Mason v Mayne Nickless and Workcover/Nrma

2. Thereafter he returned to work on normal duties ie in his pre-injury duties. In 1996 Mayne sold its business to Chubb. Chubb became the worker's employer.

3. The worker was totally incapacitated from 7 January 1999 to 18 August 2000 from an injury sustained in Chubb's employ.

4. Thereafter he was and remains partially incapacitated.

4 The second anniversary of the worker's "incapacity" from Mayne's injury occurred in March 1994. Mayne's liability to pay weekly payments was extinguished then, because by that date the worker was in his pre-injury employment and was receiving the wage applicable thereto.

5 As I understand the worker's case he does not claim weekly payments for that period. However the facts are that the worker's partial incapacity revived in August 2000 (after the period of total incapacity caused by the Chubb injury).

6 Accepting that that later period of partial incapacity was caused partially by the Mayne injury of 1992 and the Chubb injury of January 1999 Mayne submits that s 35(2) operates to absolve Mayne from liability to pay compensation because the worker was fit after August 2000 to perform the work of a "control room operator".

7 Chubb's submission is identical. Its absolution from the obligation to pay compensation dates from 7 January 2001 ie the second anniversary of the incapacity arising from the January 1999 Chubb incident.

8 Both respondents submit that the worker's partial incapacity (from Mayne post August 2000 and for Chubb post January 2001) cannot in law be deemed to be total because the worker was fit for suitable employment.

9 S 35(2) which has been the subject of much litigation states:-

(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

(b) for the first two years of the period of incapacity, partial incapacity for work is treated as total incapacity unless the Corporation establishes that suitable employment is reasonably available tot he worker; 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." (emphasis added)

10 Hornhardt v WorkCover Corporation/HIH Workers Compensation (SA) Ltd (NTP Proprietary Ltd) 2000 SAWCT 157 held that the Tribunal had the power to decide the question of the applicability of s 35(2) to a continuing claim for compensation by a partially incapacitated worker.

11 The foundation of the reasoning of Gilchrist J was, there was an analogy between his power of a Deputy President and the Review Officers' power under the 1986 legislation. It is supported by dicta in Cristea v WRCC [1993] SASC 4356; (1993) 61 SASR 487 ie a Review Officer could make any determination which could fairly be made within the confines of the matters to which the Corporation's decision relates - so could a Deputy President.

12 His Honour rejected an argument that s 38, which deals with the review of weekly payments, creates an exclusive code for the reduction of weekly payments.

13 Mitsubishi Motors Australia Ltd v Sosa Judgment No 55084 was apparently not argued in Hornhardt's Case. The former Chief Justice delivering the unanimous decision of a Full Court said at 11:-

"The construction of s 35 advanced by the appellants (Mitsubishi) carries with it the implication, in my opinion, that whenever the entitlement under s 35 ceases or diminishes, the Corporation or exempt employer is entitled automatically to discontinue weekly payments. That is plainly contrary to the policy of the Act. The legislature in prescribing procedures for the discontinuance or reduction of weekly payments has recognised that injured workers are dependent for livelihood upon the weekly payments. Arbitrary cessation or reduction could cause great hardship. Procedures are set in place to protect injured workers against arbitrary cessation or reduction of their means of livelihood. The procedures in s 36, 37, 38 and 41 are designed for that purpose. It is unthinkable that the legislature, having adopted those protective measures would largely negate them by confer in s 35 a power on the Corporation or exempt employer to discontinue or reduce weekly payments unilaterally and without compliance with the protective procedures."

14 It is of some significance that another member of this Tribunal in Hawkins v WorkCover/CGU/Nexus Pty Ltd [2000] SAWCT 14 at par 27 said:-

"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."

15 Her Honour was dealing with somewhat different facts but took a view of the applicability of Sosa's Case with which I respectfully concur.

"Weekly payments are not being reviewed. What is occurring here, having found that an entitlement to weekly payments exists, is an identification of the period of incapacity, a realisation that that period extends beyond two years and an assertion that without the benefit of the deeming provision contained in s 35(2)(b) no entitlement to weekly payment exists."

17 I am not entirely convinced that "weekly payments are not being reviewed". The only reason that weekly payments were not being paid to this worker when the claim was made - if that be germane to the issue - was that on 18 February 1999 Chubb rejected the worker's claim on the basis that the undoubted disability arose from Mayne's employment in 1992. On 4 August 1999 Mayne rejected responsibility for the undoubted disability on the ground that it arose from Chubb's employment in 1999 (and a 1979 motor vehicle accident which was a specious assertion).

18 I am uncomfortable with the proposition that a worker who has an established disability and an undoubted right to compensation, where the compensation payments are not made on basis of nothing more than a dispute between an exempt and a registered employer, is thereby denied the protection of s 38. If the worker is entitled to weekly payments as this worker undoubtedly was, I am uncomfortable with characterising the s 35(2) process as "identifying the period of incapacity" and not a review of weekly payments. However that precise issue was not debated before me, and I proceed on the basis that Hornhardt is applicable. What is important for the purposes of this case are the remarks of Gilchrist J in the same par 20:-

"If the compensating authority is, through evidence, able to persuade the Tribunal that for the period beyond that date the worker has a capacity to earn in suitable employment an amount equal to or greater than his or her notional weekly earnings, the Tribunal is obliged to determine that the liability for weekly payments has ceased as at that date."

His Honour was persuaded by the evidence before him.

19 His Honour adopted the same approach in Somerset v Schefenacker Vision Systems Pty Ltd [2001] SAWCT 81 particularly at par 19 where he talks of principles such as procedural fairness and the right to natural justice. Somerset's Case also had apparently extensive evidence as to the content of the employment that was in debate.

20 The important words for my purposes are "if the compensating authority is, through evidence able to persuade the Tribunal etc."

21 During the hearing I had the benefit of a wide ranging debate with Mr Hanus on the onus of proof in s 35(c)(i) and s 35(c)(ii). Mr Hanus submitted that on the basis of WorkCover Corporation of South Australia v Warren (1998) 72 SASR 7 that:-

"... an assessment of the weekly earnings of the worker could earn in suitable employment had to proceed on the basis that the employment of the relevant kind ie the suitable employment nominated, was in fact available. The contrary proposition ie non-availability of the nominated employment, if that was the worker's case, had to be established by the worker and the non-availability arose from the fact that the nominated employment was related to the worker's circumstances ie the worker was in effect unemployable."

The availability of employment operates as a statutory presumption.

22 Mr Hanus as I understand his argument said the presumption extended to the suitability of the employment s 35(2)(c) ie "suitable employment is not in fact available".

23 S 35(2) and s 42A(3)(c) are in identical terms. I set out s 42A(3)(c):-

"(c) the following factors must be considered (and given fair and reasonable weight) 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"

24 In my view, it follows from Warren that the question of the availability of the nominated work is given the statutory presumption ie that it exists. However it cannot be said that there is a statutory presumption that the work nominated is suitable.

"Nevertheless it was for the Corporation in my opinion to justify its assertion before the Review Officer. ... That means that generally speaking if a Corporation in a 42A review fails to establish on the evidence anything more than, say the worker's notional earnings, the Review Officer will simply reassess on the basis set out in paragraph a of subsection 2. It will be for the Review Officer to judge the adequacy of the evidence offered with respect to other relevant matters - suitable employment and so on - with the worker exceptionally bearing the onus of proof under paragraph (d) of subsection (3) and being faced with a rebuttable presumption of law if he does not discharge it." (my emphasis)

26 In Warren's Case the onus was on the Corporation in the review process, because the issue was the correctness of the Corporation's assessment of the worker's capital loss and this involved the accuracy of the assertion of what was suitable work and how much the worker could earn ie s 42A(2)(b).

27 The Corporation's submission that the worker bore the onus of proof of unsuitability was rejected in Warren's Case. In fact in Warren the primary judgment which was on appeal held that the evidence before the Review Officer did not discharge that onus. That finding of the primary judgment was upheld in the Full Court - ie whether the evidence was insufficient to establish what the Corporation asserted was said by the Full Court "not to be a matter in which the Full Court was concerned".

28 It is my view that the statutory presumption applies to the availability of work and has nothing to do with the suitability of work. The suitability of work is a separate issue. That flows from Warren's Case and it is also noted in Hornhardt's Case.

29 As to the evidence of suitability in this case both respondents relied upon statements from John Dzido Operations Manager of Consolidated Security. He was not cross-examined. He said that he had been in the security industry for 29 years.

"I've personally worked in control rooms and have a continuing involvement with control rooms and control room operators. My employer operates a control room for a major client.

Duties of a control room operator involved monitoring alarm systems. They may also extend to monitoring the activities of on duty guards to ensure their welfare.

A control room operator is not involved in the apprehension or pursuit of a suspect ... a control room operator generally works an 8-hour shift and would be seated at a control desk or a work station for the duration. The worker would only move to stretch, use the bathroom or take a meal break.

A control room operator would obtain all necessary training on-the-job including basic computer skills. A control room operator would received their training in-house once they have obtained the position.

The computer would indicate when an alarm is being triggered and sent up to the control room operator to action the alarm. They can do this via a number of responses including the alerting a nominated contact or alerting the patrol or police. Age is no barrier to working as a controlling operator. In fact it probably works in favour of a person. It is my experience that first opportunity is given to older people who have a background in the security industry."

30 There was also a statement from a Richard Manual who said that:-

He was employed as a control room operator between 1990 and 1995. He was employed by Chubb Security and worked in the Morphett Street and Gilbert control room. After ceasing employment as a control room operator he remained involved in the security industry being a general manager of his own security business.

He said that the duties involved in being a control room operator had not changed since he was employed in that capacity. He made this observation based on his contact with the security industry while he was the general manager of his own business and through the contacts that he maintained with people currently in the industry. A control room operator generally works between 8 - 12 hours on any one shift and the shifts are rostered over a 24 hour day.

Age is not a restriction to performing the duties of a control room operator he added maturity may be an advantage etc.

31 I have to examine the whole of the evidence because the statute imposes a mandatory consideration ie "the following factors must be considered". This is in the context of ascertaining whether the employment nominated is suitable.

32 The worker's statement of disabilities gives the impression of a person being moderately disabled. The worker did not give further evidence in this part of the case. However in cross-examination on 19 February 2001 nothing appears on the issue of what work might be suitable.

33 In a report at 88 of the Trial Book all that Dr Middleton said that might assist me to determine whether the employment nominated was suitable was:-

"He may well be quite fit for lighter duties as a security officer such as in a control room".

34 Mr FD Ghan:- In two medical reports did not express any opinion as to the type of work for which the worker was fit. Mr Ghan was also interviewed by an investigator. The record of interview was in the Trial Book. He was not asked any question about the type of employment for which the worker might be suited.

35 In evidence-in-chief Mr Ghan said that the worker was fit only for modified duties - the nature of which could be "left to a rehabilitation counsellor". I gather that a rehabilitation counsellor was never brought into the case because the worker's claim was rejected by both employers.

36 Dr Ghan was subjected to a searching cross-examination by two experienced counsel - but he was not asked any question about the suitability of any type of employment.

37 Mr Amey did not enter the debate about how far the statutory presumption extended - he submitted, I thought astutely, that an examination of the evidence did not in fact show that the work nominated was "suitable work".

38 The medical evidence consists of a one line assertion that is heavily qualified, in Dr Middleton's report. There is no evidence to suggest that Dr Middleton knew anything about control rooms. Nor indeed, if his opinion was proffered as an expert opinion was there any evidence of the facts on which he had based his opinion. See Cross-on-Evidence generally at 29071 for the prerequisites of an expert opinion. There was no attempt to have Dr Middleton identify and prove the specific facts from which he drew the inference he advanced.

39 It follows from s 35(2) that the factors personal to the worker must be considered. The four factors nominated in s 35(2)(a)(i) - (iv) are not attributes common to all workers. They are specific and idiosyncratic to the individual worker. To construe the Act otherwise would be to deprive s 35(2)(a) of any meaning.

40 Those factors are not necessarily related solely to the disabilities that flow from the compensable injury eg if a worker with a spinal injury who happened to be chronically claustrophobic was offered a work in a photographers darkroom it would hardly qualify as suitable employment. Likewise if a worker with acrophobia was offered a job as a steeplejack the Tribunal might have great reluctance in finding that was suitable employment.

41 That is to say there must be evidence of the suitability of the employment for this worker.

42 The degree of suitability ie the worker's age level of education and actual skills or skills that could be acquired reasonably are peculiar to the worker. These are matters for evidence. The evidence must be sufficient to establish on the balance of probabilities that the work is suitable.

43 There needs to be some evidence of the worker's ability to adapt to new employment.

44 As I read Hawkins Case. Her Honour was actually alluding to this very problem, in the context of the worker being put on notice of what the compensating authority's position was.

45 If, as Mr Hanus contends that the onus lay on the worker (as to show non-suitability) as well as the onus of unavailability, the Act should say directly or via the construction thereof, that the worker must show that the basis of s 35(2)(a)(i) - (iv) the work is not suitable because of reasons contained therein. However the Act does not say that at all.

46 The evidence of Messrs Dzido and Manual goes no further than the fact that they have worked in control rooms and have made general observations thereon. There is no evidence of critical matters such as whether the positions are casual, full time, part time, shift work, all day shift. There is no evidence of whether any particular skills are required, and if so what they are.

47 There is no evidence in particular of whether computer skills are required, and if all or only some employers provide on-the-job training. Nor is there any evidence of whether this worker has those skills or could easily acquire them.

48 In my view that type of evidence would be most cogently put forward by an employment or vocational consultant as one often encounters in s 38 judicial determinations. That is not the only method of proof but it would at least assist the Tribunal in coming to an informed decision on the suitability of the work.

49 I have examined the evidence carefully, I reject the reliance on Dr Middleton's view because his view is speculation. It is not an expert opinion.

50 There is no evidence one way or the other of this worker's capacity to adapt to new employment.

51 The fact that Messrs Dzido and Manual have observed some workers who are ex-static security guards who find control room work suitable, is a long way short of showing that that employment is suitable for Mr Mason. The respondent's proposition is a logical non-sequitur. The fact that some horses win the Melbourne Cup does not demonstrate that this horse or indeed all horses will win the Melbourne Cup.

52 Other than the fact that the worker was born on 11 June 1939 I know nothing about him. I know nothing of his educational level, his skill level, other than for many years he worked as a security officer. I know nothing about his ability to adapt to new employment.

53 Hence Mr Amey's point is very well taken. On the totality of the sparse evidence on the subject I am not satisfied on the balance of probabilities that the employment nominated ie a control room operator as suitable employment for Mr Mason.

54 Therefore I am constrained to find that the worker's partial incapacity is deemed total from August 2000.

55 Before leaving this matter I mention two topics.

1. In Hornhardt the trial of the compensability aspect was heard sometime before the trial of the s 35(2) issues.

2. In Somerset the trial of the compensability issue took place some months before the s 35 issues.

3. In this case the trial of the compensability issues was conducted on 20 February 2001 and the s 35(2) issue was heard on 20 June 2001.

56 In my view it is inherently undesirable that the trials be so split. The issues are so intertwined. It is desirable that all issues and the evidence relevant to those issues be adduced on one occasion. This aspect of the matter involves the credibility of the witness. A further trial months later presents difficulties for the judicial officer to retain the impact of the original evidence.

57 Secondly, and I say this ad hominem - it is ironic that Chubb is asserting that a security control room position is suitable employment. Chubb is one of the largest if not the market leader in providing monitored security services. Chubb did not offer this worker a position in any of its control rooms. I do not draw any inferences from that. I only remark that the non-offering of a job by such an employer who has the very facilities for which the worker's skills are said to be appropriate, is to say the least, ironic.

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.