Terence Stevens ("the worker") received a lump sum payment pursuant to s 42 of the Workers Rehabilitation and Compensation Act 1986 ("the Act") in about April 1998 in respect of various injuries that he had received in the course of his employment with the Department of Correctional Services. The amount of weekly payments was redeemed pursuant to that agreement was $545.85 per week.
On 16 October 1998 the worker submitted a claim to WorkCover Corporation ("the Corporation") claiming compensation for a left tennis elbow disability that allegedly arose out of his employment with G & A Taylor Pty Ltd ("the employer").
The Corporation was seemingly unaware of the worker's prior injury and prior pay out. By letter dated 9 November 1998 it advised the worker that his claim against the employer was accepted and his income maintenance rate was set at $416.95 per week.
It would seem that the Corporation subsequently became aware of the worker's receipt of the lump sum payment and it decided to re-visit its earlier determination.
It did so by two means.
First it sought to rely upon s 53(7) of the Act, being a provision that enables a compensating authority to redetermine a claim for compensation in prescribed circumstances.
By letter dated 1 November 2002 the Corporation advised the worker that it was redetermining his claim to take into account the lump sum payment and that as a consequence thereof he had a nil entitlement to weekly payments.
The worker lodged a notice of dispute challenging the Corporation's redetermination. This comprised of action no. 8078 of 2002.
As a consequence of the Corporation's purported redetermination on 1 November 2002 the weekly payments that the worker had until then been receiving, stopped.
Immediately after stopping the worker's weekly payments, the Corporation invoked its alternative strategy and sent the worker a letter titled "Notice of Pending Review of Weekly Payments".
The letter was sent in purported reliance upon s 38 of the Act, that being a provision that enables the review and adjustment of a worker's weekly payments and income maintenance in prescribed circumstances.
In its letter the Corporation contended that its receipt of information that the worker had received a lump sum payment in respect of injuries sustained in the course of his employment with the Department of Correctional Services and the fact of that payment comprised of one of those prescribed circumstances.
At the time the letter was sent, the worker's weekly payment had in fact already been reduced to nil.
Following this, by letter dated 3 December 2002, the Corporation advised the worker that his weekly payments would be discontinued.
The worker disputed this determination and this was the subject of the hearing for judicial determination before me.
Initially, so too was the worker's challenge to the Corporation's purported redetermination.
At the commencement of the hearing I was advised by counsel that the Corporation now conceded that its invocation of s 53(7) was incorrect and at the request of the parties I made an order by consent setting it aside.
This in turn led to Mr Saies' application for summary judgment in respect of the s 38 dispute. He contended because at the time of the purported review the worker was not in receipt of weekly payments the purported s 38 review was nonsense.
Mr Luke contended otherwise. He argued that it was of no consequence that weekly payments were not in fact being paid when the s 38 review was conducted. He submitted that provided there was a legal liability to pay weekly payments at the time of the s 38 review, the review and determination to discontinue weekly payments that followed it were valid. He said as a result of the consent order setting aside to the Corporation's purported invocation of s 53(7) that liability now existed.
I rejected that argument after hearing submissions. I did so because in my opinion s 38 is concerned with weekly payments that are actually being paid. I think that this emerges from the terminology that the section employs. It speaks in terms of reviewing "the amount of weekly payments made to a worker" "of adjusting or discontinuing the weekly payments" and of "suspend[ing] weekly payments", all of which, in my opinion, contemplate the actual receipt of the payments.
This led me to conclude that Mr Saies' argument was correct and that the worker was therefore entitled to the summary order that he sought.
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Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.