RE WHITE; EX PARTE CUNNINGHAM [2015] WASC 349 (21 September 2015)

4 Mr Cunningham completed a Workers' Compensation Claim Form dated 26 September 2013.

5 By notice dated 4 October 2013 the workers' compensation insurer, Insurance Australia Ltd trading as CGU Workers Compensation (CGU), issued a Form 3A Notice accepting liability in respect of weekly payments of compensation and other statutory benefits claimed.

6 On 14 March 2014, CGU wrote to Mr Cunningham, attaching a Form 36 Notification under s 93O of the Act about the termination day for election. The Form 36 stated that Mr Cunningham's termination day for the injury was 28 September 2014.

7 As will be seen, the termination day was in fact 26 September 2014.

8 On 30 September 2014, Dr Kennedy, an approved medical specialist, issued a Form AMS 8, Certificate Where Worker's Condition Not Stabilised, and a Form AMS 7, Report on Worker's Condition Not Stabilised.

9 Following an unsuccessful attempt by letter of 7 November 2014, Mr Cunningham, by his solicitors, filed a Form 35 by letter dated 14 November 2014 seeking an extension of the termination day pursuant to s 93M(4)(b), on the basis that the Employer had failed to comply with s 93O of the Act. The Forms AMS 8 and AMS 7 of Dr Kennedy were provided with the letter of 7 November 2014. The application sought an extension of the termination day to 30 September 2014.

10 By letter of 24 November 2014, the Director advised that he declined to grant the extension sought. The letter was in the following terms:

I refer to the above matter and the Application to Extend Termination Day, received on 14 November 2014.

I note your client is seeking an extension of the termination day on the basis that the employer failed to comply with section 93O of the Workers' Compensation and Injury Management Act 1981 ('the Act'). Your reasoning is an allegation the Form 36 notice, dated 14 March 2014, advised the worker of an incorrect termination day.

The intent of section 93O of the Act is to notify the worker of certain things about his or her termination day. Even if I were to accept your client had been incorrectly advised of the termination day, I note all the other requirements of section 93O(1) of the Act were met.

In this instance, the worker was notified:

• that about 6 months remained before the alleged termination day;
• of the significance of the termination day; and
• the amount of time an approved medical specialist can reasonably be expected to take to provide the documents to the worker.

Crucially, the worker was given the notice 14 days before the period of 6 months before the termination day, as required by section 93O(2) of the Act.

In my opinion, the requisite notice was given and achieved its objective despite the alleged incorrect termination day of 28 September 2014. This anomaly does not invalidate the notice.

The discretion vested in me by section 93M(4)(b) of the Act could have been utilised to rectify the relevant anomaly only. In other words, an extension to 28 September 2014 may have been appropriate. I note, however, an extension to this date would still result in your client being out of time for a subsequent extension under section 93M(4)(a) of the Act, given his condition was not certified by way of the Form AMS 8 until 30 September 2014.

I do not consider the Form 36 notice is invalid in its entirety, and am therefore not prepared to grant the extension.

Enclosed is an endorsed copy of the Form 35.

11 It is that decision which Mr Cunningham seeks to quash.

12 By letter of 18 December 2014, Mr Cunningham's solicitors sought a reconsideration of the decision. In their letter of 18 December 2014 they referred to s 61 of the Interpretation Act 1984 (WA). They pointed out that 28 September 2014 was a Sunday and 29 September 2014 was a public holiday so that an extension to 28 September 2014 would have taken effect on 30 September 2014.

13 By letter of 30 December 2014, the Director reiterated that Mr Cunningham's condition was not certified until 30 September 2014. The letter stated that the requirement of the Act was that certification occurred before the termination day and, by s 61(1)(c) of the Interpretation Act, that meant that 30 September 2014 was not counted.

14 The legislative scheme was helpfully summarised by Newnes JA (McLure P & Edelman J agreeing) in Acebrook Corporation Pty Ltd v McEwan.[1] What follows is principally drawn from his Honour's summary.

15 Section 93K(4) and (5) of the Act provide as follows:

(4) Damages in respect of an injury can only be awarded if -

(a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and

(b) the Director registers the election in accordance with the regulations; and

(c) court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and

(d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.

(5) Unless the court is satisfied that the worker's degree of permanent whole of person impairment is at least 25% -

(a) the amount of damages to be awarded is to be a proportion, determined according to the severity of the injury or injuries, of the maximum amount that may be awarded; and

(b) the maximum amount of damages that may be awarded in respect of the injury or injuries is Amount A, but the maximum amount may be awarded only in a most extreme case in which the worker's degree of permanent whole of person impairment is less than 25%.

16 Where, as here, a claim has been made for compensation by way of weekly payments, an election to retain the right to seek damages cannot be made after the 'termination day'.[2]

17 The termination day is defined in s 93M(1) to mean 'the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made', unless, relevantly, an extension of that time is granted by the Director under s 93M(4).

(4) The Director may, in accordance with the regulations, from time to time extend the termination day, but only if -

(a) before the termination day, an approved medical specialist, in writing -

(i) certifies that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides as described in sections 146A and 146C; and

(ii) recommends a day until which the termination day be extended;

or

(b) the Director is satisfied that the employer has failed to comply with section 93O; or

(c) the Director is satisfied that the extension should be given because an approved medical specialist requires or required more than the time described in section 93O(1)(d) before being able to give the worker the documents required by section 146H; or

(d) the Director is satisfied that -

(i) the worker has, in accordance with the regulations, requested an approved medical specialist to assess the worker's degree of permanent whole of person impairment other than as described in subparagraph (ii), allowing at least the time described in section 93O(1)(d) for the approved medical specialist to give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day; or

(ii) the worker has, in accordance with the regulations, requested an approved medical specialist to make an assessment that involves a special evaluation of the worker's degree of permanent whole of person impairment, allowing at least 7 weeks for the approved medical specialist to make the assessment and give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day.

(6) An extension under subsection (4) is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension under that subsection except that, in circumstances described in subsection (4)(d), the Director may give an extension for as long as the Director considers necessary to give the worker an opportunity to make an election.

(8) An extension may be given even though the termination day has passed.

20 Under s 93O, six months prior to the termination day the worker's employer is required to notify the worker in writing of various matters, one of which is the day that would be the termination day if no later day were to be fixed under s 93M(4). Section 93O provides as follows:

(1) At the time described in subsection (2), the employer is required to notify the worker in writing in accordance with the regulations -

(a) of the day that would be the termination day if no later day were to be fixed under section 93M(4); and

(b) that about 6 months remains before the termination day; and

(c) of the significance of the termination day for the worker's ability to seek damages; and

(d) of the amount of time that, according to the regulations, an approved medical specialist can reasonably be expected to take, after a worker requests an assessment of the worker's degree of permanent whole of person impairment, to give the worker the documents that an approved medical specialist is required by section 146H to give the worker.

(2) The notice is required to be given within the period of 14 days commencing on the day that is 6 months and 14 days before the day that would be the termination day if no later day were to be fixed under section 93M(4).

21 Regulation 23(4) of the Workers' Compensation and Injury Management Regulations 1982 (WA) provides that if the application is made in the circumstances described in s 93M(4)(b) of the Act, the Director cannot extend the termination day to a day that is more than six months after the day on which the Director gives the extension.

22 Section 61 of the Interpretation Act provides:

(1) In computing time for the purposes of a written law -

(a) where a period of time is expressed to begin at, on, or with a specified day, that day shall be included in the period;

(b) where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period;

(c) where anything is to be done within a time before a specified day, the time shall not include that day;

(d) where a period of time is expressed to end at, on, or with a specified day or to continue to or until a specified day, that day shall be included in the period;

(e) where the time limited for the doing of a thing expires or falls upon an excluded day, the thing may be done on the next day that is not an excluded day;

(f) where there is a reference to a number of clear days or 'at least' or 'not less than' a number of days between 2 events, in calculating that number of days both the days on which the events happen shall be excluded;

(g) where there is a reference to a number of days not expressed to be clear days or 'at least' or 'not less than' a number of days between 2 events, in calculating the number of days there shall be excluded the day on which the first event happens and there shall be included the day on which the second event happens;

(h) where an act or proceeding is directed or allowed to be done or taken on a certain day, or on or before a certain day, then, if that day is an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day that is not an excluded day.

(2) For the purposes of this section, excluded day means Saturday, Sunday, public service holiday, and a bank holiday or public holiday throughout the State or in that part of the State which is relevant to the event, act, thing or proceeding concerned.

23 At the hearing, Mr Cunningham was given leave to amend his grounds in terms of the minute dated 3 August 2015. Mr Cunningham's counsel advised that Mr Cunningham did not pursue grounds 3 and 4 of that minute.[3] Further, Mr Cunningham's counsel also advised that the writ of mandamus would not be pressed given the filing of a notice to abide by the Director.[4]

1. The first respondent made a jurisdictional error of law in finding that, pursuant to the Workers' Compensation and Injury Management Act 1981, section 93M(4), the first respondent could not extend the Termination Day on the basis that:

1.1 the notice required by section 93O(1)(a) given by the [employer] pursuant to section 93O(1) notifying [Mr Cunningham] of the termination day, notified [Mr Cunningham] that the termination day was 28 September [2014];

1.2 the first respondent found that the correct termination day was 27 September [2014];

1.3 the first respondent then took into account irrelevant consideration in finding that the failure to notify [Mr Cunningham] of the correct termination day did not mean that the [employer] had failed to comply with section 93O because [Mr Cunningham] was notified:

1.3.1 that about 6 months remained before the alleged termination day;

1.3.2 the significance of termination day;

1.3.3 the amount of time an approved medical specialist can reasonably be expected to take to provide the documents to the worker.

1.4 The Respondent addressed the wrong issue in determining that:

'In my opinion, the requisite notice was given and achieved its objective despite the alleged incorrect termination day of 28 September 2014. This anomaly does not invalidate the notice.'

when the correct issue was whether the [employer] had complied with section 93O that required the [employer] to specify the Termination Day as determined by section 93M.

1.5 The first respondent failed to take into account:

1.5.1 the power to extend the Termination Day pursuant to section 93M(8) even though the Termination Day had passed; and

1.5.2 the power pursuant to Regulation 23(4) of the Workers' Compensation and Injury Management Regulations 1982.

1. The first respondent made a jurisdictional error of law in finding that even if the [employer] had not complied with section 93O the termination day could not be extended pursuant to section 93M(4)(b) of the Workers' Compensation and Injury Management Act 1981 as [Mr Cunningham]'s condition was not certified prior to the Termination Day of 27 September [2014] when, on a proper construction of section 93M(4)(b), there is no requirement that [Mr Cunningham]'s condition be certified by any specified date before an extension could be granted.

25 Ground 1 asserts, in effect, that the Director found that s 93O had been complied with.[5] I do not accept that the Director made any such finding. Rather, to my mind, on a fair reading of the Director's letter of 24 November 2014, his reasoning was as follows. The Employer's Notice failed to comply with s 93O in that it incorrectly stipulated the termination day as 28 September 2014, when in fact the termination day was 26 September 2014. This was not a case where a worker had not received any notice under s 93O at all. Further, the various elements of s 93O(1) and (2) were satisfied, other than the stipulation of the termination day itself. In the circumstances an extension beyond the incorrectly stipulated date of 28 September 2014 was not justified.

26 Thus, in my view, the Director considered the respect or respects in which the notice failed to comply with s 93O, and the apparent consequences of that failure, and the respects in which the notice did comply with s 93O, in the setting of the statutory scheme, in determining whether to grant an extension under s 93M(4)(b). No error is revealed in such an approach.

27 In further support of ground 1, Mr Cunningham submits that the Director wrongly considered that his power was limited to extending the termination day to rectify the anomaly in the notice by extending it to 28 September 2014.[6] I do not accept that submission. In my view, the Director's reasons do not suggest that he considered that his power to extend time was limited in that way. Rather, the Director was saying that in the circumstances of the case as a matter of discretion he was not persuaded that an extension should be given beyond 28 September 2014.

29 Ground 2 complains that the Director took into account that the certification by Dr Kennedy did not occur prior to the termination day. Mr Cunningham contends that that was not a relevant consideration in the exercise of power to grant an extension under s 93M(4)(b).

30 Mr Cunningham's application to the Director for an extension sought an extension to 30 September 2014. At the hearing before me, Mr Cunningham's counsel accepted that in the absence of any material before the Director as to the degree of stabilisation of Mr Cunningham's condition, it would have been open to the Director to take the view that an extension should be granted only to 28 September 2014.[7] Counsel submits that in circumstances where there was material before the Director certifying that the worker's condition had not stabilised as at 30 September 2014, the Director was, acting reasonably, obliged to grant the extension sought.[8]

31 I do not accept Mr Cunningham's contentions. I do not accept that the Director was obliged to:

(a) take into account that Mr Cunningham's condition had not sufficiently stabilised, as revealed in Dr Kennedy's certificate;

(b) put to one side the difficulty arising from the date of that certificate, namely that it was 30 September 2014; and

(c) in circumstances where the error in the Employer's Notice was the incorrect stipulation of 28 September 2014, on the basis of Dr Kennedy's certificate and report grant the extension requested.

(1) on the face of it, the erroneous stipulation in the Employer's Notice of the termination day as 28 September 2014 would justify an extension to 28 September 2014, but would not justify an extension of time beyond that; and

(2) Mr Cunningham had not sought an extension of time to 28 September 2014, but sought an extension to 30 September 2014. In any event, an extension to 28 September 2014 would not assist Mr Cunningham because Mr Cunningham had evidently not made an election prior to 28 September 2014, and the certificate of Dr Kennedy dated 30 September 2014 would not have been provided before the (extended) termination day and so could not sustain any further extension under s 93M(4)(a).

35 After the court had reserved its decision Mr Cunningham filed supplementary submissions, coupled with a request for leave to do so. In those submissions he submits:

(1) the stipulation of the incorrect termination day prejudiced his ability to comply with s 93M(4)(a) by obtaining a medical certificate prior to the termination day; and

(2) had the correct termination day of 26 September 2014 been specified, he would have been able to comply with s 93M(4)(a) because the days immediately preceding 26 September 2014 were not on the weekend.

36 In my opinion, these submissions do not advance Mr Cunningham's application. First, it is unclear whether they are said to support one of the two existing grounds or to support an unidentified further ground. Secondly, these submissions involve factual assertions that are not supported by any evidence or by any material that was before the decisionmaker. Thirdly, at their highest these submissions might reflect an available approach to the exercise of discretion by the Director. The failure to adopt that approach cannot be said to constitute or reveal an error in the exercise of discretion.

37 For these reasons, I would dismiss the application.

38 I would mention in passing that, on the material before the decisionmaker, and the material before this court, it would not appear that the grant of the extension requested would, in any event, have availed Mr Cunningham. Mr Cunningham sought an extension until 30 September 2014. Dr Kennedy's certificate was dated 30 September 2014. An extension of time can be granted under s 93M(4)(a) only if before the termination day, the approved medical specialist has given the appropriate certificate. By s 61(1)(c) of the Interpretation Act, where anything is to be done within a time before a specified day, the time shall not include that day. Even if s 61(1)(c) does not apply, the certificate from Dr Kennedy was not made before what would have been the (extended) termination day. So, on the material available, there would not have been any basis for any further extension.

[1] Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162 [6] [10].

[6] Applicant's written submissions dated 3 August 2015 [30]; ts 13.