MATTER : Application for a Writ of Mandamus against the Director Conciliation & Review Directorate

Part IIIA Div 3 of the Workers Compensation and Rehabilitation Act 1981

Workers' compensation - Election to retain right to common law damages - Director refusing to register election - Remedy

Workers' compensation - Weekly payments - Commencement - Definition of "termination day" - Calculation of six months after the day on which weekly payments commenced - Meaning of "commenced"

Workers' Compensation and Rehabilitation Act 1981 (WA), s 57A(3), s 84I(1)(b), s 93, s 93E(3), Sch 1

Molopo Australia Ltd v Easter Gold NL [1989] WAR 270

1 ANDERSON J: This is an application for a writ of mandamus directed to Mr R E Monger, who holds office under the Workers' Compensation and Rehabilitation Act 1981 as the Director of Conciliation & Review. He has various functions under that legislation, one of them being to receive and decide whether to register elections by applicants for workers' compensation to retain their right to seek damages at common law. The applicant, Mr Nowicki, filed an election at the Registry of Conciliation & Review. Mr Monger refused to register that election and the applicant is aggrieved by that refusal.

2 The background to the matter is that on 12 June 1999, the applicant was employed as a scaffolder with the intervener, PCH Group Ltd. On that date, he claims to have sustained injury by accident in the course of his employment and there is evidence before the Court that he did, indeed, on that date sustain a back injury when he lifted either some heavy planks or a heavy ladder. 12 June 1999 was a Saturday. He first sought medical treatment on Tuesday, 15 June 1999. The diagnosis subsequently made by the neurosurgeons, Mr Thomas and Mr Bannan, is of a left L5 nerve root compression. Symptoms include pain in the left buttock, down the left leg into the left foot. There is no dispute about the nature of the injury or that it was sustained in the circumstances claimed.

3 On 25 June 1999, the applicant sent a claim for weekly payments of compensation to the employer in accordance with s 84I(1)(b). On 28 June 1999, the employer made a claim under, and in accordance with, the policy of insurance. On 30 June 1999, the insurer notified the employer that liability was accepted in respect of the weekly payments claimed by the applicant. This notification was in accordance with the requirements of s 57A(3). That subsection also requires the insurer to notify the worker of acceptance of liability. The applicant contends that he did not receive a s 57A(3) notification from the insurer. He has deposed on affidavit that he did not know the insurer had accepted liability in respect of his claim for weekly payments until his solicitors ascertained that fact in August of this year.

4 According to the applicant, he was off work between 12 June 1999 (when he was injured) until 21 June 1999. Although it is not entirely clear from his affidavit, it would appear that this time off work was due to his symptoms of lower back pain. It seems not to be in dispute that he worked until 16 August, when he went off work again due to back and leg pains. He has not worked since.

5 It is not in dispute that the applicant was entitled to receive weekly payments of workers' compensation in accordance with Sch 1 of the Act in respect of incapacity for work resulting from the disability. This application arises out of the applicant's desire to preserve his right to pursue a claim for damages at common law. The refusal of the Director to register his "election" is relevant to the preservation of that right.

6 The Act places restrictions on the entitlement of an injured worker to pursue the common law remedy. These restrictions are in s 93E, which, so far as is relevant, provides:

"(1) In this section --

... ;

"termination day" means the day that is 6 months after the day on which weekly payments commenced.

(2) Weekly payments of compensation ordered by a dispute resolution body to commence are to be regarded for the purposes of this section as commencing or having commenced on --

(a) the first day of the period in relation to which weekly payments are ordered to be made; or

(b) the day that is 5 months (or such shorter period as is prescribed) before the day on which the order is made,

whichever is later.

(3) Damages can only be awarded if --

(a) it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or

(b) the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.

(4) For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations.

(5) Subject to subsections (6) and (7), if weekly payments of compensation in respect of the disability have commenced an election cannot be made under subsection (3)(b) after the termination day.

(6) Despite subsection (5), if --

(a) medical evidence complying with section 93D(6) was produced to the Director not less than 21 days before the termination day; and

(b) a dispute arising under section 93D(8) has not been resolved before the termination day,

an election can be made under subsection (3)(b) within 7 days after the dispute is resolved."

7 What these provisions mean is that a person injured in the course of his employment cannot pursue the common law remedy and is confined to the remedies provided by the Workers' Compensation and Rehabilitation Act unless, at the least, the worker has sustained a degree of disability which is not less than 16 per cent. There are, of course, provisions which provide the formula by which a degree of disability is to be assessed. There are other provisions which apply in the case of a worker who has a degree of disability of not less than 30 per cent, but those provisions need not be considered in this matter. As to workers who have a disability of not less than 16 per cent (called a "significant disability" in the Act), the right to pursue the common law remedy also depends upon the worker making an election to do so. An election which is properly made must be registered in order to have legal effect.

8 As can be seen by reference to the provisions of s 93E (especially subsections (5) and (6)) the right to make an election is limited. Inter alia, if a worker is in receipt of weekly payments of compensation, an election cannot be made after the "termination day", unless the time within which the election may be made is extended. The "termination day" is "the day that is 6 months after the day on which weekly payments commenced".

9 In this case, as has been said, the applicant did make an election. The form of election is not dated, and there is no admissible evidence before me as to when it was lodged with the Director and I can make no finding as to the date upon which it was lodged with the Director.

10 As has also been said, in order to be effective, the election must be registered; and the Director refused to register it. Notification of that refusal was given by letter dated 3 August 2000 in the following terms:

"The Election has been lodged after the termination day for the worker. As the worker has not complied with the provisions of section 93E(6) an election cannot be made. I am therefore prevented from registering the Election."

11 The applicant's solicitors sought clarification of the method employed by the Director in calculating the termination day. By letter dated 21 August 2000, the Director gave the following explanation:

"I refer to your letter dated 18th August 2000 and previous correspondence in this matter.

I note your advice that Mr Nowicki's workers' compensation payments commenced on 26th August 1999 as opposed to 12th June 1999 as indicated on the Form 25, Election to Retain the Right to Seek Damages.

Information received from CGU Insurance indicates that weekly payments of compensation commenced on 15th June 1999. I note the 15th June 1999 is the date of the Form 3, Workers' Compensation FIRST Medical Certificate.

In my view the definition of termination day means that the day from which the 6 month period is to be calculated, is the first notional work day in respect of which workers' compensation payments were made, even if the payment in respect of the first and subsequent days was not made until sometime after. [Emphasis added.]

Based on the information provided and the above interpretation, the termination date for this worker's disability is 5th January 2000.

Accordingly, as previously advised I am unable to register the election."

12 Putting to one side the factual uncertainty as to exactly when the weekly payments commenced and the factual matters which are to be considered in deciding whether s 93E(6) has been complied with, the method by which the Director arrived at the critical date - the date of the "termination day" - is, with respect, the wrong method. That being so, the Director has not in law performed his duty: The King v The War Pensions Entitlement Appeal Tribunal & Anor; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 242. A determination as to the termination day is essential to the valid performance of the duty to consider whether an election should be registered; to use a method different from that which is prescribed by the Act in arriving at the termination day is to fail to properly consider whether the election should be registered.

14 In my opinion, unless the case is within s 93E(2) (which this case is not), the definition of "termination day" involves an inquiry as to the day on which weekly payments of compensation actually commenced. The inquiry that must be made is as to the day on which the worker first actually received a payment of compensation that meets the description of "weekly payments". There is no warrant in the Act (otherwise than in s 93E(2)) to engage in any other exercise. Unless the case is within s 93E(2), where the commencement of weekly payments is delayed and a back-payment is made to cover the delay the six months begins to run, not from the start of the period covered by the back-payments, but from the day on which the back-payment is made. If it was intended that the termination day was to be calculated in all cases by reference to the day on which the entitlement to weekly payments arose, the definition of "termination day" would have said so and there would have been no need for s 93E(2).

15 It would appear that the Director made no finding as to the date on which weekly payments actually commenced. What he did was to make a finding as to the date on which the entitlement to weekly payments arose, which he described as the "notional work day in respect of which workers' compensation payments were made".

16 In my opinion, the Director should be ordered to perform his duty to consider according to law whether the election should be registered.

17 I should perhaps add that counsel for the applicant, Mr Droppert, attempted to persuade me that a payment made by an employer purportedly as payment of weekly payments should not be regarded as a payment of weekly payments for the purpose of determining the commencement of the six-month period unless that payment was made in direct response to a formal claim made by a worker pursuant to the Act or in performance of an order made against the employer under the Act. I do not accept that submission. The question is whether the payment that was made was in fact a payment of weekly payments of compensation pursuant to the employer's duty to make weekly payments. The question is simply whether weekly payments of compensation were commenced and if so the date upon which they were commenced. I can see nothing in the Act which requires that a payment of compensation be preceded by a formal claim for compensation before it may be regarded as a payment of compensation for the purposes of s 93E.