Arnold v Workcover/Royal and Sun Alliance

3 Thereafter, the Corporation set about attempting to rehabilitate the worker and amongst other things this resulted in him undertaking factory work for a company called Bordex Wine Racks ("Bordex") as a casual factory hand from 1 September 1997 to 26 February 1998. The worker's employment duties at Bordex included oiling timber and operating a cross-cutting machine and docking machine, which cuts small light weight pieces of timber.

4 It seems that the Corporation, in light of the worker's apparent success in undertaking this work, formed a preliminary view that factory work was, in the context of s 35(2)(a) of the Act, suitable work. It therefore resolved, pursuant to s 38(1), to conduct a review of the amount of weekly payments that it was paying to the worker. Accordingly, in accordance with s 38(3), the Corporation gave the worker notice of its proposed review and invited him to make written representations. This was done through a letter dated 14 March 2000 which included the following:-

"On the available evidence, a possible outcome of the review is a finding that you are fit and suited for employment as a Factory Hand from which you could earn $412.60 per week (Grade 1, upon commencement) for 8 hours per day, 5 days per week on the following basis:

We have obtained a Job Options report dated 24/2/2000 which outlines the position description of a Factory hand which is within your capacity to perform (copy of that report attached).

We have obtained medical clearance from Dr Noel Grieve dated 7/2/2000 which outlines the position of a Factory Hand from which Dr Grieve has approved for you to perform with the exception of no outdoor work.

We are in receipt of your resume which states that you are capable of performing such work on a full time basis with no physical restrictions (copy of your resume is attached).

The statement made by Sharon Beckman in the Job Options report of 24/2/2000 (Page 4) indicates that `Given his past work experience and lack of restrictions it is likely that Mr Arnold would have the greatest success in securing employment in a process or factory environment or machine operation' (copy of this statement is attached)."

5 The worker duly exercised the rights conferred upon him by s 38(3)(b) of the Act and made written representations by a letter dated 22 March 2000, through his then solicitors. It included the following:-

"Our client observes the allegations made in your letter suggesting that a possible outcome of the review is a finding that our client is fit and suited for employment as a "Factory Hand" from which our client could possibly earn $412.60 per week.

We further observe that you stated that you have obtained a medical clearance from Dr Noel Grieve dated 7/2/2000.

However, it is observed that Dr Grieve has specifically stated in each instance that our client must not engage in `outdoor work'.

The submission which we are now making on behalf of our client is in two parts:

(a) In reference to the various positions identified, we are instructed that our client will find it impossible to obtain any of such positions by virtue of the existence of the condition.

It must be remembered that our client will be required to travel to and from work as well as invariably finding himself in open air and sun and exposure to the sun in any situation that is commonly encountered in the course of employment of the nature referred to above.

(b) If our client were to be deprived of weekly earnings and in the circumstances where he is most likely not to be able to obtain any position suggested in your findings, our client will then be forced to return to employment of the type that he was suited to and in which he was engaged for many years, ie. in the construction and building industry.

There is no question that if our client does and is forced to return to the construction industry he will suffer a very serious aggravation and deterioration of his condition which will become compensable instantaneously."

6 It is notable that no complaint was made, that the description of suitable employment as "the position of a factory hand" was too vague or otherwise that it did not enable the worker to meaningfully respond to the invitation to make representations.

7 Following the receipt of the worker's representations the Corporation proceeded to make the determination that it had earlier foreshadowed. By determination dated 28 April 2000 it determined to reduce the worker's weekly payments of income maintenance to $241.76 per week on account of his alleged capacity to work as a factory hand. The worker lodged the Notice of Dispute challenging the correctness of that determination essentially on the grounds that it was against the evidence or the weight of the evidence and was unjust and unreasonable. The Corporation reconsidered its decision and resolved to confirm it. In doing so it again identified the alleged suitable employment as that of a "factory hand".

8 Thereafter the matter proceeded through the dispute resolution process provided for by the Act and ultimately the matter was referred for judicial determination. That referral in turn culminated in various pre-trial orders being made including a direction that the Corporation file a statement of issues. In that statement the Corporation described the issue in dispute between the parties as follows:-

"Whether employment as a full time factory hand at Bordex Wines is suitable employment for the worker having regard to the provisions of Section 35(2)(a) of the Act."

9 The matter then proceeded to trial before a learned Deputy President at which evidence was adduced from the worker, Bordex's factory manager Mr Bowes and the worker's treating dermatologist, Dr Grieves.

10 At trial it became apparent that the work that the worker had previously undertaken at Bordex no longer existed there. That work was, by then, undertaken primarily by a machine. If the worker was still working at Bordex the then equivalent position that would have been available to him would have required him to stand at a machine for eight hours a day.

11 Much of the focus of the evidence and the arguments submitted before the learned Deputy President turned upon the worker's capacity to perform the work that he was undertaking at Bordex. It was the worker's case that he did so under sufferance, that he was seriously disabled while undertaking this work, and that it was only because of his stoic disposition that he did not consult his general practitioner or take time off work during the period of that employment. All of this was put to demonstrate that the worker's employment with Bordex did not provide the impressive evidence of his residual earning capacity that the Corporation was contending. Indeed, the worker was asking the learned Deputy President to make a finding that he was totally incapacitated for work.

12 The learned Deputy President rejected this. She said at par 14 of her reasons :-

"...I formed the view that the worker did exaggerate the extent and duration of the problems he was having with his skin when working at Bordex. Although I accept that he had sores, redness, peeling and blisters on his forearms which were at times painful, I find that this was not a consistent problem throughout the five month period."

13 That is not to say that the learned Deputy President did not accept that the worker's capacity for work was compromised. She clearly did so. She not only accepted the concession that the Corporation had made that the worker's skin condition predisposed him to flare-ups and thereby imposed environmental limitations upon the range of employment options open to him, she went further. She seemed to accept the worker's evidence that he suffered from leg pain and numbness and that this continued throughout the period of his employment. In light of this, the learned Deputy President said that given the changes to the factory at Bordex, the revamped position might be unsuitable, because the worker's leg numbness and pain would be a problem for him in undertaking stationery work of a factory hand.

14 Despite this, the learned Deputy President upheld the Corporation's determination. She said:-

"...however his performance for five months of factory hand work of a rotational kind where he could vary his weight bearing and posture throughout the shift demonstrates that factory hand work of that kind is suitable employment in the context of his earlier back injury." (emphasis added)

15 The learned Deputy President then proceeded to make the following findings.

"As a member of a specialist Tribunal I think I am entitled to know that there are many kinds of factory hand work involving different levels of physical activity and different postures, which are performed in a variety of environments and which would involve only brief travelling time to and from work. (J & H Timbers Pty Ltd v Nelson (1971 - [1972] HCA 12; 1972) 126 CLR 625) Indoor factory hand work involving rotational activities in a seated and standing posture performed in a cool environment is suitable to the worker, bearing in mind his skin condition and his earlier back injury.

I reject the worker's evidence that his condition is so severe that he will never be able to work again; that he will have to stay home for the rest of his life only going out if he has to (tr 107, TB 46). I gained the impression that the worker has become preoccupied with his skin condition and has imposed limitations upon himself which are not objectively supported by medical evidence. He certainly has to take precautions to cover his skin when in sunlight, and working outdoors is contraindicated, but that does not prevent the worker from moving about to the extent necessary to travel to and from social events, places where he is required to undertake personal business, and a place of employment."

16 The learned Deputy President then proceeded to find that the worker was suited to employment as a factory hand.

17 On appeal the worker contends that the learned Deputy President denied him natural justice. He contended, through his counsel, that the evidence he adduced was specifically directed to and focussed on the issue defined in the statement of issues, namely whether employment as a full time factory hand at Bordex was suitable employment. He submitted that he should not have been expected to have contemplated that the learned Deputy President would be deliberating on whether there might be other forms of factory hand work that might be regarded as suitable employment for the purposes of s 35(2)(a) of the Act.

18 In our view, this submission must be rejected. It was quite apparent that the Corporation's primary contention was that the worker was fit to work as a factory hand and to support that contention it was relying upon the worker's employment as a factory hand with Bordex between September 1997 and February 1998. That was the case that the worker met and sought to challenge, albeit unsuccessfully.

19 Although the statement of issues was couched in slightly different terms to the original determination and to the findings that the learned Deputy President was asked to make, it does not follow that there was a miscarriage of justice. The purpose of the statement of issues is to simply put the Tribunal and the other party to the dispute on notice as to what the case is about to assist in the fair and timely disposition of the dispute. Whether it achieves those objectives will depend upon the circumstances of each case. Moreover it is not fixed in concrete. It may be adapted and developed as the hearing progresses. It should not be treated in a technical and literal fashion. And, in determining whether it fairly permits the resolution of the dispute it has to be considered in context. This will include a consideration of the documents underpinning the disputed determination and the conduct of the parties prior to and during the hearing.

20 In this case having regard to the documents set out in paras 4 and 5 hereof and the conduct of the parties as referred to in paras 7 and 11 hereof it is clear that when considered in context, the statement of issues did not confuse the issue and that the worker was well aware of the case that he had to meet.

21 Although the worker was critical of the learned Deputy President's finding that that work was in fact suitable work, no error of law was involved in that finding. It was a finding that was open on the evidence that was presented.

22 The process of reasoning that led to that conclusion is made apparent from the learned Deputy President's reasons. Having found that the work that the worker did while he was working at Bordex was suitable work she declared that she was entitled to know, notwithstanding the fact that that work was no longer available at Bordex, that factory jobs of that type are presently available elsewhere and that therefore it was appropriate for her to find that he was fit to perform that work. Cox J recognised in WorkCover v Warren (1998) 72 SASR 7 that in cases such as these, sometimes the existence in the work force of a particular form of occupation can be so notorious that actual evidence of it is not required.

23 In light of the way in which the case was argued and presented to the learned Deputy President there was nothing unfair about her making that finding in the absence of specific evidence. Her reliance upon her knowledge of the types of duties being performed in the community, put in context, really amounted to no more than a finding by her that the job that the worker was performing at Bordex was a real job of a type that has not universally, within this State, been made redundant. As the learned Deputy president's reference to J & H Timbers Pty Ltd v Nelson [1972] HCA 12; (1971-2) 126 CLR 625 shows, she was entitled to reach that conclusion. For, as was said in that case (supra) at 651 per Gibbs J (as he then was), in respect of a tribunal that for relevant purposes is identical to this Tribunal,

"[there is] ... the well-established rule that the Commission is entitled to make use of its judicial knowledge as to such matters as rates of wages and availability of employment (see Bryer v. Metropolitan Sewerage and Drainage Board (1939) 39 SR (NSW), at p 330 ; Kemp v. Darling Island Stevedoring and Lighterage Co. Ltd. (1959) 76 WN (NSW) 707 ; and Australian Iron & Steel Pty. Ltd. v. Elliott (1966) 67 SR (NSW) 87, at p 94)."

24 In our respectful opinion the learned Deputy President was, as a matter of law, on the evidence presented, entitled to reach the conclusion that she did and the appeal should therefore be dismissed.