Ganley and Comcare [2003] AATA 14 (9 January 2003)

Last Updated: 13 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 14

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/350

GENERAL ADMINISTRATIVE DIVISION )

Re EUGENE GANLEY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S Webb, Member

Date 9 January 2003

Place Canberra

Decision 1. The Tribunal decides to set aside the decision under review and, in substitution therefor, decides that: (i) The Applicant is entitled to on-going compensation payments for incapacity from 22 February 2000 for which the Respondent is liable. (ii) The amount the Applicant is able to earn in suitable employment is the amount of his earnings each week in employment commencing 22 February 2000. (iii) The matter is remitted to the Respondent to assess the correct amount of compensation for incapacity that is payable. 2. The Tribunal orders that the Respondent pay the Applicant's reasonable costs of these proceedings. Mr S Webb, Member

CATCHWORDS

WORKERS COMPENSATION - compensable injury - entitlement to incapacity payments - offer of suitable employment - voluntary redundancy - whether offer of employment suitable - whether failure to accept or continue to engage in that employment reasonable - relevance of other factors - relocation for family reasons - knowledge of effect of accepting voluntary redundancy on compensation claim

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 sections  4(1), 4(9), 14(1), 19(1), 19(2), 19(4)

Compensation (Commonwealth Government Employees) Act 1971 sections 7A, 7B

CASES

Re Lagwa and Comcare [1999] AATA 638

Re Ginn and Telstra Corporation Limited (AAT 13340, 1 October 1998)

Davies and Australian Postal Corporation (2002) 68 ALD 238

Woodbridge v Comcare (1994) 20 AAR 196

Re Shanahan and Australian Postal Corporation (1995) 36 ALD 613

Re Collins and GIO Australia (1999) 60 ALD 516

Re Evans and Australian Postal Corporation (AAT 10586, 8 December 1995)

Re Ly and Australian Postal Corporation (AAT 10581A, 28 January 1997)

Re Chamberlain and Comcare (AAT 11567, 24 January 1997)

Comcare Australia v Rowe (2002) 35 AAR 410

Re Prica and Comcare (1996) 44 ALD 46

Telstra v Slater [2001] FCA 149

Re Andrade and Department of Health and Community Services (NT) (1990) 19 ALD 99

Esam v ASP Ship Management [1998] 1129 FCA

Comcare v Rawling (1993) 42 FCR 421

Re Peers and Commonwealth of Australia (1987) 14 ALD 209

Re Peers and Commonwealth of Australia (No. 2) (1987) 15 ALD 193

Arnotts Snack Products Pty Ltd v Yacob (1984) 155 CLR 171

Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585

Pulitano v Telstra Corporation Limited [1998] 212 FCA

Re Spano and Australian Telecommunications Commission (1987) 15 ALD 121

Comcare v Line [2002] FCA 553

REASONS FOR DECISION

9 January 2003 Mr S Webb, Member

1. This is an application by Mr Eugene Ganley ("the Applicant") for review of a reviewable decision (T69) made by an Independent Review Officer ("IRO") on 20 August 2001 under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The IRO's decision affirmed a determination made by a delegate of Comcare ("the Respondent") on 15 May 2001 (T63) to reject the Applicant's claim for incapacity payments in respect of "whiplash, L5/S1 disc lesion". The delegate's determination was made on the basis that the Applicant "voluntarily removed himself from employment with the Commonwealth".

2. The IRO states in her reasons for the reviewable decision (T69, folios 166-167), inter alia:

"I have not been provided with any evidence that the employee was "out of work" in the months leading up to the acceptance of his redundancy. Nor is there any evidence of a claim for incapacity payments during that period. I also note the employee's claim for "top up" payments were made some eight months after his acceptance of redundancy.

I am satisfied, on the basis of the material before me, that the employee was aware of the consequences of accepting a voluntary redundancy in early 2000. I am also satisfied that he sought out the redundancy from his employer and that the redundancy was "voluntary".

There is no evidence on file to suggest that the employment provided to the employee was inadequate or unsuitable. No medical evidence has been provided to indicate why the employee was unable to continue in that employment. On that basis I am not satisfied that the employee's decision to accept a voluntary redundancy was "reasonable" in all the circumstances and, accordingly, I determine that, pursuant to s 19(4)(c) of the Act, the employee was offered suitable employment by the Agency and failed to continue to engage in that employment. I therefore determine that the employee is able to earn an amount equal to his normal weekly earnings in suitable employment, and that he is not entitled to compensation for incapacity payments pursuant to s19 of the Act."

3. The issue is whether or not the Applicant had received an offer of suitable employment and, if he had, whether he had unreasonably failed to accept that offer, or unreasonably failed to continue to engage in that employment.

4. The Tribunal convened a hearing in this matter on 2 and 3 October 2002 in Canberra. Mr S Pilkington of Counsel appeared for the Applicant. Ms L Walker of Counsel appeared for Comcare. The Applicant gave sworn oral evidence. Evidence was also given by Dr Millons, Consultant Orthopaedic Surgeon, and Dr J Chen, Consultant in Occupational Medicine. The Tribunal had before it the following documents:

Exhibit T1-T69 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

Exhibit A1 Report by Dr W Harrex, Consultant Occupational Physician, dated 26 September 2002.

Exhibit A2 Vehicle Standards Officer, Motor Vehicle Registration, Dept Transport & Works, Physical Job Description, dated June 1999.

Exhibit A3 Applicant's bundle of documents comprising folios 1-43.

Exhibit A4 Report by Dr D Millons, AM, Orthopaedic Surgeon, dated 30 November 1999.

Exhibit A5 Department of Transport and Works Job Description: Transport Inspector - T2, dated 1 November 1999.

Exhibit A6 Chronology of Employment - Eugene Ganley, reference 180602.

Exhibit A7 Notice of Redundancy for Eugene Francis Ganley, dated 10 February 2000.

Exhibit A8 Report by Dr D Millons, dated 18 March 1993.

Exhibit A9 Minute to Personnel Officer, subject: Eugene Ganley - Fitness to Discharge Duties as Transport Inspector, dated 8 August 1990, with attached report by R A Ballagh, dated 23 December 1988.

Exhibit A10 Letter to Mr E Ganley signed by Melinda Bongiorno, dated 5 November 1999.

Exhibit R1 Report by Dr J Chen, Consultant Physician in Occupational Medicine, dated 28 November 2001.

Exhibit R2 Respondant's bundle of documents noted in covering "Chronology - Ganley", reference 112822189\2348321\JMF.

Exhibit R3 Report by Dr K Nadana Chandran, Neurosurgeon, dated 23 July 1998.

Exhibit R4 Report By Dr K Nadana Chandran, dated 3 August 1998.

Exhibit R5 Letter from Department of Transport and Works to Mr E Ganley dated 22 November 1999.

Exhibit R6 Letter from Department of Transport and Works to Mr E Ganley dated 9 December 1999

background facts

5. The following background is provided by way of information and is not disputed by the parties.

6. The Applicant was born on 29 November 1962 and suffered an injury to his back in a motor vehicle accident when leaving his place of employment in Alice Springs on 16 October 1984. At the time, he was employed by the Northern Territory Department of Transport and Works ("the Employer") in the position of Motor Mechanic. Initially his injuries were thought to be minor, however a disc protrusion at the lumbrosacral level was diagnosed in early 1985. The Employer accepted liability and, after treatment, the Applicant returned to work in mid-1985. After the motor vehicle accident, the Applicant was not able to continue to carry out his duties as a Motor Mechanic and was allocated light duties (T5).

7. The Applicant worked as a Spare Parts Purchasing Officer for a period of approximately 12 months, until this position was discontinued and he was transferred to a Transport Inspector Officer position. The Applicant continued in this position with the support of weekly physiotherapy until August 1993 (T5). In August 1993, he was redeployed to the position of Disposals Officer with NT Fleet (T62, folio 150). The Applicant had difficulty coping with aspects of this position and was referred to Mr Tyrell, Clinical Psychologist, for a stress management program (T3).

8. In January 1995, the Applicant's wife relocated to Canberra. In the period 18 March 1996 to 3 May 1996, the Applicant was temporarily transferred to the position of Courier with the Northern Territory Department of Education. The transfer was not continued and the Applicant returned to the position of Disposals Officer. He took extended periods of sick leave, recreation leave and long service leave thereafter (T5). On 23 January 1998, the Employer advised the Applicant he was required to return to work (Exhibit R2 folio 201), which he did on a graduated return to work basis from 1 April 1998 (Exhibit R2 folio 25).

9. The Applicant sought "top up" incapacity payments for periods during which he had been certified as unfit (T7) and enquired about redundancy on 23 April 1998 (T8). On 11 May 1998, the Applicant was advised that he was "excess to staffing requirements" (T10). On 11 November 1998, the Respondent advised the Applicant that he was no longer entitled to incapacity payments due to "accepting a voluntary redundancy package" (T17). On 20 November 1998 the Applicant denied accepting a redundancy package and pursued his claim for incapacity payments (T18).

10. The Applicant claimed compensation for permanent impairment in relation to his back, neck and left leg. The Respondent determined to reject this claim for the Applicant's back and neck on 23 July 1999 (T44). The Applicant's claim for his left leg was rejected by the Respondent on 26 July 1997. This determination dated 26 July 1997 was reviewed on 8 October 1999 (T51) and affirmed. This reviewable decision was appealed to the Tribunal, which decided to set aside the decision on the basis that the Applicant's lower back injury had caused a permanent impairment of his left leg (T59).

11. On 22 November 1999, the Employer refused to approve a further period of sick leave and required the Applicant to return to work on 13 December 1999 (Exhibit R5). On 9 December 1999, the Employer, having received further information, approved a period of unpaid leave to 21 January 2000 and directed the Applicant to return to work on 24 January 2000 (Exhibit R6). On 13 December 1999 the Applicant advised that he would seek a voluntary redundancy package (T53) and confirmed this with the Employer on 22 December 1999 (T54). The redundancy was approved on 10 February 2000 (T55) and took effect on 22 February 2000 (Exhibit A7).

12. On 23 October 2000 the Applicant sought payment of incapacity payments to "top up" his part time salary as a cleaner in Canberra (T60). Payment of incapacity payments was refused on 15 May 2001 by a delegate of the Respondent (T63). On 5 June 2001 the Applicant sought a reconsideration of this decision (T64). The decision was affirmed on reconsideration on 20 August 2001 (T69), as a consequence of which application was made to the Tribunal on 23 August 2001 (T1).

EVIDENCE

The Applicant

13. The Applicant gave evidence that his injury prevented him from performing the duties of a Motor Mechanic. On returning to work in 1985, he had been assigned light duties in the position of Spare Parts Purchasing Officer. He stated that this position was abolished about 12 months later, whereupon he was transferred to the position of Transport Inspector. However, contending that the duties of this position aggravated and exacerbated his symptoms, the Applicant described duties that required extensive bending, twisting and heavy work, especially when required to inspect road-trains on mobile patrols and in the vehicle testing shed.

14. The Applicant told the Tribunal he had been found unfit to perform the duties of Transport Inspector in 1993 and was redeployed to NT Fleet in the position of Disposals Officer. He said he found the physical duties of this position more suitable, but had difficulties with clerical duties, especially filing. He reasoned that he had no experience or aptitude for clerical and administrative duties, and did not know how to use a computer. He told the Tribunal such duties caused him to experience stress for which he had received psychological assistance. The Applicant related experiencing difficulties with clerical functions while on a temporary transfer to the Department of Education as a Courier. He recalled his Disposals Officer duties being modified to exclude administrative tasks, whereupon he was declared to be an unattached officer. In 1999, he stated he became aware that he was to be made redundant, and was declared to be excess to the Department's requirements. In this regard, he recalled signing redundancy papers provided to him by Mr Brierson of NT Fleet, only to discover later that no involuntary redundancies would be provided. He stated he did not want to proceed with a voluntary redundancy at that time.

15. The Applicant told the Tribunal he married his wife in 1990 and she relocated to Canberra in 1995 to take up a new job. He gave evidence that they experienced difficulty starting a family and received treatment for fertility problems in Canberra that was not available in Alice Springs. The treatment was successful and two children were born in 1996 and 1998. The Applicant recalled the difficulties he experienced being separated from his wife and infant children. He said he had wanted to join his family in Canberra and was strongly motivated in that regard, but needed to resolve his employment and compensation first.

16. In this regard, the Applicant told the Tribunal he made enquiries about voluntary redundancy options and sought advice. Ultimately, the Department had instructed him to return to work in the position of Transport Inspector, even though he had been certified unfit to perform the duties of this position. He felt the Department was trying to get rid of him. He reasoned that he was faced with an impossible choice between:

(i) returning to Alice Springs to perform work he could not do, in the knowledge this would be deleterious to his health and his family, where refusal would lead to dismissal, and

(ii) seeking voluntary redundancy, in the knowledge this may adversely effect his entitlement to compensation even though he could no longer earn an income from his trade of Motor Mechanic and may experience difficulty gaining employment as a result of his compensable injury.

17. The Applicant said the only real option was to take redundancy, which he did on 22 February 2000. He reasoned that his acceptance of redundancy was not truly voluntary in the circumstances: the instruction to return to work as a Transport Inspector was not reasonable because the Department did not have any suitable employment that he could do and was trying to force him to resign.

18. Thereafter, the Applicant said he found employment with Empire Cleaning in Canberra on a part time basis, which was ongoing. He told the Tribunal he worked as a cleaner 2 hours per day, five days per week, and every fourth week worked an additional 4 hours per day for five days. He stated this work involved light duties that he could manage and arrange to suit his symptoms, especially as he worked with another person. The Applicant contended that he would work full time if he could, as he needed the money to support his family, but after working six hours in one day his back would be sore and he felt tired.

MEDICAL EVIDENCE

Dr Millons

19. The Tribunal had before it several reports by Dr Millons (Exhibit A3 folio 29, Exhibit A4, Exhibit A8, T4, T13, T14), Orthopaedic Surgeon, who also gave oral evidence. Dr Millons, told the Tribunal that he had examined the Applicant on six occasions between 18 March 1993 and 23 November 1999. During this period he had noticed some deterioration in the Applicant's condition, with pain being experienced in the left lower limb in 1993 and in both lower limbs in 1996. In Dr Millons' opinion bending, twisting and lifting heavy weights may exacerbate the Applicant's back condition and any work involving these actions would not be suitable. He opined that the Applicant was fit to perform some of the lighter duties of a Transport Inspector, but that he should not perform duties involving repetitive or prolonged bending, twisting or lifting heavy weights.

20. When questioned about the Applicant's ability to work full time, Dr Millons conceded that that the Applicant may be able to work full time in appropriate duties that would not aggravate his back condition. However, it may be necessary to consider a graduated return to work program, building up to full time work, as the Applicant has had a long period away from work.

21. Dr Millons did not consider that the duties of a Courier would be suitable for the Applicant as there may be difficulties getting into and out of vehicles. Dr Millons also expressed the opinion that light cleaning duties would be suitable for the Applicant, but this would not include duties that involved heavier work or repetitive bending or twisting, such as vacuuming, cleaning toilets or emptying rubbish bins. Dr Millons considered that restrictions on the work able to be performed by the Applicant would include a lifting restriction of 5 kilograms, no repetitive bending or twisting and restrictions on duties involving hyperflexion.

Dr Chen

22. The Tribunal had before it a report by Dr Chen (Exhibit R1), Consultant Occupational Physician, who also gave oral evidence. Dr Chen, told the Tribunal that she had examined the Applicant prior to preparing her report dated 28 November 2001. When preparing the report, Dr Chen had considered documents provided by the Respondent, including the job description for the Vehicle Standards Officer position and an occupational therapist's report. She had not reviewed reports by Dr Millons or any documents from the Applicant's supervisor, she agreed with Dr Millons that there had been some deterioration in the Applicant's condition.

23. Dr Chen considered that a lifting restriction of 15 kilograms would be appropriate and that occasional bending or twisting may be fine. When questioned on this point, Dr Chen agreed that frequent bending or twisting, such as conducting 25 to 30 inspections per day in the Vehicle Testing Shed (Exhibit A9 Attachment A(i), part A) could aggravate the Applicant's back condition. She considered that inspecting road-trains (Exhibit A9, Attachment A(i), part B) could aggravate the Applicant's condition if this was required on a frequent or daily basis. Dr Chen agreed that conducting mobile inspections, using portable scales that weighed 18.25 kilograms, could also aggravate the Applicant's back condition.

24. Dr Chen stated that she would prefer to inspect or view a video of the Applicant's work site rather than rely on other reports. She acknowledged that she was not aware of reports from the Applicant's supervisor in August 1990, from the Commonwealth Medical Officer and from Ms Jensen, Occupational Therapist, all of whom had access to the work site, that the Applicant was not fit to perform the duties of a Transport Inspector.

Other Medical Evidence

25. Ms A Jacobs, Manager Human Resources Services, reported that the Applicant was assessed by Dr C Vijayakumar, Commonwealth Medical Officer, on 12 October 1988:

"The outcome of this appointment was to redeploy Mr Ganley to lighter duties with no bending, lifting or crawling under vehicles, no sitting or standing for long periods." (Exhibit A3, folio 32).

Ms Jacobs reported that the Applicant was assessed by Dr Ly, Commonwealth Medical Officer, on 9 October 1990 and found to be:

"...not suitable for the position of Transport Inspector should his attitude and the environment remain unchanged. She recommended that he avoid direct encounter with the public, should work indoors, no heavy lifting, avoid bending over, avoid prolonged sitting and ensure low stress level." (Exhibit A3, folio 32)

Ms Jacobs reported a further assessment of the Applicant by a Commonwealth Medical Officer, Dr Horsburgh, on 26 July 1995. Dr Horsburgh concluded:

"...Mr Ganley is not fit for his present duties or for any other duties to which his employer may redeploy him." (Exhibit A3, folio 32)

Ms H Jensen

26. Ms H Jensen, Occupation Therapist, reported on 23 July 1990:

"Serious consideration needs to be given to re-deploying Mr Ganley in an alternative position as his present work aggravates his back condition due to the postures he is required to maintain and also due to the cold in winter. This alternative would need to have a reduced stress component.

This is obviously going to be difficult given his physical limitations. He is unable to sit for extended periods which make any job which is solely clerical unsuitable. He is also unable to do much lifting or bending and driving long distances is also difficult. He requires duties which provide him with a variety of postures to relieve the stress on his back." (Exhibit A3, folio 43)

Ms Isherwood-Hicks

27. Ms Isherwood-Hicks, Clinical Psychologist, assessed the Applicant on 7 and 11 March 1996 and reported on 22 March 1996:

"When seen on Monday 11 March 1996, Mr Ganley presented with elevated anxiety, emotional lability and depressed affect. He reported that his employment situation had become intolerable and that he felt extremely pressured; however, he was hoping that once he was in the temporary work placement with another Department he would feel less distressed and would be able to cope until decisions were reached regarding his employment.

In my opinion it would be in Mr Ganley's best interest psychologically and emotionally to relocate to Canberra as soon as possible." (Exhibit R2, folio 164)

Dr J Hopkins

28. Dr J Hopkins, Consultant Orthopaedic Surgeon, examined the Applicant on 9 December 1996 and reported:

"The specific restrictions placed on his capacity for employment as a result of his accident of October 1984 are that he should not lift, bend, stoop or carry. Clearly he is incapable of returning to his previous work as a motor mechanic with the physical actions that this requires.

As far as his lumbar spine is concerned I see no reason why he should not be able to undertake the activities set out in the disposals officer job description that you have attached.

There should be a proviso that he should be protected from lifting or carrying any of the goods which may have been sent to or for auction. Otherwise, in my opinion he would be able to undertake the duties as set out in so far as his physical state is concerned." (T6, folios 23-24)

Dr A Ng

29. Dr A Ng, the Applicant's treating general practitioner, opined in a letter to Comcare on 16 September 1996:

"On review of his previous notes and after examining Mr Ganley I am of the opinion that he will be unable to return to his previous occupation as a motor mechanic. He is unable to lift any weights over 10 kgs, work in a bent position for any length of time and perform tasks which involve repetitive bending and twisting. Light office duties may be suitable but sitting for prolonged periods of time are not recommended.

His wife has been transferred to Canberra and they have a newborn boy.

I am writing to recommend that Mr Ganley be transferred to Canberra on medical grounds and that rehabilitation for graded return to alternative duties be initiated as soon as possible. There may be more possible options for alternative duties in Canberra which will return Mr Ganley to the workforce earlier which will improve his level of anxiety and frustration. Being with his family will have a positive effect on his rehabilitation. Further delays in Mr Ganley's rehabilitation and return to the workforce will have negative effects on his overall prognosis." (Exhibit A3, folio 36)

30. In March 1998, Dr Ng certified that the Applicant was fit to trial a return to work on light restricted duties in accordance with the following restrictions:

"Lifting limit of 5-7kg only

Work between waist and shoulder height

Avoid working in outstretched position

No repetitive bending or twisting

No working in a static position for prolonged periods ie. Avoid prolonged sitting, standing

These physical restrictions are important to prevent any aggravation to his preexisting condition. Bearing in mind also a psychological report by Consultant Psychologist Mr Michael Tyrell highlighting Mr Ganley's poor aptitude for clerical work." (Exhibit R2, folio162)

Dr K Nadana Chandran

31. Dr K Nadana Chandran, Neurosurgeon, examined the Applicant and reported on 3 August 1998:

"I consider him thus permanently unable to perform his original work but fit for light work.

...

His injury is confined to the back which limits his ability to work, bend and do certain physical tasks." (Exhibit R4, folio 3)

Dr G Curtis

32. Dr G Curtis, Consultant Orthopaedic Surgeon, examined the Applicant on 24 March 1999 and reported on 20 October 1999, in relation to the physical description of Vehicle Standards Officer duties:

"...there are some heavy aspects to this work, i.e. stooping, forward flexion, reaching for scales to be removed from his vehicle and placing them under the vehicle he proposes to weigh, but I do not consider this to be excessive and it should be well within his capabilities.

...

...I consider the job description as indicated under the heading of Vehicle Standards Officer to be eminently suitable for Mr Ganley and would endorse all efforts to have him placed in such a position" (T52, folio 129 -130).

Dr J B North

33. Dr J B North, Neurosurgeon, examined the Applicant on 22 April 1999 and opined:

"I would suggest restriction of lifting to 15 kilograms and also restrictions on repetitive bending. I think that work as a mechanic is unsuitable but his present job of vehicle inspection is within his capabilities" (T32, folio 85).

On 4 August 1999, Dr North reviewed the job description for a Vehicle Standards Officer and a functional capacity assessment dated 4 May 1999, and concluded:

"I would agree with the conclusion reached in the functional capacity assessment. I am of the opinion that he has the physical ability to perform the duties of a vehicle standards officer." (T48, folio 119)

Ms S Watt

34. Ms S Watt, Occupational Health Management Consultant, reported on 27 May 1999:

"Current Medical and Physical Restrictions

The current medical and physical restrictions for Mr Ganley are as follows:

* 10 minute rest breaks within each hour

* rotation of duties enabling change of posture and biomechanical functions after 20 minutes of consolidated activity

* pursue exercise and strengthening program during rest break periods

* weight restriction to 5 kilogram

* no repeated or prolonged sitting, bending, stooping or crouching" (Exhibit R2)

Dr W Harrex

35. Dr W Harrex, Consultant Occupational Physician, examined the Applicant on 26 June 2002 and reported:

"Mr Ganley would be capable of full-time light manual work. I agree with previous assessments that he should avoid lifting objects in excess of 15 kg. I also concur with Dr Chen that Mr Ganley should not be employed on tasks requiring repetitive heavy manual handling and prolonged and repetitive truncal bending and twisting." (Exhibit A1, folio 5)

36. In consideration of the job description for the position of Vehicle Standards Officer (Exhibit A2), and a Supervisor's Minute (Exhibit A9, Attachment A(i)), Dr Harrex concluded:

"My conclusion is that some of the required transport inspector tasks exceed the recommended medical restrictions placed upon Mr Ganley to minimise exacerbation and recurrence of his back condition. Accordingly, I would recommend that Mr Ganley not be employed as a transport inspector on unrestricted duties." (Exhibit A1, folio 6)

LEGISLATION

37. In order to determine these matters, it is necessary to set out the relevant statutory provisions of the Act.

The term "suitable employment" is defined in s 4(1) of the Act:

" 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, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment--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 4(9) of the Act, provides that:

"4(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 provides for the payment of compensation for incapacity for work.

"19 Compensation for injuries resulting in incapacity

(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

where:

AE is the greater of the following amounts:

(a) the amount per week (if any) that the employee is able to earn in suitable employment;

(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee's normal weekly earnings.

...

19(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

(a) where the employee is in employment -- the amount per week that the employee is earning in that employment;

(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition--the amount that the employee would be earning in that employment if he or she were engaged in that employment;

(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment--the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

(f) where paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and

(g) any other matter that Comcare considers relevant."

SUBMISSIONS

The Applicant

38. Mr Pilkington, for the Applicant, contended that that Applicant did not receive an offer of suitable employment prior to cessation of employment with the Employer. Contrary to the statements of the IRO (T69 folio 166), Mr Pilkington stated that there was ample evidence that the Applicant was not able to perform the full duties of a Transport Inspector. On being directed to return to perform these duties by the Employer, the Applicant had no choice but to request and accept a voluntary redundancy.

39. Mr Pillkington opined that two questions must be answered: was the Applicant fit to return to employment as a Transport Inspector, and was the offer of employment in the position of Transport Inspector an offer of suitable employment?

40. Mr Pilkington reasoned that the medical evidence and contemporaneous evidence concerning the Applicant's employment clearly demonstrate that the Applicant was not fit to return to employment as a Transport Inspector - he had previously tried this, and failed. On this basis, Mr Pilkington urged the Tribunal to find that the Applicant was not fit to perform all the duties of the Transport Inspector position.

41. Mr Pilkington submitted that the medical evidence supports the view that the Applicant was not fit to perform all the duties of the Transport Officer position, as duties involving bending, twisting and lifting more than 15 kilograms aggravate his back condition. On this basis, Mr Pilkington submitted that the requirement for the Applicant to return to perform the full duties of a Transport Inspector did not constitute an offer of suitable employment.

42. Mr Pilkington submitted that it was reasonable for the Applicant to refuse to relocate to the Northern Territory to accept this position when it had already been proven that he could not do the job and he knew that to attempt to do so would aggravate his back condition.

43. Mr Pilkington contended the issue of relocation is not of particular relevance to the central question of suitability of employment: Re Lagwa and Comcare [1999] AATA 638 and Re Ginn and Telstra Corporation Limited (AAT 13340, 1 October 1998). He reasoned that a real offer of suitable employment depended upon the ability of the employee to take up the offer: Davies and Australian Postal Corporation (2002) 68 ALD 238. In the situation at hand, Mr Pilkington inferred there had not been an offer of suitable employment, rather the offer represented an orchestrated attempt to get rid of the Applicant as an employee.

44. Finally, Mr Pilkington noted that all relevant matters must be had regard to when determining the amount an employee is able to earn in suitable employment pursuant to section 19(4) of the Act, referring the Tribunal to Woodbridge v Comcare (1994) 20 AAR 196. In the event that the Tribunal was to find the Applicant was offered suitable employment and failed to accept the offer, this would not necessarily disentitle him from compensation on the basis of incapacity. Mr Pilkington submitted that it was reasonable for the Applicant to accept voluntary redundancy on the basis of his personal circumstances, his employment experiences since the injury in 1984 and the medical advice he received about his physical and psychological condition.

The Respondent

45. Ms Walker, for the Respondent, submitted that the Applicant had terminated his employment by seeking and accepting voluntary redundancy. The Applicant, Ms Walker submitted, had been offered suitable employment in the position of Disposals Officer with NT Fleet in 1993 and the position remained available to him until the time he took voluntary redundancy. The Employer, she contended, had made a general offer of suitable employment in the position of Disposals Officer, which was ongoing, however, the Applicant failed to continue to engage in this suitable employment.

46. Ms Walker submitted that the Employer made a specific offer of suitable employment in the position of Transport Inspector in December 1999, which the Applicant failed to accept. She contended that the job description for Transport Inspector (Exhibit A5) was generic and the offer of employment did not require all the duties of the role to be performed by the Applicant. In support of this contention Ms Walker reasoned that the Employer had shown itself willing to modify the Applicant's duties whenever he experienced difficulties, noting this had occurred on several occasions in previous roles.

47. Ms Walker submitted that the Applicant had wanted to relocate to Canberra to be with his family and had no intention of returning to work in the Northern Territory, referring to the comments of Ms K Brown, HR Consultant, on 27 September 1999, concerning the Applicant's enquiries regarding voluntary redundancy:

"Mr Ganley has indicated that he does not wish to return to full time employment in Alice Springs and in a letter dated 11 August 1999 put forward a number of options in regard to his employment." (Exhibit R2, folio 196)

Ms Walker submitted that the reason the Applicant did not take up the offer of suitable employment was because he had moved to Canberra for family reasons that were not related to his compensable condition.

48. Ms Walker submitted that the Applicant's inabilities after 1993 cannot be assumed, contending he experienced only occasional difficulties in relation to his duties, which were modified accordingly. Ms Walker submitted that the Applicant's psychological concerns and stress related to his family situation and not to his compensable condition. Further, Ms Walker submitted that at the time Ms Jacobs was recommending the Applicant be retired on invalidity grounds, the Applicant was fit for work and was performing the duties of the Disposals Officer position.

49. Ms Walker submitted that the Applicant's acceptance of voluntary redundancy had nothing to do with his compensable condition and was not reasonable in the circumstances: Re Shanahan and Australian Postal Corporation (1995) 36 ALD 613, Re Collins and GIO Australia (1999) 60 ALD 516 and Re Evans and Australian Postal Corporation (AAT 10586, 8 December 1995).

50. Ms Walker submitted that Re Lagwa (supra) should be distinguished on the facts from the case at hand - in Re Lagwa (supra) the employee had been offered employment in Albury rather than in Sydney, the place of his previous employment, or in Melbourne, where he was then residing. In the present case, the Applicant was employed in Alice Springs and had been offered suitable employment in that location.

51. Ms Walker submitted the Applicant's relocation to Canberra was a family matter and was not reasonable in the circumstances, urging the Tribunal to take this factor into account: Woodbridge (supra), Davies (supra), Re Ly and Australian Postal Corporation (AAT 10581A, 28 January 1997) and Re Chamberlain and Comcare (AAT 11567, 24 January 1997).

52. Ms Walker submitted that the Applicant had received detailed information from Comcare and his legal advisers about the likely ramifications of accepting a voluntary redundancy. She considered that it was disingenuous for the Applicant to refuse to accept employment as a Transport Inspector in 1999, as he never intended to return to the Northern Territory.

DISCUSSION OF THE ISSUES AND FINDINGS

53. The Tribunal found the Applicant to be a witness of truth who gave evidence honestly to the best of his knowledge and without embellishment.

54. The parties agreed, and the Tribunal accepted, that the matter should be remitted to the Respondent in the event it is necessary to calculate the appropriate amount of incapacity payments under section 19 of the Act.

55. The nature of the Applicant's injury and the Respondent's liability pursuant to section 14 of the Act, in this regard, was not in contention between the parties. The Tribunal finds that the Applicant suffers disc prolapse in the L5/S1 lumbrosacral region with some neurological deficit to the left lower limb as a result of a work-related motor vehicle accident on 16 October 1984 ("the compensable injury"). The issue before the Tribunal is whether the Applicant suffers an ongoing incapacity for work as a result of the compensable injury and, if so, the rate at which compensation for incapacity is payable to the Applicant, if at all.

Incapacity for Work

56. Turning to section 4(9) of the Act, the evidence establishes and the Tribunal finds the Applicant experienced periods of total incapacity pursuant to section 4(9)(a) of the Act as a result of the compensable injury, but otherwise has been able to engage in employment. Thus, it is necessary to consider the extent of incapacity pursuant to section 4(9)(b) of the Act, following the formulation set out in Comcare Australia v Rowe (2002) 35 AAR 410.

57. The Tribunal finds that the Applicant was able to perform the full duties of a fully qualified Motor Mechanic, without restriction in his trade, and was so employed on a permanent full time basis immediately prior to the compensable injury. The preponderance of the evidence indicates, and the Tribunal finds, that the Applicant suffers an incapacity to engage in work at the same level at which he was engaged before the compensable injury occurred, being physically restricted to light duties thereafter. In so finding, the Tribunal notes that the Respondent's submissions regarding the Applicant being remunerated at a higher rate when performing the duties of a Transport Inspector, after the injury, than when performing the duties of a Motor Mechanic before the injury. However, the Tribunal held in Re Prica and Comcare (1996) 44 ALD 46 that the reference to "the same level" in section 4(9) is meant to refer not to the remuneration a new job attracts, but to the nature of the work in the sense of its characteristics, which will include its degree of difficulty.

58. The Tribunal finds, pursuant to section 14 of the Act, that the Applicant suffers a partial incapacity for work, consequent upon the injury on 16 October 1984, for which the Respondent is liable to pay compensation.

Amount of compensation payable

59. The rate of compensation payable, in the circumstances, is to be calculated in accordance with the formula set out at section 19 of the Act. In order to apply the formulae at sections 19(2) and (3) of the Act, it is necessary to determine whether the Applicant is able to earn in suitable employment and, if so, the amount per week (if any) that he is able to earn; Telstra v Slater [2001] FCA 149.

Is the Applicant able to earn in suitable employment?

60. In order to address this question it is necessary to consider and apply the definition of "suitable employment" at section 4(1) of the Act in the circumstances of this case. The Tribunal findself-employment) having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv)" of the definition.

(i) the employee's age, experience, training, language and other skills

61. The Tribunal finds that the 40 year-old Applicant has training and experience working as a Motor Mechanic and has skills relevant to vehicle testing and inspection. The preponderance of the medical evidence indicates the Applicant is not able to perform duties that require repetitive bending, twisting, stooping or lifting weights in excess of 15 kilograms, and the Tribunal so finds. The Tribunal accepts that the Applicant does not possess clerical skills, has difficulty dealing with customers and members of the public and has difficulty coping with stress.

62. The Applicant was employed as a Spare Parts Purchasing Officer in 1986 and gave evidence that he was able to perform the duties of this position, which involved the ordering and receipt of spare parts, and the Tribunal so finds. This being the case, having regard to the Applicant's experience, training and skills, the Tribunal finds employment as a Spare Parts Purchasing Officer to be suitable employment.

63. The Tribunal finds that the Applicant was employed between 1987 and 1993 in the position of Transport Inspector. The Tribunal finds that the position of Transport Inspector requires a significant amount of forward and lateral flexion, with some trunkal rotation and squatting, and also requires use of jacks and scales that weigh in excess of 15 kilograms (Exhibit A2, folio 4). The Transport Inspector job description (Exhibit A5), dated 1 November 1999, sets out the requirements of a Transport Inspector, including:

"Physically fit with the ability to perform all the duties associated with the Vehicle Standards Centre and mobile auditing teams."

The Physical Job Description for the position of Vehicle Standards Officer (Exhibit A2), dated June 1999, provides an assessment of the physical task requirements of the position, but does not quantify the requirements for bending, twisting, stooping and lifting weights in excess of 15 kilograms, nor does it quantify the frequency of heavier work, for example inspecting road-trains. The description of the Transport Inspector position requirements and duties (Exhibit A9 Attachment A(i)), dated 8 August 1990, provides the following relevant information, quantifying the number of vehicle inspections a Transport Inspector is likely to carry out on a daily basis:

"A. Test Shed

...

- Stooping, bending, stretching and negotiating the underside of vehicles as part of the vehicle inspection.

...

On average 25 to 30 inspections would be carried out by each Inspector each day."

The Applicant gave evidence, which the Tribunal accepts, that the workload inspecting road trains would fluctuate in accordance with the arrival of freight trains: up to 150 road trains could be involved in carting stock to be loaded onto a train. He also gave evidence, which was not disputed, that mobile testing work was conducted on a regular weekly basis up to 70 kilometres from Alice Springs, with occasional blitzes involving shifts of up to 12 hours and the Tribunal so finds.

64. The weight of the medical evidence establishes that the Applicant is not able to perform all of the duties of the Transport Inspector position and the Tribunal so finds. It is common ground between Dr Vijayakumar, Dr Ly, Dr Millons, Dr Chen, Dr Harrex, Dr North, Dr Chandran and Dr Hopkins, as well as the Occupational Therapists Ms Jensen and Ms Plant, that the Applicant is fit for full time work performing light duties, and the Tribunal so finds. Dr Chen affirmed in oral evidence that repetitive bending, stooping, twisting and lifting weights greater than 15 kilograms could aggravate the Applicant's back injury. This opinion is supported by Dr Harrex (Exhibit A1), Dr Millons (Exhibit A4) and Dr North (T32 folio 85), but not supported by Dr Curtis (T32 folio 129). The Tribunal finds that the preponderance of the evidence supports the Applicant's contention that he was not fit to perform all the duties of Transport Officer.

65. There is no evidence the Applicant's back condition has improved or that there has been any improvement in his physical capacity to perform the duties of a Transport Inspector, and the Tribunal so finds. The weight of the medical evidence is that the Applicant's back condition is stable, however there is some evidence of deterioration and degeneration; (Dr Harrex (Exhibit A1), Dr Millons (Exhibit A4) and Dr Curtis (T30 folios 66-67).

66. Weighing the evidence before it, the Tribunal finds that the Applicant was not fit to perform all the duties of the Transport Inspector position in 1993, or at any time thereafter to the present day. Thus for present purposes, the Tribunal determines that employment in the position of Transport Inspector is not suitable employment.

67. The Tribunal finds that the Applicant was employed in the position of Disposals Officer from August 1993 to 29 March 1999. The Respondent submitted that the duties of the Disposals Officer position were modified to suit the Applicant in accordance with the recommendations of rehabilitation counsellors and occupational therapists (T62, folios 150-157), whereby the position constituted suitable employment. The Tribunal finds that certain duties of the position were deemed unsuitable for the Applicant on account of his physical restrictions and were replaced with administrative duties of a clerical nature. Despite this, the Tribunal finds the Applicant was found to be not fit to carry out the duties of Disposals Officer on 13 May 1996 by Ms A Jacobs, Manager Human Resource Services, who concluded:

"In my opinion Mr Ganley is not fit for his present duties or for any other duties to which you may deploy him.

The Department should proceed with Invalidity Retirement...

Should Mr Ganley's application for Invalidity Retirement not be approved I believe he should be discharged on the grounds of inability. Dr Horsburgh has stated that he will not be able to be retrained, and I believe he does not have the aptitude to perform clerical duties." (Exhibit A3, folio 34)

The Tribunal finds the Applicant was physically able to perform the vehicle inspection duties of the position, as modified, but had difficulties performing the clerical duties associated with the position, which were beyond his experience, training and skills, and caused psychological problems and stress (T62 folio 157, T4 folio 10, Exhibit R2 folio 162 and 164, and Exhibit A3 folio 10).

68. The Tribunal finds that efforts were made to redeploy the Applicant into more suitable employment and consideration was given to creating a specially modified position for the Applicant in the Motor Vehicle Registry on 23 October 1997, however, the Tribunal notes the comment of Mr G Christensen, Regional Transport Manager:

"There are no easier duties at MVR than those described at NT Fleet. The position at Fleet was purposely designed for Ganley so that he could be moved from MVR as he was not suited to duties there." (Exhibit R2, folio 49)

The Tribunal finds that the Applicant was not redeployed from the position of Disposals Officer but was required to perform non-clerical duties as an "unattached" officer alongside a person appointed to the Disposal Officer position.

69. The Applicant submitted he was not able to perform all the duties of the Disposals Officer position, contending some tasks in the original duties were outside his physical capability and clerical tasks in the modified duties caused psychological stress and were outside his ability. The Tribunal finds the Disposals Officer position included tasks involving some repetitive bending, stooping, twisting and carrying, and was modified to "suit" the Applicant's physical restrictions. The Tribunal accepts that the Applicant has no clerical experience, training, skills or aptitude and is unable to sit for extended periods. The Tribunal finds, therefore, that the position of Disposals Officer is not suitable employment for the Applicant. The Tribunal notes, however, that the Applicant was able to perform light non-clerical Disposal Officer duties as an "unattached" officer from 1997 and finds that such light duties comprise suitable employment for the Applicant.

70. The Tribunal finds that the Applicant commenced employment as a Cleaner on 13 March 2000, working 2 hours per day, five days per week, being subsequently increased by the addition of a further 4 hours per day for five consecutive days once per month. The Applicant gave evidence and the Tribunal accepts that most of the cleaning duties he is required to perform are within his experience, however, he was required to learn new skills relating to the mixing of cleaning chemicals. This was within his capacity and the Tribunal so finds. The medical evidence is such that the Applicant should not perform duties requiring repetitive bending, twisting, stooping and lifting weights greater than 15 kilograms. In oral evidence Dr Millons expressed the view that cleaning duties involving repetitive bending, twisting and lifting heavy weights could exacerbate the Applicant's injury. The Applicant's evidence was that he works with another person and can take his time, alternating and pacing his cleaning duties to suit his back condition. The Tribunal accepts this evidence and finds that light cleaning duties are suitable employment for the Applicant.

71. Having regard to the Applicant's age, experience, training, language and other skills, the Tribunal determines that the following occupations comprise suitable employment for the Applicant:

(i) Spare Parts Purchasing Officer - light non clerical duties

(ii) Disposals Officer - light non-clerical duties

(iii) Cleaner - light duties

(ii) the employee's suitability for rehabilitation or vocational retraining

72. There is some evidence that indicates that the Applicant was not well suited for rehabilitation or vocational retraining, for example in the opinions of Ms Jacobs and Dr Horsburgh (Exhibit A3 folio 34). Dr Ng (Exhibit A3 folio 36) and Ms Isherwood-Hicks (Exhibit R2 folio 164) considered the positive psychological and emotional effect rejoining his family would have on the Applicant and his rehabilitation. The Employer provided rehabilitation support to the Applicant over an extended period (T20, T22, T24, T36, T38 and T62), including redeploying him in August 1993 to perform modified duties as a Disposals Officer for NT Fleet and the Tribunal so finds. The Tribunal finds that rehabilitation programs were curtailed in June 1999 while the Applicant was on extended leave that was not related to his compensable injury and notes that there is insufficient evidence on which to base a finding concerning the Applicant's current suitability for rehabilitation and vocational retraining.

73. The evidence establishes and the Tribunal finds that vocational retraining options were considered and the Applicant's future career options were assessed (T20). The Tribunal finds that consideration was given to a variety of vocational retraining options and a vocational assessment was made (T22), but that no vocational retraining was conducted. The vocational assessment identified the following areas as possibly compatible with the Applicant's injury:

74. Parks and Wildlife Assistant

75. Short Order Pastry Cook

76. Static Security - monitoring closed circuit television (CCTV) surveillance

77. Car Park Ticket Collection

78. Animal Care and Training

79. Courier Services - light weight manual handling applications, car delivery services

80. Motel Reception

81. Sales

82. The evidence is that the Applicant has no training or aptitude for clerical work and should not drive or sit for extended periods, nor engage in repetitive bending or twisting, as this may exacerbate his back condition. The Tribunal finds that the duties of a Courier are likely to involve extended periods of sitting while driving and repetitive twisting and bending while getting in and out of vehicles and, therefore, finds that Applicant is not suitable for rehabilitation or vocational training as a Courier.

83. The evidence establishes that the Applicant has experienced psychological problems dealing with stressful situations and has experienced difficulties dealing with customers and members of the public. The Tribunal finds, therefore, the Applicant is not well suited to occupations involving frequent or prolonged interaction with customers or members of the public, having no aptitude, training or skills in this regard. On this basis, the Tribunal finds the Applicant is not suitable for rehabilitation or vocational training in occupations requiring interaction with customers and the public, such as Motel Reception and Sales.

84. The evidence is that the Employer offered to support the Applicant to retrain as a Short Order Pastry Cook (T24). There is no evidence that the Applicant has any interest in or aptitude for cooking, or any experience, training or skills of relevance. There is no evidence to indicate the Applicant is well suited to becoming a cook of any sort and the Tribunal so finds. The Tribunal notes, while the functional requirements of a Short Order Pastry Cook may be considered "light" in comparison to the functional requirements of a Motor Mechanic, this, alone, is not sufficient to determine that the Applicant is suitable for rehabilitation or vocational training in such employment. Absent aptitude, interest or any relevant experience, the Tribunal finds little on which to base such a determination.

85. The Tribunal finds there is insufficient evidence before it to make any determination regarding the Applicant's suitability for rehabilitation or vocational training in the following areas:

(i) Parks and Wildlife Assistant;

(ii) Static Security - monitoring closed circuit television (CCTV) surveillance;

(iii) Car Park Ticket Collection; and

(iv) Animal Care and Training.

86. The evidence is that the Applicant received some vocational on-the-job training as a cleaner in Canberra that was within his capacity, on the basis of which he has been able to increase his employment in that trade, and the Tribunal so finds.

(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

87. The fact is that employment was available to the Applicant in Alice Springs on 22 February 2000, at which time he resided in Canberra, and the Tribunal so finds. However, the Tribunal has found that the available employment was not suitable employment, which the Applicant could perform within the physical restrictions arising from his compensable injury. This being the case, the Tribunal finds it unreasonable to expect the Applicant to relocate from Canberra to Alice Springs to take up employment that is outside his capability.

88. No evidence was led before the Tribunal regarding the availability of employment, other than employment already engaged in by the Applicant, in Alice Springs and Canberra. By relocating from Alice Springs to Canberra, the Applicant, in effect, increased the labour market he may be able to access in the circumstances, and the Tribunal so finds. There is medical evidence it was in the Applicant's best interest "psychologically and emotionally" to relocate to Canberra to be with his family (Exhibit R2 folio 164), and the Tribunal so finds.

89. On the evidence, it is unnecessary to make further findings on this point, Re Lagwa (supra) and Re Chamberlain (supra) being clearly distinguished on the facts. However, the Tribunal notes that the existence of employment within the Applicant's capacity in another place may not, of itself, exclude that employment from being considered to be suitable employment in the circumstances. The question whether it would be reasonable for the Applicant to refuse to accept or continue to engage in such suitable employment is a different consideration that would need to be addressed pursuant to section 19(4) of the Act.

(iv) other relevant matters

90. The Tribunal is mindful that the Applicant's physical restrictions on his capacity for work are relevant to the determination of suitable employment. The restriction to light duties with no frequent or repetitive bending, stooping, twisting, lifting or carrying weights of over 15 kilograms, or sitting for extended periods is an essential lens, for present purposes, through which any employment must be viewed in order to determine whether, or not, it is suitable employment for the Applicant.

What is the amount the Applicant is able to earn in suitable employment?

91. In order to answer this question, it is necessary to consider section 19(4) of the Act. The Tribunal finds, and it is common ground, that section 19(4)(a) of the Act applies. The paragraph is constructed in the present tense and, therefore, applies to each week in the period that is subject of claim. In the present case, the operative period that is subject of claim commenced on 22 February 2000 and is on-going. Thus, the amount the Applicant earns each week during the operative period must be had regard to when determining the amount the Applicant is able to earn in suitable employment, and the Tribunal so finds.

92. The Respondent submitted that sections 19(4)(b), (c) and (f) of the Act applied. The Tribunal finds in 1986 the Applicant was offered and engaged in suitable employment in the position of Spare Parts Purchasing Officer until being redeployed by the Employer to the position of Transport Inspector in 1987. The Tribunal has found that the position of Transport Inspector was not suitable employment for the Applicant.

93. The Applicant was redeployed in the position of Disposals Officer with modified duties in July 1993. Contrary to the Respondent's submissions, there is no evidence that the position of Disposals Officer was open or offered to the Applicant following a declaration that he was "excess" to the Employer's requirements on 29 March 1999 and his departure on leave in May 1999. The evidence is that the Applicant was directed to return to work in the position of Transport Inspector on 9 December 1999 or face the threat of dismissal. Thus any question about whether the position of Disposals Officer, as modified, was suitable employment for the Applicant is somewhat academic as this position clearly was not available to the Applicant when he was directed to return to work. The evidence is that the Employer decided to discontinue the Applicant's employment with NT Fleet in the position of Disposals Officer on 29 March 1999, requiring him to return to work in the position of Transport Inspector in the Motor Vehicle Registry. The Tribunal so finds.

94. The evidence establishes and the Tribunal finds that the Applicant was not made an offer of suitable employment that he failed to accept, therefore, section 19(4)(b) of the Act does not apply. Turning to section 19(4)(c) of the Act, the Tribunal notes the paragraph requires that the employee "failed to engage, or to continue to engage" in suitable employment after becoming incapacitated. Interpreting this paragraph, the Tribunal finds no cause to divert from the ordinary meaning of "failed", being a transitive verb defined in the Macquarie Dictionary (2^ndedition, 1995) as follows:

"fail - v.t. 6. to neglect to perform or observe: he failed to come."

Thus, if this paragraph is to apply, it must be found that the Applicant was remiss in not engaging or continuing to engage in suitable employment, or that this circumstance arose from an act of neglect or omission on the Applicant's part. The Tribunal finds neither to be the case and does not, therefore, find the Applicant "failed" through an exercise of his own volition to engage or continue to engage in suitable employment. The plain facts, as found, are the Employer decided to redeploy the Applicant and change the duties performed by the Applicant, thereby causing the Applicant's engagement in suitable employment performing light non-clerical Disposal Officer duties to cease.

95. The Respondent submitted that the Applicant failed to continue to engage in suitable employment when he accepted a voluntary redundancy and ceased his employment with the Employer. The Tribunal does not agree with this submission. The facts are, at the time the Applicant sought voluntary redundancy in December 1999, he was employed as an excess or supernumerary officer, "unattached" and without fixed duties, and had been served notice while on leave to return to work to perform the duties of a Transport Inspector. The Tribunal has found that this was not an offer of suitable employment and, absent a specific position or specific duties, the Applicant was not in suitable employment at that time. The Tribunal is mindful of the words of Hill J in Davies (supra) at paragraph 33:

"...for an offer of work to operate to reduce compensation otherwise payable under the Act that offer must be a real offer. An offer made in the knowledge that it could not be taken up by the employee would not be a real offer. Neither would an offer be a real offer where the offer is one which is so unreasonable that it could not be reasonably taken up."

96. The Tribunal finds the Applicant faced a stark choice between accepting an offer of unsuitable employment, possible dismissal if he refused or failed to perform these duties, or seeking redundancy. The authorities referred to by the Respondent are clearly distinguished, on the facts, from the case at hand. In the cases of Re Shanahan (supra) and Re Collins (supra), voluntary redundancy was accepted despite the availability of suitable employment. In the case of Re Ly (supra), the Applicant resigned despite an offer of suitable employment. The Tribunal finds, in the case at hand, the Applicant did not receive an offer of suitable employment that he failed to accept or engage in, accepting voluntary redundancy rather than returning to work in unsuitable employment.. The Tribunal finds, therefore, section 19(4)(c) of the Act does not apply.

97. This being the case, it is not necessary for the Tribunal to consider whether the discontinuance of the Applicant's engagement in suitable employment was reasonable in all the circumstances pursuant to section 19(4)(f) of the Act. However, the Tribunal notes, if it had arrived at a different conclusion and been required to consider this question pursuant to section 19(4)(f) of the Act, the following considerations would have ensued.

(i) If it was found that the Applicant "failed" to continue to engage in suitable employment, the Employer having decided to redeploy or remove the Applicant from that employment, the Applicant's "failure" would have been reasonable in the circumstances in absence of suitable alternative employment.

(ii) If it was found the Applicant's employment as a supernumerary officer after May 1999 was suitable employment, that employment would have been found to have ceased on 29 September 1999 when the Employer decided to require the Applicant to perform the duties of Transport Inspector. Thus, the Applicant's "failure" to continue to engage in employment as a supernumerary officer would have been reasonable in the circumstances, as the sole cause of the Applicant's "failure" was a decision of the Employer to discontinue that employment.

98. Turning to section 19(4)(e) of the Act the Applicant gave evidence and the Tribunal accepts that he sought employment in Canberra, without success, and pursued alternative employment in the Northern Territory, also without success. He considered and the Tribunal accepts that there were greater opportunities to find employment, within his capacity, in Canberra than in Alice Springs - the state of the labour market and its availability to the Applicant being a relevant consideration: Esam v ASP Ship Management [1998] 1129 FCA and Comcare v Rawling (1993) 42 FCR 421. The Applicant gave evidence that he wanted to work, and would work full time if he could, in order to earn a reasonable wage to support his family. The Tribunal finds no reason to doubt the Applicant's willingness to work or the validity of his efforts to find suitable employment, either in the Northern Territory or in Canberra. In these circumstances, the case at hand is clearly distinguished from Re Peers and Commonwealth of Australia (1987) 14 ALD 209 and Re Peers and Commonwealth of Australia (No. 2) (1987) 15 ALD 193, wherein the Tribunal found the Applicant voluntarily retired from work he was not able to do because of a compensable medical condition, but failed to establish consequential economic loss "by removing himself from any labour market which was reasonably open to him...".

99. The fact is, as found, the Applicant was precluded from the labour market in which he had previously been employed as a Motor Mechanic because of his injury: he had attempted to work as a Transport Inspector, utilising his experience, training and skills, but the physical restrictions arising from his injury prevented him from doing so. By reason of his incapacity, his labour was saleable on the open market for less than it would otherwise fetch; Arnotts Snack Products Pty Ltd v Yacob (1984) 155 CLR 171. He was not able to access the labour market for occupations in which he had no experience, training or skills. Ultimately, he was successful in gaining suitable employment in Canberra as a Cleaner on a part time basis, whereby he earned less than he was previously earning before the injury and the Tribunal so finds. Thus, the Tribunal finds that the Applicant suffered an economic loss of wages as a result of his incapacity for work in the trade of Motor Mechanic, which was caused by a compensable injury; Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585. The Tribunal finds that section 19(4)(e) of the Act does not apply.

100. It is not necessary, therefore, to consider further questions of "reasonableness" arising under section 19(4)(f) of the Act.

101. The Tribunal turned to consider other relevant matters arising under section 19(4)(g) of the Act, being mindful of the words of Hill J in Woodbridge v Comcare (1994) 20 AAR 196 at p 205:

"In any event the requirement that Comcare take into account other relevant matters contained in par (g) makes it clear that the finding of an amount that an employee is able to earn in suitable employment is a finding that is to be made, having regard to all relevant factual matters. It is not a finding to be made exclusively by reference to the matters set out in subs 4(a) to (f)."

102. The Respondent submitted pursuant to section 19(4)(g) of the Act that the Applicant unreasonably left his suitable employment in order to join his wife and young family in Canberra. The Tribunal has found that the Applicant was not in suitable employment at the operative time, but intended to rejoin his wife and family in Canberra and was strongly motivated in that regard, with medical reasons for doing so. The question whether it was reasonable for the Applicant to leave suitable employment to join his family does not therefore arise, distinguishing the case at hand, on the relevant facts, from authorities to which the Tribunal was referred in submissions in this regard. It was, of course, open to the Employer to offer the Applicant suitable employment in Alice Springs, whereby, then, the Applicant could have made his choice whether to accept that offer. The fact is, as the Tribunal has found, this did not occur. The Tribunal notes the opinions of Dr Ng, the Applicant's treating general practitioner, and Ms Isherwood-Hicks, that there were medical reasons for the Applicant to rejoin his family in Canberra relating to his psychological and emotional health.

103. The Respondent submitted that the Applicant had received advice from Comcare and his legal advisers regarding the likely effect of voluntary redundancy on his entitlement to compensation for incapacity. This aspect of knowledge, it was submitted, conspired with the Applicant's intention to rejoin his wife in Canberra and led to his refusal to accept employment in the position of Transport Inspector on the ground that it was not suitable, which was disingenuous, as he had never intended to return to work in Alice Springs. The Tribunal does not agree with this submission. The evidence is that the Applicant made enquiries about voluntary redundancy in 1998 (T8), the possibility of voluntary redundancy being available to employees on compensation having previously been discussed. The Applicant decided not to proceed to accept voluntary redundancy at that time, despite action to this end being commenced by the Employer (T18). Subsequently, the Applicant canvassed his options with the Employer, Comcare and others, reducing his queries to writing on 30 June 1999 (T43) and 8 August 1999 (T49).

104. In the circumstances, the Tribunal finds it reasonable for an employee to canvass options regarding future employment, redundancy and the implications thereof. Knowledge so gained does not provide any ground on which to base a claim of disingenuity in the absence of other evidence, as in the present case. The Tribunal finds the Applicant sought information about his options and considered their relative merits as anyone could reasonably be expected to do in the circumstances.

105. The simple fact is, as the Tribunal has found, the offer of employment in the position of Transport Inspector was not a real offer of suitable employment and the Applicant was not engaged in any other suitable employment provided by the Employer. In the case of Re Evans (supra), on which the Respondent relied, the Tribunal found reasonable the Applicant's acceptance of voluntary redundancy in the face of very limited options, which did not include an offer of permanent employment. On this point, the Tribunal agrees Re Evans (supra) may be distinguished from the case at hand, however, in the present case, the offer of permanent employment was not a real offer of suitable employment that the Applicant could reasonably be expected to accept. The Tribunal accepts the Applicant's submission that his options had narrowed to the point where he was forced to choose between, on the one hand, accepting unsuitable employment away from his wife and family, in the knowledge that this may be to his physical and psychological detriment, and, on the other hand, accepting voluntary redundancy, in the knowledge that this may have an adverse effect upon his entitlement to compensation in circumstances where the value of his labour and his ability to find on-going suitable employment were reduced as a result of his compensable condition.

CONCLUSION

106. In conclusion, the Tribunal finds that the Applicant is fit to engage in full time suitable employment performing light duties within medical restrictions, but is only able to obtain part time duties in the labour market that is available to him. The labour market that is open to him is that market relating to the range of occupations found to be suitable employment, with regard to his experience, training, skills, aptitude and capacity; Pulitano v Telstra Corporation Limited [1998] 212 FCA. His ability to sell his labour in the open market is reduced as a result of the incapacity flowing from his compensable injury; Re Spano and Australian Telecommunications Commission (1987) 15 ALD 121.

107. Having regard to the relevant factors pursuant to section 19(4)(g) of the Act, the Tribunal finds the amount the Applicant is able to earn in suitable employment is the amount of his earnings each week in employment since 22 February 2000; Comcare v Line [2002] FCA 553. In so finding, the Tribunal notes that the Applicant's opportunities for suitable employment, and the amount that he may be able to earn thereby, may be increased with further rehabilitation or vocational retraining.

DECISION

108. The Tribunal decides to set aside the decision under review and, in substitution therefor, decides that: (i) The Applicant is entitled to on-going compensation payments for incapacity from 22 February 2000 for which the Respondent is liable. (ii) The amount the Applicant is able to earn in suitable employment is the amount of his earnings each week in employment commencing 22 February 2000. (iii) The matter is remitted to the Respondent to assess the correct amount of compensation for incapacity that is payable. 109. The Tribunal orders that the Respondent pay the Applicant's reasonable costs of these proceedings.

I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member

Signed:

.............Trevor Mobbs...................................

Associate

Dates of Hearing 2 and 3 October 2002

Date of Decision 9 January 2003

Counsel for the Applicant Mr S Pilkington

Counsel for the Respondent Ms L Walker