Workcover Corporation/Vero Workers Compensation (SA) Ltd (Al Akhurst) v Kalb [2004] SAWCT 61

3 This appeal is confined to the trial judge's rulings in relation to the s 36 determinations.

4 The worker is a man aged about 35 years. After leaving school he obtained qualifications as a fitter and turner and as a boilermaker. He obtained employment on the production line at General Motors Holden where he worked for about five or so years. He then worked in a variety of jobs and ultimately obtained employment with AL Akhurst ("Akhurst") restoring motor vehicles. His duties there included grinding, welding, machining and painting.

5 On 13 May 1999 the worker sustained an injury to his lower back whilst he was attempting to lift and pull a large roll of carpet in connection with a vehicle restoration. He sought and obtained compensation pursuant to the Act and came to be in receipt of weekly payments of income maintenance. The Corporation thereupon set about attempting to rehabilitate the worker. Through a rehabilitation adviser it liaised with Akhurst and the worker and formulated a rehabilitation and return to work plan that provided that the worker would work with Akhurst on restricted duties. Initially this was for about two hours per day in the expectation that over time these hours would be increased. Thereafter, a series of rehabilitation and return to work plans were formulated in accordance with the worker's medical certifications.

6 By determination dated 14 May 2002 the Corporation determined to reduce the worker's weekly payments of income maintenance to $161.54 per week. It had previously conducted a review pursuant to s 38 of the Act. It determined, as a consequence of that review, that the worker was capable of earning $226.40 per week in suitable employment. It identified the suitable employment as part-time assembly work with Beneficial Plastics or some similar employment. It also asserted that the worker could earn a similar amount as a part-time control room operator.

7 The determination asserted that the worker was capable of working 20 hours per week. It asserted that the amount that the worker could earn as an assembler was identifiable by reference to the Metal Trades Award.

8 A year later on 8 May 2003, the Corporation made a determination that effectively confirmed the earlier determination but adjusted the amounts to reflect the outcome of a s 39 review. The fate of this determination was obviously contingent upon the fate of the earlier determination.

9 As at 14 May 2002, being the date of the first s 36 determination, the worker was working at Akhurst on alternate duties for four hours per day pursuant to a rehabilitation and return to work plan that commenced on 8 May 2002 and was scheduled to continue to 8 November 2002. Amongst other things the plan stipulated that the worker was obliged to continue with the duties at Akhurst as prescribed.

10 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."

11 At trial, the trial judge heard evidence from several lay witnesses including the worker, the proprietor of Akhurst, Mr Adrian Akhurst, the financial controller of Beneficial Plastics and from Mr Andrew Kitto, the managing director of Kitto Lighting.

12 The trial judge was shown some video film that purported to demonstrate inconsistencies with the worker's presentation as revealed in his evidence and in the evidence of others. He also had placed before him various medical reports and he heard oral evidence from a number of medical experts, including Dr Cullum, occupational physician, Dr Lashchuk, psychiatrist, and Ms Fiona Stevens, psychologist.

13 The trial judge resolved to set aside the Corporation's determination. He found against them on a number of grounds. He found that the duties at Beneficial Plastics did not comprise of recognised paid employment. As for the work at Kitto Lighting, he held that this was not suitable work. It is implicit that he found that the worker did not have a reasonable prospect of obtaining this employment. He expressly found that the work was not commonly available to a person in the worker's circumstances. He also found that the Corporation had not proved that the wages payable for the work identified in the determinations was $226.40 per week.

14 In reaching these conclusions the trial judge found that the video film did not discredit the worker. He seems to have concluded that at best, it demonstrated some abnormal illness behaviour.

15 In approaching the issue of suitability the trial judge said at pars 142 to 149:-

"Moreover, it has been said that the section is not directed towards work that the worker is actually expected to undertake. Its focus is directed towards identifying work commensurate with the worker's residual earning capacity as a basis for reducing the weekly payments that he or she is receiving (Scutcheon v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (O D & E Pty Ltd) [2001] SAWCT 115 at par 81. On the other hand, in that case, the practical effect of the deconditioning of the worker, due to his injury, was a decisive factor.

So it was that, in the last mentioned case, the learned Deputy President expressed the view that the dictum of Zelling AJ in Workers Rehabilitation and Compensation Corporation v James (No 2) (1992) 57 SASR 365 to the effect that: -

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

is not pertinent to the situation under s 35(2) of the Act.

Whilst, with respect, I agree that what fell from Zelling AJ is not entirely relevant to the proper application of s 35, I do not consider that it is entirely irrelevant.

To say that the focus of the section is directed towards identifying work commensurate with the worker's residual earning capacity is, to some extent, to beg the question. True it is that the statute is not directing its attention to work that the worker is actually expected to undertake. Nevertheless, it by no means sets out to exclude from consideration the subjective situation of the worker in the situation in which he finds himself, by reason of his disability. The worker must be viewed as a whole person, with all of his or her characteristics properly taken into account.

Given the four specific statutory criteria that must be taken into account in any event, the key issue clearly relates to the phrase `suitable employment', as applied to the worker bearing in mind the residual capacity of that person. As Zelling AJ pointed out, the concept critically involves an ascertainment of work that the worker can do. The four specific, non-exclusive statutory criteria do no more than assist in arriving at such an ascertainment and the worker must be taken as he is, in terms of physical, mental and emotional capacities and vulnerabilities. What is not relevant in making an assessment is any consideration of the impact of labour market aspects.

In these proceedings RSA proffered the evidence of two witnesses in order to establish the existence of what was said to be suitable generic employment reasonably available to the worker. It must be said that the evidence related to Beneficial Plastics, to which I will refer, emerged very late in the day and did not form any basis of the original, impugned determination.

Mr Andrew Kitto, the managing director of 'Kitto Lighting', spoke of light assembly work within the operations of his company, although no positions are currently vacant. The relevant tasks include connecting lampholders to flex cable, cleaning thread holes in the glass holders that become sealed during the lacquering process, packing and unpacking components, hand polishing buffed items and lacquer dipping.

All tasks can be undertaken sitting or standing as required. They are carried out at assembly benches and involve work above the waist up to the mid or upper trunk level, with some upper arm movement required. Any lifting involve ranges from 200 grams for components in packing and unpacking and connecting lamp holder to flex tasks, to up to 10 kilograms in hand polishing tasks. The employee is not required to repeatedly bend or twist and there is no lifting above the shoulder."

16 As to the duties themselves, he said at par 161:-

"As was said during the trial, those duties are mindless tasks quite unsuited to the condition and temperament of the applicant. The evidence overwhelmingly establishes that it is more probable than not that, given his personal characteristics and current psychological condition, the applicant would simply not be able to adapt to this form of employment. A number of the medical witnesses spoke of this type of consideration, as earlier recited, and Ms Stevens' evidence as to this type of problem was singularly apposite to the present situation."

17 The primary submission by Mr Martin, counsel for the Corporation, was that the trial judge misdirected himself in deciding that the employment relied upon by the Corporation was not suitable for the purposes of the relevant provisions. He said that an analysis of the trial judge's reasons reveals that he applied the law as apparently declared by Zelling AJ in Workers Rehabilitation and Compensation Corporation v James (1992) 57 SASR 365.

18 In James (ibid), Zelling AJ, plainly wished to distance himself from remarks made in Percic v BHP (1973) SASR 1, a decision of a Full Court of the Supreme Court of which he was a member. There at 4, Bray CJ said:-

"`Suitable' means suitable having regard to the physical condition of the man, the nature and character of his occupation before the injury, and the nature of the work available after the injury. ... questions of personal preference, geographical convenience or family circumstances were irrelevant.".

"On this, I think three observations should be made.

First, speaking as a member of the court which decided Percic's case (supra), the observations quoted above were not necessary for the decision of the case, which really turned on a point of jurisdiction. Secondly, neither Eyre (supra) nor Broughton (supra) are authority for strictly confining the concept of suitable employment in this way. ...

Although this narrow view of suitable employment has been used in other cases in Australia, I think it is a mistake to give almost statutory force to the philosophy of employer and workman which existed two to three generations ago, when a workman was largely an economic chattel whose personal circumstances could be disregarded, and who could be dealt with at the employer's whim.

Thirdly, I do not think that so restricted a view is in consonance with the philosophy of the 1986 Act. This Act is tailored to the rehabilitation of the individual workman, with his individual needs, deficiencies and personality.

Further, Parliament must be taken to know in 1986 that we are no longer in an age where the male is the sole breadwinner. In these days when both husband and wife work as a matter of routine, employment can hardly be `suitable' for the injured spouse, by forcing him to move elsewhere, if it reduces the family income to that of one earner, or otherwise disrupts the family pattern of earning, because all the family's ongoing commitments have been entered into on the basis of two continuing incomes. Injecting that sort of stress into the situation is hardly likely to help anyone's rehabilitation and that is what this Act is there to promote.".

20 Had the trial judge adopted the approach suggested by Zelling AJ, in applying the provisions under consideration here, with respect, he would have erred. The comments made by Zelling AJ were themselves obiter, made by a single judge that were not endorsed by the other members of the Court and, more importantly, were made in connection with legislative provisions that have been substantially amended.

21 The focus of the relevant provisions used to be directed towards employment that was or was shortly to be available. Now the relevant provisions can be invoked even though, because of the state of the labour market, the employment is not available.

22 This reflects a significant policy change. It means that a compensating authority can reduce or discontinue a partially incapacitated worker's weekly payments on account of the worker's residual earning capacity even where the worker is not and because of the state of the labour market, cannot reasonably be expected to exercise, that earning capacity and obtain employment.

23 Parliament plainly envisages that there will be circumstances where, as a result of the invocation of the provision, and as a consequence of the prevailing state of the labour market, that a partially incapacitated worker will after two years of incapacity be without income from the compensating authority and without income from paid employment.

24 Accordingly, in determining whether the specified employment was suitable, it would be wrong to continue to apply the approach suggested by Zelling AJ.

25 Indeed, usually a finding that work is within the physical and mental capabilities of the worker will go a long way to establishing that the work is suitable work for the purposes of s 35 (1).

26 Moreover the Tribunal will not be deflected from finding that such work is suitable just because the worker does not find the work stimulating or consistent with his or her career aspirations: Alexander v WorkCover/Commercial Union Pty Ltd (Adia Centacom Health Staff Pty Ltd) [1998] SAWCT 95.

27 The Tribunal will appreciate that a disabled worker might be reluctant to return to paid employment which is perceived to be inferior to the worker's pre-disability employment and it will therefore be "...particularly mindful of the need to differentiate between an actual incapacity to perform work as opposed to an unwillingness to do so.": Gomez-Soto v Unisure Pty Ltd [2004] SAWCT 42 at par 97.

28 The Tribunal will also appreciate that a disabled worker might be reluctant to recognise his or her capacity to adapt to employment identified as suitable because of the potentially adverse consequences of a s 38 review.

29 With these matters in mind the Tribunal will therefore be very cautious before making a finding that work, which is within the physical and mental capacity of a worker, is unsuitable because it is alleged that the worker might find the work demeaning and for that reason the worker is allegedly at risk of suffering from anxiety, depression or some other psychiatric condition if he or she undertakes such work.

30 That said, we do not think that the trial judge applied the provision in this way suggested by Zelling AJ. He was plainly aware of the changes to the legislation following James. With respect, as we read his decision, we think that the point that he was making, in stating that the remarks of Zelling AJ were not entirely irrelevant, was to demonstrate that despite the somewhat hypothetical aspect of a s 38 review, factors personal to the worker are not irrelevant. And, in making that point, he was undoubtedly correct. A survey of the relevant statutory provisions makes that clear. The Act required the trial judge to give fair and reasonable weight to the nature and extent of the worker's disability and to his ability to adapt to new employment.

31 Accordingly, we do not think that the primary criticism of the trial judge has been made out.

32 We do however, have some difficulties with some other aspects of the trial judge's reason and his approach to some other issues.

33 First, are the matters set out in par 161 of his reasons as set out above.

34 There was in this case evidence, which if accepted, could have led to a finding that the work at Kitto Lighting was suitable work. For example, at tr 83 the worker said:-

"Q. Yes. This job really is very similar, isn't it, to the sort of work you do at work.

A. It's probably a lot cleaner and a lot lighter. I do a lot of metalwork, everything's metal.

Q. So that in fact this job at Beneficial Plastics would suit you better, given your condition, than the work you're doing at the moment.

Q. The work at Kittos, likewise that would suit you a lot better than the work you're doing at the moment, wouldn't it.

35 Dr Lashchuk expressed the opinion that psychological factors were not an issue in relation to the worker's return to work. He said at tr 257:-

"Q. Yes. If I can correct my misunderstanding then, what can you say as a psychiatrist having read any of those statements about the suitability for Mr Kalb of any of those duties.

A. At the conclusion of my report on page 2 I state on the basis of my report to yourself dated 22 November 2002 I could find no psychiatric impediments to Mr Kalb's future opportunities in employment."

36 Whilst the trial judge was under no obligation to accept this evidence, the Corporation was entitled to assume that in light of it, it had gone some way to successfully defending the worker's challenge to its determinations and it might have, at the very least, expected there to be some reference to it in the trial judge's reasons.

37 As it was, there was no mention of it and the trial judge's reference at par 161 of his reasons to "a number of medical witnesses" giving evidence on this issue suggests that in fact that most of the medical evidence pointed in the opposite direction to Dr Lashchuk.

38 Our reading of the transcript and the medical reports suggests that that was not so. So far as we can tell there were only three medical experts who gave evidence that directly touched upon this issue, they being Dr Lashchuk, Dr Cullum and Ms Stevens.

"Q Are you qualified to assess his capacity to adapt to alternative employment.

A Well, in the sense of I'm an occupational physician and it's a specialist field in evaluating a chronic work injury, yes. I mean, if you're wanting to look at purely psychological factors, to give a pure psychological disorder, then that's the realm of a registered psychiatrist or a registered psychologist. But I mean, we see patients like this all the time, so I can say, well, my personal opinion for what it's worth is that he would have significant problems with adaption to a different work environment basically because he's not particularly educated; doesn't have a great deal of transferable skills; has the personality profile that he has, so I would suggest that his adaptability would be questioned, particularly after his injury."

40 This clearly supports the trial judge's finding. However Dr Cullum qualified this a little later. At tr 222 there was this exchange:-

Q But in any event, as I understand what you're putting here, doctor, he may well be able - if he were a robo - to do that work.

Q But you can't discount the personal factors involved in this in terms of his adaptability and the impact of a change to that environment.

A Well, we have no idea of his psychological profile. It hasn't been tested." (emphasis added ours)

41 As for Ms Stevens, she said in her evidence at tr 284:-

"Q What are the factors that are at play in determining whether he could adapt to the employment or at least the work - query - employment which Mr Kitto describes.

A. It's really quite startling when I give people a vocational preference inventory and it actually matches up with their current employment. Often people are not particularly happy in their jobs, and one of the features of Mr Kalb is how much he loves the work he has had with Ackroyd Motors; that he actually sees that as the best job for him, and I think that's of great significance in terms of transiting to alternate work. I think the psychosocial factors involved with moving from one job location - I think we have many, many examples in the WorkCover system of people who haven't had a good relationship with their pre-injury employer and you wonder whether the reason the return to work failed was to do with psychological factors rather than to do with the job itself. Obviously, I'm a psychologist. I work in the industrial environment all the time and I think those psychosocial factors have an enormous part to play in people's adjustment to new work locations or new duties, and he has struggled even to go onto bench work, let alone to move to another employer. Assembler or control room operator might have been very suitable for him at one stage but certainly I think that having to actually move to transfer to transit may put him back in a psychological sense and he may not be as compliant...."

42 Whist the trial judge was clearly entitled to rely upon the evidence of Ms Stevens to find that the work identified was unsuitable, his statement in par 161 that: "The evidence overwhelmingly establishes that it was more probable than not that, given his personal characteristics and current psychological condition, the applicant would simply not be able to adapt to this form of employment" (emphasis added ours) might be thought to give the impression that the trial judge thought that there was more evidence that supported this finding than there was, and that he did not appreciate that there was evidence that seemingly supported the contrary conclusion.

43 In Lavers v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (RW Miller & Co (SA) Pty Ltd) [2004] SAWCT 44 at pars 34 to 36 Jennings PJ said:-

"The Act accords factual findings made by Presidential Member upon a judicial determination a status that is not enjoyed in most other jurisdictions. Findings are not subject to an appeal by way of a rehearing. As the cases that I have previously cited demonstrate, such factual findings can only be reviewed in very limited circumstances.

Far from relieving the fact finder of the need to properly explain why particular facts are found, in my view, this status provides all the more reason to plainly demonstrate that all relevant evidence has been considered and on important issues upon which the evidence is divided, to explain why some evidence is accepted or rejected.

If this is not done, there is a real risk that justice will not be seen to be done, see for example WorkCover Corporation/Royal & Sun Alliance Workers Compensation (SA) Ltd/Adelaide Casino Pty Ltd v Hunter [2003] SAWCT 63."

44 Although these remarks are contained in a minority judgment they accord with the views expressed by the other members of the Full Bench in that case and we respectfully adopt them.

45 As was pointed out in WorkCover/Royal and Sun Alliance (Adelaide Casino Ltd) v Hunter [2003] SAWCT 63 at par 66:-

"What is at issue here is not whether the result reached was right or wrong or whether the learned Deputy President did in fact misapprehend the evidence. The issue is whether in light of what the learned Deputy President said and wrote the hypothetical reasonable observer who reflects the parties' and the public's need for justice to be `manifestly and undoubtedly be seen to be done': R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ would consider whether in all the circumstances this has not occurred.".

46 Whilst elsewhere in his reasons the trial judge analysed differences between the evidence of Dr Lashchuk and Ms Stevens and expressed a preference for Ms Stevens' evidence, it is notable that this was in connection with the issue of diagnosis, not capacity for work. We do not think that the fictitious bystander that was discussed in Hunter (ibid) at par 59 would conclude that without any further explanation the trial judge's preference for Ms Stevens' evidence on this issue meant that he preferred her evidence on all issues where it conflicted with other evidence.

47 In our respectful view the fictitious bystander, having:-

* noted expressions used there such as "overwhelmingly establishes" and "A number of medical witnesses";

* noted the absence of any discussion there or elsewhere in the trial judge's reasons concerning the evidence that we have referred to in pars 33 and 34 herein; and

* noted the absence of an explanation as to why Ms Stevens' evidence on this topic was preferred to any seemingly contrary evidence

would conclude that in respect of this crucial finding, justice had not been seen to be done.

48 The deficiency in the trial judge's reasons in respect of this, not only vitiates his finding that the work identified by the Corporation was not suitable work, but it also vitiates the finding that he implicitly made, that the worker did not have a reasonable prospect of obtaining this work. That must be so because this conclusion had to be based in part on Ms Stevens' evidence that as a result of potential psychological problems the worker would not present positively to any prospective employer. For the reasons set out above the trial judge's acceptance of that evidence and the rejection of seemingly contrary evidence was not adequately explained.

49 Another concern that we have with the judgment under appeal relates to the trial judge's finding, that in any event, the suitable work was not commonly available to a person in the worker's circumstances.

50 With respect, we have two difficulties with this conclusion. First, although it is not expressly stated, we proceed from the assumption that the trial judge's preference for Ms Stevens' evidence regarding psychological factors that might impact upon the worker's capacity to adapt to employment at Kitto Lighting was relied upon in reaching this conclusion. For the reasons just explained, the deficiencies in the trial judge's reasons vitiate this finding.

51 Secondly is the fact that in reaching this conclusion the trial judge relied upon his own knowledge and he did not inform the parties that he intended to do. This was not simply a case of the trial judge saying; "I am permitted to know that these jobs exist" or "I am permitted to know that these are typically the range of duties involved in these types of jobs". A member of the Tribunal will routinely hear evidence about particular jobs and the duties involved in those jobs and these matters will usually be non-controversial. It would be a waste of time and money for the Tribunal to insist that on issues like these, evidence needs to be called and if the matters are non-controversial there cannot be a complaint that there was a denial of natural justice because the parties were not informed beforehand.

52 What was involved here was something quite different. To say that particular employment does not commonly exist one would need to have some knowledge of how many jobs of this type are available. That will rarely be notorious. It will usually involve some sort of survey identifying how much of this employment does exist and an expression of an opinion as to the relative availability of that work. Somebody expressing such an opinion could be legitimately questioned about the extent of the survey that he or she undertook and the basis upon which the opinion is expressed. It is the sort of matter that would usually require evidence and if the Tribunal proposes to rely upon its own knowledge, unless it is notorious, it should inform the parties of its intention to rely upon its own knowledge and give the parties the opportunity to comment. That did not occur here.

53 We do not think that it is a notorious fact that light assembly work of the type undertaken at Kitto Lighting is generally not available and the trial judge did not say so either. Accordingly, assuming, without deciding, that it was permissible in this case for the trial judge to rely upon his own knowledge, the trial judge was in our view obliged to give the parties the opportunity to comment and, with respect, his failure to do so was an error.

54 It is not clear whether the trial judge would have set aside the Corporation's determination simply because it failed to adduce evidence of the wages payable for the work identified in the s 38 review. Hence, the following remarks should not be understood as criticising the trial judge.

55 In the context of an Act which promotes frank disclosure, has at its centrepiece compulsory conciliation, has a stated object an aim to reduce adversarial contests to the greatest possible extent and which enjoins those exercising its jurisdiction to act according to equity, good conscience and the substantial merits of the case without regard to technicalities, it will only be in an exceptional case that the outcome of a hearing will be decided on a technicality rather than on the merits.

56 Although the issue of proof of the quantum of wages was raised in the statement of issues it was not specifically addressed until closing submissions and even then, it was alluded to fairly obliquely. If it had come to it, with respect, if the trial judge was of the opinion that his reading of any relevant awards did not cure any deficiencies in the evidence, he would have been obliged to give the Corporation a final chance to address that.

57 We now turn to consider matters raised by the worker's notice of cross contention.

58 It will be recalled, that at the time of the first relevant determination, the worker was subject to obligations imposed upon him by a rehabilitation and return to work plan.

59 That of itself is not significant. It is appropriate for a compensating authority to construct a rehabilitation and return to work plan to identify a worker's residual earning capacity in anticipation of a later s 38 review. It is also appropriate for it to construct a plan to enhance a worker's earning capacity by implementing measures to overcome the deconditioning that follows a sustained absence from work that was spoken of in Scutcheon v WorkCover/Allianz Australia Workers Compensation (SA) Ltd (OD & E Pty Ltd) [2001] SAWCT 115 or to rely upon a worker's successful participation in paid employment that forms part of a plan as evidence of the worker's residual earning capacity in defence of a challenge to a s 38 review: Kostiw v WorkCover/Royal & Sun Alliance Workers Compensation (SA) Ltd (R and D Quarisa Pty Ltd - QC Bricklaying) [2003] SAWCT 101.

60 What are significant matters in this case are first, the fact that the Corporation did not assert that the work that the worker was performing pursuant to the rehabilitation and return to work plan was suitable employment and secondly that the worker was not paid for that work.

61 Although Parliament has, through the amendments to s 35, relieved a compensating authority from an obligation to find suitable employment and has directed that an artificial test be applied in determining whether a worker has a reasonable prospect of obtaining such employment, we do not think that Parliament intended the exercise to be entirely hypothetical.

62 We think that Parliament envisaged that faced with an impending reduction or cessation of weekly payments following a s 38 review after two years of incapacity, a partially incapacitated worker will endeavour to utilise his or her residual earning capacity that necessarily underpinned the review. The significance of the amendments to s 35 is that if that endeavour proves fruitless because of the state of the labour market, that fact does not necessarily render the worker immune from the application of the relevant provisions.

63 The fact that the Corporation here has not relied upon the worker's work at Akhurst, leads to the irresistible inference that that work was not a viable form of employment that the worker could pursue and this is borne out by the evidence of Mr Akhurst. Mr Akhurst made it clear that he resolved with the Corporation that he would not pay the worker for the work he performed and it is reasonably clear that the reason why, was because he did not regard the worker as a sufficiently productive member of his workforce to warrant the payment of wages.

64 A rehabilitation program or a rehabilitation and return to work plan that requires a worker to commit time to undertake activities that do not comprise of paid employment can impact upon an assertion that a partially incapacitated worker has a reasonable prospect of obtaining suitable employment in a number of ways.

65 The activities might be so onerous as to render the worker physically or mentally incapable of undertaking the work identified as suitable. The time commitment involved might be so great as to lead to a conclusion that the worker has no reasonable prospect of obtaining the work or that the work is not commonly available for a person in the worker's circumstances.

66 In this case the worker was bound by the terms of a rehabilitation and return to work plan to attend at Akhurst for four hours per day five days per week performing activities that were probably more onerous than those involved in the employment identified as suitable. There was no evidence placed before the trial judge that suggested that the worker was physically and mentally capable of attending at Akhurst for four hours per day five days per week performing the activities required of him there pursuant to the plan as well as undertaking 20 hours work per week in the employment identified by the Corporation as being suitable.

67 In our view there had to be a finding in this case that for this reason alone the work relied upon by the Corporation was not suitable work.

68 Accordingly, albeit for different reasons, we think that the trial judge was right to set aside the Corporation's determination. The appeal will therefore be dismissed.