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Administrative Appeals Tribunal of Australia |
Last Updated: 29 January 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) |
|
|
Re |
ROBERT WILLIAM BRICE |
Applicant
|
|
And |
COMCARE |
Respondent
Tribunal |
Mr S Webb, Member |
WORKERS' COMPENSATION - compensable injury - entitlement to incapacity payments - entitlement to payment of medical treatment costs - whether effects of injury continue to cause incapacity for work - whether incapacity for work is caused by other factors
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 s 4(1) "disease", "injury", (9); 14(1); 16(1), (2); 19(1)
AUTHORITIES
Federal Broom Company Pty Limited v Semlich (1964) 110 CLR 626
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Re Ghattas and Australian Telecommunications Commission [1991] AAT No. 7058
Australian Telecommunications Commission v King (1985) 5 FCR 42
Comcare v Rowe [2002] FCA 1034
Re Prica and Comcare (1996) 46 ALD 46
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Telstra Corporation Ltd v Slater [2001] FCA 149
Woodbridge v Comcare (1994) AAR 196
13 January 2003 |
Mr S Webb, Member |
1. This is an application by Mr Robert Brice ("the Applicant") for review of two reviewable decisions (T55 and ST11) made by Independent Review Officers (IRO's) on 10 September 2001 and 28 May 2002, respectively, under the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
A2001/397 - Incapacity payments
2. On 23 February 1998 the Applicant lodged a claim for compensation for "work related trauma" (T5) arising from an incident that occurred on the premises of the ACT Emergency Services Bureau ("the Employer") on 10 February 1998 (T6). Subsequently, the Applicant lodged claims for "Time off Work" (T7, T10 and T18) and for "Compensation for Period of Reduced Earnings" (T8, T9 and T17). The Applicant returned to work on a part time basis on 17 March 1998 (T13). On 2 April 1998, Comcare ("the Respondent") determined to disallow the Applicant's claim for compensation (T11). The Applicant requested reconsideration of that determination on 8 April 1998 (T14). On 8 July 1998, an Independent Review Officer ("IRO") decided to affirm the determination (T21) pursuant to section 62 of the Act. In the reasons for this reviewable decision, the IRO stated:
"There is no evidence to suggest that the Employee's symptoms, are ".... Outside the range of normal human responses".. There is no evidence to indicate that the Employee suffers an identifiable medical condition.
However even if the Employee did suffer an identifiable medical condition the evidence does not establish that the Employee's employment contributed in a material degree to the development of that condition."
3. The Applicant appealed this decision to the Tribunal on 6 October 1998 (T24) and sought an extension of time (T26) consequent upon the Applicant being diagnosed with bowel cancer in May 1998 and undergoing surgical and chemotherapy treatments thereafter (T22). Subsequently, the matter was decided by the Tribunal on 8 December 1999 (T33) with the agreement of the parties, relevantly:
"...2. the respondent is liable to pay the Applicant compensation pursuant to the [Act] for "adjustment disorder", with the date of injury deemed to be 10 February 1998 ("the compensable condition") in accordance with the following paragraphs:
the Applicant is entitled to compensation in respect of the compensable condition pursuant to section 19 of the Act for the period 10 February 1998 up to and including 15 May 1998 and since 16 May 1998 the Applicant has not been incapacitated for work due to the compensable condition;
the Applicant is entitled to compensation in respect of the compensable condition for reasonable medical treatment pursuant to section 16 of the Act and since 16 May 1998 the Applicant has not required any treatment for his compensable condition."
4. The Applicant lodged claims for "Time off Work" and "Period of Reduced Earnings" (T44) dated 13 March 2001. The Respondent determined to disallow these claims on 31 May 2001 (T47) as a consequence of which the Applicant sought reconsideration of that determination on 13 June 2001 (T48). On 10 September 2001, an IRO decided to affirm the determination pursuant to section 62 of the Act (T55). In her reasons for this reviewable decision, the IRO states, inter alia:
"...The fact that the Employee suffered from an adjustment disorder prior to 16 May 1998 is irrelevant when determining whether the condition was suffered consequently or whether the condition is related to his employment or other factors. To make such a determination I would require specific medical evidence in relation to the employee's ongoing condition and its relationship to his compensable injury.
On the basis of the evidence before me I can not be satisfied that the employee was incapacitated for work due to his compensable condition. Accordingly I am satisfied that Comcare is not liable to pay compensation for incapacity payments pursuant to section 19 of the Act from 26 June to present."
5. The Applicant lodged an application for review of this decision by the Tribunal on 21 September 2001 (T2).
A2002/209 - Medical treatment costs
6. On 15 May 2002, the Applicant lodged a claim for repayment of medical treatment costs (ST5). The Respondent determined to accept liability "up to and including 20 July 2002" on 23 May 2002 (ST7). The Applicant lodged a further claim for medical treatment costs on 24 May 2002 (ST10). The Respondent conducted a reconsideration of own motion pursuant to s 62(1) of the Act and decided to revoke the determination of 23 May 2002 (ST11), thereby in effect ceasing liability for the claim (ST12). In the reasons for this decision, the decision maker stated, inter alia:
"Having evaluated recent medical evidence gathered in relation to your application before the Administrative Appeals Tribunal, including Dr Saboisky's report dated 6 May 2002, I revoke my determination of 23 May 2002.
I am no longer satisfied that your condition is causally connected to your employment. Rather, the available evidence indicates to me that your condition is causally connected to circumstances outside your employment." [original emphasis] (ST11)
7. The Applicant lodged an application for review of this decision by the Tribunal on 30 May 2002 (ST1).
EVIDENCE
8. The Tribunal convened a hearing in this matter on 14 and 15 October 2002 in Canberra. Mr S Pilkington of Counsel appeared for the Applicant. Mr C Clark of Counsel appeared for Comcare. The Applicant gave sworn oral evidence. Evidence was also given by Mr A Rowley, Station Officer (Rtd), Ms J Grose, Dr W Lucas, Consultant Psychiatrist, and Dr J Saboisky, Consultant Psychiatrist. The Tribunal had before it the following documents:
Exhibit A1 |
Report by Dr W Lucas, Consultant Psychiatrist, dated 4 March 2002. |
Exhibit A2 |
Report by Dr W Lucas, dated 29 April 2002. |
Exhibit A3 |
Statement by Mr R Brice dated 10 October 2002. |
Exhibit A4 |
Applicant's Statement of Facts and Contentions A2001/397 dated 18 April 2002. |
Exhibit A5 |
8 photographs of encapsulated suit and breathing apparatus. |
Exhibit A7 |
Unsigned letter from Pamela Coward & Associates to Mr R Brice, dated 3 July 2000 |
Exhibit A8 |
Statement by Mr A Rowley, dated 23 August 2002. |
Exhibit A9 |
Unsigned letter from Pamela Coward & Associates to Dr S Somasundaram, dated 2 June 2000. |
Exhibit R1 |
Documents T1 to T59 lodged pursuant to A2001/397 in accordance with s 37 of the Administrative Appeals Tribunal Act 1975. |
Exhibit R2 |
Documents ST1 to ST12 lodged pursuant to A2002/209 in accordance with s 37 of the Administrative Appeals Tribunal Act 1975. |
Exhibit R3 |
Report by Dr J Saboisky, Consultant Psychiatrist, dated 11 February 2002. |
Exhibit R4 |
Report by Dr J Saboisky, dated 6 May 2002. |
Exhibit R5 |
Report by Ms J Shaw, ACT Aged Care Assessment Team, dated3 August 2000. |
Exhibit R6 |
Report by Dr D Leong, Consultant Medical Oncologist, dated 26 July 2000. |
Exhibit R7 |
Report by Dr H Ahmad, Surgical Registrar to Professor D G MacLellan, dated 3 June 1998. |
Exhibit R8 |
Meeting notes, Jenny Grose / Bob Brice, dated 5 June 2000. |
Exhibit R9 |
Unsigned, undated note (Brice) |
Exhibit R10 |
Letter to Gabrielle Jess, signed by Jenny Grose, dated 13 September 2000. |
Exhibit R11 |
Facsimile to Jenny Grose, signed by Gabrielle Jess, dated 8 November 2000. |
Exhibit R12 |
Letter to Dr Somasundaram, signed by R J Dance, dated 9 September 1999. |
Exhibit R13 |
Statement of Ms J Grose, dated 16 July 2002. |
Exhibit R14 |
Letter to Dr Somasundaram, signed by Jenny Grose, dated 21 September 1998. |
Exhibit R15 |
Report by Dr S Somasundaram, dated 26 June 2000, date stamped 30 June 2000 and signed by J Grose, Case Manager on 8 November 2000. |
Exhibit R16 |
Respondent's Statement of Facts and Contentions A2001/397 dated 13 March 2002 |
Exhibit R17 |
Respondent's Statement of Facts and Contentions A2002/209 dated 3 September 2002. |
THE APPLICANT
9. The Applicant told the Tribunal that he was born on 19 October 1954 and commenced work with the ACT Fire Brigade on 30 January 1980. After a probationary period he said he was employed in the position of Fire Fighter on a permanent basis. He explained his duties in this position involved working on a fire truck and attending fire and emergency calls, fighting fires, attending chemical spills and motor vehicle accidents and participating in training drills.
10. The Applicant recalled attending a hazardous materials drill on 10 February 1998 in a bus depot. He gave evidence that during the drill he was required to put on an encapsulated suit and use a breathing apparatus. He explained that once he had put on the breathing apparatus, he required assistance from two other officers to get into the suit. Once inside, the Applicant said he was not able to open the suit, which was very bulky and zipped up from the back over the head, and was only able to communicate through a speech diaphragm in the facemask. He told the Tribunal he was required to perform the drill with one other officer, Mr Ross Kennedy, who was also in an encapsulated suit.
11. The Applicant told the Tribunal that during the drill a warning whistle went off on his suit, indicating that his air supply was low. He said he noticed the air pressure gauge was falling rapidly and became frightened he would run out of air. He stated he could not talk to anyone through the facemask because the warning whistle was going off, but gesticulated with his arms to let others know he was running out of air. The Applicant explained that the standard procedure in such instances was for air supply hoses to be connected to the suit, using bayonet fittings, however, the two officers who attempted to complete this procedure were not able to do so and he became very scared that he would die. He said he had visions of not seeing his children again and worried that his wife, who suffers from multiple sclerosis, would not be properly taken care of. He could not undo the suit himself and was finally released by Station Officer Thompson.
12. The Applicant stated that he was very affected by the incident and arrived home trembling, frightened and scared, even though he had been in such suits before without any trouble. The Applicant said he attended Dr Somasundaram, his General Practitioner, the next morning and was certified unfit for work. He gave evidence that on 17 March 1998 he returned to work on a graduated return to work basis, working 4 hours per day, which continued until the end of May 1998. During this period he did not work on the fire truck, but was attached to the Breathing Apparatus Section in Fyshwick ACT, doing delivery work.
13. The Applicant told the Tribunal that it was not possible to perform all of the duties on a fire truck without getting into small spaces and having to wear an encapsulated suit from time to time. He explained that this could occur at short notice, unexpectedly, as had happened in his case, attending a drill. He stated that since the incident he has not been able to cope with confined spaces and would never get into one of the suits again: he would be petrified and very concerned.
14. The Applicant told the Tribunal he had been diagnosed with bowel cancer on 28 May 1998, which caused him to cease work. He said he had a series of operations and chemotherapy over the next two years. He recalled being in hospital on ANZAC day in 2000.
15. The Applicant gave evidence that on 26 June 2000, Dr Somasundaram certified him fit to return to work on a graduated return to work basis. The Applicant stated that he went with Mr Rowley to deliver the certificate to Ms J Grose at the Emergency Services Bureau Headquarters in Curtin ACT, and handed the certificate to her in her office. He recalled then being asked to attend an appointment with Rosemary Dupont and Associates in October 2000, which he did. He returned to work on 15 January 2001. His current duties, he explained, involve working with the Council of the Aging Team and providing information about general safety, fire safety and security issues. He said he is currently working 24 hours per week. Prior to the injury he was working a 10 to 14 hour day roster 48 hours per week.
16. Before the incident, the Applicant related, he had enjoyed scuba diving and had no problems with confined spaces. He related going caving at Wee Jasper and crawling into storm drains, attending house fires with dense smoke and working in underground spaces without windows without difficulty. However, this changed after the incident, he claimed. He related being unable to cope with confined spaces and gave examples of visiting the Australian War Memorial exhibits relating to the Kokoda Trail, where he had not been able to cope with the small, dark viewing spaces, and had to leave.
17. The Applicant gave evidence that he often wakes up at night, two or three times per week, in the belief that the doona is suffocating him, even on cold winter nights, when he would "fight" the doona and have to go outside for air. He told the Tribunal that he is no longer able to sleep in a tent without feeling claustrophobic, when this was never a problem before. He related an incident in Perth in March 2001 while visiting his daughter on the occasion of her wedding, where he had attempted to go swimming at Scarborough Beach: it had taken him three days and a significant exercise of will to put his head under the water. Later, under cross-examination, the Applicant agreed that he had visited his daughter in Perth in the second half of 2000, but could not recall precisely when. He recalled the swimming incident happening on this visit "a week before that shark attack".
18. The Applicant explained that his wife was diagnosed with multiple sclerosis when she was 24 years old, 21 years ago. He told the tribunal her condition is getting worse and has been a strain at times. She is currently in Macquarie A House and receives a high level of residential care, having moved into that facility this year from a nursing home.
19. The Applicant stated that he wanted to work more hours and felt that he was capable of doing so, so long as this did not require him to work on the fire truck, where he may be required to work in confined spaces or to put on an encapsulated suit. He said he could never be relaxed in a suit again.
20. In cross-examination the Applicant stated that he could not recall periods of tiredness or lethargy and thought that he had not suffered from periods of tiredness or lethargy. He said he did not feel threatened by the cancer diagnosis, and did not believe he would die, until there were complications following the first operation. He agreed that the chemotherapy treatment over one month had an adverse effect on his health. He agreed that it had been difficult coping with bringing up children and his wife at home with multiple sclerosis, even though he was not required to give his wife full time care. He described his relationship with his wife as a team partnership. He agreed that the decision for his wife to go into residential care in 2000 had been difficult, even though it had been a joint decision, and that visits had been taxing. He agreed these factors had made his return to work difficult.
21. It was put to the Applicant that he was totally incapacitated for work and was still receiving disability support pension from Centrelink in September 2000. The Applicant denied that he was totally incapacitated for work at that time: he had been certified fit for a graduated return to work on 26 June 2000. He repeated that he had given Ms Grose the medical certificate "shortly after receiving it" and had spoken with her repeatedly about getting back to work. He said that he was a frequent visitor to the Emergency Services Bureau premises at the time, as he had been advised to re-familiarise himself with the place and the people in preparation for returning to work.
MR ROWLEY
22. Mr Rowley, whose statement dated 23 August 2002 was before the Tribunal, gave oral evidence at the hearing. Mr Rowley stated that he had known the Applicant for 29 years and was a "friend of the family".
23. Mr Rowley told the Tribunal, on a day in early July 2000, he had driven to the Applicant's house. He gave evidence that he picked up the Applicant and, together, they drove in Mr Rowley's car to the offices of the Emergency Services Bureau in Curtin. The sole purpose, he stated, in making this journey was for the Applicant to give the medical certificate signed by Dr Somasundaram and dated 26 June 2000, which Mr Rowley had viewed, to Ms Grose.
24. Mr Rowley gave evidence that he and the Applicant waited outside Ms Grose's office for a while after arriving. Mr Rowley recalled he did not accompany the Applicant when he went into Ms Grose's office, but he saw him go in with the certificate. Mr Rowley told the Tribunal that the Applicant emerged soon thereafter without the certificate, whereupon Mr Rowley said he took the Applicant home.
25. Mr Rowley described the Applicant's experience with cancer as "traumatic" whereby the Applicant found it difficult to cope and lost his strength. Mr Rowley described the Applicant's decision to place his wife in residential care as "gut-wrenching and very stressful".
MS GROSE
26. Ms Grose, whose statement dated 16 July 2002 was before the Tribunal, gave oral evidence at the hearing. Ms Grose stated that she was employed as Human Resources Coordinator by the ACT Emergency Services Bureau between February 1990 to 26 February 2002. She stated that she had been the case manager for the Applicant's claim and worked in Curtin in July 2000.
27. Ms Grose stated that she did not recall being visited by the Applicant in early July 2000 or being given a medical certificate by him at that time. She recalled that she was often out of her office, but worked with an assistant, so there was always someone in the office.
28. She stated that the first time she became aware of a medical certificate certifying the Applicant fit for work on 26 June 2000, was when she received a copy by facsimile from Du Pont and Associates on 8 November 2000. On receiving this certificate, she stated, she placed a copy on file and commenced procedures for the Applicant's return to work.
29. Ms Grose gave evidence that she and Mr David Prince met with the Applicant on 5 June 2000 to discuss his situation, in which meeting the Applicant expressed a desire to return to work. Ms Grose gave evidence that potential duties were discussed with the Applicant, who was advised to seek a medical clearance from his treating doctor and oncologist. She stated that it was left to the Applicant to provide this information.
30. Ms Grose told the Tribunal that on 13 September 2000 she wrote a letter to Ms G Jess at Du Pont and Associates, who was providing rehabilitation services, regarding the Applicant's situation and a process for returning to work. She stated that she would not have done so if she had been aware of the medical certificate.
31. Ms Grose gave evidence that there were a range of full time jobs available to the Applicant at that time, with suitable duties. She gave examples of work with the Council of the Aging or the Ambulance Communication Centre, and described administrative, communication and public relations duties. She stated that in such employment the Applicant would have been able to work his pre-injury hours.
MEDICAL EVIDENCE
DR LUCAS
32. The Tribunal had before it reports by Dr W Lucas, Psychiatrist, (Exhibits A1, A2 and T31) who gave oral evidence. Dr Lucas told the Tribunal the Applicant continues to experience anxiety and phobic symptoms of the adjustment disorder caused by the 1998 work incident. Dr Lucas opined that the condition is such that exposure to a phobic stressor is likely to exacerbate the condition, whereas the adjustment disorder is likely to diminish in the absence of phobic stressors. He also considered that secondary stressors may prolong recovery and contribute to phobic sensitivity.
33. Dr Lucas agreed that the Applicant's experience of cancer and his wife's health and care requirements were significant stressors.. He did not accept, however, that the Applicant's phobic anxiety concerning small or confined spaces was caused by either of these stressors. Dr Lucas opined that the Applicant's tiredness and lack of energy were attributable to the three major stressors in his life: his experience of cancer, his wife's situation and his work-related phobic anxiety.
34. Dr Lucas recommended the Applicant should be restricted from working in encapsulated suits, but may in time, with appropriate treatment and rehabilitation, be able to return to his other duties. He noted that the Applicant's phobic anxiety may be exacerbated by "fire work".
DR SABOISKY
35. The Tribunal had before it reports by Dr J Saboisky, Consultant Psychiatrist, (Exhibits R3, R4 and T29). Dr Saboisky told the Tribunal the Applicant continues to suffer from mild anxiety disorder with phobic panic attacks that are attributable to the incident in 1998. Dr Saboisky opined that it is typical for persons suffering such phobias to avoid situations likely to trigger the phobia. For this reason, he opined, the Applicant seeks to avoid confined spaces and may seek to avoid returning to work situations that may cause panic attacks. Consequently, it would be appropriate in Dr Saboisky's opinion to restrict the Applicant from working in confined spaces and in encapsulated suits.
36. Dr Saboisky told the Tribunal the Applicant experienced stress from "looking death in the eye" as a cancer patient undergoing surgery and chemotherapy and because of his wife's deteriorating health and placement in a nursing home. These stressors, Dr Saboisky opined, were the major causes of the Applicant's tiredness. Dr Saboisky agreed that the Applicant continued to experience tiredness despite his cancer treatment having been successfully completed by 2000 and his wife's situation having become less stressful following her admission into full time care. Dr Saboisky agreed the Applicant experienced regular sleep disturbance, in the form of nightmares and incidents, for example "fighting off the doona", two or three times each week, which also contributes to his experience of tiredness. He opined that there may be a number of factors involved in the sleep disturbance including the work incident in 1998.
37. Dr Saboisky suggested the Applicant's condition may be amenable to further treatment involving exposure therapy, medication and counselling.
38. Dr H Ahmad, Surgical Registrar, reported on 3 June 1998:
"This 44 year old fireman has a six month history of tiredness, lethargy and postural hypertension. The local doctor diagnosed anaemia with a positive haemo occult test." (Exhibit R7)
39. Dr S Somasundaram, General Practitioner, reported on 26 June 2000:
"He has recovered from his bowel cancer to an extent that he could return to work. However, he should return on a graduated return to work basis to see how he copes with work as the reason he stopped work before developing cancer, was due to anxiety and panic attacks which was directly related to his work." (T36)
40. Dr D Leong, Consultant Medical Oncologist, reported on 26 July 2000 that the Applicant was treated with "transverse colectomy followed by six months of adjuvant chemotherapy". Dr Leong opined that the Applicant:
"...has been experiencing significant problems managing his wife who has severe multiple sclerosis, and is currently thinking of nursing home placement as a long term option. This has been causing significant distress...he remains physically fit, playing golf and horseriding regularly." (Exhibit R6)
ISSUES FOR CONSIDERATION
41. The issues for determination by the Tribunal are:
(i) whether the Applicant suffers from a condition that was materially contributed to by his employment as a consequence of the injury he suffered on 10 February 1998 ("the compensable injury") and, if so, whether the condition results in incapacity for work; and
(ii) whether the Respondent is liable to pay the Applicant compensation for incapacity or medical treatment costs arising from the compensable injury.
LEGISLATION
42. In order to determine these matters, it is necessary to consider the relevant provisions of the Act.
43. The following relevant definitions are set out at subsection 4(1) of the Act:
"disease" means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
"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)."
Subsection 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 14 relevantly provides:
"14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."
Section 19 relevantly provides:
"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.
...
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self-employment)--the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition--the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment--the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant."
SUBMISSIONS
The Applicant
44. Mr Pilkinton, for the Applicant, contended the medical evidence established that the Applicant continued to suffer symptoms of a psychological condition that was caused by the incident at work on 10 February 1998. He submitted that the incident caused an injury, with psychological symptomatology that caused an incapacity for work, whereby the Respondent is liable to pay compensation pursuant to section 14 of the Act.
45. With regard to the extent of incapacity, Mr Pilkinton submitted that the Applicant suffered a partial incapacity, pursuant to section 4(9)(b) of the Act, whereby he was not able to engage in work at the same level at which he had worked before the injury on 10 February 1998. Prior to the injury the Applicant had been engaged as a Fire Officer on a fire truck, performing duties on call for everyday operations, emergencies and drills. Mr Pilkinton submitted that the duties required the Applicant to work in confined smoke-filled spaces, occasionally using encapsulated suits. He reasoned it was not possible to perform the full duties of a Fire Officer on a fire truck without working in these conditions, submitting that both Dr Lucas and Dr Saboisky accepted that the Applicant should not perform such duties. This being the case, Mr Pilkinton submitted the Applicant suffered a partial incapacity for work. Referring to the authorities Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 and Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, Mr Pilkinton noted all that is required is that the workplace injury materially contributes to the incapacity.
46. There were no issues of credit, whereby the Applicant's evidence was unreliable, Mr Pilkinton submitted. At the meeting on 5 June 2000, Ms Grose requested the Applicant to provide a treating doctor's report, for the purpose of assessment by Health Services Australia, which he did: Dr Somasundaram provided the report to the Applicant's solicitor, the solicitor provided the report to the Applicant and the Applicant delivered the report to Ms Grose in the company of Mr Rowley. However, contrary to the Applicant's account, which is corroborated by Mr Rowley, Ms Grose had no recollection of being given the report by the Applicant,on which basis, Mr Pilkinton submitted, the Tribunal should accept the Applicant's account.
47. Mr Pilkinton urged the Tribunal to accept the claim for total incapacity for work from 26 June 2000 until 15 January 2001, when the Applicant returned to work, as the Employer had not made an offer of suitable employment during this period. Failing this, as the Respondent conceded receiving Dr Somasundaram's report on 8 November 2000, Mr Pilkinton argued the Tribunal should accept the deemed incapacity claim from 8 November 2000 until 15 January 2001.
48. Mr Pilkinton submitted that the Applicant has been working reduced hours from 15 January 2001, on a graduated return to work basis, as a result of the partial incapacity for work arising from his injury. He contended that the Applicant was only working 24 hours per week because employment at the level of 24 hours per week was all he had been offered by the Employer; other suitable duties were available, but had not been offered.
The Respondent
49. Mr Clark, for the Respondent, submitted that the Applicant was not incapacitated for work as he was able to engage in work and was able to engage in work at the same level in which he was engaged prior to the injury. Mr Clark submitted that section 4(9)(b) of the Act does not imply that "work at the same level" means a person must be re-employed in the same position, with the same duties. He reasoned, therefore, that the Applicant was able to engage in work at the same level without, necessarily, being re-employed as a fireman with the same duties as before the injury.
50. Mr Clark submitted the reliability of the Applicant's evidence before the Tribunal and the information he provided to psychiatrists must be questioned. He argued that the Applicant down-played the effect of his wife's deteriorating condition and the effect of the cancer diagnosis and treatment on his ability, or willingness, to return to work, contrary to medical reports. Mr Clark pointed to the evidence of Mr Rowley, corroborating the opinions of Dr Leong, Dr Ahmad, Dr Lucas and Dr Saboisky regarding the effect of these matters on the Applicant and his symptoms.
51. With regard to the Applicant's claim that he provided Dr Somasundaram's report to Ms Grose, Mr Clark submitted this did not occur. Had this occurred, Mr Clark reasoned, it would have triggered a train of events, which, as it happened, were not triggered until Ms Grose received the report on 8 November 2000, when it was provided to her by Du Pont and Associates. He opined that Mr Rowley's evidence establishes that matters other than the medical report were more important to the Applicant at the time: his wife was suffering an acute phase of multiple sclerosis and required residential care. Mr Clark also led evidence suggesting the Applicant visited his daughter in Perth in July or August 2000. When taken together, all these matters, Mr Clark submitted, undermine the credibility of the Applicant and the reliability of his evidence.
52. Referring to Re Ghattas and Australian Telecommunications Commission [1991] AAT No. 7058 and Australian Telecommunications Commission v King (1985) 5 FCR 42, Mr Clark submitted even if the report was lodged as claimed by the Applicant, this was not sufficient for the Tribunal to deem total incapacity. The offer of suitable employment, he argued, is only one of the matters to which regard is to be given when determining the amount an employee is able to earn in suitable employment pursuant to section 19(4) of the Act.
53. Mr Clark submitted that Dr Saboisky's reports were more balanced than Dr Lucas' reports, and should be preferred by the Tribunal. He submitted the medical evidence is such that there is no evidence the Applicant suffers an incapacity for work of any significance as a consequence of the injury on 10 February 1998. Mr Rowley and Ms Grose both indicated there were other jobs or duties the Applicant could do. Mr Clark submitted these duties, which are within the Applicant's capacity and at the same level as his previous duties, are set out in a letter signed by Fire Commissioner Dance on 9 September 1999.
54. This being the case, Mr Clark concluded there is no causal link between the injury suffered by the Applicant on 10 February 1998 and any incapacity for work on or after 26 June 2000. Any incapacity for work, he argued, is causally related to the effects on the Applicant of his wife's condition and the treatment for cancer he had received.
DISCUSSION OF THE ISSUES AND FINDINGS
55. 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.
CREDIT
56. With regard to issues of credit concerning the Applicant, the Tribunal found the Applicant somewhat selective and reserved in giving evidence. The Respondent argued that the Applicant understated or embellished certain factors in his evidence, and the Tribunal agrees. However, the Tribunal does not find such understatement and embellishment constitutes concerted misrepresentation or deceitful manipulation of the facts, discrediting the Applicant's evidence. On the contrary, the Tribunal found the Applicant, essentially, to be a witness of truth, but a man, in his weakness, that is prone to understatement or embellishment. Accordingly, the Tribunal proceeds to consider the Applicant's evidence with due caution.
INJURY
57. The occurrence of the compensable injury and the Respondent's consequent liability to pay incapacity payments and medical treatment costs prior to 16 May 1998 are not in contention.
58. The Tribunal finds, therefore, the Applicant suffered a compensable injury in the form of an adjustment disorder with residual phobic anxiety symptoms as a consequence of the incident involving an encapsulated suit and breathing apparatus on 10 February 1998. The Respondent agreed to pay compensation pursuant to sections 16 and 19 of the Act during the period 10 February 1998 to 15 May 1998, in accordance with a consent decision of the Tribunal on 8 December 1999 (T33). The Tribunal notes the consent decision states "since 16 May 1998 the Applicant has not been incapacitated for work due to the compensable condition" and "since 16 May 1998 the Applicant has not required any treatment for his compensable condition".
59. The question before the Tribunal is whether the Applicant continued to suffer from a condition that was materially contributed to by his employment after 8 December 1999 and, if so, whether the condition causes incapacity for work.
60. The medical evidence is the Applicant continues to experience mild residual phobic anxiety symptoms that are related to the compensable injury, and the Tribunal so finds. Dr Saboisky and Dr Lucas report the Applicant experiencing mild residual anxiety symptoms and phobic reactions (Exhibit R3, pp3-4; Exhibit A1, p5) that are attributable to the injury on 10 February 1998.
61. The Tribunal finds, therefore, that the Applicant experienced symptoms of a medical condition, which was caused by the compensable injury, after 8 December 1999 that are on-going.
62. The Tribunal notes Dr Saboisky's comment that phobic anxiety may decrease in absence of the phobic stimulus, but exposure to the phobic stimulus, or even the thought of such exposure, may exacerbate the phobia. Thus, the Tribunal finds that the Applicant's phobic condition may decrease to a state of abeyance in absence of the particular phobic stimulus, but is susceptible to be aggravated or exacerbated by exposure to that stimulus, whereby the susceptibility may be increased by repeat exposure to the particular stimulus. The Tribunal notes such an increase may constitute an aggravation of the condition; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.
INCAPACITY FOR WORK
63. The issue before the Tribunal is whether the Applicant `s compensable injury and the symptoms he continues to experience caused any incapacity for work after 8 December 1999. It is necessary, therefore, to determine pursuant to section 4(9) of the Act whether, during the relevant period, the Applicant was incapacitated from engaging in any work as a result of the compensable injury, and, if not, whether the Applicant has been incapacitated from engaging in work at the same level at which he was engaged prior to the injury since 8 December 1999. If the answer to both questions is in the negative, the Applicant's claim must fail.
64. The Tribunal finds that the Applicant was unfit for work for reasons unrelated to his compensable injury during the period commencing on 28 May 1998 and ceasing on 26 June 2000, whereupon he was certified fit for work on a graduated return to work basis.
65. The Tribunal finds the Applicant returned to work on 15 January 2001 on a part time basis performing restricted duties and is not, therefore, incapacitated from engaging in work.
66. This being the case, it is necessary to determine whether the Applicant is incapacitated as a result of his compensable injury from engaging in work at the same level at which he was engaged prior to the injury; Comcare v Rowe [2002] FCA 1034.
67. The Tribunal finds the Applicant was engaged in work at the level of a Senior Fire Officer, performing full duties on a fire truck working 48 hours per week immediately prior to the compensable injury.
68. The Respondent submitted that the Applicant was able on and after 26 June 2000 to perform duties, other than those of a Senior Fire Officer on a fire truck, at the same level as prior to the injury. Therefore, it was submitted, no amount of compensation is payable to the Applicant. The Tribunal is mindful that "the same level" is not limited to considerations concerning remuneration, also relating to the nature and complexity of work; Re Prica and Comcare (1996) 46 ALD 46.
69. The Tribunal finds that after the injury the Applicant is restricted from engaging in work that requires him to perform duties in confined spaces or to use an encapsulated suit as a consequence of phobic anxiety. Mr Pilkinton, for the Applicant, submitted, without challenge, that it was not possible to perform the duties of a Fire Officer on a fire truck with such restrictions, and, in absence of evidence to the contrary, the Tribunal so finds.
70. The Tribunal finds the level of work the Applicant engaged in, after returning to work, is comprised of community safety and public relations duties working with the Council of the Aging. This work, the Tribunal finds, is qualitatively and, to date, quantitatively at a different level than the work in which the Applicant was engaged prior to the compensable injury. Qualitatively, the work does not involve any of the responsibilities of a Senior Fire Officer attending emergency situations and fighting fires in potentially claustrophobic circumstances, and the Tribunal so finds. Quantitatively, the Tribunal finds the Applicant is working 24 hours per week rather than 48 hours per week.
71. Relying on Dr Saboisky's reports, Mr Clark submitted that factors other than the Applicant's compensable injury, such as tiredness and stress relating to his wife's condition, prevented him from returning to full-time work. Dr Saboisky reported that (Exhibit R4 p2):
"...the cancer of the bowel coupled with the deterioration of his wife's multiple sclerosis were the primary material contributors to his inability to work full time hours. I say this because he required two and a half years off work to recover from the multiple operations that he had. The primary symptom of which he complained was tiredness and it is not a feature of episodic panic disorders such as panic disorder. Tiredness is something which does occur after a panic attack but is not a part of the long term picture."
The Tribunal notes that there is a reasonably high level on concurrence in the medical evidence on this point, whereby Dr Lucas reported (Exhibit A2, p2):
"I agree with Dr Saboisky that the carcinoma of the colon for which Mr Brice received surgery and the serious illness of his wife who is now confined to a nursing home are likely to play a major role in his current tiredness and his awareness, as expressed by Dr Saboisky, that his wife's illness was "extremely physically draining and very stressful".. However, I believe it probable that some of the residual symptoms from his adjustment disorder are likely to make a contribution.
Dr Saboisky, in his answer to question 1 as put to him by the insurer's solicitors, appears to leave open the question of some contribution from the work related problem to his tiredness, also stating that waking at night, feeling anxious, and phobic symptoms to being confined could be making a contribution. On balance, I think that all three major stressors are likely to be contributing."
72. The Tribunal agrees with Dr Lucas' conclusion and finds, on the balance of probabilities, that the Applicant's residual phobic anxiety symptoms materially contribute to his disturbed sleep and tiredness and, therefore, contribute to his partial incapacity for work. It is not necessary to make findings about the extent to which the residual symptoms of the Applicant's compensable injury contribute to his tiredness and consequent incapacity for work, a material contribution being sufficient for present purposes; Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, Federal Broom Company Pty. Limited v Semlich (1964) 110 CLR 626.
73. The Tribunal finds on 26 June 2000 and thereafter the Applicant suffered an incapacity to engage in work at the same level at which he was engaged prior to the injury on 10 February 1998 pursuant to section 4(9)(b) of the Act.
MEDICAL TREATMENT COSTS
74. The Respondent is liable to pay the cost of reasonable medical treatment of a compensable injury pursuant to section 16(1) of the Act. The Tribunal has found the Applicant suffered a compensable injury, which in fact was found by the Tribunal in previous proceedings in this matter and was not in contention between the parties. The question to be determined is whether symptoms of the injury persist to the extent that medical treatment is warranted and reasonable in the circumstances.
75. The medical evidence establishes that the Applicant continues to suffer residual symptoms of the adjustment disorder caused by the compensable injury. Dr Lucas and Dr Saboisky recommend the Applicant be provided with further treatment in the context of a rehabilitation program (Exhibit R3, p3; Exhibit A1, p6). Thus, the Tribunal finds that Comcare is liable to pay the cost of the Applicant's reasonable medical treatment for the residual symptoms he continues to suffer as a consequence of the compensable injury.
AMOUNT OF COMPENSATION PAYABLE
76. The Tribunal turned to consider the rate of compensation payable in the circumstances, which is to be calculated in accordance with the formulae 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 Corporation Ltd v Slater, [2001] FCA 149.
77. Mr Pilkinton contended that the Respondent had not made an offer of suitable employment during the period 26 June 2000 to 15 January 2001, as a consequence of which the Applicant should be deemed to have total incapacity for work during this period. Mr Clark referred the Tribunal to the cases of King and Re Ghattas (supra) submitting that the amount the Applicant is able to earn in suitable employment is to be decided pursuant to section 19(4) of the Act, wherein the factors that are to be had regard to are set out. The Tribunal agrees with this submission.
78. Turning, thus, to consider the relevant factors, the Tribunal finds the Applicant was in the employ of the Employer at all relevant periods and, being certified medically fit to return to work on a graduated basis on 26 June 2000, paragraph 19(4)(a) of the Act applies. The Tribunal finds the Applicant, having been certified medically fit to return to work on a graduated basis, was in the situation of not performing any work for the Employer and not earning any amount each week from that employment during the period 26 June 2000 to 15 January 2001.
79. The Tribunal finds the Employer did not make the Applicant an offer of suitable employment on or after 26 June 2000 that the Applicant failed to accept, engage in or continue to engage in. There is no evidence the Applicant received or failed to fulfil an offer of suitable employment that was conditional on his completion of a rehabilitation or vocational training program. Thus, the Tribunal finds that paragraphs 19 (4) (b), (c) and (d) of the Act are not applicable in the circumstances.
80. The Tribunal finds the Applicant sought suitable employment from the Employer in the form of a graduated return to work which he discussed with Ms Grose on 5 June 2000 (Exhibit R8) , as a consequence of which he sought medical clearance from Dr Somasundaram, who certified the him fit for a graduated return to work on 26 June 2000. This being the case, the Tribunal finds paragraph 19(4)(f) of the Act is not applicable in the circumstances.
81. Applying Woodbridge v Comcare (1994) 20 AAR 196, the Tribunal turns to consider any other matter that is relevant pursuant to section 19 (4) (g) of the Act. The Respondent submitted that the Applicant did not want to return to work on 26 June 2000 for a variety of personal and family reasons, contending that the Applicant was preoccupied by his wife's deteriorating condition and escalating care requirements, and that he visited his daughter in Perth in July or August 2000. Whether these contentions have merit or not in fact, the Tribunal finds they did not prevent the Employer from offering the Applicant suitable employment, nor did they alter the fact that the Applicant was certified fit to return to work on 26 June 2000. Had the Employer offered the Applicant suitable employment that he declined to accept, then the Tribunal would have had regard to the amount the Applicant would have earned each week in that employment for the purpose of determining the amount the Applicant was able to earn in suitable employment. The fact is, the Applicant did not decline any such offer.
82. Mr Clark submitted that the Employer did not receive information certifying the Applicant was fit to return to work until 8 November 2000, whereupon the Employer commenced the steps necessary to implement a graduated return to work program.
83. Weighing the evidence on this point, the Tribunal is not persuaded that the Applicant did not provide the Employer with the document certifying him fit to return to work on 26 June 2000.. The evidence reveals that the Applicant was engaged in discussions with the Employer on 5 June 2000 regarding his return to work (Exhibit R8), and the Tribunal so finds. The evidence also establishes that the Applicant followed the instruction given by the Employer at this meeting to obtain a certificate of fitness from his treating general practitioner, Dr Somasundaram (T36). Ms Grose told the Tribunal in her evidence that she did not recall meeting with the Applicant and receiving a copy of the certificate in early July 2000, but worked with an assistant and was frequently out of her office during this period. Mr Rowley gave evidence that he accompanied the Applicant to Ms Grose's office for the sole purpose of delivering the report to her in early July 2000, being unable to recall the precise date. Mr Rowley recalled they waited for a period outside Ms Grose's office before the Applicant went inside. Mr Rowley did not, however, witness the Applicant giving the certificate to Ms Grose, stating that he saw the Applicant enter Ms Grose's office with the certificate and come out a sort time later without it.
84. The Tribunal finds no reason to doubt the evidence of Ms Grose, Mr Rowley or the Applicant on this point, finding, on the balance of probabilities, that the Applicant did, in fact, deliver the certificate to Ms Grose's office, possibly in her absence, whereafter the certificate was either misplaced or overlooked, having not been drawn to Ms Grose's attention. The certificate was subsequently drawn to attention and a copy provided to the Employer by Ms Jess on 8 November 2000 (Exhibit R11).
85. The Tribunal finds, therefore, that in early July 2000 the Applicant, seeking to resume his employment, provided the Employer with a certificate from Dr Somasundaram, certifying his fitness to return to work on a graduated basis on 26 June 2000.
86. There is some evidence the Applicant was in receipt of a disability support pension during the period of his treatment for cancer and subsequent recovery. While not determinative in this case, the Tribunal observes that it is not appropriate for a person in the Applicant's situation to continue to receive disability benefits funded by the tax payer when he has been certified fit to resume his previous employment, where his return to work is recommended on a graduated basis within restrictions arising from a compensable injury.
87. In these circumstances, the Applicant's ability to earn an amount each week in suitable employment during the period in question is framed by the ongoing contract of employment between the Employer and the Applicant. The Tribunal finds the Applicant sought to resume his employment on 5 June 2000, following his recovery from bowel cancer, and was certified medically fit for this purpose on 26 June 2000, providing a copy of the certificate to the Employer soon thereafter. The Tribunal finds the Employer, however, failed to provide an offer of suitable employment until 15 January 2001 whereupon the Applicant returned to work on a restricted part time basis, which is ongoing. The amount the Applicant is able to earn in suitable employment is, therefore, constrained by the limited extent of his work in suitable employment provided by the Employer and the Tribunal so finds.
88. The Tribunal notes there is insufficient evidence to determine the extent of the Applicant's incapacity for work related to tiredness, which is in part caused by the compensable injury. Mr Pilkinton submitted that the Applicant has been prevented from resuming full time duties in part because of the continuing symptoms of his compensable injury and in other part because the Employer has not offered suitable full time duties. Mr Clark submitted that suitable full time duties are available to the Applicant , referring to correspondence between Fire Commissioner Dance and Dr Somasundaram, dated 9 September 1999, (Exhibit R12). The Tribunal agrees that suitable duties have been considered by the Employer, but finds, however, the Applicant has not been offered or provided with such duties on a full time basis, consistent with his previous employment.
89. The Tribunal finds, therefore, the amount the Applicant is able to earn in suitable employment is the amount of his earnings each week in his employment with the Employer since 26 June 2000, pursuant to section 19 (4) (a) of the Act. The Tribunal notes the Applicant's income by way of disability support pension is not considered to be earnings in employment. Disability support pension income received after 26 June 2000, therefore, may be raised as a debt to be repaid by the Applicant.
90. The Applicant stated clearly that he wanted to return to full time work and was hopeful of achieving this on completion of the graduated return to work program. The Tribunal notes the comments of Dr Lucas and Dr Saboisky regarding the desirability of providing a suitable rehabilitation program for that purpose.
DECISION
A2001/397
91. The Tribunal determines to set aside the decision under review and, in substitution therefor, decides to remit the matters to the Respondent with the following directions:
(i) The Applicant is entitled to ongoing payment of compensation for incapacity commencing on 26 June 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 on 26 June 2000;
(iii) The Respondent is to assess the correct amount of compensation for incapacity that is payable.
A2002/209
92. The Tribunal determines to set aside the decision under review and, in substitution therefor, decides the Applicant is entitled to compensation for reasonable medical treatment costs incurred on and after 26 June 2000 in respect of the adjustment disorder, and related phobic anxiety symptoms, arising from the injury on 10 February 1998.
93. The Tribunal orders that the Respondent pay the Applicant's reasonable costs of these proceedings in relation to both applications.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: ............Trevor Mobbs.............................
Associate
Date of Hearing 14 and 15 October 2002
Date of Decision 13 January 2003
Counsel for the Applicant Mr S Pilkinton
Solicitor for the Applicant Mr B Hatch, Pamela Coward & Associates
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Mr P Woulfe, Sparke Helmore
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