PARTIES: DENISE TANNER
v
ANTHAPPI PTY LTD
(formerly known as Normandy Gold Pty Ltd)
(ACN 007511006)
TITLE OF COURT: Work Health Court
JURISDICTION: Work Health Act
FILE NO(s): 9818294
DELIVERED ON: 21 January 2000
#DATE 21:1:2000
DELIVERED AT: Darwin
HEARING DATE(s): 1 November 1999 - 4 November 1999
JUDGMENT OF: Mr Daynor Trigg
Workers Compensation - Work Health - Return to Work - Unreasonable Refusal
Work Health Act: ss 69 (1), 69 (2), 75B (2) Words & phrases: "could",
"unreasonably refuses". Collins Radio Construction Inc. v Day (1998)143
FLR 425, followed.
Disability Services of Central Australia v Regan NT Court of Appeal
31.7.98, followed.
Fazlic v Milingimbi Community Inc (1982) 38 ALR 424, followed.
Ansett Australia v Nieuwmans NT Court of Appeal 9.12.99, followed.
Workcover Corporation (Plas-Tec Pty Ltd) v Grigor (1994) 62 SASR 283,
referred to.
R.J. Brodie (Holdings) Pty Ltd v Pennell (1968) 117 CLR 665, referred
to.
Workers Rehabilitation and Compensation Corporation v James (1991) 56
SASR 414, and (1992) 57 SASR 365, referred to.
Counsel:
Worker: Mr Grant
Employer: Mr Bryant
Solicitors:
Worker: Hunt & Hunt
Employer: Cridlands
Judgment category classification: C
Judgment ID number: NTMC 20004
Number of paragraphs: 125
IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 9818294
BETWEEN:
DENISE TANNER
Worker
AND:
ANTHAPPI PTY LTD
formerly known as Normandy Gold Pty Ltd (ACN 007511006)
Employer
(Delivered 21 January 2000)
Mr TRIGG SM:
1. This matter commenced on 1st September 1998 when the worker filed
an application in this court by way of an appeal from the employer's decision
to cancel her weekly payments of compensation.
HISTORY
2. The worker did not give direct evidence as to her date of birth, but her
date of birth is consistently recorded as 14th October 1955 in
exhibit R3 (the initial rehabilitation report), exhibit R19 (report of Dr
Stevenson dated 11 February 1999), exhibit W9 (the CRS report by Lynette Pullen
dated 22 January 1999) and exhibit W8 (the CRS report by Terri Ahrens dated 8
February 1999). The worker was educated in England and left school at the age
of 16 years. Since leaving school she has commenced other training courses
including beauty therapist course (incomplete), computer and bookkeeping course
(incomplete) and a 10-week course in respite for children with disabilities
(completed) - as noted in exhibit W9. In addition according to the
occupational history obtained by Dr Sillcock (exhibit W10) 3. The worker immigrated to Australia approximately eleven
years ago. She has two children, a son aged 19 who has left home and a
daughter aged 14 who lives with her ex-husband in the United States.
4. The worker's ex-husband (Eddie Tanner) was employed at Warrego as a plumber.
Warrego was a copper and gold mine situated about 50 kms from Tennant Creek.
It comprised a small mining township of about 40 houses and a club. The mine
was operated by the employer herein.
5. In addition to the Warrego mine the employer operated (either itself or
through associated companies) other mines in the Northern Territory, at
Woodcutters and also at the Granites.
6. The worker moved to the Tennant Creek area with her ex-husband. On or about
27 June 1996 the worker was offered employment on a casual basis in the office
of the employer at Warrego. This employment commenced on 19 June 1996 and she
was paid at a rate of $16.32 per working hour (see exhibit R17). The worker
accepted the terms and conditions of this offer of employment by signing the
bottom of exhibit R17.
7. On or about 11 July 1996 the worker was offered and commenced employment as
a sample preparer at Warrego at a rate of $13.60 per working hour payable on a
fortnightly basis (see exhibit R18). The worker accepted the offer of
employment on 16 July 1996 by signing exhibit R18. This employment required
her to work 12 hours a day for four days followed by two days off. She would
then work 12 hours a night for four nights followed by two days off. This cycle
would then be repeated. She was therefore working over a six day cycle rather
than a weekly one.
8. The area where the worker was employed had two areas, one was for sample
preparation and the other was known as the "wet chem" area where the samples
were tested. As a sample preparer the worker would take rocks and place them
in a crusher which would break them down into smaller pieces. She would then
take these pieces and put them in a pulveriser which would reduce the samples
into a powder form which would then be passed on to the "wet chem" area. On 24
July 1996 (about 2 weeks into her probationary period) the worker was engaged
in her occupation as a sample preparer. In the course of her duties she was
placing samples into a metal bowl (which weighed approximately 28 kg) and had
to lift these on to a bench. She performed this function about 80-100 times on
this particular day. Usually someone else did this lifting but on this
particular day her boss had told her that she had to do it and if she didn't do
it her job was threatened. That night she had numbness, burning and tingling,
pins and needles in both hands. Her problems were initially in both hands with
the right hand being worse. The worker is right handed. She finished her
4-day shift on this occasion.
9. When the worker was back in Tennant Creek on her two days off she saw Dr
Tonga. He provided a provisional diagnosis of carpal tunnel syndrome (see
exhibit R3).
10. On 29 July 1996 the worker returned to work to commence her next shift.
She returned to normal duties but after a few days had to start using hand
braces (or splints) because of her difficulties. The worker persevered but
eventually went back to see Dr Tonga who referred her to Dr Jones. Dr Jones
put the worker off work on 3 September 1996 (exhibit R4).
11. The employer had a policy to get injured workers back into the workforce as
soon as possible. In cases where a worker was unable to return to the original
work then the employer would try to return them to another full-time employment
role.
12. On 18 September 1996 the worker was referred to Dr Burrow (Neurologist) in
Darwin) for nerve conduction tests (exhibit R3). In the initial rehabilitation
report (exhibit R3) it was noted that the worker was to undergo surgery on 10
October 1996. (This surgery did not go ahead on this date). It was further
noted that: 13. Due to the delay in the operation proceeding the worker did
some light duties of a couple of hours a day for a couple of days per week in
the office of the employer ticking items off invoices and other light tasks.
Her hands continued to be bound up in splints while performing these tasks. In
about January 1997 she moved to the "wet chem" area working about the same
hours but entering data into a computer and generally helping in the office
area of the "wet chem" area.
14. On 2 April 1997 decompressive surgery of the right wrist was undertaken by
Dr Jones in Tennant Creek hospital (see exhibit R4).
15. On 14 May 1997 the worker was referred to NT Rehabilitation Service by her
employer for rehabilitation assessment, assistance in management of disability,
and recommendations regarding return to work. In her report (exhibit R4) dated
3 June 1997 Ms Garton (Occupational Therapist) noted that 16. Further in exhibit R4 Ms Garton noted 17. In a facsimile transmission to the employer's insurer from
Ms Garton dated 24 June 1997, she noted that She recommended that the worker fly to Adelaide for treatment
with an Occupational Therapist, Suzanne Caragianis (a hand therapist) for up to
four weeks.
18. This recommendation was accepted and the worker went to Adelaide and
received treatment from Ms Caragianis. At the completion of the treatment she
received a hand-written home exercise program and treatment program from Ms
Caragianis (exhibit W3). The worker followed the program and did it every day
as "I wanted my hand to get better".
19. On 14 August 1997 Ms Garton wrote to Helen Poyser (the injury management
coordinator with the employer) and noted: Ms Garton then attached her recommended return to work program.
The recommended return to work program started off with 3 hours per day 2 days
per week (preferably Tuesdays and Thursdays) with a gradual increase aiming for
a return to full hours by 17 November 1997. (see exhibit R6).
20. The worker commenced the return to work program on 14 August 1997 on the
duties as stipulated in the programs. However, shortly after this the worker's
mother, who lived in Queensland, suffered two strokes and was apparently
distressed and requesting the worker to visit her. Accordingly, the worker was
granted compassionate leave from 21 August 1997 until 9 September 1997 (see
exhibit R7).
21. The worker resumed the return to work program on 11 September 1997. In the
course of this work she was doing some data input, some washing of beakers and
some ledger work. She wore a special glove for swelling. She didn't do as
well as had been hoped and she still didn't have the movement in her wrist that
she required. She still had a lot of pain and swelling.
22. On 18 & 19 September 1997 Ms Garton visited Warrego and reviewed the
worker at her home. She noted (exhibit R9) that 23. In an unsigned program update prepared on about 2 October
1997 the programmed return to full hours was moved from 17 November 1997 to 26
January 1998 (exhibit R8).
24. On 20 October 1997 the worker's hours were increased from 3 hours per day
on 2 days per week up to 3 hours per day on 3 days per week (exhibit R13). The
worker had problems doing these hours despite the continued light nature of her
duties. She noticed that she had more swelling and pain and problems sleeping
at night.
25. In November 1997 the worker separated from her ex-husband. The worker was
unhappy in the latter parts of her relationship.
26. In her rehabilitation progress report dated 20 November 1997 (exhibit R10)
Ms Garton noted: 27. On 30 December 1997 the worker was reviewed by Ms Garton in
Darwin. Ms Garton noted (exhibit R13) that she "was impressed with her
demonstrated commitment to use her right hand as normally as possible". She
was also reviewed by Ms Garton on 7 January 1998. At that stage she noted the
worker's present duties to include data input on computer, hand writing of
result sheets, splitting sample into smaller bags, writing on sample bags,
running up fine quantities of sample material, cleaning laboratory glassware,
transferring liquid out of beakers into test tubes, adding acid to flasks,
using electric mixer to mix samples in flask. Ms Garton noted that: 28. In the January report of Ms Garton (exhibit R13), Ms Garton
was looking to increase the worker's work to 4 hours on 5 days per week by 23
February 1998. Any anticipation of returning to full duties was not envisaged
in that report.
29. On 24 January 1998 the worker started going out with Allan McGrice. This
relationship progressed quickly and by May 1998 the worker and Mr McGrice were
engaged to be married. The worker described herself as being "in love" and
happy. Mr McGrice was the workshop supervisor for McMahons Contractors and was
working at Warrego.
30. There was a lot of talk and speculation amongst people at Warrego that the
mine might be closing down. This speculation included speculation that it may
close in September or October 1998.
31. At some time Terry Smith, who was the General Manager for the mine, had
called a meeting of employees where he advised that the mine might be closing
down but they were still exploring. He advised that if the mine did close
personnel would be tried to be found alternate jobs or there would be
redundancies.
32. On 19 June 1998 Melanie McClare (the laboratory supervisor) issued a
memorandum to all lab staff. In this she advised 33. In about early June 1998 the worker found out that Mr
McGrice was being transferred in his employment to Parkes in New South Wales.
The worker didn't want to be away from Mr McGrice so she spoke to Ms McClare
about her options and it was suggested to the worker that she might apply for a
voluntary redundancy.
34. On 2 July 1998 the worker made a written application to Terry Smith for a
voluntary redundancy "due to personal reasons" effective on 10 July 1998
(exhibit R1).
35. Mr Smith sought advice in relation to this and eventually the application
for redundancy was rejected because the worker was on a return to work program.
She was advised of this on 7 July 1998 (exhibit W4). The worker was upset by
this rejection as she wanted to go with Mr McGrice to Parkes in New South
Wales.
36. On 7 July 1998 Ms Garton gave a progress summary (exhibit R11). In this
summary Ms Garton noted: Mrs Tanner remains committed to her exercise daily stretch and strengthening
program, and works through pain in exercises and activities, understanding the
need to extend in order to progress.
Mrs Tanner was recently reviewed by Mr Schmidt, he recommended an additional
exercise which Ms Tanner attempted to do every ten minutes as recommended,
however this led to significant increase in pain at the base of her thumb, she
has now reduced the program for exercise and is again in control of hand pain.
During periods of increased pain Mrs Tanner requires Panadeine Forte to control
pain, at other times she avoids analgesic medication.
Mrs Tanner has now applied for voluntary redundancy. Mrs Tanner wishes to
leave Tennant Creek to travel with her partner to Parkes, NSW where he has been
relocated with his work.
Mrs Tanner has reached a definite plateau in progress of recovery of her
hand despite dedicated commitment to her therapy program, she has gained
minimal additional range of movement in recent months. Mrs Tanner has the
capacity to work selected duties, however significant restrictions do apply in
regard to load handling capacity, grip forces, and sustained and repetitive
hand movements. Mrs Tanner may be able to increase hours managing the present
level of duties however she is highly unlikely to regain the capacity to
resume her pre-injury duties of sample preparation.
To clarify Mrs Tanner's work capacity to assist a decision regarding her
request for redundancy, it may be appropriate to seek report from Mr Schmidt
regarding her prognosis at this point.
On the basis of Mrs Tanner's progress to date and in consideration of her
commitment to therapy and willingness to work through pain, I anticipate she
will be able to increase hours to perhaps 25 per week, however she will remain
limited by the present work restrictions."(emphasis added).
37. In her evidence before me Ms Garton said that she spoke to
the worker concerning her plans to apply for a redundancy and told her that her
rehabilitation was not complete and it was better for her to adhere to the
program or wait for a medical assessment as to her current condition.
38. On 9 July 1998 a meeting was held in the office of Mr Smith. Present at
the meeting was Mr Smith, the worker, Mr McGrice and Ms Poyser. The meeting
went for about twenty minutes. In the meeting the worker was told by Mr Smith
that the only way she could leave Warrego was to resign but if she did that she
would lose all her benefits other than ongoing reasonable medical expenses.
The worker was keen to go with Mr McGrice who apparently was planning to leave
the following day. The worker (without any independent legal advice) decided
to leave the employment. She was advised by Mr Smith that it was probably
better is she didn't go for work in the mining area in the future.
39. The worker then subsequently signed a type-written note to Mr Smith stating
I would also like to thank Terry Smith and staff for their support during my
term of employment." (exhibit R2)
In that exhibit the worker provided details of her forwarding
address care of a PO Box in Parkes, NSW, along with a phone number and fax
number.
40. On 10 July 1998 the worker wrote to the employer's insurer (see exhibit W5)
in relation to Work Health claim no. 970723700252 and advised I have been advised that I am entitled to ongoing compensation for medical
expenses eg. physiotherapy and specialist medical treatment for my injury
received whilst employed with Normandy Gold.
Can you please advise if you have a preferred doctor and physiotherapist
whom I should see in the area of my present address to assess the condition and
advise of any treatment to complete rehabilitation of my injury?
Can claims for the above be made through a NSW MMI office?
I can presently be contacted through A. McGrice, PO Box 993, Parkes, NSW,
2870, fax 02 6865 2298."
41. The worker left Warrego with Mr McGrice and moved to Parkes
in New South Wales on 10 July 1998.
42. It was put to the worker in cross-examination by Mr Bryant (counsel for the
employer) that at the time of the meeting with Mr Smith she had decided to go
with Mr McGrice whatever the consequences and the provision of legal advice
would not have affected her decision. The worker disagreed with this and said
that it would have depended upon what the legal advice would have said. She
pointed out that she had no legal advice. In response to that Mr Bryant again
put it to the worker that nothing would have stopped her from going with Mr
McGrice no matter what the advice was. Again the worker disagreed with this
and said that she felt that if she knew where she stood she might have stayed,
saying "I don't know if I'd have gone regardless. I don't know".
43. Since leaving Warrego on 10 July 1998 the worker has not been engaged in
any employment. She said that since stopping work her condition had got a lot
better and if she was still at Warrego she expected that she'd be doing more
hours now than when she left.
44. On 21 July 1998 the worker received her last payment from the employer.
She has not received any salary or weekly payments of compensation from the
employer since 10 July 1998.
45. On 23 July 1998 Susan Sem wrote a letter to the worker (exhibit W6)
enclosing a Form 5 under the Work Health Act. For some reason which was
never explained in evidence Ms Sem sent this to PO Box 294, Tennant Creek, NT,
0861. This was despite the worker advising the employer (exhibit R2) that her
new address was PO Box 993, Parkes in NSW and providing a phone number and fax
in that location. This was also despite the worker writing to Ms Sem on 10
July 1998 (exhibit W5) again advising her of her address at PO Box 993, Parkes
in NSW and providing a fax number in that location.
46. It is unclear from the worker's evidence as to when she received the letter
and Form 5. However, I note that in paragraph 7 of the amended statement of
claim the worker alleges that she received them on or about 30 July 1998, and
this allegation is not disputed in the employer's pleadings.
47. The worker and Mr McGrice lived in Parkes for about three months. Whilst
in Parkes the worker went to an employment agency and was told to forget it
because of her health problems. She also went to shops but was unsuccessful in
getting employment due to her age or the fact there was no vacancy or that
there was lifting involved.
48. After about three months Mr McGrice was transferred to Gladstone in
Queensland and the worker went with him. They remained in Gladstone for about
twelve months.
49. On 22 January 1999 the worker was assessed by Lynette Pullen, psychologist
with CRS Australia. In her assessment (exhibit W9) it states: 50. On 28 January 1999 the worker was assessed by Terri Ahrens,
Occupational Therapist, also from CRS Australia. Ms Ahrens noted (exhibit W8)
that: 51. On 5 February 1999 the worker was assessed by Dr
Stephenson, consultant physician. In his report (exhibit R19) he recorded her
current status as: Mrs Tanner said she cannot fully close her fist but she can come fairly
close to it. If she attempts to put her hand flat on the tabletop she cannot
flatten her fingers fully yet. She has difficulty with buttons. She still
gets depressed but not nearly as severely as she was when her hand symptoms
were at their worst. She is now looking for work and thinks she can probably
cope with shop work, in fact, she was offered one job but when she admitted to
still being on a compensation claim, the offer was withdrawn.
She is very keen on riding and has two horse but can't ride yet."
52. Dr Stephenson expressed the following views in his report
(exhibit R19) dated 11 February 1999): It appears fairly clear that the recovery from carpal tunnel syndrome was
complicated by reflex-sympathetic dystrophy and that this is now also
substantially resolved leaving her some minor restrictions of strength and
movement in her hand.
I would consider Mrs Tanner's current incapacity partial. Although she has
very substantially improved from the worst of her symptoms, she still has a
detectable limitation of flexion and extension and loss of strength in her
right hand. There is the capacity for a considerable range of work, such as
retail work but she would be restricted from performing very heavy or
repetitive manual work.
The prognosis is quite good. I expect she would make a complete recovery
from her reflex-sympathetic dystrophy, regaining a normal range of movement and
the best part of normal strength over the next six to twelve months. I do not
expect Mrs Tanner to gain full capacity to undertake work duties pulverising
rocks, but she should be able to do a very extensive range of occupational
duties short of those physical demands.
It would not be, however, arguable that she is fully capable of all forms of
work, as she was prior to her injury of July 1996."
53. Dr Stephenson prepared a further report dated 13 August
1999 (exhibit R20) which was not based on any further examination. In that
report he expressed the following opinion: 54. It is to be noted that in coming to the view that the
return to work program would have returned her to full working hours in the
laboratory preparation Dr Stephenson was not aware that her hours at the time
of injury involved 48 hours work over four consecutive days. It is clear from
his cross-examination that he was expecting it to be a normal working week in
the order of hours in the high thirties. His opinion on this aspect therefore
was premised on a factual error.
55. On 1 October 1999 the worker was assessed by Dr Sillcock (consultant
occupational physician). In her report dated 4 October 1999 (exhibit W10) she
expressed the following opinions:
56. "Ms Tanner is still suffering from the effects of Reflex Sympathetic
Dystrophy in her right wrist, although the original problem, carpal tunnel
syndrome, has resolved. She still has significant pain and reduction of
movement.
57. Ms Tanner is still partially incapacitated for her work. I do not think
that she is capable of doing her full pre-injury duties, especially lifting
weights up to 30 kgs. I think that she is fit for work with the following
restrictions:
* No lifting in excess of 3 kgs with the right hand.
* No repetitive movement with the right wrist.
* No sustained right wrist movement.
58. I do not think that Ms Tanner is fit for her pre-injury duties yet. This is
not because she has not been in the return to work program, but because of the
nature of her condition. Had she remained in it, it is possible that she may
have been working full time hours by this stage, but she would still have been
doing restricted duties.
59. Ms Tanner has made good progress to date and I would expect this to
continue. Her condition is likely to resolve over a further period, the exact
time being difficult to ascertain, but likely to be two years or so. However,
she will need to be careful about activities that place strain on the wrists in
the future."
60. On 6 October 1999 Dr Stephenson again re-assessed the worker. At this time
he noted (exhibit R21) that: Mrs Tanner informed me that she has undertaken some gymnasium activities
where she lifted weights between 1 kg and 3 kg but said she has not attempted
to cope with any heavier weight. She advised that she is otherwise well
although she describes symptoms of headache and neck pain of a tension type
nature."
61. In his report dated 12 October 1999 (exhibit R21) Dr
Stephenson came to the following opinion: 62. Late in October 1999 the worker and Mr McGrice moved from
Queensland to South Australia. Mr McGrice is now based in the office of
McMahons Contractors at Lonsdale although he may have some on-site relief work
to attend to.
63. As regards ongoing symptoms the worker gave evidence that her right hand is
still a problem. It is gradually getting better, she still has problems
mopping floors, lifting any weight, writing for any length of time. She takes
Panadeine Forte about four to five times per week for pain and sometimes she
takes them less often and sometimes more often. She can no longer horse-ride
or tenpin bowl. She can't lift a heavy roast and sometimes she has problems
lifting pots off the stove. She has trouble washing her hair and trouble
lifting her arm over her head. She can't sew. She still gets pain in the
right hand which is pretty constant.
64. Mr McGrice in his evidence noted that the worker still has a problem with
heavy items, he still occasionally has to tie her shoelaces and she still can't
mop floors or do the cleaning. He confirmed her use of Panadeine Forte and
suggested that she was taking these at least three times per week.
65. The worker was not challenged in relation to the accuracy of her account of
difficulties either as regards her evidence in court or her complaints to
medical practitioners or rehabilitation providers. I find that the history as
set out above is accurate and factually correct.
66.
67. THE PLEADINGS
68. As noted in paragraph 1 hereof the worker commenced proceedings in this
Court on 1 September 1998. In that proceeding the worker challenged the
employer's decision to cancel payments of weekly compensation and sought an
order for recommencement of payments from the date of cessation.
69. The employer filed an Answer to the Statement of Claim on 11 September 1998
disputing that it had breached s. 69(1)(a) of the Act, but if it did seeking an
order reducing or cancelling payments pursuant to s. 69(2)(d) of the Act.
70. There were subsequent amendments to the pleadings. By the time the matter
came to trial the following pleadings applied.
Statement of Claim
1. At all material times the applicant was employed by Normandy Gold Pty
Limited.
2. On or about 19 June 1996, the applicant commenced employment with the
Respondent at its Warrego Mining Operation near Tennant Creek in the Northern
Territory of Australia.
3. On or about 24 July 1996 the worker suffered an injury in the course of her
employment.
4. By letter of 30 September 1996 the respondent, through its workers
compensation insurer accepted liability for the applicant's injury.
5. The worker has participated in a workplace based return to work programme
and on 12 June 1998 the applicants hours to work with the respondent were
increased to 5 hours per day, 4 days per week, performing modified duties for
the sum of $546.00 per week.
6. On or about 10 July 1998, the applicant resigned from her employment as her
partner had been transferred from his employment at Warrego to Parkes in New
South Wales.
7. On or about 30 July 1998, the applicant received a Notice of Decision (Form
5) by post advising of the respondent's decision to cancel payments of
compensation.
8. The applicant appeals against the respondent's decision to cancel payments
of compensation of the following grounds:
(i) The applicant did not unreasonably fail to participate in a work place
based return to work programme.
(ii) The applicant's resignation from her employment in the circumstances does
not entitle the respondent to cancel compensation payments.
(iii) The Notice of Decision and Rights of Appeal (Form 5) served on the
applicant and purporting to cancel payment of compensation is defective and
therefore invalid on the following grounds:
(a) the employer purports to dispute liability for the applicant's claim
pursuant to section 69 of the Work Health Act.
(b) the employer ceased payments of compensation forthwith, without giving the
applicant 14 days notice, in contravention of section 69(1)(a) of the Work
Health Act.
9. The applicant seeks the following orders:
(i) That the notice purporting to cancel payments of compensation is
invalid;
(ii) That the employer make payments of compensation from the date of purported
cancellation and continuing.
(iii) That the employer pay the applicant's costs on an indemnity basis
pursuant to the Supreme Court Costs Rules.
(iv) That the employer pay interest pursuant to sections 89 and 109 of the
Work Health Act.
The Defence of the Employer is
1. The Employer admits paragraph 1 of the Statement of Claim.
2. The Employer admits paragraph 2 of the Statement of Claim.
3. The Employer admits paragraph 3 of the Statement of Claim, and says that the
injury suffered on or about 24th July 1996 is described by Dr Albert
Tonga, treating General Practitioner, as carpel tunnel syndrome.
4. The Employer admits paragraph 4 of the Statement of Claim.
5. Subject to the particulars, the Employer admits paragraph 5 of the Statement
of Claim.
Particulars
5.1 The Worker was partially incapacitated for work, as certified by her
general practitioner, from 3rd September 1996 to 2nd
April 1997, and from 4th August 1997 to 13th July
1998.
5.2 Between 2nd April 1997 and 4th August 1997, the
Worker was totally incapacitated for work as certified by Dr A Jones of Alice
Springs Hospital, following an operation.
5.3 The Worker was returned to work, with the assistance of rehabilitation
providers, on alternative duties. The return to work program was successful in
increasing time at work from 3 hours per day, 2 days per week on
15th September 1997 to 5 hours per day, 4 days per week on
12th June 1998.
6. Subject to the particulars, the Employer admits paragraph 6 of the Statement
of Claim.
Particulars
6.1 The Employer received written advice from Ms Tanner, dated 10th
July 1998, to the effect that she had resigned her position "due to personal
reasons".
7. Subject to the particulars, the Employer admits paragraph 7 of the Statement
of Claim.
Particulars
7.1 A Notice of Decision (Form 5) was sent by certified mail, under covering
letter dated 23rd July 1998, to Mrs Tanner.
7.2 Two copies of the Notice were sent, one to Mrs Tanner's address in Tennant
Creek and another to an address advised to be for Mrs Tanner in Parkes, NSW.
Neither was returned to the sender.
8. The Employer denies paragraph 8 including points (i) to (iii) and (a) to
(b).
Particulars
8.1 By Form 5 dated 23rd July 1998, the Employer gave notice of
cancellation of payment of weekly benefits pursuant to section 69 of the
Work Health Act.
8.2 The decision to cancel weekly payments was made in accordance with section
75B of the Work Health Act which requires a Worker to participate in
rehabilitation training or a work based return to work program.
8.3 The Worker has unreasonably failed to participate in a work-based return to
work program which could enable her to undertake more profitable employment.
8.4 The Worker is therefore deemed to be able to undertake such employment.
8.5 Such employment results in a capacity to earn more than $546.00 per week,
and therefore entitles the Employer to cancel benefits paid pursuant to section
65 of the Work Health Act.
8.6 If the Worker is entitled to compensation, the Worker's loss of earning
capacity is nil; or an amount to be determined by the Court.
8.7 The Employer says that the Form 5 dated 23rd July 1998 is valid;
and if payments were cancelled earlier than required, the Employer will rectify
the situation by making appropriate payments.
8.8 The Employer says that by resigning her position with the Employer the
Employer lost the opportunity to provide the Worker with alternative duties at
the mine;
8.9 The Employer says that had the Worker completed the RTW program with the
Employer she would have been able to undertake pre-injury duties;
8.10 The Employer says that by resigning her employment with the Employer she
failed to take advantage of the rehabilitative opportunities which would have
been made available to her by the Employer;
8.11 The Employer says that by leaving her employment the Worker has failed to
participate in a return to work program and in so doing so has breached her
obligation of mutuality with the Employer.
9. The Employer denies the claim for relief set out in paragraph 9 and denies
that the Worker is entitled to the orders set out in paragraph 9 and seeks the
orders that the Workers application be dismissed with costs.
10. If the Worker is entitled to compensation, the most profitable employment
which the Worker is capable of undertaking yields an amount of weekly earnings
which is greater than nil.
11. The Employer says that the Worker has failed to mitigate her loss.
Counterclaim
12. The Employer says that if the Worker is entitled to compensation, which is
denied, the Employer applies to the Court pursuant to section 69(2)(d) for an
order reducing or cancelling payments.
Particulars of Claim
12.1 The Worker was partially incapacitated for work, as certified by her
general practitioner, from 3rd September 1996 to 2nd
April 1997, and from 4th August 1997 to 13th July
1998.
12.2 Between 2nd April 1997 and 4th August 1997, the
Worker was totally incapacitated for work as certified by Dr A Jones of Alice
Springs Hospital, following an operation.
12.3 The Worker was returned to work, with the assistance of rehabilitation
providers on alternative duties. The return to work program was successful in
increasing time at work from three hours per day, two days per week on
15th September 1997 to five hours per day, four days per week on
12th June 1998.
12.4 On or about 10th July 1998 the Worker resigned her employment
with the Employer and left the geographic location where the Employer carried
out its business.
12.5 The Worker resigned her employment with the Employer for personal reasons
unrelated to her injury sustained in the course of her employment with the
Employer generally.
12.6 At the time of her resigning her employment with the Employment, the
Worker was undergoing a rehabilitation program provided for by the Employer.
Thereafter the Worker has not continued on any rehabilitation program either
through her Employer or any other source, which failure has been as a result of
the Workers own voluntary decision.
12.7 Since resigning her employment with the Employer, the Worker:
12.7.1 has been absent at all times from the geographic region where the
Employer engages in its business;
12.7.2 has not sought any alternative employment or alternative employment with
or through the Employer;
12.7.3 remains unwilling to work for the Employer.
12.8 The Worker has unreasonably failed to participate in a work based return
to work program which would enable her to undertake more profitable
employment.
12.9 But for the Workers unwillingness to undertake or seek work for or with
the Employer, the Worker would be able, and would have been able to since
10th July 1998, to earn as much as she would otherwise have been
able to earn prior to sustaining the injury that she sustained in the course of
her employment with the Employer.
12.10 By reason of her actions in resigning her employment and being unwilling
to work for or with the Employer, the Worker has breached the mutuality of her
employment with the Employer and is not entitled to weekly payments of
compensation pursuant to section 65 of the Work Health Act 1986 at any
time subsequent to the said resignation and the date hereof.
12.11 By reason of the foregoing matters the Worker is not entitled to weekly
payments of compensation pursuant to section 65 of the Work Health Act as from
10th July 1998.
Defence to Counterclaim
In defence to the employer's counterclaim dated 19 October 1999 the worker
says:
1. The worker does not plead to paragraph 12 of the counter claim other than to
say that section 69(2)(d) of the Work Health Act does not vest the court with
jurisdiction to reduce or cancel payments.
2. The worker admits the allegations contained in paragraph 12.1 of the
counterclaim but says further that the worker was also partially incapacitated
from 24 July 1996 to 2 September 1996.
3. The worker admits the allegations contained in paragraph 12.2 of the
counterclaim.
4. The worker admits the allegations contained in paragraph 12.3 of the
counterclaim.
5. The worker admits the allegations contained in paragraph 12.4 of the
counterclaim.
6. The worker admits the allegations contained in paragraph 12.5 of the
counterclaim.
7. The worker denies the allegations contained in paragraph 12.6 of the
counterclaim and says:
7.1 At the time of resigning her employment the worker was undertaking a
workplace based return to program;
7.2 Since resigning her employment the worker has been assessed by a
rehabilitation service provider on referral by the employer but the employer
has not otherwise provided any rehabilitation treatment of suitable employment
to the worker;
7.3 Since resigning her employment the worker has undergone physiotherapy
treatment on a continuing basis and pursued a home exercise program as designed
by the employer's agent.
8. As to paragraph 12.7 of the counterclaim:
8.1 Admits the allegations contained in sub-paragraph 12.7.1;
8.2 Denies the allegations contained in sub-paragraph 12.7.2; and
8.3 Denies the allegations contained in sub-paragraph 12.7.3.
9. The worker denies the allegations contained in paragraph 12.8 of the
counterclaim.
10. The worker denies the allegations contained in paragraph 12.9 of the
counterclaim.
11. The worker denies the allegations contained in paragraph 12.10 of the
counterclaim.
12. The worker denies the allegations contained in paragraph 12.11 of the
counterclaim.
71. In the course of the hearing and during final addresses the question of
what were the issues that I was to determine was raised and canvassed. The
issues appear to be:
1. was the worker's compensation payments validly cancelled in accordance with
the Act?
2. If no to issue number one, what orders (if any) should be made?
In looking at the questions the starting point is to look at the Form 5. This
document (exhibit W6) stated: With regard to your claim for payment of benefits as prescribed under the
Work Health Act. You are hereby advised that your employer Posgold Limited
acting on the advice of MMI hereby:-
Disputes liability for your claim pursuant to section 69 of the Work
Health Act.
The reasons for this decisions are:-
1. On 12/06/98 you returned to work with Posgold Limited, working 5 hours
per day, 4 days per week performing modified duties.
2. Your employer says that the most profitable employment reasonably
available to you results in a capacity to earn more than $546.00 per week.
3. In the alternative, your employer says that on 10/07/98 you voluntarily
resigned from your employment with Posgold Limited by applying for a voluntary
redundancy. Your employer says that as a result you have reasonably failed to
participate in rehabilitation training or a workplace based return to work
program which could enable you to undertake such employment and your
compensation is cancelled accordingly.
Signed
Dated 23/7/98
72. The first thing to note is that the Form 5 starts off by
purporting to "dispute(s) liability for your claim". On the pleadings (supra)
it was admitted that by letter dated 30 September 1996 the employer accepted
liability for the injury. In my view, having accepted liability (and there
being no evidence of any new claim having been submitted) it was no longer open
to the employer to make a decision under section 85 of the Act.
73. On the evidence the worker's claim was accepted and payments of
compensation continued up until 10 July 1998.
74. When the rest of the Form 5 is read it becomes clear that what the employer
is in fact purporting to do is to cancel weekly payments of compensation on
three alternate bases:
74.1 On 12/6/98 the worker returned to work, working 5 hours per day, 4 days
per week performing modified duties.
74.2 That the most profitable employment reasonably available to the worker
results in a capacity to earn more than $546.00 per week; or
74.3 That the worker has "reasonably failed to participate in
rehabilitation training on a workplace based return to work program which could
enable you to undertake such employment".(emphasis added)
75. Section 69(1) of the Act states as follows: (a) 14 days notice of the intention to cancel or reduce the compensation
and, where the compensation is to be reduced, the amount to which it is to be
reduced; and
(b) a statement in the approved form setting out the reasons for the
proposed cancellation or reduction and indicating that the worker has a right
to appeal against the decision to cancel or reduce the compensation.
76. In Collins Radio Construction Inc. v Day (1998) 143
FLR 425 the N.T. Court of Appeal (Kearney A CJ, Mildren J and Gray A JJ) held
at pages 430-1: We do not think it was the intention of the legislature that only the
precise words chosen by the legislature, and no others conveying the same
meaning, would suffice. Obviously those who draft these certificates would be
wise to follow the words of the statute, but they are not to be treated as
possessing special magical powers which other words to like effect do not. It
is not necessary to decide whether words conveying the same meaning comply
"strictly" or " substantially" with the subsection.
However, in this case, the words chosen in the certificate do not convey the
essential meaning for the two reasons previously identified. It may be that
the words "for work" can be implied from the circumstances and from the form of
the certificate, but even is this be so, to say merely that the worker is not
longer totally incapacitated for work, is not another way of saying that the
worker is no longer incapacitated for work.
Moreover, there are patently other difficulties with the certificate in
that: (a) it purports to cancel the payments forthwith, whereas s 69(1)(a)
requires 14 days notice of an intention to cancel payments - in this respect,
we note that the prescribed form in the regulations is defective in that the
prescribed form does not correspond with the requirements of s 69(1)(a); (b)
the reasons given for cancelling the benefits do not comply with s 69(4)."
77. In Disability Services of Central Australia v Regan
a decision of the N.T. Court of Appeal (Mildren, Thomas and Priestley JJ)
delivered on 31 July 1998, Mildren J (with them Thomas and Priestley JJ agreed)
noted "Wormald International (Aust) Pty Ltd v Aherne (unreported,
21/6/94, Mildren J) in which it was said that an employer was not entitled in
proceedings by way of appeal under s 69 to rely on grounds other than those
contained in the Form 5 notice".
His Honour went on to say at pages 4-5: His Honour added at page 7: But this question became irrelevant because of the wider issues raised by
the employer in its answer,...."
His Honour concluded at page 11: I note that His Honour's concluding comments at page 11 have
been taken up and the new Work Health Rules (which commenced on 1 August 1999)
permit a counterclaim in Rule 9.05. Hence, in the instant case the employer
filed a defence and counterclaim on 19 October 1999.
78. The effect of these various decisions and the amendments to the Rules to
allow for counterclaims appears to result in the following propositions:
78.1 Unless s 69(2) is applicable payments of compensation can only be reduced
or cancelled in accordance with s 69(1);
78.2 Prior to the new rules coming into force on 1 August 1999, the Court could
only order the cancellation or reduction of compensation on a ground not
contained in a valid s 69(1) notice:
(1) if the worker merely appealed under s 69 and did not broaden the issues by
the employer:
(a) issuing a further notice under s 69(1) and if the worker appealed that
decision seeking to consolidate the two actions; or
(b) making a substantive application under s 104 and seeking to consolidate the
two actions.
(2) if the worker in the statement of claim broadened the scope beyond a mere
appeal against the Form 5 then the employer could raise in its answer any
ground to resist the claim that it wished and was not confined to the matters
in the Form 5.
78.3 Subsequent to the new rules coming into force on 1 August 1999, the Court
can now order the cancellation or reduction of compensation on a ground not
contained in a valid s 69(1) notice:
(1)If the worker merely appealed under s 69 and did not broaden the issues by
the employer:
(a) issuing a further notice under s 69(1) and if the worker appealed that
decision seeking to consolidate the two action; or
(b) making a substantive application under s 104 and seeking to consolidate the
two actions; or
(c) filing and serving a counterclaim properly raising any new issues under
Rule 9.05.
(2)If the worker in the statement of claim broadened the scope beyond a mere
appeal against the Form 5 then the employer could raise in its answer (or
counterclaim) any ground to resist the claim that it wished and was not
confined to the matters in the Form 5.
78.4 Appropriate findings (and consequential orders under s 69(2)(d)) can be
made now on any issues properly raised by an employer in an answer or
counterclaim.
79. If this matter had been heard and determined before 1 August 1999 then in
my view no issue beyond the matters in the Form 5 could have been raised by the
employer. The reason for this is that, in my view, the Statement of Claim by
the worker is merely an appeal against the Form 5 and does not seek to broaden
the enquiry. The only part of the statement of claim which might be said to
enlarge the enquiry is paragraph 9(ii) in the prayer for relief where the
worker seeks: But from the way Mr Grant opened and presented his case I
understand that the worker was simply asking that if the Form 5 were invalid
that payments resume from the date that they ceased and continue until such
time as they are properly reduced or cancelled in accordance with the Act.
80. The hearing commenced on 1 November 1999 and concluded on 4 November 1999.
Therefore, any issues raised by the employer in its counterclaim were alive
before me and could (if made out by the employer on the balance of
probabilities) form the basis of an order under s 69(2)(d).
81. I turn to consider the Form 5. In my view the Form 5 is defective for a
number of reasons:
81.1 It purports to dispute liability rather than cancel or reduce payments;
81.2 By purporting to dispute liability if thereby purported to be a notice
under s 85(1)(c) and not s 69(1)(a);
81.3 By purporting to dispute liability this could not be "pursuant to section
69" as the notice asserts that it was;
81.4 Reason for decision number 2 appears to be an attempt to assert that the
worker has no "loss of earning capacity" in accordance with s 65(2) of the Act.
If this is the intention then under s 69(1)(a) 14 days notice of the intention
to cancel was required and no such notice was given (as noted in Ansett
Australia v Nieuwmans (a decision of the NT Court of Appeal delivered on
9.12.99) at page 11 this is fatal to the validity of the notice);
81.5 Reason for decision number 3 is not a valid reason under the Act as under
s 75B(2) the worker has to "unreasonably" fail but here the employer asserts
that the worker's failure was "reasonable".
81.6 If the reason for decision number 3 did validly raise an issue under s
75B(2), which it doesn't, then 14 days notice was required under s 69(1)(a) and
no such notice is given.
82. This would only leave reason for decision number 1 which appears to be an
assertion under s 69(2)(a) in which case s 69(1) does not apply. This
assertion appears to be admitted in part by the worker by paragraph 5 of her
amended Statement of Claim. The aspect which would appear to be in dispute is
whether participating in a "workplace based return to work program" is a
"return to work". If it is then the employer was entitled to reduce or cancel
payments without the need to comply with s 69(1) or give any notice.
83. One could imagine many different factual scenarios. Some of these (this is
not intended to be an exhaustive list) could include:
83.1 a worker returning to his normal job on his normal pay performing his
normal duties (this would be a return to work);
83.2 a worker returning to his normal job on his normal pay performing modified
duties (this could be a return to work);
83.3 a worker returning to modified duties for less hours and less pay (this
could be a return to work);
83.4 a worker returning to a work trial not paid by the employer for his
efforts but receiving compensation (this would not be a return to work).
84. It seems to me that a "return to work" would require a return to some work
for which the person is paid rather than, or in addition to, receiving
compensation under the Act. The word "work" does not appear to require any
need to qualify it by adding words such as "full-time", "pre-injury" etc.
85. I could imagine a situation where an employer might be happy to pay a
worker his or her normal weekly earnings despite the fact that a worker is
unable to return to their pre-injury duties or productivity. Likewise, there
may be situations where an employer is willing to provide a worker with
part-time work because of their limited capacity for work and pay only for the
time worked with any shortfall to be made up by compensation payments. In my
view, that would still be a return to work, and the payments of compensation
could be reduced to take account of the wages being received without reference
to s 69(1).
86. In the instant case it was agreed between the parties that the worker's
normal weekly earnings ("NWE") at the date of her first entitlement in 1996 was
$728.01. As noted above the worker in fact was working 48 hours over a six day
cycle. I assume that the parties have correctly adjusted this to a seven day
week. Since this matter is agreed I have not looked behind the correctness of
the agreement.
87. Tracey Konidaris was the payroll officer for the employer for about two
years. She worked at Warrego until 29 October 1999. At that stage there were
only two other employees at Warrego and they left the same day that she did.
Accordingly, the Warrego mine finally completely closed on 29 October 1999.
88. Ms Konidaris was unable to say when the laboratory closed, but it was
clearly prior to 29 October 1999. She was the payroll officer when the worker
was there.
89. According to the evidence of Ms Konidaris she would calculate the average
fortnightly earnings for the worker, then deduct what she worked physically and
the employer claimed the balance off MMI (the insurer). She believed that she
was being paid at the rate of $13.60 per hour which should have increased to
$14.80 per hour in April 1998. She was however unable to confirm that her pay
went up to $14.80 per hour as she was on maternity leave at the time.
90. As noted previously prior to the injury the worker's usual hours were 4
days of 12 hours, followed by 2 days off, followed by 4 nights of 12 hours,
followed by 2 days off. She would work 48 hours every 6 days.
91. On the evidence I find that the worker had returned to work in that she was
performing duties with the employer for which she was being paid by her
employer and that such payments were separate from any top-up she may have
received by way of weekly compensation.
It has also been agreed between the parties that the worker was working 20
hours/week and being paid $14.80 per hour, making her wages $296.00/week.
92. I therefore find that the worker had returned to work with the employer and
on 10 July 1998 she was earning $296 per week from this employment. Any
amounts that she was paid above this figure should have been additional
payments of weekly compensation in order to bring her up to a figure which
should have equalled 75% of her loss of earning capacity.
93. It follows that since the worker returned to work, the employer did not
need to comply with s 69(1) before cancelling or reducing her compensation, and
nor was 14 days notice required.
94. The parties have agreed that the worker's NWE indexed to 1998 was $777.62.
95. Pursuant to s 65(1) of the Act the worker was entitled to be paid 75% of
her loss of earning capacity.
96. Pursuant to s 65(2) loss of earning capacity is the difference between the
indexed normal weekly earnings (in this case agreed at $777.62 for 1998) less
the amount, if any, she is from time to time reasonably capable of earning in a
week in work she is capable of undertaking if she were to engage in the most
profitable employment, if any, reasonably available to her. In considering what
is "the most profitable employment available" the Court has regard to sections
65(5) and 68. In deciding whether such work is "reasonably available to (the
worker)", in my view, matters personal to the worker may be considered. In
considering not dissimilar provisions in the South Australian legislation
Mullighan J in Workers Rehabilitation And Compensation Corporation v
James (1991) 56 SASR 414 said at page 425:
"...I have concluded that a consideration of the weekly earnings that a worker
could earn in suitable employment that he has a reasonable prospect of
obtaining necessarily involves matters other than the capacity of the worker
for employment. It involves "suitable employment" as discussed in Percic v
Broken Hill Pty Co Ltd as well as the reasonable prospect of obtaining such
employment. Whether a worker has a reasonable prospect must involve
considerations other than merely his capacity for employment. What must be
established is whether there is reasonable prospect of obtaining the
employment, which necessarily involves such factors personal to the worker
which are relevant. A personal factor such as unjustifiable refusal to work
would not be a relevant factor. The inability to travel to a distant location
due to the need for treatment would be a relevant factor. It is the concept of
reasonableness which is the safeguard. In cases where the issue arises there
will be a line-drawing exercise. I think it would make nonsense of legislation
of this nature if genuine and proper reasons for not taking employment were of
no relevance."
This case went on appeal and the decision of Mullighan J was approved. In the
appeal decision (reported at (1992) 57 SASR 365) Zelling AJ said at pages
393-4:
"This Act is tailored to the rehabilitation of the individual workman, with his
individual needs, deficiencies, and personality.
Further, Parliament must be taken to know in 1986 that we are no longer in an
age where the male is the sole breadwinner. In these days when both husband and
wife work as a matter of routine, employment can hardly be "suitable" for the
injured spouse, by forcing him to move elsewhere, if it reduces the family
income to that of one earner, or otherwise disrupts the family pattern of
earning, because all the family's ongoing commitments have been entered into on
the basis of two continuing incomes. Injecting that sort of stress into the
situation is hardly likely to help anyone's rehabilitation and that is what
this Act is there to promote.
Similarly, with place of living, suppose the injured workman has had his name
down for a Housing Trust house for years and just as his name comes towards the
top of the list he has an industrial accident. Is his family to be deprived of
the benefit of subsidised housing for which they otherwise qualify, simply
because that puts the injured workman out of reach of a job which he could do
if he stayed where he was paying full rental?
These are just two of many scenarios which could be envisaged. The Learned
judge subsumed the solution of all these problems under the use of the word
"reasonable", and I do not quarrel with his concept of reasonableness. What I
do say is that in this day and age, "suitable" where used in this Act in
relation to employment, must mean suitable in relation to the workman as an
individual, and the old concepts of suitability which would oblige a man to go
400 miles from his wife and family just because there was a job at that
distance that he could do (cf Roper v Commissioner for Railways (No 2)
(1959) WCR 93) belong to the days when an employee was an economic chattel,
and have no place in the philosophy or interpretation of this Act.
I entirely agree with the learned judge that a workman cannot change his
residence simply to avoid working, and to stay on compensation....
Suitable employment means employment which the workman can do and which in the
total circumstances of that injured workman, will promote his rehabilitation
and re-integration into the work force.
In my view the words "reasonable" and "reasonably" where they occur in s35,
subss (1) and (2)(a), merely underline the philosophy of the Act as I have
endeavoured to set it out. I agree with the learned judge that in every case,
reasonableness is a question of fact and degree."
Whilst Zelling AJ based his decision on the word "suitable" (which word does
not appear in sections 65(2) and 68 of the Act), and whilst clearly section
65(5) of the Act does contemplate a worker having to move location for the
purpose of employment, I consider that the general observations of both
Mullighan J and Zelling AJ fit in with the philosophy of the NT Act and are
relevant to the question of reasonableness. Workers are not chattels. In this
day and age it is not uncommon for workers to change jobs and locations many
times throughout their working lives. People change jobs and locations for many
reasons. Some of these reasons maybe totally personal, whilst some may relate
to factors associated with the employment itself. A worker who is unfortunate
enough to get injured should not forego his or her choices and become a slave
to the compensation provider. There must always be a balance and the overall
philosophy of the Act must not be lost sight of.
97. I find on the evidence that up to and including the 10th day of
July 1998:
97.1 The worker was performing modified duties with the employer;
97.2 That she was capable of undertaking that work;
97.3 That the work was reasonably available to her;
97.4 That the work would have continued to have been available to her after 10
July 1998 had she not resigned;
97.5 That she was earning $296 per week for this work.
98. Was this work reasonably available to her after 10 July 1998? The worker
had moved to Warrego without a job in order to be with her husband. The worker
was offered a job in the mine at Warrego which she accepted. There is nothing
to suggest that the work she was doing had general application within the wider
workforce, but appears to have been applicable to mining operations. Generally
mining operations tended to be in remote locations. I do not know from the
evidence when her ex-husband and child left Warrego. She had commenced a
relationship with McGrice less than 6 months before. About 2 months before she
had become engaged to McGrice. I know little of their financial or living
arrangements. She was not being asked to relocate or change jobs, rather, the
work available was the same modified duties that she had been doing for almost
a year. She was capable of doing the work. An employer who is paying
compensation is entitled to get some use or benefit out of a worker in return,
provided that that is reasonable and within the worker's physical capabilities.
She did not need to leave Warrego for treatment reasons. She was not leaving to
pursue other reasonable job opportunities. In the circumstances of this case I
am satisfied that the work she was doing continued to be reasonably available
to her after 10 July 1998.
Her loss of earning capacity at the date of her resignation on 10 July 1998 is
therefore:
($777.62 - $296) x 75% = $361.22
99. I find that working 20 hours per week in modified duties was the most
profitable employment reasonably available to her as at 10 July 1998. In
R.J. Brodie (Holdings) Pty. Ltd. v Pennell (1968) 117 CLR 665 @671
Menzies J said: "The provision of employment imports, of course, mutuality
between the employer and the worker and it is not difficult to see that where
it is the worker who is responsible for a lack of mutuality there is no failure
on the part of the employer to provide employment." I respectfully agree with
this. In my view, in choosing to resign as she did and move away from the
location of her usual employment she made it impossible for (and therefore
removed the obligation on) the employer to meet it's obligations under section
75A(1)(a) of the Act. That is not to say that the situation is irretrievable
because as Mullighan J noted in Workcover Corporation (Plas-Tec Pty Ltd) v
Grigor (1994) 62 SASR 283@287: " But as Kanoon v Cablemakers
Australia Pty Ltd (1975) WCR (NSW) 268 shows, even mutuality destroyed by
misconduct can be restored in time".
100. Therefore, on the face of it once the worker resigned on 10 July 1998 the
employer should have continued to pay the worker the sum of $361.22 per week by
way of weekly compensation until such time as these payments were increased,
reduced or cancelled in accordance with the Act.
101. I note paragraph 5 of the amended Statement of Claim which asserts (and
this is admitted in the defence) that on 12 June 1998 the worker was being paid
$546.00 per week. I don't know from the pleadings or the evidence how this
figure was calculated. I don't know whether this is the total that she was
being paid (for work and top-up compensation). If it was the total then the
worker may not have been receiving her proper entitlements. However, as this
does not appear to form any part of the worker's claim I will not consider this
matter further, or express any view.
102. It is clear from the evidence that the employer has paid no money to the
worker since 10 July 1998 by way of weekly compensations. Why? It becomes
clear from paragraph 8 of the defence and paragraph 12 of the counterclaim that
the employer is relying on s 75B of the Act. As noted above the Form 5 was
defective but in my view that does not stop an employer from properly raising
or re-raising the issue in the pleadings.
103. Section 75 of the Act is in the following terms: (2) For the purposes of subsection (1), "rehabilitation" means the process
necessary to ensure, as far as is practicable, having regard to community
standards from time to time, that an injured worker is restored to the same
physical, economic and social condition in which the worker was before
suffering the relevant injury."
Section 75A is in the following terms: (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 - $1,000 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.
Penalty: In the case of a body corporate - $3,000.
In the case of a natural person - $1,000 or imprisonment for 3 months.
Default penalty: In the case of a body corporate - $500.
In the case of a natural person - $50.
(3) Where an injured worker for whose injury an employer is liable under
this Part is employed by another employer under an alternative employer
incentive scheme referred to in subsection (1), the first employer is liable to
compensate the injured worker for any aggravation, acceleration or exacerbation
of the injury that occurs within one year after the worker commences employment
with the other employer.
(4) In subsection (2), `long term incapacitated worker' means a worker who
is being paid compensation under section 65."
Section 75B is in the following terms:
"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 employer, present himself at reasonable
intervals to a person for assessment of his employment prospects.
(1A)The employer of a worker who participates in a rehabilitation program or
workplace based return to work program under subsection (1) must ensure that
program is provided by an accredited vocational rehabilitation provider.
(2) Where a worker unreasonably fails to undertake medical, surgical,
rehabilitation treatment or to participate in rehabilitation training or a
workplace based return to work program which could enable him to undertake more
profitable employment, he shall be deemed to be able to undertake such
employment and his 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 for assessment of his employment prospects, he shall be deemed
to be able to undertake the most profitable employment that would be reasonably
possible for a willing worker with his experience and skill and who has
sustained a similar injury and is in similar circumstances having regarding to
the matters referred to in section 68, and his compensation under Subdivision B
of Division 3 may, subject to section 69, be reduced or cancelled accordingly."
The preamble of the Act states: 104. The Act clearly places an onus upon an employer to
participate in the rehabilitation of a worker. In addition, as noted in the
decision of Nieuwmans (supra) at page 13 the worker is under a duty to
mitigate her loss.
105. In the instant case the employer has been most mindful of its obligations
and up to the date the worker resigned appears to have acted most responsibly.
I commend the employer for its efforts. Unfortunately not all employers seem
to be as responsible.
106. Up to 10 July 1998 the employer provided to the worker a "workplace based
return to work program" ("the program"). The program was professionally run,
well supervised and well managed.
107. The program continued to be available to the worker after 10 July 1998,
but the worker chose to resign her employment.
108. Pursuant to s 75B(1) it is clear that a worker has an obligation to
participate in the program. There are therefore mutual obligations.
109. In order to come within section 75B(2) of the act the employer must
satisfy me of each of the following matters on the balance of probabilities.
Should the employer fail to satisfy me of any of the matters (1), (2), (3) or
(7) then the employer would be wholly unsuccessful. If the employer satisfied
me of each of the above matters but failed to satisfy me of matters (4), (5) or
(6) then I would be unable to quantify the reduction and therefore the employer
may be entitled to no formal order until such time as the matter was properly
quantified. The matters which the employer must establish are that:
110. (1) there was a return to work program.
I am satisfied of this aspect.
(2) the worker failed to participate in the program.
I am satisfied that in deciding to resign on 10 July 1998 the worker clearly no
longer wished to participate in the program. The program continued to be
available to her and I am satisfied that the employer wanted her to continue in
it. I therefore find that since 10 July 1998 the worker has failed to
participate in the program.
(3) the program could enable her to undertake some employment, and what that
employment is.
I consider it necessary for an employer to identify a particular employment, or
type of employment. It would not generally be necessary for a particular job to
be identified. However, in the instant case (because of the way the matter was
pleaded) the employer has agreed that paragraph 12.9 of it's counterclaim is
limited to positions available with it rather than any other employer. In the
instant case the employer has identified the position of a laboratory assistant
in the wet chem area. I note that it is only necessary that the program
"could" (not "would") enable her to undertake this employment. The word "can"
(the present tense of the word "could") is defined in the Concise English
Dictionary (eighth edition) to mean "be able to, be potentially capable of".
I accept that the aim of the program was to get her back to a stage where she
could work full time as a laboratory assistant. At the time of the resignation
this had not been achieved, but the aim had not been totally abandoned,
although it seems that the time was rapidly approaching when it might be.
Ms Garton (Occupational Therapist) gave evidence that the aim of the program
was to achieve full hours work at as a laboratory assistant. She conceded
(correctly) that in this case they had not achieved full hours. Full hours for
the worker was 12 hours per day for 4 days. In October 1997 she felt that they
still needed to keep that as the goal. However, by the time of the report of
January 1998 (exhibit R13) Ms Garton agreed that she had abandoned her
projection of 12 hours per day due to the worker's very slow progress. By the
time the worker resigned she was doing 5 hours/day for 2 days, then having a
day's break and doing 5 hours/day for 2 days. Ms Garton said that it had been
decided that the worker should be doing no more than two consecutive days. By
July 1998 Ms Garton agreed that it was quite clear that the worker's progress
was not going to be significant from then on and they needed to review whether
the worker should continue in laboratory assistant work or get another medical
assessment.
Ms Garton further stated that in the duties the worker was doing she didn't
think that she would be able to progress beyond 25 hours per week so she
requested a medical assessment. On the evidence I find that the worker did not
know at the time she resigned that this request had been made, although I find
that she knew or ought to have known that one was likely.
The worker resigned and stopped undertaking the program before the medical
assessment could be done.
In those circumstances, it appears to me that a final decision as to whether
the program could enable the worker to perform full time duties as a laboratory
assistant had not been reached, and was unable to be reached because of the
worker's resignation and withdrawal from the program.
The employer bears the onus of satisfying me on the balance of probabilities
that as at the date the worker resigned and ceased to participate in the
program, the program could have (in the sense that it was still potentially
capable of) enabled the worker to have returned to full time work as a
laboratory assistant. On the evidence I am not satisfied of this to the
necessary standard. On the contrary I consider that it was more probable than
not that she couldn't return to full-time laboratory work in the foreseeable
future even if she had stayed in the program. I therefore find that this
requirement is not met. It would therefore follow that the employer's assertion
that it is entitled to reduce or cancel weekly payments of compensation
pursuant to section 75B(2) of the Act must fail. In the event that I am wrong
on this aspect I will continue to consider the other necessary matters.
(4) the worker without the program had the capacity to earn $x per week.
At the time that she ceased the program she was earning $296 per week. I find
that was her capacity to earn at the relevant time.
(5) the program could enable the worker to earn $y per week.
Again the word is "could" not "would". If the program could have enabled her
to work full time as a laboratory assistant then she would have been able to
work 48 hours in a 6 day cycle which as at the date of her resignation would
have been paid at $14.80 per hour.
[(48 x $14.80) / 6] x 7 = $828.80 for a normal week.
However, I am not satisfied that the program could enable the worker to earn
$828.80 per week. On the evidence I am satisfied that had the worker continued
in the program she could have increased her hours up to 25 hours per week in
the modified duties that she was doing. It therefore follows that she could
have earned (25 x $14.80) $370 per week.
(6) $y is more than $x.
Clearly $370 per week is more than $296 per week.
And,
(7) the worker's failure to undertake the program was unreasonable.
In Fazlic v Milingimbi Community Inc. (1982) 38 ALR 424 the High Court
(Stephen, Mason, Murphy, Aickin and Wilson JJ) considered whether under the NT
Workmen's Compensation Act a refusal to have an operation should result in the
losing of entitlement to further compensation. In a joint judgment Their
Honours said at page 427:
"No doubt it will be but rarely that an employer does not succeed in
establishing that a worker's refusal is unreasonable when the worker has
allowed baseless fear to decide his choice, outweighing his knowledge of cogent
factors favouring his undergoing an operation....
Any assessment of the reasonableness or otherwise of a worker's refusal of
treatment must depend upon the worker's state of knowledge at the relevant
time. This accords both with good sense and with authority. A worker's choice
cannot be said to be unreasonable because he has failed to give effect to
factors unknown to him. And in the case of complex medical or surgical
procedures he will know little except what he is told. In the present case he
was told very little indeed."
Their Honours went on to add at pages 428-429:
"It's concern is, rather, with whether, judged in the light of the medical
advice given to the worker at the time and all the circumstances known to him
and affecting him, his refusal is unreasonable.
It follows that in the present case the extensive expert medical testimony
showing that the operation might reasonably have been performed was irrelevant
to the point in issue, the reasonableness of the appellant's refusal, since the
facts deposed to were never known to the appellant, who was aware only of the
treating surgeon's reticent and, if anything, rather discouraging statement
about the operation that was recommended. Moreover, the appellant had candidly
confessed to his treating surgeon his fears regarding the operation and nothing
had been said to dispel them. In those circumstances we cannot say that he was
shown to have been unreasonable in refusing the operation and this despite the
fact that the alternative facing the appellant was, as he had been told, that
there would be no improvement in his condition."
I respectfully adopt these words and consider that they are instructive to the
matter in hand. In deciding whether the worker's failure to undertake the
program was unreasonable or not only the facts and knowledge of the worker at
the time the decision was made is relevant. In my view, subsequent facts or
opinions which were unknown to the worker at the relevant time are of no
assistance.
111. In addition, the question of what is reasonable must be looked at in the
context of the Act as a whole. As noted above there are mutual obligations
created in the Act (both on the employer and the worker) with the aim of
rehabilitating workers back into the workforce. This is in accordance with what
appears to be the general policy of the Act, which is that it is a weekly
compensation scheme with ongoing mutual obligations. The Act is not designed to
be a lump sum "buy-out" scheme whereby workers are then left to their own
devices. Lump sum settlements can only occur when (amongst other things)
rehabilitation is complete. This reinforces the underlying philosophy that
rehabilitation must be pursued until there is nothing more to be gained. In my
view, a worker must actively and fully participate in the rehabilitation.
Rehabilitation can take many forms. In the instant case it was a return to work
program, plus a home exercise program, plus regular reviews and assessments.
112. On the evidence I find that the worker at all times fully co-operated with
her rehabilitation to the full extent that she was reasonably capable of doing
so. She did all of her home exercises even if they caused some pain or
discomfort. She attended every appointment made for her (there being no
evidence that she ever failed to attend) and there is no suggestion other than
that she was fully co-operative with every medical practitioner and
rehabilitation provider. She attended the return to work program and performed
every task required of her within her limitations. Accordingly, up to the date
of her resignation the worker had fulfilled her obligations as regards to
rehabilitation. Has the employer established on the balance of probabilities
that her decision not to continue with the return to work program was
unreasonable?
113. On the evidence I consider that the worker's state of knowledge at the
time she decided to retire was:
* she was injured on 24 July 1996
* she had an operation on 2 April 1997
* in about July 1997 she spent about 3 weeks in Adelaide for intensive
treatment from a hand therapist
* on 14 August 1997 she returned to work doing very light duties for 3 hours on
each Tuesday and Thursday
* on 20 October 1997 she increased her hours to 3 hours on 3 days per week
(still on light duties)
* there was speculation that the Warego mine would be closing
* Mr Smith told a meeting (at which the worker was in attendance) that the mine
may be closing
* Mr Smith told the same meeting that some workers would be tried to be found
alternative jobs (there was no evidence that it was ever suggested to the
worker that she might be one of these people)
* Mr Smith told the same meeting that there may be some redundancies
* she had tried to apply for a redundancy but had been rejected on the basis
that she was on compensation
* by 7 July 1998 she had increased her hours to 5 hours on 2 consecutive hours
with a day off and then a further 5 hours on the next 2 days (still on light
duties)
* it was unlikely that she would be able to return to full-time work in the
foreseeable future
* it was unlikely that she would be able to return to unrestricted duties in
the foreseeable future, if ever
* her fiance was leaving Warego on 10 July 1998
* she either had to resign or stay in Warego on the program
* if she resigned she would still be entitled to be paid for medical and
related expenses for her injury
* if she resigned she would lose her entitlement to weekly payments (as that
was what she was told by the employer)
* if she stayed and the mine closed she did not know (as there is no evidence
that she was told) what would happen to her position or whether the program
would be continued (and if so where and in what form)
114. In my view, whether a decision is unreasonable is one of balance on the
facts of each case. Therefore the stronger the prognosis of a return to work
program being of real benefit the more likely a failure to participate in it
will be unreasonable even if there are personal reasons for the failure.
"Unreasonableness" falls to be considered in the context of the Act as a whole,
and personal reasons may in a particular case be secondary to the mutual
rehabilitation obligations created in the Act. However, if matters personal to
the worker were intended to have no relevance then Parliament could have left
the word "unreasonably" out of section 75B(2) altogether.
115. The Act is beneficial legislation which promotes the return to paid
employment as one of it's goals. It is also a compensation scheme which is
based on ongoing income maintenance until such time as the worker ceases to
have a loss of earning capacity as the result of an injury. The Act has
deliberately moved away from the payment of lump sums whereby a worker is then
set adrift to fend for him or herself (other than in the limited circumstances
permitted by section 74).
116. On the facts of this case I am not satisfied that the worker's failure
herein was unreasonable. If the evidence had been that the Warego mine would
continue operating for a reasonable and certain period; and the program would
continue to be available to the worker; and if she continued in the program she
could return to some specified full-time job (within a reasonable time) then I
may have been satisfied that her failure was unreasonable despite her personal
circumstances. If the evidence had been that the worker was told that even if
the Warego mine closed the program would continue at the Tanami mine; and if
she continued in the program she could return to some specified full-time job
(within a reasonable time) then I may have been satisfied that her failure was
unreasonable. There is no evidence from which I could find that this was in
fact the case or that she was told this.
117. She had been on the program for some considerable time (about 11 months)
and a clear plateau had been reached. No further increase in her capacity to
work appeared likely in the foreseeable future. She was still doing very
restricted duties. She was still working very reduced hours (less than 50% of
her pre-injury hours). I am not satisfied that had she continued with the
program that she could have expected to return to any work with the employer
beyond what she was then doing, apart from increasing her hours further. In
fact the break from the program appears to have helped her rehabilitation. I am
not satisfied that her decision to leave Warrego and be with her fiance was
unreasonable in all the circumstances.
118. I therefore find that the workers entitlement to weekly payments of
compensation had not been validly cancelled in accordance with the Act. In this
regard the employer has failed to satisfy me of the matters alleged in the Form
5 or in it's pleadings. I therefore find that the cessation of payments to the
worker on 10 July 1998 was wrong and should not have occurred.
119. The question remains as to what the employer should have been paying the
worker. As noted above I have found that the worker had returned to work with
the employer (this being part-time light duties) and was being paid $296 per
week. This work was still reasonably available to her after 10 July 1998 and
was the most profitable work then available to her. In my view therefore as at
10 July 1998 her loss of earning capacity was her normal weekly earnings (as
indexed in accordance with the Act) less $296, multiplied by 75%. The parties
have agreed various figures and put these forward as an agreed schedule. I
thank both counsel for their assistance.
120. I find that from 11 July 1998 until 31 December 1998 the employer should
have continued to pay the worker the sum of $361.22.
121. I find that from 1 January 1999 until the conclusion of the hearing the
employer should have been paying the worker the sum of $387.51 per week.
122. I find that the employer should have continued to pay the worker her
entitlements under the Act after the conclusion of the hearing and continuing
until such time as they are validly cancelled or reduced under the Act. I am
unable to be more specific in relation to this period.
123. There is also a claim for interest by the worker for interest under
sections 89 and 109 of the Act. As regards section 89 it is unnecessary in my
view for the Court to make any order as a worker is entitled as of right to
interest under this section for any late payment. My findings are such that the
worker should have continued to be paid each fortnight. The calculation of her
interest entitlement is a simple mathematical calculation under the Act, but
this calculation cannot be made until her due payment for each period is
actually made.
124. Under section 109 I need to be satisfied that there has been unreasonable
delay by the employer. On the evidence before me and given that it was the
worker who resigned I think that such a finding would be difficult to make in
this matter. However, neither counsel has addressed me on this aspect of the
claim so I will give them that opportunity before making any final orders.
125. I will hear the parties on the question of costs, interest and any
consequential orders or findings that they feel I should make.
Dated this 21st day of January 2000.
Mr DAYNOR TRIGG
STIPENDIARY MAGISTRATE
"She has not had any previous long term jobs as she has moved
around a lot. Her ex-husband was in the United States Air Force before coming
to Australia. She has done a number of things on a part-time/casual basis,
including shop security, office work, floristry, beauty therapist, nail
technician and sewing machinist."
"It was not possible to determine rehabilitation goals. These will
be forwarded once Denise has clearance from her doctor".
"Mrs Tanner has been at home resting since the surgery, she has now
commenced physiotherapy treatment and is following a home exercise program.
Mrs Tanner is wearing a tubigrip bandage for compression over her right wrist
during the day and no splint or bandage at night. She is experiencing
persistent wrist pain although no longer as severe as immediately post-surgery.
Mrs Tanner is taking anti-inflammatory medication daily, a trial without this
has recently resulted in increased swelling in the hand, wrist and fingers.
Present range of movement is very limited in all movements, and she is unable
to fully extend or flex her fingers, now able to tip touch thumb to fingers.
Home exercises focus on regaining movement of wrist and fingers, and Mrs Tanner
is undertaking these almost constantly throughout each day. Left hand symptoms
are also present and although mild, Mrs Tanner is conscious of risk of
exacerbation due to overuse, while her right hand's function is so limited."
"Dr Jones has certified Mrs Tanner unfit for work until mid-June
when he will next review her progress......As yet it is too early to determine
return to work restrictions however when Dr Jones considers Mrs Tanner fit to
return to work, it is likely to be to a program of graded hours and light
varied duties."
"Ms Tanner is not making good progress in recovery from the carpal
tunnel surgery."
"Suzanne Caragianis, Adelaide hand therapist, recommended Denise
commence a graded return to work. Dr Tonga has now cleared Denise as fit to
work modified duties. Suzanne also recommended Denise continue physiotherapy
two times per week for the next three weeks, and continue the extensive home
exercise program. To allow adequate time for this treatment and to minimise
risk of injury exacerbation, I recommend a very gradual return to work program,
with regular review by Dr Tonga to modify recommended hours of duty if
appropriate."
"Mrs Tanner has gained increase in range of movement and decreasing
pain levels in her right hand. She has not yet achieved full range of movement
in her fingers or wrist and continues to experience painful and significantly
reduced extension of her wrist and persistent pain in her right thenar eminence
(lower thumb). Swelling occurs after some activities and seems to have been
more prevalent since returning to work. Mrs Tanner is aware of decreased
sensitivity in her fingertips. Mrs Tanner continues to experience mild left
hand symptoms including some night numbness, no discomfort during daily
activities other than mild swelling."
"Mrs Tanner is continuing with the return to work program as
recommended but has not progressed beyond working 3 hours on 3 days. Mrs
Tanner seems to have reached a plateau in her recovery and has experienced
persistent hand and wrist pain and swelling. Ms Tanner has recently been
reviewed by Dr Jones who advised to take the return to work plan and the
treatment regime very slowly."
"Mrs Tanner manages these tasks using both hands, she takes regular
stretch breaks particularly in tasks requiring sustained hand position such as
transferring sample from beaker to test tube, she supports weights close to her
body, and regularly tests her capacity to handle heavier loads. Mrs Tanner
continues to avoid handling heavier loads such as trays of sample bags or racks
of beakers."
"As we know we will be dropping from six to four people when the
Warrego tailings CIP plant shuts down. This is expected to happen around
September 1998." (exhibit W1)
"Mrs Tanner is working 5 hours on 4 days in the laboratory. Her
duties are varied laboratory assistant duties, she is now able to repetitively
handle loads up to 2 kg (two hands) and make fine and repetitive hand actions
for the full period of her 5-hour shift. However, Ms Tanner develops fatigue
and increased hand pain at the end of this period and if she attempts to handle
heavier loads, sustained fine coordination or undertakes repetitive activities
for longer periods. Mrs Tanner works no more than two days consecutively and
often has days of increased stiffness and soreness at night and after the days.
Mrs Tanner is to be reviewed by Dr Tonga on 13 July 1998 for consideration of
her ability to increase hours of work. Mrs Tanner is not confident that she
will be able to manage more hours per day, however is prepared to work
additional hours on day five. This will also result in working up to three
consecutive days per week.
"I, Denise Tanner wish to resign from my position as lab assistant
at the Warrego site, due to personal reasons effective from 10/7/98.
"I, Denise Tanner have resigned from my position as lab assistant
with Normandy Gold at the Warrego site due to personal reasons.
"It can be concluded that at this stage Mrs Tanner is restricted by
the type of work she can do. That is, currently Mrs Tanner is unable to write
with her right hand for any length of time. Thus, work that does not involve
constant writing or typing may be more appropriate (eg. relief receptionist).
Mrs Tanner appears motivated to establish in an area of work that my provide
some permanency and is prepared to give new jobs and opportunities a chance
(eg. counselling, real estate sales). At this stage Mrs Tanner lacks
qualification and skills for work that may be suitable for her hand condition.
Thus, returning to further study and training may be a viable option for Mrs
Tanner to seek permanent full-time employment. In the meantime there are
possible employment opportunities for Mrs Tanner (eg. retail assistant, relief
receptionist). However, it is suggested that Mrs Tanner return to these
options on a part-time basis to assess the work impact on her hand and to
gradually increase hours of work to suit her condition."
"Mrs Tanner's overall performance on the day of assessment
indicates that she is most suited to work falling into the sedentary category
of physical work demands. She is restricted in her ability to perform fine
motor tasks....or repetitive and sustained upper limb movements. Any suitable
position would allow frequent postural change, would not involve
repetitive/sustained fine manipulation, and would not involve lifting or
reaching."
"Mrs Tanner said that she is much better now, but clearly not back
to normal. She said she can do "lots of things, although she still has funny
feelings in the tips of all of her fingers". She can do her housework,
although there are some difficulties and delays with things like mopping,
sweeping and lifting of washing baskets. She said she can drive a car, hers
being fitting with a knob on the steering wheel but she said she has reached
the point where she probably doesn't need this and is now really much better.
"It seems Mrs Tanner still suffers from the affects of the physical
injury to her wrist. It appears that the original injury was a carpal tunnel
syndrome, which is probably present in both hands, but her right hand is much
more affected than her left hand. There is no current evidence of any left
carpal tunnel syndrome.
"In my opinion the rehabilitation program would have been expected,
if seen through to completion to have returned her to a full working capability
in duties that were slightly restricted from the fairly heavy duties which she
was performing when she was initially injured. It would be expected that these
restrictions would be for an extended and possibly an indefinite period. In
addition I can see that there would also be the issue with regard to individual
susceptibility to re-injury ie. that generally, people who develop carpal
tunnel syndrome, anatomically tend to have a smaller carpal tunnel than the
rest of the population. However, it would be expected that the return to work
program would have returned her to full working hours in the laboratory
preparation. I consider that would have seen her through to a point where she
would have been capable of a variety of occupations outside the mining industry
such as retail, clerical and working with disabled children."
"Mrs Tanner reported that she still experiences a lot of trouble
with attempted activity. Activities such as tying shoelaces, mopping floors,
blow-drying her hair or carrying a full basket of washing are uncomfortable.
She said she needs a mechanical aid to open jars and bottles. Mrs Tanner
stated she has trouble writing letters and lifting and described gardening and
pushing a lawn mower as very difficult and said she generally does not do this.
She advised that she gave up riding her horses, lifting saucers and oven trays
is difficult and painful. In the garden she has pulled a few weeds but is
unable to dig. She was unclear as to whether she had actually made the attempt.
"There is no current evidence of active carpal tunnel syndrome or
of active reflex sympathetic dystrophy, ie. there is no evidence of colour
change, temperature change or muscle wasting in the right hand. While it could
not be possible to clarify if Mrs Tanner is fully fit to undertake restricted
manual duties however, I would regard her as clearly fit to undertake retail
employment and a variety of similar duties. The situation with regard to
clerical duties which may need repetitive manual work is unclear as I have some
difficulty in seeing the purely medical explanation for the diminution in grip
strength over the last eight months. With the evidence available to me there
has been no change in the work capacity since she last attended me."
"Dear Denise Tanner,
"Subject to this Subdivision, an amount of compensation under this
Subdivision shall not be cancelled or reduced unless the worker to whom it is
payable has been given -
"Adopting what was said in Johnston v Paspaley Pearls Pty
Ltd, the question can be narrowed down to whether the requirement that the
certificate served upon the worker should indicate that the worker has ceased
to be incapacitated for work is of such importance to the object of the statute
as to disclose an intention that its complete non-observance should invalidate
the action of the appellant in cancelling the respondent's weekly benefits.
For the reasons given by the learned Chief Justice, we think that the answer to
this question must be "yes", and that it is clear beyond question that the
requirements of s 69(3) as to the contents of the certificate may not be
ignored. However, we would not go so far as to say that a form of words other
than those prescribed by the subsection could never amount to compliance.
"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. Consequently the submission of
counsel for the appellant was that the worker, by seeking orders for weekly
compensation from the date of cessation of payments to date and continuing,
broadened the scope of the issues to include the question of the worker's
entitlements from the date of the Form 5 notice to the date of the hearing.
Moreover, s 69 (and appeals under that section) relate only to the reduction or
cancellation of weekly payments: see the opening words of s 69(1) which refer
to "an amount of compensation under this Subdivision". The employer is not
required to give a notice under that section to stop making payments under s 78
which is in a different subdivision of the Act. Clearly, the worker's claim
sought reinstatement of benefits payable under that section. In those
circumstances the employer was no longer confined to the grounds stated in the
Form 5 notice, but could raise by way of an answer any other ground to resist
the claim it wished, including whether there was ever any injury in the first
place."
"In dealing with an appeal under s 69, the Court is not called upon
to decide whether or not the employer was justified in the action it took
because there was evidence to support the action. The question which has to be
decided is whether, upon a consideration of all of the evidence in the case,
the employer has proved the facts set out in the certificate, and if so,
whether as a matter of law those facts support the conclusion that the worker's
weekly compensation payments should be cancelled or reduced, as the case may
be, as from the relevant date, which is 14 days after service of the Form 5
notice.
"An employer who has served a s 69 notice, may subsequently decide
after the employer (sic. worker) has appealed, that the issues to be decided
upon the appeal are too narrowly confined. At present, if the employer is in
this position, the employer can bring its own substantive application and apply
to have the two applications heard together. It may simplify hearings
procedurally and focus proper attention on who bears the onus of proof if the
rules were amended to permit the employer to raise new issues by way of
counterclaim." (words in brackets added by me).
"(ii) That the employer make payments of compensation from the date
of purported cancellation and continuing."
"(1) The purpose of this Division is to ensure the rehabilitation
of an injured worker following an injury.
"EMPLOYER TO ENDEAVOUR TO FIND OR ASSIST INJURED WORKER TO FIND
SUITABLE EMPLOYMENT, &c.
"An Act to promote occupational health and safety in the Territory
to prevent industrial injuries and diseases, to protect the health and safety
of the public in relation to work activities, to promote the rehabilitation and
maximum recovery from incapacity of injured workers, to provide financial
compensation to workers incapacitated from industrial injuries or diseases and
to the dependants of workers who die as the results of such injuries or
diseases, to establish certain bodies and a fund for the proper administration
of the Act, and for related purposes."