General Motors Holdens Automotive Ltd v Kathryn Wilkes No. SCGRG 92/1005 Judgment No. 3878 Number of Pages 9 Workers' Compensation

[1993] SASC 3878

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE(1), MATHESON(2) and DUGGAN(3) JJ

CWDS
Workers' compensation - Employee suffered from Raynaud's phenomenon which was stimulated by her work environment - emPloyer intitially paid income maintenance to the employee - the employee undertook different duties at work as a result of her illness - employee later resigned as a result of a sickness certificate which left unspecified the date for her return to work - after this the employee took employment as a taxi driver - the original employer refused to continue maintenance payments - whether an injured worker is entitled to the benefits of weekly compensation under s35(l)a(ii) and 35(2) of the Workers Rehabilitation and Compensation Act when she is able to perform alternative duties provided by the employer but through a mistaken belief not induced by the employer thinks she cannot perform those duties and thereafter unilaterally resigns from her employment.
Workers Rehabiliation and Compensation Act 1986 s35(1)a(ii), s35(2), s36.
Kelvinator v Jezior (1988) 49 SASR 592; RJ Brodie (Holdings) Pty Ltd v Pennell (1968) 117 CLR 665; Workers Rehabilitation and Compensation Corporation v James (1991) 56 SASR 414 and Workers Rehabilitation and Compensation Corporation v James (1992) 57 SASR 365, applied.
High v State of SA (Industrial Court) No. 2468 of 1979, distinguished.

HRNG ADELAIDE, 5 February 1993 #DATE 25:3:1993
Counsel for appellant:         Mr T Bryant
Solicitors for appellant:     Finlaysons
Counsel for respondent:        Mr D Bamford
Solicitors for respondent:     Duncan and Hannon

ORDER
Appeal dismissed.

JUDGE1 LEGOE J This is an appeal by an exempt employer from a decision dismissing the appellant's appeal to the Workers Compensation Appeal Tribunal from a determination of a Review Officer. Leave was granted by a Judge of this court in respect of one ground only (ground 3) of the five grounds of appeal. The appellant after abandoning ground 1 now seeks the leave of this court in respect of the remaining grounds 2, 4 and 5. I shall come back to this matter shortly. THE BASIC BACKGROUND FACTS
2. The respondent commenced her employment with the appellant on the 7th March 1989. She resigned on the 9th May 1989 in order to attend to a family matter overseas. She was re-employed upon her return to Australia by the appellant on the 13th June 1989. She remained in that employment until she resigned on the 18th January 1990. 3. On the 2nd August, 1989, she went to the medical centre at the employer's place of business complaining of pain in the right thumb. On the 3rd August, 1989, the respondent put in a notice of disability in relation to her right thumb injury. On the 9th August, 1989, she saw Dr Wilson who gave her a period off work from that date until the 16th August. The appellant accepted the respondent's claim for compensation and paid this to the respondent during the period taken off work. She was given some further time off until the 18th August. On the 21st August she saw Dr Wilson again who sent her back to work on alternative duties. On the 5th October, 1989, the respondent again went to the medical centre. She was then experiencing pain in the right thumb after using a pop-rivett gun. At that time she saw her own general practitioner, Dr Gole. Dr Gole gave her time off work from the 26th October until the 10th November, 1989. Again she put in a claim for compensation which was accepted. On the 2nd November, 1989, she went to see Mr Anderson who gave her a certificate for time off work from the 2nd to 10th November, 1989. On the 13th November she was told she could go back to work, but as she had an unrelated viral problem, she remained off work for a few more days. The respondent said that on the day that she went back to work, about the 16th or 17th November she was given a static job. This job involved having to put the sheets in some sort of frame. She didn't have to use any power tools or tighten any bolts or screws or anything like that in this static job. She agreed that it was fair to say that apart from not being able to keep up with the speed of the line that this job didn't have any problems, except in separating the sheets. She said that all she wanted was a job that she could keep up with. The factory closed down on the 22nd December, 1989 for the Christmas holidays. The respondent was due to start back work on the 18th January, 1990. 4. Mr Anderson, a vascular surgeon, reported on the 14th January 1991, of his initial consultation with the respondent on the 2nd November, 1989. Although after examination he considered that there was no evidence of a vaso-spastic condition and no trophic skin changes, the respondent felt there were two aggravating factors producing the problem in her hands. One was the exposure to cold and the other was the use of vibrating tools which she used in her employment as a trim fixer at General Motors Holden. Mr Anderson prescribed certain treatment which he said had been shown to be beneficial as a vaso-dilator in cases of Raynaud's phenomenon. Mr Anderson saw the respondent again in January of 1990 (apparently on the 8th January). He reported at that time that her symptoms had lessened. Mr Anderson's certificate of sickness issued that day, states that the respondent, an assembly line worker, was suffering from Raynaud's (R) hand caused by "use of vibrating tools." The certificate goes on to state that in his opinion the worker was unfit for work from the 8th January, 1990, but the box for inclusion of the date to which the unfitness for work was to continue is left blank in the certificate. In her evidence-in-chief, the respondent referred to this WorkCover certificate, and pointed out that it didn't have any dates on it and that she didn't know what to do about it. She said she rang her senior supervisor and asked him what did the certificate mean, should she come back to work, was she on compensation, was she to resign and what was she to do? She said that her supervisor could not help her and that she didn't know what to do. "So I got all my information together and I took it     down personally the following day and handed it in." 5. In cross-examination when asked about whether she had spoken to somebody and told them that she wouldn't be coming back to work, the respondent said:-
    "I rang my senior supervisor asking him what I had to do with
    this work compensation - WorkCover form that I had. I didn't
    know whether I was on compo or whether I had to go back to work
    because it wasn't stated on it. There wasn't a return to work
    date stated on it and my appointment with him wasn't for another
    six months." Mr Anderson in his report said that he didn't see her again until the 4th June, 1990. 6. On the 21st June, 1990, the respondent lodged a claim for compensation which was rejected by the appellant in a letter dated 19th September, 1990. 7. The appellant in counsel's submissions to this court accepts that during the period of her employment with the appellant, the respondent worked as a process worker at the Elizabeth plant. This work involved her, in part at least, using pneumatic tools and allegedly working in cold areas. The appellant further claims that at all times prior to the 18th January, 1990, when the respondent resigned from her employment duties, the appellant paid the income maintenance due to the respondent in accordance with the Act. The duties that the respondent was engaged in immediately prior to the annual Christmas close down has been described by me above and is accepted by the appellant. The appellant submits to this court that there was no evidence to indicate that the respondent was not able to cope with these duties that she was doing prior to the Christmas closedown, or that they were duties that she ought not to be doing having regard to her diagnosed condition. 8. The hearing before the Review Officer took place in 1991 (15th February, 29th April, 10th September and 21st and 22nd October). Sworn evidence was given on behalf of the respondent, which included that of medical experts. The Review Officer's determination was published on the 31st October, 1991. The facts leading up to the Christmas break, which I have outlined above, were summarised by the Review Officer. The Review Officer then dealt with the medical certificate of Mr Anderson issued on 8th January, 1990, in this way:-
    "During the holiday period the worker returned to Mr Anderson
    on 8th January, 1990, and was provided with a prescribed medical
    certificate from him saying that she would be unfit for work on
    the 8th January, 1990. According to Mr Anderson's report dated
    14th January, 1991, her symptoms had lessened at that time and
    he wanted to see her again during the winter. It was the
    worker's sworn evidence that she did not know what to make of Mr
    Anderson's certificate and that when she rang the employer for
    information on 18th January, 1990, she decided to resign because
    she did not know what else to do. As she said at page 27 of the
    transcript: 'I didn't know what to do and nobody would give me
    any information as to what was the next step. Dr Anderson told
    me that he couldn't do anything further until he saw me next.
    The next appointment with him was June because I couldn't get
    in.'" 9. After resigning from the appellant's employment the Review Officer found that the respondent acquired a permit to drive a taxi, and that she had been driving off and on since January 1990. Since March 1990 she had been driving for her father a taxi owner. On the basis of the medical evidence, the Review Officer found that:-
    "...the worker does suffer from Raynaud's phenomenon, the cause
    of which is unknown. ... I find from Dr Mill's evidence that
    the worker did work with vibrating power tools. ... In this
    matter, I prefer the evidence of Mr Anderson who was the
    treating specialist, and was in the best position to assess the
    worker's condition. It was his evidence that vibration, but
    more especially, cold were common stimuli for Raynaud's
    phenomenon in vulnerable people. He considered that the two
    stimuli at the same time were even more likely to be triggering
    factors for the phenomenon. Once triggered, he considered that
    the phenomenon was more likely to be symptomatic in either the
    hands and/or feet if the worker was exposed further to the
    triggering factors. In other words, she was more susceptible,
    more vulnerable to the incapacitating symptoms of phenomenon or
    syndrome. ... I find that the worker is suffering from the
    aggravation of a disease and that she is partially incapacitated
    for work as a result. I find she must now avoid work with
    vibrating tools and working cold conditions. I find she is not
    incapacitated for the work that she has been doing since she
    resigned from her employment with GMH, that is work as a taxi
    driver. ... Having considered all the sworn evidence at the
    hearing, I find that her resignation was in part due to her
    compensable disability, and that the mutuality of responsibility
    between the parties with respect to this matter has not been
    breached." (My emphasis). THE APPEAL TO THE TRIBUNAL
10. The relevant ground of appeal to the tribunal is ground 10:-
    "10. The Review Officer wrongly found that the worker had not
    destroyed the mutuality of employment by her resignation which
    finally was incorrect because it was apparent that the worker
    preferred to engage in a career as a full-time taxi driver as a
    result of a personal choice and not as a result of the effects
of the injury." 11. In the light of the abandonment of ground 1 of the notice of appeal to this court, this ground 10 is the only relevant matter for this court to consider. 12. The appeal tribunal published its decision on the 2nd April, 1992. Counsel for the appellant (the exempt employer) relied on two basic reasons for setting aside the decision of the Review Officer. The first related to the insufficiency of the evidence to allow the finding that employment had contributed to the condition. That is not now a relevant matter for this court. Secondly, counsel contended that the worker's resignation denied her access to the benefits of section 35(2) of the Act, because of a want of mutuality. This reason relates directly to the ground of appeal before this court by leave (ground 3) and to the other grounds in respect of which leave is sought (grounds 2, 4 and 5). 13. After setting out the key points of the decision appealed from, and the basic findings made by the Review Officer, the tribunal then dealt with the first reason put by the appellant and concluded that the necessary ingredients to validate the ongoing causative factor were present and that part of the Review Officer's decision should be confirmed. 14. Turning to the other reason that was argued before the tribunal, reference was made to the law governing the tribunal which the appellant apparently accepted. For the purposes of section 35(2) regarding the issue of mutuality, reference was made to Kelvinator v. Jezior (1988) 49 SASR 592. The leading judgment which has been followed and applied in several cases since was that of Cox J (White and Prior JJ concurring). At page 597, Cox J said:-
    "Section 35(2) of the 1986 Act is different in its language
    from section 67 of the repealed Act, and different again from
    section 11(2) of the New South Wales Act of 1926. Nevertheless
    the same element of mutuality in the contract of employment
    underlies all three provisions. Conduct on a workers part,
    independent of any injury, that is inconsistent with the degree
    of co-operation that is essential to an effective working
    relationship may take his case outside the ambit of section 35.
    Perhaps it is more difficult to fasten on particular words in
section 35(2) in which the notion of mutuality is implied, but
    that does not matter. Besides, the expression 'reasonably
    available' is probably adequate for that purpose. It is hardly
    to be supposed that an employer, in order to avoid having a
    partial incapacity treated as a total incapacity, is obliged to
    restore an injured worker to the payroll when it is plain that
    the worker will behave in a fashion that is fundamentally
    destructive of the required mutuality - by persistently
    disobeying instructions, say, or by assaulting his fellow
    workers or by repeatedly flouting the safety rules. ... As the
    authorities emphasise, however, it is a question of fact, and
    perhaps degree, in every case whether there has been a
    fundamental breach of the condition that underlies section 35.
    Obviously a mere temporary disagreement or other passing episode
    will not ordinarily constitute this kind of disqualification.
    The question has to be judged in relation to the time for which
the weekly compensation is sought." (My emphasis). 15. In respect of the last sentence of His Honour's remarks, the relevant period of time in this appeal is the period from the respondent's application in June 1990. The principles referred to by Cox J in the Kelvinator case were collected from a number of authorities discussed by His Honour at pages 594-597, including the leading High Court authorities of R.J. Brodie (Holdings) Pty Ltd v. Pennell (1968) 117 CLR 665 and Electric Power Transmission Pty Ltd v D'Urso (1970) 124 CLR 338. Other cases referred to by His Honour arising out of the New South Wales legislation and the earlier provisions in South Australia were Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417; Kanoon v. Cablemakers of Australia Pty Ltd (1975) WCR (NSW) 298; and Hartwell v Electricity Trust of South Australia (1982) 29 SASR 365; Martin v The State of South Australia (1982) 49 SAIR (Pt 2) 269; Zardoukas v General Motors-Holden's Pty Ltd (1975) 42 SAIR 1202 and General Motors-Holdens's Pty Ltd v. D'Andrea (1985) 122 LSJS 301. 16. The appeal tribunal summed up these principles further in this case in the following:- (1) Is the worker who is unwilling to continue to work for reasons unconnected with a work disability to the particular work entitled to rely on section 35(2), and (2) Is the worker, unable to work for reasons peculiar to the worker and unrelated to his or her incapacity entitled to rely on the same section? The only other concept noted by the appeal tribunal was, again from the Kelvinator case, that a want of mutuality is a question of fact and perhaps degree, and further in line with the decision in R.J. Brodie (Holdings) Pty Ltd v Pennell supra, a want of mutuality at one particular time will not necessarily foreclose that question forever. 17. The appeal tribunal concluded as follows:-
    "Clearly the Review Officer accepted the worker's evidence that
    her resignation was the product of the certificate from
    Dr Anderson. That of course in itself was a direct consequence
    of the injury. This chain of events led her to understand she
    had to give up the job ... In fact she was not incapable of
    the job by reason of the factors disassociated with her
    incapacity nor was she unwilling to perform it. The
    respondent's own evidence bears out the belief she had at that
    time. ... The declaration to Mr Saint of her dilemma, coupled
    with her decision to resign, make quite plain the course of her
    thinking, and certainly provide an adequate basis for the Review
    Officer's finding that mutuality had not been breached.
    However, it does not seem to us that there can be no operation
of section 35(2) while the worker is actually engaged in
    employment elsewhere. For instance, the worker could hardly be
    deemed totally incapacitated while undertaking full-time
    employment as a taxi driver. The periods the worker has such
    employment is not clear from the evidence or from the decision
    of the Review Officer. Counsel did not address us on the point.
    It is only during periods when the worker is not engaged in
other employment that the onus under section 35(2) arises. That
    will also involve questions of what notice the employer has:
see R.O.H. Industries Pty. Ltd. v Trepic (1989) 52 SASR 158." This last point referred to by the tribunal was not argued on appeal to this court, and in my opinion clearly the comments of King CJ in R.O.H. Industries Pty Ltd supra at page 162 and my own comments at page 168 presented no bar to the respondent's claim. THE APPEAL TO THIS COURT
18. Leave was granted to the appellant to appeal on ground 3 only. Ground 3 reads:- "3. The Tribunal misapplied the provisions of section 35(1)(a)(ii) and section 35(2) of the Workers Rehabilitation and Compensation Act 1986 to the circumstances of the case." Counsel for the appellant submitted on the hearing of this appeal that the other grounds, in respect of which there was an application before this court to add by way of leave from this court, were also relevant to this issue. Ground 2 relates to the alleged failure of the tribunal to take into account and give due weight to the evidence that the appellant at all material times prior to the respondent resigning her employment on the 18th January 1991 was providing suitable full-time employment to the respondent. This ground would appear to be essentially a question of fact which was determined by the tribunal and therefore was not an appropriate matter for leave. Ground 4 claims that the tribunal in determining that the respondent was entitled to income maintenance after the 18th January, 1991, failed to take into account or give due weight to the facts that the employer had up and until the 18th January, 1991 provided full-time and suitable employment duties to the respondent, and that such employment thereafter only ceased by virtue of the unilateral act of resignation of the respondent. Counsel conceded that this ground was essentially similar to ground 2 and therefore similar comments that it was primarily a question of fact that the tribunal actually determined. Finally, ground 4 of the proposed grounds of appeal in respect of which leave is still sought, claimed that the tribunal erred in finding that the unilateral act of the respondent resigning her employment did not destroy the mutuality of her employment with the appellant. It may be said that this last ground comes closer to establishing a point of law, but as emerged from the argument, this submission was apparently never put to the tribunal and it was not an issue before the tribunal. 19. However, counsel crystallised the first issue as to whether or not in the circumstances, where an injured worker is able to perform alternative duties provided by the employer, but through a mistaken belief not induced by the employer, thinks he or she cannot perform those duties, and thereafter resigns employment unilaterally. In those circumstances counsel argued that it cannot be said as a matter of law that:-

    (i) the worker was ready, able and willing to work for the
    employer such as to permit him the benefit of the deeming
provisions of sections 35(2) of the Act of 1986; and further;
    (ii) the worker was otherwise entitled in the circumstances to
    the benefit of such provision. Section 35(1)(a)(ii) of the Act
    reads:-    "35.(1) Subject to this section, where a worker
    suffers a compensable disability that results in incapacity for
    work, the worker is entitled to weekly payments in respect of
    that disability in accordance with the following principles:
    (a) If the period of incapacity for work does not exceed one
    year -
    (i)    ....
    (ii) the worker is, if partially incapacitated for work,
    entitled for the period of incapacity to weekly payments equal
    to the difference between the worker's notional weekly earnings
    and the weekly earnings that the worker is earning or could
    earn in suitable employment ..." 20. Section 35subsection 2 provides that for the purposes of subsection 1:- (a) a partial incapacity for work over a particular period shall be treated as total incapacity for work over that period unless the corporation establishes that suitable employment for which the worker is fit is reasonably available to the worker in respect of that period; and (b) certain factors are to be considered and given such weight as may be fair and reasonable in making an assessment of the prospects of the worker to obtain employment, namely:-
    (i) the nature and extent of the worker's disability;
    (ii) the worker's age, level of education and skills;
    (iii) the worker's experience in employment; and
    (iv) the worker's ability to adapt to employment other than the
    employment in which he or she was engaged at the time of the
occurrence of the disability. 21. In Workers Rehabilitation and Compensation Corporation v James (1991) 56 SASR 414, the corporation took out a summons pursuant to the Rules of the Supreme Court for determination as to the proper construction of sections 35(1)(b), and (2)(b) and section 36 of the Act and for the determination of certain more specific questions. In reviewing the true construction of section 35(1) and (2) of the Act, Mullighan J at page 427 pointed out that it must be acknowledged that a reasonable prospect of obtaining suitable employment necessarily means in the future, but to give sense to those two subsections, it must mean in the immediate future. He added the true construction of the words in their context means:- suitable employment that a worker would almost immediately obtain if he applied for such employment. This construction was affirmed on appeal; see Workers Rehabilitation and Compensation Corporation v James (1992) 57 SASR 365 headnote at 367(c) "reasonable prospect of obtaining employment" means a reasonable prospect of obtaining employment immediately or nearly immediately. 22. The appellant accepted the finding of primary fact made by the tribunal that the respondent resigned her employment as a product of her belief as to matters surrounding a certificate issued by a treating medical practitioner. However, the appellant challenges the conclusion which the tribunal drew from that admitted fact, namely, that such resignation could therefore be said to "result" from the work-caused disability. It was contended that the question as to the application of section 35(1)(a)(ii) and 35(2)(a) of the Act, raised questions of law in respect of those findings of fact made by the Review Officer and the tribunal. It was a question as to whether the facts as found fell within the provisions of a statutory enactment properly construed; cf. Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7. It was submitted that on a proper application of the two subsections, the unilateral resignation by the respondent for reasons unconnected with the incapacity when an employer is providing suitable employment duties, is prima facie evidence that the worker is not ready, able and willing to work in the suitable employment which had previously been provided so as to amount to a breach of the mutuality of employment and to preclude the worker being entitled to rely upon the deeming provisions of section 35(2) of the Act. Reference on this aspect was made to High v. State of South Australia Industrial Court matter W.70/1983 being application no. 2468 of 1979. The President of the Industrial Court there gave consideration to the obligation of an employer to provide suitable work and of the employee to be ready, willing and able to accept the work as discussed in R.J. Brodie supra in the High Court. The learned President added:-
    "Nevertheless the basic problem stems from the initial refusal
    of the worker to continue to work for the employer arising from
    his act of esignation." After citing from the well known passage in D'Urso's case supra, at page 341, where the court referred to mutuality between the employer and the worker, and that if a worker did not want to work, an employer could not be said to have failed to provide suitable employment, the President added:-
    "It seems to me to be a logical extension of that process of
    reasoning to suggest that, in general, where a worker
    unilaterally terminates his employment and thus destroys the
    necessary element of mutuality, then, logically a former
    employer ought not to be held to have failed to discharge his
    obligation under section 67 until the stage has been reached at
    which it becomes aware or ought to have become aware of the
    facts indicating a restoration of the mutuality. To hold
    otherwise would be to impose a capricious and unreasonable
    burden upon an employer who, at all material times, prior to the
    termination, had indicated willingness to provide suitable work.
    After all the employer, having received an unqualified
    resignation, is surely entitled to assume that this constitutes
    an ongoing indefinite intimation of lack of mutuality until the
worker notifies a change in that situation." (My emphasis). 23. Counsel for the appellant submitted that on a proper construction of section 35(2) of the Act, where an injured worker unilaterally resigns from suitable employment which is being provided, such worker's claim for income maintenance prima facie cannot be assessed by reference to the deeming provisions of the Act. The worker cannot and should not in those circumstances be able to take advantage of the deeming provisions of section 35(2). 24. I agree with the appeal tribunal that the respondent's statement to her supervisor on the 18th January coupled with her decision to resign, clearly indicated the course of her thinking and certainly provided an adequate basis for a finding that mutuality had not been breached by the respondent. I can see no error in law in applying these facts to the relevant principles in the several cases which have been referred to. In my opinion the fallacy in the argument put to this court is that the respondent's resignation was "unconnected with the incapacity." The reasons given by both the Review Officer and the tribunal clearly indicate as a fact that the respondent's reason to resign was directly connected with her incapacity as indicated in Mr Anderson's certificate of 8th January. I would distinguish High's case on the facts, and on the basis this case was not one which could be described as "in general". 25. The second issue which counsel for the appellant raised related to the application of the above facts, particularly the resignation by the respondent in the mistaken belief that she is not able to perform the duties at her employer's factory, then the moneys that she was earning in such employment with the appellant should be taken into account in determining the worker's entitlement to compensation as money "that the worker is earning or could earn in suitable employment." Reference is made in this regard to section 35(1)(b)(ii). Counsel conceded that this second issue was not raised either before the Review Officer or before the appeal tribunal. However, I note that the appeal tribunal did refer to the fact that it would only be during periods when the worker is not engaged in other employment, that the onus under section 35(2) arises. On the answers given in Workers Rehabilitation and Compensation Corporation v James supra, by Mullighan J and the Full Court, it seems to me that this is a matter of factual calculation on the wage sheets and other records in the possession of the appellant to be applied to the actual earnings of the respondent since the 18th January 1990. Clearly this is a question of fact and not a matter which this court has jurisdiction upon which to adjudicate. 26. In my opinion the appellant has failed to establish ground 3 in respect of which leave was granted. In my opinion the appellant has failed to establish that the tribunal fell into any error of law which should persuade this court to exercise its discretion to grant leave on any of the other grounds in respect of which leave is now sought. 27. The appeal should be dismissed.

JUDGE2 MATHESON J I agree that this appeal should be dismissed for the reasons given by Legoe J.

JUDGE3 DUGGAN J I agree that this appeal should be dismissed for the reasons given by Legoe J.