Tok Carpentry and Partitioning Pty Limited v John Leonard Watts [1993] ACTSC 28; (1993) 113 FLR 368 (1 April 1993)

SUPREME COURT OF THE ACT

TOK CARPENTRY and PARTITIONING PTY LIMITED v. JOHN LEONARD WATTS
No. SCA67 of 1992
Number of pages - 9
Worker's Compensation
[1993] ACTSC 28; (1993) 113 FLR 368

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles CJ(1)

CATCHWORDS

Worker's Compensation - appeal from Magistrate - manual worker unable to do heavy work - difficulty in securing light work - whether totally or partially incapacitated - whether question of permanence of incapacity relevant in worker's compensation claim - distinction between theoretical capacity and actual capacity to perform work - Workers Compensation Act 1951, sub-paras.1(b) and (c), Schedule 1.

Appeal - principles - interference with Magistrate's findings of fact - function of appellate court - where inferences of fact involved - where experienced tribunal at first instance involved.

Baker v. Canberra Abattoir Pty Limited (Full Court of the Federal Court of Australia, unreported, 20 May 1982)

Canberra Abattoir Pty Ltd v. Baker (1981) 37 ACTR 17

Ruiz v. Canberra Rex Hotel Pty Ltd (1975) 5 ACTR 1

Thompson v. Armstrong and Royse Proprietary Limited [1950] HCA 46; (1950) 81 CLR 585 at 621

Abalos v. Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167

Sherwood v. Guneser (unreported, Full Court of the Supreme Court of the ACT, 11 December 1992)

HEARING

CANBERRA, 28 January 1993
1:4:1993

Counsel for the appellant: Mr. M. Inglis

Solicitors for the appellant: Macphillamy Cummins and Gibson

(as agents for A.O. Ellison and Co.)

Counsel for the respondent: Mr. R. Crowe

Solicitors for the respondent: Maliganis Edwards Johnson

ORDER

The Court orders that:

1. The appeal be dismissed.

DECISION

MILES CJ This is an appeal against an award handed down by Magistrate Burns sitting as an arbitrator, pursuant to the Workers Compensation Act 1951 (the Act). On 7 February 1992 the Magistrate made an award of compensation in favour of the respondent worker in respect of an injury sustained by him in the course of his employment with the appellant employer on 9 May 1991.

2. Amongst the findings of the Magistrate, which are set out in the award, is a finding that the worker was incapacitated for work from 9 May 1991 until the date of the hearing on 12 December 1991.

3. A number of grounds are set out in the Notice of Appeal dated 24 February 1992, but the substantial ground argued was that the evidence did not support a finding on the part of the Magistrate that the worker was totally incapacitated. It may be observed that the award itself does not contain an express finding that the incapacity was total, nor indeed that the incapacity resulted from the injury. However, the Magistrate's reasons for the award make it clear that he did make such findings. The award itself fixes the rate of compensation payable under sub-clause 1(b) of Schedule 1 to the Act, and therefore implies a finding that the worker was incapacitated by the injury and, as I understand it, a further finding that the incapacity was total from the day of injury to the day of hearing. It is convenient to proceed to determine the appeal without remitting the matter to the Magistrate for express inclusion in the award of his findings on causation and on the extent of incapacity.

4. Much of the factual material is not in dispute. The worker received an injury to his lower back when he attempted to lift, unassisted, one end of a mobile scaffolding. He felt a sharp pulling sensation in his lower back and for the rest of the afternoon continued working, feeling awkward and unable to stand straight. After work he visited a chiropractor, who could do nothing for him of any benefit. The next day, in pain, he saw his general practitioner, who prescribed pain killers. The pain persisted and worsened during the next month or so. He saw more doctors and received physiotherapy. He improved to the extent that on 27 August 1991 he returned to work on restricted duties, sealing gaps in walls and ceilings. However, he had to climb up and down a ladder and by the end of the day his lower back felt stiff and painful. He could not continue the following day and has been off work ever since.

5. The worker said in his evidence that at the time of the hearing his back had improved to some extent, but not to the state in which it was immediately prior to 27 August 1991. He told the Magistrate that he considered himself fit for duties of a supervisory nature, or duties such as those of an estimator, or a designer of kitchen layouts. He considered that he had experience which qualified him for these sorts of duties and had made some effort to find such work. Any such effort had, however, been unsuccessful. He had spoken to the employer about supervisory work, but the only position of that nature was already filled.

6. The Magistrate clearly accepted the evidence of the worker on these and other matters, and it was not submitted that the Magistrate should have done otherwise. The question is what conclusion should be drawn from this evidence and from the medical material. The employer indeed relied on the worker's expression of a view as to his fitness as constituting evidence of partial incapacity for work, as opposed to total incapacity. It was also part of the employer's case that the worker's efforts to try to obtain suitable work had been less intense than they might have been. In particular, it was suggested that the worker should have made further attempts to obtain suitable work from the employer. In the absence of any positive suggestion from the employer that it was able to offer suitable work, I think that the inference is to be drawn that no such work has been available. This is not to suggest that the law of the Territory casts a duty upon an employer to provide suitable work for a worker who, through employment-related injury, is able to perform a restricted range of physical activities, and who may be regarded therefore as partially incapacitated for work. It is simply that an absence of evidence on the part of the employer (as there was in this case) including an absence of any offer of suitable duties on behalf of the employer, are matters to be taken into account on the overall question of the injured worker's incapacity for work and the extent of any such incapacity.

7. The medical evidence (entirely in the form of reports) was unanimous that, from the date of injury until the date of hearing, the worker had been unable to perform work of a heavy nature, including the usual duties of a carpenter. There was a suggestion in the case argued on behalf of the employer that the effects of the injury had worn off by the time of the hearing. This suggestion relied on a long history of intermittent back and neck pain and the undoubted evidence that the worker was clearly suffering from a degenerative condition in his cervical and lumbar spine. However, his previous condition had never been sufficiently debilitating to put him off work. Hence, in my view, whilst it was arguable that the injury was simply one of the many occasions on which there had been a temporary aggravation of a pre-existing condition, the Magistrate was quite entitled to take the opposite view that the incapacity that followed the injury was a result of the injury. Indeed, in the light of the medical evidence it would have been difficult to come to any conclusion other than that, whatever the exact nature of the worker's incapacitating condition at the date of hearing, it was causally related to the injury.

8. What appears to have led to some confusion is that in considering the submission on behalf of the employer that the effect of the injury was temporary only, the Magistrate was attracted to the conclusion that the effect was permanent and expressed himself accordingly. The Magistrate stated as one of his conclusions that the aggravation of the lower back condition by the injury led to the result that the worker would "always find it difficult, if not impossible, to secure work". It was submitted on behalf of the employer on the appeal that the Magistrate was wrong in concluding that the worker's incapacity was permanent. Reliance was placed on certain parts of the medical reports which tended to support the prospect of rehabilitation or recovery at some time in the future. However, as Fox J pointed out in Baker v. Canberra Abattoir Pty Limited (Full Court of the Federal Court of Australia, unreported, 20 May 1982):

"..... the permanence of incapacity is not a question which arises in a
claim for compensation pursuant to para. 1 of Schedule 1 to the Act."

9. The Federal Court decision, although unreported, overruled the decision of Kelly J in Canberra Abattoir Pty Ltd v. Baker (1981) 37 ACTR 17, in which his Honour held that the worker had to show that he was totally and permanently disabled. Hence, if the Magistrate was wrong in concluding that the incapacity was permanent, and I express no concluded view that he was wrong, then he was wrong only on a question that did not need to be answered.

10. Mr. Inglis, for the employer on the appeal, made an alternative and further submission that, in deciding what was in effect a false issue as to permanent incapacity, the Magistrate failed to decide the correct issue, namely whether the incapacity was partial or total. However, in my view, a proper consideration of the Magistrate's reasons so clearly demonstrates that he was aware of the necessity to decide whether the incapacity was total or partial, that I do not consider it necessary to deal further with this submission nor to set out the relevant passages in the Magistrate's reasons.

11. The real issue both at the hearing before the Magistrate and on the appeal was whether the worker's incapacity, which had subsisted as essentially the same in character, although fluctuating in intensity, from the day after the injury to the day of trial (despite a day on a trial basis), was total or partial.

12. The Magistrate said at p 6:

"The real issue in this case was whether or not the applicant was
totally incapacitated for work. The applicant, in cross-examination,
said that he felt that he would be able to cope with the work of either
a supervisor, or a leading hand. He said in cross-examination that he
felt that he was suited by experience and ability to work in either of
those areas. I note, however, that the applicant has limited
education. He also has very limited experience in terms of being a
leading hand and he has no experience whatsoever in supervisory duties."

13. After referring to the decision of Woodward J in Ruiz v. Canberra Rex Hotel Pty Ltd (1975) 5 ACTR 1, the Magistrate continued:

"Whilst there is reference in the medical reports to the applicant
being able to undertake lighter forms of employment and whilst the
respondent relied upon the applicant's evidence that he would be able
to undertake work of a leading hand or supervisory nature which would
not result in any loss of ability to obtain wages by working on the
part of the applicant, I am satisfied that both the medical evidence
and the evidence by the applicant referred to a theoretical capacity to
obtain and keep a job as opposed to an actual capacity.
Taking normal employment circumstances as the appropriate criterion, I
believe that taking into account the extremely limited educational and
experience educational qualifications of the applicant and his
experience in the types of work in which he feels that he would be
qualified, I believe that the applicant would always find it difficult,
if not impossible, to secure work as a result of the present
aggravation to his lower back injury.
I do not find it necessary to make any finding as to precisely the
mechanism of his present incapacity. It is sufficient to state that I
am satisfied, on the balance of probabilities, that his present
condition is a result of an aggravation of his pre-existing back
condition as a result of the incident that took place on 9 May 1991
whilst working for the respondent. I am therefore satisfied that the
applicant is totally incapacitated for work and has been so since 9 May

1991

14. There is no question that the Magistrate recognized the correct test to be applied. He referred to the distinction drawn by Woodward J in Ruiz between a theoretical capacity to obtain and keep a job and the actual capacity of an injured worker to do so. He referred also to the passage in the judgment of Kitto J in Thompson v. Armstrong and Royse Proprietary Limited [1950] HCA 46; (1950) 81 CLR 585 at 621:

"..... incapacity for work is an economic and not a physical fact. The
relevant economic fact .... is the inability, or the reduced ability,
by reason of a physical deficiency, to sell work for wages ... Thus,
compensation is awarded, not for loss of wages, nor for impairment of
physical condition per se, but for the economic aspect of that
impairment, namely a lost or diminished ability to obtain wages by

working."

15. The complaint of the employer on the appeal is that the application of these tests to the evidence before the Magistrate should have led to the conclusion that the worker was not totally incapacitated for work but only partially so. The employer relied on the medical evidence that the worker was capable of carrying out some form of light duties and proffered the view of the worker himself that he could do the work of a supervisor, an estimator or a layout designer.

16. It is instructive to remember that the concept of partial incapacity is a statutory one. Any assistance that may come via the statute is likely to be of benefit. Para.1(c)(i) of Schedule 1 of the Act quantifies the amount of compensation for a partially incapacitated worker by reference to the difference between likely weekly earnings but for injury and the amount (if any) that the worker is earning, or is able to earn after injury "in some suitable employment or business". It is the capacity to earn in some suitable employment or business to which regard must be given. The Magistrate took the view that, at the time of the hearing, and having regard to normal employment circumstances, the extremely limited education and experience of the worker precluded him from earning wages from some suitable employment or business in the capacity of supervisor, leading hand, estimator or layout designer in the building industry, despite the worker's own views as to his capacity to carry out the duties involved in such employment. In my opinion, the Magistrate was entitled to so decide the matter.

17. In Baker v. Canberra Abattoir Pty Limited, Fox J at p 6 said in relation to the facts of that case:

"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."

18. A similar approach to the present case does not indicate error on the part of the Magistrate in this case. Moreover, there are two aspects of the matter which lead me to the conclusion that this Court should be cautious about interfering with the findings of the Magistrate sitting as an arbitrator in a case such as this.

19. First, there is the principle recognized in Abalos v. Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167, where McHugh J at 178 referred to the advantage enjoyed by a tribunal where the estimate of the person forms any substantial part of the reasons for decision. That principle was acted upon by a Full Court of this Court in Sherwood v. Guneser (unreported, 11 December 1992), an appeal from the Master relating to the assessment of loss of earning capacity. The Court said that the Master "was bound to take into account his estimate of the respondent as he saw him, both as a result of his own observation of the respondent in the witness box and of the rest of the evidence before him", which led to an advantage enjoyed by the Master and not by the Court sitting on appeal.

20. There is the further aspect also adverted to in Sherwood that a tribunal of fact is entitled to apply, at least to some extent, its own knowledge and experience of local conditions relating to employment. In Ruiz, Woodward J acknowledged that a workers' compensation tribunal acquires "an immense fund of information" entitling it to apply that information to cases coming before it, especially where the tribunal is not bound by the rules of evidence and is entitled to inform itself as it sees fit (see para. 6A of Schedule 4 to the Act, see also Bryer v. The Metropolitan Water, Sewerage and Drainage Board (1938-9) WCR (NSW) 267 at 276). His Honour thought that "much greater caution" was called for in the less experienced tribunals which dealt with such cases at infrequent intervals. For my part, considering in particular the greatly increased experience of the ACT Magistrates Court in determining workers' compensation claims in the period of nearly twenty years since Ruiz, a Magistrate sitting as an arbitrator under the Act should be regarded as entitled to supplement the evidence by drawing on the Court's own knowledge of employment conditions, pay rates and the like to assist in deciding whether a worker is able to earn any amount in "suitable employment or business" having regard to what are normal employment conditions. In the present case the Magistrate decided that there was, in effect, no suitable employment or business in which the worker was able to derive earnings. I am not convinced that the Magistrate was wrong.

21. The appeal is dismissed. Unless the parties wish to be heard, I propose to order the appellant to pay the respondent's costs.