Eylward v Select Staff Pty Ltd [2000] SAWCT 192

"36(1) Subject to this Act, weekly payments to a worker who has suffered a compensable disability must not be discontinued unless -

(f) the worker breaches the obligation of mutuality;

(1a) A worker breaches the obligation of mutuality if-

(a) the Corporation has, by written notice to the worker, required the worker to submit to an examination by a recognised medical expert nominated by the Corporation and the worker fails to comply with the requirement within the time allowed in the notice or obstructs the examination; or

(b) the Corporation has, by written notice to the worker, required the worker to submit to the Corporation a certificate from a recognised medical expert certifying that the compensable disability continues, and the worker fails to comply with the requirement within the time allowed in the notice; or

(c) the worker refuses or fails to submit to a proper medical treatment for the worker's condition; or

(d) the worker refuses or fails to participate in a rehabilitation program under this Act or participates in a way that frustrates the objectives of the program; or

(e) the worker fails to comply with an obligation under a rehabilitation and return to work plan under this Act; or

(i) to undertake work that the worker has been offered and is capable of performing; or

(ii) to take reasonable steps to find or obtain suitable employment,

or having obtained suitable employment, unreasonably discontinues the employment; or

(g) the worker does anything else that is, apart from this subsection, recognised as a breach of the obligation of mutuality..."

4 The worker is a woman aged 26 years who from about September 1996 was employed by the employer as a process worker. On 22 April 1997 she sustained an injury to her right wrist and lower arm in compensable circumstances ("the compensable disability") in respect of which she sought and obtained compensation pursuant to the Act. After a period of total incapacity the worker returned to work with the employer on modified duties and continued to do so until September 1998 when she ceased work to commence a period of unpaid maternity leave.

5 As a result of that, the worker's weekly payments of income maintenance were discontinued pursuant to s 36 of the Act by determination dated 14 September 1998. It is conceded that at the time of that discontinuance the worker was partially incapacitated for work.

6 On 1 April 1999 the worker underwent further surgery that was required as a consequence of a compensable disability.

7 As a result of this surgery the worker, for a period of some 6 weeks from 1 April 1999, and then for a further period from mid June 1999 until 1 October 1999 was totally incapacitated for work.

8 For the periods following 1 October 1999 the worker has been partially incapacitated for work and it seems to be conceded that she has, in respect of that period, revived mutuality so as to be entitled to weekly payments of income maintenance.

9 The issue in dispute between the parties is whether the worker has any entitlement to weekly payments of income maintenance in respect of the period of six weeks from 1 April 1999 and the period from mid June 1999 until 1 October 1999.

10 The employer contends that she is not. It is convenient to commence with its argument. It relies upon some observations made by Deputy President Judge Gilchrist in Griffin v WorkCover Corporation/MMI Workers Compensation (SA) Ltd JD58/1997 which were approved of and expanded upon by the Full Bench of the Tribunal in WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Rexco Pty Ltd) v Snell [2000] SAWCT 137 namely:-

"As was noted in Griffin v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd (JD58/1997):-

`The concept [of mutuality] was developed through a series of decisions to enable a provision which deems a partial incapacity to be total, to be applied fairly, in circumstances where if the concept did not apply, it would impose an unreasonable obligation upon an employer to provide suitable duties to an injured worker, or would entitle a partially incapacitated worker to the benefit of the deeming provision, when it would be patently unjust for that to occur: RJ Brodie (Holdings) Pty Ltd v Pennell (1968) 1C [1968] HCA 73; 117 CLR 665; Electric Power Transmission Pty Ltd v D'Urso [1970] HCA 40; (1970) 124 CLR 338; Stavrou v General Motors Holden (1982) 49 SAIR (Part 2) 381: and Hartwell v Electricity Trust (SA) (1982) 29 SASR 365.'

As was also observed in that case, the effect of the enactment of s 36(1)(f) is that a breach of mutuality now can be relied upon by a compensating authority to discontinue weekly payments of income maintenance for breach of mutuality if established, rather than performing the more limited role that it played during the course of its development, namely depriving a partially incapacitated worker of the deeming provision in the relevant legislation for the purposes of the computation of his or her entitlements to weekly payments."

11 It submits that these observations reveal the true purpose of the breach of mutuality provisions, and that is that they disqualify a worker from receiving income maintenance whilst a lack of mutuality remains. It says that given that this is its purpose there is no basis to discriminate between partially and totally incapacitated workers and that because during the periods under consideration here there was no revival of mutuality the worker has no entitlement to weekly payments.

12 In support of this submission the employer made reference to a number of the deemed breaches of mutuality set forth in s 36(1a). It specifically relied upon s 36(1a) (a), (b) and (c), although its point is equally valid in respect of s 36(1a) (d) and (e). What it says is that these deemed breaches are equally applicable to totally incapacitated workers and indeed if they did not apply to those workers the objects of the Act might be frustrated.

13 The point that the employer makes in respect of this is validly made. If a totally incapacitated worker could ignore provisions such as these with complete impunity the objects of the Act could well be frustrated. For example, if these provisions do not apply to a totally incapacitated worker it could mean that such a worker whose condition might be significantly improved by appropriate medical treatment or whose capacity for work might be restored by participation in a rehabilitation program could refuse to undertake such treatment or participate in such a program and the relevant compensating authority would be powerless to do anything about it.

14 This lead us to conclude that s 36(1a) subplacitum (a) through to (e) apply not only to partially incapacitated workers but also to totally incapacitated workers.

15 However, it does not follow that subplacitum (g) should be similarly construed. General workers compensation law has never recognised a want of mutuality as being relevant to a totally incapacitated worker because such a worker would not need to rely upon the relevant deeming provision. As a result we conclude that s 36(1a)(g) does not apply to a worker who is totally incapacitated for work.

16 If the position were otherwise it could lead to quite capricious results. A worker who was totally and permanently incapacitated for work by a seriously debilitating condition such as quadriplegia could have his or her weekly payments stopped because of a subsequent medical condition unrelated to the compensable disability, such as a heart attack, which in a relevant sense had not impacted upon the worker's capacity for work, there being none.

17 Moreover there appears to be no obvious reason why Parliament would want to effect such a radical change. It makes sense why Parliament would want to empower compensating authorities to apply the sanction of s 36 to all workers in receipt of income maintenance for committing one of the deemed breaches. It also makes sense why it would want to allow a compensating authority to be relieved of the obligation to pay income maintenance to a partially incapacitated worker who was not ready willing or able to take up an offer of suitable duties. But, apart from being parsimonious, what purpose would be served by relieving a compensating authority of the obligation to pay income maintenance to a totally incapacitated worker who was not ready willing or able to take up an offer of suitable duties, when, by reason of a compensable disability, that worker could not perform those duties anyway?

18 We therefore conclude that during the periods claimed, the worker is able to assert that there has been a change of circumstances from that which existed at the time of the lawful discontinuance of her weekly payments, namely, that for those periods she was totally incapacitated for work such that the Corporation is unable to rely upon her breach of mutuality as providing a basis to disentitle her to weekly payments.

19 Accordingly, in our view, the worker is entitled to weekly payments for the periods claimed.

20 In reaching this conclusion it is strictly not necessary for us to deal with the worker's alternate argument. We do however propose to do so.

21 The worker would have it that all that the invocation of s 36 achieves is the right to discontinue but that otherwise a worker's rights to income maintenance remain unaffected. Thus, in the case of a breach of mutuality, she submits that upon the discontinuance of weekly payments she can lodge a fresh claim for compensation and that she is entitled to be paid payments albeit, during periods of partial incapacity, without the benefit of the deeming provision provided for by s 35.

22 We reject that submission. In our view, the invocation of s 36 does affect rights and entitlements such that once weekly payments have been lawfully discontinued, a further claim in respect thereof can only be made if there has been a change in circumstances, such as a withdrawal of the consent to discontinuance (s 36(1)(a)), a recurrence of an incapacity for work (s 36(1)(b)), a ceasing of the performance of work (ss 36(1)(c) and (d)), a revival of mutuality or in the case of a s 36(1a)(g) breach a change in the level of incapacity for work from partial to total(ss 36(1)(f)), or a grant of consent or return to the State (s 36(1)(g)).

23 We have not heard from the parties regarding the precise amount of the worker's entitlements in view of our conclusion. We therefore adjourn further consideration of this judicial determination and grant the parties liberty to apply.