Jackson v Cement Australia (Kandos) Ltd
[2012] NSWWCCPD 67
•15 November 2012
| 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
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
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.
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 pain in her upper back and left rib area.
On 21 February 2000, Mrs Jackson injured her right shoulder and jarred her back when she slipped off a ladder at work. She had surgery on her shoulder on 23 March 2001 and was off work for two months.
Mrs Jackson returned to work on 11 May 2011 on restricted duties for two days per week “helping the girls in the office” with filing, taking phone messages, attending the front counter, marking accounts receivable and occasionally typing letters and safety reports. Despite continuing back pain, which required her to “walk around”, and prevented her from sitting “in the same spot for very long”, and despite continuing shoulder pain, Mrs Jackson continued these duties for about one year. The respondent terminated her employment on 1 July 2002.
On 17 March 2001, in proceedings in the former Compensation Court of New South Wales, the respondent agreed to pay lump sum compensation to Mrs Jackson as follows:
(a) $4,000 in respect of six and two-thirdsper cent permanent impairment of the back;
(b) $2,100 in respect of three per cent permanent loss of efficient use of the right leg below the knee;
(c) $6,400 in respect of eight per cent permanent loss of efficient use of the applicant's dominant right arm at or above the elbow, and
(d) $5,000 for pain and suffering.
On 24 February 2004, the Commission ordered the respondent to pay Mrs Jackson weekly compensation at the maximum statutory rate under s 40 of the 1987 Act, as adjusted, from 1 July 2003 to date and continuing.
In 2010, the respondent’s insurer, Employers Mutual NSW Ltd (Employers Mutual), referred Mrs Jackson to an organisation called RemoteFocus, a division of WorkFocus Australia, who had her complete the “RemoteFocus Online Jobseeking Programme”. On 18 May 2011, Lauren Dredge, employability specialist with RemoteFocus, prepared a Labour Market Analysis Report in which she concluded, based on approaching nine employers who had not been seeking to hire new staff, that there was a weak labour market in the Rylstone region for customer service roles.
Anthea Berry, employment services product consultant with RemoteFocus, sent a copy of Ms Dredge’s report to Employers Mutual by email on 18 May 2011 stating that, overall, there was a weak labour market in the Rylstone region for administration assistants, receptionists and customer service roles. She added:
“Based on Activity Logs, the state of the labour market reasonably accessible to Cindy Jackson is also weak. In particular having regard to Cindy Jackson’s restrictions, our professional opinion is that Cindy Jackson’s failure to obtain employment is primarily due to the state of the labour market rather than the effects of her injury.”
Ms Berry recommended that the file be closed. RemoteFocus finalised Mrs Jackson’s “program” on 8 June 2011 and reported to Employers Mutual on that date that “[a]ll possible redeployment options have been exhausted” and that Mrs Jackson had completed 57 weeks in the RemoteFocus Program and “obtained the skills to independently job seek”. It added that Mrs Jackson had applied for positions throughout her participation in the program but had been unsuccessful in obtaining suitable employment.
On 2 September 2011, Employers Mutual served on Mrs Jackson a notice under s 54 of the 1987 Act giving six weeks’ notice of intention to cease payment of weekly compensation on the ground that, under s 52A(1)(c), Mrs Jackson had sought suitable employment but had failed to obtain such employment primarily because of the state of the labour market (rather than because of the effects of the applicant's injury). Weekly payments ceased on 14 October 2011.
In an Application to Resolve a Dispute (the Application) registered in the Commission on 7 May 2012, Mrs Jackson claimed weekly compensation from 14 October 2011 to date and continuing. The respondent filed a Reply on 22 May 2012 in which it relied on the s 54 notice Employers Mutual had served on Mrs Jackson on 2 September 2011.
The Arbitrator found that Mrs Jackson was partially incapacitated, that work she sought was “suitable employment” within the meaning of s 43A, and that the respondent had established that she had failed to obtain suitable employment primarily because of the state of the labour market rather than because of the effects of her injury.
Mrs Jackson has appealed the Arbitrator’s determination.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
THE LEGISLATION
Sections 52A and 43A were repealed on 19 June 2012 by the Workers Compensation Legislation Amendment Act 2012 (the Amending Act). However, an existing recipient of weekly payments, such as Mrs Jackson, remains entitled to compensation under Div 2 of Pt 3 (which included s 52A and s 43A) “as if the weekly payments amendments had not been made, but only until the weekly payments amendments apply to the compensation payable to the person as provided by this Division” (Sch 12 cl 6 of the Amending Act).
For workers who claimed compensation before 1 October 2012, the weekly payment amendments in the Amending Act do not apply until 1 January 2013. It follows that ss 52A and 43A apply to the present matter.
Section 52A provided:
“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 54 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 or 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.” (emphasis included in original)
Section 43A(1) provided:
“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.”
PRELIMINARY MATTERS
It is not disputed that, as at 2 September 2011, Mrs Jackson had been paid weekly compensation for partial incapacity for at least 104 weeks. Therefore, the precondition for the operation of the section had been met.
The respondent relied on s 52A(1)(c). To succeed, the respondent had to prove that, at the relevant time, Mrs Jackson:
(a) was partially incapacitated, and
(b) had sought suitable employment but had failed to obtain that employment “primarily” because of the state of the labour market rather than the effects of her injury.
While s 52A(2) provides that the “relevant time” is the time at which the notice under s 54 of intention to payment of compensation is given, that is not a fixed point in time, but covers a “period of time” rather than an “instant” or moment (Hughston v Hughston & Sons Pty Ltd [1999] NSWCC 35; 18 NSWCCR 312 (Hughston); J & K Bricklaying Pty Ltd v Brown [2009] NSWWCCPD 89).
In Hughston, Curtis CCJ found that, though the s 54 notice was dated 2 September 1998, the “relevant time” included the period when the worker was attending on employers in July and August 1998 and also searching newspapers to try to find work.
The wording of the second sentence in s 52A(2), which states that “[t]he discontinuation of payments under this section has effect even if, after the relevant time, none of the grounds for discontinuation applies to the worker” strongly suggests that, consistent with the submissions made by the respondent’s counsel (Mr Flett) at the arbitration (T14.10), the worker’s activities after the date the s 54 notice is given are generally irrelevant.
The Arbitrator seems to have accepted that activities after 2 September 2011 were irrelevant to the determination and found that the “relevant time” was from “about July 2011” until 2 September 2011. Neither side has challenged that finding.
TOTAL INCAPACITY
The Arbitrator’s reasons
The Arbitrator noted that Mrs Jackson’s general practitioner, Dr Ali, had certified her fit for suitable duties from 11 May 2011 to 11 August 2011 with the following restrictions:
(a) capable of working four hours per day four days per week;
(b) lifting up to four kilograms;
(c) walking up to 30 minutes;
(d) sitting up to 30 minutes;
(e) standing up to 20 minutes;
(f) travelling up to 30 minutes, and
(g) keying up to 30 minutes.
In certificates dated 27 October 2011, 13 January 2012 and 5 April 2012, Dr Ali certified Mrs Jackson totally unfit, but provided no explanation for his change from partial to total, save that these certificates added the diagnosis “PTSD 2011” and “seeing the Psychologist”. The Arbitrator observed that Mrs Jackson had not pleaded a psychological injury in the Application.
The Arbitrator then referred to the following medical evidence.
Dr David Wu, specialist anaesthetist, provided Mrs Jackson with pain management between March 2009 and 1 June 2011. He referred to Mrs Jackson’s suffering from depression, anxiety and stress. He also referred to other non-work related matters impacting on Mrs Jackson’s situation, including the involvement of her husband in a work related accident and his suffering from “post-traumatic stress” disorder, the death of her brother and the fact that she was waiting to see Dr Blom regarding treatment for her depression.
On 1 June 2011, Dr Wu noted improvement in Mrs Jackson’s lower back symptoms, but there was increasing concern about her pain in the mid-thoracic region. He said that Mrs Jackson had a “moderate level of functional disability”, which consisted of an inability to stand up for more than 20–30 minutes, sit in a chair for several hours, walk several kilometres, reach up to high shelves, run one block, bend over to clean the bathtub, pull/push heavy doors, lift/carry heavy items, difficulty with sleep and climbing a flight of stairs. She also had difficulty riding in a car, walking a few blocks, throwing a ball or making a bed.
The Arbitrator also referred to the evidence from Dr Lorraine Jones, consultant in rehabilitation medicine, who examined Mrs Jackson at the request of her solicitor and reported as follows on 1 March 2012:
“Mrs Jackson is severely limited because of her back pain.
She has very restricted capacity for work. She could do the duties as a receptionist with varied sitting and standing. However, I would not consider her fit for eight hours of work a day. I consider that she could work for four hours a day. This is because of the pain in her back and in her shoulder.”
The Arbitrator said that he had regard to Lawarra Nominees and to the submission that Mrs Jackson lived in a “vibrant community”, and had unsuccessfully applied for numerous administrative jobs in her area. He noted that she had learnt skills in telephone etiquette, mail responsibilities, communication skills, time management skills and general office duties.
He concluded, at [42]:
“Having regard to all of the evidence which I have summarised, I do not think that the applicant was at the relevant time totally incapacitated for work as submitted on her behalf. I accept certification of Dr Ali in his WorkCover certificate dated 11 May 2011 and also the finding of Dr Lorraine Jones that the applicant was partially incapacitated, and that she could work for four hours a day with restrictions, in the role of a receptionist. I think that she would also have been able to work in some type of administrative or clerical role with similar restrictions.”
Submissions
Mrs Jackson’s counsel, Mr Morgan, submitted that Dr Jones’s opinion was not expressed in the unequivocal terms stated by the Arbitrator and that, based on Lawarra Nominees, a finding of total incapacity is possible where there is some theoretical capacity for work. He argued that in determining if Mrs Jackson was in fact totally incapacitated, the Arbitrator should have had regard to the types of work in which Mrs Jackson was seeking employment, her limited experience, her extensive disability and the geographical location of her residence.
Mr Morgan added that the Arbitrator failed to give sufficient reasons for dismissing the application of Lawarra Nominees and appears to have proceeded on the basis that, as there was a “theoretical” capability for work, Mrs Jackson could not be classed as totally incapacitated. This was contrary to the evidence from Dr Jones and the realities of Mrs Jackson’s age, education and experience in a rural labour market where employment opportunities are dependent on some level of manual capacity.
The solicitor representing the respondent on appeal, Mr Edwards, who did not appear at the arbitration, submitted that the entirety of the evidence relating to the period from July to 2 September 2011 was that Mrs Jackson was fit for suitable duties and there is no evidence that she was incapable of work. Mrs Jackson seemed to be aware that she had such capacity as she had been seeking suitable work since at least March 2011.
Mr Edwards also relied on Lawarra Nominees and submitted that the evidence was more than sufficient, for the purposes of the 1987 Act, which is concerned with the “work of a particular kind or kinds and in a context which will produce income” (Lawarra Nominees at [30]), for the Arbitrator to find that Mrs Jackson had some capacity for work. As Mrs Jackson had undertaken further studies, she could “carry out such work on the appropriately sustained basis, on a basis such that [s]he would be able to obtain and hold such work” (Lawarra Nominees at [39]).
Mr Edwards submitted that it was “almost certain” that Mrs Jackson had some capacity to work at the relevant time. That capacity was “somewhere in the vicinity of four hours per day four days, having regard to the realities of the labour market in which she was to be engaged”.
Discussion and findings
The incapacity for work upon which the right to compensation depends is a physical incapacity for doing work in the labour market in which the worker was working or might reasonably be expected to work (Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171 at 177). In the present case, that market is Rylstone, a town 250 km northwest of Sydney. It has a population of approximately 23,000 and is close to other major population centres, namely, Mudgee, Gulgong and Kandos.
While RemoteFocus has suggested that there is a weak labour market in Rylstone, I do not accept that employment as a receptionist, administrative assistant or customer service officer in Rylstone is only a theoretical possibility, or that it is employment of an unusual kind that is unavailable to Mrs Jackson. Such employment is regularly available to workers and often available part-time. Mrs Jackson’s evidence about her efforts to obtain employment has established that such jobs were available in the Rylstone area at the relevant time. Those jobs included work as an administrative assistant with Mid-Western Regional Council and work as a receptionist with the real estate agency the Professionals.
While it is accepted that a minimal residual work capacity will not prevent a finding of total incapacity, the Arbitrator was entitled to have regard to the evidence from Dr Jones, a specialist in rehabilitation medicine, and to give that evidence considerable weight in reaching his conclusion. I do not accept the submission that Dr Jones’s opinion was not expressed in the unequivocal terms stated by the Arbitrator.
Mr Morgan’s submission implied that, when Dr Jones said that Mrs Jackson “could work [as a receptionist] for four hours a day”, she was referring to a theoretical possibility. The context in which the doctor’s statement appears in her report suggests the opposite. After taking a detailed history of Mrs Jackson’s injuries, and their impact on her, Dr Jones concluded that Mrs Jackson had a “very restricted capacity for work”, but “could do the duties as a receptionist with varied sitting and standing”. In other words, the doctor was stating that, notwithstanding her restricted capacity, Mrs Jackson would be able to do the work of a receptionist for four hours per day.
I do not accept that the Arbitrator failed to give sufficient reasons on this issue. He based his conclusion on the evidence of Dr Jones and, as I have noted, it was open to him to accept that evidence. It was also open to him to accept the evidence in Dr Ali’s initial certificates in preference to the doctor’s later certificates, especially in circumstances where that doctor did not explain his change of view in his later certificates.
Moreover, Mrs Jackson gave no evidence that work as a receptionist, or similar administrative work, was beyond her because of the effects of her injury. Her efforts to obtain that work strongly suggested that that was not her view and, importantly, that such work was available in the job market available to her.
In these circumstances, given there was no conflicting medical evidence for the Arbitrator to weigh and assess, the Arbitrator’s reasons were adequate to deal with the issue and the evidence presented. He articulated the essential grounds upon which this part of his decision rested and that was sufficient (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 McHugh JA (as his Honour then was) at 280).
The submission that, having noted Dr Jones’s opinion, the Arbitrator should have had regard to the type of work in which Mrs Jackson was seeking employment, her limited experience, extensive disability and geographical location is unpersuasive. Dr Jones dealt extensively with the nature and extent of Mrs Jackson’s disability, was aware of the kind of work she had sought, her work history and her place of residence. The Arbitrator was also aware of these matters and, given his acceptance of Dr Jones’s evidence, clearly took them into account in reaching his conclusion. In addition, though not referred to by the Arbitrator, given Dr Jones’s occupation, she may be taken to have been aware of the physical and intellectual requirements of work as a receptionist.
The question of whether, at the relevant time, Mrs Jackson was totally incapacitated, is one on which different minds might reasonably come to different conclusions. However, having regard to the Arbitrator’s reasons and the state of the evidence, I am not satisfied that he erred on this issue.
Though neither party raised it, a further reason why this ground of appeal could not succeed is that Mrs Jackson was receiving compensation pursuant to orders made by the Commission on 24 February 2004. Those orders were for the payment of compensation under s 40, that is, the award was for partial incapacity. That award could not be varied to be an award for total incapacity without an application for review under s 55 of the 1987 Act based on a change in circumstances and no such application had been made. As the Amending Act repealed s 55, it is now too late for such an application.
SUITABLE EMPLOYMENT
The Arbitrator’s reasons
At [52], the Arbitrator said:
“I think that the type of work for which Mrs Jackson was making application was suitable employment having regard to the meaning of that term in section 43A of the 1987 Act. In particular, having regard to the following matters referred to in subsection (1)(a)-(d) I note:
(a) the nature of the applicant’s incapacity and pre-injury employment were such that she could not return to that employment;
(b) the applicant’s age, education, skills and work experience were, pre-injury, in heavy labouring work. However, she expanded her education and skills after the injury and learned new skills including telephone etiquette, mail responsibilities, communication skills, time management skills and general office duties;
(c) the applicant’s place of residence is in Rylstone, in the general area of Mudgee, Bathurst, Lithgow and Kandos, and she sought administration/clerical/ receptionist work at those centres, and
(d) details given in the medical certificate supplied by the applicant, as I have found, according to Dr Ali and Dr Jones, at the relevant time she was capable of doing receptionist (and according to my finding administration/clerical) type work for four hours per days with restrictions.”
Submissions
Mr Morgan referred to Mrs Jackson’s age (53) and noted that her work experience had been exclusively in unskilled manual work. He noted that she had obtained some TAFE certification relevant to her job with the respondent prior to being dismissed, but progressed no further and only worked for a short period in the respondent’s office “helping the girls” once injured, but she had not worked since and had had no rehabilitation or vocational training.
Mr Morgan said that the respondent had called no evidence that Mrs Jackson had the relevant training or experience to perform the work as an administrative assistant, receptionist or customer service officer. There was no vocational assessment. Rather, the rehabilitation provider nominated these three positions as being suitable for Mrs Jackson based on the restrictions certified. It then conducted a “canvass to determine job availability”. There was no analysis or assessment of Mrs Jackson’s skill base or capabilities to perform that work other than a broad acceptance of “physical” restrictions rather than vocational capability.
Therefore, Mr Morgan submitted that the Arbitrator had no basis for deciding that Mrs Jackson was capable of performing such work. If there was a basis for his decision, he did not give proper reasons for accepting Mrs Jackson was so qualified.
Mr Edwards submitted that the Arbitrator correctly determined that the jobs of administrative assistant, receptionist or customer service officer were suitable for Mrs Jackson because he strictly adhered to the provisions of s 43A. Mrs Jackson has some physical capacity, has undertaken training, and has applied for administrative jobs. In the absence of evidence opposing the finding that Mrs Jackson was capable of performing certain work (eg administrative work), the Arbitrator was left with no other decision than the one he made.
Discussion and findings
The Arbitrator’s approach and conclusion disclose no error.
The evidence from Ms Dredge listed the restrictions noted by Dr Ali together with Mrs Jackson’s transferrable skills. She also listed the duties required of administrative assistants, receptionists and customer service officers. Mrs Jackson’s transferrable skills substantially matched the duties required in the relevant jobs and, subject to the restriction on hours and Mrs Jackson’s inability to sit or stand for prolonged periods, were generally consistent with Dr Ali’s restrictions.
Moreover, contrary to Mr Morgan’s submission, Mrs Jackson had had training (albeit limited and out of date) in office work and some experience (albeit limited to light duties work in a protected environment with the respondent) in that work. In her job applications, she said she had completed a Certificate in Computer Application for the Office and had a Certificate III in Administration. In her statement, she said she had worked in the office for the respondent for two days per week for about one year. In these circumstances, the fact that Mrs Jackson had no recent rehabilitation or vocational training was not determinative on the issue of suitable employment.
The fact that Mrs Jackson had not worked since 2002 and, by 2011, her skills were out-of-date, and her experience in customer service work was extremely limited is certainly relevant to why she has not obtained suitable employment, but it is of limited relevance to whether the jobs listed by Ms Dredge were suitable within the meaning of s 43A.
In the absence of any evidence that Mrs Jackson was not capable of performing the jobs listed by RemoteFocus, and she gave no evidence to that effect, the Arbitrator’s conclusion was open to him and discloses no error.
SECTION 52A
The Arbitrator’s reasons
The Arbitrator rejected Mr Morgan’s submission that he was not entitled to accept the evidence from Ms Berry and Ms Dredge. He said that Ms Dredge’s report provided evidence that, as at 18 May 2011, the various positions identified by her were not “currently available” with the employers listed. He noted that a number of employers reported that Mrs Jackson’s résumé should be kept on file for future opportunities that may arise.
The Arbitrator said (at [48]) that, understandably, none of Mrs Jackson’s job application letters mentioned the accidents in which she had been involved and that the “tone” of all the comments Mrs Jackson made in her Job Seeking Progress reports was “one of negativity in terms of success in job applications”. He did not make this observation to criticise Mrs Jackson, but “simply [as] a reflection of the result of her search for work during that time”.
The Arbitrator listed the following as examples of Mrs Jackson’s comments on her Job Seeking Progress reports:
“(a)Week ending 24-6-2011 (in response to an application for a Receptionist position or Road Administration Assistant):
‘restricted in this area with only 1 car & small community nothing available with admin positions in vacinity [sic] & with restrictions from drs which has been put in place [sic]’;
(a) 8-7-11: ‘no response from any positions I have applied … walked the streets of Rylstone as husband’s workplace just closed its doors so I asked for anything’;
(b) 15-7-11: ‘like I informed you before there is no jobs available in the area & now Cement Australia has closed its gates there are now another 98 out of work. So how am I able to find anything in our small community.’;
(c) 22-7-2011: ‘went to Lithgow all day today for interview for admin traineeship @ Charbon Coal Mine & no it is not in the restriction …
There is no jobs available in this area & now with the Cement Works closed business have dropped down 25%’, and
(d) 5-8-2011: ‘due to closure of our local cement works there is no jobs available around here.
Has [sic, have] surfed the internet for jobs & get daily emails from job websites for updates.’”
He said that the above comments were examples of Mrs Jackson’s reports on her job seeking “during the relevant time” and noted that the reference to the closure of the local cement works was to the closure of the respondent’s factory in mid-July 2011.
Dealing with this evidence, the Arbitrator said, at [49]:
“This evidence, read as a whole, does support the respondent’s assertion (the onus for proof of which is on the respondent) that [Mrs Jackson’s] attempts at seeking suitable employment failed primarily because of the state of the local labour market rather than because of the effects of [Mrs Jackson’s] injury. I do not accept [Mrs Jackson’s] submission that the comments in the reports above mentioned were ‘throw-away lines’ born [sic] out of the frustration [Mrs Jackson] was experiencing in her job search. I think they were an accurate reflection of what was happening to [Mrs Jackson] in that search.”
After concluding that the jobs listed by Ms Dredge were suitable employment within s 43A, and stating that, at the relevant time, Mrs Jackson had been seeking suitable employment, the Arbitrator added, at [53]:
“It is also particularly relevant in my view that she did not, in her job applications which are in evidence, (understandably) highlight any restrictions on her employability. Notwithstanding this, the uniform response which [Mrs Jackson] received to her applications for suitable work at the relevant time was negative. In this regard I note what was said by Judge Curtis in the unreported decision of Joseph Marmara v K Mart Australia Ltd, Compensation Court of New South Wales matter number 33127 of 2000 (13 November 2000) at [17]. In referring to the term in section 52A(1)(c) ‘because of the effects of the worker’s injury’, his Honour said that:
‘One of the effects of the injury is to tar the worker with the brush of a person who is vulnerable to further injury.’
In this case, on the evidence, [Mrs Jackson] did not give to prospective employers in her applications for suitable employment information which would lead those employers to think that she was vulnerable to further injury.”
The Arbitrator was satisfied that the respondent had established that Mrs Jackson had failed to obtain suitable employment primarily because of the state of the labour market rather than because of the effects of her injury. He then said that Mr Morgan’s submission that it would be stretching credibility to suggest that Mrs Jackson could not find work in the mining industries having regard to her pre-injury qualifications and experience was speculation only. He did not think there was sufficient evidence for him to find that Mrs Jackson would have found such work, uninjured, at the relevant time.
He felt that the weight of the evidence favoured a finding that Mrs Jackson failed to obtain suitable employment primarily because of the state of the labour market rather than because of the effects of her work injury.
Submissions
Mr Morgan submitted that the inference was that Mrs Jackson’s job applications were prepared “at the instigation of the rehabilitation provider and were couched in terms supplied by that provider, rather than being a true reflection of [Mrs Jackson’s] capabilities”. There was no evidence that Mrs Jackson was capable or qualified for these positions. Rather, the letters were “simply put through a rehabilitation provider’s word processing system”.
He added that Ms Berry’s email listed Mrs Jackson’s significant restrictions and said that the labour market in the Rylstone region for the selected jobs was weak. She added, “having regard to [Mrs Jackson’s] restrictions, our professional opinion is that [Mrs Jackson’s] failure to obtain employment is primarily due to the state of the labour market rather than the effects of her injury”. Mr Morgan said, “this invokes a tacit acceptance of the primary role played by physical incapacity”. Mrs Jackson was encouraged by the rehabilitation provider to chase jobs that existed, and the advertising of those jobs was testament to that fact.
Mr Morgan submitted that the Arbitrator erred in determining that Mrs Jackson had failed to obtain employment primarily because of the state of the labour market. She had limited, if any, skills that would be attractive to an employer as far as working in an administrative position was concerned and, as she had been out of the workforce for an extended period, little in the way of practical experience, particularly as it was revealed to any prospective employer.
He said that the phrase “the state of the labour market” in s 52A referred to where there was a dearth of employment rather than, as here, a worker applying for employment to which he or she was not suited, properly trained or skilled. It was the lack of training and skill base that led to Mrs Jackson’s failure to obtain employment. The Arbitrator failed to have regard to these matters.
The primary reason Mrs Jackson did not obtain employment was that she was making applications to employers who were confronted with a deskilled worker who had not worked in the area in which she was seeking employment and had not worked for a period approaching 10 years. The number of job applications Mrs Jackson made established that there was arguably a strong labour market and that, if she had the appropriate skills, she would have been able to obtain employment.
Mr Edwards submitted that the evidence from Ms Berry and Ms Dredge was the only expert evidence before the Arbitrator about the state of the labour market and he was entitled to accept it. Mr Morgan failed to address why the acceptance of this evidence was erroneous, but relied on ambiguous factual material regarding Mrs Jackson’s limitations and abilities and submitted that that material should have been more influential than the accepted expert evidence.
Mr Edwards said that Mr Morgan provided no evidence in support of the submission that the primary reason Mrs Jackson did not obtain employment was because potential employers were confronted with a deskilled worker who had not worked in the field and had not worked for 10 years. Where expert evidence was accepted, and not challenged on appeal, it was open to the Arbitrator to give that evidence more weight in his assessment of the s 52A issues and there is no error of law.
Discussion and findings
I agree that the “tone” of Mrs Jackson’s Job Seeking Reports was negative and that that evidence was consistent with other evidence that the job market in Rylstone was “weak”. However, that is not the test in s 52A. The test is whether the worker failed to obtain suitable employment “primarily” because of the state of the labour market rather than because of the effects of the injury. It is therefore necessary to look at the meaning of the word “primarily”.
In deciding the meaning of a word, the first question is whether the word has been used in its ordinary meaning, or whether it has a technical meaning. If the word has been used in its ordinary meaning, the next question is to identify that meaning and, last, to place that meaning into the statutory context, to “identify the proper construction of the provision” (OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155; 270 ALR 542 (OV) per Basten JA and Handley AJA (Allsop P agreeing) at [29].
As the word “primarily” in s 52A is used in its ordinary meaning, it is appropriate to consider the dictionary definitions, but it must be kept in mind that dictionaries are not a substitute for the judicial determination of the interpretation and construction of words used in documents and statutes (Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560–61, cited with approval by Mason P (Stein and Giles JJA agreeing) in House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [28].
With the above authorities in mind, I note that the Macquarie Online Dictionary defines “primarily”, as an adverb, as “in the first place; chiefly; principally”. As an adjective, its third definition in the Shorter Oxford Dictionary, 6th ed, is “[p]rincipal, chief, of major importance”.
Section 52A appears in Div 2 of Pt 3 of the 1987 Act. The heading of Division 2 is “Weekly Compensation by Way of Income Support”. Mr Flett submitted at the arbitration that its purpose is to identify weekly payments of compensation to which an injured worker is entitled, how it is calculated, and the effects that other influences from the outside have on those (T9.1).
Mr Flett noted that s 44 deals with a worker reaching 21 years of age and the way in which benefits are altered; s 45 deals with the reduction of weekly payments to qualify for other benefits; s 48 deals with compensation payable despite an existing incapacity; s 49 deals with weekly compensation payable despite holiday pay; s 50 deals with weekly compensation and sick leave; s 52 deals with termination of weekly payments on reaching retirement age, and s 52A deals with discontinuation of weekly payments for partial incapacity after two years.
Mr Flett correctly observed (at T9.24–29) that it is irrelevant that the worker’s old job is no longer available. He added, correctly in my view, that the section operates when a worker has been partially incapacitated for 104 weeks or more and has been looking for suitable employment but been unable to obtain such employment primarily because of the state of the labour market rather than because of the effects of his or her injury.
While s 52A is a restricting or limiting provision, workers compensation legislation is beneficial legislation and, as such, it should “be given a ‘fair, large and liberal’ interpretation” (AB v Western Australia [2011] HCA 42 at [24]). However, that does not entitle the Commission to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164; 66 NSWLR 400; 4 DDCR 42).
The use of the relative word “primarily” in s 52A, like the word “substantial” in s 9A, acknowledges that other causes may be relevant and that an assessment must be made of the strength of those causes to determine if the state of the labour market was the “primary” cause of the worker’s failure to obtain suitable employment. Bearing this in mind, and having regard to the context of the section overall, I believe that the word “primarily” in s 52A means “chiefly” or “principally”.
The Arbitrator properly noted that Mrs Jackson’s job applications did not refer to any restrictions on her employability and that, as a result, she had not given any prospective employers information that would lead them to think that, because of her injury, she was “vulnerable to further injury”. However, in considering why Mrs Jackson had failed to obtain suitable employment, the Arbitrator failed to have regard to the fact that, because of her injury, Mrs Jackson had been out of the workforce since 2002 and, because of that fact, had extremely limited skills and experience. It follows he erred in failing to consider if Mrs Jackson had failed to obtain suitable employment “chiefly” or “principally” because of the state of the labour market, rather than because of the effects of her injuries.
I have already noted that, at the relevant time, the labour market in Rylstone was weak and that Mrs Jackson’s “tone” in her Job Seeking Progress reports was, as the Arbitrator observed, “one of negativity”. However, it is critical to bear in mind that Mrs Jackson was applying for jobs in circumstances where, because of her injury, she had been out of the paid workforce for more than a decade. That is a substantial period out of the workforce for any worker, but is particularly significant in the case of a worker whose previous work experience was in unskilled manual work for 12 years with the respondent and, before that, eight years as a machinist with Berlei.
Mrs Jackson’s only relevant work experience in customer service was part-time work “helping the girls in the [respondent’s] office”. Such limited experience, followed by 11 years out of work, with no updated training, would not make Mrs Jackson a plausible job applicant, let alone a serious contender. Though she had obtained a Certificate III in Administration and a Certificate in Computer Application for the Office in 2001, she admitted in her job applications that she had not been given the opportunity to improve her skills since then. Therefore, her limited office and administration skills were significantly out-of-date.
Mrs Jackson’s time out of the workforce, her lack of relevant experience, and her seriously out-of-date and limited training, are all matters the Commission is entitled to take into account, without the need for expert evidence, in assessing her employment prospects. In assessing the “realities of the labour market”, the expertise of the Commission, as a specialised tribunal, is “particularly relevant” (O’Brien Glass Industries Pty Ltd v Bahmad [2001] NSWCA 224 Hodgson JA (Powell and Beazley JJA agreeing) at [28] referring to the expertise of the former Compensation Court of NSW). Moreover, as the respondent carries the onus on this issue, Mrs Jackson has no obligation to call any evidence.
To the extent that Ms Berry addressed the issue, she did so in terms of Mrs Jackson’s restrictions due to the injuries and her opinion was internally inconsistent. Her opinion that Mrs Jackson’s failure to obtain employment was primarily due to the state of the labour market, rather than her injury, was prefaced with the words “[i]n particular having regard to [Mrs Jackson’s] restrictions”. Those restrictions included extensive restrictions on the number of hours Mrs Jackson could work, her ability to lift, sit, stand, travel and key (see [27] above).
It follows that Ms Berry’s opinion involved the acceptance of the significant role Mrs Jackson’s restrictions (which were the direct consequence of her injuries) had on her ability to obtain suitable employment. In these circumstances, it is difficult to see how Ms Berry could then conclude that the state of the labour market was the “primary” reason for Mrs Jackson’s inability to obtain suitable employment, without considering the relative importance of the state of the labour market and weighing that against the effects of Mrs Jackson’s injuries. For this reason, I have not found Ms Berry’s opinion persuasive.
Ms Dredge’s report is also of limited assistance. Leaving aside the fact that it is dated May 2011, and is therefore well outside the relevant period found by the Arbitrator, it is hardly surprising that her approach to nine local employers did not reveal any suitable jobs. Not one of the employers she approached was looking for staff at that time. Given that other statistics are available to establish the strength or weakness of a particular labour market, her method was surprising. In any event, her evidence is not critical because there is other evidence that the labour market in Rylstone at the relevant time was weak.
On any objective view of the evidence, Mrs Jackson’s lack of relevant recent work experience, her lengthy time out of the workforce, and her limited training and skills, were significant reasons, in addition to the state of the labour market, why she was unsuccessful in obtaining suitable employment. In looking at her lack of recent training, I note in passing that RemoteFocus provided Mrs Jackson with no retraining or job skills, but only provided help in job searching. I infer, based on the different style in Mrs Jackson’s handwritten Job Seeking Progress reports compared to the style in the typed job applications, that RemoteFocus drafted Mrs Jackson’s job applications.
In all the circumstances, the Arbitrator erred in finding that the state of the labour market was the “primary”, in the sense of the “chief” or “principal”, reason for Mrs Jackson’s failure to obtain suitable employment. There were several reasons, not least of which were her time out of the work force, lack of experience and lack of recent training. In these circumstances, I am not satisfied that the state of the labour market was the “primary” reason. It follows that the respondent has failed to discharge its onus and has not established that Mrs Jackson failed to obtain suitable employment “primarily” because of the state of the labour market rather than because of the effects of her injuries.
CONCLUSION
The respondent has not made out its case under s 52A(1)(c) and Mrs Jackson is entitled to have her payments reinstated. It was not disputed that, if the s 52A argument failed, Mrs Jackson is entitled to an award under s 40 at the statutory rate for a worker with no dependants, as adjusted.
DECISION
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.”
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
15 November 2012
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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