PUBLISHED THE 23RD DAY OF DECEMBER**, 1999.**

Judicial determination - Two preliminary issues - (1) Whether the determination the subject of this hearing is flawed - Whether section 42A determinations should be construed strictly - (2) Which party should be dux litis - Held - Strict construction of such determinations is neither warranted or appropriate - Fairest and most effective method of resolving issues arising in these proceedings is for the worker to begin - S.42A Workers Rehabilitation and Compensation Act 1986.

WorkCover Corporation of SA v. Warren (1998) 72 S.A.S.R. 7.

Royal Adelaide Hospital v. Lynette Withers and WorkCover Corporation (Print number J.D.132/1999).

This is a judicial determination of a dispute between Antonio Violi (`the worker') and NZI Workers Compensation (South Australia) Limited as claims agent for the WorkCover Corporation. The relevant employer is Waggon Wheels Fruit Market. At this stage I am required to rule on two preliminary issues raised by Mr. Apps of counsel for the worker. Before identifying and dealing with them however it is convenient if I sketch some background.

On 7 December 1993 the worker sustained a compensable lower back pain disability and came to be in receipt of weekly payments of income maintenance. By a determination dated 23 March 1996 the claims agent notified the worker that it had decided to make an assessment of his future loss of earning capacity expressed as a capital sum pursuant to Section 42A of the Workers Rehabilitation and Compensation Act 1986 (`the Act'). That determination (which I shall hereafter refer to as the first LOEC assessment) was made on an interim basis for a period of one year from 15 April 1996 to 14 April 1997 and was based, inter alia, on the assertions that the worker was only partially incapacitated for work, had the capacity to perform full-time duties as he had been in a work hardening programme performing sales assistant duties with McMahons Fruit and Vegetables and also with the employer and was suited for employment which he had a reasonable prospect of obtaining as a Sales Assistant.

A challenge by the worker to that assessment failed partly at review before a Review Officer and completely on appeal to the Workers Compensation Appeal Tribunal. In particular on the appeal the learned Deputy President concluded that `full-time employment as a fruit and vegetable sales assistant was suitable employment that the worker had a reasonable prospect of obtaining'.

In the course of her decision the learned Deputy President noted that on review the thrust of WorkCover's case was directed to the worker's suitability as a fruit and vegetable sales assistant. She continued at p.9 of her reasons (BD 152):-

`The worker was cross-examined about his physical capacity to perform that work and much of the medical evidence was directed to that specific topic. In addition there was some evidence to establish that there are different categories of sales assistant with different responsibilities, physical and intellectual requirements and of varying ability. It relied upon the document, Job Prospects South Australia, (Appeal Book Vol. 2 p.233) which recognised different job prospects for different categories of sales jobs and in particular stated that one of the factors relevant to success in obtaining a sales position in certain fields is previous experience in that field. It was because the worker had experience in the fruit and vegetable area that WorkCover concentrated on this kind of employment to establish suitable employment that the worker had a reasonable prospect of obtaining as the basis of its assessment.'

On 7 April 1997 in a further determination the claims agent notified the worker that it had decided to make a further LOEC assessment. That determination was in the following terms insofar as is relevant:-

`We refer to previous correspondence regarding reassessment of your loss of future earning capacity.

NZI Worker's Compensation has decided to make a further assessment for your loss of future earning capacity on the following basis;

1. Pursuant to section 42A(4) of the Workers Rehabilitation and Compensation Act, 1986 (the Act) NZI Workers Compensation has decided to make an interim assessment of your loss of future earning capacity. The interim assessment is for a period of 52 weeks from 15/4/97 to 13/4/98 and represents a $2107.32 capital loss payment.

In a report from Mr G Fraser, an orthopaedic surgeon, he stated that, in his opinion, you would be fit forr (sic) light to moderate work with restrictions placed on your lifting capacity.

Subsequent to this you underwent a Vocational Assessment and a Functional Capacity Assessment undertaken with Career Focus. In a report on these assessments dated 3/10/96 several job options were set down that it was thought would be within your capabilities, these again being subject to certain restrictions.

We set out details of job options which it is deemed that you would be able to undertake:

1. Telemarketer/Telephone Canvasser - for this it is deemed that you could earn $395.70 per week under the Clerks Award of $10.41 per hour.

2. Sales Assistant - for this it is deemed that you could earn $400.40 per week under the Retail Industry Award of $10.54 per hour.

3. Car Park Attendant - for this it is deemed that you could earn $341.40 per week under the Vehicle Industry Award of $10.54 per week (sic).

In this determination, we have used the award rate for a Sales Assistant, as shown previously, i.e. $400.40 per week, only for the purposes of calculating the latest Capital Loss payment. However it is deemed that any of these occupations would be classed as suitable for you to undertake.

2. NZI Worker's Compensation has increased your Notional Weekly Earnings to reflect changes which have occurred in the average minimum award rate since the previous assessment. Therefore:-

Your capital loss payment was calculated pursuant to sections 42A(2) on the following basis:

(L) Capital Loss Payment [(K) x 80%] $2107.32

3. As this is an interim assessment, NZI Worker's Compensation should make a further assessment prior to the expiration of this assessment.'

By notice of dispute dated 28 April 1997 the worker disputed the decision of the claims agent on the basis that:-

`1. The determination does not take into account the opinions of the treating doctors who are Dr. Crea and Dr. Osti.

2. Employment as either a telemarketer/telephone canvasser, sales assistant or car park attendant is not available to me.

3. Employment as either a telemarketer/telephone canvasser, sales assistant or car park attendant is not suitable employment for me.

4. I am, having regard to all appropriate circumstances, in effect unemployable with respect to employment as either a telemarketer/telephone canvasser, sales assistant or car park attendant.'

Nevertheless the original determination was confirmed by the claims agent on reconsideration.

On the hearing it was the first submission of Mr. Apps that the determination of the claims agent could only stand on the basis that the deduction of $400.40 representing the agent's assessment of earnings able to be earned by the worker was removed entirely from the equation.

It was the submission of Mr. Apps that having regard to the serious consequences to the worker, Section 42A determinations should be construed strictly. He submitted that although the determination referred to the jobs of telemarketer/telephone canvasser and car park attendant (which he noted attracted different rates of pay to that of sales assistant) the determination was ultimately based solely on the worker's asserted ability to work as a sales assistant. In the circumstances it was Mr. Apps' submission that the reference to the other two jobs was irrelevant and should be excluded from consideration. In the result he argued the agent could only support the determination on the basis that work as a sales assistant was suitable work for the worker. However he submitted it was well accepted that there were many types of sales jobs requiring a variety of skills and aptitudes and differing physical requirements which the worker would not be suited to. It was his submission that it was incumbent on the agent to `appropriately identify' the job which it asserted was suitable employment for the worker in order to satisfy the provisions of Section 42A. It had not done so in this case and therefore the reduction representing the amount it was said the worker could earn in suitable employment (viz. $400.40 as a Sales Assistant) was `improperly or invalidly made' and should be deleted from the calculation of the worker's capital loss payment.

In my respectful view however the prime thrust of the submission on this aspect namely that in effect the determination should be strictly construed as if it were a pleading is misfounded. Clearly such documents are not pleadings and are commonly drawn by persons who are not lawyers. In those circumstances in my view strict construction of such determinations is neither warranted or appropriate.

In this case the notice of dispute makes clear that the worker was not confused as to what was being asserted against him. Indeed he took direct issue, inter alia, without further comment with the assertion in the determination that employment as either a telemarketer/telephone canvasser, sales assistant or car park attendant was suitable employment for him (see para. 3 of the notice of dispute, supra). Moreover, in my view if the worker was confused about what was being asserted in the notice he could have always sought particulars of the jobs said to be suitable employment by the agent.

Insofar as the determination was said to be based solely on the job of sales assistant as being suitable employment for the worker it seems to me that the passage in the determination that:-

`In this determination, we have used the award rates for a sales assistant, as shown previously, ie. $400.40 per week, only for the purpose of calculating the latest capital loss payment. However it is deemed that any of these occupations would be classed as suitable for you to undertake.'

is tantamount to contentions in the alternative that if the job of sales assistant was not suitable employment for the worker then those other jobs were and the determination could be supported on that basis if needs be mutatis mutandis.

In the circumstances then it is my view that the first submission made on behalf of the worker fails and the matter may proceed on the basis that the agent, if so advised, is entitled to lead evidence in support of its determination that, inter alia, the jobs of telemarketer/telephone canvasser, sales assistant and car park attendant are suitable employment for the worker.

The second issue debated before me by way of preliminary point was which party should be dux litis in the proceedings.

The provisions of Section 42A that may bear on this question are as follows:-

` 42A. (1) Where a worker suffers a compensable disability that results in incapacity for work for a period exceeding two years, the Corporation may assess the worker's loss of future earning capacity as a capital loss.

(2) In making the assessment, the following principles will be applied:

(a) the worker's notional weekly earnings (less an estimation of tax) will be projected forward over the remainder of the worker's notional working life;

(b) in the case of partial incapacity, the amount the worker could earn in suitable employment that the worker has a reasonable prospect of obtaining by way of average weekly earning (less an estimation of income tax) will be projected forward over the remainder of the worker's notional working life and subtracted from the amount projected under paragraph (a);

(c) the worker's capital loss will be taken to be 80 percent of the present value of the loss indicated by the above projections (and in determining the present value of that loss a prescribed discount rate must be applied).

(c) the following factors must be considered (and given fair and reasonable weight) in assessing what employment is suitable for a partially incapacitated worker -

(i) the nature and extent of the worker's disability; and

(ii) the worker's age, level of education and skills; and

(iv) the worker's ability to adapt to new employment; and

(i) suitable employment is in fact not available to a partially incapacitated worker when the assessment is made; and

(ii) the worker establishes that the worker is, in effect, unemployable because employment of the relevant kind is not commonly available for a person in the worker's circumstances irrespective of the state of the labour market,

the worker's partial incapacity for work will be treated as total incapacity, but otherwise an assessment of the weekly earnings the worker could earn in suitable employment must be made on the basis that employment of the relevant kind is available to the worker and will continue to be available to the worker for the whole, or - in the case of an interim assessment - the relevant portion, of the worker's notional working life.'

As a matter of principle it is well settled that usually `the party in any Court or Tribunal who bears the onus of proof has the right and duty to begin ... however there may be cases in which the justice of the matter calls for some variation in the normal practice'; Simpson Ltd. v. Arcipreste (1998) 53 S.A.I.R. 9 per Cox J. at p.13. In a similar vein, in that same case, Duggan J. at p.22 expressed the view that who should begin in any action at trial is `in most cases, a procedural consequence of the burden of proof'. However he went on to say that a Court or Tribunal has the power to adopt what seems to it to be the fairest and most effective procedure for conducting a hearing which would allow a departure from the general rule in an appropriate case. He warned however that:-

`The discretionary power to make such a direction must be exercised judicially and, although the onus probandi has a considerable bearing upon the right or duty to begin, it may not be decisive in every case. A direction can be given only after a consideration of the fairest and most effective method of resolving the issues which arise on appeal.'

In my view generally speaking the issue of who bears the onus of proof in Section 42A actions (certainly in the case of a first LOEC assessment) was resolved by the Full Court in WorkCover Corporation of SA v. Warren (1998) 72 S.A.S.R. 7. Although that case was decided in a different statutory context in my view the principle remains good law. In that case Cox J. at p.18 having distinguished the situation in Section 42A reviews from those in which a worker was seeking `on review to establish an entitlement to compensation that had been rejected wholly or in part by the Corporation' continued as follows:-

`The situation in the present case was fundamentally different. The respondent's entitlement to compensation under s 35 was conceded from the outset and, so far as appears, the amounts to which he was entitled from time to time by way of weekly payments were not in issue. What was in issue was the soundness of the Corporation's assessment of the compensation payable to the respondent under s 42A. The "matters to which the decision subject to review relates" (old s 96) were the facts and computations set out or implied in the Corporation's letter to the respondent of 28 March 1996 which the respondent, by his solicitors' extravagantly worded application for review of 16 May 1996, was challenging. The Corporation's decision to make an interim assessment was not reviewable, and so far as appears the assessment (whether justifiable or not) was validly made, so that, subject to compliance with subs (6) and (7) of s 42A, the respondent ceased to be entitled to weekly payments. Nevertheless it was for the Corporation, in my opinion, to justify its assessment before the review officer. That conforms with the principle underlying the passage from Simpson Ltd. v. Arcipreste that I have quoted. The parties before the review officer in effect start again. This is not necessarily inconsistent with the giving of appropriate procedural or evidential directions that are designed to dispose of the review efficiently, fairly and speedily.

That means that, generally speaking, if the Corporation in a s 42A review fails to establish on the evidence anything more than, say, the worker's notional weekly earnings, the review officer will simply reassess on the basis set out in par (a) of subs (2). It will be for the review officer to judge the adequacy of the evidence offered with respect to other relevant matters - suitable employment and so on - with the worker, exceptionally, bearing the onus of proof under par (d) of subs (3) and being faced with an irrebutable presumption of law if he does not discharge it.

It follows that I do not accept Mr Stanley's submission as to the onus of proof. The cases upon which he relies did not establish a principle that the worker always bore the onus of proof on a review under old s 95. That depended on the nature of the issue that the Corporation had decided in the particular determination under review. Margush and Summers were really cases about the proper construction of s 30(2a) of the Act. The worker bore the onus in those cases because the subject of the Corporation's determination was the entitlement of the worker to compensation. In the present case the onus was on the Corporation in the review proceedings because the issue was the correctness of the Corporation's assessment of the worker's capital loss.'

It is to be noted that in this case, like the situation in Warren, the worker's entitlement to compensation under Section 35 is conceded and the amounts to which he is entitled from time to time by way of weekly payments is not in issue. What is in issue, is the correctness of the Corporation's assessment of the worker's capital loss.

Thus had the assessment under consideration in this case been a first LOEC assessment in my view the respondent would bear the onus of proof (save for the matters referred to in Section 42A(3)(d)).

In this case of course what is in issue is a second LOEC assessment in circumstances which in respect of one of the jobs relied on in the determination viz. that of Sales Assistant there has already been a decision of the Workers Compensation Appeal Tribunal. In particular in relation to the first LOEC assessment the Tribunal concluded that full-time employment as a Fruit and Vegetable Sales Assistant was suitable employment that the worker had a reasonable prospect of obtaining. One would think in these circumstances had the claims agent used as the basis for the second assessment the same job as it had in the first there would be a strong argument that as the worker was effectively challenging the status quo he should bear the onus of proof and be called upon to begin. Of course in the determination under consideration the claims agent has sought to support its determination on a wider basis viz. that 3 jobs are suitable and obtainable.

However as the Full Tribunal noted in Royal Adelaide Hospital v. Lynette Withers and WorkCover Corporation (Print number J.D.132/1999):-

`Whilst the fact that the employer carried the burden of proof was a matter that had a considerable bearing upon determining who had the right or duty to begin, it did not create a presumption that the employer should go first. What was required was for the learned Deputy President to stand back and reflect upon what was the fairest and most effective way for the trial to be conducted. Moreover it would be quite wrong to assume that a party necessarily will obtain an advantage by going second. All parties before the Tribunal will be given a fair hearing and besides, although the legal burden remains fixed, because the evidentiary burden "may shift constantly according as one scale of evidence or another preponderates": Purkess v. Crittenden [1965] HCA 34; (1965) 114 C.L.R. 164 at 168 per Barwick C.J. a reflection at the end of the trial as to who it was who actually started will in the usual case be largely academic.

There are so many variations to the circumstances of a dispute that it would be impossible to lay down any prescriptive guidelines as to which party should be dux litis.'

* having reflected on the evidence proposed to be adduced by the parties as contained in the Book of Documents,

* having taken into consideration that subject to challenge by the worker, inter alia, is the assertion by the claims agent that the job of Sales Assistant is suitable and obtainable by the worker which insofar as it concerns the job of a Fruit and Vegetable Sales Assistant has already been the subject of a determination by a duly constituted Tribunal,

* having taken into account that there is an onus on the worker so far as Section 42A(3)(d) matters are concerned which may have to be met,

I have reached the conclusion that in this case the fairest and most effective method of resolving the issues which arise in the proceedings is that the worker begin.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to Section 89(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.