Stebbing v State of Victoria (Department of Education and Training)

[2017] VMC 14

IN THE MAGISTRATES' COURT OF VICTORIA

AT MELBOURNE

G12084804

NICHOLAS STEBBING	Plaintiff
V
STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING)	Defendant

---

MAGISTRATE:	Magistrate B R Wright
WHERE HELD:	Melbourne
DATE OF HEARING:	13-15, 19 June 2017
DATE OF DECISION:	17 July 2017
CASE MAY BE CITED AS:	Stebbing v State of Victoria (Department of Education and Training)
MEDIUM NEUTRAL CITATION:	[2017] VMC014

REASONS FOR DECISION

---

Catchwords:

WORKERS COMPENSATION – Weekly Payments – Pre-Injury Average Weekly Earnings – Whether Voluntarily Altered Nature of Work Otherwise Than By Reason of Work-Related Incapacity – Incapacity for Work – Incapacity to Work - Workplace Injury Rehabilitation and Compensation Act 2013 s 154(2)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Ryan	Adviceline Injury Lawyers
For the Defendant	Mr M Richards	Minter Ellison

HIS HONOUR:

1       Mr Stebbing was formerly employed at Bayside P-12 College from about 2007 to mid-2015 as both a classroom teacher and a leading teacher.

2       On 14 January 2015 he lodged a claim form pursuant to the Workplace, Injury and Rehabilitation Compensation Act 2013 ("the Act") for "anxiety and depression" as a result of a "series of events over the course of his employment" as a E-learning coordinator which was part of his leading teacher role. That claim was accepted and he began to be paid weekly payments based on his leading teacher wage.

3 CGU (the authorised agent of the Victorian WorkCover Authority) received an email from the Principal at the Bayside P-12 College dated 21 April 2015 to the effect that Mr Stebbing had resigned from being a leading teacher as at 10 October 2013. CGU then reduced his pre-injury average weekly earnings (PIAWE) base to that of a classroom teacher as at 15 June 2015. It did so on the basis that pursuant to s154(2) of the Act that his resignation was "unrelated to his compensable claim".

4 It is this decision to reduce his PIAWE base, and thus his weekly payments, that is the subject of these proceedings. Both parties agreed that the applicability of s.154(2) was the sole issue to be determined in this case.

5 It is convenient to set out s.154(2) at this stage: -

"The relevant period, in relation to pre-injury average weekly earnings of a worker who, during the 52 weeks immediately before the injury, voluntarily (otherwise than by reason of an incapacity for work resulting from, or materially contributed to by, an injury which entitles the worker to compensation under this Act) -

(a) alters the ordinary hours of work; or

(b) alters the nature of the work performed by the worker -

and, as a result, the worker's ordinary earnings are reduced, does not include the period before the reduction takes effect."  (emphasis added).

6       It is important to note that at all times material liability was admitted for his injury. In fact, he was paid 130 weeks of weekly payments until 10 September 2016, but not beyond, as he continued to work as a classroom teacher at all times save and except for very limited periods.

7       Counsel for the defendant quite rightly assumed the burden of proof in this case.  It was agreed that if Mr Stebbing's work-related injury at least materially contributed to his decision to resign as a leading teacher, then it could not be said he "voluntarily, otherwise altered the nature of work performed by him" prior to that resignation.

8       In short, it would be necessary to show that the resignation as a leading teacher had nothing to do with his work-related injury.  To that extent it is alleged that he resigned "because he wanted to focus on his classroom teaching, his young children and his house renovations" according to the letter sent from his principal.

9       Because of the limited nature of the dispute in this case and the fact that liability for his work-related injury has been admitted at all stages, it is not necessary to give a lengthy history of Mr Stebbing's employment and the problems which gave rise to his injury.

10      He had started working as a leading teacher from about 2011. In late 2012-early 2013, he did classroom teaching but on a limited basis and was also a leading teacher.  As such he was involved in curriculum and timetable planning, as well as being the E-learning coordinator chairing the appropriate in-house committee. 

11      In that role he was also involved in coaching teachers in IT teaching and dealing with the school's IT technicians who were supposed to implement changes to the school's IT system.  He said he had difficulty with those IT technicians for some years.  He thought they were obstructive in delivering changes to the school's' computer set up. 

12      At the end of 2011 he felt tense. He went to a Footscray clinic and was prescribed Valium which did not help.

13      On 1 November 2012 he put in a formal complaint to the overall principal, Mr Harnett, and local principal Mr Evans as to "interpersonal problems" in the E-learning committee, especially the IT technicians, alleging non-cooperation and even bullying by them.  He was told that the IT technicians had been spoken to, regarding those issues.

14      At the end of 2012 he decided he would have to leave the E-learning committee.  However, he still had to deal with the IT technicians as part of his curriculum committee role.  The website was due to be enhanced in 2013.  However, there were further problems and the website was taken down while he was coaching teachers on one day.

15      On 6 March 2013 he went to his GP, Dr Murphy, because of his "distressed" psychiatric state, involving aches and pains, lack of energy and loss of concentration.  He was angry with his family and drinking excessively.  He was given two days off. 

16      On his return to work he spoke to Mr Evans who told him he did not think he had been bullied, despite Mr Stebbing stating that he had told him so beforehand.  Mr Evans told him he would resolve the technical problems by Mr Stebbing having no involvement in technical issues.  Mr Stebbing said he felt devastated as he knew he would continue to have problems with the IT technicians anyway.

17      His GP put him on a mental health care plan on the basis that the GP would give him psychotherapy treatment.  He felt distressed again and put in a second complaint giving a very lengthy and detailed history of his difficulties with IT technicians.  In view of Mr Evans' denial of any bullying, Mr Stebbing thought the complaint would probably be a waste of time. He began looking for work elsewhere as he felt bullied and frustrated by the conduct of the staff.

18      He applied for a classroom teaching role at Ascot Vale Special School in May 2013 and said Mr Harnett told him he would be paid at a wage towards the top of the classroom teacher role. Mr Stebbing was told by Mr Harnett that he was happy that Mr Stebbing would be leaving.  He got the job at Ascot Vale but was worried he would fail and lacked confidence in his ability to deal with disabled children. He lasted one day and resigned. He returned to Bayside after Mr Harnett allowed him to withdraw his resignation.

19      He returned as a leading teacher and thought he would give it a try again.  He was referred to a psychiatrist, Dr Kaplan, on 28 May 2013 but did not follow up that referral as he wanted to deal with the work situation himself.  Mr Harnett arranged for an independent mediator to deal with the issues between the IT technicians and Mr Stebbing.  Mr Harnett was aware of his problems and suggested EAP (Employee Assistance Program) through the Education Department.

20      Eventually, a mediation agreement was signed on 23 July 2013.  Mr Stebbing believed that he and the IT technicians could work together on the E-learning committee.  Mr Evans, who was on the committee as well, wanted them to get the website project working as a matter of priority.  A design brief for the website was prepared. 

21      However, the IT staff would not cooperate, refusing to attend weekly meetings and cancelling pre-arranged meetings. They were also uncooperative in meetings according to Mr Stebbing. He said his health deteriorated further. The two principals were not dealing with the issue and believed that it was his fault because he would not compromise.

22      He told Mr Evans that the IT technicians were not abiding by the agreement.  He had several meetings with him and thought that Mr Evans was sick of the situation and not supporting him.

23      He decided he had to do something as he was embarrassed by the fact that the situation was affecting his health.  After discussing the situation with his wife, he decided he would resign as a leading teacher. He went to Mr Harnett on about 7 October 2013 and told him he needed to step out of the E-learning and leading teacher roles.  Mr Harnett said that he had expected this would happen.

24       Mr Stebbing said he told Mr Harnett he realised there would be a salary cut, but Mr Harnett repeated he should expect to be paid at the top range of a classroom teacher salary.  There was some small talk on that occasion about his family, his home renovations and children but Mr Stebbing denied that this was a stated reason for him resigning. He said he did not specifically mention the IT problems as the reason for leaving. In a written statement tendered separately to me in evidence, he said it was necessary for his health and the welfare of his family that he did in fact resign. 

25      He was to continue as a leading teacher for the rest of the year and have a role on IT issues. It was decided he be a classroom teacher in the following year, that is 2014. Meanwhile, he continued to work on the website project and again had difficulties with the IT technicians.  He even continued to work on the project over the Christmas 2013 period as Mr Evans told him to work on the website as a matter of priority.

26      He was called in by Mr Harnett and told there would be no timetable role for him in 2014 and he had decided to replace Mr Stebbing as a leading teacher in his two separate roles.

27      On about 17 December 2013 he was officially told that his salary would be much less than what Mr Harnett had led him to believe.  Mr Harnett denied telling him in the past that his pay would be at the top of the classroom teacher level.

28      Mr Stebbing decided he would not be able to even pay off his mortgage on the lower wage and thus could not afford to work as a classroom teacher only. 

29      

He asked Mr Harnett if he could stay on as a leading teacher as he had not put in a written resignation. This was refused. He was offered a one off $5,000 payment to assist him. On union advice he took the issue of his non-formal resignation to the Merit Protection Board in order to continue as a leading teacher. This application was rejected by the Merit Protection Board on

23 January 2014.

30      Because of the financial pressures of working only as a classroom teacher he had to sell an investment property to pay his mortgage. 

31      He went on to .8 hours on the advice of Dr Murphy, taking a day's sick leave per week because of anxiety and depression. Later in the year he went on to .6 hours.  He found some initial improvement in 2014 but his condition was up and down in that year.  He still had to deal with the IT technicians and had trouble dealing with software issues with them as well as Mr Evans. His access pass to the computer system was withdrawn causing difficulty for him in teaching IT students.

32      As stated, he lodged his workers compensation claim in January 2015 which was admitted. His claim was reviewed by reducing his PIAWE base amount in May 2015.  

33      He changed schools twice in 2015 and 2016 working from .4 hours to .8 hours, and in 2017 is working as a full-time classroom teacher at Truganina College.  He is still on Aropax which was initially prescribed in January 2014 and has psychotherapy about once per fortnight with Dr Murphy.

34      In cross-examination he said he has two children now aged seven and four years old.  His wife returned to teaching in 2014 on a .4 hour basis after being on maternity leave in about 2013.  He said there was no renovation work being done to the house in 2013.  It had adequate heating and other services at the time.  He agreed the reduction in his wage was very stressful for him. 

35      He was working long hours in 2013 with a basic thirty-seven and a half hours per week (including limited teaching hours) as well as having to work up to three hours per night and twelve hours at weekends.

36      More importantly, he was cross-examined about his lack of medical treatment in the second half of 2013, admitting that he did not attend Dr Murphy in that time.  He said he had hoped that matters would resolve after the mediation. His condition had improved after having the panic attack when he went to the Ascot Vale school.  He was hoping after the mediation that matters would resolve with the IT technicians.

37      By 7 October 2013 things had not improved and he saw Mr Harnett about stepping down from the leading teacher role. He agreed that he did not specifically complain to Mr Harnett about his stress problems with the IT technicians then.  He agreed he spoke to Mr Harnett about his renovations, his desire to work as a classroom teacher and to spend extra time with the children in general conversation with Mr Harnett at about that time. 

38      However, he denied those issues were, or that he told Mr Harnett, reasons for his desire to step down as a leading teacher. He was adamant that this was simple small talk at the time. He believed those issues would benefit from his decision to step down, but were not stated as actual reasons for doing so. He saw them as a benefit from stepping down. He did not specifically tell Mr Harnett of his stress at the time. Mr Harnett knew of this ongoing issue because of their dealings up to then.

39      He now knew that Mr Harnett denied telling him that his wage would be at the top of the classroom teacher range, but was adamant Mr Harnett had in fact done so. As stated, he agreed that the actual lower wage as a classroom teacher was the reason why he attempted to withdraw his resignation. He stated the offer of $5,000 was because he would have to perform extra duties in 2014 without being paid accordingly in order to transition a new person into the role eventually.  He agreed that if he had been allowed to withdraw his resignation he would have had to work as a leading teacher for monetary reasons and try to reduce the stress somehow.

40      He agreed his condition became worse because of the loss of pay, and the disagreement with Mr Harnett about his pay promise as well as the Merit Protection Board process. He agreed that Mr Harnett had never later acknowledged any mistake about telling him of the projected wage. After January 2014 he continued to see Dr Murphy regularly about his stress.

41      

The next witness was a teacher Rosemary Joslyn who worked with

Mr Stebbing at Bayside to the end of 2013. She dealt with him regularly as he was the leading teacher involved with curriculum and IT issues. He actually reported to her. She was aware that he was having problems with his IT team.  His performance deteriorated over time and he became quite anxious. He had been usually a gentle and placid person. He reported his problems to her weekly or fortnightly and it appeared he was distressed. 

42      He told her the Principal had not supported him. She in fact encouraged him to apply to go to another school in May 2013. At the end of 2013 his health was deteriorating and he was stressed and not able to maintain his leading teacher role. She knew his wage would drop after giving up the leading teacher role, but had no dealings with him as she left the school at the end of 2013. 

43      She was not able to give much evidence as to any inability to work or the mediation as she was not involved. She believed that Mr Stebbing had been bullied in his meetings with the IT staff.

44      Counsel for the defendant called one witness only, Mr Harnett, the overall principal of Bayside P12. Mr Evans was the campus principal at Altona North and was involved with the E-learning aspect with Mr Stebbing. Mr Harnett saw the initial bullying complaint by Mr Stebbing in November 2012 and decided to initially deal with it informally as per Education Department guidelines.

45      Eventually, as they did not get far in that process, an external mediator was later engaged.  He knew Mr Stebbing as a leading teacher and he had responsibility for E-learning and IT implementation.  He would speak regularly to Mr Stebbing.  Mr Stebbing applied to go to the Ascot Vale Special School in about May 2013 in a classroom teacher role.

46      He denied discussing anything about pay rates at Ascot Vale with Mr Stebbing.  Mr Stebbing came back to him after one day at Ascot Vale and said he wanted to return to work at Bayside.  As they had not advertised for a replacement for Mr Stebbing, they accepted him back in a leading teacher role. 

47      Mr Stebbing had timetable responsibility which was a demanding job involving up to 120 to 130 staff.  Mid-year in 2013 was a busy time then as planning was being undertaken for the next year.  Mr Stebbing appeared to be doing a good job in that role.  Mr Stebbing had other responsibilities apart from his classroom teaching role. 

48      The external mediator was arranged after he received the second lengthy written complaint about May 2013 from Mr Stebbing. Mr Stebbing and the IT technicians signed off on a mediation agreement after the mediation was arranged.  Mr Harnett thought the mediation had been successful. He continued to speak to Mr Stebbing weekly. He did not complain about any problems to him and appeared to work well.

49      On about 7 October 2013 Mr Stebbing approached him and said he did not want to continue as a leading teacher.  According to Mr Harnett, he said he had two young children and wanted to focus on his classroom teacher role.  He remembered telling Mr Stebbing that "family should come first."  He said there was a general discussion about a cut in Mr Stebbing's pay as a classroom teacher, but denied telling him his pay would be much the same. 

50      Mr Stebbing continued working as a leading teacher until the end of 2013.  His performance was good up to then. However, in 2014 his work on the timetable was poor and other people had to be brought in over the Christmas break to work on it. 

51      He agreed he saw an email to him from Mr Stebbing dated 19 December 2013 stating "perhaps you could use your discretion to have me placed on the salary we thought I was going to get when I made the decision to resign." Mr Harnett replied it was not possible.  Mr Stebbing then asked to continue as a leading teacher, which was not possible as he had already resigned. He offered Mr Stebbing a one-off amount of $5,000 but Mr Stebbing took the matter to the Merit Protection Board. He returned to Bayside as a classroom teacher but Mr Stebbing had little contact with him after that. 

52      In cross-examination he agreed that Mr Stebbing had been under significant stress from November 2012 because of dealings with the IT technicians.  There was no mediation on the initial receipt of the November 2012 complaint as he thought it could be dealt with informally.  He agreed that Mr Stebbing was having difficulties with the website project to about October 2013.  He was asked about Mr Stebbing's stated difficulties in having his IT access revoked in early 2014 but said that this was because he was not on the committee and he had no need for continuing access.  It was better to restrict access to only those people involved.

53      That completes the lay and oral evidence in this matter. Again, in view of the admission of liability and limited nature of the issue involved, I will not go through the medical material in great detail.

54      The clinical records and some medical reports from Dr Murphy were tendered.  There was an initial attendance on 6 March 2013 in which he complained of anxiety associated with bullying for six months and uncooperative technicians.  The next day a mental health care plan was prepared for Dr Murphy to conduct psychotherapy.  There were a number of further consultations between March and May 2013 in which Mr Stebbing kept him up to date with the progress of the bullying allegations and intended transfer to another school. 

55      On 28 May 2013 he told Dr Murphy he was allowed to withdraw his resignation and Dr Murphy noted on examination he was "improved". However, he prepared a referral to Dr Kaplan, a psychiatrist, on that date anyway. Mr Stebbing did not return to that clinic for treatment until 2 January 2014 when he informed him of financial difficulties caused by the drop in wages.

56      Mr Stebbing continued to attend on a number of occasions in January 2014 with acute stress and anxiety and depression which he related to his work circumstances including the wage drop and the Merit Protection Board hearing. He has given him further psychotherapy and prescribed Aropax, an antidepressant.

57      For the balance of 2014 Mr Stebbing saw Dr Murphy approximately every two to four weeks for psychotherapy informing Dr Murphy of continuing problems at work leading to stress, including continuing problems with the IT technicians, the principal and other work issues.  He was teary and despondent at times in those consultations. 

58      Eventually in January 2015 he told Dr Murphy that he would be making a workers compensation claim.  In his final report in July 2016 Dr Murphy stated Mr Stebbing "felt bullied into surrendering his leading teacher role (and salary) in the restructure.  It was largely as a consequence of this he decided to initiate a workers compensation claim".

59      

Medical certificates from Dr Murphy were tendered to the effect that

Mr Stebbing was unfit for work for limited periods in 2013 and early 2014.  After that there were a mixture of medical certificates certifying either an unfitness for work or for modified duties only until about mid-2015.

60      In a medical questionnaire dated 17 February 2015 Dr Murphy stated "his performance in his designated role as an E-learning coordinator was made impossible by the lack of cooperation of technicians over a long period".

61      That completes my summary of the medical evidence called on behalf of Mr Stebbing.

62      Counsel for the defendant tendered three medical reports from independent medical expert psychiatrists, Dr Senadipathy dated 3 February 2015, Dr Kornan dated 10 August 2015 and Associate Professor Damodaran dated 17 May 2016, who all examined Mr Stebbing on the date of their reports.

63      All of the psychiatrists were simply asked to address issues of injury, liability and incapacity and were not specifically asked about the issues I have to decide in this case. All supported his workers compensation claim and resultant incapacity for pre-injury duties.

64      Briefly, he informed Dr Senadipathy of his continuing difficulties with the technicians and the non-cooperation of the principal in mid-2013. Similarly, Dr Kornan noted the mediation did not resolve the situation because the leadership staff in the school did not help with reaching a solution. Mr Stebbing resigned and was hoping to recover but he struggled with depression in 2014 according to Dr Kornan.

65      Associate Professor Damodaran noted that after the second complaint, Mr Stebbing stated the principal thought the issues with the IT technicians were mostly interpersonal in nature and organised a mediation.  "However, according to Mr Stebbing even after the mediation the technical staff did not agree with the issues which were agreed during mediation". 

66      That completes my summary of the defendant's medical evidence.

67 Counsel for the defendant submitted that the relevant date of injury in this matter is the date of the claim form, that is 14 January 2014. Mr Stebbing was still working for the State of Victoria as a teacher on that date and he claimed injury "over the course of his employment." Thus, it was necessary to look at his employment situation in the 12 months prior to that date for the purposes of s.154(2) of the Act.

68      Although he resigned from being a leading teacher on 10 October 2013, he did not reduce his hours or duties until January 2014, which continued thereafter.  In his resignation to Mr Harnett he did not mention stress as a reason according to Mr Harnett.  Counsel submitted Mr Stebbing had given family reasons only as the reason for his resignation.  It was only when he found out his pay would be reduced to a lower wage that he thought that he would try to withdraw his resignation.  There was no attendance for any treatment with any doctor in the second half of 2013. It was only his disappointment at losing at the Merit Protection Board and not being allowed to withdraw his resignation that prompted the deterioration in his health.

69      Counsel for Mr Stebbing noted CGU’s relevant notices of acceptance, reduction of payments and the 130 week termination all refer to the date of injury as being 6 March 2013, which was the date of the first attendance on Dr Murphy for his stress.  Thus, she submitted that any conduct altering his hours of work or nature of work could not be said to have occurred during the 52 weeks prior to the date of injury. 

70      Alternatively, she said he did not alter the nature or hours of his work voluntarily apart from his incapacity.  He was unable to afford a $25,000 per annum loss of pay.  She referred to Dr Murphy's material and submitted that Mr Stebbing did not seek treatment in the second half of 2013 as he wanted to move forward.  Dr Murphy stated he resigned because of difficulties in dealing with the IT technicians.  Finally, she noted the failure to call Mr Evans, the campus principal who had more to do with Mr Stebbing on a daily basis than Mr Harnett.  She relied on the provisions of Jones v Dunkel (1959) 101 CLR 298 in that regard.

71      The first issue is to determine when the “injury” occurred to be able to consider Mr Stebbing's conduct in the 52 weeks prior to same. 

72 Rather than refer to the date of injury s154(2) refers to "the injury". In this case the claim form refers to the injury occurring "over the course of his employment" referring specifically to "E-learning coordination".

73      On normal principles the date of injury in respect of an injury occurring over the course of employment would be the end-date of such employment (see, Hawkins v Commonwealth (1967) 116 CLR 159). As he was still employed by the State of Victoria at the time of submission of the claim form, that date may well be the relevant date of injury.

74      I note his first relevant attendance with his GP for the stress injury was on 6 March 2013 which is set out in CGU’s Notices as being the date of injury. The specific denial of "bullying and harassment" in the notice of acceptance of the claim is not relevant to these issues.  It is really a question as to the actual injury sustained by Mr Stebbing (see, Clarke v National Mutual [2013] VSC 536 at [54- 56]).

75 Although this is an interesting issue, I do not believe it is necessary to make a definitive ruling on this issue in this case. It seems to me that the clear object of s.154(2) is to separate a non-work voluntary action from that action related to "an injury".  There is focus on the 52 week period "before the injury".

76      The focus of the saving provision is on "an injury" entitling the worker to compensation under the Act.  Thus, a worker may well alter the ordinary hours of work or nature of work as a result of a separate injury.

77      I do not believe that the fact that the authorised agent specified 6 March 2013 as being the date of injury in this case means that it is bound by that actual date for these proceedings (see, Sednaoui v AMAC Corrosion Protection [2017] VSCA 66 at [67-69] which considered an earlier decision in Ansett v Taylor [2006] VSCA 71).

78      At all material times Mr Stebbing continued to work as a leading teacher in 2013 despite resigning from that role on about 10 October 2013.  It is not alleged that he voluntarily altered his "ordinary hours of work" in changing to a normal classroom teacher role presumably because the ordinary hours (as opposed to working extra hours as a leading teacher) of a classroom teacher were the same.

79      It is really an issue as to whether he voluntarily altered the nature of work performed by him.  Again, it was not argued that the change to a classroom teacher was not such an alteration of the nature of his work.

80      Overall, I am satisfied in this case that Mr Stebbing did not "voluntarily" (otherwise than by reason of an incapacity for work resulting from, or substantially contributed to by, a work-related injury) alter the nature of his work.  This is the case whether I consider the situation at the date of resignation or by working as a classroom teacher in 2014. 

81      Also, in both 2013 and 2014 I am satisfied that he did in fact have an ” incapacity for work” as a leading teacher.  He clearly had a continuing work-related stress injury in both years.  I am satisfied that despite the fact he did not seek any active medical treatment in the latter half of 2013 he was still suffering from work related stress, anxiety and depression in both years. Despite his resignation in October 2013 he continued to work under continuing stress and strain, at least from dealing with the IT technicians. This is borne out even by the evidence of Mr Harnett. 

82      Although his stress and injury deteriorated further when he realised his wages would decrease more than he initially had thought and lost the subsequent Merit Protection Board application, he continued to have a work-related stress injury despite those added factors. 

83      I believe there was some general discussion between Mr Harnett and Mr Stebbing towards the end of 2013 that his wage would likely only deteriorate slightly.  Mr Harnett did say in his evidence that there was a discussion there would be some loss of pay. 

84      Certainly, I am unable to find that there was any specific wage rate or classification mentioned in their conversation.  I believe that Mr Stebbing in his email to Mr Harnett of 19 December 2013 clearly raised at least a general previous discussion as to a continuing wage at a lesser rate.

85      However, I do not see the content of that discussion as being crucial in this case.  At all material times I find that Mr Stebbing had an incapacity for work as a leading teacher and his resignation and later work as a classroom teacher is evidence of that incapacity for work. 

86      The fact that he continued to work as a leading teacher does not mean that he did not have a incapacity for work as such.  There is a clear distinction between incapacity for work as opposed to an incapacity to work (see such cases as Ball v Hunt [1912] AC 496 and Nash v Sunshine Potteries (1960) 101 CLR 353). A worker can have an incapacity for work despite not actually having an incapacity to work at the relevant time. In this case Mr Stebbing did have such an incapacity for work as a leading teacher at all relevant times, despite continuing to work as such.

87      I am satisfied that Mr Stebbing did not "voluntarily" resign and/or alter the nature of his work for non-work reasons.  I accept his evidence that he thought that spending time with his children would be a benefit flowing on from his resignation. He may have discussed that general issue in conversation with Mr Harnett at the time. However, I am not satisfied that issues such as house renovation and desire to work solely as a classroom teacher as well as family issues were actual and/or separate reasons for his resignation or were communicated to Mr Harnett as such. 

88      By no means, was his resignation due to any such reason or reasons in isolation from the incapacity for work resulting from a work-related injury.  Having regard to the issues he was having at the time in continuing to work as a leading teacher into early 2014, the argument advanced by the defendant was in some ways fanciful.

89      Further, I note that the campus principal, Mr Evans, was not called by the defendant to give evidence in this case.  He had at least as much, if not more, regular contact with Mr Stebbing over the relevant period being closely involved in the E-learning and IT issues.  The defendant did not give any explanation for failure to call him. 

90      In accordance with the principles of Jones v Dunkel, I infer that his evidence would not have helped the defendant and reinforces my previous findings for other reasons I should accept the evidence of Mr Stebbing as to his difficulties continuing as a leading teacher throughout 2013 and into early 2014 at least.

91      Thus, I determine that Mr Stebbing's pre-injury average weekly earnings should not be reduced from the initial accepted figure of $1,761.  I seek Counsels' assistance with the further orders in this matter.

- - -