Bush's Pet Foods Pty Ltd v Badal - [2014] NSWWCCPD 20

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bush’s Pet Foods Pty Ltd v Badal [2014] NSWWCCPD 20
APPELLANT:	Bush’s Pet Foods Pty Ltd
RESPONDENT:	Givargis Badal
INSURER:	Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER:	A1-3243/13
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	2 January 2014
DATE OF APPEAL DECISION:	14 April 2014
SUBJECT MATTER OF DECISION:	Section 52A of the Workers Compensation Act 1987; whether worker seeking suitable employment at the time notice of discontinuance served; meaning of “relevant time”; Hughston v Hughston & Sons Pty Ltd (1999) 18 NSWCCR 312 discussed and distinguished
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons
Respondent:	Shine Lawyers
ORDERS MADE ON APPEAL:	1. Paragraph 2 of the Arbitrator’s determination of 2 January 2014 is revoked and the following orders are made in its place: “2. The respondent employer pay the applicant worker weekly compensation at the rate of $559.69 from 9 May 2012 until 18 December 2012 under s 40 of the Workers Compensation Act 1987. 2A. The respondent employer having satisfied the grounds in s 52A(1)(a) of the Workers Compensation Act 1987, weekly compensation payments in respect of the applicant worker’s partial incapacity for work beyond 18 December 2012 are not payable.” 2. All other orders in the determination of 2 January 2014 are confirmed. 3. Each party is to pay his or its own costs of the appeal.

INTRODUCTION

This appeal concerns the interpretation and application of s 52A of the Workers Compensation Act 1987 (the 1987 Act). Though that section was repealed by the Workers Compensation Legislation Amendment Act 2012, as the worker was an existing recipient of weekly compensation immediately before 1 October 2012, the section continues to apply in the circumstances of this case (see cl 6 of Pt 19H of Sch 6 to the 1987 Act).
Section 52A provided that weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work, but only if one or more of the following paragraphs, referred to in the section as “grounds for discontinuation” (emphasis in original), applies to the worker at the “relevant time” (emphasis in original):
“(a) the worker is not suitably employed (within the meaning of section 43A) and is not seeking suitable employment (as determined in accordance with section 38A),
(b) the worker is not suitably employed (within the meaning of section 43A) and has previously unreasonably rejected suitable employment (within the meaning of section 40(2B),
(c) the worker has sought suitable employment but has failed to obtain suitable duties primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).”
The “relevant time” was defined as the time at which the notice under s 54 of the 1987 Act of intention to discontinue payments of compensation pursuant to s 52A was given (s 52A(2)). In the present case, that date was 6 November 2012.
It is agreed that the worker in the present case was partially incapacitated, had received weekly compensation for more than 104 weeks and, at all relevant times, was not suitably employed. The only issues on appeal are the meaning of the phrase “relevant time” and whether, at that time, the worker was seeking suitable employment, given that he last applied for suitable employment on 4 May 2012.

BACKGROUND

On 27 April 2003, the respondent worker, Givargis Badal, injured his back and left shoulder in the course of his employment with the appellant employer, Bush’s Pet Foods Pty Ltd. He was off work for a period, but returned to work until he had surgery on his shoulder on 2 September 2004. He returned to work on restricted duties after that surgery, but the appellant terminated his employment at the end of 2005.
In 2006, the insurer paid Mr Badal lump sum compensation in respect of an 11 per cent whole person impairment made up of seven per cent for the injury to his left shoulder and four per cent for the injury to his back. Since 2005, the insurer has paid Mr Badal weekly compensation for partial incapacity and has required him to seek suitable employment and keep a diary of his applications for such employment.
On several occasions between 2005 and 2009, the insurer arranged for Mr Badal to receive vocational and job seeking assistance. In the same period, it regularly advised him in writing of his obligation under s 52A to seek suitable employment.
By notice dated 1 August 2011, the insurer reduced Mr Badal’s weekly compensation to $106.03, effective from 5 September 2011.
On 10 January 2012, the insurer advised Mr Badal in writing of his obligations under s 52A in general and, in particular, of his obligation to seek suitable employment and the steps it required him to take to satisfy that obligation, namely, the completion of a diary listing details of all applications he made for suitable employment. It is not disputed that the insurer sent further such notices to Mr Badal on 7 and 13 February 2012, 8 March 2012, 10 April 2012, 1, 8 and 29 May 2012, 22 August 2012, 21 September 2012, 4 and 22 October 2012.
On 6 November 2012, the insurer notified Mr Badal in writing under s 54 that his weekly compensation would be terminated under s 52A, effective from 18 December 2012, because he was not suitably employed and was not seeking suitable employment.
On 15 February 2013, Mr Badal lodged with the Commission an Application to Resolve a Dispute (the Application) in which he claimed weekly compensation at the maximum statutory rate from 5 September 2011 to date and continuing.
In an oral decision, delivered on 19 December 2013, a Commission Arbitrator determined Mr Badal to be entitled to weekly compensation under s 40 of $359.69 from 5 September 2011 to 8 May 2012 and of $559.69 from 9 May 2012 to date, such payments to continue in accordance with the provisions of the 1987 Act.
After dealing with the nature and extent of Mr Badal’s partial incapacity, which has not been challenged on appeal, the Arbitrator considered s 52A. He said that Mr Badal had completed job-seeking diaries covering the period from “2006 to May or June 2012” (T13.22), which showed that Mr Badal had been looking for work in the security industry, as a delivery driver, working on electrical motors, and in sales.
The Arbitrator accepted Mr Badal’s evidence that he had been looking for work for many years but, other than obtaining security jobs for short periods, he had been unsuccessful in obtaining work. He was satisfied that Mr Badal had been seeking suitable duties “for a long range period of time from 2005 when his employment was terminated with the [appellant] up until the present” (T14.5).
Noting that a worker may be seeking suitable employment even if, at the precise relevant time (the s 54 notice was given), the worker was not actively seeking work (Camilleri v Western Sydney Area Health (2000) 20 NSWCCR 499 at 508), and that the phrase “relevant time” is “sufficiently elastic” (Hughston v Hughston & Sons Pty Ltd (1999) 18 NSWCCR 312 at 321–2 (Hughston), the Arbitrator accepted Mr Badal’s evidence that he had been “continuously seeking employment from 2005 to 2012” (T17.13).
Though Mr Badal’s last job-seeking diary was dated either “in May or June 2012” (T17.5), the Arbitrator was satisfied, applying Hughston, that the “relevant time should be given elasticity” (T17.17). He accepted Mr Badal’s evidence, based on his past attempts to find work, that he had been seeking employment and was seeking employment at the “relevant time” the insurer issued the notice of discontinuance on 6 November 2012.
The employer has appealed the Arbitrator’s finding that, at the “relevant time”, Mr Badal was seeking suitable employment.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Mr Badal was seeking suitable employment under s 52A at the relevant time, and
(b) his interpretation and application of the “relevant time” under s 52A.

SUBMISSIONS

The appellant’s solicitor, Doyle Myles, submitted that the last evidence of Mr Badal seeking suitable employment was in a document headed Job Seekers Diary, prepared by Mr Badal on 14 May 2012, which recorded that his last application for suitable employment was on 4 May 2012. Mr Doyle contended that Mr Badal failed to offer any evidence that he had been seeking suitable employment after May 2012 and the Arbitrator should therefore have found that, even allowing for the “elasticity” referred to in Hughston, at the relevant time, Mr Badal was not seeking suitable employment and the s 52A defence had been made out.
Mr Badal’s solicitor, John Caristo, submitted that the Arbitrator made no error and that it was open to him to find, based on Mr Badal’s statement and a report from Dr Alan Home, consultant physician, that Mr Badal was seeking suitable employment at the relevant time.
Dr Home saw Mr Badal on 30 October 2012 and took a history that, since stopping work as a security guard (because he had been assaulted), Mr Badal had sought work in various fields without success and that he was currently working as a coffee shop attendant in his brother’s coffee shop in Fairfield, where he attended for four or five hours daily and obtained free coffee and occasional small amounts of cash but no regular income. (It was not argued, either on appeal or at the arbitration, that the “work” in the coffee shop was suitable employment within the meaning of s 43A.)
Mr Caristo said that the Arbitrator:
(a)     accepted the history about the coffee shop, as recorded by Dr Home;
(b)     noted that Mr Badal’s statement set out “the job searching and job seeking that [Mr Badal] has been seeking [sic] to obtain since his employment with the [appellant] was terminated in 2005” (T12.3), which covered the period from 2006 to May or June 2012;
(c)     accepted that Mr Badal had been looking for work for many years but, other than obtaining the security positions for short periods, had been unsuccessful in obtaining work, and
(d)     accepted that the “relevant time” should be given elasticity and that, based on Mr Badal’s past attempts to find work, Mr Badal had been seeking employment and was seeking employment at the relevant time the notice was issued.
It followed, so Mr Caristo submitted, that the Arbitrator’s decision involved no error.

DISCUSSION AND FINDINGS

Mr Caristo’s submissions cannot be accepted.
It is accepted that the “relevant time” is not restricted to the date of the particular notice, but extends to a period up to the issuing of the notice (Hughston). It follows that, to satisfy the job seeking requirements in s 52A, a worker does not have to be searching for suitable employment on the date of the notice. However, the “elasticity” of the “relevant period” referred to in Hughston is not unlimited and must be considered in the context of the facts in that case.
The insurer in Hughston issued the notice of discontinuance on 2 September 1998. The unchallenged evidence was that the worker had last attended on an employer seeking work in July or August 1998 and that he was looking at newspapers searching for work until at least October 1998 when his payments ceased. Based on that evidence, the judge found that “in the relevant period [Mr Hughston] was taking action including not only attending upon employers in July and August but also searching the newspapers ‘to try and find’ work” (at [29]) (emphasis included in original).
The evidence in the present case is quite different. Mr Caristo’s reliance on Mr Badal’s statement does not assist. In that statement, which Mr Badal signed on 19 July 2012, Mr Badal referred to having obtained a job as a part-time security guard at a shopping centre towards the end of 2010. About two months after starting that job, he was assaulted and was off work for one or two weeks. About two weeks after he resumed work, his employer told him that, for his safety, it did not want him at the same shopping centre and that it would find another position for him. Though Mr Badal contacted the company a few times, presumably in early 2011, though that was not clarified in the evidence, it did not offer him any more work.
Mr Badal then said:
“28. Since I stopped work at the shopping centre I have resumed looking for a suitable job. I have continued to look for the same sort of jobs I was looking for before this last job and taking the same steps as I was before this last job to find a job.
29. Most of the time I make an application for a job I have seen advertised I do not get a response to the application at all. When I do get a response it [sic] often that I am too old, or that I do not have the experience and sometimes I have [sic] asked if I suffered any prior injuries and when I tell them I have that seems to exclude me from consideration.”
In the absence of any specific evidence of Mr Badal’s job seeking after his last Job Seekers Diary, which was dated 14 May 2012, and in light of the many letters from the insurer to Mr Badal in 2012 reminding him of his obligation to continue to seek suitable employment, this statement did not support the Arbitrator’s finding that Mr Badal had been looking for work “until the present time” (T14.7). Mr Badal’s statement was vague and non-specific as to when and where he had sought employment after the security job finished in either late 2010 or early 2011.
The last direct evidence of Mr Badal’s efforts to find employment was in the Job Seeker Diary of 14 May 2012, which recorded that Mr Badal’s last application for suitable employment was on 4 May 2012. I therefore do not accept Mr Caristo’s submission that Mr Badal’s statement provides evidence that Mr Badal was seeking employment at the relevant time. It does not.
Even if I am wrong in my interpretation of Mr Badal’s statement, and it is accepted that it provides evidence that Mr Badal continued to seek suitable employment, it only provides evidence of job seeking up to 19 July 2012, which is still several months before the date of the s 54 notice and still does not satisfy the requirements in s 52A. Mr Badal’s legal representatives made no attempt to bring that evidence up to date.
Dr Home’s history is similarly deficient. It merely said that Mr Badal had obtained work as a security guard but was (again) assaulted and discontinued the work. Dr Home added that Mr Badal had “since sought work in various fields without success” and that he was, at the time of the examination on 30 October 2012, working as a coffee shop attendant at his brother’s shop.
Like Mr Badal’s statement, Dr Home’s history was vague and non-specific and made no mention of Mr Badal having sought work after 4 May 2012. It referred to Mr Badal having sought work after he lost his security job, which was in either late 2010 or early 2011. The direct evidence of what Mr Badal did to seek work was in the Job Seeker Diaries, the last of which was dated 14 May 2012. If anything, Dr Home’s history that Mr Badal was working in his brother’s coffee shop tends to suggest that, at that time, Mr Badal was not looking for suitable employment.
The Arbitrator accepted Dr Home’s history about Mr Badal’s attendance at his brother’s coffee shop, though Mr Badal had not mentioned it in his statement and did not clarify when that work started, but (correctly) did not suggest that the doctor’s further history provided evidence that, at the relevant time, Mr Badal was seeking suitable employment. In the absence of evidence of what Mr Badal did to seek work, and when he did it, Dr Home’s further history that Mr Badal had sought work without success did not assist Mr Badal.
It was open to the Arbitrator to accept Mr Badal’s evidence that he had looked for work for many years and, other than obtaining security jobs for short periods, had been unsuccessful in obtaining work. However, that finding did not answer the question posed by s 52A, namely, whether, at the relevant time, Mr Badal was seeking suitable employment.
Giving the most “elastic” interpretation to the phrase “relevant time” does not assist Mr Badal. There is no persuasive evidence that Mr Badal sought suitable employment between 4 May 2012 and 6 November 2012, the date of the s 54 notice. On no view of the authorities, or the definition of “relevant time”, could it be suggested that the “relevant time” in s 52A extends to six months before the date on which the notice was issued. Therefore, given the state of the evidence, the only reasonable conclusion is that Mr Badal was not seeking suitable employment at the “relevant time” and the Arbitrator erred in finding to the contrary.

CONCLUSION

The evidence does not support the Arbitrator’s decision on s 52A and his conclusion that Mr Badal was seeking suitable employment at the relevant time cannot stand. It follows that the appellant was and is entitled to rely on s 52A and that weekly compensation for Mr Badal’s partial incapacity is not payable beyond 18 December 2012.

DECISION

Paragraph 2 of the Arbitrator’s determination of 2 January 2014 is revoked and the following orders are made in its place:
“2. The respondent employer pay the applicant worker weekly compensation at the rate of $559.69 from 9 May 2012 until 18 December 2012 under s 40 of the Workers Compensation Act 1987.
2A. The respondent employer having satisfied the grounds in s 52A(1)(a) of the Workers Compensation Act 1987, weekly compensation payments in respect of the applicant worker’s partial incapacity for work beyond 18 December 2012 are not payable.”
All other orders in the determination of 2 January 2014 are confirmed.

COSTS

Each party is to pay his or its own costs of the appeal.

Bill Roche
Deputy President

14 April 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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