Australia: Desk jobs for truckies: Tribunal considers Suitable Duties and retirement

Last Updated: 24 January 2018
Article by James Makowiak and Nathan Hepple

Cooney and K & S Freighters Pty Ltd (Compensation) [2017] AATA 1460

Key Points

  • Mr Cooney was a trucker driver who injured his back in the course of his employment.
  • He was offered clerical duties at his regular earnings, which he accepted.
  • Mr Cooney subsequently retired whilst in the course of the clerical duties.
  • The Tribunal found that the duties offered to Mr Cooney were not suitable, and that his retirement was reasonable in the circumstances.

Background

Gregory Cooney was employed by K & S Freighters Pty Ltd (K & S) as a truck driver.

On 25 July 2011, Mr Cooney injured his lower back in the course of his employment while picking up roof tiles out of a trailer. After a brief period of treatment, he returned to pre-injury duties and continued with those duties until May 2012.

On 15 May 2012, Mr Cooney was driving a truck when it started to oscillate due to the undulations in the road, resulting in the driver's seat collapsing. He noticed pain radiating down his left leg. The following day, he took painkillers and returned to work but the pain did not improve so he contacted his supervisor and informed him. He did not return to work on his normal duties, but was placed on a "home pack", which involved him undertaking bookwork at home including reviewing his safety procedures.

In August 2012, Mr Cooney commenced modified duties, including "off-siding duties", whereby he would travel on a job with another driver. He said he found this uncomfortable, and it jarred his back. After two days of this, Mr Cooney told his supervisor it was not working and in late August 2012 was allocated to clerical office duties. In the course of such duties, Mr Cooney would experience pain, and would stand up and move around.

Mr Cooney resigned on 7 September 2012. At the date of the resignation, Mr Cooney was earning his Normal Weekly Earnings (NWE) and was certified fit for 8 hours per day, 5 days per week of office duties. Following his resignation, he invested in a coffee shop business with his wife. He performed work at the coffee shop, though this involved little to no physical labour, with some sitting.

Mr Cooney submitted two claims for workers compensation, claiming incapacity from the date of his retirement and ongoing (as well as medical treatment expenses). Liability to pay compensation for incapacity was denied in both instances by way of initial determinations. The determinations were affirmed and the resulting Reviewable Decisions were brought before the Tribunal.

The Law

The critical issue for the Tribunal to decide was whether Mr Cooney, having become incapacitated for work, received an offer of suitable employment and whether, having accepted that offer, he failed to engage, or to continue to engage in that employment. The relevant section of the SRC Act was section 19 and, more specifically, section 19(4). The section is extensive but provides, in essence, the criteria to which K & S must have had regard in deeming Mr Cooney able to earn, having been offered alternative employment duties.

The Tribunal heard evidence from six medical specialists, as well as factual evidence, and found that Mr Cooney was fit to undertake the administrative duties with which he was provided in August and September 2012 – the real reason for the resignation from his employment was the fact that he wished to join his wife in the conduct of a coffee shop.

The Tribunal traced the authorities on the issue of suitable employment, starting at Woodbridge v Comcare [1994] FCA 1249, in which the steps for applying section 19 in similar circumstances were set out as follows:

  • Has there been an offer of suitable employment (a medical question)?;
  • Has the applicant failed to engage or continue to engage in that employment?
  • If so, was the failure to engage or continue in that employment reasonable?
  • What is the amount which the employee is able to earn in suitable employment (Having regard to the matters in subsection 19(4)?

In Woodbridge the applicant was a boilermaker who sustained an orthopaedic injury and appeared to have made a full recovery, but resigned. The Full Court of the Federal Court held the applicant was able to perform the duties of a boilermaker at the relevant time, and the resignation had nothing to do with his medical condition. Compensation was denied.

A number of similar decisions were considered, including:

  • Slater v Telstra Corporation Limited [2001] FCA 1417, in which Telstra was found not liable to pay compensation where it had offered an employee clerical work, which he was fit for, earning equal to or greater than his NWE;
  • West and Comcare [1994] AATA 33, in which an air traffic controller who sustained an injury was provided with alternative duties which did not appropriately utilise his skills, experience and qualifications. The alternative duties were found not to constitute suitable employment;
  • Montgomery and Comcare [1996] AATA 655, in which an employee who suffered hearing loss was provided alternative duties in an environment which aggravated his condition; and
  • Brooks and Comcare [1995] AATA 252, in which a clerical worker suffering stress and anxiety was found not to have been offered suitable employment, as the alternative role placed him in an environment similar to that which caused his condition.

Conclusion

In Mr Cooney's case, the Tribunal compared his pre-injury duties to the clerical work offered to him after his injury. It found that the duties offered to Mr Cooney were foreign to his normal modes of work. Further, the facilities offered to carry out the clerical work involved a need to sit for prolonged periods of time, for which a hard seat and a table were provided. Mr Cooney requested an adjustable seat, and his request was declined.

The Tribunal found that Mr Cooney had realised, at the time he resigned, that he would not be able to return to work as a truck driver. It was accepted that Mr Cooney was fit for part-time administrative duties on a daily basis, but the work offered by K & S and the facilities provided for such work aggravated Mr Cooney's symptoms and rendered the work unsuitable. K & S maintained that Mr Cooney's primary motivator for his resignation was the coffee shop business, but the Tribunal found that this was simply a part-time occupation and that the driving factor behind his retirement had been his injury (comparing to Woodbridge, in which the worker's retirement was unrelated to his injury). It was therefore reasonable that Mr Cooney resign.

Lessons Learnt

When asked to assess whether alternative employment offered to an employee who is incapacitated is 'suitable', it is not sufficient for an employer to simply rely on the fact that the worker will be paid equal to or more than his or her pre-injury earnings. It must be shown that the duties utilised the worker's skills and experience in some way, and did not aggravate the worker's condition.

In circumstances where a worker is offered alternative duties and subsequently resigns, employers bear a heavy onus in proving that the worker's retirement is not related to the worker's injury. In cases such as this all efforts should be made to gather the best possible evidence to support a determination. The retirement is otherwise likely to be reasonable.

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.

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