Grange Resources (Tasmania) Pty Ltd v Butler

[2014] TASSC 4

[2014] TASSC 4

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Grange Resources (Tasmania) Pty Ltd v Butler [2014] TASSC 4

PARTIES:  GRANGE RESOURCES (TASMANIA) PTY LTD
  v
  BUTLER, Stephen

FILE NO/S:  738/2012
DELIVERED ON:  30 January 2014
DELIVERED AT:  Hobart
HEARING DATE:  22 March 2013
JUDGMENT OF:  Tennent J

CATCHWORDS:

Workers Compensation – Proceedings to obtain compensation – Determination of claims – Appeals, judicial review and stated cases – Question of law – Generally – What constitutes – Whether application of the law to facts wrongly found amounts to a point of law – Fact as found not open on the evidence.

TGIO v McLeod B37/1991, [1991] TASSC 151; Bedelph v Protective Security Pty Ltd [2004] TASSC 35, followed.
Hamilton v Shelton Iron Steel and Coal Co Ltd 19 BWCC 475; Steggles Pty Limited v Aguirre (1988) 12 NSWLR 693, referred to.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss63 and 88(1).
Aust Dig Workers Compensation [340]

REPRESENTATION:

Counsel:
             Appellant:  C N Dockray
             Respondent:  R J Phillips
Solicitors:
             Appellant:                    C N Dockray
             Respondent:  Phillips Taglieri

Judgment Number:  [2014] TASSC 4
Number of paragraphs:  34

Serial No 4/2014

File No 738/2012

GRANGE RESOURCES (TASMANIA) PTY LTD v STEPHEN BUTLER

REASONS FOR JUDGMENT  TENNENT J

30 January 2014

1. As at October 2009, the respondent, Stephen Butler, was employed by the appellant, Grange Resources (Tasmania) Pty Ltd. On 7 October 2009, the respondent suffered an injury while at work. The appellant accepted a claim for workers compensation and began making weekly payments.

2. On 7 January 2011, the appellant's insurer made a reference to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s88(1). The insurer sought that the Tribunal review the weekly compensation being paid to the respondent. The basis for that referral was a medical report in which a doctor had determined that the respondent had wholly or substantially recovered from the effects of his injuries.

3. By a notice dated 11 January 2011, the appellant gave notice to the respondent that, at the expiration of 10 days from the date of the notice, it proposed to terminate weekly payments. The termination was expressed to be pursuant to the Act, s86(1)(c), and a copy of the medical report referred to in the preceding paragraph was provided with the notice. On 17 January 2011, the respondent made a referral to the Tribunal pursuant to the Act, s86(4), by which he disputed the termination of payments and sought a determination about that.

4. The referrals were heard by a commissioner of the Tribunal ("the Commissioner") and a decision in relation to them was delivered on 14 August 2012. The Commissioner determined that the respondent had not wholly or substantially recovered from his injuries, and ordered the appellant to continue making weekly payments. The determination to the effect that the respondent had not wholly or substantially recovered is not challenged on this appeal. It is the level of weekly payments ordered by the Commissioner which is.

5. The Act, s88(1), provides:

   "88    Review of weekly payments

   (1)     A worker, an employer of a worker, or the licensed insurer of the employer may refer to the Tribunal for review a weekly payment being made to the worker.

   (2)     The Tribunal may, upon hearing an application to review a weekly payment, make a determination –

   (a)  terminating or reducing the payment; or

   (b)increasing the payment, subject to the limitations prescribed by section 69.

   (3)     A determination terminating or reducing a weekly payment may be ordered to take effect from the date of the application or any other date the Tribunal determines."

6. Section 69(1)(b) is also relevant to this matter. It provides:

"69    Amount of compensation in case of incapacity

(1)   Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by a medical practitioner or accredited person, the compensation payable to him under this Act is–

(a)in the case of the total incapacity of the worker for work, weekly payments equal to–

(i) the normal weekly earnings of the worker; or

(ii)     the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity–

whichever is the greater; or

(b)  in the case of the partial incapacity of the worker for work, weekly payments for the period of that incapacity equal to the difference between the worker's weekly payment calculated in accordance with paragraph (a) and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity."

The Commissioner's decision

1. The Commissioner dealt with the issue of a review of weekly payments at pars[72] – [79] of his reasons. He said as follows:

   "72    It is the employer's assertion that the worker does not have a total incapacity for work and that any entitlement he may have to weekly payments should be determined on the basis that he has a partial incapacity.  By s69(1)(b) a worker with a partial incapacity is entitled to a weekly payment equal to the difference between the amount payable for a total incapacity and the amount that that the worker is earning or would be able to earn in suitable employment or business.  It is common ground in this case that the worker is not currently earning any amount.  This leaves this question; what amount, if any, would the worker be able to earn in suitable employment or business?

   73       It is my understanding from the evidence of Mr Charles that the employer remains committed to the worker's rehabilitation and that it is prepared to accommodate him as best it can.  It is my further understanding that the maintenance planning work previously being undertaken by the worker remains available at Savage River.  It is not available at the employer's Burnie premises nor is it a role that the employer is prepared for the worker to carry out from his home.  Mr Charles also said that the worker's skills and experience would also be suited to work as town site maintenance supervisor, a bench top planner or a project supervisor.  However, it is my understanding that the maintenance supervisor position has recently been filled and is not currently available.  I have been provided with minimal information upon the bench top planner or project supervisor roles.  The worker's capacity to fulfil either or both of them was not explored with him.  I am not persuaded on the evidence (the employer bears the onus; s49(2)(b) and see Bridgewater Abattoirs Pty Ltd v Willing (1996) 6 Tas R 215), that either of these positions qualify as suitable employment for the worker. See MMI General Insurance Limited v Donnelly [2000] TASSC 143 at [13].

   74       This brings me to the job of maintenance planner.  It is common ground that this position is largely sedentary and is within the worker's physical capacities.  It is also common ground that he has the necessary skills and experience required by the position.  This is all conceded by the worker.  He accepts, with one qualification that the position amounts to 'suitable employment' for him.  The qualification involves his capacity to travel.

   75       The question is whether travelling so increases the worker's level of pain that it would be unreasonable to require him to travel to Savage River?  If so, then the work on offer as a maintenance planner would not, in my view, be suitable employment for him.

   76       Drs Ulman and Ernst are clearly of the view that the worker does not have any incapacity for work including any restriction on his ability to travel.  Their views are supported, they say, by the contents of the DVDs.  When Dr Sharman provided his initial report he opined that the worker was not fit for prolonged vehicle travel.  He gave this opinion without having seen the DVDs.  In his evidence to the Tribunal he limited the worker's travelling capacity to one hour.  It's my understanding that the journey between the worker's home and Savage River takes no more than 1.5 hours.  Mr Marriott, as is indicated by his exchange with counsel, clearly accepted that the worker's presentation in the DVDs may indicate a capacity to travel to Savage River.

   77       The worker himself asserts that the increased pain makes intolerable the travel to and from Savage River.  When pressed upon the level of pain it generated he was not able to be precise but it was clear to me from the tenor of his evidence that the level of pain did not exceed, at least not significantly so, that pain he endured when he was occupied with the birch trees on 3 January.  The travelling pain differed, he said, because it was more constant and didn't stop.  It is pertinent to note that the activities observed on 3 January were largely uninterrupted and continued over about 2.5 hours, a period greater than the travelling time to Savage River.  I have found earlier that the activities undertaken on 3 January did not cause the worker any apparent restriction or discomfort.  I have also referred earlier to the worker's 2010 diary.  It records symptoms of pain during the course of the worker's rehabilitation, some of which coincide with the worker's work travel.  However, there is not any recording of pain affecting the thoracic spine in the last 3 months prior to the termination of weekly payments, a fact consistent with a diminution in the worker's pain.

   78       I have not overlooked the fact that the activities shown on the DVDs do not necessarily impose loads on the spine which duplicate those loads generated by long distance travel nor have I ignored the fact that the road to Savage River is in parts undulating and in other parts includes multiple sharp bends.  Nevertheless, having considered all the relevant evidence, I have come to the view that I am satisfied that the worker's injuries and their related pain do not prevent him from travelling to and from his home and Savage River.  It follows in my view that the position of a maintenance planner with the employer is suitable employment for the worker.

   79       Shortly before the termination of his weekly payments the worker, as part of his rehabilitation, was working 4 hours per day for 3 days per week.  As was made clear during the course of the hearing the worker's problem with this arrangement was not the tasks required by the job but rather the travel.  I have now found the worker has the capacity to undertake that travel.  I see no reason why he cannot work as a maintenance planner for 4 days per week, at least for the same number of hours per day as previously.  I therefore find for the purposes of s69(1)(b) that the worker is able to earn such amount as is payable by the employer to a maintenance planner working 4 hours per day for 4 days per week."

Notice of Appeal

1. The grounds of the appeal in this matter were in the following terms:

   "1The Tribunal erred in law in having determined that the Respondent's injuries and their related pain did not prevent him from travelling to and from his home at West Ridgley to Savage River, and having determined that the position of a maintenance planner was suitable employment for the Respondent, the learned Commissioner erred in finding that the number of hours the Respondent had worked previously was 4 hours per day when the evidence before the Tribunal was that 'previously' pursuant to the supportive terms of employment provided by the Appellant, the Respondent had in fact been working and was paid for 12 hours of work per shift as a maintenance planner, for 3 shifts of a 4 shift roster."

2. At the hearing of the appeal, counsel for the appellant sought to add a further ground of appeal in the following terms:

   "The Tribunal erred in law in failing to give any, or any adequate reasons."

   The application was opposed. It was agreed the application would be dealt with in the overall reasons rather than as a preliminary issue which might delay the hearing.

Appeal against a decision of the Tribunal

1. The Act, s63, provides that any person who is aggrieved in point of law by a determination of the Tribunal may appeal to this Court.

2. The error in point of law identified by counsel for the appellant was that, having made a finding that the respondent was able to drive to and from work, and that work as a maintenance planner was suitable employment for him, the Commissioner then failed to make a correct assessment as to the amount the respondent would be able to earn in employment as a maintenance planner offered by the appellant to him. Counsel for the appellant submits that the Commissioner applied the correct law but to the wrong facts and, as such, that amounted to an error in point of law.

3. As to whether a point of law arises from applying the correct law, but wrongly to the facts, counsel for the appellant referred to the words of Wright J in TGIO v McLeod B37/1991, [1991] TASSC 151 where at 2 his Honour said:

   "Where a right of appeal is limited to the right to challenge errors in point of law, the primary facts found by the tribunal of first instance cannot be impugned upon appeal, provided there is evidence upon which those facts may be found. If the tribunal of fact misdirects itself on matters of law which it is necessary to apply to the primary facts, such an error will support an appeal. If the tribunal does not misdirect itself as to the law it may nonetheless be found to have erred in law if an ultimate finding of fact upon which the case fails or succeeds can be demonstrated as being one which could not be reasonably entertained by the tribunal if it correctly applied the law to the primary facts in a judicial manner." 

   Counsel also referred to a passage from the judgment of Underwood J (as he then was) in Bedelph v Protective Security Pty Ltd [2004] TASSC 35 at par[51] where his Honour said:

   "51 After careful consideration I have come to the conclusion that the Tribunal's decision reflected an error of law. In arriving at this conclusion, I am acutely conscious that it is not for this Court to 'balance again the arguments pro and con the decision which the [Tribunal] has reached, giving the separate factors the weight which I think they should or should not have,' per Lord Widgery LJ in Global Plant Ltd v Secretary of State of Social Services (supra) at 155. The question for this Court is whether the Tribunal's conclusion was one that no Tribunal, acting judicially and properly instructed as to the relevant law, could have reached. To so state the matter is not to suggest, of course, that the Tribunal's decision is not to be accorded full consideration and respect."

4. There seems no dispute between counsel as to the law on this issue. The difference between counsel is that, while counsel for the appellant submits the facts of this case give rise to there being an error in point of law, counsel for the respondent submits they do not, and that all there is here is a complaint about a finding of fact. Hence no right to appeal arises. 

Discussion – Ground 1

1. Counsel for the appellant submitted that, in lieu of the Commissioner's finding to the effect that the worker was able to earn such amount as was payable by the appellant to a maintenance planner working four hours per day for four days per week, there should have been a determination in the following terms:

   "That for the purposes of s69(1)(b) the worker would be able to earn such amount as is normally payable by the employer to a maintenance planner."

2. The Commissioner determined that the respondent's injuries and their related pain did not prevent him from travelling between his home and the Savage River worksite, and from performing the role of maintenance planner at the Savage River site which was what had been offered to him and which he was undertaking prior to the notice of intention to terminate payments. The Commissioner therefore determined that the position of maintenance planner offered by the appellant was suitable employment for the respondent. The main question was what would the respondent be able to earn in that suitable employment.

3. The finding by the Commissioner about what the respondent would be able to earn appears at par[79] of his reasons extracted at par[7] of these reasons. It is clear from that paragraph that the learned Commissioner made a finding of fact that the respondent was working four hours a day for three days a week shortly before the termination of his weekly payments, and that that finding underpinned the Commissioner's conclusion that, for the purpose of s69(1)(b), the respondent would be able to earn what he was able to earn as a maintenance planner working four hours per day for four days each week.

4. The issue raised by this appeal is, from the appellant's point of view, where did this finding of fact come from?  It is also necessary to consider what, if any, connection there is between the finding of fact and the Commissioner's ultimate conclusion because they are different and there is no apparent reason for that difference. If there was evidence before the Commissioner from which the finding of fact could be found, since such a finding could not be challenged on appeal, that is the end of the matter. However, essentially, counsel for the appellant argues that, on no reasonable view of the evidence before the Commissioner, could that finding have been made.

5. At par[69] of his reasons, the Commissioner said:

   "I have noted that he was rehabilitated to a point where he was working for 3 days a week for 4 hours per day undertaking the duties of a maintenance planner."

   Where did this come from? Counsel for the appellant, in the course of his submissions, said that there was no notation anywhere else in the Commissioner's reasons to this effect. That is correct, there is not. However the Commissioner canvassed the evidence before him in a detailed manner and, while he may not have said elsewhere words to the effect that he noted these facts about work hours, there needs to be a consideration of the evidence.

6. There was unchallenged evidence from the appellant's representative that the respondent would have been able to earn as a maintenance planner the normal wage for performing duties for the normal hours required for that position. There was also unchallenged evidence to the effect that if the respondent had the capacity to travel to and from Savage River for a normal four day roster, then flexibility would be afforded to him in relation to rest periods as required. The Commissioner determined that the respondent did have the capacity to travel, which determination underpinned his conclusion that the employment as a maintenance planner was suitable employment.

7. On 10 December 2010, Dr Yu signed a medical certificate. At par7 of that certificate which was entitled "Return to Work", in response to a question "Is return to work Graduated or Full Time?", hours and days a week were recorded as being four hours three days per week. The respondent, in evidence, said that was not correct, and that he worked more hours than that, although he did not say how many. In a certificate by Dr Ulman dated 22 December 2010, he said at 6:

   "On 6.12.10 Mr Butler indicated that between my assessments there was no improvement in symptoms and/or function, on or about 15.3.10 he returned to work at Savage River performing alternative work duties at reduced work hours, there had been no subsequent lost time/certified total work incapacity, he was currently performing alternative duties for 24-30 per week over three consecutive work days."

   That admission to Dr Ulman suggests an average of between eight and ten hours a day were being worked. That clearly does not support the finding of fact made by the Commissioner.

1. Counsel for the appellant also made reference to the evidence of Mr Gilbert Charles, the site senior operations manager for the appellant. In his evidence, he made no reference to any limit on hours per day to be worked or that were being worked. Evidence of Mr Marriott referred to at par[42] of the Commissioner's reasons relates to what the respondent told Mr Marriott. Mr Marriott noted the respondent reported in October 2010 that he was managing his three days a week at work. Again, there is no suggestion here that the respondent was only working four hours a day for three days a week, or even fours hours four days a week.

2. There was a series of documents entitled "Return to Work Plan and Rehabilitation Program" put before the Commissioner.  In the first of those in the papers dated 23 August 2010, the entry under the heading "Work Schedule" was:

   "Stephen will be transported to work each Wednesday and remain at the work site as tolerated for up to a full shift. He will attend work each Thursday and Friday and remain at the work site as tolerated for up to a full shift and will be transported home".

   For what are described as weeks 47 - 50 post-injury, the work on Wednesday, Thursday and Friday is shown as "Day Shift" and not any limited number of hours less than a normal day shift. There was allowance for a gym program each Friday and a note to the effect that:

   "Stephen will report any increase in symptoms to his Supervisor and will be given the opportunity to rest during the work day if required. Stephen may return to his accommodation or be transported home if required."

3. The same document for the period 18 October to 14 November 2010 is in almost identical terms.

4. Counsel for the respondent referred to the report of Dr Sharman dated 19 November 2010. Dr Sharman was of the view that the respondent was fit to work in an office based role for two or three half days a week. The Commissioner summarised Dr Sharmans's evidence. His summary included that comment. Professor Bittar, in his report, determined that the respondent was fit to work one to two hours per day, three to four days per week. Both were of the view that the respondent could not travel to Savage River, evidence which was not accepted.

5. Counsel for the appellant ultimately submitted after a review of the evidence that the Commissioner so misapprehended the facts as to the appellant's offer of normal wages in that suitable employment that it amounted to an error in point of law.

6. The finding that the respondent was working four hours per day three days a week "shortly before the termination of his weekly payments", while supported by the reference in the medical certificate of Dr Yu, was not, in my view, a finding which was reasonably open on the whole of the evidence before the Commissioner, and indeed is contrary to that evidence.  The respondent was, at that time, working on an arrangement through the appellant which required attendance at the Savage River site for three normal full day shifts.

7. The Commissioner's conclusion that he could see no reason why the respondent could not work as a maintenance planner for four days a week "at least for the same number of hours per day as previously" immediately follows the erroneous finding of fact. His conclusion as to what the respondent would be able to earn, that is, "I therefore find for the purposes of s69(1)(b) that the worker is able to earn such amount as is payable by the employer to a maintenance planner working 4 hours per day for 4 days per week", follows straight after. A plain reading of the Commissioner's words leads to the conclusion that he made a factual finding as to what the respondent had been doing, concluded by reference to that finding that the respondent would be able to earn what he was earning then and made a finding for the purpose of s69(1)(b). However the factual finding with which the process started was unsupported by the evidence, and the ultimate finding was different from it despite the Commissioner's words in between the two.

8. Counsel for the respondent argued that the Commissioner's conclusion was open to him on the evidence before him, particularly against a background that the Commissioner was entitled to exercise circumspection in relation to the job offer by the appellant to the respondent and payments for work. There were also other considerations to be taken into account such as the focus on insurance concerns, and that the respondent's post-accident employment was "special employment".

9. As to the issue of insurance concerns, the evidence of Mr Charles in that regard was referred to. The appellant had what was described as a "burner arrangement" in relation to workers compensation. Very simply, the appellant was prepared to pay an employee to be back at work on a return to work plan rather than paying workers compensation. That policy provided a better outcome for the appellant as far as its insurance was concerned. Mr Charles said about the appellant's policy generally to get people back to work:

   "I find that most of the workers on these programs appreciate being with their workmates and basically on their rosters because then once they get out of it, it's very hard to, you know, get in the cycle again."

10. As to the question of special employment, both counsel dealt at some length with Hamilton v Shelton Iron Steel and Coal Co Ltd 19 BWCC 475 and Steggles Pty Limited v Aguirre (1988) 12 NSWLR 693. Significant portions of each case were quoted. What needs to be determined for the purpose of this case is whether, within the parameters of the principles outlined in those cases, the employment offered by the appellant to the respondent in this case could be characterized as "special employment". I am not satisfied that it can be. The evidence of Mr Charles is, in this respect, particularly relevant.

11. Mr Charles had known the respondent for a number of years through their respective roles with the appellant. Mr Charles thought very highly of the respondent's skills and work ethic. Mr Charles was asked about the respondent's skill base. He said:

    "He knows the area of the mine very well, knows what you can do, what you can shut down without interfering with the process and output, considered to be a leading hand back-up supervisory material, very competent in his knowledge of the place and very confident in his knowledge of the actual overall running and operations of the concentrator and the crushing system."

    Clearly the employment offered to the respondent was employment he was well qualified to perform and fitted neatly into what was perceived to be his skill base. This situation was nothing like that dealt with in the Steggles case.

Conclusion

1. The policy of the appellant was to get injured workers back into work. The appellant obviously accepted that, in the respondent's case, that did not permit him going back to work in his original job. A position as a maintenance planner was available and the respondent was considered well suited to that role. A return to work program was developed to allow the respondent to take up that role on a full-time basis. It was recognized that allowances would need to be made initially to accommodate the difficulties the respondent had with pain. It was also recognized that gym arrangements should feature in the process. The Commissioner found that employment as a maintenance planner was suitable employment. The only issue was what the respondent would be able to earn in that suitable employment.

2. In my view, there can be no doubt that the Commissioner made an erroneous finding of fact. On no view of the evidence could such a finding have been made. Paragraph[79] of the Commissioner's reasons leave, in my view, no room for doubt that the Commissioner relied on the erroneous finding to make his determination and that that determination cannot be justified on any other discernible basis. The appeal should therefore succeed. It is unnecessary to deal with the application to add a second ground of appeal.

Outcome

1. At the conclusion of submissions, I had a discussion with counsel about what was the appropriate order in the event that I upheld this appeal. Both agreed that the matter should go back to the Commissioner. In those circumstances, the orders of the Court are:

   (1)       That the appeal is allowed.

   (2)       That the matter be referred back to the Commissioner for further determination.