Kostiw v Workcover/Royal and Sun Alliance

4 On 18 February 1999 the worker consulted with his then general practitioner, Dr Arnold Tan, and complained to him of back pain. Dr Tan eventually referred the worker to Mr Mario Penta, an Orthopaedic Surgeon. Mr Penta examined the worker on 18 May 1999 and recorded a history of work related low back pain that had been present for six months and an absence from work for the preceding four weeks.

5 Mr Penta found on examination a full range of spinal movement and no neurological signs. He found mild tenderness over the lower back and I assume that it was he who referred the worker for an MRI scan that provided evidence of a postereo-lateral annular tear at L5/S1 and a small broad based posterior disc protrusion encroaching slightly upon the S1 nerve root.

6 Mr Penta thought that the worker could return to work on modified duties, according to his level of residual symptoms and that he should avoid lifting weights greater than 10 kg.

7 It would seem that the worker did not return to work at QC Bricklaying and that he sought and obtained weekly payments of income maintenance pursuant to the provisions of the Workers Rehabilitation and Compensation Act 1986 ("the Act").

8 I assume that the Corporation thereupon set about attempting to rehabilitate the worker and he obtained employment under the RISE scheme as a general storeman with Security House Manufacturers where he remained for three months assisting with the manufacture of security doors and screens.

9 As I noted in Blocki v WorkCover/CGU (Pyrotech Fire Protection Pty Ltd) [2001] SAWCT 144 at par 33 the RISE scheme is an incentive scheme established by the Corporation whereby it provides certain benefits to prospective employers as an incentive for them to offer employment to workers who have suffered work related disabilities.

10 It seems that the work at Security House Manufacturers caused the worker some back pain and an alternate placement was found. The worker commenced working for the Southern Moulding as a customer service officer. The worker had at some earlier time under the RISE scheme worked for this entity. It was then known as the House of Moulding. The worker had initially found this work to be quite acceptable although he made mention of difficulties handling large packs of frames. I gather that his duties changed. He said that after Southern Moulding had moved location he had to process raw timber frames, which required him to stand at a machine all day. He said that he found this to be uncomfortable and that it aggravated his back. He persevered with the job until another RISE placement could be found.

11 That in turn led to employment with Aquaculture SA, a manufacturer of oyster nets. The worker's duties there comprised of cutting mesh for nets. He said that the work involved repetitive bending and twisting and that it aggravated his back. He said in his statement that he remained at Aquaculture for six months. He spoke of a motor vehicle accident and said that this occurred two or three weeks after he commenced with Aquaculture. Other evidence placed before me establishes that this occurred on 16 October 2000.

12 Through most of this period the worker's rehabilitation was being overseen by Ms Nives Matkovic, a rehabilitation consultant employed by Beckman and Associates, a firm of rehabilitation providers who had been engaged by the Corporation.

13 The worker said that he persevered at Aquaculture despite discomfort because he did not want to stay at home and do nothing. Ms Matkovic suggested that the worker was unhappy at Aquaculture because he saw no prospect of advancement and that in light of his impending marriage and desire to buy a house and need for a mortgage, he needed employment that offered him more than 20 hours a week.

14 Ms Matkovic met with the worker on 16 January 2001 and noted that the worker expressed the desire to work in hardware sales.

15 In the meantime Mr Penta had left the worker's ongoing management to Dr Tan, who continued to see the worker regularly until 27 March 2001.

16 Dr Tan provided various medical reports. In a report dated 16 June 2000 he noted that the worker's work capacity had improved and he imposed the following restrictions:-

(b) No repetitive lifting, bending and twisting of back

17 On 22 January 2001 Ms Matkovic had a case conference with Dr Tan. Dr Tan said that he was happy with the worker's progress at Aquaculture and that he thought that the worker could increase his hours of work.

18 On 2 February Ms Matkovic telephoned the worker and recorded that the worker was happy to increase his hours, but not with Aquaculture. The worker expressed interest in undertaking a computer course which was agreed to by the Corporation and which was scheduled to commence in late February 2001.

19 The computer course was postponed because the worker was getting married. Ms Matkovic records that rehabilitation was then suspended for two months and that the worker married on 1 April 2001. She then spoke of a meeting with the worker on 23 April 2001 when the worker told him that he had a contact within the St Morris Thrifty Hardware store. That contact was via the worker's former employers at QC Bricklaying, the Quarisa brothers, with whom the worker had remained and continues to remain on friendly terms. Amongst other businesses they operated the St Morris Thrifty Hardware store and they had a vacancy. The worker learned of this. He understood that the bulk of his duties would comprise of deliveries and he felt comfortable with that.

20 This in turn led to Ms Matkovic meeting with Mr Robert Quarisa and the formulation of a work placement trial with the proprietors of the St Morris Thrifty Hardware store, which commenced on 21 May 2001.

21 Prior to the placement and I gather that in anticipation of it, the worker undertook a computer course to sharpen up his typing skills and to give himself some familiarity with computers.

22 Some time after the consultation with Dr Tan on 27 March 2001 the worker decided to consult with Dr Marcel Stephan and they first met professionally on 8 May 2001. On 17 May 2001 the worker advised Ms Matkovic that Dr Stephan had approved the work trial.

23 On 25 May 2001 Ms Matkovic telephoned Robert Quarisa and was advised that the worker was coping well and that when she spoke to the worker later that day he said that he was not experiencing any difficulty at work.

24 In light of the success of the work trial Ms Matkovic liased with those responsible for administering the RISE scheme and the worker was formally engaged by the Quarisas working about 25 to 30 hours per week.

25 Ms Matkovic wanted to monitor the worker's employment at the St Morris Thrifty Hardware store and the impact that his medical condition might have upon full time employment and so she wrote to Dr Stephan on 15 June 2001 seeking a medical report update and Dr Stephan's opinion as to the worker's capacity to work full time.

26 Thereafter Ms Matkovic continued to liase with the Quarisas and the worker and her notes indicate that the worker's employment was progressing well.

27 On 16 August 2001 Ms Matkovic telephoned the worker and was advised by him that he was doing quite well and that he was working between 25 to 30 hours per week. She thereupon closed her file.

28 As it was, the following day Dr Stephan replied to Ms Matkovic's letter of 15 June 2001. By a report dated 17 August 2001 Dr Stephan relevantly stated as follows:-

"I am aware that the patient is currently working 25/30 hours a week at Thrifty Hardware. I've had the opportunity of reviewing Mr Kostiw on a number of occasions and feel that he is now progressing very well. I have referred him to the muscular development and fitness unit at North Adelaide and he has found this quite beneficial. I have not referred him to any other medical providers at this stage. I would expect his current program at the MDFU should continue for a while longer that this will be for a relatively short period of time.

I have discussed Mr Kostiw's work duties in some detail and I am of the opinion he is certainly fit to perform the duties of a sales assistant at Thrifty on a FULL time basis. [If the hours are available.] We did agree that the only restrictions would include duties involving REPETITIVE heavy lifting [eg bag lifting of bags weighing up to 40-45kg] or repetitive/bending [eg loading wood logs onto back of ute/truck].

I have also carefully reviewed the functional capacity evaluation dated 20 July 2000 by Angela Smith and at that time she concluded that this degree of lifting falls within the category of a heavy level job and did advise that such duties may not be suitable. I feel that the patient's condition has improved since that time that the similar basic restriction should still apply. I feel he is currently not fit to perform his level of heavy work but that Joel does find that occasional lifting does not aggravate his symptoms significantly."

29 It would seem that the Corporation was advised of Dr Stephan's opinion and upon learning of it, it thought it appropriate to conduct a review of the worker's weekly payments of income maintenance pursuant to s 38 of the Act. It was able to do so because more than two years had elapsed since the worker first became incapacitated for work such that the worker was thereby denied the benefit of the deeming provision, that is s 35(2)(b). Instead, it was entitled to assess the worker's entitlement to income maintenance by reference to the criteria contained in ss 35 (1), (2)(a) and (c), which provide:-

"35. (1) Subject to the Act, where a worker suffers a compensable disability that results in incapacity for work, the worker is entitled to weekly payments in respect of that disability in accordance with the following principles:

(a) 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

(c) after the end of the first two years of the period of incapacity, if-

(i) suitable employment is in fact not available to the worker; 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,

partial incapacity for work will also be treated as total incapacity, but otherwise an assessment of the weekly earnings the worker could earn in suitable employment after the end of the first two years of the period of incapacity must be made on the basis that employment of the relevant kind is available to the worker."

30 Accordingly, by letter dated 4 December 2001 the Corporation informed the worker of an impending review of his weekly payments and of his opportunity to make representations in respect of the review prior to 31 December 2001. The letter referred to Dr Stephan's report and of the fact that the worker had proved his suitability to work as a full-time sales assistant through his work at Thrifty hardware.

31 The worker did not take up the invitation to make representations and the proposed review resulted in the determination that is now before me. I do not know why he did not respond and I draw no inference on account of that.

32 The grounds set forth in the determination were as follows:-

"1 You are in receipt of weekly payments of income maintenance in respect of a back injury sustained on 1/12/1998.

2 You have been incapacitated for work for a period exceeding two years.

3 By notice dated 4/12/2001 you were advised of a pending review of your weekly payments and the evidence relating to it.

4 In the opinion of Dr M Stephan in his medical report dated 17/08/2001, you are capable of performing the duties of sales assistant with Thrifty Hardware.

5 We have also taken into account the fact that you are already employed with Thrifty Hardware for 25-30 hours per week.

6 We have not received any submission from you on the matter.

7 Royal and Sun Alliance Workers Compensation (SA) Ltd has determined that you are capable of performing the duties of the sales assistant and could earn $570..."

33 The parties filed a statement of issues on 17 October 2001 and it records that the following are the issues to be judicially determined:-

"1 Whether as a matter of construction of the determination dated 2/01/02 the employment identified as `suitable employment' refers to:

1.1 employment as a sales assistant in the hardware industry generally; or

1.2 employment as a sales assistant by Thrifty Hardware specifically.

2 Whether full time employment as a sales assistant in the hardware industry generally or full time employment as a sales assistant by Thrifty Hardware specifically (whichever is applicable) is suitable employment which the worker has a reasonable prospect of obtaining.

3 Whether the amount of $570 per week is the amount which should be imputed to the worker from such suitable employment for the purpose of calculating the entitlement pursuant to s35(1)(b)(ii) or some other and what amount.

4 If yes to issue 2, whether the worker's entitlement to weekly payments of income maintenance from 1 January 2002 be calculated pursuant to s 35(1)(b)(ii) on the basis of weekly earnings which the worker could earn from full time employment as a sales assistant at Thrifty Hardware."

34 A further issue arose during the course of the hearing. The Corporation placed evidence before me that indicated that in connection with the motor vehicle accident the worker sustained in October 2000, he received substantial damages. He received an amount of $71900 and $60000 was identified as being damages for loss of earning capacity.

35 It was contended that to not modify the weekly payments the worker was receiving from the Corporation would result in him receiving double compensation and that because there were proceedings before me, I was obliged to factor that into account. Mr McRae invited me to make a declaration that unless and until the worker's entitlements in the ensuing period reached $60000 I should order that the Corporation is not obliged to pay the worker any weekly payments. I shall return to this issue later.

36 Before I turn to consider the evidence and make relevant findings the first issue that I need to resolve for myself, is what is the scope of the review.

37 In the reasons explained by the Full Bench in the WorkCover Corporation/Royal and Sun Alliance/Workers Compensation (SA) Ltd (Hawkins Roofing Pty Ltd) v Greda [2003] SAWCT 38 at par 23, in cases such as this, this is not as straightforward a task as it might seem. There, the Full Bench said:-

"The relevant authorities concerning s 38 reviews show that parties involved in these cases have to confront a number of difficult issues. These include issues such as the degree of specificity required in describing `suitable employment' in the documents that underpin an s 38 review or a statement of issues that might be formulated in connection with a hearing concerning such a review. They also include issues relating to matters of evidence. For example, what evidence is required to establish suitable employment? What degree of latitude, in terms of the evidence, is permissible having regard to the description of suitable duties in the relevant documents? To what extent is the trial Deputy President entitled to or obliged to use his or her knowledge as a Member of a specialist Tribunal of the range of duties involved in and availability of particular employment?"

38 The Tribunal then went on to say at pars 30 to 34:-

"The purpose of identifying `suitable employment' in the documents underpinning a s 38 review are plain enough. First, the description must enable the worker to make appropriate written representations in response to a proposed review that is contemplated by s 38(3)(b) of the Act. Secondly, it must enable the worker to make an informed decision as to whether or not to seek a review of a decision to reduce his or her weekly payments following the review.

In connection with any subsequent hearing, the description contained in such documents together with any further particulars provided and any statement of issues are clearly intended to enable the worker to properly present his or her case if it is decided to challenge the reduction and to enable the Tribunal to fairly adjudicate the issues in dispute between the parties.

Moreover, it has to be accepted that these descriptions and the documents containing them are not to be treated as pleadings nor are they to be regarded as fixing in concrete that which is to be determined. With respect, we agree with all that was said on this in Viola (supra). In the end, what is important is that the process of review be conducted fairly and that the relevant parties are afforded natural justice in their dealings and in the conduct of their litigation before the Tribunal. That will be judged not just by reference to the relevant documentation. A consideration of the conduct of the parties prior to and in the course of the hearing is also required."

39 In this case, the notice of pending review spoke of a potential outcome as being a finding that the worker was "capable of working as a full time sales assistant". The reference to Thrifty Hardware was a reference to the fact that the worker was then currently working there and that Dr Stephan had certified the worker's capacity to work full time in those duties at that place of employment.

40 The determination itself asserts that the worker is capable of performing the duties of a sales assistant and again, its reference to work at Thrifty Hardware, was in the same context as was in the notice of pending review.

41 The worker's Notice of Dispute asserts that he "is not fit for full time work as a `sales assistant' contrary to the determination". It is notable that there was no complaint that the description "sales assistant" was too vague.

42 In its confirmation of disputed decision, the Corporation included within its list of documents a document titled "Job Options Report". This is a report dated 24 August 2000 that was prepared by Beckman and Associates.

43 The report recommends job options for store person, building and hardware sales, general sales assistant, spare parts interpreter and welder.

44 I reject the submission made by Mr Durkin, counsel for the worker, in his closing address wherein he complained that the Corporation had widened the scope of the dispute from beyond the identification of work as a sales assistant at Thrifty Hardware to work as a sales assistant in the hardware industry generally. The fact is that the worker was under no illusions in the manner which the case was conducted, that is, that the Corporation was asserting that he was fit to work full time as a sales assistant in the hardware industry generally.

45 In all the circumstances, applying what I understand to be the principles declared by the Full Bench in Greda (supra), I find that the scope of my inquiry is to determine whether the worker is capable of working full time as a sales assistant in the hardware industry generally.

46 Whilst the evidence establishes that the worker has an ongoing problem with his back, he clearly possesses a substantial residual earning capacity.

47 In a report dated 15 May 2001 Dr David Cullum, an occupational physician, suggested that the position was that the worker was suffering from chronic lumbar pain, was not fit to perform normal duties as a bricklayer and had only a medium physical capacity for work.

48 Mr Gordan Morrison, an orthopaedic surgeon, had examined the worker on a number of occasions. In a report dated 8 October 2001 he recorded:-

"He has changed employment and is now working on a casual basis in a hardware store. The work does include some lifting but he is coping with it without difficulty. His lower back problem remains much as before the motor vehicle accident in question." (TB 87)

49 When one weighs in the evidence of Dr Stephan as contained in his report of 17 August 2001, and the notes of Ms Matkovic concerning the worker's progress and apparent lack of complaints, there was, on the strength of the evidence as it existed when the determination was made, every reason to think that the worker was then capable of working full time as a sales assistant in a Hardware store.

50 The worker's position is that that evidence does not accurately depict the duties that he was performing or his capacity to perform those duties. I understood his case to be that the duties required of a sales assistant in the hardware industry were those that he was required to undertake in the later periods of his employment with Thrifty and that I should, in light of the difficulties that he had in undertaking that work, therefore conclude that these duties were unsuitable for him. He said that when he first commenced working at Thrifty much of his work involved delivering bags of firewood and that he could cope with this work. He said however that over time the work changed and that it became increasingly heavy. He described his duties at Thrifty as comprising of stacking, dusting and vacuuming and assisting customers and bagging up small products such as animal feed from 40 kilogram bags into smaller bags. He said that he used a sack truck to get large bags from pallets. He said that he needed physiotherapy and hydrotherapy treatment to help keep his back flexible and to help him manage his duties. He said that the work in the hardware store did involve some heavy lifting and bending and on occasions he would need to call upon customers to assist him. He said that in about October 2001 he began working longer hours and that he was barely coping with the increased hours. He said that over time it became increasingly difficult for him to satisfactorily discharge his duties at Thrifty and on 23 April 2002 his employment was terminated.

51 Much of this is borne out by others. For example, in a statement that Robert Quarisa gave to investigators on 14 February 2002 he said:-

"Joel Kostiw has been employed by me as a hardware sales assistant and delivery driver for the past six months. I am aware of his limitations and the physical handling of certain categories of stores. I am familiar with Joel's background as I was his boss when he was a bricklayer. I provided him with part time employment because I wished to help him as he had injured himself on my job. Strictly, he is unsuitable for the position even on a part time basis and my brother, who is my partner, is not keen on continuing with his employment on the present basis of 25 to 30 hours per week. Although he is keen to perform his duties, restrictions preclude him from carrying out any tasks involving the manhandling of heavy items or any task involving a considerable amount of bending. A situation arose recently where my brother was instructing him to deliver a load including permapine sleepers and he said he was unable to unload them at the customer's premises. This created a problem for us as we had no one else available to go with him on the delivery run and it would not have been viable in any event. The other sales assistants feel that it is unfair to them to be asked to help out and carry out lifting and other tasks when they are receiving the same rate of pay. We have now reached the stage where we are giving serious consideration to terminating his services altogether as it is unfair to the other sales assistants." (TB 249-250)

52 A statement supplied by Mr Joseph Bates, a sales assistant also employed by Thrifty, verifies this concern. In a statement that he also gave on 14 February 2002 he records:-

"One of our part time sales assistants named Joel Kostiw is also employed here and I am familiar with his capability and his physical restrictions. The job requires a considerable amount of physical work involving manhandling, bending and the lifting of heavy items such as concrete mix, sand, slab pavers, sleepers, wine barrels and virtually anything we have in bags, as we are required to bag up items from bulk. Heavy items are often required to be unloaded and placed on shelves and cleaning and vacuuming is required during quieter periods. When we are busy and Joel is working with me, he is constantly asking for help in the handling of heavier items which I find most frustrating as it interferes with my service to customers and the performance of my own tasks. I have complained to management on a number of occasions as I consider that the physical restriction suffered by Joel is placing an unfair workload on me." (TB 252-3)

53 Dr Stephan was invited by the worker's solicitors to revise his opinion about the worker's capacity in light of some further information that they put to him. Dr Stephan was advised that the duties required of a sales assistant at Thrifty included repetitive bending a lifting whilst manually loading of firewood, bagging bulk concrete mix and sand into 40 kg bags, lifting large and heavy concrete slab pavers, lifting pre-packaged 40 and 50 kg sacks of cement and fertiliser, moving large wine barrels, lifting and carrying large sized permapine sleepers, prolonged use of a pallet jack when handling large incoming deliveries of stock, prolonged vacuuming and cleaning of the store premises for periods of more than an hour at a time, prolonged bending and lifting whilst placing stock onto shelves and prolonged driving of a delivery truck for more than a half a day at a time. Dr Stephan stated that the requirement for these duties had never been reported to him by anyone including the worker. Not surprisingly he stated that many of these duties were unsuitable because of the worker's chronic back problems.

54 It was then put to Mr Morrison, by letter dated 4 February 2002, that he had a misunderstanding of the extent of the physical duties required of the worker in undertaking work in the Thrifty. This caused Mr Morrison to provide a supplementary report dated 25 March 2002 wherein he recorded:-

"The duties you list that are required for Mr Kostiw to work full time as a sales assistant at Thrifty Hardware are unsuitable because of his ongoing low back problem. Unfortunately Mr Kostiw will required (sic) permanent restriction on the weight he can lift. I would estimate a maximum of 15 kilograms on an occasional basis. He would be unsuitable for repetitive lifting or bending. He would require employment that would avoid for long periods of sitting or standing. He would be suitable for employment as a sales assistant that did not involve heavy lifting or bending. Although he would be able to drive a vehicle, sitting for long periods would tend to aggravate his low back problem and this would restrict him from a driving job for local delivery, courier or taxi work.

54 It seems that the worker became unhappy with Dr Stephan and decided to consult with another general practitioner, Dr Bruno Rositano. Dr Rositano first saw the worker on 14 May 2002 and he seen him at regular intervals since. He stated that although there are some duties of a hardware assistant that the worker could perform, there were others that he could not. He said that the worker could not stand on his feet all day and that he could not repetitively lift or bend.

Some general observations about the relevant statutory provisions

55 Before turning to evaluate the worker's capacity to perform the alleged suitable work it is necessary to make some general observations about the provisions under consideration.

56 First, it is important to note that s 35(2) "is not directed towards work that the worker is actually expected to undertake but rather, its focus is directed towards identifying work commensurate with the worker's residual earning capacity as a basis for reducing the weekly payments that he or she is receiving.": Scutcheon v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd(O D &E Pty Ltd) [2001] SAWCT 115 at par 81.

57 Secondly, in my opinion, for employment to be said to be suitable, it does not follow that the worker necessarily must have a physical capacity for performing all aspects of the work. As a member of a specialist Industrial Tribunal, I think I am permitted to know that there are many employees who are gainfully employed despite the fact that they possess disabilities and that many employers are, if the circumstances permit it, willing to modify an employee's working duties to accommodate those disabilities. Thus, I would not regard the fact that a worker has, for example, a lifting restriction that limits that worker's capacity to perform the full range of duties that might be expected for a particular position as necessarily leading to a finding that the employment identified, is not suitable. It will be a question of fact and degree.

58 The same can be said for the notion as to whether the worker has a reasonable prospect of obtaining that employment. I think that this emerges from the observations of Cox J in Warren v WorkCover (1998) 72 SASR 7 at 13 and 14 where he said:-

"Common experience shows that, if there is suitable work that a partially incapacitated worker can do, the major impediment to his obtaining such work will usually be his need to persuade of course his employer to prefer him when he is competing against others who are able bodied. However, the effect of subs (3)(d), in its usual application, is to remove the factor of job competition, leaving the worker in question as the only applicant. Whatever the actual state of the labour market may be, he is to be supposed to have the very great advantage of continuous work availability. His prospect of obtaining suitable employment will therefore in most cases be excellent. His application for a suitable vacancy could only fail if the employer were willing to leave the job unfilled rather than employ somebody who, though in fact qualified to do it, has a disability history. The worker could still be rejected because of that history or his partial incapacity or his age or his lack of experience or his lengthy absence from the work force or for some other reason, but where he is to be treated in effect as the only applicant for a vacant position most employers, one would imagine, would prefer to take a chance with him rather than to simply appoint no one." (emphasis added mine)

59 In other words, despite a finding that the work is "suitable work", the worker's inability to perform certain aspects of the work might, in an appropriate case, lead to a conclusion that he or she has no reasonable prospect of obtaining it. Again, this will be a question of fact and degree.

60 To these I add the observations made by Her Honour Deputy President Judge Parsons in Arnold v WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd (R & CJ Komazec) [2002] SAWCT 96 at par 26, with which I respectfully agree. She said:-

"As a Member of a specialist Tribunal I think I am entitled to know that there are many kinds of factory work involving different levels of physical activity and different postures which are performed in a variety of environments..."

61 Like her Honour, I think I am entitled to know that there are many kinds of hardware sales assistants jobs involving different levels of physical activity and which are performed in a variety of environments.

62 I now turn to consider the range of duties that the alleged suitable employment entails.

63 I received a statement from and heard oral evidence from Mr Trevor Korber, who is a store manager of the Mitre 10 store at St Agnes. Mr Korber described his store as a middle sized retail hardware store selling a variety of hardware products such as screws, nails, nuts and bolts, paints and painting products, plumbing, gardening and heavy building accessories. He said that the present mix of staff was about 60% male and 40% female. He said that the duties of a sales assistant in a hardware store comprise mainly of customer service either at the cash register or on the shop floor. He said that other duties involve dusting and straightening stock. He said that a staff member might be required to lift a 40kg bag of cement but that this was not a regular feature of the work. He said that in his store they employ staff to work exclusively in the heavy building section. He said that the female staff only perform light work and the heaviest item they would be required to lift would be a light bag of potting mix. He said that there was bending and lifting involved but this was not repetitive. He said that professional cleaners clean his store. In cross-examination he agreed that it was not desirable for a member of staff to ask a customer to help lift an item.

64 Included in the trial book, was a report prepared by Ms Carolyn Saunders of Physiolink Pty Ltd, and this included a functional analysis to identify whether the physical demands required to carry out the work of as a sales assistant in the hardware industry . The analysis was based on the duties performed at the Mitre 10 hardware store at Glynde. Her understanding of this employment reflects Mr Korber's description.

65 Ms Saunders stated that sitting and crawling were not specifically required. She stated that the work frequently involved standing at a cash register serving customers for variable periods interspersed by walking over variable distances of up to 100 metres; frequently lifting items weighing up to five kg, occasionally lifting items weighing up to 10 to 15 kg and on occasions lifting heavier items such as a 40 kg bag of cement and a 25 kg bag of soil.

66 Finally I received a statement from Mr Reginald Nye, the former Chief executive Officer of Barry's Home Improvement Centre Pty Ltd, a hardware business. Mr Nye made it quite clear that he would not employ a person with the physical restrictions applicable to the worker.

67 On the basis of this and the other evidence placed before me I find that the work of a sales assistant in the hardware industry comprises of a range of duties that includes dealing with customer queries about hardware products, occasional bending to point or pick up items of hardware on shelves, walking over distances of up to 100 metres, to meet with and to attend to the needs of customers and standing for varying period at a cash register to process sales and at other places. The work can include heavy lifting, but not necessarily so. Some stores, like Mr Korber's, allocate dedicated staff to lift heavy items. In light of Mr Korber's evidence I also find that there are many females involved in this work. I think that I am permitted to know that such persons would not normally be expected to undertake this type of work. Whilst the capacity to lift heavy items would be desirable I do not regard it as essential and to the extent that Mr Nye suggested otherwise I reject his evidence.

68 I am fortified in coming to this conclusion by the fact that the Quarisas offered the worker employment in full knowledge of his disability and that with some modifications to his working duties, the worker performed this work at their store for many months. This might have irritated Mr Bates. It is not unknown for employees to be annoyed by a belief that other employees receive favoured status. Part of the challenge for management in any working enterprise is to select the range of duties best suited to a particular individual and to deal with any conflict in the workplace that might arise as a result of that allocation.

69 With these matters in mind, I now turn to consider whether in fact the work identified here is suitable work. In doing so I adopt the approach that I took in Scutchoen (supra) and focus, as I think I must, upon the position as it was as at the date of the determination.

70 I commence this exercise with some observations about the worker's evidence. I have some concerns about some of his evidence and approach it with much caution.

71 For example, in his statement filed in connection with these proceedings the worker said that at the end of every working day his right hip and back were sore. He spoke of extreme pain when involved in sustained bending and squatting whilst tidying shelves. And yet, the worker saw Dr Stephan on 17 August 2001, being the date of the doctor's letter to Beckman and Associates and that letter was very positive regarding the worker's work at Thrifty. In his report of 27 May 2002 Dr Stephan stated that he had had reasonably detailed discussions with the worker about the work that he was undertaking, wherein despite an indication that there was an occasional requirement for lifting and bending and that there were occasional problems with his back, that at least initially, he had the clear impression that the worker was coping very well with the job.

72 The worker said that his hours and duties changed in approximately October 2001 and that after that the work became more difficult. (TB 221-2).

73 The worker saw Mr Morrison on 8 October 2001 in connection with his motor vehicle accident. Mr Morrison's report of the same date records a history of the worker working on a casual basis in a hardware store, that it involved some lifting and that he was coping without difficulty. When this was put to the worker he said that he would not have said "without difficulty" (tr57). Mr Morrison, on the other hand said whilst this might not have been quoted verbatim this was the impression that he gained from what the worker had said to him (tr131).

74 It is possible that when the worker saw Mr Morrison the alleged change in his duties had not yet occurred. But I am troubled by the fact that the worker made no mention that he was experiencing difficulties at work when he saw Dr Stephan in a consultation that took place on 31 October 2001.

75 There was reference to back pain at a consultation that took place on 29 November 2001 but Dr Stephan's notes record that were minimal signs, no significant night or morning symptoms and uncertainty as to whether it was aggravated by work or non work activities. (tr74) If the position had been as the worker described it, I would have expected him to have appreciated that it was work which was causing the problem, that he would have advised Dr Stephan accordingly and that he would have been presenting with more severe symptoms. As it was, the first specific mention to Dr Stephan of work at Thrifty causing back pain came on 18 January 2002, a couple of weeks after the worker had received the s 36 Notice. At that consultation Dr Stephan records that there had been an exacerbation of pain that started the week prior and that it may have been due to increased duties of lifting and bending. (tr74)

76 The worker's evidence was that he never complained to Ms Matkovic during the relevant period because he never found her particularly helpful and he was not a person to complain about everything.

77 The evidence suggests to me that Ms Matkovic went out of her way to help the worker, that the worker was not shy in complaining to her and that she acted upon his complaints. Based on what the worker now says, from the beginning the job at Thrifty was in terms of his capacity to undertake it not much better than those that preceded it. That does not sit with Ms Matkovic's notes of her conversations with the worker over the first few months of his employment at Thrifty.

78 In light of these matters and the worker's evidence, generally, I was left with the very firm impression that he was inclined to understate his capacity to perform work and to overstate his incapacity to do so. I was also left with the very firm impression that in fact work at Thrifty did not become a problem for the worker until after the s 36 Notice advising him of the impending reduction in his weekly payments of income maintenance was issued. This probably was contributed to by changes in the range of duties that he was required to perform. However, I also gained the very firm impression that the fact that the s 36 Notice relied upon the worker's work at Thrifty as a basis for reducing the worker's weekly payments significantly dampened his enthusiasm for performing that work.

79 In determining this issue, on the one side of the ledger are these facts. Firstly, the worker obtained a position of his own initiative as a sales assistant at Thrifty Hardware with persons who were apparently impressed by him and he performed the work satisfactorily for many months. I find that this remained so until at least the change in duties that occurred at the start of 2002. I find that this was work that is aptly described as work as a sales assistant in the hardware business.

80 Secondly, the work that the worker was performing was real work. The duties may have been modified but the evidence establishes that the worker was contributing to the business. This is amply demonstrated by the increase in hours that the worker was asked to undertake in the early months of 2002.

81 Thirdly, at times when he was performing this work the worker reported to Dr Stephan and to Mr Morrison that he was coping well with the work. On the basis of the description that the worker provided to them as to the work that he was doing both, Dr Stephan, and Mr Morrison, thought that he was capable of undertaking that work full time. Dr Stephan said in his evidence that he clearly remembered discussing the possibility of the worker working full time for Thrifty and that the worker said that there was no particular problem with that (tr 70).

82 Fourthly, I find that the range of duties that the worker was performing at Thrifty were within the range of duties that one would typically expect a retail hardware sales person to perform.

83 On the other side of the ledger is the fact that there were physical limitations imposed upon the worker that made the more arduous aspects of work as a retail hardware sales assistant beyond him. The employer's business was compromised because of this. Customers, on occasions, had to embark upon heavy lifting, that should have been undertaken by the employer's staff and, ideally, the worker. I accept Mr Korber's evidence that this was an undesirable work practice. The employer had to prevail upon other members of its staff to assume some of the heavier aspects of the work and this led to some disharmony in the workplace. Ultimately the employer, despite wanting to accommodate the worker, eventually tired of his inability to perform the full range of duties that it expected of its retail hardware sales assistants and as a consequence his employment was terminated.

84 The range of duties involved in the work of a retail hardware sales assistant are wide. Some of these duties are clearly beyond the worker's capacity. One could not, for example, describe sales assistant work in the building section of Mr Korber's store as suitable and clearly the heavier weights identified by Ms Saunders were at the relevant time beyond the worker's capacity.

85 But that said, the worker had much to offer. He has extensive experience in the building trade having completed an apprenticeship as a bricklayer and having worked in that role. He has had a range of different jobs many of which provided him with experience that would help him in dealing with customer queries in the hardware industry. He is young, intelligent, and his supervision of other bricklayers when undertaking that job suggests some leadership qualities. There was no suggestion that he had any difficulty dealing with customers. Subject to any physical limitations, the work of a retail hardware sales assistant, was clearly within his capabilities.

86 In weighing all of these matters I have come to the conclusion that the worker's lifting and other physical limitations do not render this work as unsuitable.

87 In this case I think it is also significant that the work that the worker was required to undertake at Thrifty Hardware actually changed. In light of the fact that the worker performed this work for many months without complaint by his employers and without his complaining to doctors fortifies my conclusion about the suitability of this work because it demonstrates that until more arduous duties were imposed upon the worker he was capable of performing the work that was asked of him. I am satisfied, that the work of a retail hardware sales assistant, is, for the purposes of the provisions under consideration, suitable work.

Did the worker have a reasonable prospect of obtaining this work?

88 Even taking into consideration that the Quarisa's enjoyed a special relationship with the worker and that strongly influenced their decision to offer him work, applying the reasoning of Cox J in Warren (supra) leads me to the conclusion that the worker had a reasonable prospect of obtaining this work. The worker has so much to offer. I am satisfied that despite his history of disability and of physical limitations a prospective employer would engage him rather than leave the position unfilled. I therefore conclude that the Corporation was right to have determined as it did.

89 Finally I turn to consider the submission that I should take into account the damages that the worker received for future economic loss in respect of the injuries that he received in a motor vehicle accident.

90 In my opinion the mere fact that I am adjudicating over a dispute between the parties concerning the quantum of the worker's ongoing entitlements to income maintenance does not give me a licence to address any issues that might arise between the parties. My task is to judicially determine the dispute that is before me and that dispute does not concern a determination related to the worker's damages claim. It is not my place to advise the Corporation as to how, if at all, it can take steps to air this issue. The fact is that it is not before me.

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 the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.