[1990] SAWCRP 46

WORKCOVER REVIEW DETERMINATIONS INFORMATION RETRIEVAL SYSTEM

Details : Employer refused to pay worker weekly payments for "stand-down" days - worker sought Review - finding of partial incapacity - agreement by parties at hearing that the findings and decision in the matter of Pike and Metro Meat Limited would apply to this matter - Finding worker entitled to weekly payments for "stand-down" days for reasons given in Pike matter (Determination 348/89).

See further, Metro Meat v. Pike (unreported, available in transcript only, 14.11.91) (McCusker DP), and Pike v. Metro Meat (unreported), WCAT Print A.64/1992 (McCusker DP)

Determination of Review Officer made on 5th March, 1990

This is the determination of an application lodged on 1st May, 1989 by Noel Graham MacMartin as worker under a contract of service with Metro Meat Limited, which seeks a review pursuant to the Workers Rehabilitation and Compensation Act, 1986 ("the Act") of a decision made by the employer on 29th March, 1989 not to pay the worker weekly payments of income maintenance with respect to days known in the industry as "stand-down" days.

When the matter came on for hearing, the worker did not attend but was represented by Ms. Marg DeLisio of the Australasian Meat Industry Employees Union (S.A.), a registered Association in accordance with the Act. She was assisted by Mr. Graham Warren of the same Union. The employer was represented by Mr. Geoffrey Thomas of counsel. He was instructed by Mr. Max Kerr, Group Risk Manager for the employer.

I find Metro Meat Limited to be an exempt employer within the meaning of the Act.

At the Directions Hearing on the 21st September, 1989, it was agreed by the parties that the issue in dispute in this matter was common with similar Review applications currently before the Review Officer. It was further agreed by the parties that one matter would be selected for a hearing. The matter chosen was Pike and Metro Meat Limited. It was agreed by the parties that the findings and decision made by the Review Officer in Pike would apply to this matter. On the 31st October, 1989, the Pike matter was heard and arguments and submissions were made by representatives of the worker and the employer respectively. On the 13th February, 1989, Determination No. 348/89; [1989] SAWCRP 348 was handed down with the findings and determination made by the Review Officer.

On the basis of the evidence before me in this matter, I find that a contract of service within the meaning of the Act was entered into by Metro Meat Limited as employer and Noel Graham MacMartin as worker. A disability within the meaning of the Act is alleged to have occurred on the 17th February, 1988 when the worker developed pain in the thoracic spine area of his back as a consequence of working in the beef boning room. On the 24th February, 1988, the worker completed a Notice of Disability and Claim for Compensation in the prescribed form and served them upon his employer accompanied by a WorkCover medical certificate from Dr. G. Hughes.

In reaching my determination, I take into account all documents on file which were submitted.

On the 1st May, 1989, the worker applied for a Review against the decision of his employer not to pay income maintenance for days designated as "stand-down" days, namely 29th March, 1989, 30th March, 1989 and the period 3rd April, 1989 to 7th April, 1989 inclusive, on the grounds:-

"I offered myself available for alternative duties as certified. The Company had no alternative duties available to me therefore, partial incapacity shall become total incapacity as specified Workers Rehabilitation and Compensation Act 1986, Section 35(2)(a)."

I find that the worker was certified fit for alternative duties for the days known as "stand-down" days which occurred during the period nominated in the worker's application for Review. I find that the worker was partially incapacitated for those days. I accept that the worker was ready and willing to work on those days and would have worked if work was made available to him. Section 35 of the Act sets out the principles by which a worker is entitled to receive weekly payments of income maintenance for periods of incapacity as a consequence of a compensable disability. There is no dispute that the worker suffered a compensable disability. I find that if suitable work for which the worker is fit is not available, then the worker's partial incapacity is deemed total. I find that the worker is entitled to receive compensation by way of income payments for the days designated as "stand-down" days in accordance with Section 35 of the Act, for the reasons I gave in my earlier decision in the Pike matter.

Pursuant to Section 96(2), I set aside the decision of the employer in not paying the worker weekly payments for "stand-down" days and substitute for that decision a fresh determination that the worker is entitled to receive weekly payments of income maintenance for days designated as "stand-down" days that occurred during the worker's partial incapacity.

I remind the parties of their obligation pursuant to Section 47 of the Act.

Any appeal against this determination must be lodged with the Workers Compensation Appeal Tribunal within one month of the receipt of this determination, or on a medical question, with a Medical Review Panel. Enquiries about appeals may be directed to the Registrar of Review Authorities, 4th Floor, Hooker House, 33 King William Street, Adelaide, (phone: 226.9718) and forms for appeal are available from the same address.