JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
LOCATION: PERTH
CITATION: ROYAL PERTH HOSPITAL -v- MORRIS [2012] WADC 82
CORAM: COMMISSIONER GETHING
HEARD: 11 MAY 2012
DELIVERED : 11 JUNE 2012
FILE NO/S: APP 4 of 2012
BETWEEN: ROYAL PERTH HOSPITAL
Appellant
AND
HILARY ELAINE MORRIS
Respondent
Catchwords:
Work Cover appeal - Recurrent injury - Partial incapacity - Onus of proof
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 57A, s 62, s 178
Workers' Compensation and Injury Management Regulations 1982 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: Mr G Porter
Respondent: Mr M Lourey
Solicitors:
Appellant: Talbot Olivier
Respondent: Chapmans
Case(s) referred to in judgment(s):
Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20
Attorney-General (WA) v Schoombee [2012] WASCA 29
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Aziz v Tempo Services Ltd [2010] WASCA 39
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Combi v West Australian Meat Marketing Corporation Ltd Unreported CM‑37/03, (Hogan PM) 24 September 2003
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v R [1936] HCA 40; (1936) 55 CLR 499
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Kioa v West; sub nom Kioa v Minister for Immigration and Ethnic Affairs [1985] HCA 81;(1985) 159 CLR 550
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Liu v Inghams Enterprises Pty Ltd [2007] WASCA 134
Mayne Nickless Ltd v Mayne (Unreported, WASC, Library No 960736, 16 December 1996),
McGinnis v Westralian Forest Industries Pty Ltd (Unreported, CM-138/00 (Cockram PG) 9 February 2001
McGowan v Castrum Pty Ltd [2005] WASCA 198
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
MTI v SUL [No 2] [2010] WASCA 58
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Stettlement Agents Supervisory Board [2007] WASCA 97
Pratt v Metro Meat International Ltd (Unreported, CM-65/03 (Packington J R) 16 October 2003)
Ross v Corruption & Crime Commission [2008] WACC C15‑2008
Sinclair v Bickford [2011] WACC C5‑2011
Sotico Pty Ltd v Wilson [2007] WASCA 112
Steggles Pty Ltd v Aguirre (1988) 12 NSWLR 693
Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106
Westralian Farmers Co-operative Ltd v Bunce (Unreported, WASC, Library No 7691, 31 May 1989)
COMMISSIONER GETHING: By appeal notice dated 18 January 2012, the appellant appealed from a decision of Arbitrator McCahon on 22 December 2011. The arbitrator ordered the payment of weekly payments for a partial incapacity of 10 hours per fortnight in relation to an injury sustained on 22 January…
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- Case
- [2012] WADC 82
- Decision Date
CaseChat Overview and Summary
The court found that Mrs Morris had established a prima facie case that she was earning in suitable employment following the recurrence of her injury. The court held that it was well established law that where a worker was employed at the time of hearing for weekly payments and produced evidence of their earnings, this was prima facie evidence of earnings from suitable employment. The onus then shifted to the employer to show that the worker had a greater earning capacity. The employer did not produce any evidence to rebut the worker's claim that she could not work more hours due to her injury, nor did they produce any evidence that alternative duties were offered to the worker or that they were appropriate. The court found that Mrs Morris had made a proper claim for a recurrence of her injury, and the employer did not produce any evidence that alternate duties were offered to Mrs Morris or that they were appropriate to available.
In light of the above, the court upheld the arbitrator's decision in favour of Mrs Morris. The employer's appeal was dismissed, and the respondent's claim for weekly payments was successful. The court found that the employer had not successfully rebutted the worker's prima facie evidence of her earnings from suitable employment following the recurrence of her injury. The employer's failure to provide evidence that alternative duties were offered or that they were appropriate meant that the worker's prima facie case remained conclusive.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The arbitrator's findings in relation to the claim for partial incapacity are as follows [51] - [54]:It is well established law that where a worker is employed at the time of hearing for weekly payments and produces evidence of their earnings, then this is prima facie evidence of earnings from suitable employment. In that event the evidentiary onus of showing that the worker has a greater earning capacity shifts to the respondent employer. (See Combi v West Australian Meat Market Corporation Ltd (CM (WA), 37/03, 24 September 2003, unreported) and Pratt v Metro Meat International Ltd (CM (WA), 65/03, 16 October 2003, unreported).The cases of Aitken v Goodyear Tire and Rubber Company (AUST) Limited (1945) 46 SRMSW 20 and Novello v Zinc Corporation Limited (1988) 14 NSWLR 25 (and the authorities referred to therein) are authority for the proposition that the criteria 'earning' or 'able to earn' (as referred to in Schedule 1) are alternatives and that a partially incapacitated worker who provides evidence of earnings establishes a prima facie case that he 'is earning in suitable employment'. It is for the employer to then refute that prima facie evidence by demonstrating that the worker's actual earnings are not the proper test due to the worker being able to earn more in another occupation or position.In this matter I have accepted the evidence of Mrs Morris that she suffered an increase in her symptoms which led her to seek medical advice and reduce her hours of work from 50 to 40 hours per fortnight from 14 March 2011. On her own evidence she has established that, but for that partial incapacity, she would have continued to earn wages equivalent to 50 hours per fortnight as a registered nurse. The respondent did not challenge the proposition that the pre‑accident earnings of Mrs Morris equated to 50 hours per fortnight as a registered nurse. The thrust of the respondent's case was that she had the capacity, based on the medical evidence of Dr Silbert, to work 50 hours per fortnight and I have made findings inconsistent with that submission. The respondent did not produce any evidence to the effect that Mrs Morris could earn more in any other occupation or position. The respondent led limited evidence from Mrs Morris to the effect that she could undertake clerical, telephonist or similar duties with the respondent but led no medical evidence that established she had the capacity to do so, nor to what extent. I have found that Mrs Morris has made a proper claim for a recurrence of her injury and the respondent did not produce any evidence that alternate duties were offered to Mrs Morris or that they were appropriate to available.In the circumstances I find that Mrs Morris has established a prima facie case as to her earnings in suitable employment from 14 March 2011, and that prima facie case has become conclusive in the absence of relevant rebuttal evidence from the respondent. On this basis, the respondent's claim for weekly payments was successful.