Tanya Chalkley and Australian Postal Corporation
[2013] AATA 164
[2013] AATA 164
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3464
Re
Tanya Chalkley
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr Hadia Haikal-Mukhtar, MemberDate 22 March 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – whether suitable employment available to applicant – whether applicant failed to engage in suitable employment – whether applicant continues to be incapacitated for injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 19, 19(4), 19(4)(c)
CASES
Grimsley v Telstra Corporation [2010] AATA 106
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr Hadia Haikal-Mukhtar, Member
In 2001, Tanya Chalkley was riding the motorbike on which she delivered mail, when the peak of her helmet was caught by a power lead running from the back of a workman’s truck to the frame of a house under construction. She suffered a whiplash injury to her neck and her employer, Australia Post, accepted liability for neck and shoulder muscle strain. Various rehabilitation measures and return to work plans were instituted over the years with Ms Chalkley eventually working five hours for five days per week. In June 2008, Australia Post determined that Ms Chalkley was no longer incapacitated for work as a result of her injury. It decided to cease the payments under section 19 of the Safety, Rehabilitation and Compensation Act 1988 which had increased her income to the amount she would have earned if she had been working full time hours in her position with Australia Post.
In October 2008, Ms Chalkley began working in a different position in Australia Post. The new position was part time – five hours for five days per week.
In the meantime Ms Chalkley had sought a review of Australia Post’s determination to cease payments under section 19 of the Act and ultimately lodged an application for review with this Tribunal. In July 2009 the Tribunal set aside the decision under review and remitted it to Australia Post with the direction that Ms Chalkley remained entitled to compensation under section 19. Australia Post appealed the Tribunal’s decision to the Federal Court. In April 2010 the Federal Court dismissed the appeal.
In June 2011 Australia Post determined to make no further payments under section 19 beyond 13 October 2008, the date on which Ms Chalkley took up her new part time position. After this determination was affirmed in July 2011, Ms Chalkley sought review of that decision by the Tribunal.
Ms Chalkley contends that she remains entitled to payments under section 19 to bring her pay up to the full time equivalent. Australia Post contends that Ms Chalkley relinquished her full time position and thereby failed to engage in the suitable employment available to her. Australia Post also contends that Ms Chalkley is no longer incapacitated for work as a result of her injury in 2001.
The issues for us to consider are:
(a)Did Ms Chalkley have suitable employment available to her and fail to continue to engage in that employment?
(b)Does Ms Chalkley continue to be incapacitated for work as a result of her injury in 2001?
Before we consider these issues, it is necessary to deal with a matter that was raised by Counsel for Ms Chalkley. First, Counsel submitted that the Tribunal had no jurisdiction to hear the application because the Tribunal and then the Federal Court had already made a decision about her section 19 payments in 2008 and 2010, respectively, and the current application amounted to a “re-running” of the case. Counsel submitted that there was no new evidence available on which the Tribunal could make a different decision to the one already made and the only decision that could be reviewed by the Tribunal was a decision concerning her relinquishment of her full time position.
In reply, Australia Post submitted that the reviewable decision concerns Ms Chalkley’s entitlement to payments under section 19 and the decision maker’s reasons for the reviewable decision do not bind the scope of the Tribunal’s review of the section 19 decision. It also pointed to new medical evidence and to other evidence of Ms Chalkley’s condition post 2008.
Counsel for Ms Chalkley requested, in his final submissions, made about three months after evidence had closed, that the matter be set down for a further day so that he may make submissions about what he referred to as “Grimsley issue”. He later referred us to the decision of the Tribunal in Grimsley v Telstra Corporation [2010] AATA 106. Following final submissions we refused Counsel’s application for a further day’s hearing but instead provided an opportunity to make written submissions on the question. Ms Chalkley’s solicitor advised that no further submissions would be forthcoming.
We are not bound by the reasons or the range of considerations canvassed by the original decision maker. We stand in the shoes of that decision maker and may bring to our decision all of the considerations available to the original decision maker and any relevant considerations that arise in addition. Our review is not circumscribed in the way Ms Chalkley’s Counsel suggested.
As to the so called Grimsley issue, this application is distinguishable from the application the subject of the Tribunal’s decision in Grimsley. Grimsley concerned a consent decision in the Tribunal to the effect that the Applicant had ceased to suffer the effects of her compensable injury. The Tribunal said:
In reality, what Ms Grimsley seeks to do is to go back on the resolution of the matter she consented to in July 2009.
The Tribunal found no new evidence on the central question of causation of Ms Grimsley’s ongoing symptoms. Here, both parties have tendered new medical evidence, albeit limited, and evidence drawn from Ms Chalkley in cross examination illuminates a different angle on the question of continuing causation.
We consider that it is open to us to examine the decision under review, unfettered by the original decision maker’s reasons and, if appropriate, given the evidence before us, to include consideration of the continuing effect of Ms Chalkley’s compensable injury.
DID MS CHALKLEY HAVE SUITABLE EMPLOYMENT AVAILABLE TO HER AND FAIL TO CONTINUE TO ENGAGE IN IT?
Section 19(4) of the Act provides:
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self‑employment)—the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
There was no dispute that Ms Chalkley had been working in a full time position even though only for five hours per day, five days per week and that by so limiting her hours to accommodate her injury the position amounted to suitable employment. It remained a full time position with its own position number in the organisation.
Ms Chalkley’s evidence was contained in a statement of 13 February 2012 and in oral evidence to the Tribunal. In her statement Ms Chalkley said she had been off on sick leave and recreational leave following a fall from a ladder at home in 2007. When her leave was soon to run out she contacted her manager and he advised her that a Payroll officer was about to go on extended leave and the position, a part time position of five hours per day for five days per week in Transport in Warrabrook, was available for Ms Chalkley to act in for a limited period. At the end of the three months she was offered a similar part time position on a permanent basis doing similar payroll work in Hamilton. Ms Chalkley said that “she had no other alternative position or duties to perform that were within (her) medical restrictions”. She said she accepted the position by e-mail, stating that she did so because of her incapacity. She was asked to send a different e-mail that simply accepted the offer of the position and made no reference to her injury. She said:
Without any other job prospects I accepted this part-time employment.
Later, in oral evidence, Ms Chalkley said she was also offered work delivering mail on foot from a Gateshead outstation for five hours per day, five days per week. Australia Post said this was offered as her substantive full time position, modified with suitable duties and hours to accommodate her compensable injury. She agreed that job was well within her restrictions. She said she was told that either job was available to her. She said she had been doing the mail delivery job before she went off on leave and, although it was doable, “it was a struggle”. She said she decided she preferred the less physical job. She agreed that she knew the payroll job she was offered was part time and that the job she was relinquishing, her job at Gateshead, was full time. She agreed she understood the distinction between the two.
She said she was told she would have to send an e-mail relinquishing her full time job because the payroll job was only part time. She said she did send an e-mail and was asked to send another that did not mention her injury as a reason for taking the part time position. She said she was “railroaded” into sending an e-mail that made no mention of her injury.
Mr Colin Hindle, Area Manager for the Newcastle Delivery Network, gave evidence of a meeting between Ms Chalkley, Mr Adam Lowe, a Human Resources officer, and himself in which it was explained to Ms Chalkley, among other things, that if she left her permanent full time position to take a permanent part time position she would not be eligible for any make up pay. He said Mr Lowe made it clear to her that the move must be voluntary and would result in part time wages, whereas if she remained in her current permanent full time position she would maintain her compensation entitlements.
Mr Hindle, by reference to various documents, explained the process by which employees “own” positions until they are relinquished. He explained the need for Ms Chalkley’s relinquishment of the full time position “owned” by her to be voluntary and for there to be no possibility that it was the result of actions by the employer. He explained that the walking beat work at the Gateshead outpost was an incarnation of the full time position “owned” by her.
It was submitted for Ms Chalkley that there was no difference between the two jobs. It was also submitted that it was simply illogical for Ms Chalkley to consciously relinquish her full time job with its component of make up pay. It was suggested that, because of the ongoing review in the Tribunal of the decision in 2008 to cease make up payments, Ms Chalkley was, in effect, not receiving make up pay and was under the impression that there was no make up pay to be had. Her own evidence of understanding of the difference between the two positions belies this submission. She gave no evidence of confusion about her entitlements. It was agreed that, at the relevant time, she had ample access to the legal advisers who were representing her in her then current Tribunal application. On her own evidence she was able to do the work at the Gateshead outpost and it was within her medical restrictions. She made much of the fact that the work offered to her on her return to Gateshead was to be at an outstation. As to the submission that there was no difference between the two jobs, one important difference was that in her full time position Ms Chalkley could still be encouraged to do full time hours or to undertake rehabilitation to get her to full time hours; in the part time position that possibility could not arise.
Australia Post submitted that Ms Chalkley simply wished to ensure she would never be required to work full time hours. It noted that she had not made a claim for makeup pay since she ceased to be paid it.
Subsection 19(4)(c) appears to best reflect Ms Chalkley’s circumstances. She had an “offer” of suitable employment which she had accepted by doing that employment at reduced hours for some time. Much was made by Ms Chalkley’s Counsel of the absence of an offer in the sense of a new offer, but we consider the words of the section, and in particular the reference to “continue to engage” make it unnecessary for the offer to be a new offer. It suffices that the suitable work is simply made available and continued to be available. Her full time position on reduced hours continued to be available to her. The situation is muddied by the fact that Australia Post had ceased make up payments in June 2008, on the basis that her incapacity had ceased, four months before Ms Chalkley left her full time position, but she, through her legal representatives, challenged this and sought review by the Tribunal. Internal review was sought by her solicitors on 16 June 2008 and an application for review by the Tribunal was then made. Nevertheless she elected to leave that position and accept a part time position with legal advice at her disposal and with a clear understanding of the consequences.
DOES MS CHALKLEY CONTINUE TO BE INCAPACITATED FOR WORK AS A RESULT OF HER INJURY IN 2001?
The history of Ms Chalkley’s work at Australia Post since her injury in 2001 shows her rehabilitation to full time hours in 2002. She then worked full time hours on and off thereafter until 2006. By 2005 she was working her normal hours again, having made a number of previously short term successful attempts to do so. From 2006 a number of other events occurred. In February 2006 she developed a mass in her breast, treated successfully in April 2006. In May 2006 Ms Chalkley made the first mention to her general practitioner of troubles in her marriage. In January 2007 Ms Chalkley lodged a claim for compensation for “depression secondary to neck injury of 21.05.01”. By that time Ms Chalkley had reduced her hours of work to five hours per day for five hours per week, with a plan to upgrade again to full time hours. Then in October 2007 Ms Chalkley fell from a ladder at home and suffered a suspected fractured pelvis. As a result of persisting back symptoms, Ms Chalkley went off work on leave. Clinical notes over the following months show a concentration on her back symptoms.
On return to work in May 2008, Ms Chalkley initially drove vans at the Warrabrook Depot and then commenced the short term payroll work, filling in for another employee on leave. She was to return to her substantive full time position at Gateshead later in the year with restrictions to accommodate her. As outlined above, during this period she was offered the part time position that she ultimately accepted.
In April 2009 Ms Chalkley had a melanoma removed along with lymph nodes in her groin. When she saw Dr McGill in June 2009, she reported that her neck was better than it had been previously and her main complaint was in relation to her right groin area following the removal of lymph nodes. By September 2009, Ms Chalkley was reporting to her general practitioner that her husband had been having an affair for four years and that divorce was a possibility. She described extreme distress over this development. She was referred to a psychologist who later reported that she presented with “distress with a breakdown of her marriage”. By April 2010 her general practitioner recorded that her husband had left the previous week.
In the past three years Ms Chalkley’s general practitioner has recorded no complaints about her neck, but a number of complaints about her back pain and, in February 2012, the presence of a cyst on her face, a further separation from her husband, difficulty with sleeping and a planned trip to South Africa, Tanzania, Uganda, Rwanda in October 2012.
The previous Tribunal concluded that Ms Chalkley was suffering from chronic pain syndrome, caused by her accident in 2001. This was largely predicated on the opinion of Dr Lovric, psychiatrist, in a report dated 8 February 2007, to the effect that the circumstance that gave rise to Ms Chalkley’s adjustment disorder with depressed mood was the 2001 incident and the chronic neck pain that was caused by it. Dr Lovric wrote:
I find no non work related factor which would have contributed to the development of her adjustment disorder.
Dr Lovric makes no mention in her report of marital difficulties or of the mass found in Ms Chalkley’s breast.
Clearly other factors have presented as well since Dr Lovric’s report in 2007. These include the fall from the ladder and the back pain that followed it, the treatment of the melanoma, and the disintegration of Ms Chalkley’s marriage.
The previous Tribunal also noted the opinion of Dr McGill that, while the pain experienced by Ms Chalkley was due to her underlying degenerative condition, rather than her motorcycle accident, there was “an emotional overlay” contributing to her pain. The Tribunal also noted that Dr Maxwell considered there was “an abnormal reaction to the injury”.
In this application, Dr McGill, in his report of 25 May 2012, prepared after he further examined Ms Chalkley, said:
The incident [in 2001] did put in train a pattern of symptoms and behaviour but she appears to have largely extracted herself from that pattern of behaviour (which I think was maladaptive but sustained and possibly encourage [sic] by medical “treatment”.
In oral evidence, Dr McGill confirmed this opinion and restated his previous opinion that, while Ms Chalkley suffered some degeneration of her cervical spine, it was mild and unlikely to produce the symptoms she complained of. He said that it is unlikely, given the list of adverse events suffered by Ms Chalkley over the years, and given the absence of physical indications of persisting effect from the 2001 incident, that the incident and the injury continue to determine her psychological state. In fact he considered that it no longer did so and quoted her as saying, on the subject of her neck condition, “Happy to give it all away and just get on with it”. He said he took from this that she had put her neck problem in the past.
Dr Pierides, occupational physician, who had examined Ms Chalkley in 2003 and again in 2012, said, in his report of 5 March 2012, that he considered that “ …it is only 10 per cent likely that the 21 May 2001 incident is responsible for her current symptoms, and it is 90 per cent likely that her current symptoms are a result of age related degenerative change not only at C5-6 level but also in the facet joints generally.”
In oral evidence Dr Pierides said he considered it not surprising that she had returned to her full time hours by 2002. He said she would not have done that if the injury had caused some lasting effect.
We were encouraged about Ms Chalkley’s progress when we learned of her plan to travel to a number of African countries, including trekking to visit the gorillas in Tanzania. She acknowledged that her African trip would involve rough terrain in a vehicle and on foot. This indicated to us considerable improvement in her condition and in her perception of her condition.
Taking all of these matters into account, we do not consider that Ms Chalkley continues to be incapacitated for full time hours. The combination of more recent medical opinion, the emergence of information about additional non-work related stressors, the absence for three years of treatment of or complaint about her neck and her inclination towards adventurous and physically challenging travel all point towards a recovery of capacity to work full hours, at least where the pain syndrome relevant to her neck is concerned.
CONCLUSION
Even if we did not consider that the effect of the 2001 injury had ceased, we would apply section 19(4) to our assessment of the amount, if any, that should be paid to Ms Chalkley under section 19 of the Act. Ms Chalkley had suitable work available to her and she relinquished it. We consider that from the date she relinquished that suitable work, the amount that Australia Post was liable to pay to Ms Chalkley was an amount of normal weekly earnings after deduction of the amount she was able to earn in that suitable work. That leaves a balance of nil.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr H Haikal-Mukhtar. ......[Sgd]..................................................................
Associate
Dated 22 March 2013
Dates of hearing 20 and 21 September and 14 December 2012 Date final submissions received 31 January 2013 Counsel for the Applicant Mr D Richards Solicitors for the Applicant Slater & Gordon Lawyers Counsel for the Respondent Mr P Jones Solicitors for the Respondent Graham Jones Lawyers
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