Wollongong Nursing Home Pty Ltd v Dewar
[2014] NSWWCCPD 55
•2 September 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 | ||
| APPELLANT: | Wollongong Nursing Home Pty Ltd | ||
| RESPONDENT: | Carol Dewar | ||
| INSURER: | QBE Worker’s Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-8419/13 | ||
| ARBITRATOR: | Mr W Dalley | ||
| DATE OF ARBITRATOR’S DECISION: | 13 March 2014 | ||
| DATE OF APPEAL DECISION: | 2 September 2014 | ||
| SUBJECT MATTER OF DECISION: | Claim for weekly compensation; meaning of “no current work capacity”, “current work capacity” and “suitable employment” in s 32A of the Workers Compensation Act 1987; relevance of unavailability of light duties previously provided by the employer; relevance of Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 in light of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | David Veasey | |
| Respondent: | Slater & Gordon Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1 and 2 of the Certificate of Determination dated 13 March 2014 are revoked and the following order is made in their place: “(a) The respondent employer is to pay the applicant worker weekly compensation in the sum of $269.72 from 13 September 2013 to 3 November 2013 and in the sum of $249.60 from 4 November 2013 to 9 December 2013.” 2. The applicant worker’s entitlement to weekly compensation from 12 August 2013 to 12 September 2013 and from 10 December 2013 to date and continuing, if any, is remitted to another Arbitrator for re-determination in accordance with the reasons in this decision. 3. Paragraph 3 of the Certificate of Determination dated 13 March 2014 is confirmed. 4. No order as to costs. | ||
INTRODUCTION
This appeal concerns a claim for weekly compensation under Pt 3 Div 2 of the Workers Compensation Act 1987 (the 1987 Act), as amended by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amendments). It turns on the meaning of the phrases “no current work capacity”, “current work capacity” and “suitable employment” in s 32A of the 1987 Act.
More specifically, the appeal challenges the Arbitrator’s finding that the worker, whose treating general practitioner had certified her fit for suitable duties, had “no current work capacity” because, before employment can be viewed as “suitable employment”, as defined in s 32A, there must be a capacity “which is at least potentially able to be realised for financial reward on the labour market” ([178]).
BACKGROUND
The respondent worker, Carol Dewar, started work in 2000 with the appellant employer, Wollongong Nursing Home Pty Ltd (the Nursing Home). She worked as a permanent part-time assistant in nursing at the Nursing Home’s aged care facility. From about 2007 or 2008, she worked 16 hours per week over Saturdays and Sundays. Her duties involved heavy lifting and dealing with aggressive patients, some of whom suffered from dementia.
On 12 January 2013, Mrs Dewar injured her right shoulder in the course of her employment with the appellant. After a brief period off work, she returned to work on light duties in early February 2013. The evidence about the nature of those duties is, on one view, inconsistent. In her statement of 16 April 2013, Mrs Dewar said that she was given light duties (in February 2013) “making beds, feeding patients, cutting nails and general cleaning”.
In her statement of 18 October 2013, Mrs Dewar said that she worked on suitable duties in accordance with her WorkCover medical certificates, which certified her fit for eight hours two days per week with a carrying capacity of two kilograms with her right arm. She was not to perform any shoulder activities with her right arm. She said that she worked on light duties in the laundry, folding washers and towels. While doing this work she experienced a burning pain in her right shoulder. She had pain in the right shoulder after finishing a day at work and had difficulty lifting her right arm to put her clothes on.
Mrs Dewar worked on light duties until they were withdrawn on 19 August 2013, the insurer having denied liability on 12 August 2013 because it disputed injury, among other things.
On 13 September 2013, at her own expense, Mrs Dewar underwent surgery on her right shoulder.
On 17 December 2013, Dr Sherrell, Mrs Dewar’s treating general practitioner, issued a WorkCover medical certificate in which he certified her fit for work for eight hours per day two days per week with a lifting restriction of two kilograms on her right hand, no above shoulder height activities with her right arm and no pushing and pulling. Mrs Dewar presented that certificate to the Nursing Home on 24 December 2013 and was told that there were no suitable duties available.
In her statement of 12 February 2014, Mrs Dewar said that her arm remained very weak and the only light duties she would be able to perform at the Nursing Home were reading to patients and feeding them. She could not lift her right arm above head height and had constant pain in it. She had been looking for work in her local newspaper and in online job sites, but did not identify the jobs she thought she could do.
The claim before the Arbitrator was for weekly compensation from 12 August 2013 to date and continuing and for hospital and medical expenses. The appellant’s insurer disputed injury, whether employment was a substantial contributing factor to any injury, whether Mrs Dewar had any entitlement to weekly compensation under Pt 3 Div 2 of the 1987 Act, and whether treatment expenses for surgery to the right shoulder were reasonably necessary treatment as a result of the injury.
The Arbitrator found against the Nursing Home on all issues. The only issue relevant to the appeal is the dispute about Mrs Dewar’s entitlement to weekly compensation. On this issue, counsel for the Nursing Home submitted at the arbitration that:
(a) Mrs Dewar had demonstrated that she was fit for suitable employment, as provided by the Nursing Home up to August 2013;
(b) the definition of suitable employment in s 32A applied regardless of whether the work or employment is “available”;
(c) Mrs Dewar had been in suitable employment up to 12 August 2013 and that capacity continued notwithstanding that suitable duties were no longer available after that date, and
(d) Mrs Dewar should be found fit for suitable employment from 12 August 2013 to 12 September 2013 (the day before her surgery) and from 10 December 2013.
The Arbitrator said (at [168]) that Dr Sherrell’s view about Mrs Dewar’s current work capacity, as reflected in his WorkCover medical certificate of 17 December 2013 (see [8] above), was supported by the notes attached to the operation report issued by Associate Professor Haber, Mrs Dewar’s treating orthopaedic specialist. (It does not appear that there was any other evidence on the issue of Mrs Dewar’s work capacity.)
The Arbitrator found that Mrs Dewar had “no current work capacity” from 12 August 2012 to date and continuing. He found (at [170]) that the words “employment in work for which the worker is currently suited”, in s 32A, imply “capacity which is, of its nature, capable of sale on the labour market”. While acknowledging that the 2012 amendments removed the requirement that allowance must be made for the availability of work, the Arbitrator said that the “suitable employment” must still “represent real work and not ‘made up’ duties” ([171]).
The Arbitrator referred to Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 (Lawarra Nominees) and Moran Health Care Services v Woods (1997) 14 NSWCCR 499 (Woods). In particular, he referred to the statement by Mason P (Beazley JA and Grove AJA agreeing) in Woods (at 503) that the “eye of the needle” test does not represent a correct approach to the concept of “total incapacity”.
Dealing with the 2012 amendments, the Arbitrator observed, at [181]:
“181.Although the 2012 amendments have substantially altered the labour market test, I do not think the effect of the amendments is to place a theoretical economic value upon a limited capacity which is unsaleable in the real world.”
Turning to other provisions in the legislation, the Arbitrator noted that the requirement in s 35(1) of the 1987 Act, to assess the amount “the worker is able to earn”, “strongly suggested that it is the extent to which ‘suitable employment’ is capable of producing income which is the significant factor” ([183]). The fact that the light duties Mrs Dewar had been performing with the Nursing Home (folding washers and towels) were no longer available to her suggested that the work she had been performing had been “created simply for the purpose of supplying suitable duties and did not represent a reasonable exchange of labour in return for payment in the eyes of the [Nursing Home]” ([184]).
Therefore, while the tasks Mrs Dewar performed (while on light duties up to 19 August 2013) may have been tasks that were within her physical capacity, they did not represent “suitable employment” in “the sense of work which could be performed for reward within the Australian industrial regime which prescribes a minimum hourly payment for workers” ([184]). The Arbitrator was satisfied that, as a result of restrictions from her right shoulder injury, Mrs Dewar would be “unable to sell her restricted abilities to perform work” ([185]). Thus, he concluded that she had no current work capacity from 12 August 2013 to date and continuing.
The Commission issued a Certificate of Determination on 13 March 2014 in the following terms:
“The Commission determines:
1. The respondent is to pay the applicant weekly payments of compensation:
(a)in the sum of $296.72 per week from 12 August 2013 to 3 November 2013 pursuant to section 36(1)(a) of the Workers Compensation Act 1987, and
(b)in the sum of $249.60 per week from 4 November 2013 to date and continuing pursuant to section 37(1)(a) of the 1987 Act.
2. The respondent is to have credit for payments made pursuant to section 36 of the Workers Compensation Act 1987 other than payment made in respect of the applicant’s absence from work on 26 and 27 January 2013.
3. The respondent is to pay the applicant's reasonably necessary treatment expenses in respect of injury to the right shoulder at 12 January 2013 pursuant to section 60 of the 1987 Act.”
The Nursing Home has appealed the award for the periods from 12 August 2013 to 12 September 2013 and from 10 December 2013 to date and continuing. It has conceded that Mrs Dewar is entitled to weekly compensation for the period from 13 September to 9 December 2013, when she was recovering from surgery. For the reasons explained below, the appeal is successful.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Nursing Home has sought an oral hearing, but given no reason why that is required. Mrs Dewar has consented to the matter being determined on the papers without an oral hearing. As the issue is within a narrow compass, and as the parties have both provided detailed written submissions, I do not believe that an oral hearing is required in this matter. Having regard to the parties’ written submissions, and the other papers in the file, I am satisfied that I have sufficient information to proceed “on the papers” without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Mrs Dewar had no current work capacity;
(b) failing to properly apply s 32A and the definition of suitable employment in that section, and
(c) considering whether Mrs Dewar could sell her labour in the labour market rather than deciding what employment she was capable of performing.
THE LEGISLATION
Section 32A defines “current work capacity” to mean:
“a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.”
It defines “no current work capacity” to mean:
“a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The term “suitable employment” is defined, in the same section, to mean:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the WorkCover Guidelines may specify, and
(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
Section 33 provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
Sections 35, 36 and 37 provide:
“35 Factors to determine rate of weekly payments
(1) For the purposes of the provisions of this Subdivision used to determine the rate of weekly payments payable to an injured worker in respect of a week:
AWE means the worker’s pre-injury average weekly earnings.
D (or a deductible amount) means the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week (whether or not received by the worker during the relevant period), being a non-pecuniary benefit provided by the employer for the benefit of the worker or a member of the family of the worker.
E means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
(a) the amount the worker is able to earn in suitable employment,
(b) the workers current weekly earnings.
MAX means the maximum weekly compensation amount.
(2) If the determination of an amount for the purpose of determining the rate of weekly payments payable to an injured worker results in an amount that is less than zero, the amount is to be treated as zero.
36 Weekly payments in first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of:
(a) (AWE × 95%) − D, or
(b) MAX − D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the rate of:
(a) (AWE × 95%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
37 Weekly payments in second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 95%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.”
SUBMISSIONS
The Nursing Home’s submissions have been presented in two separate documents. The first, prepared by its solicitor, David Veasey, did not comply with Practice Direction No 6 because they did not identify any grounds of appeal. That was unsatisfactory and delayed the resolution of the appeal until, at the direction of the Commission, further submissions were prepared which complied with the Practice Direction. The second, prepared by Mr McManamey, barrister, identified the grounds of appeal set out above and made submissions addressing those grounds.
Mr Veasey submitted that the work Mrs Dewar was capable of performing was more than an artificial or theoretical capacity. In any event, he argued that there was no justification for the Arbitrator’s finding that the definition of suitable employment in s 32A carried with it an implication that the work be, of its nature, capable of sale on the labour market. He said that s 32A states that the availability of work, whether it be of a type or nature that was generally available in the market, or the nature of the worker’s pre-injury employment, or the whereabouts of the worker’s residence, are all irrelevant factors.
In response, counsel for Mrs Dewar, John Wilson, submitted that s 33 of the 1987 Act, which states that if total or partial incapacity for work results from an injury, the compensation payable shall include a weekly payment during the incapacity, has not been amended by the 2012 amendments. Therefore, the (previous) case law applies.
Mr Wilson referred to the test of “incapacity” stated in Ball v William Hunt & Sons Ltd [1912] AC 496 (Ball) and submitted that there is no issue that Mrs Dewar has an incapacity pursuant to s 33 and that she is entitled to weekly payments during the period of the incapacity. He said that ss 36 and 37 merely provide the methodology to calculate how much that compensation should be.
Mr Wilson contended that the phrases “current work capacity” and “no current work capacity”, which are both used in ss 36 and 37, have no purpose except to determine which of the subsections in ss 36 and 37 applies. To determine this question, it is necessary to consider the definitions of “current work capacity” and “no current work capacity” in s 32A. In considering these, the question is, so it was submitted:
“(a) If [Mrs Dewar] is not able to return to work, either in [her] pre-injury employment or in suitable employment, then she has ‘no current work capacity’ and will receive the rate of compensation under Section 36(1) or 37(1).
(b) If [Mrs Dewar] is not able to return to her pre-injury employment but is able to return to work in suitable employment, then she has ‘current work capacity’ and will receive the rate of compensation under Section 36(2), or Section 37(2) or (3).”
Mrs Dewar is not able to return to her pre-injury employment as an assistant in nursing. The question is whether she is able to return to work in suitable employment. Under the definition of suitable employment, it is necessary to have regard to the worker’s incapacity, the details provided in medical information, and the worker’s age, education, skills and work experience, amongst other matters.
In considering the definition of suitable employment, the Arbitrator considered the nature of Mrs Dewar’s incapacity, her physical restrictions, the details in the medical information, her age, education, skills and work experience in the aged care industry, and that she had “very substantial restrictions”.
In concluding that Mrs Dewar has “no current work capacity”, the Arbitrator had regard to the factors in sub-s (a) of the definition of “suitable employment”, but (correctly) he did not have regard to whether the work or employment is available, whether the work or the employment is of a type or nature that is generally available in the employment market, nor the nature of the worker’s pre-injury employment, nor the worker’s place of residence.
Mr Wilson referred to, and relied on, passages from Lawarra Nominees, which emphasised that the exercise in assessing incapacity under the 1987 Act, prior to the 2012 amendments, was a “practical exercise” that involved the “assessment of a capacity ‘for work’ having regard to the realities of the labour market in which” the worker is to be engaged. He also relied on passages in Ball, quoted in Woods, to the effect that there is incapacity for work when a worker has a physical defect that makes his or her labour unsaleable in any market reasonably accessible to the worker and there is partial incapacity for work when such defect makes the worker’s labour saleable for less than it would otherwise fetch.
Therefore, in considering the concept of “suitable employment”, in order to determine “current work capacity” pursuant to s 32A, for the purpose of determining the rate of compensation to be awarded under ss 36 and 37, the Arbitrator found Mrs Dewar had “no current work capacity” and made calculations pursuant to ss 36(1) and 37(1).
Mr Wilson then made submissions on the approach to be taken in the event that the appeal was successful. As the matter must be re-determined, it is not necessary to deal with those submissions.
Mr McManamey submitted that the Arbitrator erred in determining the issue of capacity by asking whether Mrs Dewar had capacity which, by its nature, was capable of sale in the labour market. He said that, as a consequence of the 2012 amendments, Lawarra Nominees and Woods are no longer a statement of the applicable law and regard is no longer had to the essential elements of the labour market.
Therefore, it is no longer relevant whether the employment is available, either specifically or generally, and it is no longer relevant whether Mrs Dewar is able to obtain the work. It is sufficient that there is some kind of theoretical employment that is within the injured worker’s capacity. The saleability of the labour is no longer the question. Equally, it is no longer a question of the labour market.
Mr McManamey argued that the proper question under the amended definition is whether the worker is capable of performing some form of work for any period of time, regardless of whether an employer exists who would provide that work. To consider the question in respect of the old idea of the labour market reasonably accessible to the worker is to deny any effect to the 2012 amendments.
Having reached a conclusion about Mrs Dewar’s physical restrictions, Mr McManamey submitted that the Arbitrator should have then considered what jobs could be performed with those restrictions, having regard to the other matters in the definition of suitable employment. Instead, the Arbitrator asked whether Mrs Dewar’s labour was saleable, but without identifying the types of jobs Mrs Dewar was capable of doing.
Mr McManamey further submitted that the Arbitrator’s factual findings in respect of the medical incapacity were inconsistent with an ability to perform work of some type, incuding the light duties she had performed at the Nursing Home. As the Arbitrator did not consider the proper question, the Arbitrator’s orders should be revoked and the matter remitted for re-determination by another Arbitrator.
Though invited to do so, Mrs Dewar’s solicitors advised in writing on 8 August 2014 that they would not be filing any further submissions.
DISCUSSION AND FINDINGS
In effect, the Arbitrator asked whether the light duties job previously offered by the Nursing Home, which he said was “folding washers and towels”, was “suitable employment” within s 32A. He determined that, because that job was no longer available, and was not “saleable in the real world”, it was not suitable employment. In other words, he assessed whether Mrs Dewar was able to return to work in “suitable employment” by reference to the availability of the (light duties) job with the Nursing Home rather than by reference to the legislation. That approach was erroneous.
He added that the unavailability of the previous light duties with the Nursing Home suggested that that work had been “created simply for the purpose of supplying suitable duties and did not represent a reasonable exchange of labour in return for payment in the eyes” of the Nursing Home. The Arbitrator erred in his approach because he failed to consider Mrs Dewar’s ability to return to work in suitable employment by reference to her capacity to work, as demonstrated by the evidence. Instead, he focused solely on whether the light duties Mrs Dewar had performed with the Nursing Home, and which were no longer available, were “suitable employment”.
The new provisions require a determination of whether a worker has a “current work capacity” or “no current work capacity”. A “current work capacity” is an “inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment”. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. “No current work capacity” exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.
Having accepted that Mrs Dewar has an “inability” arising from her work injury, the Arbitrator’s task was to determine, having regard to the matters listed in the definition of suitable employment, if she was “able to return to work in suitable employment”. The legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is “available” or is of a type or nature that is “generally available in the employment market”.
The determination of whether a worker has a current work capacity or no current work capacity will depend on all the evidence. In the present case, given the evidence from Dr Sherrell and Associate Professor Haber, which was the only expert evidence that touched on Mrs Dewar’s work capacity, there being no reports from any rehabilitation or vocational experts, it was not open to the Arbitrator to find that, in the periods in dispute, Mrs Dewar had no current work capacity.
Mrs Dewar clearly had and, presumably, continues to have, the capacity identified by Dr Sherrell in his WorkCover medical certificate of 17 December 2013. Though (at [176]) the Arbitrator noted Mrs Dewar’s age, that she has had employment only in the aged care industry for the past 13 years, and that she has very substantial restrictions (as identified by Dr Sherrell), he did not identify how those matters led to the conclusion that she was not “currently suited” for the employment for which she had been certified fit.
After referring to Lawarra Nominees, the Arbitrator said that, to be viewed as “suitable employment”, there must be a capacity that is at least “potentially able to be realised for financial reward on the labour market”. If, by that statement, the Arbitrator meant that the work had to be available in a labour market reasonably accessible to Mrs Dewar, his statement was inconsistent with s 32A and was wrong. If the Arbitrator meant that the suitable employment must be employment that is real and is (potentially) available in the labour market at large, though not available to Mrs Dewar and not “generally available in the employment market”, I agree.
However, even if the light duties Mrs Dewar performed up to 19 August 2013 fell into that category, that is, they were not real employment or work that was potentially available in the labour market at large, an issue that the Arbitrator did not properly determine in any event, that did not relieve the Arbitrator of his obligation to determine if Mrs Dewar was fit for other suitable employment.
Regardless of what the Arbitrator meant by “potentially able to be realised for financial reward”, he did not explain why Mrs Dewar could not have (potentially) realised her capacity for reward. The unavailability of her previous light duties with the Nursing Home did not answer that question. There was no evidence of the kind of jobs for which Mrs Dewar had applied, but it is reasonable to assume that they were real jobs that she felt were within her capacity and, significantly, within the restrictions in Dr Sherrell’s certificate. Thus, on the evidence, Mrs Dewar has a capacity (potentially) able to be realised for reward. (It should be noted that the mere fact that Mrs Dewar applied for certain jobs is not, on its own, determinative of whether she has a current work capacity: Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 at [39].)
In light of the 2012 amendments, care must be exercised in relying on Lawarra Nominees and Woods. Under those authorities, the task of assessing whether a worker was wholly or partially incapacitated was a “practical exercise” that “involve[d] the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which [the worker] is to be engaged” (Mahoney P at [30] in Lawarra Nominees).
This approach was consistent with the High Court’s decision in Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171, where Mason, Wilson, Deane and Dawson JJ said (at 178) that “the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work” (emphasis added).
It is the emphasised words in the two preceding paragraphs that have effectively been eliminated by the directions in s 32A that employment for which the worker is currently suited is determined “regardless of” whether the work or employment is “available” and regardless of whether it is “of a type or nature that is generally available in the employment market”. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is “suited” for suitable employment.
There is nothing in the context of the definition of suitable employment to suggest that “available” should be given anything other than its relevant dictionary meaning. The third meaning attributed to “available” in the Shorter Oxford English Dictionary (Oxford University Press, 6th ed, 2007) is “[a]ble to be used or turned to account; at one’s disposal; within one’s reach, obtainable”. Thus, just because the suitable employment the worker is able to perform is not “available” in the labour market in which the employee was working or might reasonably be expected to work does not justify a finding that the worker has no current work capacity.
However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that “suitable employment” must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s “inability arising from an injury”. Suitable employment means “employment in work for which the worker is currently suited” (emphasis added).
The word “employment” is not defined in the legislation. Its common meaning is “the state of being employed”. However, “worker” is defined. It means, subject to specified exclusions, “a person who has entered into or works under a contract of service or a training contract with an employer” (s 4 of the 1998 Act). In context, the phrase “employment in work”, in the definition of suitable employment, “in relation to a worker”, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
Therefore, the determination of whether a worker is “able to return to work in suitable employment” is not a totally theoretical or academic exercise and Mason P’s reference to the “eye of the needle” test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.
If the Arbitrator meant to say that Mrs Dewar’s light duties with the Nursing Home were artificial in the sense referred to in the preceding paragraph, and therefore not suitable employment within the terms of s 32A, he did not properly explain how that was so. That is because the evidence about the light duties performed by Mrs Dewar was inconsistent and the Arbitrator did not resolve that inconsistency. In any event, even if it were accepted that the light duties were not “suitable employment” that did not relieve the Arbitrator of his obligation to apply the remaining provision of s 32A to determine if Mrs Dewar was able to return to work in suitable employment.
The determination of what is suitable employment is a practical exercise that is conducted “having regard to”:
(a) the nature of the incapacity and the details provided in medical information;
(b) the worker’s age, education, skills and work experience;
(c) any return to work plan, and
(d) any occupational rehabilitation services that have been provided to the worker.
However, without regard to:
(a) whether the work or employment is available, that is, obtainable;
(b) whether the work or the employment is of a type or nature that is generally available in the employment market;
(c) the nature of the worker’s pre-injury employment, and
(d) the worker’s place of employment.
Thus, the task requires the identification of whether there are any “real jobs” (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are “available” (to the worker) or are “of a type or nature that is generally available in the employment market”. The Arbitrator did not properly undertake that task and did not resolve the conflict in the evidence about the nature of the light duties Mrs Dewar performed (see [4] and [5] above).
In determining if a worker is “not able to return to work” in suitable employment there will often be issues about the suitability of the work in question. Such issues will be determined on a case-by-case basis, depending on the available evidence dealing with the issues in sub‑s (a) of the definition. In the present case, the only evidence that addressed the issue, including the evidence from Mrs Dewar, was that she was fit for suitable employment, but with the restrictions noted by Dr Sherrell. Though the evidence of the kinds of jobs Mrs Dewar could now perform, given her present inability arising from her injury, was in a most unsatisfactory state, that did not relieve the Arbitrator from performing his statutory task.
The Arbitrator’s reliance on s 35 does not assist. That section identifies the factors to be used to determine the rate of weekly compensation payable. Before one considers that section, one must determine whether the worker has a current work capacity. The words “the worker is able to earn in suitable employment” in s 35 do not govern the meaning of “current work capacity” or “suitable employment”. Those terms are defined in s 32A.
If there is a current work capacity, that is relevant to calculating “E” (the amount to be taken into account as the worker’s earnings after the injury, where the worker is not employed), which is then used in the equations in ss 36(2) and 37(2) and (3). If there is no current work capacity, one looks to s 36(1) or s 37(1), depending on whether the claim is in the first or second entitlement period.
Thus, the words “the amount the worker is able to earn in suitable employment” in s 35 are not relevant to the preliminary question of whether a worker has a current work capacity. They are, however, relevant to determining the amount to be taken into account as the worker’s earnings after the injury where he or she is not employed. In assessing that amount, the reference to “the amount the worker is able to earn in suitable employment” is a reference to the amount the worker is able to earn in suitable employment, as that term is defined in s 32A.
I accept, as Mr Wilson has submitted, that Mrs Dewar has an incapacity, and that ss 36 and 37 provide the methodology for calculating the amount of weekly compensation payable. However, that does not mean that the phrases “current work capacity” and “no current work capacity” have no purpose other than to determine which of the subsections in ss 36 and 37 applies. Before getting to ss 36 and 37, there must be a determination of whether the worker has a “current work capacity” or “no current work capacity”. That is determined by reference to the definitions in s 32A.
CONCLUSION
It follows that the Arbitrator’s award of weekly compensation for the periods from 12 August 2013 to 12 September 2013 and from 10 December 2013 to date and continuing cannot stand. The Arbitrator’s findings on injury and his order for the payment of necessary treatment expenses have not been challenged and remain on foot and binding. As the Nursing Home has made no submissions that allow me to re-determine the matter, it must be remitted to a different Arbitrator for that to be done.
It is a matter for the parties how they conduct the next arbitration. However, I would have thought that, at a minimum, it would be necessary to tender relevant evidence as to the kinds of jobs that Mrs Dewar is now fit to perform. Moreover, it will be necessary for a finding to be made as to the nature of the light duties Mrs Dewar performed with the Nursing Home and to then determine whether those duties come within the definition of “suitable employment”.
If it is determined that the light duties were not “suitable employment”, it will then be necessary to determine if there is other “employment in work for which [Mrs Dewar] is currently suited” and the rate of remuneration of that employment.
DECISION
Paragraphs 1 and 2 of the Certificate of Determination dated 13 March 2014 are revoked and the following order is made in their place:
“(a) The respondent employer is to pay the applicant worker weekly compensation in the sum of $269.72 from 13 September 2013 to 3 November 2013 and in the sum of $249.60 from 4 November 2013 to 9 December 2013.”
The applicant worker’s entitlement to weekly compensation from 12 August 2013 to 12 September 2013 and from 10 December 2013 to date and continuing, if any, is remitted to another Arbitrator for re-determination in accordance with the reasons in this decision.
Paragraph 3 of the Certificate of Determination dated 13 March 2014 is confirmed.
COSTS
No order as to costs.
Bill Roche
Deputy President
2 September 2014
I, JACQUELINE HAGGER CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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