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[2010] SAWCT 22
General information, not legal advice.
Workers Compensation Tribunal (SA)
2010-05-20
Mr J
Original judgment source is linked above.
1
This is an application for summary relief that is based upon alleged deficiencies in a notice issued by the WorkCover Corporation to discontinue weekly payments of income maintenance.
2
The applicant worker, Mr Adam Creek, injured himself in the course of his employment with Glen Industries on 25 November 2006. Thereafter he sought and obtained compensation under the Workers Rehabilitation Compensation Act 1986 and came to be in receipt of weekly payments of income maintenance.
3
What is at issue between the parties is whether the mechanism through which WorkCover sought to discontinue Mr Creek's weekly payments and the means by which it communicated that decision complied with the relevant statutory provisions.
4
By amendments to the Act that took effect from 1 July 2008 Mr Creek's entitlement to weekly payments became regulated by ss 35, 35A, 35B and 35C of the Act.
5
Sections 35 and 35A provide for three entitlement periods.
6
The first is to the aggregate period of thirteen weeks following of the commencement of a worker's incapacity for work. During this period the worker is entitled to up to 100% of his or her notional weekly earnings.
7
The second for the aggregate period of thirteen weeks following the first period. During this period the worker is entitled to up to 90% of notional weekly earnings.
8
The third is for the aggregate period of 104 weeks following the expiration of the second period. During this period the worker is entitled to up to 80% of notional weekly earnings.
9
Pursuant to s 35B(1) of the Act, unless they have already stopped, at the end of the third entitlement a worker's entitlement to weekly payments ceases. This general proposition is subject to a series of exceptions.
10
One such exception is that provided for by s 35B(1) itself. It stipulates that the entitlement does not cease if the compensating authority has assessed the worker and has concluded that the worker has no work capacity and that that state of affairs is likely to continue indefinitely.
11
Another is provided for by s 35B(4). It states that in the case of a worker who, immediately before the end of the third entitlement period is in receipt of payments under s 35A(3)(a) of the Act, which means that the worker had at that point no current work capacity, that worker is entitled to continue to receive such payments unless or until the compensating authority has assessed the worker's current work capacity. If it concludes that the worker has no work capacity and that that state of affairs is likely to continue indefinitely weekly payments continue. If it concludes that these criteria are not met weekly payments may cease, but not before the worker has been given at least thirteen weeks notice in writing of the proposed discontinuance.
12
The assessments made under these provisions may be reviewed.[1] The review may be conducted by the compensating authority at any time thought necessary and at least once every two years.
13
Another exception is provided for by s 35C. It allows a worker who is in employment to assert that he or she is incapable of undertaking further or additional employment that would increase the worker's earnings. If the compensating authority is satisfied that that state of affairs exists and is likely to continue indefinitely weekly payments do not cease. The assertion is made through an application and may be made before or at the end of the third entitlement period.[2]
14
It needs to be noted that s 36, which is a general provision authorising the discontinuance of weekly payments in a variety of circumstances, contains its own notice provisions. Relevantly it provides through s 36(3a)(bb) that where a decision to discontinue weekly payments is made on account of the end of the third entitlement period under s 35A the notice must be given at least 28 days before the decision is to take effect. Section 36(3) provides that a notice of discontinuance made in pursuance to s 36 must be given in writing and contain certain information required by regulation. Regulation 7 of the Workers Rehabilitation Compensation (General) Regulations 1999 requires a notice of discontinuance to include a reference to the statutory provision relied upon in effecting the discontinuance together with the text of the provision, as well as a statement of the general basis upon which that decision was made.
15
It also needs to be noted that s 38 enables the review of weekly payments. This review may be conducted at any time and must, if the period of incapacity continues for more than one year, be conducted in the second year of incapacity and thereafter during every subsequent year of incapacity. Before a review under this provision is carried out the worker must be given notice of the proposed review and invited to make representations in response to the invitation. In connection with the review a worker may be asked to submit to a medical examination and to supply evidence of earnings. Following the review and subject to its findings the compensating authority may maintain, increase, decrease or discontinue weekly payments. The worker and the employer who was employing the worker at the time of the compensable disability must be informed of the outcome of the review and of their right to dispute it.
16
On 29 December 2008 WorkCover, through its agent Employers Mutual Limited, advised Mr Creek of its intention to review, pursuant to s 38 of the Act, the amount of weekly payments being paid to him.[3]
17
In a letter of that date it indicated, "EML has been unable to identify any suitable duties at this point of time".
18
Having completed its s 38 review EML made a determination on 9 February 2009 that Mr Creek's weekly payments were to remain unchanged. The determination declared:
"Having regard to the opinion(s) of Dr Thang Voung relied on and on the basis of the other information previously sent to the worker, we have determined that the worker is currently totally incapacitated for work."[4]
19
It would seem that following this weekly payments continued unabated until 29 December 2009 when Mr Creek was advised by letter of that date that his weekly payments would cease. The letter included the following:
"You passed the end of your third entitlement period in the week ending 21/11/2009 and as such I have assessed your entitlement to weekly payments under section 35B(1).
...
I have determined that you have a current work capacity and as a result your weekly payment will stop in accordance with sections 35B(1) and 36(1)(i) of the Act.
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 decision."[5]
20
The letter went on to provide details as to how the decision was reached and included the text of ss 35, 35B, 35C, 36, 90, 90A and 90B of the Act.
21
Amongst other things it referred to medical examinations that occurred with Dr Bauze on 17 February 2009 and with Dr Meegan on 21 August 2009; a medical certificate issued by Dr Vuong on 6 November 2009 certifying that Mr Creek was fit for modified duties; a job analysis report; and to the fact that Dr Meegan and Dr Vuong stated that the position identified in the job analysis report comprised of suitable employment.[6]
The grounds supporting the application for summary relief
22
Mr Warren, counsel for Mr Creek, contended that the effect of the relevant provisions was that there was a two-stage process involved. The first being to assess the worker's current work capacity and if there is none whether that will continue indefinitely. The second being a decision to discontinue if the assessment enables that outcome.
23
He submitted that the decision to discontinue in this case could only have been made upon one of three bases.
24
He said one possibility was that there had been a review of weekly payments made pursuant to s 38. He said that if this is in fact what occurred the process was flawed because the procedures required by s 38 were not followed.
25
He said that another possibility was an assessment of a worker who, immediately before the end of the third entitlement period was in receipt of payments under s 35A(3)(a) of the Act. I understood him to contend that in light of the outcome of the earlier s 38 review, as evidenced by the letter of 9 February 2009, it was reasonable to postulate that this had occurred. He said that if this is in fact what occurred the process was flawed because Mr Creek was entitled to thirteen weeks notice before the decision took effect whereas he only received 28 days.
26
A third possibility was that WorkCover reviewed a prior assessment under s 35B(3). I understood him to contend that this explained the change between the outcome of the earlier s 38 review and the conclusion underpinning its later determination. The s 38 review formed the basis of the initial assessment and as a result weekly payments continued but upon a review of that assessment a decision was made to discontinue Mr Creek's weekly payments. He said that if this is in fact what occurred the process was flawed because the later determination made no reference to the prior assessment.
27
He submitted that in any event the determination failed to provide adequate details of the basis upon which WorkCover had concluded that Mr Creek had current work capacity in light of its earlier conclusion that he was totally incapacitated for work.
28
Mr Warren then made a series of further complaints about the determination.
29
He said that amongst other things it should have included the statutory definitions of "current work capacity" and "suitable employment" and it did not.
30
He said that a consideration of s 35A of the Act must have featured in the decision making process such that the determination should have included the text of s 35A of the Act, and it did not.
31
He said, that in any event, the advice within the determination that weekly payments would cease 28 days after Mr Creek received decision was incorrect because if indeed the 28 day period applied, to have stopped payments 28 days after Mr Creek received the decision was less time than that prescribed.
32
I remind myself that in determining whether summary relief should be granted the threshold is very high. As Hannon DPJ noted in Webb v Employers Mutual Limited it "should only be granted where there is no real question of law or fact to be determined, and should be exercised with appropriate caution".[7]
33
As I understand Mr Warren's first argument in construing the relevant provisions where s 35B(1) speaks of "is assessed" I should read into the section the words "following a s 38 review".
34
It does seem incongruous that Parliament would through s 38 create a process that requires the compensating authority, when reviewing weekly payments payable to workers who have been incapacitated for work for more than a year, to give the worker an opportunity to be heard prior to any decision being made, to take reasonable steps to obtain all relevant evidence and to reach its conclusion in a fair and unbiased way,[8] and yet would not put in place a similar process where issues of work capacity are being assessed that could lead to the discontinuance of weekly payments for workers who have been in receipt of weekly payments for over two years. However the clear words of the section cannot be ignored. Had Parliament intended a process similar to that provided for by s 38 or that s 38 itself had to be invoked in connection with the assessment of a worker's work capacity under s 35A(1) it would have said so.
35
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.
36
As to the assertion that what was involved here was a review of a prior assessment, that is not what the determination says it is and there was no evidence of a prior assessment. There was evidence of a prior s 38 review but for the reasons explained above I see that as a different process.
37
As to the alleged inadequacy in the explanation of the change in opinion from total incapacity to having current work capacity I think that the reference to: the medical examinations conducted by Dr Bauze and Dr Meegan; the medical certificate issued by Dr Vuong; the job analysis report and the statements made by Dr Meegan and Dr Vuong in respect of the duties identified in the analysis; all of which took place after the s 38 review, adequately explain the change in position.
38
I now turn to the argument that the notice should have included other statutory provisions.
39
The texts that Mr Warren says should have been included with the determination are as follows:
" 'current work capacity' in relation to a worker, means a present inability arising from a compensable disability such that the worker is not able to return to his or her employment at the time of the occurrence of the disability but is able to return to work in suitable employment;"
" 'suitable employment', in relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:
(a) the nature of the worker's incapacity and previous employment;
(b) he worker's age, education, skills and work experience;
(d) medical information relating to the worker that is reasonably available, including in any medical certificate or report;
(e) if any rehabilitation programs are being provided to or for the worker;
(f) the worker's rehabilitation and return to work plan, if any;"
(1) Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the first entitlement period as follows:
(a) for any period when the worker has no current work capacity - the worker is entitled to weekly payments equal to the worker's notional weekly earnings;
(b) for any period when the worker has a current work capacity - the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(2) Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the second entitlement period as follows:
(a) for any period when the worker has no current work capacity - the worker is entitled to weekly payments equal to 90% of the worker's notional weekly earnings;
(b) for any period when the worker has a current work capacity - the worker is entitled to weekly payments equal to 90% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(3) Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the third entitlement period as follows:
(a) for any period when the worker has no current work capacity - the worker is entitled to weekly payments equal to 80% of the worker's notional weekly earnings;
(b) for any period when the worker has a current work capacity - the worker is entitled to weekly payments equal to 80% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(4) For the purposes of this section, but subject to subsection (5), the 'designated weekly earnings' of a worker will be taken to be -
(a) the current weekly earnings of the worker in employment or self-employment; or
(b) the weekly earnings that the Corporation determines that the worker could earn from time to time (including, but not limited to, the amount of any current weekly earnings) in employment, whether in the worker's employment previous to the relevant disability or in suitable employment, that the Corporation determines the worker is capable of performing despite the disability,
whichever is the greater, but not to include a prescribed benefit under subsection (6).
(5) Subsection (4)(b) will not apply to a worker who has a current work capacity during any period or periods during which the worker is incapacitated for work and in which either of the following circumstances apply:
(a) the employer has failed to provide the worker with suitable employment and the worker is making every reasonable effort to return to work in suitable employment;
(b) the worker is participating in a rehabilitation and return to work plan which reasonably prevents the worker from returning to employment.
(6) The following are 'prescribed benefits' for the purposes of subsection (4):
(a) any amount paid to the worker by the Corporation or a self-insured employer in respect of an employment program provided or arranged by the Corporation or self-insured employer for the purposes of this Act;
(b) any of the following received by the worker from an employer:
(i) any payment, allowance or benefit related to annual or other leave;
(ii) any payment, allowance or benefit paid or conferred by the employer on the worker's retirement;
(iii) any payment, allowance or benefit paid or conferred under a superannuation or pension scheme;
(iv) any payment, allowance or benefit paid or conferred on the retrenchment, or in relation to the redundancy, of the worker;
(c) any other payment, allowance or benefit of a prescribed kind."
40
Doubtless Parliament promulgated the regulation in the expectation that the provision of the matters identified would potentially assist a worker in understanding why the decision had been made. That said, how the provision of the texts set out above would have assisted Mr Creek in this case escapes me. In Worker's Rehabilitation and Compensation Corporation v Warren Cox J described the former s 35 provisions as "opaque"[9]. I think that word is equally applicable to the legislative provisions under consideration here and indeed to many other provisions in the Act.
41
An added difficulty is that many of the legislative provisions contained within the Act are intertwined. A case could be made in respect of most determinations for extensive citation and the inclusion of extensive extracts of legislative text. The decision maker has to make an exercise of judgment as to what is to be included. If the texts identified by Mr Warren should have been provided in this case it is reasonable to assume that WorkCover's failure to do so was a misjudgement as opposed to a calculated decision to deceive Mr Creek.
42
In conformity with the principles enunciated by the Full Tribunal in Rundle v WorkCover/Vero Workers Compensation (SA) Ltd (P&O Transport Aust) [10] if these texts should have been provided all that would do is render the determination voidable. Given that it is doubtful that the inclusion of the texts would have made any difference to Mr Creek in my opinion if a breach has occurred it would not lead to a conclusion that the decision would inevitably be found to be void. Unless I could be satisfied of that the application for summary relief on this point must fail.
43
As to the suggestion that the notice is defective because it stated that the worker's weekly payment were to cease 28 days after he received the decision, Mr Warren conceded that if those words were not included in the determination and the relevant section of the determination was limited to "I am giving you 28 days notice before weekly payments are stopped pursuant to s 36(3b)(b) of the Act", there would have been no substance in this complaint.
44
I do not read the inclusion of the words "therefore your weekly payments will cease 28 days etc" as qualifying the initial statement made. I would regard it as providing the worker with no more than information to the effect that within four weeks or so of the receipt of notice his weekly payments are going to stop. I fail to see how it could have intended to convey any more than that when at the time of writing the letter the author could not have known for certain when the worker was going to receive the decision.
45
In any event, I do not think that the statements can be taken to reflect a deliberate decision on the part of the WorkCover to abridge the time limit that the worker was otherwise entitled to. If it can be construed that the letter intended to convey an abridgment, it would be a day or two and no more. Again, all that would do, is make the decision voidable and in the context of an application for summary relief I would not regard the abridgment as so gross as to warrant the inevitable conclusion that it would have rendered the decision void.
46
For all of these reasons, I do not think that the grounds supporting the application for summary relief had been made out.
47
Accordingly, I dismiss the application.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.
It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.
[7] [2010] SAWCT 4 at para 22.
[8] McAvoy v BT and LR Churcher (NZI Workers Comp (SA) Ltd v Workcover) [1998] SAWCT 42.
Creek
WorkCover Corporation/EML
(1998) 72 SASR 7