Supreme Court of Tasmania|1994-09-06|Before: Underwood J

L W Allison T/As Marina Motel v Dianne Francis James Judgment [1994] TASSC 122; (1994) 3 Tas R 304 (6 September 1994)

L W Allison t/as Marina Motel v Dianne Francis James

Workers Compensation - Assessment and amount of compensation - Weekly earnings - Tasmania - Ordinary time rate of pay - Meaning of "the work in which he was engaged immediately before the period of incapacity". Workers Compensation Act 1988, s69(1)(a)(ii). Scott v Sun Alliance Australia Ltd and Anor [1993] HCA 46; (1993) 178 CLR 1, referred to.

UNDERWOOD J This appeal from a determination of the Workers Compensation Commissioner concerns the provisions of the Workers Compensation Act 1988, s69(1) which provides:

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 the

prescribed form from a medical practitioner, 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 -

(a) in the case of the total incapacity of the worker

for work, weekly rate payments equal to -

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

(ii) the ordinary time rate of pay of the worker (as

expressed by reference to a week) for the work in

which he was engaged immediately before the period of

incapacity

whichever is the greater; or

(b) ..."

2. The question of law arises over the meaning of the statutory expression, "the work in which he was engaged immediately before the period of incapacity".

3. The respondent was employed by the appellant as a housemaid. One day in November 1991 when working downstairs with another employee, the respondent saw the laundry van arrive. She decided to get some empty laundry bags. As she was going upstairs, some-one threw a laundry bag down. It hit the respondent. She suffered pain in the back of her neck and was taken to a hospital. A claim for compensation was made and met. There was an initial period of total incapacity for about a month and then the respondent returned to work on light duties. Weekly payments ceased on 9 December 1991. The respondent continued at work until she resigned her employment in June 1992. There is no evidence that she was incapacitated for work at the time she resigned. On 20 October 1992, four months after her resignation from work, she experienced severe pain in her neck. It was not disputed that this onset of pain was a recurrence of the injury suffered in November the previous year. It was also not disputed that from 20 October 1992, the respondent has been totally incapacitated for work and has produced the requisite medical certificates to support the existence of such incapacity.

4. Before the Commissioner and on this appeal, it was submitted on behalf of the appellant that the respondent should be paid weekly compensation calculated on the basis of her average weekly earnings over the period ending 20 October 1992, and not calculated in accordance with the ordinary time rate of pay because she had not been engaged in any work "immediately before the period of incapacity". The learned Commissioner overruled that submission and made a determination that "the worker be paid weekly compensation for periods of incapacity supported by medical certificates in the sum of her ordinary time rate of pay by reference to a 38 hour week in accordance with the appropriate award rate."

5. From that determination this appeal is brought on the grounds that the Workers Compensation Commissioner erred in law in:

"1 Finding that the worker was entitled to be paid

weekly payments of workers compensation in accordance

with Section 69(1)(a)(ii) of the Workers Compensation

Act 1988 rather than weekly payments of workers

compensation on the basis of her average weekly

earnings as set down in Section 69(1)(a)(i) of the

Workers Compensation Act 1988.

2 By adopting the approach of assuming that injustice

would be caused to the worker if she received her

'average weekly earnings' and then interpreting

'immediately' as relating to the work she last

performed prior to her period of incapacity so as to

avoid this assumed injustice.

3 By failing to give any interpretation to the word

'immediately' where it appears in Section 69(1)(a)(ii)

of the Workers Compensation Act 1988."

6. It is surprising that this aspect of s69(1)(a)(ii) has not previously received curial consideration. The provision was introduced into the Workers Compensation legislation by Act No52/1972 which amended the Workers' Compensation Act 1927, First Schedule, r3. That amendment made a fundamental change to the law relating to weekly payments by the introduction of the concept of "full pay" during periods of incapacity. No doubt, the primary purpose for enacting the expression "work in which he was engaged immediately before the period of incapacity" was to ensure that workers who were temporarily earning a higher than usual income immediately before the commencement of a period of incapacity, would not be financially disadvantaged by the incapacitating injury. However, the facts in the present case raise an entirely different set of circumstances. On behalf of the respondent it was submitted that the word "immediately" meant in effect, the last work in which the worker was engaged before the commencement of the period of incapacity. In response to that submission, counsel for the appellant pointed out that such a construction would be very much to the disadvantage of the employer in a circumstance where the period of incapacity commenced years after an employee had permanently retired from the work force. The appellant's submission that "immediately" means work that had a very close temporal connection to the commencement of the period of incapacity, was met with the observation that there would be unfairness to a worker who had temporarily stopped work a very short time prior to the commencement of the period of incapacity.

7. The learned Workers Compensation Commissioner referred to some principles expressed in Scott v Sun Alliance Australia Ltd and Anor [1993] HCA 46; (1993) 178 CLR 1 and said in his reasons for judgment at 7:

"If the worker was not exercising all of her working

capacity at the time of the commencement of the

incapacity serious injustice may result if she is to be

paid her average weekly earnings merely because she was

unable to obtain work before the period of incapacity

commenced. Whilst it is clear that the worker was not

engaged in any work immediately, that is to say she was

not working on the 19th of October 1992, it seems to me

that to compensate her for the reduced ability to sell

her work for wages is the philosophy of modern workers

compensation legislation, and thus in relation to total

incapacity she ought to be compensated at her ordinary

time rate of pay by reference to the award."

8. Section 69(1)(a)(ii) refers to work in which the worker was engaged immediately before "the period of incapacity". The paragraph provides a method of calculating the amount of weekly payments. The only "period of incapacity" that makes weekly payments payable is that prescribed by the opening words of the subsection viz, "where total or partial incapacity for work results from an injury suffered by the worker." Although the existence of a medical certificate is a condition precedent to entitlement to receipt of weekly payments in the case of either incapacity, such certificate does no more than "support" - ie evidence - the incapacity. Thus, the time of commencement of any period of incapacity resulting from a compensable injury for the purpose set out in s69(1)(a)(ii), is a question of fact which may or may not be evidenced by a prescribed medical certificate. As the court said in Scott's case at 10, there may be more than one period of incapacity. See also Brambles Holdings Ltd v Pincott, A30/1994. After a period of incapacity, ie, a reduced or complete physical incapacity for doing work in the relevant labour market (Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1983-1984) 155 CLR 171 at 178), there may be a period without any such incapacity. If thereafter, there is a further period of total or partial incapacity resulting from the same injury, the date such further period commenced is the relevant date for the purpose of determining the work (if any) in which the worker was engaged "immediately before the period of incapacity" as enacted in s69(1)(a)(ii).

9. The learned Commissioner fell into error when he said in his reasons for judgment at 8, "When Section 69(1)(a)(ii) speaks of a period of incapacity it means the period of incapacity supported by certificates in the prescribed form ..." The paragraph speaks of the fact of incapacity which resulted from the injury. The first inquiry to make is whether there has been any such incapacity. If yes, the second inquiry is when did it first occur. The third inquiry is whether it thereafter ceased, ie, at some point in time was there no reduced physical capacity for doing work in the relevant labour market as a result of the injury? In some cases, such as this one, it may be necessary to make a further inquiry to ascertain if a subsequent period of incapacity for work resulting from the original injury has occurred and if so, when it commenced. In such cases it is only after these questions have been addressed and answered in accordance with law, can it be determined whether the worker was engaged in any employment immediately before the period. There was a paucity of evidence about these issues in this case. In her evidence-in-chief the respondent said:

"MR GREEN: So you were off work until 9th December? ...

Yes.

And you went back to work then? ... Yes I went back to

work.

Initially on light duties? ... Yes.

And you stayed working there until June 1992? ... Yes.

And then you resigned? ... Yes.

In October 1992 you started to seek work again? ...

Yes.

And on 20th October 1992 you woke in severe pain? ...

Yes.

Did you seek further medical treatment because of that?

... Yes."

"Now you said you had your accident on 22 November 1991

and that you produced medical certificates after that

accident occurred? ... Yes.

It would be correct to say though, would it not, that

you had not produced to your employer a medical

certificate after 8th December 1991? ... I think so.

Does that sound about right, about - that's about the

time-frame that you were producing medical certificates

for about two or three weeks or so? ... Yeah.

And after that time you were no longer producing

medical certificates in which you'd said that you were

unable to do the work or some parts of the work, is

that the case? ... Yeah.

And then you resigned your employment in about June of

1992? ... Yeah.

And so from 9th December 1991 until you resigned your

employment you hadn't produced any further medical

certificates saying that there was some parts of your

work that you couldn't do or you weren't able to work

at all, is that the case? ... (no audible reply) ...

(the witness nodded)

MR SWEENEY: Now then you resigned your employment in

June of 1992 ... Yeah.

And you did not obtain any further work after you

resigned your employment? ... No.

Were you looking for work or not? ... Yeah I was

looking for work.

So you were unable to find work ... Oh no I would - I

could find work but I was just in pain and -

I see. So then, you say though, that in October 1992

you had this severe episode of pain? ... Yes.

So that between the time that you resigned your

employment and this severe episode that you've

described you were not working or had not worked for

anybody? ... No."

11. On the hearing of the appeal, Counsel were unable to point to any other evidence probative of the issue of the existence of relevant incapacity. Although the learned Commissioner erred in law in holding that the relevant period of incapacity was that which was evidenced by medical certificates, I do not think this error vitiated his decision. The onus lies on the worker to establish incapacity for work. See Woden Valley Glass v Psaila [1993] FCA 399; (1994) 122 ALR 387. Although there is a suggestion in the evidence set out above that the worker was in fact incapacitated sometime after she resigned her employment and before the recurrence in October, for she said that during that period she could find work but "I was just in pain and-," it is no more than a suggestion and had he applied the law correctly, the learned Commissioner could not have come to any finding other than the one he did, viz, that the relevant period of incapacity did not commence until 20 October 1992.

12. In Scott v Sun Alliance Australia Ltd (supra) the court said at 5, 6 that although the terms of employment of most workers are governed by awards, that is not always the case and in such cases "the compensation payable to him or her pursuant to s69(1)(a) must be calculated by reference to his or her average weekly earnings." Thus, the legislative provisions contemplate that average weekly earnings and an ordinary time rate of pay may not be available options for calculating the amount of weekly payments in every case. There may be no relevant "ordinary time rate" because the rate of pay for the work done is not the subject of any award or because the worker was not engaged in any work immediately prior to the period of incapacity. In considering the meaning of the expression "work in which he was engaged immediately before the period of incapacity" it is appropriate to bear steadfastly in mind two concepts expressed in the judgment of the court in Scott's case. The first, at 12, is that the modern philosophy of workers compensation in cases of total incapacity is that "to compensate a worker by reference only to what he or she was actually earning may produce serious injustice if, for some reason, the worker was not exercising all his or her working capacity at the time of the commencement of the incapacity." The second at 10 is, "no assistance is to be obtained in the construction of s69(1)(a) by reference to what is fair to the employer or to the worker. Sometimes, the terms of the subsection may work in favour of the employer; sometimes they may work in favour of the worker." With great respect, I find simultaneous application of both principles sometimes a little difficult.

13. The Shorter Oxford Dictionary defines "immediately" to mean: "in an immediate way; by direct agency; directly", and "with no person, thing, or distance intervening in time, space, order, or succession ..." However, in a statute, the meaning of any word has to be ascertained not simply by reference to dictionaries but by reference to the context in which the word appears and the purpose of the Act. For example, in R v Durham Market Co (1857) 29 LTOS 247 at 247 it was held that "immediately" meant without any considerable space intervening, on a case stated where the appellant had erected a stall "immediately" in front of his house contrary to certain legislative provisions. For the purpose of the Superannuation Act 1976 (Cth), s3(3) it has been held that "immediately after ceasing to be an eligible employee" is a reference to a variable period of time from "a second, a day, or a week, provided the person again becomes an eligible employee 'immediately' after ceasing to be one" per Commissioner for Superannuation v Bayley [1979] FCA 76; (1979-1980) 28 ALR 293 at 315.

14. Identification of the work (if any) in which a worker was engaged immediately before the commencement of any relevant period of incapacity is a question of fact. Determination of that question of fact depends upon all the circumstances of each case and it is impossible to lay down any exhaustive definition applicable to all cases. There must be a close temporal connection between the commencement of the relevant period of incapacity and there must be no relevant "thing" such as retirement, intervening between the last work and the commencement of the period of incapacity. The period of time may be as short as a few hours or as long as some weeks. What work can properly be described as being "immediately before the (commencement) of the period of incapacity" depends on the facts of each case. There may be a recurrence of an injury whilst a worker is on annual holiday. No doubt, in such circumstance, the finding of fact would be that the work in which the worker was engaged immediately before the period of incapacity was that work in which he or she was engaged immediately prior to commencement of annual holiday. The same finding might be made if the holiday was extended by one week's unpaid leave, granted to enable the worker to attend to some family emergency that had arisen. A different finding might be made if the evidence established that during that week the worker resolved not to return to work in order to remain at home to care for a young child. It is unwise to attempt to lay down an exhaustive definition of the meaning of a word when the task of the tribunal is to make a finding of fact that depends on the circumstances of each case. However, I reject the submission made on behalf of the respondent, that "immediately before the (commencement) of the period of incapacity" is a reference to the work in which the worker was last engaged before the period of incapacity, for that submission invokes an entirely different concept from that invoked by the expression "immediately before the period of incapacity."

15. It follows from the foregoing that the learned Commissioner erred in law when he directed himself that "the work that the worker was engaged immediately before that period of incapacity (sic) must be construed to mean the work in which she was last engaged before that period of incapacity." The appeal is allowed. the determination made on 3 June 1994 is set aside. I will hear Counsel with respect to the final disposition of this matter.

Workers Compensation Act 1988

Workers' Compensation Act 1927

L W Allison T/As Marina Motel v Dianne Francis James Judgment [1994] TASSC 122;

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

L W Allison T/As Marina Motel v Dianne Francis James Judgment [1994] TASSC 122; (1994) 3 Tas R 304 (6 September 1994)

Parties

Legislation Cited (2)

Cases Cited (3)