Jackson v Cement Australia (Kandos) Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Jackson v Cement Australia (Kandos) Ltd [2012] NSWWCCPD 67
APPELLANT:		Cynthia Jackson
RESPONDENT:		Australian Cement Ltd
INSURER:		Employers Mutual NSW Ltd
FILE NUMBER:		A1-4265/12
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:		15 August 2012
DATE OF APPEAL DECISION:		15 November 2012
SUBJECT MATTER OF DECISION:		Section 52A(1)(c) of the Workers Compensation Act 1987; total or partial incapacity; suitable employment; meaning of “primarily”; whether worker failed to obtain suitable employment primarily because of the state of the labour market; principles to consider
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Turner Freeman
Respondent:	Edwards Michael Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 15 August 2012 is revoked and the following orders made in its place: “1. The respondent is to recommence payments of weekly compensation to the applicant in the sum of $424.50 under s 40 of the Workers Compensation Act 1987 from 14 October 2011 to date and continuing, as adjusted. 2. The respondent is to pay the worker’s costs, as agreed or assessed. 3. The matter is certified as complex with an uplift of 15 per cent.” The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

1. This appeal raises three issues:

   (a)     whether, applying the principles in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 (Lawarra Nominees), the worker was totally incapacitated for work at the relevant time (total incapacity);

   (b) whether, if the worker was not totally incapacitated for work at the relevant time, work as a receptionist, administrative assistant, or customer service officer was “suitable employment” for the worker within s 43A of the Workers Compensation Act 1987 (the 1987 Act) (suitable employment), and

   (c) whether, if the worker was not totally incapacitated for work at the relevant time, the worker 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)” within s 52A(1)(c) of the 1987 Act and is therefore no longer entitled to receive weekly compensation (s 52A).

BACKGROUND

1. Cynthia Jackson lives at Rylstone in country New South Wales. She worked for Cement Australia (Kandos) Pty Ltd (the respondent) (and its predecessors in title) from September 1990 until 1 July 2002. She was initially employed as a laboratory assistant and then as a central control assistant. In May 1995, she became a “central control utility”. It is not disputed that her work was heavy and physical, and required a lot of lifting, shovelling and other manual activities.

2. On 21 February 1998, Mrs Jackson suffered a compression fracture at T9 and T10 of her thoracic spine when she was thrown against the wall of a kiln at work. After a period on restricted duties, and while still wearing a back support, she returned to her normal duties in April 1998, which she continued despite constant…