1. Under s 35(1) of the Act a worker who suffers a compensable disability that results in incapacity for work is entitled to weekly payments in respect of that disability in accordance with Division 4 of Part 4 of the Act. Under the former s 35 the existence of "total incapacity" or "partial incapacity" gave rise to an entitlement to weekly payments. Under s 35A the qualifying condition is that of either "no current work capacity" or "current work capacity".[17]
2. Where there is "no current work capacity" a worker is initially entitled under s 35A to payments equal to the worker's notional weekly earnings, then later to 90%, then 80% of notional weekly earnings, depending on whether that condition occurs "during" either the first, second or third entitlement periods respectively as defined in s 35(8) of the Act. Where there is a "current work capacity" the entitlement is set by reference to the difference between notional weekly earnings and designated weekly earnings as defined (if any) and similarly reduces over the three entitlement periods. Although s 35A specifies the amount of the entitlement to weekly payments during each entitlement period, and impliedly limits that entitlement to the duration of the respective entitlement periods, it does not contain any specific disentitling or discontinuance provision which comes into effect upon the end of an entitlement period.
3. Section 35B of the Act specifies the circumstances in which the entitlement to weekly payments will come to an end assuming that it has not already ended under other provisions of the Act. Section 35B(1) provides that "a worker's entitlement to weekly payments...ceases at the end of the third entitlement period".
4. The cessation of the entitlement in accordance with s 35B(1) does not mean that weekly payments can be discontinued without more. The mechanism for effecting any discontinuance is provided by s 36(1)(i), and notice must be given for the period prescribed by subss (3a)(bb) and (3b) of s 36. Subject to compliance with s 36 procedures, discontinuance can be effected as a consequence of the loss of entitlement under s 35B(1) whether or not an assessment of work capacity has been made.
5. The entitlement to weekly payments will not cease, or if it has ceased upon the third entitlement period ending, it will resume, if a worker is assessed by the compensating authority under s 35B(1) as having no current work capacity and as likely to continue indefinitely to have no current work capacity. If such an assessment is made, s 35B(2) provides that the worker is entitled to weekly payments while incapacitated for work at 80% of notional weekly earnings as though the third entitlement period was continuing. Thus depending on when it occurs, an assessment of no current work capacity will serve to maintain or revive the entitlement which would otherwise cease under s 35B(1) at the end of the third entitlement period.
6. On its face, s 35B(1) applies to all workers who have an entitlement to weekly payments under Division 4 of Part 4, but there are two exceptions or qualifications. First, it is subject to s 35C, which allows a worker who is or has been entitled to weekly payments under s 35A(3)(b) or s 35B of the Act to apply to the compensating authority for a determination that the worker's entitlement to weekly payments under Division 4 does not cease. The worker must be in employment to qualify for such a determination and must meet other conditions set out in s 35C(2) of the Act.
7. The second qualification arises under s 35B(4), which is to be read "[I]n connection with the operation of subsection (1)". Section 35B(4) provides that a worker who, immediately before the end of the third entitlement period, is in receipt of payments under para (a) of s 35A(3) of the Act, is entitled to continue to receive such payments unless or until the compensating authority has assessed whether the worker may be considered as having no current work capacity and is likely to continue indefinitely to have no current work capacity. Under s 35B(5), the assessment may be made before or after the end of the third entitlement period. If the worker is assessed as having a current work capacity, payments can be discontinued but only upon 13 weeks notice under s 35B(6) of the Act. Like s 35B(1), an assessment is not required to be made under s 35B(4). Unlike s 35B(1) however, a notice of proposed discontinuance of the weekly payments of a worker who falls within the more limited scope of s 35B(4) cannot be given unless and until an assessment has been made as to whether a worker has or does not have a current work capacity.
8. Section 35B(3) provides for "a review of the assessment of a worker". The review may be conducted by the compensating authority at any time and as often as may be reasonably necessary, being at least once every two years. The review process necessarily relates to an assessment which has previously been made under s 35B, and contemplates that the conclusion reached on a previous assessment as to whether a worker has or has no current work capacity might be altered.

Whether an assessment under s 35B(1) was appropriate

1. Against this background we now address the particular submissions of the parties as to the interpretation of s 35B. The appellant contended that s 35B should be understood to apply in the context that if a worker was in receipt of weekly payments of compensation at the end of the third entitlement period on the basis of either current work capacity or no current work capacity, it must be accepted that there had been a preceding decision that the worker should receive payments on that basis.
2. Thus with respect to s 35B(1), the appellant submitted that if payments were being received as a consequence of a prior decision that a worker had a current work capacity, and an entitlement to receive payments during the third entitlement period under s 35A(3)(b) of the Act, the entitlement to weekly payments would end due to the operation of s 35A(3)(b), and could be discontinued under s 36, without any assessment under s 35B(1). The disentitlement was said to result from the operation of s 35A, not s 35B(1). The latter provision merely provided a mechanism whereby the entitlement might be revived upon an assessment conducted under the subsection.
3. From this premise, the appellant contended that no assessment was "required" under s 35B(1), contrary to the assertion in the s 36 notice, and that the notice was misleading because, if there was an assessment, and if it was not made under s 35B(4), then it must be taken to have been conducted under some other provision, such as s 38, and as a consequence to be invalid for non-compliance with the procedures set out in that section, or alternatively, to be defective upon its face.
4. We consider it to be correct to say that a decision must have been made as to the basis upon which a worker is entitled to receive weekly payments before a worker reaches the end of the third entitlement period. This decision may be the acceptance of a claim at the outset by the compensating authority with mandatory s 38 reviews not disturbing that initial acceptance over the duration of the three entitlement periods. Alternatively, the decision may have most recently been made by the compensating authority on a s 38 review, or by the Tribunal as a result of dispute proceedings. For reasons explained below, if that decision was made before the relevant day, and was to the effect that payments be made on the basis of "partial incapacity" or "total incapacity" under the former s 35, it must be understood since the relevant day to be a decision that such payments be made on the basis of either "current work capacity" or "no current work capacity".[18]
5. However, we do not consider s 35B(1) to be simply an entitlement provision. Section 35A provides, "in respect of a particular compensable disability", the method of calculation of the entitlement to weekly payments during each of the three entitlement periods. It does not state that the entitlement ends at the expiration of any entitlement period. In particular, subpara (a) of s 35A(3) does not state that the entitlement ends at the expiration of the third entitlement period. The cessation of the entitlement at that time arises from s 35B(1), which provides that the entitlement "ceases" at the end of the third entitlement period "under section 35A". The latter phrase does not mean the cessation results from the operation of s 35A, despite the prescribed notice provisions in s 36(3a)(bb) of the Act referring only to s 35A and not to s 35B(1).
6. The appellant is correct in contending that an assessment is not required by s 35B(1), and that discontinuance can be effected in accordance with s 36 without an assessment having occurred, unless s 35B(4) applies. However, the compensating authority may choose to conduct an assessment nevertheless, and unless the outcome of the assessment is that there is no current work capacity, and that such a condition is likely to continue indefinitely, discontinuance may be effected under s 35B(1) and s 36(1)(i) of the Act.
7. Thus it is not misleading for the notice to assert that payments will "stop" in accordance with s 35B(1) and s 36(1)(i) of the Act. Nor is it misleading, where the compensating authority chooses to conduct an assessment, to state that there has been an assessment of current work capacity and that weekly payments will stop as a result.
8. To the extent that the first sentence of the notice implies that an assessment was "required" under s 35B(1), the implication is erroneous, as the cessation of entitlement, subject to s 35B(4), arises without more from the operation of s 35B(1). An assessment is not required. Despite this, the notice was not so misleading as to cause it to be voidable, in contrast, for example, to the position in Webb v Employers Mutual Limited,[19] where the notice conflated an assessment under s 35B(1) with a review of an assessment under s 35B(3), and thus gave rise to a question as to whether the decision making process miscarried due to irrelevant considerations being taken into account.
9. Thus whilst the learned Deputy President did not address the various submissions of the appellant outlined above with respect to s 35B(1), he was correct to reject the application for summary judgment based on an alleged misapprehension by the compensating authority of the operation of s 35B(1).

1. The appellant falls within s 35B(4) if he is "a worker who, immediately before the end of a third entitlement period, is in receipt of weekly payments under paragraph (a) of section 35A(3)". In that event he is "entitled to continue to receive weekly payments" as prescribed unless and until there is an assessment under s 35B(4) to the effect that he has a current work capacity and a notice of discontinuance is given under s 35B(6).
2. The appellant contended that unarguable facts must lead to the conclusion that he falls within s 35B(4). The sequence of events relied upon is as follows. A decision was made on 9 February 2009 under s 38(7) of the Act that "the worker is currently totally incapacitated for work" and that he receive a weekly compensation entitlement equivalent to 80% of notional weekly earnings. He continued to receive such payments from that day.[20] On 1 April 2009, the new entitlement provisions extended to the appellant under Schedule 1 cl 4(2) of the Scheme Review Act and replaced the former entitlement provision being the old s 35. These provisions applied to him immediately before the end of the third entitlement period, at which time he continued to be in receipt of weekly payments.
3. In these circumstances, contended the appellant, the legal position was clear. The s 38(7) decision must be taken to be a decision that, upon the new entitlement provisions coming into force, he was entitled to weekly payments under s 35A(3)(a) of the Act.
4. As to these submissions the learned Deputy President said:

"The argument that the compensating authority conducted an assessment under s 35B(4) is predicated upon a finding that at the end of the third entitlement period Mr Creek had no current work capacity. Whilst the outcome of the earlier s 38 review provides some evidence of that fact it is not conclusive and WorkCover does not concede the issue. Consistent with the limitations upon the capacity of the Tribunal to grant summary relief, as this is potentially an issue of fact, this ground cannot succeed."[21]

1. The appellant submitted that the learned Deputy President erred in accepting the compensating authority's contention that it was a disputable fact as to whether the appellant was a worker with no current work capacity immediately before the end of the third entitlement period so as to fall within s 35B(4). We consider the appellant's submission to be well founded. As a reading of s 35B(4) indicates, its application is predicated on no more than whether the appellant, immediately before the end of the third entitlement period, "is in receipt of weekly payments under paragraph (a) of section 35A(3)" of the Act. He does not have to establish that he then had "no current work capacity" in order for s 35B(4) to have application. If the appellant, upon the acceptance of a claim by the compensating authority or the making of a decision by the compensating authority or the Tribunal, is in receipt of weekly payments of compensation on the basis of total incapacity or no current work capacity, it does not necessarily follow that incapacity to that degree continues whilst payments are being received. The appellant may partially recover. But if that is ascertained to be the case, whether by a s 38 review or otherwise, a decision must be made and notice given under an appropriate provision of the Act to reduce or discontinue the ongoing payments. Until then, the appellant is entitled to receive payments in accordance with the initial acceptance or most recent decision on his level of incapacity.
2. It is not a prerequisite for the application of s 35B(4) that it be found that the appellant had "no current work capacity" immediately before the end of the third entitlement period. In our view, the learned Deputy President erred in concluding that such a finding was needed. To the extent that a contrary view was expressed by a single member on the summary judgment application in Webb we do not consider it to be correct having had the benefit of more detailed argument on the issue.
3. However, even if it does not have to be shown that as a matter of fact the appellant had no current work capacity at the end of the third entitlement period, the question remains as to whether the weekly payments the appellant was receiving on the basis of total incapacity following the s 38(7) decision can be said to have taken upon the character of weekly payments under para (a) of s 35A(3) upon the introduction of the new entitlement provisions.
4. The compensating authority contended that despite the s 38(7) decision, there was an arguable question of law as to whether the appellant fell within s 35B(4). It contended that it was significant in this context that the Transitional Provisions in Schedule 1 Cl 4 were not accompanied by deeming provisions including that a worker in receipt of weekly payments equal to 80% of notional weekly earnings in accordance with s 35 of the old entitlement provisions is to be taken upon the introduction of the new entitlement provisions to have "no current work capacity" or to be in receipt of payments under s 35A(3)(a) of the Act.
5. The provisions of Schedule 1 cl 4 are:

(1) Sections 35 to 35C (inclusive) of the principal Act, as enacted by this Act, (in this clause referred to as the new provisions) apply in relation to workers who suffer compensable disabilities on or after the relevant day.

(2) In addition, the new provisions extend to entitlements to weekly payments of compensation in relation to compensable disabilities occurring before the relevant day -

• (a) if a worker has, before the relevant day, reached or gone past the end of the first 2 years of incapacity referred to in section 35(2) of the principal Act, as in existence immediately before the substitution of section 35 under section 15 of this Act (in this clause referred to as the old provision) (and is still in receipt of weekly payments of compensation on the relevant day); or
• (b) if a worker, on or after the relevant day, reaches the end of the first 2 years of incapacity referred to in the old provision (and is still in receipt of weekly payments of compensation at the end of that 2 year period).

(3) To avoid doubt, in the circumstances of any particular case, the new provisions replace section 35 of the principal Act, as in existence immediately before the substitution of section 35 under section 15 of this Act, if or when a worker falls within a set of circumstances described in paragraph (a) or (b) of subclause (2)."[22]

1. As cl 4(2) states, the new provisions extend to weekly payments of compensation in relation to certain compensable disabilities occurring before the relevant day, being 1 April 2009. The appellant falls within cl 4(2)(a) of Schedule 1. Further, cl 4(3) provides that "in the circumstances of any particular case", the new provisions replace s 35 of the principal Act as in existence immediately before the substitution of s 35 of the Act by s 15 of the Scheme Review Act.
2. Thus the provisions of the former s 35 providing for the appellant's entitlement to weekly payments on the basis of total incapacity were replaced by the new provisions from 1 April 2009. The only provision under which he could have been receiving weekly payments on and from that day, given his status as a worker with an entitlement to receive payments on the basis of total incapacity, is that contained in para (a) of s 35A(3). To contend to the contrary relies upon the continuing operation of the former s 35 with respect to the appellant as the payments cannot be taken to have continued in a legal vacuum. But under the terms of Schedule 1 cl 4(2) and (3) of the Transitional Provisions, the former s 35 has had no operation with respect to the appellant beyond the relevant day. The new provisions replace the former s 35.
3. Thus the absence of any deeming provision is irrelevant. The new entitlement provisions either apply to the appellant in their entirety or not at all. In the circumstances they do apply, and given the terms of the s 38(7) decision, and the fact of receipt of payments on that basis since that time, the appellant must be taken to have been in receipt of weekly payments under para (a) of s 35A(3) from the relevant day and, given the accepted facts, up to the end of the third entitlement period. To conclude otherwise involves a selective application of portions of the new entitlement provisions to the appellant which is inconsistent with Schedule 1 cl 4(3) of the Transitional Provisions.
4. The appellant submitted that support for this conclusion was provided by s 3(10) of the Act which provides that, "For the purposes of this Act", "total incapacity for work is the incapacity for work that is represented by a worker having no current work capacity within the meaning of this Act".[23]
5. The compensating authority submitted that the scope and effect of s 3(10) was limited having regard to the qualification that the definition was to be applied "For the purposes of this Act". It contended that the definition applied only to references to "total incapacity" where they now appear in the amended Act.[24] It was submitted that the definition could not operate in a reverse way to mean that a decision made before the relevant day that there was a total incapacity should now be taken to be a decision that there was "no current work capacity", and could not bolster the contention that payments made on that basis since the relevant day had been received under para (a) of s 35A(3) of the Act.
6. In our view there is no basis to limit the scope of the application of the definition of "total incapacity" in s 3(10) in the manner the compensating authority contended. Whilst it is true that the s 38 notice itself is not part of the Act, it was issued pursuant to the Act and in purported compliance with the Act. The definition in our view supports the appellant's contention that the previous entitlement to and receipt of weekly payments on the basis of "total incapacity" became an entitlement to and receipt of weekly payments on the basis of "no current work capacity" from the relevant day. For reasons explained above, the effect of the Transitional Provisions must be that since the relevant day any payments made on this basis have been received under para (a) of s 35A(3) of the Act.
7. Thus we conclude that the learned Deputy President erred in law in his construction of s 35B(4) of the Act and erred in not finding that the appellant fell within that subsection. Any assessment of his current and continuing work capacity had to be made under that subsection, and any notice of discontinuance based upon such an assessment had to comply with s 35B(6). That did not occur in this case and thus the notice is fundamentally defective.

1. If the appellant falls within s 35B(4), as on our construction of that provision he must, not only should the compensating authority have conducted an assessment under s 35B(4), but the notice should have referred to that provision and should also have given at least thirteen weeks notice of any proposed discontinuance following upon that assessment pursuant to s 35B(6).
2. Thus the assessment process was not conducted in accordance with the Act and there were significant deficiencies in the notice which followed the assessment. The notice is rendered voidable as a result. Applying the Rundle approach, there are no circumstances which would warrant the exercise of a discretion not to set the notice aside as invalid as a result. The application for summary relief in this case should have been granted. As a consequence, the appeal must be allowed.

The alleged procedural defects in the content of the decision and the notice given

1. Given our conclusion as to the defective nature of the notice having regard to the application of s 35B(4) and the consequences of that, it is not strictly necessary that we address the alternative contentions as to the existence of various other procedural defects. However it is appropriate that we do so in case our conclusion as to the applicability of s 35B(4) is wrong.
2. Two of the appellant's three contentions were based on an alleged failure to comply with s 36(3) of the Act and reg 7. An extract of s 36(3) is set out above. Regulation 7 provides:

Pursuant to sections 36(3), 39(3) and 45(7) of the Act, the following information must be included in a notice under any of those sections:

(a) a statement of the decision that has been made to discontinue, reduce, suspend or adjust weekly payments; and

(b) a reference to the provision of the Act and, if relevant, the regulations made under the Act, on which the Corporation is relying to discontinue, reduce, suspend or adjust weekly payments, and the text of that provision; and

(c) the general basis on which the Corporation has made its decision."

1. The contention was that subparas (b) and (c) were not complied with. As to subpara (c), it was contended that the decision was confusing due to the erroneous reference to the "requirement" to conduct a work capacity review under s 35B(1), which it was contended might lead the appellant to think that the assessment had been conducted under some other provision of the Act, such as s 35B(3), s 35C or s 38. We have already rejected this as a basis for finding the notice voidable.[25]
2. Further, it was submitted that in light of the earlier s 38(7) decision as to total incapacity, the basis for the conclusion in the notice that the appellant now had a current work capacity (equivalent in effect to the former state of partial incapacity) was not adequately explained. We do not accept this submission. Assuming that the compensating authority was not required to assess the appellant under s 35B(4), it was entitled to conduct an assessment under s 35B(1), although not required to. The notice asserted there had been an assessment under s 35B(1). That is what in fact occurred. The notice provided some detail as to the matters taken into account in making the decision. It was determined that the appellant was fit for suitable employment. The basis for the decision was clearly set out. The learned Deputy President so found and in our view he correctly did so. What the appellant demands is akin to reasons for decision including legal analysis and this is not what reg 7 requires. The first complaint is not made out.
3. Nor do we accept the appellant's second contention based on reg 7(b). The requirement of reg 7(b) is not that the compensating authority refer to or attach the text of all of the provisions which may be connected with the provision or provisions upon which it relies. For reasons explained, the provisions which specifically give rise to the alleged disentitlement are ss 35B(1) and s 36. The notice stated that weekly payments would stop in accordance with s 35B(1) and s 36(1)(i) of the Act. In our view that is sufficient. Regulation 7(b) did not also require that either the text of s 35A be provided, or the definitions of "current work capacity", "no current work capacity" and "suitable employment". The learned Deputy President was correct to reject the appellant's argument.
4. The third point raised by the appellant was that there had been a failure to comply with the introductory requirements of s 36(3a) of the Act in that the written notice required by s 36(3) was not "given at least the prescribed number of days before the decision is to take effect". The prescribed number of days in this case was 28 days as specified in s 36(3b)(b) of the Act.
5. The appellant drew attention to the following sentence in the notice:

"I am giving you 28 days notice before weekly payments are stopped pursuant to section 36(3b)(b) of the Act and therefore your weekly payments will cease 28 days after you receive this letter".

1. The appellant conceded before the learned Deputy President that had the sentence ended at the word "Act" and had the following words not been included, his complaint could not be made out. The learned Deputy President did not read the latter part of the sentence as qualifying the earlier statement of notice and in our view it was open to him to so conclude. The first part of the above sentence gives the notice required by s 36(3a). There is 28 days notice before the decision is to take effect.
2. In the circumstances, we consider that the learned Deputy President was correct to reject the contention that the notice was voidable on any of the above grounds.
3. Another issue arises. The learned Deputy President proceeded to find that even if he was wrong as to the text and notice points, so that the notice was voidable, he would exercise his discretion not to set it aside. The appellant contended that the learned Deputy President erred in the exercise of the Rundle discretion, and took into account irrelevant considerations, in particular, what was in the mind of the decision-maker.
4. The learned Deputy President appears to have had regard to whether any failure by the compensating authority to provide the required texts was a "misjudgement" as opposed to a "calculated decision to deceive" the appellant.[26] On the notice point he considered whether the statement of notice, assuming it fell short of the required 28 days, reflected a "deliberate decision" on the part of the compensating authority to abridge the time limit that the appellant was otherwise entitled to.[27]
5. In Rundle, the Full Tribunal identified the matters relevant to the invocation of the discretion in that case, with the qualification that the observations made were not intended to place any limitation upon the scope of equity and good conscience provisions of s 85 of the Act, or the circumstances in which they might be enlivened. It then continued: "...in a case like this considerations that will guide the Tribunal as to s 85's invocation are whether to not do so would 'be manifestly unfair' or would bring 'the administration of justice into disrepute among right-thinking people'".[28]
6. The context in which the discretion is to be exercised must be recalled. Rundle made it clear that the consequences of a failure to comply with the procedural requirements of s 36 will, if the issue is raised in a timely and appropriate way, "invariably" lead to an order striking out the notice and granting summary relief, but "...not always".[29] Having considered the terms of s 85, the Full Tribunal stated the correct approach to be that "in an appropriate case the Tribunal may decline to grant relief in exceptional circumstances".[30]
7. In Rundle, an allegation that the required period of notice fell short by one day had been raised belatedly and in circumstances which incurred costs and delay with respect to a scheduled merits hearing. The Full Tribunal had regard to this factor, and to the lack of prejudice suffered by the worker because of the alleged defect. It concluded that it would be manifestly unfair to grant summary relief, and exercised its discretion to decline to do so.
8. Whilst the Full Tribunal in Rundle did not set out any principles of general application in these circumstances, we do not consider that it contemplated that a subjective consideration such as the intention of the decision-maker could be relevant. Nor do we consider that it is relevant. It is not an objective fact assessable on an application for summary judgment. It is a matter which, if it was to be taken into account in such circumstances, would likely lead to requests for attendance of the decision-maker for cross-examination about his or her intentions. It would involve an inappropriate "mini-trial" on a summary judgment application.
9. In so far as the learned Deputy President had regard to what he thought the decision-maker likely intended, as opposed to what the words used objectively convey, we think this was an irrelevant consideration. That said, there were grounds upon which his discretion might properly have been exercised to not set aside a voidable notice. These included that there was no assertion of prejudice to the appellant, a matter to which the learned Deputy President had regard,[31] and that there was no evidence that the weekly payments had ceased before the expiration of the 28 days notice required by s 36(3a) assuming s 35B(1) was applicable.

1. We allow the appeal and set aside the decision of the learned Deputy President.
2. We set aside the compensating authority's notice of 29 December 2009 on the ground of its invalidity.

[3] The first, second and third entitlement periods are explained in s 35(8) of the Act - if the appellant had a continuous incapacity for work and a continuous entitlement to income maintenance from the date of injury, the end of the third entitlement period would have been reached 130 weeks after 25 November 2006, namely by 25 May 2009. However, the appellant did not dispute the assertion that he passed the end of the third entitlement period in the week ending 21 November 2009.

[5] Being 1 April 2009 in accordance with the proclamation dated 26 March 2009 of the "relevant day" for the purposes of Schedule 1 cl 4(2).

[6] Paras 33, 34, and 36 of the decision under appeal ("the decision").

[7] Reg 7(b) of the Workers Rehabilitation and Compensation (General) Regulations 1999 ("the Regulations").

[8] [2006] SAWCT 12.

[9] The appellant observed that there might also be a question as to whether procedural fairness had been afforded with respect to the s 35B assessment process, but that this was "an argument for another day" - tr 13. This matter was heard before the decision of Davey v WorkCover Corporation (Construction Industry Training Board) [2011] SAWCT 1, and any procedural fairness issue which might have arisen does not need to be addressed given our conclusion.

[10] [1998] SAWCT 32

[11] [2005] SAWCT 93.

[12] [1997] SAWCT 13.

[13] [1964] HCA 69; (1964) 112 CLR 125 at 129 per Barwick CJ.

[14] [1993] HCA 57; (1993) 177 CLR 598.

[15] [2001] SAWCT 69.

[17] These conditions are defined in s 3(10) - see below at para [56].

[19] [2010] SAWCT 4.

[20] The learned Deputy President accepted that "it would seem" that this occurred (para 19 of the decision). The compensating authority conceded that at the end of the third entitlement period the appellant was in receipt of weekly payments. It accepted that the basis upon which the s 38(7) decision was made was that there was a total incapacity - Appeal tr 47**.**

[22] The relevant day for the purposes of cl 4(1) is 1 July 2008 - Workers Rehabilitation and Compensation (Scheme Review) (Relevant Day) Proclamation 2008 made 26 June 2008; the relevant day for the purposes of cl 4(2) and (3) is 1 April 2009 - Workers Rehabilitation and Compensation (Scheme Review) (Relevant Day) Proclamation 2009 made 26 March 2009.

[23] Section 3(10) then proceeds to provide for a similar correlation between "partial incapacity" and "current work capacity".

[24] For example, ss 40(3) and 58A(1) and (2) of the Act.

[31] A consideration accepted to be relevant in Rundle.