PARTIES: ROBERT KNIGHT
v
NORMANDY MINING LIMITED
TITLE OF COURT: WORK HEALTH COURT
JURISDICTION: Work Health Act
FILE NO(s): 9822910
DELIVERED ON: 12 January 2000
#DATE 12:1:2000
DELIVERED AT: Darwin
HEARING DATE(s): 21- 24 June, 19 October 1999
JUDGMENT OF: Mr Hugh BRADLEY CM
WORKERS COMPENSATION -- WORK HEALTH --
PARTIAL INCAPACITY -- COUNTER CLAIM
Work Health Act 1986 (NT) s 65, s 68, s 69, 57 A and 75 B
Disability Services of Australia v Regan (Mitchen J. unreported 31 July
1998) referred to
Fazlie v Milinginby Community Inc. (1982) 150 CLR 345 at 353-4 referred
to
Ansett Australia v Nieuwmans (1999) NTSC 138 at [16] referred to
Counsel:
Plaintiff: J. Tippett
Defendant: S. Southwood
Solicitors:
Plaintiff: Morgan Buckley
Defendant: Cridlands
Judgment category classification: C
Judgment ID number: NTMC 20002
Number of paragraphs: 47
IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 9822910
BETWEEN:
ROBERT KNIGHT
Worker
AND:
NORMANDY MINING LIMITED
Employer
(Delivered 12 January 2000)
Mr H BRADLEY SM:
Background
1. This is a work health claim brought by Robert Knight (the Worker) against
Normandy Mining Limited (Normandy) following the contraction of dermatitis by
the worker during his period of employment with Normandy. The worker, a fit
and healthy individual at the time of hearing, was initially employed by Astec
Mining and/or Nicron Rescourses in 1994. The initial terms of his employment
are set out in Exhibit W9. The employment was in a mine generally referred to
as Woodcutters Mine. It appears that the mine was later taken over by Normandy
who are the relevant employer and respondent to this application.
2. The worker was initially employed as a truck driver above and below ground,
and after a time, as a loader/operator. In the course of his employment he was
engaged underground driving loaders, trucks and excavator/rock breakers.
Conditions underground where he worked were hot, humid, dusty and dirty. He
worked long hours and was paid under a complicated scale of hourly rates and
bonuses.
3. During the period of his employment the worker contracted dermatitis, and,
after several attempts to clear this up, he was advised against continuing
underground work. He made a number of claims for work health benefits and
these claims were accepted by the employer Normandy, and he was paid for
several periods off work. On the evidence before me I am unable to precisely
define what those periods were, or the amounts paid by way of compensation.
Counsel assure me that the only relevant period for the claim is from the date
of cessation of payments.
4. It seems that the worker was last employed underground, in or about November
1997. In December of that year he was transferred to work above ground with
Brambles Haulage (Brambles), although he was still paid by Normandy. The
worker continued to work for Brambles until 8 August 1998 when he was suspended
for having tested positive to the drug cannabis. During this period of
employment with Brambles, he underwent necessary training and testing to obtain
his C5 or MC licence, which entitled him to drive prime movers with multiple
trailers. He was adjudged, and it is accepted by all parties, to be a
competent and efficient truck driver.
5. On 5 September 1998 the worker was served with a Form 5 notice on behalf of
Normandy and he never returned to work for Brambles or Normandy after that
date. He has, since that time, worked for short periods only and been paid at
various rates of pay, not always known to him.
6. The form 5 (exhibit w14) which cancelled payments altogether set out the
following grounds for the decision: 2. Your employment did not materially contribute to the injury in that your
employment was not the real, proximate or effective cause of any injury which
you may have suffered.
3. Any injury that you suffered, which is denied, no longer contributes to
incapacity or impairment.
4. Any injury you suffered has resolved and no longer contributes to
incapacity or impairment.
5. Any incapacity or impairment that you may suffer (which is not admitted)
is not the result of the injury.
6. Any incapacity or impairment you suffer (which is not admitted) has not
been materially contributed to by the injury.
7. You suffer no loss of earning capacity and that you are able to earn an
amount equal to or greater than your normal weekly earning (as indexed).
8. Pursuant to section 75B of the Work Health Act you have unreasonably
failed to participate in a workplace based return to work program which could
enable you to undertake more profitable employment:
* On the 31 August 1998, while employed as a driver in a return to work
program with Brambles, a random drug test was carried out by Union Reef Gold
mine, which revealed that you had 193ug/l in your blood in breach of company
policy.
* Brambles do not allow employees back onto the mine site until a zero
reading is reached and proven by a medical practitioner.
* By driving under the influence of drugs you acted in an irresponsible
manner and in breach of company policy.
* By driving under the influence of drugs you put both yourself and other
road users and employees at risk.
9. You are capable or undertaking employment in numerous other fields of
employment and you are able to earn an amount equivalent to or greater than
your normal weekly earnings as indexed".
7. The worker claims entitlement to a resumption of payments
from the date of cessation, namely on 9 October 1998.
8. The pleadings disclose that the Worker's case is essentially an appeal
against the cessation of weekly payments, based on the Form 5 notice served
pursuant to s 69. Normany however have maintained no injury was sustained and
on 10 June 1999 with the consent of the Worker filed a counterclaim to raise
the issue of whether or not the Worker is totally or partially incapacitated as
a result of any injury sustained in the course of his employment. A
counterclaim previously required the consent of a Worker or the commencement of
a new proceeding, however the new rules which commenced 1 October 1999 allow
the procedure in any event. The filing of the counterclaim effectively means
that the employer has taken advantage of his right to seek to justify the Form
5 notice and to separately apply for the cessation or reduction of weekly
payment as it is entitled to under s 104.
The Issues
9. The issues which appear from the Form 5, Pleadings and submissions of
counsel are:- 9.2 What was the nature and extent of any injury so caused?
9.3 Did the Worker fail to participate in a workplace based return to work
program?
9.4 Is the Worker continuing to suffer any incapacity as a result of such
injury?
9.5 Does any incapacity so suffered result in a loss of earning capacity and
if sho what is such loss?
10. It is fairly settled law that, as His Honour Mr Justice
Mildren said in Disability Services of Australia v Beverley Regan
(unreported 31 July 1998): 11. An employer's application under s 104 or by way of
counterclaim has not to my knowledge been considered by a superior court in
conjunction with an appeal under s 69. Likewise it seems the Supreme Court has
not considered the effect of s 69 (2) (a). The question may therefore arise as
to whether an Employer who has failed to establish the grounds of a Form 5
Notice is otherwise entitled to an order ceasing or reducing payment from a
date earlier than the date of the order (ie can an order reducing entitlements
in such circumstances be backdated to the date of the counterclaim or even the
date of cessation pursuant to the Form 5).
Injury at work - Causation and Nature of Dermatitis
12. The uncontradicted evidence is that until the worker was employed at
Woodcutters he had no physical ailments, and in particular, no sign of
dermatitis. The first mention of dermatitis appears in the evidence to be when
he visited Dr Tracy for an annual medical review on 19 May 1995, approximately
13 months after the commencement of his employment. The Doctor then identified
that there were signs of dermatitis on the worker's feet and legs. Although
there was no similar finding at the annual medical review on 16 May 1996 (at
least the Doctor has no note of it in his file notes), it appears that shortly
thereafter on 2 July 1996 the worker came to see Dr Tracy regarding problems
with his skin. The Doctor noted that he had a rash mainly on his feet, but
also it appears his arms and buttocks were affected. It was further noted by
the Doctor that the Worker was then employed underground at Woodcutters Mine.
The Doctor then gave the first of a series of certificates for periods of
incapacity and light work, see Exhibit W17.
13. All the medical evidence supports the conclusion that the worker suffers
from dermatitis; there are, however, some doubts expressed by all Doctors as to
whether the dermatitis had an irritant or allergic aetiology. Also on the
evidence, it seems that either process of causation can lead to ongoing
problems. In the case of an allergic reaction, it is possible to lead to
chronic and ongoing dermatitis. Where an irritant is the cause of the
dermatitis, it is possible that although the original irritant is removed,
ongoing dermatitis can be suffered with lessor or other irritants which would
not have originally caused dermatitis prior to the condition being suffered.
14. I find that on the consensus of medical evidence that the worker suffered
from dermatitis and that this was caused by his working underground at the
Woodcutters Mine.
15. All medical evidence suggests that eczema or dermatitis (the words are
interchangeable) is a condition in relation to which issues of causation and
treatment are difficult to define precisely. It seems that people can react to
particular chemicals, or products, or environments; people with excessive
hyper-hydrosis (excessive sweating) are more likely to get dermatitis than
others; contact with different products has different effects on different
people. Some irritants may cause dermatitis in a relatively large proportion
of the population, whereas allergic contact is more likely to be idiosyncratic.
Patch testing by both specialists were unable to identify a particular irritant
applicable to the worker.
16. Once dermatitis is contracted, then its course is difficult to predict. It
can have periods of both expression and regression and it may disappear
entirely.
17. It also seems that an individual's susceptibility to suffer from such a
condition is difficult and complex to work out. Some people are simply not
able to come into contact with certain products or conditions. It seems in
this case that the worker was simply not suited to working long term in an
underground environment and I find that it was this environment ie his work
place that caused him to suffer from dermatitis. I note in this regard that Dr
Julie Wesley indicated that heat and humidity can aggravate the condition.
Present Condition - Incapacity
18. All of the medical evidence suggests that the worker's ongoing problems are
slight and almost non-existent if he stays above ground. The worker agrees
with this assessment, saying that he can undertake employment as a truck driver
above ground, and that although he suffers minor inconvenience from time to
time, this should not stop him from pursuing his expressed ambition to drive
trucks and ultimately to conduct his own trucking business.
19. It is clear that the worker is no longer totally incapacitated, rather the
question is whether or not he is partially incapacitated as a result of his
employment at Woodcutters Mine. He is, and I so find, not fit to return to
underground employment, but is fit to return to any above ground employment.
It seems that he has had no incapacitating dermatitis since the period of two
weeks in or about August 1998. At the hearing, and upon inspection of the
worker's feet by counsel, the worker agreed in cross-examination that there was
no sign of the dermatitis present at the time. He felt however a continuing
susceptibility to the condition and he still prefers to go about his day
barefoot or in thongs. This view is supported by the medical evidence and I
find that there is some residual propensity for the worker to suffer from
dermatitis - it is something that he will need to take care to avoid for the
balance of his working life. I therefore find that there is some incapacity in
the worker which did not exist prior to his employment with Normandy.
20. On one argument, because of the worker's natural susceptibility to
underground conditions, he was never suited to working underground, and the
question thus arises whether or not, as a result of his condition preventing
him from returning underground, he has been incapacitated for work in any way
as a result of his employment at Woodcutters. In the event this issue does not
need to be decided because, as I have indicated above my finding of partial
incapacity is based not only on the fact that he cannot return to work
underground, but also because he now has a susceptibility to dermatitis; a
condition which he did not suffer from prior to his employment in the mine.
Compliance with Return to Work Program
21. The Work Health Act requires employers and workers to co-operate to
get a worker back into employment, in particular, s 75 A and B of the Work
Health Act relevantly provide: (1) An employer liable under this Part to compensate an injured worker shall-
(a) take all reasonable steps to provide the injured worker with suitable
employment; and
(b) so far as is practicable, participate in efforts to retrain the worker.
Penalty: In the case of a body corporate - $3,000.
In the case of a natural person - $1000 or imprisonment for 3 months.
Default penalty: In the case of a body corporate -$500.
In the case of a natural person - $50.
(2) An employer liable under this Part to compensate an injured worker must
refer the worker to an alternative employer incentive scheme developed by the
Authority where -
(a) the employer is unable to provide the worker with suitable employment
under subsection (1); and
(b) the worker is a long term incapacitated worker.
(3) In subsection (2), "long term incapacitated worker" means a worker who
is being paid compensation under section 65.
75B. WORKER TO UNDERTAKE REASONABLE TREATMENT AND TRAINING, OR ASSESSMENT
(1) Where compensation is payable under Subdivision B of Division 3 to a
worker, the worker shall undertake, at the expense of the worker's employer,
reasonable medical, surgical and rehabilitation treatment or participate in
rehabilitation training or, as appropriate, in workplace based return to work
programs, or as required by his or her employer, present himself or herself at
reasonable intervals to a person for assessment of his or her employment
prospects.
(2) Where a worker unreasonably fails to undertake medical, surgical and
rehabilitation treatment or to participate in rehabilitation training or a
workplace based return to work program which could enable him or her to
undertake more profitable employment, he or she shall be deemed to be able to
undertake such employment and his or her compensation under Subdivision B of
Division 3 may, subject to section 69, be reduced or cancelled accordingly.
(3) Where a worker so required under subsection (1) unreasonably refuses to
present himself or herself for assessment of his or her employment prospects,
he or she shall be deemed to be able to undertake the most profitable
employment that would be reasonably possible for a willing worker with his or
her experience and skill and who has sustained a similar injury and is in
similar circumstances, having regard to the matters referred to in section 68,
and his or her compensation under Subdivision B of Division 3 may, subject to
section 69, be reduced or cancelled accordingly."
22. The worker was assigned to a work place based return to
work program within the meaning of those sections, when he was assigned to
Brambles in December 1997. The worker voluntarily participated in that
employment until he was suspended because, on 1 August 1998 when tested
randomly at Union Reefs Mine for the presence of drugs and/or alcohol he tested
positive for cannabinoids.
23. The suspension of the worker took place on 8 August 1998 in circumstances
where the worker was required to attend at the Woodcutters Mine before senior
employees of Normandy. He was advised of his positive testing to the
cannaboid, cautioned and suspended from his employment without pay. There is
some difference as to whether the records of that counselling were written out
before, during or after that conference (it probably does not matter). The
records contained an expression of an intent on the part of the employer to
review the worker's employment after he was able to establish that his body was
free of cannabinoids. In fact the record (Exhibit E7) states in part: Improvement required: Robert must (at his own expense) supply the
company with a negative test result.
Time/frame for performance improvement and date of performance
review: Improvement must be immediate. Review to take place when Robert
produces a negative test result.
Consequences to failure to improve performance : A final warning will
be issued. If substance abuse happens again, dismissal may occur.
Additional Comments (if any) : Robert will be stood down from his
employment with no pay until he produces a negative test result."
24. There is some dispute as to the policy under which this
action was taken. The record of the counselling and the worker's recollection
is that the period of suspension was imposed pursuant to Normandy Mines own
drug/alcohol policy, whereas Mr Croke (a Normandy manager) indicated that this
was an error and it was really in accordance with the requirements of the
"Mine's Safety Regulations" - I presume he intended to refer to Reg 8 (1) of
the Mine Management Regulations 1992 (NT) which reads as follows: (1) Subject to this regulation, an employee shall not -
(a) attend work at a mine if the employee is under the influence of
intoxicating liquor or a drug; or
(b) be in possession of intoxicating liquor or a drug at a mine."
25. Whatever the basis of suspension, it was imposed on the
worker and the worker, at least for the purposes of these proceedings, appears
to have accepted the period of suspension. The matter did not rest there.
During the period of suspension (ie before Mr Knight was reasonably able to
produce a negative reading to cannabinoids) he received a Form 5 notice
(Exhibit W14) which was served on him on behalf of Normandy. Weekly payments
to him under the Work Health Act were thereby ceased and no further
contact was made with him by the employer, even after he had provided them with
a certificate of his being clear of cannabis. The employer argues that the
smoking of cannabis and the knowledge that it remained in the body for some
time, constituted a breach of trust imposed on the worker, by disabling him
from continuing to undertake the return to work program. On this basis the
employer argues that the worker was in breach of s 75B and the employer was
thus entitled to serve him with the Form 5 notice and cease payment of
compensation.
26. On the evidence, however, I cannot be satisfied that the worker positively
knew there would be cannabis in his body at the time he drove to the Union Reef
Mine, although I am satisfied that he knew it was possible. He also knew that
it was likely that he would be driving to Union Reef on that day and that that
company was one which periodically tested for drugs and alcohol. The reading
obtained on the random test of 193 milligrams per litre, whilst almost four
times the minimum discernible level, is not necessarily a level that is likely
to affect the worker's capacity to carry out employment; indeed, there is
absolutely no evidence of whether or not this level of cannabis in the body is
likely to affect behaviour at all. I therefore prefer, for the purposes of
these proceedings, to accept the worker's evidence that he was unaffected by
the cannabis at the time he undertook his duties on 1 August 1998. In other
words he was not "under the influence" within the meaning of Reg 8 above.
27. On the evidence the drug and alcohol policies of Brambles and Normandy
which were in draft form at the relevant time appear to have as their intent to
provide for temporary suspension on the first occasion that an employee was in
breach of the guidelines. In other words it was not intended by the policies
that a person's employment should be permanently terminated.
28. In the above circumstances I am satisfied that if the worker had not been
on compensation at the time, he would not, by virtue of his misdemeanour, have
lost his employment permanently; indeed his fellow employee at Brambles who had
also tested positive to cannabanoids resumed work immediately after obtaining a
negative certificate.
29. Where then does the responsibility lie in relation to a person in receipt
of work health weekly payments? The worker in this case was clearly interested
in continuing his employment with Brambles or Normandy, provided he did not
have to work underground. His misconduct was not of a kind that would normally
prevent him from continuing in ordinary employment, and, given the purpose and
intent of the legislation, should therefore not permanently prevent him from
obtaining benefits under the Work Health Act. For these reasons I do
not accept that the worker's testing positive to cannabis amounts to a failure
to "participate in rehabilitation training or a workplace based return to work
program". This basis for the notice under s 69 must therefore fail.
Loss of Earning Capacity
30. The next question is whether or not the Worker is suffering from any, and
if so what, loss of earning capacity. The relevant sections for the purpose of
this case are s 65 and s 68 of the Act. s 65 (2) provides that loss of earning
capacity is the difference between "normal weekly earnings" (NWE) and the
amount which the Worker is capable of earning if he or she were to engage in
the most profitable employment that is reasonably available (MPE)
31. The parties have attempted to make this calculation easier by agreeing that
NWE were as at October 1998 (date upon which payments ceased) $1224.
Unfortunately, if I am right about the date of this agreement, this makes
on-going calculations somewhat difficult because s 65 (3) provides for the
indexing of NWE by reference to calculation based on NWE "immediately before
the date on which he or she first became entitled to compensation". In this
case the fourth claim for compensation which is the one accepted by the parties
as being relevant to this claim was made in October 1997. The agreement of NWE
as at October 1998 therefore could lead to future inaccuracies in the
mathematical calculations. For the purposes of clarity therefore for any
future entitlement to compensation it is necessary to recalculate NWE as at the
date of the Worker's first entitlement. Using the average weekly earnings
figures published by the Work Health Authority for the 1998 year I so calculate
NWE as at October 1997 to be the sum of $1169.70. This produces an indexed NWE
of $1224 for 1998, which is the figure agreed by the parties. Using this
calculation the NWE for 1999 during which year this claim was heard by the
Court is $1279.18. The amount of average weekly earnings for the year 2000
will need to be recalculated after Work Health Authority publishes the relevant
average weekly earning figures for that year.
32. If I am wrong as to the date as to which NWE was agreed then the matter can
be brought back to court and simple mathematical adjustments made.
33. The Worker's evidence on present earning capacity was to the effect that in
1999 when he worked he could earn the sum of approximately $500 per week. His
employment during the relevant periods had been spasmodic.
34. He had purchased a truck in 1997 with, he says the long term aim of fully
employing himself. This truck is almost always driven by an employed driver.
In the event it appears that he has only worked casually since he ceased work
with Brambles. This casual work has been both in his own truck and for friends
or acquaintances in the industry. Sometimes he was paid and other times he was
paid nothing. Sometimes he was paid $10 per hour net and other times on a
wage. It seems that despite a reasonable background in business and management
in his previous employment, he has chosen not to employ himself full-time
operating his own truck. He does not give evidence of anything other than a
casual effort to find other relevant employment in the truck driving industry.
He has not kept an accurate record of earning to enable appropriate adjustments
with the Employer. He concedes in cross examination that there is nothing to
stop him driving his own truck all the time; that he generally gets 20-30 hours
work each week for his truck from Ascott Haulage; that there are other such
companies which could give him additional hours per week, but that he had not
really looked into it. The result, it seems to me of this careless management
of resources (both himself and the truck), is that he says his business does
not show a profit.
35. Throughout his evidence I gained the impression that he had not done all
that was reasonable to find the most profitable employment available to him.
He has made no effort to find work outside Darwin or above ground in the mining
industry. On the evidence and law these avenues of work should be regarded as
available to him. I wonder in the circumstances whether he has simply let
matters drift in the belief that this claim would bring substantial economic
reward.
36. The evidence put forward by the employer to substantiate the grounds 7
and/or 9 the Form 5 (they are substantially the same) consists of: 36.2 Mr Craig Croke an employee of Normandy since 1994 who now managed
Employee and safety issues at the Granites Gold Mine said that Normandy now
tended to engage contractors to carry out trucking work on their mines. Such
contractors include Roach Bros, Henry & Walker, Baulkhaul and Boral. The
later being plant operators. Work was available with these companies both
above and below ground. The granites mine was an open cut mine.
36.3 Ms Geina Scally a rehabilitation consultant, worked with Mr Knight to
assist him to find his way back into the workforce. She said Mr Knight's main
goal was to work in the trucking industry. It seems that his best option was
to start a small business with his own truck and that she was of the opion that
it was up to Mr Knight to do something towards this end. No evidence was
available from this or any other witness at to what Mr Knight could expect to
earn from operating his own truck. The figures provided to the court relating
to the income of the business operated under the present regime are
unsatisfactory for this purpose. I am therefore unable to assume that he would
earn more or less from that employment than he might earn as an employed driver
ie; approx $15 per hour in the Darwin region.
36.4 Mr John Mizzen the managing Director of A1 Employment Services gave
evidence of his extensive contact with the mining industry. He gave
uncontradicted evidence that the rates paid vary from mine site to mine site
and depended on such issues as to whether there was an award or private
agreement in force. He indicated that pay rates varied between $14-17 per hour
basic rate and 60-72 hours per week were common made up of 6 x 10 hour days or
6 x 12 hour days. I note that this pattern of work is similar to the hours
worked by Mr Knight during the period he was employed at Woodcutters. It is
thus reasonable for the court to calculate his MPE based on the usual hours of
work in the industry. s 68(b) and s 68(g) support such an approach in fairness
to the parties. Mr Mizzen said that generally the first 2-3 hours after each 8
hours day was paid at 1.5 times of the hour rate and thereafter at double the
hourly rate. Public Holidays were paid at 2.5 times the usual hourly rate. Mr
Mizzen said he had recent contact with Woodcutters, Nabalco, Mt Todd and Union
Reef mines and that truck drivers were employed at each of these sites and were
required from time to time. He had no recent contact with the Granites Mine.
Under cross examination Mr Mizzen said underground drivers generally got $1.50
more per hour than those employed on the surface. Contractor rates he said
were sometimes higher but that he had not really been involved with those
companies.
37. On the employers case therefore the opportunities available
for Mr Knight included operating his own truck for 20-30 hours per week; he
could be reasonably be expected to increase the work available for that truck
if he made an effort which he has to date not bothered with. Secondly he could
make application to local trucking companies for positions that become
available from time to time. Thirdly he could seek work in the mining
industry.
38. On the basis of the evidence and my findings therefore it seems that if he
were employed; 38.2 with Brambles or another haulage company in the Darwin region he could
earn between $53-67 000. No doubt the average annual earnings fluctuate as
indicated by Mr Kelly's evidence. Given the workers levels of competency and
skill I think it not unreasonable to find that he could earn $58 000 ÷ 52
= $1115 per week.
38.3 in the mining industry he could earn a wide range of income depending
on the hours worked (60 - 72) and the rate of pay ($14 - 17). In addition he
would receive small additional amounts for things such as public holidays and
district allowance. Given that the worker had been accustomed to 10 hour
shifts I think it reasonable to adopt the lesser number of weekly hours and an
hourly rate of $16. He could therefore be expected to earn:
60 x $16 = $640 20 x $16 x 1.5 = $480 $
1120 per week
39. In reaching the above I have necessarily made adjustments
and compromises to take into account the imprecise nature of the evidence. It
is clear the possibilities vary above and below these estimates.
40. As I have said there was no evidence from the worker to say that he had
applied for any such jobs or that they were not reasonably available to him.
Given all of the above, I find that there is employment reasonably available to
the worker in each of these areas. No doubt a job in any particular area may
not be available on any particular day, but generally given the workers
intelligence, business background, qualifications and skills, I would expect
him to find employment within one or more of these areas within 3 months. He
could then seek to better his position as opportunities presented themselves.
Given that there would be an initial period of assessment of his abilities and
most profitable employment opportunities following the service of the Form 5 I
believe a reasonable time should be allowed to permit the worker to find his
most profitable employment. I therefore find, on the evidence before me, that
from the date the cessation of payments, namely 9/10/98 to 31/12/98 the worker
was reasonably capable of earning $500 per week being the amount he concedes he
was able to earn in the various forms of employment he has undertaken to date.
From 1/1/99 I find he is reasonably capable of earning the sum of $1100 per
week, which is I believe a fair figure to take given the various opportunities
the evidence says are available to him. When one deducts this from the indexed
NWE for 1998 & 1999 the loss of earning capacity is $724 and $179.18 per
week respectively. 75% of these amounts in accordance with s 65(1) is
therefore $543 and $134.39. Whether or not that loss of earning capacity
continues to be relevant will depend upon he opportunities available to the
worker in the future and the continuing obligations of the employer under s 75
A of the Act.
41. I note that Mr Mizzen said that generally the difference in rates between
above ground and below ground employees in the mining industry was in the order
of $1.50 per hour (ie: $60 per week for a 40 hour week or $90 per week for a 60
hour week.) Thus I am somewhat fortified that the figure I have reached by
alternative means, represents a fair and proper assessment of this workers loss
of earning capacity since what he has essentially lost is the capacity to work
underground.
42. It is evident that the employer has not been able to make any of the
grounds of it's Form 5 for the cessation of weekly payments. The question
raised in paragraph [11] therefore needs to be answered. Had there been no
counterclaim then Normandy may (subject to an interpretation of the
applicability of s69 (2) (d) ) have been required to pay compensation at the
full rate until the present time.
43. The counterclaim was filed on 10 June 1999 and clearly seeks orders as to
the appropriate amount of compensation if the worker is found to be partially
incapacitated. The counterclaim seeks that ruling in respect of the whole
period of incapacity. The options obviously available for consideration are:
43.1 Order the employer to pay full compensation (ie 75% of NWE) from the date
of cessation to the date of this determination and thereafter at the reduced
rate evident from the findings made above.
43.2 Order the employer to pay full compensation from the date of cessation to
the date of filing the counterclaim and thereafter at the reduced rate.
43.3 Order the employer to pay at the reduced rates from the date of cessation
based on the findings of this court.
44. The work health act is designed to properly compensate injured workers, not
enrich or support them when they choose not to work. The act clearly intends
to compensate them on the basis of what they could earn in the most profitable
employment reasonably available to them. Thus it could be said there is an
underlying assumption that there is an obligation on the worker to seek such
employment. See for example Fazlie v Milinginby Community Inc (1982)
150CLR 345 at 353-4 and Ansett Australia v Nieuwmans (1999) NTSC 138 at
[16]. For this reason it seems proper to me that wherever an employer properly
raises past earning capacity by way of a counter claim he is entitled to an
order which has the effect of giving justice to the parties according to the
tenor of the Act.
45. As I have said the employer, in Form 5, relied on the fact that the worker
is capable of work and of earning an amount equal to or greater than his NWE.
In the event this ground has not been able to be made out but the employer has
been able to show that Mr Knight has a considerable earning capacity. It might
be said that an ability to back date orders adjusting compensation entitlements
will encourage employers to abuse the process by simply asserting such a
capacity to earn and then doing what they can at hearing to reduce the amount
which they may feel they are obliged to pay in any event. I note that the Act
provides for protection of workers in cases of need by way of interim benefits
and in cases of abuse of process by way of interest and punitive damages.
Likewise the interests of the employer need to be considered. It would seem to
me to be an absurd result in this case if the employer would have been required
to pay approximately $900 per week for the duration of the designated period
when the workers proper and lawful entitlement under s 65, was a much smaller
amount.
46. In the event I find that the worker is entitled to be paid the following
amounts: 46.2 In respect to the period 1/1/99 to date and until varied in accordance
with the act a sum of $134.39 per week.
47. Prior to granting or settling a final form of award I will
hear the parties as to; 47.2 Costs
47.3 Any adjustment that may need to made in regard to the finding as to NWE
Dated this 12th day of January 2000.
HUGH BRADLEY
CHIEF MAGISTRATE
1. "You did not suffer an injury out of or in the course of your
employment at Woodcutters Mine.
9.1 Did the Worker suffer an injury in the course of his employment
with Normandy?
"Had the worker merely appealed under s 69, the only question would
have been whether the employer had established the grounds stated in the
notice, the burden of proof in so doing resting with the employer. If the
employer failed to establish these grounds, the effect of allowing the appeal
would be that the employer would be required by force of s 69 to continue to
make weekly payments of compensation until the employer was lawfully permitted
to cease or reduce those payments, either by giving a fresh notice or by making
a substantive application under s 104. No question would have arisen as to
whether or not, after the date of the notice, the worker had ceased to be
incapacitated or was only partially incapacitated. An appeal under s 69 calls
into question only whether there has been a change in circumstances justifying
the action unilaterally taken by the employer at the time the notice was given
: see Morrissey v Conaust Ltd (1991) 1 NTLR 183 at 189; AAT Kings
Tours Pty Ltd v Hughes (1994) 4 NTLR 185 at 189."
"75A. EMPLOYER TO ASSIST INJURED WORKER TO FIND SUITABLE EMPLOYMENT
"Observed Breach of Company Policy or instruction: Tested
positive for cannibinoids while working with Brambles at Union Reef Gold Mines.
In contravention of Normandy Group Substance abuse policy.
"8. LIQUOR AND DRUGS
36.1 Mr Ken Kelly the manager of Brambles gave evidence as to the
efficient and competent way in which the worker carried out his duties as a
truck driver. He had arranged for Mr Knight's licence to be upgraded to enable
him to drive a road train. He stated that be observed the worker with boots in
the course of his employment. He told the court that the worker was competent
to be a grade 9 driver; that such positions came available from time to time
and that these drivers (with overtime) earn between $53-$67,000 pa. In cross
examination it was agreed that Brambles now has 3 such drivers employed; but
there were no positions immediately available in Darwin and that the average
income of drivers for 1998/9 year were likely to be in the range of $52-$60,000
pa in lieu of a range of $55-$67,000 pa in 1997/8.
38.1 in his own business he could expect to earn at least $15 per
hour being the amount he pays his own driver. If it were to increase the hours
of work as he concedes is possible then it is at least possible that he could
work 60 hours per week which seems on the evidence to be customary in the
industry. One might expect an owner/driver to achieve better than mere wages,
however as I have pointed out there is no evidence of this. The most
profitable outcome on this scenario would therefore seem to be 60 hours x $15 =
$900 per week.
46.1 In respect to the period 9/10/98 - 31/12/98 a sum of $543 per
week
47.1 Interest