Peter James Hirst v Judith Quigg Sca [1989] ACTSC 39 (10 August 1989)

SUPREME COURT OF THE ACT

PETER JAMES HIRST v. JUDITH QUIGG
S.C.A. No. 36 of 1988
Worker's Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Worker's Compensation - appeal from Magistrates Court - periodic compensation payments - application by employer for termination order refused - total incapacity - ability of worker to earn income in reasonably accessible labour market - partial incapacity - onus of proof - Workmen's Compensation Act 1951 (ACT).

Barbaro v. Leighton Contractors Pty Ltd (1979-1980) 30 ALR 1123

Bartlett (A.J.) Pty Ltd v. Drenkovski (1981-1982) 40 ACTR 7

J. & H. Timbers Proprietary Limited v. Nelson [1972] HCA 12; (1971-1972) 126 CLR 625

HEARING

CANBERRA
10:8:1989

Counsel for the Appellant: Mr. R. Williams

Solicitors for the Appellant: Garry Robb & Associates

Counsel for the Respondent: Mr. G. Lunney

Solicitors for the Respondent: Messrs Higgins Solicitors

ORDER

The appeal be dismissed and the findings of the Magistrate be confirmed.

The appellant employer pay the respondent worker's costs.

DECISION

This is an appeal by an employer against a decision of a Magistrate sitting as an arbitrator under the provisions of the Workmen's Compensation Act 1951, on 15 June 1988. The Magistrate refused to make an order authorising the termination of weekly payments of compensation by the employer to the worker.

2. The appeal is within a narrow compass. The worker, Mrs. Judith Quigg, was employed as a chicken processor. The repetitive nature of her work caused symptoms in her left wrist. These became manifest in mid-1985. The condition was diagnosed as De Quervain's disease. (It was alleged that she also developed symptoms in her elbow, but as the Magistrate made no clear finding on that aspect, I put it aside.) The worker lost periods of time from work for the condition in the wrist. She was eventually operated on by Dr Morris on 22 October 1985 in the hope that decompression of the tendon sheaths would cause the disabling condition to abate. However, the operation was unsuccessful and Mrs. Quigg continued off work. Dr Morris performed further operations on 20 November 1987 and 4 February 1988. After that he pronounced further surgery to be inadvisable and expressed the view in a report dated 2 June 1988 that the worker would be unsuitable to return to any activity that would involve repetitive forearm and wrist movements. He added that the inflammatory condition should settle although it might take place over a number of years in the future.

3. The view of Dr Morris was supported to some extent by that of Dr Tymms, a rheumatologist, although she was more concerned with the elbow condition.

4. On the other hand, Dr Cassar, a consultant physician, who saw Mrs. Quigg on behalf of the employer, formed the view that there was no residual De Quervain's disease from November 1986 onward and that there was little likelihood of its recurrence. That view was rejected by the Magistrate.

5. The Magistrate found, and there is no dispute on these findings, that as a result of injury in the course of her employment, Mrs. Quigg was from November 1986 until the time of hearing able to carry out a range of activities, such as housework, mowing the lawn and the like for limited periods and that she would be able to carry out physical activities in employment which enabled her to stand up and move around which did not involve lifting or moving of stock or heavy objects. It is not expressly spelled out in the Magistrate's reasons but it is implied, and flows from those parts of the evidence that the Magistrate accepted, that Mrs. Quigg was not fit for any type of full-time employment.

6. After remarking that "the onus in matters of this sort is upon the employer to prove that there is no longer a total incapacity", the Magistrate went on to conclude as follows:
"So that we have a lady ..... who can work in

employment that enables her to stand up and move
around, not to lift things to any great extent,
not to use her hands in any repetitive way, and if
there is employment of that sort on a full-time
permanent commercial basis, it has certainly not
been indicated to me on any of the evidence before
me.
Looking at all of the evidence I am not satisfied
that the applicant employer has discharged the
onus required and the application is refused."

7. Mr. Williams, for the employer, submitted that this passage indicates error on the part of the Magistrate in that there is a failure to recognize and apply the second of two principles of law which have to be applied when an employer seeks an order authorising the termination of periodic payments of worker's compensation.

8. These principles are:

1. An employer seeking to terminate periodic payments of
compensation to a worker, has the onus of proving that
the worker is no longer totally incapacitated for work.
2. Once total incapacity is disproved, the worker has the
onus of establishing partial incapacity giving rise to
liability for compensation.

9. These principles appear in the headnote to Barbaro v. Leighton Contractors Pty Ltd (1979-1980) 30 ALR 123, a decision of the Full Court of the Federal Court of Australia (Connor J. dissenting) and have been acknowledged and applied in decisions of this Court, e.g. Bartlett (A.J.) Pty Ltd v. Drenkovski (1981-1982) 40 ACTR 7 (Kelly J.).

10. It is true that on the face of it the Magistrate's reference to the failure of the employer to discharge the onus seems to indicate that he has not recognized the second of the two principles in Barbaro.

11. Nevertheless, a proper reading of the whole of the reasons of the Magistrate, which cover more than four pages of transcript, leaves me unpersuaded that the Magistrate was under any misapprehension of the law. He made primary findings of fact, to which I have already referred. These led him to the conclusion, which was open to him, that the worker had been demonstrated to be totally incapacitated for work. Nowhere does the Magistrate say or, in my view, imply, that the onus lay on the employer to prove that there was on the part of the worker a total absence of incapacity for work, as opposed to an absence of total incapacity for work. Had he done so he would have been in error. However, the tenor of his remarks show that the Magistrate recognized that total incapacity for work means, to adopt the words of Kelly J. in Bartlett at p 10, an inability to earn in a market reasonably accessible to the worker. It is this economic aspect, with its connotation of the inability of the worker to sell his or her labour in the market place, which distinguishes incapacity for work from mere physical inability to perform work activities. The Magistrate was undoubtedly entitled to rely, as he did, on his own knowledge of the labour market and the availability of jobs (see J & H Timbers Proprietary Limited v. Nelson [1972] HCA 12; (1971-1972) 126 CLR 625, per Gibbs J. at p 651) and hence to come to the view that the worker's continuing total incapacity for work had been demonstrated. I do not think that any mistaken view as to onus led the Magistrate into error.

12. It is important to recognize what Barbaro does not say. It does not say that once an employer seeking termination of liability to pay continuing compensation proves that the worker is no longer suffering from total incapacity, then it is for the worker to prove that there is nevertheless a continuing partial incapacity. It does not say that a worker who is shown to be no longer totally incapacitated is presumed, in the absence of the worker establishing to the contrary, not to be incapacitated at all. As Kelly J. said in Bartlett at p 10, "Barbaro's case is authority for the proposition that the onus then lies upon the injured workman to show the extent of his partial incapacity" (my emphasis). This reference to the extent of incapacity involves, in my view, a recognition of its existence.

13. I do not think that the Magistrate made any error in relation to the onus of proof and it was clearly open to him to find that despite the worker's ability to carry out certain tasks, she was nevertheless totally incapacitated for work. I would add that even if the Magistrate were wrong on the question of onus, his findings of fact lead me to the conclusion that the worker has established, on the balance of probabilities, that she was totally incapacitated for work during the period in question. The appeal will be dismissed, the findings of the Magistrate confirmed and the appellant employer is ordered to pay the respondent worker's costs.