Workcover/Royal and Sun Alliance Workers Compensation (Hawkins Roofing Pty Ltd) v Greda [2003] SAWCT 38

3 On 9 May 2000 the worker received a notice of an impending review of his weekly payments under s 38(3) of the Act and this followed with his receipt of a formal determination pursuant to s 36 of the Act reducing his income maintenance to $2.42 per week on account of his asserted capacity "for employment on a full-time basis as a sales assistant, which you have a reasonable prospect of obtaining in fact or deemed pursuant to section 35(2)(c)..."

4 The worker disputed this determination and this culminated in a conciliation conference, which failed to resolve the issues in dispute between the parties, an arbitration hearing in which the worker gave oral evidence and ultimately, a judicial determination before the learned Deputy President.

5 In a statement of agreed issues the parties identified that the issues that the learned Deputy President had to determine were:

"1. Whether employment as a Retail Sales Assistant is suitable employment for the worker for the purposes of section 35(2) of the Act which the worker has reasonable prospect of obtaining.

2. If yes to issue 1, whether the worker's entitlement to weekly payments of income maintenance from 13 June 2000 be calculated on the basis of weekly earnings which the worker could earn as a Retail Sales Assistant."

6 In the course of the hearing before the learned Deputy President the transcript of the evidence taken before the Arbitration Officer was tendered and the worker gave some brief evidence. The learned Deputy President also heard oral evidence from a psychiatrist, Dr Marty Ewer.

7 The evidence that was presented to the learned Deputy President revealed that the worker at the time of the trial was a man aged 33 years who had left school during year 11 and had obtained employment at Coles New World Supermarket initially as a casual boy and ultimately progressing to a grade 3 sub manager. That work included the supervision of sales assistants, compiling of duty rosters, ordering stock, setting up promotional displays, customer service, money handling and store security.

8 It is quite plain that at all relevant times the Corporation focussed upon the worker's previous experience at Coles New World Supermarket as underpinning its determination to identify the duties of sales assistant as comprising of suitable duties for purposes of s 38 of the Act.

9 For example, its notice of impending review of 9 May 2000 included the following:

"On the available evidence, a possible outcome of the review is finding that you are fit and suited for full-time employment as a Sales Assistant (Personal and Household Goods) from which you could earn $470.00 per week for 8 hours per day, 5 days per week on the following basis:

You have demonstrated the capacity for work as a Sales Assistant whilst working as a casual store assistant and sub-manager with Coles New World Supermarkets from 1984 to 1989."

10 In cross examining the worker about his residual capacity for work, the Corporation's then counsel explored the work that the worker had previously undertaken when working at Coles.

11 It was strongly suggested by the Corporation's then counsel that subject to the worker working within the weight lifting restrictions that have been suggested by his medical advisers in light of his prior experience at Coles New World Supermarket he would be able to perform the work of a sales assistant in that sort of institution.

12 The worker disagreed with this proposition and asserted that in practice it would be difficult to avoid repetitive lifting of weights that would be incompatible with his medical condition.

13 At the arbitration hearing the Corporation relied upon a statement from a Mr Michael McDonald, a representative from the Retail Traders Association. That statement was specifically directed to duties and activities of sales assistants in supermarkets.

14 In the hearing before the learned Deputy President the Corporation also tendered a statement from Ms Kerry Tapley who was the then recruitment coordinator at the Australia Retailers Association. Her statement focussed upon the sort of duties that are conducted by sales assistants at Coles and Bilo Supermarkets. Her evidence was in virtually identical terms to the statement of Mr McDonald that had been tendered before the Arbitration Officer.

15 The learned Deputy President said that he accepted the worker's evidence that, as a result of the compensable injury, he suffered from: "chronic back pain with some left side sciatica variable pain levels, sleep disturbance, sitting tolerance of one hour, standing tolerance of one hour, continuing walking intolerance, general stiffness and a belief the condition is getting slowly worse." (par 14). It is also clear that the learned Deputy President accepted that the worker was suffering from stress and depression.

16 At this point it is necessary to observe that during the course of the hearing before the Arbitration Officer, the worker behaved quite inappropriately. He insulted the Arbitration Officer and counsel then representing the Corporation and frequently behaved quite obnoxiously. It is sufficient to refer to a short passage of his evidence and response to an entirely reasonable question that the Arbitration Officer had put to him to clear up some genuine uncertainty. In response to this the worker said (AB 129):

"I'm not going to fucking answer any more shit, mate. This is bullshit. Youse are all profiting out of my misfortune, right. How corrupt is this system?"

17 There was psychiatric evidence that indicated that the worker had a narcissistic personality. There was also evidence that he had abused drugs and that this had further compromised his mental capacity. The learned Deputy President dealt with this at par 24 of his reasons where he said:

"As ought to be apparent from an overview of the evidence there is not a match allowing a conclusion that sales assistant work is presently suitable employment in this worker's case. That of course is also the view of the worker (tr 23). It is a conclusion leaving out of account those aspects of the worker's presentation that cannot be attributed to the compensable disability such as the narcissistic personality disorder and the effects of the drug abuse. I recognise that Dr Thoo concluded the worker's main problem was mental (Supplementary BOD 021). I am not convinced that is so, However I do conclude both aspects (the physical disability and the secondary psychological overlay) are operating to such an effect as to make the targeted work unsuitable."

18 Mr Hackett-Jones QC, for the Corporation, contended on appeal that it was apparent that the learned Deputy President had posed for himself the wrong question. He submitted that the question that the learned Deputy President should have addressed was: "is it likely that a job for a sales assistant exists within the retail industry that is compatible with Mr Greda's physical limitations". Mr Hackett-Jones contended that on the evidence presented before the learned Deputy President the only reasonable answer that could have been given in response to that question was yes, such that the appeal be allowed, the decision of the learned Deputy President set aside, and in lieu thereof a determination be made that the Corporation's determination to reduce the worker's weekly payments be upheld.

19 In developing this submission Mr Hackett-Jones suggested that the learned Deputy President was obliged to adopt the sort of approach adopted by the Tribunal in Arnold v WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd (R & CJ Komazec) [2002] SAWCT 96 where the trial Deputy President said:

"As a member of a specialist Tribunal I think I am entitled to know that there are many kinds of factory hand work involving different levels of physical activity and different postures, which are performed in a variety of environments and which would involve only brief travelling time to and from work. (J & H Timbers Pty Ltd v Nelson [1972] HCA 12; (1971-1972) 126 CLR 625) Indoor factory hand work involving rotational activities in a seated and standing posture performed in a cool environment is suitable to the worker, bearing in mind his skin condition and his earlier back injury."

20 It was submitted that the learned Deputy President had approached the matter from the premise that the Corporation was obliged to identify a specific job that a worker was physically and mentally capable of performing. It was suggested that the learned Deputy President should have relied upon the evidence placed before him demonstrating the elasticity in the allocation of duties amongst sales assistants or alternatively, as the Tribunal had done in Arnold, he should have relied upon his own knowledge that such positions exist.

21 These submissions seem to assume that there is a bright line rule that identifies what is required and what is allowable in every case concerning a s 38 review.

22 In our view no such rule emerges from the decided cases nor is it possible to formulate such a rule.

23 The relevant authorities concerning s 38 reviews show that parties involved in these cases have to confront a number of difficult issues. These include issues such as the degree of specificity required in describing "suitable employment" in the documents that underpin a s 38 review or a statement of issues that might be formulated in connection with a hearing concerning such a review. They also include issues relating to matters of evidence. For example, what evidence is required to establish suitable employment? What degree of latitude, in terms of evidence, is permissible having regard to the description of suitable duties in the relevant documents? To what extent is the trial Deputy President entitled to or obliged to use his or her knowledge as a member of a specialist Tribunal of the range of duties involved in and availability of particular employment?

24 In Violi v WorkCover / NZI Workers Compensation (South Australia) Ltd (Wagon Wheels Fruit Market) [1999] SAWCT 138 the Tribunal rejected a submission that it was impermissible for a compensating authority to make a determination that referred to the jobs of telemarketer/telephone canvasser and car park attendant that was ultimately based solely on the worker's asserted ability to work as a sales assistant. The Tribunal said:

"In my respectful view however the prime thrust of the submission on this aspect namely that in effect the determination should be strictly construed as if it were a pleading is misfounded. Clearly such documents are not pleadings and are commonly drawn by persons who are not lawyers. In those circumstances in my view strict construction of such determinations is neither warranted or appropriate.

In this case the notice of dispute makes clear that the worker was not confused as to what was being asserted against him. Indeed he took direct issue, inter alia, without further comment with the assertion in the determination that employment as either a telemarketer/telephone canvasser, sales assistant or car park attendant was suitable employment for him (see para. 3 of the notice of dispute, supra). Moreover, in my view if the worker was confused about what was being asserted in the notice he could have always sought particulars of the jobs said to be suitable employment by the agent."

25 However the pragmatism suggested by this approach was not taken by other members of the Tribunal as understating what was thought by them to be an imperative, and that is, that the worker fairly be put on notice of what the compensating authority's position was with respect to what is suitable employment.

26 Thus, in Mayne Nickless and WorkCover/ NRMA (Chubb Security Australia Pty Ltd (No 2)) [2001] SAWCT 90 the Tribunal was critical of the compensating authority changing its position by refining its description of suitable employment during the course of the hearing.

27 Similarly, in Scutcheon v WorkCover/Allianz Australia (SA) Ltd (O D & E Pty Ltd) [2001] SAWCT 115 at par 99 the Tribunal rejected an attempt by the compensating authority to refine its description of the duties involved in work of a sales assistant by introducing evidence of duties undertaken at a particular store. It noted that the relevant determination "simply identifies `sales assistant'" and that "evidence about these particular duties was not introduced until the last day of the hearing". It held that "that was far too late in the day to do so".

28 In Arnold v WorkCover Corporation/Royal and Sun Alliance Workers Compensation (SA) Ltd (R and CJ Komazec) [2003] SAWCT 34 the Full Bench rejected a submission that the trial Deputy President had erred in identifying suitable employment that did not strictly comply with the precise terms of the Statement of Issues and it further rejected a submission that she erred in relying upon her own knowledge as a member of a specialist Tribunal that jobs of a type that the worker had previously performed were still available.

29 Despite what might appear otherwise there is no inconsistency in the approach taken in these cases. It is trite to say it, but each case turned on its own facts. As to the formulation of a bright line rule that fact and a consideration of the relevant provisions makes it clear that this cannot be achieved.

30 The purposes of identifying "suitable employment" in the documents underpinning a s 38 review are plain enough. First, the description must enable the worker to make appropriate written representations in response to a proposed review that is contemplated by s 38(3)(b) of the Act. Secondly, it must enable the worker to make an informed decision as to whether or not to seek a review of a decision to reduce his or her weekly payments following the review.

31 In connection with any subsequent hearing, the description contained in such documents together with any further particulars provided and any statement of issues are clearly intended to enable the worker to properly present his or her case if it is decided to challenge the reduction and to enable the Tribunal to fairly adjudicate the issues in dispute between the parties.

32 But as was noted by the Tribunal in Adams v WorkCover (1997) 1 WCTR 1 at 12 in a passage apparently approved of by Cox J in Warren v WorkCover (1998) 72 SASR 7 at 15, the degree of specificity required to achieve these objectives might vary from case to case. This is so because of the myriad of factors that the Tribunal is obliged to take into account in determining what, for a particular worker, is suitable employment, these being, a consideration of the nature and in extent of the worker's disability, his or her age, level of education and skills and experience in employment and ability to adapt to new employment. (See: 35(2)(a)).

33 In a matter concerning a young and intelligent, well-qualified worker with extensive administrative experience who has sustained an injury, which only precludes sustained heavy lifting the mere description of suitable duties as "clerical work" might be sufficiently specific to achieve all of the objectives that the description is intended to achieve. Whereas in a matter concerning an older uneducated worker of below average intelligence, with limited administrative experience, no demonstrated capacity to adapt to new employment and who has restrictions on his or her capacity to lift, bend, stand or sit for extensive periods, it might be necessary for there to be a job description of great particularity to achieve that which is required.

34 Moreover, it has to be accepted that these descriptions and the documents containing them are not to be treated as pleadings nor are they to be regarded as fixing in concrete that which is to be determined. With respect, we agree with all that was said on this in Viola (supra). In the end, what is important is that the process of review be conducted fairly and that the relevant parties are afforded natural justice in their dealings and in the conduct of their litigation before the Tribunal. That will be judged not just by reference to the relevant documentation. A consideration of the conduct of the parties prior to and in the course of the hearing is also required. That clearly was the reasoning underpinning the approach taken at trial in Arnold, which was upheld on appeal.

35 Whilst it has to be acknowledged that in the determination suitable employment was identified as "employment on a full time basis as a Sales Assistant" and in the Statement of Issues it was described as "employment as a Retail Sales Assistant" it does not necessarily follow that a wider enquiry of the type suggested by Mr Hackett-Jones was required or indeed was allowable.

36 We agree with the submissions made by Mr McRae, counsel for the worker, that these criticisms of the learned Deputy President, in the context in which this case was run before him, are unfair.

37 In this case, the way in which the trial was conducted before the Arbitration Officer and the learned Deputy President was focussed upon work as a retail sales assistant in a supermarket, such as a Coles New World Supermarket of the type previously worked in by the worker.

38 The Corporation could have, in its letter inviting representations, identified a range of sales assistant's jobs. It subsequently could have issued a determination identifying a range of sales assistant's jobs. Had it done so, it could have placed evidence and made submissions to the Arbitration Officer and to the learned Deputy President that one or more of these types of sales assistant's positions comprised of suitable employment. It did none of this.

39 On the basis of the material placed before the learned Deputy President and in light of the manner in which the case was conducted before him, and below, the learned Deputy President was entitled to form the view that the physical job demands of the employment asserted to be suitable were as set out in a letter from IQ Consultants dated 17 March 2000 as stated by him at par 6 of his reasons, namely:

* "Reaching within the full body range for shelves on an occasional basis.

* Lifting/handling weights regularly around 10kgs depending on the industry ie. at times up to 20kgs or over.

* Push/pulling trolleys with forces around 10kgs such as pallet lifters etc.

* Transferring/breaking pallets with turning/twisting and bending postures on a repetitious basis.

* Checkout operations which involve standing for prolonged periods.

* Packing/wrapping with occasional over-reaching postures.

* Placing items in the car boot for customers thus requiring stooping, over-reaching."

40 In light of these and the findings that he made regarding the nature and extent of the worker's disability the learned Deputy President was entitled to find that the asserted suitable employment was not suitable.

41 To assert on appeal that a different set of criteria should have been applied, ignores the relevant circumstances of this case, the Corporation's conduct in the preceding hearings and wrongly assumes that this appeal presents the appellant with the opportunity for a re-hearing of the dispute in the hope of obtaining more favourable findings. The Corporation's primary contention therefore fails.

42 In the alternative, Mr Hackett-Jones submitted that the learned Deputy President's reasons were inadequate. He submitted that the learned Deputy President did not adequately explain why it was that he accepted the worker's own assessment of his unfitness and suitability of his work as a sales assistant. He submitted that the learned Deputy President did not explain why he regarded the worker's behaviour before the Arbitration Officer as evidence of emotional fragility as opposed to conduct intended to be provocative and tendentious. It was submitted that the learned Deputy President failed to evaluate the expert evidence properly. It was submitted that the weight of the expert evidence suggested that the worker was in fact fit for the duties identified. Although it was conceded that it was open for a Court to prefer non-expert evidence to expert evidence it was submitted that this was an unusual course which required some detailed justification.

43 It is plain that the reason underpinning the learned Deputy President's acceptance of the worker's own assessment of his unfitness and the unsuitability of his work as a sales assistant and his ultimate conclusion to uphold the worker's challenge to the Corporation's determination was his acceptance of the worker as a witness of truth. That was a conclusion that on the evidence the learned Deputy President was entitled to reach.

44 Mr Hackett-Jones' submissions about the adequacy of reasons seem to assume that the worker's extreme behaviour before the Arbitration Officer was highly likely to have been the product of a deliberate attempt by the worker to falsely demonstrate his unsuitability to work as a retail sales assistant such that a contrary conclusion required a detailed explanation.

45 Whilst that might have been an appropriate submission to have been made to the trial Deputy President, and we note that it was not, it is not one that we can entertain on appeal. As we said earlier, this is not a re-hearing. Moreover, there was evidence to support a contrary conclusion. For example, Dr Ewer in his medical report of 21 December 2001 (AB 87) stated that the worker was suffering from an `Adjustment Disorder with Depressed and Angry Mood". This could easily explain why it was that the worker behaved as he did before the Arbitration Officer.

46 We have carefully considered all of the material that was placed before the learned Deputy President. Whilst we accept that a contrary conclusion could reasonably have been reached, this was not, in our view, a case where the ultimate conclusion was so at odds with the preponderance of the evidence that anything short of an extensive explanation for reaching that conclusion would indicate that justice was not seen to be done.

47 No error of law has been demonstrated and the appeal should be dismissed.