DUNLOP OLYMPIC LTD v HONIN JABOUR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MEAGHER and HANDLEY JJA 8 March 1991, 8 March 1991 [1991] NSWCA 84 WORKERS COMPENSATION — Appeal from Compensation Court to Court of Appeal — appeal from Commissioner to judge. APPEAL — Error of law. Judge holds Commissioner misdirected herself in considering capacity for pre-injury employment rather incapacity for work generally. Held: Commissioner did not err in law — her reasons did not disclose that ultimate issue of incapacity was decided solely on the basis of her finding that worker was fit for his pre-injury employment. Workers Compensation Act 1926 s11 Arnotts Snack Foods Pty Limited v Yacobs (1985) 155 CLR 171 Handley JA This is an appeal against the decision of Judge Moroney of the Compensation Court who had himself allowed an appeal by the present respondent from a decision of Commissioner Ashford. Commissioner Ashford had heard and dismissed an application by the present respondent who had sought an award of compensation for total or partial incapacity resulting from an employment injury which occurred on 12 March 1984. The employer had paid compensation until 29 August 1987 but payment of compensation had then ceased. The worker commenced proceedings in the Compensation Court shortly afterwards. In a reserved decision Commissioner Ashford held that she was not satisfied that the applicant had discharged the onus to support a claim for incapacity beyond the date that compensation ceased. Accordingly she made an award for the respondent. The applicant appealed to the Compensation Court from this award. Such an appeal under the legislation then in force lay only in respect of questions of law. The appeal was heard and allowed by Judge Moroney. He held that the Commissioner had misdirected herself by considering only whether the applicant was fit for his pre-injury employment and not the wider question whether he was partially incapacitated for work. It will be obvious that in some cases an employee may be fit for his or her pre-injury employment yet still be partially incapacitated for work. It will be obvious that in some cases an employee may be fit for his or her pre-injury employment yet still be partially incapacitated for work, that is, for other work. The leading case on this question is that of the High Court in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171. The High Court decided that incapacity for work denoted within the meaning of the workers' compensation legislation a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work although this incapacity may not necessarily attract compensation because it may result in no loss of earning power. As a result as the majority further pointed out at 179: "An employee may, as a result of an injury, sustain an incapacity for a particular class of work, work in which he was not engaged at the time he sustained injury being work in which he might reasonably be expected to engage in the future." 2 UNREPORTED JUDGMENTS Judge Moroney said, in his reasons for judgment allowing the appeal from Commissioner Ashford: "Tt seems to me that having regard to statements of superior courts on partial incapacity for work, and I refer to Arnotts Snack Products Pty Ltd v Yacob (1983-84) 155 CLR 171; Steggles Pty Ltd v Vandenberg (1986) 6 NSWR 233; Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222, and an unreported decision of the Court of Appeal in Grandulobic v Borg Warner Australia Pty Ltd, 572/84, which decision was delivered on 1 December 1987, that the use of the signposting words, pre-injury employment in the passage to which I have referred in the Commissioner's judgment is such that the appeal should be upheld on the basis that the Commissioner has misdirected herself in determining whether or not the applicant was partially incapacitated for work." The question for this court is whether in truth the Commissioner did misdirect herself in that part of her reasons for judgment that has been referred to. The Commissioner's reasons, so far as relevant, commence with a reference to the opinion of Dr Melick that the applicant was fit for his pre-injury employment. She continued by stating: "... nothing in the medical evidence presented for the applicant instils in me a belief that he remains unfit for his pre-injury employment." Her ultimate conclusion was: "T am not satisfied that the applicant has discharged the onus to support a claim for incapacity beyond the date compensation ceased." In the present case the applicant had been employed by the respondent as a general labourer. It is clear from his employment history, and was not disputed before this court, that the applicant had no pre-injury capacity for work except as a general labourer. There was, therefore, no question in this case of the applicant having a capacity for work of a different kind or character to the work in which he was engaged at the time he sustained his employment injury on 12 March 1984. There is no question therefore that there was some other work in which this applicant might reasonably have been expected at the time of his injury to engage in the future. Accordingly there was nothing to give any practical content in the present case to the distinction between incapacity for his pre-injury employment and partial incapacity for work which was the basis of Judge Moroney's decision to allow the appeal to the Compensation Court. In my opinion a fair reading of the reasons for judgment of Commissioner Ashford does not support the view that she misdirected herself in law in the manner found by Judge Moroney. She does not expressly decide that the claim for compensation should be refused because the applicant had not satisfied her that he was unfit for his pre-injury employment. Her express reasons for dismissing the claim for compensation were simply that the applicant had failed to discharge the onus to support a claim for incapacity beyond the date compensation ceased. The alleged error of law is one which has to be extracted from the reasons for judgment of the Commissioner by a process of analysis and reasoning but, in my opinion, the reasons for judgment do not support the ultimate conclusion that she misdirected herself. The statements relied upon are mere statements of fact either in relation to the medical evidence or as to the nature of the evidence given by the applicant himself. Moreover, as I have already said, in this case there was no practical content in the distinction between the applicant's capacity for his pre-injury employment and his capacity for work within the meaning of s11 of the Workers Compensation Act. URJ DUNLOP OLYMPIC LTD v HONIN JABOUR (Meagher JA) 3 For these reasons I am of the view that the Commissioner did not err in law in her decision refusing the applicant's claim for compensation. I, therefore, propose that the appeal to this court be allowed, that the decision of Judge Moroney be set aside and that the appeal by the present respondent to the Compensation Court be dismissed. I would wish to hear argument on the question of costs arising from the orders I have proposed, assuming that they become the orders of the court. Samuels JA I agree. I add only this - it is clear that in Yacob the High Courtemphasised the rejection of "... the erroneous view that a worker is not partially incapacitated if he can do all the things that he could do before the injury." Certainly the principal factual issue in this case was whether the worker was able to do what he could do before the injury, he asserting that he could not, and that was a view of his condition which the Commissioner rejected. However, alike with Handley JA, I cannot read her reasons as indicating that she came to that ultimate view on incapacity because of the view she had formed of the worker's ability to do his pre-injury work. I see no link of that kind and, therefore, no error of law. I would agree with the orders which have been proposed. Meagher JA I agree with both my brothers. The orders of the court are the appeal is allowed, Judge Moroney's orders are set aside and the appeal from the Commissioner to Judge Moroney is dismissed. We order the present respondent to pay the appellant's costs of the proceedings before Judge Moroney and of this appeal. He is entitled to a certificate under the Suitors' Fund Act in respect of the costs of this appeal. Counsel for the Appellant: L King Counsel for the Respondent: A Hughes Solicitors for the Appellant: Curwood and Partners Solicitors for the Respondent: D LA Rosa and Izzo