ZEEMAN J This is an appeal from the Workers Rehabilitation and Compensation Tribunal against its determination that the respondent's incapacity should be treated as total incapacity and its consequent order that the respondent be paid weekly compensation on that basis. The second appellant was the licensed insurer of the first appellant at the relevant time. The order was made on an application made by the respondent to the Tribunal pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s42. The order purports to have been made "in the Court of Requests (Workers Compensation Division)" but that is an obvious error, the application having been made to the Tribunal after such divisions ceased to exist.

2. It is necessary to recite some of the relevant history to understand how the application came to be made and how the issues which the Tribunal was required to determine arose. At all material times until July 1995 the respondent was employed by the first appellant. Whilst so employed he suffered a compensable injury on 5 June 1991 and again on 21 April 1994. In each case weekly compensation was paid by the first appellant. When the respondent returned to work after suffering a period of total incapacity for work after the second of his injuries he was not able to perform the full range of duties which he had performed previously. In general, after his return to work the respondent performed supervisory duties only. He was not capable of, and did not perform, heavy lifting and shovelling. Previously such work had formed part of his duties. On a number of occasions he produced medical certificates certifying to his total incapacity for work on a particular day. It appears that he was paid compensation in respect of those days.

3. Although he was partially incapacitated for work, the first appellant continued to pay the respondent his normal wages. Counsel for the respondent suggested that that might have been made up in part by wages and in part by compensation in the nature of "make-up pay". However, there was absolutely no evidence that this was so. Such evidence as there was suggested the contrary, because in respect of the periods that the respondent was partially incapacitated for work he did not satisfy the condition precedent to payment of such compensation, namely the submission of relevant medical certificates.

4. At the end of July 1995 the first appellant ceased to carry on business and the respondent's employment was terminated. It is accepted by the parties that at the time of that termination the respondent was partially incapacitated for work and that up until that time the first appellant had continued to pay the respondent his normal wages. The evidence before the Tribunal does not admit to any conclusion other than that immediately before the respondent ceased to be employed by the first appellant he was engaged in what might be described as light duties but was not suffering any loss of wages by reason thereof. The respondent has claimed to be entitled to be paid weekly compensation from the time of the termination of his employment. The appellants do not dispute that the respondent has such an entitlement. The issue between the parties is as to the quantum of such weekly payment.

5. The Tribunal was told that it was common ground between the parties that the respondent was partially incapacitated for work and that it was being asked to determine the rate at which weekly compensation should be paid. The respondent submitted that by operation of the Act, s69(4)(b) or, alternatively, s69(4)(c), the respondent should be paid weekly compensation as if he were totally incapacitated for work. The Tribunal determined that the respondent's incapacity should be treated as total incapacity and ordered that the respondent should be paid weekly compensation on that basis. The Tribunal so determined on the basis of s69(4)(c), without giving consideration to s69(4)(b). Regardless of the merits of the grounds of appeal it should be said that the determination made by the Tribunal does not appear to have been authorised by s69(4)(c) because it specifies no period as is required by that provision.

"1 The Tribunal determined that the Respondent's incapacity

should be treated as a total incapacity within the meaning of

the Workers Compensation Act 1988 Section 69(4)(b) and/or

69(4)(c) when:

(i) There was no evidence, or no adequate evidence that the

Respondent is, or will be, unable to obtain employment or to

remain in reasonably regular employment;

(ii) There was no evidence, or no evidence that a Tribunal

acting reasonably could apply, upon which the Tribunal could be

satisfied that the Respondent had taken all reasonable steps to

obtain, and had failed to obtain, employment of a more limited

kind than the employment in which he was engaged before the

date(s) when he suffered injury.

(iii) There was no evidence, or no evidence that a Tribunal

acting reasonably could apply, upon which the Tribunal could be

satisfied that the Respondent's failure to obtain employment of

a more limited kind than the employment in which he was engaged

before the date when he suffered injury was a consequence wholly

or mainly of injury of the Respondent.

2 There was no evidence, or no evidence that a Tribunal acting

reasonably could apply, upon which the Tribunal could be

satisfied that the employer should pay the worker weekly

payments of compensation for total incapacity as and from the

date he ceased to receive wages from his employer in July 1995."

7. Counsel for the appellant disavowed any argument based on s69(4)(b) as suggested by ground 1. It was common ground that the Tribunal had made no determination based on that provision.

"69 (1) Subject to this section, where total or partial

incapacity for work results from an injury suffered by a worker

and where the existence of such total or partial incapacity is

supported by a certificate in a form approved by the Board

signed by an accredited medical practitioner or accredited

person, the compensation payable to him under this Act is, in

addition to any lump sum that may be payable under section 71 or

72 in respect of that injury

...

(b) in the case of the partial incapacity of the worker for

work, weekly rate payments for the period of that incapacity

equal to the difference between the worker's normal weekly

earnings and the amount that the worker is earning or would be

able to earn in suitable employment or business during that

period of incapacity.

...

(4) The foregoing provisions of this section have effect

subject to the following provisions of this subsection:

...

(b) when the question of the amount that a worker is earning or

would be able to earn arises, if it appears to the Tribunal

that, because of the injury that the worker has suffered

(including the physical disfigurement of the worker) he is, or

will be, unable to obtain employment or to remain in reasonably

regular employment, the Tribunal may decide that the worker is

incapacitated by the injury, either totally or partially and

either permanently or temporarily, as the circumstances of the

case require, and, on the Tribunal so deciding, compensation is

payable to the worker in accordance with this Division;

(c) where a worker

(i) has so far recovered from an injury suffered by him as to

be fit for employment (but only for employment of a more limited

kind than the employment in which he was engaged before the date

when he suffered the injury); and

(ii) satisfies the Tribunal that he has taken all reasonable

steps to obtain, and has failed to obtain, employment of a kind

referred to in subparagraph (i), and that his failure to obtain

that employment is a consequence wholly or mainly of the injury

(including the physical disfigurement) of the worker

the Tribunal may, notwithstanding any other provision of this

Act or any earlier determination of the Tribunal under this Act,

or order, award, determination or decision made by a judge under

the repealed Act, in respect of that worker, determine that his

incapacity shall continue to be treated as total incapacity for

such period and subject to such conditions as the Tribunal

thinks fit and, on the making of the determination, compensation

is payable in accordance with this Division."

9. The primary provision determining the quantum of a weekly payment payable to a worker who is partially incapacitated for work is s69(1)(b), the application of which is affected by s69(4)(b). In any case where the question of the quantum of the weekly payment payable to a worker who is partially incapacitated is in question, the primary inquiries should be in the terms of those provisions. An application of those provisions will result in the determination of the weekly payment which prima facie is payable to the worker. Notwithstanding that prima facie entitlement, s69(4)(c) may entitle a worker to a greater payment if the worker brings himself within it. There is no objection in principle to the making of a determination in favour of a worker under s69(4)(c) without first considering the entitlement under s69(1)(b) because such a determination will result in a weekly payment which is no less than, and normally will be greater than, that which would be payable under s69(1)(b).

10. The question is whether the learned Commissioner erred in law in concluding that the respondent had brought himself within s69(4)(c). Before that provision can apply there must be identified the forms of employment which the worker is fit to perform but which are of a more limited kind than that in which the worker was engaged before he suffered his injury. Once such forms of employment have been identified a worker only brings himself within s69(4)(c) if he satisfies the Tribunal:

1 that he has taken all reasonable steps to obtain employment

of that kind;

2 that he has failed to obtain employment of that kind;

3 that his failure to obtain that employment is a consequence

wholly or mainly of the injury.

11. A number of examples may be given of situations which clearly would fall within s69(4)(c). A worker may be fit for a particular type of employment and have taken all reasonable steps to obtain it, but have failed to obtain it, not because of any inability to perform the duties, but because the employer is not prepared to take the risk of employing a person with the medical history of the worker. Similarly, some physical disfigurement of a worker may lead a prospective employer deciding not to employ the worker in work which he is fit to perform because it requires frequent contact with members of the public. In those cases there is no question but that the worker is able to perform the duties of the employment but, nevertheless, he does not obtain it because of something which principally is a consequence of the injury.

12. With respect to the learned Commissioner who constituted the Tribunal, he entirely failed to have regard to this ingredient of s69(4)(c). The causal link between employment for which the worker is fit and the failure to obtain it as a consequence of the injury is a critical element of s69(4)(c) (see Langslow v John Lines and Sons Ltd (1935) 28 BWCC 186 at 191 - 192). An inability to perform certain types of employment by reason of the injury (which is all the evidence in the present case disclosed, taking it at its highest) does not fall within s69(4)(c). Similarly, a failure to obtain suitable employment by reason of economic conditions does not fall within its provisions (see Robert Addie and Sons v McCracken (1936) 3 All ER 1039 at 1041). At best, the evidence before the learned Commissioner permitted a conclusion that the respondent was fit to engage in employment of the type in which he had been engaged immediately before the first appellant terminated his employment. There was no evidence that such employment was available anywhere and consequently no evidence that the respondent had failed to obtain it in consequence of his injury.

"Section 69(4)(c) requires the worker to have attempted to

obtain and failed to obtain employment of a kind referred to in

subparagraph (i). That employment has to be employment of a

more limited kind than the employment in which he was engaged

before the date when he suffered the injury. ... it seems to me

permissible to draw a conclusion that the worker was not fit for

employment that he had been engaged in immediately before the

1991 injury and not fit for the employment that he had been

engaged in before the 1994 injury.

Given those conclusions in the absence of any evidence from the

employer to the contrary I would conclude that the worker's

incapacity that is partial must be treated as total according to

the principle laid down in Pickett v Selected Joinery Pty Ltd."

1 The learned Commissioner determined that the respondent

should have the benefit of s69(4)(c) when he made no finding

identifying any relevant employment for which the respondent was

fit.

2 The learned Commissioner held that s69(4)(c) requires that a

worker has attempted to find relevant employment whereas the

requirement is that the worker has taken all reasonable steps.

3 No principle is laid down by Pickett v Selected Timbers Pty

Ltd A87/1995 which required, or even suggested, the conclusion

reached by the learned Commissioner.

15. It follows from my conclusions that at least ground 1(iii) of the grounds of appeal is made out. That is sufficient to require that the order of the Tribunal not be permitted to stand. As a matter of law it was not open to the Tribunal to conclude that the respondent had brought himself within s69(4)(c) because there was not before it evidence which was capable of resulting in such a conclusion. Nevertheless, the respondent was entitled to have his compensation determined by the Tribunal in accordance with ss69(1)(b) and 69(4)(b). The issues relevant to those provisions were not considered by it. The parties were agreed that if I were to conclude that the respondent had not brought himself within s69(4)(c) then the reference should be remitted to the Tribunal for further consideration.

1 that the appeal be allowed;

2 that the order of the Tribunal requiring the first appellant

to pay weekly compensation to the respondent be quashed;

3 that the application of the respondent made pursuant to the

Workers Rehabilitation and Compensation Act 1988, s42 be

remitted to the Tribunal for further consideration according to

law.