Rowe and Comcare [2003] AATA 949 (23 September 2003)

Last Updated: 25 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 949

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2002/301

GENERAL ADMINISTRATIVE DIVISION	)
	Re	JOHN FREDERICK ROWE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Senior Member WJF Purcell

Date 23 September 2003

Place Adelaide

Decision

The Tribunal sets aside the reviewable decision of 9 March 2000, and substitutes a decision that since 1 November 1997 the applicant has continued to be partially incapacitated for work, and is entitled to ongoing payments in respect of that partial incapacity, and remits the matter to Comcare for assessment of the appropriate level of compensation payable to the applicant. The respondent will pay the applicant's costs of this proceeding, as agreed between the parties or in default of agreement, as taxed by the Registrar of the Tribunal.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

COMPENSATION - when injury happened - work in which applicant engaged immediately before injury happened - level at which applicant engaged to work immediately before injury - whether applicant incapacitated form engaging in work at same level

Safety Rehabilitation and Compensation Act 1988 sections 4, 7

Cobern and Comcare (AAT 12761, 30 March 1998)

Arnotts Snack Products Proprietary Limited and Yacob 155 CLR 171

Metcalf and Comcare (AAT 13581, 23 December 1998

REASONS FOR DECISION

23 September 2003

Senior Member WJF Purcell

1. This matter came on for Hearing as a result of the Federal Court setting aside that part of a Tribunal decision of 18 April 2002, which related to the applicant's partial incapacity. The Tribunal had set aside a Comcare decision to deny liability to award incapacity payments to the applicant, on and from 1 November 1997, in respect of "noise induced hearing loss" deemed to have been sustained on 20 June 1980. The Tribunal substituted a decision that the applicant continued to be partially incapacitated for work, and entitled to ongoing payments of compensation in respect of that partial incapacity; and remitted the matter to Comcare for assessment of the appropriate level of compensation payable to the applicant. The Federal Court set aside that decision and remitted the matter to the Tribunal for determination in accordance with law by addressing and making the findings of fact required under section 4(9)(b) of the Safety Rehabilitation and Compensation Act 1988 (the Act).

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the applicant, who was represented by Mr Cole of counsel, and gave oral evidence. The respondent (Comcare) was represented by Mr McRae of counsel.

3. Section 4(9) of the Act provides:

(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened."

4. The learned Judge accepted Comcare's submission that the Tribunal was required to address the following questions:

(a) When did the "injury" happen?

(b) What was the work in which the employee was engaged by the Commonwealth or a licensed corporation immediately before the injury happened?

(c) What was the "level" at which the employee was engaged to work immediately before the injury?

(d) Is the employee incapacitated from engaging in work at the "same level" at which he or she was engaged to work by the Commonwealth or a licensed corporation?

5. His Honour said also, at paragraphs 8, 9 and 10 of his Reasons for Judgment:

"8 A further question may also arise on the facts of a particular case as to whether the incapacity relied upon is an incapacity to engage in "any other work" engaged in immediately before the injury happened. The meaning those words are intended to have, and the work they are intended to do, in s 4(9)(b) is far from clear.

9 Further, as was pointed out by counsel for the respondent a claim for an injury causing hearing loss might fall within the definition of a "disease", which is defined in s 4(1) to include an "ailment", which is defined in s 4(1) as meaning, inter alia, "any physical...ailment, disorder...[or] defect". If the respondent was found to have suffered a "disease" s 7(4) would be relevant. The sub-section provides:

"For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a) the employee first sought medical treatment for the disease, or aggravation; or

(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first."

10 The respondent did not contend that the question of s 4(9)(b) was not raised by the cases put by the parties before the AAT. Accordingly, the above matters were required to be addressed by the AAT and, if applicable, made the subject of findings in order for the AAT to arrive at a conclusion that the respondent was entitled to compensation under ss 14 and 19 of the Act. It is clear that, on a fair reading of its decision, the AAT did not address and make findings in respect of those matters."

6. His Honour considered also, that the Tribunal failed to address Comcare's submission in relation to section 4(9)(b) of the Act, that the applicant's continuing employment from 1987 to 1997, notwithstanding his hearing loss, demonstrated that he was not incapacitated for work within the meaning of section 4(9)(b) of the Act.

THE QUESTIONS THE TRIBUNAL IS TO ADDRESS

7. In relation to question (a) - When did the injury happen? - the applicant submits that the "injury" occurred on 6 May 1987, insofar as it was an aggravation of an initial injury, "noise induced hearing loss", sustained on 20 June 1980. Further impairment was sustained in the period 6 May 1987 to 31 October 1997, by the applicant continuing to work in a noisy environment resulting in increased hearing loss and tinnitus, as found by the Tribunal in its decision of 18 April 2002. The applicant submits in the alternative, that if his condition is a "disease" then applying section 7(4) of the Act, the applicant suffered injury, namely disease, initially, in June 1980, and then aggravation of disease, on 6 May 1987 when medical treatment was sought.

8. In relation to question (b) - What was the work in which the employee was engaged by the Commonwealth or a licensed corporation immediately before the injury happened? - the applicant maintains that he was engaged by the Commonwealth to perform the full range of duties of a station assistant.

9. In relation to question (c) - What was the "level" at which the employee was engaged to work immediately before the injury? - the applicant asserts that "level" as it is used in the section does not refer to classification, but is a term of considerable generality, and is intended to allow for a range of skills, experience, supervision, range of duties, place of duties, and the like. Immediately before the injury the level at which the applicant was engaged, was for him to carry out the full range of duties at various stations, including at least Keswick and Islington.

10. In relation to question (d) - Is the employee incapacitated from engaging in work at the "same level" at which he or she was engaged to work by the Commonwealth or a licensed corporation? - the applicant maintains that he is incapacitated from working at the same level as immediately before the injury, as subsequent to May 1987 he was not fit to work at all at Islington because of the presence of gantry cranes and the noise from dropping steel plates. He was obliged to transfer to Keswick. In the further period up to October 1997, he could not, and did not work at the same level at which he was engaged immediately prior to the injury of 6 May 1987. He was only able to continue to work at Keswick because he had the benefit of the familiarity of the system of work, and the support of his understanding work colleagues. Moreover, the Tribunal was satisfied on the evidence that his tinnitus and hearing loss were worsened by the work environment itself at Keswick.

11. Comcare maintains that although it accepts that there is a noise induced hearing loss and tinnitus, as found by the Tribunal, the applicant's incapacity as it is now, is not an incapacity to engage in work at the same level at which he was engaged immediately before the injury occurred. The word "level" may include reference to classification level, but also refers to the nature of the work and the tasks involved. The applicant's appropriate classification level was the work of a station assistant, which encompasses all of the duties which the applicant outlined in his evidence before the Tribunal. Dr Tomich considered in September 2000 that with appropriately fitted hearing aids, he could see no reason why the applicant could not continue his pre-redundancy occupation. On this evidence alone, the applicant does not have an incapacity within the meaning of the section.

12. Comcare maintains in the alternative, that the level of a station assistant envisaged a considerable number of tasks; and although it may have been appropriate that work around the gantry crane not be engaged in, there was sufficient other work which could properly be engaged in, and in fact was engaged in over the 10 subsequent years, to enable a finding to be made that there was not an incapacity for work within the meaning of the section. Comcare relies on the decision in Cobern and Comcare (AAT 12761, 30 March 1998), particularly paragraphs 17 and 18 which read:

"17. There is a body of evidence which establishes that the tasks undertaken by the applicant in the course of his work in 1995 were allocated so as to minimise those tasks that aggravated his psychiatric symptoms. Whilst some of the tasks that the applicant was spared were appropriate for an officer of ASO5 level, the tasks on which he concentrated were also, by and large, appropriate for an officer of ASO5 level. By 1995, ASO5 officers were generally required to spend part of their time doing work that would once have been the work of junior or subordinate staff. It does not appear that the applicant was required to spend significantly more of his time doing such work than would have been the case if he had not had a psychiatric problem.

18. In my view the evidence that I have referred to clearly establishes that, at the time of his retirement, the applicant was neither incapacitated from engaging in any work at all, nor incapacitated from engaging in work at ASO5 level. He was approaching the point where he would become so incapacitated. It was reasonable, even wise, for him to retire early before his psychiatric condition deteriorated to such an extent that he reached that point. But he was still fit for work at ASO5 level when he retired, and therefore was not then incapacitated for the purposes of the Act. It may be that the Act has operated unfairly in this case, given the prudence of the applicant's decision to retire before irretrievable psychiatric damage occurred, but I have no discretion in the matter."

13. The applicant gave evidence that he was no longer able to perform the work that he performed for many years in the Bluebird brake vans at Adelaide Railway Station prior to 20 June 1980. Such work included driving fork lifts, loading and unloading the Bluebird brake van - a self motorised freight van the size of a normal railway carriage, designed to carry freight only, and which could have 8 to 10 other carriages attached. The Bluebird's engine and compressors would be running at all times. It was a very noisy environment, and he said in evidence that he believed that he would not be able to cope with the noise of the diesel engines and the compressors. He believes that such exposure would cause him to suffer blurred vision, nausea and an increase in his tinnitus. Also, he would not be able to communicate with his workmates over that noise.

14. The applicant said in evidence that the work that he did at Islington in the 2 years subsequent to 1987, included the loading of flat top metal railway trucks. The gantry crane would lift the containers on to the flat tops and the applicant would signal to the crane driver by hand for positioning the container, and then lock the container in position. This job required that the applicant have a "slinger's certificate". On one occasion he and a workmate were walking together when his workmate shouted to him to duck out of the way. He says that a 40' container swept across the top where his head had been. Because of the background noise of metal plates banging, he had not heard the crane approaching. Soon after this incident he applied for a transfer back to Keswick.

15. In relation to the noise from the metal plates, the applicant said in evidence that each flat top had a plate at each end, and when the shunters brought in a load of empty flat tops, the applicant's task was to move along the line of flat tops, remove the bolts holding the plates, and then drop the plates. This created a loud banging noise and was done routinely. The applicant said that he was no longer capable of doing that work because of his noise induced hearing loss and tinnitus. He would be a danger to himself and to his work mates, working within that environment because of his inability to hear and communicate. He also believes that being exposed to the noise that he was exposed to at Islington, would cause an increase in his tinnitus, blurred vision and nausea.

16. The applicant said in evidence that as to the work he was doing at Keswick over the subsequent years until his employment was terminated, he was working with a gang of men who had worked together for a very long time. They all knew what they were going to do, without the need to communicate. Those people were all made redundant at the same time as the applicant. He did experience difficulty communicating with new people at Keswick, and believes it would be dangerous for him to try to do the work he undertook at Keswick. As part of that work the steel plates that were used to join the flat tops were thrown to the ground when that process was finished. They would land on each other so that there would be steel banging on steel. If people were below then they had to be warned. He would not hear any warnings. His tinnitus, nausea and blurred vision is now aggravated by exposure to noise and would be significantly aggravated if exposed to the loud noises that occurred at Keswick. His work mates' knowledge of his hearing and related condition, and their long period of time working together reduced the need for communication which would otherwise have been a necessary aspect of the work. This enabled him to keep working there until he was made redundant. He believes now that he is no longer capable of doing the work he did at Keswick. I accept the applicant's evidence.

17. In relation to the questions I am required to address, I consider on the whole of the evidence, that the applicant's condition is an "injury", and not a "disease"; and that the injury, namely an aggravation of an initial injury, "noise induced hearing loss", occurred on 6 May 1987, and I so find. I am satisfied, on the evidence also, that the work in which the applicant was engaged immediately before the injury, was to carry out the full range of duties of a station assistant.

18. Turning to the question of whether the applicant has an incapacity to engage in work at the same level at which he was engaged immediately before the accident; the nature of "incapacity for work" was considered by the High Court in the matter of Arnotts Snack Products Proprietary Limited and Yacob 155 CLR 171. The majority (Mason, Wilson, Deane and Dawson JJ.), observed at 176-8:

"...

Although the expression "incapacity for work" is not defined by the Act, its meaning has been examined by this Court in Williams v. Metropolitan Coal Co. Ltd. (1948) 76 CLR 431 and Thompson v. Armstrong and Royse Pty. Ltd. (1950) 81 CLR 585. In Williams a majority of the Court (Starke, Dixon and McTiernan JJ.) rejected the notion that incapacity for work, especially in s. 11(1) of the Act, is limited to incapacity for work in the employment or in the industry in which the injury arose (at p444, per Starke J.; p449, per Dixon J. with whom McTiernan J. agreed). Both Starke and Dixon JJ. made the point that compensation is awarded for incapacity for work resulting from injury, compensation being awarded by reference to incapacity which results in a loss of earning power. Starke J. said ( at p444):

"Compensation is not payable for the injury but for loss of power to earn caused by the injury, that is, for incapacity for work which results from the injury. The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity in the future is less than it was before the injury."

And Dixon J. observed (at p449):

"It is a commonplace that incapacity is not total if some other employment is reasonably open to the injured man. If he is disabled from his former employment, that in itself implies some incapacity. But s. 11(1) says that in case of partial incapacity, the weekly payment shall in no case exceed the difference between the amount of his average weekly earnings before the injury and the average weekly amount he is earning or able to earn in some suitable employment or business after the injury. That means that his capacity for other work is taken into account and in such a way that it may reduce the compensation to nothing."

Central to these statements especially that of Dixon J. is the view that incapacity for work denotes a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work, though this incapacity may not necessarily attract compensation under s. 11(1) because it results in no loss of earning power.

In Thompson, where the concept of "incapacity for work" in the context of s. 9 of the Act - the principal provision providing for payment of weekly compensation - arose for consideration, the majority of the Court (Latham C.J., McTiernan, Fullagar and Kitto JJ.) decisively rejected the proposition that the receipt post-injury of the same or higher wages than those received pre-injury denied the existence of partial incapacity for work.

...

As Fullagar J. indicated in Thompson, the references in the judgments to an incapacity for work which reduces the employee's ability to sell work for wages on the open market have had as their purpose the rejection of the erroneous view that a worker is not partially incapacitated if he can do all the things that he could do before the injury. ..."

19. In my view the applicant could not engage in work at the same level as immediately before the injury; because that work encompassed a whole range of matters, including the ability to work at Keswick and Islington, and to carry out duties as a "slinger" working on the gantry crane, and dropping the steel flat top plates, in addition to the duties he continued to perform at Keswick subsequent to May 1987. I do not accept Comcare's submission that excluding work around the gantry crane, there was sufficient other work to which the applicant engaged, to find that he had no incapacity for work. The authorities relied upon, in particular Cobern and Metcalf and Comcare (AAT 13581, 23 December 1998), were decided on their own facts; but I consider that on the facts in this matter, and in accordance with the views expressed by the High Court in Arnotts, that the applicant, because of his hearing loss and tinnitus, is left in the position that in the open labour market his earning capacity is less than it was before the injury. The fact that the applicant was able to continue in his employment with the Railways, in an environment away from the gentry cranes and the noise of the steel flat top plates, does not lead me to the conclusion that he was working at the same level at which he was engaged before the injury.

20. I am satisfied on the whole of the evidence, and find as a fact, that as and from 1 November 1997 the applicant has a partial incapacity for work, and is entitled to incapacity payments, less any earnings since 1 November 1997.

21. For these reasons the Tribunal sets aside the reviewable decision of 9 March 2000, and substitutes a decision that since 1 November 1997 the applicant has continued to be partially incapacitated for work, and is entitled to ongoing payments in respect of that partial incapacity, and remits the matter to Comcare for assessment of the appropriate level of compensation payable to the applicant. The respondent will pay the applicant's costs of this proceeding, as agreed between the parties, or in default of agreement, as taxed by the Registrar of the Tribunal.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed: .......................................................................................

Associate

Date of Hearing 29 November 2002

Date of Decision 23 September 2003

Counsel for the Applicant Mr S Cole

Solicitor for the Applicant Johnston Withers

Counsel for the Respondent Mr T McRae

Solicitor for the Respondent Sparke Helmore