Woden Valley Glass v Raymond Psaila [1993] ACTSC 13; (1993) 112 FLR 262 (22 February 1993)

SUPREME COURT OF THE ACT

WODEN VALLEY GLASS v RAYMOND PSAILA
No. SCA120 of 1992
Number of pages - 13
Worker's Compensation
[1993] ACTSC 13; (1993) 112 FLR 262

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Worker's Compensation - Whether respondent totally incapacitated - Residual physical ability to perform some work - Inability to gain work due to prospective employers' perception of injuries - Relevance of state of the labour market.

Workers Compensation Act 1951 (ACT), s.26

Magistrates Court (Civil Jurisdiction) Act 1982, Part XIXA

Workers Compensation Act 1926 (NSW), s.11(2)

Ruiz v Canberra Rex (1974) 5 ACTR 1

Barbaro v Leighton Contractors Pty Ltd (1979) 23 ACTR 25

Warren v Coombs [1979] HCA 9; (1979) 142 CLR 531

Proestos v Canberra Rex Hotel Pty Limited (1985) 64 ACTR 110

McGale v Glad (1981) 36 ALR 81

Ball v William Hunt and Sons Ltd (1912) AC 496

Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533

Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171; 57 ALR 229

Baker v Canberra Abattoir Pty Ltd (FCA; Fox, Blackburn and Northrop JJ; 20/5/82; unreported)

HEARING

CANBERRA, 28 January 1993
22:2:1993

Counsel for the Appellant: Mr M Cranitch

Instructing solicitors: Messrs Macphillamy Cummins and Gibson

Counsel for the Respondent: Mr G Lunney

Instructing solicitors: Messrs Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
1. The appeal be dismissed.

DECISION

HIGGINS J This is an appeal by an employer against an award made to an employee by Magistrate Ward on 2 September 1992. The decision resulting in that award was handed down on 27 July 1992. Written reasons for fixing the quantum of the Award were delivered on 29 July 1992.

2. The respondent's application, as amended, claimed that personal injury by accident had been sustained by him on 12 April 1990 arising out of and in the course of his employment by the appellant. He requested arbitration to determine the liability of the appellant to pay compensation as from 13 October 1991. It was further alleged that the respondent had become totally, or, in the alternative, partially, incapacitated "for his pre-accident employment".

3. It should be noted that there is a cross-appeal concerning the calculation of the sum to which the respondent is entitled for the first 26 weeks of incapacity. His Worship was plainly dissatisfied with the result to which he considered that recent changes to the legislation impelled him. I am told that a recent legislative amendment to the First Schedule to the Workers Compensation Act 1951 (ACT) had the apparently anomalous result of reducing the entitlement of workers during that period. That result, his Worship felt, carried with it an "immediate expectation of correction by a judicial thunderbolt from above". I am spared being cast in the role of a judicial Odin by the request of the parties that resolution of the question thus referred to should be deferred pending the result of a proposal before the Legislative Assembly to correct the anomaly his Worship found to exist.

4. The circumstances of the injury were found by his Worship to be as described by the respondent in his evidence. The respondent had been employed by the appellant inter alia to take phone calls, serve customers, cut glass, load and unload trucks. In the course of those duties, the respondent was required to lift heavy items such as sheets of glass.

5. As at 1 February 1990, the respondent had been performing those duties without incident for the previous four years (approximately). On that day he lifted a sheet of glass and felt a pain in his back. He had no previous history of back trouble. He went back to work after a medical examination. He was sore and uncomfortable but improved gradually. However he did refrain from lifting glass.

6. On 12 April 1990 he assisted his brother, a director of his employer, to lift a welder into a shed. This was a large and heavy item of equipment. He again felt pain in his back. Again he consulted his doctor. This time he was put off work for two or three weeks.

7. The respondent returned to light duties with the appellant but pain in his lower back and right leg persisted. He left this employment in August 1990.

8. Thereafter he was employed by another glazing firm, O'Briens Glass. He was given the task of cutting aluminium for various door and window frames. He continued to be so employed up until 10 October 1991. He saw Dr Quach on that day as a result of the continuing pain and disability emanating from his back.

9. On 13 October 1991, whilst doing some minor gardening work at home, the respondent felt a sudden and severe pain in his lower back. Dr Quach advised two weeks off work. However, the respondent returned to work after only one week off. He subsequently took a further week off and was then retrenched.

10. He was, thereafter, unemployed until May 1992. He then performed light duties, altering windows for a firm called Koolanex. He found he could not continue because of back pain. The pain extended down both legs.

11. Thereafter the respondent sought the aid of the Commonwealth Rehabilitation Service to obtain suitable employment. By the date upon which his application was heard, he had applied for work as a security officer with Wormald and the Department of Transport and Communication but, as at 27 July 1992, he had not been offered any employment. He felt that he was fit for work "taxi driving or security work, some form of security work, at a desk or things like that. Something that didn't involve too much lifting and too much walking around". He did not have keyboard skills but was willing to try to acquire them. He had also applied for a job as a console operator at a Caltex service station but had been unsuccessful. He had some hope that a friend of his might find a vacancy for him in the security section of the Mint.

12. The evidence of the respondent as to the level of disability he experienced was corroborated by his wife.

13. It was conceded that his Worship was entitled to accept the evidence given by the respondent. Indeed, I think he was right to do so.

14. The appellant complained that, if the respondent considered he was fit for certain jobs, he should be found to have the capacity for them. If so, his Worship was wrong to find him totally incapacitated. This does not necessarily follow. Self assessment of capacity is not always realistic. It may be either overly optimistic or overly pessimistic.

15. It is necessary to look at the totality of the evidence before his Worship.

16. The medical evidence suggested that the injury of 12 April 1990 was an aggravation of damage already sustained on 1 February 1990. The disability resulting from that damage, it seems agreed, prevents the respondent from engaging in work which throws a strain on his back. Loss of weight and a regime of exercise would enhance his capacity but not render him fit for his pre-injury occupations.

17. He has, physically, a residual capacity for work. A report, from the Commonwealth Rehabilitation Service, assessed the respondent as unfit for work requiring heavy lifting, standing, for long periods, bending and crouching. The report found that he did possess "considerable skills in office management". He had clerical aptitude and good communication skills. A list of occupations was then suggested. They were:-
"Court Orderly

Desk Security
Service Station Attendant
Night Security Officer
Switchboard Operator
Armoured Guard
Parking lot attendant
Hotel Club Manager
Hotel Security
Manager of small business
Estimator/sales
Mobile Patrol Officer"

18. The report made the following comment on the practicality of those options,

"Many of the occupation (sic) discussed have already been
investigated by Mr Psaila. He has approached several security
firms and has been told that his injury would prevent him from
obtaining work. Many of the more sedentary jobs in security are
given to long time employee's (sic). Other occupations
investigated by Mr Psaila include Service Station Attendant
(involves some cleaning and stocking of shelves), and Parking Lot
Attendant (No Vacancies).
Mr Psaila has also been offered full time work in the glazing
area and also in making up aluminium frames, but is unable to
perform these duties due to his injury."

19. His Worship accepted that the respondent, though he had persisted with work as a glazier, not only for the appellant but also O'Briens glass, was really unsuited for that work by reason of his incapacity. That conclusion was open to his Worship on the evidence. I do not consider that it was contrary to the weight of the evidence. Indeed, accepting the respondent, as his Worship did, as a truthful witness, that conclusion was really inevitable.

20. The appellant does not complain of that conclusion. It complains of the following passage from his Worship's decision,

(T - p 52) "It does not seem to me to matter whether one
classified his inability to work between October 1991 and now as
a partial or as a total incapacity. The result is the same,
namely, a total inability to work since October 1991 to date.
One cannot expect a butcher or glazier to become a night watchman
or taxi driver overnight. There must be a lot of mental
adjustment to make. No doubt his efforts for a considerable time
after October 1991 were more directed at overcoming his injury
and hoping that it would improve so that he could resume
employment in the fields he was used to rather than searching out
new fields of employment immediately.
To expect it to be otherwise is unrealistic. It is now some two
months since he has abandoned the hope of a quick fix to his back
and made the mental adjustment to looking for new work. That he
has not yet found it has nothing to do with the present economic
climate of which, incidentally, I have no evidence. I am not
prepared to take judicial or actual knowledge
that there is any particular difficulty in the Australian Capital
Territory in a 36 year old male getting employment in the
industries in which the applicant now seeks employment.
On the evidence before me and the view I take of the defendant's
willingness to work I am satisfied that any difficulty he has in
obtaining employment is caused by the fact that he plainly has a
bad back caused by the injuries he sustained while working with
the respondent and the limitation that that bad back places upon
the available types of employment. I find that the applicant
sustained injuries arising out of or in the course of his
employment with the respondent on 12 April 1990, as a result of
which he has been totally incapacitated for work from 13 October
1991 to date."

21. So far as the motivation of the respondent to gain employment is concerned, his Worship's conclusion was also supported by the medical evidence. It was inevitable he should so find.

22. The question is whether the respondent, who is likely eventually to find work, should be regarded as totally incapacitated since 13 October 1991 to the date of the Award because no suitable position had, up to the date of the hearing, been offered to him.

23. It seems to have been common ground that the respondent suffered incapacity for work as a result of the incident on 12 April 1990. To the extent that the incapacity resulted from an aggravation of the injury of 1 February 1990, any incapacity resulting from that injury would have been compensable in any event. The net result is that the incident of 12 April 1990 left the respondent with an incapacity arising out of and in the course of his employment.

24. No other incident had affected his capacity for work.

25. What constitutes incapacity was aptly summarised by Woodward J in Ruiz v Canberra Rex (1974) 5 ACTR 1.

(6) "... I have no doubt that, if a person has normally been a
manual worker and is prevented from doing such work by an injury
received in compensable circumstances, the obligation to
compensate cannot be avoided or reduced by showing that he might
have done some quite different type of work had it not been for a
previous injury. It might be otherwise if the normal type of
work had been ruled out by the first injury; but in this case
the first injury left the worker fully able to perform his usual
work."

26. As I have noted, the appellant does not suggest that on the facts found by his Worship, which facts he was entitled to find, the respondent has no relevant incapacity. The appellant's contention is that it should be regarded as partial only. On the evidence before the learned Magistrate, the appellant further submits that there could have been no finding as to the quantum of that partial incapacity as there had been no evidence of the difference between the pre-accident earnings and the post-accident capacity to earn (see, for example, Barbaro v Leighton Contractors Pty Ltd (1979) 23 ACTR 25). Alternatively, the appellant submitted, the matter should be remitted back to his Worship to determine that issue according to law.

27. Section 26 of the Workers Compensation Act 1951 (ACT) now equates the status of appeals such as this one and the powers of this Court on determination thereof to those applying under Part XIXA of the Magistrates Court (Civil Jurisdiction) Act 1982. This Court is required to review the conclusions arrived at by the learned Magistrate, giving due deference to his view of the witnesses and due weight to his conclusions (see Warren v Coombs [1979] HCA 9; (1979) 142 CLR 531; Proestos v Canberra Rex Hotel Pty Limited (1985) 64 ACTR 110). It may vary those conclusions if it considers them to be wrong.

28. The principal contention of the appellant was that the evidence did not permit the learned Magistrate to draw the inference that the respondent had been, from 13 October 1991, totally incapacitated. Alternatively, that even if such a conclusion was theoretically open, it should not have been drawn.

Total Incapacity
29. What constitutes "total incapacity" is not, I think, open to doubt.

30. In McGale v Glad (1981) 36 ALR 81, the Full Federal Court (Evatt, Sheppard and Kelly JJ), following Ball v William Hunt and Sons Ltd (1912) AC 496, per Lord Loreburn LC at pp 499-500, defined total incapacity as a situation where the worker's labour has become unsaleable in any market reasonably accessible to him or her by reason of the relevant physical defect. Partial incapacity exists when that defect makes his labour saleable for less than it would otherwise fetch. Total incapacity does not have to be "permanent".

31. Physical defect, for this purpose, includes a condition such as pain or skin irritation which occurs only during work (see, for example, Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533.

32. Incapacity can arise from the mere fact of injury even though it does not reduce the worker's actual physical capacity. It is the market's perception of the worker's capacity compared with a worker who has not been so injured that is critical.

33. That proposition was affirmed by Mason, Wilson, Deane and Dawson JJ in Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171; 57 ALR 229.

Was the evidence sufficient to find total incapacity?
34. At the outset it must be recognised that there is, as yet, no equivalent in the Workers Compensation Act 1951 (ACT) to s.11(2) of the Workers Compensation Act 1926 (NSW) (since replaced by the 1987 Act). Whereas, in New South Wales, proof of incapacity followed by a failure to find "suitable employment", is equated with total incapacity, in this Territory, the onus is on a worker seeking an award to establish not only incapacity but also that it is, in fact, total, in order to be compensated on that basis. (That does not include a case where an employer has the onus of proving that incapacity has ceased to be total and has become partial or ceased entirely. If that latter fact situation is proved, the employee then has the onus of proving the extent of the remaining incapacity, if any.)

35. In Ruiz v Canberra Rex (supra) Woodward J found total incapacity by the following process of reasoning,

(8) "... the appellant has deposed to a number of unsuccessful
attempts to find appropriate work. The understandable reaction
of employers seems to be that, with his history, he is a poor
risk ... he is, in reality, totally incapacitated ... there is no
provision ... enabling partial incapacity to be treated as total
incapacity where a worker is for the time unable to find work
because of his injury."
(9) "Taking, as I think I should, normal employment
circumstances as my criterion, I believe that the appellant would
always find it very difficult, and would normally find it
impossible to secure work. He has given evidence of his
unsuccessful attempts to do so and, in the result, I am satisfied
that he is totally incapacitated for work."

36. Baker v Canberra Abattoir Pty Ltd (FCA; Fox, Blackburn and Northrop JJ; 20/5/82; unreported) involved a slaughterman who, following a back injury, carried out "light duties" for four weeks. He was not trained for those duties and could not reasonably have been expected to continue to earn his living performing them. Fox J (Blackburn and Northrop JJ concurring) dealt with a submission that the learned Magistrate had found total incapacity without evidence justifying that conclusion. His Honour said,

(3) "It is submitted that, in the absence of evidence of
attempts by the worker to find work, it was not open to the
magistrate to find that, with some capacity to work, the worker
was totally incapacitated. In my view there is no such rule.
Each case must be judged on its own facts. The physical
condition of the worker, the treatment being received by him, the
nature of the work for which he is trained or equipped, his own
evidence of his symptomatic reaction to attempts to work, and the
evidence relating to the four weeks of rehabilitative work, all
enable an inference to be drawn as to whether he is totally
incapacitated up to the time of the hearing. Independently of
these considerations, or combined with them, is the consideration
that liability for total incapacity had been accepted, and no
reason appeared for a change."

37. In the instant case, his Worship did have evidence of attempts made by the respondent to find work. The respondent was undeniably incapacitated for the forms of work he had previously undertaken. It was open to his Worship to conclude that his injury was a disincentive to employment in those alternative fields in which he had sought employment. He was entitled to conclude that the respondent would probably not obtain alternative employment, although physically fit to undertake it, until he had received appropriate re-training or experience. None of those matters depended, as his Worship rightly noted, on any particular view of the state of the labour market.

38. I conclude that no error has been shown in his Worship's assessment of the evidence. He was entitled to conclude that, up to the date of hearing, the respondent was totally incapacitated for work. I am also of the opinion, having perused the evidence, that his Worship's conclusion was, in any event, clearly correct.

39. The appeal is dismissed.

40. I will hear the parties as to costs.