Anderton v Q-Comp [2006] QIRC 119 (2006) 183 QGIG 671

[Extract from Queensland Government Industrial Gazette, dated 29 September, 2006, Vol. 183, No. 9, pages 671-679] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Garry Anderton AND Q-Comp (WC/2006/18) COMMISSIONER ASBURY 18 September 2006 Workers' compensation - Entitlement for partial incapacity - Nature of appeal under s. 550 of Workers' Compensation and Rehabilitation Act 2003 - Onus of proof - s. 162 of Workers Compensation and Rehabilitation Act 2003 - Loss of earnings - Worker engaging in full-time study - Worker did not attempt to obtain suitable employment during period of partial incapacity - Contention that worker should have been informed that failure to seek suitable employment would result in cessation of compensation payments rejected - Failure to establish that worker was totally incapacitated - Failure to establish that worker could not have reasonably derived income during period of partial incapacity - Appeal dismissed - Decision of Q-Comp confirmed. DECISION This is an appeal under s. 550 of the Workers Compensation and Rehabilitation Act 2003 by Mr Garry Anderton against a decision of the Review Unit, Q-Comp, dated 27 February 2006. Mr Anderton commenced employment as a casual employee with a freight company, in November 2004. In late December 2004 Mr Anderton suffered a hernia injury, which he stated was caused by "stacking empty pallets on to a pile, to take back to the truck". At the time of sustaining this injury, Mr Anderton was 56 years of age. Mr Anderton lodged a claim for compensation with WorkCover Queensland (WorkCover) on 13 January 2005. WorkCover advised Mr Anderton by letter dated 15 March 2005 that his claim had been accepted and that benefits would be paid to him from 6 January 2005. Mr Anderton was also advised that reasonable costs for medical treatment would be paid by WorkCover while he was covered by a current workers' compensation medical certificate. Mr Anderton was paid weekly compensation payments for the period from 6 to 30 January 2005, and thereafter did not receive any further payments until 3 October 2005, when they were resumed, on the basis that Mr Anderton was totally incapacitated from that date, due to the fact that he had undergone surgery. By letter dated 7 July 2005, WorkCover advised Mr Anderton that: "...you have supplied ongoing 'total incapacity' medical certificates up to 1 September 2005. Please note that as you are continuing with your full time studies through Brisbane Institute of TAFE and receiving Austudy Centrelink benefits, you are not entitled to any ongoing wages compensation under this claim...". Mr Anderton corresponded with WorkCover by letter dated 14 July 2005 and asked a number of questions in relation to his claim and the decision to cease compensation, including whether he should have received any payments as he had continued an Austudy supported course started in 2004. By letter dated 18 July 2005, WorkCover responded to Mr Anderton, and in relation to his question about whether he should have received any payments because of continuing an Austudy supported course, the following statement was made: "..WorkCover considers a return to study to be the equivalent of an 'engagement in a calling' and as such there exists no entitlement to ongoing weekly compensation payments from the date that you commenced full time study. WorkCover is happy to provide a Statement of Reasons for this Decision should you require it, and you may seek a review of the decision to cease your wage payments if you do not agree with this decision.". Mr Anderton corresponded with WorkCover on a number of occasions, seeking clarification on a number of points, including the meaning of the term: "equivalent of engagement in a calling" and an explanation of the method by which the payments received by him had been calculated. WorkCover responded to these requests seeking a meeting with Mr Anderton to discuss issues raised by him. Mr Anderton continued to press for written responses to his questions, declining to meet with representatives of WorkCover until these were received. On 31 August 2005, a letter was forwarded to Mr Anderton providing initial information in response to his questions, and again requesting a meeting to enable his issues to be further clarified. That letter stated that payments already made to Mr Anderton had been based on an amount of $474.00 per week, which had been calculated by looking at his total earnings during his period of employment and dividing this by the number of weeks Mr Anderton had been employed, to provide for an average approximate weekly rate of pay. The letter also requested that Mr Anderton attend a meeting at WorkCover on 7 September 2005, or that Mr Anderton contact WorkCover to arrange an alternative time, if the requested time was not suitable to him. Mr Anderton responded to this letter by a further letter of 20 September 2005, which sought the reasons for decisions about ceasing payments to Mr Anderton, and an explanation of the term "equivalent of engagement in a calling". Mr Anderton again stated that he would meet with WorkCover after he had a better understanding of these matters. -- 1 of 8 -- 2 Mr Anderton also wrote a further letter on 20 September 2005 to another representative of WorkCover again requesting a statement of reasons for the decision to cease his compensation payments and an explanation of the term "equivalent of an engagement in a calling". On 26 September 2005, WorkCover forwarded to Mr Anderton a statement of reasons for the decision not to make weekly compensation payments to him. The covering letter stated that: "I note that [the] letter of 18 July 2005 referred to your having 'engaged in a calling' by returning to study, and that this was the reason for WorkCover ceasing payments of weekly compensation. Unfortunately, this reference was in error as the 'engagement in a calling' relates to a different section of the Workers' Compensation and Rehabilitation Act 2003, and does not apply in your case. I sincerely apologise for the confusion that this incorrect reference may have caused.". The attached statement of reasons for cessation of Mr Anderton's weekly compensation payments set out ss. 161 to 163 of the Workers' Compensation and Rehabilitation Act 2003 and go on to state: "4. How WorkCover reached this decision In reaching this decision, I reviewed the statutory claim file and considered the following evidence:  Your application for compensation dated 10 January 2005  Employer's Report dated 10 January 2005  Workers' Compensation Medical Certificates dated 06 January 2005 to 07 September 2005 issued by your general practitioner Dr H Khalil  Report of Dr Kalil (sic) received by WorkCover on 07 February 2005  Report of Dr Chris Pyke, Surgeon, dated 17 February 2005  Report of Dr M. E. Foley, External Medical Officer, dated 02 March 2005  File note dated 07 July 2005 by Lisa Hagaen, Claims Assessor, of telephone conversation with Greg James of Centrelink  Your letter to Irene Violet dated 20 September 2005 5. Applying the evidence and facts to the legislation  Since your injury you have been certified by your doctor as partially incapacitated in that you are able to work full time provided you do not lift or carry weight greater than 5kg  You have chosen not to work because you are engaged in a course of full time study  Although you are not currently in employment, having regard to your incapacity and the availability of those earned in the employment in which you were injured, that is earnings of $474.00 per week  I therefore consider that your loss of earnings under s162 of the Workers' Compensation and Rehabilitation Act 2003 is currently $0 per week  Applying the formula contained in s163 of the Act, I therefore consider your weekly rate of compensation payable for your injury on account of your current partial incapacity to be:- PC = $474.00('MC') x $0 ('LE') $474.00 ('NWE') 6. Summary of decision WorkCover is satisfied that:  Your current entitlement to weekly compensation for your partial incapacity is $0 This means under s162 and ss163 of the Act I am obligated to make no payments of weekly compensation to you during your current partial incapacity.". On 3 October 2005, Mr Anderton went for surgery, and his weekly compensation payments were reinstated on the basis that his status, as certified by a medical practitioner, changed from "partially incapacitated" to "totally incapacitated". On 19 October 2005 WorkCover again wrote to Mr Anderton responding to a series of questions he had posed in a letter dated 12 October 2005. That letter is not in evidence, but it is apparent from the response that Mr Anderton had continued to press for an explanation of the term "equivalent of engagement in a calling" and it was reiterated to Mr Anderton that this reference had been made in error and did not apply in his case. It is also apparent from that response, that Mr Anderton had asked why he had not been told to find another job and what jobs WorkCover had believed were available to him. Mr Anderton also queried whether he should have told employers of his incapacity. The response to these queries was as follows: -- 2 of 8 -- 3 "WorkCover is not suggesting that you should have found another job while partially incapacitated if you choose to pursue a course of study instead. My previous letter simply explained why WorkCover does not pay for lost wages while an injured worker is studying full time. WorkCover respects your decision to study full time rather than work at the present time, and we do not suggest that you ought to be doing otherwise. However, you will understand that if you choose to study rather than work, you are not entitled to be paid loss of wages for periods when you could have worked but chose to study instead.". The letter went on to state that as Mr Anderton was currently totally incapacitated, having undergone surgery, WorkCover would pay him lost wages because he was unable to work, even if he wanted to. This was contrasted with Mr Anderton's previous circumstances where he could have worked but chose not to due to study commitments. Mr Anderton continued to receive weekly compensation payments based on total incapacity, up until 30 January 2006. On 23 December 2005, Mr Anderton lodged an application for review of the non-payment of weekly compensation payments for the period from 30 January 2005 until 3 October 2005. The grounds upon which Mr Anderton sought the review were as follows: "WC told me on 26/9/05 that I should have looked for another job because I was not totally incapacitated? I did not know this before or could have known. WC should have told me this on 12/1/05 and not 26/9/05. WC chooses not to tell I[njured] W[orker]s to get other jobs then blames them for not asking?". By a decision of 27 February 2006 Q-Comp confirmed the decision of WorkCover that Mr Anderton was not entitled to compensation for the period from 30 January 2005 to 3 October 2005. After setting out some background and relevant sections of the Workers' Compensation and Rehabilitation Act 2003 the Q-Comp decision identifies the central issue for determination, as whether Mr Anderton suffered a loss of earnings for the period of 30 January 2005 to 3 October 2005. The decision goes on to cite the cases of Colbran v WorkCover Queensland (1996) 152 QGIG 1180 where his Honour President Justice de Jersey referred to the meaning given to the term "incapacity for work", in Thompson v Armstrong & Royce Pty Ltd (1950) 81 CLR 585 at 602-3: "The phrase does not merely mean inability to work for the employer in whose service the worker was injured. An injury results in incapacity for work, according to the intention of the Act, when it takes away or diminishes the power of the worker to earn wages in some suitable employment.". The Q-Comp decision in Mr Anderton's case noted that the certificates from a medical practitioner supplied by Mr Anderton stated that he was partially incapacitated and suitable for restricted duties. Reference was also made to a medical report to WorkCover to the effect that Mr Anderton was able to return to work on the proviso that he did not do heavy lifting. Further, reference was made to a report of Dr Foley of 2 March 2005, where it was stated in relation to Mr Anderton's then capacity to work, that: "At this point in time Mr Anderton has returned to full time studies. He has not worked for many years. Therefore his current capacity to work, if there was work available, and if he did want to work, is for him to carry out light duties. He would not be capable of carrying out heavy manual work.". It was acknowledged by Q-Comp that Mr Anderton had sought light duties from his employer and that his employer had confirmed that there was nothing available at the time. However, the decision concluded that light mechanical or restricted duties was suitable employment in the labour market in which Mr Anderton was working, or might reasonably be expected to work. It was further concluded that on the basis that Mr Anderton was a full-time student for the period from 30 January 2005 to 3 October 2005, his studies and the certification of partial incapacity, suggested that he had a capacity for work. In relation to Mr Anderton's complaint that WorkCover had not informed him that he was expected to find alternative employment, the decision stated that the review process did not encompass the claims process or WorkCover's conduct. The review Decision went on to state: "...you have sustained no wage loss for this period because having regard to your incapacity and the availability of employment, you could be reasonably expected to earn at least $474.00 per week during this period if you had chosen to work. As such, I have determined that you have not suffered a loss of earnings and therefore you are not entitled to compensation for the period of 30 January 2005 to 3 October 2005.". Mr Anderton's appeal in the current proceedings is against this Decision. -- 3 of 8 -- 4 The Nature of an Appeal under s. 550 of the Workers' Compensation and Rehabilitation Act 2003 In Labaj v WorkCover Queensland (2003) 173 QGIG 370 President Hall considered the nature of an appeal under s. 499 of the previous WorkCover Queensland Act 1996. In particular, President Hall pointed out that such an appeal is not a true appeal against the decision of the Statutory Review Unit, rather: "The scheme of the [Act] is that claims for compensation are, in the first instance, determined by WorkCover. A claimant aggrieved by WorkCover's decision is given a right to what is (hopefully) an expeditious and inexpensive internal administrative review. However, if the statutory review fails to resolve issues between WorkCover and the claimant, the scheme moves from administrative decision making to a trial of the claim. The appeal de novo, as it is sometimes called, ... is in truth a full trial in which each party is entitled to and should call all evidence available which is favourable to that party's case. It is a trial at which witnesses are exposed to cross examination. It is a trial in which in the determination of the issue whether the claimant has brought himself within the meaning of the definition of 'injury' the Industrial Magistrate must impose upon the claimant a burden of proof on the balance of probabilities.". Notwithstanding that Mr Anderton's appeal is brought in the Queensland Industrial Relations Commission under the Workers' Compensation and Rehabilitation Act 2003, and that it relates to a different issue than was the case in Labaj, the President's comments are equally applicable in the present case. The Argument on Appeal Unfortunately, Mr Anderton conducted his case on the basis that it was an appeal in the strict sense and effectively sought a review by the Commission of the conduct of WorkCover officers and the manner in which his claim was handled. As a result, much of the material Mr Anderton attempted to place before the Commission was irrelevant, and was not directed to addressing the issues for determination. Essentially, Mr Anderton's argument encompassed the following points:  that his employer had failed to provide alternative duties and as a result WorkCover was required to treat him as being totally incapacitated;  that WorkCover failed to provide him with rehabilitation services;  that WorkCover and/or his treating medical practitioner were required to inform him that he would lose his entitlement to weekly compensation payments if he did not go and seek alternative employment and had failed to do so;  that due to his personal circumstances and his medical condition he would not reasonably have been able to obtain alternative employment; and  that he had been unfairly treated by various representatives of WorkCover because of a variety of factors including: o errors in dealing with his case; o the length of time taken to make various decisions about his case; and o the fact that decisions had operated retrospectively. Mr Anderton also attempted to argue (albeit indirectly) that during the period from 30 January 2005 to 3 October 2005, he was totally rather than partially incapacitated. Issues for Determination The principle issue for determination is whether, for the period 30 January 2005 to 3 October 2005, Mr Anderton suffered a loss of earnings as defined in s. 162 and s. 163 of the Workers' Compensation and Rehabilitation Act 2003, because of his injury. Those sections provide as follows: "162 Definitions for sdiv 1 In this subdivision - LE means the worker's or person's loss of earnings, expressed as a weekly rate, because of the injury. loss of earnings means the difference between - (a) the amount of the worker's or person's normal weekly earnings at the time of injury; and -- 4 of 8 -- 5 (b) the amount - (i) of the worker's or person's weekly earnings from employment during the period of partial incapacity; or (ii) if the worker or person is not in employment during the period of partial incapacity-that could be reasonably expected to be derived by the worker or person during the period, having regard to the worker's or person's incapacity and the availability of employment. MC means the maximum compensation expressed as a weekly rate, that would have been payable under this part had total incapacity of the worker or person resulted from the injury. NWE see section 106. PC means the compensation expressed as a weekly rate, payable for the injury on account of the partial incapacity. 163 Partial incapacity (1) Compensation payable to a partially incapacitated worker or person is a weekly payment under this section. (2) The weekly payment is an amount calculated under the following formula - PC = MC x LE NWE (3) However, the amount must not be more than MC.". For the purposes of determining this issue in Mr Anderton's case, "loss of earnings" means the difference between Mr Anderton's normal weekly earnings at the time of the injury and the earnings that Mr Anderton could reasonably have been expected to derive during the period from 30 January 2005 to 3 October 2005, having regard to his incapacity and the availability of employment. Essentially, the decision of Q-Comp subject of this appeal, was that having regard to his incapacity and the availability of employment, Mr Anderton could reasonably have derived earnings at least equal to his normal weekly earnings prior to his injury, from other suitable employment during the period from 30 January 2005 to 3 October 2005. To succeed with his appeal, Mr Anderton needed to establish that it was not reasonable for him to derive earnings at least equal to his normal weekly earnings for the relevant period, based on his incapacity and the availability of employment. Sections 162 and 163 of the Workers' Compensation and Rehabilitation Act 2003 apply only to partially incapacitated workers. It was also open to Mr Anderton in this appeal to attempt to establish that he was totally rather than partially incapacitated for the relevant period. Although Mr Anderton pursued this issue only indirectly, it is necessary to determine it. Conclusions The evidence in support of Mr Anderton's contention that he was totally incapacitated for the relevant period is sketchy. Mr Anderton said that upon realising that he had sustained an injury at work, and based on previous experience of an earlier incident where he had suffered a hernia, he saw Dr Khalil on 6 January 2005. Dr Khalil issued a medical certificate stating that Mr Anderton was fit for suitable duties from that date and could not undertake lifting. That certificate was dated 6 January 2004 in error. There is nothing surprising about such an error given that the certificate was issued early in the year and Dr Khalil's evidence that he had just returned from leave at the time. Thereafter, Dr Khalil saw Mr Anderton regularly and provided him with a series of medical certificates. Those certificates stated that Mr Anderton was fit for suitable duties and could not lift weights in excess of five kilograms. Mr Anderton said that he received one compensation payment covering a three week period after his injury, and then received no further payments. He continued to submit certificates to WorkCover, not knowing what was happening. Mr Anderton said that by the time he recommenced his full-time studies (in mid-February 2005), his condition had gotten worse. Mr Anderton said: "By gotten worse, I mean I could certainly go down to K-Mart and go shopping but after 20 minutes it's starting to come out and I'm trying to press it in. The only way I can deal with this is actually to go and lie down. With my hernia I found I could sit mostly. I could certainly lie at any time. It was quite comfortable. That's how I got better. That's how it went in. That's how I could get up and keep moving around. I assume the muscle holds itself together or something when it goes back in to a degree. I don't know.". Mr Anderton saw a surgeon, Dr Pyke on 17 February 2006. Dr Pyke forwarded a letter to Dr Khalil on that date confirming that Mr Anderton was suffering from a recurrent left inguinal hernia. According to Dr Pyke's letter, the hernia was worse when Mr Anderton lifted heavy weights and slightly better when he was not lifting heavy weights, and would require repair under general anaesthesia via the open method in the near future. Dr Pyke gave Mr Anderton a medical certificate (Exhibit 2), which was not in the form required by WorkCover, stating that Mr Anderton was -- 5 of 8 -- 6 receiving medical treatment and would be unfit to continue his usual occupation for the period "17/2/05". Dr Pyke added a handwritten note to the certificate, stating "hernia needs repair cannot do heavy lifting until repaired". Mr Anderton did not call Dr Pyke to give evidence. Mr Anderton said in his evidence that had he known the implications of submitting medical certificates stating that he was partially rather than totally incapacitated, he would have gone back to Dr Pyke and obtained a proper certificate stating that he was totally incapacitated. Mr Anderton also said that he would have gone to a doctor other than Dr Khalil and obtained another medical certificate. There was considerable evidence to establish that Mr Anderton was not totally incapacitated during the relevant period. Dr Khalil issued some nine medical certificates covering the period from 6 January to 3 October 2005, all stating that Mr Anderton was fit for suitable duties, and that Mr Anderton could not lift weights in excess of 5 kilograms. In relation to Mr Anderton's condition, Dr Khalil said under cross-examination that he had examined Mr Anderton on his first visit. Thereafter, Dr Khalil had looked at Mr Anderton's hernia in April and September. In his evidence in chief, Dr Khalil said that the medical certificates he had issued truly indicated his opinion about Mr Anderton's capacity for work, given the nature of the injury. In the opinion of Dr Khalil, Mr Anderton could have continued modified duties during the relevant period, as long as he did not lift weights in excess of 5 kilograms or otherwise strain himself. From 3 October 2005 when Mr Anderton had his hernia repair surgery, he was totally incapacitated, and Dr Khalil had issued a medical certificate to this effect. The medical certificate and letter issued by Dr Pyke are also consistent with Mr Anderton being partially rather than totally incapacitated. Under cross-examination, Dr Khalil rejected the proposition that a hernia could change over a period of time, stating that once a hernia developed and was diagnosed, it would be unlikely to change. It was possible for a hernia to bulge if, for example, a sufferer lifted something heavy, had a cough or a bout of constipation. Once the sufferer rested or sat down, the hernia would go back to its previous condition. A hernia would not repair itself. The only thing that could happen is that the hernia could strangulate, resulting in severe pain and an emergency situation. This had not occurred in Mr Anderton's case, to the knowledge of Dr Khalil. There was no evidence that Mr Anderton ever reported a deterioration in his condition or an increased level of pain, to Dr Khalil, or to any other medical practitioner during the period in question. Mr Anderton resumed full-time studies at the Ithaca College of Technical and Further Education and at the time this appeal was heard, was continuing those studies. Dr Khalil's evidence was uncontradicted and I accept it. In my view, Mr Anderton's knowledge about the implications of submitting a medical certificate indicating partial rather than total incapacity, does not alter the extent of his incapacity. I am satisfied that for the period from 30 January 2005 until 3 October 2005, Mr Anderton was partially incapacitated and was fit to undertake suitable duties, provided he did not lift weights in excess of 5 kilograms. That being the case, the issue becomes whether Mr Anderton suffered a loss of earnings as defined in s. 162 of the Workers' Compensation and Rehabilitation Act 2003. Given that Mr Anderton was not in employment during the period of his partial incapacity, it is necessary to consider whether Mr Anderton has established that he could not reasonably have been expected to derive an income during that period, having regard to his incapacity and the availability of employment. Mr Anderton put very little evidence before the Commission to establish that it would not have been reasonable for him to have derived earnings equal to his normal weekly earnings prior to his injury, from other suitable employment, during the period from 30 January 2005 to 3 October 2005. It was also clear from Mr Anderton's evidence that he made no attempt to obtain suitable employment during this period. The evidence establishes that during the relevant period, Mr Anderton could not engage in work which required him to lift weights in excess of 5 kilograms. There is also evidence that Mr Anderton suffered some discomfort from his hernia and needed to sit or lie down periodically to recover. Mr Anderton's former employer did not provide him with alternative duties. Mr Anderton said that he telephoned his former employer to request alternative duties, but did not take any other steps to pursue this matter. However, Mr Anderton was able to engage in full-time study for the entirety of the period for which he now claims weekly compensation payments. At the time he sustained the injury relevant to the present proceedings, Mr Anderton had completed the first year of a two year Building Diploma on a full-time basis. According to his evidence, Mr Anderton commenced the second year of his course at the Ithaca College of Technical and Further Education on or around 17 February 2006. Mr Anderton continued to study on a full-time basis and attended the College for approximately twenty hours per week. Mr Anderton expended further time undertaking assignments and research in connection with his studies. There was no evidence that Mr Anderton had any difficulty undertaking his studies because of his injury. -- 6 of 8 -- 7 Mr Anderton also said that prior to starting the Building Diploma, he had completed a three year Business Diploma course at the Yeronga College of Technical and Further Education, on a full-time basis. I see no reason why Mr Anderton should have been limited to seeking work which required him to undertake lifting. While the work Mr Anderton was engaged in at the time he sustained his injury required him to lift, there was no evidence that Mr Anderton's skills, qualifications and experience limited him to performing work of a manual nature. I am of the view that if Mr Anderton could undertake study in the manner that he did, he could also have reasonably undertaken suitable work. Mr Anderton's reasons for not seeking alternative employment, according to his evidence, did not relate to the availability of employment or his incapacity. Mr Anderton said that he expected that he would receive weekly compensation payments for the period between 30 January and 3 October 2005. From 30 January 2005 when Mr Anderton's weekly compensation payments ceased, and 7 July 2005 when Mr Anderton was advised that he was not entitled to weekly compensation payments, Mr Anderton kept submitting medical certificates and waiting to receive further payments. Mr Anderton said that he had existed on his Austudy payments alone, believing that when WorkCover payments were resumed he could utilise them to purchase a car. Mr Anderton said that he saw this as a form of compulsory saving and believed he would be paid by WorkCover eventually. Mr Anderton agreed under cross-examination that after 7 July 2005, when he was advised that he would not receive further weekly payments, he did not start to look for suitable employment. It was clear from Mr Anderton's evidence that he had formed a view that no employer would have given him employment because of his age and medical condition, and the fact that he was waiting for an operation. Other than that this was Mr Anderton's opinion, there was no evidence to support this view. Mr Anderton also agreed that he did not seek a further opinion from Dr Khalil or another doctor about the level of his incapacity. Mr Anderton said that he would have done so, had he known the implications of submitting medical certificates stating he was partially rather than totally incapacitated. Further, Mr Anderton said that had he known that his weekly compensation payments depended on him seeking alternative employment, he would have done so, or at least taken steps to raise questions with WorkCover about what (if any) employment was available to him. Essentially, Mr Anderton's argument depends on an acceptance of the proposition that Mr Anderton was entitled to be warned - either by an officer of WorkCover or his treating medical practitioner - that if he did not look for alternative work he would lose his weekly compensation benefits. There is no legislative basis for this proposition and I do not accept it. To succeed with this appeal, Mr Anderton needed to establish that for the relevant period he could not reasonably have derived an income equivalent to his earnings at the time the injury was sustained, having regard to his incapacity and the availability of employment. Mr Anderton did not put sufficient evidence before the Commission to establish this. There was little evidence about Mr Anderton's lack of capacity to undertake suitable work, and no evidence about the availability of such work. I do not doubt that a 56 year old man awaiting surgery to repair a hernia would have some argument that he could not reasonably have derived an income from suitable work on the basis of his incapacity and the availability of such work. However, given the lack of evidence in this appeal any such conclusion on my part would be hypothetical. After weighing the evidence that is properly before me, I am unable to accept that Mr Anderton sustained a loss of earnings as defined in s. 162 of the Workers' Compensation and Rehabilitation Act 2003. While it is not determinative in the present case, it is also apparent from the evidence that there are real questions about whether Mr Anderton would have continued in employment during 2005, after he had resumed his full-time studies. At the point he sustained his injury, Mr Anderton was a casual employee who was called in as required. His employment commenced at or around the Christmas period, and at a time when he was on a break from his full-time studies. Mr Anderton had not been gainfully employed for many years, and had been undertaking full-time studies for at least the previous four years. Any employment undertaken by Mr Anderton would more than likely have been to supplement his income from AUSTUDY. Mr Anderton said in his evidence that employment with regular hours would not have suited him and it was apparent that he would not have been able to maintain the hours he was working at the time he was injured, once he resumed his full-time studies. Mr Anderton's statement under cross-examination that he may have opted to reduce the hours he spent undertaking his studies was hypothetical, and contrary to the evidence about the previous four years during which Mr Anderton had also engaged in full-time study. I do not doubt that Mr Anderton has very real grievances with respect to the manner in which his claim has been dealt with by WorkCover. Mr Anderton received his last compensation payment on 30 January 2005. Thereafter he received no further payments for the period up to 3 October 2005. However, it took until 7 July 2005 for WorkCover to advise Mr Anderton that he would not receive further weekly compensation payments. This is surprising given that the basis of the decision was Mr Anderton's return to full-time study, and that WorkCover was in possession of a medical report from Dr Foley dated 2 March 2005, stating that Mr Anderton had returned to full-time studies. -- 7 of 8 -- 8 The delay in advising Mr Anderton that he was no longer entitled to weekly compensation payments was compounded by errors in the reasons provided by WorkCover. The initial advice to Mr Anderton dated 7 July 2005 stated that Mr Anderton had supplied "total incapacity" medical certificates. This was not correct. The certificates provided by Mr Anderton clearly stated that he was partially incapacitated, and this was ultimately a significant factor in the decision reached by WorkCover that Mr Anderton was not entitled to weekly compensation payments. Further, the reference in that letter to the fact that Mr Anderton was receiving Austudy benefits is also irrelevant given that this was not a matter that was ultimately relied on by WorkCover in deciding that Mr Anderton had not suffered a loss of earnings. Errors continued when the letter forwarded to Mr Anderton on 18 July 2005 stated that Mr Anderton had not suffered a loss of earnings on the basis that returning to full-time study was equivalent to engaging in a calling. While this error was retracted in later correspondence to Mr Anderton it can only have added to his frustration and confusion about the manner in which his claim was dealt with. It also appears that a number of different officers dealt with Mr Anderton's file. Further, there is a suggestion in correspondence to Mr Anderton that a decision was made by an officer of WorkCover to the effect that there would be no attempt made to find restricted duties for Mr Anderton because he had decided to study full-time. Mr Anderton was advised of this fact in a letter dated 19 October 2005. When that decision was made, or whether Mr Anderton was advised that there was an option to undertake restricted duties before the decision was made is not apparent. It also appears that there was a delay in Mr Anderton receiving surgery, although the evidence on this point was not clear. Finally, there is evidence before the Commission that the earnings upon which the calculation of the weekly compensation payments which were made to Mr Anderton was based, were incorrect, because Mr Anderton had been underpaid by his former employer. While that underpayment has been rectified following intervention by an Industrial Inspector, there was no evidence that WorkCover had adjusted the payments made to Mr Anderton to reflect the weekly earnings to which he was entitled at the point of his injury. Notwithstanding that Mr Anderton feels aggrieved by these matters, and that there may be some substance to his grievances, they are not matters which can be the subject of this appeal. It was also apparent from Mr Anderton's evidence that he viewed these matters as being some kind of deliberate course of conduct on the part of WorkCover and its officers. There is no reasonable basis for Mr Anderton's views in this regard. I am also of the view that Mr Anderton made a significant contribution to the situation he is now in, and that while the errors were regrettable, they were also understandable. I have no doubt that Mr Anderton was extremely difficult to deal with. It is apparent from Mr Anderton's material that he persisted in directing questions to numerous officers of WorkCover about matters that were not relevant to his claim, even when he was told that WorkCover had been in error. Mr Anderton also insisted that all communications between himself and WorkCover be in writing. Mr Anderton's attitude to medical practitioners and WorkCover officers was hostile and he viewed any communication with suspicion. Had Mr Anderton complied with the repeated and reasonable requests from WorkCover officers to meet with them to discuss his concerns, many of the issues he pursued in this appeal could, in my view, have been resolved. The appeal is dismissed. The decision of Q-Comp dated 27 February 2006 is confirmed. I.C. ASBURY, Commissioner. Hearing Details: 2006 26, 29 and 30 June Released: 18 September 2006 Appearances: Mr G. Anderton on his own behalf. Mr G. Long of counsel instructed by Ms B. Wadley for Q-Comp. Government Printer, Queensland The State of Queensland 2006. -- 8 of 8 --