Suitable Employment or “I’m not old”

Carter v Parcel Post Logistics Pty Ltd [2020] NSWWCCR 11

The Applicant injured his back on 5 March 2018 and had been unable to work since that time. He has undergone surgery and continued to have pain in both his lower back and radicular symptoms in his left leg.

The Respondent issued a work capacity decision on 16 June 2020 which reduced the Applicant’s weekly payments to $164.64 per week. The Applicant commenced proceedings challenging that decision on the basis that he was not capable of working in the suitable employment identified by the Respondent.

Issue in dispute

The issue in dispute was whether and to what extent the Applicant had a capacity for suitable employment as defined under Section 32A of the Workers Compensation Act 1987 (the ‘1987 Act’)

The Respondent issued a Section 78 notice which nominated the roles of customer service officer and disabilities support officer as being suitable employment based on a vocational assessment report dated 4 April 2019.

Relevant law

Section 32A of the 1987 Act provides:

“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:

• having regard to:
• the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker, and
• the worker’s age, education, skills and work experience, and
• any plan or document prepared as part of the return to work planning process, including any injury management plan
• any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
• such other matters as the Workers Compensation Guidelines may specify, and
• regardless of:
• whether the work or the employment is available, and
• whether the work or the employment is of a type or nature that is generally available in the employment market, and
• the nature of the worker’s pre-injury employment, and
• the worker’s place of residence”

Decision

Ms Ann McLeod, Acting Senior Dispute Services Officer, noted in a matter involving the definition of suitable employment pursuant to Section 32A of the 1987 Act, that there are matters that are required to be considered and matters that cannot be regarded.

In respect to the nature of the Applicant’s incapacity, Ms McLeod noted that he continues to be quite significantly incapacitated due to his workplace injury. The Applicant’s nominated treating doctor provided certificates of capacity with consistent comprehensive restrictions for an extended period of time. Ms McLeod considered that it was unlikely that the Applicant would ever be able to return to the type of physical employment he had performed in the past. Ms McLeod noted the Applicant had begun the process of retraining as a counsellor.

The Applicant’s previous employment roles were in largely physical roles or industries which involved heavy duties. The suitable employment opportunities identified by the Respondent were in areas that the Applicant had no previous experience. The Applicant was 49 years of age and Ms McLeod considered that due to his age engaging in a career change was a significant challenge.

The vocational assessment report assessed the Applicant as having good literacy skills, basic numeracy skills and a sound knowledge of computers. The report also included a list of transferrable skills including communication skills. Ms McLeod considered that these skills were relevant to the applicable vocational options. Due to the Applicant’s working career in ‘heavy roles’, Ms McLeod considered the scope of transferrable skills to other industries was limited.

The Applicant submitted that he had not been provided with any work trials or retraining by the rehabilitation provider. The Respondent submitted that there was no obligation to conduct a work trial for the Applicant. Ms McLeod whilst noting that the Respondent’s submission was “technically true”, the definition under Section 32A makes the provision or lack thereof of rehabilitation services a relevant consideration. Ms McLeod noted that since Applicant was expected to transition into an entirely new industry in which he had no previous experience that a work trial or other rehabilitation support would have assisted.

Ms McLeod considered that the roles identified by the Respondent were not suitable employment having regard to the Applicant’s age, skills and work experience: despite being within his physical restrictions. The Applicant succeeded in re-instatement of his weekly benefits pursuant to Section 37 of the 1987 Act.

Implications

An employer must take into account all relevant considerations under Section 32A of the 1987 Act when proposing suitable employment. A role will not be considered to constitute suitable employment unless it has regard to all of those considerations.

Should you have any questions about a particular workers compensation matter, please telephone our workers compensation team on either (02) 4929 9333 or (02) 8297 5900.