Anderson, Francis Thomas v Australian Postal Commission

[1981] FCA 107

Re: FRANCIS THOMAS ANDERSON
And: AUSTRALIAN POSTAL COMMISSION (1981) 53 FLR 211
No. VG 161 of 1980
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Workers' Compensation - Commonwealth Government employee - claim for compensation - total or partial incapacity - employee physically able to perform clerical work - no training for such work - limited availability of such work - "odd lot" doctrine - when partial incapacity deemed to be total.

Compensation (Commonwealth Government Employees) Act 1971, s.26.

Workers' Compensation - Commonwealth employee - Heart condition - Whether employee totally or partially incapacitated - Determination of Commonwealth Employees' Compensation Tribunal - Errors of law - Whether employment commonly available for employee such as applicant - Whether applicant an odd lot - Compensation (Commonwealth Government Employees) Act 1971 (Cth), s. 26.

HEADNOTE

The applicant who had been employed by the respondent as a postman claimed compensation under the Compensation (Commonwealth Government Employees) Act 1971 in respect of a heart condition from which he suffered. The Commonwealth Employees' Compensation Tribunal found that the applicant was only partially incapacitated as a result of the condition and that he was able to do the work of a clerical assistant grade I.

On appeal by the applicant,

Held: (1) The Tribunal had erred in law in its construction of s. 26 of the Act which requires an inquiry to be made as to whether employment was commonly available for a worker with the limited skills, experience and physical capacity of the particular applicant.

Giannopoulous v. Australian Telecommuncations Commission (1979), 46 SAIR (Pt 2) 592, followed.

(2) The Tribunal had erred in law in failing to take into account the applicant's age, lack of education, clerical skills and experience and his state of health and physical capacity in deciding whether or not he was an odd lot and thus totally incapacitated.

Bavcevic v. Commonwealth (1957), 98 CLR 296, referred to.

(3) The appeal should be allowed and the matter remitted for rehearing and redetermination because, as there was no evidence that the applicant had unsuccessfully sought to obtain work, there was insufficient evidence to find that he was totally incapacitated.

HEARING

Sydney, 1981, May 8, 19, 22; July 20. #DATE 20:7:1981

APPEAL

S.P. Spittle, for the applicant.

M.R. Hickey, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Slater & Gordon.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.

T.J. GINNANE

ORDER

1. Appeal allowed.

2. Matter remitted to the Tribunal for re-hearing and re-determination in accordance with these reasons.

3. Respondent to pay the applicant's costs of the appeal. Orders accordingly.

JUDGE1

This is an appeal by Francis Thomas Anderson ("the appellant") from a decision of the Commonwealth Employees Compensation Tribunal (the Tribunal) under the Compensation (Commonwealth Government Employees) Act 1971 (the Act). The appellant was formerly a postman with the Australian Postal Commission and claimed compensation in respect of a heart condition from which he suffered. His claim was rejected by the Commissioner for Employees' Compensation upon the ground that his employment with the Postal Commission was not a contributing factor to the contraction or aggravation of his heart condition. From this determination the appellant appealed to the Tribunal which on 21st March 1980 set aside the determination of the Commissioner. The Tribunal held that the appellant's employment was a contributing factor to the aggravation of his heart disease, found that he was able to do the work of a Clerical Assistant Grade I and that he was entitled to be paid compensation in an amount equal to the difference between the pay of a Clerical Assistant Grade I and his former pay as a postman. The two substantial issues before the Tribunal were whether the appellant's heart condition was compensable at all and, if it were, whether he was totally or partially incapacitated. The Tribunal found the first issue in favour of the appellant but found that he was only partially incapacitated in spite of his claim that he was totally incapacitated.

The Tribunal added to its reasons for decision the following paragraph:

"17. The objective of a responsible adjudicating authority in dealing with a 45 year old man who is partially incapacitated is to assist him again to become a useful member of society. For the future, therefore, I direct that compensation in accordance with the determination in the previous paragraph be paid for one year during which period the claimant should attend the Glen Waverley Rehabilitation Centre ('the Centre'). If he does not attend the Centre then I ask the Department of Social Security to inform the Clerk of the Tribunal ('the Clerk') so that continued weekly payments may be reviewed by this Tribunal. If he does attend and it is considered by the Centre's authorities that he is incapacitated for any work this Tribunal will review the issue of whether he should be deemed totally incapacitated pursuant to s. 26. Liberty to apply generally at the end of the year."

Subsequently the matter was relisted before the Tribunal and further evidence was called on behalf of the appellant. I shall refer to the detail of that evidence later in these reasons. After again considering the matter the Tribunal on 16 December 1980 made a further determination which, in effect, affirmed the determination of 21 March 1980. It is from this latter decision that the appeal is brought to this Court. Section 95 of the Act provides that an appeal may be brought to the Court only on a question of law. Whilst counsel for the appellant put his argument in a number of ways, essentially there were two errors of law said to be manifested in the Tribunal's decision. First, it was submitted that the evidence before the Tribunal compelled a finding that the appellant was totally, and not partially, incapacitated and the Tribunal was in error in not so finding. Alternatively it was submitted that the Tribunal misdirected itself as to the nature of the evidence required to make out a case of total incapacity.

It is necessary to refer to the facts in some little detail. The appellant had been employed by the Postal Commission or its predecessors for some 22 years prior to April and May 1976 when he suffered heart pains when doing work involving, inter alia, lifting mail bags. At that time he was employed as a postman. The exact nature of the heart condition from which he suffered need not be considered because no question arises on this appeal as to the correctness of the Tribunal's finding that the appellant's employment was a contributing factor to the aggravation of his heart disease. He was off work as a result of incapacity due to his heart condition until October 1976. He was then given light work but this again caused him to suffer heart pains. He ceased work in November 1976 and has not worked since. The Tribunal found as a fact that the appellant was unable to do the work of a postman.

For some time after he ceased work the appellant was paid a sickness benefit and thereafter was granted an invalid pension. He did not seek other employment, giving as his reasons that as an invalid pensioner he was not allowed to earn much money, that he did not think he was capable of working because of his heart pains and that he did not think he had the capacity to get a clerical job. The appellant had left school when he was aged about 15 years and his only employment before joining the postal service was as a storeman with the Dunlop Rubber Company. The only work of a clerical kind which he appears to have performed was the filling in of dockets as part of his work as a storeman.

The appellant gave evidence that he experienced pain if he did anything strenuous, that he could do light work when he was having a good day, that he never had two good days together and that he did not think he could put in eight hours light work, day after day, in a regular work situation. He said he had not tried to work for eight hours a day and had not tried to get even part time work since he had ceased working for the respondent.

A number of medical practitioners gave evidence before the Tribunal. Dr. Berera, who was called on behalf of the appellant, was of the opinion that the appellant was unable to do any job which involved any physical exertion or any kind of emotional or mental stress. He thought he would be fit for a clerical position but that any pressure on the appellant would bring on an attack of angina. However he was cautious in his assessment of the appellant's work capacity as he was a general practitioner and the appellant had been referred for the opinion of a specialist cardiologist. A specialist physician called by the appellant gave evidence as follows: -

" . . . Do you think he has got any working capacity for regular sustained eight hours a day employment? - - - He is not generally employable.

MR. KNOTT: Why not? - - - Because even in the lightest of occupations, he has to get to the place of occupation and back again. Even if we give him a nice little protected cushy job, sitting at a desk putting stamps on letters, he still has to get there and back again. Even in ordinary active travelling, he can get angina and even in ordinary active travelling or ordinary movements we can record abnormal electro-cardiograms just like we get when we are exercising. These are the reasons I do not think he will get a job and I do not think he will stand one.

Why can he not work? - - - I do not think he is employable. I said he is not generally employable, so theoretically he might work, but I do not think he will get a job.

THE TRIBUNAL: He is rather better educated than some people who come before us. He got up to intermediate at school. He hs been a clerk for 3 years. His GP thought he was fit for clerical work. Are you saying I appreciate you would not want to have a clerical job transiting the city - but if he got a clerical job close by, would that not be within his - - - ? - - - I said theoretically he could do a nice cushy job. It has got to be a specific job. He is not generally employable. There must be some sort of work he could do. I will admit if it is specified, if it does not produce angina in transit and getting home again, if he can cope with it, then in that sense he can work, but he is not generally employable."

A consultant physician called by the respondent Commission whilst expressing the view that the appellant's working conditions did not aggravate his heart condition (a view which was not adopted by the Tribunal) said that he would recommend that the appellant attempt to do a clerical job or pure mail sorting.

During the course of the evidence the Tribunal suggested to counsel that it would be helpful to have evidence from the Commonwealth Employment Service as to availability of employment in order to determine whether the appellant was totally or partially incapacitated. In response to this suggestion and to an enquiry made of the respondent's counsel as to the availability of mail sorting work counsel for the respondent made the following statement to the Tribunal:

"We have spoken to the Commonwealth Employment Office at Preston and they do not have any light work at the moment and have not had it for some time, but they cannot give any clerical light work. Apparently they do not get a lot of that type of work at the Commonwealth Employment Offices. And, sir, evidence will be given that there is no light duties postal work available for a postman."

The appellant gave the following evidence as to his efforts to obtain work:

"It is correct, is it, that at no stage since you left the post office did you apply for a single job? - - - That is correct.

Why not? - - - Well, initially I was, I suppose - I went on to the invalid pension, and therefore you are not allowed to earn so much money. That is one reason. You are only supposed to earn so much a week. I did not think I was capable of working because of, you know, the pain and that, and I, you know, and my capability of getting a job clerically would not be the best because I had not done it for 27 years I suppose, so obviously I think I would be battling to get a clerical job with my knowledge.

But you have not tried, have you? - - - No, I said because I was on the invalid pension, and I did not, you know, I did not think work would help my situation. I have given up smoking and a lot of things just to look after my health, and health is more important than monetary gains I suppose.

So it comes to this, does it, that you did not try to get any work involving physical effort because you did not think that you could manage it - right? - - - Yes, I did not try for any job irrespective of whether it was physical or not.

No, No. That is right, but the reason you did not try for any job with any physical activity was because you did not think that you could manage it? - - - True.

And the reason that you did not apply for any clerical job was you did not think that you would be able to get one because you had not done it for a long time, and you were on the invalid pension and you were not allowed to work? - - - Yes."

The postmaster of the post office at which the appellant had been employed gave evidence that work involving only the sorting of letters was not available and that there was no provision in the post office for clerical assistants.

It was in the light of this evidence that the Tribunal made the determination of 21 March. In its reasons of that date the Tribunal said, in part:

"The fact that a claimant is not offered work he is able to do by his employer is no part of a test of his residual ability to earn. The onus of proof in a court of law would remain on a claimant (J. & H. Timbers v. Nelson (1972) 126 C.L.R. 625) and in an administrative Tribunal he has to satisfy that Tribunal as to his ability to earn. Here, the claimant on his own evidence, was educated to Intermediate standard in Victoria, has had previous experience working as a clerk, even if that was 20 years ago, was retired when he was 42 and has made no attempt whatsoever to find light work.

14. On these facts the claimant has failed to establish that he is totally incapacitated. On the contrary, I am satisfied, taking account of the market place, that the claimant has the ability to work at the level of Clerical Assistant Grade I and I find this as a fact.
. . .
15. On these findings the claimant is entitled to compensation at the difference between the wages he was earning as a Postman, including delivery allowance, and the minimum of the Clerical Assistant Grade I rate of pay."

When the matter was relisted before the Tribunal in November 1980 further evidence was tendered as to the appellant's work prospects. In response to the suggestion made by the Tribunal in paragraph 17 of its determination of 21 March, the appellant had attended the Glen Waverley Rehabilitation Centre. The Senior Medical Officer of the Centre gave evidence that the appellant had been assessed by an assessment team whose opinion was that the appellant was not a return to work prospect other than in very special circumstances. He was of the opinion that the appellant would not have much chance at all in the open labour market. He did not think it could be said that the appellant was unemployable as he did have some working ability. He thought it was fair to accept that he was able to do clerical work but he would find it difficult to get. In his opinion the appellant's chances of obtaining employment were very low "and then it would have to be selective job placement". The assessment team did not recommend entry by the appellant to the Rehabilitation Centre because of his poor chances of regaining employment as a result of any help which the Centre could give him.

An officer of the Commonwealth Employment Service also gave evidence. He said that if the appellant presented for employment he would try to get him a job but the only type of work he could see the appellant obtaining would be sedentary clerical work or very light assembly work. He said there was very little opportunity for this sort of job at any time and it would be very difficult to accommodate the appellant in a job at any time.

Against this background of the evidence I turn now to consider the arguments presented in support of the appeal. The submission that the evidence compelled a finding that the appellant was totally incapacitated was placed on two bases. First, it was put that in the light of the evidence s. 26 of the Act required a finding of total incapacity. That section provides:

"26. For the purposes of this Part an employee shall be deemed to be totally incapacitated for work if his incapacity is such that he is fit only for employment of a kind that is not commonly available and employment of that kind is not reasonably available to him."

The Tribunal rejected this argument upon the ground that as the appellant was able to do clerical work he could not be said to be fitted for employment of a kind that is not commonly available. It was of the view that the appellant's disability, his lack of skills and poor job prospects did not "overcome the express words of s.26 to enable this Tribunal to deem him totally incapacitated."

As I understand the reasons given by the Tribunal it construed the words "employment of a kind that is not commonly available" where appearing in s. 26 as not comprehending a "class of work which can be identified by reference to ordinary classes of work commonly available to the general run of employee in industry or commerce." As clerical work is a class of work which is commonly available in industry or commerce and as the Tribunal was of the view that the appellant was fit for work of a clerical assistant, it found his case was not within the section. It appears to have regarded the appellant's lack of skills and poor job prospects as irrelevant to his claim to be deemed totally incapacitated under s.26.

Save for one unreported case to which I shall presently refer s.26 appears not to have been considered in any previous decision. In my opinion, the ambit of the class of work comprehended by the words "employment of a kind that is not commonly available" cannot be determined without reference to the physical and other capacities possessed by the particular employee whose claim to be treated as totally incapacitated falls to be determined. The obvious intent of the section is to facilitate compensation claims by employees who suffer from some incapacity in obtaining employment. It would be strange if the nature and extent of that incapacity were not relevant in ascertaining the "employment of a kind that is not commonly available" referred to in the section. Further, the reference in the section to the employee being "fitted" for employment suggests that his particular work capacity is to be taken into account when determining whether employment of a particular kind is commonly available. Thus, in the present case, I would read the section as requiring an enquiry to be made as to whether employment is commonly available for a worker with the limited skills, experience and physical capacity of the appellant. This construction of the section appears to accord with the view taken of it by Stanley J., sitting in the Industrial Court of South Australia, in Giannopoulos v. Australian Telecommunications Commission (1979) 46 S.A.I.R. 592. A reading of paragraph 10 of the Tribunal's reasons of 26 November 1980 leads me to the conclusion that it did not adopt this construction of the section. As I read that paragraph, the Tribunal took the view that as it had found that the appellant was physically capable of doing clerical work, and as clerical work is employment of a kind that is commonly available, the appellant's case did not fall within the section and a consideration of his lack of skills, physical disability and poor job prospects could not lead to a different result. It seems clear that the Tribunal's finding that the appellant was fit for clerical work was no more than a finding that he was physically fit for such work, because there is nothing in the evidence to support any other finding in this regard. Although the Tribunal did not say so in terms, it appears that it regarded the appellant's age, lack of training and experience in clerical work and his extremely poor prospects of obtaining such work as irrelevant to a consideration of his claim to be deemed totally incapacitated under s. 26. In my opinion, the appellant has demonstrated an error of law in the construction placed upon the section by the Tribunal. However, it is another question whether the evidence compelled a finding in favour of the appellant under s. 26, and I shall return to that question later in these reasons.

The second basis upon which the appellant's claim to be treated as totally incapacitated was placed was that he was within the "odd lot" line of cases. These cases are authority for the proposition that a worker may be totally incapacitated notwithstanding his ability to perform some work. In Bavcevic v. The Commonwealth (1957) 98 C.L.R. 296 at 303, Dixon D.J. and Kitto J. said:

"It has long been settled that total incapacity may exist although the injured man retains enough physical capacity to enable him to do particular work of a special kind not forming one of the ordinary recognised avenues of employment. In this Court the position was summarised thus - 'permanently and totally disabled, an expression which, in our opinion, means physically incapacitated from ever earning by work any part of his livelihood. This condition is satisfied when capacity for earning has gone except for the chance of obtaining special employment of an unusual kind'. Wicks v. Union Steamship Co. of New Zealand Ltd. (1933) 50 C.L.R. 328 at p. 338. If that be the case the disablement is regarded as total unless and until the employer can show that such special employment is available. The judgment of Fletcher Moulton L.J. in Cardiff Corporation v. Hall (1911) 1 K.B. 1009 at pp. 1020, 1021 contains the explanation which is regarded as the basis of the doctrine. It is there that his Lordship used, perhaps unfortunately and certainly apologetically, the expression 'odd lot' with reference to the labour which the injured man is capable of offering. The passage in which it occurs is as follows: 'If I might be allowed to use such an undignified phrase I should say that if the accident leaves the workman's labour in the position of an 'odd lot' in the labour market, the employer must shew that a customer can be found who will take it. For in such a case we are not in truth dealing with fluctuations of the labour market at all. We are dealing with the chance of some one being found who can and will avail himself of the special residue of powers which has been left in the workman, and seeing that it is the result of the accident that the workman has been made dependent on the finding of such a special employer, it is right that those who are liable to pay to him compensation for his loss of earning power should only be allowed to take credit for his partial capacity for work if they can shew that it can actually be made productive of remuneration to him'."

In order to determine whether the worker has lost his capacity for earning except for the chance of obtaining special employment of an unusual kind, it is relevant to take into account whether such a chance exists. Thus in Wemyss Coal Co. Limited v. Walker (1929) 22 B.W.C.C. 366 at 373, the arbitrator whose award was the subject of the appeal to the House of Lords took into account the chance which the worker had of obtaining employment in a competitive labour market. Lord Buckmaster (with whom the other members of the House agreed) held that the award had been properly made. In such a case he thought that the general question to be determined was whether the worker's injuries "had left him in such a state that his powers of labour as a merchantable article in some of the well-known lines of the labour market had been taken away." (1929) 22 B.W.C.C. 361 at 373. Wemyss' Case was referred to by Dixon C.J. and Kitto J. in Bavcevic's Case at p. 304 as an illustration of the adoption of the odd lot doctrine by the House of Lords.

In giving its reasons of 28th November 1980 the Tribunal said that in the application of the "odd lot" doctrine it is necessary to reject the factors of the labour market. This, no doubt, is a correct statement if it is limited to the factors of the labour market which have nothing whatever to do with the worker's injury. Thus there is much authority for the proposition that if a worker's inability to obtain employment is due to fluctuations in the labour market, that inability cannot be treated as compensable incapacity. See, for example, Earl v. Thomas W. Ward Limited (1931) 23 B.W.C.N.S. 229 at 235. But the Tribunal went further in its reasons and said that "the fact that (the appellant) has been rejected for rehabilitation and would find it hard to get a job if he sought one through the C.E.S. is not relevant." This passage clearly discloses that the Tribunal was not merely of the opinion that it was irrelevant to consider the general state of the labour market unrelated to the plaintiff's particular circumstances. It also thought it was irrelevant to consider the diminished chance which the appellant had of obtaining work by reason of the limited capacity he had as a result of his compensable heart condition. In my opinion the Tribunal should have taken into account the appellant's age, lack of education, lack of clerical skills and experience and his state of health and physical capacity in deciding whether or not he was an "odd lot". In failing to do so, it made an error or law.

In these circumstances it is necessary to consider what order the Court should make. Counsel for the appellant submitted that the evidence before the Tribunal compelled a finding that the appellant was either totally incapacitated within the "odd lot" doctrine or should be deemed to be totally incapacitated under s. 26. He relied upon authorities such as Edwards v. Bairstow (1956) A.C. 14 at p. 36.

If the appellant had given evidence before the Tribunal that he had unsuccessfully sought to obtain work as a clerical assistant and if that evidence had been accepted by the Tribunal I would have been disposed to accept the appellant's argument and make an award in his favour. But in the absence of such evidence, I do not think that I would be justified in taking this course. The Tribunal found as a fact that the appellant is able to do the work of a clerical assistant. If I were to make an award on the basis that the appellant was totally incapacitated or should be deemed to be totally incapacitated that would be tantamount to a finding that there is no work as a clerical assistant available to the appellant. Whilst I think it highly likely that this will be found to be the case, it is possible that such work is available to a person with the limited physical ability, skills and training possessed by the appellant. The best evidence that it is not available to the appellant would be that he had tried without success to obtain it. In the absence of such evidence I do not think that it can be said that the evidence on this issue is so compelling as to compel a finding in his favour.

I am conscious that once it is demonstrated that the appellant is an "odd lot", the onus of proving that special employment is available to him lies on the employer - see Bavcevic's Case at p. 304. But the initial question whether the appellant is an "odd lot" is itself a question of fact (see Bavcevic's Case at p. 305) and the extent to which the appellant's disabilities detrimentally affect his ability to obtain work and his prospects of obtaining work are themselves relevant factual matters in determining the question whether he is an "odd lot".

I therefore think the appropriate order is that the appeal should be allowed and the matter remitted to the Tribunal for re-hearing and re-determination in accordance with these reasons. The respondent must pay the appellant's costs of the appeal.