Reasonably qualified by education training or experience

What does ‘reasonably qualified by education training or experience’ mean?
When is a person ‘reasonably qualified’ from their prior ‘education training or experience’?

Another recent important case from the NSW Court of Appeal is Birdsall v Motor Traders Association of Australia Superannuation Fund [2015] NSW CA 104; Basten Meagher & Gleeson JJA. This is a majority decision on an appeal from decision of Justice Hallen. MTAA was the superannuation fund Trustee and the insurer is MetLife.

This case serves as an example of what it means, despite an injury stopping a worker from doing his normal job, to still be qualified for work, by reason of the workers prior education, training or experience.

The definition [39] under consideration in the case is typical. In Mr Birdsall’s case the definition in the superannuation deed, required to be satisfied to get the TPD benefit,

“As a result of injury or illness, he/ she has been unable to work for an initial period of six consecutive months and in our opinion is incapacitated to such an extent as to render the insured person unlikely ever to engage in or work for reward in any occupation or work for which the insured person is reasonably capable of performing by reason of education, training or experience.”

Mr Birdsall lost his case before Hallen J and lodged an appeal.

The Court Appeal unanimously accepted that the plaintiff was incapacitated for his usual job as a diesel mechanic. He had suffered injury to the right wrist and a hyperextension whilst lifting a heavy gearbox.

However the appeals court did not consider Mr Birdsall so incapacitated as to render him “unlikely ever to engage or work for reward in any occupation for which Mr Birdsall was capable of performing having regard to his “education training or experience”.

The Court of Appeal referred to the case of Dargan, an important joint judgment of the NSW Court of Appeal which confirmed that after receiving an injury a modest amount of retraining, if the training does not change the character of the work for which the injured person was already fitted, would enable the injured person to use existing skills to pursue similar work [72].

In Dargan an injured truck driver completed a short taxi driver’s licence course, and was considered not to be TPD as this short taxi course fitted him for work for which he was already suited, that is, from his prior experience as a truck driver. In other words Mr Dargan’s retraining was both minimal and he would also be using his existing road skills.

In his evidence, [69] Mr Birdsall had said that he knew how to use a computer, and that a short course at TAFE would give him some suitable training. He also agreed in his evidence that he could learn how to use a cash register. This was considered minimal retraining similar to that of Mr Dargan’s three day taxi drivers course.

In addition to the evidence of the Plaintiff, MetLife’s expert medical opinion, from Dr Keller, was that Mr Birdsall was functionally able to do auto trade office type jobs. A vocational assessment conducted by Ms Atteya for the insurer also concluded that Mr Birdsall had some transferable skills to allow him to work in customer service, sales or as a sales representative within the automotive trade.

The Court of Appeal concluded that Mr Birdsall was qualified or fitted for several jobs subject to some short retraining. The jobs were all in the auto trade. The jobs included motor vehicle parts interpreter; sales assistant, customer service/advisory and a sales representative.

The decision of the Court of Appeal was stated as [77]:

“I agree with the primary judge’s conclusion that the need for this further training did not mean that the appellant was not already reasonably capable of performing the roles to which it was directed”.

“The expression “reasonably capable” recognises the reality that a person may have to undertake specific training or certification to enable him or her to engage in particular employment for which he or she is otherwise qualified by education, training or experience. That training or certification may be available in the form of a TAFE or other certification course or from the employer.”

The Court of Appeal stated again in Birdsall the contrasting position. By way of contrast, for example, significant retraining, perhaps a University Degree of say three years and into a brand new area of experience is quite different. A leading case on the contrasting position was delivered by Justice Brereton in Halloran. In Mr Birdsall’s case the Court said [79]

“Mr Dargan’s position was clearly different from that of Mr Halloran”; Dargan [39]-[41]

The conclusion from Mr Birdsall’s case is that, even though there is an injury sufficient to stop a worker from doing his normal job, if some modest short term retraining is available, and that builds on existing skills or experience, then the worker will not be TPD.

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