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[2000] SAWCT 96
General information, not legal advice.
Workers Compensation Tribunal (SA)
2000-07-14
As Lander J
Original judgment source is linked above.
1 The applicant, Wladyslaw Kostek, seeks the payment of interest on an interim assessment of a capital sum for loss of future earning capacity ("LOEC") pursuant to s 42A of the Workers Rehabilitation and Compensation Act 1986 (" the Act").
2 Upon hearing the submissions of Mr Carabelas, counsel for the applicant, and Mr Calligeros, counsel for the respondent, I dismissed the application and indicated that I would publish brief reasons.
3 The Tribunal is a statutory body, the jurisdiction and powers of which are to be found in the Act. Whether the Tribunal has the power to award interest on a LOEC payment between the date of the respondent's nil determination dated 27 June 1996 and the date of the Tribunal's decision dated 6 July 2000, is a matter of statutory construction.
4 Pursuant to s 47 the power of the Tribunal to award interest at a prescribed rate is limited to two circumstances; firstly, where a weekly payment or part of a weekly payment is not paid as and when required to be paid under the Act or secondly, where the making of a weekly payment is delayed pending resolution of a dispute under the Act.
6 An assessment of a worker's future loss of earning capacity as a capital loss is provided for in s 42A which is to be found in Pt 4 Div 4B of the Act. The Corporation may make a final assessment or one or more interim assessments. (s 42A(4)) Any such assessment may be paid as a lump sum or at the discretion of the Corporation in instalments. (s 42A(5)) Importantly, s 42A(6) provides that where the Corporation pays or commences to pay compensation under s 42A, the worker ceases to be entitled to weekly payments under Div 4.
7 As Lander J said in Hill v Workers Rehabilitation and Compensation Corporation (Supreme Court of South Australia unreported judgment S6178):
"The worker's entitlement to weekly payments ceases as soon as the worker receives an assessment under s42A because the entitlement to the assessment of a capital loss is substituted for that previous entitlement to weekly payments."
8 Mr Carabelas submitted that, although paid as a lump sum, an interim LOEC assessment is dependent for its calculation on the quantum of the weekly payments previously paid to the worker; that accordingly, in the words of the Full Tribunal in Giancaspro v WorkCover Corporation JD83/1999, it is "of the same genus, providing financial relief to an incapacitated worker". I understood him to be submitting that this similarity of purpose enables s 47 to be interpreted liberally so extending its application to a LOEC. He pointed to the capriciousness and injustice of an interest entitlement being limited to only one form of income maintenance under the Act.
9 There is no ambiguity on the face of the relevant sections which would permit the Tribunal to apply the considerations raised by Mr Carabelas in the interpretation process. Giving the words of the relevant sections their ordinary meaning and reading those sections in the context of the Act as a whole, an interim LOEC assessment is not a weekly payment. By its very nature it cannot be paid as a weekly payment. As the entitlement to interest is limited by s 47 to weekly payments the Tribunal does not have the power to award interest in these circumstances. In that regard I endorse the reasoning of Thompson DP in Kaesehagen v the Corporation (HIH Winterthur CW and JF Martin) A99/1997.
Kostek
Workcover/Mmi