Frost v JJP Vineyard Contractors Pty Ltd
[2008] NSWWCCPD 128
•31 October 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Frost v JJP Vineyard Contractors Pty Ltd [2008] NSWWCCPD 128 | ||||
| APPELLANT: | Anthony Frost | ||||
| RESPONDENT: | JJP Vineyard Contractors Pty Ltd | ||||
| INSURER: | GIO General Ltd | ||||
| FILE NUMBER: | WCC3610-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 30 June 2008 | ||||
| DATE OF APPEAL DECISION: | 31 October 2008 | ||||
| SUBJECT MATTER OF DECISION: | Section 52A of the Workers CompensationAct 1987; whether the worker was seeking suitable employment. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Bale Boshev Lawyers | |||
| Respondent: | Moray & Agnew | ||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator dated 30 June 2008 is revoked and the following orders are made: (1) The Respondent to recommence weekly payments of compensation pursuant to section 40 of the Workers Compensation Act 1987 from 11 March 2008 at a rate to be determined. (2) .The matter is remitted to the Arbitrator at first instance to calculate Mr Frost’s entitlements in accordance with these reasons. (3) The Respondent is to pay the Applicant’s costs of the proceedings before the Arbitrator. 2. The Respondent is to pay the Appellant’s costs of the appeal | ||||
BACKGROUND TO THE APPEAL
On 23 July 2008 Anthony Frost (‘the Appellant / Mr Frost’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 30 June 2008.
The Respondent to the appeal is JJP Vineyard Contractors Pty Ltd (‘the Respondent / JJP’).
Mr Frost injured his left foot and ankle when a tractor ran over it at work on 26 January 2006.
Liability was accepted by JJP’s insurer, GIO General Ltd (‘GIO’), and weekly benefits and medical expenses were paid to Mr Frost accordingly.
On 29 January 2008, GIO wrote to Mr Frost advising him that his weekly benefits were to be discontinued pursuant to section 52A of the Workers Compensation Act 1987 (‘the 1987Act’) as from 14 February 2008, [later agreed to be from 10 March 2008] principally on the basis that he was not suitably employed nor seeking suitable employment.
On 14 May 2008 Mr Frost filed an ‘Application to Resolve a Dispute’ (‘Application’) in the Commission seeking re-instatement of those benefits.
On 26 June 2008 the parties attended a conciliation/arbitration hearing. The Arbitrator gave an ex tempore decision recorded in the transcript of that date. The Arbitrator found that, although there was evidence that Mr Frost was seeking employment, it was not ‘suitable’ within the meaning of the Act, and entered an award in favour of JJP accordingly.
It is from this decision that Mr Frost seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act 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.”
Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, 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.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.
Leave to appeal is granted.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 30 June 2008 records the Arbitrator’s orders as follows:
“1.That there be an award for the Respondent with respect to the Applicant’s claim for weekly payments of compensation.
2. No order as to costs.”
THE REVIEW PROCESS
The nature of the review process has been succinctly summarised by Deputy President Roche in a number of decisions, and recently in Universal Consultancy Services Pty Ltd v Datta [2008] NSWWCCPD 87 where he said as follows [16-18]:
“16. The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’), where Bryson JA said at [38]:
‘A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.’”
McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler[2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Bearing these principles in mind, I now turn to the issues in dispute.
THE ISSUES IN DISPUTE
Mr Frost claims that the Arbitrator erred in the following respects:
“1.The Arbitrator incorrectly applied the statutory onus in section 52A(1)(c) of [the 1987Act]…in finding in favour of the employer, that it proved the circumstances of the labour market were such that the worker failed to find suitable employment, unrelated to the effects of the worker’s injury, such finding unavailable on the evidence;
2.The Arbitrator incorrectly applied the statutory definition of ‘suitable employment’ in section 43A of [the 1987 Act], in particular, gave no weight to relevant factors such as the nature of the worker’s incapacity, and place of residence, such factors being substantial causes of the inability to secure suitable employment for the purposes of section 52A;
3.The Arbitrator failed to give any weight to the evidence produced by the worker, relating to his attempts to find work, such evidence demonstrating the worker was seeking suitable employment at the relevant time;
4.The Arbitrator incorrectly found that the worker, in attempting to find work, subsequent to a rehabilitation plan, as an employee of local hotels, for which he was trained subsequent to the injury, was not seeking suitable employment, such finding contrary to the statutory considerations contained in section 43A(e) of [the 1987 Act];
5.The Arbitrator erred in finding the employer had discharged its onus in proving, pursuant to section 52A(1)(a), that the worker was not seeking suitable employment, such finding contrary to the evidence.”
Mr Frost also raised the absence of the transcript as a ‘ground of appeal’, but I note that the transcript was sent to his solicitors by the Commission on 31 July 2008. He was invited to make further submissions, but none have been received.
THE RELEVANT LEGISLATION
The relevant statutory framework is to be found in sections 52A, 38A and 43A of the 1987 Act. They are in the following terms:
“Section 52A Discontinuation of weekly payments for partial incapacity after 2 years
(1)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 (whether or not any part of that period is compensated as if the incapacity for work was total) but only if one or more of the following paragraphs (referred to in this section as grounds for discontinuation) applies to the worker at the relevant time:
(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 employment primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).
(2)The relevant time for the purposes of this section is the time at which the notice under section 52A of intention to discontinue payment of compensation pursuant to this section is given. The discontinuation of payments under this section has effect even if, after the relevant time, none of the grounds for discontinuation applies to the worker.
(3)A worker is not entitled to a resumption of payment of weekly compensation for partial incapacity for work once payment is discontinued because of this section.
(4)The notice under section 54 of intention to discontinue payment of compensation pursuant to this section must be given. The notice can be given up to 6 weeks before the end of the 104 week period for which the worker has received or is entitled to receive weekly payments of compensation but cannot be given earlier than that.
(5)The fact that the worker becomes totally incapacitated for work after the relevant time does not affect the operation of this section in respect of partial incapacity for work.
(6)This section does not affect any entitlement to compensation under this Act in respect of any period of total incapacity for work.
(7)A period of partial incapacity for work does not count as part of the 104 weeks referred to in subsection (1) unless the worker received or was entitled to receive compensation for that period. Separate periods during which the worker received or was entitled to receive those payments are to be aggregated.
(8) If:
(a)A claim for weekly payments of compensation is made by a worker after the earliest time at which a notice under section 54 to discontinue payment of compensation can be given under this section, or
(b)Proceedings before the Commission involve a claim for weekly payments of compensation in respect of any period of incapacity for work that includes any period beyond the end of the 104 week period,
The notice under section 54 may (but need not) be given before payments are discontinued. If the notice is not given, the relevant time for the purposes of this section is the time at which payments are discontinued.
(9)This section does not apply to compensation for an injury received by a person as a worker employed in or about a mine to which the Coal Mining Regulation Act 1982 applies.
Section 38A Determination of whether worker seeking suitable employment
(1) Application. This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).
(2) General requirements
The worker is not to be regarded as seeking suitable employment unless:(a)The worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(b)the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and
(c)The worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer and
(d)The worker is taking reasonable steps to obtain suitable employment from some other person.
Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.
(3) Notice of requirement relating to obtaining suitable employment from other person. The requirement under subsection (2)(d) does not apply unless the worker has been notified of the requirement in accordance with this subsection. Such a notice:
(a)Must be given in writing by the insurer or self insurer concerned, and
(b)must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38, and
(c)May set out particular reasonable steps that can be taken by the worker in order to satisfy that general requirement, and
(d)is subject to, and must comply with, any regulations and (subject to the regulations) any claims procedures notified by the Authority to insurers and self insurers, and
(e)Does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.
The requirement under subsection (2) (d) does not apply, and a notice is not to be given under this subsection, while action is being taken by or on behalf of the employer to arrange or explore the possibility of suitable employment with the employer
(4) Notice not applicable when proceedings pending etc. If proceedings relating to the payment of compensation under section 38 or to the discontinuation of weekly payments under section 52A are before the Commission or the insurer or self-insurer has denied liability to pay any such compensation:(a)A notice is not to be given under subsection (3), and the requirement under subsection (2) (d) applies without any such notice being given, and
(b)Particular steps to satisfy that requirement that are set out in a notice previously given do not restrict the determination of the matter by the Commission.
(5) Workers treated as not seeking suitable employment. A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:
(a)unreasonably refuses to have an assessment made of the worker’s employment prospects, or
(b)unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.
(6) Court orders. An order of the Commission relating to the weekly payment of compensation:
(a)may be subject to conditions relating to the worker taking reasonable steps to obtain suitable employment during any weekly payments under section 38, and
(b)may include directions relating to the adjustment of the amount of weekly payments under section 38 for any future period of payments under section 40 when the worker obtains employment or when the period for payments under section 38 comes to an end.
(7) Definitions. In this section:
employer of a worker who is partially incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker.
refusal of an offer or to do a thing includes a failure to accept the offer or to do the thing.
rehabilitation training means training of a vocationally useful kind, and includes vocational re‑education, work-trials, occupational rehabilitation service or treatment provided by way of rehabilitation.
suitable employment means suitable employment within the meaning of section 43A.
Section 43A suitable employment
(1) For the purposes of sections 38, 38A and 40:
suitable employment, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:(a)the nature of the worker’s incapacity and pre-injury employment,
(b)the worker’s age, education, skills and work experience,
(c)the worker’s place of residence,
(d)the details given in the medical certificate supplied by the worker,
(e)the provisions of any injury management plan for the worker,
(f)any suitable employment for which the worker has received rehabilitation training,
(g)the length of time the worker has been seeking suitable employment,
(h)any other relevant circumstances.
(2) In the case of employment provided by the worker’s employer, suitable employment includes:
(a)employment in respect of which:
(i) the number of hours each day or week that the worker performs work, or
(ii) the range of duties the worker performs,
is suitably increased in stages (in accordance with a rehabilitation plan or return-to-work plan or otherwise), and
(b)if the employer does not provide employment involving the performance of work duties—suitable training of a vocationally useful kind provided:
(i) by the employer at the workplace or elsewhere, or
(ii) by any other person or body under arrangements made with the employer,
but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the training concerned.
(3) However, in any such case, suitable employment does not include:
(a)employment that is merely of a token nature and does not involve useful work having regard to the employer’s trade or business, or
(b)employment that is demeaning in nature, having regard to subsection (1) (a) and (b) and to the worker’s other employment prospects.
(4) A worker is to be regarded as suitably employed if:
(a)the worker’s employer provides the worker with, or the worker obtain, suitable employment, or
(b)the worker has been reinstated to the worker’s former employment under Part 7 of Chapter 2 of the Industrial Relations Act1996.”
THE EVIDENCE
The Employer’s Evidence
Mr Frost was referred by the GIO for rehabilitation with AW Workwise in about February 2006, and an injury management plan was devised.
On 28 April 2006 Mr Frost was sent a ‘Notice of Non- Compliance’ by the GIO in respect of his failure to comply with certain requirements of that plan. A second letter of ‘Non‑Compliance’ was sent to him on 4 September 2006.
On 3 December 2007, a further letter of ‘Non- Compliance’ was sent, referring to a “discussion” with the ”contact officer” on 3 December 2007. The letter stated, inter alia, as follows:
“…you have demonstrated an unsatisfactory level of participation in the following ways:
You have repeatedly failed to apply for any positions, and demonstrate correctly that you have been applying for positions by completing and returning correct job search diaries, after repeated requests and warnings. You have been re-trained with RSA and RSG,[sic] and applying for such jobs as a butcher in which you have not been re-trained and a courier driver, when you have previously lost your licence and have a foot injury are seen as acts of self sabotage in your job seeking. It has also been reported that you have submitted job search diaries that list ‘nude model’. Obviously, GIO does not see this as being reasonable, gainful employment which is suitable to your work capacity.
We again remind you that, as per the provisions of your Injury Management Plan, you are required to:
Demonstrate active involvement in…the Job Placement Plan which you attended with AW Workwise…Your failure to provide correct and suitable job search diaries …means that we may terminate your payments if you continue to neglect your obligations.”
Mr Frost underwent a Vocational and Functional Assessment on 24 April 2007 by Integrated Assessments (‘I.A.’) at the request of the GIO. He was also examined by Dr Wijetunga, occupational physician, on 21 May 2007, again at the request of the GIO, but on referral from I.A.
In a report dated 22 May 2007, Dr Wijetunga opined as follows:
“[Mr Frost] would require permanent restrictions as follows:
·No walking on uneven surfaces
·No prolonged standing
·No prolonged walking
·Unable to drive a manual car
·Unable to frequently negotiate stairs or ladders
·Would require a position where he was able to remain seated for the majority of time and able to stand when required.
It is felt that Mr Frost would be suitable for work as a service station attendant, retail salesperson, call centre operator, inquiry clerk and other sedentary positions which would adhere to the restrictions previously described…it is not felt that he would be fit for a bar attendant…
He agreed that he was fit for suitably restricted positions and agreed that he was permanently unfit for positions which required prolonged standing. He also agreed that he would be fit for full-time restricted duties. The options of vocations such as service station attendant, inquiry clerk and retail sales person were discussed to which he agreed that he would be fit.”
Mr Frost was referred to the Hunter Integrated Pain Service by his general practitioner, Dr Joshi. In a report dated 31 July 2007 under the hand of Dr Daniel Berge, Staff Anaesthetist, it was noted that Mr Frost had been seen by a physiotherapist and a psychologist at that service in May 2007. Dr Berge saw him “to complete the assessment.” He reported as follows:
“The main impact of pain has been his inability to return to work as a labourer. Mr Frost left school at the age of sixteen and is fairly reliant on his physical fitness to earn a living. I gather he also played soccer to a very high level and has difficulty accepting his inability to return to this. His relative inactivity since the injury has resulted in weight gain as well as increased smoking…he spends most of his day involved in sedentary activities, playing computer games, etc.
It was felt by [the psychologist] that this patient was suffering from post traumatic stress disorder…
There has been a fairly marked psycho-social impact of this injury secondary to the loss of physical abilities and vocation…
He has been encouraged to look at avenues of re-training…”
Dr Berge did not identify any “re-training” options but noted that Mr Frost had been placed on a waiting list to join a pain therapy group. He also confirmed Mr Frost’s claim that he was unable to walk more than five hundred metres without “problems”.
AW Workwise completed a “Case Closure Report” dated 14 March 2007. It is clear that he was seen by that organisation early in 2006, but it appears that he was re-referred in January 2007. The report noted that Mr Frost did not require further vocational assessment since he had previously participated in a “Job Placement Program” with that organisation. Presumably that was the RSA and RCG course [bar and gaming service] referred to by the GIO in their letter of 3 December 2007. The report stated:
“Mr Frost has not been successful in obtaining work. Mr Frost presented with a number of barriers such as having a suspended driver’s licence, reporting alcohol related problems and ongoing commitments associated with custody of his child….It is believed that Mr Frost has been given sufficient opportunity to develop his job seeking skills…it is considered that Mr Frost is unlikely to benefit from further rehabilitation assistance…”
Notwithstanding this report, the GIO nonetheless referred Mr Frost to I.A. and Dr Wijetunga for further assessment. Both agreed that Mr Frost was not in fact suitable for bar service work for which he had apparently been trained by AW Workwise.
The I.A. report of 8 June 2007 (addressed to the GIO) did not form part of JJP’s Reply but was tendered at the hearing by Mr Frost. I will deal with this report more fully below, but in short, the report confirmed that Mr Frost possessed “…the transferable skills and functional capacity to undertake work as an Inquiry Clerk, Sales Assistant NEC (Telephone Sales Assistant) and Service Station Console Operator…the labour market information supports these options as viable for Mr Frost.”
Mr Frost’s Evidence
In a statement dated 2 May 2008 annexed to his Application, Mr Frost explained the circumstances surrounding his claimed “non-compliance” with rehabilitation in 2006. In relation to the first letter, he claims that he was unable to attend the arranged appointments due to the lack of public transport near his home at Pelaw Main. As to the second, he was driving to his AW Workwise appointment when he was charged with driving without a licence. He claims that he informed AW Workwise of this incident but was again unable to attend appointments because of the lack of public transport. Mr Frost claims that he “made up” for the two days he missed before he was able to arrange a lift with another participant.
Mr Frost also referred to ‘communication’ problems he was having with his particular case manager at the GIO.
As to the matters raised by the GIO in the letter of 3 December 2007, Mr Frost said this:
“3. I will start with the unsuitable jobs that I applied for. Yes, I was retrained in an RSA and RCG course so I could return to work. The only problem that I have with this is that I have problems walking more than 500m before my foot starts to become aggravated and I cannot stand on it all day.
4. If I was to get a job in the field that GIO and AW Workwise retrained me in, I would be required to stand on my feet for 8 hours a shift…I would end up covering 500m very quickly…so therefore I honestly do not think that I was retrained in a suitable field.
5. Now GIO has the problem that I applied for a nude model job…this job was applied for whilst undertaking the course with AW Workwise and I was told to apply for it by my teacher, Dorothy Ferguson.
6. As for the butcher job that I applied for, as I said, I honestly think I was retrained in the wrong field so therefore I didn’t have much choice to apply for other jobs to follow the workers compensation outlines…I was only trying to comply…
7. The exact same reasons stand for the reason I applied for a courier job. When this was done, I was also attending AW Workwise and was told it was a suitable job as I only needed my right foot to drive an automatic.”
A statement from Mr Frost’s partner was included in the Application which confirmed Mr Frost’s statement regarding his loss of licence and the ‘communication’ problems Mr Frost had with his case manager.
Mr Frost was seen by Associate Professor Leon Kleinman on 7 February 2008 at the request of his solicitors. In a report of that date, he also noted Mr Frost’s complaint of an inability to walk more than five hundred metres, together with difficulties with walking on uneven ground and his inability to wear work boots. These complaints he noted had not changed since a previous consultation in February 2007. He concluded that Mr Frost required surgery to his left foot, but made no comment on his capacity for work.
The balance of the material in the Application consisted of medical certificates, correspondence and much of the material contained in JJP’s Reply.
At the hearing, Mr Frost tendered the report from I.A. to which I have referred previously. The report stated that the option of bar attendant “…has not been recommended.” The report then canvassed in detail the job options set out in [31] above. Although claiming that there were positions available as, for example, a console operator, the report conceded that on 4 June 2007, an internet search revealed no such jobs available. Contact with a number of potential employers only reported on the physical demands of the job.
Although a number of positions were apparently available as a telephone sale person, it seemed that on 4 June 2007, only one was available in the Newcastle area. Inquiry clerks ( or call centre operators ) fared a little better, but again, only a few were available in the “Hunter and North Coast NSW” area.
Mr Frost also tendered a number of documents purporting to be “job search diaries.” There were defects in these documents to which I will shortly refer, but it seems that in late December 2007, Mr Frost applied for a number of bar jobs at various licensed premises near his home. This ‘diary’ was dated 23 January 2008. The other ‘diaries’ were often handwritten and all were undated.
THE ARBITRATOR’S FINDINGS AND REASONS
The Arbitrator’s ex tempore decision commences at page 30 of the Transcript of Proceedings (‘transcript’) .As he correctly noted, there was no dispute that Mr Frost remained partially incapacitated as a consequence of his injury. The parties agreed at the outset that the only issue to be determined “is whether any of the grounds specified in subsection (1) of section 52A applied.” He noted JJP’s reliance upon 52A(1)(a), and briefly summarised the requirements of sections 43A and 38A. He then referred to the report of Dr Wijetunga, and then set out in some detail the contents of the I.A. report.
At pages 32-33 of the transcript he noted:
“Now, in terms of Mr Frost's age, he is 22 years of age, having been born on 21 May 1985. He's relatively young, therefore. In terms of his education, he completed secondary school into year 9 and, other than certificates in RSA and RSG [sic], he has no formal occupational qualifications. His experience is limited, really, to working in unskilled jobs and specifically farming-style jobs. However, the report of [I.A.]dated 8 June 2007 indicates that they considered that he has suitable skills to be employed in the positions they nominated, being an inquiry clerk, staff assistant, and service station console operator. They noted that he reported - that is, Mr Frost - excellent English-speaking, spelling and reading abilities and advanced computer and keyboarding skills and an ability to work unsupervised. Those conclusions were reached based upon what Mr Frost had reported to them and also based upon a series of tests that they applied to Mr Frost.
Now, the only rehabilitation training that Mr Frost has received is such that would qualify him to work in the hotel industry or club industry. It is his evidence that physically he is unsuitable for that…
And I should note, too, that Dr Wije-Tunga [sic] said in his report that because of the difficulties Mr Frost would have of prolonged standing, he would not be fit to work as a bar attendant. That also was the view of the report prepared by [I.A.]…”
The Arbitrator then stated [pages 33-34 of the transcript]:
“In terms of the jobs that Mr Frost has applied for, he indicates in his statement of 2 May 2008 that he's applied for a nude model job. He doesn't specify the date upon which he did that. He says he has applied for a butcher job but he doesn't specify the date upon which he applied for that or to whom he applied. In any event, a butcher job, it seems to me, would be unsuited for him given the problems he has with standing and walking. He also says that he applied for a courier job but indicates in that same statement that he does not have a licence. So it seems to me that a job in which he is required to drive cars is not a job for which he has the qualifications and which he could do. In other words, it's not suitable employment.”
The Arbitrator then set out in some detail the contents of the various ‘job search diaries’ to which I have referred noting that “other than one actually titled ‘Job Search Diary’ I consider them to be of little assistance.” The documents were undated and gave no indication” as to when application was made for the job.” He noted [at page 34 of the transcript]:
“it would seem … that Mr Frost has scanned papers and Internet sites to see what jobs are available. The jobs that he has nominated, again, which are kitchen hand, butcher, delivery driver, trolley collector, don't seem to be suitable for him. There's no indication that he applied for those jobs. There's no indication as to when the jobs were advertised.
Similarly, there's a handwritten document of much the same effect, that is, listing a series of papers and websites and presumably jobs which were advertised on those papers or websites. Again, they are jobs to which it would seem Mr Frost is not suited given his physical restrictions. The jobs nominated - kitchen hand, bar attendant, delivery driver, waiter - again, there's no indication as to whether he applied for those jobs or, if he did, the dates, and so on.”
The Arbitrator then referred [at page 34 of the transcript] to the one document actually titled “Job Search Diary” dated 23 January 2008. That diary noted six applications for bar work in the Kurri Kurri area. The Arbitrator again said:
“It seems to me to be his evidence that he is not suitable for that work, and certainly it’s the medical evidence…that he is unable to do that work given his restrictions.”
The Arbitrator concluded [at page 35 of the transcript]:
“The critical issue I have to determine is whether at that time [the end of January 2008] he was seeking suitable employment.
As I said, to my mind, the evidence establishes, having regard to the factors in section 43A, that he would be suited to the jobs nominated [in the I.A.] report, that is, inquiry clerk, sales assistant, service station console operator and the like.
It was put to me… that around the area in which Mr Frost resides, which is said to be Pelaw Main, but in his statement is indicated to be Kurri Kurri, those types of jobs don't exist, but there is no evidence of that.
In fact, the evidence of [the I.A. report] is that there are those type of jobs within the labour market reasonably accessible to Mr Frost, that is, around Kurri Kurri. They, in a thorough fashion, go through the employment opportunities they found available for Mr Frost…
They say that on 4 June 2007, however, there was zero jobs advertised on numerous websites that they searched…”
The Arbitrator then set out in detail the names of various organisation contacted by the I.A. authors, reciting the physical requirements for the various jobs, before concluding [at page 36 of the transcript] as follows:
“So, there is no evidence that, or the evidence, from what I can infer from it, is that Mr Frost has not made any applications to those style of jobs. Indeed, as I said, the evidence indicates that he is applying for jobs for which he is not suited given his physical requirements. Therefore, I find that he was not suitably employed and not seeking suitable employment at the relevant time, being the end of January 2008, and, therefore, there will be an award for the respondent with respect to his claim for weekly compensation.”
THE SUBMISSIONS
I will deal with each of the grounds of appeal in turn.
The ‘Labour Market’ Issue
Although reference was made by the Arbitrator to issues involving the ‘labour market’, it is clear from his decision that he found in favour of JJP on the basis of section 52A(1)(a) and not section 52A(1)(c). This was the basis upon which JJP had discontinued payments, that is, that at the relevant time, Mr Frost was not suitably employed and was not seeking suitable employment.
In those circumstances, I cannot see that this ground of appeal is made out.
The Section 43A Issue
Mr Frost submits that the Arbitrator failed to give any weight to relevant factors set out in section 43A such as “…the nature of the worker’s incapacity, and place of residence, such factors being substantial causes of the inability to secure employment.”
Section 43A sets out a number of matters to consider when ‘defining’ suitable employment for the purposes of sections 38, 38A and 40. Section 43A(1)(e) refers to “the provisions of any injury management plan” and 43(1)(f) refers to “any suitable employment for which the worker has received rehabilitation training.”
It is these sections I consider to be most relevant to Mr Frost’s claim.
There is ample reference in the Arbitrator’s findings and reasons to the nature and extent of Mr Frost’s disability and “incapacity for employment” [see transcript pages 31-33]. There was some confusion as to “place of residence”, Mr Frost having indicated in his Statement of 2 May 2008 that he lived at Kurri Kurri, having given his address in an earlier statement in June 2007 as Maitland. However, I note that the letter to him from the GIO dated 3 December 2007 was addressed to him at Pelaw Main. There was no evidence that this (or any other) correspondence was not received.
This issue of “residence” however was not the focus of the Arbitrator’s determination: he appears to have concentrated particularly on the I.A. report and the ‘suitability’ of employment options referred to therein.
However, there is no evidence that the I.A. report was ever sent to Mr Frost or even seen by him: as I said, it appears to have been produced at the hearing, and did not form part of the Reply. It was not annexed to the Section 54 Notice sent to Mr Frost on 29 January 2008. That document merely attached a “schedule” which was a “Statement Identifying All Reports And Documents Relevant To The Claim To Which The Decision Relates”. The I.A. report was not included, although the report of Dr Wijetunga was noted.
The “suitable employment” options referred to by the I.A. authors were not listed in the letter of “Non- Compliance” dated 3 December 2007. That letter again referred to Mr Frost’s “re-training” in “RSA and RSG [sic]”, and specifically referred to the AW Workwise plan. It seems to me that this was the basis upon which the decision to terminate benefits was made in January 2008, that is, that Mr Frost was not seeking the sort of “suitable” jobs for which he had been trained.
No reference whatsoever is made in the letter of 3 December 2007 to the “suitable” employment noted in the I.A report. Indeed, it is remarkable that reference is made to bar service work when this work had been specifically stated as ‘unsuitable’ by both Dr Wijetunga and the I.A. authors.
In other words, the evidence suggested that in December 2007 Mr Frost was indeed seeking “suitable employment for which he had been trained” [my emphasis] and in accordance with the provisions of his initial injury management plan as defined in section 43A. The “Job Search Diary” dated 23 January 2008 noted that Mr Frost had applied for six bar service jobs in pubs and clubs in the Kurri Kurri area between the 20 and 28 December 2007.
This I consider to be the “relevant time” for the purposes of section 52A in line with the decision of Judge Curtis in the former Compensation Court in Hughston v Hughston & Sons Pty Ltd (1999) 18 NSWCCR 312 where he held as follows:
“(3) The expression “seeking suitable employment” in s 52A(1)(a) of the Act relates to action taken by the worker to look for work at the “relevant time”. In this context, ‘time’ means a period of time. That time period is sufficiently elastic so that a worker is not required after successive failures and rejections to continue to present himself daily to employers suffering humiliation, often contumely, and increasing rejection when he is otherwise staying sufficiently close to the labour market as to find work as and when it becomes available. It is sufficient that the worker makes his availability known to prospective employers and keeps in touch with newspapers to try and obtain work.”
In these circumstances, I am of the view that the Arbitrator failed to give appropriate weight to a number of the factors set out in section 43A when he found that Mr Frost was not seeking suitable employment at the relevant time.
The Evidence of Mr Frost
Mr Frost submits that the Arbitrator failed to give any weight to his evidence.
I accept this submission to a degree. Some of the evidence he relied upon was flawed especially the so-called “Job Search Diaries” (with the exception of the document dated 23 January 2008). They were unsigned, undated, and were of no assistance to the Arbitrator whatsoever. No attempt was made by Mr Frost to rectify this situation at the hearing.
Nonetheless, limited reference was made by the Arbitrator to the statement of Mr Frost dated 2 May 2008: none was made to that of his partner. This is of some concern especially since Mr Frost set out to explain, inter alia, his reasons for applying for such jobs as butcher, courier and nude model. His statement as to ‘communication’ difficulties with his claims officer, confirmed by his partner, was also ignored.
The GIO had complained in their letter to Mr Frost of 3 December 2007 that his job seeking efforts to that date smacked of “self sabotage”. For example, the GIO stated that “nude model” was not “reasonable, gainful employment…suitable to your work capacity”. Mr Frost claims that this job was suggested to him by his rehabilitation provider. He was not challenged on his statement and no reference was made to his explanation by the Arbitrator.
The Arbitrator was at pains to point out the ‘suitability’ of the various jobs set out in the I.A. report, and the ‘unsuitability’ of the various jobs Mr Frost had applied for as described in his statement.
The Arbitrator appears to have ignored the explanation for these applications. Although the dates are not clear, they were at a time, according to Mr Frost, when he was undergoing re-training with AW Workwise. The courier job, for example, he claims was indicated as suitable as long as he was driving an automatic vehicle.
My observations on the issue of the section 43A factors have some relevance to the issues raised in this ground of appeal. I accept that, on the face of it, the jobs Mr Frost was applying for were not “suitable” given his physical restrictions. A similar comment was made by Deputy President Roche in PCR Plaster Settings Pty Ltd v De Brito (No3) [2008] NSWWCCPD 82. In that case, the worker, clearly partially incapacitated, was seeking employment in Portugal in printing or carpentry. He attached four declarations to his Application asserting his attempts to obtain these jobs. He was rejected in all of them on the grounds of inadequate physical capacity. As Deputy President Roche said:
“83. The evidence in the Declarations establishes, and I find, that none of the jobs Mr De Brito sought could be regarded as ‘suitable employment’, having regard to the terms of section 43A of the 1987 Act. Either Mr De Brito did not have the physical capacity for the work (the second application) or the physical capacity to carry out the work ‘did not suit’ Mr De Brito (the first and third applications). Rather than advancing Mr De Brito’s case, the Declarations confirm that at the relevant time (the period of time up to 20 April 2005) Mr De Brito was not seeking ‘suitable employment’.”
However, in the present case, at the relevant time, that is, from about 3 December 2007 when the GIO wrote warning Mr Frost of his “non-compliance”, up to January 2008, Mr Frost was seeking employment for which he had been re-trained by the GIO’s rehabilitation provider and which had been described as “suitable”. No indication was given in the letter that he ought to seek employment as, for example, a telephone sales representative or inquiry clerk.
In those circumstances, it seems to me that the “true and correct” view is that, for the purposes of section 52A(1)(a), Mr Frost was seeking suitable employment at the relevant time, and thus is entitled to an award.
The other Grounds of Appeal
Mr Frost’s submission that the Arbitrator erred in finding that he was not seeking suitable employment when he sought bar work subsequent to his rehabilitation plan has been dealt with in the preceding paragraphs. So too in effect has his submission that JJP failed to discharge its onus in proving that he was not seeking suitable employment, “such finding contrary to the evidence,” but some further observations are appropriate.
JJP in its submissions claims that “the worker was aware that the jobs for which he was applying were inappropriate for his physical limitations…despite being aware that bar work was not suitable employment because of his restrictions, the worker has continued to apply for that type of work”.
I initially found this submission quite persuasive, but on careful consideration of the evidence and the specific requirements of section 52A, I have rejected it. There is clear evidence that bar work was not suitable. Mr Frost himself said so, as did Dr Wijetunga and the I.A. authors. Indeed, Dr Wijetunga appears to have discussed the alternative options proposed by I.A. with Mr Frost at his consultation in May 2007.
But the onus was on JJP to show that at the relevant time, Mr Frost was not seeking suitable employment. At the relevant time, Mr Frost was told by the GIO that ‘suitable employment’ was that for which he had been re-trained, that is, bar work. Thus his applications for such work were appropriate and consistent with his obligations.
As JJP submitted:
“At the time the worker undertook training with a view to obtaining work in a hotel, there was nothing to suggest that this type of work would not be suitable…once it became apparent that this type of work was not suitable, alternative job options were considered…details of suitable options are discussed at length in [the I.A. report] the worker’s treating GP, Dr Joshi, certified that the job options proposed in that report were suitable”
JJP concedes that bar work was not suitable. In a faxed document that appears to form part of the I.A. report , Dr Joshi does indeed indicate that the jobs identified in the I.A. report are suitable for Mr Frost. But the footnote to that document asks Dr Joshi to fax it to one of the authors of the I.A. report. Again, there is no indication that it was ever conveyed to Mr Frost. Nor did it form part of the ‘material’ relied upon by the GIO in its section 54 Notice. And no reference was made to it by the GIO in their ’non-compliance’ letter to Mr Frost of 3 December 2007.
In all those circumstances, I am not satisfied that JJP has discharged its onus in establishing that, at the relevant time, Mr Frost was not seeking suitable employment within the meaning of section 52A
If the contents of the I.A .report had been disclosed to Mr Frost in the letter of 3 December 2007, in my view he would have had difficulty in establishing that he was indeed seeking “suitable employment”. But the evidence discloses that, at that time, he was doing what he had been asked to do despite his own reservations as to his capacity, and he ought not be penalised for that behaviour.
CONCLUSION
Mr Frost is entitled to an award from 11 March 2008. At the arbitration hearing, there was some dispute as to his monetary entitlement and to the number of claimed dependents [see transcript pages 25-26].
The appropriate course is to refer the matter to the Arbitrator at first instance to calculate Mr Frost’s entitlements in accordance with these reasons.
DECISION
The decision of the Arbitrator dated 30 June 2008 is revoked.
The Respondent to recommence weekly payments of compensation pursuant to section 40 of the Workers Compensation Act 1987 from 11 March 2008 at a rate to be determined.
The matter is remitted to the Arbitrator at first instance to calculate Mr Frost’s entitlements in accordance with these reasons.
The Respondent is to pay the Applicant’s costs of the proceedings before the Arbitrator.
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Deborah Moore
Acting Deputy President
31 October 2008
I MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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