JUDGMENT OF: His Honour Deputy President Judge JP McCusker,

Her Honour Deputy President Judge HW Parsons,

Deputy President R McCouaig

Appeal - Claim for compensation - Prescribed Medical Certificates certify incapacity and date of review of progress of worker - Four contiguous certificates indicating ongoing incapacity - WorkCover makes a determination for closed period - Worker provides further certificates of ongoing incapacity - WorkCover responds with series of closed period determinations - WorkCover thereafter obtains medical report stating worker's incapacity was never causally related to employment - WorkCover issues a determination for final closed period but no further compensation on the basis of that medical report - Worker appeals against use of closed period determinations in response to her claim in the circumstances - Worker also appeals against use of medical report which disputed the initial acceptance as a basis for cessation of ongoing payments - Appeal allowed on both grounds - Order for payments to resume - S 36, s 53 Workers Rehabilitation and Compensation Act 1986.

Masonic Memorial Homes Inc v Monsma and Elderly Citizens Homes of SA Inc [2004] SAWCT 112

Workers Rehabilitation and Compensation Corporation v Thuy Thi Vu (1988) 49 SASR 585

Mitsubishi Motors Australia Ltd v Sosa (unreported) Full Supreme Court, Judgment No S5084

General Motors Holden's-Automotive Ltd v Workers Rehabilitation and Compensation Corporation (1991) 55 SASR 395

Workers Rehabilitation and Compensation Corporation v James (1991) 56 SASR 414

Wiechmann v Lovering and WorkCover Corporation (1992) 59 SASR 203

Local Government Association of South Australia v Delle-Donne (unreported) Full Supreme Court, Judgment No S5661

Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snack Foods) [1993] SASC 4356; (1993) 61 SASR 487

Begovic v WorkCover Cororporation/CGU Workers Compensation (SA) Pty Ltd (Itrix Pty Ltd) [2002] SAWCT 115

Camburn v Holden Ltd [2001] SAWCT 126

Cramer v Schefenacker Vision Systems Australia Pty Ltd [2003] SAWCT 9

Pagliacci v General Motors-Holdens Ltd (1980) 23 SASR 126

Robbins v Harbord [1994] SASC 4571; (1994) 62 SASR 229

Begovic v WorkCover Corporation/CGU Workers Compensation (SA) Pty Ltd (Itrix Pty Ltd) [2002] SAWCT 13

1 This appeal concerns the inter-relationship of ss 53 and 36 of the Workers Rehabilitation and Compensation Act 1986 ("the Act"). The factual context is agreed. It was correctly described in the reasons for decision appealed from.

2 The worker was injured on 10 March 2003. She gave notice on 29 April 2003 alleging back, neck and shoulder injury (AB 11). She also served three prescribed medical certificates from Dr B Singh (AB 14, 15, 16). She provided a further certificate from Dr Singh dated 30 April 2003 (AB 17). All these certificates certified total incapacity contiguously from 11 April 2003 to 31 May 2003. Each indicated the worker was being reviewed before the expiration of the certified period of incapacity. The inference was that these reviews when completed, would lead either to an ongoing certification of incapacity or a return to work and if so, on what conditions or restrictions. But as things stood she was to be indefinitely off work.

3 The respondent made its first determination on 9 May 2003. That would have addressed the initial notice of claim and the first four prescribed medical certificates. We set out the relevant parts of the determination (AB 12 - 13):-

We refer to your above claim for a musculo-ligament strain injury to back sustained on 10/3/2003.

CGU Workers Compensation (SA) Pty Ltd as claims agent acting on behalf of the WorkCover Corporation has determined under the Workers Rehabilitation and Compensation Act 1986 (the Act) that you are entitled to receive compensation for the disability you sustained on 10/3/2003 and which subsequently resulted in you having an incapacity for work from 11/4/2003 to 31/5/2003. This determination is based on the Prescribed Medical Certificate supplied by Dr Bhagwant Singh and dated 30/4/2003.

Your entitlement to compensation is explained below.

1 Your average weekly earnings have been determined at $532.13 gross per week. Given that you have received a prior redemption with a different employer. Your Section 35(6a) was set at $206.40 gross per week, therefore your average weekly earnings are reduced by this figure, leaving your entitlement at $325.73 gross per week.

2 We have determined under section 35(1) of the Act that you are entitled to income maintenance payments of $325.73 gross per week for the period of incapacity for work from 11/4/2003 to 31/5/2003.

3 You are entitled to medical expenses reasonably incurred by you as a result of the disability.

4 You must continue to provide prescribed medical certificates until you are cleared for normal duties. CGU Workers Compensation (SA) Pty Ltd will issue another determination if you have any further entitlement to income maintenance.

Please send all accounts and medical certificates relating to this claim to your employer or case manager as soon as possible. It is important that you include the claim number on all documents forwarded to this office.

Your employer has been advised of your entitlement to income maintenance and we have requested that they make weekly payments of $325.73 gross per week directly to you for the period of your incapacity for work.

Statistics indicate that injuries of this type resolve within six weeks. The level of your medical recovery may allow for the identification of suitable duties before the end of the period incapacity (sic) identified by your doctor on the initial prescribed medical certificate.

If it is indicated that you are unlikely to return to your normal duties within a reasonable period, a case conference involving your employer, treating doctor and yourself may be arranged. It is envisaged that the case conference will be held at the workplace and the involvement of all parties is vital in assisting your return to work and in determining your eligibility for ongoing compensation. Should a case conference be necessary, your failure to participate may result in no further entitlement to weekly payments of income maintenance. ..."

4 At this juncture we make certain observations. The respondent argues this was a circumstance warranting a closed period determination. Moreover one unequivocally expressed as such by the terms of the determination. But Dr Singh's certificates do not suggest a closed period of incapacity. Rather those certificates indicate an open-ended circumstance. Secondly the reference to statistics is pointless. The immediate observation is that even on the respondent's case this worker was incapacitated for 22 weeks (tr 14). So to suggest that this type of injury resulted in incapacity for only six weeks is wrong in this case. Further, we have no idea, and presumably nor did the worker have any idea, of the provenance of this assertion. It is certainly not a notorious fact or generally acknowledged: see Masonic Memorial Homes Inc v Monsma and Elderly Citizens Homes of SA Inc [2004] SAWCT 112 pars 15, 16. Fourthly the last two paragraphs make it plain that there was uncertainty about the extent of ongoing incapacity. When the picture was clearer a procedure would occur to re-establish the injured worker in the workplace. This uncertainty is continued in the requirement that the worker was warned to continue to provide prescribed medical certificates until, "cleared for normal duties".

5 Following that first determination, the worker continued to submit prescribed medical certificates (AB 20, 23, 29, 30). These covered the whole period up to 10 October 2003. Notwithstanding this, the respondent issued further determinations for closed periods. The determination of 30 May 2003 was in the same terms as the first one, save it determined under s 35(1) an entitlement from 1 June 2003 to 30 June 2003 and dropped the reference to statistics. A third was issued on 3 July 2003 determining entitlement from 1 July to 11 August 2003.

6 Then on 16 September 2003 the respondent issued the determination that is the subject of this appeal. It was in the following terms (AB 24):-

"We refer to your above claim for a musculo-ligament strain injury to back sustained on 10/3/2003.

CGU NRMA Workers Compensation (SA) Limited as claims agent acting on behalf of the WorkCover Corporation has determined under the Workers Rehabilitation and Compensation Act 1986 (the Act) that you are entitled to receive compensation for the disability you sustained on 10/3/2003 and which subsequently resulted in you having an incapacity for work from 11/8/2003 to 16/9/2003 only. This determination is based on the Prescribed Medical Certificate supplied by Dr Bhagwant Singh and dated 8/8/2003.

Your entitlement to compensation is explained below.

Your average weekly earnings have been determined at $325.73 gross per week.

We have determined under section 35(1) of the Act that you are entitled to income maintenance payments of $325.73 gross per week for the period of incapacity for work from 11/8/2003 to 16/9/2003 only. Any further entitlement to Income Maintenance is rejected based on Dr Bauze's report dated 26/8/20033 in which he states:

"... is not consistent with having sustained any injury during the two months, or thereabouts, that she was working with Extrastaff Pty Ltd."

3. In addition to the above, any further medical expenses will be rejected pursuant to Section 32 of the Act, based on Dr Bauze's report that you do not have a compensable injury.

An extract of section 32 & 35(1) of the Act is attached for your information. ..."

7 Causation was not questioned in the original determinations. While the claims manager dealt with the claims in a piece-meal fashion she did so only so far as ongoing incapacity was concerned. That is, instead of making a determination that the worker was entitled to weekly compensation for incapacity arising out of or in the course of her employment, the claims manager made such findings limiting each decision to a month-by-month consideration. Her purpose seems to have been to keep the matters of ongoing incapacity under examination. But then the determination of 16 September 2003 decided to allow a further closed period even though Dr Bauze stated the worker's incapacity never was and therefore could not now be the result of employment. A finding that her incapacity continued up to but not beyond 16 September 2003 could not be supported by Bauze's report on any view of the matter.

8 Mr Rossi, of counsel for the appellant, submitted that the material before the claims manager contained nothing to suggest a closed period (tr 11, Appellant's Outline of Submissions par C.5). In addition he contends the approach of the claims manager contravenes the legislative intent indicated by ss 53 and 36. Mr Luke, of counsel for the respondent, in reply, says the only question for us is whether or not what the claims manager did was lawful (tr 37, 43). We incorporate by reference the provisions of ss 53 and 36. These provisions are extensive and have been related often in judgments of this Tribunal. They are provisions that have been the subject of previous analysis.

9 In Workers Rehabilitation and Compensation Corporation v Thuy Thi Vu (1988) 49 SASR 585, the worker lodged a claim for income maintenance and medical expenses. The Corporation was unable to make the investigations it wanted to in the time allowed by s 53. It therefore made an interim payment under s 106 for a closed period of 10 days. It advised the determination had been made taking into account s 36(1)(b) of the Act, "as the Corporation has received certificates from recognised medical experts that you cease to be incapacitated for work. The prescribed medical certificate indicated that you were fit to return to alternative duties [at the end of the closed period]". The matter was decided on the interpretation to be given to the determination due to the reference to s 36(1)(b), (see Prior J at 591). His Honour said:-

"... In this case the Corporation made a determination by invoking powers conferred upon it under s 106 of the Act to delay a final determination. The final determination discharged the Corporation's duty under s 53. There was no discontinuance of weekly payments but an identification of the period for which liability to make payments was admitted and determined."

10 In Mitsubishi Motors Australia Ltd v Sosa (unreported) Full Supreme Court, Judgment No S5084, delivered 8 June 1995, again the provisions of s 36 prior to Amending Act No 35 of 1995, were examined. The context was the relationship of s 36 to s 35 of the Act. It was argued by the exempt employer that s 35 contained an implied authorisation to discontinue weekly payments and was in addition to the circumstances for discontinuance or reduction provided for in s 36. The later amendments in 1995 do not compromise the applicability of the Court's judgment to this case. King CJ, with whom the other judges agreed, stated the position in the following terms, (at p 8):-

"The construction of s 35 advanced by the appellants carries with it the implication, in my opinion, that whenever the entitlement under s 35 ceases or diminishes, the Corporation or exempt employer is entitled automatically to discontinue weekly payments. That is plainly contrary to the policy of the Act. The legislature in prescribing procedures for the discontinuance or reduction of weekly payments, has recognized that injured workers are dependent for livelihood upon the weekly payments. Arbitrary cessation or reduction could cause great hardship. Procedures are set in place to protect injured workers against arbitrary cessation or reduction of their means of livelihood. The procedures in ss 36, 37, 38, 39 and 41 are designed for that purpose. It is unthinkable that the legislature, having adopted those protective measures, would largely negate them by conferring in s 35 a power on the Corporation or exempt employer to discontinue or reduce weekly payments unilaterally and without compliance with the protective procedures."

11 The Chief Justice's ruling followed on from a number of decisions to the same effect: see General Motors Holden's-Automotive Ltd v Workers Rehabilitation and Compensation Corporation (1991) 55 SASR 395; Workers Rehabilitation and Compensation Corporation v James (1991) 56 SASR 414; Wiechmann v Lovering and WorkCover Corporation (1992) 59 SASR 203. In the latter, Olsson J stated, (at 209):-

"... In its totality [s 36] contains a complete code related to variation of weekly payments once commenced and, in its subsections, carefully distinguishes between the basis upon which payments currently being made can be either discontinued or reduced. By way of contrast s 37 separately deals with circumstances in which weekly payments can be suspended.

There can be no doubt that, in the present case, WorkCover Corporation specifically made a determination to vary payments by reducing them, pursuant to the provisions of subs (2) of s 36.

That subsection is itself a complete code as to reduction; and is to be contrasted with the quite separate code dealing with discontinuance, which is contained in subs (1)."

12 In Local Government Association of South Australia v Delle-Donne (unreported) Full Supreme Court, Judgment No S5661, delivered 6 June 1996 the worker lodged a claim for compensation. It was accepted for total incapacity from 19 July 1994 to 6 November 1994 and for partial incapacity thereafter. The worker challenged that determination claiming total incapacity from 6 November 1994 onwards. On 1 May 1995, before the first determination had been resolved, the Corporation purported to redetermine under s 53(7) and reject the claim altogether. The worker lodged a second appeal this time against the redetermination. The Review Officer concluded the payments could be stopped using s 53(7) instead of s 36. Olsson J, with whom the other judges concurred, stated:-

"A useful commencement point is a consideration of s 52 and s 53 of that statute. In essence, they provide a scheme whereby a worker who asserts an entitlement to compensation in respect of an alleged compensable disability must lodge, with his or her employer, a claim in that regard in the prescribed manner and form. The Corporation or exempt employer is thereafter required to determine that claim as expeditiously as possible, and, wherever practicable, within 10 business days after its receipt (s 53(4)).

I consider that there is no conflict between the provisions [viz s 53 and s 36] of the Act to which I have referred, nor is there room for doubt as to the overall scheme erected by them.

Plainly, once a determination to accept liability for weekly payments has been made, then, generally speaking, those payments may only be discontinued on one of the grounds stipulated in s 36(1). Even then, if a worker disputes a decision to discontinue by making an application for review of the decision, then payments must still be continued until the review is dealt with."

And having found the Review Officer addressed the wrong question His Honour continued:-

"The conceptual reason for such a situation is quite logical. S 36 (and subs (4) of it in particular) proceed on the express provision that an original valid determination allowing weekly payments has been made; and that the employer asserts circumstances which warrant a variation of it. The employer is not permitted to reduce weekly payments until its assertion is upheld, if it is challenged.

By way of contrast s 53(7) proceeds on the premise that, by virtue of the existence of circumstances such as those postulated in subs (7), the original determination ought never to have been made, or alternatively, it has been subsumed. If it can make good such a contention then the original determination has effectively been vacated (although any moneys already paid are generally irrecoverable, see s 53(8)). ..." (The emphasis is ours.)

13 In Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snack Foods) [1993] SASC 4356; (1993) 61 SASR 487, the question arose as to the matters that could be entertained by a Review Officer on a review of a decision of the Corporation. That is not pertinent to the matters for our concern. But the Chief Justice with whom the other judges agreed stated the following (at 489, 490):-

"Division 1 of Part IV of the Act deals with the conditions governing the compensability of disabilities and provides (s 30(1)) that disability is compensable if it arises from employment. The following Divisions of Part IV provide for various entitlements to compensation flowing from the existence of a compensable disability, that is to say compensation for medical expenses, compensation for property damage, compensation for income maintenance, compensation for non-economic loss and compensation payable on death.

The claim envisaged by s 52 is a claim for compensation. It is not a claim to have a disability accepted as compensable. A claim for compensation made pursuant to s 52 must be for one or more of the entitlements to compensation conferred by the Act. ... The entitlement arises when the worker incurs one or other of the heads of expense or loss for which compensation is payable.

The claim which was rejected by the Corporation was a claim, in my opinion, for compensation by way of income maintenance. If the Corporation had decided that there was a compensable disability, it would have been obliged to determine the amount and, at least in due course, the duration of the income maintenance. These were therefore matters to which the adverse decision related. In reversing the Corporation's decision to reject the claim for compensation, the Review Officer was required to award the compensation to which, on the information before the Review Officer, the worker was entitled." (The emphasis is ours.)

14 The respondent accepts these cases set out the legislative scheme in which s 36 is placed. But it has argued the circumstances here are covered by the decision in Begovic v WorkCover Cororporation/CGU Workers Compensation (SA) Pty Ltd (Itrix Pty Ltd) [2002] SAWCT 115. In that case the worker claimed income maintenance by way of weekly compensation for injury suffered when he fell from scaffolding on 6 June 2000. His claim was accepted and the determination awarded him weekly payments from 6 June 2000 to 21 June 2000, "it having apparently been of the view that the worker's incapacity for work had ceased as at that date". The worker submitted a further claim alleging his incapacity continued on and after 21 June 2000. On this second claim the income maintenance was awarded from 22 June 2000 to 15 August 2000. The determination stated this decision was supported by the prescribed medical certificates served by the worker and on, "statistics indicate that injuries of this type usually resolve within 6 to 8 weeks". The worker disputed this determination. A third claim was lodged contending continuing incapacity enlarged by a psychological sequelae. The Corporation rejected that claim.

15 Before the Full Tribunal, the worker argued the second determination was a nullity. He contended it was an attempt at prospective discontinuance, and therefore in breach of the requirements of s 36. The case was decided on an interpretive approach to the various determinations. The Full Tribunal avoided the issue of a determination ceasing payments at a future nominated date (par 14). That avoidance is to be contrasted with the issue raised on this appeal. Indeed the Full Tribunal stated (par 9), "that it is arguable that a determination that purports to assume a liability for a prospective closed period might be an invalid determination". Moreover the Full Tribunal in Begovic took the view the issue had been overtaken by a full hearing where the worker was disbelieved. That was a matter that could not be interfered with on appeal (par 26). This case therefore is not a binding authority supportive of the respondent.

16 Of greater assistance to us is the decision of Camburn v Holden Ltd [2001] SAWCT 126. That case involved the interpretation of s 53(7a)(e). The worker had submitted a claim for compensation for injury suffered on 31 March 2000. On 18 May 2000 the respondent accepted the claim. On 12 July 2000 it sought to redetermine that acceptance so as to accept the claim for a closed period only (par 14). The approach of the Full Tribunal was to examine the material before the exempt employer to see whether or not the way in which the exempt employer had dealt with the matter was justified. The Full Tribunal came to the conclusion that there was no material either new or not previously available to invoke subsection (7a)(e) and the only remedy available in those circumstances for the exempt employer was s 36(1)(b) (see par 35). The significance of this decision includes the fact the exempt employer was required to decide the case with due consideration to the evidence. The question decided was whether the determination was objectively justified on the identified material.

17 Another helpful decision is Cramer v Schefenacker Vision Systems Australia Pty Ltd [2003] SAWCT 9. There the worker sustained injury on 7 August 2001. The injury was prolapse of two lumbar discs. In October 2001 the worker returned to modified reduced hours of work. By October 2002 he had progressed to near full-time modified duties. The exempt employer's practice had been to make a fresh determination each time the worker provided a prescribed medical certificate. On each occasion the determination would uphold his claim for a closed period. The last of these was 6 July 2002 to 4 October 2002. On 5 October 2002 the payment stopped without reference to s 36. On 21 November 2002 a further determination was made for a closed period from 5 October 2002 to 20 November 2002 adding:-

"... We hereby determine that you are fit to carry out your modified duties on a full-time basis, and therefore, you are not entitled to any further interim payments of income maintenance."

McCouaig DP analysed the material that was before the exempt employer to see if the determination was justified by that material. He concluded it was not and arguments to the contrary amounted to "pedantry". The decision had to be supported by the evidence. He concluded on any reading of the Act and the relevant authorities the applicability of s 36 in the circumstances was manifest (par 18). His Honour ordered payments to be reinstated.

18 As in Camburn and Cramer's cases there was no justification on the evidence available to treat this matter as appropriate for a closed period. We have set out the reasons for this, (see par 4). The determination ought to have decided the worker was entitled to a commencement of income maintenance. Therefore when the later determination of 16 September 2003 purported to end payments in the way that it did it failed because of the failure to comply with s 36(1)(b). Payments should be reinstated.

19 We make one further remark. That concerns the attempt to utilise Dr Bauze's opinion to stop payments. That was completely inappropriate for the reasons we have described in par 7: see also Pagliacci v General Motors-Holdens Ltd (1980) 23 SASR 126. It is appropriate to reiterate the statement of King CJ in Robbins v Harbord [1994] SASC 4571; (1994) 62 SASR 229, (at 236):-

"... The decision by the Corporation or exempt employer in relation to a claim is not simply a decision by a private person or corporation against whom a claim is made whether or not to admit or deny liability. It is a decision made in pursuance of a statutory function. The function of the exempt employer is not distinguished from that of the Corporation. Both have the statutory function of investigating and determining claims for compensation. Neither is entitled in determining claims simply to consult its own interests. There must be proper grounds of rejection of a claim and they must be notified to the claimant. ..."

It is important for those making decisions to realise these obligations under the legislation. The decision must be based upon the evidence. That

evidence has to be identified. The reasoning must be objective and justifiable. In this case for the reasons we have stated it was not.

20 The appeal is allowed and we order payments be reinstated.

21 The background facts of this appeal are set out in the joint judgment of Deputy President Judge McCusker and Deputy President Judge Parsons.

22 Mr Luke, for the respondent, did not dispute that the appeal raised a question of law.

23 Ultimately at issue here is whether the worker was in the circumstances entitled to the protective procedures provided by s 36 of the Workers Rehabilitation and Compensation Act 1986 ("the Act") when the weekly payments that she had been receiving since 11 April 2003 were stopped on 16 September 2003.

24 It is common ground that the respondent did not utilise s 36. The respondent says that s 36 did not come into play as there was not a discontinuance of weekly payments.

25 The respondent concedes that the worker was in continuous receipt of weekly payments over the described period (of over 22 weeks), but says that it never accepted liability for an ongoing entitlement, only liability for a series of claims for 'fixed' or 'closed' periods.

26 Whilst the words 'fixed' and 'closed' were used by counsel interchangeably, it is of significance that in the case of Workers Rehabilitation and Compensation Corporation v Thuy Thi Vu (1988) 49 SASR 585, the Supreme Court decision relied on by the learned Deputy President here, the determination in question approved weekly payments for a specified closed period that ended prior to the date of the determination. Moreover, the Corporation there had reason to so limit the worker's entitlement; it had to hand certificates from recognised medical experts that Ms Vu had ceased to be incapacitated for work and was fit to return to alternative duties from the day immediately following the end date for which it approved weekly payments.

27 The Supreme Court held that notwithstanding the determination's purported reliance on s 36(1)(b), s 36 in fact had nothing to do with the matter; there had been no discontinuance of weekly payments but only an identification of the period for which liability to make payments was admitted and determined.

28 The circumstances here are quite different. Here the respondent has over some 22 weeks accepted that the worker sustained a compensable disability, was incapacitated for work thereby and was entitled to weekly payments. Its several determinations accepted liability for weekly payments ongoing in the sense that liability for weekly payments was accepted to a date beyond the date of the determination in each case, the date being fixed in each case by reference to the most recent certificate supplied by the worker's general practitioner, Dr Singh.

29 In each determination it was expressly stated that the compensating authority's determination was based on a prescribed medical certificate supplied by Dr Singh. In each determination the acknowledged period of the worker's incapacity extended beyond the date of the determination. None of the medical certificates certified that the worker would be fit for work on the expiry date of the certificates; rather they indicated that Dr Singh would review the worker on the day preceding the expiry dates of the respective certified periods of incapacity. In each determination the worker was specifically required to continue to provide prescribed medical certificates until cleared for normal duties.

30 Even the disputed determination of 16 September 2003 acknowledged the workers' compensable disability, incapacity for work and entitlement to weekly payments based on the latest prescribed medical certificate supplied by Dr Singh. As with the previous determinations, this determination was also headed "Claim for compensation accepted". As previously, the commencement date of the worker's (further) period of incapacity and entitlement to weekly payments ran continuously from the end of the previous certified period of incapacity.

31 By 16 September 2003, however, the compensating authority had received a medical report from Associate Professor Bauze dated 26 August 2003 in which that specialist had suggested that the worker's medical condition was inconsistent with her having sustained any injury during the relevant period of her employment, and it was on the strength of this new factor, the absence of a causal link between the worker's relevant employment and her condition as assessed by Associate Professor Bauze, that liability for weekly payments beyond the date of the determination was denied.

32 The determination of 16 September 2003 is itself a curious document in that it on the one hand accepts liability for a further continuing period of incapacity for work in respect of an accepted compensable disability, and on the other rejects liability for weekly payments beyond the date of the determination on the ground that there was no compensable injury.

33 I do not accept Mr Luke's submission that the respondent here has done only what the Corporation did in Vu's Case. The facts of this matter have little similarity with those of Vu's case. They are also distinguishable from the facts of Begovic v WorkCover Corporation/CGU Workers Compensation (SA) Pty Ltd (Itrix Pty Ltd) [2002] SAWCT 13, an earlier decision of the learned Deputy President's that seems to have influenced his decision in this matter.

34 Begovic went on appeal to the Full Bench of the Tribunal: [2002] SAWCT 115. There is, in my view, no statement of legal principle in Begovic that is of relevance to the matter at hand.

35 The respondent's successive determinations accepted that up to and including 16 September 2003 the worker was incapacitated for work as a result of a compensable disability sustained on 10 March 2003 and that as a consequence she was entitled to weekly payments as from 11 April 2003. Certificates from Dr Singh attested to the worker's incapacity for work, and the respondent's determinations of 9 May 2003, 30 May 2003, 3 July 2003 and 16 September 2003 accepted the worker's entitlement to weekly payments for the period to 16 September 2003.

36 After 16 September 2003 weekly payments were discontinued on the strength of a new medical opinion obtained by the respondent that suggested the worker did not have a compensable disability.

37 The respondent does not accept that weekly payments were 'discontinued', and contends that the earlier determinations were irrelevant and of historical interest only. To ignore the history of the previous determinations and the sequence of weekly payments prior to 16 September 2003, however, is to see only part of the picture and ignore the plain reality of the matter.

38 Whether one says that the respondent accepted a series of consecutive fixed period claims for weekly payments or accepted a claim by the worker for ongoing weekly payments I do not think really matters. However described and whatever the process, liability for continuous weekly payments was accepted by the respondent for over 22 weeks up until 16 September 2003 when payments were suddenly discontinued upon the respondent forming the view that there was no compensable disability.

39 The worker was entitled to, but denied, the protective measures afforded by s 36 of the Act. The discontinuance of weekly payments was, in my view, unlawful and the worker was entitled to the summary relief sought.

40 I would allow the appeal and concur with the order that weekly payments be reinstated.