Workers Compensation - Assessment and amount of compensation - Weekly payments - Generally- Tasmania - Meaning of "the period of 12 months ending at the commencement of the period of incapacity" for the purpose of calculating average weekly earnings - Respondent employed for that period - Meaning of "average weekly earnings" in ss69 and 70 in that circumstance.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss69 and 86.

Brambles Holdings Ltd v Pincott A30/1994, considered.

Judgment Number: [2007] TASSC 88

1 The appellant was employed by the second respondent in May 2006. His duties included driving a bus for the benefit of users of the programs operated by the employer. On 9 May he was injured during the course of his employment and was certified as being totally incapacitated for work between 10 May 2006 and 2 June 2006. His average weekly earnings for the twelve months preceding 9 May were $421.12. The assessment as and from 2 June was that the nature of the injury affected the capacity and safety of the appellant to drive a bus, although he could undertake other duties which apparently extended to the driving of a motor car. Certificates accepted by the employer stated that the appellant was partially incapacitated for work from 2 June to 28 November 2006, and wholly incapacitated for work from 28 November 2006 to 21 December 2006.

2 During the period 24 June 2006 to 21 December 2006, the appellant obtained employment with the Department of Health and Human Services, receiving, on average, the sum of $800.64 per fortnight during the 25 week period. On 6 December 2006, the employer terminated payments to the appellant for incapacity.

3 The employment with the Department primarily consisted of driving children who were in the care of the Department for contact visits. The distinction between capacity to drive a motor car, as distinct from a bus, was not made known to the Commissioner who heard the appellant's application.

4 The respondent terminated weekly payments then being paid to the appellant on 6 December 2006, and as and from 21 December, the Department ceased to employ the appellant because of his inability to drive a motor car for the purpose of contact visits.

5 The appellant's partial incapacity to work from 21 December 2006 to 24 April 2007 was supported by certificates, in a form approved by the Board, signed by medical practitioners.

6 On 18 January 2007, the appellant referred "the claim for compensation" to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") in accordance with the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s42. The party to the referral was the second respondent. However the matter referred was for determination of the following:

"1 On or about the 9th of May 2006 the worker suffered an injury by an accident arising out of and in the course of his employment with the Bridgewater Police & Community Youth Club, when he was hit in the left ear by a football.

2 At the same time he was also working with the Department of Health and Human Services.

3 As a result of the said injury by accident the worker suffered some dizziness.

4 The dizziness now prevents him from driving a motor vehicle by which has meant that he is no longer able to work for the Department of Health and Human Services.

5 He last worked for that Department on the 6th of December 2006.

6 His average weekly earnings from the Department of Health and Human Services were $400.32 per week.

7 The worker claims the sum of $400.32 per week from the 6th of December 2006."

7 No question put before the Tribunal related to the termination of weekly payments by the respondent on 6 December 2006. The appellant claimed entitlement to the sum of $400.32 per week as and from 6 December 2006, ie, the amount which he would have been paid by the Department. However, on the calculations provided to the Tribunal, 85 per cent of that sum amounted to $340.27.

8 The Commissioner understood that any determination which he made would "only apply to weekly payments after the 21st December 2006".

9 The Act, ss69(2) and 86(1)(b), provides for circumstances where additional income received during a period of incapacity is taken into account by reducing the amount of the weekly payments or entitlement. The argument advanced on behalf of the appellant was that:

"... he had one period of partial incapacity that commenced on 2 June 2006 when he couldn't drive a bus. That ended on 21 December 2006 when he couldn't drive a car or bus and the new period commenced on 21 December 2006 and is ongoing. To calculate normal weekly earnings one looks at his average weekly earnings for the 12 months preceding the 21st December 2006."

10 Counsel for the appellant relied on, as authority for the contention, decisions of this Court in Brambles Holdings Ltd v Pincott 30/1994 and of the High Court in Arnotts Snack Products Pty Ltd v Yacob (1983 - [1985] HCA 2; 1984) 155 CLR 171. The Tribunal concluded:

"... that where there is a change in the level of incapacity from partial to total during a continuous period of incapacity, the quantum of weekly payments is adjusted by reference to the maximum entitlement calculated pursuant to s69(1), as at the commencement of that continuous period of incapacity."

11 It determined that incapacity can fluctuate between total and partial. Where there is no break in the incapacity itself, it remains as "one discrete period". The Commissioner outlined his reasoning at par10, stating:

"It is not unusual to have cases where a worker's incapacity fluctuates from total to partial and the legislation provides for weekly payments to be adjusted accordingly. However, the reference point is always the initial calculation of quantum that applies throughout that continuous period of incapacity. If, for example, a person has been partially incapacitated for an extended period of time working, say, 15 hours per week and receiving 'make up' weekly payments and then became totally incapacitated, a fresh calculation of entitlement would cause considerable prejudice to that person. Such calculation pursuant to s69(1) would be done by reference to the 15 hours paid work per week and not the person's earnings or ordinary time rate of pay for his hours worked immediately preceding the start of the overall period of incapacity. That cannot be the intention of the Act. I therefore do not accept the submissions made on behalf of the worker that changes in the extent of incapacity throughout a continuous period of incapacity require a fresh calculation pursuant to s69(1), but rather those circumstances are intended to be dealt with by an adjustment to the quantum of weekly payments paid up to the maximum of the initial entitlement calculated for total incapacity (as adjusted; s69(3), s69B)."

12 The Tribunal did not dismiss a claim for entitlement, but of a claim for a particular amount based on a specific form of calculation.

13 The Tribunal was correct in its determination. The appellant had been able to obtain further employment, despite ongoing incapacity. That incapacity was either total on 21 December or its ongoing nature prevented him from continuing with alternate employment. He was no longer able to continue work. The reduction of the amount of his entitlement for compensation was not affected by his medical condition, but by the fact that he no longer received work-related payment from another source.

14 The notice of appeal claims error on the grounds that:

"1 The learned Commissioner erred in law by failing to hold that the Worker's incapacity to work within the meaning of the Workers Rehabilitation and Compensation Act 1988 and ceased when the employer terminated his weekly payment pursuant to Section 86(1)(b) of the Act on the grounds that the Worker was then earning more than he had been at the date of the injury.

2 That the learned Commissioner erred in law by failing to take into account the effect of the termination of the Worker's weekly payments by the employer pursuant to Section 86(1)(b) of the Workers Rehabilitation and Compensation Act 1988.

3 The learned Commissioner erred in law in failing to hold that the Worker's period of incapacity ceased on the 6th December 2006 and that a fresh period of incapacity arose on the 21st December 2006 when the Worker became wholly incapacity [sic] from working for the Department of Health and Human Services.

4 The Commissioner erred in law in failing to hold the Worker's payments for incapacity should be calculated for the period of 12 months preceding 21st December 2006.

5 No Commissioner properly instructed in the law could have reached the conclusion the Commissioner reached upon the agreed facts presented to him."

15 The combined effect of the provisions of the Act, ss69 and 86, is that reduction in payment by the original employer is reduced because of income actually received from another source, not on alterations of capacity evidence by the receipt of that income. The fact that he had been, fortunately, able to earn a higher income through the alternate employment until prevented from continuing with that employment because of the incapacity, does not entitle him, as a matter of fairness, to receive compensation calculated on that higher rate. The construction of specific provisions such as s69 of this beneficial legislation is not to be determined by a retrospective sense of fairness dependent on outcome or what is "fair" to either the employer or employee (Scott v Sun Alliance Australia Ltd [1993] HCA 46; (1993) 178 CLR 1).

16 Here the Tribunal did not determine that the appellant's incapacity ceased as of the date of the termination of weekly payments. That was not the "matter" referred to the Tribunal. The Act, s86(1)(b), governs weekly payments, not incapacity. The appellant sought a determination based on an assessment of a higher entitlement, not entitlement itself. The Tribunal did not determine validity of termination. The difference between the dates 6 and 21 December was not an issue raised by either party and was specifically dealt with by the Commissioner in his reasons at par4. This was not a case based on a "reduced ability" to obtain work for wages as an argument for altering or diminishing an assessment of degree of incapacity for work (Arnotts Snack Products v Yacob (supra)), or whether the capacity of the appellant to work "driving a car" for a limited period brought to an end the obligation of the second respondent to compensate the worker. Medical expenses incurred by the appellant during the period of work as a consequence of the event on 10 May would have remained the responsibility of the employer.

17 This was not a case of "several discrete periods of incapacity for work" (Brambles v Pincott (supra)). The evidence before the Tribunal was:

(3) total incapacity 28 November to 21 December 2006;

(4) partial incapacity 21 December to 24 April 2007.

18 The fluctuating degree of capacity did not constitute discrete periods. The commencing date for the assessment of the period of twelve months upon which average weekly earnings can be calculated was 10 May 2006.

19 The grounds of appeal, either singly or taken together, have not been made out. The appeal is dismissed.