Workers Compensation - Assessment and amount of compensation - Weekly earnings - Tasmania - Meaning of amount able to earn in suitable employment or business - Sufficiency of evidence.

Viney v Roney Management Pty Ltd [1996] TASSC 27; (1996) 6 Tas R 240; Aitkin v Goodyear Tyre and Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20; Eyre v Houghton Main Colliery Company Ltd [1910] 1 KB 695, followed.

Workers Rehabilitation and Compensation Act 1988 (Tas), s69(1)(b), (4)(b) and (c).

Judgment Number: [2000] TASSC 143

MMI GENERAL INSURANCE LTD v MERVYN MAXWELL DONNELLY

1 On 8 February 1999, the appellant, who is the respondent's employer's licensed insurer, made application to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") pursuant to the provisions of the Workers Rehabilitation and Compensation Act 1988, ("the Act"), s88(1). The application sought a review of the weekly payments of compensation being made to the respondent in respect of an injury suffered by him during the course of his employment on 21 October 1997. By order dated 23 May 2000, the application was dismissed. The appellant has brought this appeal against the order of dismissal.

2 On 21 October 1997, the respondent suffered a lower back sprain arising out of and in the course of his employment. Liability to pay compensation was not disputed and weekly payments were made upon the basis that the respondent was totally incapacitated for work. On 13 March 1998, the respondent was examined by Dr Stewart, a medical practitioner retained by the respondent's employer. Dr Stewart issued a certificate dated 22 April 1998, certifying that in his opinion, the respondent had wholly or substantially recovered from the effects of the relevant injury. The notice of intention to cease making weekly payments that accompanied Dr Stewart's certificate was referred to the Tribunal. The Tribunal held that the respondent had not recovered as opined by Dr Stewart.

3 In October 1998, video surveillance film of the respondent was taken. In it he was depicted (inter alia) loading and unloading firewood from his four wheel drive vehicle.

4 On 12 April 1999 the respondent was examined, again on behalf of his employer, by consultant physician, Dr Ulman. It was Dr Ulman's opinion that the worker was unfit to resume his pre-injury occupation which involved unrestricted heavy manual work, but that he was fit for a variety of occupations, including factory process worker, taxi driver, delivery driver, storeman, salesman, gardener, caretaker, service station attendant and clerk. Dr Ulman's evidence was that with respect to the positions of factory process worker, delivery driver, storeman and salesman, the respondent should not be considered fit to lift more than 20 - 25 kilograms. Dr Ulman said that some heavy manual tasks that might be associated with gardening would be beyond the respondent's capacity and he conceded that his assessment of the respondent's capacity for work was based solely upon physical criteria. The respondent elected not to call any evidence at the hearing before the Tribunal.

5 In its reasons for judgment, the Tribunal preferred Dr Ulman's opinion to that expressed by Dr Stewart. The Tribunal then made this finding:

"By accepting Dr Ulman's opinion evidence I am able to find that as a consequence of that incident on 21 October 1997 the worker suffered an aggravation of a pre-existing degeneration of the spine at L5/S1. I further find that as a consequence of that injury the worker remains partially incapacitated for work."

6 The Tribunal then turned to the provisions of the Act, s69(1)(b) which provided that the compensation payable to the respondent:

"(b) in the case of the partial incapacity of the worker for work, weekly rate payments for the period of that incapacity equal to the difference between the worker's normal weekly earnings and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity."

7 The Tribunal held that the onus of establishing "the amount that a worker would be able to earn in suitable employment or business" during the period of partial incapacity lies upon the employer. In support of this proposition, the Tribunal cited a passage from the judgment of Zeeman J in Viney v Roney Management Pty Ltd [1996] TASSC 27; (1996) 6 Tas R 240 at 246 - 247. No error can be detected in the Tribunal's conclusion with respect to the onus of proof. The Tribunal's reasons for judgment then proceeded:

"As has been noted above, the worker elected not to adduce any evidence. Accordingly, the effect of those matters provided for by sub sections 69(4)(b) and (c) upon Section 69(1)(b) is not an issue for the Tribunal's determination. Instead, the issue, as identified by the competing submissions of counsel, is the employer's burden of proof under Section 69(1)(b) and in particular the character and sufficiency of the evidence necessary to be adduced by the employer to satisfy its onus within the terms of that Section."

8 If, in that passage in its reasons for judgment, the Tribunal intended to state that as a matter of law, s69(4)(b) and (c) were not in issue, then it fell into error, for the terms of s69(4) are such that the subsection must be considered in conjunction with s69(1)(b). Relevantly, s69(4) provides:

"(4) The foregoing provisions of this section have effect subject to the following provisions of this subsection:

(b) when the question of the amount that a worker is earning or would be able to earn arises, if it appears to the Tribunal that, because of the injury that the worker has suffered (including the physical disfigurement of the worker) he is, or will be, unable to obtain employment or to remain in reasonably regular employment, the Tribunal may decide that the worker is incapacitated by the injury, either totally or partially and either permanently or temporarily, as the circumstances of the case require, and, on the Tribunal so deciding, compensation is payable to the worker in accordance with this Division;

(i) has so far recovered from an injury suffered by him as to be fit for employment (but only for employment of a more limited kind than the employment in which he was engaged before the date when he suffered the injury); and

(ii) satisfies the Tribunal that he has taken all reasonable steps to obtain, and has failed to obtain, employment of a kind referred to in subparagraph (i), and that his failure to obtain that employment is a consequence wholly or mainly of the injury (including the physical disfigurement) of the worker

the Tribunal may, notwithstanding any other provision of this Act or any earlier determination of the Tribunal under this Act, or order, award, determination or decision made by a judge under the repealed Act, in respect of that worker, determine that his incapacity shall continue to be treated as total incapacity for such period and subject to such conditions as the Tribunal thinks fit and, on the making of the determination, compensation is payable in accordance with this Division.

9 Although Mr Dockray, counsel for the appellant, contended that the above paragraph reflected an error of law, I do not construe the Tribunal's reasons for judgment in that way. As I understand the passage set out above, the Tribunal was saying no more than there was no evidence touching upon the matters raised by s69(4)(b) and (c).

10 The correct approach to the task before the Tribunal was set out in Bridgewater Abattoirs Pty Ltd v Willing (1996) 6 Tas R 215 at 220 - 221. The primary questions for the Tribunal were whether the appellant had established partial incapacity as opposed to total incapacity for work and, if yes, had it also established the amount that the respondent would be able to earn in suitable employment or business? Until both those matters had been established, no factual issue arose pursuant to the Act, s69(4)(b) or (c).

11 With respect to the meaning of "able to earn", the Tribunal cited the following passage from the judgment of Jordan CJ in Aitkin v Goodyear Tyre and Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 at 23:

"If, however, (the worker) is not earning anything, or for some good reason, what he is earning cannot be treated as a proper basis, regard must be had to the alternative basis provided by the Section - what he is 'able to earn'. It has been held that this means physically capable of earning remuneration of a particular amount in some suitable employment or business, irrespectively of whether the demand for workers in the suitable employment is such as to admit of his getting a job. Hence, if he is not earning anything, he is entitled to compensation calculated only on the basis of the excess of his pre-injury average weekly earnings over what he could earn in some suitable employment if he could get a job."

12 The above proposition was adopted by Cox J (as he then was) in Padgett v Australian Pulp and Paper Mills Ltd [1985] TASSC 21; [1985] Tas R 52 after reviewing the authorities referred to by Jordan CJ.

13 With respect to the question of what constitutes "suitable employment or business", the Tribunal referred to Eyre v Houghton Main Colliery Company Ltd [1910] 1 KB 695 for the proposition that regard must be had, not only to the physical condition of the worker, but also to the nature and character of his occupation before the accident. The word "suitable" must be construed as relative to the particular worker and not to workers generally. See Hoe & Co Ltd v Dirs [1940] 4 All ER 297. In addition, the Tribunal held that reasonable access to the labour market was also a relevant factor in determining what constitutes reasonable employment. See Hills Patent Glazing Co Ltd v Douglas (1937) 30 BWCC 145. No error of law can be detected in any of the foregoing.

14 The Tribunal concluded its reasons for judgment as follows:

"It follows that in my opinion the employer does not, in a case such as this, satisfy its onus by only adducing evidence of a worker's physical capacity to undertake particular vocations. Instead, the Tribunal, to enable it to make a determination of the amount that the worker 'would be able to earn in suitable employment', requires evidence adduced by the employer that those vocations identified as being within the worker's physical capacity also constitute 'suitable employment' in the sense that they bear some relationship to the nature and character of his occupational training and experience and also are within a labour market reasonably accessible to the worker.

In this matter, there is evidence revealed by the documents that the worker is aged 42 years and that he has been employed since 1 March 1994 in the labour and maintenance supply industry as a process controller working upon a production line. There is also evidence that he is a director of the employer, it being a private company. There is evidence too that the worker resides at Tamo-Shanter which I infer from the postcode is located in northern Tasmania. There has not been any evidence adduced upon which I could make a finding that any of those vocations identified by Dr Ulman as being within the worker's physical capacity exist within a labour market accessible to the worker, that is reasonably proximate to Tamo-Shanter. Furthermore, there is not in my opinion any evidence sufficient for me to determine that any of those vocations identified by Dr Ulman are suitable for the worker having regard to his occupational experience and training. It is noted, for example, that there is not any evidence before the Tribunal as to the qualifications, training, and duties of a process controller. This is not an occupation within my own knowledge. I cannot make any assessment from the worker's experience in this occupation of his suitability for other occupations in his partially incapacitated state. Overall, it is my view that the employer has not adduced sufficient evidence upon which I can make a determination of the amount that the worker would be able to earn in suitable employment. It follows that there will be an order dismissing the employer's application to review." [The last emphasis added]

15 The essence of the appellant's contention on this appeal is that no tribunal, acting reasonably and properly instructed as to the law, could have reached the foregoing conclusion.

16 With respect to the issue of the "amount that the respondent would be able to earn in suitable employment or business", there was the following evidence:

* The respondent was a director of his employer and had been one of its employees since 1 March 1994.

* At the time of the accident, he was employed as a process controller on a production line.

* It might be inferred that the production line was at Comalco.

* The respondent lived at Tamo-Shanter or Lulworth. The investigator's written evidence refers to his address as Lot 43, Bush Haven Drive, Tamo-Shanter. The referral to the Tribunal gave his address as Lot 43, Bushhaven Drive, Lulworth.

* The respondent drove a motor vehicle and inferentially, held a licence to do so.

* The respondent was able to load and unload firewood from a Nissan four wheel drive flat tray motor vehicle.

* The respondent had the physical capacity to do the jobs listed by Dr Ulman, whose evidence the Tribunal accepted.

17 With respect to whether there was a labour market within reasonable reach of the respondent, the Tribunal took the view that there was no evidence to enable it to make a finding with respect to the whereabouts of Tamo-Shanter other than, by virtue of its postcode, it was somewhere in northern Tasmania. In so doing, it took a view that no tribunal acting reasonably and properly instructed as to the law, would have taken, for the following reasons:

* The Act, s49, empowers the Tribunal to inform itself on any matter in such manner as it thinks fit. The uncontested evidence was that the respondent lived at Tamo-Shanter. Although the Tribunal is obliged to comply with the rules of natural justice, no breach of this rule would have occurred had the Tribunal looked at an ordinance map to find out where Tamo-Shanter and Lulworth were located.

* Even if bound to act in accordance with the rules of evidence, the Tribunal was entitled to take judicial notice of the location of various places within its jurisdiction. See Le Cocq v McErvale [1908] VicLawRp 15; [1908] VLR 69; Simpson v Taylor (1894) 5 QLJ 89.

* The evidence in the documents tends to establish that Tamo-Shanter is close to George Town, in that the respondent gave the post code 7253 as part of his address in his claim for compensation, and other documents show that George Town has the same post code.

* In addition, there is a clear inference that the respondent's workplace at the time of his accident was within easy reach of George Town for the evidence showed that he was a director of his employer which had a George Town address, and according to a letter, this company only went out of business when it lost its contract with Comalco. (I take judicial notice of the fact that Comalco is one of the State's largest industries located principally at Bell Bay, close to George Town.)

* A medical certificate tendered in evidence shows that on the day of the accident, the respondent consulted a general practitioner carrying on practice in George Town.

18 From the foregoing, the only finding reasonably open to the Tribunal was that the respondent lived within close reach of the labour market at George Town and consequently, within comfortable driving distance of the labour market at Launceston.

19 The respondent is described in Dr Ulman's certificate as a "tallish moderately over-weight man with a short dark moustache and a full head of short dark hair flecked with grey". The respondent had been in employment as a process controller on a production line for 3½ years before the accident occurred. The Tribunal did not need evidence to explain the nature of the duties of persons employed in such occupations as factory process worker, taxi driver, delivery driver, storeman, caretaker, service station attendant and salesman, nor did it need evidence that such employment is to be found at least in the labour market of Launceston, if not also in the labour market at George Town. All of that is a matter of common knowledge. Further, it is a matter of common knowledge that none of those jobs require any specialist qualifications, except for taxi driving, in which case the requisite licence has to be held.

20 The respondent elected not to call evidence. In the circumstances of the case, the only reasonable inference open from the failure to call evidence, was that such evidence would not have assisted the respondent's case. See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Although there was no evidence of the respondent's occupational training and experience, there was evidence that he had been in employment for a number of years before the accident, and in the absence of evidence on his behalf, the only inference reasonably open was that he was able to engage in the occupations referred to (other than taxi driving) for they do not require special training or qualification other than a physical capacity that the Tribunal found he possessed.

21 The Tribunal had evidence of the earnings set by the awards for the various occupations that Dr Ulman said that the respondent was fit to engage in, albeit, in some cases, with restrictions on the weight that he could lift.

22 For all those reasons, I am clearly of the view that error occurred in that no tribunal, acting reasonably and properly instructed as to the law could have reached the conclusion "that the employer had not adduced sufficient evidence upon which [it could] make a determination of the amount the worker would be able to earn in suitable employment".

23 The appeal succeeds. The order of dismissal is quashed.

24 At the conclusion of the hearing, counsel for the appellant asked me to dispose of this appeal by making the order that the Tribunal ought to have made. I am minded to adopt this suggestion, rather than send the matter back to the Tribunal, but will need the assistance of counsel with respect to the awards tendered in evidence before I can do so.