Long v United Super Pty Ltd
[2014] VCC 2320
•18 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-13-02967
| ROBERT LONG | Plaintiff |
| v | |
| UNITED SUPER PTY LTD | First Defendant |
| and | |
| HANNOVER LIFE RE OF AUSTRALASIA LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2 October 2014 | |
DATE OF JUDGMENT: | 18 December 2014 | |
CASE MAY BE CITED AS: | Long v United Super Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2320 | |
REASONS FOR JUDGMENT
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Subject: Insurance
Catchwords: Total and Permanent Disability - Construction of Policy - Whether capacity for employment includes labour market analysis - Whether plaintiff made genuine effort to obtain work.
Cases Cited:Hannover Life Re of Australasia v Colella [2014] VSCA 205; Folan v United Super Pty Ltd [2014] NSWSC 343; Lazarevic v United Super Pty Ltd [2014] NSWSC 96; Savelberg v United Super Pty Ltd [2011] NSWSC 1482; Chapman v United Super [2013] NSWSC 592; Manglicmot v Commonwealth Bank (2011) 282 ALR 167; Hannover v Dargan [2013] NSWCA 57; Birdsall v Motor Trades Association [2014] NSWSC 632; Wiley v Board of Trustees, State Public Sector Superannuation Scheme (Unreported, Supreme Court of Queensland, White J, 3 April 1997); Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173; Citicorp Life Insurance Ltd v Smith and Anor [2005] FCAFC 102; Davis v Rio Tinto Staff Superannuation Fund Pty Ltd [2002] FCA 376; Oberlechner v Watson Wyatt Superannuation Pty Ltd [2007] NSWSC 906.
Judgment: For the Defendant
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | N Hassan | Shine Lawyers |
| For the Defendant | D Christie | Moray & Agnew |
HIS HONOUR:
Introduction
1 The plaintiff, while employed as a machinist with High Craft Windows was entitled to the benefit of an insurance policy of which the first defendant was the trustee and which had been issued by the second defendant. He sues for the sum of $64,000 being the total and permanent disablement provision of the policy. He challenges two decisions made by the second defendant denying him the TPD benefit and a later decision by the first defendant as the trustee confirming the earlier decision.
2 The immediate background to the claim is that the plaintiff, who was born in 1955, commented working with High Craft Windows on 4 April 2006 as a machinist. He ceased employment on 20 March 2007. He ceased work because he was suffering from back pain. He returned to work for less than a day in May 2007 and has not resumed his employment. The plaintiff made a claim under the Accident Compensation Act for compensation and was examined by a number of practitioners and vocational assessors in the course of that claim.
3 On 23rd of October 2009 the plaintiff lodged a claim for a total and permanent disablement benefit under the second defendant’s policy. The second defendant investigated the claim and was provided with various documents in support of the claim. In addition the second defendant obtained the employer WorkCover file of the plaintiff. On 2 September 2011 the second defendant requested Dr Mary Wyatt to examine the plaintiff and received a report from her. The second defendant also obtained a report from the plaintiff’s general practitioner Dr Whitty on 7 July 2009. The second defendant then on 30 January 2012 sent the plaintiff a letter setting out the material upon which the first defendant’s decision would be based and 6 February 2012 the second defendant resolved to deny the plaintiff’s claim. It sent the plaintiff a letter giving its reasons for denying the claim on 12 April 2012. In response on 23 October 2012 the plaintiff’s solicitors sent both defendants a letter seeking review of the decisions and on 1 November 2012 the second defendant sent the first defendant a letter giving its reasons for again declining the claim and on 3 January 2013 the first defendant again resolved to deny the plaintiff’s claim.
4 In response to the refusal by the defendants to accept the plaintiff’s claim under the policy the plaintiff issued these proceedings seeking to impugn the two decisions that had been made by the insurer and later confirmed by the trustee.
Relevant provisions
5 Clause 1.3 of the policy issued by the second defendant provided: “Total and permanent disablement” in respect of an insured person who was gainfully employed within the six months prior to the date of disablement is where:
“1.3.1The insured person is unable to follow their usual occupation by reason of accident or illness for six consecutive months and in our opinion, after consideration of medical evidence satisfactory to us, is unlikely ever to be able to engage in any Regular Remuneration Work for which the insured person is reasonably fitted by education, training or experience …”
The policy defines Regular Remuneration Work as:
“An insured person is engaged in regular remunerative work if they are doing work in any employment, business or occupation. They must be doing it for reward – or the hope of reward – of any type.”
(emphasis supplied)
Issues in the proceeding
6 The issues in dispute can be broadly classified into issues first, what was the correct construction of the policy to be applied by the defendants, and whether in reaching their decisions the policy had been correctly interpreted. It was argued that there was a distinction between work and work tasks. It was also argued that the policy was concerned with the ability to obtain actual remunerative work, rather than the theoretical capacity of the employee.
7 The second range of issues in dispute related to whether, in applying the policy the defendants had acted unreasonably and or had failed to act fairly towards the plaintiff.
Construction of the policy
8 The first construction issue was whether the insurer and subsequently the trustee had applied the correct interpretation of the policy. The first submission was that under the definition of Regular Remuneration Work the policy must be given a reasonable interpretation in the light of its commercial purpose. The plaintiff submitted that it followed from Hannover Life Re of Australasia v Colella [2014] VSCA 205 that there is a distinction between one or more work tasks and whether a person has a capacity to perform remunerative work. In that case at [30] Garde AJA said:
“[30]While the court in Hill was concerned with the interpretation of a determination under legislation relating to veterans’ entitlements, a number of salient principles emerge which assist in the interpretation of the TPD definition, and which I adopt in the present case:
(1) The word “any“ should be given its usual meaning.
(2) The expression “unable to do any work“ is concerned with the capacity of the person to perform remunerative work of a kind for which the person is otherwise suited.
(3) The capacity to perform remunerative work is different from the capacity of a person to perform a work task. It does not follow that because a person is capable of performing one or more work tasks that person has a capacity to perform remunerative work. A quadriplegic who is able to make a voice activated response to a telephone request is not disqualified from demonstrating that he or she satisfies the TPD definition.
(4) The capacity to do work is dependent, in part, on a person’s background, training and skills. A person is not able to perform work unless that person has the necessary qualifications, skills and experience to perform the work.
(5) To be practical and meaningful, the concept of capacity to perform work must be in the context of an occupation or employment recognised in the community. There is no useful concept of work outside of remunerative activity within the framework of existing occupations or employment.
(6) A person may have the capacity to perform work even though the occupation or employment is not available in the town or region in which the person lives. The test is not concerned with the availability of employment or work to the person — rather it is concerned with the person’s capacity to perform remunerative work for which the person is otherwise suited.
[31]Save in one respect, I reject Mr Uren QC’s submission that the trial judge erred in the construction of the TPD definition. The trial judge was correct to interpret the expression “any work“ to mean “any job“ — an expression which I take to be synonymous with “any remunerative employment“ or “any occupation“. He was also clearly correct when he described as unrealistic the isolation of “some aspect of the work, say filing documents“ followed by the conclusion that the person was able to “work“ in the face of significant injury that deprived the person of the capacity to perform the work in other respects.19
[32]It has been accepted that inability to perform work does not (apart from a short qualifying or refresher course) require a claimant to undergo a course of retraining in order to make him or her employable. Rather the assessment of TPD takes into account any job or occupation for which the claimant is reasonably fitted having regard to his then current education, training or experience.” (emphasis added)
9 The above extract is authority for the proposition asserted by the plaintiff, namely, that there is a difference between the capacity to perform remunerative work and the capacity to perform a work task. However, it must be emphasised that the comments are made in the application of a policy wherein the actual wording is different from the policy under consideration here. The definition considered in that case was concerned with whether the applicant was able to undertake work in his previous, or as defined, any other occupation. Here the definition is wider as it includes doing any work “in any employment, business or occupation.”
Next, the emphasised extract in (5) above must be modified so that it reads: There is no useful concept of work outside of remunerative activity within the framework of existing occupations or employment or business.
10 Further, paragraph (6) confirms that the concept of TPD is concerned with capacity and not with the availability of remunerative work however defined.
Does the policy call for a “labour market analysis”?
11 The central attack on the relevant decisions was that the plaintiff submitted that there has to be a real world common sense market analysis about the likelihood of the worker every being able to obtain remunerative work. It was submitted that the decisions in Folan v United Super Pty Ltd [2014] NSWSC 343, Lazarevic v United Super Pty Ltd [2014] NSWSC 96 and Savelberg v United Super Pty Ltd [2011] NSWSC 1482 supported this analysis. It was submitted that “able to engage in work” meant “likely to obtain work in the real world.”
12 In Folan, Nicholas AJ at [68] said:
“In my opinion, the phrase “ … is unlikely ever to be able to“ in the TPD definition focuses on the question whether it is improbable that the insured will ever become engaged in regular paid work. It requires an insurer to take into account, not just the theory that a person is physically fit to do particular work, but also the actual likelihood of that person obtaining regular employment for reward other than casual work or other work of an intermittent nature. Inherent is the issue whether the work, for which the insured is reasonably fitted by education, training, or experience is, in the real world, work which as a matter of probability is available to him (Nile v Club Plus Superannuation Pty Ltd[2005] NSWSC 55 paras 64, 65, 68 per Brownie J).” (emphasis supplied)
13 In Folan Nicholas AJ was considering a similarly worded policy. He adopted a similar approach in Savelberg v United Super Pty Ltd [2011] NSWSC 1482 where he applied the approach adopted in the case of Szuster v Hest Aust & Anor [2000] SADC 2.
14 In Lazarevic, Hallen J at [108] said:
“The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the Plaintiff would actually obtain paid employment for which he was qualified, by education, training or experience, and whether his condition disabled him from doing what he was qualified, by education, training or experience, to do. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory: Sayseng v Kellogg Superannuation Pty Ltd[2007] NSWSC 583, at [64]. Similarly, the concept must include that which is reasonably available and in an area in which it could be expected the insured, in the position of the Plaintiff, could reasonably apply.”
Consideration
15 In response, the defendants submitted that the cases relied on by the plaintiff added a gloss to the definition which was inconsistent with authorities. I agree.
16 I have referred above to the comments by Garde AJA in Colella. It is clear from the emphasised comments at (5) above that Garde AJA did not focus on the availability of employment as distinct from the capacity of the plaintiff to undertake that employment.
17 Such an analysis will also be consistent with the comment relied on by the defendant in Chapman v United Super [2013] NSWSC 592 at [50]:
“[34]Dargan [[2013] NSWCA 57] makes it clear at [37] that it is no bar to the finding that work is within the plaintiff’s education, training or experience that a short qualifying course of training or retraining may be required.”
18 In the same case Young AJ at [47] referred to the definition in the relevant policies as “an extremely hard one to satisfy.”
19 In Manglicmot v Commonwealth Bank (2011) 282 ALR 167 at [88] Giles JA, after an extensive review of the authorities, said:
“[88]The Hannover TPD clause defines total and permanent disablement. It is quite emphatic: the member must be unable ever to engage in or work for reward in any occupation or work. As further context, the member must have been absent from work for 6 months. Introduction of full time employment or part-time employment into the wording, notions which themselves carry uncertainty (what is the standard for full time employment?) is in my view not warranted. The clause requires unfitness to work, without distinction between full time work and part-time work other than by regard to the work which the member is reasonably capable of performing by reason of education, training or experience.
[89]There is nothing inherently unfair or unreasonable in the Hannover TPD clause as so construed. A member who can not work even part-time has a need; a member who can work part-time has a different need, and one which will vary according to the work the member can perform. The premium will be struck according to the need to be met, and that is found in the terms of the policy of insurance.”
20 In Hannover v Dargan [2013] NSWCA 57 at [47] the above comments in Manglicmot were expressly endorsed by Bathurst CJ who gave a decision agreed in by four other members of the Court. He also emphasised the need to carefully consider the actual words of the policy under consideration. While I accept that Nicholas AJ was construing a similar policy, I find that his interpretation imposes an unwarranted gloss on the policy that is inconsistent with the above discussion in Dargan, with the sentiments in Chapman, and with Colella above and Smith below.
21 In Birdsall v Motor Trades Association [2014] NSWSC 632 at [151]-[156] it was said that the work contemplated by the definition need not be the work engaged in before the injury, that the phrase does not exclude further reasonable training, and that a failure to secure an advertised job does not, without more information as to the steps taken to secure the job, lead to the conclusion that the plaintiff would not ever obtain work.
22 In giving the policy terms a reasonable commercial interpretation, this is important because the plaintiff is in a better position than the insurer to provide information as to the availability of work as defined. It is the plaintiff who is in the labour market testing whether he can obtain some work for which he is reasonably fitted by “education, training or experience” in any “employment, business or occupation”, on at least a part-time not casual or episodic basis.
23 The defendant also relied on a decision Wiley v Board of Trustees, State Public Sector Superannuation Scheme (Unreported, Supreme Court of Queensland, White J, 3 April 1997), where White J confirmed that:
“The test is that of capacity ever again to work in a job for which he is reasonably qualified by education training or experience not that there is a particular job available.”
24 The defendant relied on a linguistic analysis undertaken in Szuster at [74] that supports a difference between the phrases “able to engage” and “unlikely ever to be able to engage” to submit that the latter is concerned with capacity, rather than availability of a particular job. I accept that submission. The authorities relied on by the plaintiff have not addressed the linguistic difference.
25 The plaintiff relied on comments in Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 which have been followed in later cases. I do not accept that the decision is binding as it refers to full time employment in an occupation. As I have noted the definition here includes “business” which leaves open the possibility of self-employment. Further, in Dargan at [46] it has been held that capacity for part-time employment means that the TPD requirement is not met.
26 In any event, I regard the authorities relied on by the plaintiff as being inconsistent with the comments above in Chapman and Manglicmot.
27 In Citicorp Life Insurance Ltd v Smith and Anor [2005] FCAFC 102 at [16] and [24] it was held that when applying a policy that asked whether the applicant was “unlikely ever to engage in gainful employment for which she was reasonably qualified” the decision-maker was not required to identify a particular occupation in which she would be able to find work before it declined her claim, nor to have precise evidence as to the availability of suitable work. Similar comments were made in Davis v Rio Tinto Staff Superannuation Fund Pty Ltd [2002] FCA 376 at [21].
Conclusion: defendants’ construction of policy preferred
28 Having considered the competing submissions of the parties in relation to the interpretation of “unlikely ever to be able to engage” in work, I prefer the submissions and the cases relied on by the defendants. I am of the view that the New South Wales authorities of Folan, Lazarevic and Savelberg have imposed an unjustifiable gloss on the meaning of the above phrase. Those authorities are inconsistent with consideration of similarly worded policies in Dargan and Chapman and do not reflect the stringency of the requirements required to meet the test.
29 As I have indicated, in Colella in the emphasised passages referred to above, Garde AJA does not impose a market requirement. This is not surprising given that the definition of regular remuneration work refers to doing work in any employment, business or occupation. The term “business” means that the range of possible work that might be available to a member is arguably much wider than if the term is restricted to the member’s previous employment or occupation. In Sayseng another case relied upon, the definition did not include the term “business”.
“[U]nlikely” means a less than 50% probability
30 It was not disputed between the parties that in considering the TPD definition, the insurer was consider more than whether the evidence supports a possibility that the plaintiff would be able to engage in work as defined, but whether it supports a likelihood.
31 In a submission that was not contested, the plaintiff relied on comments from Lazarevic at [107] that “even if the evidence were to leave open a possibility that in the future an insured might be able to [follow his usual occupation], if it is nonetheless established that he or she was unlikely to be so able, that would be sufficient to make out the claim.” Further, under Folan at [73] factual information as to the actual likelihood of the insured obtaining regular employment, and also the probable availability of such work was required.
Did the insurer give genuine consideration to the claim?
32 It was common ground that the obligation of the insurer in forming an opinion as to whether the plaintiff was entitled to the benefit claimed was to give genuine consideration to the claim and make a realistic and reasonable assessment based on the whole of the evidence.
33 It was also common ground that the first limb of the policy had been made out, namely that the plaintiff had been unable to follow his usual occupation for a period of six consecutive months from when he suffered back pain. Thus the relevant date for consideration as to whether he was “unlikely ever to be able to engage in any Regular Remuneration Work for which [he] is reasonably fitted by education, training or experience” was 20 September 2007.
34 The plaintiff sought to impugn the insurer’s first decision under a number of headings essentially arguing that the insurer was not entitled to reach the decision it did on the evidence. It was submitted that the medical evidence did not enable it to reach a conclusion that it was likely that the plaintiff would be able to engage in work, as distinct from the possibility that he might be re-employed in the real world. Thus while the medical evidence indicated that the plaintiff might have a capacity to do work in alternative duties, provided he complies with certain restrictions, the insurer did not go on to assess whether there was work within the plaintiff’s education, training or experience, that avoids the restrictions, and whether in the real world he was likely to obtain regular paid employment doing such work.
35 The defendants’ response was that the plaintiff was seeking to engage in overzealous scrutiny of the reasons of the insurer and that the decision made was fully open on the evidence presented. The defendants emphasised that it was open to the insurer to rely on the most contemporaneous medical reports available.
Consideration- the medical evidence
36 The plaintiff carried the evidentiary onus to bring himself within the definition of TPD in the policy. In its first decision the insurer briefly reviewed the material upon which it was making its decision. This included the plaintiff’s prior employment history that included periods of self-employment before he commenced with High Craft Windows. It also noted that his GP Dr Whitty had on 5 September 2009 certified the plaintiff as fit for alternative duties of 4 hours a day with restrictions. It made reference to a report from an orthopaedic surgeon, Mr Polke, dated 12 March 2009 that the plaintiff was able to work in some alternative positions. It also noted a report from an occupational physician Dr Brown dated 2 June 2008 that the plaintiff had a capacity for employment but that this was a little restricted, and that he had the capacity to do the jobs listed in the vocational assessment report provided he can move his position.
37 The decision also considered a report from another occupational physician Dr Wyatt who opined on 6 October 2011 that the plaintiff was fit for a broad range of less physical jobs.
38 Having canvased the definitions in the policy the decision-maker concluded:
“a. It is reasonably ascertained from the medical information to hand that the member since 14 June 2007 remained incapacitated for his usual unrestricted pre-disability work duties as a wood machinist, in a full or part time capacity.
b. It is however, reasonably evident that the member, albeit his back condition and any secondary psychological overlay, continues to possess an ability and capacity to engage in less physically demanding vocational job options within his education, training and experience, although may not (sic) motivationally focused in pursuing a resumption of return to the workforce.
c. On this point, the courts have concluded that an insurer is entitled to assume that a member is highly motivated to obtain suitable paying work. A member is not permitted to bring about the unlikelihood of returning to work by his own wrong e.g. failing to make a genuine effort to return to work or putting it out of his power to return to work.
d. It is fair to say that reasonable retraining could be undertaken so as to initiate the member into new (sic) employment position. There is nothing within the ambit of education, training and experience to suggest that reorientation and on the job skills training, to a position that the member’s education, prior job-training and work experience has clearly established the foundations for, cannot be contemplated as a natural precursor to the member re-entering the workforce.
e. To this end, several suitable and physically appropriate job options were identified suited to the member by qualified professionals in their field of expertise, of which (sic) were subsequently supported by various qualified medical specialist of close proximity to the relevant Date of Disablement, and independently since such date at a much later point in time during 2011.
f. Both the Federal Court and Supreme Court of NSW accept that under the common definition of total and permanent disablement, a member is not disabled if the member is able to carry out part-time work, and therefore not totally and permanently disabled.
g. Accordingly, the evidence does not persuade Hannover Life Re to accept an opinion that the member is totally and permanently disabled in line with the policy definition stop the obligation to provide information establishing an entitlement to the TPD rests with the insured.” (paragraphs added)
39 The plaintiff’s submissions disputed that it was open to the insurer to reach this conclusion on the medical material. Rather, it was submitted that the mere medical opinions are not sufficient, the insurer must go the next step and consider whether these alternative duties are within his education, training and experience, and how likely it is to get them. The plaintiff submitted that by a process of elimination, when each of the medical opinions that have been relied on are considered, they do not provide support for the ultimate conclusion reached that the plaintiff meets the TPD definition.
40 Considering the matter in terms of the plaintiff’s capacity to engage in alternative duties, I accept the submissions of the defendants that on the medical evidence it was open to the insurer to reach the conclusions it did. As the defendant submitted, medical evidence proximate to 20 September 2007 was pertinent and relevant. On 16 January 2008 Mr Davie opined that the plaintiff had a current work capacity. He suggested that the plaintiff might be useful in a hardware business. He noted that “retraining to lighter sedentary work may be possible.”
41 An earlier report from another orthopaedic surgeon, Mr Kudelka dated 19 July 2007, stated that the plaintiff “has a reduced capacity for work. He is not unfit for all work but would be unfit for pre-injury duties as a Carpenter or any work involving bending …”
42 As I have noted the GP Dr Whitty was issuing a partial incapacity certificate, although in another document he was of the opinion that the plaintiff would not work again. Thus there is a conflict in his opinion.
43 Dr Brown suggested that the plaintiff should find alternative employment as soon as possible in his report of 2 June 2008.
44 I accept that another orthopaedic surgeon, Mr Jones, who examined in April 2010 stated that the plaintiff “is now a disability pensioner, and the chances of him returning to work as a carpenter/joiner would be just about negligible…[and] presumably will not return to any form of employment.”
45 When the above medical material is considered, I do not accept the plaintiff’s submission that it “does little to support a conclusion that Mr Long is likely to be able to engage in work. It does no more than recognise the possibility that there may be some other work that Mr Long might do, so long as that work accommodated the very serious restrictions he faces.”
46 I find that it is at least implicit in the contemporary medical examiners’ opinions, who were examining a plaintiff who had a broad occupational history that included periods of self-employment, and roles as a salesman and foreman, that from their experience, it was reasonable to expect that the plaintiff had the capacity to undertake some form of sedentary or light duties work utilising his past education, training or experience at the relevant ime for considering his TPD application.
47 It follows that it was open to the insurer acting reasonably to rely on that material as part of its overall decision-making process. In other words, my analysis of the medical evidence before the insurer is that acting reasonably, it was open to the insurer to reach a conclusion that the plaintiff’s back condition was not such as to totally incapacitate him for all work for which he might be reasonably fitted by reason of his education etc. on a regular part-time basis.
The competing occupational assessments-was it unlikely the plaintiff would secure suitable work?
48 It was the plaintiff’s submission that in refusing the claim the insurer had failed to grapple with the psychiatric evidence, the evidence as to work availability and job seeking efforts in the WorkStreams and Evidex reports, and the fact that the plaintiff had failed to succeed in obtaining employment.
49 In oral submissions little was made of the psychiatric evidence. The plaintiff was referred to A/Prof Wong on 2 April 2009 and in a report dated June 12 2009 the examiner opined that the plaintiff had an Adjustment Disorder and depression but that the pre-dominant cause of his incapacity for work was his back injury, not his depression.
50 Dr Jager reported to the WorkCover agent on 1 April 2009 that the plaintiff had a work related Major Depressive Disorder, and non compensible Alcohol Abuse in remission. He based his assessments on what he had been told by the plaintiff and made them subject to any contrary evidence such as surveillance. He found incapacity for work due to the psychiatric illness, but that he had a part-time capacity for say two hours per day in the late afternoon. In a second report dated 20 April 2009, he confirmed that the plaintiff could undertake the duties set out in a Vocational Assessment.
51 Any psychiatric condition did not appear to be seen as an impediment in the WorkStreams reports.
52 The defendant submitted that the psychiatric symptoms arose after the relevant date of 20 September 2007 and were not a likely or foreseeable consequence of the injury. A deterioration subsequent to the relevant date is not to be taken into account, and in any event, Dr Jager had expressly stated that with the plaintiff’s psychiatric condition he was capable of two hours employment a day.
53 I accept the defendants’ submissions. There is a passing reference to the plaintiff’s psychiatric condition in the first decision above “any secondary psychological overlay” but the condition features little in the other reports. It was the plaintiff’s physical condition that was impacting his work capacity at the relevant time, and that was how the parties applied the policy.
Job seeking reports and efforts
54 Before the insurer were reports generated in the course of the plaintiff’s WorkCover claim. These were reports that sought to assist the plaintiff to get back to his old job, and when a return to work plan failed, to obtain other suitable alternative employment within his physical limitations. Thus WorkStreams became involved from 13 February 2008 and undertook a Vocational Assessment. It commenced a JSA Jobseeker Plan on 21 May 2008, It commenced a NES Week 8 Job Seeker Plan dated 24 July 2008, and a 16 Week Plan dated 9 September 2008. After 26 weeks there was a report of an NES Worker Independent Job Seeker Plan dated 27 November 2008. It set out the job seeking efforts that both it and the plaintiff had undertaken in the period. That report noted that the plaintiff had current work restrictions of 4 hours work per day and no heavy lifting or prolonged standing or lifting. It stated that these were quite considerable restrictions to work around and reduce the number of positions of which the plaintiff can meet the job requirements. The report indicated that at that stage the plaintiff had the skills to be an independent job seeker.
55 The plaintiff submitted that where in the first decision the insurer concluded that there were positions available that the plaintiff was able to undertake with his physical limitations and his previous experience etc, the insurer had failed to properly consider whether in fact the plaintiff could perform all the duties required, and that when the evidence as a whole is looked at, whether the plaintiff would be able to get the jobs in the real world.
56 Finally on 29 January 2009 WorkStreams prepared a 130 Week Vocational Assessment Report. It was to review the plaintiff’s current capacity for employment and to determine suitable employment options. It canvassed the plaintiff’s past experience and transferable skills, as well as the medical opinions as to his physical capacity. It concludes:
“Based on the medical recommendations of Dr Whitty, Mr Davie and Mr Kudelka, WorkStreams are in the opinion that Mr Long would be suited to the vocations of Product Examiner, Product Tester, Assembler (light products), Packer (light products such as food or confectionery), Sales Assistant and Inquiry Clerk, even if it is sought on a part-time basis. It is anticipated that Mr Long will not require retraining to seek immediate employment with all of these redeployment options, as if any specific training is required, it is offered on the job.
WorkStreams however acknowledges that the possibility of Mr Long securing employment in the vocational redeployment options discussed in this report will be impacted by his pain and decreased functional ability, limited transferable skills outside the manufacturing industry and reduced driving tolerance.”
The plaintiff’s criticism of the insurer’s treatment of this report is that in relation to the possible jobs identified, it had to address the issue of the confidence with which the authors put forward those jobs.
57 Also in evidence and relied on heavily by the plaintiff was a report dated 10 December 2009 by a vocational occupational therapist, Ms Leitch of Evidex which had been submitted by the plaintiff’s solicitors in support of his inability to undertake alternative employment and his claim for a serious injury certificate under the WorkCover legislation. That report disagrees with the WorkStreams assessment and concludes:
“Leaving aside any psychological consequence of his physical injury, I conclude no commercially viable occupation in the open labour market for which Mr Long is likely to qualify meets the definition of “suitable employment” and this situation will continue for the foreseeable future.”
58 The plaintiff submits that the insurer has just not grappled with the content of the report that indicates that due to the plaintiff’s reduced functional capacity and physical restrictions, and few transferable skills there was no commercially viable occupation in the open labour market for which he is likely to qualify.
59 I disagree. I accept the defendants’ criticisms of the Evidex report and also those articulated in the first decision. The plaintiff is seeking to have the Court contest the merits of the conclusion of the insurer, and to determine the weight that the insurer should, rather than may place on any particular report.
60 First, in relation to the WorkStreams reports, it was a matter for the insurer to consider the extent to which the conclusions were to be weighed against the other evidence. In particular the reports were made in the context of a return to employment whereas the TPD test is in relation to incapacity for work as defined. Further the Evidex report specifically excluded from consideration wage subsidy positions which could allow the plaintiff to obtain a toehold with an employer in a position that was consistent with his functional limitations.
61 Next, the actual generic occupations considered were addressed in terms of whether part-time or self-employed positions were available. They are matters which the insurer was entitled to consider when the comments in para [e] of the first decision were made. As submitted by the defendants, the WorkStreams report indicates that there were a number of positions available in the metropolitan area in those occupations identified. In relation to a sales position it was recommended that the plaintiff test the labour market. Mr Davie suggested that the plaintiff could work at Bunnings.
62 Next, as indicated in para [e] the insurer was entitled to combine the contemporary opinions of medical practitioners with the opinions of the vocational assessors to reach a conclusion.
63 The Evidex report was prepared for a serious injury application and addresses whether the plaintiff is capable of suitable employment as defined. It is addressed to the position as at the date it is made, rather than at the relevant date, when the plaintiff was two years younger, and his skills less degraded. It addresses whether there is any work positions available on the basis of the plaintiff working a maximum of three hours a day for three days a week.
64 The insurer in the first decision at CB C16-17 criticises the Evidex report for failing to place any weight on the plaintiff’s history of self-employment and non-manual roles. That is valid in that the plaintiff in addition to utilising his trade as a carpenter/joiner has worked in sales and as a foreman as well as having his own business. That was a matter that was just not properly addressed in the Evidex report. The plaintiff in the agreed facts had worked in his own business for approximately 6 years between 2000 and 2006. While he might not have been in actual office, there were substantial office type activities that were just brushed aside or ignored in the Evidex report
65 Further, the decision-maker, having considered the Evidex conclusions preferred those of WorkStreams. That conclusion was one that was open.
66 Similarly, it is a matter for the insurer as to the weight it is prepared to give to earlier occupational skills and experience, and how any non-manual skills gained in the recent self-employment may be ultimately exploited. As was noted in Dargan above at [37] it is no bar that a short retraining course may be required. This is relevant to the conclusion in the Evidex report that the plaintiff was not a suitable candidate for any retraining. Leaving aside the failure to consider his non-manual skills and experience, this comment was being made over two years after the relevant date, and at a time some distance from when he had been involved in his own business.
67 Overall, having considered the Evidex report and the submissions made in support of it by the plaintiff, I reject the submission that the failure to accept its conclusions impugns the insurers’ decision. The gist of the criticism is that, in contrast to the Evidex report, the WorkStreams report and the opinions of Dr Brown and Dr Wyatt failed to specifically address the plaintiff’s functional limitations as they applied to the generic occupations discussed by both WorkStreams and Evidex. I reject this.
68 A simple example raised by the Court in argument shows that the analysis that the plaintiff would impose on the insurer is inconsistent with any commercial approach to the policy. In the Evidex report, the occupation of driver, in a generic sense, was said to be unsuitable for the plaintiff because of his limitations in sitting and lifting. Manifestly, however there must be positions as couriers where a driver drives from place to place, picks up a light parcel such as a blood sample and delivers it somewhere else. It is only through the plaintiff testing the labour market that he can ascertain whether he is able to obtain and then hold down such a position, but that is different from his capacity to undertake work of that nature.
Was the Evidex report commissioned to “distract” from the WorkStreams report?
69 The plaintiff pointed to an email by the claims assessor noting that the Evidex report was to “distract” from the Workcover assessments. The two reports were commissioned for different purposes. At the time that the Evidex report was prepared the plaintiff had long since given up any job search and was seeking a serious injury certificate on the basis of permanent loss of earning consequences. Whether the writer meant “detract” or “counteract” it is a fair inference that the report was designed to supplement and to an extent counter the conclusions in the WorkStreams report. The plaintiff is engaging in overzealous scrutiny of infelicitous language to seek to draw from the 3 November 2010 email that the decision-maker is giving the report less credibility just because it was commissioned by the plaintiff’s solicitors in the WorkCover application. When the whole paragraph in CB G1 is read, the decision-maker is essentially stating that she prefers the more contemporaneous vocational report than the specifically commissioned much later Evidex report. That is a conclusion that is open.
70 The second aspect of the attack on the insurer was that when Dr Wyatt was asked to report, she was not provided with the Evidex report and asked for a specific response to some particular positions.
71 It was submitted that this was unfair, it was withholding of relevant information, and a failure to consider relevant information.
72 I disagree. It was a matter for the plaintiff to make out his claim. It was open to the insurer to obtain its own opinion as to the capacity of the plaintiff for specific work in the light of his experience etc. When it sought that specific information from Dr Wyatt it did so in the knowledge that she had not seen the Evidex report. The decision-maker was in a position to weigh her opinion accordingly. The plaintiff’s solicitors in their letter after the first decision did not use this as a basis to impugn reliance on the report. As the insurer noted in the second decision it was able to obtain a second opinion from an occupational physician following its earlier report from Dr Brown.
73 Ultimately it was a matter for the insurer, having before it expert opinion on both the plaintiff’s functional limitations, and on his work capacity as defined, and the availability of such work, to determine what weight it accorded to the report.
Proven failure of job seeking efforts
74 The plaintiff submitted that the failure of the plaintiff to obtain a job despite 130 weeks of professional job seeking assistance was, on the authorities, a key guide as to whether the plaintiff was suffering from disablement and ought to have been considered and expressly grappled with.
75 It was clarified during the hearing that the plaintiff had in fact only been provided with 26 weeks direct assistance, and then had been classed as an independent job seeker. There was evidence that as at 24 July 2008,which was about twelve months after a failed return to work, the plaintiff had applied for 10 positions in the previous eight weeks but had not obtained any interviews. On 9 September 2008 WorkStreams reported that he had been looking for jobs in the local paper. On 27 November WorkStreams noted that in the previous 26 weeks it and the plaintiff had applied for several vacancies. In addition the plaintiff had identified vacancies and had cold canvassed employers. In February 2009 in its final report WorkStreams noted that the plaintiff had enquired for sales assistant roles at hardware stores however not much interest was shown when he advised of his work restrictions. There was no detail as to the number of approaches nor any specific response. In the Evidex report it is recorded that the plaintiff had “applied for many positions of employment including as a Machine Operator, Warehouse Packer, Quality Assurance Assessor and Process Worker.” It is not clear as to when this occurred, nor was there any detail as to why he was unsuccessful. The positions named appear to be those mentioned in the WorkStreams report. In his original TPD application the plaintiff refers to the WorkStreams list.
76 The defendant submitted that there was no evidence of what steps the plaintiff took to obtain the jobs to lead to the conclusion that he would not ever work again. Further, there was no evidence as to his job seeking activities after November 2008. That is important because the plaintiff himself admitted to Dr Wyatt that he had not been active in looking for work since ceasing with WorkStreams.
77 Ultimately, it is a matter for the insurer as to the weight it gives to the plaintiff’s unsuccessful job search in relation to whether he is unlikely ever to be able to engage in regular work. Implicit in the conclusions in paras [c]-[e] of the first decision is that the decision-maker did not accept that the plaintiff had made sufficient effort to obtain employment in the work options that had been identified.
78 In submissions the plaintiff emphasised that he had tried for the 130 weeks as recorded by WorkStreams. That was said to be sufficient. He did not have to continue indefinitely. The insurer submitted that in fact his attempts were limited in the 26 weeks and thereafter minimal and unspecific.
79 Reasonable minds might differ. Ultimately in the face of essentially undisputed medical evidence before the insurer that the plaintiff was capable of non-manual jobs at least on a part-time basis, for the plaintiff to satisfy the insurer that he was unlikely as distinct from possible, ever to be able to engage in work the depth and breadth of his job seeking effort was manifestly a matter that the insurer was entitled to consider.
80 In Birdsall at [156] the circumstances of a failure to obtain an advertised position were held to be relevant. In that case, however, there was evidence of the plaintiff’s “many attempts to obtain alternative employment.”
81 Given the paucity of the reasons why the plaintiff was unsuccessful in his job search, and indeed the actual details of the positions actually applied for, this is relevant to whether it was reasonably open to the insurer to reach the conclusion it did.
82 Here, while there is no doubt that the plaintiff did engage in a job search during the 26 week period, there is a lack of evidence as to his search thereafter. This lack of evidence, which is known only to the plaintiff, is relevant to the conclusions later drawn by Dr Wyatt and ultimately by the insurer in paras [c]-[e] of the first decision.
Was there unreasonable reliance on Dr Wyatt?
83 The plaintiff argues that the insurer has uncritically and unreasonably adopted and relied on the Wyatt report (“lock, stock and barrel”), when that examiner had not been given access to the Evidex report, had not addressed the WorkStreams reports as to the plaintiff’s job seeking efforts, where Dr Wyatt has not analysed the plaintiff’s capacity to undertake the actual positions described, and where the doctor seems to be asking the wrong questions.
84 The defendant’s response is that Dr Wyatt’s conclusions as to the plaintiff’s focus on getting back into the workforce is based on his own statement. Further, Dr Wyatt is not answering a question, she is providing an opinion.
Consideration: Dr Wyatt’s opinion’s open to her
85 I have considered the criticisms made of Dr Wyatt’s report but am unable to accept them. First, the examination took place four years after the relevant date. She had access to the WorkCover file, and an array of documents relating to the plaintiff’s condition. She also had the opportunity to examine the plaintiff and peruse the medical evidence in forming her opinions. In her opinion she characterises the nature of his condition and suggests that the condition is not out of the ordinary, and that the situation seems to have become complicated by other factors, including a lack of self-management. That is a professional judgment and opinion that in the absence of a competing opinion was one that the insurer was entitled to rely upon.
86 She opines that there “does not seem to have been a substantial focus on Mr Long improving his spinal fitness and a proactive approach to return to work.”
87 Having considered his occupational history she then opines as to his current work capacity as follows:
“Based on Mr Long’s back problem, I consider he is unfit to do a job which requires regular bending and a lot of heavy manual handling. He needs to be able to change his position regularly, and the opportunity to sit intermittently would be of benefit.
In terms of Mr Long’s abilities, he would not be fit to return to his pre-injury role, which he describes involving a fair degree of repetitive manual handling.
His previous work includes things such as running a bed and breakfast, which did involve manual work. It involved more flexibility in what he did over the day. Iit involves chauffeuring, cleaning and generally dealing with customers.
In his own business he was involved with quoting, administration and installation work.
Mr Long’s work capacity is reduced by his back problem. However, if he were focused on getting back into the workforce, I believe he would be capable of a range of jobs such as quoting work, sales work or working as a driver where he was not driving continuously.”
88 She is then asked as to her opinion as to his capacity to perform on a full or part-time basis a number of jobs with a timber/sales focus:
“Based on Mr Long’s spinal problem, medically Mr Long is fit for a range of less physical duties than working in a factory environment doing repeated bending and lifting. His work capacity is essentially matched by what he is doing at home these days.
His employability is reduced because of his back problem and history, but he is fit to do a broad range of less physical jobs. He is fit to do quoting work, customer service roles, inspection work as an estimator, and I believe he would be fit to do a range of duties such as work as a chauffeur when he is driving intermittently and having breaks intermittently. His back problem should not preclude him from returning to such a role on a full-time basis.”
89 She concluded her report as follows:
“Based on the history available, I think it is unlikely that Mr Long will return to the workforce but this should be differentiated from his capacity to do so. Medically, he has a common condition which should allow him to remain employable but in a less demanding role than his pre-injury role. However, he does not present to be focused on returning to the workforce, and is in the midst of dealing with claim issues. There does not seem to be a focus on returning to the workforce”
90 In considering whether the opinions in the report are reasonable or were open to Dr Wyatt, other evidence that she did not refer to is relevant. In particular, the early report from Dr Brown dated 2 June 2008 is consistent with her conclusions as to the plaintiff’s functional capacity. Similarly Mr Kudelka as at 5 June 2007 had suggested a graduated return to work but that in the long term there will be permanent restriction. That is relevant to her conclusion as to whether the plaintiff was focussed on returning to the workforce.
91 Similarly Mr Polke on 13 March 2009 had indicated that the plaintiff would be able to undertake various light duties positions identified. Also relevant is that during the period of the WorkStreams involvement the plaintiff’s GP Dr Whitty was providing a partial certificate of capacity. It was also the opinion of the WorkStreams assessor in his report of 12 March 2009 that while the plaintiff was unfit for his pre-injury work, “alternative work options have been referred to which he can undertake at this time.”
92 In circumstances where the medical evidence in the period immediately after the plaintiff ceased work and was under the assistance of WorkStreams supported his capacity to undertake light duties positions, then in the context of the relatively limited information as to unsuccessful job search endeavours the conclusion that there “does not seem to be a focus on returning to the workforce” is one that was reasonable. Alternatively, it was a not unreasonable conclusion reached by Dr Wyatt who had the benefit of actually interviewing the plaintiff and making an assessment. It is ultimately a matter of judgement as to whether a person is making or has made an earnest attempt to re-enter the workforce. There is no correct answer, and only Dr Wyatt had the benefit of examining the plaintiff. Here the plaintiff submits that Dr Wyatt reached an unreasonable conclusion on the evidence before her. I accept the defendant’s submission that the conclusion was open to her. From this it was open to the insurer to act on the opinion as part of the overall evidence before it.
93 If it was necessary to reach my own conclusion as to whether it was reasonable to rely on the report, I would reach the same conclusion on the material presented. A different conclusion might be reached had the plaintiff provided a detailed work attempt diary that evidenced repeated applications and noted the basis upon which he was unsuccessful.
94 Similar principles apply to Dr Wyatt’s conclusion as to whether the plaintiff was able to undertake the occupational duties identified in paras 8 and 9 of the report. The opinion was one of a judgment based on an assessment as to the plaintiff’s light work capacity, and then applying his occupational and work experience background to the identified positions.
95 Again this is a matter of judgement of the examiner based on her assessment of the plaintiff. It is a different exercise than that contained in the Evidex report which was produced for a different purpose, and based on different assumptions. In her final conclusion Dr Wyatt is noting that the plaintiff has a common condition that does not make him unemployable on a full or part-time basis. Implicitly this is a professional judgment based on the medical material and her examination of the plaintiff. It is a statement about capacity to engage in employment, not about the availability of actual positions.
96 On the material before her, the conclusion was reasonable, or not unreasonable. The insurer was entitled to act on the report in reaching its decision, to prefer it over that of Evidex, and to prefer her opinion as to the plaintiff’s capacity to undertake work duties over that of his GP.
97 It was said in Chapman at [49], a decision after Dargan, that where there was material that may have led the insurer to find that the test was made out, but there was other evidence that the condition was not as severe as claimed, and that some of the medical opinions “seem a bit too optimistic as to the plaintiff’s chances of obtaining even part-time employment. Whether this remark is accurate or not, the fact that the insurer had such advice from well-qualified medical experts means that it was entitled to act upon such advice.” In refusing to find that the trustee’s decision was unreasonable Young AJ went on to say at [54] that even though the defendant’s doctors “seem a bit too optimistic as to the plaintiff’s chances of obtaining part-time employment, there is material to suggest that part of the plaintiff’s problem is that he has so convinced himself that he cannot accept that he is now able to work part-time.”
98 Those comments are applicable here to an analysis of the reasonableness of the insurer’s conclusion.
Denial of procedural fairness regarding job roles?
99 The plaintiff submitted that he had been denied procedural fairness by the failure to provide him with copies of the positions upon which Dr Wyatt opined that the plaintiff was capable of undertaking.
100 The plaintiff’s solicitors were provided with Dr Wyatt’s report which makes reference to the positions and did not seek a copy. Further, it seems inutile to ask the plaintiff to comment on those positions as by the time Dr Wyatt was examining the plaintiff had been out of the workforce for some four years and had not applied for any job for some years. Dr Wyatt was providing a retrospective opinion as to his capacity to engage in work duties. In any event as submitted by the defendant, under Oberlechner v Watson Wyatt Superannuation Pty Ltd [2007] NSWSC 906 at [50] where an applicant is acting through a solicitor, as here, then he or she is bound by their conduct as to the seeking of further information and provision of material.
101 In relation to the first decision, I do not accept therefore that there has been any denial of procedural fairness associated with the job descriptions that Dr Wyatt was being asked to comment on.
102 Alternatively, following the first decision the plaintiff’s solicitors did make express comments about paras 8 and 9 of Dr Wyatt’s report but don’t appear to have made detailed reference to the actual position descriptions. Rather the submission made was that there was no vocational evidence that these jobs or types of jobs would be available on the open labour market.
103 Further it was submitted that if a person could not obtain work after an injury with the assistance of experts then the ability of that person to obtain work on the open labour market would be virtually non-existent.
104 Given that the plaintiff’s solicitors had the ability to seek the details of the positions, I do not accept that there was any denial of procedural fairness in relation to Dr Wyatt’s report.
Were unacceptable inferences drawn?
105 In the first decision, the insurer refers to surveillance of the plaintiff in the course of discussing Dr Brown’s report. Dr Brown in his report refers to inconsistencies in the presentation. It is not clear how the decision-maker relied on either the surveillance or the comment, although on one view the surveillance may have been a circumstantial fact in the ultimate conclusion that the plaintiff had failed to make a genuine effort to return to the workforce. If this was so, it was open to do so. Further, I accept the submission of the defendant that if any adverse inference was drawn in the overall factual matrix before the insurer it was of no moment.
106 The same principles arise over the comment recorded in the first decision that the plaintiff was thinking about volunteering at his local church to do handyman work. This came from a WorkStreams report dated 9 September 2008 and followed advice that the plaintiff had been looking for positions in the local paper. In a context where para [d] of the ultimate decision records the conclusion that the plaintiff could have undertaken reasonable re-training to re-enter the workforce, yet did not do so, or indeed volunteer, then it could be used as part of a circumstantial conclusion that the plaintiff was not focussed on returning to the workforce, yet was accepting that he did have the physical capacity to undertake handyman duties, albeit on a voluntary basis.
The second decision of 1 November 2012
107 This decision followed receipt of a long letter from the plaintiff’s solicitors that canvassed the first decision with extensive reference to authority, but did not seek to provide any further medical or other material. The letter predates the decision in Dargan and at times asserts that the test for TPD requires that an applicant be able to undertake full-time work. As indicated above, Dargan confirms that the test requires that it be unlikely that the plaintiff be ever able to engage in regular, as opposed to casual, part-time work as defined.
108 The letter takes issue with the preference given to the views of Dr Wyatt over those of Evidex in relation to the extent to which the plaintiff has “vocationally useful office skills.” In error at CB A36 it asserts that the plaintiff had not been in self-employment for over 20 years, when it appears from the agreed facts that the plaintiff’s business ceased shortly before he commenced employment in 2006 with High Craft.
109 In its review decision the insurer responds in general terms to the points made by the plaintiff’s lawyers. It records the difficulty it faced in assessing a claim that was made 32 months after the plaintiff ceased work and lacked supporting material. It defended its decision to rely on the WorkCover documents as providing “essential insight” into the plaintiff’s work history even though they were generated for another purpose. It defended the opinion of Dr Brown who had examined the plaintiff closer to the relevant date and then allowed Dr Wyatt to “draw a line of comparison from her own findings” when she examined. It then said:
“Based on the objective medical findings, a similar conclusion was formed that whilst the member would be unlikely to engage in the duties of his pre-injury occupation, the member was medically assessed to retain a physical capacity for a range of jobs.
[the decision refers to the plaintiff proposing to volunteer at his local church]
The fact that the member did not successfully secure further employment despite his alleged job seeking activities, does not necessarily equate to an inability to engage in suitable work duties due to an injury or illness. It is not evident from the documents to hand, as to whether or not the member did partake in any job seeking activities in earnest, as the job seeking activity was a requirement for the members continuation of his workers compensation payments, and as such the members level of motivation and presentation at time (sic) of applying for potential work could therefore questionable (sic).
To this end, the member is noticed to be focused primarily on his common-law court proceedings which would in our view, would have a bearing on any earnest job seeking activity undertaken by the member.”
[para [c] of the first decision relating to the requirement of the plaintiff to be highly motivated is repeated]
It is reasonably documented, and by the members only admission, that the duties carried out with self-employment were principally at administrative, and did not require any significant physical manual demands. We therefore dispute, Shine Lawyers assertion that these type of transferable skills should not be considered, when in fact our assessment does require an opinion formed with consideration to a member’s education, training and experience.”
The decision then goes on to confirm that all documents have been considered, and that “in our view the TPD definition requires a satisfaction of a capacity to engage in a suitable occupation and does not require the satisfaction of obtaining suitable employment”.
110 The plaintiff submitted that again the insured had focussed on whether the plaintiff had the capacity to engage in a suitable occupation, rather than whether he would attain suitable employment. It maintained that at best it was only possible that the plaintiff would ever able to engage in work.
111 It was submitted the reference to transferable office skills indicated a focus on work tasks rather than the ability to engage in a job. The insurer did not address whether given the plaintiff lack of recent office skills and physical limitations he is likely to be able to obtain an office job. The insurer had grasped on the possibility of the availability of some work without consideration of whether he was likely to obtain the work in the real world.
Can the two decisions be read together as reasonable or open?
112 The plaintiff’s complaints about the second decision are effectively particulars of his complaints about the first decision, and for the reasons set out above I am unable to accept them. It is a live issue in the claim as to whether the plaintiff has the physical capacity to undertake the positions identified during the course of the attempt to have him return to the workforce with the assistance of WorkStreams. As indicated above, and confirmed in the second decision, Dr Brown, an occupational physician, opined that the plaintiff was indeed capable of undertaking the job options that had been identified by WorkStreams. That specialist medical opinion was open to be accepted by the insurer. It was consistent with other contemporaneous material available to the insurer, including the opinions of Messrs Kudelka, Davie and Polke, and was consistent with the capacity certificate issued by his GP.
113 Although not specifically referred to, it is consistent with the fact that the plaintiff himself did actually apply for the positions that had been identified by WorkStreams, and he himself approached hardware stores for a position.
114 The conclusion of Dr Brown was consistent with the later opinion of Dr Wyatt. Acting reasonably it was open to the insurer to act on those opinions as it said it did in the two decisions.
115 The plaintiff complained that the conclusion as to likelihood was not reached upon the evidence. I do not accept that. The insurer had the evidence as to the plaintiff’s capacity from the medical practitioners, it had the evidence as to employment options in the WorkStreams reports, it preferred those over the Evidex report. It had the opinion of Dr Wyatt. It had the evidence, such as it was, of the plaintiff’s job search efforts. From all that evidence it was formed an opinion as to whether the plaintiff had searched in earnest. It then reached a conclusion as to whether it was satisfied he was unlikely ever to be able to engage in work.
116 I am unable to accept that that conclusion was not available on the whole of the evidence, or that it had been reached by unreasonable reliance on Dr Wyatt. It was not a decision that no reasonable insurer, faced with the evidence before it, could not reach.
117 The real nub of the complaint by the plaintiff is that the insurer could not reach the conclusion it did because it had not identified “real world” positions that the plaintiff would be likely to obtain. In the words of Lazarevic at [148] it was grasping at the possibility or theory of the availability of work.
118 I am unable to accept this. I have referred above to my analysis that the approach of the plaintiff places a gloss on the terms of the policy. Further, the plaintiff must bring himself within the definition. He has to satisfy the insurer that he was TPD at the relevant date. The insurer was making its decision within a contractual context that placed an obligation on the plaintiff to be highly motivated to seek to re-enter the workforce in some capacity on at least a part-time basis. In a context where the WorkStreams report had canvassed available non manual positions, some of which it identified might be available on a part-time basis, it was open to conclude that the plaintiff did not meet the test. Dr Brown’s opinion was one that it was open to the insurer, acting reasonably, to act on.
119 Further, in reaching that conclusion it was open to the insurer to give weight to the opinion of Dr Wyatt over the contrary views in the Evidex report. The plaintiff was a mature individual who had run his own business or been self-employed for considerable periods. By the relevant time his skills may have been degraded, but for an insurer considering the picture at that time that experience was a matter that Dr Wyatt was entitled to consider when she gave her opinion, and the insurer was entitled reasonably to act upon it.
120 For all these reasons, if the authorities required the insurer to identify positions in the “real world” before reaching a conclusion, then on the basis of the WorkStreams reports, and the positions referred to in the Dr Wyatt opinion, the insurer had done so, and was entitled to conclude that, with an appropriate level of motivation, it was “likely” rather than “possible” that the plaintiff would be able to engage in remunerative work as defined.
Was the insurer assessment driven by an unfair or unreasonable assumption that the plaintiff had failed to make a genuine effort to return to work?
121 The gist of the complaint here was that in the light of the efforts recorded in the WorkStreams reports, including the 130 week report, and in the Evidex report, and given that none of the WorkCover doctors doubted the genuineness of the plaintiff, it was just unreasonable and unfair for Dr Wyatt to conclude that there “does not seem to be a focus on returning to the workforce” and for the insurer in both decisions to reach a similar conclusion relying on that report.
122 The insurer in making the comments in the decisions is said to adopt the attitude that any person with a workers compensation claim on foot is to be presumed to not be genuine. The insurer was presuming this on the basis of prejudice and speculation in the face of the evidence from the doctors and in the WorkStreams reports.
123 I do not accept that the insurer has unquestionably and unfairly adopted, against the evidence the comments of Dr Wyatt. The defendants noted that it was the law that those on payments were required to seek suitable employment, and there was no evidence as to the steps taken to get jobs that would lead to the conclusion that he would not ever work again. There was no evidence of job seeking activities after November 2008.
124 As I have noted above, the opinion that the plaintiff was not focussed on return to the workforce was one of judgment by Dr Wyatt. The acceptance of that opinion or conclusion by the insurer, given all the other evidence, before it was again one of judgment. As I have also noted reasonable minds could differ.
125 Importantly I reject the submissions that the comments in the two decisions belie a failure to approach the issue without pre-judgment or fairly. The conclusion was open to the insurer on all the evidence.
Conclusion: insurer’s decision lawful and reasonable
126 For all the above reasons, and having considered the submissions and the cases referred to I reject the plaintiff’s attack on the insurer’s decisions that the plaintiff did not meet the TPD definition under the policy.
Has the Trustee breached its duties to the plaintiff?
127 The plaintiff submitted that not only had the insurer failed to properly apply the policy and had reached an unreasonable conclusion, but that, essentially for the same reasons, the trustee had also breached its separate duties to the plaintiff.
128 The defendant, on the other hand, submitted that under the policy it was for the insurer to form the relevant opinion, and the trustee is merely required to administer the trust in accordance with law. There is no other discretionary matter for its consideration. If the Court upheld the decision of the insurer then that was the end of the matter because the trustee could only act once the insurer had reached its decision.
129 I accept the defendant’s submissions. In this case for the reasons set out above I am satisfied that the insurer’s decision was lawful, was not the subject of any breach of duty to the plaintiff, and was reasonably open to it.
130 The trustee, after receiving a submission from the plaintiff, in two decisions reached the same conclusion. I am satisfied that it too applied the correct interpretation of the policy. It articulated in its decision that it was applying the policy on the basis of the same interpretation as that of the insurer, which I have found above was correct.
131 The decision of the trustee was open to it as a reasonable trustee, and did not involve any breach of trust or of its duties to the plaintiff. The case against the trustee fails.
Conclusion
132 I propose to dismiss the plaintiff’s claim against both defendants and will hear the parties on the question of costs.
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