Watterson and Comcare
[2005] AATA 1198
•5 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1198
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/39
GENERAL ADMINISTRATIVE DIVISION ) Re PETER CHRISTOPHER WATTERSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate5 December 2005
PlacePerth
Decision The Tribunal sets aside the reviewable decision of the respondent dated 10 January 2002, and, in substitution therefor, decides that the respondent continued to be liable on and from 2 July 2001, and is presently liable, under s14(1) of the Safety, Rehabilitation and Compensation Act 1988(Cth) (“the SRC Act”), to pay compensation in accordance with that Act to the applicant in respect of his neck injury which he sustained on 20 May 1999.
The Tribunal remits to the respondent the calculation of the amount of compensation by way of incapacity payments which is payable to the applicant in accordance with s19 of the SRC Act, with a direction that the amount of such compensation be calculated on the basis of the Tribunal’s finding set out in paragraph 58 of the Tribunal’s Reasons for Decision herein.
The Tribunal orders, pursuant to s67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
..........(sgd S D Hotop)...........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered neck injury in course of employment with Centrelink in May 1999 – applicant claimed compensation – respondent accepted liability to pay compensation in August 1999 – respondent determined that applicant not entitled to incapacity payments from 2 July 2001 and to other compensation payments from 5 October 2001 – applicant continues to suffer from work-related neck injury – applicant continues to be incapacitated for work as result of neck injury – respondent continues to be liable to pay compensation to applicant – amount of compensation by way of incapacity payments payable to applicant – normal weekly earnings – amount of applicant’s normal weekly earnings before neck injury – amount of weekly earnings applicant would receive if not incapacitated for work – reviewable decision set aside
Safety, Rehabilitation and Compensation Act 1988(Cth) s4, s8, s14 and s19
Re Colson and Comcare (1996) 42 ALD 786
Re Davies and Comcare Australia AAT Decision No 9637, 1 August 1994
Re Frost and Comcare (2004) 79 ALD 605
Re Jagtenberg and Comcare AAT Decision 13164, 11 August 1998
Re Langford and Comcare (1994) 35 ALD 704
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
REASONS FOR DECISION
5 December 2005 Deputy President S D Hotop
Dr P A Staer, Member
INTRODUCTION
1. On 20 May 1999 the applicant (who was then 45 years of age) suffered a neck injury in the course of his employment with Centrelink. He claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) and, on 11 August 1999, the respondent accepted liability to pay compensation under the SRC Act to the applicant in respect of that injury. The applicant was, accordingly, paid compensation by way of medical expenses (pursuant to s16 of the SRC Act) and incapacity payments (pursuant to s19 of the SRC Act).
2. On 21 September 2001, however, the respondent determined, on the basis of certain medical evidence, that “on and from 2 July 2001” the applicant no longer had an entitlement to incapacity payments under s19 of the SRC Act. This was followed by a further determination of the respondent on 8 October 2001 that “on and from … 5 October 2001” it was no longer liable to pay compensation to the applicant “under any provision of the [SRC] Act”.
3. On 10 January 2002 the respondent made a “reviewable decision” under s62 of the SRC Act affirming the abovementioned determinations of 21 September 2001 and 8 October 2001.
4. The applicant has applied to the Tribunal for a review of the respondent’s reviewable decision of 10 January 2002.
THE ISSUES
5. The fundamental issue before the Tribunal is whether the respondent continues to be liable under the SRC Act to pay compensation to the applicant in respect of the neck injury which he sustained on 20 May 1999. If that issue is determined in the affirmative, the issue of the amount of compensation payable to the applicant – in particular, by way of incapacity payments under s19 of the SRC Act – will then arise for determination. The latter issue will also involve a determination of the basis on which the amount of the applicant’s “normal weekly earnings”, for the purposes of s19 of the SRC Act, is to be calculated.
6. The Tribunal has determined that the respondent continues to be liable under the SRC Act to pay compensation to the applicant in respect of his neck injury. The amount of compensation payable to the applicant by way of incapacity payments under s19 of the SRC Act is to be determined by the respondent on the basis of findings made by the Tribunal (set out later in these reasons) regarding the basis on which the amount of the applicant’s “normal weekly earnings”, for the purposes of s19, is to be calculated.
THE LEGISLATION
7. Section 14(1) of the SRC Act provides:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
Section 4 of the SRC Act relevantly provides:
“(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means;
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
…
(9)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.
…”
Section 19 of the SRC Act contains provisions for calculating the amount of compensation payable to an employee in respect of an injury resulting in an incapacity for work by means of formulae, a component of which is the amount of the employee’s “normal weekly earnings”. Section 8 of the SRC Act contains provisions for calculating the amount of an employee’s “normal weekly earnings”. Section 8(10) relevantly provides:
“If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a)where the employee continues to be employed by the Commonwealth or a licensed corporation – the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
…”
ANALYSIS AND FINDINGS
Does the respondent continue to be liable under the src act to pay compensation to the applicant?
8. The answer to the above question depends on whether the applicant is continuing to suffer from an injury resulting in (relevantly) incapacity for work or impairment, within the meaning of s14(1) of the SRC Act.
The applicant’s evidence
9. The applicant’s evidence was that, since sustaining the work-related injury to his neck on 20 May 1999, he has continued to suffer pain and discomfort in his neck and, as a result thereof, he has been, and is presently, unable to return to his pre-injury employment or any other employment for which he is qualified.
The medical witnesses
Mr P Bannan
10. Mr Bannan, Neurosurgeon, first saw the applicant on 1 June 1999. The applicant presented complaining of severe neck and left arm pain for which he had been prescribed morphine. He gave a history of the pain arising on 20 May 1999, being the fourth day of a work training course during which, while sitting, he was constantly turning his neck to the right to look at a whiteboard (see Mr Bannan’s report of 14 July 1999). An MR scan confirmed that the applicant had a left C6 nerve root compression. On 14 June 1999 Mr Bannan performed an operation to decompress the applicant’s C6 nerve root and, in the course of that operation, it was revealed that the C5/6 disc had ruptured and was crushing the nerve, and a large fragment of that disc was removed from under the nerve root.
11. On 13 July 1999 Mr Bannan reported that the applicant had had a good result following his surgery on 14 June 1999 but that he still had “some residual left upper arm pain and some low grade neck pain”. On 10 August 1999 Mr Bannan reported that the applicant no longer had “any significant arm or neck pain” and confirmed that he was “fit to return to work”. On 23 November 1999, however, Mr Bannan reported that the applicant was complaining of “intermittent neck pain with stiffness” and that he might require an “anterior cervical fusion at C5/6 which should alleviate the pain in his neck”.
12. On 7 December 1999 Mr Bannan reported that a fresh MR scan showed a “shallow left posterior disc bulge” at C5/6, and “degeneration” at C5/6 and C6/7, but “no significant spinal cord or nerve root compression”. He opined that a lot of the applicant’s neck pain was “muscular in nature” and was best treated conservatively with pain-killers and anti-inflammatories.
13. Mr Bannan last saw the applicant in November 2001 and, on 15 November 2001, he reported that an up-to-date MR scan showed a “left posterolateral disc osteophyte complex at C5/6 and C6/7” and he opined that, if the applicant’s neck and left arm pain did not settle with conservative treatment, he could require a “two level anterior cervical fusion at C5/6 and C6/7”. He also opined that the applicant’s pain was “arising from the degenerative disc at C5/6” on which he had previously had surgery.
14. In cross examination Mr Bannan confirmed that the applicant would have had degeneration in his C5/6 disc prior to its rupturing. As regards the applicant’s complaints of ongoing neck pain after the surgery on 14 June 1999, Mr Bannan said that that pain was related to his degenerate disc at C5/6 and he added that such ongoing pain was “very common after an operation of that sort”.
15. In re-examination Mr Bannan said that it is well understood that a degenerate disc may be painless until it is injured, and, in the applicant’s case, his neck pain commenced because he tore his C5/6 disc and his ongoing neck pain is “from his degenerate neck”. He agreed that the neck pain which the applicant is presently experiencing is a sequela of his original work injury. He said that that pain is attributable to a combination of the work injury and the degenerative process. He was unable precisely to quantify the degree of each of those contributing causes of the applicant’s neck pain but he agreed that the work injury was contributing thereto in a not insignificant degree.
Mr H Schaeffer
16. Mr Schaeffer, Consultant Neurosurgeon (since retired), confirmed that he had examined the applicant on three occasions at the request of the respondent and had subsequently provided three reports, dated 9 August 2001, 2 August 2002 and 13 September 2004.
17. In his report of 9 August 2001 Mr Schaeffer stated that he was “unable to arrive at a diagnosis of any current physical condition”. He opined that there was “no underlying or pre-existing condition” in the applicant’s case. He also opined that the applicant had “long since recovered from the surgery performed in June 1999” and that he was “capable of working on an unrestricted basis” and was “currently fit for full pre-injury duties”.
18. In his report of 2 August 2002 Mr Schaeffer accepted that the applicant had “some underlying mid cervical degenerative change” but reiterated that he was “unable to arrive at a physical diagnosis of a current physical condition that relates to the incident of 20 May 1999”. As regards the applicant’s capacity for work, Mr Schaeffer opined that he had “a partial incapacity for work generally speaking, accountable to the underlying degenerative condition of his mid cervical spine” but that he had “no loss of working capacity relating to the incident of 20 May 1999”. He also opined that there was no physical impediment to the applicant’s performing his normal employment duties. Mr Schaeffer reiterated those opinions in his report of 13 September 2004, and in his oral evidence.
Dr J Pearce
19. Dr J Pearce, Specialist Physician in Occupational and Rehabilitation Medicine, Health Services Australia Ltd, confirmed that he had prepared three reports regarding the applicant. In a report dated 22 November 2000 Dr Pearce noted the applicant’s complaint of chronic ongoing neck pain and opined that he was presently unfit for work. On 18 April 2001, however, Dr Pearce opined that there had been a “significant improvement in [the applicant’s] chronic mechanical neck pain” since the previous review and noted that he was currently working 4½ hours per day, 3 days per week. Finally, on 23 December 2002 Dr Pearce noted that the applicant had been off work for the past 18 months and that three attempts at rehabilitation had been unsuccessful, and commented that his “mechanical neck pain and physical incapacity” appeared to have worsened and that this was “further complicated by the development of depression”. Dr Pearce went on to opine that the applicant was not fit for work and was presently “unemployable in the open workplace”.
Additional medical evidence
20. Numerous Workers’ Compensation Progress Medical Certificates issued by the applicant’s general practitioner, Dr C Brogan, are also in evidence. These include certificates which certify that from July 2001 to February 2002 the applicant was totally unfit for work by reason of “neck injury” or “neck pain”.
Findings
21. The Tribunal notes that Mr Bannan was the applicant’s treating neurosurgeon in respect of his neck condition from 1 June 1999 (12 days after he sustained the relevant work-related neck injury) until November 2001. In Mr Bannan’s opinion the applicant’s ongoing neck pain is (notwithstanding the successful surgical operation he performed on the applicant on 14 June 1999) partly attributable to the work-related neck injury which he sustained on 20 May 1999, and partly attributable to degenerative changes at the C5/6 and C6/7 levels in his cervical spine. He further opined that that work-related injury was continuing to contribute to the applicant’s ongoing neck pain in a not insignificant degree. By contrast, Mr Schaeffer’s opinion was that the applicant had long since recovered from the surgery in June 1999 and that his ongoing neck pain is attributable solely to degenerative charges in his cervical spine.
22. The Tribunal accepts the evidence of Mr Bannan regarding the aetiology of the applicant’s ongoing neck pain. In the Tribunal’s opinion Mr Bannan, as the applicant’s treating neurosurgeon from 1 June 1999 (shortly after he sustained the work-related neck injury) until November 2001 – during which period he performed a surgical operation on the applicant’s neck and made numerous post-operative reports to the applicant’s general practitioner, to Health Services Australia, and to the respondent – is much better placed to assess the aetiology of the applicant’s ongoing neck pain than Mr Schaeffer who did not see the applicant until August 2001.
23. Accordingly, on the basis of Mr Bannan’s evidence, the Tribunal finds that the applicant’s work-related neck injury, which he sustained on 20 May 1999, continues to contribute in a material degree to his ongoing neck pain, and that his neck condition is, accordingly, a “disease”, and therefore an “injury”, as defined in s4(1) of the SRC Act.
24. The Tribunal also finds that that “injury” has resulted in ongoing “impairment”, as defined in s4(1) of the SRC Act.
25. The Tribunal further finds, on the basis of the abovementioned reports of Dr J Pearce, the abovementioned medical certificates issued by the applicant’s general practitioner, and the applicant’s own evidence, that the applicant’s neck “injury” has also resulted in ongoing “incapacity for work”, as defined in s4(9) of the SRC Act.
26. Accordingly, the Tribunal finds that the respondent continues to be liable under s14(1) of the SRC Act to pay compensation in accordance with that Act to the applicant in respect of his neck injury.
What compensation is the respondent liable to pay to the applicant in accordance with the src act?
Medical expenses
27. It follows from the findings stated in paragraphs 24 and 26 (above) that the respondent is liable to pay to the applicant compensation by way of medical expenses in relation to his neck injury, in accordance with s16 of the SRC Act. There was, however, no evidence before the Tribunal regarding particular medical expenses incurred by the applicant in relation to his neck injury since 5 October 2001 (the date from which the respondent determined that it was no longer liable to pay compensation to him under any provision of the SRC Act). The Tribunal is, therefore, unable to make a finding regarding the amount of compensation (if any) presently payable to the applicant by the respondent pursuant to s16 of the SRC Act.
Incapacity payments
28. It follows from the findings stated in paragraphs 25 and 26 (above) that the respondent is liable to pay to the applicant compensation by way of incapacity payments in accordance with s19 of the SRC Act. The amount of compensation payable to the applicant by way of incapacity payments is calculated by means of formulae set out in s19, a component of which is the amount of the applicant’s “normal weekly earnings” which is, in turn, calculated in accordance with s8 of the SRC Act. The only matter, in relation to the calculation of the amount of the applicant’s “normal weekly earnings” and, ultimately, the amount of compensation payable to him by way of incapacity payments, which was agitated before the Tribunal was the application of s8(10) of the SRC Act in the applicant’s case. The relevant matter to be determined, for the purposes of s8(10) of the SRC Act, is whether the amount of the applicant’s “normal weekly earnings” before his injury “would exceed … the amount per week of the earnings that [he] would receive if he … were not incapacitated for work”: see s8(10)(a). Accordingly, the Tribunal will make a finding only in relation to that matter.
Facts not in dispute
29. The Tribunal understands that the following facts are not in dispute, and it finds as follows:
· on 6 July 1998 the applicant signed a contract with Centrelink to work as a Customer Service Officer (Administrative Service Officer Class 1) for 36 hours and 45 minutes per week for the period from 6 July 1998 to 7 August 1998;
· on 11 August 1998 the applicant signed a contract with Centrelink to work as a Customer Service Officer (Administrative Service Officer Class 3) (“ASO3”) for 36 hours and 45 minutes per week for the period from 10 August 1998 to 28 August 1998;
· on 9 December 1998 the applicant signed a contract with Centrelink to work as an ASO3 for 36 hours and 45 minutes per week for the period from 7 December 1998 to 26 February 1999;
· on 22 February 1999 the applicant signed a contract with Centrelink to work as an ASO3 for 36 hours and 45 minutes per week for the period from 1 March 1999 to 7 May 1999;
· on 17 May 1999 the applicant signed a contract with Centrelink to work as an ASO3 for 36 hours and 45 minutes per week for the period from 10 May 1999 to 30 June 1999;
· on 31 May 1999 the applicant was appointed to the Australian Public Service as an ASO3 with Centrelink, 22 hours and 30 minutes per week, on probation, and that appointment took effect on 25 June 1999 when the instrument of appointment was signed by the applicant.
The applicant’s evidence
30. The applicant confirmed that he had signed (on 25 June 1999) a contract for permanent part-time employment with Centrelink. He said that he had applied for a permanent full-time position but that, when he was offered a permanent part-time position instead, he accepted it with a view to subsequently becoming a permanent full-time officer. He confirmed that previously , and at the time he sustained his neck injury, he had been employed as an ASO3 with Centrelink on a full-time, but temporary, basis.
31. The applicant said that neither before he sustained his neck injury, nor after he returned to work and during his probation period, was he ever notified by any of his work supervisors of concerns regarding inadequacies or deficiencies in his work performance. He confirmed that it had never been put to him that, because of his work performance, he would not be made a full-time employee. He also confirmed that the nature of the duties he would have performed as a full-time employee was no different from that of the duties he performed as a part-time employee.
32. In cross-examination the applicant confirmed that, when he was appointed to the permanent part-time position in June 1999, it was his understanding that he would eventually become a permanent full-time employee. He was unable, however, to explain, or to recall, how he had reached that understanding. He acknowledged that no one in Centrelink had ever told him that he would become a full-time employee, and he also acknowledged that his “understanding” that he would subsequently become a full-time employee was more in the nature of a hope rather than based on any oral statements or documentary information about Centrelink’s employment processes. He also confirmed that, after his return to work following his neck injury, he never applied for any full-time positions.
33. The applicant was referred to a Monthly Performance Assessment, completed by his supervisor and agreed by him on 2 September 1999, which specified certain aspects of his work performance which fell below the required standard but, with further training or experience, were expected to meet that standard. He was also referred to a Probationer Report, completed by his supervisor and agreed by him on 22 November 1999, which was to the same effect and which indicated that certain work performance issues had been drawn to his attention on 5 specified dates in August, September and October 1999. As regards his earlier evidence that no one in Centrelink had ever raised work performance issues with him, the applicant said that he could not recall such issues having been raised with him at that time.
The evidence of Ms M Radoccia
34. Ms Radoccia said that she is presently an Operations Manager at the Perth Call Centre of Centrelink. She joined the Perth Call Centre in March 1999 and from that time until June 2002 she was the sole Deputy Manager at the Centre. She said that one of her primary roles in that period was being involved in the recruitment of staff.
35. Ms Radoccia’s evidence was that she first met the applicant in March 1999 when he was employed at the Call Centre, servicing Youth Allowance and Austudy customers, “on a temporary contract, part-time/full-time basis”, his employment being “essentially … for a specific period and specific event/task during seasonal peaks in client services”.
36. In March 1999 Ms Radoccia arranged for a number of permanent part-time and full-time positions at the Call Centre to be advertised. The applicant applied for a position. Approximately 50-70 applicants (including the applicant) were interviewed and 30 positions (25 part-time and 5 full-time) were subsequently offered. The applicant was not offered a position on that occasion.
37. In April 1999 a further advertisement for permanent part-time and full-time positions at the Call Centre was placed, as a result of which 15 permanent part-time positions were offered. The applicant was one of the 15 persons who received such an offer. Ms Raddocia’s evidence continued:
“Mr Watterson was advised by the recruitment agency by phone that he had been successful in obtaining a permanent part-time position, which is the standard procedure. As he was working at the Perth Call Centre at the time, I also spoke to him regarding the matter. He accepted this position verbally when advised by the recruitment agency and myself. Mr Watterson was formally offered a permanent part time position working 22½ hours per week in Centrelink at Perth Call Centre commencing 31 May 1999. The offer of employment would expire 28 days after the required commencement date of 31 May 1999.”
38. Ms Radoccia said that throughout this recruitment exercise it was made clear to the interviewees (including the applicant) that the relevant positions were part-time positions. She said that she herself had “reinforced” this fact to the applicant when she spoke to him and informed him that his application had been successful. Her evidence continued:
“… Peter actually stated to me he would have preferred a full-time position because of his circumstances. However, he also stated that at that stage that he had been trying to get a permanent job in the public service for quite a long time and, therefore, this was a step in the right direction.
Okay. At any time, either when you had that conversation with Mr Watterson or any time thereafter, did you ever say to him that being given the part-time position meant that in time he would be offered a full-time position? --- No.”
39. Ms Radoccia confirmed that the permanent part-time position at the Call Centre which the applicant was offered, and which he subsequently accepted, was for 22½ hours per week. She said, however, that there would be “peak periods” when permanent part-time staff (such as the applicant) might be invited to work more than 22½ hours per week. As regards the applicant himself, Ms Radoccia specified the following periods (from July 2001) as peak periods (in the Youth and Students section of the Call Centre) during which it may have been expected that the applicant would have worked full-time hours:
· July – August 2001;
· October 2001 – March 2002;
· July 2002;
· October 2002 – March 2003;
· December 2003 – March 2004.
Ms Radoccia added that it was “not possible to state with certainty that since 1 April 2004 … [the applicant] would have worked full-time”.
40. Ms Radoccia confirmed that Centrelink had recruited 12 full-time staff in September 2001, 14 part-time staff in March 2003 and 19 part-time staff in January 2004 in the Youth and Students section of the Perth Call Centre, and she said that, based on her personal knowledge of the applicant’s work performance at the Call Centre, it was her “professional opinion” that the applicant “would not have had the necessary skill mix to have been successful in obtaining a full-time position in any of the recruitment processes since July 2001”.
41. In cross-examination Ms Radoccia acknowledged that the applicant, for the first 6 months of his probation period, would have been working full-time hours. She was unable to say whether the applicant would have remained on full-time hours for the remainder of his probation period (which, the Tribunal notes, extended beyond the standard period of 6 months to a period of 2 years, from 31 May 1999 to 31 May 2001).
42. Ms Radoccia agreed that in 2001, if probationers did not meet the required standards, Centrelink had no compunction about terminating their appointments. She confirmed, however, that the applicant was able to meet the required standards in 2001 and satisfactorily completed his probation.
43. Ms Radoccia confirmed that the nature of the duties of a part-time worker and a full-time worker at the Call Centre was identical. She also confirmed that the applicant, having completed his probation, had the capacity to be a full-time worker. She said, however, that if the applicant wished to secure a full-time position he would have to apply for it and compete with other applicants (including external applicants).
44. As regards the 15 persons (including the applicant) who were appointed to permanent part-time positions at the Call Centre on 31 May 1999, Ms Radoccia confirmed that, by August 2000, 6 of them had become permanent full-time employees with Centrelink. [The Tribunal notes that Centrelink records indicate that a 7th employee became a permanent full-time employee in December 2001, and that, as at December 2002, 6 others were no longer employed by Centrelink: see Exhibit A2].
The evidence of Ms C Barnard
45. Ms Barnard has been employed as a Rehabilitation Case Manager with Centrelink since 1996. She said that she first met the applicant in July/August 1999 in the capacity of his Rehabilitation Case Manager following the lodgment of his claim for compensation. Her evidence was that the applicant, for the purpose of his graduated return to work program, was placed initially at the Centrelink Customer Service Centre at Spearwood and subsequently at the Centrelink Customer Service Centre at Rockingham where he was assigned light duties and was able to increase his working hours to 25-30 hours per week (from October to December 2000). In December 2000, however, Ms Barnard was informed that the applicant’s employment contract specified 22½ hours per week and that he had not entered into any temporary contract to work more than 22½ hours per week, and his working hours were then reduced accordingly.
The evidence of Ms E de Munck
46. Ms de Munck has been employed as a Team Leader at the Perth Call Centre of Centrelink since 2000. She said that she first met the applicant in October/November 2000 when she was informed that he would be returning to work as part of her team in February 2001 following completion of his placement at the Rockingham Customer Service Centre. She said that she was also informed at that time that the applicant’s normal working hours were 22½ per week.
47. Ms de Munck said that when the applicant returned to work at the Call Centre in February 2001, she assisted substantially in his rehabilitation program. Her evidence was as follows:
“… Mr Watterson re-commenced employment at the Call Centre on a Graduated Return to Work program on reduced hours. This program was designed to return Mr Watterson to his normal part time hours of 22½ hours per week. As part of the program Mr Watterson was required to provide customer service on the phone. During his time in my team, Mr Watterson’s work standard was not at the level expected of a CSO and we were working to improve his performance. His performance was not meeting Call Centre requirements before Mr Watterson suffered his injury. Mr Watterson remained with my team for approximately 2-3 settlement periods working towards resuming his normal hours. Mr Watterson was unable to complete his Graduated Return to Work program as he took sick leave. Mr Watterson has not returned to the workplace or to my team since that time. As far as I can recall, Mr Watterson and I did not discuss him undertaking full time employment. The focus was to return Mr Watterson to his normal hours (part time) as designated in his contract and his return to work program.”
Findings
The test to be applied for the purposes of s8(10)(a) of the SRC Act
48. Both parties submitted that the appropriate test to be applied, for the purposes of s8(10)(a) of the SRC Act, is a “legitimate expectation” test – that is, the question to be asked is whether the amount of the employee’s pre-injury “normal weekly earnings” would exceed the amount of the weekly earnings that the employee had a legitimate expectation of receiving if he or she were not incapacitated for work.
49. The abovementioned “legitimate expectation” test has been applied in a number of decisions of the Tribunal regarding s8(10) of the SRC Act: see, for example, Re Langford and Comcare (1994) 35 ALD 704; Re Colson and Comcare (1996) 42 ALD 786; Re Jagtenberg and Comcare (unreported, Decision No 13164, 11 August 1998); Re Frost and Comcare (2004) 79 ALD 605).
50. In the Tribunal’s opinion the appropriate test to apply, for the purposes of s8(10)(a) of the SRC Act, is an objective “but for” test – that is, the question to be asked is whether the amount of the employee’s pre-injury “normal weekly earnings” would exceed the amount of the weekly earnings that the employee, but for his or her incapacity for work, would receive: see Re Davies and Comcare Australia (unreported, Decision No 9637, 1 August 1994), at para 47.
51. To the extent that the “legitimate expectation” test involves a consideration of an employee’s subjective expectation of the amount of the weekly earnings that he or she would receive if not incapacitated for work, it is, in the Tribunal’s opinion, an inappropriate test because an employee’s subjective expectation is, for the purposes of s8(10)(a) of the SRC Act, not to the point. If, however, the “legitimate expectation” test is understood and applied in a purely objective way – as explained in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291, 301, for the purpose of the principle of procedural fairness – then it may not be an inappropriate test to apply for the purposes of s 8(10)(a) of the SRC Act. In the Tribunal’s opinion, however, resort to a “legitimate expectation” test for the purposes of s8(10)(a) of the SRC Act is unnecessary and apt to be misleading, and should not be substituted for an objective “but for” test (as set out above) which accords with the literal terms of s 8(10)(a).
The application of the “but for” test in the applicant’s case
52. It is common ground that, prior to sustaining his neck injury on 20 May 1999, the applicant had signed various temporary fixed term contracts to work at the Perth Call Centre of Centrelink for 36 hours and 45 minutes per week for the following periods:
· 6 July 1998 – 7 August 1998;
· 10 – 28 August 1998;
· 7 December 1998 – 26 February 1999;
· 1 March 1999 – 7 May 1999;
· 10 May 1999 – 30 June 1999.
It is also common ground that, shortly after sustaining his neck injury, the applicant was, on 31 May 1999, appointed to a permanent part-time ASO3 position at the Perth Call Centre for 22 hours and 30 minutes per week, and that appointment took effect on 25 June 1999 when the applicant signed the relevant instrument of appointment.
53. The applicant submitted that, at the time of his injury, he was working full-time as an ASO3 at the Perth Call Centre and he had a “legitimate expectation” that he would continue working full-time in that capacity, either as a permanent full-time officer or (as was the case for a period of approximately 6 months immediately before, and at the time of, his neck injury) as a temporary full-time employee on the basis of “rolling” fixed term contracts.
54. As regards the prospect that the applicant would become a permanent full-time officer, the Tribunal notes the information (referred to in paragraph 44 above) that, of the 15 persons (including the applicant) who were appointed to permanent part-time positions at the Perth Call Centre on 31 May 1999, 6 had become full-time employees with Centrelink by August 2000, another had become a full-time employee with Centrelink by December 2001, while 6 others were, as at December 2002, no longer employed by Centrelink. Although the applicant relied heavily on that information in support of his contention that he had a “legitimate expectation” that he would become a permanent full-time employee with Centrelink, the Tribunal regards that information as somewhat inconclusive in that it reveals merely that, by December 2001, 7 of the 15 persons, who were appointed as permanent part-time officers on 31 May 1999, had become permanent full-time officers, and that 6 others had since left Centrelink (but the dates on which, and the reasons for which, they left Centrelink are not revealed). The Tribunal is unable to conclude, on the basis of that information, that the applicant would have become a permanent full-time employee with Centrelink and that, but for his incapacity for work, he would be receiving weekly earnings on the basis of his working as a permanent full-time employee.
55. The Tribunal notes and accepts the evidence of Ms Radoccia that, in her professional opinion, the applicant would not have been successful in obtaining a full-time position in any of the relevant Centrelink recruitment processes since July 2001. The Tribunal finds, on the basis of that evidence, that the applicant would not have become a permanent full-time employee with Centrelink and it therefore finds that, even if he had not become incapacitated for work, he would not have received weekly earnings on the basis of his having worked as a permanent full-time employee.
56. As regards the prospect of the applicant’s continuing to work full-time as an ASO3 with Centrelink as a temporary full-time employee on the basis of “rolling” fixed term contracts (as he was doing for approximately 6 months immediately before, and at the time of, his neck injury), the Tribunal is unable to find, on the evidence before it, that that state of affairs would have continued beyond 2 July 2001 (the date from which the applicant’s incapacity payments under s19 of the SRC Act were ceased by the respondent). Ms Radoccia’s evidence was, however, that for certain “peak periods” in the period from July 2001 to March 2004 – as set out in paragraph 39 above – it may have been expected that the applicant would have worked full-time hours. The Tribunal accepts Ms Radoccia’s evidence, and, on the basis of that evidence, finds that the applicant, but for his incapacity for work, would have worked as a full-time employee for those periods specified by Ms Radoccia (set out in paragraph 39 above), and that the applicant, but for his incapacity for work, would have received weekly earnings on the basis of his having worked full-time hours for those periods.
57. As regards the period from 1 April 2004 to the present date, the Tribunal notes Ms Radoccia’s evidence that it was “not possible to state with any certainty” that the applicant would have worked full-time. The Tribunal, however, is prepared to infer (in the absence of clear evidence to the contrary) that, since 1 April 2004, there have also been “peak periods” in 2004 and 2005, as there were in 2001, 2002 and 2003, when the applicant, but for his incapacity for work, would have worked as a full-time ASO3 with Centrelink, and that, but for his incapacity for work, he would have received weekly earnings on the basis of his having worked full-time hours for those periods.
58. Accordingly, the Tribunal finds that, for the purpose of calculating the amount of compensation by way of incapacity payments which is payable to the applicant in accordance with s19 of the SRC Act, the amount of the applicant’s “normal weekly earnings” is to be calculated, in accordance with s 8 of the SRC Act, on the basis that, in the period from 2 July 2001 to the present date, the applicant, but for his incapacity for work, would have received weekly earnings on the basis of his having worked:
· full-time hours per week for the “peak periods” referred to in paragraphs 39, 56 and 57 above;
· 22 hours and 30 minutes per week for the remainder (that is, the periods since 2 July 2001 other than the “peak periods” referred to in paragraphs 39, 56 and 57 above).
DECISION
59. For the above reasons the Tribunal sets aside the reviewable decision of the respondent dated 10 January 2002, and, in substitution therefor, decides that the respondent continued to be liable on and from 2 July 2001, and is presently liable, under s14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), RC Act, to pay compensation in accordance with that Act to the applicant in respect of his neck injury which he sustained on 20 May 1999.
60. The Tribunal remits to the respondent the calculation of the amount of compensation by way of incapacity payments which is payable to the applicant in accordance with s19 of the SRC Act, with a direction that the amount of such compensation be calculated on the basis of the Tribunal’s finding set out in paragraph 58 above.
61. The Tribunal orders, pursuant to s67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: ...............(sgd E M Jordan).......................
AssociateDates of Hearing 15-17 February, 27 April 2005
Date of last Submissions 3 June 2005
Date of Decision 5 December 2005
Counsel for the Applicant Mr C Prast
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Sparke Helmore
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