Hawkins v Workcover/Cgu

3 I accept the worker as a witness of truth who did his best to assist the Tribunal. He was born on 2 March 1956. His work history has been in semi-skilled or unskilled work. He has been employed by the employer in these proceedings, Nexus Pty Ltd, furniture manufacturers, at Victor Harbour on two occasions the last being from 23 May 1997 to 5 September 1997 when he was employed as a spraypainter. This work, which was usually performed in a spray booth, also involved lifting, turning and carrying large items of furniture such as cupboards, wardrobes, bedframes and tabletops onto and off the spray bench and placing some of the items on overhead racks. This lifting was usually done with the assistance of another employee. On occasions the worker also manoeuvred large containers of materials required for the spraypainting.

4 On 22 July 1997 he injured his left shoulder when he and another employee were turning a tabletop and the other employee let go his end, resulting in the worker taking the weight of the tabletop in a sudden unaccustomed movement. He felt a strange sensation in the shoulder, reported the incident, continued working for the morning but went home feeling unwell at lunch time. The next day he woke with shoulder pain and consulted his usual medical practice where he saw Dr Bauer who diagnosed capsulitis. He was certified unfit for work for a few days returning to light duties on Friday 25 July. His employer then sent him to see Dr Brooks on 28 July who diagnosed capsular pain. He continued to consult Dr Brooks until 22 September 1997. During this time Dr Brooks was treating the worker with analgesia and anti-inflammatory medication, ordered an x-ray and referred him to Mr Doley for physiotherapy. During August Dr Brooks certified the worker fit for modified duties involving no overhead lifting, and avoidance of heavy lifting with the left arm abducted above 80 degrees. Whilst performing light duties, particularly sanding, the worker developed pain in his other shoulder for which, at the suggestion of Dr Brooks, he consulted Dr Bauer. At that time Dr Bauer organised an ultrasound of the injured left shoulder. In early September, when the result of the ultrasound was inconclusive other than showing slight thickening of the lining of the bursa and a small amount of fluid in the subdeltoid bursa, Dr Bauer certified the worker fit to resume his usual duties. At that stage the worker was still seeing Dr Brooks but he had ceased providing the worker with certificates because he assumed that Dr Bauer was attending to that.

5 I find that during July and August the worker experienced pain in the front, on the top and behind the shoulder. In addition when he reached with his left arm he felt a sharp catching pain. This pain was a direct result of the incident on 22 July 1997 and during July and August prevented him from working other than in accordance with the restrictions imposed by Dr Brooks. I find, on the basis of the evidence of Dr Brooks and Mr Doley, that there was some improvement in his pain level during August. However I find that he was not fit for his normal duties when he was so certified by Dr Bauer on 2 September 1997. I accept the worker's evidence that the pain and catching sensation were still present at that time and I find that this pain prevented him from undertaking overhead lifting and the other lifting and manoeuvring actions required of him as a spray painter. This finding is supported by the evidence of Dr Brooks and Mr Doley. Although Dr Brooks initially said at page 271 of the transcript that, when he examined the worker on 11 August, he expected that he would be fit to resume normal duties from 25 August 1997, he subsequently qualified that in cross-examination. He attended a worksite visit on 15 August 1997 and observed the worker attempting to move a heavy cabinet. On 27 August 1997 he wrote to the employer advising that the heavy weight of the cabinet and the required lifting technique were potentially harmful and may exacerbate the worker's symptoms. He agreed at page 288 of the transcript that, as at 27 August 1997, it was not appropriate for the worker to carry out such duties. Furthermore when asked about his view of the worker's fitness for his normal duties as at 8 September 1997 he said:-

"11 days later - nearly two weeks later. It is possible that going to do that may set him back and in this situation which is starting to slow down now, not improve as quickly as it could, I wouldn't like to see him back." (tr 288)

6 Mr Doley, too, said that, as at 5 September, when he ceased to treat the worker he did not think he was fit for his normal duties and would have preferred to see him remain on light duties for a little longer in a graduated return to work program. It is fair to say that the expectation of these two medical witnesses was that although the worker was not able to return to normal duties at that time, it was just a matter of weeks before he would be able to do so.

7 I reject Dr Bauer's evidence that the worker was fit for normal duties on 2 September 1997. He did not impress me as taking a careful history from the worker. In the light of the worker's recorded complaints to his other medical advisers, I think it is unlikely that he did not mention the catching pain to Dr Bauer. Furthermore, Dr Bauer's examination findings were at odds with the observations taken by Mr Doley at about the same time.

8 The worker provided his employer with Dr Bauer's medical certificate but continued to perform light duties in the nature of sanding until about 5 September 1997, when he was retrenched due to a downturn in production. I find that as at the date of his retrenchment the worker was partially incapacitated for work.

9 Following his retrenchment and because he continued to experience pain and the catching sensation, he consulted his union who advised him to see Dr Cocchiaro. This he did on 26 September 1997. He, too, diagnosed capsulitis. He certified the worker fit for selected duties and referred him to Dr Sandow. It was the certificate of Dr Cocchiaro dated 26 September 1997 which supported the worker's claim for income maintenance dated 30 September 1997. Dr Cocchiaro continued to treat the worker and provided him with certificates of partial incapacity until about May 1998 when the worker resumed attending his more convenient local medical practice where he saw his usual doctor, Dr Manners. Dr Manners' findings on examination of the worker's left shoulder since that time have consistently demonstrated tenderness over the front of the shoulder and consistent catching with adbuction greater than 90 degrees.

10 The worker's evidence is that consistently since the injury he has continued to suffer pain and tenderness over the front of the shoulder and a catching sensation when he lifts his arm above 90 degrees. He has tried other forms of employment such as painting but this work has caused an increase of symptoms. I accept this evidence. Notwithstanding that Dr Brooks and Mr Doley expressed the expectation that the worker would recover and be able to perform his normal duties within a few weeks of the end of August 1997, I find that this did not occur. The worker's evidence is supported by that of Drs Cocchiaro and Manners, and in particular Dr Sandow, an orthopaedic surgeon who specialises in injuries and disorders of the upper limb. He examined the worker in late October 1997, 9 December 1997 and again in July and September 1998. He sent him for physiotherapy to strengthen his rotator cuff muscle and gave him a subacromial cortisone injection in September 1998 which provided some relief from the catching pain for about two months. I accept Dr Sandow's diagnosis of the worker's condition as a partial tear of the rotator cuff with secondary tendonitis and rotator cuff dysfunction and impingement resulting therefrom. The differently expressed diagnoses of the other doctors are consistent with this diagnosis. I accept his explanation of the mechanism of the injury and the worker's continuing mild to moderate and variable symptoms including the pain behind the shoulder. I also accept his opinion that the worker is vulnerable to reaggravation of this condition which precludes him from forward reaching and overhead work. He said that there is a risk that the shoulder will not cope with overhead or forward lifting which places a huge load on the shoulder itself. To the extent that Dr Thoo, who examined the worker in November 1997, expressed any different opinion as to the worker's condition and fitness for work, I prefer the opinion of Dr Sandow.

11 Applying the test expressed in Arnotts Snack Products Proprietary Limited v Yacob ((1983) [1985] HCA 2; 155 CLR 171), I find that, other than the few days of total incapacity for work which closely followed the incident on 22 July 1997, the worker has been and now continues to be partially incapacitated for work. He has a physical disability which has reduced his physical capacity for doing work in the labour market which he was doing or might reasonably be expected to do. I specifically reject Mr Luke's alternative submission that, if a partial incapacity is found, it relates to such a small aspect of the job he is required to perform that it should not be regarded as amounting to a significant reduction in his ability to sell his labour. This submission is not supported by the evidence of restriction given by the worker and Dr Sandow.

12 An issue arises as to whether the conditions exist whereby this partial incapacity can be deemed total pursuant to s 35(2)(b) of the Act. There is no dispute that the worker was retrenched on 5 September 1997. The claims agent has not established that suitable work was available to the worker at that time. However Mr Luke submitted that an unassociated and supervening total incapacity for work prevents the partial incapacity from being deemed total from December 1997.

13 The evidence relied on by Mr Luke was that of Dr Manners that he treated the worker for depression between 20 December 1997 and 23 April 1998. The worker gave evidence that he suffered depression during this period, and at the outset of the proceedings Mr Blewett, counsel for the worker, confirmed that the depression was coincidental and did not form part of the claim.

14 It was Dr Manner's evidence that when he saw the worker on 20 December 1997, he thought he was unfit for work given his acute depression. At that point Dr Manners prescribed medication. He saw the worker in relation to depression on 15 and 27 January, 9 February, 12 March and 23 April 1998. As at 12 March he thought the worker was precluded from working due to depression and significant family factors, and that this incapacity continued until 23 April 1998.

15 Mr Luke referred to the evidence of incapacitating depression and relied on Hartwell v Elecricity Trust of South Australia (1982) 29 SASR 365 to argue that the fact of incapacity from a supervening noncompensable cause prevents the partial incapacity from being deemed total after 20 December 1997. In that case King CJ referring to the 1972 Act and in particular the deeming provision, s 67 said:-

"The governing principle of the Act is that the employer is liable for the results of incapacity which is related to the employment, but not for incapacity which is not so related. If a worker is unable to perform work which is available, not because of incapacity caused by the compensable injury, but because of incapacity caused by other factors, the section cannot operate to give rise to notional total incapacity."

16 The application of this principle to s 35 of the current Act was confirmed in Kelvinator v Jezior (1988) 49 SASR 592.

17 However it must first be established as a matter of fact that the worker was so incapacitated. The only specific evidence on the point was that of Dr Manners. Although the worker's examination in chief was limited to the fact that he presented to his doctor with depression, that he was treated with medication and that he stopped feeling depressed in about May 1999, he gave evidence as to his activities during the relevant period. This evidence bears on the issue of his capacity for work at that time. He said that on several occasions he undertook paid employment. He mentioned three occasions; cleaning a shed which he thought was in September 1998, repairing holes in plasterboard and painting for about three hours which he thought was in October or November 1997 and assisting a painter with sanding skirting boards and architraves for which he did not specify an approximate date.

18 Mr Luke then asked the worker in cross-examination whether he looked for work during the period December 1997 to February 1998 and his response was that he tried to return to work with a painter in December 1997 but "The experience was basically so painful that I certainly wasn't going to go out and do any more sanding, overhead work, a lot of which is included in painting, consistently." (tr 86). He also said he was not looking for work during the period from December to February "Because I felt that it would only keep hurting me or bring on pain one of the two." (tr 86).

19 There was also reference to this period in the Arbitration transcript which forms part of the evidence before the Tribunal (tr 7). At 180 and 185 of the Book of Documents the worker referred to sanding skirting boards in about January or early February 1998.

20 Dr Cocchiaro's evidence before the Tribunal was that when he saw the worker in February 1998 he had given a history of trying to paint and that after three and a half hours he had to stop. The doctor did not remember any other details of this work.

21 This evidence establishes that at some time between December 1997 and February 1998 the worker attempted to perform paid work sanding skirting boards and architraves, but had to stop because of the pain. It can be inferred from this evidence that, at the time that work was performed, the worker was attempting to perform work which he thought was within his physical capabilities and that the reason he ceased the work was because it produced an onset of symptoms. Such evidence is inconsistent with the suggestion that the worker was totally incapacitated for work as a result of depression from 20 December 1997, and I reject Dr Manners evidence in that regard.

22 The evidence does not support a conclusion that the worker's ability to perform work as at 20 December 1997 was destroyed by any other cause and in the absence of the Corporation establishing that suitable work was available to the worker, his partial incapacity is to be deemed total from 5 September 1997 and continuing.

23 Mr Luke then raised another issue relating to the scope of the dispute. He submitted that, if there was a finding of ongoing partial incapacity, the Tribunal is permitted to determine the worker's entitlements related to the passage of time specified in s 35 of the Act as part of a judicial determination of the Notice of Dispute. This submission relates to the operation of s 35(2)(b) and (c) of the Act. For the first two years of an incapacity s 35(2)(b) places the onus on the Corporation to establish that suitable employment is reasonably available to the worker, otherwise there is a statutory presumption that partial incapacity will be treated as total. After the end of two years s 35(2)(c) shifts the statutory presumption so that the worker's weekly payments after that time must be assessed on the basis that employment of the "relevant kind" is available to the worker unless suitable employment is in fact not available to the worker, and he (in this case) establishes that he is in effect unemployable because employment of the relevant kind is not commonly available to a person in the worker's circumstances irrespective of the state of the labour market.

24 It is this subsection which Mr Luke submitted should be applied by the Tribunal as from 22 July 1999. He submitted that I should determine that the Tribunal is entitled to apply s 35 in dealing with the rejection of the claim, and that I should adjourn the matter for appropriate evidence to be led on the relevant issues. In support of this submission he referred to an earlier authority of the Workers Compensation Appeal Tribunal, Hagean v Workcover Corporation (Hallett Brick Transport Pty Ltd) (A42/1997) and a more recent decision of the Workers Compensation Tribunal, Jones v Workcover Corporation/Royal & Sun Alliance Workers Compensation (Interactive Personnel International Pty Ltd) (JD11/1998) in which it was said to be permissible for a compensating authority, when rejecting a claim, to rely on circumstances contained in s 36 of the Act which authorise the discontinuance of weekly payments.

25 With respect, I do not think that the analogy is well made. When one of the provisions of s 36 is relied upon to reject a worker's claim notice of that reliance is contained in the determination. Accordingly any subsequent judicial determination will be directed to that issue and the parties will present whatever evidence is considered appropriate on the issue.

26 By contrast the rejection of the worker's claim dated 29 January 1998 which was the subject of this judicial determination, was the assertion that he ceased to be incapacitated for work from 2 September 1997 and was fit to return to work without restrictions from that date. Although the topic of the rejection was incapacity and its duration, the scope of the dispute does not explicitly or implicitly include the application of s 35(2)(b). No notice was given to the worker prior to the hearing that this issue would be raised. No application was made prior to the hearing to enlarge the dispute pursuant to s 88DA of the Act to include a determination of this issue. Most importantly no notice has been given to the worker as to what employment is suitable and no evidence led by the claims agent on this topic. Indeed the application of s 35(2)(b) was not raised until Mr Luke's address.

27 It was made clear in Mitsubishi Motors Australia Ltd v Sosa ((1995) Supreme Court of South Australia S5084) that s 35 does not operate automatically but requires the protective measure of notice to the worker. I apply the same approach here and decline to deal with that issue. The application of s 35(2)(c) is a matter for a further determination by the claims agent.

28 Having determined incapacity in the worker's favour I also determine that he is entitled to the s 32 expenses set out on the schedule provided to the Tribunal by the worker's solicitors under cover of a letter dated 11 January 2000.

29 I uphold the worker's Notices of Dispute and overturn the determinations of the claims agent dated 29 January 1998 and 7 May 1999. I will hear the parties as to any ancillary issues.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(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.