Daylesford Sawmill Pty Ltd v Cane
[2000] VSC 431
•23 October 2000
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No. 6722 of 1999
| DAYLESFORD SAWMILL PTY LTD | Appellant |
| v | |
| ROSLYN CANE | Respondent |
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JUDGE: | Kellam J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2000 | |
DATE OF JUDGMENT: | 23 October 2000 | |
CASE MAY BE CITED AS: | Daylesford Sawmill Pty Ltd v Cane | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 431 | |
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Workers Compensation – appeal from decision of Magistrate – whether worker made “every reasonable effort to return to work in suitable employment” – Accident Compensation Act 1985 (as amended up to 1 January 1999) – ss.5, 93, 93CA, 114
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr M. O'Loghlen QC with | Mills Oakley |
| For the Respondent | Mr N. Moshinsky QC with Mr P. Coish | Slater & Gordon |
HIS HONOUR:
Daylesford Sawmill Pty Ltd ("Daylesford") appeals from orders made on 9 August 1999 at the Magistrates' Court, Melbourne. Those orders directed Daylesford to make weekly payments of compensation under the Accident Compensation Act 1985 ("the Act") to Roslyn Cane ("Ms Cane") from 12 June 1998 and to continue to do so in accordance with law.
Background
On 17 December 1998 Ms Cane filed a complaint in the Magistrates' Court seeking compensation under the Act for injuries suffered in the course of her employment with Daylesford.
By statement of claim annexed to the complaint she alleged that on 3 February 1998 she suffered injury to her neck, back and left arm in the course of her employment. By its defence filed in response to the statement of claim Daylesford admitted Ms Cane suffered injury to her neck and left arm on the date alleged.
Ms Cane submitted her claim for compensation to Daylesford shortly after sustaining injury and her claim was accepted and compensation was paid to her.
Subsequent to suffering injury Ms Cane was absent from work until 6 February 1998 when she returned to work on modified duties involving no lifting or looking down. On 26 February she had an exacerbation of pain and was then off work until 24 March 1998 when she returned to her employment with Daylesford and performed restricted duties. She continued in such employment until 9 April 1998 when the Easter holidays commenced. She did not return to work subsequent to that date. On 26 May 1998 Daylesford gave notice to Ms Cane of its intention to terminate weekly payments. Ms Cane referred the matter to the WorkCover Conciliation Service but, nevertheless, her weekly payments were terminated as from 12 June 1998.
The defence filed in the Magistrates' Court proceeding by Daylesford alleged that the plaintiff was not entitled to weekly payments as she had failed to make every reasonable effort to return to work in suitable employment at the worker's place of employment in co‑operation with the employer.
Accordingly, there was no issue before the magistrate as to whether or not Ms Cane had suffered injury in the course of her employment. The issue before the magistrate was whether or not Ms Cane was entitled to weekly compensation in circumstances whereby Daylesford alleged that she had failed to make reasonable efforts to return to work. As stated above, following upon a hearing which took place on 21 July 1999 the Magistrates' Court made an order on 9 August 1999 that weekly payments of compensation to Ms Cane continue from 12 June 1998. The questions of law as stated by Master Wheeler on 13 October 1999 to be raised by the appeal are as follows:
(a)Upon finding that return to work plans dated 19 March 1998 and 14 May 1998 constituted "suitable employment" within the meaning of s.93DZ (sic) could a reasonable magistrate properly instructed on all the evidence, have found that the respondent had made every reasonable effort to return to work?
(b)Did the magistrate correctly apply s.93B(c)(ii) (sic) in determining that the fact (as he so found … ) that the respondent had good reason to refuse the offer of suitable employment set out in the letters of 19 March 1998 and 14 May 1998, particularly where it was found that the respondent had made up her mind not to accept any return to work plan?
A further question of law as to whether or not the magistrate gave any or any sufficient reasons as to his finding was not pursued by Daylesford before me.
The relevant sections of the Act are as follows:
"s.93 Compensation in weekly payments
If a worker's incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation shall be in the form of weekly payments subject to and in accordance with this Part."
Section 93CA provides as follows:
"93CA First entitlement period
(1)In this section 'the first entitlement period' means an aggregate period not exceeding 13 weeks (whether consecutive or not) in respect of which a weekly payment has been paid or is payable to the worker.
(2)A worker is entitled, subject to and in accordance with this Part, to weekly payments while incapacitated for work during the first entitlement period at whichever of the following rates apply –
(a)if the worker has no current work capacity, the rate of –
(i)95 per cent of the worker's pre‑injury average weekly earning; or
(ii)$850 –
whichever is the lesser;
(b)if the worker has a current work capacity, the rate of –
(i)the difference between 95 per cent of the worker's pre‑injury average weekly earnings and the worker's notional earnings; or
whichever is the lesser.
(3)A worker is entitled to receive weekly payments under this section only if –
(a)where sub-section (2)(a) applies, the worker –
(i)makes every reasonable effort to participate in an occupational rehabilitation service or a return to work plan; and
(ii)makes every reasonable effort to return to work in suitable employment; and
(iii)participates in assessments of the worker's capacity, rehabilitation progress and future employment prospects when requested to do so from time to time by the employer or self‑insurer or the Authority or authorised insurer;
(b)where sub-section (2)(b) applies, the worker –
(i)participates in an occupational rehabilitation service or a return to work plan; and
(ii)makes every reasonable effort to return to work in suitable employment at the worker's place of employment in co‑operation with the employer and the Authority or authorised insurer or with the self‑insurer (as the case may be); and
(iii)where the worker's employer cannot provide suitable employment, makes every effort to return to work in suitable employment at another place of employment; and
(iv)participates in assessment of the worker's capacity, rehabilitation progress and future employment prospects when required by the employer or self-insurer or the Authority or authorised insurer.
(4)Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of sub-section (3) that are applicable in his or her case, the worker's entitlements to further weekly payments in respect of the injury shall cease and determine."
The case advanced before the magistrate by Daylesford was that the worker had a current work capacity pursuant to s.93CA(2)(b) and that she had failed to comply with the requirements of s.93CA(3)(b)(ii). It was asserted that she had not made every reasonable effort to return to work in suitable employment at her place of employment in co-operation with Daylesford and that by reason of s.93CA(4) her entitlements to further weekly payments ceased.
Section 93D(2) provides:
"A worker must not be treated as making 'every reasonable effort to return to work in suitable employment' for the purposes of this section if the worker -
(a)has refused to have an assessment made of the worker's employment prospects; or
(b)has refused or failed to take all reasonably necessary steps to obtain suitable employment; or
(c)has refused or failed to accept an offer of suitable employment from any person; or
(d)has refused or failed to participate in an occupational rehabilitation service or return to work plan."
It was the contention of Daylesford before the magistrate that Ms Cane had refused or failed to accept an offer of suitable employment from Daylesford within the meaning of s.93D(2).
Section 114 of the Act deals with termination or alteration of weekly payments. Section 114(7) provides:
"A termination of weekly payments on the ground specified in section 93CA(4), 93CB(4) or 93CC(5) has effect –
(a)if written notice in accordance with sub‑section (10) is given; and
(b)as from the day (not being a day before the giving of the notice) specified in the notice."
Sub-section (10) of s.114 of the Act provides:
"A notice must –
(a)be given to the worker; and
(b)state the reasons for giving the notice; and
(c)state –
(i)in the case of termination, when weekly payments will be stopped;…”
Daylesford asserts that it gave notice to Ms Cane in compliance with the above requirements of s.114 of the Act.
The Evidence before the Magistrate
Ms Cane gave evidence before the magistrate on the date of the hearing. Her evidence was that she had suffered injury in the course of a lifting incident which occurred on 3 February 1998. She stopped work shortly after the incident and attended upon her general practitioner, Dr Ingram, that day. Over the following weeks she was provided with conservative treatment including physiotherapy and acupuncture.
In addition, however, she continued to attend her place of employment over the following weeks on a return to work programme undertaking light work. She gave evidence that she had difficulty in undertaking some of this work and made complaint to the defendant of such difficulty to no avail. Some of this work involved working on what was known as the “green chain” and putting timber which had been cut by other workers on to racks. In particular she stated she had difficulty in keeping up with the speed of the chain, a matter about which she complained specifically to her supervisor, Mr Cooper on “three or four” occasions.
Ms Cane gave evidence that the defendant's mill closed for the Easter break on 9 April 1998 and she went to Tasmania on holidays. Shortly after her return from Tasmania she attended upon Dr Ingram who, on 4 May 1998 certified her as unfit for work. On that occasion she made complaints to Dr Ingram of fluid on her elbow. Subsequent to being certified as unfit for work she received a letter from Daylesford dated 14 May 1998 outlining a return to work plan which was comprised of similar duties undertaken by her in the period 24 March 1998 to 9 April 1998.
Ms Cane gave evidence that upon receipt of the letter dated 14 May 1998 she attended upon Dr Ingram. He continued to certify her as unfit for work.
Dr Ingram gave evidence before the magistrate. He gave evidence that Ms Cane had returned to work between 6 and 26 February 1998 but ceased because of an exacerbation of pain. Ms Cane then returned to work on 24 March 1998 undertaking modified duties pursuant to a return to work programme organised between Dr Ingram and Daylesford.
Dr Ingram stated that he saw Ms Cane after her return from holidays in Tasmania on 4 May 1998. He said that on that occasion she described her symptoms as being worse and that in particular she complained of pain in her left medial epicondyle. Ms Cane told him she did not feel that she was capable of undertaking the duties which had been assigned to her by Daylesford in the period leading up to Easter. On 4 May 1998, Dr Ingram provided Ms Cane with a total incapacity certificate which was to terminate on 24 May 1998. Dr Ingram gave evidence that he saw Ms Cane again on 8 May 1998.
Dr Ingram said that Ms Cane attended upon him on 18 May 1998 to discuss the return to work plan proposed by Daylesford in its letter to her dated 14 May 1998. Dr Ingram did not examine her on 18 May 1998 but made a note that "following discussions with Ros she has stated that she will not take up the work offer made by Daylesford Sawmill". He said, however, that he considered it was reasonable for her to reject the offer at the time. He said that this was so because there had been a breakdown in her relationship with Daylesford and because she complained of increasing pain.
Daylesford called evidence from its manager, Mr Barker, and from Ms Cane's supervisor, Mr Cooper. Mr Barker gave evidence that the duties set out in the return to work proposal contained in the letter from Daylesford to Ms Cane dated 14 May 1998 were exactly the same as the duties undertaken by her up until 9 April 1998. He said that Ms Cane at no time made any complaint to him of difficulty in undertaking her work. He said that neither Ms Cane nor Dr Ingram communicated with him in response to the letter in question. Mr Cooper gave evidence that he supervised Ms Cane upon her return to work on light duties during the period between 24 March and 9 April 1998. He said that on one occasion she had made complaint to him that her neck and arm were sore and that she was having difficulty coping with the pace of her work.
The findings of the Magistrate
The magistrate found that Ms Cane continued to suffer from a "troublesome left shoulder" and that she had a "residual injury in her left elbow, and an incapacitating injury in her left elbow".
He found that the work undertaken by her after her return to work on 24 March 1998 and leading up to 9 April 1998 was a "light duty job". He found that the duties referred to in the return to work plan outlined in the letter of 14 May 1998 were the same duties as those undertaken by Ms Cane in the period leading up to her cessation of work on 9 April 1998.
In relation to the issue of whether Ms Cane had made "every reasonable effort to return to work in suitable employment at her place of employment, as required by s.93B(2)(c)(ii) of the Act, the magistrate found that the work "set out in the job offer dated 14 May 1998 … is suitable employment, taking into account those matters which I am required to take into account by s.5 of the Act". The magistrate was no doubt referring to the definition of "suitable employment" contained in s.5 of the Act.
However, notwithstanding that the magistrate found that the work proposed for Ms Cane was "suitable employment" clearly he accepted the evidence of Ms Cane that the work which she had undertaken previously and which was the subject of the return to work plan had in the past caused her pain. He said, " … the plaintiff had experience of how she would be able to manage the proposed work plan set out in the second job offer of 14 May 1998 and of the effect that she would expect it to have upon her, and in particular, the pain in her left elbow". As stated above, notwithstanding that finding, the magistrate nevertheless concluded that the work “set out in the job offer dated 14 May 1998 was "suitable employment" for her within the meaning of the Act.”
The magistrate concluded, however, that even though an offer of suitable employment had been made to Ms Cane in the letter of 14 May 1998 it was "not unreasonable to refuse to return to work because of her past experience in it and also because of the advice given by her treating doctor". Accordingly, he ordered that weekly payments recommence as from 12 April 1998.
Daylesford's submissions
Mr O'Loghlen of senior counsel who appeared with Mr Goldberg on behalf of Daylesford submits that having found that the work which had been offered to Ms Cane was suitable employment the evidence compelled the Magistrate to a finding that Ms Cane had not made every reasonable effort to return to work in that suitable employment. Mr O'Loghlen submits that there was no evidence before the magistrate which justified the conclusion that Ms Cane had made every reasonable effort to return to work in that suitable employment. In essence the submission of Mr O'Loghlen is that the magistrate made an error of law in concluding that Ms Cain had made every reasonable effort to return to work in suitable employment because there was no evidence before him to justify such a conclusion.
Ms Cane's submissions
Mr Moshinsky of senior counsel who appeared with Mr Coish of counsel submits that Grounds 1 and 2 of the order nisi when properly construed amount to an allegation of "no evidence" as the ground of review relied upon by Daylesford. Mr Moshinsky submits that the ground of "no evidence" cannot be sustained as there is in his submission no error of law in simply making a wrong finding of fact. He submits that there is an evidentiary foundation for the magistrate's conclusion that Ms Cane had made every reasonable effort to return to work in suitable employment within the meaning of s.93B(2)(b)(ii) of the Act. It is submitted that the Magistrate accepted the evidence of Dr Ingram that it was reasonable for Ms Cane to reject the job offer of 18 May 1998. He submits further that the magistrate accepted the evidence of Ms Cane that her symptoms had got worse after her return from Tasmania in early May.
Mr Moshinsky further relies upon an argument that the notice of termination relied upon by Daylesford is invalid because it does not state correctly the reasons for termination. The notice of termination served upon Ms Cane stated in the attachment that the ground of the determination that Ms Cane was no longer entitled to weekly payments was "(a) You did not make every reasonable effort to return to work in suitable employment [section 93B(2)(b)(ii) and 93B(4)]". It is clear that the relevant section which relates to claims for weekly payments in respect of injuries subsequent to 12 November 1997 is s.93CA(3)(b)(ii). Mr Moshinsky argues that the notice of termination served upon Ms Cane did not comply with s.114(10)(b) of the Act as it did not state correctly the reasons for termination and is therefore defective. It should be noted that this argument was not raised before the Magistrate, nor was it the subject of the orders made by Master Wheeler on 13 October 1999.
Conclusion
It is clear that I am not entitled to interfere with the decision of the magistrate unless I am satisfied that the magistrate acted on a wrong principle of law, misapprehended the facts or made a wholly erroneous assessment of the relevant issues. The onus upon Daylesford in this proceeding is to demonstrate that there was no evidence before the magistrate to support his finding that the respondent had made every reasonable effort to return to work within the meaning of s.93CA(3) of the Act.
It is apparent that the argument of Daylesford would be untenable if the magistrate had found that the work offered to Ms Cane was not suitable employment within the meaning of s.93CA(3) of the Act. It is because he found specifically that the work described in the letter of 14 May 1998 and offered to her was suitable employment that Daylesford submits that the magistrate's decision cannot stand as a matter of law. It is contended that having so found, the magistrate was in error as no evidence was before him to then permit the finding that Ms Cane made every reasonable effort to return to work.
It is necessary to consider the precise findings of the magistrate in the words used by him. He said:
“I formally find that the plaintiff was injured in compensible circumstances, and there is no argument over that. I also find that the work set out in the job offer, dated 14 May 1998, Exhibit B, is suitable employment, taking into account those matters which I am required to take into account by s.5 of the Act. The question is and remains whether the plaintiff has made every reasonable effort to return to that work.
The defendant through its counsel, Mr Goldberg, has stated that the plaintiff has not made every reasonable effort to return to work, and in particular relies on an argument based upon the fact that the plaintiff did perform the same work in the period 24 March to 9 April and that there has been no explanation why the plaintiff, having done the work in that period, is not able to recommence it after the Easter.”
Following upon the job offer of Exhibit B, the plaintiff attended her doctor, Dr Ingram, on 14 May and again on 18 May, and in particular on 18 May discussed the job offer with him. On the earlier of those two dates – 4 May – she had come back to Dr Ingram complaining of more pain in her left elbow. On 18 May the job offer was particularly discussed with the doctor. He stated that he did not go through it line by line with her, but he had read it before – I assume he meant before the plaintiff had arrived – and he was prepared and did admit that it was the same job as the plaintiff had been doing earlier.
In deciding whether it was appropriate for the plaintiff to accept that job offer, he said he had to have regard to her condition. By that I accept him to be saying her overall condition, but on that date, it was clear to him that the plaintiff had made up her mind that she was not going to accept the job offer and return to work, but she had told him that she was in too much pain and that she did not trust the sawmill to follow the instructions – by that she meant the instructions or qualifications contained within Exhibit B – and that she further did not trust the defendant because she believed that it would retrench her as soon as she became fit for work and was so certified.
As to her fear that the employer would not comply with the restrictions set out in the job offer, she had the previous experience in the earlier period working under the same conditions – that is the period 24 March to 9 April – and it was her evidence that she was expected to keep up with the output from the chain at which she was working; that is she felt and indeed felt compelled to work outside the restrictions referred to in the offer. Notwithstanding the reviews of the defendant’s witnesses Barker and Cooper, she was not in effect at the workplace able to work at her own pace.”
I think it likely that the word “reviews” appearing in the last sentence of the above extract was incorrectly transcribed in place of the word “views”. His Worship continued as follows:
“She had admittedly complained of pain at least once to Cooper who was her immediate supervisor, and that he noticed that on more than one occasion she had left the immediate workplace and had gone to rest in the lunch room –in his words – “a few times”. So the plaintiff had experience of how she would be able to manage the proposed work set out in the second job offer of 14 May 1998, and of the effect that she would expect it to have upon her, and in particular the pain in her left elbow.
Even if the fact that the plaintiff had made up her mind not to accept the job offer was indeed a matter which would one way or the other determine the issue, which I do not think it was, I do find that based on her experience, she had good reason to refuse the job offer. However, in addition to that, the plaintiff has relied upon the evidence given by her treating doctor, Dr Ingham. He is indeed the best person to make the best judgment of the plaintiff’s condition.
The plaintiff was examined for medico-legal purposes by Dr Ho and Dr Miller and Mr Flame whose reports were tendered. Dr Miller and Dr Ho, as it happens, examined the plaintiff before the formal last job offer, but in any event it is quite clear from their description of the type of work they believed the plaintiff would be capable of, it is clear that they consider that the plaintiff would be capable of that work set out in the job offer.
I readily accept that had they been asked to advise as to the specific job offer, they would have found that it was suitable work, as indeed I find that the work proposed was suitable employment. Mr Flame’s report adds nothing to assist me in resolving that main question: Did the plaintiff make every reasonable effort to return to work in that suitable employment?
Dr Ingham knows the plaintiff best of all, and … when he addressed the question in May 1998 .. his conclusion he felt (sic) it was reasonable for her to reject the offer of employment. It is to me acceptable coming from (the) man in the best position. It was not unreasonable to refuse to return to work because of her past experience in it and also because of the advice given by her treating doctor.”
In my view, and notwithstanding the somewhat infelicitous wording of the above findings, it is clear that the magistrate concluded that the work described in the job offer was suitable employment for Ms Cane. However, notwithstanding the fact that the work which was set out in the written job offer in question was suitable employment for her in the view of the magistrate, it appears to me that the magistrate was satisfied that the work which would be actually undertaken by the plaintiff would not be suitable. That is, although the document containing the job offer made an offer of work which if complied with by Daylesford, would have been suitable employment the fact was that experience showed that work of the same nature which had been previously offered to the plaintiff was unsuitable because the offer was not complied with by Daylesford. It is necessary to examine the precise nature of the job offer. The letter dated 14 May 1998 addressed to Ms Cane stated as follows:
“We have been advised that you recently attended a medical examination which showed you are now fit for suitable alternate duties.
Therefore, in conjunction with such advice, we formally offer you the following duties:
1.Checking board sizes – you would be measuring board sizes, both on the green chain and at the saw outputs. You carry a clipboard and measure (sic) the size of the boards with a tape to ensure uniformity. If any problems, you notify the operators. You can work at your own pace.
2.Placing sticks for kilns racking. Sticks weighing 500 g each are placed between layers of timber before kiln drying. She (sic) would only handle the sticks in whatever multiples you can cope with. Again, you can work at your own pace and take rest breaks as required/specified.
3.Incorporated restrictions:
a.Avoid lifting in excess of 7 kg.
b.Avoid repeated or extreme movements of back or neck.
c.Avoid forceful pushing or pulling activities.
d.Rest breaks as specified.
e.Work at own pace.”
It is quite apparent that the above offer of employment proposed that Ms Cane would be able to work at her own pace. The offer itself was accordingly an offer of suitable employment. The Magistrate found that. However, he found, also, that the applicant had reasonable cause not to accept such offer. It appears to me that the Magistrate accepted the evidence of Ms Cane that when she had returned to work in the period 24 March to 9 April pursuant to an earlier offer in the same terms as that made in the letter of 14 May 1998, she was compelled to work outside the restrictions of working at her own pace. Ms Cane had given evidence before him that work on the green chain was not capable of being conducted by her at her own pace. It appears to me that the Magistrate accepted her evidence that she had complained of pain to her immediate supervisor on previous occasions. It appears to me that the finding of the Magistrate to the effect that the letter dated 14 May 1998 contained an offer of “suitable employment” does not mean that he was satisfied that the work which was actually being offered and which would actually be undertaken by Ms Cane was suitable employment. In my view it cannot be said that there was no evidence before him to permit a finding that Ms Cane had not made every reasonable effort to return to suitable employment. The evidence before him was that she did so return to work in the period 24 March to 9 April 1998 pursuant to an offer for her to return to work under the same conditions as those proposed in the letter of 14 May 1998. There was evidence before him that the plaintiff felt compelled to work outside the conditions in question and that when she did so further pain was caused to her. There was evidence before him that she complained that the work she was actually doing caused her pain and that, to use the Magistrate’s words, “… she was not in effect at the workplace able to work at her own pace.”
There was evidence before the Magistrate that at the time of the job offer of 14 May 1998 the plaintiff was off work pursuant to certificates granted to her by her general practitioner, Dr Ingram, to the effect that she was unfit for work. A full reading of the reasons for decision of the Magistrate establishes in my mind that there was a factual basis upon which he could conclude that the plaintiff had made every reasonable effort to return to work in suitable employment at her place of employment and for his finding that she was not obliged to accept the job offer contained in the letter of 14 May 1998. It is not to the point that views other than those formed by the Magistrate may have been open on the evidence before him. Unless the appellant can establish that a decision contrary to the view of the Magistrate is, in the words of Herring C J in Young v Paddle Bros Pty Ltd [1956] VLR 38 at 41,
“… the only possible decision that the evidence on any reasonable view can support”,
then the appeal must fail. In my view the appellant cannot establish that.
It follows that the appeal of Daylesford should be dismissed with costs. It follows further that it is not necessary for me to make any finding as to whether the respondent may now rely upon any inadequacy in the notice served upon her pursuant to s.114 of the Act.
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