Slater and Telstra Corporation Limited [1999] AATA 849 (12 November 1999)

Last Updated: 22 November 1999

DECISION AND REASONS FOR DECISION [1999] AATA 849

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q1998/1300

) Q1998/1303

GENERAL ADMINISTRATIVE DIVISION )

Re GORDON SLATER

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Dr P Gerber, Deputy President Dr K P Kennedy, Member Major-General J N Stein, Member

Date 12 November 1999

Place Brisbane

Decision The Tribunal varies the decision under review insofar as we determine that suitable employment for the applicant includes the occupations listed by Work Directions Australia in their report dated 4 September 1998. The matter is remitted to the respondent to calculate compensation payments by the respondent to the applicant in accordance with Section 19 of the Safety Rehabilitation and Compensation Act 1988. The Tribunal further directs that: compensation payments as calculated in accordance with Section 19 of the Act be payable from some date in October 1997 to be agreed on by the parties; the respondent provide vocational counselling to select an occupation from the list provided in the Work Directions Australia report; and the respondent provide a rehabilitation program pursuant to Section 37 of the Act, or some other form of program with the aim of re-training the applicant for his chosen occupation.

(Sgd) P Gerber

Deputy President

CATCHWORDS

COMPENSATION - WORKPLACE INJURY - SUITABLE EMPLOYMENT - REHABILITATION PROGRAM - NORMAL WEEKLY EARNINGS - INCAPACITY FOR WORK - WHETHER LIABILITY EXTENDS BEYOND CONTRACT OF EMPLOYMENT

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 19, 36, 37

REASONS FOR DECISION

12 November 1999 Deputy President P Gerber Dr K P Kennedy Major General J N Stein

1. This is an application for review of a decision made at first instance by an officer of GIO Australia, the insurance agent for Telstra Corporation Ltd ("the respondent"), on 10 November 1998. This determined suitable employment for the applicant for the purposes of s 19 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The decision was affirmed by an officer of GIO Australia on 14 October 1998.

2. Both parties were represented by Counsel, the applicant by Mr D O'Gorman, instructed by Messrs Mahoney & Hesford, and the respondent by Mr RB Dickson, instructed by Messrs Standish Partners.

3. The applicant was born in the United Kingdom and is aged 45 years. He left school aged 16 years and completed a four-year apprenticeship, qualifying as a refrigeration mechanic. Upon attaining that qualification he worked for approximately 18 years as a refrigeration mechanic in the family business. The applicant came to Australia in 1992.

4. After approximately eighteen months in Australia, working in positions including a contractor with Pepsi and brewery technician with Powers Brewery, the applicant returned to the United Kingdom for some 13 months.

5. The applicant returned to Australia in February 1995 and in October of that year gained employment with the respondent. He was given a six months contract as a cable television installer, then entered a further six months contract from April to September 1996.

6. On 11 July 1996, whilst installing television cable, the applicant was pulling cable through a conduit using his foot. The cable jammed resulting in the applicant suffering injury to his left knee, this being diagnosed by Dr Rackemann as an 80% rupture of the anterior cruciate ligament and chondral damage to the medial femoral condyle. This finding was not challenged.

7. The applicant lodged a claim for compensation on 19 July 1996. Except for two days work on light duties in late July 1996, he has not returned to work to this day.

8. At the hearing, the applicant gave evidence that he has attempted to find work. However, he has been unsuccessful. This he claimed was due to his disability and/or because the respondent failed to re-train him. He supplied copies of a number of letters written by him applying for various positions, some unsuitable. Others he made sure he would not be offered by emphasising his physical disability.

9. On 6 August 1996 the respondent accepted liability for incapacity payments to the applicant from 1 August 1996. Following a medical assessment, on 17 March 1997 the respondent determined that the applicant was capable of returning to full-time work duties with restrictions as of 9 January 1997, and that the respondent was not liable to pay compensation to the applicant from that date. The applicant requested a reconsideration of this determination on 27 March 1997.

10. On 16 April 1997 the respondent affirmed the decision of 17 March 1997, but also determined that liability still existed for certain medical expenses, such as future physiotherapy, until early May 1997, and medical monitoring of his condition for approximately 18 months. The applicant applied to the Tribunal for review of that decision.

11. On 13 March 1998 the Tribunal decided that the applicant was partially incapacitated for work, but fit for full-time work in suitable employment. The matter was remitted to the respondent with a direction that they determine what would be suitable employment for the purposes of s 19 of the Safety Rehabilitation and Compensation Act 1988.

12. In response to the above direction, the respondent had the applicant assessed by Work Directions Australia on 21 July 1998.

13. In a report dated 4 September 1998 (Exhibit B), Work Directions Australia assessed the applicant to be suitable for the following occupations:

* Console Operator (for petrol/service station)

* Real Estate Salesperson

* Occupational Health and Safety Officer

* Teacher of Technical and Further Education/TAFE Teacher

* Engineering Associate Professional eg. Mechanical Engineering Technician

* Engineering Associate Professional eg. Mechanical Engineering Associate

* Building Inspector/Surveyor

Work Directions Australia also specified in this report that the applicant would require re-training to undertake any of these occupations. It was recommended that should the applicant embark on such training, the results of this assessment be followed up with vocational counselling in order to assist him in making a final decision as to the specific occupation to follow.

14. The applicant gave evidence that he agreed with the report in that he could not return to his former employment as a refrigeration mechanic. He accepted that the occupations listed would be suitable for him, except in relation to console operator and real estate agent. A number of reasons were offered by the applicant for this. He believed, from his understanding of the job, console operator would not be suitable because he cannot sit or stand for long periods. Mr O'Gorman went further and submitted that the position of console operator was "beneath" his client, taking into consideration his background as a qualified tradesman; and real estate agent would not be suitable as he had no background in selling on commission.

15. Ultimately, it was submitted by Mr O'Gorman that these jobs were not suitable for the applicant in accordance with the definition of "suitable employment" in s 4(1) of the Act. Mr O'Gorman pointed to the need for "emotional satisfaction" on the part of the applicant. He relied upon an extension of the principles applied by the Federal Court in Department of Defence v Fox (1997) 24 AAR 171, a decision relating to the provision of a rehabilitation program pursuant to s 37 of the Act. The thrust of Mr O'Gorman's submission was that when assessing suitable employment for a particular person, it is not enough to establish what types of work that person is physically and intellectually capable of performing. What must also be established, based upon the person's background and experience, is what type of work will be emotionally satisfying for the person. Counsel failed to point to any employment that would not be "beneath" the emotional requirements of this qualified tradesman.

16. The thrust of the applicant's evidence was that whilst he would be happy to accept the majority of the occupations identified in the Work Directions Australia report, he had no idea as to what any of these occupations entailed. He therefore requested that he be provided with some vocational counselling to assist in choosing which occupation would be most suitable, as was suggested by Work Directions Australia in their report.

17. The applicant was rigorously cross-examined and it was submitted that on his own evidence he had demonstrated no interest in returning to full-time employment, and that his sole aim in life was to remain on disability payments. Counsel pointed to the applicant's numerous job applications and submitted that they were merely intended to lay the foundation for establishing his alleged willingness to work. The applicant conceded that some applications were not genuine attempts, rather they were designed to show the respondent that he was unable to find work in the areas suggested in the Work Directions Australia report.

18. Mr O'Gorman sought to meet this attack by submitting that the applicant's attempts to find employment were of no consequence, as he was unable to engage in any full-time employment without re-training, pointing to the Work Directions Australia report.

19. Mr O'Gorman submitted that since receiving the report, the respondent had done nothing to act on it except to determine "suitable employment", and that this was not enough to comply with the earlier Tribunal's direction of 13 March 1998. He submitted that as the direction was that the respondent determine suitable employment "for the purposes of s 19" of the Act, it was clear that the Tribunal as then constituted intended that the respondent comply with this section and make calculations as to the compensation payable to the applicant.

20. The applicant claims to have requested the respondent on numerous occasions to be provided with a rehabilitation program in accordance with s 37 of the Act. The respondent, in turn, claims that such a program has been offered to the applicant but he has refused it. No evidence of such refusals was provided. On the other hand, in a letter dated 7 December 1998 (TA-14), the respondent wrote to the applicant in response to his requests and stated:

"In relation to providing further rehabilitation, it was never Telstra's intention to offer you suitable employment with Telstra or to conduct a rehabilitation program to locate you with suitable employment in the labour market. I apologise for any misunderstanding that may have occurred in this regard."

21. In the meantime, the applicant has returned to the United Kingdom and lives there with his wife and three children. He flew back to Brisbane solely for purposes of this hearing. He stated in evidence that if he were offered a rehabilitation program by the respondent he would return to Australia to take part in it. He also stated that if a reasonable job became available at the conclusion of this program, he would probably return to Australia permanently and his wife and two youngest children would come back with him.

22. In a bold submission, it was claimed on behalf of the respondent that its liability to pay compensation ceased because the applicant was on a fixed term contract which had ended, thereby ending its liability. With the greatest respect, this is nothing short of nonsense. The intention of the Act is to compensate for injuries that arise out of or in the course of employment, and it is irrelevant whether the workman is employed pursuant to a fixed term contract. To suggest that liability for injury, incurred whilst an employee was employed, ceases when his contract of employment comes to an end, is to turn the clock back to a time before the advent of workmen's compensation and workers were defeated at common law pursuant to the doctrine of "common employment". It is surely too late to argue that s 19 of the Act does not apply to an employee who is incapacitated for work as a result of a work-related injury. There is no dispute that on 13 March 1998 this Tribunal decided that the applicant suffered a partial incapacity for work arising from an accident in the course of his employment. It follows that the applicant comes within the ambit of s 19, thereby attaching liability upon the respondent to compensate him as per the formula provided by that section "for each week during which the employee is incapacitated".

23. The liability of the respondent to the applicant under s 19 of the Act is also provided for by the direction of the Tribunal on 13 March 1998 that the respondent determine "what would be 'suitable employment' for the purposes of s 19". We agree with the submission of the applicant in relation to this, and find that the respondent has failed to comply with this direction. At the risk of repetition, it is clear upon reading s 19 that its purpose is to provide compensation to an incapacitated employee. The respondent, in determining a number of occupations suitable for the applicant, has not gone far enough to comply with this direction. The respondent is required to then use this information to make calculations in accordance with s 19, to enable determination of the compensation payable by it to the applicant.

24. The applicant has been trained as a refrigeration mechanic and has spent the majority of his working life in that occupation. He was injured whilst employed as a cable installer by the respondent. The Work Directions Australia report of 4 September 1998 specifies that due to the applicant's "physical restrictions as a result of his work-related accident in 1996, a return to his previous occupations of Cable Installer or Refrigeration Mechanic is contra-indicated". We again find that the applicant's ability to work has been restricted by the work injury. As already pointed out, under the Act the respondent has a responsibility not only to compensate the applicant for his injuries and loss of work for the period for which he was contracted. This responsibility extends to cover the effect of the incapacity to the applicant beyond the period of the contract and into the future. Additionally, the responsibility may extend to include rehabilitation and re-training of the applicant to ensure that he is able to re-enter the workforce.

25. We agree with the submission that the applicant has shown no inclination to return into the workforce and sat on his hands waiting for the respondent to take the initiative in complying with the requirements of the Act. Indeed, we think it likely that the applicant will fail to take full advantage of any rehabilitation provided in order to seek suitable employment in this country. He has again made his life back in England and we feel he is likely to return there when his rights under the Act are exhausted. In short, we were far from impressed with the applicant and his demeanour in the witness box. He knows his rights and is determined to exhaust them to the end. Having said this, it is equally apparent to us that the respondent has failed to comply with the Act and has neglected its statutory obligation.

26. The respondent submitted that they have been unable to undertake the calculation provided by s 19 of the Act because the applicant has been obstructionist and rejected the occupations that were listed in the Work Directions Australia report. However, the respondent made it clear in the reviewable decision to the applicant dated 10 November 1998 (Exhibit I) that it felt the applicant was not entitled to payments under s 19. This is a basic and fundamental misconception of the requirements of the Act.

27. The decision under review is varied insofar as we determine that suitable employment for the applicant includes the occupations listed by Work Directions Australia in their report dated 4 September 1998 (Exhibit B). We remit the matter to the respondent to calculate compensation payments payable by the respondent to the applicant in accordance with s 19 of the Act. Further, we direct that:

* compensation payments as calculated in accordance with s 19 of the Act be payable from some date in October 1997 to be agreed on by the parties;

* the respondent provide vocational counselling to select an occupation from the list provided in the Work Directions Australia report; and

* the respondent provide a rehabilitation program pursuant to s 37 of the Act, or some other form of program with the aim of retraining the applicant for his chosen occupation.

28. Liberty to apply in the event the parties are unable to agree on the date from which compensation becomes payable is granted.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P Gerber (Deputy President), Dr K P Kennedy, Major General J N Stein (Members)

Signed: Robert Hayes

Associate

Dates of Hearing 25, 26, 27 August 1999

Date of Decision 12 November 1999

Counsel for the Applicant Mr D O'Gorman

Solicitor for Applicant Messrs Mahoney & Hesford

Counsel for the Respondent Mr RB Dickson

Solicitor for the Respondent Messrs Standish Partners