Talevski and K & S Freighters Pty Ltd (Compensation)
[2016] AATA 492
•13 July 2016
Talevski and K & S Freighters Pty Ltd (Compensation) [2016] AATA 492 (13 July 2016)
| Division | GENERAL DIVISION |
| File Number(s) | 2014/5463 |
| Re | Norman Talevski |
| APPLICANT | |
| And | K & S Freighters Pty Ltd |
| RESPONDENT |
DECISION
| Tribunal | Ms N Isenberg, Senior Member |
| Date | 13 July 2016 |
| Place | Sydney |
The decision under review is set aside and substituted with a decision that the Applicant was not offered suitable employment on or about 27 September 2011, and is therefore entitled to compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1998.
...........................[sgd].............................................
Ms N Isenberg, Senior Member
Catchwords
COMPENSATION – incapacity to work – whether offer of suitable employment made – return to work plan – whether unreasonable failure to take up offer of suitable employment – decision under review set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1998 ss 4(9), 19(4), 62 & 64
Cases
Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659
Fuad and Telstra Corporation Limited [2004] AATA 1182
Goodrickev Comcare [2011] FCA 694
Sollazzo and Comcare [2000] AATA 65
Sumner and Comcare [1998] AATA 1031
REASONS FOR DECISION
Ms N Isenberg, Senior Member
13 July 2016
The Applicant, Norman Talevski, seeks review of a reviewable decision dated 13 October 2014 which affirmed an earlier determination dated 5 August 2014, which found that the Applicant was offered suitable employment by the Respondent, K & S Freighters Pty Ltd (‘K&S’) from 27 September 2011 but failed to accept that offer.
Background
Following a decision by this Tribunal (differently constituted) that the Respondent was liable for injuries sustained by the Applicant to his right knee and to his left elbow and lower back (Re Talevski and K & S Freighters Pty Ltd [2014] AATA 334), the Applicant’s solicitors wrote to the Respondent with details of the Applicant’s treatment expenses, a request for approval for ongoing treatment, and asked the Respondent to confirm the Applicant’s Normal Weekly Earnings (‘NWE’). There does not appear to have been a response in relation to the treatment expenses and the request for approval for ongoing treatment, although payments were subsequently made in respect of the medical expenses.
However, apparently in response, the Respondent determined, on 5 August 2014, the Applicant’s entitlements to incapacity payments up to 27 September 2011 on which date, it said, the Applicant had been offered suitable employment, but he had failed to accept that offer. Nonetheless, the Respondent determined the Applicant’s payment of compensation pursuant to s 19(4)(b) of the Safety, Rehabilitation and Compensation Act 1998 (‘SRC Act’) up until 14 February 2012, and then ceased it completely.
JURISDICTIONAL ISSUE
On the first day of the hearing, after the Applicant’s evidence was well-advanced, the Respondent raised, for the first time, what it said was a jurisdictional issue in relation to s 19 entitlements having regard to the “claim” made by the Applicant pursuant to s 54 of the SRC Act and the reviewable decision; in particular, whether the Tribunal’s jurisdiction in relation to compensation under s 19 is confined, as the Respondent contended, to a consideration of relevant facts and circumstances for that period only during which the Applicant made "a claim’’, as defined in s 54(1),(2),(3) and (5) of the SRC Act. The Respondent made lengthy submissions and contended that the original decision addressed the ambit of the Applicant’s claim and that by reason of s 62, the reviewable decision was necessarily of similar scope and that the Tribunal’s jurisdiction is in turn limited by s 64 to the correctness of the reviewable decision.
The Respondent submitted, that by reason of the schedule of medical certificates provided by the Applicant, it should be inferred the decision-maker only contemplated entitlements to compensation in respect of the period covered by those certificates.
On 29 August 2014 the Applicant’s solicitors had sought a reconsideration of the original decision. That request, so far as is relevant, and as outlined by the Applicant, complained in relation to the original decision that:
·the Applicant was not offered suitable employment from 27 September 2011, and did not fail to accept an offer of suitable employment;
·the determination failed to take into account the right knee arthroscopy on 27 April 2012 [following which the Applicant was unable to work at all for a period];
·the determination failed to determine incapacity payments until the date of the determination (5 August 2014);
·the determination failed to deal with any entitlement to medical treatment expenses; and
·the determination provided no reasons, as required by s 61 of the SRC Act.
The reviewable decision noted in relation to the Applicant’s solicitor’s complaint that the scope of the original decision did not deal with entitlements up to 5 August 2014, that “Mr Talevski has been paid compensation payments pursuant to Section 19 of the SRC for the duration of the Medical Certificates or Certificates of Capacity that have been provided to K&S Freighters” [Emphasis added].
I observethat a similar issue arose in Fuad and Telstra Corporation Limited [2004] AATA 1182 where President Downes, after referring to Australian Postal Corporation v Oudyn[2003] FCA 318; (2003) 73 ALD 659, said at [5]:
It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.
The determination of 5 August 2014, specifically referred to the payment of compensation (under s 19), “for time off work”, but proceeded on the basis that the Applicant had been offered suitable employment and that he had failed to accept the offer. Notwithstanding having come to that view in the original decision (which was repeated in the decision under review), the reviewer also said that the Applicant’s entitlement to compensation payments under s 19 of the SRC Act were for the duration of the Medical Certificates which had been provided, although these appear to have extended to October 2012 in any event. Having come to the view that from late September 2011 when the Applicant was said to have been offered suitable employment that he had failed to accept, that position affected the compensation the Respondent considered was payable to the Applicant under s 19 of the SRC Act; no matter what further certificates the Applicant might have provided, the Respondent would have made no difference, because the Respondent had come to the view that the Applicant’s entitlement to compensation had ceased because it was of the view he had failed to accept the suitable employment which he had been offered.
I consider that both the original decision maker and the reviewer clearly had before them the issue of incapacity payments until 5 August 2014, the date of the determination.
Consequently, I find that the Tribunal has jurisdiction to determine the Applicant’s entitlement under s 19 of the SRC Act at least up to 5 August 2014.
SUBSTANTIVE ISSUES
Did the Applicant suffer incapacity for work as a result of his compensable conditions?
Was the Applicant offered “suitable employment” within the meaning of that term, as defined in s 4 of the SRC Act, on or about 27 September 2011?
If so, did the Applicant fail to accept that offer, or, having accepted it, fail to engage or continue to engage in that employment?
CONSIDERATION
Did the Applicant suffer incapacity for work?
The Applicant will be properly regarded as having had an “incapacity for work” since the accidents in July 2011, if he had an incapacity to engage in his pre-injury employment with the Respondent: s 4(9)(b) of the SRC Act.
On 1 August 2011 Dr Ong, the Applicant’s treating GP, certified the Applicant as fit for suitable duties from 1 August 2011 to 5 August 2011, working 8 hours per day, 5 days per week but with sitting tolerances up to 10 minutes, travelling up to half an hour, walking up to 5 minutes and standing up to 5 minutes. On 5 August 2011 he certified the Applicant as fit for suitable duties with restrictions of working 8 hours per day, 5 days a week with tolerances of half an hour sitting, travelling, walking and standing. It was clear that the Applicant was not considered fit for his pre-injury employment and that the Respondent accepted that to be the case because, from about that time, it commenced considering his return to work (‘RTW’), but with modified duties.
On 28 September 2011, Dr Keeley, orthopaedic surgeon, diagnosed the Applicant as having a meniscal tear in his right knee, in respect of which surgery was not conducted by Dr Molnar until 27 April 2012.
On 1 March 2012, the Applicant was reviewed by Dr Jones, orthopaedic surgeon, in relation to his left elbow. Further treatment for a significant partial tear of the common extensor origin was required. Dr Jones also suggested at that time that there may be a role for surgical intervention in relation to the elbow if more conservative treatment was unsuccessful.
In the light of the evidence of Dr Keeley, Dr Molnar and Dr Jones, I accept that the Applicant had an incapacity for work after 14 February 2012, the date of the reviewable decision in respect of the Applicant’s right knee, and for some time after the surgery on 27 April 2012.
As to after that time, there is dispute between the parties about the Applicant’s capacity for work.
The Applicant gave evidence about how he regards his progress since the surgery carried out by Dr Molnar on 27 April 2012. In particular, he said that his lower back issues were still there “as strong as they were before”, less the previous sciatic problems. He also said that the left arm and elbow and tendon problem was still there.
I do not regard his recent diagnosis of Type II diabetes, which he also mentioned, to be relevant to the question of his incapacity.
In terms of the kind of work he could manage, the Applicant said he felt that he could be a courier doing deliveries, although he said he would not be able to earn what he used to earn when he was able-bodied and fit and healthy.
In a medico-legal report dated 29 September 2011 Dr McGill, Consultant Rheumatologist, as relevant to work capacity noted:
… [the Applicant] does have significant osteoarthritis in the right knee and it would be appropriate for him to undertake a graduated return to normal work. He would be fit to return to full hours immediately. Initially he should not be required to perform work involving squatting, substantial stair climbing or lifting in excess of 10kg. A plan to gradually withdraw the restrictions and to allow him to return to his full normal duties over an eight week period would then be appropriate.
Even Dr Lose, a specialist injury management consultant, who examined the Applicant on behalf of the Respondent, did not suggest that the Applicant was fully fit for his pre-injury employment, which included delivery of gas bottles, simply that it was “possible” that he could carry out that work (and some other driving duties) with some restrictions. Dr Lose agreed that if the Applicant was telling the truth about his level of disability, then he would have a substantial disability, but could still perhaps have performed office-based duties, where he could change positions regularly. However, it remains that the Applicant was unfit for his pre-injury employment, and consequently had an incapacity for work.
In his report dated 24 July 2015 and in his evidence, Dr Gliksman expressed the view that “it would be wholly unsafe for the Applicant to attempt to engage in work at the same level in which he was engaged as a truck driver immediately before the injury”. In cross-examination, it was not suggested to Dr Gliksman that the Applicant could carry out his pre-injury duties, but rather the kinds of suitable duties the Respondent said were available. He thought clerical duties would be reasonable where there was the capacity to vary posture, seating, standing, limited in weight to one to two kilograms, although in his report he had written that five kilograms was the limit of the Applicant’s lifting capacity. Dr Gliksman thought the Applicant could have undertaken those duties from August/September 2011. The Respondent submitted that I should conclude that the Applicant was fit for the types of duties offered to him and/or to the extent that he had limitations as to those duties, to such duties as could and would have been offered to him had he co-operated with attempts made to return him to suitable duties. This, in my view, does not address the consideration of his incapacity for work.
In the light of the above, and the Applicant’s own evidence, I conclude that the Applicant has an incapacity for work under s 4(9) of the SRC Act.
Was the Applicant offered “suitable employment” as defined in s 4 of the SRC Act, on or about 27 September 2011?
Central to the case are the events of August/September 2011, during which time Ms Callaghan was the Respondent’s newly-appointed RTW co-ordinator.
Early consideration of the Applicant’s RTW
In August 2011 Ms Callaghan confirmed with Dr Ong that the Applicant was capable of undertaking RTW ‘Home Packs’ that contain safety training material for reading and completion at home. That plan was to operate from 8 to 19 August 2011. Home Pack duties, I was informed, are extremely light paper-based sedentary clerical work typically offered to newly incapacitated workers to maintain connection with work, and usually performed for an hour or two per day. It is unknown what Dr Ong may have understood by ‘Home Pack’ duties, as they are described in the Suitable Duties checklist only as “reading safe operating procedures”.
There was a discussion between the Applicant and Ms Callaghan on 3 August 2011 wherein Ms Callaghan claimed she told the Applicant about the suitable duties plan: duties that would be office based, such as faxing, shredding, scanning, entering information into a database which, Ms Callaghan said is a very simple procedure, which can be very easily taught. The Applicant denied that this had occurred. He also vigorously denied any suggestion that he had ever told Ms Callaghan that he would not accept light clerical duties at Enfield because "he was employed as a driver and did not do indoor work" or that he "was employed at Mascot, not Enfield or Fairfield". The Applicant’s evidence was that the trip from his home to Enfield was 40 minutes in peak hour.
Ms Callaghan reported to colleagues on 10 August 2011 that she had spoken to the Applicant about his “suitable duties”, which were due to start the following day, but did not specify what had been discussed.
The Applicant attended the Respondent’s Enfield office on 11 August 2011, and signed the Suitable Duties Plan, which I note, referred to ‘home-based [duties] only’.
On 19 August 2011 Dr Ong again certified the Applicant as fit for suitable duties working 8 hours per day, 5 days a week with restrictions of lifting up to 1kg - 2kg, sitting up to half an hour, travelling up to half an hour, walking up to half an hour, standing up to half an hour and keying up to half an hour. On 2 September 2011 he certified the Applicant for suitable duties working 8 hours per day, 5 days a week with restrictions of lifting up to 1kg - 2kg, sitting up to half an hour, travelling up to half an hour, walking up to half an hour and standing up to half an hour. On 16 September 2011 he certified the Applicant as fit for suitable duties for 8 hours per day, 5 days a week, with restrictions of lifting up to 1kg - 2kg, sitting up to half an hour, travelling up to half an hour, walking up to half an hour and standing up to half an hour. The Applicant’s fitness to work was to be reviewed on 14 October 2011.
Development of the Suitable Duties Plan in September 2011
Presumably as a result of Dr Ong’s advice for some weeks that the Applicant could work full-time, albeit with modified duties, on 20 September 2011 Ms Callaghan developed another Suitable Duties Plan (‘SD Plan’) for the Applicant. It contained no particulars about the job to be undertaken, other than to identify tasks such as photocopying, filing, on-line training and general data entry, which it seems, were even less detailed than what she said she had told him on 3 August 2011.
In seeking to identify a position for the Applicant, on 20 September 2011, Ms Callaghan emailed some senior staff, and provided information with respect to daily breaks which the Applicant would need and a list of duties she believed that the Applicant was capable of performing.
In response, on 23 September 2011 Scott Fletcher informed Ms Callaghan that he could only find 4 hours per day of suitable duties for the Applicant. As a result, a SD Plan dated 23 September 2011 was drafted.
On 26 September 2011 Ms Callaghan emailed Gayle Stewart, the Respondent’s rehabilitation manager, indicating that the Applicant’s hours were to be increased to 8 hours per day by the next review for two reasons: she did not want Dr Ong to decrease the hours after the next review and by then, the proposed supervisor, Mr Fletcher or another manager of the Respondent, may have identified additional duties for the Applicant. Ms Callaghan advised she would be calling the Applicant that day to advise of a return to suitable duties the following Monday and also faxing details to Dr Ong.
On 23 September 2011 Ms Callaghan faxed Dr Ong two versions of the September SD Plan with respect to the Applicant – one in relation to his right knee and the other for his left side soft tissue injury. She noted that:
Norman’s duties will be sedentary in nature with routine breaks in tasks ever (sic) 30 minutes allowing Norman to stretch and change position. We will initially be starting Norman on 4 hours a day for the first week and increasing his hours over the next 3 weeks until he reaches 8 hours per day.
I observe that this does not take into account all the restrictions Dr Ong had most recently identified.
According to the September SD Plan, the Applicant would be expected return to full-time work on 26 September 2011, but with modified duties, viz: Desk job with no prolonged sitting; walking, sitting, travelling and standing up to and not to exceed 30 minutes at a time. The September SD Plan did not identify a particular position, or a particular location, but only the range of duties, which were said to be both available and suitable for the Applicant. The plan also provided for a graduated increase over three weeks from 4 hours per day to 8 hours per day, without specifying that the increase is to be dependent upon medical evaluation at the end of each week.
There appears to have been no prior discussion about the September SD Plan with either the Applicant or Dr Ong, although Ms Callaghan said she had previously, on 3 August 2011, discussed suitable duties with the Applicant, which he denied. The only telephone conversation that Ms Callaghan had had with Dr Ong before issuing the plan was on 30 August 2011, and her last telephone conversation with the Applicant before issuing the plan was on 31 August 2011.
Communication with the Applicant about the September SD Plan
It was clear from Ms Callaghan’s evidence that a copy of the September SD Plan was not provided to the Applicant prior to the day on which he was required to commence employment; instead she left a copy at the Enfield office for the Applicant to collect, presumably when he attended for work there.
Ms Callaghan telephoned the Applicant on Friday, 23 September 2011 to discuss his RTW. The Applicant’s evidence was that there was a missed call with no message left, but he saw that the call was from Ms Callaghan. Ms Callaghan, on the other hand, thought she had left a message. The Applicant said that he returned the call late that afternoon, but a man answered, and told him that Ms Callaghan had left for the day and that he should phone again on Monday.
On Monday, 26 September 2011, it appears there were two telephone conversations between Ms Callaghan and the Applicant, each of whom has a slightly different recollection as to who called who first that day but ultimately, it is of no consequence. It is clear that there was a short telephone conversation between them in the early afternoon, possibly around 2.00pm. His evidence was that she did not explain any SD Plans and what was involved. He said she did not set out any duties to be undertaken, nor the graduated hours, nor that he would have time for treatment, nor that a copy of the plan was available at Enfield.
Both the Applicant and Ms Callaghan agreed the conversation was heated. In the email Ms Callaghan sent to Ms Stewart on 26 September 2011, referring to that conversation, she recorded that she had called him about the suitable duties and that Dr Ong thought he was fit for suitable duties 8 hours a day, 5 days a week, which is not entirely an accurate account of Dr Ong’s position. She also wrote that she told the Applicant he would be started on 4 hours a day for the first week and increased to 8 hours over the following 3 weeks until the Applicant was reviewed again on 14 October 2011. She noted the conversation did not go well as the Applicant was not interested in coming to work. In a further email from Ms Callaghan to Ms Stewart dated 26 September 2011 Ms Callaghan indicated that she forgot to mention that she had advised the Applicant that if he did not wish to participate then he should write a letter outlining his reasons for non-participation, and that it may affect his compensation if he refused to participate.
As to what the Applicant understood, in practical terms what the job he would be starting on the Monday entailed, the Applicant said he had no idea, because, he said, Ms Callaghan just told him to go to the office and they would tell him what he would be doing. He denied he knew what the job was likely to entail because of the previous discussions in early August. He also denied that Ms Callaghan had tried to explain that Dr Ong had certified him fit for suitable duties in clerical or light work for 8 hours per day, 5 days a week, and that the Respondent was going to provide him with work that was consistent with his then limitations, from 26 September 2011 on an ongoing basis, until he was able to reach full 8 hour per day, 5 day a week capacity over a 3 week period.
The Applicant was adamant that he had no idea what his duties would be; only that he was told that if he did not attend, his pay would be stopped.
The Applicant said he told Ms Callaghan that he took his job as a driver with the Respondent at the Mascot Depot, not at Enfield or Fairfield, as was proposed. He denied saying he would not travel. He also said he was not an office worker and he could not undertake his treatment at work. Ms Callaghan told him the September SD Plan started with 4 hours and increased slowly which would allow time for medical treatment.
The Applicant asked Ms Callaghan why he had not seen the plan. Ms Callaghan told him it was prepared on the latest medical certificate from Dr Ong to whom a copy had been sent, and that the plan was being discussed with the Applicant now. The Applicant said he was going to see Dr Ong and Ms Callaghan suspected the Applicant would not attend work. Ms Callaghan noted she tried to explain that suitable duties were used not as a long term plan and only whilst the Applicant was injured and unfit for his normal pre-injury duties. Ms Callaghan was left with the impression that the Applicant had no intention of returning to work.
The Applicant’s version of the conversation was to the effect that Ms Callaghan told him he was expected to have returned to work that day.
In the course of the conversation, the Applicant told Ms Callaghan that he believed Dr Ong assumed he was still carrying out ‘Home Pack’ duties, consistently with the plan that had been devised in August. Ms Callaghan said that she explained that the certificate she had from Dr Ong certified the Applicant fit for suitable duties, and told him that if he had any problem with what Dr Ong was saying then he should clear it with Dr Ong. In response to that, the Applicant told her that he was going to see Dr Ong.
When the Applicant went to see Dr Ong as he foreshadowed, he discovered the doctor had gone on holidays for two weeks. The Applicant wrote to Ms Callaghan on 27 September 2011 that he had been unable to talk to his doctor and believed he was unable to return to work. The Applicant noted it was his “belief that with all the confusion of all the claim forms and certificates that now since 16 September 2011 [they] have to be redone as separate instances that an error has occurred somewhere”.
Ms Callaghan said in her evidence that the RTW plan would be sorted out when Dr Ong returned in two weeks, and in the meantime she did not insist that the Applicant should comply with the plan until he had seen Dr Ong.
Ms Callaghan was new to the job at the time she was dealing with the Applicant, having only commenced with the Respondent in April 2011, and having not previously worked in the compensation field. She agreed in cross-examination, that nowadays in creating a RTW plan, it was important to actively liaise with the employee in settling the plan.
Subsequent consultation with Dr Ong about a RTW plan
Medical certificates from Dr Ong dated 14 October - 28 October 2011 continued to certify the Applicant as fit for suitable duties, albeit with restrictions.
Not until 25 October 2011 did Ms Callaghan send to Dr Ong a list of “suitable duties”, divided into local/linehaul drivers and warehouse/operations tasks, for him to review and mark such of those duties as he considered suitable for the Applicant. In her covering letter she wrote:
We are trying to assess Norman’s capability to return to work, as per your most recent medical certificate which advises Norman is fit to work 8 hours per day/5 days per week with restrictions of lifting to 1-2 kg, walking, sitting, standing and traveling 30 minutes, with an additional restriction of keying: not computer.
It is clear from the covering letter, that, as far as the Respondent was concerned, the range of potential suitable duties was still unsettled.
Dr Ong returned the “suitable duties” document, as requested, with only the two return to work Home Packs ticked. Ms Callaghan agreed that the ticking of the two boxes meant that that Dr Ong was, as at 25 October 2011, certifying the Applicant fit for Home Pack duties only. Even as late as 1 November 2011, Dr Ong was certifying the Applicant fit only for Home Pack duties, unless transport was provided for him. This, in my view, tended to suggest that from Dr Ong’s perspective, the Applicant’s suitable duties were limited to the Home Pack tasks, albeit for 8 hours per day, 5 days a week with specified restrictions. This supported the Applicant’s contention that Dr Ong understood him to be required to do Home Packs only. Having regard to the diagnosis on 28 September 2011 of meniscal tear, the restrictions as to travel appear entirely reasonable.
The Respondent contended that I should adversely consider the material from Dr Ong because he was not called to give evidence. I agree that it may have been of assistance to have heard from Dr Ong to explain what appear to be inconsistencies in the various medical certificates he was providing to the Respondent in respect of the Applicant’s work capacity. For example, while the Respondent contended that I should conclude that Dr Ong thought the Applicant was fit for 8 hours per day of light clerical duties in August/September and remained so until the certificates ceased to be issued in February 2012, this submission fails to take into account Dr Ong’s reference, even as late as November 2011, to the Home Pack duties. However I am not prepared to assume that anything that Dr Ong might have been capable of saying in relation to those matters could not have assisted the Applicant's case. It was open to the Respondent to require his attendance to explain the anomalies.
Further, Ms Callaghan agreed that she was not aware of some of the other medical investigations undertaken by the Applicant in late 2011, but conceded that, if she had been fully aware that the Applicant had had an MRI scan which showed a meniscal tear in the knee, and that the orthopaedic surgeon was recommending surgery, that would have informed whether or not she would have persisted with a RTW program building up to 8 hours a day. In any event, it appears that Ms Callaghan did not persist with the RTW plan from November 2011.
The Respondent contended that the facts suggest that the clerical duties on offer were sufficiently particularised for the Applicant to assess them and would have been further particularised or tailored to suit had the Respondent received any co-operation at all from the Applicant. The Respondent referred me to the observations of Flick J in Goodricke v Comcare [2011] FCA 694 at [32]:
“…in determining what is "suitable employment" the legislation directs attention to specified criteria. Those criteria, including the reference to "the employee's age, experience, training, language and other skills", direct attention to identifying that employment which an employee is able to perform and for which he is qualified. It would be an odd construction of the phrase "suitable employment" if an injured employee could shun employment which he was otherwise able and qualified to undertake so that he could henceforth engage in only that work which he unilaterally considered provided personal security, satisfaction or gratification. An injured employee may so choose; but s 19 will continue to operate in the manner intended by the legislature”
The Respondent contended, in the alternative, that had the Applicant co-operated with the Respondent, a work plan could have been developed to accommodate his limitations and that this was something I should take into account: per s 19(4)(g) SRC Act. If he had been more co-operative, it was submitted, he would have earned income not less than his NWE in suitably-adapted employment, such that his entitlement to compensation ought be nil. In the circumstances of the case I do not consider this to be a valid argument. Such a contention, it seems to me, anticipates some proposal, perhaps by either party, which is to be negotiated. There can be no proper assertion that the Applicant failed to ‘co-operate’ when there was not yet a proposal; development of a plan, in my view, was not sufficiently advanced or articulated for there to be matters to be discussed.
CONCLUSION
I agree with the Respondent’s characterisation of the Applicant’s evidence that he was a poor witness who was largely unresponsive to questions put to him; I found him overly discursive in his answers, despite my directions, and on repeated occasions, it was necessary to remind him to answer only that question which was put to him. He gave his evidence in dogmatic fashion, resistant to any suggestion of an alternative history, even when given several opportunities to reflect upon the accuracy of his answers.
Be that as it may, in my view it is the management of the Applicant by the Respondent that is more problematic. I accept that Ms Callaghan and others found him difficult to deal with, especially in circumstances where Ms Callaghan, who had the primary responsibility of facilitating his RTW, was new to the position.
As to what properly constitutes a RTW programme, I was referred to Sumner and Comcare [1998] AATA 1031 at [63] that:
“...for an “offer of suitable employment” to provide a basis for reducing or ceasing a person’s payments of compensation, the offer must be clearly identifiable and must refer to a particular position so that it is possible to ascertain “the amount per week that the employee would be earning in that employment”, and the duties that would be performed” (Tribunal’s emphasis)
It was the Respondent's case that, having attended on August 2011 at Enfield and knowing full well the duties available there when Ms Callaghan contacted him in September 2011, the Applicant was at all relevant times entirely resistant to pursuing with his GP what duties he might be fit to perform and on what terms.
Even if I were to accept that some tasks had been outlined to the Applicant in early August 2011, it was clear that the Applicant was not provided with details of the proposed RTW plan before he was expected to take up those duties, and such information as may have been provided, did not come anywhere near that anticipated in Sumner.
Further, even if Ms Callaghan had explained features of the role in the conversation of 26 September 2011, it seemed that even the location, beyond initial attendance had not been identified. Even if I were to prefer Ms Callaghan’s evidence about telling the Applicant about the general nature of the duties, that still does not, in my view, come up to the degree of detail required about the job that was proposed. Even amongst the Respondent’s papers reproduced in the T-documents, there was nothing to detail the role that was being contemplated beyond those general duties.
In coming to that view, I observe that even by 25 October 2011, the Respondent still did not have a clear idea about what role was being considered. It was clear from Ms Callaghan’s correspondence with Dr Ong dated 25 October 2011 that the Respondent was still trying to assess the Applicant’s capability to return to work. She attached a long list of 66 individual tasks for Dr Ong to consider and, if appropriate, tick. Even at that time there was no proposed duty statement or indication of what role was in mind.
Also, there appears to have been no prior discussion about the September SD Plan with Dr Ong. I accept the Applicant’s submission that it is reasonable for a patient to be guided by his medical practitioner as to an injury or illness condition and fitness to work: Sollazzo and Comcare [2000] AATA 65. It was therefore entirely reasonable that the Applicant should attempt to see Dr Ong after he was contacted by Ms Callaghan requiring his RTW on 26 September 2011.
Even if an offer of a RTW plan had been made, and approved by Dr Ong, the MRI scan dated 26 September 2011 – the same day he was due to start work - showed the presence of a meniscal tear in the right knee, and surgery was recommended on 28 September 2011 by the Applicant’s treating orthopaedic surgeon, Dr Keeley. In those circumstances, he is unlikely, in any event, to have been able to take up such duties as may have been offered. That surgery took place on 27 April 2012, and the Applicant was then clearly unfit for employment. No further determination of fitness to undertake a rehabilitation program was made by the Respondent, nor was any further offer of “suitable employment” formulated and put to the Applicant, before the issue of whether the Applicant suffered from an “injury” was determined by the Tribunal’s decision in May 2014.
Much of the cross-examination of the Applicant was directed at trying to establish that he would have rejected any job offered to him that was not exactly what he wanted, and that he “was utterly uncooperative with any discussions with the Respondent as to what he might be able to do and what he might not”. This was a premature proposition. Notwithstanding the Respondent’s suspicions about the Applicant’s anticipated lack of co-operation, it remained incumbent on the Respondent to formulate a plan for his RTW taking into account the limitations identified by his GP, identifying the role, and communicating that to the Applicant. The Applicant’s level of co-operation with the Respondent about returning to work has never been adequately tested because there was no “offer of suitable employment”.
I therefore find the Applicant has had an incapacity for work under s 4(9) and has been entitled to compensation payments under s 19 of the SRC Act. Further, I find that, on or about 27 September 2011 the Applicant was not offered suitable employment. Having come to that view there was no need to consider if the Applicant had refused to accept an offer of suitable employment.
The decision under review is set aside and substituted with a decision that the Applicant was not offered suitable employment on or about 27 September 2011, and is therefore entitled to compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1998.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ..........................[sgd].....................................
Associate
Dated 13 July 2016
| Date(s) of hearing | 28-29 September 2015 and 2-3 March 2016 |
| Final submissions received | 29 April 2016 |
| Counsel for the Applicant | Mr L Grey |
| Solicitors for the Applicant | Colin Daley Quinn Solicitors |
| Counsel for the Respondent | Mr N Snell |
| Solicitors for the Respondent | Clarke Legal |
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