Scutcheon v Workcover/Allianz Australia Workers

Workers Compensation Tribunal (SA)|2001-10-04

1 This is a judicial determination of a dispute between Rodney Simon Scutcheon ("the worker") and the WorkCover Corporation ("the Corporation") which concerns determinations issued by the Corporation to reduce the worker's weekly payments of income maintenance on account of his alleged capacity to undertake suitable employment, following reviews conducted by the Corporation pursuant to s 38 of the Workers Rehabilitation and Compensation Act 1986 ("the Act").

2 At trial I had place before me numerous documents including statements, medical and other reports. I also heard oral evidence from many witnesses. Although I have taken all of this material into account I do not propose to summarise all of it or refer to all of it. I will only refer to that which I consider is necessary.

3 The worker is a man aged 39 years. Before completing year 9 of High School, he left school and started working, doing seasonal orange and grape picking. Thereafter, he worked in a variety of jobs until, at the age of 19, he obtained employment with Oil and Drilling Exploration Pty Ltd ("the employer"). He started there as a general labourer, working on rigs. He then progressed to the position of rough neck, which required him to work on the drill floor, and then he was awarded a series of further promotions, first as lead foreman, then as derrick-man and finally as a driller. This last job required the worker to operate all of the controls and to supervise everybody on the rigs. It also required him to carry out mathematical calculations to estimate the depth and volume of the drill. The worker's employment with the employer required him to work at Moomba, in the north of South Australia, and also at various overseas locations including Libya, Oman and Indonesia.

4 I cannot be entirely sure when it first occurred, but for many years the worker has experienced back pain and it is acknowledged that this occurred in compensable circumstances.

5 In about 1996 the worker underwent back surgery. Following this the employer assisted in the worker's rehabilitation and it provided him with the job of night rig manager. This was in fact a promotion. As night rig manager the worker supervised the driller and did all of the related administration work. The worker undertook these duties for about two years and during that time he was responsible for about 25 workers in total.

6 In about October 1998 the worked ceased working with the employer and in January 1999 the worker's employment with the employer was formally terminated. The worker, in his statement, put this down as being a combination of there being no work available and because of his ongoing back injury.

7 His employment having been terminated, the worker sought and obtained weekly payments of compensation pursuant to the Act.

8 On 9 September 1999 the Corporation advised the worker that it intended to review pursuant to s 38 of the Act the amount of weekly payments that he was receiving. Its notice referred to a functional capacity evaluation report dated 13 January 1999. It identified the occupations of delivery driver/courier, sales assistant, assembly worker/leading hand, winery worker (process worker), console operator, clerk (basic), and meter reader as comprising of suitable employment that the worker might be able to perform. As required by the Act, it invited the worker to make representations in respect of its proposed review. It would seem that the worker did not respond.

9 Having completed its review, the Corporation, by letter dated 22 October 1999 advised the worker of the outcome of its review and advised him that his weekly payments were to be reduced to an amount of $839.49 per week. The notice asserted that the worker was capable of earning the sum of $422.50 per week by way of suitable employment. At that time the worker's notional weekly earnings were $1471.86 per week. The Corporation therefore determined to reduce the worker's weekly payments to 80 per cent of that difference being $839.49.

10 The notice asserted amongst other things the following:-

"MMI Workers Compensation (SA) Ltd has determined that you are capable of performing the duties of a Delivery Driver/Courier, Sales Assistant, Assembly Worker/Leading Hand, Winery Worker (Process Worker), Console Operator, Clerk and or Meter Reader (However we will be concentrating on Delivery Driver/Courier.) You could earn $422.50 gross per week as a Delivery Driver/Courier. This is based on the Vocational Evaluation Assessment which specifies the rate of $422 gross per hour for a Delivery Driver/Courier."

11 By notice dated 27 October 1999 the worker disputed that determination and this forms one of the disputes that is before me.

12 The Corporation made a further determination on 1 December 2000 advising the worker that his weekly payments were to be reduced to $877.17 per week. This was done because the Corporation had adjusted the worker's notional weekly earnings to reflect changes to rates of remuneration payable to employees generally. This later determination relied upon the same assertions as the earlier one but took into account the adjustment. Arguably a further notice of dispute did not need to be filed. But it was and it is the other dispute that is before me. Because it deals with the same issues, its fate will depend upon the outcome of the first dispute and I will confine myself to that.

13 Mr Harbord advised me during the course of his opening address that the worker had, through his solicitors, made several applications for further and better particulars and that following these the Corporation withdrew any reliance upon the assertion that the worker could work as an assembly worker/leading hand or that he could do the work of a meter reader. That leaves five occupations potentially in issue, being delivery driver/courier; sales assistant; winery worker (process worker); console operator; and clerk.

14 Mr Harbord argued that because the first determination stipulated that it was concentrating on delivery driver/courier, the dispute ought to be limited to that occupation only. I will deal with this submission now. In my view little turns on the Corporation's statement that it would be concentrating on the occupation of delivery driver/courier. It clearly was not abandoning its assertion that the worker was capable of undertaking the other occupations that it had identified as suitable. Moreover, it is clear that neither the worker nor his advisers thought otherwise. There is no issue here about the worker being caught by surprise. In my view, the only effect of the Corporation's statement is that it cannot seek a reduction beyond the amount $422.50 per week, being the asserted wages payable to a delivery driver/courier.

15 The relevant statutory provisions are as follows:-

"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) if the period of incapacity for work does not exceed one year-

(i) the worker is, if totally incapacitated for work, entitled for the period of incapacity to weekly payments equal to the worker's notional weekly earnings;

(ii) the worker is, if partially incapacitated for work, entitled for the period of incapacity to weekly payments equal to the difference between the worker's notional weekly earnings and the weekly earnings that the worker is earning or could earn in suitable employment;

(b) if the period of incapacity for work exceeds one year, the worker is entitled to weekly payments determined in accordance with paragraph (a) for the first year of the period of incapacity and thereafter-

(i) the worker is, if totally incapacitated for work, entitled for the period of incapacity to weekly payments equal to 80 per cent of the worker's notional weekly earnings;

(ii) the worker is, if partially incapacitated for work, entitled for the period of incapacity to weekly payments equal to 80 per cent of the difference between the worker's notional weekly earnings and the weekly earnings that the worker is earning or could earn in suitable employment that the worker has a reasonable prospect of obtaining.

(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 to the 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."

16 I now turn to consider the evidence concerning the more contentious aspects of the dispute.

17 Although in a case such as this the Corporation clearly bears the onus of proof: see WorkCover v Warren (1998) 72 SASR 7 and Hornhardt v WorkCover [2000] SAWCT 157 the worker quite properly agreed to be dux litis.

18 In his written testimony the worker recited some particular problems that his back pain causes. He said that if he walked for a long distance he experienced severe back pain. He said that he could not drive for more than two hours at a time. He said that he had difficulty going up and down stairs. He said that he could not lift anything of substantial weight.

19 He then outlined the medication that he takes. He stated that he took panedeine forte, an analgesic, valium, an anti-depressant and relaxant, orudis, which is a muscle relaxant and anti-inflammatory, and sitprol which is anti-depressant.

20 In his oral evidence the worker told me that he now takes kapanol, for pain relief. This is a morphine-based drug and it can cause side effects such as dullness and an impaired ability to concentrate.

21 The worker told me that the medication that he takes makes him sleepy. He said that it makes him much slower than he used to be. He said that he found that valium caused him to suffer some short-term memory loss and that he tended to forget things quickly.

22 The worker said that after his employment with the employer was terminated he attempted to find work. He said that in April 1999 the Corporation arranged for the Commonwealth Rehabilitation Service ("CRS") to assist him in finding work. He said that together he and CRS attempted to find work for him as a meter reader, sales assistant, salesperson in auto parts, and lightweight truck driving. He said that he was willing to try anything but no work could be found for him.

23 He said that between April and August 1999 he occasionally helped his brothers with woodcutting and carting wood. He said he did this because he was bored doing nothing. He said that he sought a clearance to undertake this work with the CRS. He stated that his main task was to look out for his younger brother when his brother was felling trees. He said that he occasionally operated a lever, splitting wood. He said that he sometimes handled small logs weighing about five to six kilograms. He said that he sometimes he operated a small chainsaw weighing about three kilograms. He said that he drove for short periods.

24 In relation to his condition generally, the worker said that his back was worse since finishing work with the employer. He stated that he experienced severe episodes of back pain about four times a week. He said that he had trouble doing household chores. He mentioned that getting dressed takes longer and he feels pain in putting his socks on. He says that he has trouble getting to sleep because of back pain. He says that he has difficulty doing gardening because he cannot use a shovel or fork or other garden tools. He said that he could not play with his children because lifting them severely hurt his back.

25 In relation to the various occupations that have be identified, the worker said in his statements and in his evidence in chief that he would be unable to undertake any of them.

26 In relation to the position of deliver driver/courier he said that this was unsuitable because he could not sit for more than an hour at a time and that he needed a break from driving at least every two hours. He said that he would be unable to load or unload packages greater than ten kilograms in weight. He said that he would have difficulty bending to pick up parcels and getting in and out of a truck. He also stated that he would have difficulty going up and downstairs.

27 In respect of the position of sales assistant he said that he would not be able to stand in the one spot for more than half an hour at a time without increased pain. He stated that he had never done this sort of work before and that he was not really suited to it. He said that he would find it hard to sell things to people, particularly if he experienced severe pain in his back, because this would make him irritable.

28 As regards the position of winery worker, the worker acknowledged that he worked in a winery many years ago as a general hand. He nevertheless maintained that this work was unsuitable because it was hard work involving repetitive movements and moving heavy weights. He also stated that the medication that he is taking would prevent him from operating machinery over an extended period of time.

29 As for the position of console operator, the worker said that this would require him to deal with people face to face and that there might a problem if he experienced pain because of its affect on his personality. He stated that he would be unable to sit or stand for long periods and would be unable to lift heavy weights such as crates of drink. He stated that he would have difficulty doing heavy sweeping and mopping.

30 Finally, in respect of the position of clerk, he stated that he did not know exactly what the Corporation meant by this. He nevertheless maintained that it was unsuitable because he had never done this job before. He referred to his limited schooling. He said that his administrative work with the employer was not relevant because that was of a very limited type that he knew very well. He maintained he would not be able to sit in any one place for more than an hour or so without suffering pain and that his concentration would be affected because of his medication and back pain.

31 During the course of the worker's cross-examination, Mr Calligeros explored with him his work with the employer after his injury. The worker agreed that he worked a minium of 38 hours per week and that on occasions he could be on call for up to 24 hours at a time. He agreed that he often had to work in excess of 38 hours per week and sometimes worked for very long stretches. He acknowledged that the decision to end that employment was entirely of the employer's making and that he wanted to continue to work. He said that his work with the employer prior to his termination comprised of 75 per cent office work and 25 per cent supervision. He acknowledged that he had some computer skills. He said that he could use Word 97, Excel 97 and the Internet. He said that he knew how to open a program to type a letter and fax it. He agreed that he had basic clerical skills.

32 The worker was then shown some video film that depicted his movements when he was assisting his brothers with woodcutting and carting. It showed him attempting to disconnect a trailer. It showed him operating a large mechanical ram to split wood. It showed him driving a tractor. It showed him bending down to the ground to pick up pieces of wood and throwing them into a bucket for a period of about half an hour or so. The worker acknowledged that some of the wood he threw weighed more than ten kilograms. It showed him driving a truck. The worker admitted to driving the truck over a distance of about 70 miles.

33 Mr Calligeros then explored with the worker some of the occupations that were the subject of the Corporation's determination.

34 In respect of the position of delivery driver/courier the worker acknowledged that he could drive a vehicle and said that he could undertake this work provided the lengths of the drives were not too long and the articles that he was required to move did not require strenuous loading or unloading.

35 It was raised with the worker that despite his statements about medication making him drowsy that he seemed quite alert and responsive to questions that had been put to him during the course of his cross-examination. That accords with my observations of the worker and the worker acknowledged that he had been trying to be alert and had been concentrating.

36 The position of shop assistant was then canvassed. The worker said subject to being able to stand or sit at times that he thought that physically he could probably undertake that work.

37 He gave a similar answer when asked about his capacity to provide driveway service in a service station.

38 In addition to his own testimony the worker relied upon the opinion of his general practitioner Dr Steven Holmes, in supporting his assertions that the various occupations identified by the Corporation were unsuitable.

39 Dr Holmes told me that he had been treating the worker since December 1992. He described the worker's back disability as moderately severe and said that it affected the lower two vertebrae of his lumbar spine. He told me that there had been two occasions when neurosurgeons operated on the worker's spine to free nerves that were being compressed by discs and that this in turn caused some scarring around the nerves that supply power to the legs. He told me that in March 1999 he found it necessary to prescribe anti-depressant medication for the worker.

40 Dr Holmes said that the worker could ultimately work a full eight-hour day but this would have to be fragmented through a graduated return to work process, which he said could take quite some time. He described it thus (tr 123):-

"... I think what has to be understood is Rodney's back has not been worked at the level of a normal working back for several years and it really requires to be trained to work at a stronger level and we have to work out how it is tolerated with the injuries that persist."

41 He told me that if a job were available the worker would need to start by working two to three hours, three days a week and to build up his hours of work from there.

42 Dr Holmes was then asked to comment upon the various occupations identified by the Corporation.

43 In relation to the position of courier driver, Dr Holmes made the point that there needed to be some limitations on the weight of the objects that the worker might be required to lift. He said that there might be some degree of urgency in this type of work that might comprise the worker's capacity to have flexibility in terms of his ability to rest if driving became a problem. He also expressed concerns about a professional driver undertaking that work whilst taking medication that might compromise the driver's capacity to concentrate for an eight hour period.

44 As for the position of clerk, Dr Holmes thought that this was unsuitable because the worker's back condition would cause him to need to change posture and that it would be difficult for him to sit in the one position for four to six hours at a time. He said that to perform work as a clerk the worker would need to change position and be able to alternate duties and move around with certain freedom. He also stated that the worker's capacity to undertake clerical duties might be comprised by the medication that he was taking.

45 In respect of the position of console operator Dr Holmes said that in his experience they are usually sole operators and he said: (tr 126)

"... It really is an instant job. You have to be there to take the money and to press the "on" button for the bowsers when the people want it. There is also the problem of extra services, such as the delicatessen - staking bottles, filling gas bottles, I think, and sweeping driveways - which I think would be difficult as part of the duties of a console operator."

46 As for the position of winery worker he said:- (tr 127)

"... Having a little bit of knowledge of the wine industry, coming from Clare, it's not only the bottling - I think that's only a seasonal activity. Bottling only occurs for part of the year. Winery workers also have to work in other areas. That does involve dragging heavy hoses to wash various things, climbing ladders to inspect bins, getting into wine storage vats. The bottling line would be difficult because, again, that's a time pressure; there's no opportunity to - if is a conveyor belt production line you don't have the opportunity to have a break when you need it, if the task has to be performed before the next task can be performed. So I think that work would be unsuitable."

47 Finally, the position of sales assistant was put to him. Dr Holmes stated that the worker's restrictions on his capacity to lift heavy objects and his inability to stand for prolonged periods might compromise him. He said:- (tr 128)

"... If he were to start for a full eight hours, I think it would be very difficult for him."

48 The film evidence was put to Dr Holmes. My impression of his evidence is that he was not particularly troubled by it in the sense that he did not regard it as inconsistent of the history that he had obtained or the findings that he made on examination during the various consultations he had with the worker.

49 I was also left with the very firm impression that the major issue that Dr Holmes had in respect of the worker's capacity to undertake the various occupations that have been identified by the Corporation was that the worker needed some job hardening before he could get back to work. In response to a question that I had put to him to that affect, Dr Holmes said:- (tr 146)

"I think it is because it's like making an athlete run 100 metres with no training. I think you need to be able to strengthen the muscles and the posture and change the way that his back is working to suit the new job, and I think it would be counterproductive to say, `There's your job. Work eight hours.'"

50 The worker also relied upon the opinion of Mr Nagi Guirguis, surgeon. Mr Guirguis saw the worker twice, first on 11 March 1999 and then on 9 March 2001. Following the first examination, Mr Guirguis prepared a medical report in which he stated that at that time the worker had not been working for six months and he stated:-

"He will need to improve and maintain his muscular strength and endurance, improve his general fitness, and continue with regular stretching exercises, to assist in containing his symptoms. I believe that he is not fit to perform physical duties, and he should be precluded from undertaking repetitive or heavy lifting, repetitive bending or twisting, standing or sitting for prolonged periods, stooping, pushing or pulling, and reaching." (TB 103)

51 He expressed the restrictions on the worker's capacity for work thus:- (tr 197 - 198)

"I would be more inclined to say that he will not be able to sustain a physical employment or employment which will - entails all the activities we were talking about, like prolonged sitting, prolonged standing, repetitive bending, etcetera, on a full-time basis, no...."

52 Mr Guirguis was also shown the film, and again, my impression was that he was not particularly troubled by it in the sense that he regarded it as being consistent with his understanding of the worker's problems.

53 Finally the worker relied upon the evidence of Ms Andrea Costa, a rehabilitation counsellor with a Degree in Arts majoring in Psychology and Biology and a post-graduate qualification in Occupational Health. Ms Costa told me that she had been involved in Occupational Rehabilitation for about 15 years. Her work involved her negotiating with disabled workers and respective employers.

54 Ms Costa spoke of the difficulties that a worker with a back injury would encounter in undertaking work of the various jobs under consideration in this case.

55 Ms Costa said that the job of console operator was a little bit more physically demanding than what had been presented. She felt that a person with a back disability might have difficulties doing things like cleaning restrooms, cleaning windscreens and assisting mechanics. She said that all of these duties fell within the scope of this occupation.

56 Ms Costa told me that the position of courier driver required the driver to be self-sufficient in terms of loading and unloading of freight and in respect of routine self-maintenance. She said that there could be an expectation of driving for long periods such that an inability to sit for long periods of time would be a problem, as would getting in and out of a van, stooping, reaching forward to pick up parcels and pull them out. She doubted that someone with a back injury would be able to undertake this work on a consistent basis.

57 Ms Costa that the need to lift and handle heavy objects might be an issue for a person with a back injury attempting to undertake sales work.

58 Ms Costa told me that she did not have any specific experience in respect to winery work but she did have experience in general process work and based upon this, assuming it to be relevant to winery work, she said that lifting, keeping up with the pace of the work, and working with machinery whilst on strong medication, would be issues for someone with a serious back disability.

59 Ms Costa said that provided the person had adequate training and flexibility in terms of being able to sit, stand and move about, clerical work might be a viable option for a person with a back disability.

60 The Corporation relied upon the opinion of Mr Peter Oatey, neurosurgeon. Mr Oatey prepared several reports from 4 December 1997 onwards. Mr Oatey in a report dated 11 May 2000, in commenting upon the worker's capacity for work stated as follows:- (TB 97)

"It was considered that Mr Scutcheon would best avoid repetitive bending or driving over uneven ground in poorly sprung vehicles or a lot of driving work of more than 20 to 30 minutes duration. Avoidance of long awkward postures would also be considered appropriate but in all it was felt he could perform some lighter duty work along these lines and the degree of work which he was able to do and the hours per day would be dependent upon his symptoms but it seems likely he will be able to build up to an 8 hour day with such work though may require intermittent periods of postural alteration depending on his symptoms."

61 On 27 February 2001 an investigator appointed by the Corporation interviewed Mr Oatey. Prior to that interview Mr Oatey had been shown the video film. Mr Oatey advised that the video film did not change his opinion about the worker's capacity for work. In the interview Mr Oatey described that capacity thus:-(TB 81)

"Well as could be seen on the video, he can perform most types of work. He may even be able to wield an axe, but I think he'd pay for it afterwards with back pain. So I think he has the physical capacity to be able to do it in terms of neurological function, but I think it would flare up his back. So, as mentioned in my previous reports, I believe it would be preferable for him not to have to do a lot of repetitive bending or lifting of very heavy weights, even though we saw him lifting some logs on this, parts of logs, on the video, and I think it's consistent that he is physically capable of doing that, but I think he would suffer some discomfort in his back, and as I said before, that's difficult for me to accurately tell how much back pain he would be suffering with such activities and it may be variable, but judging by his past history and his operations, that is absolutely consistent with the, with the problems that he's had. So I see no problem with him being able to bend, but still has some discomfort, and I would also add that he is requiring medication continually with anti-inflammatory medication and Panadeine Forte and so he is obviously being able to perform activities in spite of having discomfort and it may be that he will go on and undergo the CT-discography with a view to a fusion procedure at one or both of the previously operated levels, depending upon the degree of discomfort he has."

62 In addition to this the Corporation placed evidence that endeavoured to describe the various occupations that it had identified as suitable in terms of what was physically and mentally required and to reveal the wages payable for such occupations.

63 This comprised of oral evidence from Mr Alexander Pikl of Clements, Human Resource Consultants ("Clements") and documents containing position descriptions and references to various Awards and Enterprise Agreements that had been obtained by him.

64 Mr Pikl is a registered psychologist who has worked for Clements since 1994. He told me that he was initially involved in providing vocational guidance and basic assessment services in screening people for various forms of employment. He said that he progressed to providing consultative services of a similar type to organisations seeking to recruit people and finally to assessing job suitability and vocational directions for people with work injuries.

65 In undertaking these tasks Mr Pikl has had to deal with employers and has had to familiarise himself with the duties involved in various occupations and the wages that are generally paid in respect thereof. Having considered submissions to the contrary, I find that Mr Pikl is qualified to give expert evidence of the range of duties involved in the various occupations that the Corporation seeks to rely upon and that he is qualified to identify Awards and Enterprise Agreements that apply to those duties.

66 Finally the Corporation adduced evidence from Mr Edward Dunstan the manager of Dunstan's Electrical, which is a business involved in electrical retail sales and service in Clare. Mr Dunstan spoke of the range of duties undertaken by his staff who are involved in retail sales and clerical work. For reasons that I will explain later I did not find his evidence to be particularly helpful in determining the issues before me.

67 Mr Harbord contends that a consideration of s 38 of the Act does not arise in this case because at all material times the worker has been totally incapacitated for work and I should find accordingly.

68 Whilst I accept that the worker suffers from a serious back injury and that as a result he will have difficulty finding paid employment, I do not think that his disabilities are as such that his labour is unsaleable in any market that is reasonably accessible to him. I find that he still possesses an ability to sell his labour, albeit that that ability is diminished. I therefore reject the submission that the worker is totally incapacitated for work.

69 Mr Harbord contended that should I reach this conclusion such that a consideration of the so called two year review provisions was required, I should follow the law as was declared by the majority of the Full Bench of the Tribunal in Adams v WorkCover/NZI Workers Compensation (SA) Ltd (WB and SM Doser) JD24/1997. He submitted that although in WorkCover Corporation of SA v Warren (supra), being a decision of the Full Supreme Court of South Australia, Cox J, with whom the other members of the Full Court agreed, stated that he disagreed with the reasoning of the majority in Adams (supra) I am nonetheless obliged to follow Adams. He argued that the adverse comments made by Cox J in Warren (supra) about the approach suggested by the majority in Adams were obiter. As I understand his argument, he says that faced with the choice of a majority decision of the Full Bench that says one thing and the obiter remarks of the Full Supreme Court that were expressly directed towards that majority decision that say another, I am obliged to follow the majority decision of the Full Bench.

70 In Adams the majority in commenting upon the interpretation of s 42A, (which for all practical purposes is the same as the provisions under consideration in this case) said, in commenting upon the statutory requirement that the worker must have a reasonable prospect of obtaining the work that has been identified as suitable, suggested that the expression meant what it said and that the prime affect of the amendments was that they no longer required such employment to be immediately available.

71 Mr Harbord contended that as a result, the Corporation had the onus of proving that the worker had a reasonable prospect of actually obtaining the employment identified by it and he submitted that the evidence in this case fell well short in establishing that to be so.

72 Although the decisions of the Workers Compensation Tribunal are not subject to a general right of appeal to the Supreme Court of South Australia in my opinion the Tribunal should regard itself for the purposes of the doctrine of precedent as being subordinate to that Court in the judicial hierarchy and that it should accept without question that Court's decisions. I accept that the doctrine of precedent draws a distinction between reasons that were necessary for the decision (ratio decidendi) and those that were not (obiter dicta) and it is only the former that according to the strict application of the doctrine must be followed. I also accept that the observations made by Cox J in Warren about the proper interpretation of s 35(2) and his rejection of the majority's view in Adams might technically be characterised as obiter. Warren was, however, an exceptional case. It seems to have been argued in a way that invited the Full Supreme Court to decide upon the correctness or otherwise of the respective approaches adopted by the majority on appeal and the minority on appeal and member at first instance in Adams JD3/1997 and the Full Court dealt with the case accordingly. Moreover, if I may respectfully say so, the observations made by Cox J were carefully considered and reasoned and, I think, were intended by His Honour, and inferentially by the other members of the Court, to provide guidance for future cases concerning like issues. That guidance clearly included a rejection of the construction of the relevant provisions suggested by the majority in Adams. Whilst I unhesitatingly accept that I am bound by decisions of the Full Bench, in this instance, given the contrary views expressed by the Full Supreme Court and the circumstances and manner in which they were expressed, I think that a failure by me to follow Warren would amount to a failure by me to recognise the supremacy of the Full Supreme Court. Accordingly, in determining this case, I regard myself bound by Warren and I shall therefore endeavour to follow the views therein expressed.

73 Mr Harbord submitted that even if the law is as declared by Cox J in Warren, it remained incumbent upon the Corporation to place evidence before the Tribunal of the actual wages that are payable to the positions that it has identified in its determination. He said that although the Corporation had identified various Awards and Enterprise Agreements it did not formally prove any of them in the hearing before me. He argued that its failure to do so was fatal to its case.

74 I reject this submission. In cases such as these it is not necessary for Awards and Enterprise Agreements to be formally proved to be relied upon. Awards are public documents. So too are Enterprise Agreements unless they are subject to a confidentiality clause. As a result I think that it is not only permissible but also desirable that judicial notice be taken of them. Hearing time is a precious commodity. We can ill afford to waste time formally proving matters that are within the knowledge and easy reach of the Tribunal.

75 Mr Harbord then argued, that in any event, the decision of Cox J in Warren implicitly approved a statement made by the Tribunal in the decision in Adams at first instance where it was said:-

"I do not think that there is any obligation on the part of the Corporation to identify an actual position. All that is required is the identification of a particular occupation which is specifically specific to enable one to determine the worker's suitability to perform it."

76 He argued that the descriptions of the specified suitable employment contained within the Corporation's determination were not sufficiently specific to meet this test. He said that the determination itself had to identify the actual duties that the worker would be required to perform and notwithstanding the supply of further and better particulars, that has not cured a fundamental defect in the determination.

77 I also reject this submission. The various occupations identified in the Corporation's determination are not novel or obscure. They are common. The purpose of detailing information in the determination is to enable the worker to understand it, to enable him or her to make an informed decision whether to challenge it, and if it is to be challenged, to enable the worker to know the case that he or she must meet. That is not to say that deficiencies can be overlooked. In an appropriate case a determination will be set aside because of its deficiencies. What it does mean is that a common sense approach should be applied. In this case, I think that the original particulars were sufficient and that if there was any genuine misunderstanding about what duties were being asserted as being suitable that misunderstanding should have been allayed by the provision of further particulars. In my view, the worker must deal with the determination on its merits.

78 As a further alternative Mr Harbord contended that even if the approach that commended itself at first instance and on appeal in the Supreme Court in Workers Rehabilitation and Compensation Corporation v James (No 1) (1991) 56 SASR 414 and (No 2) (1992) 57 SASR 365 was no longer applicable, the observations made by Zelling AJ in James (No 2) concerning the notion of suitability and his view that it had to take into account the personal circumstances of the worker, were still good law.

79 In James (No 2), Zelling AJ at 392-394 explained why some observations made in an earlier decision of the Supreme Court in Percic v Broken Hill Co Pty Ltd (1973) 6 SASR 1 should not be followed and he then said that:-

"Suitable employment means employment that the workmen can do and which in the total circumstances of that injured workman, will promote his rehabilitation and reintegration into the workforce."

80 The worker resides in Brinkworth which is a small country town in the mid north of the state. Mr Harbord argued that based upon the reasoning of Zelling AJ only jobs that were proximate to that location could be regarded as suitable and that looked at from that perspective none of the jobs identified by the Corporation were in fact suitable. He also argued that the same reasoning led to the conclusion that to be suitable, the work had to be conducive to the worker's long term rehabilitation and his return to fulfilling and productive work and again, he said that none of the jobs identified by the Corporation satisfied that criterion.

81 I think it clearly follows from the decision in Warren that the focus of 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 a worker's residual earning capacity as a basis for reducing the weekly payments that he or she is receiving. Thus, in my respectful opinion, the views expressed by Zelling AJ in James No 2 on this issue are no longer relevant.

82 Mr Harbord submitted that in any event, having regard to the physical restrictions on the worker, his level of pain, the medication that he is taking and his depressed mental state, none of the occupations identified by the Corporation are suitable because they do not meet the relevant statutory criteria and that in any case the worker has no reasonable prospect of obtaining this work.

83 Mr Calligeros contended that the worker's extensive productive work with the employer prior to his retrenchment, his demonstrated capacity for physical labour as evidenced by the video film, and his experience in employment demonstrated substantial earning capacity and that as a result I should find that all of the occupations identified by the Corporation as suitable and therefore confirm the determination reducing the worker's weekly payments of income maintenance.

84 This clearly is a critical issue in this case and I shall deal with it shortly.

85 Finally, Mr Harbord contends that none of the identified work is in fact available to the worker and that he is effectively unemployable because that work is not commonly available to a person in his circumstances. Depending upon the fate of the issue just mentioned it may or may not be necessary to deal with this. I shall return to it later.

Suitable employment - The relevant legal principles to be applied

86 The starting point is to identify the relevant legal principles that must be applied. For the reasons explained above I consider that they are as stated by Cox J n Warren, where he said at 13 - 4:-

"... Obviously suitable work, identified in accordance with subs (3)(c), could be available to a worker, yet the evidence show that the worker has no reasonable prospect of obtaining it. The two notions used in subss(2)(b) and (3)(d), then, are not identical and should not be applied as though they were. One therefore starts with subs (2)(b). However, it cannot have been intended that the question of a worker's reasonable prospect of obtaining suitable employment should be considered independently of the statutory presumption, which will generally apply under subs (3)(d), as to the present and continuing availability to him of employment of the relevant kind. 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 a cautious 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 someone 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 workforce or for some other reason, but where he is to be treated as in effect the only applicant for a vacant position most employers, one would imagine, would prefer to take a chance with him rather than simply appoint no-one. However, it remains a question of fact that will have to be decided on the evidence in each case. On that view of the matter, the words "that the worker has a reasonable prospect of obtaining" in subs (2)(b) still have some work to do but their impact is greatly lessened in practice by the deeming provision that was added in 1995."

"... Of course, par (d) of subs (3) does more than alter the onus of proof on that question. It raises in most cases an irrebutable presumption on a matter that is fundamental to par (b) of subs (2). It is only in a qualified sense that one may say (as the learned judge did) that the construction given to "suitable employment" in James is available as a guide in construing par (b), or that matters personal to the worker have to be considered when setting the average weekly earnings figure. So they do, but one such matter that was treated prominently in James was the worker's present and future ability to obtain work, and the way in which that is now to be considered in making an s 42A assessment has been heavily limited. There must be evidence (if it is not notorious) of the existence in the work force of a particular form of occupation in which the worker could be suitably employed, and of the average weekly earnings that a worker so employed will earn, but (unless it goes to prove the first par (d) presumption) evidence about the availability of suitable employment, in the form of present or future job vacancies, will be irrelevant."

88 Having identified the relevant legal principles to be applied I must now make relevant factual findings. I commence by making findings as to the range and nature of duties involved in each of the various occupations upon which the Corporation relies.

89 I find that the job of delivery driver/courier driver typically involves driving a light truck or van; operating a two-way radio or something similar; driving the vehicle to various locations to collect and deliver freight of varying sizes and configurations; completing all necessary paper work to record the collection and dispatch of freight; and undertaking all of these activities in a timely and professional manner. I further find that this job typically involves extensive driving of unpredictable duration and as a consequence sitting for lengthy periods of time; and that it also involves bending, lifting and carrying weights of various sizes.

90 I find that the job of winery worker typically involves inspecting and sorting bottles before and after filling; re-working non-compliance products; and placing full bottles of wine into cartons. I think it reasonable to assume and I find that the worker might, in undertaking this job, be required to lift and stack, amongst other things, full cartons of wine. I find that this job typically requires frequent bending and lifting, standing on an occasional basis and working along a moving conveyer belt.

91 I find that the job of console operator typically involves dealing with customers, their transactions, their queries and their complaints; providing full driveway service such as filling vehicles with petrol; checking tyre pressure; oil and water levels; cleaning rest rooms and generally maintaining the service station and its adjoining area; completing paper work associated with sales and stock control and dealing with stock. I find that this work typically requires standing and sitting for lengthy periods of time, walking, bending and lifting light to moderate weights.

92 I find that the job of sales assistant typically involves the promotion of and selling of products; dealing with customers, their transactions, their queries and their complaints; completing paper work associated with sales and stock control; unpacking new stock and placing it appropriately within the store; assisting in the setting up of promotions; undertaking in stock transfers; handling customer stock products; and assisting in the general house keeping of the store. I find that this work typically requires standing on a frequent basis, bending and lifting light items.

93 I find that the job of base clerk involves, typing correspondence and other documents, photocopying, faxing, filing, undertaking light office duties; drafting routine documents; communicating with others personally and by telephone; operating a computer, and entering data onto a computer. I find that these duties generally contemplate working in a seated position with standing and walking on an occasional basis, and that it requires frequents fine finger work and occasional bending and lifting of light weights.

94 I now turn to consider the worker's medical condition and the physical restrictions imposed upon him by his disabilities. At this point I think that it is important to note the I am determining the outcome of a review of the worker's entitlement to income maintenance that led to a notice of reduction made on 22 October 1999. In my opinion that date must be the focus of my enquiry. In other words, the determination of the relevant issues has to be directed to the state of affairs as at that date. If there have been adverse developments for the worker after that date that render the determination inappropriate having regard to present circumstances the worker's remedy lies in the making of an application for a further review under s 38.

95 In general terms I find that the worker's medical condition as at that date to be as described by Mr Oatey in his report of 11 May 2000. To the extent that Dr Holmes and Mr Guirguis gave contrary opinions I prefer the opinion of Mr Oatey. I do so for a number of reasons. Unlike Dr Holmes and Mr Guirguis the film impressed me. I thought it revealed a good range of back function and it suggested to me that at the relevant time the worker was fairly mobile and was capable of bending and lifting light to moderate weights. My impression is that Dr Holmes and Mr Guirguis do not share that view. I also thought that the film revealed a willingness and capacity by the worker to work notwithstanding the fact of pain. It fortified my impression that if there was an actual job on offer to the worker, that he was capable of undertaking and was motivated to do so, that he could perform it.

96 I find that as at 22 October 1999 the worker was suffering from a serious back injury that required him to take strong painkillers and that he was mildly depressed and was taking anti-depressant medication. I find that his capacity to bend and lift had been compromised. He had difficulty standing or sitting for extended periods of time. Despite this, as evidenced by his extensive and apparently productive post injury employment with the employer he, at all material times possessed a considerable residual earning capacity. He struck me as a capable and intelligent man. He has had extensive dealings with people in the workplace. He has supervised the work of others. He has been involved in management at a reasonably senior level. He has reasonably developed computer skills. He is clearly familiar with an office working environment and with office procedures. His progressive promotions with the employer demonstrate a well developed capacity to learn and adapt to new jobs. He is computer literate and can undertake routine computer tasks.

97 In my view, the occupations of delivery driver and winery worker can be immediately dismissed from further consideration. They are in my opinion plainly unsuitable. I quite agree with Dr Holmes observation that it is not appropriate for a person whose job primarily involves driving to be regularly consuming drugs of the type that the worker was taking. Moreover in such an occupation a worker has no real control over the length of driving required, the weight of the parcels that he or she might be required to collect and deliver or the frequency with which he or she might be required to lift such weights. All of these factors suggest to me that this job was unsuitable.

98 As for the job of winery worker, I think that the level of bending and lifting that might be required in undertaking this type of work would have been a problem for the worker. I also think, given the drugs that the worker was then taking, that working with moving machinery, such as a moving conveyor belt, would have been a problem

99 The suitability of the occupations of sales assistant and console operator is not so clear cut. I do not think that the worker would have had any difficulty in performing the clerical aspects of these jobs. And, despite his evidence to the contrary, I think that the worker's vast experience in working with people would have enabled him to cope well with dealing with customers. Given his undoubted intelligence and his clear ability to communicate in an articulate way, as demonstrated by his evidence before me, I think that overall these jobs were well within his capabilities. Moreover these jobs both carry a degree of flexibility in terms of standing and sitting. My only concern is that these jobs also involve some bending and lifting and on the state of the evidence I cannot be sure about the extent of such bending and lifting. The Corporation's identification of this employment is non specific in the sense that they could involve a range of sales assistant and console operator jobs. Because of the lack of specificity I cannot be sure that the level of bending and lifting required by these jobs was within the worker's physical capacity. I do not think that the evidence of Mr Dunstan overcomes that. The determination does not identify retail sales at Dunstan Electrical as being suitable work. It simply identifies "sales assistant". Indeed evidence about these particular duties was not introduced until the last day of the hearing. In my opinion that was far too late in the day to do so. Accordingly I have come to the conclusion that the Corporation has not discharged its onus of establishing that these jobs are suitable.

100 I now turn to the job of clerk. I have no doubt that the work of a clerk is well within the worker's capabilities. I find that there is sufficient flexibility in this job to accommodate the worker's need to avoid sitting and standing for lengthy periods of time. I find that the level of bending and lifting involved in this job is relatively slight and not sufficient to render this work unsuitable for the worker. I think that if the worker were the sole applicant for a job as a base grade clerk his application would be greeted enthusiastically.

101 Although I am satisfied that the worker was capable of undertaking the work of a base grade clerk, an issue that I need to concern myself with is the fact that if indeed there was an actual position of clerk that the worker was poised to undertake, I find that because of the worker's absence from the workforce as at 22 October 1999 of about a year, he was deconditioned and as a result was not at that time capable of being fully productive in working eight hours a day, five days a week.

102 I raised this with Mr Calligeros in the course of argument and he suggested that I could ignore this. He said that as the focus of the two year review provisions was no longer directed towards the worker actually undertaking the work that had been identified as suitable, it did not matter that the worker might need some job hardening to be fit to undertake such work on a full time basis. In the course of debate about this we compared arguments for and against requiring the worker to be job hardened before applying the relevant provisions. These were that on the one hand it might be thought appropriate to job harden a worker who was facing the prospect of diminished income maintenance and hence the need to attempt to supplement that income with paid employment and on the other hand that it might be regarded as demeaning to require a worker to undertake a work hardening program, the primary purpose of which was to fortify a determination to reduce or discontinue weekly payments.

103 Upon reflection I think that these arguments miss the real point. Either the job is suitable or it is not. Either the worker has a reasonable prospect of obtaining such employment (in the limited sense as contemplated by Cox J in Warren) or the worker does not. The fact of deconditioning and the need for job hardening may potentially impact upon either of these enquiries.

104 If, for example, it is asserted that full time work is suitable work and the extent of the worker's deconditioning and his or her need for job hardening is as such that he or she cannot work full time, the assertion that the worker can work full time will not be made out.

105 If it is asserted that full time work is suitable work and the level of deconditioning is not at such a level that it prevents the worker from working full time but rather, that it means that for a time the worker will not be fully productive, this is a factor, along with others, that will have to be taken onto account in determining whether that theoretical employer that the Act requires me to consider would prefer to leave the job unfilled rather than take the only applicant for the position on.

106 In this case as at 22 October 1999 I think that the worker's level of deconditioning transcended beyond a mere diminution in his capacity to be productive. I think that it extended into an actual inability to work a full day, five days a week. A year is a long time to be out of the workforce. Whilst the video film shows that the worker was not idle throughout this period it does not in my opinion show or demonstrate a capacity to work full time. I think that it is unrealistic to expect a man with a serious back injury who has been out of productive regular employment for this length of time and who was being treated for depression to be immediately capable of working a full day, five days a week. I have no doubt that the worker could have at that time worked much longer hours than Dr Holmes suggested in reflecting upon the position now. I am also quite sure that had he actually obtained a job as a clerk as at that date the worker could have worked part time and within a month or so thereafter could have worked full time. Be that as it may, the assertion that the worker could work full time as a base grade clerk as at 22 October 1999 has not, in my opinion, been made out.

107 A consideration of the question as to whether or not I can substitute some lesser amount based upon the worker's actual capacity as at the relevant date does not arise here because firstly, it was not argued and in any case, apart from the evidence of Dr Holmes which was focussed towards the position now, not then, and therefore was not particularly helpful, there was no evidence that satisfies me as to what hours the worker could have actually worked as a clerk as at 22 October 1999.

108 Accordingly, I find that none of the occupations identified by the Corporation were suitable.

109 Having reached this conclusion I need not consider whether the worker has discharged the onus of proving the matters prescribed by s 35(2)(c).

110 The Corporation's determinations must be set aside and I order accordingly.

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.

Rehabilitation and Compensation Act 1986

At a glance

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Judgment (141 paragraphs)

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Cases Cited (4)