P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonzo

The appeal concerned the interpretation of "incapacity" under section 16 of the *Workers Compensation Act 1987* (NSW). The appellant, P & O Berkeley Challenge Pty Ltd, in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd, sought to appeal a decision concerning the respondent, Mr Alfonzo.

The central legal issue before the Court of Appeal was whether Mr Alfonzo's incapacity for work, as contemplated by section 16, was solely determined by his physical or mental capacity to perform work, or if it also encompassed the availability of suitable employment.

The Court of Appeal affirmed the established legal principle that incapacity under section 16 of the *Workers Compensation Act 1987* is not confined to a worker's physical or mental ability to perform work. Instead, it extends to the worker's ability to obtain and retain employment, considering the prevailing labour market conditions. The Court reasoned that a worker is incapacitated if they are unable to obtain employment in the open labour market, even if they possess the physical capacity to perform certain tasks. This approach acknowledges the practical realities faced by injured workers seeking to re-enter the workforce.

The appeal was dismissed with costs.