TRACIE SKINN and AUSTRALIAN POSTAL CORPORATION - [2012] AATA 121

[2012] AATA 121

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2010/3482

Re

TRACIE SKINN

APPLICANT

And

AUSTRALIAN POSTAL CORPORATION

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop
Dr J Chaney, Member

Date 28 February 2012

Place Perth

The Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent has continued to be liable to pay compensation to the applicant for incapacity for work, in accordance with s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), from 20 November 2008 to the present date, and is presently so liable, on the basis that “the amount per week” that the applicant has been “able to earn in suitable employment”, within the meaning of that section, from 20 November 2008 is nil.
Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
..................[sgd].......................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – applicant sustained compensable injury in May 2008 – respondent paid compensation to applicant for incapacity for work until November 2008 – applicant performed return to work programs from June to October 2008 – applicant failed to perform return to work program in November 2008 – employment offered by respondent to applicant in return to work program in November 2008 not suitable employment – applicant’s failure to perform return to work program in November 2008 reasonable – applicant not able to earn in suitable employment from November 2008 – respondent liable to pay compensation to applicant for incapacity for work from November 2008 – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 14(1) and s 19(4)
CASES
Re Karhani and Linfox Australia Pty Ltd (2011) 55 AAR 333
Re Laloz and Comcare [1995] AATA 682
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member
28 February 2012
INTRODUCTION

Tracie Skinn (“the applicant”) was employed by the Australian Postal Corporation (“the respondent”) as a postal delivery officer.
On 15 May 2008 the applicant suffered an injury in the course of her employment by the respondent, and she made a claim for compensation, dated 19 May 2008, for “soft tissue damage to the left side of neck”. A “Workers’ Compensation FIRST Medical Certificate”, issued by Dr Roland Gaebler on 16 May 2008, described the diagnosis of the injury suffered by the applicant on 15 May 2008 as “left sided soft tissue injury of neck and soft tissue injury right hip”.
On 26 May 2008 the respondent accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant for “soft tissue injury neck and right hip” sustained on 15 May 2008. On 18 May 2010, however, the respondent made a determination under the SRC Act altering the description of the compensable injury sustained by the applicant on 15 May 2008 to “Aggravation of pre-existing degenerative change of the cervical spine”.
From 16 May 2008 the respondent made payments of compensation to the applicant, in respect of the abovementioned injury, pursuant to s 19 of the SRC Act. From 20 November 2008, however, no payments of compensation for incapacity for work were made by the respondent to the applicant and, on 19 July 2010, the respondent made a determination under s 19 of the SRC Act that the respondent was not liable to pay compensation for incapacity for work to the applicant with effect from 20 November 2008. That determination was affirmed by a “reviewable decision” made by the respondent under s 62 of the SRC Act on 5 August 2010.
On 16 August 2010 the applicant applied to the Tribunal for review of the reviewable decision of 5 August 2010.
THE EVIDENCE
The evidence before the Tribunal comprised:
·the “T Documents” (T1─T123, pp 1─197) lodged with the Tribunal by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act1975 (Cth);
·Exhibits A1─A12 tendered by the applicant;
·Exhibits R1─R6 tendered by the respondent;
·the oral evidence of the applicant and of the following witnesses:
− Mr Richard Vaughan, Mr Soni Narula, Dr Roland Gaebler, Mr Peter Watson, and Dr John Ker (who were called by the applicant); and
− Dr John Low, Dr Michael Bowles, Mr George Wong and Timothy Munro (who were called by the respondent).
THE APPLICANT’S EVIDENCE
The applicant tendered in evidence her witness statement, dated 25 November 2011, and she affirmed that its contents are true correct. The applicant’s witness statement (Exhibit A1) states as follows:
“1. I was born [in] August 1966.
2.I commenced employment at Australian Postal Corporation (Australia Post) in or about June or July 2007 and between February 2008 and November 2008 was employed as a Postal Delivery Officer on a full time basis.
3.My duties as a Postal Delivery Officer required me to attend the Australia Post depot and sort mail, pack the mail into packs which would fit into a motorcycle pouch, ready those packs of mail for delivery and to then deliver the mail to residential addresses.
4.My normal working day started at approximately 5.00 am and ended any time between 12.00 pm and 3.00 pm depending on the volume of the mail.
5.I loved my job and was able to perform it without any restrictions.
6.On the 15^th May 2008 in the course of my employment with Australia Post I was delivering mail by motorcycle to houses in Ellenbrook when the wheel of my motorcycle slipped and I fell from my motorcycle to the ground (‘the accident’).
7.That day I had started work at approximately 4.00 am as I had altered my roster to enable me to take my mother to an appointment after work.
8.I sorted the mail into packs and put it in the pouches of my motorcycle and left the depot at approximately 7.00 am.
9.I was responsible for delivering mail to the Woodlake Estate at Ellenbrook. The delivery run has approximately 900 delivery points or houses that mail is to be delivered to.
10.When I was approximately three quarters of the way through my delivery run I rode up a driveway at … Fringelilly Way, Ellenbrook and delivered the mail. As I turned the handlebars of my motorcycle and began to ride the motorcycle back down the driveway to the next delivery point the rear wheel of the motorcycle slipped, causing the bike to spin in a complete circle and I was thrown backwards and off the motorcycle.
11.I landed on the kerb. When I landed my left shoulder hit the kerb and the back of my head struck the road. The rest of my body was lying on the driveway.
12.I was wearing my motorcycle helmet at the time.
13.My work uniform consisted of ‘Hard Yakka’ pants, an Australia Post polo shirt with long sleeves, boots and fingerless gloves.
14.Other than my helmet, I was not wearing any padding or other protective equipment.
15.Immediately following the accident I had neck pain and a severe headache and pain to my forehead, particularly between my eyes. I would consider the pain to my head and neck to be approximately 7 out of 10 where 10 represents unbearable pain.
16.I also had pain to my left shoulder which I consider would be approximately 5 out of 10 where 10 represents unbearable pain.
17.I lay on the ground for a few moments before attempting to get back up. I was sore and I felt a bit stupid for having fallen.
18.When I got up I got back on my motorcycle and delivered mail to another 15-20 houses before ringing my team leader because I had an express letter which did not form part of my run and which needed to be delivered.
19.I rang my supervisor Tim O’Grady who advised me to bring the letter back to the depot and that he would ensure it was sent the next day.
20.I did not mention my accident at that time as I was more concerned about the express letter than having fallen from my motorcycle. I was also a bit embarrassed that I had fallen.
21.By the time I completed my run my pain had not increased.
22.I went straight home at the end of my run.
23.When I got home I took some panadol to alleviate the pain and then took my mother to her medical appointment.
24.I arrived home at approximately 3.30 pm and went straight to bed.
25.At approximately 4.30 pm I got up and by 7.00 pm the pain to my head, neck and left shoulder was unbearable.
26.I thought that if I lay down and rested the pain would get better. I went to lay down but found that I had to support my head due to the unbearable pain to my neck. It was a sharp, excruciating pain.
27.I took some more panadol and applied a heat pack to my neck before returning to bed.
28.That night I was unable to sleep due to the pain. At approximately 3.00 am I decided to try using the spa in the backyard to alleviate the pain.
29.At that time the pain to my neck was unbearable (ie 10 out of 10 where 10 represents unbearable pain) and the pain to my left shoulder was approximately 9 out of 10 where 10 represents unbearable pain.
30.That morning I drove my car into work as I was unable to put my motorcycle helmet on due to the pain to my head, neck and shoulder.
31.I only went to work because I had the express letter that needed delivering and I needed to report my accident.
32.I reported my accident to Damien who was the Second in Charge at the depot. I filled out an incident report and a claim form with Bill Newnham.
33.I was told that because I could not put my helmet on my head I was to sort the mail in the depot instead.
34.That day my neck pain continued to get worse.
35.I advised my supervisor and left work at approximately 8.00 am. I attended my general practitioner, Dr Gaebler at approximately 8.30 am.
36.Dr Gaebler advised me that he thought that I had a form of whiplash injury and that I would require one week off work initially and perhaps another two after that if I did not improve.
37.I was referred to a physiotherapist at Beechboro.
38.Australia Post subsequently accepted my claim for workers’ compensation and I returned to work on light mail sorting duties. These duties required me to lift my head and lower it on a repeated and regular basis which increased the pain to my neck. As a result I attempted to complete mail re-directions which involved me placing stickers on mail. I also sorted RAC magazines for delivery.
39.I carried out these duties for 6 months. I would work 4 hours a day, 5 days a week.
40.I was not coping. The pain to my neck was unbearable. The work required me to constantly look up and down and this was causing my neck to get worse.
41.My left shoulder was also becoming increasingly painful because I was constantly holding bundles of mail with my arm in one sustained position.
42.The pain to my neck and left shoulder was not improving, in fact it was worsening.
43.I continued to complain to my doctor and the doctors I attended at the request of Australia Post that my pain was increasing and I was not coping.
44.As a result, my personal life was also suffering.
45.I didn’t think there was much point in complaining to Australia Post that I was not coping. I was scared I would lose my job and I believed that my employment would be terminated because I could not do full duties.
46.I felt as though I was an outcast at work. I felt that Australia Post had too high an expectation of me getting back to work and that I was being pushed too quickly into returning to full duties.
47.I thought that if I told the doctors that I was not coping with these duties that (sic) they would inform Australia Post and have my return to work program altered.
48.In approximately October 2008 I was referred by Australia Post to Dr John Low. I advised Dr Low that I was not coping well with the hours and duties I was working and that my work duties aggravated the pain I was experiencing to my neck and left shoulder.
49.I also met with Tim Monroe (sic), the Australia Post rehabilitation officer on one occasion. He drew up a Return to Work Program that had me returning to work on increased hours.
50.I felt nobody was interested in listening to me when I was complaining that I was unable to cope at work.
51.As a result of my ongoing pain and inability to carry out even the lightest of duties without aggravating my injuries, I tendered my resignation from Australia Post in November 2008. I didn’t mention my injury in my resignation. I truly enjoyed my job prior to the accident and I wanted to thank Australia Post for the opportunity.
52.Between November 2008 and approximately April 2009 I did not see my doctor because I did not believe that anything could be done to fix me. I had already been prescribed analgesic and anti-inflammatory medications and I continued to take these. I also used heat packs and my spa to assist in reducing the pain. During this period I stayed at home and rested. I became a recluse.
53.By April 2009 I had been resting and using the medications and heat treatment without success. The pain to my neck and left shoulder remained the same.
54.I returned to Dr Gaebler who referred me to a pain specialist, Dr Cheah.
55.Between April 2009 and January 2010 I underwent various scans and tests and also underwent a nerve root sleeve injection to my neck. I continued to take the analgesic medications.
56.Unfortunately none of these treatments was successful in reducing the levels of pain and discomfort I was experiencing.
57.My neck had got so bad that I could barely move my head.
58.At home, I remained a recluse and rarely left the house other than to attend medical appointments. My social life was non-existent and my irritability and recluse-like nature caused friction between my partner and I.
59.I was, quite simply, unable to work.
60.Ultimately, in January 2010, I was referred to Mr Soni Narula, Neurosurgeon, who recommended that I undergo surgery to my neck. Australia Post declined to pay for my surgery at that time.
61.I was subsequently referred to Mr Peter Watson, Mr Richard Vaughan and Mr George Wong, Neurosurgeons for medico-legal assessment of my injuries. It is my understanding that all of the Neurosurgeons I attended recommended surgery except Mr Wong.
62.In early 2011 Australia Post finally agreed to fund my surgery.
63.I underwent surgery under Mr Narula on the 15^th May 2011.
64.Prior to the surgery I continued to experience unbearable pain to my neck and left shoulder and arm. I was unable to move my neck.
65.After the surgery the pain to my neck is almost gone. I would consider it to be a 3 out of 10 where 10 represents unbearable pain. After living with unbearable pain for so long I would describe this pain as fairly minimal.
66.I have now also regained the ability to move my neck, however I still experience increased pain if I look upwards or downwards for any longer than 5 minutes at a time.
67.Unfortunately the pain to my left shoulder was not ‘fixed’ by the surgery. I continue to experience near unbearable pain to my left shoulder and arm. I consider it to be a 9 out of 10 where 10 represents unbearable pain. My shoulder has remained this way since the day after my accident.
68.I still retain movement of my left arm and shoulder, it is just extremely painful to do so. Fortunately I am ambidextrous and as a result I am able to do a lot of things with my right arm.
69.As a result of my accident however I am unable to put my left arm behind my back. I experience significant difficulty when dressing. For example, when I put socks on I need to lift my foot up onto the opposite leg so that I do not have to reach downwards.
70.I also experience difficulty when toileting as the twisting movement aggravates my shoulder and neck pain. In addition, I must wash my hair with my right arm and hand because I cannot lift my left arm without pain.
71.I attempt to use humour to deflect from the fact that I live with constant pain however, psychologically I have become fragile and I now attend counselling on a regular basis and require anti-depressant medications. I have been reluctant to make a claim for these through Australia Post as I am still fighting to have my wages paid.
72.As a result of my accident sustained injuries I am unable to drive a manual car or ride a motorcycle. Prior to the accident I used to go trail bike riding every weekend and participate in the Variety WA motorcycle ride for charity.
73.Prior to the accident I would play indoor cricket 5 nights a week and play in a Superleague competition on Sundays.
74.I no longer visit my friends because we all used to be physically active and had a lot in common. I am no longer able to be physically active and I feel like an outcast. In addition my pain causes me to be much more irritable and I suffer from frequent mood swings.
75.Following my operation I am now able to lie on my back when sleeping however I cannot lie on my left or right sides as this puts additional pressure onto my left shoulder. I now take approximately 1-2 hours to get to sleep at night and am only able to sleep for 2 hours at a time.
76.Prior to the surgery I was unable to push a shopping trolley. I am now able to push a shopping trolley but only if it has a small load in it.
77.I am no longer able to iron clothes, hang clothes on the washing line, mow the lawn or use a whipper snipper. I cannot wash my car, maintain my car, maintain my house or my front yard.
78.I have now attended Mr Peter Campbell, Orthopaedic Surgeon in relation to my left shoulder pain and restrictions and he has now advised me that I will require surgery to my left shoulder as a result of my work accident.
79.I remain certified totally unfit for work.
80.I have not been paid any wages from Australia Post since I resigned in November 2008.”
In her oral evidence-in-chief the applicant said that, following her accident on 15 May 2008, she had three weeks off work, after which she returned to work as follows:
·from June to mid-August she worked two hours per day;
·she then took four weeks’ annual leave;
·she returned to work on 13 September and worked four hours per day.
She said that, when she was working two hours per day on sorting duties, she was in “a lot of pain” in her neck, left arm and shoulder, and that she reported this to her general practitioner, Dr Gaebler, and also to Dr Low and Damien, who was second-in-charge at the Delivery Centre, but nothing was done about it. Likewise, when she was working four hours per day, she was still in “a lot of pain” in the same areas of the body and she reported this to Dr Gaebler and to Dr Low. She said that Damien and Bill Newnham, the Manager of the Delivery Centre, told her that she was not sorting fast enough and was not “meeting the target”, but she could not do so because she was in “a lot of pain”.
She said that Dr Low said that she could work eight hours per day and in November 2008 Tim Munro, her rehabilitation case manager, asked her to return to full-time hours, but on the “light duties” she had been performing, including, sorting, re-directions, and registered mail. She said that there had been no prior discussion before she was asked to return to eight hours per day ─ “Damien just handed [her] a piece of paper”. She added that she knew that her neck, arm and shoulder were not feeling better and she could not see how they were going to get better if she was working eight hours per day, so she resigned on 17 November 2008.

She said that, since her resignation, she has not been offered any return to work program by the respondent; nor has the respondent offered to pay for any medical treatment, except for the surgery to her neck which she underwent in May 2011.
In cross-examination the applicant gave evidence to the following effect:
·she knew that Tim Munro, her rehabilitation case manager, was someone she could approach regarding work problems;
·in the period June-November 2008 she was provided with a number of Return to Work Programme documents which included the following request:
“ Please report any significant increase in symptoms to Rehab Case Manger (Tim Munro…) and Supervisor as soon as practicable”
but she “never read it” ─ she “never read any of the documents given to [her]”;
·Tim Munro telephoned her and informed her of Dr Low’s report and said that he would prepare a new Return to Work Programme incorporating full-time hours and that if she had any problems she should advise him, whereupon she “got angry with him” on the telephone;
·she was shown a copy of a fax from Tim Munro to Dr Gaebler, dated 14 July 2008, which states:
“ Please find the following Return to Work Programme for Tracie in line with your recent medical certificate.
I have spoken with Tracie today who advised she feels she has made an overall improvement of 85-90 percent since her injury and is managing well with her return to work. Given her reports of significant improvement to date I would appreciate your advice regarding an estimated time-frame for Tracie to graduate to full pre-injury hours.
…” (Exhibit R1)
and she said that she “would not have told him” that she had improved 85-90% because she had not, and she added that she does not know why he said that;
·Dr Gaebler always encouraged her to return to work, yet all the time she was telling him about her ongoing pain;
·she did not take issue with Dr Gaebler when he certified an increase in the hours she was fit to work from 4 hours per day to 6 hours per day from 31 October 2008 because she “assumed he knew better than me”;
·she never performed the eight hours per day Return to Work Programme which was due to commence on 5 November 2008;
·she did not see Dr Gee (a pain specialist to whom Dr Gaebler had referred her on 11 November 2008) because she did not have “much faith” in pain specialists;
·although she did not formally resign until 17 November 2008, she had decided “in early November” that she was going to resign;
·she was a motor bike enthusiast and what she liked most about her job at Australia Post was that she got to ride a motor bike for most of the duties;
·when she returned to work after her accident her duties did not involve any motor bike riding and, when she received her full-time Return to Work Programme commencing on 5 November 2008 which also did not include any duties involving motor bike riding, she realised that there was no immediate prospect of performing such duties, but she “hoped” that she would be able to do so “eventually”, and she wanted to return to work full time even if no motor bike riding was involved;
·Mr Narula, Neurosurgeon, successfully operated on her neck in May 2011 and she now has “almost no neck pain” and she can now participate in clerical work “as far as [her] neck is concerned”;
·before the operation she had neck pain radiating to the left shoulder, elbow and arm and “pins and needles” in the ring and little fingers of the left hand, but since the operation the “pins and needles” have resolved, as has the arm and elbow pain;
·although Mr Narula suggested in his report of 13 September 2011 that she could “return to work not involving lifting”, she does not believe that she is physically capable of performing all of the duties listed in the Return to Work Programme dated 5 November 2008.
THE EVIDENCE OF THE MEDICAL WITNESSES
Dr Roland Gaebler
Dr Gaebler is, and has at all material times been, the applicant’s treating general practitioner. He said that he had been treating her for about 25 years. He confirmed that he saw the applicant on 16 May 2008 in relation to her work accident of 15 May 2008 and that he issued a medical certificate on 16 May 2008, and has subsequently issued numerous progress medical certificates, in relation to the applicant’s fitness for work as a result of the injury she sustained in that accident.
Dr Gaebler said that his initial opinion was that the applicant had suffered a soft tissue injury which would probably take a long time to resolve but that it would eventually resolve.
Dr Gaebler confirmed that, in the period June-October 2008, he had issued medical certificates gradually increasing her work hours from two to four to six hours per day, and he explained that he believed that the “best outcome” both physically and psychologically, in such cases is to re-integrate the person back into the workforce by gradually increasing their working hours, provided that their symptoms are not exacerbated thereby.
Dr Gaebler confirmed that, throughout that period, the applicant continued to complain of pain, which caused him to arrange a CT scan because her symptoms were not settling as he would have expected.
Dr Gaebler said that he continued to see the applicant until 11 November 2008 but that he did not see her thereafter until 8 April 2009. He said that at that time her mental state was “a complicating feature”. He said that she was then very depressed because of her chronic pain and he prescribed anti-depressant medication (Zoloft). He said that he has continued to see the applicant since then and that she also came under the care of Mr Narula, Neurosurgeon, who performed surgery on her cervical spine.
In cross-examination Dr Gaebler confirmed that:
·on each occasion in the period June-November 2008 when he issued a medical certificate increasing her work hours, he was of the opinion that she was able to cope with the increase in work hours;
·he had been provided with the various Return to Work Programmes prepared by Mr Munro for the applicant in the period June-October 2008 and had been invited to agree or disagree with them, although he added that, because of the demands of his practice, his ability to peruse them in detail was limited.
As regards the Return to Work Programme which was scheduled to commence on 5 November 2008 and which involved a return to full-time hours, Dr Gaebler was referred to a fax from Tim Munro to him, dated 30 October 2008, which states as follows:
“ Please find the following proposed Return to Work Programme for Tracie, developed in line with recommendations from Dr John Low, Occupational Physician, advising Tracie has the capacity to undertake light duties for her full pre-injury hours. I have also enclosed the medical report prepared by Dr Low and copies of MRI and bone scans ordered by Dr Low, for your reference.
Should you not be in accordance with this Return to Work Programme please advise me prior to its intended start date (05/11/08) so that we can discuss your specific concerns.
Please do not hesitate to contact me should you have any queries or concerns regarding this programme or any other aspect of Tracie’s rehabilitation.”
Dr Gaebler said that he had reservations about that proposed program. He added that, if there were “major concerns”, the rehabilitation case manager would normally arrange a case conference but he did not recall that happening on this occasion.
Dr Gaebler also confirmed that on 31 October 2008 he issued a medical certificate increasing the applicant’s working hours from four hours per day to six hours per day, and on 3 November 2008 he issued a further medical certificate stating that the applicant was totally unfit for work on 3 and 4 November and that she was fit to work six hours per day from 5 November. He said that, although he did not respond to Mr Munro’s fax of 30 October 2008, he did not approve of the proposed Return to Work Programme because he thought that the applicant’s work capacity at that time was limited to six hours per day and that full-time hours would be “a stretch too far”. He confirmed that he next saw the applicant on 11 November 2008 when he issued a medical certificate stating that she was totally unfit for work from 3 to 11 November 2008 and that she was fit to work five hours per day from 12 November 2008. On that occasion he also gave her a referral to Dr Gee, a pain specialist. He did not see the applicant after that until 8 April 2009.
Mr Richard Vaughan
Mr Vaughan, Consultant Neurosurgeon, confirmed that, at the request of the applicant’s solicitors, he had clinically assessed the applicant on 7 December 2010 and he had prepared a report dated 8 December 2010 (Exhibit A2).
In his report Dr Vaughan, after setting out the applicant’s history and his findings on examination, answered questions asked of him by the applicant’s solicitors as follows:
‘“ a) The date you initially attended our client;
I saw Ms Skinn today, 7 December 2010.
b)The injuries and symptoms being suffered by our client at that time;
...
In summary, ongoing neck pain with associated left shoulder and ongoing pain in the left upper limb following a C6/7 distribution – with associated headaches and aggravation of any underlying migrainous condition.
The pain pattern reflected more a radiculopathic origin and a peripheral neuropathy ruled out.
c)The cause of our client’s injuries and symptoms;
In the absence of any other history available the cause was from the fall from her motorised bike when delivering letters ─ having recently having (sic) a new rear tyre fitted and the driveway at that time slippery. The bike had spun around, Ms Skinn being thrown off, losing her helmet and falling onto her cervical and head regions. Prior to that there had been no such symptomatology.
Whilst there had been no previous history there were later demonstrated degenerative changes which to that time were non-symptomatic but became so with the injury as described and without preceding history as put.
d)The treatment you would recommended for our client;
I would believe that Ms Skinn has been through a reasonable range of conservative management without improvement. There are degenerative changes at C5/6 and C6/7, apparently becoming symptomatic with the injury and given the changes seen I formed a view that she could be improved by surgery. I am not of the view that she will be cured by surgery nor am I of the view that surgery should include arthroplasty – an appropriate anterior decompression and then stabilisation by cage fusion, at C5/6 and C6/7 offering the better chance of improvement.
The anticipation is that she should have less arm symptoms and also lessened cervical pain – and with the propensity to improve enough to return to the workplace in the longer term.
e)The likely development of our client’s condition into the foreseeable future;
Without intervention and having discussed the issues with Ms Skinn I formed the view that she will slowly deteriorate.
If the surgery progresses without complication then there is a reasonable chance of improvement – certainly not a cure and being left with some symptomatology but I think in a better position than she is now and with rehabilitation the opportunity of being back to the workplace.
f)The likely treatment our client will require in the foreseeable future;
I think surgery as put – and with that the appropriate ultimate work hardening physiotherapy, weight loss, management of depression of anxiety and stresses, but the opportunity for improvement through the surgical process.
g)Our client’s ability to work, in detail, together with any limitations or restrictions you would impose upon the same, both as to the type of work our client can perform, and as to the hours our client is able to work.
Depending on how she responds to surgery I would expect her nevertheless to be improved and get back to either foster parenting and/or to at least lighter duties with Australia Post. Whether or not she would return to delivery services outside is perhaps debatable but that is possible.
It does appear to me that Ms Skinn wishes to be in the workforce and to achieve that would need to have more mobility and lessening pain, which I think in her case surgery would offer her; then ongoing therapies as put, particularly physical with some counselling to help her cope with various stresses that have occurred, and I think thereby the opportunity for improvement and a return to the workplace.
…”
In cross-examination Mr Vaughan said that he had no knowledge of the applicant’s cervical spine operation in May 2011. When informed of the outcome of that operation, he described it as a “good result” and agreed that he would expect that the applicant’s capacity to do day-to-day activities would correspondingly improve significantly. He said that he would expect “some re-entry into the workforce” and opined that she “could attend to clerical duties”.
Mr Soni Narula
Mr Narula, Neurosurgeon, first saw the applicant on 12 January 2010 following a referral by Dr Gaebler.
Mr Narula confirmed that he had provided a report, dated 26 July 2011, to the applicant’s solicitors as follows (Exhibit A5):
“ …
On 09.05.2011 I performed the hybrid procedure undertaking C5/6 and C6/7 microdiscectomy and rhizolysis. I undertook arthroplasty at C5/6 level using the M6C prosthesis. At the C6/7 level I undertook a fusion using the Nubik cage.
Ms Skinn’s post operative recovery was relatively slow and quite painful. She had excessive pain in her neck and difficulty in movement. This was not unexpected. She had significant distraction at both the levels requiring breaking down of previous uncovertebral osteophytes.
I saw her post operatively on 15.06.2011. She had improved. Her pain levels had reduced. She described her neck movements were better compared to before. Her arm pain had also settled down to a large degree. The hand numbness had improved. She noted numbness only at night along with the proximal upper limb pain to the elbow. She was continuing to experience symptoms at the top of her neck mainly to the left over the suprascapular area. She had started undertaking small chores around the house. She had modified her neck postures at home particularly when looking down. She had started undertaking minimal work with regard to making a patchwork quilt on an intermittent basis. She remained on Endone particularly at night.
On examination her wound had healed well. Her cervical spine movements had improved.
I prescribed further use of Endone. I suggested she use a spa. I also suggested that she not ride her motorbike/wear a helmet. I suggested that she look at increasing the small chores around the house undertaking simple activities such as participating in the kitchen without exerting.
I now reply to the matters raised in your letter.
…
c.Confirmation that our client has been and remains totally incapacitated for work post operatively.
Currently, your client remains totally incapacitated for work.
d.Length of time you believe it will take our client to recover from the surgery to enable her condition to be assessed.
I have asked her to come back for next review in three months time. Until then I have suggested she stay away from work.
e.Likely period of time it will take our client’s condition to stabilise to enable a return to work program.
Depending upon her symptomatology I will decide as to how best she look at a return to work at the next review.”
Mr Narula also confirmed that he had provided a report, dated 13 September 2011, to Dr Gaebler as follows (Exhibit A6):
“ I saw Tracie at follow up today. She is doing very well. She is now off her medications except Neurontin. She complains of some pain in the shoulder and supraclavicular region on flexion of the left upper limb. Her wound has healed well. Her x-rays are quite unremarkable and I am very satisfied with the position of the arthroplasty cage and the fusion device.
I have suggested she could look at a return to work not involving lifting.
I have also suggested she see Dr Peter Campbell with regard to her left shoulder.”
As regards the applicant’s present capacity for work, Mr Narula opined that, if she was required to move her neck often, “problems may arise” and he added:
“ on a repetitive basis, she is vulnerable”.
He further opined that clerical work, involving not much use of the neck, “should be pretty okay”.
In cross-examination Mr Narula:
·agreed that the applicant’s left shoulder condition appeared to be an orthopaedic condition rather than a neurological condition ─ hence the suggestion in his report of 13 September 2011 that the applicant see Dr Peter Campbell, an Orthopaedic Surgeon, regarding her left shoulder;
·agreed that it seemed reasonable for the applicant’s employer to prepare Return to Work Programmes gradually increasing her working hours;
·opined, as regards the applicant’s work capacity, that she should be able to perform such duties as customer service/counter work, labelling, sorting, answering telephone calls, provided that she is not doing “fixed work” or “working in fixed position” and she is able to take regular breaks and stretch.
In re-examination Mr Narula agreed that, by the time he first saw the applicant in January 2010, she had “gone through the hoops” of return to work programs and this process had ultimately not been successful.
Mr Peter Watson
Mr Watson, Neurosurgeon, said that he has seen the applicant twice ─ on 17 June 2010 and on 15 March 2011. He confirmed that he had prepared a report, dated 17 June 2010, following the applicant’s first attendance.
Mr Watson’s report (T110), which was addressed to the respondent, sets out the applicant’s history regarding her work accident of 15 May 2008 and her subsequent medical treatment, and answers questions asked of him by the respondent as follows:
“ …
3.Ms Skinn undoubtedly has sustained an injury to her neck on the 15 May 2008. She has had pre-existing degenerative changes as demonstrated on the MRI scan at C5/6 and C6/7, and I suspect that in the neck extension she has suffered an injury to the nerve root on the left at C6.
4.Ms Skinn’s current experience of pain is neck pain, scapular pain on the left, left shoulder pain and pain down the outer aspect and posteriorly down the left arm. This has no basis in a pre-existing condition as she had no neck pain or arm pain prior to the injury on the 15 May 2008. The underlying condition however is of a pre-existing degenerative change at C5/6 and C6/7 which was asymptomatic prior to the 15 May 2008.
5.The current ongoing symptoms have now been of 2 years duration and it is unlikely that these will now be temporary and the symptoms following this injury on the 15 May 2008 are now likely to be long term.
6.The symptoms that Ms Skinn currently suffers from, neck pain and left arm pain, I believe relate to the incident on the 15 May 2008. I don’t believe that they are a natural progression of pre-existing degenerative changes in their own right.
…
7.I don’t believe it is possible to separate the pre-existing degenerative changes from the current symptomatology and I don’t believe it is possible to state that Ms Skinn would have had these symptoms had she not had the incident on the 15 May 2008. As such they are related to the work incident and the aggravation of previous asymptomatic degenerative conditions is well documented in many workers’ compensation cases.
8.Rehabilitation or medical treatment should be of conservative measures initially including exercises, strengthening, swimming programme, root sleeve injection; all of these treatments Ms Skinn has undertaken. Unfortunately she has not noted any improvement. Surgical intervention could be considered in this instance as her symptoms have not improved after 2 years. I would be of the opinion that her surgery in the form of C5/6 and C6/7 decompression would be better undertaken with fusion than with a disc replacement, and in my opinion, the chances of this surgery being effective and beneficial to Ms Skinn would be more in the region of 70% than 95%. This does leave a 30% possibility that Ms Skinn could have the surgery and not have any effective pain relief or benefit.
9.Ms Skinn’s symptoms will deteriorate as a natural progression following the injury from the 15 May 2008 as she has now an anatomical narrowing of C5/6 and C6/7. Unfortunately these will continue despite whether Ms Skinn [has surgery] or whether she does not.
10.Ms Skinn does have a capacity for work in my opinion, in very light duties. These would have to involve occupations in which there was no excessive movement of the neck required and no repetitive work with the arms. Unfortunately it is hard to conceive an occupation in Australia Post which would fulfil those criteria. I would be of the opinion therefore she has been totally incapacitated from her work with Australia Post since November 2008.
…”

Mr Watson said that when he saw the applicant on 15 March 2011, there was “no material difference in her presentation” compared with when he saw her on 17 June 2010.
In cross-examination Mr Watson said that the opinion expressed in his report that the applicant “has been totally incapacitated from her work with Australia Post since November 2008” was based on his understanding that her work involved duties in a sorting room with “quite a bit of heavy lifting”. He said that she should be able to perform sedentary work or sorting letters provided that the work duties were not too repetitive. In response to a question from the Tribunal, Mr Watson said that when he saw the applicant in June 2010 his opinion was that she had a “partial capacity for work”, namely, the capacity to work for a maximum of 20 hours per week in “very light duties”.
In re-examination Mr Watson agreed that, as regards the applicant’s returning to work after her surgery in May 2011, that should involve a graduated return to work and “feedback” from the applicant regarding her symptoms in those circumstances with a view to determining her present work capacity.
Dr John Ker
Dr Ker, Consultant Physician in Rehabilitation Medicine, saw the applicant, at the request of the applicant’s solicitors, on 11 October 2010 and he subsequently prepared a report dated 8 February 2011 (Exhibit A11).
In his report Dr Ker set out the applicant’s history and his findings on examination, and he then stated his answers to questions asked of him by the applicant’s solicitors as follows:
“ a) The date you initially attended our client.
I saw your client, Ms Tracie Michelle Skinn, in a consultation on 11^th October 2010.
b) The injuries and symptoms being suffered by our client at that time.
At that consultation, Ms Skinn reported the residual presence of daily neck pain which is in the mid-cervical spine radiating towards the shoulder on the left.
In addition, she has curtailment of her range of neck movements and, associated with her neck pain and curtailed mobility, she has the regular experience of headache. She also described pain in the left shoulder with reduced strength and lifting activity and pain at the extremes of flexion and abduction.
She also described altered sensation in her left hand. As a consequence primarily because of her shoulder pain and also her neck pain, she has sleep disturbance.
c)The cause of our client’s injuries and symptoms.
I believe that your client has sustained an indirect injury to her cervical spine and left shoulder. This injury took place on 15^th May 2008. Your client’s symptoms persist in the presence of a residual degree of left-sided C6 radiculopathy and bursitis at the left shoulder region.
d)The treatment you would recommend for our client.
In my view, there is value in continuing a non-operative approach to your client’s treatment ie the continuing utilisation of analgesic and anti-inflammatory medications as tolerated for the control of her neck pain and, to a lesser extent, shoulder pain. I would, however, draw to your attention that her opportunities to use anti-inflammatory medications are compromised by a degree of underlying gastritis.
I would encourage a personal daily regime of mobilising exercise for the shoulder and cervical region. I would make available to your client the opportunities to utilise heat and topical applications to the neck and shoulder region for the relief of pain.
In view of the previous limited benefits of injection treatment in the form of a nerve root sleeve injection, I would be cautious about further recommending such a treatment strategy.
e)The likely development of our client’s condition into the foreseeable future.
As I understand it, your client has had residual symptoms for a period now approaching 2½ years. These symptoms appear quite refractory to treatment and, in that sense, although I believe there is value in continuing the treatment strategies outlined in (d) above, I would have concerns that in the future your client’s symptoms and physical restrictions will persist.
f)The likely treatment our client will require in the foreseeable future.
I acknowledge that your client has already been provided with neurosurgical treatment advice for the consideration of two-level cervical anterior fusion surgery with associated left-sided nerve root decompression.
It would be my view that such surgical treatment is substantive and it would invariably result in further restriction of your client’s cervical mobility. I have concerns that with the relatively unresponsive nature of your client’s neck pain and left arm pain, I would be cautious in suggesting that two-level cervical fusion could provide the benefits in pain control to outweigh the resultant additional stiffness that I believe your client would experience.
g)Our client’s ability to work, in detail, together with any limitations or restrictions you would impose upon the same, both as to the type of work our client can perform, and as to the hours our client is able to work.
It is my belief that your client has not undertaken any work for wages for a period extending over two years. In such a circumstance, I would have thought that the likelihood of your client returning to any form of manual work must now be considered remote.
Ms Skinn has limited work skills and, whilst these might in time be advanced through educational effort, it would be my personal view that in all probability, despite educational training, your client will remain unfit for work now and for the foreseeable future.
…”
Dr Ker said that he was now aware that the applicant had had surgery since he saw her but that he is not aware of the nature or outcome of that surgery.
In cross-examination Dr Ker acknowledged that the opinion expressed by him in his report regarding the applicant’s work capacity related to her work capacity at the time he saw her (11 October 2010) and did not relate to her past or future work capacity. He agreed that, in order to assess the applicant’s work capacity post-surgery, he would need to see her again.
In response to questions from the Tribunal, Dr Ker said that:
·from his experience as a rehabilitation practitioner regarding employees of Australia Post, he was of opinion that the applicant, following her injury of 15 May 2008, “would have been in a position to take on restricted work duties”;
·the opinion expressed by him at the end of his report regarding the applicant’s unfitness for work was not based solely on her physical fitness but also took into account other factors including the fact that she had not worked for two years, and her lack of educational training;
·having regard only to the applicant’s physical capacity for work when he examined her on 11 October 2010, his opinion was that her capacity was then limited to “the most sedentary forms of work” and only on a part-time, not a full-time, basis;
·as regards her capacity at that time to commence a rehabilitation program, her pain was then “sufficiently poorly controlled” as to make it “difficult” for her to undertake a return to work program.
Dr John Low
Dr Low, Consultant Occupational Physician, said that he has seen the applicant on three occasions, namely, 14 October 2008, 21 April 2010 and 11 October 2011, and has prepared four reports, dated 27 October 2008, 26 April 2010, 30 May 2010 and 17 October 2011.
In his report of 27 October 2008 (T54), which was addressed to the respondent, Dr Low opined that:
·the applicant was “fit to work on a full-time basis undertaking duties which limit the biomechanical demand on her neck and shoulder girdle” and she required the following work restrictions:
“       ·         No work above eye height or below thigh height.
·     No forceful pushing or pulling activity.
·     No reaching upwards, outwards, forwards, across body or behind her.
·     No sustained neck flexion.
·     No exposure to whole body vibration or jarring.
·Vary sitting, standing and walking positions as well as tasks on a regular basis.”;
·the applicant was “unsuited to undertake unrestricted postal delivery officer duties” but that she could do “sorting and other clerical work within the delivery centre”.
In his report of 30 May 2010 (T106), which was addressed to the respondent, Dr Low expressed (inter alia) the following opinion:
“ It is my opinion that Ms Skinn is fit to work full time hours within the following restrictions:
·Maximum weight of occasional lifting of 5kg; with both hands, not above chest height and with the load close to the body only.
·No work above eye height or below thigh height.
·No forceful pushing or pulling activity.
·Regular task and postural variation.
·No reaching upward, outward, forward, backward, across body with the upper limbs.
·No exposure to whole body vibration or jarring.
Work within a delivery centre that falls within the above restrictions include:
·Clerical work such as re-directions, preparing labels etc.
·Attending the hatch; she will require the customer to assist with heavy and hard to reach parcels.
·Short periods of hand sorting; either into V-sort or into private boxes but not above eye height.
·Answering telephone queries.”
In his report of 17 October 2011 (Exhibit R2), which was addressed to the respondent’s solicitors, Dr Low expressed (inter alia) the following opinion:
“ I believe that Ms Skinn is able to work on a fulltime basis undertaking work which does not pose significant biomechanical load to the cervical spine and left shoulder/upper limb (non dominant side).
I have read through the Return to Work Programme prepared by Australia Post dated 30 October 2008. I note proposed alternate duties included sequencing into the V-sort but to throw aside mail for the top shelves, pulling down mail, pulling down and labelling redirections, loading the motorcycle, walk/trolley delivery, van/car delivery, primary sorting, streeting/A-Z mail, etc. I note restrictions included not working above eye or below thigh height, avoiding excessive neck extension/flexion and over reaching in any direction, taking regular rest and stretch breaks as required and lifting no more than 10 kg. She was to avoid repetitive lifting/bending and not to be involved in forceful pushing or pulling activity. She was to avoid static postures.
The restrictions recommended would significantly limit the biomechanical load to the neck and cervical spine, and shoulders. If she was to work within these restrictions, she would have no problem undertaking the job role on a fulltime basis especially given the condition affects the non dominant side. I note she was to report any increase in symptoms to the rehabilitation case manager Tim Munroe (sic).”
He also opined that the applicant was “fit to undertake clerical-type duties which easily fall within the [abovementioned] restrictions”.
In cross-examination Dr Low acknowledged that:
·he did not have any discussions with the applicant’s general practitioner (who had then certified her as fit to work for four hours per day on light duties) before preparing his report of 27 October 2008;
·there is no reference in his report of 27 October 2008 to the effect of the applicant’s current symptoms on her work capacity and on the degree to which she was then coping with her duties.
As regards the abovementioned opinion expressed in his report of 17 October 2011, Dr Low agreed that a graduated return to full-time duties would be appropriate in the applicant’s case and he opined that such a return to work program should extend over a period of 6-12 weeks.
Dr Michael Bowles
Dr Bowles, Occupational Physician, confirmed that he saw the applicant on 19 September 2011 at the request of the respondent’s solicitors and that he subsequently prepared a report dated 19 September 2011 (Exhibit R3).
In his report Dr Bowles set out the applicant’s history and his findings on examination and continued:
“ Diagnosis and Opinion
Ms Skinn has had a very satisfactory response to her cervical surgery with resolution of neck pain and radiating left arm symptoms.
Ms Skinn, in my opinion, would benefit from an appropriate exercise programme set up by an Exercise Physiologist with Mr Narula’s approval.
Similarly, return to work process, in my opinion, could commence with an experienced Practitioner setting up a return to work programme. …
She could undertake the duties she was performing prior to her resignation or otherwise could look at redeployment options in administrative or light work with avoidance of repetitive neck flexion. Courier or light parcel delivery work are further options.
Left shoulder complaint in the form of capsulitis, in my opinion, is not related to the motor-bike accident and appears to be of a capsulitis which is an idiopathic spontaneous complaint of middle-age.
This does limit Ms Skinn in her use of her left arm, particularly for overhead or forceful use of the left arm.
Specific Questions
…
3.5Whether Ms Skinn currently would be able to undertake work with restrictions as set out in the Return to Work Programme provided in the folder of documents (RTWP) whether on a full-time (36¾ hours per week) basis, or part-time basis. If part-time, please indicate the amount of daily hours that Ms Skinn would currently be able to undertake.
In my opinion, Ms Skinn could undertake work within restrictions set out in the RTWP on a full-time basis.
…
3.9Whether, in your opinion, Ms Skinn would in the future have the physical capacity to undertake her pre-injury duties as a PDO and if so, the anticipated time-frame.
It appeared the Surgeon is not happy with Ms Skinn returning back to duties as PDO. This is his opinion. Ultimately he is the arbiter on that matter.
I feel that it is unlikely that Ms Skinn will return to PDO in terms of a physical capacity to do so.
…”
In cross-examination Dr Bowles agreed that a return to work program should be regarded as a work trial. As regards his recommendation for an exercise program, he said that that should be arranged as soon as practicable.
Mr George Wong
Mr Wong, Neurosurgeon, confirmed that he had seen the applicant on 11 August 2010 and 26 September 2011 and had prepared a report following each examination.
In his report of 26 September 2011 (Exhibit R4), which was addressed to the respondent’s solicitors, Mr Wong opined (inter alia) as follows:
“ I think it would be worthwhile for her to undergo some return to light activities in semi-sedentary or sedentary type work and also undergo some exercise programme at this stage.
…
I do believe she can return to some form of lighter duties on a graduated basis at this stage and preferably also be engaged in some gentle exercise programme as the surgery was done in May.
…
With the passage of time and settlement of the claim, I think she can most likely return to work as a Postal Delivery Officer.
…
I think she should undergo some physical rehabilitation programme as well.”
ADDITIONAL MEDICAL EVIDENCE
Report of Dr Patrick Hanrahan
The applicant tendered in evidence a report of Dr Hanrahan, Rheumatologist, dated 16 December 2010 (Exhibit A12).
In his report (which was addressed to the respondent) Dr Hanrahan noted that he had seen the applicant at the request of the respondent. He set out the history relating to the applicant’s work accident of 15 May 2008 and her subsequent return to work on light duties. He continued:
“ The light duties that she was doing was the normal sorting that she did prior to delivering mail, sorting mail into ‘V sort frame’. She had difficulty sleeping because she found it hard to relax her head. After around 3 months she was doing around 4 hours per day sorting and she informed me that this was ‘the killer because I couldn’t look up or down and the frame was from around her knees to about a foot over her head’. Moving her head made the symptoms worse, aggravating pain in her neck, the lower cervical spine, on the left and centrally and over the left deltoid, into the posterior elbow, fingers 4 and 5. The radiation into her fingers came on some time after the accident. She is uncertain as to when this did radiate into the fingers but described it as being ‘within weeks’ of the accident.
She believes she did around 4 hours per day for approximately 3 months, the pain was not getting better and because of this she felt that her employers started to ‘put the boot into me’ she ‘felt under pressure’. She began to feel depressed, became argumentative and difficult. She had 11 days away from work, she discussed her future with her partner, she was very unhappy and so she resigned rather than returning to work and she hasn’t worked since.”
Dr Hanrahan then set out the remainder of the applicant’s history, her medical treatment to date, his findings on examination, and his answers to questions asked of him by the respondent, including:
“ 1. Does Ms Skinn continue to suffer the effects of the injury?
I believe that she still does suffer the effects of the injury. She clearly has underlying cervical degenerative disease, this was asymptomatic until the injury and she has the continuing effects of the aggravation of her underlying cervical spondylosis.
…
4.Are there any other comments you wish to make relevant to the injury?
I note that Ms Skinn felt that the height of the V-frame was a major problem with her return to work program ie she had to look from a height just above her knees to just above her head, however the return to work specifications were that she did not have to actually deposit sorting mail in the upper level. Nevertheless the type of return to work program she was doing would have, I believe, been difficult for anyone to perform with a painful and stiff neck. I am not surprised that she had difficulty with this. Although I am not a psychiatrist she admits that she became depressed, angry and difficult. She made a mistake in resigning.
She believes that she was under some pressure to try and continue with the position that she was in and that (sic) she denies that any alternative suggestions were made. At the time she should have been redeployed into other activities.”
THE EVIDENCE OF TIMOTHY MUNRO
Mr Munro, who said that he is presently employed by Rio Tinto, confirmed that he had signed a witness statement, dated 21 November 2011, for the purpose of this proceeding and he affirmed that its contents are true and correct.
Mr Munro’s witness statement (Exhibit R5) is as follows:
“1 From July 2007 until May 2009 I was employed as a dual function Rehabilitation Case Manager and Provider at Australia Post in Western Australia; in June 2009 I was promoted to the role of Manager Occupational Health and Safety and Rehabilitation, a position I remained employed in until September 2011. My primary work location during this role was the Perth Mail Centre and I visited other centres as required.
2.Prior to working at Australia Post, I was employed at Work Focus for 6 months and prior to that I was a clinical physiotherapist in private practice.
3.My formal qualifications are a Bachelor of Science (Physiotherapy) which I attained in 2001 and a Post Graduate Diploma in Occupational Health and Safety which I attained in 2009.
4.I was Tracie Skinn’s (who I refer to as Tracie) rehabilitation case manager for the entirety of her rehabilitation during 2008.
5.During the period between May and October 2008, Tracie complied with her treating general practitioner’s advice and the rehabilitation programs that I prepared. These programs involved limited hours of work. The progress in increasing Tracie’s hours of work after her neck injury was slow, and considerably slower than I would expect. During this period Tracie increased her hours from 1.5 hours per day to 2.5 hours per day (from 14 July 2008), and then to 4 hours per day (from 15 September 2008). Tracie was away on leave between 18 August 2008 and 12 September 2008, and then resumed working 4 hours per day until the end of October 2008. At 5 months post injury, Tracie was still only working 4 hours on restricted duties. Based on my knowledge and experience, I had anticipated that Tracie would by this stage have been able to work more hours than this. There was in my view a reluctance to increase her hours.
6.I arranged for Tracie to be independently examined by Dr John Low, occupational physician, in October 2008, because I was concerned at Tracie’s lack of progress and wanted another opinion about her capacity to undertake a return to work program, as to the restrictions she required, and as to the hours she could work. I also sought comment as to what barriers there may be to Tracie’s successful return to work and as to actions that may assist her recovery, including treatment. A copy of my letter to Dr Low dated 6 October 2008 is attached and marked ‘A’.
7.I sought a review by Dr Low because he is an occupational physician who is very familiar with the work that is undertaken at Australia Post Delivery Centres, who has a good understanding of the physical requirements of the duties involved, and who is aware of the type and range of duties that are available to be included within return to work programs at Australia Post facilities.
8.I received Dr Low’s report on 29 October 2008, and drafted a return to work program after considering his opinion and recommendations.
9.The following day (30 October 2008), I faxed the proposed return to work program for Tracie to her treating general practitioner, Dr Gaebler. A copy of my fax to Dr Gaebler and the enclosed proposed return to work program are attached and marked ‘B’. In my fax I stated:
Should you not be in accordance with this Return to Work Programme please advise me prior to its intended start date (05/11/08) so that we can discuss your specific concerns.
Please do not hesitate to contact me should you have any queries or concerns regarding this programme or any other aspect of Tracie’s rehabilitation.
10.On that same day I spoke with Tracie by telephone. I advised Tracie that I had received the report from Dr Low and also a report of the MRI undertaken. I advised Tracie that Dr Low had advised that she had the capacity to work full time but only on the basis that she continue with her current restrictions (ie light sorting). I asked Tracie how she felt about this to which she responded that she just wanted to get rid of her headaches. I advised Tracie that I would be forwarding a copy of Dr Low’s report, the MRI report and the proposed Return to Work Program to Dr Gaebler and would ask that he contact me with any concerns prior to the Return to Work Program commencing. Tracie advised that she was happy with this approach. Attached and marked ‘C’ is a copy of my file note of my conversation with Tracie on 30 October 2008.
11.I spoke again with Tracie on 3 November 2008 at which time she advised that she had seen her doctor who had prescribed medication to (sic) her and had certified her unfit for work on 3 and 4 November 2008. I asked whether Dr Gaebler had commented on Dr Low’s report and the proposed Return to Work Program that I had sent through. Tracie advised ‘yes’ and that he had increased her certification to work 6 hours per day. A copy of my file note of conversation (sic) with Tracie on this day is attached and marked ‘D’. A copy of the medical certificates from Dr Gaebler certifying Tracie fit to work 6 hours per day for the periods 31 October 2008 to 7 November 2008 and 5 November 2008 to 16 November 2008 (with the exception of his certification of totally unfit on 3 and 4 November 2008), are attached and marked ‘E’.
12.I had a further telephone conversation with Tracie the following day (4 November 2008). At this time I advised Tracie that in line with Dr Low’s recommendations, Australia Post would proceed with the Return to Work Program that I had forwarded to her and to Dr Gaebler from 5 November 2008. I asked Tracie how she felt about this and she advised ‘whatever, okay’. During this conversation I asked Tracie to keep me advised of any increase in her symptoms etc. A copy of my file note of conversation (sic) with Tracie on this day is attached and marked ‘F’.
13.On 5 November 2008, I made a determination under section 37(1) of the Safety, Rehabilitation and Compensation Act that Tracie undertake a Rehabilitation Program as per the attached Return to Work Program commencing from 5 November 2008. A copy of this determination is attached and marked ‘G’. Tracie did not request a reconsideration/review of this determination.
14.On 12 November 2008, I was advised by Daren Clark (the delivery centre manager), that Tracie had returned to work and provided medical certification that she was fit for 5 hours per day and that prior to this time (from 3 November to 11 November 2008) she had been absent from work. I advised that I would follow up with Tracie and ask her to explain her absence from work and would advise her that in accordance with the Return to Work Plan (sic) she is expected to work full hours on restricted duties. I subsequently attempted to telephone Tracie however, she did not answer the phone and I left a detailed message. Tracie should have contacted me if she was unable to attend her Return to Work Program on any day. My file note of my conversation with Daren Clark and of my message left for Tracie is attached and marked ‘H’. A copy of the medical certificate from Dr Gaebler dated 11 November 2008 certifying Tracie fit for 5 hours per day is also attached and marked ‘I’.
15.On that same day (12 November 2008) I wrote to Tracie indicating that I had been advised that she had not undertaken the requirements of her rehabilitation program as outlined in the determination dated 5 November 2008 (my letter incorrectly refers to 5 December 2008), and I asked Tracie to advise me of her excuse or reason for not undertaking the requirements of the rehabilitation program. A copy of my letter dated 12 November 2008 is attached and marked ‘J’.
16.On 13 November 2008 I had a further telephone discussion with Tracie. At this time she advised me that she wanted to provide a written response regarding the reasons she had not been at work over the last week. This was in the context of me saying that I had discussed this program with her on 4 November 2008, that she knew the Return to Work Program on full hours commenced on 5 November 2008, and that I had expected her to attempt this program. Tracie said she was absent because she was in constant pain and experiencing headaches. I advised that I understood that she was in pain and questioned if the pain had changed recently. Tracie advised ‘no’ and said that she had also advised Dr Low that she had put up with pain working 1.5, 2, 3 and 4 hours per day but it was beyond a joke now. I advised Tracie that as discussed previously, Dr Low felt that she had the capacity to work full time and that the Return to Work Program had been based on this opinion. I had given both Tracie and her general practitioner time to advise me if they had any concerns regarding the return to work program and neither had. I advised Tracie that given she had reported ongoing pain to Dr Low and he still felt she had the capacity to work full hours, and even though her general practitioner was now certifying her fit for 5 hours per day, I felt the current Return to Work Program was appropriate and that I would like her to attempt to work full hours. Tracie said she had spoken to a couple of people and that the opinion of her treating doctor was the most important. I advised that where there were two different medical opinions available, the opinion of Dr Low who is an occupational physician with knowledge of Australia Post duties held a lot of sway. I advised Tracie that no-one was questioning the authenticity of her symptoms, however, given that both doctors currently feel she has some level of work capacity, and that she had reported being in pain constantly, I queried whether being at work full hours instead of 5 hours was going to make any difference to her symptoms. Tracie said that it would. I then requested Tracie to attempt working full hours to assess if there was any difference in her symptoms and in this context also asked her to ensure that she takes regular rest and stretch breaks throughout her shift. In response Tracie advised that maybe it was time she contacted a lawyer and hung up. My file note of this conversation is attached and marked ‘K’.
17.By email dated 13 November 2008 Tracie provided to me in writing her reasons as to why she hadn’t worked full hours. A copy of this email is attached and marked ‘L’.
18.On 17 November 2008 I received a text message from Tracie advising that she was quitting her job with Australia Post effective immediately.
19.A written resignation was also forwarded by Tracie to Daren Clark dated 17 November 2008. A copy of this resignation is attached and marked ‘M’.
20.I had telephoned Dr Gaebler’s rooms on 13 November 2008 after having received the email from Tracie that day. I was told that Dr Gaebler was not available until the next week. I had intended to speak with Dr Gaebler on his return however, before I was able to do so, Tracie advised me she had resigned. A file note of my telephone call to Dr Gaebler’s surgery is attached and marked ‘N’.
21.The Return to Work Program dated 30 October 2008 (to commence on 5 November 2008), was based on Tracie performing full time hours but still only doing the restricted duties, as recommended by Dr Low. Had Tracie commenced trialling full hours and had experienced any problems, she could have raised these with me. If she had attempted the hours and was having difficulty with them, I would have had another look at the program. Tracie did not, however, even attempt the program.
22.I was of the opinion that Tracie was very reluctant to increase her hours beyond the limited hours she had been working. It was apparent to me that her complaints of pain had been fairly constant and seemed unaffected by the hours she worked. I considered that it was reasonable for her to attempt to return to full hours and to assess the impact on her symptoms. She chose not to do this.
23.Tracie was employed at the Midland Delivery Centre (DC) and I knew this work area well. I had a lot of involvement with Midland DC and was very familiar with the duties available there and the workplace generally. I am aware that Midland DC could have provided the duties within the return to work program to Tracie on an ongoing basis. If Tracie hadn’t resigned from Australia Post, she would still have been employed there today undertaking, if still required, restricted duties.
24.My personal view, in line with the opinion of Dr Low, was that Tracie could work full time hours provided she undertook the restricted duties as specified. It was always known by Tracie that if there was any significant increase in her symptoms while on a return to work program that (sic) she should report this to me for consideration and adjustment of the program if required. Tracie was also aware that she was to vary her positions at work regularly and was to take regular rest and stretch breaks as required. This was specified within the restrictions stated in the program. I remain of the view that the return to work program that I had proposed in October 2008 and implemented to commence on 5 November 2008 was comprised of suitable duties and was both appropriate and reasonable for Tracie to undertake.”

In examination-in-chief Mr Munro gave (inter alia) the following evidence:
·in his fax of 30 October 2008 to Dr Gaebler (referred to in para 9 of his witness statement), he was inviting Dr Gaebler to comment on the “draft” Return to Work Programme, given that it made changes (regarding working hours) to previous Programmes, but he did not hear back from Dr Gaebler;
·if Dr Gaebler had expressed strong concerns to him, they would have had a discussion and he would have considered making changes to the Programme and hopefully reached an agreement with Dr Gaebler;
·on 14 July 2008 he had sent a fax to Dr Gaebler together with a Return to Work Programme, which was in accordance with his current medical certificate (see paragraph 11 above);
·he recalled his conversation with the applicant referred to in that fax and confirmed that she had told him that she had made an “overall improvement of 85–90%” since her injury;
·he had wanted to inform Dr Gaebler of that conversation because it had seemed to him that the progress that the applicant was actually making was “at odds with” the medical certificates which Dr Gaebler was issuing and he was concerned that Dr Gaebler and he might have been “hearing different stories”.
In cross-examination Mr Munro gave (inter alia) the following evidence;
·he is now aware that the applicant denies the conversation referred to in his fax of 14 July 2008 to Dr Gaebler;
·he stands by his evidence regarding that conversation;
·his practice was to make file notes of such conversations and he expects that he would have made a file note of that conversation;
·he sent the “please explain letter”, dated 12 November 2008, referred to in para 15 of his witness statement, to the applicant, notwithstanding that he was aware of Dr Gaebler’s medical certificate of 11 November 2008 which specified a reduction in working hours (to 5 hours per day) and indicated that the applicant had been referred to a pain specialist;
·he agreed, having regard to that medical certificate, that there was a need to revisit the Return to Work Programme of 5 November 2008;
·he did not indicate to the applicant that he was proposing to revisit that Return to Work Programme;
·when he received the applicant’s response to the abovementioned “please explain letter” by email on 13 November 2008 (see paragraph 17 of his witness statement), it was his intention to discuss her response with Dr Gaebler but he did not tell the applicant that;
·he has not contacted the applicant since her resignation on 17 November 2008;
·no further Return to Work Programmes were prepared for the applicant, nor, as far as he is aware, has any offer of employment subsequently been made to her by the respondent.
THE ISSUE
The issue for the Tribunal’s determination is whether the respondent is liable to pay compensation to the applicant for incapacity for work for the period from 20 November 2008 to date.
THE RELEVANT LEGISLATION
Pursuant to s 14(1) and Part VIII of the SRC Act, the respondent:
“ … is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
Section 4(9) provides:
“ A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
Compensation for injuries resulting in incapacity for work is payable in accordance with s 19 of the SRC Act, subss (2) and (3) of which prescribe formulae for calculating the amount of compensation payable per week. A component of these formulae is:
“ the amount per week (if any) that the employee is able to earn in suitable employment”.
The phrase “suitable employment” is defined in s 4(1) of the SRC Act as follows:
“ suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed – employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee’s age, experience, training, language and other skills;
(ii)the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter; and
(b)in any other case – any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).”
Section 19(4) of the SRC Act prescribes the matters to which regard must be had in determining, for the purposes of subss (2) and (3), “the amount per week that an employee is able to earn in suitable employment”, namely:
“(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 [the respondent’s] opinion, reasonable in all the circumstances; and
(g)any other matter that [the respondent] considers relevant.”
ANALYSIS
It is common ground that the determination of this case turns on the application of s 19(4) of the SRC Act. As regards the relevant matters set out in paras (a) – (g) of s 19(4), paras (a) and (c) are, on the evidence before the Tribunal, inapplicable, para (g) is obviously applicable, and there is some dispute between the parties as regards the applicability of paras (b), (d) and (f). Neither of the parties, however, expressly raised para (e) for consideration.
The applicant submitted that paras (b), (d) and (f) of s 19(4) are all inapplicable on the facts of this case, whereas the respondent’s position seemed to be that paras (d) and (f) are applicable, but not para (b).
In the Tribunal’s opinion the provisions of s 19(4) of the SRC Act which arise for consideration in this case are paras (b), (f) and (g). Paragraph (d) of s 19(4), in the Tribunal’s opinion, does not arise for consideration in this case because, on the facts of this case, there was no offer of employment to the applicant “on condition that [she] completed a reasonable rehabilitation … program”, in terms of that paragraph. In the Tribunal’s opinion, however, the question does arise, for the purposes of para (b) of s 19(4), whether the Return to Work Programme commencing on 5 November 2008, which was prepared by Mr Munro for the applicant’s participation, constituted an “offer of suitable employment” within the meaning of that paragraph: see Re Karhani and Linfox Australia Pty Ltd (2011) 55 AAR 333 at 345.
Did the Return to Work Programme commencing on 5 November 2008 constitute an “offer of suitable employment” to the applicant (s 19(4)(b) of the SRC Act)?
The Tribunal accepts Mr Munro’s evidence that:
·following receipt of Dr Low’s report of 27 October 2008 on 29 October 2008, he “drafted a return to work program after considering [Dr Low’s] opinion and recommendations”;
·on 30 October 2008 he faxed the proposed Return to Work Programme, which was scheduled to commence on 5 November 2008, to Dr Gaebler for his consideration and comment prior to 5 November 2008;
·on 4 November 2008 he informed the applicant by telephone that the respondent would proceed with the Return to Work Programme, as proposed, on and from 5 November 2008;
·on 5 November 2008 he made a determination under s 37(1) of the SRC Act that the applicant undertake a rehabilitation program comprising the abovementioned Return to Work Programme commencing on 5 November 2008.
On the basis of Mr Munro’s evidence referred to in paragraph 63, the Tribunal is satisfied that the Return to Work Programme commencing on 5 November 2008, which was prepared by Mr Munro for the applicant’s participation, constituted an offer of employment, within the meaning of s 19(4)(b) of the SRC Act.
It is common ground that the applicant never participated in the abovementioned Return to Work Programme and, therefore, failed to accept that offer of employment, within the meaning of s 19(4)(b) of the SRC Act.
The critical question, for the purposes of s 19(4)(b) of the SRC Act, is whether the employment offered to the applicant in the Return to Work Programme commencing on 5 November 2008 was “suitable employment”, within the meaning of that paragraph.
Although the Tribunal is satisfied that the work duties specified in that Return to Work Programme were suitable for the applicant having regard to her age, experience, training and physical capacity, a very important consideration in the present case is whether the working hours required to be undertaken by the applicant in performing those duties, as specified in the Return to Work Programme, were then suitable for her having regard to her physical capacity.
The Tribunal notes the evidence before it that:
·the applicant undertook a series of Return to Work Programmes prepared by Mr Munro in the period from June 2008 to October 2008 in which her working hours were gradually increased from 1.5 hours per day to 4 hours per day (T19, T22, T26, T31, T41, T44);
·in the period from 8 August 2008 to 30 October 2008 Dr Gaebler issued medical certificates stating that the applicant was fit to undertake light duties only for 4 hours per day (T37, T43, T50);
·on 31 October 2008 and 3 November 2008 Dr Gaebler issued medical certificates stating that the applicant was fit to undertake light duties only for 6 hours per day for the period from 31 October 2008 to 16 November 2008 (T56, T57);
·Dr Low assessed the applicant on 14 October 2008 and reported on 27 October 2008 that the applicant was fit to undertake light duties on a full-time basis (T54).
Notwithstanding Dr Low’s qualification as an occupational physician and his extensive knowledge and experience regarding the work duties of employees of the respondent and the assessment of the physical capacity of employees to perform such duties, the Tribunal attaches greater weight to the opinion of Dr Gaebler regarding the applicant’s physical capacity to undertake work duties in the period October/November 2008 than it attaches to the opinion of Dr Low as stated in his report of 27 October 2008. Dr Gaebler has been the applicant’s treating general practitioner for about 25 years and he saw her on 16 May 2008 (the day after her work accident) and has regularly issued progress medical certificates regarding her work capacity since that date, whereas Dr Low did not see the applicant until 14 October 2008 and his assessment on that date occupied about one hour. In the Tribunal’s opinion Dr Gaebler, notwithstanding his long association with the applicant as her treating general practitioner, gave his evidence in an objective and candid manner and the Tribunal accepts his evidence regarding the applicant’s work capacity at all material times.
On the basis of Dr Gaebler’s evidence, the Tribunal is satisfied, and finds, that, as at 5 November 2008, the applicant’s physical capacity to perform the work duties specified in the abovementioned Return to Work Programme which was scheduled to commence on that date was limited to six hours per day. Accordingly, in the Tribunal’s opinion that Return to Work Programme, according to which the applicant was required to work full-time hours in performing those duties, constituted an offer of employment which, having regard to her physical capacity at that time, was not “suitable employment” within the meaning of para (b) of s 19(4) of the SRC Act: see Re Laloz and Comcare [1995] AATA 682 at [17].
The Tribunal finds, therefore, that the applicant did not receive an “offer of suitable employment” from 5 November 2008. It follows from that finding that para (b) of s 19(4) of the SRC Act is inapplicable as regards the Return to Work Programme commencing on 5 November 2008.
Was the applicant’s failure to accept the offer of employment in the Return to Work Programme commencing on 5 November 2008 “reasonable in all the circumstances” (s19(4)(f) of the SRC Act)?
Although the finding in the preceding paragraph makes it unnecessary for the Tribunal to answer this question, it nevertheless expresses the following opinions.
The Tribunal accepts the applicant’s evidence that she was having difficulty in working four hours per day in accordance with her Return to Work Programmes in September and October 2008 because of pain, especially in her neck, and that she did not believe that she would be able to cope with working full-time hours per day as required by the Return to Work Programme commencing on 5 November 2008. Dr Gaebler was also of the view that working full-time hours per day was beyond the applicant’s capacity, although he was of the opinion, on 31 October 2008, that she had the capacity to work six hours per day, as stated in the medical certificate which he issued on that date (T56). In these circumstances, it was, in the Tribunal’s opinion, reasonable for the applicant to decline to embark on the Return to Work Programme commencing on 5 November 2008, consistently with her own genuine belief, and the opinion of Dr Gaebler, that she did not then have the physical capacity to work full-time hours in performing the specified work duties, as required by that Programme: see Re Karhani and Linfox Australia Pty Ltd (above) at 347; Re Laloz and Comcare (above) at [18].
In the Tribunal’s opinion, therefore, the applicant’s failure to accept the offer of employment represented by the Return to Work Programme scheduled to commence on 5 November 2008 was “reasonable in all the circumstances”, for the purposes of para (f) of s 19(4) of the SRC Act.
Other relevant matters
For the purposes of para (g) of s 19(4) of the SRC Act, the Tribunal notes the following evidence regarding additional matters which it considers to be relevant in determining the applicant’s “[ability] to earn in suitable employment”, within the meaning of s 19, in the period from 20 November 2008 to date:
·the applicant resigned from her employment by the respondent on, and with effect from, 17 November 2008;
·in a letter dated 24 September 2010 Dr Gaebler stated that the applicant “has been unfit to work since November 2008” (Exhibit A9);
·in a report dated 10 February 2010 Dr Gaebler stated that the applicant “is currently totally unfit to work and is likely to continue this way unless she has a favourable response to surgery” (T92);
·in a report dated 30 May 2010 Dr Low opined that the applicant had not been totally unfit for work since November 2008 and that she was presently “fit to work full time hours” with specified restrictions (T106);
·Mr Watson opined in his oral evidence that, when he examined the applicant on 17 June 2010, she had a “partial capacity for work”, namely, the capacity to work for a maximum of 20 hours per week in “very light duties”;
·on 6 July 2010 Dr Gaebler issued a progress medical certificate stating that the applicant was totally unfit for work from 6 July 2010 to 6 October 2010 (T113);
·Dr Ker, who examined the applicant on 11 October 2010, opined that she had the physical capacity to do only sedentary work on a part-time basis but that, having regard also to the fact that she had been out of the workforce for two years, “the likelihood of [her] returning to any form of manual work must now be considered remote”;
·on 9 May 2011 the applicant underwent surgery to her cervical spine performed by Mr Narula (the cost of which was met by the respondent) and it is common ground that that surgery was successful;
·on 26 July 2011 Mr Narula reported that the applicant’s “post operative recovery was relatively slow and quite painful” and that, when he saw her on 15 June 2011, she currently “remains totally incapacitated for work”, and he suggested that she “stay away from work” for at least the next three months;
·on 13 September 2011 Mr Narula saw the applicant and “suggested she could look at a return to work not involving lifting”;
·on 19 September 2011 Dr Bowles saw the applicant and opined that she presently had the physical capacity to undertake the restricted work duties specified in the Return to Work Programme of 5 November 2008 on a full-time basis, but that it was unlikely that she would have the physical capacity to undertake her pre-injury duties as a Postal Delivery Officer in the future;
·on 26 September 2011 Mr Wong saw the applicant and opined that she could “return to some form of lighter duties on a graduated basis at this stage” and that “with the passage of time and settlement of the claim … she [could] most likely return to work as a Postal Delivery Officer”;
·Dr Low reported on 17 October 2011 that the applicant was presently able to perform the work duties specified in the Return to Work Programme of 5 November 2008 on a full-time basis and he opined in his oral evidence that a graduated return to full-time duties over a period of 6–12 weeks would be appropriate in the applicant’s case;
·it is common ground that the respondent has not made an offer of employment to the applicant since the Return to Work Programme of 5 November 2008, and that the applicant has not sought employment since her resignation on 17 November 2008.
CONCLUSION
It is common ground that the applicant has suffered, and continues to suffer, an “incapacity for work” (as defined in s 4(9) of the SRC Act) as a result of the compensable injury which she sustained on 15 May 2008.
As previously stated, the issue for the Tribunal’s determination is whether the respondent is liable to pay compensation to the applicant for her “incapacity for work” for the period from 20 November 2008 (when the respondent discontinued paying such compensation to her) to date. That issue falls to be determined in accordance with s 19 of the SRC Act.

Although s 19 of the SRC Act prescribes formulae for calculating the amount of compensation payable per week, there is no evidence before the Tribunal which would assist it to make any determination as to the precise quantum of compensation which might be payable to the applicant (other, of course, than nil) in accordance with that section.
As regards the matters referred to in paras (b) and (f) of s 19(4) of the SRC Act, the Tribunal has found that the Return to Work Programme scheduled to commence on 5 November 2008 constituted an offer of employment to the applicant which was not “suitable employment” (within the meaning of para (b)) for her and that, in any event, her failure to accept that offer (by failing to participate in that Programme) was “reasonable in all the circumstances” (within the meaning of para (f)). Accordingly, para (b) of s 19(4) does not apply in this case and, accordingly, “the amount per week that the [applicant] would be earning in that employment if … she were engaged in that employment” is to be disregarded in determining, for the purposes of subss (2) and (3) of s 19, the amount per week that the applicant is “able to earn in suitable employment”.
In relation to the relevant matters which arise for consideration pursuant to para (g) of s 19(4) of the SRC Act (as set out in paragraph 75 above), the Tribunal, having regard to the whole of the evidence referred to in paragraph 75, is satisfied, and finds, that the applicant has not been “able to earn” any amount in “suitable employment” from 20 November 2008 to date. In this connection, the Tribunal notes that it is also of the opinion that:
·although it may be that the applicant’s action in resigning from her employment by the respondent on 17 November 2008 was somewhat precipitate, it was, having regard to her physical incapacity to perform the Return to Work Programme then required of her by the respondent and her perception that the respondent’s requirement that she perform that Programme was inflexible, not unreasonable;
·the applicant’s failure to seek employment since 17 November 2008 was, having regard to Dr Gaebler’s opinion that she was totally unfit to work from that date and Mr Narula’s opinion regarding her relatively slow post-operative recovery, reasonable in all the circumstances (for the purposes of paras (e) and (f) of s19(4) of the SRC Act).
The Tribunal, however, notes the evidence of Dr Low, Dr Bowles and Mr Wong and, on the basis of that evidence, is satisfied that the applicant presently has the physical capacity to undertake a graduated return to work program with a view to enabling her, within a reasonable time, to perform the restricted work duties specified in the Return to Work Programme of 5 November 2008 on a full-time basis. The Tribunal regards Dr Low’s opinion, that it would be appropriate for such a graduated return to full-time duties to extend over a period of 6–12 weeks, as reasonable.
DECISION
For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent has continued to be liable to pay compensation to the applicant for incapacity for work, in accordance with s 19 of the SRC Act, from 20 November 2008 to the present date, and is presently so liable, on the basis that “the amount per week” that the applicant has been “able to earn in suitable employment”, within the meaning of that section, from 20 November 2008 is nil.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.

…(sgd E Jordan).....
Associate
Dated 28 February 2012

Dates of hearing 6 -9 December 2011

Counsel for the Applicant

Solicitors for the Applicant

Mr T Offer

Trewin Norman & Co

Counsel for the Respondent Mr M Gollan

Solicitors for the Respondent Sparke Helmore

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2010/3482
Re	TRACIE SKINN
APPLICANT
And	AUSTRALIAN POSTAL CORPORATION
RESPONDENT

Tribunal	Deputy President S D Hotop Dr J Chaney, Member
Date	28 February 2012
Place	Perth

Dates of hearing	6 -9 December 2011
Counsel for the Applicant Solicitors for the Applicant	Mr T Offer Trewin Norman & Co
Counsel for the Respondent	Mr M Gollan
Solicitors for the Respondent	Sparke Helmore