Australia: Work incapacity not simply a matter of physical capacity

The Court of Appeal has clarified the definition of "no current work capacity" in the case of Richter v Driscoll [2016] VSCA 142, for the purposes of assessing a worker's entitlement to weekly payments of compensation beyond the expiration of the second entitlement period.

The Court of Appeal's decision reinforces that, in determining whether a worker has a "current work capacity", it is not sufficient to find that they have a physical capacity for the tasks required in a particular role羊egard must also be given to the worker's personal circumstances, including their age, education and employment history, location, and the length of any period of time out of the workforce.

Background

The Applicant, Ms Richter, was a 59 year-old woman living in Wodonga. She was educated to Year 7 and had difficulties with literacy and numeracy. Before commencing work as a nursery assistant with the Respondents, Ian Malcolm Driscoll, Ms Richter had engaged in very little employment and had "virtually no acquired employment skills or experience".

In the course of her employment, Ms Richter suffered a lower back injury requiring surgery. As a result of the injury, she ceased work in 1994 and never returned. By the time of the Court of Appeal hearing, she had been unemployed for about 20 years.

Between 1994 and 2013, Ms Richter received weekly compensation payments. However, her payments were terminated by the WorkCover agent from 28 December 2013 on the grounds that she had a current work capacity or that her incapacity for work was not likely to continue indefinitely. The evidence relied upon in support of the termination included a vocational assessment report, which identified a number of potentially suitable alternative roles.

Medical Panel decision

Ms Richter commenced proceedings in the County Court seeking the reinstatement of weekly payments. The County Court referred a number of medical questions to the Medical Panel, the most important of which was whether Ms Richter had no current work capacity, which was likely to continue indefinitely. The Panel found that Ms Richter did not have no current work capacity, in that she had a current work capacity for employment as a light process worker熔ne of the roles identified by the vocational assessment report.

Supreme Court decision

Ms Richter issued an originating motion in the Supreme Court seeking an order to quash the opinion of the Medical Panel. The grounds of appeal relied upon were, firstly, the Panel failed to take into account relevant considerations and, secondly, the Panel failed to provide adequate reasons for its decision.

The presiding judge, Her Honour Judge Zammit, concluded that the Medical Panel had correctly interpreted "no current work capacity". She also found that the Panel gave adequate reasons for its opinion and, as such, Ms Richter's application was dismissed.

Court of Appeal decision

Ms Richter issued an application for leave to appeal the decision of the Supreme Court to the Court of Appeal. The grounds of appeal included that the primary judge incorrectly interpreted the term "no current work capacity" and that the judge incorrectly found that the Panel's reasons were adequate.

The Court of Appeal, constituted by Ashley, Osborn and Kaye JJA, found the definition of "no current work capacity" is focused on a worker's inability to engage in employment. Importantly, Their Honours also held that a return to work requires more than a physical capacity to perform a particular task, as there is "more to an ability to work in employment...than the ability to perform a task that happens to be required in that employment".

The Court found the primary judge applied an unduly narrow interpretation of the term "no current work capacity". It also found that the Medical Panel incorrectly focused entirely on Ms Richter's physical capacity for the duties of a light process worker described in the vocational assessment report. It was found that the Medical Panel "did not mention at all"Ms Richter's 20 years of unemployment following her injury, which was "surely a matter which required consideration". Similarly, it failed to take into account her minimal education and very limited work experience. While the Panel was not required to determine whether Ms Richter would actually succeed in obtaining employment, it was still required to consider the entirety of her circumstances. As such, Their Honours upheld Ms Richter's appeal on the basis that the primary judge incorrectly interpreted the term "no current work capacity".

In addition, the Court found the Medical Panel's reasons "decisively failed" to describe its reasoning in determining that Ms Richter had a physical capacity to engage in light process work (contrary to the finding of the primary judge). Essentially, the Panel had simply relied on the description of the duties in the vocational assessment report, which only contained a generic description of the physical demands of the role as light to medium.

The Court was also critical of the vocational assessment report itself, noting that the descriptions of the duties for each alternative role identified in the report were based on internet searches and that it was unclear what actual knowledge the assessor had of the work required for each role. Accordingly, it stated the report was a "most unsatisfactory document" to use as the basis for a conclusion regarding Ms Richter's physical capacity for work. The Court also highlighted that in finding Ms Richter had an ability to engage in employment involving the duties described in the report, the Panel was required to properly explain its reasoning by giving "some practical content to the job involved". Further, the only evidence that a job was actually available was an assertion in the report that there were "four potentially suitable roles" within travelling distance of Ms Richter's residence. Consequently, Their Honours found the Panel's reasons were inadequate.

Implications

The Court of Appeal's decision confirms what factors need to be taken into account to conclude whether a worker has current work capacity. While it is not necessary to find that a worker will actually obtain employment on the open labour market, the decision-maker is essentially still required to consider the worker's employability in all the circumstances. The decision also makes clear that a medical panel must thoroughly explain its reasoning in concluding that a worker has a current work capacity.

For self-insurers and employers, it is important to ensure any vocational assessment report relied upon for the purposes of terminating weekly payments, provides more than just a generic description of alternative duties and a brief description of the physical requirements.Such reports may be found to be unreliable for the purposes of assessing a worker's capacity, as in this case. However, it should be kept in mind that Ms Richter's case was unusual as she had virtually no work experience or skills, had been unemployed for 20 years and had received weekly payments for 19 years before her payments were terminated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.