West v BGC Australia Pty Ltd - [2019] WADC 20

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WEST -v- BGC AUSTRALIA PTY LTD [2019] WADC 20
CORAM:   SWEENEY DCJ
HEARD:   3 NOVEMBER 2017
DELIVERED          :   20 FEBRUARY 2019
FILE NO/S:   APP 45 of 2016
BETWEEN:   MARK RAYMOND WEST
Appellant
AND
BGC AUSTRALIA PTY LTD
Respondent

Catchwords:

Worker's compensation - Weekly payments - Return to work - Briginshaw v Briginshaw - Standard of proof - Able to earn - Workers' Compensation and Injury Management Act 1981 - Schedule 1 clause 7(2)

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 61, sch 1 cl 7(2)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr M J Lourey
Respondent	:	Mr B L Nugawela

Solicitors:

Appellant	:	Chapmans Barristers & Solicitors
Respondent	:	Greenland Legal

Case(s) referred to in decision(s):

Aitkin v Goodyear Tyre & Rubber Co (Aust) (1945) 46 SR NSW 20
Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171
Ball v William Hunt & Sons Ltd [1912] AC 496
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
Briginshaw v Briginshaw (1938) 60 CLR 336
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
George v Qube Ports Pty Ltd [2017] WADC 97
Integrated Fuel Services Pty Ltd v Wilkinson [2015] WADC 140
Kotua v Leighton Contractors Pty Ltd (unreported CM‑45/02, delivered 17 October 2002)
Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146
Minister for Education v Shire of Northam [2016] WADC 42
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Mohammadi v Hazara Tiling Pty Ltd [2013] WADC 115
Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pedley v West Coast College of TAFE [2006] WACC C21‑2006
Philmac Pty Ltd v Asti (1980) 26 SASR 213
Ross v Corruption and Crime Commission [2008] WACC C15-2008
Smith v Ranger Camping & Outdoors Pty Ltd [2014] WADC 40
Sotico Pty Ltd v Wilson [2007] WASCA 112
Thomas v Chandler MacLeod [2015] WADC 78
Westralian Farmers Cooperative Ltd v Bunce (Unreported, WASC, Library No 7691, 31 May 1989)

SWEENEY DCJ:

Introduction

This is an appeal from a decision of an arbitrator dismissing the appellant's application for weekly compensation payments pursuant to the Workers' Compensation and Injury Management Act 1981 (the Act). Leave is required to appeal, and the appeal and the question of leave have been left to be determined together, as is usual.
Mr Mark West (the appellant) was employed by BGC Australia Pty Ltd, the respondent (BGC), at its Koolyanobbing Mine Site. As appears from the arbitrator's decision, and this was uncontroversial, on 11 December 2010 the dump truck the appellant was driving was struck by an excavator and, as a result, he was thrown about in the cabin and suffered an injury to his lower thoracic spine at T10/11. Then, as part of his treatment, he was given a corticosteroid injection into his spine and suffered serious complications, resulting in abscesses to both feet and septic arthritis. Liability was admitted. The appellant was off work until October 2011 when he commenced a return to work programme with BGC. There is no suggestion that he was a malingerer. He was regarded as a person with a good work ethic who was keen to get back to work.
BGC's position is that, at least by the time the appellant finished the return to work programme, he had returned to his pre‑injury duties. His Form 4 Workers' Compensation Final Medical Certificate issued 21 November 2013 certified that he had 'wholly recovered from the effects of the disability' and was 'fit'.
The appellant contends that he never fully returned to his pre‑work duties and that, although he did return to work and was substantially fulfilling his work duties, he remained subject to restrictions which prevented him from performing associated labour tasks and from operating certain machinery which he had been called upon to operate prior to his injury.
On 23 September 2014, a bit over a year after receiving his final medical certificate, the appellant was made redundant. He claims he was unable to find suitable employment until 31 January 2015, when he was fortunate to secure employment with a mining company that was new to the industry and did not subject him to extensive medical testing. In his current job he earns about half what he previously earned with BGC. It is his position that he is fortunate to have that employment given his restrictions and, but for his physical restrictions, would be capable of earning more. He claims that he is entitled to payments for 'deemed total incapacity' during the period between redundancy and employment and, thereafter, partial incapacity. The arbitrator dismissed his application.
The appellant has three grounds of appeal. They are, in brief, that the arbitrator erred in law by applying the standard of proof referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, secondly, that the arbitrator erred in law in failing to properly determine whether he was left with a partial incapacity which reduced his ability to sell his labour, and third, that the arbitrator misunderstood his claim for deemed total incapacity pursuant to sch 1 cl 7(2) of the Act, considering instead cl 8, when that was not relevant to the appellant's case.
For the reasons which appear below, the appeal is dismissed. There are errors in the arbitrator's approach to the case, but fatal to the appellant's case is the lack of evidence or sufficient evidence before the arbitrator as to certain key aspects of his case which led to the dismissal of his claim and which persuade me that there is no reason to interfere with the decision.

Right of appeal involving a question of law

An appeal from an arbitrator to this court is made pursuant to s 247(1) of the Act, which requires the leave of this court to be obtained. Section 247 provides:
247.Appeal against arbitrator's decision made under Part XI
(1)If written reasons for an arbitrator’s decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a)in the case of an appeal in which an amount of compensation is at issue —
(i)a question of law is involved and the amount at issue in the appeal is both —
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
[(3)deleted]
I gratefully adopt the summary of the general principles provided by O'Neal DCJ in Thomas v Chandler MacLeod [2015] WADC 78 [26] – [30] as follows:
On whatever basis an appeal is brought pursuant to s 247(2), a question of law must be 'involved'. An appeal 'involves a question of law where either an error of law, or an error of mixed law and fact is involved': BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
A decision does not involve an error of law unless the error is material to the decision, in the sense that it contributes to the result so that, but for the error, the decision may have been different: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [15]. Ignoring for now the limiting provisions of s 247(2)(a), in order to obtain a grant of leave all that the appellant has to show is that there is a real or significant argument to be put which involves a question of law: Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
Once it has been established that a ground involves a question of law, the whole decision of the arbitrator, and not merely the identified question of law is open to review: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20].
If the court decides that a question of law is involved and leave to appeal has been granted, then the District Court is required to undertake a 'real review' of the matter. That review however is based upon the materials that were before the arbitrator, and is not conducted by way of a hearing de novo: PacificIndustrial Co v Jakovljevic [20], [26].
Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it. The appellant may not simply invite the court to just ignore the arbitrator's decision and start again with a view to having the court substitute his or her own decision for that of the arbitrator: PacificIndustrial Co v Jakovljevic [20], [26], cited in Catholic Education Office of WA v Granitto [2012] WASCA 266.
To that summary I add that, once this court decides that a question of law is involved and leave to appeal has been granted, the court is not limited to considering or reviewing errors of law. To so limit the review and preclude the review of errors of fact is to confuse 'a necessary precondition to the grant of leave … with the task to be undertaken during the course of a review': PacificIndustrial Co v Jakovljevic [2008] WASCA 60, [19]. A review is not limited merely to the correction of errors of law, and is broader than an appeal in the strict sense: PacificIndustrial Co v Jakovljevic [20] – [26] (Wheeler JA) referring to the judgments of Kirby P in Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, 586 and Pullin JA in Sotico Pty Ltd v Wilson [2007] WASCA 112 [46]. That is to be contrasted to an appeal from this court to the Supreme Court pursuant to s 254 of the Act which provides that an appeal to that court 'must relate to a question of law'.
All three grounds of appeal involve a question of law and, for reasons which appear below, I am also satisfied that there is a real or significant argument to be put in relation to each of the appellant's grounds of appeal.
No issue is taken or submission made by the respondent as to whether in this case the right to appeal arises pursuant to s 247(2)(a)(i) or (ii), or (b). No amount was awarded and certainly at first blush that suggests that the issue of leave must necessarily be determined pursuant to s (2)(a)(ii) or (b), which seems strangely arbitrary. The difficulties of interpretation of s 247(2)(a)(i) have been canvassed in detail by O'Neal DCJ in Thomas v Chandler MacLeod [47] - [85], discussing the former Commissioner McCann's decision in Pedley v West Coast College of TAFE [2006] WACC C21‑2006.
I do not consider that I need to express any view about that because, on any interpretation and on any subsection, I am satisfied the criteria for leave are satisfied. I am satisfied that a question of law is involved. I am satisfied that the financial threshold must be met, given that the appellant seeks payments equivalent to his maximum entitlement over a period of four months and then a 'top‑up' on his salary from 31 January 2015 on, which must exceed $5,000. I am satisfied that the total sum in issue, whatever that sum is, also – to adopt the reasoning of O'Neal DCJ - amounts to at least 20% of the award of nil compensation. Alternatively, to adopt the reasoning of former Commissioner McCann, there having been no award, the requirement that the amount in issue be at least 20% of the award must have no application. And, finally, I am satisfied that the fact that several appeals to this court from arbitrators have involved the application of the standard of proof by reference to the decision in Briginshaw v Briginshaw and that the standard of proof has obvious implications beyond this appeal, renders the issue of law in Ground 1 a matter of such importance that, in the public interest, an appeal should lie. Therefore I am satisfied on every score.
Accordingly, leave to appeal is granted.

Brief overview of statutory scheme

Pursuant to s 18 of the Act, if an injury to a worker occurs, the employer shall, subject to the Act, be liable to pay compensation in accordance with sch 1 of the Act. The employer is liable to pay compensation from the date of incapacity resulting from the injury: s 21.
Schedule 1 of the Act deals with compensation entitlements. Clause 7 of sch 1 entitles the worker to weekly payments for any period during which the worker is totally or partially incapacitated.
Pursuant to cl 7(1), when total incapacity for work results from the injury, that entitlement is to a weekly payment during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with the schedule.
Pursuant to s 7(2), where partial incapacity for work results from the injury, that entitlement is to a weekly payment equal to the amount by which the total weekly earnings of the worker (calculated and varied in accordance with the schedule) would exceed the weekly amount, exclusive of payments of overtime or any bonus or allowance, which he is earning or is able to earn in some suitable employment or business after the occurrence of the injury.
Both clauses are subject to s 56 of the Act (when entitlement to weekly payment ceases due to age) and cl 7(3) dealing with cessation of entitlement to payments when the total weekly payments reach a prescribed amount.
Clause 8 of sch 1 provides:
Where a worker who has so far recovered from his injury as to be fit for employment of a certain kind satisfies an arbitrator that he has taken all reasonable steps to obtain, and has failed to obtain, that employment and that the failure is a consequence, wholly or mainly, of the injury, the arbitrator may, without limiting the arbitrator's powers of review, order that the worker's incapacity be treated, or continue to be treated, as total incapacity, for such period, and subject to such conditions, as the order may provide.
Weekly payments are calculated in accordance with cl 11. It is unnecessary to detail the method of calculation here.

Evidence before the arbitrator

Because I have given leave to appeal, it is necessary for this court to conduct a real review of the evidence which was before the arbitrator. A book of documents from both parties was tendered which included witness statements from the appellant and Mr Russell Pyman of BGC, as well as medical certificates, medical reports, return to work programme documentation, work records and a work reference for the appellant. The appellant and Mr Pyman also testified and both were cross‑examined.

(a) Evidence of the appellant

The appellant filed two witness statements which were tendered as his evidence‑in‑chief.
In his first statement, the appellant stated that he has over 20 years' experience in the mining industry, predominantly as a machine operator. He commenced work with BGC at the Koolyanobbing Mine Site in about 2007. He said he worked 12 hour shifts driving trucks, front end loaders, water trucks, and excavators, working a two to one roster, consisting of 7 day shifts, 7 night shifts and 7 days off.
The injury occurred on 11 December 2010. It is unnecessary to detail his evidence about the injury and its immediate aftermath, liability having been accepted by BGC.
In around October 2011 he commenced a return to work programme with BGC, initially going back to work for two hours a day and attending a daily meeting, then sitting around. After about six weeks he started to drive a small water truck for short periods at a time, interspersed with sitting down and resting. Over several months, he progressed to driving the water truck for eight hours a day.
He then progressed to driving a dump truck, beginning for two hours a day and gradually building up his hours so that, by October 2012, he was back to working his original pre-injury 12 hour shift.
He stated:
I could not do the full range of my pre-injury duties as I was unable to drive certain machinery, including any vehicles that had to be used for loading of trucks and trailers etc, as none of these types of machinery have full suspension systems. This was deemed by my employer and their medical staff to be too high of a risk of reinjuring my back and feet. As a result I was only permitted to use machinery that had full suspension systems, which meant that I could only drive a dump truck or water truck. I also had lifting restrictions and could not do physical labour work that was required as part of my pre-injury role. These restrictions remained in place until I finished my employment with BGC.
I was also restricted to doing day time shifts. The poor visibility at night time means it is difficult to drive according to the conditions, whereas during daylight hours I can drive according to the terrain and there is less chance of me hitting a pot hole or a rock and flare up my back symptoms.
Towards the end of 2013, I commenced doing 12 day shifts and 2 night shifts. Over a period of months I increased the number of night shifts to 7, to fit into the required roster for my position which was 7 day shifts and 7 night shifts. However, I was not allowed to work in areas that had excessively rough ground conditions, due to the risk of aggravating my injury.
On 23 September 2014 the appellant was made redundant, effective immediately. He said that, between that date and 31 January 2015, he made 'enquiries' with six mining companies in relation to the potential position of a dump truck driver, and with two mining companies in relation to the potential position of a diamond driller. He did not state that he had actually applied to any of these companies for employment. He said he also registered with Mining Employment Services, Mining Australia and Seek Online Services to notify him of any potential job opportunities in this State.
He stated that, on 31 January 2015, he secured employment with a company which was new to the mining industry, and with only very minor medical requirements consisting of a hearing, eye sight and lung capacity test. The appellant said he was asked to complete paperwork which included a question as to whether he had a previous back injury and whether he could fulfil the role applied for. He said he answered 'yes' to both questions, and no further questions were asked of him about his injuries.
The appellant stated that all other mining companies that he had made enquiries with required extensive physical requirements to be completed during a medical assessment before securing employment, which he described as mining industry standard. He said there is no prospect of him passing the extensive pre-employment medical requirements to obtain either the position of a dump truck driver or a diamond driller.
In relation to the job he was successful in getting, the appellant stated:
My role with the new employer is a much lesser role then my pre-injury role with BGC and with significantly lower earnings. All I do is drive a dump truck, which is okay for my back because it has full suspension. My contract is for a 2:1 roster, working 12 hours a day, but now and then I get asked to work overtime. Prior to my injury I was earning an annual salary of $120,000.00 with BGC and I am now earning $60,000.00 annually.
If I could do all machine operator jobs with my new employer they would pay me more, on the basis I was an 'all-rounder' with the flexibility to be used anywhere in its mining operations.
Finally, he stated that he is in a lot of pain and feels burnt out by the end of his two weeks on at work and said that, both at work and during his week off, he has to exercise due care and attention whenever he engages in any activity that involves lifting and/or twisting, to avoid aggravating his back pain. He said his back gets very sore and his feet swell up after doing any physical activity and therefore he can only engage in physical activity for short periods at a time.

Following his first statement, BGC provided two statements from its witness, Mr Russell Pyman, the first dated 14 January 2016 and the second dated 16 February 2016. The second statement focussed on providing documentation to indicate that, post-injury, apart from driving the water truck and dump truck, the appellant had in fact worked on a 30 tonne excavator which does not feature full suspension and is often used with an accessory called a rock breaker.
Following the provisions of those two statements the appellant provided a supplementary statement signed either 15 or 16 March 2016. In that statement the appellant maintained that he was only allowed to operate machinery that had good working suspension units and was not permitted to operate, at all, any type of front end loader machinery including integrated tool carriers.
He accepted however that he was assigned to operate the excavator, which was not mentioned at all in his first statement. He agreed that the excavator does not feature full suspension and at times can result in vibration to the operator. He said he was able to take rest and stretching breaks whenever he needed them. He said that, once he was back at work, BGC allowed him to operate the excavator with the rock breaker attached for up to four hours per shift when it was available, but he took breaks every half hour, a fact that his immediate supervisor, Mr Kevin Gerrick, was aware of. He said his doctors restricted him to four hours maximum operation on the rock breaker and he was always careful to adhere to that.
As to records suggesting that he was operating the excavator for 12 hour shifts, the appellant said he does not disagree with the records, but explained that the 12 hour shift is the period of time he was assigned to operate the excavator and is not reflective of the actual time using the excavator. He said most of the operational hours that are recorded on an excavator's hour meter are known as idle hours, where the machine is not actually moving, but the operator is simply waiting to be called to break rocks as necessary. He also said he often shared the operation of the excavator with another operator on and off during the shift. He said the hours were recorded to the person who completed the daily inspection of the excavator at the start of the shift so that the excavator would be assigned to that person but, in fact, two people were operating it. Finally he said that, much of the time, he was training others to operate the excavator, in which case he was actually sitting in a light vehicle while he was observing the person who was in the excavator doing the training.
The appellant said that his pre-injury duties including operation of all truck types, front end loaders, integrated tool carriers of several different sizes and small excavators with the rock breaking tool attached. After his injury, he said he was only allowed to operate machinery with good working suspension units and was not permitted to operate at all any type of front end loader machinery including integrated tool carriers. He said his immediate supervisors were aware that any of the water trucks and dump trucks he was to operate were to have good suspension units, which he determined by trial and error on different available trucks. The appellant said that he did ask his immediate supervisor several times about recommencing to operate integrated tool carriers and front end loaders, but was always told the machines were too high a risk for him to operate because of the risk of re-injury.
He said Mr Pyman was not one of his immediate supervisors, and nor was he his immediate return to work supervisor but, rather, was the senior project manager on the mine site. He said he did not liaise with Mr Pyman as to what duties he would be doing and under what restrictions. The appellant stated that, after Mr Pyman was transferred to another site, he again asked for permission to operate integrated tool carriers and front end loaders, but was given the same answer.
In support of his claim that he had not merely worked as a dump truck operator for BGC, the appellant attached a reference provided by a Mr Adrian Swarbrick, who was the project manager at the time he was made redundant, in which Mr Swarbrick stated 'during his time on this site, Mark operated dump truck, water carts, rock breakers, small scale wheel loaders and integrated tool carriers'. The appellant also provided certificates of competency for the operation of bulk water truck operation, integrated tool carrier operation and front end loader operation, haul truck operations and excavator rock breaker operation, all issued prior to the injury.
At the hearing, the appellant simply confirmed the truthfulness and accuracy of his two statements, such that they constituted his examination‑in‑chief.
He was then cross‑examined. In cross‑examination the appellant conceded, somewhat reluctantly that, throughout his employment with BGC prior to the injury, the machine he drove the most was a dump truck, although he also made it plain that at different times he drove other machines. He agreed that his classification was probably not that of an 'all‑rounder'.
He agreed that Mr Pyman probably was the supervisor of his return to work programme. He was cross‑examined about the amount of contact and discussions he might have had with Mr Pyman, accepting that he had from time to time discussed the programme with Mr Pyman and any restrictions that he might have, although he doubted those discussions were weekly or more than weekly.
He maintained that he was only permitted to use machinery with full suspension systems right up until the end of his employment and said it caused problems for his immediate supervisors. He maintained that the medical staff considered that driving certain machinery including vehicles used for the loading of trucks and trailers would be too high risk and, at BGC, he said the person who similarly deemed such equipment to be too high risk would have been the person who instructed his immediate supervisors. He agreed that that was likely to be Mr Pyman.
He agreed that the excavator (to which a rock breaker or bucket would be attached) did not have suspension, being on caterpillar tracks. When it was suggested to him that there was an inconsistency between his first statement, in which he said he could only drive a dump truck or a water truck, and his second statement in which he conceded that he had been driving the excavator with the rock breaker attached, the appellant stated that the 'excavator you don't drive, you operate and the two trucks you need to drive them. There's no steering wheel or anything like that in an excavator'. In fact, in his first statement, he had also said 'As a result I was only permitted to use machinery that had full suspension systems, which meant that I could only drive a dump truck or water truck' (emphasis added). He denied that his first statement was misleading in having omitted any mention of his being able to drive the excavator with the rock breaker attached, post‑injury.
The appellant agreed in cross-examination that operating the excavator with the rock-breaker attached was 'like a jack hammer' that subjected the operator to vibration, although a skilled operator could operate it more smoothly than an inexperienced operator.
The appellant maintained that his doctor had restricted him to four hours maximum operation of the rock breaker and he said that, even after Mr Pyman left, he was never given permission to do more. It was suggested to him that his reference to his doctor having restricted him to four hours maximum operation of the rock breaker was 'at a time earlier in your return to work programme, not at the end of your return to work programme'. The witness agreed with that proposition, but later stated that if, after the final medical certificate dated 21 November 2013 was issued, he was no longer under that four hour restriction, then no one had informed him of that. The final medical certificate made no reference to any such restriction.
He agreed he was assigned to the rock breaker for 12 hour shifts, but maintained his position that a 12 hour shift on a rock breaker did not involve 12 hours of actually using the machine to break rocks. He said anything up to nine idle hours was normal. He said one might actually operate the machine for two hours or less if there were no rocks. He said that, while the machine was idling away, he did not want to sit in a tiny cramped spot for too long because the machine was very confined and he would leave the truck and do a job.
It was suggested to him that only a single entry in the records in relation to his use of the excavator mentioned another person operating the machine during his assigned shift. It was put to him that there was in fact negligible time spent by him training others. He answered:
Yes, you're going on what those documents say, which I can see your point of view … And I'm telling you that that is not exactly how it was run. Now I can't run a big corporation, so … There's nothing I can say about that.
In cross-examination the appellant maintained that he was definitely not doing the full range of his pre-injury duties. He agreed that a June 2013 medical certificate, five months before the final certificate, indicated that his general practitioner had told him to have a go at full duties. He testified that he would have had a go, and the outcome was that he still needed to drive trucks with proper suspension, and he did try and operate the rock breaker at times and did also apply to go back to the other machinery, but was consistently told no.
He denied that, by November 2013, he was working without restriction. While he accepted that he had reported to Dr Silbert in November 2013 'a return to all of the inherent requirements of his employed role as a dump truck driver on a full-time and unrestricted basis', and was also operating a work cart, he maintained that all that meant, in effect, was that BGC was requiring him to drive a dump truck, which he did. He said he still only drove the trucks that he could bear to drive without becoming sore or stiff. He said that, in practical terms, he had the choice of which truck he would take and he was operating water trucks and dump trucks with known good suspension and, to a limited extent, the rock breaker, in 2014.
He said he was still taking regular breaks to stretch right up to the end of his employment with BGC, by which time it was up to every two hours, and maintained that he was taking extra breaks over and above breaks taken by the other employees, which caused trouble for his immediate supervisors.
When cross-examined about the six companies he made inquiries of concerning a position of a dump truck driver, he agreed that he went to them because he understood they were employing people who were doing the same or similar work as he had been doing for BGC, adding 'minus any load work or anything. That's why it says here "dump truck driver" '. He agreed he expected that, if he could get a job with those people, they would pay about the same as BGC did, and that they would have paid him more than his current employer. When he was asked whether, if they had a vacant position and he was prepared to take it, he understood he would be earning more than at his current employment he answered 'that's not correct because at this time, I wouldn't be able to pursue those other jobs because of my deteriorating condition'. He agreed that, if he were able to operate other machines, he would be able to earn more with his current employer, because he felt that he would be able to negotiate his pay in those circumstances.
The appellant was cross-examined about his current salary which he agreed was $60,000 per annum gross. It is unnecessary to detail the cross-examination on that point.
In re-examination the appellant explained that he was initially employed by BGC as a water cart operator, not a dump truck operator and then, once he arrived on the site, almost immediately they had him using the integrated tool carrier and also the front end loaders. He said, within six to eight weeks after he commenced, he approached the project manager, a Mr Taylor (now deceased), and explained to him that, while he had been hired as a water cart operator, he was in fact fulfilling several other positions. He said Mr Taylor reviewed his position and he then received a pay increase to the level of all-rounder. He testified that, from that point on, he was operating the water cart, dump truck, and did quite a lot of work with the integrated tool carrier and the front end loader. He agreed he was operating the excavator with the rock breaker attachment and also some smaller jobs with the bucket attachment clearing out overflow drainage or making trenches, just small jobs. He said it was quite common to apply for an entry level job and then, once you had that job, you could start working your way up to the other machines.
The appellant said he was under instructions from his immediate supervisors, being a Mr Brookes and then a Mr Gerrick, to the effect that he was to pick one of the trucks that suited his restrictions, the rationale being that the better the suspension in the truck, the less chance there was of him being reinjured. He said that, at the time, he was very resentful that he was not allowed to operate the other types of machinery but, looking back, he considers that BGC in fact made the right decision because he believes he would have injured himself further, had he returned to using equipment such as the front end loader.
He said there were quite a lot of trucks to choose from, including newer and reconditioned trucks and, if he had an issue, he would call up and swap trucks until he found one he could operate without soreness or swelling. He explained that the issue was not just his back, but also his feet which still gave him problems. He said that dump trucks did not require him to use his feet too much because the accelerator was air assisted and the braking system was done by hand.
In re-examination he testified that this was the first time he had been made redundant and said that, in 2014, he would have been hopeful of finding another job quickly if he had not been injured, adding that 'it depends on the condition of the mining industry at the time that you're unemployed. Sometimes it would be hard, sometimes it would be fast'. He said in 2014 he would have been very hopeful.
He said that when the final medical certificate was issued in November 2013, that may have represented him going back to working the full 12 hours, but still with rest breaks and not operating all of the equipment. No such restrictions were noted on the certificate.
He maintained that his classification pre-injury was as an all‑rounder and said that is what he was paid as. He said his redundancy was worked out on the all‑rounder pay rate, although he agreed that he was not in fact working as an all‑rounder after his injury. Again, it is unnecessary to detail this evidence.

(b) Medical evidence

It is unnecessary to detail all of the progress medical certificates from 2011 and early 2012.
Dr David Kennedy, an approved medical specialist, saw the appellant on 12 December 2012, two years post-injury. His report was before the arbitrator. Dr Kennedy diagnosed the appellant as having sustained a compression fracture resulting in the collapse of the T10/11 intervertebral disc with involvement of the spinal nerve roots and radiating pain into the lateral thoracic chest wall. He assessed the appellant as having a permanent impairment of his thoracic spine. He also diagnosed damage to the first TMT (tarsometatarsal) and MTP (metatarsophalangeal) joints of both great toes following septicaemia resulting in a permanent impairment of both great toes.
The appellant reported to Dr Kennedy that he had minimal difficulty driving the water truck for 12 hours per day and had increased his work duties to also driving the dump truck on alternate days, trying to build up to 12 hour shifts, although he found this very difficult and had to drive specific dump trucks that would avoid load and stress on his spine. He reported that, with physical activity under load or stress, the pain in his spine could reach 5‑6/10. He also reported restrictions with respect to his sitting and standing tolerances in any one position, and reported problems with bending, twisting or turning under load or stress, as well as manual handling activities.
As at 12 December 2012 Dr Kennedy certified that, in his opinion, the final whole person impairment combining the thoracic injuries and injuries to both toes amounted to 24%. His assessment was a little higher than a later assessment by Dr Silbert, accounted for by a higher assessment of permanent impairment attributable to the thoracic spine injury which he assessed as a 21% whole person impairment. The progress medical certificates also suggested some improvement in the months after Dr Kennedy's assessment.
A progress medical certificate of 20 December 2012 signed by Dr Cheong of Redimed noted that the appellant 'continues to improve. Able to tolerate duties in water truck and dump truck with regular breaks'. Dr Cheong certified that the appellant was fit for restricted return to work for the next six weeks, could work for 12 hour shifts with regular breaks and was able to do nightshift.
A progress medical certificate of 31 January 2013 signed by Dr Beresford indicated that the appellant 'continued show improvement. Is fine driving water truck - coping very well. Able to do 12 hour shift with regular breaks. Has discussed using the new rock breaker - can give this machine a try. I have advised strongly against sitting in a training (illegible: dickie?) seat as not suspension'. The doctor certified him fit for a restricted return to work and imposed restrictions on him that he was to use the water truck or dump truck with good suspension, that he could work for 12 hour shifts with regular breaks and he could try the rock breaker.
A progress medical certificate dated 14 May 2013 signed by Dr Kattady of Redimed noted 'ongoing rehabilitation (illegible: process?). 12 hours day shift. Steadily improving thoracic back pain'. The doctor ticked 'fit to return to pre-disability duties, but requires further treatment'. The doctor certified that the appellant was fit for restricted return to work from 14 May 2013 for six weeks. In terms of work restrictions, he was to continue as per his work plan and was allowed to operate a dump truck and a water cart, and was also able to operate a rock breaker for less than four hours per day.
A progress medical certificate dated 11 June 2013 written by Dr Beresford noted that the appellant was 'much improved again. Coping at work. Try full duties. See 5 months? Discharge.' It is impossible to tell which of two options - either 'fit to return to pre‑disability duties, no further treatment required' or 'fit to return to pre‑disability duties, but requires further treatment' - the doctor actually ticked, the tick straddling both boxes.
The arbitrator also had before her a report from Dr Joel Silbert, consultant occupational physician, dated 12 November 2013. This was written two weeks prior to the final medical certificate. Dr Silbert had previously assessed the appellant on 6 December 2011, at which time he had considered the appellant to present with a T10/11 disc protrusion which remained symptomatic, and bilateral great toe MTP (metatarsophalangeal) joint septic arthritis and post-septic arthropathy.
As at 2 November 2013, the appellant reported to Dr Silbert an overall 90% recovery towards his pre‑injury state, but denied a complete resolution of all symptoms or a full restoration of normal functioning of his back or his feet. He also reported a need to exercise due care and attention with any activities. The doctor described the appellant as a forthright and reliable historian in no distress. The appellant was noted to move freely and fluidly with no obvious deformity or gate disturbance. Discomfort was noted to palpation overlying the right paravertebral musculature at the T10/11 levels, with rotation of the trunk measured to two thirds of the normal level, pain being the limiting factor. Examination of the left and right feet revealed well healed post-operative surgical scars with no evidence of swelling, deformity, surgical or traumatic foot scarring, but the appellant was noted to walk with an inability to weight bear on the distal foot and there was evidence of active avoidance of weight bearing on the great toes. Ankylosis, in other words abnormal stiffening, was noted at the MTP joint in the neutral position.

The appellant reported still suffering thoracic back pain, with periods of hours of being pain free but otherwise having a 'background feeling', on occasion aggravated to a maximum of 4/10 in severity. He reported deterioration with any significant physical activities, and maintaining a 15 kg lifting restriction in order to avoid any aggravation of his back pain. He reported a resolution of his symptoms with the avoidance of activities likely to precipitate his back pain. In relation to his feet, he reported persistent but not consistent pain in both feet, worse in his right foot. He found orthotics to be beneficial. He reported enjoying periods of hours with his feet remaining pain free but otherwise had pain about the big toe of either foot, with symptoms most often around the 3‑4/10 in severity, on occasion rising to 10/10 in severity. He reported that the pain would tend to come on with physical activity, particularly negotiating stairs, ladders, slippery or uneven surfaces, and reported deterioration with repetitive foot activities and kneeling, and an inability to squat. He said if he avoids those activities, then the symptoms ease. Dr Silbert noted that the appellant presented with sequelae of his bilateral joint septic arthritis and ankylosis of the MTP joints in both feet.
Dr Silbert concluded there was no indication for further medication, treatment or the use of aids or appliances. He considered that the appellant should be considered as having achieved maximum medical improvement and that his condition was unlikely to change in the next 12 months with or without further treatment.
He considered that the appellant presented with a whole person impairment of 15% in relation to his spine, and 2% in relation to each toe, making a 19% whole person impairment. He considered the prognosis for the appellant maintaining his current level of symptoms and functioning was good and considered there was no evidence which would represent any increased risk of a recurrence or a deterioration of his symptoms in the longer term up to and beyond an arbitrary retirement age of 65 years.
Finally, in respect of his fitness for work, Dr Silbert expressed the opinion that the appellant remained 'fit to continue with all the inherent requirements of his employed role as a dump truck driver on a full-time and unrestricted basis' which also remained applicable 'on an ongoing basis through to and beyond an arbitrary retirement age of 65 years'. There was no further elaboration on what the doctor considered to be 'the inherent requirements of his employed role as a dump truck driver'. There was no reference to the appellant operating complimentary machinery such as an excavator with a rock breaker attached or a front end loader or integrated tool carrier or, for that matter, a water truck.
The workers' compensation final medical certificate of 21 November 2013, being a Form 4 standard form document by Redimed, describes itself as relating to s 61(1) of the Act. It is a one page tick‑a‑box document. The doctor (whose name is illegible) certifies that, as from 21 November 2013, the appellant has 'wholly recovered from the effects of the disability' and is 'fit'. It lists no ongoing restrictions.

(c) Evidence of Russell Pyman

Russell Pyman provided a statement dated 14 January 2016, a supplementary statement dated 16 February 2016, and testified before the arbitrator.
In his first statement, he said that, from late 2011 to 2013, he was a senior project manager for BGC at the Koolyanobbing site. He said it was shortly after he started at the mine site that the appellant returned to work after an injury and he was asked to manage the appellant and ensure he was provided with suitable duties. He said when the appellant first returned to site he was out of condition after his illness and had to build up muscle strength by both exercise and work duties. Mr Pyman understood the aim of the rehabilitation programme was to get the appellant 'back to driving dump trucks, which was his job' and 'to get him back up to his full normal hours and shifts'.
Mr Pyman produced the first return to work programme, dated 28 September 2011, in which the appellant was described as a 'machine operator' with injuries to his lower back and feet and Mr Pyman was described as his return to work supervisor. The goal of the programme was described as a 'return to full pre-injury duties as a machine operator when medically appropriate'. Medical guidelines were provided to the effect that the appellant was to work within comfort levels at all times, gradually build up hours/duties at work as tolerated, and engage in no manual work. In cross-examination before the arbitrator, Mr Pyman confirmed that the medical guidelines throughout the programme would have come from the doctors engaged by Redimed (a medical service which I understand to have been engaged by BGC). The programme scheduled in that gradual build-up of hours.
Mr Pyman said his practice when he received these return to work programmes from Ms de Voogd, the group injury manager for BGC, was to sit down with the appellant and his supervisors to ensure that everyone knew what was to occur and to have the appellant sign off on the programme. The appellant signed the programme, agreeing to comply with it, including working within the medical guidelines and taking postural breaks every 30 minutes for 5 minutes or as he felt he needed them, and to notify his supervisor and/or his group injury manager if he was having any difficulties performing any of his duties.
Mr Pyman produced a series of emails between Ms de Voogd and him dealing with the appellant's progress, including one of 2 March 2012, in which Mr Pyman wrote:
He has said that he can feel the difference between trucks in regards to the struts and seats. He isn't saying that they are defective just that he can feel the difference and some are better than others. He has communicated this to his supervisors and they are putting him the (sic) trucks he finds help him the most.
By 24 May 2012 the appellant was returning to a normal two and one roster, with medical guidelines to the effect that he was to work within comfort levels at all times and take regular stretch breaks for 10 minutes every hour, was not to lift anything greater than 10 kg, and was to continue his exercise programme. His duties at that stage were to drive the dump truck and water cart for normal hours providing he took hourly ten minute breaks and continued to exercise daily. That is the last return to work programme produced to the arbitrator.
Mr Pyman stated in his first statement that, after that, the appellant
performed his usual dump truck duties for his usual hours and shifts. If (the appellant) had continued to require rest breaks every hour, I would have known about that, because it would have presented issues for his operational supervisors.
In fact, he returned to his normal duties and performed them in his normal way without any further issues arising from his workers' compensation injury.
By the time I left in December 2013, there were no further issues and (the appellant) had been fully rehabilitated into his normal dump truck duties and hours.
In his supplementary statement of 16 February 2016, Mr Pyman stated that he was the appellant's return to work supervisor. He denied deeming the use of machines without full suspension as presenting too high a risk to the appellant of re‑injury. He said he did not recall any of BGC's medical staff expressing that view and he would have expected to know if such a view had been expressed. Given his evidence about the discussions he was involved in with the appellant and his supervisors, one would have thought Mr Pyman would have known if such a view had been expressed.
He produced records, which had not been available to him when he made his first statement, relating to work performed by the appellant using the excavator in 2014, which did not necessarily reflect the complete records. The records relate to seven separate occasions during March to August 2014 on which the excavator was assigned to the appellant, five of those being 12 hour shifts. Mr Pyman described the excavator as weighing 30 tonnes and running on caterpillar tracks (rather than tyres with suspension). He said it was often used with an accessory called a rock breaker, the use of which resulted in significant vibration for the operator. On that basis Mr Pyman commented that, on those occasions, the appellant had used a machine without suspension in 2014 and did night shift on at least three occasions on 2014. Mr Pyman maintained that, by the time he left the site in late 2013, the appellant was performing his normal hours and duties without restriction.
When Mr Pyman testified before the arbitrator in March 2016, his two statements and the various documents he produced were tendered as his evidence-in-chief. In cross‑examination, he agreed he was not working at the site when the appellant commenced work there (in 2007), having arrived just prior to the appellant commencing his return to work programme. He agreed he had no direct knowledge of the duties the appellant had performed before his injury and his understanding could only be based on records and discussions with others, including the appellant.
He agreed that the appellant was always trying to do more, rather than less, and was keen to progress his return to work. He saw the appellant as having a very good attitude with coming to work and doing his best to rehabilitate himself as his body would allow.
Mr Pyman said it was his recollection that the appellant's normal duties were as a dump truck operator, and that his title was that of 'dump truck operator', however he said that job 'can have some other pieces of equipment'. He said at the mine site there was a pool of dump truck operators, some of whom were 'passed out' onto 'other equipment such as the water cart, the rock breaker, and some individuals might also be qualified to operate small crane loaders'. He said they may well not be operating that secondary equipment full-time, but they could be competent to operate other equipment.
In cross-examination, Mr Pyman testified that he would have been aware of whether the appellant was taking regular breaks or not, both from his conversations with the appellant, and conversations with the 'leadership group' about the appellant, the leadership group including senior leadership people and the appellant's supervisor at that time. It was apparent from his answers that he did not regard any regular breaks on the part of the appellant to require a formal schedule but, rather, considered that the nature of the work would generally give opportunities for those breaks. He said it depended upon the task and what was happening during that task, explaining, for example, that the water cart had to be filled up and so the operator would hop out for 15 to 30 minutes while the tank was being filled. Similarly, he said, there were times when production was delayed and a dump truck driver might be held up in a queue waiting for an excavator to come and clear rocks, and that was an opportunity for the driver to get out of the vehicle and stretch. He said there was no restriction on taking those opportunities for a stretching break.
He said the appellant would have been put on the water cart to begin with because of the breaks that naturally arose while the water cart was being filled up, giving the appellant the opportunity to do his stretches and walk around. He said it was not chosen particularly on account of good suspension, although he agreed it did have suspension. He also agreed that the water cart did not involve any interaction with a third party, in contrast to the dump trucks which involved an excavator loading the trays of the truck which could therefore be a bit rougher. He agreed that was how the appellant had been injured in the first place.
He agreed that dump trucks do have suspension and can operate in rough pits. He agreed that the appellant generally operated the equipment that had 'suspension that worked better, newer trucks or reconditioned trucks'. He agreed some seats in some vehicles were better than others and he accepted that the appellant and his supervisors discussed that. He said that, in the early stages of the return to work programme, they identified which trucks were the best for the appellant to operate. He also agreed that they managed the appellant's exposure to areas of rougher terrain. Later, in re-examination, he said that was at the start of the return to work programme, when they would be attempting to build up the worker's confidence and would therefore select a better truck and expose him to certain areas that were more suitable for his rehabilitation programme.
Mr Pyman agreed that, apart from operating a dump truck, the appellant also had other equipment that he was passed out on and competent to operate, being the water cart, and the rock breaker. When shown the appellant's various certificates of competency which were before the arbitrator, Mr Pyman agreed that the appellant was passed out to operate bulk water truck operations, an integrated tool carrier and the 30 tonne excavator. He said the integrated tool carrier would be the small one. He agreed that, pre-injury, the appellant would have been operating the front end loader and the excavator with the rock breaker attachment.
In relation to the records indicating that the appellant had operated the excavator with the rock breaker attachment during 2014, Mr Pyman agreed that a 12 hour shift on the rock breaker did not necessarily mean breaking rocks for 12 hours. He said that the rock breaker was a piece of complementary equipment, rather than mainstream production equipment, and they did not 'man up' the rock breaker every shift but, rather, as required. He said the rock breaker might only be working for a few hours, or it could be for the full shift, depending on the environment they encountered.
Mr Pyman agreed that, by the time he had left site in late 2013, the appellant was back to working 12 hour shifts, doing a week of dayshift, a week of nightshift and having a week off, as was usual, and that he was operating the water cart, the dump truck and, from time to time, the rock breaker, but not the front end loader and integrated tool carrier.
He accepted that, when the appellant got a clearance, that would clear him for pre‑injury duties, including the operation of front end loaders and integrated tool carriers, and also agreed that the appellant had not used that equipment while Mr Pyman was there to his knowledge. He said that the core task of the back to work programme was to get him returned to the core duties of his role, being the dump truck and water cart operator. He agreed it was not focussed on getting him back to driving those other pieces of equipment that were not part of his core function.
Mr Pyman maintained that there would be no specific reason for the appellant not operating the front end loader and integrated tool carrier and said it would just come down to whether or not they were required, because they were not common machines. Mr Pyman described the use of an integrated tool carrier as being part of an ad hoc process, and said the front end loader with the bucket attachment was used fairly sparingly.
When it was suggested to him that the appellant continued to require extra breaks, every two hours, right up until his redundancy, Mr Pyman agreed, he said, if that was what the return to work programme said. His evidence was vague on that point. In essence he was deferring to the return to work programme, which did not prescribe two-hourly breaks on an ongoing basis after its conclusion.
Mr Pyman said he is not sure what the appellant was paid and whether or not he was paid as an 'all-rounder' prior to his injury but said, based on the certificates of competency that he had been shown in cross‑examination, he would not perceive the appellant to have been an 'all‑rounder', the expression the appellant used. Mr Pyman explained that what he, and the industry generally, regards as an 'all‑rounder' is an employee capable of operating the complex pieces of equipment on site, such as the 100 tonne excavator and the truck dozer/grader. He later added that the industry view of an all‑rounder is someone who can cover the mainstream production equipment, namely the bulldozers and graders and large excavators, not a person who is merely passed out to use various items. He said if a person was an all‑rounder, they would very rarely be operating a dump truck, unless there was a shortage of men.
Leaving aside the expression 'all-rounder', however, Mr Pyman did say that pay rates are based on ability to use multiple pieces of equipment, so a dump truck operator who was passed out on five pieces of equipment would be paid at a higher pay rate than a person who merely drove dump trucks or a water cart. He agreed that the appellant was in fact on a higher pay gradient, that higher gradient reflecting the multiple pieces of machinery that he could and did operate prior to injury, and that he continued to be so during the course of his return to work programme.
In relation to his statement that he would have expected to have heard if the appellant had been complaining of difficulties with his back, Mr Pyman agreed that the appellant was not the complaining type and that he would try and get on with the job, although he also felt that, if the appellant had something to complain about, he would have known about it, given his conversations with him.
He said the excavator with the rock breaker attached was a track machine and therefore did not have any suspension. He agreed that, if the appellant had had a problem with driving a vehicle that did not have suspension, he would not have been put on the rock breaker.
I turn now to the arbitrator's decision.

The arbitrator's decision

In the introduction to her decision, the arbitrator described the appellant's claim thus:
On 23 September 2014, Mr West was made redundant. Mr West contends that he is entitled to weekly payments for deemed total incapacity for the period between 23 September 2013 (sic: 2014) and 31 January 2015. He also contends that he is entitled to payments for partial incapacity from 31 January 2015 as he earns less in his new employment than he did with BGC due to his injury.
The arbitrator saw the issues for determination as follows:
(a)What were Mr West's pre-injury duties?
(b)At the point of his redundancy, had Mr West 'returned to work' or was there some residual physical incapacity?
(c)If there was a residual physical incapacity, did Mr West suffer from a deemed total incapacity between 23 September 2013 (sic: 2014) and 31 January 2015?
(d)If there was a residual physical incapacity, has Mr West been partially incapacitated since 31 January 2015?
As to the first issue of the appellant's pre‑injury duties, after reviewing the evidence and the differences between the appellant's evidence and that of Mr Pyman as to whether or not the appellant could properly have been described as an 'all‑rounder', the arbitrator found that, prior to the injury, the appellant was skilled and qualified to drive dump trucks, water carts, excavators and integrated tool carriers and that he did operate those machines as part of his role at BGC.
In reaching that finding, the arbitrator referred to the certificates of qualification filed by the appellant, and said there was no dispute that he was qualified to use those machines and noted there did not seem to be any great dispute that from time to time he probably did operate those machines.
The arbitrator noted that the brief reference from Mr Swarbrick, project manager at BGC, appeared to corroborate the evidence of the appellant that he did operate rock breakers, small scale wheel loaders (which I gather is the small front end loader) and integrated tool carriers. She noted, however, that the evidence did not provide details of any pay rise on the basis of his operation of that equipment.

In this case, then, the appellant had to prove what he could earn and, in relation to the period of his unemployment, he sought to prove that he could not earn anything due to the lack of suitable employment available. The mere fact of unemployment does not discharge this burden. Further, he had to prove that this inability to earn was compensable, that is to say that it flowed from the partial incapacity resultant on the injury and not purely from non‑compensable factors.
There was no evidence that the appellant had been made redundant on account of his injury. He tendered a work reference from the Project Manager of BCG stating that he had been made redundant 'due to the current climate' and due to BGC reducing its mining volumes. Four months after being made redundant, he was able to gain employment in the mining industry, albeit earning rather less and driving dump trucks only. The fact that he was able to gain that employment was a fact to be taken into account in assessing whether his unemployment for four months was compensable.
What was put before the arbitrator to establish that he was unable to earn anything was only the appellant's evidence that he had made 'enquiries' with six mining companies in relation to the potential position of a dump truck driver and two mining companies in relation to the potential position of a diamond driller and that he had registered with Mining Employment Services, Mining Australia and Seek Online Services to notify him of any potential job opportunities in this State. It was plain from his evidence that he did not actually apply for the job of dump truck driver or diamond driller with any of those companies, because of his opinion that there was no prospect of his passing the medical test he expected they would administer.
In other words, he obtained the one job he applied for. No evidence was given about what the 'enquiries' made of mining companies consisted of, not the substance of any conversations, not the names or positions of persons to whom he spoke, and not details of any information he was given about medical tests he would be expected to sit.
No evidence was given as to the basis for his knowledge of such medical tests, nor any details of what aspects of the test he expected to fail and the impact that would have on his prospects. No evidence was given as to whether his final medical certificate clearing him for work could have been used in his favour. No medical evidence was given by any doctor about the medical tests and what aspects he might be expected to fail and why. There was no suggestion that he was hampered by being currently certified by some doctor within the industry or otherwise as being unfit for work, or fit for only light duties, or subject to restrictions. His last medical certificate had cleared him for work on the basis that he was fit.
He gave no evidence of any attempt to sell his labour as a person who could operate a dump truck, a water cart and an excavator with a rock breaker attached. All of the evidence suggests that he is capable of working in such a capacity and that he could earn more if he did. He gave no evidence about the extent to which a requirement to take a break every two hours, the restriction he said he remained subject to, set him apart from other workers or whether he had any conversations with any person at any prospective employer about the regularity of breaks. He said that he could not now pursue working on other items of equipment with his current employer because of his 'deteriorating condition' with no medical evidence being led to support that contention, particularly against a backdrop of improvement in his condition between his injury and late October 2013, and Dr Silbert's opinion that there was no evidence which would represent any increased risk of recurrence or deterioration in his symptoms to 65 years and beyond.
The appellant did not call any other witness who might have been able to give evidence about medical tests employed by mining companies and whether an ability to pass every aspect was a requirement for every job, or more so for some jobs than others, and also the challenges faced by workers in the position of the appellant in obtaining employment in the face of an inability to pass every aspect. If there was difficulty in finding a human resources person from the mining industry to give such evidence, then evidence from a medical witness from a rehabilitation provider or even a union representative who had extensive experience with the challenges workers face with potential medical testing would have added some meat to the very bare bones the arbitrator was presented with.
No evidence was given to the effect that the appellant had tried to find employment in any other industry which might have use for the skills of a person who could operate a dump truck, water truck and an excavator with attachments.
This is not a case where it could be demonstrated that the work he sought was unavailable, in the sense that it was seasonal. This was not a case where, based on his repeated attempts to secure employment and after knock-back after knock-back, the arbitrator could infer that no-one would employ him with his incapacity.
That is not to say that in this case, or any case, all of these areas must necessarily be the subject of evidence in addition to evidence from the worker himself. But in this case the arbitrator was faced with a scarcity of evidence in all of these areas.
It is not the role of the Act to make a past employer insure the worker against unemployment not related to injury. No evidence was given about the state of the market to enable the arbitrator to assess whether his inability to get work – that is work he did not apply for – was on account of his injury, wholly or at least in part, or purely on account of the state of the market. No evidence was given beyond the appellant's past and current earnings to support a drop in salary of 50% on account of an inability to operate an integrated tool carrier and front end loader when the appellant was still multi-skilled. Such evidence might have been given by a rehabilitation provider.
Although evidence of his current earnings is prima facie evidence of what he can earn, in this case there is evidence to suggest his current salary represents less than he can earn given that, for at least a year, he worked using a broader range of machinery than he currently uses, and there is no evidence that he has, with his current employer, attempted to work using that range of machinery. While his employment with BGC does not establish that he is still capable of earning $120,000, it is for the appellant to establish his loss.
When considering his claim for weekly payments once he got employment, and commenting that there was no evidence that an all‑rounder could earn $120,000 in today's market, the arbitrator stated at [113]: 'even if I was satisfied that there was a residual incapacity, I am not able to form a view that any reduction in his pay is as a result of his injury, and not due to any other factors'.
The arbitrator, at [88] – [102], addressed the lack of evidence before her, commenting at [94]:
If, as a result of Mr West's own (medically unqualified) view of his inability to pass such tests, he never actually applied for such employment, it is difficult to arrive at any conclusion as to how West failed to have obtained this 'suitable employment'.
While it may be explicable that a worker fails to apply for jobs he does not consider he is capable of getting, in such circumstances it would be all the more important to lead supporting evidence justifying his pessimism based upon medical grounds and the sort of evidence a rehabilitation provider or even a relevantly experienced union representative could give about the medical tests mining companies impose on new recruits, what they consist of and the implications of failure (and whether there are degrees of failure) and the challenges for workers if they are not able to pass a test, as well as the worker's inability on medical grounds to pass the test. Obviously every case differs as to what evidence is required to prove the case, but the onus is upon the worker to prove what he is able to earn and, if his argument is that he is able to earn nothing during a period of unemployment, because no suitable employment was available, then to prove that to the satisfaction of the fact‑finder. He failed to do so.
Before the arbitrator, the appellant placed reliance on the case of Kotua v Leighton Contractors Pty Ltd (unreported CM‑45/02, delivered 17 October 2002) as an example of a case where a worker argued (successfully on appeal) that, while he had a partial capacity to work, he was not able to earn anything in suitable employment because no suitable employment was available to him, given his medical restrictions. On appeal, the learned compensation magistrate found that the review officer had not taken into account the worker's detailed and unchallenged evidence that he had medical restrictions imposed on him by his doctor restricting him to light duties only, that he had applied for any work at all that he could do, that he had had discussions with a number of named employers and also his union in which he had felt obliged to disclose that he was not cleared as fit for work apart from light duties and, in each case, was told that without a medical certificate he could not be employed.
The case – which is not binding - is readily distinguishable from this case, because in Kotua there was evidence before the arbitrator of both the considerable medical restrictions upon the worker and his inability to get a certificate clearing him for work, and of the actual interactions between the worker and those from whom he had tried to find employment and their responses, tying their refusal to consider him for work very plainly to his medical restrictions and therefore his incapacity. The case does not assist the appellant because such evidence was not before this arbitrator.
While there was error in the arbitrator considering the appellant's case in relation to the period of unemployment pursuant to cl 8, when that was not the appellant's case, a consideration of the reasoning behind the arbitrator dismissing that claim reveals that no different result would have been reached had she instead, or in addition, considered the claim pursuant to cl 7(2) and, on that basis, this grounds fails.
The error was in any event not material because it was not the basis for the overall dismissal of the appellant's case and was only considered by the arbitrator in case she had erred on the factual issue of whether the appellant had proved partial incapacity.

Conclusion

For the reasons stated above, overall the appeal must fail.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DD
Associate to Judge Sweeney
20 FEBRUARY 2019