Skip to Content, Skip to Navigation

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Accident Compensation Cases

McDonald v Accident Rehabilitation & Compensation Insurance Corporation (DC, 18/05/94)

Judgment Text

D A Ongley Judge
This is an appeal against a review upholding the Corporation's decision to cease payments of weekly compensation. The basis of the adverse decision was that following repeated requirements issued by the Corporation to the appellant to furnish selected work forms, the appellant failed to inform the Corporation in any reliable or reasonable way of any steps being taken by him to secure selected employment. 
The appeal was argued by the respondent on the basis that the statutory requirements are to be found in s 73(2) and s 64(1)(b) of the Act. Those provisions are set out below: 
Test of incapacity - 
For the purposes of this Part of this Act, whether or not a person to whom this Act applies is incapacitated shall be determined by whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred or, where any of sections 44, 45, 46, or 49 of this Act applies, any other employment for which the person is qualified by reason of experience, education, or training or any combination of them. ”
Incapacity must result from personal injury and must render the person unable to engage in his or her existing employment or alternative employment of the kind described in s 37. Evidence of the appellant's incapacity was contained in certificates which were accepted by the Corporation. The certificates provided evidence of a disk prolapse preventing the appellant from returning to any work involving heavy lifting or bending so that he would have to look at retraining and much lighter work. That was not disputed. At the review hearing the defendant gave evidence concerning the limitations on the work which he could perform and he testified that he had been researching availability of work but could find no available job which he could undertake. 
Mr Stevens submitted that there is no express requirement anywhere in the 1992 Act that any person who is eligible for earnings related compensation should actively seek work. Neither is there any implied requirement. In the absence of any requirement, it was argued therefore that the Corporation is not expressly or impliedly authorised by the Act to require information from the person who has suffered incapacity in order to test the efforts which that person has made to obtain alternative employment. In other words, it is submitted, the requiring of such information is ultra vires the powers of the Corporation under the 1992 Act. The information is not relevant in terms of s 64(1)(b). If it is not relevant, then a fortiori the Corporation cannot “reasonably” require it. 
Mr Stevens submitted that the Corporation should institute an individual rehabilitation programme. That course of action would oblige the appellant to discuss aspects of rehabilitation and to agree to a reasonable programme, failing which the Corporation may pursuant to s 73(2)(c) decline to continue payments under the Act. This argument overlooks the definition of rehabilitation in s 3 of the Act as follows: 
‘Rehabilitation’ means a process of active change by which a person who has suffered personal injury regains or acquires and uses the skills necessary for optimal physical, mental, vocational, and social function: ”
The definition is not associated simply with regaining employment, but with a process of regaining or acquiring skills for functions, and in this case skills for employment. This is not a case where a vocational rehabilitation programme under s 22 of the Act has been contemplated. The objective of the Corporation at this stage is evidently to ensure so far as possible that the appellant is making an effort to obtain alternative employment which suits his present capacity and level of skill. 
Mr Stevens drew attention to s 49(1) of the 1992 Act which provides, after 12 months, that a person with a capacity of 85% or more (determined under s 51 of the Act) shall cease to be eligible for compensation for loss of earnings irrespective of whether there are any employment opportunities suiting the person. The point which the appellant seeks to make is that this section contains express recognition that the state of the employment market is irrelevant to whether compensation is payable. There is no merit in that argument. Section 49 is a specific limitation on the level of insurance provided by the Act. Persons having a capacity of 85% or more are insured for earnings related compensation for no more than 12 months. It is one illustration of the limitations on accident compensation cover to be found throughout the Act. It is consistent with those limitations, and with the rehabilitation provisions in the Act, that insured persons are to limit their dependence on the Corporation. It is plain, without needing to be expressly stated, that the insured person should seek whatever level of employment is consistent with his or her capacity and that the Corporation should take active steps to ascertain, in appropriate cases, that an effort is being made. That conforms also with general concepts of insurance cover. 
I conclude that, for reasons of monitoring the claimant's effort to establish reasonable employment, to relieve the Corporation of responsibility for full payment of earnings related compensation, it is relevant for the Corporation to obtain information and it is reasonable for that information to be stipulated as a report on a form provided by the Corporation of periodic applications for work. Applications in three occasions each month are in my view reasonable in the present case. 
The final question then is whether the claimant's failure to provide the information pursuant to s 73(2)(a) was unreasonable. In that respect, the appellant relied on oral evidence which he had given before the review officer: 
“ … The girl in the office said you've got to be seen - to satisfy them, you had to be seen to be applying for jobs, it didn't matter as long as you wrote something down there, it has to - to say that you were applying for jobs. So, if you haven't - I weren't applying so I didn't write anything down. ”
The appellant also pointed to his evidence of applications for jobs, for which the forms were not completed and furnished. That evidence was couched in the most general terms. The appellant did not provide any list of prospective employers or relate particulars of individual interviews or job descriptions. His assertions of genuine attempts to obtain alternative employment were therefore unsupported by the particulars or documentary evidence which the Corporation and the review officer were entitled to expect. In the absence of such verification the appellant's claims rested on his own word and could not reasonably be tested by the Corporation. The appellant suggested that the failure was reasonable by his own lights because he had been misled by a clerk of the Corporation. I cannot accept that proposition in light of the very clear requirements which were issued by the Corporation in writing. I find therefore that the appellant's failure to furnish the required information was unreasonable and it follows that the Corporation's decision to cease ERC is confirmed. The appeal is dismissed. 

From Accident Compensation Cases

Table of Contents