Workers Compensation - Assessment and amount of compensation - Weekly payments - Partial incapacity - Particular cases - Claim of total incapacity rejected - Possibility of liability on basis of partial incapacity not considered.

Workers Rehabilitation and Compensation Act 1988 (Tas), s 69.

Judgment Number: [2017] TASSC 21

1. This is an appeal by a worker named Richard Cripps. On 14 December 2012 in the course of his employment by the respondent, Machos Pty Ltd, he was attempting to lift a heavy steel grate when he suffered an injury which affected his lower back. He subsequently claimed compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act"). A dispute arose as to a number of issues, including his eligibility for weekly payments of compensation. That dispute proceeded to a hearing before the Workers Rehabilitation and Compensation Tribunal, constituted by its then Chief Commissioner, Mr S R Carey. He did not accept that the worker had established that the employer was liable to make weekly payments of compensation, and dismissed the reference to the Tribunal: C v Machos Pty Ltd t/as Nu-Jet [2016] TASWRCT 29. This is an appeal from that determination.
2. In his determination the learned Chief Commissioner made findings to the following effect:
   • He found that the worker had suffered an injury to his lower back in the course of his employment on 14 December 2012, and that that injury was a muscular strain or sprain.
   • He found that the worker had not given notice of the injury as soon as practicable after its occurrence as required by s 32 of the Act, but that that failure was occasioned by a reasonable cause with the result that, by virtue of s 37 of the Act, the worker's right to claim compensation was not affected.
   • He was satisfied that a condition affecting the worker's left hip became the primary cause of any ongoing incapacity by early 2014, and that that hip condition resulted in the worker becoming totally incapacitated, but did not accept that that condition resulted from the worker's injury suffered on 14 December 2012.
   • He determined that the worker was never totally incapacitated as a result of that injury.
3. The worker does not seek to challenge any of those conclusions, but contends that the learned Chief Commissioner erred in law by failing to determine whether he was entitled to weekly payments of compensation as a result of a partial incapacity for work, as well as the amount and duration of any such weekly payments. The employer contends that, on a proper reading of the learned Chief Commissioner's reasons, it is clear that he addressed the partial incapacity issue and dismissed the referral because the worker had failed to discharge an onus of proof.
4. The worker bore an onus of proof in the Tribunal proceedings by reason of s 49(2)(a) of the Act. That provision reads as follows:

(a) the onus of proving an initial entitlement to a payment of compensation to a worker or the dependants of a worker lies on the worker or those dependants ...".

1. The Tribunal was required to decide whether the worker had an "initial entitlement" to payments of weekly compensation. On 6 March 2013 the Tribunal made a determination under s 81A(3)(c) of the Act that compensation was not to be paid by the employer because a reasonably arguable case existed concerning the liability of the employer to pay compensation by way of weekly payments. The worker subsequently referred his claim to the Tribunal pursuant to s 42. Thus the Tribunal was required to make a determination as to the worker's "initial entitlement".
2. The evidence as to incapacity for work was not ideal. The worker gave evidence as to his work and his symptoms, but the learned Chief Commissioner concluded that he was not an impressive witness. He claimed that he was totally incapacitated, but there was reliable evidence that he did a little work for two employers within weeks after his injury. Between 15 and 31 December 2012 he did 36 hours' work for Tasmanian Protective Services Pty Ltd as a gatekeeper. In the week ending on 13 January 2013 he did 14 hours' work as a traffic controller for a company named Altus Traffic Pty Ltd on the Tasman Peninsula following the catastrophic fires there. He did not tell his doctors about any of this work.
3. There was conflicting medical evidence as to the nature of the worker's back injury. As to that issue, the learned Chief Commissioner rejected the opinions of the plaintiff's general practitioner, Dr Atwell, and a rheumatologist, Dr Francis, both of whom gave evidence for the worker. He preferred the opinion of Dr du Plessis, a consultant neurologist and rehabilitation physician called by the employer.
4. Dr du Plessis saw the worker only once, on 2 October 2015, nearly three years after his accident. In a report at that time, Dr du Plessis expressed the following opinions as to the worker's capacity for work in the months following the accident:

"In the absence of the left hip pathology, there is no reason why he would not have been able to return to a semi-sedentary type position where he would initially be placed under some restrictions, with progress over time to more physically active occupational duties.

There was no reason why he would not have been able to commence with four hours' work daily, five days a week, building up to full duties after a six-month period."

1. Dr Francis first saw the worker on 11 June 2013. He wrote in his first report that he then "suggested he start returning to light duty activities, working in association with friends and relatives".
2. The employer also called an orthopaedic surgeon, Dr Dodd. He took a more robust view than Dr du Plessis. He assessed the worker in November 2015, but he had access to many reports from other doctors and other documentation. In a report at the time of his assessment, he said in relation to the original injury, "I believe he recovered completed [sic] from this probably within a few weeks of the injury."
3. It was agreed at the hearing that the appropriate rate of pay if the worker had been totally incapacitated was $880 per week before tax. There was documentary evidence as to the hourly rates paid by Tasmanian Protective Services Pty Ltd and Altus Traffic Pty Ltd.
4. In his reasons, the learned Chief Commissioner dealt with the issues relating to incapacity in the following paragraphs:

"19 If the worker was as debilitated and in as much pain as he described in the period from 15 December until 19 December when he saw Dr Atwell, it is difficult to accept that he would not have sought more urgent medical assistance. The Tribunal accepts the evidence from Dr du Plessis that in the normal course if there were an injury that caused some form of nerve root compression or disc injury there would be a lot of pain immediately if this had a neurological effect. The certification by Dr Atwell of total incapacity appears to have been influenced by his acceptance of some form of neurological deficit based upon the complaint by the worker of symptoms in his right thigh. The Tribunal does not accept that the worker was as physically incapacitated over the period from 15 December 2012 until he saw Dr Atwell on 19 December 2012 as he and Ms Clark described. That degree of disability was not reflected in the evidence of Dr Atwell as to the initial presentation.

20 The Tribunal accepts the evidence that the worker did work on two occasions in December 2012 and January 2013 doing work of a type that he was accustomed to do prior to his injury. The Tribunal does not accept that he was physically unable to do that style or type of work at that time. The evidence of Mr Zachary Belcher and Ms McDermott is accepted as to the lack of any indication when they observed the worker, that he was functionally restricted due to his lower back injury. The Tribunal, therefore, does not accept that the worker was, in fact, totally incapacitated for work in the period 17 December 2012 and following as certified by Dr Atwell.

21 The Tribunal accepts that the worker was able to perform a gatekeeper role (22 hours) [sic] and a traffic controller role (14 hours) in the period subsequent to 14 December 2012. The worker attempted to downgrade the nature of his work as a gatekeeper but it is difficult to envisage that this work would involve otherwise than a period seated interspersed with times when he was standing and walking. The Tribunal accepts that the worker did perform a number of shifts for Altus Traffic performing traffic control duties on the Tasman Peninsula in the week concluding 13 January 2013. In this regard the evidence of Ms McDermott is accepted. The Tribunal infers that if either employer were to have been advised that the worker was suffering a lower back and leg injury to the level he described in his evidence, or that he displayed the effects of such injury, that he would not have obtained those employment positions.

22 Further, the Tribunal does not accept that subsequent to this period the worker's physical capacity due to his back injury reduced as the medical records show, as outlined in paragraph 9, an improving situation. The worker, therefore, remained fit for this style of employment and he gave no evidence of any other subsequent attempts to gain this style of employment. At the very least [sic] the worker was partially incapacitated but he had demonstrated an ability to perform suitable employment duties.

33 In summary, therefore, the Tribunal determines that the referral be dismissed. Although the Tribunal accepts that the worker suffered a lower back injury on 14 December 2012, it does not accept that this was other than a muscular strain or sprain. The Tribunal does not accept that the worker was totally incapacitated as a result of this injury and is satisfied that in the period immediately after this injury, he was able to perform work of a nature and type that he had experience in performing pre-injury. The Tribunal does not accept that there was any ongoing total incapacity during 2013 and it was not asserted on behalf of the worker that he had a partial incapacity for work in respect of which evidence was provided as to his earning capacity. Although it is accepted that there was this injury and notice of injury was given, the Tribunal does not accept that the evidence establishes an ongoing liability of the employer to pay workers compensation benefits subsequent to the finding by the Tribunal of a reasonably arguable case in respect of this claim made on 6 March 2013. The Tribunal accepts that by early 2014 the worker had become incapacitated by reason of a left hip condition but does not accept that this condition was as a result of a fall caused by his right leg giving way or otherwise caused as a result of the initial workers compensation injury."

1. It seems strange that the learned Chief Commissioner said at [33] that "it was not asserted on behalf of the worker that he had a partial incapacity for work ...". The worker was seeking weekly payments on the basis that he had been totally incapacitated at all material times. There are no pleadings in the Tribunal. Section 49(1)(b) of the Act requires a proceeding before the Tribunal to "be conducted with as little formality and technicality ... as the requirements of this Act and a proper consideration of the matters to be resolved permit". It was certainly not necessary for the worker's counsel to tell the Tribunal that, if the Tribunal did not accept that the worker was totally incapacitated, weekly payments were sought on the basis of a partial incapacity. That was so obvious that it went without saying.
2. At common law, when there has been a loss that results in an entitlement to damages, difficulties of quantification do not preclude the granting of relief: Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 at 143; Harriton v Stephens [2006] HCA 15, 226 CLR 52 at [84]. Thus, when it comes to quantification of weekly payments of workers compensation, "A decision-maker faced with a paucity of evidence must do the best that he or she can to assess the extent of a claimant's loss": Acme Engineering (Tas) Pty Ltd v Fuchs [2006] TASSC 46, 15 Tas R 360 at [23].
3. Section 69 of the Act contains provisions relevant to the assessment of weekly payments of compensation in cases of partial incapacity. The relevant provisions read as follows:

"(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 a medical practitioner or accredited person, the compensation payable to him under this Act is -

(a) in the case of the total incapacity of the worker for work, weekly payments equal to -

(i) the normal weekly earnings of the worker; or

(ii) the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity -

(b) in the case of the partial incapacity of the worker for work, weekly payments for the period of that incapacity equal to the difference between the worker's weekly payment calculated in accordance with paragraph (a) 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;

(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 any 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 to the worker in accordance with this Division."

1. The evidence established that the worker made no attempt to return to paid work after working for Altus on the Tasman Peninsula. However it would have been reasonably possible for the learned Chief Commissioner to make an estimate of the loss of earnings that the worker would have suffered if he had resumed working at the rate of 20 hours per week and then gradually increased his hours until he was working full-time after six months, as suggested by Dr du Plessis. A conservative approach would have been appropriate, given that the worker bore the onus of proof.
2. The learned Chief Commissioner, having rejected the proposition that the worker was totally incapacitated after the injury did not make a finding as to whether a partial incapacity had been established. All of the evidence as to that issue, except perhaps that of Dr Dodd, suggests that the worker remained at least partially incapacitated for at least several months. The learned Chief Commissioner did not undertake an analysis of the evidence as to the worker's pre-accident duties and the impact of the back injury on his ability to perform those duties. He did not state that the worker bore an onus of proof in relation to weekly payments for partial incapacity and had failed to discharge that onus.
3. To interpret the learned Chief Commissioner's comments at [33] as meaning that the worker had failed to discharge that onus would, in my view, stretch the words of that paragraph too far. I do not think they can properly be interpreted in that way. In my view the learned Chief Commissioner simply failed to consider whether the worker had established on the balance of probabilities that he ever had a partial incapacity for work as a result of his back injury. He was required to address that issue and, if a partial incapacity was established, to do the best he could to determine the amount and duration of the weekly payments that the employer was liable to make. In failing to address the partial incapacity issue in those respects, he erred in law.
4. For these reasons I have decided to allow the appeal and quash the order dismissing the s 42 referral. The only appropriate course is to remit the matter to the Tribunal, for the determination of the partial incapacity issue, with appropriate directions. I understand that the learned Chief Commissioner has retired. It appears that another commissioner will have to undertake that task.
5. My orders are as follows:

2 The determination dated 3 October 2016 is quashed.

1. It is determined that (a) the appellant suffered an injury to his back in the form of a muscular strain or sprain in the course of his employment by the respondent on 14 December 2012; (b) the appellant did not give notice of that injury as required by s 32(1)(a) of the Workers Rehabilitation and Compensation Act 1988, but that failure was occasioned by a reasonable cause; (c) the appellant was not totally incapacitated for work as the result of that injury; and (d) the appellant's left hip condition is not a consequence of that injury.
2. The issue whether the respondent is liable to pay weekly payments of compensation on the basis of partial incapacity is remitted to the Tribunal.
3. The Tribunal is to determine whether the respondent is liable to pay weekly payments to the appellant on the basis of a partial incapacity for work and, if so, the rate or rates of such payments, and the period or periods in respect of which they are liable to be paid.