Webb v Employers Mutual Limited [2010] SAWCT 4

5

Although the worker suffered injury on 28 February 2006, it was accepted by the parties that he is subject to s 35 to 35C inclusive of the Act in its current form ("the new entitlement provisions") given the terms of the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 ("the Amendment Act"). Schedule 1 cl 4(2) of the transitional provisions of the Amendment Act provides that the new entitlement provisions will apply if a worker has, before the relevant day,[1] gone past the end of the first two years of incapacity referred to in s 35(2) of the Act as in existence immediately before the substitution of the new s 35, and if the worker is still in receipt of weekly payments of compensation on the relevant day.

6

The worker accepted that, for the purposes of the present application at least, the third entitlement period as defined in s 35(8)(c) of the Act retrospectively applied to him and that this period could be taken to have ended on approximately 23 August 2008.[2] It was accepted that prior to the relevant day the worker had at all material times been in receipt of weekly payments equal to 80% of his notional weekly earnings, and that payments continued to be made in this amount up to and after the relevant day until they were discontinued as a result of the disputed notice.

7

The compensating authority gave notice of discontinuance on 10 June 2009. This was a little over two months from the date upon which the new entitlement provisions took retrospective effect with respect to the worker. The notice referred to the injury on 28 February 2006 and was signed on behalf of the compensating authority by a Case Manager. The notice relevantly provided as follows:

"I write to advise that I am required to review your entitlement to weekly payments periodically as outlined in the Act, which you may have heard referred to as a work capacity review.

You passed the end of your third entitlement period in the week ending 23rd August 2008 and as such I have reviewed your entitlement to weekly payments under section 35B. (Your third entitlement period is explained in the extract of the Act included with this letter - see section 35(8) of the Act).

I have determined that you have a current work capacity and as a result your weekly payments will stop in accordance with sections 35B(1), 35B(9) and 36(1)(i) of the Act.

I am giving you 28 days notice before weekly payments are stopped pursuant to section 36(3b)(b) of the Act and therefore your weekly payments will cease 28 days after you receive this decision.

This statement of reasons for decision explains why I made this decision.

For you to continue to have an entitlement to weekly compensation after the end of the third entitlement period - section 35(8)(c), I need to assess that you:

• Have no current work capacity; and

• Are likely to continue indefinitely to have no current work capacity - section 35B(1).

Having reviewed all information relevant to this issue, I have determined that you have a current work capacity and in particular you have a current capacity to undertake employment as a Security Control Room Operator on a full time basis of 38hrs per week. As a result, your weekly payments will stop in accordance with sections 35B(1), 35B(9) and section 36(1)(i) of the Act."

...[The notice then sets out the various medical reports and other information to which the decision maker had regard, and the reasons for concluding that the worker had a capacity to undertake work as a Security Control Room Operator, and then proceeded as follows]...

"The information referred to demonstrates that you have a current work capacity. Although you are unable to return to your pre-injury employment at Laser Operator, you are able to return to work in suitable employment, namely as a Security Control Room Operator. Accordingly, you cannot meet the criteria in section 35B(1) of the Act and are therefore not entitled to continuing weekly compensation.

If you are in employment and consider that because of your compensable disability you are, and are likely to be, incapable of undertaking further or additional employment for work which would increase your current weekly earning (sic), section 35C, you may apply to Employers Mutual for a determination that your top-up compensation payments continue. Contact your Case Manager if you wish to make an application for your payments to continue or you can obtain a written application of (sic) WorkCover's website www.workcover.com which you can complete and send to your Case Manager.

Extracts of the sections of the Act referred to in making this decision are included with this letter.

Workers and employers have a right of review under section 90 of the Act. If you disagree with the above decision, you may apply for a review by completing a Notice of Dispute and lodging it with the Workers Compensation Tribunal within one month from the date on which you receive this letter."

8

After notifying the worker of his right to make application to the WorkCover Ombudsman for a review of the decision, and providing additional information with respect to review rights and procedures, the notice set out in full the provisions of s 35, s 36, s 90, s 90A and s 90B of the Act. The provisions of ss 35A or 35B were not set out in or attached to the notice. The discontinuance took effect after 28 days in accordance with the terms of the notice.

9

On 10 July 2009 a notice of dispute was lodged on behalf of the worker by an advocate from SA Unions Workers Compensation Service. The notice disputed the merits of the decision as to the worker's current work capacity. It also alleged that the decision to discontinue weekly payments was invalid "as it failed to provide accurate notice in ceasing the applicant's weekly payments as per s 35B(6) of the Act".

10

The new entitlement provisions include the following:

(1) Subject to this Act, where a worker suffers a compensable disability that results in incapacity for work, the worker is entitled to weekly payments in respect of that disability in accordance with this Division.

(a)

first entitlement period means an aggregate period not exceeding 13 weeks (whether consecutive or not) in respect of which a worker has an incapacity for work and is entitled to the payment of compensation under this Act on the account of that incapacity;

(b) second entitlement period means an aggregate period not exceeding 13 weeks (whether consecutive or not) commencing after the end of the first entitlement period, in respect of which a worker has an incapacity for work and is entitled to the payment of compensation under this Act on account of that incapacity;

(c) third entitlement period means an aggregate period not exceeding 104 weeks (whether consecutive or not), commencing after the end of the second entitlement period, in respect of which a worker has an incapacity for work and is entitled to the payment of compensation under this Act on the account of that incapacity;

(1)

Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the first entitlement period as follows:

(a) for any period when the worker has no current work capacity - the worker is entitled to weekly payments equal to the worker's notional weekly earnings;

(b) for any period when the worker has a current work capacity - the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.

(2)

Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the second entitlement period as follows:

(a)

for any period when the worker has no current work capacity - the worker is entitled to weekly payments equal to 90% of the worker's notional weekly earnings;

(b) for any period when the worker has a current work capacity - the worker is entitled to weekly payments equal to 90% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.

(3) Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the third entitlement period as follows:

(a) for any period when the worker has no current work capacity - the worker is entitled to weekly payments equal to 80% of the worker's notional weekly earnings;

(b)

for any period when the worker has a current work capacity - the worker is entitled to weekly payments equal to 80% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.

(4)

...

35B - Weekly payments after expiry of designated periods - no work capacity

(1) Subject to section 35C (and to the other provisions of this Act), a worker's entitlement to weekly payments under this Division ceases at the end of the third entitlement period under section 35A (unless brought to an end before this time) unless the worker is assessed by the Corporation as -

(b) likely to continue indefinitely to have no current work capacity.

(2) If a worker qualifies under an assessment under subsection (1), the worker is entitled to weekly payments while incapacitated for work in respect of a particular disability equal to 80% of the worker's notional weekly earnings as though the third entitlement period were continuing.

(3) A review of the assessment of a worker under this section may be conducted by the Corporation at any time and must be conducted as often as may be reasonably necessary, being at least once in every 2 years.

(4) In connection with the operation of subsection (1), a worker who, immediately before the end of a third entitlement period, is in receipt of weekly payments under paragraph (a) of section 35A(3) is entitled to continue to receive weekly payments at the rate prescribed by that paragraph unless or until the Corporation has assessed whether the worker falls within the category of a worker who may be considered as -

(b) likely to continue indefinitely to have no current work capacity.

(5) An assessment under subsection (4) may be made before or after the end of the third entitlement period.

(6) Despite section 35A, the Corporation must not discontinue weekly payments to a worker who is subject to the operation of subsection (4) until it has given the worker at least 13 weeks notice in writing of the proposed discontinuance (and the requirements of section 36 will not apply with respect to this notice).

(7) A notice under subsection (6) must not be given unless or until the assessment envisaged by subsection (4) has been undertaken.

(8) Subsections (4), (5), (6) and (7) do not apply if the Corporation discontinues the worker's weekly payments under section 36 or suspends such payments under another provision of this Act.

(9) The Corporation may, on the basis of a review under subsection (3), discontinue weekly payments under this section if satisfied that the worker has a current work capacity.

35C - Weekly payments after expiry of designated periods - current work capacity

(1) Subject to this Act, a worker who is, or has been, entitled to weekly payments under section 35A(3)(b) or 35B, may apply to the Corporation in accordance with this section for a determination that the worker's entitlement to weekly payments under this Division does not cease at the end of the third entitlement period under section 35A or at the expiry of an entitlement under section 35B (as the case may be).

(2) The Corporation may determine that the worker's entitlement to weekly payments under this Division does not cease as contemplated by subsection (1) if the Corporation is satisfied that the worker is in employment and that because of the compensable disability, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work which would increase the worker's current weekly earnings.

(1) Subject to this Act, weekly payments to a worker who has suffered a compensable disability must not be discontinued unless -

(a) the worker consents to the discontinuance of weekly payments; or

(b) the Corporation is satisfied, on the basis of a certificate of a recognized medical expert, that the worker has ceased to be incapacitated for work by the compensable disability; or

(d) the worker has obtained work as an employee, or as a self-employed contractor, that is providing remuneration equal to or above the worker's notional weekly earnings; or

(e) the worker is dismissed from employment for serious and wilful misconduct; or

(f)

the worker breaches the obligation of mutuality; or

(g) the worker is, without the Corporation's consent -

(i) resident outside the State; or

(ii) absent from the State for more than two months in any continuous period of 12 months; or

(h) the worker's entitlement to weekly payments ceases because of the passage of time; or

(i)

the worker's entitlement to weekly payments ceases because of the occurrence of some other event or the making of some other decision or determination that, under another provision of this Act, brings the entitlement to weekly payments to an end or the discontinuance of weekly payments is otherwise authorised or required under another provision of this Act.

(3) Where the Corporation decides to discontinue or reduce weekly payments in pursuance of this section, the Corporation must give notice in writing to the worker containing such information as the regulations may require as to the reasons for the Corporation's decision and informing the worker of the worker's right to have the decision reviewed.

(3a) The notice must be given at least the prescribed number of days before the decision is to take effect in any of the following cases:

(a) where a decision to discontinue weekly payments is made, without the consent of the worker, on the ground that -

(i) the Corporation is satisfied that the worker has ceased to be incapacitated for work by the compensable disability (although the worker has not returned to work); or

(ii) the worker has failed to submit to an examination by a recognised medical expert or to provide a medical certificate as required by the Corporation; or

(iii) the worker has been dismissed from employment for serious and wilful misconduct; or

(iv) the worker has breached the obligation of mutuality; or

(b) where a decision to reduce weekly payments is made, without the consent of the worker, on the ground that -

(i) the Corporation is satisfied that there has been a reduction in the extent the worker is incapacitated for work by the compensable disability; or

(ii) the Corporation is satisfied, in the case of a worker whose weekly payments include a component for overtime, that the worker would not have continued to work overtime or the pattern of overtime would have changed so that the amount of overtime would havediminished; or

(ba) where a decision to reduce weekly payments is made on account of the end of the first entitlement period or the second entitlement period under section 35A; or

(bb) where a decision to discontinue weekly payments is made on account of the end of the third entitlement period under section 35A; or

(bc) where a decision to discontinue weekly payments is made on account of -

(i) a review by the Corporation under section 35B(3); or

(ii) a decision of the Corporation under section 35C(5)(a); or

(c) where a decision to discontinue or reduce weekly payments is made under section 38

and in any other case the notice must be given as soon as practicable after the decision is made (but not necessarily before it takes effect).

(3b) For the purposes of subsection (3a), the prescribed number of days is -

(a) if the worker has been receiving weekly payments under this Division (or Division 7A) for a period that is less than 52 weeks, or for 2 or more periods that aggregate less than 52 weeks - 14 days;

(b) in any other case - 28 days.

(4) Subject to complying with subsection (3a), a discontinuance or reduction of weekly payments under this section takes effect in accordance with the terms of the Corporation's notice under subsection (3).

11

I comment in general on relevant aspects of the new entitlement provisions as they apply to a worker injured on or after the relevant day. I make reference to considerations arising from the retrospective application of the provisions to the worker when addressing the contentions of the parties.

12

A worker who suffers a compensable disability on or after the relevant day that results in incapacity for work is entitled to weekly payments in respect of that disability in accordance with Division 4 of Part 4 of the Act. Under the former s 35, the existence of "total incapacity" or "partial incapacity" gave rise to an entitlement to weekly payments. Under the new entitlement provisions, the existence of incapacity which is either "current work capacity" or "no current work capacity" as defined[3] gives rise to an entitlement to weekly payments. It is to be noted that the definition of "current work capacity" assumes an inability to return to pre-injury employment but an ability to return to work in "suitable employment".[4]

13

The Amendment Act did not make any specific change in the procedures for the making and determination of claims for compensation. Sections 52 and 53 of the Act appear to be relevantly in the same terms as before the Amendment Act. Accordingly, if there is a determination to accept a claim on the basis that there is no current work capacity or a current work capacity, then an entitlement to weekly payments will arise under either paragraph (a) or (b) of s 35A(3) of the Act.

14

Where there is "no current work capacity", a worker is initially entitled under paragraph (a) of s 35A(3) to payments equal to the worker's notional weekly earnings, then later to 90%, then 80% of notional weekly earnings, depending on whether the worker falls within the first, second or third entitlement periods respectively as defined in s 35(8) of the Act. Where there is a "current work capacity", the entitlement arises under paragraph (b) of s 35A(3) and is similarly gradated by reference to the difference between the notional weekly earnings and the designated weekly earnings. Whilst there is incapacity as defined, the entitlement will continue on the basis set out above until at least the end of the third entitlement period, assuming that there is no intervening action or event which otherwise affects the worker's entitlement under other provisions of the Act.

15

Under s 35B(1) of the Act, the entitlement of a worker to weekly payments ceases at the end of the third entitlement period. This provision, on its face, applies to all workers who have an entitlement to weekly payments under Division 4 of Part 4, but is subject to a number of exceptions or qualifications.

16

First, it is subject to s 35C, which allows a worker who is or has been entitled to weekly payments under s 35A(3)(b) or s 35B of the Act to apply to the compensating authority for a determination that the worker's entitlement to weekly payments under Division 4 does not cease. The worker must be in employment to qualify for such a determination and must meet other conditions set out in s 35C(2) of the Act. The detail is not relevant for present purposes.

17

Alternatively, the entitlement to weekly payments will not cease if the worker is assessed by the compensating authority under s 35B(1) as having no current work capacity and as likely to continue indefinitely to have no current work capacity. If such an assessment is made, then under s 35B(2) the worker is entitled to weekly payments at 80% of notional weekly earnings as though the third entitlement period was continuing.

18

The compensating authority conducted an assessment of the worker by reference to s 35B(1), but determined that he had a current work capacity and that his weekly payments should cease accordingly. The compensating authority recognised that the weekly payments could not be discontinued upon the basis of that assessment and asserted loss of entitlement without giving notice under the Act, and it purported to give what it considered to be the appropriate notice in accordance with s 36 of the Act.[5]

19

Section 35B(4) gives rise to a third qualification to the loss of the entitlement to weekly payments under s 35B(1). Section 35B(4) provides that a worker who, immediately before the end of the third entitlement period, is in receipt of payments under paragraph (a) of s 35A(3) of the Act, is entitled to continue to receive such payments unless or until the compensating authority has assessed whether the worker may be considered as having no current work capacity. Under s 35B(5) that assessment may be made before or after the end of the third entitlement period. Further, if the worker is not assessed as having no current work capacity, payments can be discontinued but only upon three months notice in accordance with s 35B(6) of the Act. The worker's primary contention was that the assessment should have been conducted under s 35B(4) and that notice of discontinuance should have been given under s 35B(6).

20

Section 35B(3) provides for "a review of the assessment of a worker". The review may be conducted by the compensating authority at any time and as often as may be reasonably necessary, being at least once every two years. The review process necessarily relates to an assessment which has previously been made, and contemplates that the conclusion reached on a previous assessment as to whether a worker has no current work capacity might be altered. If the review gives rise to grounds for discontinuance of weekly payments, the compensating authority may proceed to give effect to that process under s 35B(9). No specific period of notice for such discontinuance is specified in s 35B, and again, as with respect to a discontinuance pursuant to an assessment under s 35B(1), a notice of discontinuance is required in accordance with the relevant provisions of s 36.

21

Whilst noting that the application for directions under consideration sought a summary order that the s 36 notice be set aside, the worker contended that the application should be treated as a request for a "determination of a preliminary point".[6]

22

However the application may be categorised, in essence it seeks summary judgment on the validity of the s 36 notice. It seeks a final determination before any hearing on the merits of the right of the compensating authority to discontinue the weekly payments of the worker pursuant to the disputed notice. Relief of the nature sought by the worker should only be granted where there is no real question of law or fact to be determined, and should be exercised with appropriate caution: Garton v State of South Australia;[7] TransAdelaide v Alympic.[8]

23

If there is no real question of law or fact as to the alleged non-compliance of the notice with the procedures for discontinuance under the Act, such that the notice is voidable, the Tribunal must further consider the matter in accordance with the approach outlined in Rundle v WorkCover Corporation/Vero Workers Compensation (SA) Ltd.[9] A procedural irregularity will not necessarily, in every case, result in the determination being set aside. The Tribunal must consider whether the circumstances of the case are such that it is not appropriate to grant the summary relief sought despite the irregularity. In so doing, the Tribunal must act according to equity, good conscience and the merits of the case as required by s 85 of the Act.

The alleged failure to give notice in accordance with s 35B(6)

24

The worker contended that his weekly payments were invalidly discontinued because he was given only 28 days notice of discontinuance due to an incorrect assumption that an assessment of his current work capacity could be made under s 35B(1) of the Act and that the required notice period in the event of discontinuance was governed by s 36(3b)(b) of the Act.

25

The worker contended that all workers, upon reaching the end of the third entitlement period, must undergo an assessment conducted in accordance with both s 35B(1) and s 35B(4) of the Act before payments could be discontinued. It was submitted that this followed from the introductory phrase of s 35B(4), to the effect that it applied in connection with the operation of s 35B(1). It was thus contended that it did not matter whether at the end of the third entitlement period the worker was in receipt of payments under either paragraphs (a) or (b) of s 35A(3) of the Act or on some other basis. Whatever the position, it was submitted that the assessment process under s 35B(4) applied, and that thirteen weeks notice was required under s 35B(6) of the Act before any valid discontinuance of payments could be effected.

26

I do not accept this contention. Section 35B(1) provides generally that the entitlement of any worker to weekly payments ceases at the end of the third entitlement period unless the worker is assessed under that subsection as having no current work capacity. Whilst the operation of s 35B(1) is qualified by s 35B(4), that is only the case with respect to a more limited category of workers, namely those in receipt of weekly payments under paragraph (a) of s 35A(3) immediately before the end of the third entitlement period. Not every worker who is subject to s 35B(1) will have the right to seek continuity of entitlements in accordance with s 35B(4). Accordingly, the source of the entitlement to weekly payments being received by the worker at the end of the third entitlement period does matter for the purposes of the worker's argument as to non-compliance with the notice provisions of s 35B(6). The extended notice provisions only apply to those who fall within s 35B(4).

27

In that event, and given that immediately before the end of the third entitlement period he was in receipt of weekly payments equal to 80% of his notional weekly earnings, the worker contended he should be taken from that time to have been receiving such payments under paragraph (a) of s 35A(3) of the Act as if he had been assessed as having no current work capacity. It thus followed, he contended, that he fell within the provisions of s 35B(4) of the Act, and was entitled to continue to receive such payments unless and until there had been an assessment under s 35B(4) to the effect that he had a current work capacity, and unless and until he had been given thirteen weeks notice of intended discontinuance in accordance with s 35B(6) of the Act. The worker contended that the notice was invalid on account of a fundamental non-compliance with these provisions of the Act, and that it should be set aside for this reason alone.

28

As the compensating authority correctly contends, the immediate difficulty for the worker's submission, in the context of an application for summary judgment, is that it gives rise to mixed questions of fact and law.

29

Whether the worker should be taken to have been in receipt of weekly payments under paragraph (a) of s 35A(3) of the Act as at the end of the third entitlement period, as applied retrospectively, arguably gives rise to the question as to whether he must establish that he had "no current work capacity" at that time. If so, that is a question of fact which cannot be determined on the basis of evidence now before the Tribunal.

30

The worker does not have the benefit of a deeming provision which resolves this factual issue. That is, there is no transitional provision to the effect that a worker, who was in receipt of weekly payments equal to 80% of his notional weekly earnings in accordance with s 35 of the old entitlement provision as at the end of the third entitlement period, as retrospectively calculated and applied, is to be taken from that time to have had no current work capacity.

31

Further, if it is found as a matter of fact that the worker had "no current work capacity" immediately before the end of the third entitlement period, a question of law arises as to whether the worker is to be taken at that time to have been receiving weekly payments under paragraph (a) of s 35A(3), and whether that brings him within the terms of s 35B(4). Again there is no deeming provision which resolves this issue.

32

In my view the worker's contention that the retrospective operation of the new entitlement provisions means that he now falls within s 35B(4) is arguable, but so is the proposition to the contrary. The worker is not entitled to summary judgment on this ground.

An alleged confusion of the assessment/review processes

33

The worker contended that the notice was defective in that the compensating authority adopted an inappropriate hybrid assessment/review process which was contrary to the procedure contemplated by s 35B. The reference in the notice to 35B(9), which provides for discontinuance on the basis of a "review of an assessment" under s 35B(3), was said to demonstrate an invalid approach, in that the only process open to the compensating authority at this stage is an assessment, not a review. The basis for the notice was said to be misconceived, and its content to be misleading, such that it was irregular and ought to be set aside.

34

The compensating authority made appropriate concessions in this regard. It conceded that a review could only be undertaken with respect to an assessment previously conducted under either s 35B(1) or s 35B(4). It conceded that the decision set out in the notice could not properly have been a decision upon a "review" under s 35B, and that the reference to s 35B(9) in the notice was potentially confusing.[10]

35

Nevertheless, the compensating authority submitted that, when the notice was read as a whole, it was clear that the decision maker had conducted an assessment of the worker under s 35B(1). It submitted that apart from the misconceived reference in parts of the notice to s 35B(9), other references to a "review", or to the worker having been "reviewed", were generic references and were not such as to suggest that a review of the nature contemplated by s 35B(3) had been conducted. In particular, the compensating authority submitted that the correct subject matter for decision had been specifically identified, namely whether the worker had "a current work capacity",[11] and that the decision clearly was made in the context of whether the worker met the criteria in s 35B(1).[12]

36

In my view the notice, read as a whole, is not only confusing but gives rise to a question as to whether the decision making process miscarried. Parts of the notice indicate that in essence an assessment was made under s 35B(1) as to whether the worker had a current work capacity. Some of the references to a review are generic in nature, such as the statement that the worker's claim file had been "reviewed" for the purpose of the decision. However, other parts of the notice suggest a mixing of the separate assessment and review processes. The first sentence of the notice refers to the requirement "to review your entitlement to weekly payments periodically", which could be taken to be an acknowledgment of the periodic review obligations under s 35B(3). The same sentence refers to a "work capacity review". The next sentence notes that the decision maker has "reviewed your entitlement to weekly payments under s 35B," a reference which again could be understood as pertaining to the s 35B(3) review process. Moreover, the decision maker twice makes reference to s 35B(9), among other provisions, as providing a basis for discontinuance of payments in light of the decision made.[13] That subsection can only have application to the s 35B(3) review process.

37

The decision maker has conflated the separate assessment and review processes in making the decision. Whilst in essence the decision purported to be an assessment under s 35B(1) as to whether the worker had no current work capacity, the decision on its face incorporated the separate and necessarily subsequent process involving a review of an assessment. The decision maker has not confined his consideration, as he should have, to the s 35B(1) assessment process. It was not appropriate to refer to aspects of the review process under s 35B(3) or s 35B(9) whilst conducting an assessment of the worker under s 35B(1) and making a determination accordingly. The decision maker had regard to irrelevant statutory provisions.

38

The decision and the notice based upon it were irregular and non-compliant with the s 35B assessment process. Accordingly the notice is voidable. The import of the irregularity is another matter. Questions as to whether it had no substantive effect on the decision making process, and whether it caused confusion or prejudice to the worker, are relevant to the exercise of the discretion, not the question as to whether there has been an irregularity.

39

A further irregularity alleged by the worker was conceded by the compensating authority. This was that the notice did not include or attach the text of the provisions of s 35A or s 35B of the Act contrary to the requirements of s 36(3) of the Act and reg 7(b) of the Workers Rehabilitation and Compensation (General) Regulations 1999 ("the Regulations"). There is no doubt that these provisions were of fundamental relevance to the decision to discontinue. The failure to provide the text of the provisions together with the notice was an irregularity which renders the notice voidable.

Whether summary relief should be denied despite the irregularities

40

As noted in Rundle, a failure to comply with the procedural requirements of s 36 will not necessarily, in every case, result in the determination being set aside because of that irregularity. The Tribunal might conclude in the circumstances of the case that it is not appropriate to grant relief. The same approach should be taken where there is an irregularity due to non-compliance with the statutory procedures for an assessment under s 35B which results in a notice of discontinuance.

41

The context in which the exercise of discretion is to be undertaken in accordance with the Rundle principles must be borne in mind. A failure to comply with the statutory procedures with respect to discontinuance will, "if the issue is raised in a timely and appropriate way, invariably lead to an order striking out the notice and granting summary relief" although "...not always".[14] Further, "...that in an appropriate case the Tribunal may decline to grant relief in exceptional circumstances."[15] Without intending to limit the circumstances in which the discretion to decline relief might be enlivened, the Full Tribunal in Rundle noted that relevant considerations will include whether the granting of summary relief would be "manifestly unfair", or would bring "the administration of justice into disrepute among right-thinking people".[16]

42

The compensating authority contended that if there were irregularities such as I have found, I should exercise my discretion not to grant summary relief. It contended that the decision maker could not be taken to have misconceived his function, and that there was no evidence that the worker had been confused by the notice or otherwise prejudiced. The compensating authority contended that the irregularities were technical in nature and that it would be manifestly unfair to set the notice aside in these circumstances. To do so would allow a triumph of form over substance and would allow the worker to avoid having to contest the merits of the assessment of his work capacity.

43

I take into account the apparent lack of prejudice to the worker. He filed his notice within time despite the irregularities. Moreover, the grounds of dispute contained an allegation of non-compliance with the notice requirements of s 35B(6). Thus the terms of the notice and the absence of the text of some of the provisions did not inhibit the worker's adviser from taking up a procedural point under s 35B.

44

I take into account also that the conflation of the assessment and review processes did not produce any specific prejudicial outcome in terms of the length of notice given, assuming s 35B(6) does not apply. That is, the notice period of 28 days would have applied in this case whether discontinuance followed an assessment under s 35B(1) or a review under s 35B(3) with notice being given under s 35B(9).

45

If it were the case that the only irregularity was the failure to provide the text of the provisions of ss 35A and 35B, I would have been disposed to exercise my discretion not to make a summary order. In such circumstances it would have been inappropriate to allow a technical irregularity of that nature which had had no apparent prejudicial effect to lead to the notice being set aside.

46

However, the additional irregularity arising from the inappropriate reference to the review provisions is of more significance. The import of the irregularity should be considered in light of the scheme of the Act. The entitlement to weekly payments of compensation is of fundamental importance to the rehabilitation of injured workers. It is a benefit upon which workers are dependent for their livelihood. The Act imposes significant limitations on the circumstances in which such payments may be discontinued. Restrictive procedures are set in place. The importance of the compensating authority understanding the relevant provisions and applying them appropriately, and being seen to do so, hardly needs emphasising. This remains the case in light of the Amendment Act, particularly given that, as a result of s 36(4) as it now stands, a notice of discontinuance will generally take immediate effect in accordance with the terms of the notice, in contrast to the previous situation where payments usually were permitted to continue despite the terms of the notice until a determination on the merits.

47

I have regard to the fact that there is no evidence that the decision maker in this case was diverted from the proper conduct of an assessment under s 35B(1) as a result of his references to the irrelevant review process. Nevertheless, the failure by the decision maker to confine himself to a consideration of statutory provisions relevant to a 35B(1) assessment undermines the integrity of the decision making process. It raises questions as to whether irrelevant matters have been taken into account. It involves more than a technical irregularity.

48

The potential for a miscarriage of the decision making process can be illustrated by noting that, whilst the terms of s 35B do not on their face suggest that there is any difference in the manner of the conduct of an assessment as opposed to a review, it cannot be assumed that a different approach may not be taken with respect to each process. It is not clear, for example, whether one process, or both, or neither, might require that the worker be given an opportunity to make representations before a decision is made.[17]

49

Whilst the lack of identifiable prejudice to the worker is an important consideration in the context of the above matters, it is not determinative of the issue as to the exercise my discretion. Having regard to all of the circumstances, I do not consider that the granting of a summary order would be manifestly unfair or that it would potentially bring the administration of justice into disrepute. I decline to exercise my discretion not to grant summary relief.

50

The worker has not established grounds for summary relief on the basis of the alleged failure to give notice of discontinuance of thirteen weeks. The question as to whether the worker falls within the provisions of s 35B(4) so as to attract the notice entitlement under s 35B(6) gives rise to questions of mixed law and fact which are not capable of determination until there is a full hearing.

51

However there are irregularities in the discontinuance notice due to a conflation of the assessment and review processes under s 35B and the failure to provide the text of ss 35A and 35B. I do not consider that a proposition to the contrary is arguable.

52

The first of these irregularities is more than technical in nature. The decision maker made reference to irrelevant statutory provisions relating to a review process separate and subsequent to the assessment process. Accordingly the decision making process potentially has been impaired. Notwithstanding the absence of evidence of prejudice to the worker as a result, the circumstances are such that I decline to exercise my discretion not to grant summary judgment on the basis of this irregularity.

53

I order that the notice of discontinuance dated 10 June 2009 be set aside.

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.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] In this case being 1 April 2009 in accordance with the proclamation dated 26 March 2009 of the "relevant day" for the purposes of Sch 1 cl 4(2).

[2] Tr 5 - this being a date approximately 130 weeks since the date of injury, comprising the aggregate of the first and second entitlement periods of thirteen weeks each, plus the third entitlement period of 104 weeks.

[3] These concepts are defined in s 3 "Interpretation" - I note also that under s 3(10) of the Act, "total incapacity for work" is the incapacity for work that is represented by a worker having "no current work capacity" within the meaning of the Act, and that there is a similar correlation between "partial incapacity" and "current work capacity".

[5] The obligation to give notice in these circumstances is clear, despite the absence of a specific provision to this effect in s 35B - this follows from the general principles emanating from Mitsubishi Motors Australia Ltd v Sosa (unreported, Supreme Court of South Australia, judgment no S5084, 8 June 1995) and from the particular provisions of s 36(1)(i) and s 36(3a)(bb) of the Act.

[7] [1998] SAWCT 32

[8] [2005] SAWCT 93.

[9] [2006] SAWCT 12.

[11] As set out in the section of the notice under the heading "Decision made".

[12] As set out in the section of the notice under the heading "How I reached this decision".

[14] In Rundle paras [28] & [29].

[17] Notwithstanding the absence of specific provisions to this effect as with the review process under s 38.