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Suitable duties

Trpkoski v Blue Collar Pty Limited [2010] NSW WCC 108. Nicholl, Arb. 10.03.10.

28. I have considered carefully the evidence before me and I am not satisfied the work offered by the Respondent was not in fact ‘suitable’ given the nature of the Applicant’s injuries, disabilities and restrictions.

As at March/April 2007 the Applicant is correct that she was suffering from the effects of the work injuries to her neck and shoulder, as well as the more immediate effect of her fractured left index finger.  I note in this regard that the Consent Orders in respect of the earlier injury are dated 9 July 2007 and at the time of theses events there had been no concession by the Applicant about the effects from that earlier injury.

29. I am satisfied that although the duties were the same as the suitable duties she did at the Parramatta office the travel time that would have been required of the Applicant each day, as well as the nature of that travel, was such as to make those duties unsuitable.

I have discussed above the nature of her injury and disabilities. She asserts she could not have driven the distance from her home in Bossley Park to the Respondent’s office in Alexandria (or Mascot) twice each day given her limitations, and I accept that is correct.

For the Respondent it was suggested she could travel by train, but that submission minimises greatly the daily trip that would confront the Applicant.

30. I accept the Applicant’s evidence and the submission in her solicitor’s letter that to travel to the Respondent’s premises in Alexandria she would have to catch a bus, two trains and another bus.  The same would be required on the return trip home. I accept the estimate that such a trip could take at least 2.5 hours each way.

At that time the Applicant’s suitable duties meant she was only working 3-4 hours per day on average. In my view the offer of work in Alexandria made by the Respondent required travel time of about 5 hours per day, with the use of both buses and trains, and did not represent a true offer of ‘suitable duties’.

That travel was not consistent with the Applicant’s injuries and her physical restrictions, and is likely to have exceeded the hours she actually worked.

I am therefore satisfied the Applicant did not refuse its offer of suitable duties as alleged by the Respondent and I accept she remained ready, willing and able to accept an offer of suitable employment from the employer.

31. I also accept the Applicant made significant efforts to look for work with other employers.

In her statement the Applicant outlines her efforts to look for work within her restrictions since she ceased work with the Respondent in May/June 2007.  She claims she looks for work on an almost daily basis using local and national newspapers, direct contact with possible employers, assistance from Centrelink and other sources.

I accept the Applicant’s evidence in this regard and I am therefore satisfied she satisfies the requirement of section 38A(2)(d) that she was taking reasonable steps to obtain suitable employment from some other person.

32. In light of these findings I am satisfied the Applicant has an entitlement to payments under section 38 of the 1998 Act. That entitlement arose when the Respondent failed to provide suitable duties in accordance with her certifications.

In her statement the Applicant says that occurred in May/June 2007.  That is consistent broadly with the Respondent’s letter of March 2007 by which it indicated it could not offer further suitable duties in Parramatta but could offer such work in Waterloo.

I have no more precise evidence before me and I therefore accept that the 52 weeks of section 38 entitlement arose on or about 1 June 2007 (that is, a midway point) and ran until 31 May 2008.

On that basis the Applicant has an entitlement to section 38 payments from 2 October 2007 to 31 May 2008 and I so find.

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