COMPENSATION - Rate of payment - Whether incapacitated for work at time of retirement - Whether Tribunal has previously dealt with issue in dispute - Whether compensation to be determined pursuant to section 19 or 21 of the Safety, Rehabilitation and Compensation Act 1988.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19, 21

Administrative Appeals Tribunal Act 1975 (Cth) s 42C

Hanna v Australian Postal Corporation [1990] FCA 153; (1990) 12 AAR 511

Bogaards v McMahon and Another [1988] FCA 161; (1988) 80 ALR 342

Telstra Corporation v Aboushadi [2004] FCA 811

Re Prica and Comcare (1996) 44 ALD 46

Re Smith and Comcare [2002] AATA 249

In this matter Ms Moon and Telstra agree that Ms Moon is entitled to compensation for a period of incapacity which resulted from an injury suffered by her whilst employed by Telstra. However they differ as to the rate at which compensation should be paid. The correct rate is determined by the particular section of the Safety, Rehabilitation and Compensation Act (1988) applicable to Ms Moon's situation.

For the reasons which follow I have decided that the decision of Telstra as to the applicable section is incorrect and should be set aside.

In this matter the parties filed an agreed statement of facts. Unless otherwise stated, the following findings are based on those agreed facts. I am satisfied as to all facts found on the balance of probabilities.

Ms Moon commenced employment with Telstra in 1987. Sometime prior to 17 April 2002 Ms Moon developed a psychiatric condition as a result of her employment. She was totally incapacitated for work from 17 April 2002 to 3 June 2002. On 4 July 2002 Ms Moon commenced a graduated return to work and from 8 August 2002 until 18 October 2002 she worked full-time. On 18 October 2002 her position was made redundant and she was compulsorily retired for reasons unrelated to her medical condition.

The nature of Ms Moon's work at the time of her retirement was not the subject of the agreed facts, although there was little of her evidence which was disputed by Telstra. The findings of fact in the following two paragraphs are based on the evidence of Ms Moon and the evidence of Ms Carter who worked in the same team as Ms Moon immediately prior to Ms Moon's retirement.

Prior to becoming ill Ms Moon worked as a level 4 Cable Assigner. In general terms, her work involved the receipt of requests for the connection of Telstra's services to business premises, the identification of the cables which had to be connected to the premises and the activation of the services once the cables had been connected. Her duties included telephone contact with the technicians responsible for connecting the cables. On 18 October 2002, the day Ms Moon retired, she was still working in the position of a level 4 Cable Assigner carrying out the same duties she performed prior to her illness. However, there were some differences:

• she was working on a different floor in the same building;

• she was subject to the supervision of a new supervisor;

• she was no longer taking calls from technicians.

Ms Moon gave evidence that she worked on a different floor because she was unable to work with her previous supervisor, Mr Cutting, whose conduct had caused her to become ill. For the same reason, when she returned to work after her illness, she was not subject to the supervision of Mr Cutting. Ms Moon said that she did not take calls from technicians because the area in which she worked did not have the equipment to allow this. Ms Carter, a fellow employee of Ms Moon, gave evidence which confirmed the nature of Ms Moon's work as a Cable Assigner, except that Ms Carter said that the reason she and Ms Moon could not accept calls from technicians was that Mr Cutting supervised these calls and management would not permit contact between Mr Cutting and Ms Moon and herself. I accept both Ms Moon and Ms Carter as honest witnesses although one of them may be mistaken on the question of the calls from technicians. However, I am satisfied, as at 18 October 2002 Ms Moon's duties did not involve the taking of calls from technicians. The reason she was not doing so is not relevant in these proceedings.

In a report of 6 July 2002, Dr Kelly, Ms Moon's general practitioner, expressed the opinion that "it is unlikely Ms Moon will ever be able to work in the same area as her previous 'boss'".[1] On 10 September 2002, Dr Knox, Consultant Psychiatrist, reported that Ms Moon "should not return to work under the direction of Mr Cutting. I would expect her to however recover her health and be able to work satisfactorily for Telstra, or another organisation, in other duties." [2]

In November 2002 Ms Moon received a lump sum benefit under her superannuation scheme.[3]

On 12 June 2003 this Tribunal made a decision pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 (Cth).[4] In part, the decision was as follows:

"For the closed period 17 April 2002 to 13 May 2003, the Applicant suffered impairment or incapacity for work as a result of a "stress based anxiety/depression" ("the compensable condition"), being an "aggravation" of a "disease" that was materially contributed to by her employment with Telstra Corporation Limited ("the Agency"), with a deemed date of injury of 17 April 2002 (the date the Applicant was first incapacitated for work as a result of the compensable condition);

The Respondent is liable to pay compensation for incapacity pursuant to sections 19, 20, 21 or 21A (as appropriate) of the SRC Act for the closed period from 17 April 2002 to 13 May 2003, in respect of the compensable condition." [5]

Immediately following the terms of the decision itself the Tribunal noted a number of points of agreement between the parties. Paragraph 3.1 of these points of agreement provided:

"the Respondent is liable to pay compensation for incapacity, pursuant to sections 19, 20, 21 or 21A (as appropriate) of the SRC Act, for the closed period from 17 April 2002 to 13 May 2003, in respect of the compensable condition".

On 16 August 2002 the solicitor for Ms Moon wrote to the solicitors for Telstra. The letter included the following paragraph:

"We are instructed that Ms Moon was redeployed to alternative duties and was working her normal hours of work at the time she was made redundant. Ms Moon was not fit to return to her pre-accident duties at that time." [6]

The issue for determination is whether Ms Moon is entitled to compensation for incapacity for the period 19 October 2002 to 13 May 2003 pursuant to section 19 or pursuant to section 21 of the Safety, Rehabilititation and Compensation Act 1988. There is no dispute that Ms Moon is entitled to compensation under one of the provisions for this period. However, if Ms Moon was "incapacitated for work" at the time she retired, section 21 applies and her superannuation benefits are taken into account in determining her rate of compensation. If she was not, section 19 applies and she is entitled to compensation at a different rate.

The determination of this issue requires the answering of two subsidiary questions.

(1) Has this Tribunal previously determined that Ms Moon was incapacitated for work at the time she was retired such that it cannot now make a further determination in this regard?

(2) If it has not, was Ms Moon incapacitated for work at the time of her retirement?

Section 19 of the Act 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."

Section 21 provides for compensation of employees is in receipt of lump sum benefits. Subsection 21(1) provides:

"(1) This section applies to an employee who, being incapacitated for

work as a result of an injury retires voluntarily, or is compulsorily

retired, from his or her employment at any time after the

commencement of this section and, as a result of the retirement,

receives a lump sum benefit under a superannuation scheme."

The scope of the term "incapacity for work" is outlined in subsection 4(9) as follows:

"(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."

Has this Tribunal already determined that Ms Moon was incapacitated for work at the time she was retired such that it cannot now make a further determination in this regard?

Counsel for Telstra has argued that the Tribunal's decision of 12 June 2003 that "for the closed period from 17 April 2002 to 13 May 2003, the Applicant suffered impairment or incapacity for work" has determined the issue before me and that the Tribunal has no power to further consider this issue. It is clear that once the Tribunal has finally dealt with a precise issue between parties, it cannot revisit that issue unless it has been the subject of a further determination: Hanna v Australian Postal Corporation [1990] FCA 153; (1990) 12 AAR 511 at 514; Bogaards v McMahon and Another [1988] FCA 161; (1988) 80 ALR 342 at 351; Telstra Corporation v Aboushadi [2004] FCA 811 at paragraphs 28 and 34.

A careful consideration of the decision of 12 June 2003, indicates that the Tribunal did not determine that Ms Moon suffered an incapacity for work as at 18 October 2002 (the date of her retirement). It did decide that at time she suffered "impairment or incapacity for work" (emphasis added). The decision leaves open the possibility that at the time of retirement Ms Moon suffered an impairment as a result of her illness but was not incapacitated for work. As this was a decision made as result of an agreement between the parties, it is permissible to look to the notes which followed the terms of the decision for clarification of that interpretation. Note 3.1 leaves open the alternatives of payment of compensation for incapacity under section 19 or section 21. As Ms Moon had received a lump-sum superannuation payment prior to the decision being made, payment of compensation under section 19 would not have been an option if it had been decided that Ms Moon was incapacitated for work at the time she retired.

Was Ms Moon incapacitated for work at the time of her retirement?

In deciding this question the only issue between the parties is whether, at the time of her retirement, Ms Moon suffered an incapacity to engage in work at the same level at which she was engaged immediately prior to her injury. It is clear that in deciding whether an injured employee has been able to engage in work "at the same level" one looks at the nature and quality of the work being done, rather than the grade or salary level: Re Prica and Comcare (1996) 44 ALD 45 at 51; Smith v Comcare [2002] AATA 249 at paragraph 85.

Counsel for Telstra has argued that the following differences, which I have found did exist, are such that I should find that Ms Moon was not engaged in work at the same level:

•

Ms Moon was working on a different floor;

•

she was working under a new supervisor;

•

her duties no longer required that she take calls from technicians.

Counsel also relied upon the opinions of the medical practitioners that Ms Moon was not fit to return to work if she was to again be subject to the supervision of Mr Cutting and upon the statement of Ms Moon's solicitors in their letter of 16 August 2006 that Ms Moon "was not fit to return to her pre-accident duties" at the time of her retirement.[7] I do not accept Telstra's arguments in this regard.

The definition of "incapacity for work" in subsection 4(9) refers to an incapacity to engage in work "at the same level"; it does not require a return to precisely the same duties. The decisions in Re Prica and Comcare and Smith v Comcare referred to the nature and quality of the work being carried out and similarly, did not suggest that the Act requires an injured employee be able to perform each and every pre-accident duty before it can be said that he or she is no longer incapacitated. I am satisfied Ms Moon was engaged in work at the same level when she retired even though she may not have been carrying out one of her pre-injury duties, namely the taking of calls from technicians. On the facts before me, the floor of the building on which Ms Moon was working and the identity of her supervisor are totally irrelevant to the determination of the level at which she was working.

It follows from what I have already said that the opinions of Dr Kelly and Dr Knox that Ms Moon could no longer work under the supervision of Mr Cutting are also irrelevant to the determination of the question before me. The opinion expressed by Ms Moon's solicitors in their letter of 16 August 2006 is not binding on this Tribunal and is not determinative of the issue before me. In any event, it is clear from the context of the letter, that the solicitors were not making a concession on behalf of Ms Moon that at the time of her retirement she suffered from an incapacity to engage in work at the same level as that in which she had engaged prior to her injury.

The decision made 24 October 2006 that Telstra Corporation Limited is liable to pay compensation to Ms Moon for incapacity for the period from 19 October 2002 to 13 May 2003 pursuant to section 21 of the Safety, Rehabilitation and Compensation Act (1988) is set aside.

In substitution for the decision referred to in the preceding paragraph it is decided that Telstra Corporation Limited is liable to pay compensation to Ms Moon for incapacity for the period from 19 October 2002 to 13 May 2003 pursuant to section 19 of the Safety, Rehabilitation and Compensation Act (1988).

Each party has liberty to apply for further directions in relation to the costs of these proceedings within 21 days of the date of this decision but should no such application be made Telstra Corporation Limited shall pay the costs of the proceedings incurred by Ms Moon.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed: .....................................................................................

Joe Meagher, Associate

Date/s of Hearing 7 November 2006

Date of Decision 23 November 2006

Representative for the Applicant Mr B. Redpath

Counsel for the Respondent Mr B. Kelly

Solicitor for the Respondent Sparke Helmore