 12 hours between 25 April and 8 May 2002; overtime of 11.5 hours between 9 and 22 May 2002; overtime of 34 hours between 23 May and 5 June 2002; overtime of 24.5 hours between 6 and 19 June 2002; overtime of 29.5 hours between 20 June and 3 July 2002 and overtime of 14 hours between 1 and 14 August 2002.

52.     I would say the following regarding this evidence:

·     The point was made for the respondent that Messrs Peisley, Munro, Ganino and Gilbert now work in teams other than Canberra south, Mr Smith’s old team ([42] above). 

·     There was no evidence directly from Mr Tosti, or from the respondent more generally, to explain why the rate of overtime taken up by staff in today’s Canberra south team would be less than that utilised by persons in the other teams.

·     The above evidence is selective in that it relates to only a limited number of current Telstra employees and it is probable that these were identified as likely high users of overtime when the applicant sought records of other Telstra employees to support his case.  However it is Mr Smith’s uncontested evidence that he always worked some 15-20 hours weekly overtime on average when he had access to overtime.  It can be assumed that he would today work significant overtime if permitted and able to do so.

·     Mr Tosti’s evidence ([42] above) that the general level of overtime in his area of responsibility in Telstra declined markedly in 2001-2002 was not disaggregated to distinguish between teams under his supervision.  It may be that the demands from Canberra north, for example, have recently been greater than Canberra south because of developments in Gunghalin, etc as compared to better established areas, however there is nothing on this before the tribunal. 

·     The evidence in ex A9 indicated that, for those doing fix and fit work generally in Canberra who had utilised overtime to a considerable extent, overtime of 15 to 20 hours a week was still available on a recurrent basis in 2002 and 2003. 

·     T152 indicates that Telstra was as at 22 January 2002 allowing Mr Smith the benefit of 7.35 hours a week of overtime in its NWE calculations.  Mr Tosti thought this represented the average of overtime paid to employees in the Canberra south team over 12 weeks prior to the determination. 

53.     As I read the Brede decision (above) the emphasis is on the amount payable to a class of employees, not on identifying what Mr Smith himself might be receiving if fully fit and in his old position.  Consideration of the facts in Brede (above) might be helpful. Lieut Col Brede served in the Australian Army from 1947 until 1970. He suffered from a condition attracting compensation under the predecessor legislation to the current Act. In 1988 a determination was made under the Act reducing the employee’s compensation. This was because he had reached 65 years of age. Generally an employee loses rights to incapacity payments when turning 65 years of age (s 23(1), (1A) of the Act). However, for those who turn 65 and who were receiving incapacity compensation before the commencement day of the Act, special arrangements for ongoing compensation payments are made in ss 131 and 134 of the Act. Lieut Col Brede objected to the way in which the Department of Defence had gone about reducing his compensation under ss 131 and 134. In applying these provisions it was necessary to consider Lieut Col Brede’s NWE under s 8 of the Act. Deputy President McMahon said in his reasons for decision:

“(18) I was informed that conditions of service do not permit the engagement of officers in the army beyond the age of 63. It was submitted on behalf of the respondent that if subs  (9) were to be applied to the applicant's circumstances, then there would be no indexation because he is aged 69. His normal weekly earnings (it was said) would be nil and there would accordingly be no denominator to apply to any indexing formula. In my view, this is not the way in which the subsection should be interpreted. Variations in normal weekly earnings are made by reference to amounts payable to a class of employees, not to an individual employee. Thus in the applicant's case, one should look now to the minimum amount per week payable to lieutenant colonels in the Australian regular army to determine the extent by which the normal weekly earnings of the applicant are to be increased or reduced, as a determinant of his compensation component. The question to be asked is not what would be Mr Brede's normal weekly earnings if (theoretically) he was still a serving officer, but rather what are the normal weekly earnings of a person who now holds the position the applicant held at the time of his retirement.”

54.     I found it difficult to discern evidence relating to a class of employees in the applicant’s evidence in ex A9.  The evidence tended to be piecemeal in relation to the overall class of fix and fit employees and was not comprehensive in relation to the employees in the sample.  I appreciate that the task of the employee and the employee’s representatives in a matter such as this is difficult.  It is the employer who has such information as exists.  There are privacy issues relating to the data concerning particular individuals other than the applicant employee.  These are, however, dealt with under Information Privacy Principle 11(1)(d) of the Privacy Act 1988[4].  If disclosure of personal information about an individual is required or authorised by or under law then there is no interference with privacy. Disclosure pursuant to a tribunal summons issued under s 40(1A) of the Administrative Appeals Tribunal Act 1975[5] would amount to a disclosure required or authorised by or under law for the purposes of s 14 of the Privacy Act.

[4] However, this is probably a distraction from the real question. Mr Smith’s average number of hours for the purposes of s 8(1) of the Act should be determined by reference to the class of employees of which he was a part until he changed his employment status. It would be data relating to the average hours worked weekly by those now in the class that once accommodated Mr Smith that should be considered.

56. The class in this instance could be the Canberra south fix and fit team or the fix and fit teams generally. As matters stand in this case the firmest evidence before the tribunal is that from Mr Tosti relating to the overtime position in general in the ACT since 1999. That evidence suggests a significantly reduced set of opportunities for regular overtime hours compared to when Mr Smith was able to work overtime. Within that overall picture Telstra has assessed Mr Smith’s average hours by reference to the Canberra south team average. This seems unexceptionable to me as an attempted implementation of the Brede (above) principle..  The alternative, assessing Mr Smith on the basis of an ACT-wide average may produce a higher average.  If so, Mr Smith may wish to consider seeking to have that average applied in his case.  I express no view on that issue at this time, however, as I have no evidentiary basis for making such a comparative assessment.

57. As regards reducing Mr Smith’s assessed average overtime hours in line with a general reduction in overtime worked, this is justified on the basis of s 8(10) of the Act, as interpreted by the Federal Court in Bortolazzo v Comcare (1997) 75 FCR 385. In that case a shift allowance payable when the employee was injured ceased later to be payable to the class then doing work of the type formerly done by the employee. It was held that the employee's NWE was to be reduced in order to ensure that the employee was not receiving more than would have been the case had the injury not occurred.

(C) If the answer to (a) is yes, has the NWE been correctly calculated

58. The answer to (a) was not yes, but I note that Mr Kelly (Telstra’s representative) advised the tribunal during the hearing that the overtime calculation that prompted Mr Smith’s appeal appears to have been wrongly calculated. The “NH” factor (s 8(1) of the Act) in the calculation under review has not allowed for inclusion of the Canberra south team’s average overtime hours as Deputy President Burns said it must do in the Brede case (above).  Telstra will be required to rectify this error.

59.     I have therefore found, in relation to Mr Smith’s NWE that:

(a)Section 8(2) of the Act is inapplicable to the assessment of Mr Smith’s NWE as Telstra overtime is not required and regular in the sense clarified in the Brede case (above).

(b)Telstra is justified in calculating the average hours per week figure in s 8(1) of the Act in Mr Smith’s case as the average for fix and fit team employees in Canberra south.

(c)Telstra is to recalculate Mr Smith’s NWE under s 8(1) of the Act including an allowance for overtime in the figure it uses for the factor “NH” in the s 8(1) formula.

(D) If the answer to (a) is no, Does s 8(10) of the Act apply to reduce the level of NWE?

60.     This has already been discussed in [57] above.

DECISION

61.     The decision under review in application A2002/34 is affirmed.  The applicant is entitled to no costs associated with this application.

62. The decision under review in application A2002/35 is varied to the extent that the applicant’s normal weekly earnings are to be assessed in accordance with only s 8(1) of the Safety, Rehabilitation and Compensation Act 1988 but with the factor “NH” recalculated to include an allowance for overtime in the average number of hours worked in each week.  The matter is remitted to the respondent for it to do the recalculation.  The applicant qualifies for costs associated with this application.

SCHEDULE 1 – LEGISLATION

The following are the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988:

Permanent Impairment

An employee must have suffered an injury, as defined in s 4(1) of the Act, if he or she is to receive any compensation under the Act. An injury is defined in s 4(1) as:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

An aggravation may also be present where the conditions set out in s 7(6) of the Act are met:

(6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less.

A failure to disclose a pre-existing disease may result in the disease not being compensable even if it has been aggravated by employment.

Provisions relating to diseases

7. (1) …

…

(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

Compensation for injuries

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.

In application A2002/34 the applicant is seeking a lump sum payment of compensation in respect of permanent impairment. An impairment is defined in s 4(1) of the Act:

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;

An impairment is permanent in accordance with the definition of “permanent” in s 4(1) where it is:

likely to continue indefinitely;

For an employee to succeed in a claim for an alleged permanent impairment the requirements in s 24 of the Act must be satisfied:

Compensation for injuries resulting in permanent impairment

24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7)       Subject to section 25, if:

(a)       the employee has a permanent impairment other than a hearing loss; and

(b)       Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

(7A)     Subject to section 25, if:

(a)       the employee has a permanent impairment that is a hearing loss; and

(b)       Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;

an amount of compensation is not payable to the employee under this section.

…

(9) For the purposes of this section, the maximum amount is $80,000.

Section 4(8) of the Act makes abundantly clear that the “injury” referred to in s 24(1) must be one for which the respondent is liable under s 14(1) of the Act:

(8) A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.

Normal Weekly Earnings

In application A2002/35 the applicant is seeking a higher figure for his normal weekly earnings based on an allowance for working overtime.

Interpretation

4. (1) In this Act, unless the contrary intention appears:

…

normal weekly earnings means the normal weekly earnings of an employee calculated under section 8;

normal weekly hours, in relation to an employee, means the average number of hours (including hours of overtime) worked in each week by the employee in his or her employment during the relevant period as calculated for the purpose of applying the formula in subsection 8 (1) or (2);

…

Normal weekly earnings

8. (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.

…

(4) Where, because of the shortness of the relevant period, it is impracticable to calculate the normal weekly earnings of an employee before an injury under subsection (1) or (2), the normal weekly earnings of the employee before the date of injury shall be taken to be the normal weekly earnings before that date of another employee performing comparable work, being normal weekly earnings from employment by the Commonwealth or a licensed corporation and calculated under subsection (1) or (2), as the case requires.

(5) Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.

…

(10) If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:

(a) where the employee continues to be employed by the Commonwealth or a licensed corporation-the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or

(b) where the employee has ceased to be employed by the Commonwealth or a licensed corporation-whichever is the greater of the following amounts:

(i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;

(ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;

the amount so calculated shall be reduced by the amount of theexcess.

Relevant period

9. (1) For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.

…

Compensation for injuries resulting in incapacity

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

(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

NWE - AE

where:

AE is the greater of the following amounts:

(a)       the amount per week (if any) that the employee is able to earn in suitable employment;

(b)       the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee’s normal weekly earnings.

…

SCHEDULE 2 – EXHIBITS

The tribunal admitted as evidence and marked as exhibits the following documents:

Exhibit TD1 – Section 37 Statement and attached documents (exhibits T1 – T154) provided by the respondent.

Exhibit A1 – Applicant’s statement of facts and contentions, 27 June 2002.

Exhibit A2 – Outline of evidence of Patricia Margaret Smith, 26 March 2003.

Exhibit A3 – Report (3 pages) by Dr R Rivett, medical consultant in musculoskeletal injuries, 16 March 2002.

Exhibit A4 – Report (1 page) by Dr Rivett, 16 March 2002.

Exhibit A5 – Statement by Robert Eric Smith, 28 November 2002.

Exhibit A6 – Statement by Tom Proudfoot, 6 March 2003.

Exhibit A7 – Report by Ms J Denham, occupational therapist, undated.

Exhibit A8 – Applicant’s reply to respondent’s statement of facts and contentions, 4 March 2003.

Exhibit A9 – Schedule of comparable employees, 4 March 2003.

Exhibit A10 – Report by Dr A T Wright, general practitioner, 13 December 2002.

Exhibit A11 – Report by Dr W M Wearne, orthopaedic surgeon, 30 October 2002.

Exhibit A12 –Clinical notes of Dr M Yeung, general practitioner.

Exhibit A13 – Letter dated 26 September 2002 from Sparke Helmore to Dr R Jackson, orthopaedic surgeon.

Exhibit A14 – Telstra Enterprise Agreement, 1996.

Exhibit A15 – Report by Dr Wright, 12 December 2002.

Exhibit R1 – Respondent’s statement of facts and contentions, 20 March 2003.

Exhibit R2 – Report by Dr Jackson, 7 May 2002.

Exhibit R3 – Letter dated 19 June 2002 from Dr Yeung to Sparke Helmore.

Exhibit R4 – Normal weekly earnings calculation, 9 October 2001.

Exhibit R5 – Affidavit of Mr F Tosti, 21 March 2003.

Exhibit R6 – Report by Dr Jackson, 30 August 2002.

Exhibit R7 – Report by Dr Jackson, 15 October 2002.

Exhibit R8 – Letter dated 16 April 2003 from Sparke Helmore to Dr Yeung.

Exhibit R9 – Letter dated 28 May 2003 from Dr Yeung to Sparke Helmore.

Exhibit R10 – Clinical notes from Erindale Medical Centre.

Exhibit R11 – Report by Dr K N Chandran, neurosurgeon, 28 September 2000.

Exhibit R12 – Report by Dr Chandran, 10 August 2001.

Exhibit R13 – Report by Dr R R Tuck, neurologist, 21 November 2000.

Exhibit R14 – Letter dated 10 September 2000 from Kim Pettit, rehabilitation consultant, to Dr Zoughi, general practitioner.

Exhibit R15 – Respondent’s amended statement of facts and contentions, 18 March 2003.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .......................................................................................
  Associate

Dates of hearing  27 March and 23 July 2003
Date of decision  28 November 2003
Counsel for the applicant          Ms Jane Godtschalk
Solicitor for the applicant          Pamela Coward & Associates, Lawyers
Counsel for the respondent      Mr Brendan Kelly
Solicitor for the respondent      Sparke Helmore Solicitors