Herrera v Return to Work Corporation of South Australia [2025] SAET 117

1. By determination dated 24 July 2025, the Return to Work Corporation of South Australia (the Corporation) resolved to invoke the power of discontinuance provided by s 48 of the Act to discontinue the weekly payments of income support that it was paying Cledismar Zabala Herrera. It did so by reference to s 48(2)(b) of the Act, based upon the opinion of the occupational physician, Dr Hwang, that Ms Herrara was no longer incapacitated as a result of a work injury that the Corporation had previously accepted as compensable.
2. Because Ms Herrara filed an application seeking a review of that decision in a timely way, her weekly payments continued until her application came before a Commissioner. At that time Ms Herrara made an application to the Commissioner for the suspension of the decision to discontinue to remain in place and on 26 September 2025, the Commissioner acceded to that request. In her reasons for doing so, the Commissioner said:

In my view, the applicant has met the entry requirements of section 48(9) of the RTW Act, and the issue to be determined here now is whether the Tribunal, having regard to the nature and circumstances of the case, should further suspend the operation of the discontinuance decision as it is reasonably necessary in order to avoid undue financial hardship being suffered by the applicant while allowing an opportunity for resolution of the dispute by conciliation. I note that extra weight should be given, if it appears to the Tribunal that it is reasonably open to the worker to dispute the relevant decision.

On the information currently available, it appears as though the applicant is a vulnerable person. English is not her first language, and she requires the assistance of an interpreter. I am informed that a litigation guardian may need to be appointed. The applicant has reported a history of a significant psychological condition and has previously self harmed. She has also reported losing the support of her parent and being required to leave the house she was living in pre-injury.

The applicant's average weekly earnings have been calculated at $746.08 gross per week. A modest figure. She has provided a screenshot of a transaction bank account, which shows a modest balance as at 2 September 2025. She has listed expenses including rent, food, phone, car repayments, etc. These are all common expenses, with nothing unusual.

I was initially concerned by the lack of documentation supplied by the applicant, however on reflection I considered that the language difficulties, capacity issues, and personal circumstances of the applicant may make the quick provision of these documents trickier than in other matters. Although there were no documents to verify the amounts referenced in these expenses, there were no amounts which seemed exorbitant or outside the expected range. The applicant asserts that she will experience undue financial hardship if payments are not continued to allow for conciliation.

In my view, it is appropriate to deal with the application to suspend the operation of the discontinuance determination informally and proportionately. For this reason, I suspend the operation of the discontinuance determination for the period from when information about financial circumstances was provided through to when the matter is next before the Tribunal. This is a period of approximately 4 weeks, with further application then being required to extend the order.

Given this case involves a difference in medical opinion as to the nature and extent of the applicant's incapacity for work, and about the nature and diagnoses of her work injury(ies), it would appear reasonably open to the applicant to dispute the discontinuance determination and seek a determination as to which medical opinion should be preferred.

1. Following the making of this order, the matter was referred for judicial determination at which time the Corporation indicated that it opposed the further suspension of its decision to discontinue.
2. To preserve the status quo, I further suspended the decision to discontinue and set the matter down for argument.
3. In support of her request for the suspension to continue, Ms Herrera, through her lawyers, put forward a Work Capacity Certificate dated 10 October 2025, issued by Dr Joshua Kartika, which stated that she remains fit only for suitable duties from 9 October 2025 to 31 October 2025. She also put forward a copy of her bank statement that indicates that the modest weekly payments that she is receiving of $746.08 per week, barely cover her weekly expenses. Her counsel submitted that she has little if any savings and that if weekly payments are stopped, even if she is eligible for social security payments, these would not be sufficient for her to cover her weekly expenses.
4. He counsel took me to other information that indicates that Ms Herrera is a vulnerable person. She has a mental illness that has resulted in the appointment of a litigation guardian. English is not her first language. She has a history of self-harm and recently was referred to the Lyell McEwin Hospital as a result of self-harming. She does not have close family supports that are consistent or reliable.
5. It was submitted that Ms Herrera continues to engage with treatment, comply with medical recommendations, provide updated medical evidence and continues to engage in return to work efforts. It was argued that maintaining the suspension would enable her to continue necessary rehabilitation without causing undue financial hardship and promote a return to work.
6. The Corporation did not oppose the suspension outright, but expressed concern about what it said was inadequate evidence to establish economic hardship. I also understood it to contend that there was a serious question as to whether any alleged ongoing incapacity for work was due to the accepted work place injury. It should be noted that the employer has independently challenged the Corporation's acceptance of the claim. It suggested some form of interim order pending receipt of further information. The employer supported that position.
7. What immediately struck me about this case is that there are already multiple disputes before the Tribunal involving multiple parties in respect of a claim involving weekly payments of $746.08 per week. As the matter proceeded, I expressed concern that the overall legal expenses could quickly exceed that gross aggregate of weekly payments at stake. The case involves conflicting medical evidence against a background of a significant non-work related medical condition. It seemed to me that the most expeditious way forward was to put the legal skirmishes on hold for the time being, and to focus on exploring a negotiated outcome. I therefore suggested a prompt settlement conference and for the suspension to remain in place until that occurs, with a view that if the matter does not resolve, the issue of further suspension would be referred to another member. None of the parties vigorously opposed that course and I made orders accordingly.

[1] Oliver v Return to Work SA and Bradley Painting [2018] SAET 151 at [3].